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.
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.
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
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.
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.
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