Wagner v. Wagner

945 S.W.2d 689, 1997 Mo. App. LEXIS 955, 1997 WL 274024
CourtMissouri Court of Appeals
DecidedMay 27, 1997
DocketNo. 71136
StatusPublished
Cited by2 cases

This text of 945 S.W.2d 689 (Wagner v. Wagner) 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
Wagner v. Wagner, 945 S.W.2d 689, 1997 Mo. App. LEXIS 955, 1997 WL 274024 (Mo. Ct. App. 1997).

Opinion

REINHARD, Judge.

Husband appeals from the trial court’s order dismissing his motion to modify the dissolution decree. We reverse and remand.

The original decree was entered on September 1, 1993. Custody of the parties’ minor child was awarded to wife, and husband was awarded visitation and temporary custody. The trial court ordered husband to pay $652 per month for child support after finding husband’s income to be $6,000 per month and wife’s income to be $1,000 per month. Wife was awarded maintenance in the amount of $300 per month, and the trial court ordered husband to pay wife’s attorney’s fees of $6,000.

On October 14, 1993, the original decree was set aside. Wife’s earnings were shown as $1,300 per month, and therefore, the new decree reduced the amount of child support to $635.50 per month. The other terms of the decree remained the same. On appeal, this court affirmed the trial court’s judgment in part and remanded for entry of a new judgment setting child support as $741.32 per month. Wagner v. Wagner, 898 S.W.2d 649 (Mo.App. E.D. 1995).

Wife subsequently filed a motion for contempt for failure of husband to pay child support, maintenance, and attorney’s fees. On December 13, 1993, the trial court sustained the motion and ordered husband to pay the following within eighteen months: past due child support of $1,592; maintenance of $1,200; attorney’s fees of $1,800; and $545.95 for a washer and dryer taken by husband. The trial court ordered that if husband failed to pay these amounts, he would be imprisoned, after a hearing, for six months.

On March 31, 1994, husband and wife again appeared before the trial court, and it entered the following order on wife’s motion for contempt by consent: Husband “agrees that he is in arrears in” (1) child support of $958.50; (2) maintenance of $300; (3) doctor bills of $271; and (4) counseling fees of $368. The court noted in its order that husband “agrees to pay the sum of $100 per month beginning April 15, 1994” to purge himself of this debt.

On November 10, 1994, husband and wife returned to court for a hearing on wife’s contempt motion. The court found husband was “in arrears and in violation of the decree of dissolution ... and that said failure to comply is wilful and contumacious.” Husband was granted six months to comply with the order.

On March 20, 1996, husband filed a motion to modify the decree of dissolution. He alleged that continuing and substantial changed circumstances required a modification of the court’s decree. Husband also complained that wife had failed to sign the deed to some property and asked the court to hold her in contempt. Husband alleged, in part: (1) he “has suffered a substantial diminution in income and he is destitute;” (2) he “has tax liens against him and owes the IRS a considerable sum of money;” (3) he is “no longer able to pay maintenance, and [wife] is possessed of enough money and funds that she can support herself;” (4) child support should be reduced due to the financial condition of the parties; (5) wife has [691]*691“failed and refused to allow [husband] to exercise his rights of temporary custody and visitation;” and (6) wife has “poisoned the minor child’s mind against [husband].”

Husband asked the court to modify the decree as follows:

[Decrease the amount of child support to be paid by [husband] according to the child support guidelines, taking into account the income of each party ...; order [wife] to allow [husband] his rights of temporary custody and visitation of the minor child; order that no further maintenance be paid to [wife] by [husband]; order that the language regarding the payment of college tuition be modified to state that the “cost” of tuition be reduced by any scholarships, grants, or aid received by the minor child; order that [wife] pay for one-half of any and all medical expenses not covered by [husband’s] health insurance ...

In response, wife filed a motion to dismiss husband’s motion to modify the decree of dissolution. In her motion, wife alleged that “[b]y virtue of [husband’s] repeated willful, contumacious refusal to abide by the terms of the Decree of Dissolution of Marriage and the numerous Court Orders which have followed, [husband] comes into this Court with unclean hands and his Motion to Modify the Decree of Dissolution of Marriage should, therefore, be dismissed_”

After the trial court heard argument from both parties, it held that “[wife’s] Motion to Dismiss [husband’s] Motion to Modify decree of dissolution of marriage is sustained. [Husband’s] Motion to Modify is dismissed without prejudice. [Husband] may refile upon becoming in compliance with this court’s prior orders.”

On appeal, husband contends that the trial court’s dismissal of his motion to modify “without hearing, and on the basis of noncompliance with prior court orders, constitutes an abuse of discretion.” Husband further alleges that the court’s order is “contrary to the law in that the order as entered is in excess of the court’s jurisdiction.”

In Richman v. Richman, 350 S.W.2d 733 (Mo.1961), the defendant husband’s pleadings were struck in a dissolution action because of his failure to pay the judgment for child support and attorney’s fees, made in penden-te lite orders. Id. at 733. The court later heard plaintiff wife’s evidence and entered a decree of dissolution by default judgment against husband. Id. On appeal, the Missouri Supreme Court held that depriving husband of his right to defend was a denial of due process of law. Id. at 733-34. The court referred to the “established rule” of “requir[ing] the payment of an alimony award as a condition to the granting of affirmative relief’ and stated that “the situation where payment is made a condition to the granting of affirmative relief and one where it is made a prerequisite to the right to defend are quite clearly distinguishable.” Id. at 735. The former is “the withholding of a favor while the latter involves a fundamental constitutional right.” Id.

In O’Neal v. Beninate, 601 S.W.2d 657, 658 (Mo.App. E.D.1980), this court cited Rich-man, recognized that compliance with a prior court order may be a prerequisite to obtaining affirmative relief, and extended this principle so that the “same rule would apply to child support.”1 This court has also recognized that in the context of a motion for modification in a dissolution case, Rule 67.03 authorizes an involuntary dismissal for failure of the plaintiff to comply with “any order of the court.” S.L.J. v. R.J., 892 S.W.2d 683, 685 (Mo.App. E.D.1994).

Our review of an involuntary dismissal is limited to the abuse of discretion standard. Staples v. Staples, 895 S.W.2d 265, 266 (Mo.App. E.D.1995). Judicial discretion is abused when the trial court’s order is against the “logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration.” Id. If reasonable persons can differ about [692]*692the propriety of the action taken by the trial court, then it cannot be said the court abused its discretion.

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Bluebook (online)
945 S.W.2d 689, 1997 Mo. App. LEXIS 955, 1997 WL 274024, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wagner-v-wagner-moctapp-1997.