Saeuberlich v. Saeuberlich, 56056

• Decision Date: 21 November 1989
• Docket Number: No. 56056,56056
• Parties: In re the Marriage of Christine SAEUBERLICH, Appellant, v. Thomas SAEUBERLICH, Respondent.
• Court: Missouri Court of Appeals

Page 78

782 S.W.2d 78

In re the Marriage of Christine SAEUBERLICH, Appellant, v. Thomas SAEUBERLICH, Respondent.

No. 56056.

Missouri Court of Appeals,

Eastern District,

Division One.

Nov. 21, 1989.

Lawrence O. Willbrand, St. Louis, for appellant.

Melody Erin Noel, St. Louis, for respondent.

GARY M. GAERTNER, Presiding Judge.

Appellant, Christine Job (f/k/a Christine Saeuberlich), appeals from an order of contempt of court and from an order of temporary custody.

Appellant and respondent, Thomas Saeuberlich, were granted a dissolution of marriage on March 25, 1985. Custody of their two minor children, Colleen, born February 6, 1980, and Bradley, born August 3, 1983, was awarded to appellant. The decree stated that appellant was not to remove the children from the State of Missouri for more than ninety days without court permission or written permission from respondent. Respondent was ordered to pay child support of one hundred and twenty five dollars ($125.00) per week and fifty dollars ($50) per week maintenance.

On March 6, 1986, appellant voluntarily gave respondent custody of Colleen and Bradley. The children lived with respondent and his wife, Cindy. ¹ Appellant moved to California where she remarried in April of 1987. She still resides in California.

On or about July 17, 1987, appellant's mother (the children's maternal grandmother) asked respondent to permit her to spend an evening with the children. Respondent consented. Sometime the next morning appellant phoned respondent to inform him that appellant would be taking the children with her to live in California. Respondent then filed a motion to modify the dissolution decree on July 22, 1987, requesting primary custody of the children. Appellant's answer included a cross motion to modify which requested permission, post hoc, to remove the children to California.

Respondent's verbal requests that appellant return the children were not honored. On October 13, 1987, the first order to show cause was filed by the court requesting appellant to appear and answer to charges of contempt of court. However, service was not obtained upon appellant. On December 8, 1987, respondent filed a motion for temporary change of custody and contempt of court. Service of the show cause order relating to this motion was also not had upon appellant. Respondent filed his first amended motion for temporary change of custody and for contempt on September 19, 1988. On December 28, 1988, appellant was served with a show cause order which indicated a return date of January 6, 1989.

The court conducted a hearing on January 6, 1989. Appellant did not personally appear but was represented by counsel; respondent appeared in person and with counsel. The court found that appellant was in contempt of the decree of dissolution based on her removing the children to California for more than ninety days without consent of the court or written consent of respondent. The order of contempt directed appellant to relinquish actual custody of Colleen and Bradley to respondent no later than January 13, 1989, and imposed a three hundred dollar ($300.00) per diem fine each day thereafter that she failed to comply. The court also awarded respondent two thousand dollars ($2,000.00) in attorney's fees, one hundred fifteen dollars ($115.00) for respondent's personal expenses in maintaining this action, and fifteen hundred dollars ($1,500.00) in damages caused by appellant's refusal to abide by the dissolution decree. The court also entered an order to modify the dissolution decree giving respondent primary custody of both children pending a decision on the motion to modify and the cross motion to modify.

January 13, 1989 came and passed without appellant having returned the children. On January 24, 1989, respondent travelled to California and picked the children up at their school. The children have remained with respondent ever since.

Appellant filed her notice of appeal with the trial court on January 11, 1989. After examining the briefs of the parties, and without the benefit of oral argument, we dismiss the appeal for the following reasons.

It is apparent from the record that the order of contempt was entered to compel appellant to bring the children back to Missouri. The order therefore constituted civil contempt. The purpose of civil contempt is to enforce obedience to a court order, not to punish; it seeks to coerce compliance with this prior order. Wisdom v. Wisdom, 689 S.W.2d 82, 86 (Mo.App., W.D.1985). In the present case, the court was seeking to compel appellant to comply with the dissolution decree.

Appellant first attacks the court's order of contempt claiming that the return of service was improper and that appellant did not have adequate notice of the hearing. She also asserts that she was not served with a certified copy of the decree as required under RSMo § 511.340 (1986) and that the trial court could not entertain a motion for contempt of a different court's decree. Neither party has questioned this court's ability to review the order of contempt. However, we are obligated to consider the propriety of our own jurisdiction sua sponte. Torrence v. Torrence, 774 S.W.2d 880, 881 (Mo.App., E.D.1989).

We are only able to review the actions of the trial court where there exists a final judgment or order. Id. RSMo § 512.020 (1986). Here, appellant appeals from the order of civil contempt. In order for an order of civil contempt to be final, the order must be enforced in some manner. Hamilton v. Hamilton, 661 S.W.2d 82, 83 (Mo.App., E.D.1983). In Creamer v. Banholzer, 694 S.W.2d 497 (Mo.App., E.D.1985), the trial court found appellant, Banholzer, in civil contempt and imposed a five hundred dollar ($500.00) per diem fine...