Estate of Dothage, In re, No. WD

• Court: Court of Appeal of Missouri (US)
• Writing for the Court: Before CLARK; CLARK
• Citation: 727 S.W.2d 925
• Parties: In re the ESTATE OF David DOTHAGE. David DOTHAGE, Respondent, v. Waldo C. DOTHAGE, Guardian Appellant. 38415.
• Decision Date: 14 April 1987
• Docket Number: No. WD

Page 925

727 S.W.2d 925 In re the ESTATE OF David DOTHAGE.
David DOTHAGE, Respondent,
v.
Waldo C. DOTHAGE, Guardian Appellant. No. WD 38415. Missouri Court of Appeals,
Western District. April 14, 1987.

Page 926

Thomas J. Downey, Jefferson City, for appellant.

William L. Orr, Columbia, for respondent.

Before CLARK, C.J., and KENNEDY, and NUGENT, JJ.

CLARK, Chief Judge.

This is an appeal from various orders entered in the case of David Dothage, a blind, mentally retarded incompetent. Appellant, Waldo C. Dothage, is the duly appointed and acting guardian of the person of the incompetent and is his father. The orders in question directed the transfer of the incompetent from one residential care facility to another, taxed attorney fees and costs against appellant personally and cited appellant for contempt when the fees and costs were not paid. The judgment and orders are reversed.

David Dothage, who was born June 22, 1954, is hemiplegic on the right side, is visually impaired and mentally retarded. He normally uses a wheelchair but can walk slowly with use of a cane. He was cared for at home by his parents until 1971 when he was admitted to the Higginsville Habilitation Center. He has remained at that institution ever since, living in a dormitory. The staff there provides therapy and vocational training in addition to personal care.

Appellant was appointed guardian for David by the Probate Court of Boone County on April 16, 1976. At the time, David was found to be indigent. David's care at Higginsville has been provided for at state expense. The parents, appellant and the mother, Mary Dothage, have maintained a continuing interest in their son and his welfare and visit with him at Higginsville at least once a month. The guardianship proceeding was instituted for the purpose of handling affairs for David when he reached the age of majority. Placement of David at the Higginsville mental retardation facility was approved pursuant to

Page 927

§ 202.187(3), RSMo.1978 (Repealed, Laws 1980, H.B. 1724).

On December 18, 1985, the court issued an order, sua sponte, setting a hearing, the announced purpose of which was to determine if David was in the least restrictive environment and, if not, to determine where he should be placed. The court also ordered the appointment of a guardian ad litem to represent David at the hearing. On February 18, 1986, evidence was taken from Richard Payne, a psychiatric social worker at Higginsville; Charles Brewer, director of Woodhaven Learning Center, a private institution in Columbia; Mr. and Mrs. Dothage; and David.

The substance of the testimony was that the Higginsville institution was not particularly oriented to specific programs for the blind, although it was structurally adapted to care for the orthopedic patient. Woodhaven, by contrast, offers special training for the blind but the buildings have stairs and patients must be able to evacuate for emergency drills. A person entirely dependent on a wheelchair could not be accepted. The concern by Mr. and Mrs. Dothage regarding placement of David at Woodhaven was for his physical safety, particularly because of his inability to move up or down stairs normally.

At the conclusion of the hearing, the court ordered the Higginsville Habilitation Center to make arrangements for filing an application to admit David to the Woodhaven Center "as soon as possible." A fee of $150.00 and $49.00 in expenses were allowed to the guardian ad litem and that sum, together with court costs, were assessed against appellant personally. When appellant did not pay the cost bill, the court entered an order directing appellant to show cause why he should not be held in contempt of court for failure to satisfy the judgment. After a post-hearing motion for rehearing was denied, this appeal was taken.

We first consider appellant's contention that the trial court exceeded its jurisdiction in use of the contempt power as a means to collect the judgment for costs.

Constitutional courts of common law jurisdiction possess an inherent power to punish for contempt of their authority, but only if the judicial function is integrally threatened. McMilian v. Rennau, 619 S.W.2d 848, 850 (Mo.App.1981). The power to punish for contempt should be used sparingly, wisely, temperately and with judicial self-restraint. The power should be exercised only when necessary to prevent actual, direct obstruction of, or interference with, the administration of justice. Fulton v. Fulton, 528 S.W.2d 146, 157 (Mo.App.1975).

Section 511.340, RSMo.1986, grants the courts power to punish by contempt for the failure of a party to perform an act required by a judgment, but only if the performance be of an act other than the payment of money. The punishment as for contempt of a judgment debtor for his refusal to obey a judgment has no application to judgment for the mere payment of money. State ex rel. City of Pacific v. Buford, 534 S.W.2d 819, 821 (Mo.App.1976). Imprisonment for debt would violate the federal and state constitutions. White v. Hutton, 240 S.W.2d 193, 200 (Mo.App.1951). ¹

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