In Re the Marriage of:                       )
DANA R. BOOKER and                           )
JAMES D. BOOKER,                             )
                                             )
DANA R. BOOKER,                              )
          Petitioner-Respondent,             )       No. SD34213
                                             )       Filed: September 29, 2016
v.                                           )
                                             )
JAMES D. BOOKER,                             )
                                             )
               Respondent-Appellant.         )


         APPEAL FROM THE CIRCUIT COURT OF CRAWFORD COUNTY

                        Honorable Kelly W. Parker, Circuit Judge

APPEAL DISMISSED

       James Booker (Husband) appeals from a judgment of contempt and order of

commitment for failing to make payments to Dana Booker (Wife) as required by the

parties’ October 2012 dissolution decree (the decree). For reasons that follow, we conclude

this case is moot and dismiss the appeal.

       The decree ordered Husband to make certain payments and comply with other

terms within 180 days. Husband did not do so. In mid-May 2013, Wife filed a motion for
contempt for failure to perform the terms of the decree. In August 2015, the court

conducted a hearing on the contempt motion and received testimony from both parties.1

       On September 9, 2015, the trial court filed its judgment of contempt and order of

commitment (the contempt judgment). The contempt judgment contained a specific

finding that Husband had the present ability to satisfy the terms of the decree.2 The court

determined that Husband was in contempt of the decree, but the order of commitment was

stayed to allow Husband to purge himself of the contempt by paying the sum of

$125,252.59 by November 10, 2015.3 The court further ordered:

       If [Husband] fails to do so, he shall report to the Crawford County Jail at
       9:00 a.m. on November 10, 2015 where he is ordered committed until such
       time as he shall purge his contempt as set forth herein. If [Husband] fails
       to report, a writ of body attachment shall be issued without further notice to
       [Husband]. [He] shall remain in the Crawford County Jail until he pays
       $125,252.59 to [Wife]. [Husband] may purge his contempt herein by other
       suitable arrangement with [Wife] approved by the court.

       Husband failed to pay the first sum by November 10, 2015 and a hearing was held

that same day. The court ordered Husband committed to the Crawford County Jail until

such time as he purged himself of his contempt. The court also set bond at $125,252.59,

the amount he should have paid by November 10, 2015. Husband was incarcerated as of

that date. He filed his notice of appeal from the contempt judgment on November 12, 2015.



       1
         The delay between the filing and hearing of the contempt motion was due, in part,
to Husband’s bankruptcy filing. In that proceeding, he attempted to have his obligations
to Wife under the decree discharged. The bankruptcy court denied Husband’s request for
a discharge of those obligations.
       2
          The court found that Husband “never intended nor attempted to satisfy any part
of [the decree and] has no intention of voluntarily paying any part of [the decree] in the
future.” Husband’s testimony that he did not have the ability to comply with the decree
was described as “unconvincing” by the court.
       3
           Husband also was ordered to pay $246,141.98 by March 22, 2016.
                                             2
       On December 4, 2015, Husband filed a “Motion to Modify Excessive Bond

Conditions” (motion to modify) with the trial court. Therein, Husband requested his

“release from incarceration[,]” provided he comply with several proposed conditions “for

purposes of satisfying [the contempt judgment.]” On December 7, 2015, the court granted

Husband’s motion to modify by docket entry. The court ordered that Husband be released

from incarceration “on condition that [Husband] fully comply with all conditions and

agreements set forth in his [motion to modify.]” The docket entry specified:

       The court orders the Circuit Clerk to pay out the $5,000.00 posted by
       [Husband] to [Wife] and her attorney.[4] As further condition [Husband]
       has agreed that paragraph 17 of the [motion to modify] be amended to
       require [Husband] to cause to be sold the real estate located at 3958 Hwy.
       19, Cuba, MO. [Husband] shall pay over to [Wife] any sums realized by
       the sale of said real estate. As a further condition of the stay herein, the
       court orders [Husband] to cause a wage withholding to be in effect in
       accordance with paragraph 25A, B, and C [concerning payments on real
       estate until sold and on a loan from his pension plan] of his [motion to
       modify]. Qualified Domestic Relations Order concerning [Husband’s
       401(a)] is signed and filed this date.

        Husband was released from incarceration December 7, 2015. Subsequent docket

entries list payments and compliance with the conditions as ordered in the above docket

entry. Husband’s continued prosecution of this appeal followed.

       Presenting three points for decision, Husband challenges certain findings made by

the trial court in the contempt judgment. Wife argues, inter alia, the appeal is moot because

Husband is currently making the payments he proposed and purging himself of contempt.

We agree with Wife that this appeal is moot.




       4
          As an initial effort to satisfy the contempt judgment, Husband’s attorney had
deposited $5,000 into the registry of the court on December 1, 2015, while Husband was
incarcerated.
                                             3
       An appeal is moot when the question presented for determination would not have

any practical effect upon an existing controversy. State ex rel. Reed v. Reardon, 41 S.W.3d

470, 473 (Mo. banc 2001).      In deciding whether a case is moot, an appellate court is

allowed to consider subsequent events and matters outside the record. Reardon, 41 S.W.3d

at 473; Medlin v. RLC., Inc., 194 S.W.3d 926, 930 (Mo. App. 2006).

       “As a general rule, when a party voluntarily pays a judgment, the party may not

appeal from that judgment.”     In Re Bell, 481 S.W.3d 855, 867 (Mo. App. 2016); see

Braveheart Real Estate Co. v. Peters, 157 S.W.3d 231, 233-34 (Mo. App. 2004) (voluntary

compliance effectively concedes the correctness of the judgment, thereby rendering the

appeal moot). This general rule applies to a contempt judgment. In Mozingo v. Mozingo,

779 S.W.2d 284 (Mo. App. 1989), the husband was found in contempt for failure to comply

with a dissolution decree. “He was committed to jail, but was later released, and complied

with the decree. On his complying with the court’s order the judgment finding him in

contempt became moot and is unappealable as he had purged himself of contempt.” Id. at

285. As noted in Hamilton v. Hamilton, 661 S.W.2d 82 (Mo. App. 1983), the submission

of an approved payment plan to purge a party of contempt also renders an appeal from a

contempt judgment moot. Id. at 83.

       One alternative provided in the contempt judgment for Husband to purge himself

was “by other suitable arrangement with [Wife] approved by the court.” At Husband’s

request, the court modified the bond conditions to allow Husband to purge himself of

contempt. Subsequent docket entries demonstrate that Husband has been making payments

and complying with the conditions he proposed. Because Husband is voluntarily satisfying

the contempt judgment and purging himself of contempt, his appeal from the contempt

judgment is moot. See Zweifel v. Zweifel, 431 S.W.3d 559, 560-61 (Mo. App. 2014)

                                            4
(because husband purged himself of the contempt by complying with the contempt

judgment, that judgment is “not appealable”); STL Capital Mgmt., LLC v. Brda, 207

S.W.3d 649, 652 (Mo. App. 2006) (because appellants complied with the contempt

judgment, their appeal was moot); Vinson v. Vinson, 191 S.W.3d 85, 87 (Mo. App. 2006)

(because wife complied with the contempt judgment, her appeal was moot); Lieurance v.

Lieurance, 111 S.W.3d 445, 446 (Mo. App. 2003) (party purging himself of contempt by

complying with the court’s order makes “the case moot and unappealable”); Brock v.

Brock, 936 S.W.2d 882, 888-89 (Mo. App. 1997) (although wife was found in contempt

and jailed for failure to execute documents as required by the dissolution decree, her appeal

was moot because she purged herself of contempt by signing the documents after her

release from jail).5   Accordingly, Husband’s appeal from the contempt judgment is

dismissed as moot.

JEFFREY W. BATES, P.J. – OPINION AUTHOR

DON E. BURRELL, J. – CONCUR

MARY W. SHEFFIELD, C.J. – CONCUR




       5
          We find no merit in Husband’s two contrary arguments that: (1) his payments
are involuntary; and (2) his payment plan also functionally operates as a per diem fine.
“Satisfying a judgment to avoid a finding of contempt does not render payment
involuntary.” Bell, 481 S.W.3d at 867 n.14; Braveheart, 157 S.W.3d at 234; see also
Southern Mo. Dist. Council of the Assemblies of God, Inc. v. Kirk, 334 S.W.3d 599, 603
(Mo. App. 2011). Husband is voluntarily making payments to Wife in accordance with a
schedule that he proposed and the court approved. We also reject the notion that Husband’s
payments to Wife to satisfy monetary obligations imposed by the decree constitute a per
diem fine. Husband’s motion to modify, his subsequent payments, and compliance with
his own proposals all show he is voluntarily doing these things, in his own words, “for
purposes of satisfying [the contempt judgment]” against him.
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