Crimmins v. Crimmins

• Decision Date: 25 November 2003
• Docket Number: No. ED 81925.,ED 81925.
• Citation: Crimmins v. Crimmins, 121 S.W.3d 559 (Mo. App. 2003)
• Parties: Bobbie CRIMMINS, Respondent, v. Thomas CRIMMINS, Appellant.
• Court: Missouri Court of Appeals

121 S.W.3d 559

Bobbie CRIMMINS, Respondent, v. Thomas CRIMMINS, Appellant.

No. ED 81925.

Missouri Court of Appeals, Eastern District, Division Three.

November 25, 2003.

Steven R. White, Union, MO, for appellant.

Jonathan L. Downard, Union, MO, for respondent.

CLIFFORD H. AHRENS, Presiding Judge.

Thomas Crimmins ("husband") appeals the trial court's judgment and decree of dissolution of his marriage to Bobbie Crimmins ("wife"). Husband claims that the trial court erred in striking his pleadings as a sanction for violating a discovery order and that the court violated husband's right to due process in refusing to allow him to offer evidence or cross-examine witnesses as a result of his violation of the court's order.

Wife filed a petition for dissolution of marriage. Husband answered the petition and filed a cross-petition for dissolution, as well as motions for temporary custody, child support, and costs pendente lite. The trial court heard wife's motions for temporary injunction, and to appoint receiver as well as the pendente lite motions of both parties on September 13, 2001. The court ordered that husband pay maintenance, child support and attorney's fees to wife. Additionally, the court stated that husband was not to "transfer, encumber, conceal, or in any way dispose of any assets of Total Siding, Inc. except in the usual course of business." Total Siding, Inc. was the business owned by the parties. Pursuant to the court's order of September 13, 2001, husband was to supply wife with business records of Total Siding, Inc. on a monthly basis. Wife later filed a second motion for temporary injunction, motion to appoint receiver and motion for contempt. In this motion, wife alleged that she had requested the business records of Total Siding, Inc., but had not been provided with these documents. The court entered an order of contempt, finding husband in contempt for failing to provide "discovery/documents" pursuant to the order of the court. The court allowed husband the opportunity to provide wife the documents; however, husband continued to fail to do so. On March 19, 2002, the court entered a memorandum order which stated that husband had not provided wife with the required business records, and a writ of body attachment was issued. On March 27, 2002, the court issued a further order requiring production of specific documents after husband failed to comply, and wife filed a motion for sanctions and to strike husband's pleadings. On May 3, 2002, the trial court ordered husband's pleadings stricken as a sanction for failure to provide records pursuant to the court orders of September 13, 2001 and March 27, 2002. The petition for dissolution was called for trial on July 12, 2002, and the court did not allow husband to offer evidence or cross-examine witnesses. The court found husband in default and subsequently entered its judgment and decree of dissolution of marriage on August 22, 2002.

Husband's first point on appeal asserts that the trial court erred in striking his pleadings because the order being enforced by such sanction was not a valid judgment. Husband correctly notes that pendente lite orders ("PDL orders") are appealable. Buder v. Buder, 824 S.W.2d 483, 485 (Mo.App.1992). From this he argues that a discovery order must be denominated a judgment in order to constitute a valid order. This argument is without merit.

Husband is not appealing the substance of the court's September 13, 2001, PDL order itself. Rather, he is appealing the judgment of dissolution and challenges the sanctions imposed upon him for his failure to comply with the discovery order requiring production of documents. He complains that the discovery order was not valid, and therefore, no sanctions can be imposed for failing to comply with the order. We disagree.

In the present case, the court entered an order requiring husband to provide wife with documentation of business records of Total Siding, Inc. Husband repeatedly failed to do so. It was not necessary that the court's discovery order be denominated a judgment in order for husband to be subject to the court's enforcement of the order. Pursuant to Rule 74.02 of the Missouri Rules of Civil Procedure, any written direction made by the court not included in a judgment is considered an order. Here, the trial court ordered husband to produce documentation to wife of their business records, and husband failed to do so. A court may, pursuant to Rule 61.01, make an order striking pleadings or rendering a default judgment against a party as a result of a party's failure to comply with discovery. Husband failed to provide the necessary records to wife at any time. Even after being held in contempt and jailed, husband continued to fail to comply with the court's order to provide business records to wife. Moreover, the court noted in its May 3, 2002 order granting wife's motion for sanctions and striking husband's pleadings, that husband intentionally destroyed several of the records which had been requested. As a result, it was not necessary that the order requiring husband to provide wife with documentation of their business be denominated a judgment...