Kimball v. Kimball, SD 35518

• Decision Date: 26 April 2019
• Docket Number: No. SD 35518,SD 35518
• Parties: IN RE the MARRIAGE OF Tracy KIMBALL and Richard Kimball Tracy Kimball n/k/a Tracy Cookson, Petitioner-Respondent, v. Richard Kimball, Respondent-Appellant.
• Court: Missouri Court of Appeals

583 S.W.3d 450

IN RE the MARRIAGE OF Tracy KIMBALL and Richard Kimball

Tracy Kimball n/k/a Tracy Cookson, Petitioner-Respondent,

v.Richard Kimball, Respondent-Appellant.

No. SD 35518

Missouri Court of Appeals, Southern District, Division One.

Filed: April 26, 2019

Attorney for Appellant – Shanna K. Surratt of Cape Girardeau, MO.

Attorney for Respondent – James M. McClellan of Sikeston, MO.

Nancy Steffen Rahmeyer, J.

Richard Kimball ("Former Husband") appeals from the circuit court’s order and judgment reviving an amended judgment of dissolution, and finding Former Husband "to be in contempt of court" and awarding Tracy Cookson ("Former Wife") "attorney fees for [Former Husband’s] contempt in the sum of $ 2,457.50, plus all court costs." Former Husband raises seven points – we dismiss the appeal as to points one, three, four and seven because the points challenge the order and judgment’s currently, interlocutory and unappealable finding Former Husband is in contempt of court; deny the remaining points; and affirm the order and judgment as to its revival of the amended judgment of dissolution.

Facts and Procedural Background

On April 15, 2016, Former Wife filed three separate motions in this dissolution proceeding: (1) a motion to modify, (2) a motion for scire facias , which sought to revive an amended judgment of dissolution filed on January 9, 2002, that allocated marital debt in the amount of $ 191,291.12 to Former Husband and directed Former Husband to pay that amount to Former Wife in monthly payments over almost sixteen years,¹ and (3) a motion for contempt that requested Former Husband be ordered to show cause why he should not be held in contempt for his failure to comply with the judgment. The motion to modify was resolved by agreement of the parties.² The circuit court conducted an evidentiary hearing on November 16, 2017, for the remaining two motions.

Former Wife testified as follows. Former Husband did not "fully compl[y]" with the amended judgment of dissolution. In particular, Former Husband did not make $ 1,000 monthly payments to her on a debt in the original amount of $ 191,291.12, as required by numbered paragraph 4 of the judgment. The total payment on the debt "from 2003 through 2009" was $ 22,141.96. The payments "from 2003 to 2005" totaled $ 11,090.50, and were obtained "through a garnishment" on Former Husband’s employer Nucor Steel in Blytheville, Arkansas. In 2008 and 2009, Former Wife obtained additional payments through "garnishment of [Former Husband’s] wages." The last amount garnished from Former Husband was $ 348.36 in April 2009. The amounts shown on Exhibit 3 all were obtained through "garnishment actions that [Former Wife] made in this case." Former Wife identified Former Husband’s 2013, 2014 and 2015 "tax return[s]," which showed "total income" of $ 48,337, $ 66,397 and $ 77,004, respectively. Former Husband did not object to any of this testimony.

Subsequently, when Exhibit 3 and another exhibit were offered for admission into evidence, Former Husband objected to Exhibit 3 and the other exhibit on the ground the exhibits had not been produced in response to a request for production. Former Husband also objected to Exhibit 3 "as best evidence rule," foundation, and "I do know that there was a letter attached to Exhibit 3 that looks like they were taken from hearsay from somebody that told her something and then put down." The circuit court and counsel then had the following exchange:

[Former Wife’s counsel]: Judge, we have produced all relevant documents in this case. I gave her a copy of the exhibits before we started today.... I think she can testify as to what money she has received, so I don't think that [opposing counsel’s] objections are appropriate and should be denied.

THE COURT: Well, I mean, it’s – it’s still your witness. And if you want to -- and, honestly, it’s one way or the other. Either we get it -- we get it on paper or she’s going to testify to it.

[Former Husband’s counsel]: I know.

THE COURT: Or –

[Former Husband’s counsel]: I'm making my record, Your Honor.

THE COURT: I'll tell you what I'll do. I'll allow you to continue -- as to the objection to [the other exhibit], I will overrule that objection. And then as to 3 I'll allow you to have your client testify as to the payments that were -- that were made, which I think she’s made – she’s made some testimony, but if you want to be more specific I'll allow you to continue to ask questions.

[Former Wife’s counsel]: I'll do that, Judge.

Former Husband did not object further, and Former Wife then testified she received: (1) $ 1,645.52 by garnishment in July 2008, (2) $ 1,045.10 by garnishment in August 2008, (3) $ 1,741.85 by garnishment in September 2008, (4) $ 1,393.47 by garnishment in October 2008, (5) $ 1,045.10 by garnishment in November 2008, (6) $ 1,393.48 by garnishment in December 2008, (7) $ 696.74 by garnishment in January 2009, (8) $ 1,045.10 by garnishment in February 2009, (9) $ 696.74 by garnishment in March 2009, and (10) $ 348.36 by garnishment in April 2009. The 2008 garnishments were on Nucor Steel. Former Husband never made any "voluntar[y]" payments on the debt – the only payments received were through garnishments. At that point, Former Wife’s counsel again offered Exhibit 3 and the circuit court overruled Former Husband’s objection and admitted Exhibit 3.

On cross examination and then rebuttal, Former Wife indicated that the payments she received were through the circuit court and a bankruptcy court in which Former Husband was seeking relief.

Counsel for Former Wife than called Former Husband as a witness. Former Husband testified as follows. Former Husband acknowledged that he had never made any payments on the debt to Former Wife voluntarily. Former Husband worked for Nucor Steel during 2008 and 2009, but never had any wages garnished during that period. He did not recall the exact years, but he did have wages garnished before 2005. Former Husband worked for Nucor Steel in 2001 through 2010. Former Husband then worked for Lankheit Farms, Delta, Stallings Farms, Bechtel, CB&I, and was working for Bechtel at the time of the hearing. Former Husband’s wages on his tax returns are correct to the best of his knowledge. Former Husband did not make any payments on the debt to Former Wife under his Chapter 13 plan.

On combination cross/direct examination by his counsel, Former Husband indicated there was a garnishment on his "bank account" in 2003 and "some [additional] garnishments made to my bank account ... before 2005." Former Husband was not "aware of any other garnishments placed on [his] bank – on [his] wages" since 2005. Former Husband’s Chapter 13 bankruptcy was "dismissed for nonpayment." Former Husband has "several judgments entered against [him] for money owed" in the amount of $ 41,081.24 (exclusive of the debt owed Former Wife), and has federal and state tax liens. Former Husband also owes the federal government "probably around 50 or $ 60,000." Former Husband’s "current income and expense statement" shows "average monthly gross income of about $ 11,000," and "average monthly expenses of abut [$]10,148." Former Husband "didn't refuse [to pay the debt to Former Wife]; [he] just didn't have it to pay." Toward the end of Former Husband’s testimony, the circuit court took "judicial notice" "of its own file" at the request of Former Husband’s counsel to "take judicial notice of the garnishments that were previously done in the original action in this case."

At the conclusion of the hearing, the circuit court took the motions under advisement and requested written argument and proposed findings and conclusions from the parties. Subsequently, on January 30, 2018, the circuit court entered an order and judgment reviving the amended judgment of dissolution and finding Former Husband "to be in contempt of court" and awarding Former Wife "attorney fees for [Former Husband’s] contempt in the sum of $ 2,457.50, plus all court costs." The circuit court also found that (1) the last payment on Former Husband’s debt under the amended judgment of dissolution was "garnished in April 2009," (2) the "collection proceedings as late as April, 2009 ... revived" the amended judgment of dissolution and, relying on Martin v. Martin , 979 S.W.2d 948 (Mo. App. S.D. 1998), "by testimony was entered upon the Court record ...," and (3) the "Motion to Revive Judgment was timely filed within ten (10) years from April, 2009."

Analysis

Points I, III, IV and VII – Contempt

In Former Husband’s first, third, fourth and seventh points, he raises various challenges to the circuit court finding him "to be in contempt of court." We dismiss Former Husband’s appeal as to these points because the circuit court’s order and judgment finding Former Husband to be in civil contempt of the court is an interlocutory and unappealable order until it is enforced.

"[O]ur Supreme Court has consistently recognized the right to appeal a judgment of civil contempt" once the judgment is final. Davis v. Davis , 475 S.W.3d 177, 182 n.6 (Mo. App. W.D. 2015). As the Western District explained in Davis :

The purpose of civil contempt is to "benefit a party for whom an order, judgment, or decree was entered" by coercing compliance with the relief granted. [In re Marriage of] Crow [and Gilmore] , 103 S.W.3d [778,] 780 [ (Mo. banc 2003) ].

....

A party held in civil contempt may then (1) purge himself of the contempt by complying with the trial court’s order (making the case moot and unappealable), or (2) appeal the judgment of contempt once it becomes final.Emmons v. Emmons , 310 S.W.3d 718, 722 (Mo. App. 2010) ; see alsoCarothers v. Carothers , 337 S.W.3d 21, 24 (Mo. banc 2011).

The question of when a civil contempt judgment becomes "final" for purposes of appeal was definitively addressed by our Supreme Court in Crow , 103 S.W.3d 778, and, more recently, in Carothers , 337 S.W.3d 21. As explained in those cases, a civil contempt order is interlocutory when it is

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