Hankey v. Hankey

623 S.W.2d 35, 1981 Mo. App. LEXIS 3010
CourtMissouri Court of Appeals
DecidedAugust 25, 1981
DocketNo. 41992
StatusPublished
Cited by3 cases

This text of 623 S.W.2d 35 (Hankey v. Hankey) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hankey v. Hankey, 623 S.W.2d 35, 1981 Mo. App. LEXIS 3010 (Mo. Ct. App. 1981).

Opinion

SATZ, Presiding Judge.

Respondent-wife initiated this action below requesting the trial court to hold appellant-husband in contempt for failure to pay child support. The trial court held the husband in contempt and awarded the wife attorney’s fees. We reverse the judgment of contempt and affirm the award of attorney’s fees.

The basic facts are not in dispute. By a decree entered in June, 1973, the marriage between appellant-husband and respondent-wife was dissolved and the husband was ordered to pay $20.00 per week per child for each of the parties two minor children. Custody of the two children was placed with the wife. The husband made the support payments from the date of the decree until December, 1975, when the wife moved to California and the two children went to live with the husband. At that time, the husband and wife agreed that the husband would take “custody” of the children and he would not have to pay child support. In May, 1977, the wife returned to Missouri, and, in July, 1978, the younger child went to live with the wife. The older child remained with the husband. The husband did not resume payment of support for the younger child. According to his testimony, he believed he and the wife were acting under their oral agreement which, he believed, modified the order of child support.

In her testimony, the wife unequivocally admitted to the existence and terms of the 1975 agreement with the husband. She also admitted that when she returned from California in May, 1977, she and the husband continued to act under this oral agreement, and she stated she made no effort to modify the agreement. She also stated she had no discussion with the husband concerning child support payments between July, 1978, when the younger child came to live with her, and the trial of this contempt proceeding. Prior to the hearing for contempt, she made no demand on the husband for child support payment nor did she attempt to collect payment by any other means. Based upon this record, the trial court found the husband’s failure to pay support payments for the younger child, after her return to the wife, was “wilful and contumacious” and held the husband in contempt.

In this appeal, the determinative issue is whether defendant’s violation of the court order of support was “wilful and contumacious.” Defendant contends his failure to pay the child support resulted from his belief that his oral agreement with his wife had modified the order of child support and, therefore, he did not intentionally or wilfully violate that order. More specifically, he contends the conclusion he lacked intent to violate the order of support is the only sensible conclusion that can be supported by the record and, therefore, he argues the trial court’s contrary conclusion is erroneous because it cannot be and is not supported by “substantial evidence.” See Murphy v. Carrón, 536 S.W.2d 30, 32 (Mo. banc 1976). We agree.

As far as the record shows, this action for contempt was not brought pursuant to § 452.345 RSMo 1978 or § 476.110 RSMo 1978.1 Apparently, the wife invoked the [37]*37trial court’s inherent power to adjudicate civil contempt proceedings in child support cases. See, State ex rel McCurley v. Hanna, 535 S.W.2d 107, 108 (Mo. banc 1976). The wife made a prima facie case of contempt by showing the husband’s violation of the order for child support. Blair v. Blair, 600 S.W.2d 143, 145 (Mo.App.1980); See also, In re Marriage of Vanet, 544 S.W.2d 236, 245-6 (Mo.App.1976). Once the prima facie case was made, the “burden of proof” shifted to the husband to prove his affirmative defense. Blair v. Blair, supra at 145; See also, In re Marriage of Vanet, supra at 245-46. As noted, his defense was he did not intend to violate the order of support because he believed the oral agreement between the wife had modified the court order. If proved, this is a proper defense in both logic and law. See, Wolfe v. Wolfe, 303 Ill.App. 188, 24 N.E.2d 871, 872-73 (1940); 24 Am.Jur.2d Divorce and Separation § 869 (1966). We find the husband did prove his defense and the trial court had no reasonable basis to reject it.

There can be no dispute, that, at the time the wife left for California, she and the husband orally agreed he would not have to pay support. She testified: “When I went to California, there was a definite verbal agreement between Bill and I on this child support issue, that he was going to take them and not pay me.” More important, from the following cross-examination of the wife, it is clear the agreement was not changed on his return:

“Q. Have you gone back to him and worked out a new agreement since the situation has changed.
A. No.
Q. Have you made any effort whatsoever to modify the agreement that you say you entered into with him when you went to California.
A. No.”

Furthermore, as noted, she testified she did not write the husband, phone him or send him a message in an attempt to modify the agreement. Finally, she made no demand on the husband to resume the original child support payment prior to initiating the action for contempt.

Even if the trial court chose to disbelieve the uncontradieted testimony of the husband, Sebree v. Rosen, 349 S.W.2d 865, 872 (Mo.1961), the wife, as a party, is bound by her uncontradicted testimony. Silberstein v. Berwald, 460 S.W.2d 707, 710 (Mo.1970); Talley v. Bowen Construction Co., 340 S.W.2d 701, 706 (Mo.1960). The only sensible inference from the recited facts is that the husband did believe the parties had a modified agreement concerning child support, and his conduct followed his belief. There is nothing in the record to support a rejection of this belief or to make his resulting conduct suspect. Moreover, there is nothing in the record which reasonably would require him to change this conduct when the younger child returned to the wife. To conclude the husband did not hold his stated belief or knew his conduct should change, requires reading a “condition subsequent” into the agreement that it terminated as to either one or both children if and when either one or both returned to live with the wife, and, further, that the husband unquestionably knew or should have known of this condition. This is a free leap in logic not justified by the record. Thus, there is no substantial evidence in the record that would allow the trial court to infer the husband did not believe the parties had a modified agreement concerning child support. To the contrary, the evidence sup

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Heineman v. Heineman
768 S.W.2d 130 (Missouri Court of Appeals, 1989)
Marriage of Lyles v. Lyles
710 S.W.2d 440 (Missouri Court of Appeals, 1986)
Blankenship v. Blankenship
689 S.W.2d 378 (Missouri Court of Appeals, 1985)

Cite This Page — Counsel Stack

Bluebook (online)
623 S.W.2d 35, 1981 Mo. App. LEXIS 3010, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hankey-v-hankey-moctapp-1981.