Fox Family Lawyers
Cynthia Moseley Fox
Attorney at Law
7751 Carondelet Avenue,
Suite 700
Clayton, Missouri 63105
(St. Louis)

A Plan Gone Awry Lands a Man in Jail

As Fernando sat in the St. Louis County jail, he must have wondered how it had come to this. Hadn’t his friend, the lawyer, assured him that he wouldn’t go to trial once Fernando told the judge he wanted a lawyer?


Before I get too far ahead of myself, dear readers, let me to outline the case before you. According to an opinion just issued by the Missouri Court of Appeals, Fernando and his wife, Maria, divorced in February 2007 and Fernando was ordered to pay $1,000 a month in combined spousal maintenance and child support, plus make up $2,100 in child support arrearages that accumulated while the divorce was pending.


Not long after, Fernando was laid off and quickly fell even farther behind, making only one $675 payment. By August 2007, Maria’s patience ran out and she filed a motion for contempt of court.


What happened next is anybody’s guess because the Appellate Court record is a little thin on the details, but what follows is probably pretty close.


Fernando likely thought this was something he could handle without having to pay a lawyer. You see Fernando is something of an entrepreneur with interests in six businesses, five rental properties and a timeshare. He’s used to getting things done on his own. But, since all his various ships hadn’t yet come in, he also had to work for someone else, and since he was currently unemployed, probably a little short on cash.


Even so, Fernando’s no fool so he undoubtedly called a lawyer…let’s call him Larry…for some advice. In all likelihood, Larry probably said something like this:


“The judge will bring you and Maria together to see if you two can agree on a payment plan in order to avoid a trial. However, if things can’t be worked out, the judge will decide that it’s time to go to trial. If he does, this is what you should say….and write this down… ‘I would like a continuance so that I can obtain counsel’. Once you say that, the judge will set a new date and I’ll pick it up from there.”


On that fateful day, October 9, 2007, things went just as Larry had predicted. Everyone met in chambers for an informal conference. Fernando was quite contrite, explained his jobless predicament, and promised to make things right as soon as he got back on his feet. But, Maria was not to be mollified and the judge seeing the impasse ordered everyone into court for the trial.


Undoubtedly that’s when Fernando reached into his pocket for the magic words. But, upon delivering them, the judge, a kindly man with 25 years on the bench, did the inexplicable. He denied Fernando’s request and herded everyone into court. It’s as if his honor had suffered a brain cramp and forgot one of this country’s most sacred guarantees that any defendant facing incarceration shall have the right to legal representation.


It was from jail that Fernando next called Larry. I can only imagine the conversation:


Fernando: “Larry, this is Fern. They tell me this is my one telephone call so don’t tell me that you’re in conference and that you’ll have to call me back.”


Larry: “Fern, Fern. Where are you”


Fernando: “In jail.”


Larry: “Jail. Jail! How did that happen?”


Fernando: “I don’t know. I used the exact words you told me, but it’s like the judge missed his cue. The next thing I know I’m in court trying to call witnesses, but I didn’t have any, and object to whatever the other side did. Nothing worked. Now I’m locked up until I come up with $1200 for Maria.”


Of course, Larry jumped right in. In short order, he had his motion before the Court of Appeals. But, justice grinds slowly and by the time petitions and cross-petitions were filed and hearings held, it was December 17th before the Court ordered Fernando set free and his conviction overturned.


What this means is that Fernando got a “do-over”. He’ll have to go back to court on the contempt charge, but I’m betting that this time Larry will be going with him.