concurring.
I concur in the result that the preliminary order in prohibition should be made absolute, but for different reasons from those set forth in the majority opinion.
The fundamental question is whether or not the court was required to appoint coun*182sel to represent Stapleton, because if the court was not constitutionally required to appoint counsel, appointment of the public defender was not- authorized under Sec. 600.042.3(4) RSMo (Cum.Supp.1984)1 and it is unnecessary to discuss any other questions. Thus, if the court was not required to appoint counsel in this case, the preliminary order should be made absolute, because the trial court acted without statutory authorization to appoint the public defender. State ex rel. Marshall v. Blaeuer, 709 S.W.2d 111 (Mo. banc 1986). Cf. Mid-Missouri Legal Services Corp. v. Kinder, 656 S.W.2d 309[3] (Mo.App.1983) (court cannot frustrate statutory purpose of Legal Services Corporation by appointing corporation’s attorneys in cases not contemplated by statute).
In Hunt v. Moreland, 697 S.W.2d 326, 328[4] (Mo.App.1985), the Eastern District Court of Appeals held that in every case of civil contempt for failure to pay child support the court must appoint counsel unless the contemnor makes a knowing and intelligent waiver of counsel. The court cited and relied principally upon federal cases and unfortunately overlooked a number of state court decisions that have held that it is not always necessary to appoint counsel in civil contempt cases. I find the reasoning in those state cases to be much more persuasive than the federal cases cited in Hunt.
In State ex rel. Department of Human Services v. Rael, 97 N.M. 640, 642 P.2d 1099 (1982), the court reached what I believe to be a correct result. The court stated the question in that case to be whether or not an indigent is entitled to court appointed counsel in a civil contempt proceeding brought to enforce an order of child support. The Department of Human Services had brought the Rael suit (much as the state files the show cause order for contempt in Missouri). The court first rejected the argument that has been followed in the federal courts — that appointment of counsel is necessary under Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972). The court rejected that argument on the ground that the civil contempt proceeding is a civil action and not criminal. Similarly, in this state proceedings to enforce a child support order are ordinarily deemed civil contempt proceedings. Teefey v. Teefey, 533 S.W.2d 563, 566[4] (Mo. banc 1976). Because the action was civil, rather than criminal, the Rael court concluded that Argersinger did not apply and there was no sixth amendment right to counsel.
The Rael court next considered whether or not Rael was entitled to counsel under the due process clause of the fourteenth amendment because he faced the threat of imprisonment. The court analyzed this problem in light of Lassiter v. Department of Social Services, 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981). Following Lassiter, the Rael court determined whether the due process clause entitled the indigent to appointment of counsel by weighing the private interest at stake, the risk that without appointed counsel the court would arrive at an erroneous decision, and the government’s interest in avoiding the appointment. 642 P.2d at 1102.
The court first stated that Rael would lose his personal liberty only if it were shown that he had the ability to comply with the order for support and failed to do so. That is also the law in this state, as held in Teefey, 533 S.W.2d at 566[6, 7], and State ex rel. Stanhope v. Pratt, 533 S.W.2d 567, 575[2] (Mo. banc 1976).
The Rael court next pointed out that there was only slight risk that erroneous decisions would result unless counsel were appointed, since the legal and factual issues in a contempt hearing for failure to pay child support are generally not complex. The court stated the facts establishing the failure to pay are bookkeeping matters and are rarely subject to substantial dispute. There is even less room for dispute about the amount paid in this case, since any child support payments would be made to the court administrator. The Rael *183court further pointed out the alleged con-temnor is usually capable of making his own presentation concerning his ability to pay and any mitigating circumstances. The court held that the presence of a court-appointed attorney in civil cases would do little to enhance the decision making in most cases and, to the contrary, might inject a heightened adversarial atmosphere into an otherwise informal proceeding.
Finally the Rael court stated the government’s interest in the proceedings is primarily financial, and the expense of appointed counsel and the additional costs in time and money resulting from lengthened proceedings defeat the government’s interest.
The Rael court concluded that when all three factors had been balanced, there was no due process requirement that counsel be appointed in every instance. However, the court recognized that there might be cases in which a person would be deprived of a fundamentally fair hearing if assistance of counsel were not provided. The court concluded that the trial court is in the best position to evaluate on a case by case basis whether or not fundamental fairness would require the appointment of counsel to assist an indigent in presenting his case.
The court in Jolly v. Wright, 300 N.C. 83, 265 S.E.2d 135 (1980), reached the same result as the Rael court. In Jolly the court based its reasoning upon the approach the Supreme Court took in Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), when the Court held that appointment of counsel was not necessary in every case in which the government sought to revoke probation or parole. The Jolly court decided on the basis of Gagnon that the minimum requirements of due process in civil cases may be satisfied by evaluating the necessity of counsel on a case by case basis.
Other cases in accord with Rael and Jolly are Sword v. Sword, 399 Mich. 367, 249 N.W.2d 88[6] (1976), Duval v. Duval, 114 N.H. 422, 322 A.2d 1[3, 4] (1974), and Davenport v. Jailer, City of Memphis, 572 S.W.2d 265[2] (Tenn.App.1978).
I believe the vast majority of civil contempt cases involving the failure to pay child support present a simple and straightforward factual situation in which the alleged contemnor can state his case and adequately present his defense. After all, he may not be sent to jail for civil contempt unless the court finds that he is able to pay the child support. If the court finds he is able to pay, the imprisonment is not punishment for having failed to pay, but is only designed to make him decide to do that which is in his power to do. Because of the coercive rationale of civil contempt, the alleged contemnor’s commitment to jail is not for a definite term. Indeed, as the cases recognize, the civil contemnor carries the keys to the jail in his pocket. Therefore, in most cases the threat to the alleged con-temnor’s liberty is so conditional and the risk of erroneous deprivation of liberty is so slight that the balance weighs against forcing the state to pay for an unnecessary attorney.
On the other hand, in those instances in which the trial judge determines that the issues are complex or novel or that the alleged contemnor is unable to present his defense adequately, fundamental fairness would require the appointment of counsel, and the court has the authority to make the appointment under the due process clause and § 600.042.3(4).
In this case, the trial court acted prematurely in appointing counsel without making a determination of whether fundamental fairness (and hence, procedural due process) requires such an appointment. I would hold that after there has been a determination of indigency in accordance with § 600.086, the court may only appoint the public defender to represent an alleged contemnor in a civil contempt proceeding for failure to pay child support when the court has determined that fundamental fairness requires the appointment of counsel. Only after such a determination would the appointment be authorized by § 600.-042.3(4), which provides that the public defender shall provide legal services to an eligible person when the federal constitu*184tion or state constitution requires the appointment of counsel.
I concur in the result.
. All sectional references are to RSMo (Cum. Supp.1984).