Missouri Divorce & Family Law Blog

Missouri Divorce & Family Law Blog

for Missourians struggling with divorce and family law matters

60 day Notice required for relocation, not Motion to Modify

Posted in Child Custody and Visitation, Custody and Visitation, Divorce, Legal Proceedings, Modifications

Case Law Update:  Motion to Modify is not required to relocate, but 60 day notice must be given to the non-moving parent, who then may file an objection.

Under Missouri law the address designated as the minor child’s primary residence for educational and mailing purposes is considered a sub-issue of custody. A change to the residential designation is a change to the terms related to joint physical custody, such as the parenting time schedule, and it is not a change to the custodial arrangement itself.

In a recent case, the court determined Mother was required to comply with the Missouri relocation notice requirements. Although Mother and Father had joint physical custody of the minor children, the primary residential address for the children was Father’s address in Missouri.  Mother’s motion to modify sought to change this designation of the residential parent from Father to Mother. As a result, Mother’s request to modify the custody arrangement was properly the subject of a motion to modify.

The relocation notice requirement does not require that a parent desiring to relocate a minor child file any motion seeking permission to do so. Instead, the statute provides for a procedure triggered by notice of the proposed relocation.  Once proper notice is given, unless the non- relocating parent files a motion seeking to prevent the relocation, the residence of the child may be relocated sixty days after notice without court intervention.

As a result the trial court erred in dismissing Mother’s motion to modify based on her failure to follow both the statutory requirements for relocation as well as the court’s previous judgment.

Missouri Court of Appeals

Eastern District

ED 100424

Filed April 8, 2014

Unequal Division of Marital Property Appropriate in Some Circumstances

Posted in Assets and Debts, Divorce, Financial Issues, Property Division, Property-Debt Division, Trials

In a Missouri Divorce, the Court must divide all of the property and debt acquired during the marriage.  The property does not necessarily need to be divided equally, but it must be divided equitably (fairly).  In determining this, the Court must consider all relevant factors, including the economic circumstances of each spouse, the contributions of each spouse to the acquisition of the property, the value of non-marital property, the parties conduct during the marriage, and any child custody arrangements.  The trial Court has broad discretion in making property division.

In a recent case from the Missouri Court of Appeals, the trial Court considered contributions made by the Wife in determining the 78/22 award.  Specifically, the Wife had made non-marital contributions to the home, and Husband lived there payment free, Wife purchased vehicles for the Husband, and both parties had equal earning power.  Also relevant was Husband’s conduct, and child custody arrangements. Wife’s withdrawal of $1000 from a bank account was balanced by Husband’s failure to pay child support, and Husband committed misconduct by forging Wife’s name on an insurance disbursement.  For these reasons, the Court divided the property unequally in favor of the Wife.

 

Eastern District of Missouri

ED99203

Filed March 18, 2014

Appeal from the Circuit Court of St. Charles County.

Child Support terminated and child emancipated if requirements for college are not met; child must report grades and course load to parents.

Posted in Child Support, Child Support and Alimony, Divorce, Financial Issues, Uncategorized

Case Law Update on the issue of emancipation of a child and termination of child support obligation for a child in college when course load requirement is not met.

Filed March 4 – Missouri Court of Appeals, Eastern District – ED99492

Father appeals the trial court’s judgment in favor of Mother, on his motion to terminate child support for their daughter in college. Father sought to terminate his child support obligation when Daughter’s academic course load fell below the statutory minimum of 9 credit hours while working 15 hours per week (§452.340.5). The trial court excused Daughter’s non-compliance based on its finding that she was diagnosed with depression. Father asserts that the trial court’s finding is not supported by substantial evidence. The Court of Appeals agreed.

Missouri’s child support law continues a parent’s child support obligation through college but deems child emancipated if she enrolls “either full-time with a minimum of 12 hours or part-time with a minimum of nine hours plus employment of 15 hours per week.”  The law also provides for an exception to minimum enrollment requirements for illness. In this case, there were allegations that the child was depressed, but no credible evidence to support the claim, and no actual diagnosis.

The burden of reporting course load and grade information to the non-custodial parent is on child, not on custodial parent so, though custodial parent’s efforts to back up child’s compliance did not meet statutory standards.

 TRIAL COURT DECISION REVERSED

Enforcement of Missouri Divorce Decrees: Contempt of Court Proceedings.

Posted in Assets and Debts, Child Support, Divorce, Family Law, Financial Issues, Legal Proceedings, Property Division

When a Missouri divorce is concluded, and the Judgment Decree is signed by the judge, regardless of whether the case was settled or tried by the court, the parties are expected to follow the order.  While most people do, there are always those who choose to test their luck by not following terms of the order.  If that happens, there are few options, such as demand letters, law enforcement, and the child support enforcement division, that require little effort or investment of money.  However, many times these efforts fail, leaving the Court’s civil contempt power as the last, but effective, option.

In order for a party to a case to be found in contempt, there must be clear evidence of an open, willful, and deliberate intent of a party to violate the Court’s order.  With most Courts, this is a very serious and high standard, but if a person is found in civil contempt, they can be incarcerated until the violations are cured.  Most of the time though, the Court will stay the execution of the order for incarceration, and give the offending party the opportunity to cure the contempt.  Also, if found in contempt, the offending party will usually be required to reimburse the other party for attorney fees and the costs of the case.

The following types of orders can be enforced with a civil contempt action:

  • Property division orders
  • Debt payment orders
  • Retirement account divisions
  • Spousal support orders
  • Child support orders, including related expenses such as medical, activity, etc.
  • Parenting schedules
  • Money judgments, such as settlement payments, property equalizations, and attorney fees.

Form 14 Mandatory for Determination of Child Support

Posted in Child Support, Child Support and Alimony, Divorce, Family Law, Financial Issues

Recent Case Holding: The trial Court is required to calculate the presumed amount of child support pursuant to Civil Procedure Form 14.

In a recent case from the Missouri Court of Appeals – Eastern District, Husband appeals from the trial Court’s Judgment Decree of Dissolution of Marriage awarding his former wife maintenance, child support, and attorney fees.  When awarding child support, the Court is required to apply a two step analysis.  First the trial Court must calculate the child support pursuant to the Form 14, (Missouri’s child support calculation formula) either by accepting one of the parties’ calculations, or by performing its own Form 14 calculation.  The Form 14 is a mathematical calculation, and is mandatory to insure that the child support guidelines will be considered in every case.  Second, the Court can determine that the Form 14 calculation is “unjust and inappropriate” after the consideration of all relevant factors, and if it so determines, it can award a different support award.  In this case the Form 14 was mostly blank and thus not properly completed, which constituted error by the Court.

In order for the Court to deviate from the Form 14,  a Form 14 must first be calculated, and then the Court must find that the calculation is unjust and inappropriate and enter another amount that is supported by the evidence.  Because the Court failed to initially calculate child support based on the Form 14, the case was remanded to the trial court for proper child support calculation.

PS v. SS, Missouri Court of Appeals for the Eastern District ED99569 – January 2014

Child Support Credit for Overnights Mandatory

Posted in Child Support, Custody and Visitation, Divorce, Financial Issues, military divorce, Modifications

Recent case: A. Harris vs. G Harris, Missouri Court of Appeals, Eastern District – ED99276

Father appeals the trial court’s judgment and decree of dissolution of marriage. Father claims the trial court erred in calculating Father’s child support obligation because Father was entitled to an adjustment for overnight visitation.

REVERSED AND REMANDED.

The Supreme Court has held that, where the paying parent has custody or visitation of the child between 92 and 109 days per year, the trial court must make a ten percent adjustment in the child support obligation.

Additionally, where the paying parent has custody or visitation of the child for more than 109 days per year, he or she may receive an adjustment of over ten percent, up to the discretion of the trial court.

Because Father has visitation with the parties’ son for more than 109 days per year, the trial court abused its discretion in failing to adjust Father’s child support obligation by at least 10 percent.

Mandatory child support overnight credit chart:

Number of overnights/year                            Credit

Less than 36                                                    0%

36-72                                                               6%

73-91                                                               9%

92-109                                                             10%

Over 109                                                         Courts discretion up to 50%

Inability to pay spousal maintenance (alimony) and declining health support modification of spousal support award in Missouri.

Posted in Alimony / Maintenance, Modifications

Recent case: JPD v. KMD Missouri Court of Appeals, Eastern District – ED99338

Husband appeals from the trial court’s Judgment denying his  motion to modify his maintenance obligation owed to his ex-wife. Husband argues there was a substantial and continuing change in his income and circumstances between the last modification and this motion, making him unable to pay the ordered amount of maintenance.

To prevail on motion to modify maintenance, the party requesting the modification must show that changed circumstances render maintenance unreasonable, including inability to pay.  The comparison is between the current circumstances and circumstances at the time of the previous order.  The Circuit court found that a back injury prevented the Husband, a professional golfer, from earning as much income as in the past.  That finding did not support denial of the motion to modify.  Continuously declining health is relevant, and circuit court should have compared current earning ability to earning ability before injury, showing that Husband’s income is now less than maintenance ordered.  The case was remanded to re-calculate maintenance and child support.

 

Missouri Case Law: Dispute Resolution Procedure Required in Parenting Plan

Posted in Financial Issues, Mediation and Alternative Dispute Resolution, Modifications, Paternity

Recent case: In Re The Matter of: C.H., by her Next Friend, C.H., and C.H., Individually, Petitioners/Respondents, v. C.W., Respondent/Appellant. Missouri Court of Appeals, Eastern District – ED98749

Mother appeals from the trial court’s Findings, Conclusions, Order and Judgment of paternity, custody and support entered March 24, 2012, as amended.

 

AFFIRMED IN PART and REMANDED IN PART.

The trial court properly analyzed statutory law and the best interests of the child in making the initial custody determination. Statutes use different factors to determine custody initially, and on relocation, and the circuit court employed correct analysis.  Evidence that one parent used custody to enhance public assistance, instead of allowing more contact with other parent, supported an award of joint physical and legal custody with other parent designated for mailing address purposes.  The trial court’s decision in awarding father residential custody of child was not against the weight of the evidence.

 

The trial court did not abuse its discretion in denying Mother’s post-trial motion for change of judge for bias or improper personalization as Judge’s comments, including references to personal experience and reference to "two fools" in another case, did not show bias.   The trial court awarded Father the 2012 federal tax dependency exemption because he was entitled to it as the custodial parent.

 

Child’s best interests, including avoiding excessive travel during school year, takes precedence over parent’s desire to travel.  Parenting plan’s provisions for agreed departures from prescribed periods of custody did not render judgment indefinite. 

There was no error in the parenting plan and custody arrangement entered by the trial court other than the failure to include a statutorily required dispute resolution plan, which the trial court is instructed to remedy on remand.

 

 

 

Missouri Divorce FAQ: What is meant by No Fault Divorce in Missouri?

Posted in Divorce

Missouri is a modified no fault divorce state.  This means that the proof of fault, wrongdoing, or bad conduct during the marriage is not required for the Court to enter a Decree of Dissolution of Marriage.  All that must be proven with regard to conduct is that the marriage is irretrievably broken and cannot be preserved.

However, this does not mean that fault, or “misconduct” is not relevant to the case, which is why Missouri is a “modified” no fault divorce state.  The misconduct of one party to the case can be a factor in determining several issues in the case, including:

  •  Whether or not spousal maintenance (alimony) is awarded
  • The length and duration of a maintenance award
  • How property is divided
  • How debts are divided
  • Whether the marital estate will be divided equally, or in some other ratio such as 60/40, or 70/30
  • Child custody awards, if the misconduct either directly or indirectly affects the children.   

Spousal misconduct for these purposes can include physical, mental, or emotional abuse, financial misconduct (gambling, squandering assets, financial irresponsibility), adultery, dishonesty, criminal conduct, and any other type of misconduct that may be relevant.

 

Continue Reading

Missouri Divorce FAQ: What is spousal maintenance (alimony), how is it calculated, and how long does it last in Missouri?

Posted in Alimony / Maintenance, Divorce, Financial Issues, military divorce, Modifications

In a Missouri divorce case, one of the issues that the Court will have to decide is the payment of maintenance (alimony) to the former spouse.  Spousal maintenance payments are monthly payments made from one spouse to the other when one spouse cannot support themselves.  A successful spousal maintenance claim will usually involve a situation where one spouse makes substantially more money than the other, and the receiving spouse does not have the present ability to support themselves.  This could be due to one spouse being a “stay at home” parent, being out of the workforce for a significant period of time, or lacking skills or education necessary for employment.  Also, the marriage usually cannot be of short duration.  Most spousal maintenance cases involve marriages greater than 10 years in duration, but this is just a rule of thumb, and spousal maintenance can be awarded in any case.

There is no formula for the calculation of the amount of spousal maintenance in Missouri.  The determination is made on a case by case basis, and is dependent on the income and expenses of both parties.  The general rule is that maintenance is based on the actual needs of one spouse, and the actual ability to pay by the other spouse.  In practice, a spousal maintenance award is usually both “too much” and “not enough”, meaning the award is likely to be more than the paying spouse wants to pay, and at the same time not as much as the receiving spouse would like. The reality is that there is a fixed sum of money to go around, and when spouses separate, there are double the expenses of maintaining two households.

A spousal maintenance award can be modifiable or non-modifiable, and it can be for a specific duration of time, or for an unlimited period of time.  If maintenance is not limited in time, it is usually both modifiable and terminable at a future date upon motion of either party.  Both modifiable and non-modifiable maintenance terminate by law upon death of either spouse, or remarriage of the receiving spouse, unless the decree expressly states otherwise.