Jacoby v. Jacoby

675 S.W.2d 117, 1984 Mo. App. LEXIS 4000
CourtMissouri Court of Appeals
DecidedJuly 31, 1984
DocketNo. WD 34815
StatusPublished
Cited by5 cases

This text of 675 S.W.2d 117 (Jacoby v. Jacoby) 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
Jacoby v. Jacoby, 675 S.W.2d 117, 1984 Mo. App. LEXIS 4000 (Mo. Ct. App. 1984).

Opinions

SOMERVILLE, Judge.

A defaulting husband (hereinafter contemnor) has appealed from a judgment of contempt and commitment order for failure to pay child support initiated pursuant to § 452.345, RSMo Supp.1983. Contempt proceedings pursued under § 452.345, supra, are civil in nature and subject to direct appeal. Teefey v. Teefey, 533 S.W.2d 563, 566 (Mo. banc 1976).

The proceedings below were instigated by the filing of a “Motion For Contempt” by the prosecuting attorney of Chariton County, Missouri, the contents of which were verified under oath by the con-temnor’s ex-wife (hereinafter proponent). Under a decree of dissolution rendered February 12, 1981, proponent was awarded custody of three minor children born of the marriage between proponent and con-temnor and the latter was ordered to pay proponent child support in the amount of $25.00 per week for each child.

The “Motion For Contempt”, inter alia, singularly charged that contemnor had failed and refused to pay proponent child support per the decree of dissolution, and, as of the date of said motion, $450.00 in [119]*119child support payments were in arrears. An “Order to Show Cause” issued and served on contemnor in conjunction therewith, inter alia, paralleled the single charge of contumacious conduct set forth in the “Motion For Contempt”.

Pursuant to the “Order to Show Cause”, a hearing was held on the civil contempt charge leveled against the contemnor on June 1, 1982, at which time the proponent made a prima facie case in accordance with In Re Marriage of Vanet, 544 S.W.2d 236 (Mo.App.1976). However, as the con-temnor was not represented by counsel, the trial court, on its own motion, continued the matter until June 21, 1982, in order to give the contemnor an opportunity to obtain counsel. June 21, 1982, came and went without any further hearing in the matter. The only inkling of an explanation for not hearing the matter on June 21, 1982, as previously set, is the following docket entry under date of June 21, 1982: “The Court is informed by telephone call from Hamp Ford that a consent order will be mailed providing that James H. Jacoby will pay $350.00 per month, by certified check or Money Order, until such time as past due payments are brought current and then $300.00 per month.” No “consent order” was ever mailed or otherwise formalized.

In response to “hardship” pleas of the proponent, the prosecuting attorney of Chariton County noticed the original “Motion For Contempt” up for a further hearing on February 22, 1983. The contemnor again appeared without counsel. After a limited hearing, at which time contemnor (a farmer-construction worker) related certain physical infirmities and fiscal adversities which purportedly rendered him unable to make the delinquent child support payments, the trial court continued the hearing to March 1, 1983. The husband finally obtained counsel, and on motion of husband’s counsel the matter was continued until March 15,1983. During the course of the hearing on March 15, 1983, evidence was introduced that either in June or October of 1982 the contemnor received approximately $60,000.00 from “fire insurance proceeds”, $34,000.00 of which he spent on clothing and household goods for the benefit of himself and the wife of a second marriage, with the remainder apparently having been spent for living expenses and unsuccessful farming operations.

What purported to be a judgment in contempt was rendered by the trial court on March 15, 1983. It was cast in the following terms: “The Court finds James H. Ja-coby in contempt of this Court in that he received $34,000 cash from an insurance company and spent all of said cash on clothing and household goods for himself, and did not catch up on his child support payments as ordered by this Court 2-13-81.” What purported to be a commitment order was issued by the trial court on the same date (March 15, 1983). It was cast in the following terms: “It is by the Court ordered that James H. Jacoby be sent to jail for ten days. Commitment stayed until 21 March 1983 to allow James H. Jacoby time to get his affairs in order. James H. Jacoby may purge himself of said contempt at any time and be free of said jail sentence.”

Apparently harboring reservations about the legal efficacy of the judgment of contempt and order of commitment dated March 15, 1983, the trial court, on April 12, 1983, after giving all interested parties notice, undertook to amend its original judgment of contempt and order of commitment. What purported to be the judgment of contempt was amended to read as follows: “Now therefore it is ordered and adjudged that James H. Jacoby is guilty of contempt of this Court because of his spending $34,000 for household goods and clothing for his family at a time when he was delinquent at least $1,250.00 in his child support payments and by making such large expenditure he knowingly and intentionally placed himself in a position where he cannot comply with his obligation to pay child support as ordered by this Court.” What purported to be the order of commitment was amended to read as follows: “It is therefore ordered that James H. Jacoby be committed to the Chariton [120]*120County jail until such time as he has purged himself of contempt by causing part of his $34,000.00 household goods to be sold so that the sum of $1,250.001 can be paid on the said present $2585.00 child support delinquency.”

Contemnor raises, in the aggregate, seven points on appeal. At least two, and possibly more, thereof, when viewed collectively, may be fairly paraphrased as attacking the legal efficacy of the judgment of contempt and commitment order on the basis that they were not responsive to the “Motion For Contempt” and “Show Cause Order” and were predicated on grounds for which contemnor was neither charged nor given notice. This amalgamated point is deemed dispositive of this appeal.

Civil contempt and criminal contempt are legally distinguishable—the primary purpose of civil contempt is to coerce a party litigant to comply with relief granted to his adversary, while the primary purpose of criminal contempt is to protect, preserve, and vindicate the power and dignity of the law itself. Ex Parte Ryan, 607 S.W.2d 888, 890 (Mo.App.1980), and cases therein cited. Because of their distinguishing features, one guilty of criminal contempt is committed for a fixed period while one guilty of civil contempt is committed for an indeterminate period, i.e. until he purges himself. Leslie v. Leslie, 620 S.W.2d 48, 50 (Mo.App.1981). For this reason, one guilty of civil contempt is rhetorically referred to as “his own jailer.”

Notwithstanding a number of patent distinguishing features between criminal and civil contempt, the substance of many statutory provisions and common law principles appertaining to criminal contempt have been judicially applied in civil contempt because of the latter’s inherent savoring of criminality. In Ex Parte Brown, 530 S.W.2d 228, 231 (Mo. banc 1975), a case involving criminal

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Bluebook (online)
675 S.W.2d 117, 1984 Mo. App. LEXIS 4000, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jacoby-v-jacoby-moctapp-1984.