Yeager v. Yeager, s. 43050

• Decision Date: 04 August 1981
• Docket Number: 44033,Nos. 43050,s. 43050
• Parties: James Alfred YEAGER, Appellant, v. Betty Jean YEAGER, Respondent. STATE of Missouri, ex rel. Betty Jean YEAGER, Plaintiff, v. Honorable James H. KELLY, Judge of the Circuit Court of St. Francois County, Associate Division IV, Defendant.
• Court: Missouri Court of Appeals

Page 339

622 S.W.2d 339

James Alfred YEAGER, Appellant, v. Betty Jean YEAGER, Respondent.

STATE of Missouri, ex rel. Betty Jean YEAGER, Plaintiff, v. Honorable James H. KELLY, Judge of the Circuit Court of St.

Francois County, Associate Division IV, Defendant.

Nos. 43050, 44033.

Missouri Court of Appeals, Eastern District, Division Two.

Aug. 4, 1981.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Sept. 21, 1981.

Application to Transfer Denied Nov. 10, 1981.

James J. Knappenberger, Clayton, for appellant.

Eric C. Harris, Flat River, for respondent.

PUDLOWSKI, Presiding Judge.

This is the fourth time in the last eighteen months in which the parties have appeared before this court. This court has consolidated the husband's appeal with an original proceeding in mandamus which was subsequently filed.

Betty Jean Yeager (wife) and James Alfred Yeager (husband) were granted a dissolution of their marriage on November 20, 1979. Pursuant to the dissolution decree, the "Murphy Farm" was awarded to the husband and the "Ryan Farm" was awarded to the wife. Both farms were encumbered by a single mortgage to the Federal Land Bank in the amount of $87,400. Husband appealed the dissolution decree and we affirmed that decree on December 30, 1980. ¹

On May 28, 1980, the trial court found husband in contempt for failure to comply with its decree which ordered him to pay his proportionate share of the mortgage indebtedness. ² He paid the amount due and then filed his notice of appeal which is now before us. In the meantime another annual installment came due on January 1, 1981 which husband again failed to pay.

Subsequently, on January 27, 1981, wife filed her second motion to enforce the dissolution decree against her former spouse. Count I recited that husband had failed to pay his 42% proportionate share of the mortgage indebtedness to the Federal Land Bank in the amount of $3,812.98 and prayed inter alia, for an order holding husband in civil contempt. She further alleged that the Federal Land Bank had threatened to commence foreclosure proceedings. Husband filed a motion to dismiss Count I and on February 13, 1981, the trial court contrary to its previous contempt ruling sustained husband's motion to dismiss for the reason that "said relief requested is prohibited by Article I, Section 11 of the Missouri Constitution of 1945 ³ and Section 511.340 RSMo." ⁴ In dismissing Count I, the court expressly made no finding with respect to the factual allegations of Count I. Wife filed a petition for a writ of mandamus in this court requesting that we issue a writ to compel the defendant judge to "exercise his jurisdiction ... and thereby consider her motion on the merits." We issued our preliminary order and consolidated it with husband's appeal from the previous year's judgment holding him in contempt. In his appeal, husband raises as one of his points the power of the court to hold him in contempt for failure to make the payments required under the decree. We will address the mandamus question initially and concurrently determine the husband's first point on appeal. Husband's other points on appeal will be addressed thereafter.

Mandamus is one of the most powerful writs a court can issue. State ex rel. Scott v. Sanders, 560 S.W.2d 899 (Mo.App.1978). It will not be issued if there is another adequate ordinary remedy. State ex rel. Keystone Laundry & Dry Cleaning, Inc. v. McDonnell, 426 S.W.2d 11 (Mo. 1968). Here, the bank threatens to foreclose on wife's farm and thus she will be adversely prejudiced by the time an appeal is prosecuted and therefore she has no adequate ordinary remedy.

We further recognize that mandamus is not available to compel a trial court to decide a discretionary matter, to perform a discretionary act or to direct a trial court as to how it should exercise his discretion. State ex rel. Seidl v. Jefferson County Board of Education, 548 S.W.2d 853 (Mo.App.1977). However, where the trial judge refuses to make a decision or to exercise his discretion mandamus will lie. State ex rel. Vaughn v. Morgett, 526 S.W.2d 434 (Mo.App.1975). Further, it has long been the rule in Missouri that when, upon a preliminary question of jurisdiction depending wholly upon the law and not the facts, a court misconceives its jurisdiction and refuses to proceed to a determination upon the merits, the appellate court will issue its writ of mandamus to compel the lower court to reinstate the matter. State ex rel. Nesbit v. Lasky, 546 S.W.2d 51, 54 (Mo.App.1977). Here, the trial judge has stated he refuses to hear evidence and exercise his discretion based upon his belief that he has no power to find petitioner in contempt because of constitutional and statutory prohibition against such remedy. For the reasons stated hereafter we make our preliminary order peremptory.

We initially note that in the dissolution decree, the trial court found that:

... petitioner's earning capacity to be superior to that of respondent's and find that respondent would require maintenance from petitioner if respondent were not awarded the family home and the poultry operation on said "Ryan Farm" to reduce living expenses and produce additional income.

In State ex rel. Stanhope v. Pratt, 533 S.W.2d 567 (Mo. banc 1976) the Supreme Court expressly overruled a long line of previous cases and held that maintenance and child support awards have a special status and may be enforced by contempt proceedings despite the constitutional prohibition in Article I, Section 11 against imprisonment for debt. In McClerran v. McClerran, 562 S.W.2d 710 (Mo.App.1978), the Kansas City Court of Appeals held that the failure to transfer personal property pursuant to a dissolution decree can be punished through contempt proceedings. However, our review of Missouri law reveals no case which expressly reaches the issue as to whether an order for payment of money as part of a property settlement in a dissolution contest to a third party is enforceable by contempt proceedings. We therefore look to our sister states for guidance.

We acknowledge that there is a division of authority in our sister states as to whether failure to make payments pursuant to a property provision of a decree is enforceable through contempt. Gross v. Gross, 557 S.W.2d 448 (Mo.App.1977). However, we feel that the better view is that such failure is enforceable in that manner. Harvey v. Harvey, 153 Colo. 15, 384 P.2d 265 (1963); Decker v. Decker, 326 P.2d 332 (Wash. 1958); 24 Am.Jur.2d Divorce, § 944, p. 1078. An examination of State ex rel. Stanhope v. Pratt, supra, reveals that there is no reason contumacious behavior by a party in refusing to make the mortgage payments in dispute should be treated differently than failure to pay alimony or child support awards.

In Stanhope, the court relied heavily upon Ex Parte Phillips, 43 Nev. 368, 187 P. 311 (1920) and quoted extensively with approval therefrom. Phillips held that:

A debt in the sense used in the Constitution alludes to an obligation growing out of a business transaction, and not to an obligation arising from the existence of the marital status .... It is a mere allowance for support and maintenance a duty growing out of the marriage status; a duty which sound public policy sanctions to compel one who is able so to do, possibly as a result of the co-operation (during coverture) of his former wife, to prevent such former wife from becoming a public charge or dependent upon the charity of relatives or friends ... the Constitution prohibits imprisonment for debt. But it is uniformly held, and such is the (true) doctrine, that the decree is an order of the court to the husband, compelling him to support his wife by paying certain sums, and thus perform a public as well as a marital duty. Such a decree is something more than an ordinary debt or judgment for money. It is a personal order to the husband, similar to an order of the court to one of the officers or to his attorney. The imprisonment is not alone to enforce the payment of money, but to punish the disobedience of the party; and the order is not, therefore, a debt, within the meaning of the Constitution. Nelson Div. & Sep. § 939.

In the case at bar, the judge in its...