Redifer v. Redifer, 46034

Decision Date05 April 1983
Docket NumberNo. 46034,46034
Citation650 S.W.2d 26
PartiesPatricia Louise REDIFER, a/k/a Patricia Louise Reilly, Appellant, v. John Allen REDIFER, Respondent.
CourtMissouri Court of Appeals

Michael P. Bastian, Clayton, for appellant.

Edward J. Grewach, Troy, for respondent.

REINHARD, Judge.

Wife appeals from a judgment of contempt for violation of the child custody provisions of the parties' dissolution decree.

On June 24, 1982, husband filed a motion for contempt alleging wife had violated the child custody provisions of the 1978 dissolution decree by refusing to give him temporary custody of the child as required by the decree. Upon wife's motion, the acting presiding judge disqualified himself from hearing the contempt motion and on the same day assigned the case to an associate circuit judge. The 11th Judicial Circuit, where this case was filed, has four circuit judges. The associate circuit judge adjudged wife to be in contempt of court because she had violated the dissolution decree. The court sentenced wife to pay a fine and to a jail term, but suspended execution of sentence on the condition that wife comply with the court's order regarding temporary custody. The court also ordered wife to pay husband's attorney's fees and the costs.

On appeal, wife first contends that the trial court lacked jurisdiction over the case because the acting presiding judge, having disqualified himself, failed to refer the case to the chief justice of the Missouri Supreme Court for reassignment, in accordance with § 478.255, Laws of Missouri, 1979, 625 (amended version § 478.255, RSMo.Supp.1982), which was in effect at the time husband filed his motion for contempt.

Rule 51.05, which was also in effect at the time of the motion and hearing, provides in part:

(e) Upon the presentation of a timely application for change of judge, the judge shall promptly sustain the application and:

* * *

(2) in a circuit in which there are two or more judges the judge shall transfer the civil action to another judge in the same circuit, or shall call in another judge as authorized by Article V, § 15, of the Constitution, or shall request this Court to transfer a judge.

The new constitution, which became effective after the adoption of this rule, provides for associate circuit judges. After the effective date of the new constitution, the legislature enacted the version of § 478.255 which was in effect at the time of the trial and which provides in part:

2. When a presiding judge elects to hear and determine a case but subsequently is disqualified, he is disqualified for all purposes and the chief justice of the supreme court shall assign a competent judge to hear and determine the case. 1

Art. V, § 5 of the Missouri Constitution gives the legislature the power to amend or annul a rule by a law limited to that purpose, but we find § 478.255, Laws of Missouri, 1979, 625, was not a law limited to the purpose of amending or annulling Rule 51.05. Therefore, Rule 51.05 applied, and the circuit judge had authority to assign the case to the associate circuit judge, and the associate circuit judge had jurisdiction to hear the case.

In her second point, wife contends the contempt judgment is void because husband failed to show that he complied with Rule 74.33 and § 511.340, RSMo. 1978, by serving a certified copy of the dissolution decree on her before he filed his contempt motion. This point is without merit. The obvious purpose of both Rule 74.33 and § 511.340, RSMo. 1978, is to insure that a party is fully informed of a court order before being held in contempt for violating that order. White v. Held, 269 S.W.2d 125, 127-28 (Mo.App.1954). In this case, wife clearly had notice of the child custody provisions of the dissolution decree because she signed the separation agreement which contained those provisions and which was incorporated into the dissolution decree. Further, she was served with a...

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8 cases
  • Marriage of Hunt, In re, s. 20382
    • United States
    • Missouri Court of Appeals
    • November 18, 1996
    ...v. Air Conservation Comm'n, 900 S.W.2d 263, 266 (Mo.App.1995); Wisdom v. Wisdom, 689 S.W.2d 82, 86 (Mo.App.1985); Redifer v. Redifer, 650 S.W.2d 26, 28 (Mo.App.1983); Bronska, 553 S.W.2d at 715 (deeming the purpose of criminal contempt is to preserve the power and vindicate the authority an......
  • Levis v. Markee, 54878
    • United States
    • Missouri Court of Appeals
    • June 6, 1989
    ...United States v. Professional Air Traffic Controllers Organization Local 202, 678 F.2d 1, 4 (1st Cir.1982); Redifer v. Redifer, 650 S.W.2d 26, 28 (Mo.App.1983). Generally, an outright fine, unrelated to actual damages, is not appropriate for civil contempt because it is not designed to cure......
  • Morovitz v. Morovitz
    • United States
    • Missouri Court of Appeals
    • January 26, 1988
    ...the court is authorized: (1) to hold the custodial parent in civil contempt of court, Section 452.400.4 RSMo 1986; Redifer v. Redifer, 650 S.W.2d 26, 28 (Mo.App.1983); (2) to modify the custodial arrangement, Section 452.410 RSMo 1986; O'Loughlin v. O'Loughlin, 712 S.W.2d 450, 452 (Mo.App.1......
  • Wisdom v. Wisdom, s. WD
    • United States
    • Missouri Court of Appeals
    • February 13, 1985
    ...reason, a peremptory fine per se, unrelated to the performance sought, functions only to punish and not to compel. Redifer v. Redifer, 650 S.W.2d 26, 28[3-5] (Mo.App.1983). A money sanction imposed to enforce a civil contempt adjudication, rather, is per diem, continues only as long as the ......
  • Request a trial to view additional results
3 books & journal articles
  • Section 8 Imprisonment
    • United States
    • The Missouri Bar Remedies Deskbook Chapter 9 Contempt
    • Invalid date
    ...to comply with the court’s order.” Sample ex rel. Sample v. Saffaf, 87 S.W.3d 903, 907 n.2 (Mo. App. E.D. 2002); Redifer v. Redifer, 650 S.W.2d 26 (Mo. App. E.D. 1983). But see Huber v. Huber, 649 S.W.2d 955 (Mo. App. E.D. 1983), in which the order setting a limit to the time a contemnor wo......
  • Section 7 Punishment
    • United States
    • The Missouri Bar Remedies Deskbook Chapter 9 Contempt
    • Invalid date
    ...party to deliver or perform the relief granted to the other. Levis v. Markee, 771 S.W.2d 928 (Mo. App. E.D. 1989); Redifer v. Redifer, 650 S.W.2d 26 (Mo. App. E.D. 1983). The trial court’s contempt power may only be used to compel compliance with obligations that arise from a preexisting ju......
  • Section 33 Custody and Visitation
    • United States
    • The Missouri Bar Remedies Deskbook Chapter 9 Contempt
    • Invalid date
    ...for contempt to be appropriate); see also In re Marriage of Greene, 711 S.W.2d 557 (Mo. App. S.D. 1986). In Redifer v. Redifer, 650 S.W.2d 26 (Mo. App. E.D. 1983), the court held that the purpose of (former) Rule 74.33 and § 511.340, now RSMo 2000, was to ensure that a party is fully inform......

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