Staples v. Staples, 65398
| Decision Date | 14 March 1995 |
| Docket Number | No. 65398,65398 |
| Citation | 895 S.W.2d 265 |
| Parties | Caryl Ann STAPLES, Petitioner/Respondent, v. John Eugene STAPLES, Respondent/Appellant. |
| Court | Missouri Court of Appeals |
Merle L. Silverstein, Sanford Boxerman, St. Louis, for respondent, appellant.
Barbara Kemery, St. Louis, for petitioner, respondent.
John Staples ("Husband") appeals the dismissal of his motion to modify maintenance. The trial court dismissed Husband's motion pursuant to Rule 67.02 for failing to comply with previous orders of the court awarding monthly maintenance payments to Wife. 1 We affirm.
The parties' marriage was dissolved by decree of dissolution entered in 1978. Pursuant to the terms of the decree, Husband was ordered to pay Wife $700 per month as maintenance and $400 per month child support for each of the two children born of the marriage. The decree was later modified in 1987 to reduce the amount of maintenance to $400 per month and increase child support for the one unemancipated child to $600 per month.
In 1990, Husband filed a new motion to modify alleging a substantial and continuing change in circumstances as to Wife's ability to provide for herself and requesting that Wife's periodic maintenance be terminated. The hearing on Husband's motion was held in November 1993. At the close of Husband's case, Wife filed a motion to dismiss Husband's motion to modify, citing Rule 67.02 and Husband's noncompliance with the court's order to pay Wife the maintenance specified in the prior order. Rule 67.02 provided in pertinent part, "For failure of the plaintiff to prosecute or to comply with these Rules or any order of the court, a defendant may move for dismissal of a civil action or of any claims against him." The trial court sustained Wife's motion and this appeal followed.
Our review of an involuntary dismissal under Rule 67.02 is limited to an abuse of discretion standard. Green v. Green, 606 S.W.2d 395, 398-99 (Mo.App.1980). Judicial discretion is abused when the order of the trial court is clearly against the logic of the circumstances then before the court and is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration; if reasonable persons can differ about the propriety of the action taken by the trial court, then it cannot be said the court abused its discretion. O.S.G. by L.G. v. G.B., Jr., 805 S.W.2d 704, 706 (Mo.App.1991).
Husband does not dispute the fact that he was in arrears on the maintenance he was ordered to pay Wife. However, Husband maintains dismissal under Rule 67.02 was improper because he was not in violation of any orders entered in the instant action, i.e., the modification action. Husband argues that any arrearages he may have outstanding based on an earlier action cannot serve as a basis for dismissing his present suit for modification.
Nothing in the language of the rule limits its application to a party's noncompliance with court orders in the case then pending before the court. The rule specifically states that a defendant may move for dismissal based on the plaintiff's failure to comply with the rules "or any order of the court." (emphasis added). Nor have prior cases uniformly limited its application to orders of the court in the pending action. For example, failure to comply with pendente lite orders have been held to form a basis for dismissal or denial of affirmative relief pursuant to Rule 67.02. See Norkunas v. Norkunas, 480 S.W.2d 92, 93 (Mo.App.1972). This is so despite the fact that pendente lite proceedings are independent proceedings, separate and distinct from the dissolution action. Nilges v. Nilges, 610 S.W.2d 58, 62 (Mo.App.1980).
Husband attempts to distinguish cases of dismissal for failure to comply with pendente lite orders on the ground that pendente lite motions are only authorized during the pendency of dissolution proceeding. Husband reasons that, in contrast, motions to modify are in order only after the dissolution action has been concluded, and thus represent truly independent proceedings. Husband hypothesizes that if Rule 67.02 can be applied to such an independent proceeding, it could literally be applied to bar a party in arrears on maintenance payments from maintaining an action for personal injuries against an unrelated third party.
We need not decide in this case...
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