Erickson v. Erickson

• Decision Date: 07 May 2013
• Docket Number: No. SD 31650.,SD 31650.
• Citation: 419 S.W.3d 836
• Parties: In re the MARRIAGE OF Gary Wayne ERICKSON and Virginia Kay Erickson, Gary Wayne Erickson, Petitioner–Appellant, v. Virginia Kay Erickson, Respondent–Respondent.
• Court: Missouri Court of Appeals

419 S.W.3d 836

In re the MARRIAGE OF Gary Wayne ERICKSON and Virginia Kay Erickson,Gary Wayne Erickson, Petitioner–Appellant,

v.Virginia Kay Erickson, Respondent–Respondent.

No. SD 31650.

Missouri Court of Appeals,

Southern District,

Division Two.

April 15, 2013.

Rehearing Denied May 7, 2013.

Christopher J. Stark, Springfield, MO, for Appellant.

Eric G. Jensen, Springfield, MO, for Respondent.

DON E. BURRELL, J.

Gary Wayne Erickson (“Husband”) appeals the civil contempt judgment that ordered him to pay his former wife, Virginia Kay Erickson (“Wife”), $70,120.32 for her unpaid share of Husband's retirement pay, $4,753.76 in attorney fees, and future payments of $785.27 per month for Wife's ongoing share of Husband's retirement pay accruing after August 31, 2010. The contempt claim was based upon the parties' 1990 Bexar County, Texas divorce decree (“the original decree”), which Wife registered as a foreign judgment in Greene County, Missouri in 2007 (“the foreign judgment”).

In a single, multifarious point relied on, Husband asserts the trial court erred in: 1) “finding [him] [']guilty['] of civil contempt”; 2) awarding attorney fees to Wife; 3) modifying the original decree; 4) denying post-trial motions he filed seeking a dismissal of the case, leave to file pleadings out of time, and a rehearing of the matter; and 5) denying him due process of law under the United States and Missouri constitutions.¹ The point also assertsfive grounds supporting the alleged errors: A) Husband was not served with notice of the registration of the foreign judgment under Rule 74.14 and section 511.760; ² B) “no summons was issued or served upon [Husband]” under Rules 54.01, 54.02, and 54.04 concerning the contempt proceeding, and Husband was not “advised of his right to counsel and right to file responsive pleadings”; C) the trial court exceeded its “jurisdiction” by assessing, collecting, and distributing attorney fees “without order of the circuit court”; D) “[t]he [trial] court abused its discretion by refusing to allow [Husband], who had been representing himself pro se, to file th[r]ough his attorney responsive pleadings out of time”; and E) the trial court “exceeded its jurisdiction” in modifying the original decree “because the [trial] court recalculated arrearages based upon factors not allowable under the original [decree].” ³

Finding no merit in any of Husband's claims, we affirm the judgment.

Applicable Principles of Review and Governing Law

“The trial court's judgment is presumed correct, and [the appellant] bears the burden of proving it erroneous.” Grider v. Tingle, 325 S.W.3d 437, 440 (Mo.App. S.D.2010). A judgment in a civil contempt proceeding will be affirmed “unless there is no substantial evidence to support the decision, the decision is against the weight of the evidence, or the decision erroneously declares or applies the law.” Timmons v. Timmons, 139 S.W.3d 625, 628 (Mo.App. W.D.2004). “If the facts of a case are contested, then this Court defers to the trial court's determinations regarding those facts.” Board of Educ. of City of St. Louis v. Missouri State Bd. of Educ., 271 S.W.3d 1, 7 (Mo. banc 2008). De novo review is applied “to questions of law decided in court-tried cases.” Pearson v. Koster, 367 S.W.3d 36, 43 (Mo. banc 2012).

“Dissolution decrees, as well as the property agreements incorporated therein, are enforceable like any other judicial judgment.” Booher v. Booher, 125 S.W.3d 354, 356 (Mo.App. E.D.2004). “Civil contempt is intended to benefit a party for whom an order, judgment, or decree was entered. Its purpose is to coerce compliance with the relief granted.” State ex rel. Chassaing v. Mummert, 887 S.W.2d 573, 578 (Mo. banc 1994). “Contempt may be used to effectuate all constitutionally permitted orders contained in a dissolution decree.” Ellington v. Pinkston, 859 S.W.2d 798, 800 (Mo.App. E.D.1993).

To establish a prima facie case of civil contempt, the complaining party must prove: “(1) the contemnor's obligation to perform an action as required by the decree; and (2) the contemnor's failure to meet the obligation.” Walters v. Walters, 181 S.W.3d 135, 138 (Mo.App.2005).... Where the proceeding for civil contempt arises from an alleged failure to comply with a judgment of dissolution, “ ‘the contemnor has the more ready access to any facts to excuse the default [ ]’ ” and therefore “bears the burden to prove that the non-compliance was not an act of contumacy.” Id. (quoting State ex rel. Watkins v. Watkins, 972 S.W.2d 609, 611 (Mo.App.1998)).

Stuart v. Ford, 292 S.W.3d 508, 514 (Mo.App. S.D.2009).

Facts and Procedural Background ⁴

The original decree addressed Husband's anticipated “military pension and/or retired pay” based upon his service in “the Armed Forces of the United States” (“Husband's retirement pay”) and found that Wife was entitled to a share of Husband's “net military retirement” based upon the number of years that the parties were married while Husband was in the military. It stated that “at the time of [the] divorce [the parties had been married] 183 months while [Husband] was in the service and had obtained the rank of major.” The original decree included the following formula for calculating Wife's share of Husband's retirement pay:

183 months of marriage while [H]usband in service x 50%

Number of actual months of Husband's Military Service when he retires (Retirement based upon rank of Major)

The original decree also required Husband, upon retirement, to “execute all forms, documents and papers necessary in order to have the military payment authority pay directly to [Wife] that percentage share of his retirement which equals her entitlement[.]”

Wife filed her contempt motion on May 7, 2009. That same day, the trial court executed a “Notice and Show Cause Order” (“the show-cause order”) and set the contempt motion for a hearing.⁵ Husband's address was listed on the show-cause order as: “[house address redacted] St. Andrews, Fairfield, CA 94533[.]” Proof of service by a Solano County, California sheriff's deputy upon Husband at a different address was subsequently filed by Wife's counsel at the contempt hearing. Additional documents shown as served with the contempt motion in the proof of service were: “Motion of [sic] Evidentiary Hearing, For Show Cause Order, For Attorney Fees and Costs and Notice of Hearing on Show Cause Order[.]”

Docket entries indicate that the contempt hearing was continued once at the request of Wife's counsel and in December 2009 upon a “joint request” by the parties.

On March 23, 2010, the trial court received the following letter from Husband:

I request a postponement of the March 29 hearing date. As you can see from the attached documents, I have tried to comply and get this matter resolved outside the courtroom. As referenced in the attached[,] my friend [name redacted,] who has been assisting me informally, an attorney licensed in the State of California, thought it was inappropriate to address the court, since he is not licensed in Missouri.[ ⁶]

The return address on Husband's letter was identical to the address the trial court had used for Husband in its show-cause order, except that the zip code on Husband's letter was 94534 instead of 94533.

In response to Husband's letter, the trial court mailed a notice “to counsel of record and any unrepresented parties” that stated the trial court had reviewed Husband's letter, that Wife's attorney had no objection to a continuance, and that the contempt hearing was continued to July 26, 2010 for a two-hour evidentiary hearing.

Husband did not appear at the July 26th contempt hearing in person or by counsel. The hearing was held as scheduled before the family court commissioner, and Wife presented the following evidence in support of her contempt motion.

The original decree was registered as a foreign judgment in Greene County, and a copy was admitted into evidence as Exhibit 1. The majority of Husband's work in the military was as “a financial officer for a hospital.” Wife thought that Husband had retired in 2001, but she was not formally notified of his retirement. A document described as “a certificate of release or a discharge from active duty” pertaining to Husband was admitted into evidence as Exhibit 6. Based on this exhibit, Wife believed that Husband had retired “as of January 31, 2001[.]” ⁷

In May 2006, Wife applied to the military for her share of Husband's retirement pay, and her application used the formula set forth in the original decree. A letter she subsequently received from the military, admitted as Exhibit 4, indicated that her benefit was calculated to be “10.2080 percent [,]” and it indicated that Husband had retired as a lieutenant colonel. Wife believed the military's calculation to be in error because while her share of Husband's retirement pay was to be based upon his pay as a major, it was not to be based only upon the time that Husband held the rank of major. Beginning in August 2006, Wife began receiving $325.16 per month from the military as Wife's share of Husband's retirement pay as calculated by the military. Thereafter, her monthly payment was raised in increments so that by January 2010, she was receiving monthly payments of $408.05. Wife did not receive any military retirement benefit payments prior to August 2006.

Wife believed that her monthly share of Husband's retirement pay should have been 29.9% based upon Husband's 306 months of service in the military and his having been married to Wife for 183 of those months. She testified that based upon that percentage, she was owed $85,319.95 in unpaid retirement pay. Exhibits 9, 10, 11, 12, and 13, which show Wife's calculations to this effect, were also admitted into evidence. Finally, Exhibit 14, also admitted into evidence, indicated that Wife had incurred $4,753.76 in attorney fees and expenses in pursuing her contempt motion.

At the completion of the contempt hearing, the family court...