Cosby v. Cosby, No. ED 87059

• Court: Court of Appeal of Missouri (US)
• Writing for the Court: Mary K. Hoff.
• Citation: 202 S.W.3d 717
• Docket Number: No. ED 87059
• Decision Date: 26 September 2006
• Parties: JOHN D. COSBY, JR. Petitioner/Appellant, v. BARBARA N. COSBY, Respondent/Respondent.

202 S.W.3d 717

JOHN D. COSBY, JR. Petitioner/Appellant,
v.
BARBARA N. COSBY, Respondent/Respondent

No. ED 87059

Missouri Court of Appeals, Eastern District, Division One.

September 26, 2006

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,...