Missouri Divorce & Family Law Blog

Missouri Divorce & Family Law Blog

for Missourians struggling with divorce and family law matters

Modification of Maintenance appropriate on Voluntary Retirement and Increase in Resources of Obligee; No entitlement to attorney fees just because of lesser income.

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

Recent Case:  Wife appeals Judgment of the Circuit Court modifying her spousal maintenance award and denial of attorney fees

Statutes base maintenance on, and limit it to, need, and allow modification when a substantial and continuing change in circumstances make the initial award unfair.  Such change may include involuntary retirement, on which the record supports the circuit court’s findings, with evidence that partnership agreement required retirement and that further employment would be expensive.  It may also include an increase in obligee’s resources, on which the record supports the circuit court’s findings, with evidence that obligee receives a monthly payment from obligor’s annuity and that obligee’s income is increasing.

Statutes assign authority to award attorney fees to circuit court exclusively.  Nothing entitles a party of lesser income, having sufficient resources to pay their lawyer, to an award of attorney fees.

Judgment Affirmed on other grounds

FB v. LB

Missouri Court of Appeals, Eastern District

ED 103035

Filed May 24, 2016

2 year statute of limitations applies to set aside a paternity and child support order, even if fraud exists.

Posted in Child Support, Family Law, Financial Issues, Paternity

Mother and Father (T.B.) had a baby in 2000.  Mother told T.B. he was the father, and he signed an affidavit acknowledging paternity.  The Family Support Division made an administrative determination that T.B. was the legal father, and ordered T.B. to pay child support for the child in February 2001.

Sometime prior to June 2010, to clear her conscience, Mother told T.B. that he was not the biological father.  Father filed a declaration of non-paternity on August 27, 2012.  He attached a DNA test report showing he was not the biological father of the child.  T.B. sought relief under Rule 74.06(d), asserting that Mother had perpetuated fraud against him by making false statements to him that he was the biological father when she knew he wasn’t.

The trial court concluded that T.B.’s right to bring an action for extrinsic fraud was foreclosed by the statutory time limit for him to contest paternity, which had run.

T.B. appealed.

Held: Affirmed.  The trial court properly found T.B.’s petition to be out of time, but for the wrong reason.  The trial court reasoned that T.B. had completed the DNA test results on June 15, 2010, although he did not pick them up until August 2012, shortly before he filed his petition.  Therefore, pursuant to § 516.280, RSMo, the statute of limitations for T.B. to act had run.

However, the appellate court determined that § 516.280 was inapplicable here because § 210.854.specifically sets forth the time in which a legal father may file a petition to set aside paternity (any time prior to December 31, 2011, or, after that date, within two years of the entry of the original judgment of paternity).  Because T.B. acknowledged his paternity in 2000, he only had until December 31, 2011, to file a petition to set aside that paternity judgment, which he did not do.  Section 210.854.1 does not authorize the time to be extended for any reason, including fraud. (Emphasis added).  The specific statute limiting a legal father’s time frame does not entitle T.B. to relief under Rule 74.06(d).

Source: Missouri Courts Bulletin April 2016

Spousal Support (Maintenance) Denied in Missouri Divorce

Posted in Alimony / Maintenance, Child Support and Alimony, Divorce, Family Law, Financial Issues, Getting a Divorce, Property-Debt Division

Recent Case: Missouri Court of Appeals upholds Judgment denying spousal support when sufficient property is awarded

Wife appeals from the trial court’s judgment that dissolved her marriage with Husband, divided marital property and marital debt, and denied her an award of maintenance. Wife challenges only the trial court’s denial of an award of maintenance.

Judgment Affirmed.

In an action for the dissolution of marriage, Missouri statutes allow an award of maintenance to spouse who cannot meet reasonable expenses through appropriate employment and property, including that awarded in dissolution action.

The evidence established that Wife was capable of working a full-time job and that Wife’s expenses were inflated on her income and expense statement. Further, the judgment awarded Wife her individual retirement account and half of Husband’s retirement account. Wife’s income and access to retirement account distributions combined to afford her with sufficient assets to provide for her reasonable needs so that the trial court did not abuse its discretion in denying Wife maintenance.

Missouri Court of Appeals, Western District – WD78527

Filed March 15, 2016

Child’s refusal to visit other parent no excuse to violate custody order; Parent held in Contempt

Posted in Child Custody and Visitation, Custody and Visitation, Divorce, Family Law, Legal Proceedings

Recent Missouri Case:     Parent responsible for violating the court order when child refuses to visit the other parent as required in the court ordered parenting plan

Appellant D.R.P. (“Mother”) appeals the judgment of the Circuit Court of Jackson County holding her in civil contempt of the court’s judgment regarding the parenting plan for M.P.P. (“Father”) with their minor child C.P. (“Daughter”). In her sole point on appeal, Mother argues the trial court erred in finding that she willfully, intentionally, and contumaciously disobeyed the court’s judgment and parenting plan because there was not substantial evidence to support such a finding.

The trial court did not err in holding Mother in contempt of court because there is substantial evidence to support the trial court’s finding that Father made a case for civil contempt and Mother failed to establish that her failure to enforce the parenting plan was not due to her own intentional and contumacious conduct. The Judgment ordered parents to execute parenting plan including parenting time.  The record shows that, at respondent’s scheduled parenting time, appellant picked up child after school and sat silent with child in car when child refused to accompany respondent on multiple occasions.  Such conduct “undermined” the parenting plan.

JUDGMENT UPHELD

Missouri Court of Appeals, Western District – WD78541

All financial resources can be considered for support, but parent must have some level of control over gifts and inheritances to count as income

Posted in Alimony / Maintenance, Assets and Debts, Child Support, Child Support and Alimony, Divorce, Family Law, Financial Issues, Modifications

Courts Bulletin: No financial resource is exempt from the court’s consideration for child support and maintenance calculation purposes. However, financial gifts from a parent or third party and lump-sum inheritances/financial gifts are considered as to the level of control a parent has over said gifts and how they are used.

Recent Case No. 102017 (Mo. App. E.D., October 27, 2015), Clayton, J.

The parties were married in May 1998 and had four children. The trial court entered a consent judgment in March 2011 granting the parties joint legal and joint physical custody. Father, who was the sole owner of a catering family business at the time of the dissolution, was to pay Mother $2,500 per month in child support (an agreement above the Form 14) and $7,500 in maintenance.

Mother then filed a modification to increase Father’s child support obligation and reduce Father’s maintenance obligation. The parties agreed that Mother should have sole legal sole physical custody, and Father be awarded supervised visitation.

Father suffered from a very serious drinking problem, and squandered away a great deal of money from the family business on alcohol and lavish trips. At the time of the modification, Father’s Father (Sch. Sr.) had executed a warrant and purchased back 85% of stock in the family business because his son failed to make payments on a $1.35 million promissory note. Father’s parents paid for several stints in rehab, five months of his child support obligation, improvements to Father’s house, and Father’s attorney’s fees. Father no longer had anything to do with running the family business.

The trial court rejected a Form 14 that set Father’s child support obligation at $1,514 and ordered $5,000 per month in child support and $1,500 per month in maintenance.

Father appealed.

Held: Reversed and remanded. Among other points, Father argued that the support he received from his parents should not be taken into consideration by the court when determining a child support amount. The controlling cases on whether funds from parents or other third parties should be considered for support purposes are Thurman v. Thurman, 95 S.W.3d 172 (Mo. App. 2003) and In re Marriage of Petersen, 22 S.W.3d 760 (Mo. App. 2000).

For lump sum gifts and financial assistance from third parties to be considered, the court must examine whether said funds are given directly to the parent or if he/she had any control over how the funds were used.

In the case at bar, the trial court erred in calculating funds from the family business (from which Father once routinely had access) as well as the assistance from Father’s parents in its support calculation purposes. Sch Sr. testified that Father was to have nothing to do with the family business and both parents testified that they paid specific expenses for Father rather than turned the money over to his control.

Because the trial court erred in determining Father’s financial resources, both orders of child support and maintenance were remanded for further proceedings

Source for Post:  Missouri Bar Courts Bulletin

Stock Split is Marital Property in Missouri Divorce

Posted in Assets and Debts, Divorce, Family Law, Financial Issues, Legal Separation, Property-Debt Division

Recent Case:  Split of Stock awarded to spouse is property of that spouse

Wife appeals the judgment of contempt of the Circuit Court of St. Charles County ordering her to transfer 960 shares of stock to Husband.

Decision upheld

Because the dissolution judgment awarded Husband 96 shares of Wife’s unvested MasterCard stock and the stock split ten-to-one before it vested, Husband was entitled to the resulting 960 shares. In ordering Wife to transfer to Husband 960 shares of MasterCard stock, the trial court was merely acting to enforce its prior judgment.

When stock splits, it does not grow. It just changes form. So when Wife was ordered to deliver 96 shares that split 10-1 before delivery, she was required to deliver 960 shares, and no modification of judgment was needed to give the judgment that effect. Rules provide that circuit court cannot modify a property division after 30 days past the date of Judgment, as the Judgment is then final.

 

PD, Appellant, vs. GB, Respondent.

Missouri Court of Appeals, Eastern District – ED102328

Filed December 8, 2015

 

 

 

 

Guardian Ad Litem recommendation not binding; Custody findings required; Property division must be fair, not necessarily equal

Posted in Assets and Debts, Child Custody and Visitation, Custody and Visitation, Divorce, Family Law, Guardian Ad Litem, Property Division, Property-Debt Division

Recent Ruling:  Court not required to follow Guardian Ad Litem Recommendation, Specific findings under the 8 statutory factors required in Judge tried case

Father appeals from the trial court’s dissolution judgment as to child custody and property division in favor of his former spouse, Mother. Father asserts that the trial court erred by: (1) failing to make specific findings of fact supporting its custody award as required by statute; (2) determining custody without the recommendation of the guardian ad litem; and (3) awarding Mother $108,500 as her interest in the marital residence

Case Reversed

No law requires guardian ad litem to make a recommendation or circuit court to follow it. However, statute provides that any custody arrangement not agreed to by the parties must have support in specific findings of fact. With regard to the marital property, the source-of-the-funds rule provides that property acquired during the marriage with funds part marital and part separate is part marital and part separate, but division of property need not be equal, only fair and equitable.

No. ED102196

Eastern District Court of Appeals

Filed November 3, 2015

Property division in Missouri divorce is final and cannot be modified

Posted in Assets and Debts, Divorce, Financial Issues, Property-Debt Division, Res Judicata and Collateral Estoppel, Retirement Plans and Division

Recent Case:  Division of Property is final and non-modifiable in divorce proceedings.  Statute enacted after the end of divorce case does not apply retroactively.

In a recent case from the Missouri Court of Appeals, Wife appeals the trial court’s determination that her agreement to turn over her survivor interest in her former husband’s (“Father”) pension benefits to his sons from his first marriage was enforceable. As part of their dissolution settlement, Father and Wife agreed that, should Father predecease Wife, she would pay over any survivor benefits from Father’s pension to Father’s sons. The dissolution court approved the separation agreement and made it a part of the judgment dissolving the marriage. Upon Father’s passing, the sons requested that Wife turn over the benefits she was receiving. When she declined, the sons filed suit. Wife argued that: (1) the separation agreement was invalid and unenforceable because Missouri statutes do not allow the transfer of pension survivor benefits and because the transfer of benefits is against public policy; and (2) the dissolution court lacked authority to enforce such an assignment. The trial court determined that the agreement was enforceable, and ordered Wife to turn over any benefits she receives.

DECISION UPHELD (AFFIRMED).
1.      When a dissolution court finds a separation agreement to be fair, the terms of the separation agreement are binding on the trial court. The court does not retain the power to modify the terms of the separation agreement that is incorporated into a judgment and decree of dissolution.

2.      Res judicata, or claim preclusion, precludes the parties from later bringing claims arising from the same set of facts that could or should have been pursued in the prior action, and unequivocally applies to a defense that a defendant failed to raise in the prior action.

3.      If Wife believed that the agreement to pay over the survivor benefits to the sons was contrary to a statute that bans such assignments, her remedy was to appeal the judgment, not challenge the judgment in a proceeding, many years later.

4.      Res judicata also applies to Wife’s claim that a subsequently enacted statute bars the assignment of the survivor benefits, because the law bars the retrospective application of statutes to cases that have achieved final resolution.

5.      Subject matter jurisdiction is conveyed by the constitution, not statutes, and under the constitution, the dissolution court had jurisdiction over Wife and Father’s dissolution proceeding. Thus, even if the dissolution court did not have statutory authority to order Wife to pay over the survivor benefits, it still had subject matter jurisdiction over the case. So long as the dissolution court had subject matter jurisdiction over the proceeding, its judgment is not subject to collateral attack from a party to the judgment.

 

OPINION FILED:

September 1, 2015

Western District

WD78149

Relocation approved, custody changed from joint custody to sole custody

Posted in Child Custody and Visitation, Custody and Visitation, Modifications

Recent case:  Relocation must be in good faith and in children’s best interests; sole custody award appropriate when parents cannot jointly make decisions.

In a recent case from the Missouri Supreme Court, a mother sought to modify a judgment dissolving her marriage that had granted the parents joint legal and joint physical custody of their two children. The father appeals the circuit court’s judgment (1) approving the mother’s relocation to a different town and (2) modifying custody of the children from joint legal custody in favor of both parents to sole legal custody in favor of the mother.

Decision Affirmed.

Evidence supported the circuit court’s approval of the mother’s relocation as being in good faith. Evidence included that the mother lost her teaching job and found a new teaching job that would require her to move about 56 miles away, that she had identified a good school for the children in the new area, and that the children were familiar with that area and would have a support network there as the mother’s family lived nearby. Evidence also supported the circuit court’s finding that relocation was in the children’s best interests.  In particular, relocation would allow the children to distance themselves from the parents’ toxic relationship.

Substantial evidence also supported a change from joint to sole legal custody in the mother based on the evidence that the parents’ relationship was so contentious that they could not function effectively, communicate, or make joint decisions regarding the children, and that the father’s negative conduct had a deleterious impact on the children.

 

PLP, Appellant vs. DMP, Respondent.

Missouri Supreme Court – SC94488

Conduct not to level of stalking to support protection order

Posted in Domestic Abuse, Family Law, Spousal Abuse

Recent Case:  Respondent’s conduct did not rise to the level of stalking to support an order of protection.

Respondent appeals from the judgment of the trial court granting a full order of protection in favor of Petitioner.  Respondent argues the trial court erred in granting a full order of protection under Section 455.040 because Petitioner failed to prove by a preponderance of evidence that Respondent’s actions constituted “stalking” under Section 455.010(13).

Holding:  Reversed

Because of the potential stigma that may attach to an individual who is labeled a “stalker” under the Missouri Adult Abuse Act, trial courts must exercise great care to ensure sufficient evidence exists to support all elements of the statute before entering a full order of protection.

Section 455.010(13) defines “stalking” as:

When any person purposely and repeatedly engages in an unwanted course of conduct that causes alarm to another person when it is reasonable in that person’s situation to have been alarmed by the conduct.  As used in this subdivision:) “Alarm” means to cause fear of danger of physical harm;

(a)   “Course of conduct” means a pattern of conduct composed of repeated acts over a period of time, however short, that serves no legitimate purpose. Such conduct may include, but is not limited to, following the other person or unwanted communication or unwanted contact; and

(b) “Repeated” means two or more incidents evidencing a continuity of purpose.

Here, Respondent did not threaten any physical harm in the text messages. While he did attempt to summon Petitioner to his house in the middle of the night by getting her to deliver a pizza to him at 1:53 a.m., there is no evidence he did anything to cause Petitioner to fear physical harm. Also, in a videotaping incident, Respondent did not do anything to cause Petitioner to fear physical harm. Thus, the Court found it was not reasonable for Petitioner to fear she was in danger of physical harm based upon Respondent’s pattern of behavior. While his behavior was certainly unwanted and inappropriate, it does not amount to stalking, which is at issue here.

Missouri Court of Appeals

Eastern District

ED101701

Filed May 19, 2015