Family Law

Editor:
John W. Dennis, Jr., Esquire

Waiver of right to counsel in civil contempt proceeding reversed where waivers do not appear in trial court transcript. Carothers v. Carothers, No. 91160 (Mo. banc, May 17, 2011), Wolff, J.

The parties were divorced in 1993. The Mother owed Father child support, and a Show Cause Order was issued upon Father's request that Mother be found in contempt. At both court appearances the Mother appeared pro se. After trial the Mother was found in contempt and ordered to be incarcerated until she purged herself of contempt.The trial court's judgment notes that Mother waived her right to counsel, but that waiver does not appear in the trial court transcript. The Mother appealed the judgment.

Held: Reversed.
"The contempt defendant similarly must be informed of what is being alleged, the possible consequences of the contempt proceeding, the nature of trial proceedings in a contempt proceeding and what the defendant is giving up by waiving the right to counsel. See generally Hunt v. Moreland, 697 S.W.2d 326, 329 (Mo. App. 1985)."

"The judge and any counsel present for an opposing party should ensure that a party is advised on the record of his or her right to counsel and make sure that any waiver of this right is made on the record."

Concurring Opinion:
This opinion agrees with the aforestated principle. However, the question of when a contempt judgment is appealable should be straightforward - upon incarceration for contempt, not also when the trial court "takes evidence" to see if the contempt has been purged and a new warrant of commitment is issued. The majority opinion finds both to be appealable.

Amended judgment in dissolution case issued after 90 days from entry of original judgment vacated/dismissed as moot. In re: Marriage of Noles, No. 30662 (Mo. App. S.D., June 2, 2011), Burrell, J.

After a trial in this dissolution case, the court entered judgment on February 19, 2010, based on a memorandum the court had issued directing the terms and preparation of a judgment entry. The Father had filed a motion for reconsideration or for new trial before actual entry of judgment, which was treated as timely filed by the court of appeals. Oral argument was heard on the motion on May 5th and the court sent a letter indicating the Father's motion was granted and directed the terms and preparation of an amended judgment. On May 21st, the court entered the amended judgment. The Mother appeals on several bases. The court of appeals examined, sua sponte, its jurisdiction.

Held: Amended Judgment Vacated/Appeal Dismissal as Moot.
Rule 78.06 and 81.05(a)(2)(B) provide for three means by which a timely ruling of this post-judgment motion may occur. First, by explicitly denying the motion (which did not occur). Second, by taking no action on the post-judgment, it is deemed denied 90 days after its filing (which is not applicable here.) Third, the issuance of an amended judgment within the 90 days after filing the post-judgment motion. This amended judgment was not filed within the applicable  90  days. The court's letter announcing its decision to grant the motion and issue an amended judgment was ". insufficient to `rule' on a motion to amend judgment for purposes of Rule 78.06 and . the only way to properly reconcile the meaning of `rule on' as set forth in rules 78.06 and 81.05 (a)(2)(B) is to hold," the Father's motion was deemed overruled after the 90th day passed from entry of the original judgment. The court was without jurisdiction to amend the judgment thereafter. The Missouri Bar Courts Bulletin, 11-Jul