Missouri Divorce & Family Law Blog

Missouri Divorce & Family Law Blog

for Missourians struggling with divorce and family law matters

Every child is entitled to a permanent and stable home

Posted in Child Abuse, Child Custody and Visitation, Domestic Abuse

Recent case: Termination of parental rights for failure to rectify

When children are taken into protective care by the children’s division, the goal is to reunite the children and the parent(s).  However, parental rights can ultimately be terminated because of a failure of the parents to remedy the cause(s) of the children to be taken into protective care in the first place.  This is called “failure to rectify.” A termination of parental rights for failure to rectify requires clear and convincing proof that:

  1. The conditions that brought each child into care still persisted, or that other potentially harmful conditions still existed; AND
  2. Those conditions were unlikely to be remedied soon enough for the child to be returned to Mother in the near future, or that continuation of their parent-child relationship would greatly diminish the child’s prospects for early integration into a stable and permanent home.

In this recent case, the Court terminated parental rights, and stated that “every child is entitled to a permanent and stable home.” The evidence supporting the termination of parental rights include mental condition of the mother—supported as to documentation, duration, and severity —failure to comply with the court ordered treatment plan, and failure to improve behavior.  The evidence showing that termination of parental rights was in children’s best interest includes evidence that one child never lived with parent, another had emotional damage from living with parent, and third child’s behavior was better without the parent.

Missouri Court of Appeals

Southern District

SD33150, SD33151, SD33152 (Consolidated)

Court must account for all property in Missouri divorce

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

Recent case:  Party to Missouri divorce cannot appeal until all claims addressed

Wife appeals the circuit court’s judgment dissolving her marriage to Husband. Wife contends that the court erred in failing the distribute a marital pension/retirement plan.  The Judgment was silent regarding the retirement plan, and there was no evidence in the record to support Husband’s claim that the pension plan was included in a catch-all provision for personal property division. The record reflects that the court failed to distribute this property and, therefore, the court’s judgment is not final.  A Judgment must be final in order to be appealed, and the discovery of the undisclosed asset before the time for appeal has run requires dismissal of the appeal.

Missouri Court of Appeals

Western District

WD77094

Missouri Attorney General issues statement on same-sex marriages

Posted in Living Together - Cohabitation, Marriage and Family, Marriage and Living Together, Same Sex Couple Issues

Jefferson City, Mo. – Attorney General Chris Koster today issued the following statement related to the St. Louis Recorder of Deeds issuing marriage licenses to several same-sex couples:

“While I personally support the goal of marriage equality, my duty as Attorney General is to defend the laws of the state of Missouri. While many people in Missouri have changed their minds regarding marriage equality, Missourians have yet to change their constitution.

“Cases currently pending in Jefferson City and Kansas City regarding the constitutionality of Missouri’s ban against same-sex marriage will be decided in the coming months. Regardless of my personal support for marriage equality, such vital questions cannot be decided by local county officials acting in contravention of state law.

“Therefore, I have asked the St. Louis Circuit Court to prevent the St. Louis City Recorder of Deeds from issuing such marriage licenses until this matter can be resolved by our state’s judiciary. This question will likely be fully answered by our Missouri courts within the next 12-18 months.”

Attorney Fees Awarded on Defective Relocation Notice

Posted in Uncategorized

Recent Case:  Father was awarded sole custody and Mother ordered to pay attorney fees due to defective relocation notice.

Missouri’s relocation statute requires a parent who intends to relocate the child for a period of more than 90 days to provide the following information, in writing, at least 60 days before the proposed relocation:

(1) The intended new residence, including the specific address and mailing address, if known, and if not known, the city;

(2) The home telephone number of the new residence, if known;

(3) The date of the intended move or proposed relocation;

(4) A brief statement of the specific reasons for the proposed relocation of the child; and

(5) A proposal for a revised schedule of custody or visitation with the child. Your obligation to provide this information to each party continues as long as you or any other party by virtue of this order is entitled to custody of a child covered by this order. Your failure to obey the order of this court regarding the proposed relocation may result in further litigation to enforce such order, including contempt of court. In addition, your failure to notify a party of a relocation of the child may be considered in a proceeding to modify custody or visitation with the child. Reasonable costs and attorney fees may be assessed against you if you fail to give the required notice.”.

Mother appeals the circuit court’s order modifying the dissolution of marriage judgment and awarding Father sole physical and legal custody of their child, child support, and attorney’s fees.

The Court found that (1)Mother did not comply with the relocation statute because mother’s written notice failed to reference the child relocating, when the child was to be relocated, or provide a proposal for a revised schedule of custody or visitation; (2) modifying the custody decree to sole custody to Father was appropriate, and that (3) awarding Father $4,200 in attorney’s fees was appropriate because  the relocation statute allows for attorney’s fees where proper written notice is not given.

Missouri Court of Appeals, Western District – WD7640

Filed June 10, 2014

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%