Estate of Dothage, In re, WD

Decision Date14 April 1987
Docket NumberNo. WD,WD
Citation727 S.W.2d 925
PartiesIn re the ESTATE OF David DOTHAGE. David DOTHAGE, Respondent, v. Waldo C. DOTHAGE, Guardian Appellant. 38415.
CourtMissouri Court of Appeals

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 Placement of David at the Higginsville mental retardation facility was approved pursuant to § 202.187(3), RSMo.1978 (Repealed, Laws 1980, H.B. 1724).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

The statutory vehicle for collecting costs is by execution. Section 514.300, RSMo.1986. There is neither inherent nor statutory authority to cite a party indebted for costs in a contempt proceeding. In this case, the show cause order directed to appellant was improvidently entered and the order is quashed.

In a related point, appellant contends the court was without authority to assess costs against him as guardian or personally. The judgment as to costs is unclear in that the entry reads: "Costs taxed against Guardian personally." It is assumed the intent was to charge appellant in his representative capacity as guardian, there being no indication that appellant was a party to the proceedings either as an individual or as the natural parent of David. As a component of his challenge to the cost bill, appellant also asserts that the court lacked authority to appoint a guardian ad litem in a proceeding, as here, initiated sua sponte by the court to determine an issue relative to placement of the incompetent.

At the time proceedings were had before the trial court in this case, the statute in effect providing for appointment of a guardian ad litem for an incapacitated or disabled person was § 475.097, RSMo.Cum.Supp.1984. Such an appointment is conditional upon a finding by the court that the natural or appointed guardian is not effectively performing his duties and upon a further finding that the welfare of the ward requires immediate action. In addition, a guardian ad litem may be appointed to adjudicate the rights of the parties where it appears there is a possible conflict of interest between guardian and ward.

The court here made no finding necessarily prerequisite to appointment of a guardian ad litem, nor was there any evidentiary ground in this record prior to the order of appointment which would establish a basis to conclude that appellant was not effectively performing his duties or that David's welfare required immediate action. The hearing on February 18, 1986, therefore presented the anomalous setting of one guardian arrayed against the other.

The power to appoint guardians is purely statutory. It must be exercised in the manner prescribed and in accordance with the statutes. The court may not on its own motion and without following the procedure required by statute appoint a guardian. In re Dugan, 309 S.W.2d 145, 148 (Mo.App.1957). The order entered by the court sua sponte in this case appointing William L. Orr guardian ad litem was void for want of jurisdiction. It therefore follows, of...

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6 cases
  • Smith v. Pace
    • United States
    • Missouri Supreme Court
    • May 11, 2010
    ..."The power to punish for contempt should be used sparingly, wisely, temperately and with judicial self-restraint." In re Estate of Dothage, 727 S.W.2d 925, 928 (Mo.App.1987). "There are two classes of contempt — civil and criminal, each class having two subcategories — direct and indirect."......
  • Smith v. Capital Region Med. Ctr.
    • United States
    • Missouri Court of Appeals
    • December 18, 2018
    ... ... of the trial court's dismissal of a petition, an appellate court reviews the grounds raised in the defendant's motion to dismiss." In re Estate of Austin , 389 S.W.3d 168, 171 (Mo. banc 2013). "The appellate court reviews the petition to determine whether facts alleged by the plaintiff meet ... Ct. App. 1951) ; State ex rel. City of Pacific v. Buford , 534 S.W.2d 819, 821 (Mo. App. S.L. 1976) ; In re Estate of Dothage , 727 S.W.2d 925, 927 (Mo. App. W.D. 1987) ; In re Estate of Downs , 300 S.W.3d 242, 246 (Mo. App. W.D. 2009) ; International Motor Co., Inc. v ... ...
  • In re Estate of Downs
    • United States
    • Missouri Court of Appeals
    • December 15, 2009
    ... ...         (Emphasis added.) By its express language, section 511.340 allows a trial court to hold a person in civil contempt for failing to obey an order or judgment only if that judgment requires the performance of an action other than the payment of money. See also Dothage v. Dothage (In re Estate of Dothage), 727 S.W.2d 925, 927 (Mo.App. W.D.1987). Thus, pursuant to section 511.340, a court cannot hold a person in contempt for failing to comply with a judgment requiring him to pay money. Id. This is because the imprisonment for failing to obey a judgment to pay ... ...
  • Estate of Ewing v. Bryan
    • United States
    • Missouri Court of Appeals
    • September 13, 1994
    ...Thus, when the court exercises its authority to appoint a guardian, it must do so in accordance with the statutes. In re Estate of Dothage, 727 S.W.2d 925, 928 (Mo.App.1987) (citing In re Dugan, 309 S.W.2d 145, 148 When a petition for the appointment of a guardian or conservator is filed, t......
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