Division of Employment Sec. v. Weaver
| Decision Date | 02 March 1981 |
| Docket Number | No. WD,WD |
| Citation | 614 S.W.2d 729 |
| Parties | DIVISION OF EMPLOYMENT SECURITY, State of Missouri, Respondent, v. John WEAVER, Appellant. 31695. |
| Court | Missouri Court of Appeals |
Walter K. Disney, Kansas City, for appellant.
Sharon A. Willis, Kansas City, Rick V. Morris, Jefferson City, for respondent.
Before PRITCHARD, P. J., and TURNAGE and CLARK, JJ.
John Weaver was found guilty of civil contempt and the court assessed a fine of $1,000 payable to the court administrator of Jackson County. On this appeal 1 Weaver attacks the underlying order he disobeyed, contends he was entitled to a jury trial, states the contempt order did not recite the facts and alleges the punishment is not appropriate for civil contempt. Affirmed in part and reversed in part.
In September, 1979, Weaver, as president of Kansas City Plastic Laminating Company, was served with a subpoena duces tecum by the Division of Employment Security to appear before the Division and to produce all payroll records, books, papers and memoranda showing wages paid or payable by the Company for the period from January 1, 1977 to December 31, 1978, in connection with the administration of the Employment Security Law. Section 288.230, RSMo 1978. Weaver failed to comply with the subpoena nor did he appear. The Division thereafter filed an application in circuit court for an order requiring Weaver to appear and produce the same records. Section 288.380.8. Weaver, through counsel, resisted the issuance of any order for him to appear and produce records, but the court eventually ordered Weaver to appear and produce the requested records on February 2, 1980. Weaver and his attorney appeared at the Division offices that day but did not produce any records even though they pointed to a shopping bag which Weaver was carrying and said the records were in it. The apparent reason for Weaver's refusal to produce the records is his refusal to accept the fact that he could be compelled to produce any of his payroll records. 2
Thereafter the Division filed a motion with the circuit court to hold Weaver in contempt for failure to obey the court's order to produce the records. Although given notice of the hearing on the motion to hold him in contempt, Weaver filed no responsive pleadings. Neither Weaver nor his attorney appeared at the hearing. The court heard evidence demonstrating Weaver's failure to obey the court's order. Thereupon the court entered an order in which the facts concerning the issuance of the order and Weaver's failure to comply were set out. The court found Weaver guilty of civil contempt 3 and ordered him to pay a fine of $1,000 to the court administrator. The court allowed Weaver ten days in which to pay the fine, but made no provision for remission in the event Weaver complied with the order.
Weaver first challenges the propriety of the order requiring him to appear before the Division and produce payroll records because the Division had no need for the records but was engaged only in a fishing expedition. 4 In its order the court specified that such order was final and appealable but Weaver took no appeal from that order. Nor has Weaver demonstrated that the issuance of such order was improper under Matter of Hein, 584 S.W.2d 631 (Mo.App.1979) which discusses the power of the Division to issue subpoenas and the right of the court to enforce them. Under the holding in Hein the issuance of the subpoena and the enforcement of that subpoena by the circuit court through its order was proper.
Weaver also contends he was entitled to a jury trial although he did not appear at the contempt hearing. In any event, there is no jury trial allowed in contempt proceedings. State v. Coleman, 347 Mo. 1238, 152 S.W.2d 640, 645-6(3, 4) (banc 1941); Osborne v. Purdome, 244 S.W.2d 1005, 1012-13(10) (Mo.banc 1951).
Weaver also contends that the order of contempt did not set forth the facts constituting the contempt. The order fully set out the facts as it was required to do. Ex Parte Brown, 530 S.W.2d 228 (Mo.banc 1975).
Weaver further contends the Division did not produce any evidence to demonstrate its monetary loss to support the fine of $1,000. Weaver also attacks the fine of $1,000 as being improper. In this contention he is correct.
In civil contempt the object of punishment is remedial to coerce compliance with the court's order. On the other hand, punishment for criminal contempt is punitive. The assessment of a $1,000 fine carries only a punitive character when it is unrelated to the performance sought. A fine levied as punishment for a civil contempt "is per diem and continues only as long as the contemnor disobeys the court's order." Chemical Fireproofing Corp. v. Bronska, 553 S.W.2d 710, 715(7) (Mo.App.1977). See also McNealey v....
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Wisdom v. Wisdom, s. WD
...contempt are meant to remedy--to coerce compliance--and not as a penalty, as in criminal contempt. Division of Employment Security v. Weaver, 614 S.W.2d 729, 731[4-7] (Mo.App.1981). The civil contemnor retains the power to terminate any sanction, even imprisonment, by the act of compliance-......
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State ex rel. Div. of Family Services v. Bullock
...contempt are meant to remedy--to coerce compliance--and not as a penalty, as in criminal contempt. Division of Employment Security v. Weaver, 614 S.W.2d 729, 731[4-7] (Mo.App.1981). The civil contemnor retains the power to terminate any sanction, even imprisonment, by the act of compliance-......
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C.S.G. v. R.G.
...proceeding to challenge the underlying order because that constitutes a "collateral attack." Division of Employment Security v. Weaver , 614 S.W.2d 729, 731, n.4 (Mo. App. W.D. 1981). A "collateral attack" is any attempt to impeach a judgment in a proceeding that was not instituted for the ......
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Deane v. Mo. Emp'rs Mut. Ins. Co.
...injured] party.” Chemical Fireproofing Corp. v. Bronska, 553 S.W.2d 710, 715 (Mo.App.E.D.1977); see also Division of Emp't Sec. v. Weaver, 614 S.W.2d 729, 731 (Mo.App.W.D.1981). ...