Whitworth v. Whitworth

• Decision Date: 14 June 1994
• Docket Number: No. WD,WD
• Citation: Whitworth v. Whitworth, 878 S.W.2d 479 (Mo. App. 1994)
• Parties: Sandra Carol WHITWORTH, Respondent, v. Leroy Earnest WHITWORTH, III, Appellant. 48244.
• Court: Missouri Court of Appeals

Page 479

878 S.W.2d 479

Sandra Carol WHITWORTH, Respondent, v. Leroy Earnest WHITWORTH, III, Appellant.

No. WD 48244.

Missouri Court of Appeals Western District.

June 14, 1994.

Richard E. McFadin, Kansas City, for appellant.

John Scott King, Independence, for respondent.

Before TURNAGE, P.J., and FENNER and ELLIS, JJ.

FENNER, Judge.

Appellant, Leroy Earnest Whitworth III (Husband), appeals the trial court's imposition of sanctions against him for failing to answer the interrogatories of respondent, Sandra Carol Whitworth (Wife). Appellant also appeals the trial court's award of maintenance.

The parties were married on June 9, 1961 and separated on or about May 13, 1990. Two children were born of the marriage, both of which are emancipated. Wife filed a Petition for Dissolution of Marriage on September 28, 1992 in the Circuit Court of Jackson County, Missouri at Independence. In her petition, Wife stated that the marriage was irretrievably broken and requested maintenance and attorney fees.

On October 29, 1992, Husband filed an answer to Wife's Petition for Dissolution. In his answer, Husband denied that the marriage was irretrievably broken and asked the court to dismiss Wife's petition and "order the parties to counseling."

On March 15, 1993, Wife filed a Motion for Enforcement of Discovery pursuant to Rule 61.01. In her motion, Wife stated that she mailed first interrogatories to Husband's attorney on November 3, 1992, seeking, among other information, disclosure of complete information regarding Husband's present employment, employment benefits, income, expenses, property, liabilities, and any retirement, profit-sharing or pension plan in which Husband is a participant. Wife further stated that Husband "failed, refused, and neglected to answer [Wife's] first interrogatories, although [Wife's] attorney requested said answers in writing in a 'Golden Rule' letter dated December 16, 1992." Wife moved that the court order Husband to comply fully with the discovery sought by fully answering the interrogatories submitted to him within thirty (30) days.

In a letter to Wife's attorney dated March 16, 1993, Husband's attorney acknowledged receipt of Wife's Motion for Enforcement of Discovery and stated, "As you will recall, Mr. Whitworth is an over-the-road truck driver, and it is very difficult for me to contact him. Therefore, please be patient and bear with me, and I will get his interrogatory answers to you as soon as I can."

In an order dated April 5, 1993, the trial court sustained Wife's motion and directed Husband to answer Wife's first interrogatories within twenty (20) days of the date of the order.

On May 27, 1993, Wife filed a Motion for Sanctions pursuant to Rule 61.01, moving the court for "an Order striking [Husband's] Answer [filed October 29, 1992] and setting this cause for hearing for purposes of entering a default judgment against [Husband] in this matter." In support of her motion, Wife stated that Husband has failed to comply with the court's order that he answer Wife's interrogatories.

On July 6, 1993, the court entered an order finding that Husband failed to comply with the court's order of April 5, 1993, and striking Husband's answer filed October 29, 1992. Wife was directed to contact the Domestic Docketing Clerk to arrange a time for a hearing on the default judgment. The record reflects that Husband was notified of a hearing on Wife's petition to take place on August 6, 1993.

At the brief hearing on August 6, 1993, both parties appeared in person and by their respective attorneys. The trial judge did not allow Husband to present any evidence or participate except as to questioning Wife to clarify her testimony.

The court entered its Decree of Dissolution on August 6, 1993, awarding Wife $1,500.00 per month in maintenance, dividing the marital property and debts, and ordering Husband to pay Wife $2,000.00 for attorney fees. This appeal followed.

In his first point on appeal, Husband argues that the trial court erred in striking Husband's answer as sanction for failure to answer Wife's interrogatories and transferring said cause to the default docket because (1) Husband did not receive proper notice in regard to a hearing on Wife's motion for sanctions; (2) judgment after trial and after pleadings are stricken is not default judgment but is to be considered as a judgment upon trial by court; (3) striking Husband's pleadings was unjust because the court has a duty to determine and divide all property of parties to dissolution; and (4) striking of pleadings is an extreme sanction in which there must be a finding of prejudice.

Rule 61.01, which governs sanctions for failure to make discovery, provides that an order may be entered to strike pleadings and render judgment by default against a party who fails to obey an order to answer interrogatories. In re Marriage of Giesler, 731 S.W.2d 33, 34 (Mo.App.1987); Rule 61.01(b)(1). Imposition of sanctions for failure to make discovery is a matter within the sound discretion of the trial court, and exercise of that discretion will not be disturbed upon review unless it is unjust. In re Marriage of Giesler, 731 S.W.2d at 34. Although default is a drastic remedy, it is properly invoked where a party has shown a contumacious and deliberate disregard for the authority of the court. Id. The trial court has an obligation to see that discovery rules are followed and to expedite litigation. Id.

As to Husband's claim that he failed to receive proper notice in regard to a hearing on Wife's motion for sanctions, we note that the record shows that Husband's attorney was contacted in an attempt to obtain the answers to Wife's first interrogatories and was put on notice as to Wife's motion for sanctions. By letter dated December 16, 1992 ("Golden Rule" letter), Wife's attorney informed Husband's attorney that first interrogatories had been mailed to him on November 3, 1992 and that Wife's attorney was still awaiting answers to those interrogatories. Wife's attorney informed Husband's attorney that he would have "no choice but to file a motion with the court" if answers were not received within ten days of the letter.

Wife's Motion for Enforcement of Discovery was filed on March 15, 1993. On March 16, 1993, Husband's attorney wrote a letter to Wife's attorney acknowledging receipt of Wife's motion. In this letter, Husband's attorney stated, "As you will recall, Mr. Whitworth is an over-the-road truck driver, and it is very difficult for me to contact him. Therefore, please be patient and bear with me, and I will get his interrogatory answers to you as soon as I can."

The court entered its order on April 5, 1993, directing Husband to answer Wife's first interrogatories within twenty days of the date of the order. Husband failed to obey the court's order, and Wife filed her motion for sanctions on May 27, 1993. The court entered its order on July 6, 1993, striking Husband's Answer to Wife's Petition and directing Wife to contact the Domestic Docketing Clerk to arrange a time for a hearing on the default judgment.

Husband's attorney wrote a letter to Husband on July 7, 1993. In his letter, Husband's attorney stated, in part, as follows:

Enclosed is a copy of an Order [dated July 6, 1993] I received from the Court.... I cannot understand why you have not complied with my numerous requests that you answer your interrogatories. I wrote to you on November 4, December 18, and December 23, 1992, and March 16, April 6, and May 27, 1993, and requested your interrogatory answers. My secretary called your place of employment and left messages for you to call. We attempted to telephone you at home, but were never able to reach you there. I had a letter hand-delivered to your place of employment for you. You never responded to any of my attempts to obtain your answers to interrogatories.

The record indicates that Husband's argument that he did not receive notice in regard to a hearing on Wife's motion for sanctions, is without merit.

In regard to Husband's other arguments in his first point on appeal, the record reflects that many attempts were made to obtain Husband's answers to Wife's interrogatories, but to no avail. By his inaction and his failure to make himself available, Husband has demonstrated a deliberate disregard for the authority of the court. The trial court was within its discretion in striking Husband's Answer and rendering judgment by default. Through Wife's testimony, her income and expense statement (Wife's Exhibit Number 1), and her statement of marital and non-marital property and liabilities (Wife's Exhibit Number 2), the court was able to divide the property of the parties to the best of its ability. ¹ The court's imposition of sanctions against Husband in striking his Answer and not allowing him to testify and present evidence was solely the result of Husband's evasive behavior and his failure to cooperate with a direct court order, and Husband's complaint on appeal is without merit.

Husband's first point is denied.

In his second point on appeal, Husband argues that the trial court erred and abused its discretion in denying him the ability to fully cross-examine the witness or to present any evidence because the court has the duty to consider all relevant factors in its determination as to marital and non-marital property.

Husband's second point is essentially contained within his first point and was addressed above. Point denied.

In his third point on appeal, Husband argues that the trial court erred and abused its discretion in ordering maintenance to be paid to Wife in the amount of $1,500.00 per month. Husband contends that this amount was not supported by the evidence, was against the weight of the evidence, and was an erroneous application of the law because the court disregarded those factors which are mandated by law. Husband argues that Wife presented no testimony that she lacked sufficient property to provide...