author: HOLMAN, Judge. BARDGETT, Judge

text:
    Shirley Dee TEEFEY, Plaintiff-Respondent, v. John J. TEEFEY, Defendant-Appellant.
    No. 59278.
    Supreme Court of Missouri, En Banc.
    March 8, 1976.

      John J. Teefey, pro se.
    Robert Frager, John R. Caslavka, Kansas City, for respondent.
   HOLMAN, Judge.

The plaintiff in this action obtained a decree of dissolution of marriage in April, 1974, and appellant (hereinafter referred to as defendant) was ordered to pay the sum of $300 per month as support and maintenance for plaintiff and their minor children. In October, 1974, the prosecuting attorney at the request of plaintiff instituted proceedings under Section 452.345 to cite defendant for contempt because of his failure to pay $1,250 of said maintenance. On February 5, 1975, the court sustained a motion to modify and the monthly payments were reduced to $250.

Section 452.345 relates to payment of maintenance and provides, in part, as follows:

“4. If a party fails to make required payment, the circuit clerk shall send by registered or certified mail notice of the arrearage to the obligor. If payment of the sum due is not made to the circuit clerk within ten days after sending notice, the circuit clerk shall certify the amount due to the prosecuting attorney. The prosecuting attorney shall, with the consent of the obli-gee, promptly initiate contempt proceedings against the obligor.
“5. The prosecuting attorney shall assist the court on behalf of a person entitled to receive maintenance or support in all proceedings initiated under this section to enforce compliance with the order.”

On October 7,1975, the contempt application was heard with defendant appearing without counsel (as he has in this court) and he was found guilty of indirect criminal contempt. Under the authority of Section 476.120 the court sentenced defendant to 90 days imprisonment in jail with the proviso that, “After • serving 6 days, he is to be released from custody on probation for one (1) year, under the supervision of the Prosecuting Attorney, on condition he make future payments regularly, and make up ar-rearage in accordance with a schedule provided by the Prosecuting Attorney. If employed he may be given work release privileges.” Defendant filed a timely notice of appeal.

Plaintiff’s counsel promptly filed a motion to dismiss the appeal based on the contention that no appeal may be taken from a conviction of criminal contempt. We ordered that motion taken with the case and it is now our duty to decide it.

It is well settled in this state that a conviction for criminal contempt may not be reviewed by appeal. Ex Parte Howell, 273 Mo. 96, 200 S.W. 65 (1918). It is equally clear that in this state and elsewhere a party may appeal from a conviction for civil contempt. See Anno. 33 A.L.R.2d 448, 508, State ex rel. Chicago B. & Q. R. Co., v. Bland, 189 Mo. 197, 88 S.W. 28 (1905), Oliver v. Orrick, 220 Mo.App. 614, 288 S.W. 966 (Mo.1926), Threlkel v. Miles, 320 Mo. 1140, 10 S.W.2d 953[7] (1928), and Republic Engineering and Mfg. Co. v. Moskovitz, 393 S.W.2d 78 (Mo.App.1965).

It accordingly appears that the decision on the motion to dismiss depends upon a determination of whether the instant contempt may be said to be civil or criminal. In that connection we think that the fact that the trial court designated this as criminal contempt does not necessarily make it such.

We are mindful of the provisions of Section 476.110 which are, in part, as follows:

“Every court of record shall have power to punish as for criminal contempt persons guilty of .
“(3) Willful disobedience of any process or order lawfully issued or made by it; . ” If this provision is construed literally it would likely apply to all contempts and would have resulted in abolishing civil contempt in this state. We do not think that this statute was intended by the legislature to apply to the failure to obey every type of order made by a court. We have accordingly concluded that the type of contempt here involved should be determined by general rules and the decision law in this state.
“Criminal contempt proceedings are generally held to be in the nature of criminal or quasi-criminal proceedings. They are punitive in nature, and the government, courts, and people are interested in their prosecution. Their purpose is to preserve the power and vindicate the authority and dignity of the court, and to punish for disobedience of its orders. .
“A criminal contempt proceeding is generally held to be independent of the cause out of which the alleged contempt arose, although it is dependent for its foundation on the proceedings in such cause, .
“Civil contempt proceedings are generally held to be remedial and civil in their nature; that is, they are proceedings for the enforcement of some duty, and essentially a remedy for coercing a person to do the thing required. As otherwise expressed a proceeding for civil contempt is one instituted to preserve and enforce the rights of a private party to an action and to compel obedience to a judgment or decree intended to benefit such a party litigant. So a proceeding is one for civil contempt, regardless of its form, if the act charged is wholly the disobedience, by one party to a suit, of a special order made in behalf of the other party, and the disobeyed order may still be obeyed, and the purpose of the punishment is to aid in an enforcement of obedience. . ” 17 C.J.S. Contempt § 62(5)(6), pp. 154 to 158 inclusive.

We approve of the statement that, “ . . . Contempts fall into two categories, civil and criminal. Although at times the line is hard to draw, the essential difference lies in who is sought to be protected by the contempt proceeding. Civil contempt is for the protection of a party to the litigation, the party for whose benefit the order, judgment or decree was entered. Its function is to provide a coercive means to compel the other party to the litigation to comply with relief granted to his adversary. The civil contemnor has at all times the power to terminate his punishment by compliance with the order of the court—i.e.: purging. Gompers v. Bucks Stove and Range Co., 221 U.S. 418, l.c. 441 et seq., 31 S.Ct. 492, 55 L.Ed. 797.

“[2] Criminal contempt on the other hand does not serve the function of aiding a litigant in achieving the relief granted but is for the purpose of protecting the dignity of the court and, more important, to protect the authority of its decrees. The thrust of criminal contempt is the intentional interference with the judicial process and the demonstrated refusal to be bound by judicial determinations. Gompers v. Bucks Stove and Range Co., supra, In re Reese, 10 Cir., 107 F. 942. The power of criminal contempt springs not from the needs to protect a litigant, but from the inherent power of the courts to protect the judicial system established by the people as the method for solving disputes. Without this power courts are no more than advisory bodies to be heeded or not at the whim of the individual.” Mechanic v. Gruensfelder, 461 S.W.2d 298, 304, 305 (Mo.App.1970).

Criminal contempts are sometimes referred to as direct while civil contempts are described as constructive or indirect. Some cases clearly have elements of both civil and criminal contempt. While most contempts arising from matters not transpiring in court are considered civil there are some cases involving affirmative defiance of a court order which are properly classified as criminal. See Curtis v. Tozer, 374 S.W.2d 557 (Mo.App.1964).

We have concluded that proceedings under Section 452.345 should be classified as civil contempt. It appears very clear to us that those proceedings are provided for the benefit of the party entitled to collect maintenance. Under the general rules heretofore quoted this would cause the classification to be civil. See also, State ex rel. Chicago B. & Q. R. Co. v. Bland, supra, Odom v. Langston, 358 Mo. 241, 213 S.W.2d 948 (1948), and Chicago B. & Q. R. Co. v. Gildersleeve, 165 Mo.App. 370, 147 S.W. 836[3] (1912). We do not think the fact that the circuit clerk and prosecuting attorney are given certain duties by the statute would change the situation as the performance of such are obviously to aid the party entitled to receive maintenance.

The foregoing indicates our view that the contempt is civil and is accordingly subject to review on appeal. We also think that pending the appeal the appellant should be permitted to furnish bail which, of course, should be fixed at a reasonable amount according to the circumstances. See Chicago B. & Q. R. Co. v. Gildersleeve, supra, and Schnabel v. Schnabel, 179 Misc. 620, 39 N.Y. S.2d 972 (1943). The motion to dismiss the appeal is overruled.

The principal point briefed is that the judgment is void because it violates Art. I, Sec. 11, Mo.Const., which provides that no person shall be imprisoned for debt. The case of Coughlin v. Ehlert, 39 Mo. 285 (1866) which held that a judgment providing for imprisonment for contempt for failure to pay alimony was invalid because of said constitutional prohibition has been overruled by this court in the case of State ex rel. Stanhope v. Pratt, 533 S.W.2d 567, decided concurrently herewith. This contention is accordingly ruled against defendant.

We have concluded, however, that the judgment must be reversed because of a failure of proof. Before ordering imprisonment trial courts should be convinced that the person is financially able to make the required payment or that he has intentionally and contumaciously placed himself in a position so that he could not comply with the court’s orders. While it appeared that defendant was engaged in the “flower business” there was no evidence concerning his assets, income, or his expenses. In other words, there was no evidence from which the trial court could have concluded that he was financially able to pay the award. The question as to which party has the burden of proof in that regard has not been briefed and we do not elect to decide it in this case. It is sufficient to say that in this case where defendant appeared without counsel and offered himself as a witness that someone should have examined him concerning his assets, income, expenses, etc. If considered necessary we rely on plain error Rule 84.-13(c) in so ruling.

We recognize that if defendant owes any substantial amount of maintenance at the time of this decision that further contempt proceedings will likely be initiated. For that reason, in the interest of judicial efficiency, we will not reverse outright but will remand so that further proceedings may be had if plaintiff so desires.

Accordingly, the judgment is reversed and the cause remanded.

HENLEY, FINCH and DONNELLY, JJ., concur.

BARDGETT, J., concurs in part and dissents in part in separate opinion filed.

SEILER, C. J., and MORGAN, J., concur in part and dissent in part as per separate opinion filed by BARDGETT, J.

BARDGETT, Judge

(concurring in part and dissenting in part).

I concur in the holding that proceedings for contempt under section 452.345 are civil and not criminal. I dissent from that part of the opinion that says, “Before ordering imprisonment trial courts should be convinced that the person is financially able to make the required payment or that he has intentionally and contumaciously placed himself in a position so that he could not comply with the court’s orders.” (Emphasis mine.)

In my opinion, the word “or” should be “and”. The evidence as to whether the party intentionally placed himself in a position where he could not comply with the maintenance award as it became due is proper as it goes to the reason for nonpayment. That is to say, it would show the failure to pay when due was not accidental, negligent, or due to inability. But, before the court can imprison to coerce payment, I believe the evidence must show and the court must find that the party charged has the present financial ability to make the payment and refuses to do so. See my dissent in State ex rel. Stanhope v. Pratt et al., 533 S.W.2d 567 (Mo. banc 1976).

Therefore, while I concur in the judgment reversing and remanding the cause, I do not concur in the court’s opinion which allows past ability to pay to be the basis for imprisonment, for past ability does not afford present ability to perform so as to be released from jail.

      . All statutory references are to V.A.M.S.


source: Caselaw Access Project

license: Public Domain

text:
    STATE ex rel. Stanley W. STANHOPE, Relator, v. Honorable Stephen R. PRATT, Judge, Circuit Court of Clay County, Respondent, and Honorable John C. Danforth, Attorney General of Missouri, Intervenor.
    No. 59145.
    Supreme Court of Missouri, En Banc.
    March 8, 1976.

      W. Harrison Norton, Kansas City, for relator.
    Vincent F. Igoe, Jr., Liberty, for respondent.
    Karen M. Iverson, Asst. Atty. Gen., Jefferson City, for intervenor.
   HOLMAN, Judge.

This is an original proceeding in prohibition in which relator seeks to prevent respondent judge from ordering that he be committed to jail for contempt because of his failure to comply with an order to pay alimony to his former wife. When the petition was first considered we concluded that the facts were not sufficiently disclosed. This court accordingly entered an order directing respondent to hold a hearing and take evidence on certain issues and report his findings of fact and conclusions of law. Upon consideration of the findings so filed we issued our provisional rule on November 10, 1975. Because the case involves the constitutionality of Section 452.345 enacted in 1973, effective January 1, 1974, the attorney general has been permitted to intervene in order to defend the constitutionality thereof. We have concluded that the provisional rule should be discharged.

In the underlying case the court granted a dissolution of the marriage of Wanda and Stanley W. Stanhope on January 13, 1975. As a part of the decree Wanda was granted judgment for maintenance for $350 per month against relator, the payments to be made to the circuit clerk. He was also ordered to make the payments of about $100 per month on some real estate owned as joint tenants by Wanda, her mother and relator.

From the outset relator failed to make most of the monthly payments for maintenance.

On April 30, 1975, the prosecuting attorney filed a motion for contempt, under § 452.345 in which it was alleged that relator was delinquent in his payments to the extent of $1,100, that the appropriate notice had been given, and prayed for an order to show cause against relator as to why he should not be punished for contempt.

A hearing was held on May 28, 1975, and at the conclusion thereof the respondent indicated that he would find relator guilty of contempt and impose a sentence of 60 days in the county jail and suspend the sentence subject to relator complying with the court’s orders. At the request of relator’s attorney respondent delayed entry of judgment in order to give relator time to seek prohibition.

We have concluded that the respondent’s findings of fact are supported by the evidence and hence we will not set out the testimony heard at the hearings of May 28 and October 16, 1975. In lieu thereof we will set out a large part of the findings and conclusions of the respondent, as follows:

“1. That Stanley W. Stanhope was at the time of filing the Motion for Contempt delinquent in payment of maintenance owed in the amount of $1,100.00.

* ⅜ # sjs * *

“2. That at the time of the October 16, 1975 hearing, Stanley Stanhope was delinquent in payments of maintenance pursuant to Court order in the amount of $2,650.00.

sfc ⅜ ⅜ ⅜ ⅜⅜ ⅝:

“4. That Respondent [Mr. Stanhope was designated as respondent in the trial court] married a Mrs. Carr on February 14, 1975, thirty-one days after the Decree dissolving his marriage to petitioner.

* * * * * *

“6. That Respondent immediately and voluntarily undertook the responsibility of Mrs. Carr and her child.

“7. That Mrs. Carr was and is employed at Krogers as a checker where her annual income is ten to eleven thousand dollars; and that she receives no child support.

“8. That Respondent is and has for over twenty years been employed regularly at Navajo Freight Lines as an over-the-road driver, and is currently sixth of one hundred twenty-seven drivers in seniority.

“9. That during the term of this litigation Respondent was regularly employed; that there was sufficient work at Navajo for him and he had no problems with the availability of work.

“10. That at the time of Dissolution of Marriage, Respondent was driving regularly to Indianapolis, Indiana, such run paying $506.00 per week at that time, and now paying $520.00 per week.

“11. That in February, 1975, Respondent undertook a ‘run’ to Liberal, Kansas, which pays $450.00 per week.

“12. That both the run to Indianapolis and to Liberal go out of the terminal three times per week, although the Indianapolis run is longer and takes more time to perform.

“13. That in March of 1975, Respondent successfully bid the Liberal run and presently holds it, having the availability to earn $450.00 per week gross compensation.

“14. That the Respondent could have maintained the higher paying run to Indianapolis had he chosen to do so.

“15. That Respondent’s year to date gross pay is $11,896.65.

“16. That from this, $3,679.33 has been deducted as follows:

FICA $ 695.94
Federal Withholding $ 2,704.23
State Withholding $ 279.16
$ 3,679.33

“17. That Respondent’s approximate weekly net pay is $230.00 for the year 1975, but would be $300.00, if he made usual runs.

“18. That Respondent’s annual earnings for 1973 and 1974 averaged $20,000.00.

“19. That in 1975 to date, Respondent has missed thirty-four days of employment for ‘sick leave’, although he has been under a doctor’s care only once and has been to doctors only three times in his life.

“20. That in 1975 to date the Respondent has been absent from work for ‘personal business — leave of absence’ on five occasions, totaling thirty-one days.

“21. That Respondent is not compensated for days off due to either illness or leave of absence.

“22. That Respondent is allowed five weeks per year paid vacation, of which he may work two and be compensated simultaneously; and that Respondent has either used or applied for all weeks of vacation for this year.

* * * * * *

“24. That Respondent has paid only $500.00 in maintenance since the Decree of this Court, .

“25. That Respondent and his new wife each deposit their income in a joint checking account at the Kaw Valley Bank, from which all bills incurred by both are paid.

“26. That Respondent’s former wife is employed as a waitress, on a part time basis, and earns approximately fifty dollars per week. That she was at the time of dissolution and still presently is in bad health.

“27. That although Respondent has undertaken the responsibility of a new wife and stepchild, his new wife contributes greatly to the support of the family unit.

“28. That Respondent has the ability and capacity to earn much in excess of what he has in fact earned to date in 1975.

“29. That Respondent, Stanley W. Stan-hope, was in a position to comply with the maintenance order when payments were ordered and became due.

“30. That Respondent, Stanley W. Stan-hope, is now in a position to comply with the maintenance order of this Court.

“31. That any alleged inability on the part of Respondent, Stanley W. Stanhope, to make payments for maintenance by order of this Court were the result of voluntary actions on his part with the intention of placing him in a position to avoid compliance with the order of this Court.

“32. That these actions include but are not limited to:

“(a) his subsequent marriage and acceptance of responsibility for Mrs. Carr and her son;
“(b) bidding on and maintaining a lesser paying job when he had the capacity and ability to maintain a higher paying job;
“(c) a greatly exaggerated amount of sickness and personal leaves without explanation totaling over two months out of ten of employable time and thereby reducing his earnings.

“33. That Respondent, Stanley W. Stan-hope, is therefore in contempt of this Court’s Order that the sum of $350.00 be paid monthly to the Clerk of the Circuit Court of Clay County for the support of his former wife, Wanda Stanhope.

“CONCLUSIONS OF LAW

“2. That the Prosecuting Attorney’s Motion for Contempt pursuant to Respondent’s non-payment of maintenance and Section 452.345 R.S.Mo., is proper under law.

* ⅜ ⅜ ⅜ * *

“4. That Section 452.345 R.S.Mo., is constitutional and not in violation of Article I, Section II of the Constitution for the reason that since this is a case of first impression pursuant to the amended version of dissolution law in the State of Missouri, previous case law in Missouri regarding payment of maintenance obligations is not controlling. Further, there are compelling public policy reasons which should allow a trial court to enforce its orders regarding maintenance. . Pursuant to Section 452.345, the Legislature has seen fit to provide the Court of general jurisdiction with the authority to enforce its orders for maintenance and child support. The vested interest of the State in the marital relationship, as well as the necessity for empowering a Court to enforce its orders by contempt citations where necessary are so compelling that any question relating to a Constitutional violation alleging as its basis ‘imprisonment for debt’, as Respondent’s contention herein, must be determined against such contention of Respondent; and Section 452.345 R.S.Mo., and its implementation herein is found to be constitutional in all respects.

* * * * * *

“5. That Respondent’s actions were deliberate, and he has wilfully failed and refused to make payments and is therefore in contempt of this Court.

“6. That a Citation finding Respondent to be in contempt of Court for non-payment of maintenance, such payments being through the Clerk of the Circuit Court as trustee, and sentencing Respondent to be incarcerated for such contempt does not constitute imprisonment for debt.”

Relator contends that respondent’s order finding him in contempt and his expressed intention to commit relator to jail is void because in violation of Art. I, Sec. 11, Mo. Const., which provides, “That no person shall be imprisoned for debt, except for nonpayment of fines and penalties imposed by law.” The further contention that the portion of Section 452.345 providing for contempt proceedings is unconstitutional follows as a corollary.

As indicated, the question for decision is whether imprisonment for contempt of a person who is financially able to pay but fails and refuses to comply with an order of the court for payment of maintenance is in violation of the constitutional prohibition against imprisonment for debt.

The basic case upon which relator must rely is Coughlin v. Ehlert, 39 Mo. 285 (1866). In that case the court in an opinion which did not consider the question in depth held that, “An order for the payment of alimony is simply an order for the payment of money. Imprisonment for debt is abolished in this State. We think this was an imprisonment for debt only, and the commitment was without authority of law.” Strange as it may seem, although Coughlin was decided 110 years ago, it has never been challenged or its validity reviewed in this court. Each district of the court of appeals have had some phase of the question presented to it. See, Ex Parte Kinsolving, 135 Mo.App. 631, 116 S.W. 1068 (St. Louis Dist.1909), Harrington v. Harrington, 233 Mo.App. 390, 121 S.W.2d 291 (K.C.Dist.1938), Davis v. Broughton, 382 S.W.2d 219 (Mo.App., Sp. Dist.1964), and Partney v. Partney, 442 S.W.2d 117 (Mo.App., St. Louis Dist.1969). In those cases the courts referred to the fact that the great weight of authority was contra to Coughlin but that the court of appeals was bound to follow the decisions of the supreme court.

We understand that probably every state in the United States, except Missouri, has ruled that contempt imprisonment for failure to pay maintenance or child support is not imprisonment for debt in violation of the constitutional prohibition. In view of that it is indeed unusual that an assault on Coughlin has not been made in this court long ago. Trial judges have been concerned about the decision. Note the following: “At the hearing of the petition we were furnished with a very instructive paper, prepared by one of the circuit judges of this state, collating the decisions of the courts of other jurisdictions on the question of alimony, and all claimed to treat the allowance of alimony as not a judgment for a mere debt; the argument being that our state and one other state stand alone in treating it as a debt and in declining to imprison a party for failure to pay alimony awarded in a divorce proceeding. Whatever weight may be given to that argument elsewhere, we are precluded from yielding to it by the decision of our Supreme Court in the case of Coughlin v. Ehlert, 39 Mo. 285.” Kinsolving, supra, 116 S.W. 1070. The other state referred to in the quote was likely Nebraska and it has since changed its rule. Cain v. Miller, 109 Neb. 441, 191 N.W. 704, 30 A.L.R. 125 (1922). More recently, Circuit Judge Fred E. Schoenlaub has written a very comprehensive and convincing article on the subject. 23 Journal of the Mo. Bar 396. Therein the judge pointed out that Missouri stands alone in following the Coughlin rule and that the soundness of Coughlin had never been presented to this court for review. He also called attention to the fact that the fundamental theory of Coughlin had been greatly eroded by decisions of Missouri courts in many analogous situations upholding imprisonment for contempt.

Notwithstanding the Schoenlaub article no challenge to Coughlin came until this case and two others submitted on the same day. Apparently when the legislature enacted Section 452.345 indicating that contempt was a proper proceeding to enforce payment of maintenance the attorneys and trial courts concluded that such could be used and a situation was presented for testing the validity of the Coughlin rule. Incidentally, the legislature, which is presumed to have known of Coughlin, by enacting that section apparently concluded that that case was not sound and it at least entertained the hope that we would no longer follow it. Some light on the subject is contained in an article discussing that section as follows: “Contempt is available under the Act only in cases where payment is ordered to be made to the circuit clerk and the obligor defaults. The proceedings for contempt are then initiated by the prosecuting attorney. The Missouri Bar Family Law Committee, which proposed the Act to the legislature, was aware that Missouri remains one of the few states holding that alimony and prior support awards cannot be enforced in contempt proceedings, as imprisonment for ‘debt.’ Coughlin v. Ehlert, 39 Mo. 285, and Partney v. Partney, 442 S.W.2d 117 [Mo.App.]. It was hoped, however, that the procedure provided in the Act would be upheld as was the Reciprocal Uniform Support of Dependents Act and the Criminal Non-Support Statute, Section 559.-353, under State v. Davis, 469 S.W.2d 1 [Mo.].” Dissolution of Marriage Under Missouri’s New Divorce Law, 29 Journal of Mo. Bar 518.

The reasoning upon which the courts of the other states base their decisions is indicated in the following authorities: “In the majority of the states the usual method of enforcing an order in a divorce action, whether the order is for alimony pendente lite, permanent alimony, or counsel fees, suit money, or costs, is by means of a commitment for contempt of court after notice to the husband and a demand for payment. The rule is based upon the ground that the refusal is wilful disobedience, and that where a party is guilty of wilful disobedience, or obstinacy, to an order of the court, the court is empowered to punish for contempt and sentence him to imprisonment until the specified sum or costs are paid. Although statutes frequently provide for enforcing the payment of alimony by attachment for contempt, nevertheless a court has the inherent authority to enforce payment in this way even in the absence of such a statute. . . . Even though the constitutions of the various states commonly prohibit imprisonment for debt it is widely held that the payment of alimony pen-dente lite, counsel fees, costs, suit money, and permanent alimony may be enforced by imprisonment for contempt of court since alimony, whether temporary or permanent, or an award for attorneys’ fees, does not constitute a debt within the meaning of such constitutional provisions. . . . ” 24 Am.Jur., Sections 754, 755, pp. 861, 863 inclusive. “. . . as a general rule, the award of alimony in suits for divorce, or in suits for separate maintenance without a divorce, is not a debt within constitutional prohibitions against imprisonment for debt; and the willful refusal to pay an alimony award is not within the constitutional prohibition; nor does imprisonment for the failure to pay such alimony, together with attorney fees or court costs, or both, constitute imprisonment for debt. However, it has been held that imprisonment will not be allowed for the nonpayment of alimony where defendant is unable to pay the amount.” 16 C.J.S. Constitutional Law § 204(2), p. 1006. “Since failure to pay alimony is fundamentally contempt of the decree of the court, under most authorities a judgment, order, or decree for alimony or attorney’s fees may be enforced by contempt proceedings. Such proceedings have been justified on the ground that alimony is not a mere debt, or that it constitutes the highest form of debt or sacred obligation, or a continuing duty, tinged with a public interest. So, it has been held public policy to punish a husband by contempt when he willfully refuses to comply with an order to pay alimony.” 27B C.J.S. Divorce § 259, p. 91.

In Ex Parte Phillips, 43 Nev. 368, 187 P. 311 (1920) the court stated that, “A debt in the sense used in the Constitution alludes to an obligation growing out of a business transaction, and not to an obligation arising from the existence of the marital status, such as alimony; nor is alimony given as a judgment. It is a mere allowance for support and maintenance — a duty growing out of the marriage status; a duty which sound public policy sanctions to compel one who is able so to do, possibly as a result of the co-operation (during coventure) of his former wife, to prevent such former wife from becoming a public charge or dependent upon the charity of relatives or friends. ‘It has frequently been insisted,’ says Mr. Nelson, ‘that a decree for alimony is in fact a debt, and therefore payment should [not] be enforced by an attachment for contempt where the Constitution prohibits imprisonment for debt. But it is uniformly held, and such is the [true] doctrine, that the decree for alimony is an order of the court to the husband, compelling him to support his wife by paying certain sums, and thus perform a public as well as a marital duty. Such a decree is something more than an ordinary debt or judgment for money. It is a personal order to the husband, similar to an order of the court to one of the officers or to his attorney. The imprisonment is not alone to enforce the payment of money, but to punish the disobedience of the party; and the order is not, therefore, a debt, within the meaning of the Constitution.’ Nelson Div. & Sep. § 939.”

Many of the cases from other states are cited and discussed in Anno. 30 A.L.R. 130. Hundreds of other cases may be found in the various editions of the American Digest System, Divorce, «=269(1). Two of the older cases containing a good discussion of the question are Hurd v. Hurd, 63 Minn. 443, 65 N.W. 728 (1896) and West v. West, 126 Va. 696, 101 S.E. 876 (1920).

It will be noted that many of the cases refer to the duty of the husband to pay maintenance and that he may be held in contempt for failure to comply with such orders. It should perhaps be stated that the new Dissolution of Marriage law provides that maintenance may be granted to either spouse. Section 452.335. And that in the case of Ex Parte Risner, 67 Cal.App.2d 806, 155 P.2d 667 (1945) the wife was committed to jail for contempt for her failure to pay to her husband alimony pen-dente lite as ordered by the court.

As indicated, we are of the view that the Coughlin opinion is not sound and that Coughlin and the court of appeals cases that have followed it should no longer be followed. This court, in making its decisions, has never followed the weight of authority just because it was the weight of authority. We have always been independently convinced of the merits in addition to considering weight. In this case, however, where Missouri stands alone and all of the other states and the District of Columbia have a contrary view, reasonable minds must have serious doubts as to the soundness of our decision. Although law is not an exact science it is simply not reasonably likely that Missouri is correct in its decision on the instant issue and all of the other courts are wrong. Therefore, we are somewhat influenced by a consideration of the weight of authority.

Considering specifically the Coughlin case we note that the court did not mention or consider the many particular factors that distinguish an order for payment of maintenance or child support from an ordinary debt. Without discussion the court merely stated that alimony was a debt and since imprisonment for debt was prohibited the petitioner should be discharged. Also, Roberts v. Stoner, 18 Mo. 481 (1853), the only case cited in Coughlin does not, in our opinion, support the decision. Moreover, we think subsequent somewhat analogous decisions of the appellate courts have greatly eroded any principle that may have evolved from Coughlin. For example, in In re Knaup, 144 Mo. 653, 46 S.W. 151 (1898), at a post judgment examination of the debtor it developed that he had possession of certain bonds. The court ordered that he deliver the bonds to a receiver and upon refusal committed him to jail for contempt. This was held not to violate the constitutional provision against imprisonment for debt. In Ex Parte Devoy, 208 Mo.App. 550, 236 S.W. 1070 (1921) an heir was ordered to deliver possession of a dwelling house to a receiver during pendency of a will contest. He refused, contending that ejectment was the appropriate remedy. His imprisonment for contempt was upheld.

In State v. Taylor, 335 Mo. 460, 73 S.W.2d 378 (1934) it was held that the statutes making it a criminal offense to fraudulently give an insufficient funds check in payment of a past due account does not violate the constitutional provision against imprisonment for debt. In Ex Parte Fuller, 330 Mo. 371, 50 S.W.2d 654 (1932) the petitioner, a merchant, had obtained radios on consignment. Upon suit by the seller he was ordered to deliver the radios or proceeds from the sale thereof to a receiver. Upon refusal he was committed. While the court held that the trial court’s findings did not support the order it is significant to note the statement that, “. . . we do not hold that petitioner’s inability to comply with the order would excuse him if such inability was the result of his own voluntary act in disposing of the money with the intention of placing himself in a position to avoid compliance with the order. In other words, if the court had found, on substantial evidence, that petitioner had the proceeds of the sale of the property in his possession or under his control at the time the order directing him to deliver same to the receiver was made, or that he so held the money prior to the making of the order, but disposed of or converted it in anticipation of the order and to avoid compliance therewith, such a finding of facts would have authorized the court’s conclusion that petitioner wrongfully, illegally, and contumaciously misapplied, misappropriated, and converted same to his own use, .

Ex Parte Fowler, 221 Mo.App. 325, 273 S.W. 195 (1925) is a case wherein the petitioner was committed for contempt for failure to turn over to an administrator pen-dente lite $4,512.94 he was found to have in his possession as executor. This was held not to violate the prohibition against imprisonment for debt. Likewise, in Zeitinger v. Mitchell, 244 S.W.2d 91 (Mo.1951) it appeared that a party in a discovery of assets proceeding had been found to possess money due an estate. The court (in accordance with a statute) committed him for failure to deliver the money to the administrator. This was held not to violate the imprisonment for debt provision. State v. Davis, 469 S.W.2d 1 (Mo.1971) is a case in which defendant was convicted for failure to provide support for his children in violation of Section 559.353 and was sentenced to jail. The statute was held not to be unconstitutional in violation of the provision which forbids imprisonment for debt.

It is also of interest to note that Section 454.240, as a part of the Uniform Reciprocal Enforcement of Support Law, gives the court power to punish a defendant for contempt for violation of any relevant order of the court. While this provision has not been tested we observe that it was enacted in 1959 and apparently has not been challenged.

We have ruled that trial courts are henceforth empowered to punish by imprisonment for contempt the failure of a person to comply with orders for payment of maintenance and child support. In that connection we consider it prudent to say that this is a rather drastic remedy which should be carefully and cautiously exercised. Before ordering imprisonment trial courts should be convinced that the person is financially able to make the required payment or that he has intentionally and contumaciously placed himself in a position so that he could not comply with the court’s orders. Also, we think the trial courts, in the exercise of a sound discretion, may require that the party seeking the contempt order make reasonable efforts to collect by the conventional remedies available before entering the contempt order.

We accordingly rule that the provisional rule in prohibition should be discharged.

It is so ordered.

HENLEY, FINCH and DONNELLY, JJ., concur.

BARDGETT, J., dissents in separate dissenting opinion filed.

SEILER, C. J., and MORGAN, J., dissent and concur in separate dissenting opinion of BARDGETT, J.

BARDGETT, Judge

(dissenting).

I respectfully dissent from the result reached in this case. We are here concerned first of all with the order the trial judge declared he would issue unless prohibited. The trial court did not set forth the precise terms of its proposed order nor do the parties do so in their pleadings and briefs other than to say that the trial judge, in open court, advised the parties and their attorneys that he (trial judge) was going to find relator in contempt of court and sentence him to sixty days in the county jail. This threatened order seems to be the subject of this case. The transcript of the trial court proceedings of May 28,1975, indicates that if the circuit judge found relator in contempt he would impose a sentence of sixty days in jail and would suspend imposition of the sentence subject to this relator paying the maintenance as he is supposed to do and living up to the other orders of the court.

Regardless of which order it was that the court declared its intent to issue, one thing is clear and that is that the circuit judge was going to sentence the relator to jail for a fixed period as punishment for failing to pay the maintenance provision of the divorce decree in the past. As to past and overdue maintenance, there is no question in my mind but what it is a judgment debt due and owing and this is so regardless of whether the divorce decree used the words “judgment”, “order”, or “decree”, or all three. The word “order” is used because at the time a decree awarding maintenance is issued, it looks to the future and it is not at that time (when entered) a judgment of a sum then due and owing as are most other awards of money. But on each date the maintenance is due and not paid, it automatically increases the sum then due and as such the judgment increases.

Nevertheless, I would uphold the.constitutionality of the contempt powers afforded by section 452.345 as a special means of obtaining compliance with maintenance orders to the extent that the contempt proceedings and orders do not offend against the constitutional prohibition to imprisonment for debt.

In this case, it is my opinion that the contempt proceedings and the threatened order do offend against the constitutional prohibition to imprisonment for debt.

In the related case of Teefey v. Teefey, 533 S.W.2d 563 (Mo. banc 1976), of this date, this court holds that the contempt is a civil contempt and not criminal contempt. That holding is based upon this court’s conclusion that the proceedings under section 452.345 are for the benefit of the party entitled to collect maintenance. I agree that, at most, proceedings under 452.345 are civil and not criminal contempt. Section 452.345(4) clearly leaves it to the discretion of the recipient of the maintenance as to whether or not to initiate contempt proceedings. These proceedings, therefore, are not to vindicate the dignity of the court but rather solely to effectuate collection of maintenance.

Being civil contempt, the contemnor must, at the time he is cited, be able to purge himself of the contempt by the doing of some act that is then and there within his power and ability to perform. He must hold the key to the jailhouse, as the function of this type of contempt is to coerce the doing of an act which act satisfies the order of the court. In order to convict for civil contempt, it is necessary that the con-temnor have the ability to comply. White v. Hutton, 240 S.W.2d 193 (Mo.App.1951). White v. Hutton was a habeas corpus by petitioner who had been adjudged in contempt for failing to comply with a judgment in a proceeding to discover assets of an estate and ordered confined in jail until he delivered the sum of $2,000 to the ad-ministratrix or until otherwise released by order of court. The appellate court considered various aspects of the problem of the use of contempt to obtain compliance with court orders or judgments not immediately pertinent here. But the court did say at 202-203, “but there appears no authority for the application of the penalty for failure to comply with the judgment of the court for delivery of specific property or the value thereof, when there is no finding that the party charged has the same in his possession or control. If such a judgment under the conditions last described has any force or effect at all, which we do not here determine, it would be, at most, a mere judgment for debt, for the default of which no contempt and imprisonment could apply. If it purports to be a judgment to be enforced by attachment and imprisonment as for contempt, then it lacks an essential element to make it so, namely the finding of present possession or control.”

It is true that in White v. Hutton, the statute required that the party charged “has them in his possession or under his control”, and section 452.345 does not specifically so provide. But that element must be read into section 452.345 if this is civil contempt or else the imprisonment obviously would not be to coerce compliance but rather to simply punish for past failure to pay and that, I submit, would be imprisonment for debt pure and simple.

In this case the evidence received by the trial court on October 16, 1975, was that relator had $68 in a joint bank account with his present wife. There was also substantial evidence that petitioner had earned about $450 per week over the previous several months, as well as evidence of the financial needs of petitioner, his present wife, and his former wife, and that on October 16, 1975, petitioner was delinquent in payments of maintenance in the amount of $2,650. There is nothing in the record to show that petitioner had $2,650 as of the date the court threatened to imprison him. There was an earlier hearing on May 28, 1975, at which time petitioner was delinquent in the amount of $1,100. There is nothing in the record to show he had $1,100 as of the date the circuit court first threatened to imprison him.

The trial court on October 28, 1975, following the hearing on October 16, 1975, found that petitioner was able to pay the maintenance sums as they became due. The trial court also found that petitioner is now in a position to comply with the maintenance order. I do not know whether this finding of present ability refers to an ability to pay up the delinquent amount or to pay the next month’s maintenance. Nor can I determine what petitioner must do to be released from jail. As noted supra, I find no evidence that petitioner had the present ability (October 28,1975) to pay the delinquent amount. The threatened contempt order does not recite the contemptuous conduct nor does it delineate specifically what petitioner must do to purge the civil contempt.

The trial court found that petitioner’s failure to pay maintenance was a voluntary act on his part done with the intent of placing himself in a position to avoid compliance with the order (maintenance provisions of divorce decree). This finding seems to be based upon the fact that petitioner remarried shortly after his divorce from Mrs. Stanhope and thereby took on other responsibilities rather than pay his own maintenance. The record supports the finding that petitioner remarried thirty-one days after being divorced from Mrs. Stan-hope. While I am not certain that it makes any difference anyway, there is no evidence that he married his present wife for the purpose of avoiding payment of maintenance.

At the October 16, 1975, hearing, the driver supervisor of the trucking company for which petitioner works testified. He produced the paycheck petitioner would receive that day. The amount of that check is not shown in the record but the evidence was that petitioner’s last paycheck was for a net amount of $831.95. Had the court seen fit to do so, it could have ordered petitioner to endorse that paycheck which was present in court over to his former wife or made an order directing petitioner to immediately pay part of it over to his former wife. That was an act which petitioner could perform just as in the cases cited in the principal opinion where a court ordered a party to do a specific act such as delivering bonds in his possession or delivering possession of a house. In re Knaup, 144 Mo. 653, 46 S.W. 151 (1898); Ex parte Devoy, 208 Mo.App. 550, 236 S.W. 1070 (1921).

Also, under section 452.350, the court can order the party obligated to pay maintenance or support to execute an assignment for part of his earnings and the employer must comply. If the party ordered to execute the assignment refuses, then I believe the court can utilize coercive imprisonment to obtain compliance with the order to execute an assignment. Again, however, this is something the obligor has the ability to do and the doing of it releases him from jail.

Ex parte Phillips, 43 Nev. 368, 187 P. 311 (1920), cited in the principal opinion, was habeas corpus to obtain the release of petitioner who had been held in contempt of court for failure to make a certain payment ordered in a contempt proceeding. In the contempt proceeding of December 3, 1918, the court found that petitioner had not fully complied with the alimony award set out in the divorce ease, that he was able to make certain payments thereon and pay in the future a monthly sum on account thereof, and accordingly issued an order that he pay forthwith and thereafter make certain monthly payments to plaintiff in the action. Failing to comply with the last mentioned order, petitioner was, on August 11, 1919, adjudged in contempt of court and as punishment it was ordered that he be confined in the county jail unless a certain payment was made. Failing to make the payment, a commitment was issued to the sheriff from which petitioner sought discharge.

Phillips’s primary contention was that alimony is a debt and that a party cannot be imprisoned for nonpayment of a debt. The court held that alimony was not a debt in the ordinary sense, as set out in the principal opinion here, and that “The imprisonment is not alone to enforce the payment of money, but to punish the disobedience of the party . . . .”

In support of its holding as to contempt, the Nevada court quoting from Gompers v. Buck’s Stove & Range Co., 221 U.S. 418, 31 S.Ct. 492, 55 L.Ed. 797, said at 187 P. 312: “ ‘If a defendant should refuse to pay alimony, or to surrender property ordered to be turned over to a receiver, or to make a conveyance required by a decree for specific performance, he could be committed until he complied with the order. * * * The order for imprisonment in this class of cases, therefore, is not to vindicate the authority of the law, but is remedial, and is intended to coerce the defendant to do the thing required by the order for the benefit of the complainant. If imprisoned, as aptly said in Re Nevitt, 8 Cir., 54 C.C.A. 622, 117 F. 448, 451, “he carries the keys of his prison in own pocket.” He can end the sentence and discharge himself at any moment by doing what he had previously refused to do.’ ” (Emphasis mine.)

In Phillips there appears to be no contention by petitioner that he could not make the payment at the time of his commitment on August 11, 1919, and because of the language quoted supra I must assume that the record in that case showed he could make the payment for which he was held in contempt for not making at the time of his incarceration. I say this because the Nevada court relied upon a holding of the United States Supreme Court in which it is said that, “ ‘he carries the keys of his prison in own pocket.’ He can end the sentence and discharge himself at any moment by doing what he had previously refused to do.”

The Nevada court would not have held that Phillips could release himself from imprisonment without knowing from the record that he had the ability to do so. That ability had to mean that Phillips then and there had the money but refused to pay it over. If he did not have the money when he was committed to jail, then he could not release himself. This ability to pay, in my opinion, cannot refer back to an earlier date when a monthly payment was due because that earlier ability could simply not function as present ability to make the payment and be released from jail. I regard Phillips as a finding of contempt for failure to comply with a specific court order when he has the present ability (at the time he is imprisoned) to comply.

The past ability to pay the running alimony award as payments became due could not be the present possession of the jailhouse key when the order of commitment requires the payment now to secure release. The key must be able to open the door and it is only present ability to pay and the use of that present ability that can do that.

In Coughlin v. Ehlert, 39 Mo. 285 (1866), the petitioner did not have the ability to pay the alimony at the time he was imprisoned. After holding that a party cannot be imprisoned as for contempt for failing to pay alimony when due, the court went on to say, loe. cit. 286: “We do not mean to say that a party may not be put in contempt for disobeying a decree for the performance of acts which are within his power and which the court may properly order to be done. If it were shown, for instance, that the party had in his possession a certain specific sum of money, or other things, which he refused to deliver up under the order of the court for any purpose, it may very well be that his disobedience would be a contempt for which he might lawfully be imprisoned. But the order must be for the performance of some specific act other than the mere payment of money.”

On its facts, I believe the result in Cough-lin was right. Apparently Coughlin has been understood to mean that a court cannot order a person obligated by a divorce decree to pay alimony to pay the sum due even if he has the money available to pay it at the time he is held in contempt and the court so finds. Section 452.345 now allows the use of civil contempt in domestic relations cases and I would modify Coughlin and hold that a court can order a person to pay over a sum due on a maintenance award and, if the party then and there has the present finances to comply and fails to do so, imprison him for a reasonable time or until he sooner complies, or the order is satisfied by other legal means such as attaching funds of the contemnor. In so doing, we would be recognizing that the keys to the prison must presently be in the pocket of the contemnor and not merely be giving lip service to that requirement reference civil contempt.

In this case, the proposed order is not sufficiently specific as to what the specific basis for the contempt is nor as to what petitioner must do to obtain his release. It is for a fixed period of sixty days. But, more importantly, the record establishes that petitioner did not have the present financial means to pay the maintenance due when the court threatened to imprison him. Therefore, he did not “hold the keys in his pocket”. I would therefore make the writ of prohibition absolute as to the proposed order. For these reasons I dissent.

      . All statutory citations are to V.A.M.S.

      . Regarding maintenance payments Section 452.345 provides, in part, as follows: “4. If a party fails to make required payment, the circuit clerk shall send by registered or certified mail notice of the arrearage to the obligor. If payment of the sum due is not made to the circuit clerk within ten days after sending notice, the circuit clerk shall certify the amount due to the prosecuting attorney. The prosecuting attorney shall, with the consent of the obligee, promptly initiate contempt proceedings against the obligor.
      “5. The prosecuting attorney shall assist the court on behalf of a person entitled to receive maintenance or support in all proceedings initiated under this section to enforce compliance with the order.
      “6. If the person obligated to pay support has left or is beyond the jurisdiction of the court, the prosecuting attorney may institute any other proceeding available under the laws of this state for the enforcement of duties of support and maintenance.”

      . We note that in this case an application to transfer was made to this court but that was prior to the enactment of Section 452.345 and this court apparently elected not to review the question at that time.


author: BARDGETT, Judge.

text:
    ASSOCIATION FOR EDUCATIONAL DEVELOPMENT, a corporation, and Rev. William Stetson, et al., as members and representatives of a class known as Opus Dei Center of St. Louis, an unincorporated association, Plaintiffs-Relators-Respondents, v. John L. HAYWARD et al., as members and alternate members of and comprising the Board of Adjustment of the City of Kirkwood, Defendants-Respondents-Appellants, v. Samuel B. MURPHY et al., Intervenors-Defendants-Appellants.
    No. 58761.
    Supreme Court of Missouri, En Banc.
    March 8, 1976.

      Stephen C. Murphy, Cook, Murphy, Lance & Mayer, St. Louis, for intervenors-defend-ants-appellants.
    Robert L. Inman, Clayton, for defendants-respondents-appellants.
    Albert A. Michenfelder, Jr., Clayton, for plaintiff s-relators-respondents.
   BARDGETT, Judge.

The principal issue in this case is whether a decision by the board of adjustment of the city of Kirkwood denying an occupancy permit to a group of men who are members of a religious society and who sought to occupy an existing residence as their home in an area zoned single-family residential is violative of the free-exercise-of-religion provision of the First Amendment of the United States Constitution, the freedom-of-worship provision of Art. I, sec. 5, Missouri Constitution, and the due process clause of Art. I, sec. 10, of the Missouri Constitution.

The appeal in this case involves the construction of the United States and Missouri Constitutions; therefore, this court has jurisdiction. Art. V, sec. 3, Mo.Const., as amended 1970.

Respondent, Association for Educational Development (relator-plaintiff in circuit court) is an Illinois corporation which holds a certificate of authority as a foreign not-for-profit corporation in Missouri. Respondents, Rev. William Stetson, et al., (rela-tors-plaintiffs in circuit court) are members and representative parties of an unincorporated association known as Opus Dei Center of St. Louis. The interest of all respondents is the same and they will therefore be referred to hereinafter as “respondents”.

Appellants, John L. Hayward, et al., (defendants-respondents in circuit court) constitute the board of adjustment of the city of Kirkwood, hereinafter referred to as the “board” or “board of adjustment”.

Appellants Samuel B. Murphy, et al., (in-tervenors-defendants in circuit court) are Kirkwood residents and neighboring property owners of the residence respondents sought a permit to occupy. These appellants opposed such occupancy before the board and in the circuit court and will be hereinafter referred to as “intervenors”.

Before considering the constitutional issues, however, the court must determine whether the appeal to the board of adjustment by intervenors was premature and whether the respondents are entitled to an occupancy permit under the provisions of the zoning ordinance.

Respondents applied to the building commissioner of the city of Kirkwood for a permit to occupy a residence at 519 N. Taylor, Kirkwood, Missouri, as a “Rectory— Parish House (Opus Dei)”. The application for occupancy stated the house would be occupied by seven unrelated persons. These people consist of a priest and seven or eight laymen who are members of Opus Dei.

Respondents’ statement concerning Opus Dei, its membership, purpose, activities, and the use which respondents intend to make of the Kirkwood residence is supported by the record of the hearing before the board and is as follows:

Rev. Stetson testified that Opus Dei, defined as “The Work of God” is an organization founded in 1928, recognized and legally constituted by the Roman Catholic Church and technically known as an Association of the Faithful, which is a form of religious society in the Catholic Church. Rev. Stetson, an ordained Catholic priest, a graduate lawyer and Doctor of Canon Law, is the Spiritual Director of this Opus Dei center. The laymen with whom he resides have a permanent commitment to the single life and are completely available to carry out the apostolate of Opus Dei. They live a full Christian life in their ordinary work in the world, and are dedicated to the aposto-late in the practice of an intense spiritual life in the world without abandoning their own social environment or the exercise of their professional or secular occupation. In addition, they aid and organize educational activities relating to their professional work. Opus Dei is a worldwide organization with international headquarters in Rome and centers in some sixty countries. It maintains centers within each diocese with the approval and cooperation of the diocesan bishop. The purpose of Opus Dei is to give religious formation to its members and to others who freely seek it. In addition, like other religious groups, it organizes and promotes activities of an educational nature. The educational programs of this center have been held at Mary Queen of Peace Catholic Schools, and will be held at St. Peter’s School in Kirkwood. The object of these classes is to help young men in furtherance of their own educational goals and to spread the Christian faith among them. Mass will be said daily at the rectory-parish house for the resident members only, and they will live in all respects a normal family-type of life, and while on occasion individual counseling will take place on the premises, as in o,ther rectory-parish houses, this will constitute a relatively small part of the activity. Social activities will be commensurate with normal family social activities on the premises. The house is a substantial, well cared for, three-story home, and with the creation of three bedrooms on the third floor, will provide a separate bedroom for each man. A housekeeper, not residing on the premises, will attend to the physical management of the house and preparation of the meals.

Rev. Stetson made it clear in his testimony that, aside from himself, the other persons were laymen who regularly pursue lay professions and occupations and remain laymen while members of Opus Dei. He agreed that the following excerpt from the New Catholic Encyclopedia, p. 709, accurately describes Opus Dei:

“Persons from every profession and occupation belong to Opus Dei. After admission all remain laymen. They are not religious and hence do not take religious vows, wear a habit or live a community life.
“Members of Opus Dei, like all other Catholic members of the associations of the faithful, enjoy complete freedom in their professions and secular activities, social, political, financial, artistic, etc., with no restrictions other than those which Catholic faith and morality impose on all the faithful.”

Rev. Stetson further testified that the rules of the Catholic Archdiocese of St. Louis provides for the residence together of priests and laymen with the permission of the Bishop, and that permission has been granted by the highest authority of the Catholic Church.

The property at 519 N. Taylor is within the R-3 one-family-dwelling district. The zoning ordinance provides for a number of uses within the R-3 district in addition to one-family dwellings, among which are: churches and similar places of worship, and convents, monasteries, rectories or parish houses to be regularly occupied by not more than ten persons.

“Family” is defined by the ordinance as “One or more persons occupying a dwelling and living as a single housekeeping unit, all of whom or all but two of whom are related to each other by birth, adoption or marriage as distinguished from a group occupying a boarding house or hotel as herein defined.”

The ordinance does not define convents, monasteries, rectories or parish houses.

The city building commissioner issued a permit to respondents for occupancy and use by them of the premises as a “Rectory-Parish House (Opus Dei)”. Intervenors objected to the issuance of the occupancy permit on the ground that the use to which the property was to be put was not within the uses permitted in R-3 single-family district by filing an appeal with the board of ad^ justment pursuant to section 89.100, RSMo 1969, and Art. XVI of the Kirkwood zoning ordinance. The board held an evidentiary hearing on the matter and unanimously found that the proposed use of the residence did not qualify under any of the permitted uses in an R-3 district and, therefore, the building commissioner was in error in issuing the occupancy permit. The board rescinded the permit.

Respondents, being aggrieved by the decision of the board, filed their petition for review in circuit court pursuant to section 89.110 and the court issued its writ of cer-tiorari to the board. The matter was submitted in circuit court on the pleadings and the transcript of evidence and exhibits received in the hearing before the board. No further evidence was presented. The circuit court entered judgment for respondents. No additional findings of fact or conclusions of law were made. Appellants’ motion for new trial was overruled by operation of law ninety days after it was filed and this appeal followed.

The first question presented is whether intervenors’ (adjoining property owners) appeal to the board of adjustment from the building commissioner’s issuance of the permit to respondents was premature. Respondents contend the appeal was premature because the application for the permit, on its face, was clearly within the permitted uses applicable to R-3 zoning and, since respondents had not yet occupied the property, any inquiry into the possible future activities of respondents with respect to their use of the premises was speculative and beyond the power of the board.

The application for occupancy permit asserted that the use would be “Rectory— Parish House” and the premises would be occupied by seven unrelated persons, and the permit- issued by the building commissioner showed on its face the premises were to be occupied and used for a rectory-parish house. Rectories and parish houses are clearly within the permitted uses of R-3 zoned property.

However, the issue is not whether a “Rectory — Parish House” is within the scope of permitted uses. It obviously is because the ordinance so provides. The real issue here is whether the actual use to be made of the premises falls within the meaning of church, rectory, parish house, convent, or monastery, or whether the use comes within the overall intent of the zoning ordinance.

The actual use intended to be made of the property in question here is not a matter of speculation. Respondents’ representative, Rev. Stetson, made it quite clear that respondents would use the premises as a residence for seven or eight men. It is apparent that it was the character of the group — a religious society — which difieren-tiated this group from any other group of unrelated people and caused the building commissioner to believe that occupancy of the dwelling by respondents would be legal as a rectory or parish house, and he therefore issued the occupancy permit. It was the duty of the building commissioner to make a decision and either issue or refuse to issue the permit; but, of course, his decision could be erroneous. It is also obvious that respondents had no desire or intent to acquire the home unless it could be utilized as a residence for the group. The future use of the property by respondents was not speculative but to the contrary was very definite and certain.

This is not a case where a party has applied for and obtained an occupancy permit and thereafter the issuance of the permit is objected to on the assertion that sometime in the future the permit holder may or will change the use and thereby become in violation of the zoning ordinance.

The decision of the building commissioner here was based upon the application for the occupancy permit, the facts as he knew them, and his interpretation of the provision of the zoning ordinance relating to rectories and parish houses. Section 89.090 requires a board of adjustment to hear and decide appeals where it is alleged that there is error in any order, requirement, decision, or determination made by an administrative official (building commissioner) in the enforcement of any ordinance (zoning ordinance).

The court holds that the issuance of the occupancy permit constituted a decision or determination by the building commissioner from which an appeal to the board of adjustment was proper and was not premature.

Respondents contend the board of adjustment incorrectly construed sec. 1(A)(5) of Art. V of Ordinance No. 5085 (zoning ordinance) as not permitting the premises to be used as proposed by respondents. The provision of the ordinance referred to permits the property to be used for “Convents, monasteries, rectories or parish houses to be regularly occupied by not more than ten (10) persons”. It is respondents’ position that the grouping together of convents, monasteries, rectories, and parish houses creates a category of use which, when taken as a whole, includes the use respondents desire to make of the premises.

The Kirkwood zoning ordinance does not define convent, monastery, rectory, or parish house. The board of adjustment found that the use proposed by respondents did not qualify under any of the permitted uses set forth supra.

“Since the zoning ordinance is in fact a legislative exercise of the delegated police power, its wording must initially be given an ‘ordinary, plain and natural’ meaning [citing cases], so that the legislative intent may be ascertained. In the absence of any ambiguity, such meaning must be applied to the facts of this case”. State ex rel. Ellis v. Liddle, 520 S.W.2d 644, 649 (Mo.App.1975).

State ex rel. Ellis, supra, involved the use of a single-family dwelling in Maryville, Missouri, as a foster-style-family home for six to eight unrelated boys who would live in the house under the supervision of a resident couple — husband and wife. The group of boys were under the jurisdiction of the chief juvenile officer of the fourth judicial circuit of Missouri. The house was located in an area zoned for single-family residence. The ordinance defined “dwelling” as a building designed or used for residential occupancy including single-family dwellings and group dwellings and included within the definition of family up to ten people not related by blood or marriage. The court in State ex rel. Ellis, supra, upheld the issuance of the occupancy permit because, inter alia, the proposed use was within the terms of definitions set forth in the ordinance.

The Kirkwood ordinance defines “family” as noted supra, and the respondents do not come within that definition because they are unrelated by blood, marriage, or adoption. However, the Kirkwood city council, by the terms of the ordinance, did not define convents, monasteries, rectories, or parish houses. Since those terms are not defined, we must therefore look to the usual sources to ascertain their meanings and thereby determine the intent of the Kirk-wood city council.

In the hearing before the board of adjustment, the parties placed in evidence the following definitions taken from Webster’s Third New International Dictionary, Unabridged:

Parish house. 1. An auxiliary building belonging to a church and used for its business, social or extension activities. 2. The residence of a Clergyman, as a Roman Catholic Priest.
Rectory. 1. A benefice held by a rector; the province of a rector; a parish church, parsonage, or spiritual living, with all its rights, tithes, and glebes. 2. A rector’s residence; a parsonage.
Rector. 1. The ruler or governor of a country, etc. 2. A director; a leader; the chief. 3. a. Church of England. A Clergyman who has the charge and care of a parish; and has the tithes, etc.; the Clergyman of a parish where the tithes are not impropriate, b. Protestant Church. A Clergyman who is the spiritual head and, legally, the presiding officer in the parish. He is elected by the vestrymen, c. Roman Catholic Church. The head of a religious house for men. d. Roman Catholic Church. A pastor of a church or parish.
Parish, a. A portion of a subdivision of a diocese committed to the spiritual jurisdiction or care of a priest or minister called Rector or Pastor.

The court has also considered the definitions of rectory, parish house, convent, and monastery as they appear in Random House Dictionary of the English Language, Unabridged Ed. 1966; Webster’s Third New International Dictionary, Unabridged 1968; Black’s Law Dictionary, Revised Fourth Ed. 1968; American Heritage Dictionary of the English Language 1973; and An Encyclopedia of Religion, edited by Vergilius Ferm 1959; and all are consistent with those set forth supra and infra.

Purely secular definitions of “rector” as a ruler or governor of a country, a director, leader, or chief, are not considered because the use of the terms rectory, etc., in the zoning ordinance carries a religious, not a secular, connotation.

“Religious house” is defined by Webster’s and Random House dictionaries as a convent or monastery.

Random House Dictionary, supra, also gives the following definitions:

convent 1. a community of persons devoted to religious life under a superior. 2. a society or association of monks, friars, or nuns: now usually a society of nuns. 3. the building or buildings occupied by such a society; a monastery or nunnery.
monastery 1. a house or place of residence occupied by a community of persons, esp. monks, living in seclusion under religious vows. 2. the community of persons living in such a place. . . . Syn. 1. convent, cloister; abbey, priory.

The use of terms “convents, monasteries, rectories, or parish houses” denotes an intent on the part of Kirkwood to make the occupancy of a building in a district zoned single-family residential by more than three unrelated persons, but not more than ten, depend upon the nature and extent of the occupants’ religious commitment. In the instant ease, the men seeking to occupy the residence as their home have, without question, a religious commitment which arises out of their membership in a legitimate and established religious society of the Catholic Church.

The court arrives at the foregoing conclusion with respect to Kirkwood’s intent because there is nothing in the zoning ordinance which gives a structural description of convents, etc. It is obvious that a structure meeting the description of a one-family dwelling, to wit, a detached building designed for or occupied exclusively by one family and located in a one-family-dwelling district may be legitimately occupied and lived in by a group of ten or less unrelated persons if they are priests, ministers, rabbis, monks, or nuns, or a recognized clergyman and his family.

These titles, priests, etc., are not meant to be exhaustive but are representative examples of the class of people which obviously come within the terms of the ordinance.

If a single-family dwelling is occupied by a clergyman and his family, then that use does not require the invocation of the rectory, parish house, etc., provision of the ordinance. That use is not prohibited because the group of people constitute a family as defined in the ordinance regardless of the fact that the residence may be called a rectory. Nor is that provision, rectory, etc., of significance if the occupancy is to be by three unrelated persons, be they clergymen or laymen, because that group also qualifies as a “family” under the ordinance.

So it appears that the ordinance provision of rectory, parish house, convent, and monastery, is significant only in those situations where more than three unrelated persons seek to live in a single-family residence located in a district zoned one-family residential.

Considering the definitions of the terms used in the zoning ordinance, supra, it clearly appears that the concept common to all is that the principal residents of places called rectories, parish houses, convents, and monasteries, are people who have the religious ministry as their regular and primary vocation as distinguished from avocation. Cf. United States v. Pompey, 445 F.2d 1313 (3d Cir. 1971); United States v. Jones, 382 F.2d 255 (4th Cir. 1967). While there are many similarities between clergymen generally and the individual laymen of Opus Dei insofar as depth of religious conviction, prayer, and good works are concerned, nevertheless, after these similarities are acknowledged, the fact remains that the men of Opus Dei, except Rev. Stetson, are laymen and not clergymen.

Furthermore, the men of Opus Dei seeking to occupy this residence as their home do not claim to be clergymen. Their claim is that it was not the purpose or intent of the Kirkwood city council to exclude a group such as Opus Dei from using a house zoned one-family residential as their home. They support their position by the testimony of Rev. Stetson as to the religious dedication, purpose, and activities of the men of Opus Dei and by that method liken Opus Dei to religious orders in which the members’ dedication and primary vocation is the religious life. Respondents also argue that the dictionary definitions of rectory, parish house, convent, and monastery, are anachronistic, being derived from (English) ecclesiastical law centuries old and no longer applicable to any Christian denomination. They argue that convents are no longer associations or communities of recluses devoted to a religious life under a superior but rather, with few exceptions, are homes for women pursuing a religious vocation who teach and carry on related activities in schools and other places close to and many miles removed from the convent. In other words, argue respondents, that because the life styles and activities of clergymen and nuns have changed from lives of seclusion and personal piety to that which includes more secular related activities, the old world concepts evidenced in the dictionary definitions no longer apply. That because the men of Opus Dei are engaged in Catholic diocesan-approved church-related activities, which include the use of the premises of St. Peter’s Catholic Church for institutional purposes, and because they are totally devoted to the furtherance of the aposto-late of the Catholic Church in St. Louis, the use of this house as their home is no more secular than is the use of a rectory or parish house by a group of clergymen. That the use is religious to the same extent that occupancy by nuns or a group of clergymen would be religious, this use therefore comes within the more modern concept of a rectory, parish house, convent, or monastery.

The terms rectory, parish house, convent, and monastery, clearly connote religious use of property. The ordinance does not restrict the activities of occupants of rectories, etc., to preaching, teaching, and personal piety. But the Kirkwood city council surely had something in mind when they authorized people to utilize property zoned one-family residential as rectories, etc., and permitted up to ten unrelated persons to occupy the premises as their living quarters. The ordinance does not describe structural characteristics or the appearance of rectories, etc.; therefore, those terms could only have meaning when used to describe the occupants.

Without regard to the dictionary descriptions of the activities of occupants of rectories, etc., over the centuries, it is seen that the concept common to all of them in years gone by and at the present time is that the principal occupants of rectories, etc., have as their primary and regular vocation the religious life or ministry under a religious superior. None of the definitions include within their scope persons whose religious activities constitute an avocation even though their religious beliefs are intensely held and adherred to and their avoeational activities are church related.

We do not believe it was the purpose or intent of the zoning ordinance to authorize the occupancy of a building in a one-family-residential district by nine unrelated laymen just because the tenth occupant is a clergyman.

The court holds that it was the purpose and intent of the rectory, parish house, monastery, and convent exception found in the one-family-residential portion of the ordinance to authorize the occupancy of a dwelling in a district zoned one-family of up to ten unrelated persons whose vocations are that of clergyman, minister, priest, rabbi or nun. In other words, it is the primary and regular vocation of the person that is determinative of the question and not activities, etc., pursued as an avocation.

The men of Opus Dei seeking to occupy the dwelling in question do not have as their primary and regular vocation the religious ministry and therefore do not come within the purview of the rectory, etc., exception.

Respondents contend that the board of adjustment ruling which denied the men of Opus Dei the right to reside in the dwelling is violative of their constitutional right of freedom of religion clauses of the First Amendment of the United States Constitution, and Art. I, sec. 5, of the Missouri Constitution, and violates Art. I, sec. 10, of the Missouri Constitution, which provides “that no person shall be deprived of life, liberty or property without due process of law.”

In support of their freedom-of-religion claim, respondents principally rely upon Congregation Temple Israel v. City of Creve Coeur, 320 S.W.2d 451 (Mo.1959). In Temple Israel this court held that a municipality did not have the power under section 89.020 (the municipal zoning enabling act) to exclude churches and schools from resi-dentially-zoned districts and held invalid municipal ordinances which did so. Having decided the case in favor of Temple Israel on the ground noted supra, it was not necessary for the court to reach constitutional issues asserted by Temple Israel, although the court did cite numerous cases holding that zoning ordinances excluding churches and religious schools from residential districts were violative of constitutional provisions relating to the free exercise of religion.

Respondents argue that under the holding of Temple Israel a municipality cannot prohibit the location of churches and religious schools in residential districts, and that the logical conclusion under the facts of the instant case is that a city has no right to exclude members of a religious society from living in a residential district to carry out the chosen goals of their religious society.

Intervenors and the board contend that, even if it be true that a municipality cannot constitutionally exclude churches and religious schools from a residential district, it does not follow that a city cannot validly enact a zoning ordinance which prohibits the occupancy of a house in a one-family district by more than a specified number of unrelated lay persons even though they be members of a “religious society”.

The court has held supra that the ordinance in question does prohibit the use of property in a one-family-zoned district as the home of more than three unrelated persons unless those persons have as their primary and regular vocation the religious ministry. We have also held supra that the members of Opus Dei, other than Rev. Stetson, who seek to occupy the house in question as their home are not persons who have such a vocation.

The Temple Israel case concerned a church and religious school. The instant case involves neither and therefore Temple Israel is not controlling here.

In Village of Belle Terre v. Boraas, 416 U.S. 1, 94 S.Ct. 1536, 39 L.Ed.2d 797 (1974), six unrelated students of a college occupied a single-family residence in a one-family-dwelling district. After the owners of the residence, who had leased it to the students, were cited for violating the zoning ordinances, suit was brought in U.S. district court to have the ordinance declared unconstitutional as violative of equal protection and the rights of association, travel, and privacy. The district court upheld the ordinance and the court of appeals reversed. The United States Supreme Court reversed holding the zoning ordinance constitutional.

In Boraas the court stated, loe. cit. 8, 94 S.Ct. loc. cit: 1540: “It is said, however, that if two unmarried people can constitute a ‘family’, there is no reason why three or four may not. But every line drawn by a legislature leaves some out that might well have been included. That exercise of discretion, however, is a legislative, not a judicial, function.” In Boraas the common tie was that the six unrelated people were all college students and the reason they desired to occupy one house was that a cooperative housing arrangement was considered by them to be pleasant, convenient, promotive of scholarly exchange, and within their pocketbooks. It was conceded that all occupants behaved in a responsible manner and no immoral conduct on their part was even suggested. Each occupied a separate bedroom. See Boraas v. Village of Belle Terre, 476 F.2d 806, 808 (U.S.C.A.2d Cir. 1973), for detailed facts.

In the instant case, the common tie among the laymen is their membership in Opus Dei and their reason for desiring to occupy the house in question together is that such an arrangement is conducive to the furtherance of their avocational religious activities.

The difference between Boraas and this case is that here the common tie is religious whereas in Boraas it was educational and economic. Respondents argue that this distinction is a major one because the purpose of living together here is to carry out the religious purposes of the organization— Opus Dei.

We believe it important at this point to note that the use sought to be made of this residence by respondents is not a use necessarily incidental to that of a church or parochial school so as to warrant consideration being given to respondents’ claim as a right falling within the penumbra of the First Amendment rights of the free exercise of religion. It rather appears that respondents’ position is that because Kirk-wood specifically provided for rectories, parish houses, convents, and monasteries in one-family-dwelling districts, which rectories, etc., under the ordinance may be unconnected with any particular public church worship in another building or parochial school, the use respondents seek to make of the residence is within the penumbra of that designated in the ordinance and therefore a denial of that use to respondents invades their freedom-of-religion rights.

In order for a claimed activity to be given constitutional protection as within the penumbra of a constitutional right, it is necessary that the claimed activity be essential to the free exercise of the constitutionally protected right. That is what we believe is the essence of Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510 (1965). As applied to the instant case, we do not believe the penumbra language of Griswold can become the basis for holding that because Kirkwood saw fit to allow a limited group of clergymen or nUns to reside in a single-family district as a group the municipality is thereby required to extend that legislatively-created right to a group of laymen.

Palo Alto Tenants’ Union v. Morgan, 321 F.Supp. 908 (U.S.D.C.N.D.Calif.1970), affirmed 487 F.2d 883 (U.S.C.A. 9th Cir. 1973), involved a group of unrelated people exceeding in number that which was defined as a “family” in a zoning ordinance who desired to occupy a dwelling in a single-family residential district. The ordinance prohibited such occupancy and plaintiffs sought to have the ordinance declared unconstitutional on the grounds that it infringed upon their rights of freedom of association, privacy, equal protection, and due process of law.

After noting the characteristics of the traditional family as compared with the “voluntary family”, the district court said at 911: “The communal living groups represented by plaintiffs share few of the above characteristics. They are voluntary, with fluctuating memberships who have no legal obligations of support or cohabitation. They are in no way subject to the State’s vast body of domestic relations law. They do not have the biological links which characterize most families. Emotional ties between commune members may exist, but this is true of members of many groups. Plaintiffs . are unquestionably sincere in seeking to devise and test new life-styles, but the communes they have formed are legally indistinguishable from such traditional living groups as religious communities and residence clubs. The right to form such groups may be constitutionally protected, but the right to insist that these groups live under the same roof, in any part of the city they choose, is not. To define ‘association’ so broadly, and to apply Shapiro [v. Thompson] [394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969)] so widely, would be to dilute the effectiveness of that special branch of jurisprudence which our tradition has developed to protect the truly vital interests of the citizenry.”

The court upheld the ordinance and the judgment was affirmed on appeal.

The group of laymen in the instant case is legally the same as the group of people in Palo Alto Tenants Union, supra. The fact that the laymen in this case have as their common tie a religious motivation does not require a court to declare an ordinance which is valid as to other lay groups to be invalid as to this group of lay people. To do so would leave to a board of adjustment the authority and power to issue an occupancy permit to one group of laymen because they were acceptably religiously motivated and to deny the permit to another group of laymen which were found not to be acceptably religiously motivated, or to a group which the board determined that the religious motivation was a subterfuge.

Intervenors and the board argue that the true purpose of the rectory, its exception for groups up to ten in number, was to permit local churches to maintain auxiliary buildings for church-related activities, such as a church school, and to provide residences for their clergymen and nuns to teach in the school and to permit groups of up to ten nuns or ten priests to dwell in one building and pursue activities of seclusion and contemplation normally associated with convents and monasteries.

We deem it a matter of common knowledge that it has been traditional and customary for nuns who teach in parochial schools to reside together in a house on or near the school or church grounds and that house is normally called a “convent”, and that clergymen or priests assigned to or in charge of a parish church traditionally reside together in a house on or near the church property and that house is usually called a “rectory”. The court does not say that these were the sole purposes underlying the rectory, etc., exception because that exception in the ordinance does not, by its terms, directly relate itself solely to a school or church as such. Nevertheless, this practice is so obvious and of such long standing that to ignore it would be unwarranted.

The recognition of the practice noted supra evidences that at least one of the purposes to be served by the rectory, etc., exception was the facilitation of the constitutionally-protected right of freedom of worship and the right to maintain parochial schools. As such, the limitation on the rectory, etc., exception, which is that it is available to persons whose primary and regular vocation is the religious life or ministry, is not wholly arbitrary but rather provides fixed criteria for its application.

The judgment of the circuit court is reversed and the cause is remanded with directions to enter judgment consistent with the views herein expressed which affirms the order of the board of adjustment rescinding the occupancy permit.

All of the Judges concur.


author: HENLEY, Judge.

text:
    STATE of Missouri ex rel. Bobby Lee SMITH and Employers Mutual Casualty Company, Relators, v. The Honorable Kelso JOURNEY, Judge, Respondent.
    No. 59244.
    Supreme Court of Missouri, En Banc.
    March 8, 1976.

      Stephen M. Blackwell, Blackwell, Sanders, Matheny, Weary, & Lombardi, Kansas City, for relators.
    John C. Milholland, Harrisonville, for respondent.
   HENLEY, Judge.

This original proceeding in prohibition, commenced in the Court of Appeals, Kansas City district, was transferred here on recommendation of that court after issuance of its provisional rule and before opinion. Rules 83.06 and 83.09.

The action out of which the proceeding arose is one for damages for personal injuries and loss of consortium filed in the circuit court of Cass county (in the 17th circuit; William M. Kimberlin and Robert G. Russell, Judges) by Mollie and Blaine Famuliner (plaintiffs) against Bobby Lee Smith (Smith), one of the relators herein. On application of Smith for a change of venue pursuant to Rule 51.04, the damage suit was transferred to the circuit court of Bates county (in the 27th circuit; Kelso Journey, Judge). After the case reached Bates county, plaintiffs filed an amended petition impleading as an additional defendant Employers Mutual Casualty Company (Employers), the other relator herein. Thereafter, Smith and Employers filed their joint application for change of judge pursuant to Rule 51.05. On presentation, this application was denied and relators immediately sought this writ of prohibition on the ground that respondent was without jurisdiction to deny the application and exceeded his jurisdiction in doing so. As indicated, the provisional rule in prohibition has issued, and it is now for us to decide whether the rule should be made absolute or discharged. We conclude that it should be discharged.

The question presented is, in a nutshell, whether a party-defendant who has obtained a change of venue, or a party who has been added as a defendant since the change of venue, may thereafter obtain a change of judge. The applicable rules are our new Rules 51.04, 51.05 and 51.06.

Rule 51.04, applicable to change of venue for cause, provides in pertinent part:

“(f) Application for change of venue may be made by one or more parties in any of the following classes: (1) plaintiffs; (2) defendants; (3) third-party plaintiffs (where a separate trial has been ordered); (4) third-party defendants; (5) intervenors.
“Each of the foregoing classes is limited to one change of venue and any such change granted any one or more members of a class, including changes granted under Rules 51.02, 51.03 or 51.04, exhausts the right of all members of the class to a change of venue, with this exception: in condemnation cases involving multiple defendants, as to which separate trials are to be held, each such separate trial to determine damages shall be treated as a separate case for purposes of change of venue.”

Rule 51.05, applicable to change of judge, provides in pertinent part:

“(d) Application for change of judge may be made by one or more parties in any of the following classes: (1) plaintiffs; (2) defendants; (3) third-party plaintiffs (where a separate trial has been ordered); (4) third-party defendants; (5) intervenors. Each of the foregoing classes is limited to one change of judge and any such change granted any one or more members of a class exhausts the right of all members of the class to a change of judge, with this exception: in condemnation cases involving multiple defendants, as to which separate trials are to be held, each such separate trial to determine damages shall be treated as a separate case for purposes of change of judge.”

Rule 51.06, applicable to change of venue and change of judge, provides in pertinent part:

“(a) If a party requests and obtains either a change of venue or a change of judge, he shall not be granted any additional change thereafter. A party who desires both a change of venue and a change of judge must join and present both in a single application.”

Relators contend that either of them is entitled to a change of judge, notwithstanding the fact that one (Smith) previously obtained a change of venue. They argue that Rule 51.06(a), proscribing any additional “change” after a party has obtained either a change of venue or judge, refers and applies to an individual “party” to a lawsuit; not to a “class” of parties referred to in Rules 51.04(f) and 51.05(d).

As to Smith, their argument is that Rule 51.06(a) is intended to apply only to a situation where a party desires simultaneously a change of venue and a change of the judge before whom the case is then pending; not to a situation where a party has no cause for complaint or dissatisfaction with the judge, desires and obtains a change of venue only, and, after the venue has been changed to a court presided over by another judge, he then desires a change of judge because of some complaint or dissatisfaction with the “new” judge.

As to Employers, they make the additional argument that even if Rule 51.06(a) is meant to apply to a party as a member of one of the “classes” of parties described in Rules 51.04(f) and 51.05(d), it does not bar this party from obtaining a change of judge, because it was not a member of the class when Smith, the other member of the same class, obtained a change of venue.

In 1973 this court made rather drastic changes in its rules of procedure applicable to change of venue and change of judge (formerly disqualification of judge). The procedure was simplified by eliminating many of the requirements of statutes and then existing rules, some of which bred unreasonable delay in the disposition of litigation on its merits. Under the new rules, a party may have one change of judge merely for the asking. His application need state only: “defendant requests a change of judge.” No longer is he required to state the cause of his application; in fact, he is not even required to have a “cause” or reason for the application. No longer is he required to swear that the judge is prejudiced against him; he need have no complaint against the judge. However, this right to one change of judge has its limitations and restrictions: it is subject not only to Rule 51.05, but also Rules 51.04 and 51.06 and, in some instances, Rule 51.03. These rules are of a piece; of the same matter or subject. Being pari materia, they must be considered and construed with reference to each other.

The provision in Rule 51.06(a) that a party who has obtained either a change of venue or change of judge shall not be granted any additional change thereafter has reference to a “party” as a member of any of the classes of parties designated in Rules 51.05(d) and 51.04(f) and to the limitation those rules place on each class; the restriction denying any additional change is read and considered as a part of Rule 51.04 and Rule 51.05. Thus, where a member of one of the classes has obtained either a change of venue or a change of judge he has exhausted the right of all members of the class to that change and thereafter none of its members may be granted any additional change, either of venue or judge.

The Rule 51.06(a) denial of any additional change after a change of venue or judge has been obtained is not limited to the situation where a party desires both simultaneously, as urged by relators; it has no reference to the “desires” of a party as influenced by “cause” for a change of judge, or to the timing of the party’s “desires,” and, as indicated, “cause” for complaint or dissatisfaction with the judge is no longer required.

The provision of these rules that any “change granted to any one or more members of a class exhausts the right of all members of the class to a change” of venue or judge makes no exception for a person who becomes a member of the class after the change. The only exception recognized by these rules is that applicable to condemnation cases. Had the court or its committee on rules intended to except this person from the effect of the provision quoted from Rules 51.04 and 51.05 and the limitation of Rule 51.06(a) that could and would have been expressed in the rules. However, there was no more reason to except this “new” member of the class than there would have been to except any existing member who had not sought but was also affected by the change taken by another member of his class. Had the latter exception been made there would have been little, if any, reason for adoption of new Rule 51.

The provisional rule in prohibition is discharged.

All concur.

      . References to rules are to Missouri Supreme Court Rules.

      . Adopted January 19, 1973, and effective September 1, 1973, before the events herein described.

      . Rule 51.03 is not, of course, involved b granted under Rule 51.04. this case, the change of venue having been