Missouri Divorce & Family Law Blog

Missouri Divorce & Family Law Blog

for Missourians struggling with divorce and family law matters

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)

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