criminal contempt conviction may not be reviewed by appeal
How later courts described this case
- criminal contempt conviction may not be reviewed by appeal
- non-payment of maintenance and child support
Written by the judges who cited it.
The opinion
BARDGETT, Judge
(concurring in part and dissenting in part).
I concur in the holding that proceedings for contempt under section 452.345 are civil and not criminal. I dissent from that part of the opinion that says, “Before ordering imprisonment trial courts should be convinced that the person is financially able to make the required payment or that he has intentionally and contumaciously placed himself in a position so that he could not comply with the court’s orders.” (Emphasis mine.)
In my opinion, the word “or” should be “and”. The evidence as to whether the party intentionally placed himself in a position where he could not comply with the maintenance award as it became due is proper as it goes to the reason for nonpayment. That is to say, it would show the failure to pay when due was not accidental, negligent, or due to inability. But, before the court can imprison to coerce payment, I believe the evidence must show and the court must find that the party charged has the present financial ability to make the payment and refuses to do so. See my dissent in State ex rel. Stanhope v. Pratt et al., 533 S.W.2d 567 (Mo. banc 1976).
Therefore, while I concur in the judgment reversing and remanding the cause, I do not concur in the court’s opinion which allows past ability to pay to be the basis for imprisonment, for past ability does not afford present ability to perform so as to be released from jail.