Holleran v. Holleran

998 S.W.2d 99, 1999 Mo. App. LEXIS 848, 1999 WL 409471
CourtMissouri Court of Appeals
DecidedJune 22, 1999
DocketNo. 74705
StatusPublished
Cited by3 cases

This text of 998 S.W.2d 99 (Holleran v. Holleran) 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
Holleran v. Holleran, 998 S.W.2d 99, 1999 Mo. App. LEXIS 848, 1999 WL 409471 (Mo. Ct. App. 1999).

Opinion

PAUL J. SIMON, Presiding Judge.

Michael T. Holleran (defendant), Anne Holleran (Anne), John Holleran (John), and Diane Scott (Diane), (collectively appellants) appeal the judgment entered by the circuit court imposing a lien on bond money deposited by Anne and belonging to Anne, John, and Diane, and awarding the funds to Mary Holleran (wife), for satisfaction of child support arrearages.

Appellants contend the trial court erred in denying their request to void the impo[100]*100sition of a lien upon assets posted upon a bond in a criminal proceeding, not part of the instant litigation, and to utilize those assets to satisfy child support arrearages accruing in the instant matter because the actions of the trial court in granting the lien request and denying appellants’ request to void the lien herein violated the provisions of State v. Echols, and the Fifth and Fourteenth Amendments of the U.S. Constitution and Article I, Section 10 of the Missouri Constitution as the same constituted an improper taking and denied appellants due process of law, sought to utilize assets of a third party to satisfy the debt of a contemnor, and is void against public policy in favor of satisfaction of bond terms and the constitutional requirement of reasonable terms of bonding. We reverse and remand.

We affirm the trial court’s judgment if it is supported by substantial evidence and is not against the weight of the evidence, and it correctly declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32[1—3] (Mo.banc 1976).

The record reveals that the marriage of defendant and wife was dissolved by a Decree of Dissolution (Decree) on August 9, 1994, in Cause No. 933-3380. Custody of the couple’s two children, John T. Hol-leran and Sean M. Holleran, was awarded to wife. Defendant was ordered to pay $742.60 per month in child support for both children.

On April 15, 1997, defendant was charged by indictment, under Count I, with the offense of Assault in the First Degree, a class A felony, and, under Count II, with the offense of Armed Criminal Action in Cause No. 971-0967. He was incarcerated and bond was set at $250,000, with ten percent cash authorized, pursuant to Rule 33.17.

On May 1, 1997, wife filed a motion for contempt against defendant, requesting that he be held in contempt for allegedly failing to pay wife the sums required pursuant to the Decree. On August 28, 1997, the trial court issued its Findings, Conclusions, Order and Judgment of Contempt, wherein it found that defendant had failed to pay all sums required under the Decree and was indebted to wife in the amount of $19,710.23. However, the trial court found that he was incarcerated at that time, and held that the “method for purging contempt and paying back arrearage at $19,-710.23” be stayed until defendant was released from jail.

On October 2, 1997, defendant was released from jail following the deposit of a $25,000 cashier’s check with the Circuit Clerk by Anne, defendant’s mother, and the posting of real estate by various other parties as security. Upon delivering the $25,000 cashier’s check to the Circuit Clerk, Anne received a form informing her that she was posting bond for defendant. Subsequently, Anne received a bond receipt for $25,000, on which only defendant’s name appeared. The bond, signed by Anne as surety and defendant as principal, provided that should defendant “abide and submit himself to the orders, judgment, sentence and process of said court,” then the bond would be “null, void and of no effect otherwise to remain in full force and effect in accordance with law ...” Further, the bond provided in pertinent part:

... and all sureties herein submit themselves to the jurisdiction of the said court in which such indictment may be found or information filed or to any division thereof to which this cause may be legally sent, or to any other court to which said cause may be removed by change of venue, and irrevocably appoint the clerk of said court or courts as their agent upon whom may be served for them all notices, motions, pleadings and process concerning the forfeiture of this bond.

Anne was also given a form entitled “Return of Cash Deposits” which informed her that in order for a surety who put up the deposit on a bond to receive a refund of their deposit the:

[101]*1011 .case must be closed or the bond must be discharged by an order of the Court.
2.party requesting the return of the bond money must apply in person to the Cashier Room 101, with their original receipt and proper indentifi-cation.
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On the same day that defendant was released from jail, the trial court found that defendant had paid $1,500 toward his outstanding arrears of $19,710.23 and ordered that he appear before the trial court on October 14, 1997, to determine a payment plan to “pay back the remainder of his outstanding arrears of $18,210.00.” The record does not reveal what transpired on October 14, 1997 or whether defendant appeared before the trial court on that day.

Although not part of the record, the parties agree that the Assistant Circuit Attorney for the City of St. Louis requested that the trial court impose a hen on the bond posted for defendant to secure payment of his delinquent child support obligation to wife. On January 26, 1998, the trial court ordered that a lien in the amount of $18,210.23 be placed on the $25,000 deposited with the Clerk of the Circuit Court as bond in the criminal case. Further, the trial court directed the clerk, upon resolution of the criminal case, that “$18,210.23 of said bond be paid over [to] the Parent Location of the Clerk of the Circuit Court as trustee” for wife as payment of defendant’s unpaid child support through August 27, 1997. On February 9, 1998, the Circuit Clerk issued its check to the Child Support Division in the amount of $18,210.23. Subsequently, wife received that amount from the Office of the Circuit Clerk, Child Support Division.

On March 26, 1998, defendant filed his motion to deny request for lien or in the alternative to reconsider imposition of lien on the bond. Defendant alleged that the request for the lien was made without prior notice to him and that no copy of the motion and/or order was provided to defendant “at anytime subsequent to January 26, 1998.” He alleged that he was not made aware of the request for imposition of the hen until “counsel’s third review of the file occurring on or about March 24, 1998,” because it was not included in the trial court file prior to that time. Defendant contended that a hearing was required to determine whether he possessed the assets posted upon the bond, and that if the assets did not belong to him, the action of placing a lien on property not belonging to defendant reached a “disallowed result.” He also alleged that “principles of equity” precluded the conversion of “other non-party assets” to the use of the alleged contemnor in satisfaction of the alleged contempt. Defendant prayed that the trial court set aside and deny the imposition of the lien upon the bond posted in the criminal case. On that same day, the trial court ordered that the $18,210.23 paid by the Circuit Clerk’s office to wife be “immediately returned” in full to the registry of the court. The trial court set hearing on defendant’s motion for April 30, 1998; however, at that time it did not make a finding as to whether wife was entitled to the $18,210.23 from the bond.

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Bluebook (online)
998 S.W.2d 99, 1999 Mo. App. LEXIS 848, 1999 WL 409471, Counsel Stack Legal Research, https://law.counselstack.com/opinion/holleran-v-holleran-moctapp-1999.