Meiners v. Meiners, 62523

• Court: Missouri Court of Appeals
• Writing for the Court: CRIST; AHRENS, P.J., and REINHARD
• Citation: Meiners v. Meiners, 858 S.W.2d 788 (Mo. App. 1993)
• Decision Date: 27 July 1993
• Docket Number: No. 62523,62523
• Parties: William L. MEINERS, Appellant, v. Dorothy Sue MEINERS, Respondent.

Page 788

858 S.W.2d 788

William L. MEINERS, Appellant, v. Dorothy Sue MEINERS, Respondent.

No. 62523.

Missouri Court of Appeals,

Eastern District,

Division One.

July 27, 1993.

James B. Herd and Kenneth J. Morton, St. Louis, for appellant.

Allan H. Zerman and Cary J. Mogerman, Clayton, for respondent.

CRIST, Judge.

Former husband (Husband) appeals judgment finding him in contempt and ordering him jailed for failure to pay maintenance and child support. Husband also appeals the denial of his motion to modify maintenance.

On March 23, 1981, the trial court entered a decree of dissolution of the marriage between Wife and Husband. The decree incorporated a separation agreement entered into by Wife and Husband. Nine children were born of the marriage, and four were emancipated at time of trial. Wife was awarded primary custody of four of the minor children, while Husband was awarded primary custody of one child. The decree ordered Husband to pay $100 per month per child for support for the four children in Wife's custody. It also ordered him to pay $100 per month for child support for the child of whom he had primary custody whenever Wife had physical custody of that child. Husband was also ordered to pay maintenance to Wife in the amount of $1,333 per month. The separation agreement further provided Wife had the right to live in the marital home until the last minor child reached the age of twenty-one or became emancipated. At that time, the marital home would be sold with the proceeds divided evenly between Wife and Husband.

On October 12, 1990, Wife brought a motion to cite and punish Husband for contempt and compel compliance with the decree of dissolution. Wife averred Husband had knowingly, willfully and contumaciously violated the decree of dissolution and was currently in arrears for maintenance and child support payments totalling $38,110 plus interest. Wife further requested the court order Husband to transfer his interest in the marital home to her in satisfaction of his past-due maintenance and child support.

In response, on October 25, 1990, Husband filed a motion to terminate child support, modify maintenance, and order the sale of marital property. In his motion to modify maintenance, Husband alleged substantial and continuing changes that made the decree unreasonable, namely his income had decreased and Wife's expenses had decreased.

The motions were consolidated into one hearing on May 4, 1992. At that hearing, Husband admitted he was in arrears on child support and maintenance payments. However, he attempted to justify his delinquency by arguing he was unemployed and had no source of income. On July 1, 1992, the trial court issued its order which terminated Husband's child support obligation, denied Husband's motion to modify maintenance, and ordered Husband to transfer his interest in the marital home to Wife as a credit against his past-due child support and maintenance. The court found the fair market value of the marital home to be $85,000, with Husband's interest to be $42,500.

The court also issued its judgment of contempt finding Husband was in arrears on his maintenance and child support obligation in the amount of $67,099.06. The court further found that:

based on the evidence, that [Husband] has had the ability to pay the Court ordered child support and maintenance payments constituting this arrearage, but has willfully and contumaciously failed and refused to do so in conscious disregard for this Court's Orders contained in the Decree of Dissolution, or has placed himself voluntarily in a position of uncompensated employment and/or non-employment by which he has intentionally diminished his income and has thereby willfully and contumaciously failed and refused to pay the Court ordered maintenance and child support to Respondent.

The trial court ordered Husband to transfer his interest in the marital home to Wife and pay her the remainder of his past-due obligation in the amount of $24,599.06. In paying the remainder, Husband was ordered to pay Wife $2,000 per month for 12 months and the balance of $599.06 on the thirteenth month together with his future maintenance obligation. Further, if Husband missed one payment, he would be incarcerated until he purged himself of his contempt by paying Wife in full.

Husband did execute a quit-claim deed to Wife of his interest in the marital home. However, he failed to make the payments on his past-due child support and maintenance. On December 1, 1992, the court issued a warrant and commitment order finding Husband in contempt of its prior orders directing him to pay Wife $24,599.06. The court specifically incorporated by reference the judgment of contempt. Finally, the court ordered Husband confined in the St. Louis County jail until he purged himself of contempt by paying Wife in full, further order of the court, or he was otherwise discharged by law.

On appeal, Husband first alleges the judgment of contempt and warrant and commitment orders are invalid because they merely state legal conclusions rather than the facts and circumstances which constituted the contumacious conduct leading to his contempt.

We agree with Husband's contention that a civil contempt judgment and order of commitment must both set forth the specific facts and circumstances which constitute the contempt. See, In re Marriage of Scott, 792 S.W.2d 679, 683 (Mo.App.1990); Yalem v. Yalem, 801 S.W.2d 439, 441 (Mo.App.1990); Roark v. Roark, 723 S.W.2d 439, 441 (Mo.App.1986); and Hunt v. Moreland, 697 S.W.2d 326, 328 (Mo.App.1985). However, we believe the orders in this case do set forth the specific facts and circumstances, and not mere legal conclusions. In Hunt, 697 S.W.2d at 328, this court struck down a contempt order as failing to state specific facts where it merely stated the husband had "contumaciously placed himself in a position so that he cannot pay said child support awards." We opined the contempt order should have included "[w]hether he divested himself of assets, voluntarily left employment, refused to seek employment, or whatever, and whether he did so intentionally for the purpose of frustrating enforcement of the court's order...." Id.; See also, Roark, 723 S.W.2d at 441 (contempt order which merely stated respondent had knowingly, contumaciously and willfully refused to pay failed to cite specific facts).

In the case at hand, the trial court specifically stated Husband had "placed himself voluntarily in a position of uncompensated employment and/or non-employment by which he has intentionally diminished his income and has thereby willfully and contumaciously failed and refused to pay the Court ordered maintenance and child support...." Further, the warrant and commitment order incorporated this language by reference. Such language is sufficient.

However, Husband also claims the orders are invalid because the judgment of contempt required him to pay maintenance in the future. We agree.

A trial court may only exercise its contempt power to compel compliance with obligations arising from a preexisting judgment or decree. Yalem, 801 S.W.2d at 441. Use of the contempt power to enforce future obligations is in excess of a trial court's authority. Saab v. Saab, 637 S.W.2d 790, 793 (Mo.App.1982); In re Marriage of Vanet, 544 S.W.2d 236, 248 (Mo.App.1976). "[I]f the contemnor is in arrearage on future payments included as part of the contempt order, he would be deprived of the opportunity of a court hearing to determine whether he is able to meet his obligations through no fault of his own." Saab, 637 S.W.2d at 793.

In the case at hand, the judgment of...