Wisdom v. Wisdom, s. WD

• Decision Date: 13 February 1985
• Docket Number: Nos. WD,s. WD
• Court: Missouri Court of Appeals
• Parties: Kenneth Waldo WISDOM, Appellant, v. Carolyn B. WISDOM, Respondent. 36094 & 36098.

Page 82

689 S.W.2d 82

Kenneth Waldo WISDOM, Appellant, v. Carolyn B. WISDOM, Respondent.

Nos. WD 36094 & 36098.

Missouri Court of Appeals,

Western District.

Feb. 13, 1985.

Motion for Rehearing and/or Transfer to

Supreme Court Overruled and Denied

April 2, 1985.

James J. Wheeler, Ketesville, for appellant.

Louis F. Cottey, Oswald & Cottey, P.C., Kirksville, Sheryl B. Etling, Stinson, Mag & Fizzell, Kansas City, for respondent.

Before DIXON, P.J., and SHANGLER and SOMERVILLE, JJ.

SHANGLER, Judge.

Our preliminary order of prohibition issued against the respondent circuit judge to stay enforcement of a judgment of contempt against the former husband for refusal to transfer to the former wife cash on deposit under the terms of a property settlement agreement approved by the court and incorporated into the dissolution decree. The petition alleged jurisdictional irregularity in the contempt proceeding and judgment. The husband filed a concurrent appeal. Our order consolidated the proceedings. The respondent circuit judge moved to dismiss the prohibition proceeding and to quash our preliminary order on grounds that the remedy by appeal was adequate. We agree that whatever defect in jurisdiction and judgment for contempt the petition for prohibition pleads, is open to redress by appeal. Teefey v. Teefey, 533 S.W.2d 563, 566 (Mo. banc 1976). We sustain the motion of the respondent and quash our preliminary order in prohibition.

We review the merits of the appeal.

The marriage was dissolved by a decree of the circuit court. In advance of that court proceeding, the principals, Waldo and Carolyn Wisdom, executed under oath a property settlement agreement. The court approved the contract and integrated the terms into the judgment. The formal agreement set over to each spouse the separate property of each as defined, and then divided the marital property. Paragraph 2.B. (2)e. of the agreement set over to the wife a numbered passbook and two certain certificates of deposit which represented $30,652 cash on deposit at the Macon Building & Loan Association and

"cash in the amount of $25,000 on deposit to HUSBAND's credit at Callao Community Bank [emphasis added]."

The remainder of the cash on deposit to the credit of the spouses in that bank "after delivery to WIFE of the sum of $25,000" [original emphasis] as provided in Paragraph 2.B. (2)e. was set over to the husband under Paragraph 2.B. (1)k. of the agreement. On the day of the dissolution proceeding, March 6, 1984 [also the date of execution of the property settlement agreement], the husband signed a check to the order of the wife in the sum of $25,000 drawn upon the Callao Bank. That check was dishonored by the drawee bank, and the wife remains without delivery of the funds.

The wife then, on May 25, 1984, brought a Motion for Contempt, and an order to show cause issued against the husband. The motion alleged as the contempt that the husband has refused to transfer to the wife a fund of $25,000 on deposit in the Callao Bank despite the mandate of the dissolution judgment. The order to show cause directed the husband to give reason why the failure to deliver the fund of $25,000 to the wife as mandated in the dissolution judgment should not be adjudged a contempt of court. The order of contempt rests on the contumacy that the husband "refus[ed] to transfer to [the wife] the fund of $25,000 described in said motion and the [dissolution] decree," and directs the husband to forthwith compliance--and, "in particular to transfer to [the wife] the fund of $25,000." [emphasis added]

The contempt of court was adjudged on June 13, 1984. Thereafter, on July 3, 1984, the husband filed with the court to justify the nondelivery of the $25,000 fund, a formal document nominated Transfer of Fund. That document recited that at the time the check for $25,000 to the wife was executed, the husband had a line of credit with the Callao Bank with a balance of more than $25,000 still available, but that the Callao Bank without the authority or knowledge or consent of the husband cancelled the line of credit, and refused to honor the check delivered to the wife on March 6, 1984. The document explained further that at the time the check was made to the order of the wife and delivered to her, the husband acted with the belief that the sum of $25,000 was a credit available to the husband and was tantamount to a deposit. The document asserts that these events show that the execution and delivery of the check was a good faith attempt at compliance with the dissolution order. The husband then tendered, to purge the adjudged contempt, an assignment and delivery to the wife "CASH IN THE AMOUNT OF $25,000 ON DEPOSIT TO KENNETH WALDO WISDOM'S CREDIT AT CALLAO COMMUNITY BANK" with the direction that the transfer and assignment be effective as "to all cash and credits, including all lines of credit" of the husband at the bank "as of March 6, 1984," and further, instructed the Callao Bank to deliver $25,000 in cash to the wife.

The court refused the Transfer of Fund justification and tender as a purgation of the contempt of court. The entry of that judicial action, although peremptory, rests on the implicit term of the property settlement agreement and of the dissolution judgment: that the husband transfer to the wife a fund in being--$25,000 on deposit at the Callao Bank. To requite the dissolution order, and to purge from contempt, the Transfer of Fund document does not tender the $25,000 fund on deposit in esse at the time of the dissolution judgment, and as that order directs, but merely offers in lieu "all cash and credits, including all lines of credit" of the husband at the bank as of March 6, 1984. The dishonored check of that date and the cancellation of credit already exercised by then are self-evident proofs that the tender was empty and that the contempt continued. The tender amounted to nothing more than an assignment to the wife of any claim by the husband against the bank for cancellation of the line of credit, and not to deliver the $25,000 fund in being--as the dissolution judgment and the order of contempt decree.

The evidence attempted by the husband in response to the order to show cause no more than reasserted, albeit more amply, the premises for exculpation and purgation from contempt posited by the Transfer of Fund document. That evidence intended the proof through witness Harris, chief executive officer of the Callao Bank until the end of February 1984, that the bank and the husband had a line of credit agreement for a term from January 1984 to January 1985 in the amount of $200,000 [secured by a promissory note], and that at the time the husband executed the check there remained about $50,000 unused credit. That witness would prove also that in February 1984, Harris was informed by the husband of the imminent need of $25,000 for "a cash settlement" with the wife, and Harris told the husband to write the check and the bank would apply that amount against the line of credit. Harris would also testify that on March 6, 1984, he informed counsel for the wife by telephone that the $25,000 check by the husband would be paid by the bank when presented. The husband offered to prove much the same by his own testimony --including that he was present when counsel telephoned Harris for assurance, and received assurance, that the bank would honor the check of the husband to the wife for $25,000.

The tender of this evidence was rejected by the court as immaterial to the issue: the refusal and failure to deliver to the wife the fund of $25,000 on deposit described in the property settlement agreement term incorporated as a judgment.

The husband argues on appeal that the evidence was tendered to prove compliance with the terms of the agreement and judgment, and hence the rejection by the court prejudiced the attempt to show cause and be free from an adjudication of contempt. That claim of error was not presented by the brief, and so does not engage our review. Gover v. Empire Bank, 574 S.W.2d 464, 468 (Mo.App.1979).

The brief on appeal makes a composite attack on the validity of the judgment of contempt, but as a single point.

The husband asserts first that the term of the property settlement agreement incorporated into the judgment--which directs the husband to deliver to the wife cash in the amount of $25,000 on deposit--constitutes a judgment for the payment of money, and so may not be enforced by the contempt power. That argument, as it applies to a decree of dissolution, reverts...