Richman v. Richman

• Decision Date: 13 November 1961
• Docket Number: No. 48084,No. 1,48084,1
• Citation: Richman v. Richman, 350 S.W.2d 733 (Mo. 1961)
• Parties: Thelma RICHMAN, Respondent, v. Murlen Arthur RICHMAN, Appellant
• Court: Missouri Supreme Court

Page 733

350 S.W.2d 733

Thelma RICHMAN, Respondent, v. Murlen Arthur RICHMAN, Appellant.

No. 48084.

Supreme Court of Missouri, Division No. 1.

Nov. 13, 1961.

Kelso Journey, Clinton, for appellant.

William J. Cason, Clinton, for respondent.

HOLMAN, Commissioner.

In this action the trial court granted plaintiff a final decree of divorce together with custody of two minor children and an allowance of $50 per month for their support. The decree was entered by default after defendant's pleadings had been stricken. Defendant's motion to vacate the judgment or, in the alternative, for a new trial was overruled and he has duly appealed. We have jurisdiction because the appeal involves the construction of the Constitutions of Missouri and of the United States. Section 3, Article V, Constitution of Missouri 1945, V.A.M.S.

A brief statement of facts will suffice. Within the time provided by statute defendant filed a motion to dismiss and a motion to make plaintiff's petition more definite and certain. Thereafter, on October 8, 1958, plaintiff's motion for child support, pendente lite, and attorney fees was sustained and she was allowed $25 per month for support of a child and $100 for attorney fees. Defendant paid only a small portion of these allowances. On September 14, 1959, the court sustained plaintiff's motion striking the motions defendant had filed in the cause because of his failure to pay the judgment for child support and attorney fees. On the next day defendant filed an answer. Thereafter, plaintiff filed a motion to strike defendant's answer for the reason that (1) defendant had failed to pay the allowances heretofore mentioned and (2) the answer was filed without leave. The court sustained the motion on October 7, 1959, and ordered the answer stricken. On the same day the court heard plaintiff's evidence and entered the default decree from which defendant has appealed.

The main contention of the defendant upon this appeal is that the action of the trial court in striking his pleadings because of his failure to pay the allowances for attorney fees and temporary child support was a denial of due process of law in violation of Section 10, Article I of the Missouri Constitution, and the Fourteenth Amendment to the Constitution of the United States. For reasons that will hereinafter appear we are in full agreement with that contention.

While it is difficult to give a precise definition of the phrase 'due process of law,' it is generally agreed that 'The essential elements of due process of law are notice and an opportunity to be heard and to defend in an orderly proceeding adapted to the nature of the case before a tribunal having jurisdiction of the cause.' 12 Am.Jur., Constitutional Law, Sec. 573, pp. 267, 268. More specifically applicable to the question before us is the following: 'Courts have no inherent power to punish contempt by denying a hearing to the contemner, and striking his pleadings or entering default judgment or dismissal against him, since one of the fundamental conceptions governing a court of justice is condemnation only after a hearing, and an order of this nature denying the contemner a right, as distinguished from a favor, is void for want of due process of law in violation of the Fourteenth Amendment to the Federal Constitution or a comparable provision of the applicable state constitution. * * * In Hovey v. Elliott (1897), 167 U.S. 409, 42 L.Ed. 215, 17 S.Ct. 841, it was held that a decree pro confesso entered after striking defendant's answer from the files as a punishment for his contempt in refusing to obey an order of the court to pay money into the court was void for want of due process of law. The court said: '* * * The fundamental conception of a court of justice is condemnation only after hearing. To say that courts have inherent power to deny all right to defend an action and to render decrees without any hearing whatever is, in the very nature of things, to convert the court exercising such an authority into an instrument of wrong and oppression, and hence to strip it of that attribute of justice upon which the exercise of judicial power necessarily depends.'' Annotation 14 A.L.R.2d 580, 589, 590.

The precise situation here involved was before the Kansas City Court of Appeals in the case of McMakin v. McMakin, 68 Mo.App. 57. Therein it was held that the failure of the defendant to discharge a judgment for alimony pendente lite did not authorize the striking of his answer. The court relied upon the decisions from a number of other states and appeared to stress the interest of the public in divorce actions, saying that 'unless the defendant is permitted to plead his defense, and offer proof thereof, how can the conscience of the court be satisfied of the justice of the plaintiff's complaint? The defendant's answer and evidence may call to the court's...