                                            In the
                          Missouri Court of Appeals
                                    Western District

                                                
DEANA LEE DAVIS,                                
                                                   WD77767
                Respondent,                        OPINION FILED: September 15, 2015
v.                                              
                                                
MATTHEW CARY DAVIS,                             
                                                
                 Appellant.                     
                                                
                                                


                 Appeal from the Circuit Court of Cooper County, Missouri
                          The Honorable Robert M. Liston, Judge

                                   Before Division One:
          Cynthia L. Martin, P.J., Joseph M. Ellis, and James Edward Welsh, JJ.


       Matthew Davis appeals the circuit court's "Judgment of Contempt and Enforcing and

Construing Prior Decree" entered against him as a result of his failure to comply with the

judgment dissolving his marriage to Deana Davis. We dismiss the appeal.

                                          Background

       The marriage of Deana Davis ("Mother") and Matthew Davis ("Father") was dissolved on

August 19, 2011. The decree awarded sole physical custody of their two children, Paige (then

18) and Courtney (then 19), to Mother and ordered Father to pay child support of $400 per

month. In addition, Father was ordered to provide health insurance for the children, to pay half

of any uncovered healthcare expenses, and to contribute to the children's college education.
       On September 20, 2012, Mother filed a "Motion to Enforce the Judgment." Mother

alleged that Father had willfully failed to comply with the dissolution decree. In her six-count

petition, Mother sought to: (I) force the sale of the marital residence, (II) distribute the proceeds

from the sale, (III) enter a money judgment for half of an IRA account that had been awarded to

her, (IV) enter a money judgment for Father's liability for the children's college and medical

expenses, including the cost of replacement health insurance, (V) obtain an Order of Contempt to

secure compliance with the requests set forth in Counts I through IV, and (VI) modify the child

support. In his Answer, Father denied all of Mother's allegations but did not raise any

affirmative defenses.

       The circuit court scheduled a hearing on Mother's motion for February 26, 2013. Prior to

the hearing, Mother dismissed her Count VI to modify child support, and the parties reached an

agreement on the sale of the marital residence which led to the dismissal of Counts I and II.

Mother thereafter presented evidence in support of her three remaining claims. The hearing was

suspended pending receipt of a corrected Petitioner's Exhibit 9 (documentation of the children's

college and medical expenses). The matter was re-convened on August 26, 2013, at which time

the court received additional testimony and evidence. In the intervening six months between

"day one" and "day two" of the trial, the marital home was sold and the net proceeds of

$43,089.30 were being held in escrow.1

       On September 27, 2013, the circuit court entered its judgment on the three remaining

counts. As to Count III, the court ordered Father to provide an accounting and sufficient

information to effectuate transfer and the creation of a QDRO as to the IRA and other stocks.

On Count IV, the court found that Father owed Mother a total of $55,570.14 for delinquent

       1
           Under the judgment of dissolution, each party was entitled to half of that amount, or $21,544.65.

                                                           2
support, including $2,350 in past-due periodic child support, $18,004.33 for medical expenses

and replacement medical insurance, and $35,124.75 for the girls' college expenses.2

         As to Count V, the court found Father in contempt for failure to abide by portions of the

dissolution judgment3 and ordered him "committed to the Cooper County Jail," but suspended

that order. The judgment set forth the means by which Father could purge himself of the

contempt4 and gave him until December 31, 2013, either to do so or to "produce a plan for

payment of same within one year thereafter to avoid going to jail."

         On January 24, 2014, new counsel for Father filed a "Motion to Vacate, Reopen, or

Correct the Judgment of Contempt." In it, Father argued for the first time that the children were

emancipated at age eighteen because they failed to submit the documentation required by section


         2
             We recognize that there is an unexplained $91.06 discrepancy in these figures.
         3
           The court apparently found Father in contempt for failure to pay the periodic child support and failure to
provide insurance for the children because the court said that, since the other amounts were not determined until the
entry of the judgment, it would not be appropriate to hold Father in contempt for failure to pay those amounts. The
exact words of the judgment are as follows:

         Judgment construing and enforcing the prior decree as requested by Count III of the petition is
         entered in favor of [Mother] and against [Father] . . . in the amount of [$55,570.14,] which sum is
         inclusive of the unpaid amount of periodic child support ordered. Contempt does not lie for the
         remaining sums because the judgment lacked sufficient certainty and [Mother] was remiss for
         [not] having communicated the costs of medical and education to [Father]. [Emphasis added.]
         4
             Specifically, the judgment stated that Father may "purge himself by doing the following":

                a.   Signing all documents requested by [Mother], and/or the Monarch Title Company, to
                     transfer all of [Father]'s interest in the sum from the sale of the house to [Mother].
                     [Mother] shall thereby receive all of the proceeds from the sale, and shall credit [Father]
                     for his portion [paid] in partial satisfaction of this judgment;

                b.   Requesting transfer of [Father]'s stock, and IRA, including cash redemption, in a sum
                     sufficient to pay the balance of the judgment awarded herein[;]

                c.   Paying the balance of the judgment remaining after the above redemptions and payments,
                     in full to [Mother] on or before December 31, 2013, or produce a plan for payment of the
                     same within one year by that date. [Mother]'s counsel shall notice the case for review of
                     contempt order on the court's January docket and [Father] shall appear this date in the
                     event the Court's judgment remains unpaid.

                                                              3
452.340.5, RSMo Cum. Supp. 2012, for reimbursement of their college expenses. Thus,

according to Father, he did not owe any child support, educational expenses, or medical expenses

that accrued after the children's eighteenth birthdays. Father also alleged that the court erred in

failing to make a finding that he "has the present ability to purge himself of contempt."

       The circuit court heard arguments on Father's motion on April 4, 2014.5 The court

thereafter entered an amended judgment (entitled "Findings and Orders") on April 30th. The

court rejected Father's claims regarding emancipation on the basis that the "first suggestion that

the children were unqualified to continue to receive support after age 18 was first raised in the

after-trial motion filed." The court explained that "[the court] cannot be held to determine an

issue without even a hint or suggestion, much less with a complete dearth of evidence that a

proposition is true." Thus, the court rejected Father's challenge to the support amounts that he

owed but modified its earlier decree as to the conditions for purge, stating:

       With regard to the alleged failure of the Court to make a determination of the
       ability of [Father] to pay the Court ordered sums, the Court did indeed determine
       that money held in escrow from the sale of the parties' home would be available to
       purge his contempt. However the matter was not addressed in the judgment. This
       money was and the Court believes still is available to [Father].

The court ordered Father to "release so much of these funds as necessary to satisfy the judgment

on or before May 26th, 2014 at 9:00 A.M." or "report to the Cooper County jail to serve an

indeterminate sentence or until he shall have purged himself of contempt, sentence to commence

at that same hour and date."

       On May 16, 2014, the circuit court granted Father's motion to fix his appeal bond at

$55,000 and also "reset" Father's deadline either to satisfy the judgment or report to the county

jail to July 25, 2014. On that date, Father appeared before the court and posted an appeal bond in

       5
           This court has not been provided a transcript from that hearing.

                                                           4
the amount of $55,000. As best we can determine from the scant record provided us, there was

no hearing after May 26, 2014, to determine whether Father had purged himself of the contempt

or had the present ability to do so, the court issued no actual order of commitment or warrant of

commitment for Father's arrest, and Father was never incarcerated.

                                             Discussion

       Father raises three points on appeal. His first two points challenge the circuit court's

judgment of civil contempt for his failure to pay his portion of the children's medical and college

expenses. The third point challenges what Father terms the court's "order of commitment."

       Before we address the merits of Father's points, we first must determine whether we have

jurisdiction to entertain them. It is the duty of this court to inquire into and determine its

jurisdiction sua sponte. Relaxation, Inc. v. RIS, Inc., 452 S.W.3d 743, 750 (Mo. App. 2015).

Here, that duty requires us to determine whether the circuit court's judgment is final for purposes

of appeal. See In re Marriage of Crow and Gilmore, 103 S.W.3d 778, 780 (Mo. banc 2003). If a

judgment of contempt is not final, "this Court lacks jurisdiction and must dismiss the appeal." Id.

       With this in mind, we begin our analysis with Point III. There, Father contends that

"[t]he trial court erred in entering its order of commitment and directing that Father be held in the

Cooper County Jail and that he had the present ability to pay $55,580.14 by May 26, 2014."

       In a case, such as this, where a noncustodial parent is not paying the child support

ordered in a dissolution judgment, the custodial parent must take some action to enforce the

judgment. See 21 Mo. Prac., Family Law § 14:14 (3d ed. 2008). "One such enforcement

mechanism is an action for civil contempt." Id. The purpose of civil contempt is to "benefit a

party for whom an order, judgment, or decree was entered" by coercing compliance with the

relief granted. Crow, 103 S.W.3d at 780.

                                                  5
         A party establishes a prima facie case for civil contempt by proving: (1) that the

contemnor has an obligation to pay a specific amount or perform an action as required by the

court's judgment, and (2) that the contemnor failed to meet this obligation. See Lyons v. Sloop,

40 S.W.3d 1, 10-11 (Mo. App. 2001). Once a prima facie case is established, the alleged

contemnor "bears the burden of proving that he is financially unable to pay and that the inability

to pay is not the consequence of his own intentional and contumacious conduct." Id. at 11. If the

contemnor is unable to satisfy that burden, the court may issue a judgment of contempt. A party

held in civil contempt may then (1) purge himself of the contempt by complying with the trial

court's order (making the case moot and unappealable), or (2) appeal the judgment of contempt

once it becomes final. Emmons v. Emmons, 310 S.W.3d 718, 722 (Mo. App. 2010); see also

Carothers v. Carothers, 337 S.W.3d 21, 24 (Mo. banc 2011).6

         The question of when a civil contempt judgment becomes "final" for purposes of appeal

was definitively addressed by our Supreme Court in Crow, 103 S.W.3d 778, and, more recently,

in Carothers, 337 S.W.3d 21. As explained in those cases, a civil contempt order is interlocutory

when it is entered and "is not final until it is 'enforced.'" Carothers, 337 S.W.3d at 24; Crow,

103 S.W.3d at 781. When "enforcement" occurs depends upon the remedy. Crow, 103 S.W.3d

at 781. If the remedy is imprisonment, the traditional rule is that the contempt order is

"enforced" when there is "actual incarceration pursuant to a warrant [or order] of commitment."7

Id. (emphasis added). At this point, the Court explained, "the [interlocutory] contempt order


         6
          Although not expressly enumerated as "appealable" in section 512.020 (the statute that governs the right of
appeal in civil actions), our Supreme Court has consistently recognized the right to appeal a judgment of civil
contempt once it is final. See, e.g., Carothers, 337 S.W.3d at 24; Teefey v. Teefey, 533 S.W.2d 563, 565 (Mo. banc
1976); State ex rel. Chicago, B. & Q. R. Co. v. Bland, 88 S.W. 28 (Mo. banc 1905).
         7
         When the remedy is the imposition of a fine, enforcement occurs "when the moving party executes on the
fine." Crow, 103 S.W.3d at 781.

                                                         6
changes from mere threat to 'enforcement,' and becomes final and appealable." Id. at 782 (citing

Rule 81.04(a); § 512.050, RSMo 2000).

         In order to incarcerate the contemnor, the circuit court must issue both a judgment of

contempt and a proper order of commitment.8 See Bruns v. Thomas, 919 S.W.2d 302, 303-04

(Mo. App. 1996); Owsley v. Owsley, 693 S.W.2d 897, 899 (Mo. App. 1985). Both the judgment

of contempt and the order of commitment must contain a "recital of the particular facts and

circumstances that constitute the contempt" and a declaration of the "conditions to be met to

purge the contempt." Brown v. Brown, 670 S.W.2d 167, 170 (Mo. App. 1984). A contempt

judgment or commitment order that fails to set forth facts and circumstances constituting the

offense, but merely states legal conclusions, is insufficient to support a commitment. Bruns, 919

S.W.2d at 303. This is because the contemnor is his own jailer, and the judicial declaration of

facts informs him of conditions to be met to purge the contempt and thereby set himself free of

the commitment. Brown, 670 S.W.2d at 170. In addition, in order to support a civil contempt

commitment, the court "must make a finding that the contemnor has the present ability to purge

himself of the contempt and thereby has the key to the jailhouse door." Lyons, 40 S.W.3d at 12.

         Based on the foregoing, it is clear that the civil contempt judgment in this case remains

interlocutory, in that it has never been enforced either via a warrant of commitment or actual

confinement. Despite Father's assertion that the circuit court erred in entering an "order of

commitment," as best we can determine from the record provided, no order of commitment was

ever issued by the circuit court. There is not one included in the record on appeal,9 and we do


         8
             For an example of a warrant of commitment, see Mo. Remedies § 9.56 (MoBar 2006).
         9
         The appellant is responsible for filing the record on appeal, which "shall contain all of the record,
proceedings and evidence necessary to the determination of all questions to be presented." Rule 81.12(a),(c).

                                                          7
not find reference to one in the court's docket entries. Thus, although the contempt judgment

contained a threat of incarceration, no warrant of commitment to jail was ever entered. As

explained in Crow (another case where no order of commitment was issued), until incarceration

is ordered and acted upon, the contempt order is not "enforced," and remains interlocutory and

unappealable. 103 S.W.3d at 782.

       Crow also confirms that the posting of an appeal bond does not change that. In Crow,

after the "purging period" had passed, the circuit court approved a supersedeas appeal bond by

the husband, but the Supreme Court explained:

       Posting a supersedeas appeal bond does not enforce a contempt order. Rather,
       as Husband admits, it stays enforcement of a judgment while an appeal is
       pending. Here, the contempt order is not yet appealable. A bond staying an
       unappealable contempt order has no effect.

Id. (citing Rule 81.09(a); § 512.080, RSMo 2000).

       In this case, Father appeared before the court on July 25, 2014, and posted an appeal

bond in the amount of $55,000 purportedly to secure his release. However, as stated, there is no

indication that the court issued a warrant of commitment for Father's arrest, and there is no

indication that Father was ever incarcerated. Thus, here, as in Crow, the unenforced contempt

judgment is not final and appealable, and Father's appeal must be dismissed. See id. at 780-82 (if

a contempt judgment is not final, "this Court lacks jurisdiction and must dismiss the appeal").

       Based on the foregoing, we find that the judgment of contempt in this case is not final for

purposes of appeal. We dismiss the appeal.



                                                     /s/ JAMES EDWARD WELSH
                                                     James Edward Welsh, Judge

All concur.

                                                 8
