Sparks v. Sparks

• Decision Date: 24 January 1989
• Docket Number: No. 52853,52853
• Citation: 768 S.W.2d 563
• Parties: Kathleen Elaine SPARKS, Respondent, v. Roger B. SPARKS, Appellant.
• Court: Missouri Court of Appeals

Page 563

768 S.W.2d 563

57 USLW 2536

Kathleen Elaine SPARKS, Respondent, v. Roger B. SPARKS, Appellant.

No. 52853.

Missouri Court of Appeals,

Eastern District,

En Banc.

Jan. 24, 1989.

Application to Transfer Denied May 16, 1989.

Theodore S. Schechter, Ellen F. Watkins, Cynthia Ann Dobel, St. Louis, for appellant.

Irl B. Baris, St. Louis, for respondent.

CARL R. GAERTNER, Judge.

Husband appeals from an award of temporary maintenance pendente lite, attorneys fees, and expenses in a dissolution action. We find the court erred in granting affirmative relief to wife while she concealed information concerning her alleged attempt to hire a contract killer to murder her husband by invocation of her fifth amendment privilege against self-incrimination and we reverse and remand.

I

Wife's petition for dissolution alleges that Kathleen Elaine Sparks and Roger Bruce Sparks were married on June 24, 1977, a son was born on November 16, 1982 and that the parties separated November 28, 1985. The Petition for Dissolution was filed on December 10, 1985.

In January 1986 wife was arrested and subsequently indicted for the attempted murder of her husband. This criminal action is still pending in the Circuit Court of St. Louis County some 24 months after the grand jury returned the indictment.

On March 19, 1986 wife filed a Motion for Temporary Maintenance, Attorneys Fees, Suit Money and Costs Pendente Lite. Custody of the minor child was with husband and no modification of this arrangement was sought. Husband filed interrogatories, all but two of which wife answered. These two, relating to wife's relationship to the alleged contract killer and her actions in attempting to have her husband murdered, she refused to answer claiming her Fifth Amendment privilege against self-incrimination. Husband then moved to strike wife's pleadings or to bar her from affirmative relief. The trial court denied these motions and scheduled a hearing on wife's PDL motion.

At this hearing wife again refused on Fifth Amendment grounds to answer any questions which might pertain to the charge of attempted murder. She testified she was unemployed and had no income since her husband had ceased weekly deposits of $210 into her bank account after her arrest in January 1986. Although she had a college degree and experience in operating an antique business and working in her father's CPA office, she had not sought employment. She claimed to be unable to work because of headaches, lack of transportation, and because of all the litigation in which she was involved. She had been living with her parents and other relatives under circumstances which she found very unsatisfactory.

A tape recording containing voices identified as those of wife and one Jeffery Imboden was admitted in evidence. The recording is of a conversation of January 13, 1986 in which wife promised to pay Imboden $15,000 from the proceeds of life insurance in return for killing her husband. The recording includes discussions of such details as the amount of insurance on husband's life, the furnishing of a gun to Imboden, and a scheme for future contact by means of coded classified newspaper ads. Wife and Imboden were arrested on January 16, 1986. One of the arresting officers testified that wife denied knowing Imboden at first, but when told of the tape recording she replied "yes, but I didn't mean it" and "well, I took it back and I contacted Jeff and told him I didn't want to do it."

The trial court found that wife was unable to be gainfully employed solely because of the litigation in which she is involved and that she was without adequate means of support or to employ counsel. The trial court concluded that the tape recording was properly qualified and admissible in evidence but did not constitute a bar to an award to wife as conduct "is only one of numerous factors to be considered [pursuant to 452.335 RSMo.1986] and consideration of all other factors requires an award be made." The court ordered husband to pay wife the sum of $840 per month retroactive to September 1, 1986 and $18,377.04 for attorneys fees and litigation expenses. In addition, the court ordered a stay of the dissolution proceeding until the criminal case against wife was concluded.

Husband appeals contending the award of maintenance and attorneys fees was an abuse of discretion and was not supported by substantial evidence, that the trial court erred in overruling his motion to deny wife affirmative relief, and in ordering a stay of the dissolution case until the criminal case against wife is concluded.

Our review is circumscribed by the oft-stated standards of Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976): "the decree or judgment of the trial court will be sustained by the appellate court unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law."

II

Throughout the pre-hearing proceedings and during her testimony, the trial court assiduously protected wife's constitutional right to refuse to testify regarding her relations and dealings with Imboden or to any matter concerning her alleged attempt to have her husband murdered. That she has a right to claim the privilege against self-incrimination so long as she is exposed to possible criminal prosecution is unquestioned. However, invocation of the privilege in a civil case, especially by one seeking affirmative relief from the court, is not without its price. We have not discovered a single case in which a Missouri court has approved, over timely objection, the granting of affirmative relief to a party who has asserted the privilege against self-incrimination regarding a subject relevant to the case. ¹ The rule was stated by the Missouri Supreme Court in Franklin v. Franklin, 365 Mo. 442, 283 S.W.2d 483, 486 (1955) as follows:

The law is that upon oral or written interrogatories being properly propounded to discover relevant and material facts peculiarly and exclusively within the knowledge of the party, his refusal to answer justifies striking his pleadings. Section 510.060 RSMo.1949, V.A.M.S.; Goodrich Zinc Corporation v. Carlin, D.C., 4 F.2d 568; State ex rel. Williams v. Buzard, 354 Mo. 719, 190 S.W.2d 907, 909[2, 3]; State ex rel. Cummings v. Witthaus, 358 Mo. 1088, 219 S.W.2d 383, 390, 8 A.L.R.2d 1124. This sound and salutary rule applies, insofar as we are advised, without exception to all parties seeking relief in the courts.

The Supreme Court proceeded to point out that application of this rule was especially appropriate in a divorce action, governed by the principles of a court of equity. This additional comment by the Supreme Court has been seized upon by wife's counsel as a means of discrediting Franklin as a continuing authority. He argues "Franklin must be read in the context of the law which then required a party seeking a divorce to be an innocent and injured party and therefore to have 'clean hands' ". This argument construes Franklin too narrowly. The opinion notes the rule applies "especially" to divorce actions governed by equitable principles such as the clean hands doctrine; it does not state that the rule has singular application to such cases. Moreover, "proceedings decided under the Dissolution of Marriage Act are no less charged with the principles of equity than are the old divorce actions." McCully v. McCully, 550 S.W.2d 911, 914 (Mo.App.1977).

The facts in Franklin are particularly analogous to those of the instant case. In both the case at bar and in Franklin the wife initiated proceedings to dissolve the marriage. In both the wife refused on self-incrimination grounds to answer written interrogatories pertaining to a relevant issue. In both the wife sought temporary alimony or maintenance and attorneys fees PDL but refused to answer questions claiming the privilege against self-incrimination. In both wife contended the denial of the husband's motion to strike her pleadings and the granting of her motion for temporary allowances was discretionary. In fact, our predecessor, the St. Louis Court of Appeals, in Franklin v. Franklin, 273 S.W.2d 737, 741 (Mo.App.1954) found no abuse of trial court discretion and affirmed the trial court's award. The Missouri Supreme Court in the second reported Franklin opinion, at 283 S.W.2d 483, reversed the trial court and the intermediate appellate court and established the "sound and salutary rule [applicable] ... without exception to all parties seeking relief in the courts". Id. at 486.

That no equitable or "clean hands" limitation was impressed upon the Franklin rule is evidenced by Geldback Transport, Inc., v. Delay, 443 S.W.2d 120 (Mo.1969) in which the Supreme Court applied the rule in affirming the dismissal of a claim for actual and punitive damages. The court adopted the language quoted from an annotation at 4 A.L.R. 545, 546, "a motion to dismiss a complaint, if timely made in the trial court, should be sustained where plaintiff exercised his privilege against self-incrimination to refuse to answer questions pertinent to the issues involved." Geldback, supra, 443 S.W.2d at 121.

In Satterfield v. Satterfield, 635 S.W.2d 80, 81 (Mo.App.1982) this court described as "sound" the rule that "a party claiming the Fifth Amendment privilege against self-incrimination is not entitled to affirmative relief for himself against other parties." In Hagenbuch v. Hagenbuch, 730 S.W.2d 269 (Mo.App.1987) this court upheld the striking of a husband's pleading in a dissolution action after he invoked his privilege against self-incrimination and refused to answer questions relating to alleged marital misconduct. We stated that the Franklin rule is not intended to punish for the exercise of a constitutional right but rather is intended to promote fairness and prevent a party from obtaining an advantage from the invocation of the privilege.

Prevention of unfair advantage...