Karolat v. Karolat

• Decision Date: 26 October 2004
• Docket Number: No. WD 63538.,WD 63538.
• Citation: 151 S.W.3d 852
• Parties: Daryl Harry KAROLAT, Respondent, v. Jean Lynn KAROLAT, Appellant.
• Court: Missouri Court of Appeals

151 S.W.3d 852

Daryl Harry KAROLAT, Respondent, v. Jean Lynn KAROLAT, Appellant.

No. WD 63538.

Missouri Court of Appeals, Western District.

October 26, 2004.

Motion for Rehearing and/or Transfer to Supreme Court Denied December 21, 2004.

James C. Wirken, Kansas City, MO, for appellant.

John W. Dennis, Jr., Independence, MO, for respondent.

Before VICTOR C. HOWARD, P.J., ROBERT G. ULRICH and PATRICIA A. BRECKENRIDGE, JJ.

ROBERT G. ULRICH, Judge.

Jean Karolat (Mother) appeals the judgment of the trial court dissolving her marriage to Daryl Karolat (Father) and awarding sole legal and physical custody and primary residential custody¹ of the parties' two minor children to Father. She claims that the trial court erred in striking her pleadings and entering default judgment against her as a sanction for her failure to comply with discovery and awarding sole legal and physical custody of the children to Father. The judgment of the trial court is affirmed.

Facts

The parties were married on September 19, 1988, and separated in September 2001. Two children were born of the marriage, Shania, born September 19, 1995, and Lysandor, born January 31, 1997. Father filed his petition for dissolution in June 2002 requesting the trial court to dissolve his marriage to Mother, divide the marital assets and debts, award him sole legal and physical custody of the children, and allow the children to relocate to the State of California, where he was then residing. With his petition, Father also filed a motion for temporary custody and a motion to appoint a guardian ad litem alleging that during the parties' separation, Mother had not maintained the health and well-being of the children, the children were being grossly neglected in that they were living in extreme filth and poor living conditions and not attending school regularly, and Mother was perhaps suffering from a serious mental or physical illness. Thereafter, the trial court appointed a guardian ad litem.

Mother filed her answer and counter-petition in August 2002 requesting the trial court to award the parties joint legal and physical custody. In December 2002, Father sent Mother standard dissolution interrogatories, including questions about income and expenses and assets and debt, and a request for production of documents. Also in December 2002, Mother's attorney filed a motion to withdraw as attorney of record alleging that Mother had not provided payment as agreed and had withheld vital information. The trial court granted the motion on January 6, 2003. Mother retained new counsel on January 20, 2003.

On February 10, 2003, Father filed a motion to compel discovery. Mother, however, continued to fail to respond to discovery, so Father filed a motion for sanctions on May 16, 2003. Three days later, Mother's second attorney filed a motion to withdraw for nonpayment of fees. At a hearing on the attorney's motion that same day, Mother told the trial court that she wished to have her attorney withdraw. The trial court, therefore, granted the motion. Also at the hearing, Mother confirmed that she possessed the discovery to be completed. The trial court informed Mother that she had ten days to deliver the completed discovery to Father's attorney and that if she did not, she could be sanctioned. The court explained to Mother that sanctions could include striking her pleadings and permitting Father to proceed by default. The trial court also told Mother that if she desired to hire another attorney, she needed to take immediate steps because the matter had been delayed long enough and needed to be concluded. Finally, the trial court directed Mother to comply with a request by the guardian ad litem to submit to a mental examination on June 11.

On June 5, 2003, the trial court, by docket entry, struck Mother's answer and counter-petition as sanctions for failing to comply with its order to complete discovery. Another pre-trial conference was held on July 25, 2003. At the hearing, Mother indicated that she had not retained a lawyer and confirmed that she had not completed discovery. Mother also confirmed that she submitted to a mental evaluation on June 11 but directed the doctor to withhold the report. The guardian ad litem informed the trial court that Mother had refused her entry into her home and had refused to permit her to meet the children. Despite this, Father and the guardian ad litem requested that the guardian ad litem be dismissed. The guardian ad litem explained that DFS had twice found a lack of evidence of abuse or neglect of the children although she did have some concerns regarding the living conditions of the children. The trial court dismissed the guardian ad litem and set the case on the August 21, 2003, default docket.

At the August 21, 2003, proceeding, Mother was represented by her third attorney in the case. Mother filed a motion for continuance to comply with Father's discovery requests. The trial court denied the motion. The trial court also denied Mother's request to cross-examine witnesses in the default proceeding. Father proceeded with his case presenting the testimony of several witnesses including himself and introducing several exhibits including photographs of Mother's home and the childrens' school attendance records. Mother was not allowed to cross-examine witnesses in the default proceeding. Following the hearing, the trial court entered its judgment of dissolution of marriage. Among other things, the court awarded sole legal and physical custody of the minor children to Father with specific periods of parenting time to Mother. This appeal by Mother followed.

Standard of Review

Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976) governs review of a court-tried dissolution case. Robinson v. Robinson, 128 S.W.3d 543, 546 (Mo.App. W.D.2003). Thus, the judgment of the trial court will be affirmed on appeal unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy, 536 S.W.2d at 32; Robinson, 128 S.W.3d at 546.

In child custody matters, the trial court is afforded even greater deference than in other areas. Robinson, 128 S.W.3d at 546. Because the trial court is in a better position to evaluate the credibility of the witnesses, the evidence and reasonable inferences that may be drawn therefrom are viewed in the light most favorable to the judgment, and contrary evidence is disregarded. Meyer v. Block, 123 S.W.3d 316, 321 (Mo.App. W.D.2003). The appellate court presumes that the trial court reviewed all of the evidence and awarded custody in light of the best interest of the child. Robinson, 128 S.W.3d at 546. An award of child custody will not be disturbed on appeal unless the appellate court is firmly convinced that the child's welfare requires some other disposition. Meyer, 123 S.W.3d at 321 (quoting Dixon v. Dixon, 62 S.W.3d 589, 592 (Mo.App. W.D.2001)).

Sanctions

In the first point addressed on Mother's appeal,² Mother claims that the trial court erred in striking her pleadings, entering default judgment against her, and preventing her from objecting to or cross-examining Father's evidence as a sanction for her failure to comply with discovery, specifically to answer interrogatories and to produce documents.

The imposition of sanctions for a party's failure to participate in discovery, including an order denying the right to cross-examine witnesses and present defenses, is a matter within the discretion of the trial court. Eidson ex rel. Webster v. Eidson, 7 S.W.3d 495, 499 (Mo.App. W.D.1999). Rules 61.01(b) and (d) expressly permit a trial court to strike pleadings and enter judgment by default as permissible sanctions for failure to answer interrogatories or to produce documents. Id. Although default is a drastic punishment, it is properly invoked where a party has shown a contumacious and deliberate disregard for the authority of the court. Giesler v. Giesler, 731 S.W.2d 33, 34 (Mo.App. E.D.1987). The rendition of judgment following the striking of pleadings for failure to obey a discovery order does not come by default in the ordinary sense but is treated as a judgment upon trial by the court. Bell v. Bell, 987 S.W.2d 395, 399-400 (Mo.App. E.D.1999). Thus, when such sanctions are imposed, the principles governing the appeal relate to the discretion of the trial court to impose such sanctions that render the cause uncontested and subject to judgment. Eidson, 7 S.W.3d at 499. The exercise of the trial court's discretion will not be disturbed on appeal unless it is exercised unjustly. Id.; Bell, 987 S.W.2d at 399. Review is limited to determining whether the trial court could have reasonably concluded as it did, not whether the reviewing court would have imposed the same sanctions under the same circumstances. Eidson, 7 S.W.3d at 499.

The record reveals that Mother willfully disregarded the authority of the trial court throughout the proceedings. Mother received Father's standard dissolution interrogatories in December 2002. Mother did not respond to discovery so Father filed a motion to compel discovery in February 2003. After Mother's continued failure to respond to discovery, Father filed a motion for sanctions in May 2003. At the hearing on May 19, 2003, Mother confirmed that she possessed the discovery and would complete it in ten days. The trial court encouraged her to comply with discovery and the mental examination. The court clearly outlined the consequences of failure to comply with discovery. It explained to Mother that sanctions could include striking of her pleadings and permitting Father to proceed by default. After Mother again failed to complete discovery, the trial court struck her pleadings in June 2003. Additionally, Mother admitted to the trial court that she directed the doctor who conducted her mental evaluation not to release the report. Similarly, Mother admitted that she refused the guardian ad litem access to...