Brown v. Brown

680 S.W.3d 507

Anna Emealia BROWN, Respondent,

v.Richard Lotman BROWN, Appellant.

WD 84878 Consolidated w/WD 84987

Missouri Court of Appeals, Western District.

OPINION FILED: November 21, 2023

Application for Transfer to Supreme Court Denied December 19, 2023

Appeal from the Circuit Court of Jackson County, Missouri, The Honorable Joel P. Fahnestock, Judge

Anthony W. Bonuchi, Kansas City, MO for appellant.

Samantha Isabel Sader, Kansas City, MO for respondent.

Before Division Three: Lisa White Hardwick, Presiding Judge, Karen King Mitchell, Judge and Cynthia L. Martin, Judge

Cynthia L. Martin, Judge

Richard Lotman Brown ("Ex-Husband") appeals from the trial court’s entry of a contempt judgment and a warrant of commitment following Ex-Husband’s failure to remit to Anna Emealia Brown ("Ex-Wife") an equalization payment ordered by a judgment dissolving the parties’ marriage ("dissolution judgment"). Ex-Wife has filed a motion to dismiss Ex-Husband’s appeal and for an award of sanctions. Finding no error, we affirm the trial court’s contempt judgment and warrant of commitment. Ex-Wife’s motion to dismiss the appeal and for an award of sanctions is denied.

Factual and Procedural History

This appeal concerns a contempt judgment and warrant of commitment entered following Ex-Husband’s failure to remit an equalization payment to Ex-Wife as ordered by the dissolution judgment. Ex-Husband is no stranger to this Court. See Brown v. Brown, 645 S.W.3d 75, 78 (Mo. App. W.D. 2022) (recognizing that Ex-Husband has appeared before this Court four times in a dispute concerning the trusts created by his parents); Brown v. Brown, 620 S.W.3d 257 (Mo. App. W.D. 2021) ("Brawn I") (affirming the dissolution judgment in a per curiam order). Though this appeal does not directly involve a dispute concerning the trusts created by his parents, Ex-Husband has frequently referred to the trusts created by his parents in connection with Ex-Husband’s claim in this case that he is unable to pay the equalization payment ordered by the dissolution judgment.

[1, 2] The procedural history preceding the trial court’s entry of a contempt judgment and warrant of commitment is tortured, but important to describe. The trial court entered a judgment dissolving the parties’ marriage on December 20, 2019, and then entered an amended judgment¹ (the dissolution judgment) on February 13, 2020, to remove the original judgment’s erroneous inclusion of maintenance. The dissolution judgment concluded that all assets identified by the parties were marital property. In the process, the trial court rejected Ex-Husband’s claim that certain property was non-marital, in part because Ex-Husband had repeatedly failed to respond to discovery directed to information and evidence that would support his claim. After dividing the marital assets, the dissolution judgment ordered Ex-Husband to pay Ex-Wife an equalization payment in the amount of $251,325.28 within thirty days of the entry of the dissolution judgment, with simple interest to accrue at a rate of 9 percent per annum.

Ex-Husband filed a notice of appeal from the dissolution judgment on February 19, 2020.² On March 18, 2020, Ex-Wife filed an application for contempt and show cause ("application for contempt") in the trial court. Ex-Wife’s application for contempt argued that Ex-Husband had not remitted the equalization payment to Ex-Wife within thirty days of entry of the dissolution judgment. Ex-Husband filed a motion to stay enforcement of the dissolution judgment and for leave to post a supersedeas bond ("motion to stay enforcement") in the appeal filed with this Court on March 22, 2020. We issued an order on April 1, 2020, granting Ex-Husband leave to file a supersedeas bond in an amount fixed by the trial court in order to stay enforcement of the dissolution judgment. Fourteen days later, the trial court entered an order giving Ex-Husband ten days to submit a $60,000 surety bond (the amount agreed upon by the parties), and ordered that, upon receipt of the surety bond, the trial court would stay enforcement of the dissolution judgment pending appeal. Ex-Husband and Ex-Wife later stipulated that Ex-Husband could satisfy the trial court’s order by depositing $60,000 in an IOLTA account³ created by Ex-Husband’s attorney. Ex-Husband deposited $60,000 with his attorney on April 30, 2020.

In the appeal from the dissolution judgment, Ex-Husband argued, among other things, that the trial court committed error in the division of property, including deeming all assets marital property as a sanction for Ex-Husband’s failure to respond to discovery, and in finding Ex-Wife’s testimony credible as to whether she received discovery responses from Ex-Husband. We affirmed the dissolution judgment in Brown I on February 2, 2021. We denied Ex-Husband’s motion for rehearing or application for transfer to the Supreme Court on March 2, 2021. Ex-Husband then filed an application for transfer in the Supreme Court. While Ex-Husband’s application for transfer was pending in the Supreme Court, the trial court lifted its stay of enforcement of the dissolution judgment on March 23, 2021, and set Ex-Wife’s application for contempt for a hearing. The Supreme Court denied Ex-Husband’s application for transfer on May 4, 2021, and our mandate issued in Brown I on May 5, 2021.

On May 19, 2021, Ex-Husband filed a motion in the trial court seeking either relief from the dissolution judgment or modification of the dissolution judgment pursuant to Rule 74.06(b)(1) or (2)⁴ ("motion for modification"). The motion for modification argued that reconsidering and amending the dissolution judgment was necessary because the trial court’s valuation, and inclusion in the marital estate, of real property that Ex-Husband uses as his home ("Ex-Husband’s home") was either: (a) a result of mistake, inadvertence, surprise, or excusable neglect in that Ex-Wife executed a special warranty deed in April 2009 ("2009 special warranty deed") conveying Ex-Husband’s home to Ex-Husband as his sole and separate property, but failed to disclose the 2009 special warranty deed during the dissolution proceeding; or (b) a result of misrepresentation, fraud, or other misconduct in that Ex-Wife knew or should have known she was a party to the 2009 special warranty deed but nonetheless claimed under oath that Ex-Husband’s home was marital. Ex-Husband further argued in the motion for modification that it was no longer equitable for the dissolution judgment to remain in force because making the equalization payment would result in Ex-Husband not having personal funds to cover his costs of living. In particular, the motion to modify claimed that the combined value of Ex-Husband’s investment accounts had decreased significantly as a result of the economic downturn caused by the COVID-19 pandemic; that Ex-Husband had no other source of income; and that any court-mandated liquidation of his IRA accounts would result in tax penalties totaling approximately $120,000.

Ex-Wife filed an answer and countermotion for sanctions and attorney’s fees ("response to the motion for modification") on May 20, 2021. Ex-Wife asserted that, "[a]fter almost three years of continuous litigation and being denied by the [trial court], the Missouri Court of Appeals Western District, and … the Missouri Supreme Court," Ex-Husband continued to file "frivolous" motions that forced her to incur unnecessary attorney’s fees while simultaneously refusing to pay "a single dime" of the equalization payment ordered by the dissolution judgment. Ex-Wife’s response to the motion for modification asked the trial court to award her reasonable attorney’s fees and costs.

The trial court held a show cause hearing on Ex-Wife’s application for contempt on May 21, 2021. Ex-Wife testified that she had not yet received any portion of the equalization payment ordered by the dissolution judgment. Ex-Husband testified that although he is a beneficiary, he did not have access to accounts owned by the trustee of trusts set up by his parents because the trust documents contain a spendthrift clause. On cross-examination, Ex-Husband testified that although he deposited $60,000 as a supersedeas bond with his attorney to stay earlier enforcement of the dissolution judgment, that money had not yet been paid to Ex-Wife because Ex-Husband’s outstanding legal fees needed to be paid out of the funds. At the conclusion of the hearing, the trial court took the matter under advisement. A later filing by Ex-Husband’s attorney advised that a $45,000 cashier’s check had been delivered to Ex-Wife’s attorney on May 21, 2021, to be applied toward the equalization payment.

On June 3, 2021, the trial court entered an order denying Ex-Husband’s motion for modification of the dissolution judgment. On June 10, 2021, the trial court entered a judgment of contempt ("contempt judgment") finding Ex-Husband in contempt of the dissolution judgment. The contempt judgment found that "[i]t is undisputed [that Ex-Husband] is in contempt of the [dissolution judgment]" in that Ex-Husband admitted that he had not yet paid the equalization payment. The contempt judgment further found that "[n]o credible evidence was presented showing [Ex-Husband] does not have the ability to pay" so that Ex-Husband did not meet his burden to prove that he is financially unable to pay the equalization payment. The trial court further found that an award of attorney’s fees was appropriate as Ex-Husband’s "contemptuous actions" resulted in Ex-Wife incurring attorney’s fees in the amount of $1,628, plus interest at the statutory rate of 9 percent. Finally, the contempt judgment ordered that, "if [Ex-Husband] is unable to purge himself of contempt by 12:00 p.m. on June 23, 2021, this matter is set for sentencing with the possibility of confinement for [Ex-Husband]."

On June 23, 2021, Ex-Husband filed a motion to set aside the dissolution judgment and the contempt judgment ("motion to set aside"). T...