Missouri Divorce & Family Law Blog

Missouri Divorce & Family Law Blog

for Missourians struggling with divorce and family law matters

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

Domestic Partnership does not constitute marriage for termination of spousal support (aka alimony)

Posted in Alimony / Maintenance, Divorce, Financial Issues, Marriage, Modifications, Trials

Recent case: Missouri law states that remarriage terminates spousal support unless expressly agreed or ordered otherwise. Domestic partnership does not qualify for this purpose.

Ex-Husband appeals the circuit court’s judgment denying his motion to terminate or modify maintenance. First, movant argues that the circuit court erred in denying his motion to terminate maintenance because his ex-wife remarried. Second, movant argues that the circuit court erred in denying his motion to modify maintenance because movant proved a substantial and continuing change in circumstances, while Respondent failed to adduce evidence to support a continued award of $1,800 per month of maintenance. Finally, movant argues that the circuit court erred in awarding Respondent’s attorney’s fees in the amount of $1,500 because the totality of the circumstances does not support an award of attorney’s fees.

Judgment upheld

The circuit court did not error in denying Movant’s motion to terminate or modify maintenance because (1) the cases cited by Movant to show that the trial court misapplied the law are distinguishable from the facts in the present case; most notably, there was a factual dispute here as to whether Respondent had a marriage ceremony (constituting a domestic partnership) and (2) the rental and health insurance expenses used by the court in calculating Respondent’s expenses were needed expenses and were supported by substantial evidence. We further conclude that the circuit court did not abuse its discretion in awarding Graham attorney’s fees because of the financial disparity between the parties and Respondent’s substantial amount owed in maintenance to Graham.

Missouri Court of Appeals, Western District – WD77399

No spousal support (alimony) award that leaves paying spouse negative income

Posted in Alimony / Maintenance, Divorce, Uncategorized

Recent Case: Trial Court error in awarding Wife spousal support amount that left Husband with negative budget, Court must also consider Wife’s ability to contribute

Husband appeals from the trial Court’s judgment awarding $1,000 in monthly maintenance to his former spouse.  Husband asserts that the trial court abused its discretion in that the award exceeds his ability to pay.

When determining the amount of maintenance, a trial court must balance the reasonable needs of the spouse seeking maintenance against the ability of the other spouse to pay. Here, the trial court acknowledged that its award left Husband at a monthly deficitof over $500. Additionally, a trial court should consider the obligation of a receiving spouse to contribute to her own support. Here, the court specifically found Wife capable of minimum wage work but assumed in its calculations that she would remain unemployed indefinitely.

Decision: Reversed
Filed April 21, 2015
Missouri Court of Appeals Eastern District
ED101583

Employer required to garnish child support

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

Recent case: Employer is required by law to comply with child support wage garnishment orders from the Family Support Division

The employer of a father ordered to pay child support appeals the trial court’s judgments in favor of the Department of Social Services Family Support Division after the employer failed to comply with income withholding orders.

The trial court ruling was affirmed.

When a wage garnishment for child support is sent to an employer, the employee has 30 days to contest the order based only on mistakes of fact as to the identity of the employee or the amount of the withholding (but not the amount of child support actually owed). Garnishment lasts until employer receives notice to cease, with liability to the State for failure to comply.

The trial court was correct in denying employer’s motion to join the child support obligor-employee as a necessary party. Section 454.505 clearly imposes liability directly on employers for failure to comply with the Division’s withholding orders. It does not allow employers to be co-defendants because their underlying child support obligation is not at issue. The only question is whether the employer complied with the Division’s orders.

The trial court’s finding that the employer failed to comply with the Division’s orders is supported by substantial evidence and is not against the weight of the evidence. The Division presented records showing that the employer failed to withhold and pay the ordered amounts. The employer’s attempt to attack the Division’s processes and the employee’s underlying arrears was irrelevant.

Missouri Court of Appeals, Eastern District – ED101158

Filed March 31, 2015

 

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