Opinion
No. 24630
November 18, 2002
Appeal From Circuit Court of Stone County, Hon. William T. Kirsch.
James R. Sharp, Counsel for Appellant.
Randy J. Reichard, Counsel for Respondent.
Opinion:
Dwight Allen Gilmore ("Husband") appeals from the court's judgment of modification and contempt alleging the trial court erred in modifying child support, finding Husband in contempt, and ordering him to pay Juanita Marie Crow's ("Wife") attorney fees. We affirm the contempt judgment and the trial court's modification of child support as modified to $646 per month.
Wife and Husband were divorced on November 16, 1992. Wife was awarded primary physical custody of their three children and Husband was ordered to pay child support. Husband was also ordered to pay a debt to Peoples Bank in the amount of $7,745.46.
In August 2000, Husband filed a motion to modify the prior dissolution decree, requesting that he receive primary physical custody of one of the parties' children, and that he be allowed to pay child support directly to the eldest child. Wife filed an answer, a counter-motion to modify child support and a motion for contempt for the nonpayment of child support and the failure to pay the debt to Peoples Bank.
Wife also contended Husband was in contempt for urging one of the children to request a change in custody. This allegation is not relevant to the issues raised on appeal.
The trial court entered its "Judgment of Modification and Contempt" on February 26, 2001. The trial court increased Husband's child support and found him in contempt for failing to pay all the court-ordered child support and the Peoples Bank debt. The trial court's order concerning the contempt is, in part, as follows:
4. Respondent, Dwight Allen Gilmore, shall be committed to the custody of the sheriff of Stone County, Missouri, until such time as he purges himself of contempt, or until he is otherwise discharged by law.
5. Execution of this judgment with regard to respondent's incarceration shall be stayed so long as respondent complies with the following provisions by which he may purge himself of contempt:
A. Payment to petitioner of $10,930.71, representing the principal unpaid amount of the People's Bank obligation, plus interest from and after June 20, 1994, . . . plus child support arrearages in the amount of $2,400.00, said payment to be made within sixty (60) days from the date of this judgement.
B. Upon respondent's failure to comply with the purge order set forth above, a warrant for his arrest and order for his commitment to the Stone County sheriff shall issue forthwith without further hearing.
C. This court retains jurisdiction of this contempt action until the contempt has been purged.
Finally, the trial court ordered Husband to pay Wife's reasonable attorney fees in the amount of $2,980 "due to his contempt and in consideration that he makes substantially more income than the petitioner does."
Husband has four points on appeal. Husband's first point relied on alleges error in the trial court's finding that he is in arrears on child support. His second point relied on alleges the trial court erred in increasing Husband's child support obligation. His third point relied on alleges error in the trial court finding him in contempt for failing to pay the Peoples Bank debt. Finally, his fourth point relied on alleges error in ordering Husband to pay Wife's attorney fees. Wife filed a motion to dismiss Husband's Points I, III, and IV on the basis that the contempt order is not a final judgment and these points relate to the trial court's contempt order.
In the motion to dismiss, Wife asserts that the modification portion of the judgment is a final judgment, citing Torrence v. Torrence , 774 S.W.2d 880 (Mo.App.E.D. 1989). Even if Wife did not raise the issue of the finality of the judgment it is this court's obligation to determine the matter because without a final judgment this court has no jurisdiction. Rea v. Moore , 891 S.W.2d 874, 874 (Mo.App.S.D. 1995). We determine that the contempt order is a final, appealable judgment; however, in making that determination, we are aware that we are not following past appellate decisions regarding the finality of contempt judgments. We first turn to an examination of the finality of the contempt judgment.
We acknowledge that the general rule is that an order of civil contempt is not final for purposes of appeal until it is enforced. Strickland v. Strickland , 941 S.W.2d 866, 867 (Mo.App.S.D. 1997). The contemnor may comply with the contempt order and purge himself of the contempt, thereby making the issue of the contempt order moot, or he may wait until the court's order is enforced by incarceration pursuant to a warrant of commitment. State ex rel. Watson v. Watson , 858 S.W.2d 841, 842 (Mo.App.S.D. 1993); see also Happy v. Happy , 941 S.W.2d 539, 542 (Mo.App.W.D. 1997); Clark v. Myers , 945 S.W.2d 702, 703 (Mo.App.E.D. 1997). If neither has occurred, the order is interlocutory and not appealable. Watson , 858 S.W.2d at 842.
The record on appeal shows no attempt to enforce the contempt judgment. Husband was given until December 28, 2001 to pay the money. The record on appeal includes the docket sheet of the case which contains docket entries made through February 19, 2002 and there is no entry indicating that a warrant of commitment was issued or that enforcement of the contempt order was sought. However, on February 27, 2002, the trial court approved an appeal bond in the amount of $20,000 to cover the amount of the judgment remaining unsatisfied, costs on appeal, interest and damage for delay. It is clear that the increase in child support would not justify a $20,000 bond as the increase in child support was only $75 per month. Husband posted the $20,000 bond.
A docket entry was made on February 13, 2002 showing that an order for execution of garnishment on Husband's wages was entered and sent to Husband's employer. Husband alleges in his reply argument that the garnishment was for the amounts contained in the contempt judgment. Nothing in the record on appeal supports this statement. The record on appeal is to contain all of the record necessary to determine the questions presented. Rule 81.12(a), Supreme Court Rules (2002). Without this document, we cannot review Husband's claim.
Husband contends that the posting of this bond is similar to a bond after incarceration in that it stays the actual execution of the contempt judgment, including his actual incarceration. Husband contends this is a case of first impression whether the posting of a bond prior to the execution of the order of commitment makes the judgment a final appealable judgment or, in the alternative, requests a re-examination of the rules concerning the appealability of contempt judgments. We are aware of Husband's considerable dilemma given the previous case law regarding contempt orders. If Husband paid the amounts due under the contempt order rather than posting the supersedeas bond, the appeal would be dismissed as moot. See Kinser v. Elkadi , 654 S.W.2d 901, 903 (Mo.banc 1983); McGee v. McGee , 25 S.W.3d 489, 490 (Mo.App.E.D. 2000). Because this is a contempt action for a money judgment and because Wife has been protected by Husband posting a supersedeas bond for the full amount of the contempt judgment, we believe a narrow exception to the general rule regarding the finality of contempt judgments is a reasonable approach.
We shall address the merits of Points I regarding the finding that Husband was in contempt for failing to pay child support. Claiming that the children lived with him for five to six weeks each summer, Husband reduced his child support in half one month each summer for eight years prior to the trial. First, Husband contends that Wife agreed to the reduction in child support. Husband's alternative theory is that because the decree did not award any summer visitation, the time the children spent with him during the summer triggered section 452.340.2. Wife contends that she did not agree to the abatement of support or relinquish control because she allowed summer visitation. She also argues that Husband did not have custody for more than thirty days as she had the children on alternating weekends. Wife states there was no testimony concerning the amount of time with Husband in excess of the thirty consecutive days. The trial court found in favor of Wife and multiplied the three hundred-dollar reduction by the eight years to arrive at the contempt amount.
All references to statutes are to RSMo 2000, unless otherwise indicated.
Section 452.340.2 states in pertinent part:
The obligation of the parent ordered to make support payments shall abate, in whole or in part, for such periods of time in excess of thirty consecutive days that the other parent has voluntarily relinquished physical custody of a child to the parent ordered to pay child support, notwithstanding any periods of visitation or temporary physical and legal or physical or legal custody pursuant to a judgment of dissolution or legal separation or any modification thereof.
As to whether there was an agreement for an abatement in support, Husband testified that Wife verbally agreed to the reduction of child support. The court apparently believed Wife, however, who testified that she did not agree to the reduction but decided she could not go back to court to fight the lower amount. She testified that the best thing she could do was not make an issue of the decreased support because it would "come back on the kids." We defer to the trial judge's determination on the credibility of the witnesses. See Mackey v. Griggs , 61 S.W.3d 312, 318 (Mo.App.S.D. 2001). We believe substantial evidence supports the court's determination that there was no agreement and that Husband was not entitled to any abatement in the child support. There was substantial testimony that Wife never relinquished physical custody of the children and that Husband did not have custody in excess of thirty days. Point I is denied.
In Point II, Husband contends the trial court abused its discretion when it increased Husband's child support obligation because the trial court inappropriately imputed to Husband his employer's contribution to his retirement plan and imputed too little income to Wife based on previous years' income. The trial court prepared a Form 14 and found the presumed child support amount to be $675 per month. The court then stated the presumed amount was not rebutted as being either unjust or inappropriate.
The court reflected Wife's income as $800 per month and Husband's income as $4,218 per month. The trial court used Wife's actual income for the current year for its Form 14. In his initial argument, Husband contends the trial court should have imputed income to Wife because the year before the action was filed, her income was four times higher than at the time of trial. Wife answered that the reason for the change in her income was that her business became incorporated prior to the filing of the motion and her husband quit his previous job to become the full-time manager of the newly incorporated business. As a result of the change in her job responsibilities, Wife was paid a salary. She also stated the income from the previous year was overstated due to a buildup of inventory and noted that these changes occurred prior to the filing of the motions to modify.
What constitutes appropriate circumstances to impute income will depend on the facts of each case. Pelch v. Schupp , 991 S.W.2d 729, 734 (Mo.App.W.D. 1999). Cases that involve issues of imputation of income necessarily require the exercise of the sound discretion of the trial court and cannot be considered a mechanical process. Id. The court's determination as to the issues of credibility of witnesses' testimony are for the trial court and the reviewing court will not substitute its judgment on such issues. Dukes v. Dukes , 859 S.W.2d 264 (Mo.App.S.D. 1993). The trial court did not abuse its discretion in failing to impute additional income to Wife.
As for Husband's second argument, Wife agrees that the court erred by including the 401(K) contributions of both Husband and his employer. Wife agrees the correct calculation for Husband's income is $4,013 per month. The presumed amount of child support then is $646 per month. We modify the child support amount to $646 per month. Point II is granted.
Husband complains in Point III that he should not have been held in contempt when he failed to pay the balance of the principal on the second mortgage of Wife's home. Wife sold the home in 1994 and requested Husband to pay off the remaining balance of the note of approximately $5,138.97. Husband indicated he was financially unable to pay off the entire balance. Husband argues that Wife should be estopped from collecting the debt because she did not take him to court earlier to enforce the judgment and that the payment of the debt was for the benefit of a third party, not for Wife. Husband's argument is misplaced.
"Estoppel is not a favorite of the law and will not be lightly invoked; it is applied with care and caution and only when all elements constituting estoppel are clearly established." Link v. Kroenke , 909 S.W.2d 740, 746 (Mo.App.W.D. 1995). See also Investors Title Company v. Chicago Title Insurance Company , 983 S.W.2d 533, 537 (Mo.App.E.D. 1998). To support a claim for equitable estoppel there must be: 1) an admission, statement or act inconsistent with a claim afterwards asserted and sued upon, 2) action by the other party on the faith of such admission, statement or act, and 3) injury to such other party resulting from allowing the first party to contradict or repudiate such admission, statement or act. American National Insurance Company v. Noble Communications Company, Inc ., 936 S.W.2d 124, 132 (Mo.App.S.D. 1996).
Husband points to no statements or actions by Wife which indicated that he would be relieved from the debt. Likewise, there is no allegation that Wife ever affirmatively waived the payment of the debt. In fact, Wife directly requested Husband to pay the debt. Husband's refusal to pay the debt forced Wife to assume the debt and thus decreased the assets she was awarded in the decree. There is no claim that Wife was outside her legal rights to bring this action for contempt at the time of the current action. There is no basis of Husband's claim for estoppel or waiver.
Husband's secondary argument is that interest should not have been awarded on the debt. We find no misapplication of the law. In the dissolution, the court ordered Husband to pay the second mortgage; in the contempt hearing, the court ordered Husband to pay nine percent interest on the outstanding balance pursuant to section 408.040.1. Husband might have an argument if he had continued to pay to Wife the same amount each month until the debt was paid in full or made any payment on the principal or if there had been evidence concerning a lower actual interest rate pursuant to the mortgage. Instead, Wife testified that Husband told her she had gotten enough and she had to pay the debt herself. He never attempted to pay any principal in seven years. The contempt order including nine percent on the outstanding principal balance is a reasonable reflection of the damages Wife sustained in being forced to pay the mortgage payment herself. See In re Marriage of Hunt , 933 S.W.2d 437, 448 (Mo.App.S.D. 1996) (court recognized that nine percent interest was proper rate due upon any judgment or order of any court and awarded Wife nine percent interest for Husband's arrearages of temporary maintenance and insurance coverage). Point III is denied.
Section 408.040.1 states:
Interest shall be allowed on all money due upon any judgment or order of any court from the day of rendering the same until satisfaction be made by payment, accord or sale of property; all such judgments and orders for money upon contracts bearing more than nine percent interest shall bear the same interest borne by such contracts, and all other judgments and orders for money shall bear nine percent per annum until satisfaction made as aforesaid.
In Point IV, Husband complains that the trial court erred in awarding Wife $2,980 in attorney fees because he claims the evidence indicates that there was no evidence that he was in a better financial situation than Wife to pay the costs of litigation. This court will interfere with an award of attorney fees only upon a showing of an abuse of discretion. In re Marriage of McCoy , 818 S.W.2d 322, 325 (Mo.App.S.D. 1991). "To show an abuse of discretion by the trial court in its attorney fee award, the complaining party has the burden to show that the order is 'clearly against the logic of the circumstances and so arbitrary and unreasonable as to shock one's sense of justice and indicate a lack of deliberation.'" In re Marriage of Thompson , 24 S.W.3d 751, 756 (Mo.App.S.D. 2000) (quoting Ederle v. Ederle , 741 S.W.2d 883, 885 (Mo.App. 1987)). In instances of contempt, "we find that the trial judge need not be limited with the provisions of section 452.355 (1978) in awarding attorney's fees, since the contempt order was issued pursuant to the trial court's inherent contempt power." Saab v. Saab , 637 S.W.2d 790, 792 (Mo.App.E.D. 1982). Wife prevailed on every issue of contempt and in the modification. She makes considerably less money than Husband. The trial court did not abuse its discretion in ordering Husband to pay attorney fees for the contempt. Point IV is denied. The judgment is affirmed as modified.
Section 452.355 provides for the allocation of attorney fees in domestic relations proceedings. Section 452.355 RSMo (1978) contains essentially the same provisions as the current version of that statute.
This case reached this court in an unusual manner. A single document embodied the disposition of both a motion to modify a previously entered dissolution of marriage judgment and a contempt proceeding directed to a father's failure to pay child support as awarded by the dissolution judgment. These were separate proceedings before the trial court, albeit they were heard and determined on the basis of one evidentiary hearing. Nevertheless, the trial court entered a single document it denominated as judgment without having ordered a consolidation of the two proceedings or otherwise acknowledging they were brought by separate pleadings and presented separate and distinct causes of action.
See Wilson v. Whitney , 81 S.W.3d 172 (Mo.App. 2002), for illustration of the usual means for addressing issues involving contempt and modification proceedings directed to provisions in a dissolution of marriage judgment. A modification judgment is subject to appeal. A contempt order is subject to appeal if it is a final judgment. They are separate cases even if, for convenience, a trial court treats them as consolidated for purposes of receiving evidence.
I respectfully dissent from the part of the principal opinion that disposes of the contempt issue on the merits. I concur in the part of the principal opinion that affirms the modification of child support.
I dissent from the part of the opinion that affirms the order of contempt because the contempt order has not been enforced and, therefore, is not final for purposes of appeal. As State ex rel. Watson v. Watson , 858 S.W.2d 841 (Mo.App. 1993), explains:
A civil contempt order is not a final judgment for purposes of appeal until the order is enforced. Niehoff v. Forney, 692 S.W.2d 635, 637 [2-4] (Mo.App. 1985). The contemnor has the option of purging himself of contempt by complying with the court's order. If that is done, the case becomes moot and unappealable. If, instead, he chooses to appeal, he must wait until the court's order is enforced by actual incarceration pursuant to a warrant of commitment. The contemnor who chooses the second option is entitled to release on bail pending his appeal. Id. Where the record on appeal does not show that the contemnor has purged himself of contempt, and does not show his arrest and confinement and bond, the order is interlocutory and not appealable. Niehoff, at 637; Smith v. Smith, 678 S.W.2d 8, 9[4] (Mo.App. 1984); Hamilton v. Hamilton, 661 S.W.2d 82, 83[4] (Mo.App. 1983).
Id. at 842.
The principal opinion acknowledges that no warrant of commitment issued in this case. It further observes, "If Husband paid the amounts due under the contempt order rather than posting the supersedeas bond, the appeal would be dismissed as moot." To consider the appeal of the contempt issue under these circumstances is contrary to Watson and its progeny. Arguably, by posting what the contemnor characterized as an appeal bond and the principal opinion considers a supersedeas bond, he has acknowledged the trial court's judgment of civil contempt to the same extent as if he paid the contempt judgment, thereby purging himself of that contempt, thereby rendering an appeal of the contempt issue moot. I suggest that this does not amount to a new exception to when a civil contempt order is appealable, but is a holding contrary to prior cases. Furthermore, the contemnor was not without a remedy in this case. He could have awaited issuance of a warrant of contempt and posted bail. He chose not to do that. I would dismiss the part of the appeal directed to the order of contempt.
I would, nevertheless, consider the merits of the appeal of the modification judgment. In my opinion, the single writing that determined both the contempt issue and the modification issue suffices as a separate judgment with respect to each proceeding. For that reason, I concur in the part of the principal opinion that affirms the modification judgment.
Having concluded that the decision on the principal opinion with respect to the appeal of the contempt order is contrary to State ex rel. Watson v. Watson, supra , I herewith certify this case to the Supreme Court of Missouri in accordance with Rule 83.03.
AFFIRMED AS MODIFIED.
Prewitt, Shrum, Montgomery, and Garrison, JJ., concur.
Parrish, J., concurs in part and dissents in part in separate opinion filed.
Barney, J., concurs in separate opinion of Parrish, J.