Bewig v. Bewig

• Court: Missouri Court of Appeals
• Writing for the Court: CARL R. GAERTNER; HAMILTON, P.J., and STEPHAN
• Citation: Bewig v. Bewig, 784 S.W.2d 823 (Mo. App. 1990)
• Decision Date: 06 February 1990
• Docket Number: No. 55805,55805
• Parties: Elaine G. BEWIG, Respondent, v. John P. BEWIG, Appellant, Carol Bewig, Third-Party Respondent. Division Four

Page 823

784 S.W.2d 823

Elaine G. BEWIG, Respondent, v. John P. BEWIG, Appellant Carol Bewig, Third-Party Respondent.

No. 55805.

Missouri Court of Appeals Eastern District,

Division Four.

Feb. 6, 1990.

Gael Davis Wood, James W. McGettigan, Jr., Washington, for appellant.

John C. Maxwell, St. Charles, for respondent.

CARL R. GAERTNER, Judge.

Appellant, John P. Bewig, appeals from the judgment of civil contempt and order of commitment entered by the Circuit Court of St. Charles County on November 17, 1988.

On January 12, 1981, the marriage of appellant and respondent, Elaine Bewig, was dissolved. Appellant was ordered to pay $35 per week per child for support of the parties' two minor children. This order of child support was modified on April 18, 1985, and appellant was ordered to pay $60 per week per child, to maintain health and dental insurance for the children, and to pay any such expense not covered by insurance. We affirmed this modification in Bewig v. Bewig, 708 S.W.2d 769 (Mo.App.1986). Appellant's failure to comply fully with this order resulted in respondent's filing a motion for contempt on September 11, 1987. This matter was resolved by a stipulation of the parties, incorporated into the court's judgment on November 20, 1987, whereby appellant was ordered to make payments on accrued arrearages, begin paying child support as previously ordered and procure the medical and dental insurance within thirty days.

On March 7, 1988, respondent filed her First Amended Motion for Contempt and To Set Aside Fraudulent Conveyances in which she alleged appellant had paid no support, had not obtained insurance coverage, and had transferred $41,000 to his present wife, Carol, who was joined in the action and denominated as third-party respondent. All parties appeared before the court on August 15, 1988. The court was advised that a petition for dissolution of the marriage of John and Carol had been filed in Franklin County, which created a conflict for the attorney who had been representing both of them in this matter. The court permitted the attorney to withdraw and directed John and Carol to obtain new counsel within twenty days as the matter would be called on the September Law Day for a setting in October.

The motion for contempt was set for a hearing on November 17, 1988. On that date both respondent, Elaine, and third-party respondent, Carol, appeared with counsel. Appellant appeared but without an attorney. When questioned by the court, appellant claimed he had retained an attorney to represent him in this matter and in the Franklin County dissolution case, but this attorney had withdrawn two weeks earlier. He claimed to have thereafter consulted another attorney who he believed would represent him. Noting that neither of the two attorneys appellant named had filed an entry of appearance, the trial court stated to appellant: "There has been no indication that you made any effort here to have any attorney represent you ... so as best you can you are going to have to represent yourself." The court also noted that an answer had been filed on appellant's behalf and that he was not in default.

Respondent then testified that appellant failed to make the child support payments, failed to obtain insurance or to pay attorneys fees as ordered. She computed the total arrearage of child support and medical and dental expenses for the children, plus interest, totalling $21,011.41 as of the date of the hearing. Appellant did not dispute this amount. He admitted that he had not paid any part of the increased amount of child support as ordered in April, 1985, even though in November, 1986, he received $41,000 from the sale of a business. He used this sum to buy a new business, the J.C. One Stop, a gas station and convenience and food store. This business was operated by appellant and Carol until their separation.

The trial court in its findings of fact specifically noted that a financial statement of J.C. One Stop for the month of January, 1988, reflected a profit of $5,188 and "personal draws" of $3,753. The court also found that appellant had purchased a new motor vehicle in 1987 for approximately $12,000. The court found appellant's testimony that he was not realizing any profit from this business to be "wholly unreliable and not to be believed." The court further found that since the April 18, 1985 order appellant had the physical and financial ability to comply with the orders of the court, and that although employed since that date appellant "has willfully, intentionally and contumaciously refused to pay any portion of the increased child support ordered by this court...."

In its judgment, the court ordered appellant committed to imprisonment in the St. Charles county jail until he purged himself of contempt by paying to the Clerk of the Court the sum of $25,821.41, consisting of $16,974.11 principal and $4,037.30 interest for past due child support, and $4,810 for attorney's fees, or by supplying the court with an acceptable written plan for payment within a reasonable time. The court further ordered that assets of J.C. One Stop apparently owned jointly by appellant and third-party respondent be subject to execution to satisfy appellant's indebtedness to respondent and her attorney.

A written order of commitment was delivered to the Sheriff of St. Charles County which contained the conditions upon which appellant could purge himself of contempt and be released from custody. The court's findings and judgment were attached to and incorporated in the order of commitment. The legal file reflects that a bond, set by the court, was filed.

Appellant does not challenge the sufficiency of the evidence to support the conviction of contempt, but seeks reversal of the judgment because of alleged procedural errors. Our review of this court-tried matter is governed by the well-known principles of Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Moreover, in matters of credibility we are constrained to give due deference to the trial court's determination, who may reject the testimony of any witness even though such testimony is unrefuted. Terre Du Lac, Inc. v. Fuhrmeister, 753 S.W.2d 4, 5 (Mo.App.1988). Guided by these principles, we address the four points relied on by appellant.

First appellant contends he was unconstitutionally deprived of liberty without due process of law because he did not knowingly or intelligently waive his right to counsel. He relies upon Hunt v. Moreland, 697 S.W.2d 326, 328 (Mo.App.1985), in which this court ruled that in a proceeding for civil contempt to compel compliance with the court order to pay child support, the Due Process Clauses of the Fifth and Fourteenth Amendments to the United States Constitution confer upon the alleged contemnor the right to be represented by counsel. ¹ We held that in such a proceeding an order of incarceration could not be upheld "in the absence of representation by counsel, or a knowing and intelligent waiver of counsel." Id. The record in this case amply supports the implicit conclusion of the trial court that appellant had knowingly and intelligently waived this right.

Appellant was present in court on August 15, 1988, when he was directed by the judge to retain counsel within 20 days because the hearing was going to be rescheduled at the court's next Law Day. Appellant signed the written order, which also recited this directive. Three months later, he appeared in court without a lawyer. The court was free to accept or to reject appellant's statement that until the previous day he had believed he was represented. The unequivocal rejection of this contention is evidenced by the court's response: "There has been no indication that you made any effort to have an attorney represent you." In its written findings of fact and conclusions of law, the court found appellant neglected to comply with the August 15 directive to...