State Ex Rel. Stanhope v. Pratt

BARDGETT, Judge

(dissenting).

I respectfully dissent from the result reached in this case. We are here concerned first of all with the order the trial judge declared he would issue unless prohibited. The trial court did not set forth the precise terms of its proposed order nor do the parties do so in their pleadings and briefs other than to say that the trial judge, in open court, advised the parties and their attorneys that he (trial judge) was going to find relator in contempt of court and sentence him to sixty days in the county jail. This threatened order seems to be the subject of this case. The transcript of the trial court proceedings of May 28,1975, indicates that if the circuit judge found relator in contempt he would impose a sentence of sixty days in jail and would suspend imposition of the sentence subject to this relator paying the maintenance as he is supposed to do and living up to the other orders of the court.

Regardless of which order it was that the court declared its intent to issue, one thing is clear and that is that the circuit judge was going to sentence the relator to jail for a fixed period as punishment for failing to pay the maintenance provision of the divorce decree in the past. As to past and overdue maintenance, there is no question in my mind but what it is a judgment debt due and owing and this is so regardless of whether the divorce decree used the words “judgment”, “order”, or “decree”, or all three. The word “order” is used because at the time a decree awarding maintenance is issued, it looks to the future and it is not at that time (when entered) a judgment of a *576 sum then due and owing as are most other awards of money. But on each date the maintenance is due and not paid, it automatically increases the sum then due and as such the judgment increases.

Nevertheless, I would uphold the.constitutionality of the contempt powers afforded by section 452.345 as a special means of obtaining compliance with maintenance orders to the extent that the contempt proceedings and orders do not offend against the constitutional prohibition to imprisonment for debt.

In this case, it is my opinion that the contempt proceedings and the threatened order do offend against the constitutional prohibition to imprisonment for debt.

In the related case of Teefey v. Teefey, 533 S.W.2d 563 (Mo. banc 1976), of this date, this court holds that the contempt is a civil contempt and not criminal contempt. That holding is based upon this court’s conclusion that the proceedings under section 452.345 are for the benefit of the party entitled to collect maintenance. I agree that, at most, proceedings under 452.345 are civil and not criminal contempt. Section 452.345(4) clearly leaves it to the discretion of the recipient of the maintenance as to whether or not to initiate contempt proceedings. These proceedings, therefore, are not to vindicate the dignity of the court but rather solely to effectuate collection of maintenance.

Being civil contempt, the contemnor must, at the time he is cited, be able to purge himself of the contempt by the doing of some act that is then and there within his power and ability to perform. He must hold the key to the jailhouse, as the function of this type of contempt is to coerce the doing of an act which act satisfies the order of the court. In order to convict for civil contempt, it is necessary that the con-temnor have the ability to comply. White v. Hutton, 240 S.W.2d 193 (Mo.App.1951). White v. Hutton was a habeas corpus by petitioner who had been adjudged in contempt for failing to comply with a judgment in a proceeding to discover assets of an estate and ordered confined in jail until he delivered the sum of $2,000 to the ad-ministratrix or until otherwise released by order of court. The appellate court considered various aspects of the problem of the use of contempt to obtain compliance with court orders or judgments not immediately pertinent here. But the court did say at 202-203, “but there appears no authority for the application of the penalty for failure to comply with the judgment of the court for delivery of specific property or the value thereof, when there is no finding that the party charged has the same in his possession or control. If such a judgment under the conditions last described has any force or effect at all, which we do not here determine, it would be, at most, a mere judgment for debt, for the default of which no contempt and imprisonment could apply. If it purports to be a judgment to be enforced by attachment and imprisonment as for contempt, then it lacks an essential element to make it so, namely the finding of present possession or control.”

It is true that in White v. Hutton , the statute required that the party charged “has them in his possession or under his control”, and section 452.345 does not specifically so provide. But that element must be read into section 452.345 if this is civil contempt or else the imprisonment obviously would not be to coerce compliance but rather to simply punish for past failure to pay and that, I submit, would be imprisonment for debt pure and simple.

In this case the evidence received by the trial court on October 16, 1975, was that relator had $68 in a joint bank account with his present wife. There was also substantial evidence that petitioner had earned about $450 per week over the previous several months, as well as evidence of the financial needs of petitioner, his present wife, and his former wife, and that on October 16, 1975, petitioner was delinquent in payments of maintenance in the amount of $2,650. There is nothing in the record to *577 show that petitioner had $2,650 as of the date the court threatened to imprison him. There was an earlier hearing on May 28, 1975, at which time petitioner was delinquent in the amount of $1,100. There is nothing in the record to show he had $1,100 as of the date the circuit court first threatened to imprison him.

The trial court on October 28, 1975, following the hearing on October 16, 1975, found that petitioner was able to pay the maintenance sums as they became due. The trial court also found that petitioner is now in a position to comply with the maintenance order. I do not know whether this finding of present ability refers to an ability to pay up the delinquent amount or to pay the next month’s maintenance. Nor can I determine what petitioner must do to be released from jail. As noted supra, I find no evidence that petitioner had the present ability (October 28,1975) to pay the delinquent amount. The threatened contempt order does not recite the contemptuous conduct nor does it delineate specifically what petitioner must do to purge the civil contempt.

The trial court found that petitioner’s failure to pay maintenance was a voluntary act on his part done with the intent of placing himself in a position to avoid compliance with the order (maintenance provisions of divorce decree). This finding seems to be based upon the fact that petitioner remarried shortly after his divorce from Mrs. Stanhope and thereby took on other responsibilities rather than pay his own maintenance. The record supports the finding that petitioner remarried thirty-one days after being divorced from Mrs. Stan-hope. While I am not certain that it makes any difference anyway, there is no evidence that he married his present wife for the purpose of avoiding payment of maintenance.

At the October 16, 1975, hearing, the driver supervisor of the trucking company for which petitioner works testified. He produced the paycheck petitioner would receive that day. The amount of that check is not shown in the record but the evidence was that petitioner’s last paycheck was for a net amount of $831.95. Had the court seen fit to do so, it could have ordered petitioner to endorse that paycheck which was present in court over to his former wife or made an order directing petitioner to immediately pay part of it over to his former wife. That was an act which petitioner could perform just as in the cases cited in the principal opinion where a court ordered a party to do a specific act such as delivering bonds in his possession or delivering possession of a house. In re Knaup, 144 Mo. 653 , 46 S.W. 151 (1898); Ex parte Devoy, 208 Mo.App. 550 , 236 S.W. 1070 (1921).

Also, under section 452.350, the court can order the party obligated to pay maintenance or support to execute an assignment for part of his earnings and the employer must comply. If the party ordered to execute the assignment refuses, then I believe the court can utilize coercive imprisonment to obtain compliance with the order to execute an assignment. Again, however, this is something the obligor has the ability to do and the doing of it releases him from jail.

Ex parte Phillips, 43 Nev. 368 , 187 P. 311 (1920), cited in the principal opinion, was habeas corpus to obtain the release of petitioner who had been held in contempt of court for failure to make a certain payment ordered in a contempt proceeding. In the contempt proceeding of December 3, 1918, the court found that petitioner had not fully complied with the alimony award set out in the divorce ease, that he was able to make certain payments thereon and pay in the future a monthly sum on account thereof, and accordingly issued an order that he pay forthwith and thereafter make certain monthly payments to plaintiff in the action. Failing to comply with the last mentioned order, petitioner was, on August 11, 1919, adjudged in contempt of court and as pun *578 ishment it was ordered that he be confined in the county jail unless a certain payment was made. Failing to make the payment, a commitment was issued to the sheriff from which petitioner sought discharge.

Phillips’s primary contention was that alimony is a debt and that a party cannot be imprisoned for nonpayment of a debt. The court held that alimony was not a debt in the ordinary sense, as set out in the principal opinion here, and that “The imprisonment is not alone to enforce the payment of money, but to punish the disobedience of the party . . . .”

In support of its holding as to contempt, the Nevada court quoting from Gompers v. Buck’s Stove & Range Co., 221 U.S. 418 , 31 S.Ct. 492 , 55 L.Ed. 797 , said at 187 P. 312 : “ ‘If a defendant should refuse to pay alimony, or to surrender property ordered to be turned over to a receiver, or to make a conveyance required by a decree for specific performance, he could be committed until he complied with the order. * * * The order for imprisonment in this class of cases, therefore, is not to vindicate the authority of the law, but is remedial, and is intended to coerce the defendant to do the thing required by the order for the benefit of the complainant. If imprisoned, as aptly said in Re Nevitt, 8 Cir., 54 C.C.A. 622 , 117 F. 448, 451 , “he carries the keys of his prison in own pocket.” He can end the sentence and discharge himself at any moment by doing what he had previously refused to do.’ ” (Emphasis mine.)

In Phillips there appears to be no contention by petitioner that he could not make the payment at the time of his commitment on August 11, 1919, and because of the language quoted supra I must assume that the record in that case showed he could make the payment for which he was held in contempt for not making at the time of his incarceration. I say this because the Nevada court relied upon a holding of the United States Supreme Court in which it is said that, “ ‘he carries the keys of his prison in own pocket.’ He can end the sentence and discharge himself at any moment by doing what he had previously refused to do.”

The Nevada court would not have held that Phillips could release himself from imprisonment without knowing from the record that he had the ability to do so. That ability had to mean that Phillips then and there had the money but refused to pay it over. If he did not have the money when he was committed to jail, then he could not release himself. This ability to pay, in my opinion, cannot refer back to an earlier date when a monthly payment was due because that earlier ability could simply not function as present ability to make the payment and be released from jail. I regard Phillips as a finding of contempt for failure to comply with a specific court order when he has the present ability (at the time he is imprisoned) to comply.

The past ability to pay the running alimony award as payments became due could not be the present possession of the jailhouse key when the order of commitment requires the payment now to secure release. The key must be able to open the door and it is only present ability to pay and the use of that present ability that can do that.

In Coughlin v. Ehlert, 39 Mo. 285 (1866), the petitioner did not have the ability to pay the alimony at the time he was imprisoned. After holding that a party cannot be imprisoned as for contempt for failing to pay alimony when due, the court went on to say, loe. cit. 286: “We do not mean to say that a party may not be put in contempt for disobeying a decree for the performance of acts which are within his power and which the court may properly order to be done. If it were shown, for instance, that the party had in his possession a certain specific sum of money, or other things, which he refused to deliver up under the order of the court for any purpose, it may very well be that his disobedience would be a contempt for which he might lawfully be imprisoned. But the order must be for the performance *579 of some specific act other than the mere payment of money.”

On its facts, I believe the result in Cough-lin was right. Apparently Coughlin has been understood to mean that a court cannot order a person obligated by a divorce decree to pay alimony to pay the sum due even if he has the money available to pay it at the time he is held in contempt and the court so finds. Section 452.345 now allows the use of civil contempt in domestic relations cases and I would modify Coughlin and hold that a court can order a person to pay over a sum due on a maintenance award and, if the party then and there has the present finances to comply and fails to do so, imprison him for a reasonable time or until he sooner complies, or the order is satisfied by other legal means such as attaching funds of the contemnor. In so doing, we would be recognizing that the keys to the prison must presently be in the pocket of the contemnor and not merely be giving lip service to that requirement reference civil contempt.

In this case, the proposed order is not sufficiently specific as to what the specific basis for the contempt is nor as to what petitioner must do to obtain his release. It is for a fixed period of sixty days. But, more importantly, the record establishes that petitioner did not have the present financial means to pay the maintenance due when the court threatened to imprison him. Therefore, he did not “hold the keys in his pocket”. I would therefore make the writ of prohibition absolute as to the proposed order. For these reasons I dissent.