Cooper v. Cooper

• Decision Date: 15 August 1989
• Docket Number: No. 55071,55071
• Citation: 778 S.W.2d 694
• Parties: Patricia Michele COOPER, Respondent, v. Wayne COOPER, Appellant.
• Court: Missouri Court of Appeals

Page 694

778 S.W.2d 694

Patricia Michele COOPER, Respondent, v. Wayne COOPER, Appellant.

No. 55071.

Missouri Court of Appeals,

Eastern District,

Division Two.

Aug. 15, 1989.

Motion for Rehearing and/or Transfer to Supreme Court

Denied Sept. 13, 1989.

Application to Transfer Denied Nov. 14, 1989.

Frank J. Niesen, Jr., St. Louis, for appellant.

Friedmann, Weitzman & Friedman, P.C., Arthur Friedman & Elaine E. Bensavage, St. Louis, for respondent.

KAROHL, Judge.

Husband, Wayne Cooper, appeals from decree of dissolution and order of contempt. The trial court heard dissolution proceedings together with wife's motion for contempt against husband for husband's failure to pay temporary maintenance. Husband claims the contempt motion was not noticed for hearing, was improperly tried with the dissolution case, and the court erred in finding husband in contempt. Husband also alleges seven points of error related to the dissolution decree.

Wife, Patricia Michele Cooper, filed a petition for dissolution on May 1, 1986. On June 9, 1986, wife filed a motion pendente lite requesting $3,000 monthly maintenance and attorney's fees. The court awarded wife $1,200 per month for temporary maintenance and ordered husband to pay $1,000 for wife's attorney's fees.

Husband paid wife temporary maintenance in July, 1986. He failed to pay maintenance for August. On August 6, 1986, wife filed a motion for contempt against husband for his failure to pay maintenance. Husband thereafter filed a motion to modify the award of temporary maintenance. On September 25, 1986, the motions for contempt and to modify maintenance were heard by the court. Prior to the hearing, husband paid wife maintenance for August. The court denied the motion for contempt. The court also denied husband's motion to modify maintenance.

Subsequently, on October 17, 1986, wife filed another motion for contempt against husband, alleging husband failed to pay temporary maintenance for September and October. Husband filed a motion for sanctions against wife. A hearing to show cause why husband should not be held in contempt and to consider the motion for sanctions was set for November 7, 1986. The hearing was continued until November 26, 1986. The dissolution was also scheduled for November 26, 1986. An order scheduling both hearings read as follows: "Petitioner's Motion For Contempt and Respondents [sic] Motion For Sanctions continued to 9:00 A.M. on November 26, 1986. This cause is set for trial at 9:00 A.M. on November 26, 1986 in Division 8." No hearing was held on November 26, 1986, nor was there an entry in the minutes of proceedings for that date.

Notices from the court scheduling subsequent court dates did not specifically refer to the motion for contempt. They stated only that "cause was set" for a specific date. Husband claims the notices for the dissolution were insufficient notice that the court would hear the motion for contempt together with the dissolution. Therefore, husband contends, the motion for contempt was not properly before the court. According to husband, he was unaware the motion for contempt would be heard at the dissolution hearing. He timely objected to the joint hearing. He claims he was unprepared to defend the contempt motion and was thereby prejudiced. Wife claims the notice in November, 1986, scheduling both the dissolution and contempt hearing for November 26, 1986, put husband on notice the two matters would be heard together. Wife contends the notice of the dissolution hearing was sufficient notice to hear the motion for contempt.

The court cannot find a party who challenges notice of hearing in contempt for violating a court order unless the court hearing the contempt motion can confirm such party has received proper notice. See, Simmons v. Megerman, 742 S.W.2d 202, 206 (Mo.App.1987). If a party does not receive proper notice, a court cannot enter a contempt judgment. See, State ex rel. Shepherd v. Steeb, 734 S.W.2d 610, 611-12 (Mo.App.1987). Where a person's liberty is at stake the proper notice has been held "essential to the court's jurisdiction in the premises that the mandatory requirements of the law be fully complied with." Ex Parte Trant, 238 Mo.App. 105, 175 S.W.2d 161, 164 (1943). We find husband did not receive proper notice of the contempt hearing.

The dissolution hearing was held on March 3, 1988. At the hearing, husband argued the contempt hearing had not been properly noticed up. The court stated:

COURT: All right. Now, let me--Before you say anything, Mr. Niesen, let me simply say this, that there--it has not technically been noticed up. Is that a correct statement, gentlemen? I mean, it hasn't--

MR. NIESEN: It hasn't been--

MR. FRIEDMAN: Your Honor, it's--

MR. NIESEN: --noticed up.

MR. FRIEDMAN: it. No. But on nothing--

THE COURT: No, but, I mean, just--it hasn't been technically noticed up. All right.

The fact the dissolution hearing and the motion for contempt were both scheduled for November 26, 1986, did not necessarily indicate the court would hear both matters together in March, 1988. Husband needed to present different evidence for the dissolution than he did to defend against the motion for contempt. For the dissolution, husband needed only to demonstrate his financial situation at the time of the hearing. To defend against the motion for contempt, husband was required to show his financial situation and inability to pay wife temporary maintenance from September, 1986, to March, 1988. Husband was thereby prejudiced by the court hearing the motion for contempt. The notice sent by the court to hear the dissolution was insufficient notice of the contempt proceedings and the court's finding of contempt was fatally defective. See, Simmons, 742 S.W.2d at 206.

Wife, however, contends the order of contempt is not ripe for review because wife has not yet sought to enforce the contempt order. The court found husband in contempt for failing to pay wife temporary maintenance from September, 1986, through March, 1988, and ordered husband to pay wife back maintenance of $1,200 a month for a total of $22,800. The court stated it would order husband incarcerated if the full amount was not paid on or before November 7, 1988. Husband failed to pay wife the $22,800. The court has not yet issued an order to incarcerate husband.

Generally, an order finding a party in contempt is not final until the court's order is enforced. Creamer v. Banholzer, 694 S.W.2d 497, 499 (Mo.App.1985). Here, however, husband challenges the trial court's authority to hear the motion for contempt. He correctly relies on his claim that the record facts confirm absence of notice. The trial court expressly noted absence of notice. Hence, no judgment on the unnoticed contempt motion was, or is, possible in the present appeal and before a noticed hearing. A holding of this court that absence of a final judgment deprives this court of jurisdiction is not dispositive because such holding implies there was a valid but not final judgment. The implication fails as a matter of law.

Husband also claims the court erred in failing to grant husband's motion for directed verdict on the issue of maintenance and in awarding wife maintenance of $500 monthly. He alleged there was no basis for the court to award maintenance to wife, because wife was self-supporting by employment and husband was unemployed.

We review an award of maintenance only for an abuse of discretion. Franke v. Franke, 747 S.W.2d 202, 203 (Mo.App.1988). We will affirm a dissolution decree awarding maintenance unless it is against the weight of the evidence or erroneously declares the law. The burden is on the party challenging an award of maintenance to show the award was an abuse of discretion. Williams v. Williams, 753 S.W.2d 101, 102 (Mo.App.1988).

We cannot say the trial court abused its discretion in awarding wife maintenance. The court awarded wife property including an automobile valued at $2,500, household goods valued at $3,450 and a bank account valued at $130. In her Statement of Income and Expenses dated October 20, 1987, wife listed monthly expenses of $2,595 and a gross income of $337.50 a week, or approximately $1,350 monthly. Therefore, wife's monthly expenses exceed her income by approximately $1,245. Wife requested $1,200 a month in maintenance. The court awarded wife $500 a month.

Although husband testified he was unemployed at the time of dissolution, there was sufficient evidence from which the court could impute an income for husband. If a spouse is unemployed at the time of dissolution, a court still may impute the income of a spouse who has failed to get employment at his income capabilities. Past, present and anticipated earning capacity may properly be considered in determining a spouse's ability to pay. Goodwin v. Goodwin, 746 S.W.2d 124, 126 (Mo.App.1988); Klinge v. Klinge, 554 S.W.2d 474, 476-77 (Mo.App.1977).

Here, husband is a college graduate. He earned a salary of between $24,000 and $30,000 annually for several years prior to the dissolution. In his Statement of Income and Expenses dated August 28, 1986, husband reported he earned an income of approximately $28,000 during 1985. At the dissolution, husband stated he earned a salary of approximately $2,000 a month in 1986, plus fringe benefits. The benefits included an automobile and an apartment which rented for $750 monthly. Husband also testified he drew salary of approximately $2,000 a month plus benefits in 1987. When asked if in 1983, 1984, and 1985, he earned over $30,000 a year, plus benefits, husband replied, "[t]hat's correct." In addition, husband testified he was the sole owner of two corporations, Twin City Theatre League, Inc., and Minnesota Broadway Partnership. In his Statement of Property, dated August 28, 1986, husband valued the stock in the Twin City Theatre League, Inc., at $400,000. Husband was an officer of the corporations and received his salary from the corporations....