Cosby v. Cosby

Decision Date26 September 2006
Docket NumberNo. ED 87059,ED 87059
Citation202 S.W.3d 717
PartiesJOHN D. COSBY, JR. Petitioner/Appellant, v. BARBARA N. COSBY, Respondent/Respondent.
CourtMissouri Court of Appeals

Gary E. Brotherton, Legal Writes, LLC, Columbia, MO, for Appellant.

Law Office of Kimberly D. Tyler, One Pointview Drive Bonne Terre, MO, for Respondent.

Before Mary K. Hoff, Judge (writer), Clifford H. Ahrens, Presiding Judge (sat) Nannette A. Baker, Judge (sat).

OPINION

Mary K. Hoff, Judge.

John D. Cosby, Jr. (Husband) appeals from the trial court's judgment entered in his dissolution of marriage action with Barbara N. Cosby (Wife). Husband argues trial court error in striking his pleadings under Rule 61.01. We affirm, in part, and reverse and remand, in part, for further proceedings.

Factual and Procedural Background

The parties were married in March 2003 and separated seven months later. Husband filed a Petition for Dissolution of Marriage (Petition) in October 2003, to which Wife filed an answer and a Cross-Petition for Dissolution of Marriage (Cross-Petition) in November 2003. One child (Child) was born to the parties in December 1985.

On November 19, 2003, Wife mailed her interrogatories to Husband's attorney. On April 26, 2004, Husband filed his answers to interrogatories. On April 30, 2004, Wife filed a Motion to Compel Answers to Interrogatories (Motion to Compel) under Rule 61.01. In her Motion to Compel, Wife stated that Husband filed incomplete answers to: Interrogatory #2(f), by failing to provide copies of recent wage statements; Interrogatory # 6, by failing to provide copies of Federal and State income tax returns; and Interrogatories #14 for financial records, # 15(d) for medical records, and #18(e) for phone bills for the last year, by failing to execute the attached releases for information. Wife also stated in her Motion to Compel that the "information requested in said interrogatories is germane to the issues in this cause, and the failure to promptly answer said interrogatories prohibits this matter from being at issue and a timely trial setting being requested."

On June 3, 2004, the trial court held a hearing on Wife's Motion to Compel, at which Husband did not appear. The court sustained Wife's Motion to Compel and ordered Husband to respond within fifteen days or proceed at his own peril. On June 17, the court set aside its June 3 order.

On July 1, 2004, the trial court held another hearing on Wife's Motion to Compel and granted Husband five days to object to interrogatories or, in the alternative, an additional fifteen days to file answers to interrogatories.

On July 8, 2004, Husband filed an answer and objections to Wife's Motion to Compel. In his answer, Husband stated the following: (1) as to Interrogatory #2(f), Husband would furnish the wage statements as received because he did not keep them; (2) as to Interrogatory #6, Husband was incapable of providing copies of the income tax returns because Wife took them when she left the marital residence at the time of separation, and, therefore, Wife already had copies of the tax returns; (3) as to Interrogatory #14, the information was unknown at the time to Husband, and he would supplement as necessary; and (4) as to Interrogatories #15(d) and #18(e), Husband objected as the releases were not reasonably calculated to lead to the discovery of admissible evidence.

On July 22, 2004, Wife filed a Motion to Strike Pleadings under Rule 61.01, arguing that Husband again provided incomplete answers to Interrogatories #2(f), #6, #15(d), and # 18(e).

On August 19, 2004, the trial court held a hearing on Wife's Motion to Strike Pleadings. The trial court concluded that Husband failed to answer or to object to Interrogatories # 2(f) and #6 and ordered Husband to execute within ten days of receipt the necessary releases, supplied by Wife, to obtain Husband's recent wage statements and his 2003 Federal and State income tax returns. The trial court also overruled Husband's objection to Interrogatory #18(e) and granted Husband ten days to answer said interrogatory. The trial court sustained Husband's objection to Interrogatory #15(d).

On August 20, 2004, Wife sent to Husband an Authorization for Release of Confidential Information and requests for copies of Federal and Missouri income tax returns. On September 1, 2004, Wife sent to Husband a letter indicating that she had not yet received copies of Husband's home phone, work phone, and cellular phone bills as ordered by the trial court. Wife inquired when she might expect these records or if it would be necessary for her to file another motion to compel and motion to strike pleadings.

On September 16, 2004, Wife filed a second Motion to Strike Pleadings, later amended, under Rule 61.01. In her second Motion to Strike Pleadings, Wife stated that on September 1, Husband provided a release in order to obtain his twelve most recent pay stubs, but Husband's employer refused to provide the requested information, although Wife had filed a deposition subpoena duces tecum for Husband's employer. Wife also stated that, on September 10, Husband provided to Wife copies of his phone bills, but the bills only showed monthly totals and not itemized calls.

On October 7, 2004, the trial court held a hearing on Wife's Amended Motion to Strike Pleadings. At the hearing, Husband testified that his work cell phone number could be utilized by all of his employer's employees so it was not possible to itemize individual calls. Husband also testified that, although he did not talk with his employer about providing his paycheck stubs for the court to review, he signed the release allowing Wife to obtain copies from his employer, as ordered by the court.

On November 19, 2004, the trial court entered an order striking Husband's pleadings and ordering Wife to proceed on her Cross-Petition as if Husband were in default. In its order, the court found that Husband failed to comply with its July 1 and August 19 orders. The court stated that, although by the time of the hearing on Wife's Amended Motion to Strike Pleadings, Husband had complied with the court's order by signing a release for his employment records, his action did not excuse him from the court's earlier order to produce the required documentation. The court also stated that although Husband could have requested the necessary documents from his employer, Husband never contacted his employer to obtain them. The court noted that, at the hearing on Wife's Amended Motion to Strike Pleadings, Husband testified that he did not receive Wife's interrogatories from his attorney until April 2004.

On December 20, 2004, the trial court held a hearing on Wife's Cross-Petition. Neither Husband nor his counsel appeared.1 At the hearing, Wife testified that she and Husband had an "on and off" relationship since the birth of Child. The parties began living together at the marital residence about five years before trial, and when Wife began residing at the residence, the parties intended to marry. During the time that the parties lived together and were married, they did extensive remodeling on the marital residence as well as landscaping of the property, and the parties did not hire anyone to do the work. Wife also put her paycheck from her employment as a deputy sheriff into Husband's bank account, and the cost of remodeling the marital residence came out of that account. The parties had several animals on the property, including dogs, ducks, chickens, horses, and a bull. Because Husband's employment required him to travel frequently, Wife and Child cared for the property and the animals. Wife testified that Husband had stocks and bonds totaling about $100,000 and that she was willing to have the trial court award those to Husband. Wife also testified that just prior to the parties' separation, Husband physically abused Child and threatened to kill Wife. Wife further stated that she was not asking for maintenance or child support.

On January 7, 2005, the trial court entered a Judgment and Decree of Dissolution of Marriage (Judgment). In its Judgment, the trial court found that Wife contributed to the marital real estate, both financially and by providing manual labor, from the time the parties began living together. The court awarded to Husband, among other items of property in his possession, the marital residence, valued at about $150,000, his 401(k) plan, valued at about $82,000, and any and all stocks and bonds in his name, valued at about $100,000. The court ordered Husband to be responsible for the remainder of the loan on the marital residence, about $47,000, and for the balance on three credit cards, totaling about $9,650. The court awarded to Wife, among other items of property, a 1998 Ford Ranger, which the court found Husband had purchased for Wife as a gift, with a clear title in her name, and a 1994 Dodge Dakota belonging to Child, which the court found had Wife's name on the title and was purchased for Child before the parties' marriage. The court also ordered Husband to pay to Wife...

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5 cases
  • Marmaduke v. CBL & Assocs. Mgmt., Inc.
    • United States
    • Missouri Court of Appeals
    • 6 Junio 2017
    ...sanction in excess of that which is necessary to accomplish the purposes of discovery may be an abuse of discretion. Cosby v. Cosby , 202 S.W.3d 717, 722 (Mo.App.E.D. 2006).Thus, we observe that the spoliation doctrine, the rules of discovery, and the corresponding broad authority of the tr......
  • Goodsell v. Noland
    • United States
    • Missouri Court of Appeals
    • 27 Febrero 2018
    ...and refusing to allow him to testify or otherwise present evidence was due to his failure to pay child support. In Cosby v. Cosby , 202 S.W.3d 717 (Mo. App. 2006), a dissolution of marriage action, the appellate court found that the husband was in violation of no discovery orders at the tim......
  • Stockmann v. Frank
    • United States
    • Missouri Court of Appeals
    • 4 Diciembre 2007
    ...in which the offending party exhibits repeated and protracted failure to comply with the rules of discovery. See Cosby v. Cosby, 202 S.W.3d 717, 722 (Mo.App.2006); see also Zimmer v. Fisher, 171 S.W.3d 76, 80 (Mo. App.2005); Houchins v. Houchins, 727 S.W.2d 181, 184 In this case, the trial ......
  • Doss v. Brown
    • United States
    • Missouri Court of Appeals
    • 29 Enero 2013
    ...were found in Mr. Doss's pleadings, which were stricken. Stricken evidence cannot be considered by the court. See Cosby v. Cosby, 202 S.W.3d 717, 722 (Mo.App. E.D.2006). ...
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