Bandelier v. Bandelier, WD

• Decision Date: 27 March 1990
• Docket Number: No. WD,WD
• Citation: Bandelier v. Bandelier, 800 S.W.2d 1 (Mo. App. 1990)
• Parties: David Jay BANDELIER, Appellant, v. Susan Anne BANDELIER, Respondent. 42305.
• Court: Missouri Court of Appeals

Page 1

800 S.W.2d 1

David Jay BANDELIER, Appellant, v.Susan Anne BANDELIER, Respondent.

No. WD 42305.

Missouri Court of Appeals Western District.

March 27, 1990.

David J. Bandelier, Kansas City, pro se.

James W. Henry, Kansas City, for respondent.

Before GAITAN, P.J., and CLARK and MANFORD, JJ.

CLARK, Judge.

The issue in this case is whether a judgment of contempt against and an order of commitment for appellant entered in connection with a dissolution of marriage decree was based on valid notice to appellant of the date on which he was required to appear and show cause why his disobedience should not be punished.We find the notice in this case to have been defective and therefore reverse the judgment.

The marriage of appellant and respondent was dissolved by a decree entered June 8, 1988.Respondent petitioned the court on March 16, 1989 for an order directing appellant to show cause why he should not be held in contempt for his failure to pay child support as ordered in the decree and for other lapses in satisfying the dissolution decree's provisions.The order to appear and show cause was issued and appellant concedes the order was personally served on him.The order specified a hearing date of April 4, 1989.

On March 31, 1989, appellant filed a written motion for continuance with the court.Among other grounds, appellant stated that he needed time to retain an attorney.The record on appeal is barren of any entry showing disposition of appellant's continuance motion.From later events, however, it is apparent the cause was not taken up on the date specified by the court in its order as served on appellant.No record exists, either of any communication to appellant from the court on any date subsequent to the original show cause order.

Later, respondent's attorney prepared and sent to appellant successive "Notices of Hearing," the first advising appellant that respondent would call up her motion for hearing on May 1, 1989 and a second, similar notice for a hearing on June 5, 1989.Neither notice purported to order an appearance by appellant and he did not respond.On June 5, 1989, the court took evidence and entered the judgment and order which resulted in appellant being taken into custody.After four days imprisonment, he was released on bond.

Appellant contends the contempt judgment was fatally flawed because the proceeding lapsed when, on April 4, 1989, the court neither heard the case nor continued it to a date certain.We agree.

In Simmons v. Megerman, 742 S.W.2d 202, 206(Mo.App.1987), this court expressly held that where an order to show cause is issued by the court and served on the alleged contemnor, the validity of later proceedings depends on action by the court taken on the return date stated in the order.In this case, it is obvious that the court did not pronounce its judgment on April 4, 1989, nor is there any...