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Labarca v. Labarca

Court of Appeals of Missouri, Western District, Fourth Division

September 19, 2017

JOHN C. LABARCA, JR., Respondent,

         Appeal from the Circuit Court of Jackson County, Missouri The Honorable Jack R. Grate, Jr., Judge.

          Before: Mark D. Pfeiffer, Chief Judge, and Victor C. Howard and Karen King Mitchell, Judges.


         Karen LaBarca ("Wife") appeals from the rulings of the Circuit Court of Jackson County, Missouri ("trial court"), entered on each of John LaBarca's ("Husband") three applications to show cause and motions for judgment of contempt filed after the dissolution of their marriage. Because none of the trial court's rulings held Wife in contempt, there is no judgment of contempt for this court to review; therefore, her appeal regarding this issue is dismissed. The trial court's award to Husband of the attorney's fees and expenses he incurred in prosecuting his second contempt motion is affirmed.

         Factual and Procedural History[1]

         Husband and Wife were married in 1993, and separated in 2010. Two children were born of the marriage. In 2010, Husband petitioned for dissolution of the marriage, and the parties entered into a separation and property settlement agreement ("Agreement").

         The Agreement divided the parties' marital real and personal property; set apart the non-marital property; provided for child custody, parenting time, and child support; and provided that Husband pay maintenance to Wife. At the time of the Agreement, Husband and Wife owned three pieces of real property: a house in Blue Springs, Missouri, which would remain the residence of the children, with Husband and Wife alternating weeks residing there; a condominium in Lee's Summit, Missouri, in which Husband and Wife would have the right to reside during the weeks they did not have parenting time with the children; and a condominium in Branson, Missouri, in which Husband and Wife would each have seven days' occupancy annually. Husband and Wife agreed that the three properties would not be sold until both children finished high school or turned nineteen, whichever occurred first, or until Husband or Wife remarried.[2] Husband agreed to pay $3, 000 per month maintenance to Wife, which maintenance would terminate upon the death of Husband or Wife, Wife's remarriage, or thirteen years from the date of the judgment of dissolution, whichever occurred first. The amount of maintenance, but not its duration, could be modified based upon a substantial and continuing change of circumstances. The parties also agreed that if either of them breached the Agreement, the non-breaching party would recover from the breaching party the non-breaching party's attorney's fees and costs in pursuing his or her legal remedies.

         On October 20, 2011, the trial court entered a Judgment of Dissolution of Marriage, which incorporated the Agreement. In July 2013, Wife moved to an apartment in downtown Kansas City, and she and Husband agreed she could take some items from the Blue Springs house. In August 2015, Husband remarried, triggering the Agreement's right of sale of the real property.

         On November 3, 2015, Wife filed a motion for a judgment of contempt, alleging twenty violations of the dissolution judgment by Husband, including failing to pay maintenance, failing to maintain the Blue Springs house, failing to pay the children's expenses, and interfering with her parental rights. On December 1, 2015, Husband filed an application for order to show cause and motion for judgment of contempt, alleging that Wife refused to comply with the remarriage provision of the dissolution judgment that triggers the sale of the real properties by failing to cooperate in the sale of the Blue Springs house and Lee's Summit condominium or to make an offer to purchase the properties. The trial court held a hearing on March 1, 2016, and entered a judgment and order on March 9, 2016, based upon an agreement between the parties:

• the Blue Springs and Lee's Summit marital real property was set aside as the sole and separate property of Husband;
• within forty-eight hours of the entry of judgment, Wife was to sign a quitclaim deed to both properties; thereafter, Husband had the exclusive right to use and possess both properties;
• upon receipt of both quitclaim deeds, Husband was to pay to Wife the sum of $3, 000 for her equitable marital interest in the two properties.

         The trial court determined that the parties' agreement resolved all claims of contempt alleged by both parties, and the court found that neither party was in contempt of the dissolution judgment.

         Husband filed a second application for order to show cause and motion for judgment of contempt on March 4, 2016. Husband alleged that on March 3, 2016, Wife removed property and furnishings from the Blue Springs house without his consent or knowledge, which impaired the functionality of the house and its presentation for sale. He requested that the trial court order Wife to return or compensate him for all furnishings removed from the house and to pay his reasonable attorney's fees. A show cause hearing was scheduled for March 22, 2016. After consulting with the parties in chambers, the trial court gave Wife the option to either return on March 26, 2016, the items she removed from the Blue Springs house or proceed with the hearing. Wife elected to return the items, and the trial court issued an order on March 22, 2016, providing Husband and Wife with specific directives regarding the return of the property Wife removed from the residence. The trial court set a later date for a show cause hearing to evaluate the merits of Husband's second motion.[3]

         The trial court held a show cause hearing on Husband's second motion for contempt on April 6 and 7. The court issued its judgment and order on April 22, 2016, finding that between March 1 and March 5, 2016, Wife removed numerous household goods and personal property from the Blue Springs house without Husband's knowledge or consent in violation of the dissolution judgment. The trial court specifically found Husband's testimony was credible and Wife's testimony was not. The trial court further found that although Wife did not act in good faith and was recalcitrant in taking the property, she substantially complied with the court's March 22 order to return the property and should not be held in contempt of court for her actions. The trial court entered judgment in favor of Husband and against Wife in the amount of $9, 000, representing attorney's fees and costs. The trial court ordered Wife to satisfy the attorney's fees and costs ruling by returning monthly maintenance payments to Husband for the months of May, June, and July of 2016.

         On May 12, 2016, Husband filed a third application for order to show cause and motion for judgment of contempt, alleging that Wife refused to comply with the trial court's April 22 judgment by failing to reimburse Husband the attorney's fees and costs as ordered by the trial court. On May 17, 2016, the trial court entered its order, finding that Wife had continually been recalcitrant in following the court's orders. The court stated that it "sees one alternative remedy to [Wife's] continuing contumaciousness. This Court's last alternative to get its Order enforced is to incarcerate [Wife], and this Court is loath to do that. However, this court will not hesitate to incarcerate [Wife] if necessary." In order to enforce its April 22 judgment against Wife for $9, 000 for Husband's attorney's fees and costs, the trial court relieved Husband of his requirement to pay Wife $3, 000 per month maintenance for June, July, and August of 2016. Based upon this order, the trial court concluded that Husband's third application to show cause was moot.

         That same day, Wife filed a motion for new trial or to amend the judgment, which the trial court denied on July 27, 2016.

         Wife appeals.

         Standard ...

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