Gross v. Gross

• Decision Date: 11 October 1977
• Docket Number: Nos. KCD,s. KCD
• Parties: Marian Ellen GROSS, Appellant, v. Isadore H. GROSS, Respondent. 28585, KCD 28639.
• Court: Missouri Court of Appeals

Page 448

557 S.W.2d 448

Marian Ellen GROSS, Appellant, v. Isadore H. GROSS, Respondent.

Nos. KCD 28585, KCD 28639.

Missouri Court of Appeals, Kansas City District.

Oct. 11, 1977.

Motion for Rehearing and/or Transfer Denied Oct. 31, 1977.

Richard L. Colbert, Kansas City, for appellant.

David Waldman, Kansas City, for respondent.

Before SOMERVILLE, P. J., and WASSERSTROM and TURNAGE, JJ.

WASSERSTROM, Judge.

The question for determination here is the manner in which an order for division of marital property entered in a dissolution proceeding can be enforced. Under the terms of the decree entered on May 12, 1975, dissolving the marriage between Marian Gross and Isadore Gross, the family home went to Marian and she was ordered to make monthly payments due with respect to carpeting in the amount of $127.06 per month to Commerce Bank and payments on the air conditioning in the amount of $103.12 per month to Columbia Union National Bank. Among other provisions, the decree granted her maintenance of $200 per month and child support of $500 per month.

The current problem commenced when Marian refused to pay the monthly installments due to the two banks. Isadore had signed the notes to the banks, and they therefore made demand for payment upon him. He began making those payments, but understandably he desired some relief in that respect against Marian.

Accordingly, on July 31, 1975, he filed application for modification of the maintenance award to authorize him to make payments direct to the banks and deduct those payments from the sums due Marian for maintenance and support. Marian filed cross-motions "to set aside for fraud or for error coram nobis and to complete division of marital property." The basis for the latter motions were allegations by Marian that Isadore had falsely stated that the indebtednesses to the two banks existed by reason of purchase price of the household carpeting and air conditioning, whereas there were in fact no outstanding debts at either bank for carpeting and air conditioning. A hearing was held upon those motions and on August 5, 1975, Judge Murphy overruled all motions.

Following the ruling by Judge Murphy, Marian continued in her non-payment of the two bank indebtednesses. On October 28, 1975, Isadore filed a new application, this time a petition for Marian to show cause why she should not be punished for contempt of court. In response to that petition, Marian filed a cross-motion to modify the decree by increasing the amount of maintenance and child support, and she asked that she be awarded suit money and attorney's fees.

A hearing on the petition and motions was held before Judge Randall on November 18, 1975. Evidence was taken again with respect to the legitimacy of the indebtednesses being asserted by the two banks. At the close of the hearing, Judge Randall found Marian guilty of contempt of court, suspended imposition of sentence and placed her on probation for one year on condition that she pay the sum of $1,400 (the amount of the bank indebtednesses). Isadore was authorized to withhold maintenance payments for the period of seven months, at the end of which time Isadore's obligation to pay maintenance for the seven months would be satisfied and Marian's obligation to pay the bank indebtednesses would also be satisfied. An order to that effect was entered on November 18, 1975, from which Marian duly appealed. Thereafter, on March 4, 1976, Judge Randall denied Marian's application for attorney's fees from which she filed a second appeal dated March 4, 1976.

On these consolidated appeals, Marian assigns the following as error: 1) that Judge Randall erroneously treated Judge Murphy's order dated August 5, 1975, as res judicata of her contentions made in the contempt proceeding that the bank indebtednesses were fraudulent and nonexistent; 2) that Judge Randall failed to give res judicata effect to Judge Murphy's denial to Isadore of the right to offset the maintenance payments against payments being made by him to the two banks; 3) that Judge Murphy lacked jurisdiction in making the original decree of May 12, 1975, ordering Marian to make installment payments to the two banks; 4) that the finding of contempt against Marian violated the imprisonment for debt restrictions of Article I, Sec. 2 of the Missouri Constitution, the due process clause of the Missouri Constitution, Article I, Sec. 10, and the due process clause of the 14th Amendment of the United States Constitution; 5) that Marian was not guilty of contemptuous conduct, and 6) that Judge Randall erred in denying the allowance to her of attorney's fees. Each of those points will be taken up in the order stated, except that the subject matter of point No. 2 will be considered in connection with and as part of point No. 4.

I.

Marian argues that Judge Murphy's order on her motion to set aside for fraud or for writ of error coram nobis can be res judicata only in a subsequent action, and that the contempt proceedings cannot be considered a "subsequent action" because a proceeding for contempt is merely a continuation of the original action. That argument lacks reality. At the hearing held before Judge Murphy in August of 1975, the subject as to the legitimacy of the bank debts was fully litigated and resolved against Marian. The order entered by Judge Murphy on August 5, 1975, overruled Marian's motions constituting a final appealable order under Sec. 512.020 ¹, but no appeal was taken. She should not be permitted to relitigate the same issue yet again before Judge Randall, and Judge Randall's statements to that effect during the course of the hearing were completely justified.

Nevertheless, the fact is that Judge Randall did permit full evidence to be introduced on the issue of the validity and honesty of the bank indebtednesses and did specifically determine that "the evidence in this case affirmed that there was such an obligation. The petitioner's own evidence showed that there was a refinancing of a note, which original note had been paid for this specific purpose of buying the air conditioner, so the Court, at the time of the divorce decree, ordered the petitioner to pay that indebtedness incurred to buy an air conditioner and to buy carpeting." Thus, Marian was in fact given the opportunity to relitigate the issue even though she had no right to so insist. She has no room for complaint with respect to not having had full opportunity to challenge the legitimacy of the bank debts in question.

II.

Marian concedes, as she must under the authority of Claunch v. Claunch, 525 S.W.2d 788 (Mo.App.1975), that a court in dissolution of a marriage may order that one spouse receiving property not divisible in kind to pay an equalizing sum of money to the other spouse. However, she attempts to distinguish that situation from the present one by saying that the court has no authority to order one of the spouses to make payments to a stranger who is not a party to the dissolution proceedings. She cites no authority for that purported distinction, and on principle the attempted distinction has no appeal. The only reason given by Marian for not allowing such an order is that it would give rights of enforcement to a stranger; but even if this were so, no basis for a valid objection can be perceived.

In truth, however, the third parties (the banks) will have no right to enforce the court order. The judgment of May 12, 1975, contains nothing expressly or by implication showing any intention to give rights thereunder to either of the banks. The only right of enforcement rests with Isadore. 50 C.J.S. Judgments § 857, p. 431; 46 Am.Jur.2d Judgments Sec. 903, p. 1035. See also Nola v. Merollis Chevrolet Kansas City, Inc., 537 S.W.2d 627, l. c. 633 (Mo.App.1976).

III.

Although in her Point Relied Upon Marian cites the constitutional due process clauses as well as the constitutional prohibition against imprisonment for debt, her argument limits itself solely to the latter provision. In that respect, she relies almost entirely upon the decision in Ex parte Fowler, 310 Mo. 339, 275 S.W. 529 (banc 1925). That opinion contains language to the effect that a probate court order upon an executor to pay money to an administrator pendente lite cannot be enforced by contempt. Fowler has subsequently been explained on the basis that the order there sought to be enforced was void for failure of the probate court to comply with constitutionally required procedures. Fuller v. Smedley, 48 S.W.2d 131 (Mo.App.1932).

In any event, all prior law in Missouri (at least as respects enforcement of matrimonial decrees) has been preempted by the recent decisions of the Missouri Supreme Court En Banc in State ex rel. Stanhope v. Pratt, 533 S.W.2d 567 (Mo. banc 1976), Teafey v. Teafey, 533 S.W.2d 563 (Mo. banc 1976) and State ex rel. McCurley v. Hanna, 535 S.W.2d 107 (Mo. banc 1976). Stanhope expressly overruled a long line of previous rulings headed by Coughlin v. Ehlert, 39 Mo. 285 (1866), which had held alimony to be "simply an order for the payment of money" and therefore within the scope of Article I, Sec. 11 of the Missouri Constitution. Stanhope and its companion cases make clear that Missouri has joined the unanimous authority elsewhere in holding that alimony and child support judgments have a special status and may be enforced by contempt proceedings despite constitutional prohibition against imprisonment for debt.

The recent decisions of the Missouri Supreme Court do not, however, reach the question as to whether orders for payment of money as part of property settlement between the spouses are also enforceable by contempt proceedings. On this subject there is a sharp division of opinion among the courts of this country. 24 Am.Jur.2d Divorce and Separation Sec. 944, p. 1078; 27B C.J.S. Divorce § 300(3), p. 380; Fowler and Krauskopf, "Property Provisions," 29 Journal of Missouri Bar 508, l. c. 515 (1973); Clark, "Law of Domestic Relations,"...