McCoy v. Scavuzzo

• Decision Date: 25 March 2008
• Docket Number: No. WD 68095.,WD 68095.
• Citation: 250 S.W.3d 1
• Parties: Angela Shapiro McCOY, Appellant, v. Samuel SCAVUZZO, Respondent.
• Court: Missouri Court of Appeals

250 S.W.3d 1

Angela Shapiro McCOY, Appellant, v. Samuel SCAVUZZO, Respondent.

No. WD 68095.

Missouri Court of Appeals, Western District.

March 25, 2008.

Michelle N. Higinbotham, Esq., Belton, MO, for Appellant.

Robert J. Young, Esq., Liberty, MO, for Respondent.

Before HOWARD, C.J., DANDURAND and AHUJA, JJ.

JOSEPH P. DANDURAND, Judge.

Angela Shapiro McCoy appeals the judgment of the Jackson County Circuit Court modifying child support. In her three points on appeal, she claims the trial court erred in: (1) dismissing for lack of jurisdiction her application for contempt; (2) denying her motion for removal of guardian ad litem; and (3) modifying the amount of child support. Ms. McCoy's first point is granted, the second and third points are denied, and the judgment is reversed and remanded in part and affirmed in part.

Facts

Angela Shapiro McCoy and Samuel Scavuzzo are the parents of JMS, a son born July 21, 1998. By virtue of court order, Ms. McCoy and Mr. Scavuzzo shared joint physical custody of JMS, and Mr. Scavuzzo was ordered to pay child support. In July 2003, Mr. Scavuzzo filed a motion to modify child custody and his child support obligation. In November 2003, Ms. McCoy filed an application for contempt requesting the court to enter an order requiring Mr. Scavuzzo to appear and show cause why he should not be held in contempt of court for failure to pay child support. The two actions were subsequently consolidated, and the court appointed a guardian ad litem for JMS.

A hearing was held on April 24, 2006. At that time, Mr. Scavuzzo dismissed the portion of his motion pertaining to child custody and parenting time, leaving only the portion pertaining to child support. Thus, the only issues tried related to those in dispute regarding child support.

The court entered its Judgment Modifying Child Support on January 10, 2007. The judgment dismissed for lack of jurisdiction Ms. McCoy's application for contempt, awarded the guardian ad litem his requested fees, and changed the child support paid by Mr. Scavuzzo from $616.00 per month to $494.00 per month.

Ms. McCoy's timely appeal followed.

Standard of Review

The standard of review in a court tried case, including one pertaining to modification of child support, is set forth in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). Denney v. Winton, 184 S.W.3d 110, 114 (Mo.App. S.D.2006). "The judgment of the trial court will be affirmed on appeal unless there is no substantial evidence to support it, or unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law." Id. (citations omitted). "A trial court is free to believe or disbelieve all, part or none of the testimony of any witness." Id. "We give deference to the trial court's determination of the credibility of the witnesses; and the evidence, with all of the inferences flowing therefrom, is viewed in the light most favorable to the judgment." Id.

Point I

In her first point, Ms. McCoy claims the trial court erred in dismissing her application for contempt. The hearing on the show cause order was set for January 29, 2004. The trial court found that the show cause order lost viability after January 29, 2004, passed without court action. Ms. McCoy argues the trial court maintained jurisdiction over the contempt action because it was properly consolidated with Mr. Scavuzzo's motion to modify visitation. Ms. McCoy's point is granted.

The following timeline of events is helpful in analyzing this point:

• July 11, 2003 — Mr. Scavuzzo filed a motion to modify child custody and support

• November 19, 2003 — Ms. McCoy filed an application for contempt for Mr. Scavuzzo's failure to pay child support

• November 20, 2003 — an Order to Show Cause was issued by Judge Bushur, directing Mr. Scavuzzo to appear on December 19, 2003

• December 19, 2003 — the hearing on the order to show cause was continued to January 29, 2004

• December 23, 2003 — the matter pertaining to modification of child custody and support, identified as subcase 01, and the matter pertaining to the order to show cause, identified as subcase 02, were consolidated by Judge Bushur. The consolidated cases were scheduled for a case management conference on January 29, 2004.

• 2003/2004 — the case was transferred to Judge Rigby

• December 13, 2005 — the case was transferred to Judge Nixon

• December 20, 2005 — an Order Setting Case Management Conference for January 3, 2006, was entered by Judge Nixon

• January 3, 2006 — a Scheduling Order and Trial Setting was entered by Judge Nixon setting trial for April 24, 2006

• January 12, 2007 — Judgment Modifying Child Support was entered by Judge Nixon

Both the show cause hearing and the case management conference for the consolidated cases were scheduled for January 29, 2004. The record does not reflect that the show cause hearing was held on that date. Neither does the record reflect that the show cause hearing was continued to a subsequent date. Moreover, the record fails to reflect that the case management conference scheduled for that date was held. A new order to show cause was not subsequently requested or entered by the court.

In its judgment, the trial court stated the following:

Where an order to show cause is issued by the court and served on the alleged contemnor, the validity of later proceedings depends on action by the court taken on the return date stated in the order. In this case, it is obvious that the court did not pronounce its judgment on January 29, 2004, nor is there any record of action taken to reset the case for hearing at a later date. The effect of the only court order to show cause served on appellant lost viability when the date set for the hearing passed without court action. Simmons v. Megerman, 742 S.W.2d 202, 206 (Mo.App. W.D.1987); Bandelier v. Bandelier, 800 S.W.2d 1 (Mo.App. W.D.1990).

"In Simmons v. Megerman, 742 S.W.2d 202, 206 (Mo.App.1987), this court expressly held that where an order to show cause is issued by the court and served on the alleged contemnor, the validity of later proceedings depends on action by the court taken on the return date stated in the order." Bandelier v. Bandelier, 800 S.W.2d 1, 2 (Mo.App. W.D.1990). "Under Simmons, the effect of the only court order to show cause served on appellant lost viability when the date set for the hearing passed without court action." Id.

This rule is based on the principle of notice. "Persons charged with indirect contempt (contempt committed outside the presence of the court) are entitled to notice and reasonable time to defend against the contempt charge." Burton v. Everett, 845 S.W.2d 710, 713 (Mo.App. W.D.1993). "[P]unishment for contempt depends, in the first instance, upon an order by the court giving the alleged contemnor notice of the specific acts of contempt with which he is charged and a time when he must appear to make his defense." Bandelier, 800 S.W.2d at 2.

In Bandelier v. Bandelier, 800 S.W.2d 1, 2 (Mo.App. W.D.1990), notice was given by the opposing party's counsel. The court stated: "It is not a notice given by the opposing party's attorney which sets the cause in process, but action by the court." Id. The court also stated:

In a circumstance where the alleged contemnor fails to appear on the date set in the show cause order, and for whatever reason, the hearing is continued by the court to another date, advice to the contemnor of such occurrence would be sufficient, even if given by opposing counsel, and preserves the viability of the original show cause order. That notice, however, must be based on action by the court continuing the case and not, as here, merely on the decision by the petitioner's attorney to revive the case by his own notice as a substitute for an order to show cause.

Id.

Both Simmons and Bandelier are distinguishable from the case sub judice. Ms. McCoy's contempt action was consolidated with Mr. Scavuzzo's modification action. This consolidation constitutes notice based on court action.

"The phrase consolidation of actions has been used by courts in three different senses." Moss v. Home Depot USA, Inc., 988 S.W.2d 627, 630 (Mo.App. E.D.1999)(quotation marks and citation omitted).

One application of the term means the staying of proceedings in one or more actions pending the outcome of proceedings in another action. Used in another sense, the phrase refers to the trial of several actions together. Actions which are consolidated in this sense ... remain separate actions with respect to docket entries, verdicts, judgments, and all aspects except trial. Finally, the term "consolidation" may mean the uniting of two or more previously distinct actions into one. Actions which have been consolidated in this sense lose their independent and separate existence, and only one judgment is rendered in the single action into which they have been combined.

Id.

Subcase 01 pertaining to modification of child custody and support and subcase 02 pertaining to the contempt action for failure to pay child support were consolidated for all purposes before the hearing on the show cause was scheduled to occur. The case management conference for the consolidated case was then scheduled for the same day as the show cause hearing. Unfortunately, the record is not clear as to what occurred on January 29, 2004. It does reflect that the consolidated case was transferred to two different judges over the course of two years.

Judge Nixon, the third judge assigned to the case, entered an Order Setting Case Management Conference for January 3, 2006; as a result of that conference, a further court order set the case for trial on April 24. Thus, regardless of what occurred in the intervening years, the consolidated case, comprised of both the application for contempt and the motion for modification, was set for specific court proceedings by virtue of court action, and Mr. Scavuzzo does not contend he lacked...