Dodson v. Dodson, WD

• Decision Date: 04 May 1993
• Docket Number: No. WD,WD
• Citation: 855 S.W.2d 383
• Parties: Nancy Jo DODSON, Respondent, v. Charles Keith DODSON, Appellant. 46738.
• Court: Missouri Court of Appeals

Page 383

855 S.W.2d 383

Nancy Jo DODSON, Respondent, v. Charles Keith DODSON, Appellant.

No. WD 46738.

Missouri Court of Appeals,

Western District.

May 4, 1993.

Rehearing Denied June 29, 1993.

Roy W. Brown, Kearney, for appellant.

David D. Lodwick, Excelsior Springs, for respondent.

Before FENNER, P.J., and ULRICH and SPINDEN, JJ.

FENNER, Presiding Judge.

Appellant, Charles Keith Dodson (Keith), appeals the judgment of the trial court which determined that he was not entitled to affirmative relief, by way of award of marital property, in the cause for dissolution of his marriage from respondent, Nancy Jo Dodson (Nancy).

Nancy was the petitioner at trial having filed the underlying action for dissolution in May of 1991. In the course of the dissolution proceeding, Nancy served interrogatories on Keith. In her interrogatories, Nancy requested information from Keith in regard to extra-marital affairs by Keith. Keith refused to answer the interrogatories inquiring of his extra-marital affairs invoking his constitutional rights under the Fifth Amendment, and maintained this position throughout the course of the proceeding.

When Keith attempted to testify at trial of the cause herein, Nancy objected to any testimony from Keith seeking affirmative relief, for the reason that Keith had refused to answer her interrogatories claiming his Fifth Amendment privilege. The court took Nancy's objection with the case and ruled in its judgment dissolving the marriage and dividing the marital property that because of Keith's refusal to answer Nancy's interrogatories the court was "without discretion to grant affirmative relief in favor of Respondent, as to marital property division, excepting however, as to those items consented by Petitioner to be granted to Respondent."

In other words, the trial court held that as a matter of law the court did not have discretion to award marital property to Keith except as agreed to by Nancy because of Keith's refusal to answer interrogatories claiming his Fifth Amendment privilege. In his sole point on appeal, Keith argues that the trial court erred by so holding.

On appeal of a court-tried case, an appellate court will affirm the judgment of the trial court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, or unless it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

Although a party has the right to take the Fifth Amendment against self incrimination in a civil case, the right is not without its price. Where a party takes the Fifth Amendment in a dissolution action and thereby conceals pertinent information, the party is not entitled to affirmative relief when timely objection is made. Sparks v. Sparks, 768 S.W.2d 563, 565 (Mo.App.), cert. denied, 493 U.S. 957, 110 S.Ct. 372, 107 L.Ed.2d 358 (1989). Furthermore, whether asserted by the petitioner or the respondent, invocation of the Fifth Amendment privilege will, in most cases, require some form of judicial response of a remedial nature to eliminate any undue advantage which might flow from the ability to conceal pertinent evidence. Id. 768 S.W.2d at 567. In this regard, the trial court is vested with discretion in fashioning an appropriate remedy to prevent unfairness and disadvantage from the concealment of pertinent information. Id. at 567.

However, where the respondent in a dissolution action invokes the Fifth Amendment and the court is proceeding on the petitioner's petition, the court is...