Missouri Divorce and Family Law Blog : Kansas City Divorce Lawyer & Attorney : Wortman Law Firm

Recent Ruling LP v. EP, WD75030 Missouri Court of Appeals

Following a bench trial, the trial court entered a judgment of dissolution, dissolving the marriage of Mother and Father. The trial court divided the marital property, established custody and awarded child support to Mother. On appeal, Father alleges the trial court erred in (1) "not making a just and equitable distribution of property" in that it accepted Mother's valuation of the home and not the appraiser's opinion; (2) ordering Father to pay a portion of Mother's attorney fees, alleging that there was no substantial evidence to support the award; (3) awarding child support for his nineteen-year-old son ("Son") because Son did not meet the statutory requirement of being enrolled in college by October 1 following high school graduation; and (4) in calculating the amount of child support owed because the court's Form 14 calculation did not contain an overnight visitation credit, nor did it accurately reflect Mother's monthly income.

 AFFIRMED IN PART, REVERSED IN PART

Held:  (1) because a party is qualified to testify as to the value of property and the court can believe or disbelieve either an owner or appraiser's valuation of property, the trial court did not err in accepting Mother's valuation of the marital home such that an equitable distribution resulted;

(2) because substantial evidence established Father's misconduct during the marriage and separation, as evidenced by incidents of domestic violence against Mother and Son, misuse of finances and his incarceration for felony DWI while the case was pending, the court did not err in awarding Mother a portion of her attorney's fees;

(3) Because Son had joined the National Guard in order to receive tuition assistance and planned to enroll one semester late following a required training period, the Court did not err in its award of child support for Son as he fits the statutory exception to emancipation; and

(4) with regard to the actual calculation of child support ordered by the court, there was error in the stated income of Mother, which both sides admitted, such that the court's award erroneously added $30 per month to Father's child support obligation and added to the child support arrearage owed by Father.  Father was not entitled to overnight visitation credits based on evidence that overnight visits had not occurred during the separation and would likely not occur in the future so as to warrant a credit.

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The duration of a divorce in Missouri varies from case to case.  Factors that determine length include how contested the case is, the cooperation of the parties, whether or not there are two attorneys involved, the complexity of the issues, whether or not there are issues of abuse or neglect of children and the appointment of a guardian ad litem, whether or not the case goes to trial, the county where the case is filed, involvement of experts, and other case specific factors.

On the short end, a Missouri divorce case that is completely uncontested, where only one party is represented by counsel, and the parties have signed written agreements for parenting matters (parenting plan), child support, property and debt division, and maintenance, can be completed in most cases in about 45-60 days from the date of filing, depending on the county.  Note however that the length of time that is spent negotiating, drafting, and reviewing the agreements may add some time to this.

For a contested Missouri divorce case, where the parties are not in agreement at the beginning, but eventually come to an agreement resolving all of the issues without trial, the time frame usually runs in the range of 6 months, but again is county and case specific.

For a contested Missouri divorce case that goes all the way to trial, not counting post trial motions, appeals, or further proceedings, will often take between 6 months and 1 year, but could easily exceed that time frame depending on the county and the complexity of the case. In the event of appeal of a tried divorce case, the time frame will almost always exceed 1 year.

Note that there is a statutory 30 day waiting period for all Missouri divorce cases which starts on the day of filing, but it is rarely that even an uncontested case is completed this quickly, as the dockets of most courts will exceed the minimum waiting period.

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Recent Case: JK v. JK WD74592

Father appeals from a judgment entered in the Circuit Court of Cole  County granting Mother’s motion to modify child support. In its judgment, the circuit court found that a substantial and continuing change in circumstances had occurred including, but not limited to: (1) an agreement by the parties to exercise a "visitation" schedule different than that ordered by the court, (2) a change in the incomes of the parties giving rise to a change of more than twenty percent in the presumed child support amount, and (3) the passage of more than three years since the last modification. The circuit court averaged Father's gross yearly income from the previous four years, but did not consider bonus or interest income. The court found that Father was not entitled to a line 11 credit for overnight visitation because Mother's gross income fell below the $2,100.00 threshold for a parent with four children. The court also altered the previous division of the dependency tax exemptions to award Mother.

HOLDING: REVERSED AND REMANDED.

Where the prior child support amount was established based upon a stipulation by the parties that a jointly prepared Form 14 was accurate and represented the amount of child support that is just, reasonable and appropriate under the circumstances and the trial court found that the Form 14 was accurate and represented an amount of child support that is just, reasonable, and appropriate under the circumstances, the trial court cannot be deemed to have implicitly found the Form 14 amount to have been rebutted. Because the prior judgment establishing the child support amount was based upon the presumed amount pursuant to the child support guidelines, the twenty percent provision of § 452.370.1 was applicable to this case (The 20% rule applies if and when the Form 14 presumed support amount is used).

Mother's petition averred a substantial and continuing change in the circumstances based upon a twenty-percent change in the presumed child support amount as provided for in § 452.370.1 and, therefore, sufficiently pleaded her claim.

The trial court did not abuse its discretion in determining that Mother was not underemployed where she testified that she obtain more than 32 to 35 hours per week with her employer, that she had the children 90% of the time despite the parenting plan, and that Father had asked her to quit working a waitressing job she had so she could watch the children on one of the nights Father was supposed to have the children.

The trial court erred in failing to include interest income earned by Mother, and because of that fact, Mother actually earned sufficient income over the threshold for Father to receive an overnight credit on line 11.

Because circumstances might change, the trial court's award of all four dependency exemptions to Mother cannot be deemed improper per se. However, neither equity nor the best interests of the children can be served by taking away exemptions previously granted to Father only to have one or both go unused, as the evidence reflects is highly likely to occur in this case. Bearing this in mind, on remand, the trial court may re-evaluate its award of all dependency exemptions to Mother and attempt to structure the award to maximize the overall financial benefit of the exemptions to the family unit.

The trial court was not required to accept Father's testimony about bonuses he had received and the likelihood of receiving similar bonuses in the future as credible.

Because the judgment would allow for Father to seek credit for amounts he voluntarily paid in addition to the prior child support amount during the retroactive period of the modification of the child support award and the issue has yet to be decided by the trial court, the issue is not ripe for appellate review; however, the trial court is free to address the issue of such credit on remand

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Since 2005, the Bankruptcy law has been relatively clear that nearly any obligation resulting from a dissolution of marriage proceeding is not dischargeable in bankruptcy, whether that is in the nature of a domestic support obligation (11 USC 523(a)(5)) or a property/debt settlement (11 USC 523 (a)(15).  The Missouri Court of Appeals has reiterated this in a recent ruling.

Recent case: Henderson v. Henderson, No. 98357 (Mo. App. E.D., December 26, 2012)

The parties were divorced in 2010. They entered into an agreement which set forth their respective obligations to pay certain debts of the marriage. Throughout the agreement, there was language that the agreement to pay said debts and hold the other harmless thereon was not dischargeable in bankruptcy. Nevertheless, the ex-husband sought the discharge of his portion of those obligations in a Chapter 7 bankruptcy filing in 2011. His petition for discharge was granted, and the ex-wife had not objected to same in bankruptcy court.

Thereafter, ex-wife filed an action against ex-husband for a contempt citation related to the debts he got discharged. The ex-husband argued that she waived her right to object by failing to file anything in the bankruptcy proceeding. The trial court only required the ex-husband to pay a portion of the debt in question. It determined that only a portion of the debt was in the nature of a domestic obligation non-dischargeable in bankruptcy.

However, it held the ex-husband responsible for a portion of the discharged debt. Both parties appealed.

Held: Reversed.

Under current Chapter 7 bankruptcy law (11 U.S.C. § 523 (a)), “‘all debts owed to a spouse, former spouse, or child of a debtor are non-dischargeable if incurred in the course of a divorce proceeding, notwithstanding the debtor’s ability to pay the debt or the relative benefits and detriments to the parties.’ In re: Tarone, 434 B.R. 41, 48 (Bankr. E.D. N.Y. 2010).”

Thus, a property settlement obligation encompassed by 11 U.S.C. § 523 (a)(15) is non-dischargeable. The trial court erred in finding the debt partially dischargeable.

From the Missouri Bar Courts Bulletin March Edition

Note:  Some debts of this type may be dischargeable in Chapter 13 proceedings.

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News Release from the Jackson County Circuit Court:

Starting in March, there will be no more mad dashes to the courthouse by attorneys to file papers at the last minute. The Circuit Court in Jackson County will begin paperless electronic filing which is expected to save shoe leather for attorneys and public dollars for the community.

The Court has been working for years in its efforts to get ready for electronic filing. The Office of State Courts Administrator in Jefferson City has given the Court a green light to go green."It is a distinct privilege for Jackson County to enter the future with electronic filing which, at its core, is another tool to facilitate the public's access to the courts," said Presiding Judge Marco A. Roldan.

 Electronic filing will start for civil and domestic cases filed and pending in Independence

on March 4. Electronic filing will start in Kansas City on March 25. The move to electronic filing is expected to save the Court money in reduced paper costs, less postage, and document storage, and lead to administrative efficiencies. It will also benefit attorneys who will no longer need to file papers in person. Computer filings will be mandatory for attorneys in civil and domestic cases. At this time, paper filings will continue to be used in criminal, probate, and juvenile matters, as well as in pro se filings where the parties represent themselves without an attorney. Pro se cases are typically filed in small claims, in adult abuse petitions and divorce filings.

Thus far, three circuits out of 45 in the state have instituted electronic filing. However,

Jackson County will be the largest circuit to date. In fiscal year 2012, according to the state’s

figures, there were a total of 49,210 civil and domestic cases filed in the Circuit Court of Jackson

County.“Due to the hard work of the Jackson County court staff, our civil divisions have already gone paperless in anticipation of eFiling,” said Joel P. Fahnestock, who is chair of the Circuit

Court’s Technology Committee, and who is a member of the Missouri Court Automation

Committee in Jefferson City. “The judges and staff are excited that the state’s eFiling system is

coming to Jackson County next. It is quite an honor.”

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Missouri law governs the relocation of children after a custody order has been entered. "Relocation" is defined as "a change in the principal residence of a child for a period of ninety days or more, but does not include a temporary absence from the principal residence." A parent who intends to relocate must give written notice of the proposed relocation to the other parent by certified mail, return receipt requested, at least 60 days prior to the proposed relocation, which includes the following:  

(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 a child, if applicable; and

(5) A proposal for a revised schedule of custody or visitation with the child, if applicable.

Once the notification is received, the non-relocating parent has thirty days to file a motion to prevent relocation. The non-relocating parent waives any objection to the relocation by failing to object in a timely manner, giving the relocating parent an absolute right to relocate with the child, without the permission of the non-relocating parent or the court. In such a case, the child may be relocated sixty days after the non-relocating parent received the relocation notice.  However, strict compliance with the relocation statute is required, including compliance with the certified mail provisions and providing a specific address.

When a parent does not have an absolute right to relocate, the parent may still relocate with the child by order of the circuit court. In such cases, the party seeking to relocate is required to prove that the proposed relocation is made in good faith and in the best interests of the child.  In determining whether the relocation is in the best interests of the child, the Court will look to the statutory factors that govern any Missouri custody decision.

For a recent Court of Appeals ruling dealing with the issues of strict compliance, specific address requirement, and relocation based on best interest of the child, click here.

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There are many attorneys that practice in the area of family law/divorce.   Choosing a family lawyer is an incredibly important decision, as it will have a direct impact on the time, cost, and outcome of the case, as well as how smoothly the case runs.  Some important things to consider:

1.      Trust.  This is the most important.  If you do not have the confidence and trust in your attorney, you should not hire them or continue with them if already involved in a case. 

2.      Find an attorney whose personality is compatible with yours, and whose style and approach will be effective for meeting your goals.    Even among the best family lawyers, not every attorney is best for every client, or every type of case.

3.      Your attorney should be up front with you from the first meeting about the merits of your case, and should be very clear about what you can expect.  Your attorney should keep you on the right side of the case and the court, and should be clear with you about all strengths and weakness in your case.  An effective family lawyer will make sure your expectations are in line with reality, and will not simply tell you what you want to hear.  Also, keep in mind that your attorney does not have a crystal ball, and cannot guarantee a particular outcome, but should give you a range of possibilities based on experience along with a cost vs. benefit analysis of any particular scenario.

4.      Consider hiring an attorney that focuses primarily on family law/divorce. Family law is a highly specialized area, and if your attorney is handling personal injury cases, workers compensation, social security, DUI's, etc., they may not have the experience, time, or patience that is required for your case.

5.      Be cautious of a family attorney that describes themselves as “aggressive”. This is a marketing buzzword, and there is a difference between an effective, zealous advocate, and a disrespectful, unprofessional, and/or abusive lawyer.  Make sure you know which you are dealing with, as the latter will do more harm than good.

6.      Be clear about the fee, and always ask for a written fee agreement.   Family attorneys typically charge by either an hourly rate or by fixed fee.  If paying hourly, ask for an estimate of time depending on how far the case goes.  If paying by fixed fee, make sure that you know what events in the case might trigger additional fixed fees.  Also, be sure you know if you are paying for expenses, such as mileage, copies, or postage, on top of time or fixed fee charges. 

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Missouri law allows for a man that has been named to be the father of the child, but is not biologically the father of the child, to petition the court to terminate a child support order that is two years old or less, and, among other things, extinguish the child support arrears. Missouri’s paternity set aside law provides that:

Upon a finding that the genetic test referred to herein was properly conducted, accurate and indicates that the person subject to the child support payment order has been excluded as the child’s father, the court shall, unless it makes written findings of fact and conclusions of law that it is in the best interests of the parties not to do so:

(1) Grant relief on the petition and enter judgment setting aside the previous judgments of paternity and support, or acknowledgment of paternity under section 210.823 only as to the child or children found not to bet the biological child or children of the petitioner;

(2) Extinguish any existing child support arrearage only as to the child or children found not to be the biological child or children of the petitioner; and

(3) Order the department of health and senior services to modify the child’s birth certificate accordingly.

A general order of child support for multiple children does not automatically preclude a trial court from setting aside at least some arrearages pursuant to law. Where the petitioner is not the father of any other unemancipated children subject to the general order and the arrearages owing that are attributable to the child at issue can be determined by competent, substantial evidence, the trial court shall set aside such arrearages, unless the trial court makes written findings of fact and conclusions of law that it is the best interests of the parties not to do so.

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