Happy v. Happy

941 S.W.2d 539, 1997 Mo. App. LEXIS 69, 1997 WL 17824
CourtMissouri Court of Appeals
DecidedJanuary 21, 1997
DocketNo. WD 53124
StatusPublished
Cited by4 cases

This text of 941 S.W.2d 539 (Happy v. Happy) 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
Happy v. Happy, 941 S.W.2d 539, 1997 Mo. App. LEXIS 69, 1997 WL 17824 (Mo. Ct. App. 1997).

Opinion

EDWIN H. SMITH, Judge.

This is an appeal from two separate orders of the Cole County Circuit Court. The first (Order I), entered on May 16, 1994, found [541]*541Jack Nelson Happy (appellant) in contempt of court for failing to pay the maintenance awarded to his former wife, Mary Jane Matthews Happy (respondent). Appellant first appealed Order I to this court in July, 1995, in Happy v. Happy, 903 S.W.2d 609 (Mo.App.1995) (Happy I). We dismissed this first appeal for a lack of jurisdiction because we found the contempt order was not final in that he had not purged himself of the contempt. Appellant asserts that we now have jurisdiction to hear his appeal as to Order I because: 1) the order was invalid when it was entered for failure to serve him with a show cause order; and 2) if the order is valid, it is now final in that he has purged himself of contempt by making partial payment of the past due maintenance as a result of the enforcement of a wage withholding order entered by the trial court. Appellant also appeals the trial court’s order of July 2, 1996, which, inter alia, overruled appellant’s motion to quash the wage withholding order.

Appellant asserts four points on appeal. In Points I, III and IV, he alleges errors as to Order I. In Point I, he claims that the trial court erred in entering its contempt order and order of commitment and warrant for arrest, because they are void for failure to serve him with a show cause order. In Point III, he alleges that the trial court erred in entering respondent’s contempt order against him for failure to pay maintenance, because in doing so, the trial court, in effect, modified the parties’ separation agreement without authority to do so. In Point IV, appellant alleges that the trial court erred in finding him in contempt, because the contempt, in part, was based on the nonpayment of guardian ad litem fees and interest on attorney’s fees, which he did not owe under terms of the parties’ separation agreement. In Point II, appellant claims the trial court erred in entering its order overruling his motion to quash the wage withholding order because of lack of notice and improperly withheld amounts which violated § 452.350 1, and because the order was not enforceable as to his wages earned in Virginia.

Because we find that the order of contempt is not invalid and is not final for purposes of appeal, we dismiss appellant’s appeal as to Order I. And, because we find that the appellant failed to demonstrate that the trial court’s order to withhold wages was invalid and is unenforceable under Virginia law, we affirm the trial court’s denial of appellant’s motion to quash.

Facts

Appellant and respondent were divorced on August 8, 1991. The parties’ dissolution decree provided that appellant was to make maintenance payments to respondent of $2,000.00 per month. However, appellant deducted a portion from each month’s maintenance payments due, arguing that his withholding was an “offset” for his unpaid attorney’s fees, which respondent refused to indemnify. He did this in reliance on the parties’ separation agreement, which contained a provision stating “... [hjusband shall be reimbursed for his attorney fees and other expenses resulting from this dissolution, this Agreement, the enforcement of this Agreement and any other matter between Husband and Wife.” L.F. 35.

Respondent filed a motion to modify and motion for contempt on December 7, 1993. In her motion for contempt, she asked the court to find appellant in contempt for failure to make full maintenance payments, or, in the alternative, to modify the attorney’s fees portion of the separation agreement for un-conscionability. She also sought reimbursement for other outstanding expenses and costs the court found proper. On May 16, 1994, the court entered its order of contempt and ordered appellant to pay his remaining maintenance obligation within thirty days or be subject to confinement. The court also determined that the attorney’s fees’ portion of the separation agreement required respondent to pay only the amount appellant incurred during the dissolution proceeding. It stated:

At the time this Court entered the Decree of Dissolution it had not found § IV(A) of the Separation Agreement to state that Petitioner was to be held liable for all of Respondent’s attorney fees both prior to [542]*542and subsequent to the dissolution of the marriage. If the Court had understood this to have been the intentions of the parties, it would have found § IV(A) to be unconscionable as against public policy.

L.F. 96-97. Thus, in interpreting this provision of the parties’ separation agreement, the court determined that appellant was entitled to deduct from his maintenance obligation only the amount of attorney’s fees resulting from the dissolution. Finally, the court found that the appellant owed the respondent interest on the amounts he had wrongfully withheld, and appellant was responsible for the outstanding guardian ad litem fee.

After thirty days had elapsed and appellant failed to purge himself of his contempt, the trial court issued its order of commitment and warrant for arrest. The trial court did not sustain respondent’s motion to modify the parties’ separation agreement. From the order of contempt, appellant appealed. In Happy I, 903 S.W.2d at 610, this court determined that we did not have jurisdiction to hear the appeal and dismissed it without addressing the merits of appellant’s complaints.

Respondent obtained an order of withholding on January 16, 1996, notice of which was sent to appellant’s employer in Virginia. After this, respondent began receiving proceeds from the withholding. Appellant filed a motion for contempt against respondent for failing to deliver personal property, a motion for new trial, and a motion for attorney’s fees. He followed this by filing a motion to quash respondent’s income withholding on June 24, 1996. On July 2, 1996, the trial court entered Order II, which addressed these motions. It dismissed appellant’s motion for contempt, from which dismissal appellant does not appeal. The court also overruled appellant’s motion to quash income withholding, which appellant does appeal.

I. Appeal as to Order I

Before we can address the merits of appellant’s Points I, III and IV, dealing with the validity of the trial court’s contempt order, Order I, we must first determine if we have appellate jurisdiction as to an appeal from this order. Regardless of whether a party raises the issue of appellate jurisdiction, or in what manner, we have a duty, sua sponte, to inquire into our jurisdiction. Home of Hope, Inc. v. McDonald, 899 S.W.2d 138, 139 (Mo.App.1995).

Respondent claims that we cannot address the merits of appellant’s appeal concerning Order I because, as we held in Happy I, 903 S.W.2d at 610, the appellant’s failure to purge himself of the contempt renders the contempt order non-final and unappealable. However, appellant contends that: 1) regardless of whether Order I is final, it is appeal-able to determine if it is invalid or void ab initio for failure to serve him with a show cause order; and 2) even if it is not invalid or void ab initio, Order I is now final for appeal, because he has purged himself of the contempt by reason of the wage withholding.

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Bluebook (online)
941 S.W.2d 539, 1997 Mo. App. LEXIS 69, 1997 WL 17824, Counsel Stack Legal Research, https://law.counselstack.com/opinion/happy-v-happy-moctapp-1997.