concurring.
I concur because I must. The Court correctly states the current controlling authority.
I find the analysis of Judge White, and Judge Wolff on the issue at the heart of this matter compelling and convincing.1 Judge White sets out the clear principles at tension, and Judge Wolff applies common sense meaning to the words at issue.
I disagree with the controlling cases for a fundamental reason: Article I, Section 11 of the Constitution of Missouri (1945) in simple and clear words, does not allow a criminal conviction for the defendant’s inaction.
Art I Section 11:
That no person shall be imprisoned for debt, except
for nonpayment of fines and penalties imposed by law.
Parse, ignore, and creatively define as we might, a duty to pay child support - as a duty to pay a mortgage - is a debt enforced by Court order. We do not have debtors’ prisons for failure to pay money obligations arising from duties. History should not be so easily forgotten. Execution by Writ of Attachment led to imprisonment for debt, sale of the debtor into slavery, or the cutting of the debtor into pieces proportionate to each creditor’s claim.2
Successive Constitutions of this State, beginning in 1820, have provided that debt is not a crime:
Const. 1820, Art 13 Sectionl7 states: That no ex-post facto law, nor law impairing the obligation of contracts, or retrospective in its operation, can be passed; nor can the
person of a debtor be imprisoned for debt after he shall have surrendered his property
for the benefit of his creditors in such manner as may be prescribed by law.
Const. 1865, Art I Section XXIX states: That Imprisonment for debt cannot exist in this
state, except for fines or penalties imposed for violation of law:.
Const. 1875 Art II Section 16 states:
That imprisonment for debt shall not be allowed, except for the non-payment of fines
and penalties imposed for violation of law.
Const. 1889 Art Section 16 states:
That imprisonment for debt shall not be allowed except for the non-payment of fines
and penalties imposed for violation of law.
The most principled discussion of this issue is the dissent of Judge Bardgett in State ex rel. Stanhope v. Pratt, 533 S.W.2d 567 (Mo.banc 1976).
*161In sum, contempt is available under the limited circumstances set out by Judge Bardgett, Id.; debtors are not criminals given Art I Section 11.3
. State ex rel Michael Sanders v. Hon. Margaret L. Sauer, 183 S.W.3d 238 (Mo.banc 2006).
. William Shakespeare, Merchant of Venice, act IV sc. 1.: Bruce Mann, Republic of Debtors, Harvard University Press, 2002; and see State v. Allison; Imprisonment for Debt in South Dakota, 46 SDL Rev 334 (2001).
. Defendant did not raise Art I Section 11 as a defense; had he a dissent would have been compelled.