Saab v. Saab

• Court: Missouri Court of Appeals
• Writing for the Court: PUDLOWSKI; SMITH, P.J., and SATZ
• Citation: Saab v. Saab, 637 S.W.2d 790 (Mo. App. 1982)
• Decision Date: 04 August 1982
• Docket Number: No. 43239,43239
• Parties: Roslyn SAAB, Plaintiff-Respondent, v. James SAAB, Defendant-Appellant.

Page 790

637 S.W.2d 790

Roslyn SAAB, Plaintiff-Respondent, v. James SAAB, Defendant-Appellant.

No. 43239.

Missouri Court of Appeals,

Eastern District,

Division Four.

Aug. 4, 1982.

Dale Rollings, St. Charles, for defendant-appellant.

G. Jeffrey Lockett, St. Charles, for plaintiff-respondent.

PUDLOWSKI, Judge.

Appellant, James Saab, appeals the judgment below finding him guilty of criminal indirect contempt for non-payment of child support. The trial court, after a hearing with all parties present, made its findings on June 27, 1980, and determined that appellant was guilty of criminal indirect contempt and should be confined in the county jail for 30 days provided however, that he could purge himself by: a) "paying all current arrearages in child support, if any; b) making all child support payments during the balance of the year of 1980 timely, according to the original dissolution decree, i.e., the payments shall be made on or before the 30th of each month; and, c) paying the respondent $1,000 for attorney's fees and court costs."

Appellant and respondent were divorced on October 1, 1976. The decree of dissolution ordered appellant to pay to respondent the sum of $300.00 per month as child support until the emancipation of the older child and the sum of $200.00 per month thereafter for the younger child.

In the contempt hearing the parties hotly dispute the appellant's income, his assets and his slow method of payments. Respondent claims that appellant repeatedly fell behind in his payments and those payments were usually partial and dilatory. Respondent also claims that during this period: a) appellant retained ownership of his real estate business; b) he was employed by an investment company; c) he had sufficient means to open a bakery; d) he purchased a condominium in Florida; e) he also purchased a new car, a pickup truck, a motorcycle, a new boat and trailer, and, f) he owned or managed rental properties from which he received regular monthly income.

Appellant, claimed that he was under psychiatric care immediately following the decree. His bakery business failed because the respondent garnished his bank account. His income for 1977 and 1978 was only $6,000 and $12,000 respectively. The condominium in Florida belongs to his present wife and the rental properties are not available to him either as a source of income or as collateral to borrow against. The rental income from the several properties held by him as a result of the marital property settlement was his only certain source of income and that sale of those assets would destroy the only regular income available to him. Although there was a conflict in the amount owed, appellant acknowledged at the time of the hearing that he was in arrears in the sum of $519.48.

Appellant alleges several errors of the court on the grounds that the trial court's order was a criminal contempt order rather than a civil contempt order. The contempt order issued by the trial judge states that the appellant is "... guilty of criminal, indirect contempt of court ...." The trial court designation, however, does not necessarily render the contempt here criminal. Teefey v. Teefey, 533 S.W.2d 563 (Mo. banc 1976). We must rather look to the substance of the order to determine its true nature. Civil contempt is remedial. It is for the protection of a party to the litigation, the party for whose benefit the original judgment or decree was entered. Its function is to provide a coercive means to compel the other party to the litigation to comply with relief granted to his adversary. The civil contemnor has at all times the power to terminate his punishment by compliance with the original order of the court. Teefey, supra at 566; 17 C.J.S. Contempt § 62(6), pp. 157 to 158. The contempt order in this case possesses all the above mentioned characteristics of civil contempt. The purpose of this contempt decree is to coerce the appellant into compliance with the dissolution decree entered in October, 1976 with respect to child support payments. Furthermore, the contempt order provides that the appellant can purge himself of the contempt by complying with the court ordered support obligation. Whereas, criminal contempt proceedings are punitive in nature. Their purpose is to preserve the power and vindicate the authority and dignity of the court, and to punish for disobedience of its orders. Chemical Fireproofing Corp. v. Bronska, 553 S.W.2d 710, 715 (Mo. App. 1977). It is clear from the facts of this case that the contempt order's purpose was patently remedial and not punitive and thus civil in nature. The procedural errors claimed by the appellant under the guise of criminal contempt are without merit.

In the event that we find, as we do, that the court order was not criminal in direct contempt, the appellant alleges numerous errors of the court based upon the trial court's civil contempt order. The appellant first attacks the basis for the court's authority to allow respondent to retain her private attorney to prosecute this action. After a thorough examination of the record we find that the trial judge exercised his inherent contempt power to enforce private rights arising from the original litigation. This is not a contempt proceeding authorized by the Dissolution of Marriage Act, § 452.345 RSMo (1978). That provision states that a party obligated to pay maintenance or child support may, if the court so orders, discharge that obligation by paying the monthly sums to the circuit clerk. If the obligor falls in arrears on his payments, and he fails to make up the arrearage, then the prosecuting attorney is authorized to bring contempt...