Ex-spouse sues for contempt in a second case to hold their former spouse in contempt for a violation that existed at the time of a prior case between the parties. Is the second action barred by Missouri’s doctrine of res judicata since the violation had already occurred by the time of the first case?
The Eastern and Western Districts of the Missouri Court of Appeals have decided this question differently but the two cases may turn on whether the party in contempt had the ability to pay and purge the contempt at the time of the first contempt motion. In one case (Foster) the party in contempt may well have had the ability to pay for his contemptuous actions at the time of the first case, while the contemptuous party in the other case (Walton) definitely lacked that ability at first. The Western District of the Missouri Court of Appeals ruled in Walton v. Walton, 789 S.W.2d 64 (Mo. Ct. App. W.D. 1990), that the petitioner may press forwards in the second case to recover for contempt that occurred before judgment in the first case. Compare the Eastern District’s holding that the relief sought in a second contempt case is partially barred by res judicata in Foster v. Foster, 39 S.W.3d 523 (Mo. Ct. App. E.D. 2001).
In Walton, the trial court first ruled on a contempt motion in the parties’ divorce case that the husband was in contempt of court for not paying maintenance but decided not to confine him for failure to pay temporary maintenance while the divorce case was pending. The decision implies that at the time of the second contempt action (in part to recover the same unpaid maintenance and attorney fees), the husband’s ability to pay had increased to the point where he could purge the contempt. This situation seems to reoccur frequently in Missouri as courts decline to hold a guilty spouse in contempt due to financial or practical concerns. Recognizing these circumstances, the Western District affirmed the trial court’s decision to jail the husband for his failure to pay maintenance and attorney fees he now had an ability to pay.
Walton finds some support outside Missouri. After considering the practical ramifications that flow from swings in the “violating” party’s financial ability to pay, the Supreme Court of Georgia approved a trial court’s refusal to apply res judicata in such a contempt case. Beach v. Beach, 224 Ga. 701, 164 S.E.2d 114 (1968). Pointing out that such a contempt proceeding was “merely one method of enforcing [the divorce judgment],” that court observed that contempt proceedings do not change the original judgment they seek to enforce, “but only imposed terms under which he could purge himself of the charge of contempt.” Since the former wife had not yet recovered the monies originally awarded her in the divorce judgment, the trial court correctly permitted her to seek that relief again in the second contempt case. 224 Ga. at 702-703. “This principle [res judicata] is not applicable to the facts of the present case.” The Western District’s decision in Walton resembles at of the Georgia Supreme Court in Beach.
The Eastern District’s decision in Foster is less forgiving. There the Eastern District partially reversed the trial court, taking away on appeal the former wife’s recovery for her cost of health insurance (that husband had been ordered to provide at his expense) as the premiums that accrued prior to the date of the judgment on her first contempt motion, in which she claimed the same damages but then deferred to be asserted at a later date, the second contempt motion being filed 20 months later. The Eastern District simply applied standard res judicata principles to the situation in Foster without mention of the husband’s ability to pay for the damages caused by his violation of the divorce court’s judgment.
Foster comes across as rigid. It makes little room for situations where the violating party acted in contempt of the court’s order but lacks the ability to pay, and therefore cannot be jailed to force payment. Fairness should afford the damaged party opportunity to refile for contempt and recover those same damages when the violation party’s gains the ability to pay as of the time of the second case. So long as there is no double recovery, no unfair prejudice results to the violating party who did not have the ability to pay the first time around.
Perhaps the key to both cases is the violator’s ability to pay–the ex-husband in Foster having the ability to pay during the first contempt case and former wife filing multiple contempt cases without good cause, versus Walton where the husband could not pay in the first case but could at the time of the second for contempt.
And while change in finances may be one circumstance that would cause a court not to apply res judicata where there are multiple contempt motions, other changes of circumstances could have the same effect. For instance, where a party has hidden or stolen property awarded to the other spouse but this is not discovered until after the first contempt motion; or if jailing the former spouse for not paying a credit card debt would cost him his job and make him unable to pay child support; or where the court looks at the contempt as a relatively minor violation not worthy of a commitment order; or if the property the contemnor took is first said to be “stolen” until found after the first contempt case; or if the judge simply dislikes putting folks in jail for not following the letter of the judgment.
Res judicata and contempt motions are just not a good fit.
Kurt H. King
Law Office of Kurt H. King, 20 E. Franklin, Liberty, Clay County, Missouri 64068
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