Missouri Divorce & Family Law Blog

Missouri Divorce & Family Law Blog

for Missourians struggling with divorce and family law matters

Attorney fee expenses cannot be considered part of reasonable monthly expenses in maintenance modification

Posted in Alimony / Maintenance, Family Law, Financial Issues, Modifications

Recent case: Attorney fees are not a substantial and continuing change in circumstances that supports a modification of maintenance, especially when the fees are for the modification case.

Husband appeals the judgment modifying the divorce decree increasing his maintenance obligation from $4000 to $4400 per month.

Holding: Reversed and remanded to trial Court

The trial court erred in including attorney fees in its calculation of Wife’s reasonable monthly expenses. In order to modify maintenance, the Court must find that there is a substantial and continuing change in circumstances from when the order was originally entered. Because the trial Court based its findings that Wife was unable to meet her reasonable needs on a calculation that was incorrect because it included attorney fees, the case was reversed and remanded back to the trial Court for reconsideration of whether a substantial and continuing change in circumstances exists, without the consideration of attorney fees, to grant a motion to modify.

Missouri Court of Appeals
Eastern District ED99952
Filed February 10, 2015

10 facts about divorce that every divorcing parent should consider

Posted in Family Law, Getting a Divorce, Marriage and Family

The following points are from a recent article on today.com, published by a divorce mediator.  If you are in the middle of a divorce or contemplating a divorce in Missouri, these are all excellent points to think about.

10 facts about divorce you should consider:

1.     Even if you are the one who wants to get divorced, you may often feel sad, loss, fear, anxiety.

2.     Just because you are divorced, all of your problems don’t just disappear. You still need to deal with your ex — particularly if there are children involved.

3.     Once the divorce papers are signed, now the real work begins. You need to heal from the emotional turmoil of a bad marriage and learn to be happy alone before you can enter a new relationship.

4.     Your kids may not tell you how they feel, though it may come out through their behaviors.

5.     Don’t rush through the process, as tempting as that is. Everyone needs time to adjust and make good, clear decisions that you can live with for many years to come.

6.     You may lose some friends — the ones you thought would be there for you may not be, and vice versa.

7.     Let go of your anger and resentment toward your spouse — this can only hurt you and your children and no good can come from it!

8.     Holidays are so hard, especially in the first few years. Start new traditions and make sure you are not alone.

9.     Spare your children from bad-mouthing your spouse no matter what: This can actually crush their self-esteem.

10. Don’t rush to start dating again.

Click here to read the full article and further explanations on each of the above points.

Parenting plan must have written time schedule and address holidays

Posted in Child Custody and Visitation, Custody and Visitation, Divorce, Getting a Divorce, Legal Separation

Recent Case:  Missouri parenting plans must have specific, written parenting time schedule and must address holidays.

Mother appeals from a judgment entered in the Circuit Court of Atchison County dissolving her marriage to Father. Mother challenges the trial court’s designation of Father’s home as the child’s residence for school and mailing purposes and its division of parenting time in its parenting plan.  The case was affirmed in part, reversed in part.

The trial Court found that the evidence at trial supported the Court’s findings regarding custody and parenting time.  However, Missouri statute requires that a parenting plan have a specific written parenting time schedule that addresses various holidays and other specified occasions. The trial court is not free to disregard any of the enumerated events. The parenting plan failed to address Presidents’ Day and Martin Luther King Jr. Day, both of which are school holidays specifically referenced in the Parenting Plan Guidelines issued by the Missouri Supreme Court, and may have failed to address other school holidays not specifically identified in Mother’s brief. The failure to account for such holidays in the parenting plan constitutes reversible error, requiring remand to permit the trial court to modify the parenting plan accordingly.

Missouri Court of Appeals

WD77280

January 13, 2015

 

Trial court has the authority to enter a Qualified Domestic Relations Order (QDRO) even after the death of the plan participant.

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

Recent Case:  Missouri Court of Appeals

In a 2010 dissolution judgment, Husband and Wife agreed, per a separation agreement, that each would get one-half of Husband’s Anheuser-Busch pension “unless Wife remarries.” In 2011, Husband remarried. He then died in 2012. Subsequent to his death, his ex-wife sought and obtained a QDRO giving her one-half of the pension benefits per the separation agreement. Husband’s widow sought to undo that process by challenging the trial court’s authority to enter a QDRO after Husband’s death. When the trial court entered a QDRO, Husband’s widow appealed.

Held: Affirmed as to authority to enter the QDRO. Reversed to amend the language thereof to mirror the parties’ agreement that ex-wife gets one-half unless she remarries.

“…[U]nder Section 452.330.5, the trial court may modify its judgment and decree of dissolution ‘to establish, to maintain, or to revise a QDRO in order to ensure that the order is ‘qualified’” under applicable federal law. The death of the plan participant has no impact on the trial court’s authority under §452.330.5, which contains no time constraint in accomplishing that which is required. It does not matter whether the parties’ separation agreement does not mention the implementation of a QDRO to accomplish the intent of the settlement. “The trial court’s entry of a QDRO accomplishes nothing more than recognizing and enforcing (the ex-wife’s) right to share in the pension plan as established in the dissolution decree.” However, the ex-wife’s marital status was a factor that would impact her right to share in the pension. The QDRO needed to reference this factor.

Source for Post:  Missouri Bar

Same Sex Marriage Ban Ruled Unconstitutional in Missouri; Same Sex Couples Marry in Kansas City and St. Louis

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

A federal judge in Kansas City ruled on Friday that Missouri’s ban on same-sex marriage violates the U.S. Constitution in a decision that would extend the right of gay couples to marry across Missouri. U.S. District Judge Ortrie Smith found that the Missouri ban ran afoul of the Constitution’s guarantees of due process and equal protection under the law. But Smith delayed his ruling from going into effect immediately pending possible appeals. Missouri Attorney General Chris Koster said the state would appeal. But officials in Jackson County, where the ban was challenged, began issuing marriage licenses to same-sex couples on Friday afternoon.

Smith’s ruling came one day after one of the nation’s regional federal appeals courts, the 6th U.S. Circuit Court of Appeals in Cincinnati, upheld bans on gay marriage in four other states, setting up a possible review by the U.S. Supreme Court, which just last month declined a chance to take up the issue. Smith found that Missouri lacked a compelling state interest to limit marriage to one man and one woman. Smith was ruling on a challenge to the state ban brought by the American Civil Liberties Union of Missouri on behalf of couple Angela Curtis and Shannon McGinty and another same-sex couple in Jackson County, which includes most of Kansas City, Missouri.

The ruling came two days after a Missouri state court judge ruled the state ban unconstitutional and said same-sex couples in St. Louis must be granted marriage licenses. Koster appealed the state judge’s order to the Missouri Supreme Court, but did not ask for a stay in St. Louis. At least 10 same-sex couples had sought marriage licenses in the city of St. Louis and St. Louis County by midmorning on Thursday.

Same-sex marriage is legal in 32 states, plus the District of Columbia, up from 19 states since the U.S. Supreme Court in October declined to review U.S. appeals court rulings that struck down bans on same sex marriage in several states.

-Reuters

Rule that a 20% change in child support amount grounds to modify does not apply if original amount was agreed deviation from Form 14

Posted in Child Support, Modifications

Recent Case:  Party seeking modification of previous agreed order must show that they cannot support the child in the manner contemplated at the time of the agreement.  20% rule does not apply.

In a recent case from the Missouri Court of Appeals, Father appeals the judgment of the Court rejecting the Family Support Division’s proposed modification of the support amount.  The previous judgment for child support included an agreed amount for child support.  The parties considered the Form 14 child support amount, but rejected it in favor of their agreed amount.  Subsequently Father tried to reduce the child support by administrative modification.

There is a general rule in Missouri that states that if a new Form 14 calculation of child support would result in a 20% or greater change in the support amount, then the burden of proof for modification (substantial and continuing change in circumstances) is met.  However, this rule only applies if the original child support amount was the Form 14 amount, and not a different, agreed amount.  For modification of a previous agreed amount, the burden of proof is much higher, and the moving party must prove that he/she is not able to support the child in the same manner contemplated at the time of the previous agreement, not that a 20% change has occurred.

For this reason, the judgment of the trial Court denying the proposed modification was upheld.

Missouri Court of Appeals

ED100422

Filed October 14, 2014

Modified Child Support retroactive to personal service of the Motion

Posted in Child Support, Child Support and Alimony, Financial Issues, Modifications, Trials

Recent Case:  Retroactive support can only go back to the date of service of the Motion, 20% change in child support amount is grounds for modification, child support can continue if child incapacitated.

Father appeals the judgment and decree of modification of dissolution of marriage entered by the Circuit Court. Father claims that the trial court erred in: (1) extending his child support obligation; (2) failing to make sufficient findings to order his support obligation to continue past the presumed date of emancipation; (3) modifying the judgment without finding a significant and continuing change in circumstances; and (4) ordering him to pay delinquent child support since his last support payment.

The trial Court’s ruling was upheld in part, and reversed in part:

By law, child support can extend into adulthood if the child is physically or mentally incapacitated.  The trial court did not err in extending Father’s child support obligation because the record contained sufficient evidence that Mother and Father’s child was incapacitated from supporting herself, insolvent, and unmarried. The trial Court was also correct in modifying the judgment because the Form 14 child support calculation increased the support amount by 20%, which is, by itself, grounds for modification.

However, the trial court was incorrect in ordering Father to make support payments for the time period before Mother filed her motion to modify and Father was served.  By statute, the retroactive child support cannot begin before the filing and personal service of the motion.

Missouri Court of Appeals Eastern District

No. ED100898

Filed September 30, 2014

Railroad Retirement benefits are partially marital property subject to division in Missouri divorce

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

Recent case:  Tier II railroad retirement benefits are marital property

Husband appeals the circuit Court’s judgment dissolving his marriage to Wife.  Husband contends that, among other things, that the Court misapplied the law in classifying as marital property and awarding almost $20,000 to Wife, which represented Husband’s contribution to his railroad retirement pension during the marriage.  Husband argues that federal law prohibits the division of retirement pension.  The Court disagreed and affirmed the division by the trial Court.

The Federal Railroad Retirement act treats railroad pension partly as social security (Tier I) and partly as a private pension( Tier II).  Federal law does not prohibit treatment of certain pension benefits payable based upon employment in the railroad industry, including Tier II benefits, as marital property. However, The Supreme Court’s conclusion that Tier I benefits may not be treated as marital property subject to division remains the law.

Missouri Court of Appeals, Western District – WD76447

Filed September 16, 2014

Inability to co-parent grounds for sole custody award; Guardian Ad Litem fees assessed to one party appropriate

Posted in Child Custody and Visitation, Custody and Visitation, Family Law, Financial Issues, Guardian Ad Litem, Modifications

Recent Case:       Parents’ inability to communicate, cooperate, and make shared decisions concerning their children’s welfare makes joint legal custody inappropriate.

This case involved a motion to change custody from Mother to Father.  The Court ultimately awarded Father sole legal and sole physical custody of the children, subject to periods of visitation to Mother. The trial court found that since the entry of the original parenting plan, a substantial and continuing change has occurred in the circumstances of the children and parents, such that a modification was necessary to serve the children’s best interests. The court found the parties’ inability to communicate, cooperate, and make shared decisions concerning their children’s welfare makes joint legal custody inappropriate. The court noted that a breakdown of parental communication and cooperation is sufficient legally, in and of itself, to constitute a change of circumstances.

Specifically, Mother overtly sabotaged Father’s ability to communicate with the children’s school, teachers and doctor by telling them not to speak with Father, share information about the children with Father and to outright lie to Father. Mother left Father’s information off forms that asked for the children’s father’s information. Mother refused to work together reasonably in advance with Father for alternative times for physical custody during summer vacation, to the extent that the court had to intervene to enforce Father’s summer custody time with his children. Mother also refused to reasonably work together with Father on other occasions to be flexible about visitation time with the children without good cause or adequate excuse. Mother went out of town on at least two trips without the children without giving Father first opportunity for their custody during that time, in direct violation of the original Custody Plan.

Guardian Ad Litem Fees

Missouri law provides for the award and payment of GAL fees in custody cases:

In this case, Father moved for the GAL’s appointment. However, it was due to Mother’s actions that Father and the court deemed appointment of a GAL necessary. The court is permitted to consider the circumstances requiring the appointment of a guardian ad litem in determining the payment of guardian ad litem fees, and in this case, assessed all guardian ad litem fees against the Mother.

Missouri Court of Appeals

Eastern District – ED100282

Filed September 2, 2014

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)