Ellington v. Pinkston

CARL R. GAERTNER, Presiding Judge,

dissenting.

In State ex rel. Stanhope v. Pratt, 533 S.W.2d 567 (Mo. banc 1976), Missouri became the last of the fifty United States to authorize the imprisonment for contempt of court of a party who contumaciously refuses to pay a judgment for maintenance or*801dered in a dissolution of marriage decree. In so ruling, the Supreme Court carefully distinguished between a judgment arising out of a business obligation and a judgment for alimony (maintenance) or child support. The rationale underlying Stan-hope is that a judgment for alimony, maintenance, or child support, involves a continuing duty sanctioned by public policy and is therefore “something more than an ordinary debt for money.” Id. at 573. Nothing in Stanhope can be read as extending the exception to the constitutional prohibition against imprisonment for debt, Constitution of Missouri, Art. I § 11, to a failure to comply with provisions of a dissolution decree relating to the division of marital property.

Nevertheless, in Yeager v. Yeager, 622 S.W.2d 339 (Mo.App.1981), this court ruled that “a spouse’s conscious failure to make mortgage payments pursuant to the property provisions of a decree, should be enforced in the same manner as the failure to make maintenance and support payments.” Id. at 343. The court reasoned that the Stanhope principle applied to a decree provision requiring a husband to make mortgage payments upon the family residence because the decree expressly stated this requirement was in lieu of an award of maintenance. Moreover, the continuing nature of paying mortgage installments, similar to the periodic payments of maintenance or support, makes difficult enforcement by conventional procedures such as execution, garnishment, or attachment. Yeager served as the springboard in Haley v. Haley, 648 S.W.2d 890 (Mo.App.1982) and Reeves v. Reeves, 693 S.W.2d 149 (Mo. App.1985) for the extension of the Stan-hope exception to a failure to comply with the provisions of a dissolution decree ordering the payment of money as a part of the division of marital property. In Haley, the husband had frustrated the wife’s attempt to enforce the judgment through execution and garnishment by quitting his job and transferring liquid assets to his son. In Reeves, the decree ordered husband to pay wife $20,000 at the rate of $300 per month and therefore “differs from a money judgment in the usual civil suit.” Reeves, at 150. Both Reeves and Haley leap beyond the specific facts which underlie their respective decisions to a general conclusion that “[cjontempt may be used to effectuate all constitutionally permitted orders contained in a dissolution decree.” Haley at 891; Reeves at 151. Nothing contained in the Supreme Court’s decision in Stanhope supports such a broad conclusion.

Now the majority have taken even a further step by purporting to apply the Stan-hope principle to a final judgment for a specific sum of money entered in a non-dissolution case. We are not concerned with a judgment for or in lieu of maintenance, so public policy issues do not arise. We are not faced with the practical problems of enforcing continuing periodic or installment payments. Furthermore, I perceive a certain anomaly between holding the rules pertaining to the setting aside of a judgment are not applicable because this is not an action to set aside the dissolution decree, and simultaneously holding that the rules pertaining to the enforcement of dissolution decrees are applicable.

Therefore, I dissent.