Simmons v. Megerman

• Decision Date: 11 August 1987
• Docket Number: No. WD,WD
• Citation: 742 S.W.2d 202
• Parties: William E. SIMMONS, Petitioner, v. Charles MEGERMAN, Director of Corrections, Jackson County, Missouri, Respondent. 39660.
• Court: Missouri Court of Appeals

Page 202

742 S.W.2d 202

William E. SIMMONS, Petitioner, v. Charles MEGERMAN, Director of Corrections, Jackson County Missouri, Respondent.

No. WD 39660.

Missouri Court of Appeals Western District.

Aug. 11, 1987.

William E. Simmons, Clinton, pro se.

Jane McQueeny, Linda F. Dycus, Kansas City, for respondent.

ORIGINAL PROCEEDING IN HABEAS CORPUS

Before CLARK, P.J., and TURNAGE and NUGENT, JJ.

CLARK, Presiding Judge.

Petitioner, William E. Simmons, sought a writ of habeas corpus contending his confinement in the custody of the Jackson County Department of Corrections for contempt of court was illegal. The writ issued, return was made and we now order petitioner discharged.

The facts relevant to the order of confinement are drawn essentially from documents and pleadings. In 1982, the marriage between petitioner and Fredalyn Simmons (now Gentry), was dissolved and custody of three children, Jamie, James and John, was awarded to the mother, Fredalyn. In 1986, the decree was modified to transfer custody of James to petitioner. The order entered at that time also specified visitation schedules applicable to all three children. The subsequent problems, which resulted in the citations for contempt, arose over the custody and visitation with the children and petitioner's alleged failure to observe the terms of the 1986 modification order.

The trial court's records disclose, among other entries, issuance of two orders to show cause, one dated February 3, 1987, returnable March 24, 1987, and a second issued June 23, 1987, returnable July 13, 1987. Each order directed petitioner to show cause why he should not be held in contempt of court and each was based on, and incorporated by reference, a motion filed by Fredalyn containing a virtual laundry list of complaints regarding telephone calls made to Fredalyn's house, lapses in payments of child support and omissions by petitioner to abide by the terms of the dissolution decree as modified in the 1986 order, particularly with reference to child custody and visitation. Hearings were not held on either show cause order on the return dates March 24 or July 13. The court's docket entry for March 24 shows "Cause continued" with no date rescheduled. The docket for July 13 shows no entry at all.

Commencing on July 20, 1987, the court conducted a hearing extending from that date to July 23, 1987, on various matters pending in the Simmons dissolution of marriage case. Included were a motion by petitioner to modify the decree, an application by petitioner for a writ to facilitate his exercise of visitation with the child John, a motion by Fredalyn to terminate visitation, a motion by Fredalyn for attorney fees and Fredalyn's previous motions which had prompted issuance of the two show cause orders. After ruling the other motions first, the court on July 23, 1987, orally announced from the bench that petitioner was found in contempt of court and he was remanded to the custody of the Jackson County Sheriff for delivery to the Department of Corrections.

A discussion ensued between counsel for petitioner and the court in an attempt to ascertain what conduct by petitioner had resulted in the finding and judgment of contempt and what acts by petitioner would purge the contempt. As best the court's responses may be interpreted, a problem generated by the absence of any formal judgment entry, the contempt consisted of petitioner's failure to make the child James available to Fredalyn for summer visitation between June 15 and June 30, 1987 and his failure to return the child Jamie to Fredalyn after petitioner's visitation earlier in June. Counsel pointed out, and the court agreed, that Jamie had been returned to Fredalyn before the hearing and was in her mother's custody. ¹ After the pronouncement of the contempt but before the court recessed, the child James was brought into the courtroom and petitioner offered to deliver the boy to Fredalyn for indefinite visitation. The court refused to accept that conduct as sufficient to purge petitioner of the contempt. Petitioner's requests for a stay to permit an appeal and for bail were summarily denied.

Petitioner was taken into custody by respondent Director of Corrections July 23, 1987, on the basis of a form entitled "Notice To Jackson County Department of Corrections," apparently intended for use in criminal cases. A check mark was placed on the form opposite a line stating, "Defendant remanded to the custody of the Jackson County Dept. of Corrections (formal court order to follow)," and the form was signed by Rhonda Smith, apparently a clerk. There was no order signed by the judge, judgment of contempt and no order for commitment apart from the form noted above.

On July 24, 1987, on the verified petition for habeas corpus presented by petitioner, our writ issued and petitioner was ordered released on his own recognizance pending respondent's return to the writ on July 31, 1987. On July 27, 1987, the trial judge entered a formal judgment of contempt, purporting to be as of July 23, 1987, and a warrant for commitment which directed respondent to take petitioner into custody within three days thereafter. We issued our stop order to prevent execution of the warrant.

At the hearing July 31, 1987, respondent agreed that the notice of July 23, 1987, signed by the court clerk was the only basis in hand for detention of petitioner. It also appears undisputed that the children, James and Jamie, were in the actual custody of Fredalyn as of the hour on July 23, 1987, when petitioner was taken into custody.

In cases of contempt not committed in the immediate view and presence of the court, the alleged contemnor is entitled to notice of the accusation and reasonable time to make his defense. Lake Thunderbird Property Owners Association, Inc. v. Lake Thunderbird, Inc., 680 S.W.2d 761, 764 (Mo.App.1984). In a contempt case, the alleged contemnor is entitled to a notice which fairly and fully informs him of the specific acts of contempt with which he is charged. Curtis v. Tozer, 374 S.W.2d 557, 589 (Mo.App.1964).

Contempt may be criminal or civil and it may be direct or indirect. Indirect contempt arises from matters not transpiring in court. Ex parte Ryan, 607 S.W.2d 888, 890 (Mo.App.1980). The purpose of civil contempt is to remedy, not to punish and is to enforce obedience to a judgment. The sanctions which follow a judgment of civil contempt, being to coerce compliance, necessarily contemplate that the contemnor retains the power to terminate the sanction by the act of compliance. Wisdom v. Wisdom, 689 S.W.2d 82, 87 (Mo.App.1985).

Before a person can be punished for contempt, it must appear that there has been an adjudication and conviction or a judgment holding the party guilty of contempt of court. In re Farmer's Bank of Leeton, 222 Mo.App. 897, 901, 6 S.W.2d...