Missouri Divorce & Family Law Blog

Missouri Divorce & Family Law Blog

for Missourians struggling with divorce and family law matters

Grandparent Visitation must be done as a motion to modify if a divorce decree exists; visitation denied due to best interests of the child

Posted in Custody and Visitation, Modifications

Recent Case from the Missouri Court of Appeals:

Father appeals from a judgment denying his motion to modify child support. Grandparents appeal from the same judgment which also denied their petition seeking grandparent visitation.

The Grandmother did not seek visitation in a manner authorized by statute because the visitation petition was an independent petition seeking visitation rights rather than a motion to modify the dissolution decree.

Missouri law states that the court shall determine if the visitation by the grandparent would be in the child’s best interest or if it would endanger the child’s physical health or impair the child’s emotional development. Visitation may only be ordered when the court finds such visitation to be in the best interests of the child.

Visitation with Grandmother was found not to be in the child’s best interests because Father had been convicted of a crime involving the children and the grandmother had chosen her son over the grandchildren. The trial court’s characterization of Father’s criminal status as a felony vs a misdemeanor was immaterial. Because Grandparents sought collective visitation and reside together, the basis for denying Grandmother’s petition apply equally to Grandfather. In any event, Grandfather failed to sustain his burden that visitation would be in the child’s best interest and would not endanger the child’s physical health or emotional development.

 

Missouri Court of Appeals

Western District

WD79567

Child support paid by third party does not equal child neglect; Proposed Judgments prepared by counsel should not be signed verbatim.

Posted in Adoption, Adoption and Guardianship, Legal Proceedings, Parenting and Adoption, Trials

The Constitution protects the fundamental right of a parent to custody of their child even though child’s best interests are the goal of statutes governing adoption.  An action for adoption without parental consent terminates, without a separate action for termination of, parental rights.  Adoption statutes afford relief on clear, cogent, and convincing evidence of abandonment or neglect.  Those statutes make relevant the events of the preceding six months, during which parent maintained regular and substantial contact with child, rendering evidence of parent’s conduct during a more distant time less than clear, cogent, and convincing evidence of abandonment.  Satisfaction of child support obligation, from third party instead of directly from parent, does not clearly, cogently, and convincingly show willful neglect.

For the circuit court to sign a proposed judgment exactly as prepared by a party may not be erroneous, per se, but our appellate courts have repeatedly chastised our trial courts for adopting, verbatim, proposed judgments because there may be a problem with the appearance, and even the most conscientious advocate cannot reasonably be expected to prepare a document which would reflect precisely the trial court’s view of the evidence.

S.S.S., L.W.V. & M.T.S.-V., Respondents, v. C.V.S., Appellant.

Missouri Court of Appeals, Eastern District – ED104249

Originally posted by the Missouri Bar

Modification of spousal support order requires substantial and continuing change in circumstances

Posted in Alimony / Maintenance, Assets and Debts, Divorce, Financial Issues, Property-Debt Division

Recent Case:  From the Missouri Court of Appeals, Modification of Spousal Support vs. Property Division

Appellant Husband appeals the trial court’s judgment reducing, but not terminating, his maintenance obligation, retroactive to February 2015, and awarding Wife attorney’s fees.

Missouri statutes allow modification of spousal maintenance when circumstances change, the change is substantial and continuing, and the change makes the award unreasonable.  The trial court properly reduced Appellant’s maintenance obligation based on Respondent’s income and recent eligibility to receive a portion of Appellant’s social security benefits. However, the trial court properly declined to consider Respondent’s eligibility to receive pension benefits awarded in the original dissolution action because those benefits do not constitute a change of circumstances sufficient to support a motion to modify. Furthermore, the trial court did not abuse its discretion when it set the date of retroactive application for the modified maintenance obligation and awarded attorney’s fees to Respondent.

Missouri Court of Appeals, Eastern District – ED103930

New Missouri Child Support Guidelines and Amounts to take effect July 1, 2017

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

From the Supreme Court of Missouri:

“It is ordered that effective July 1, 2017, Civil Procedure Form No. 14, entitled “Child Support Amount Calculation Worksheet”, along with the directions, comments for use, and examples for completion thereto, by and the same are hereby repealed and a new Civil Procedure Form No. 14 entitled “Child Support Amount Calculation Worksheet” along with directions, comments for use, and examples for completion thereto, are adopted in lieu thereof…”

 

Failure to include holiday or vacation schedule in parenting plan is trial court error; Voluntary reduction in Income does not support reduction in child support

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

Recent Case from the Missouri Court of Appeals:  Parenting plans must contain holiday and vacation schedules; voluntary reduction in income does not support child support reduction

Mother appeals the trial court’s judgment of modification for a failure to properly apply the law and abusing its discretion in its judgment of modification. Mother contends, in relevant part, that: (1) the trial court erred in its modification because the parenting plan failed to include any holiday or vacation schedule for the minor children as required by statute; (2) the modification failed to properly calculate child support; and (3) the judgment failed to take into account the respondent’s voluntary reduction in income;

Holding:  Affirmed in part, Remanded in part

The trial court judgment that considered the particular needs of each child in its modification supported a parenting plan that awarded separate parenting time for each child. Missouri law adjusts the child support amount for overnight visits numbering 36 per year or more, so the trial court did not err in denying an adjustment based on 24 overnight visits per year.  In addition, voluntary reduced income caused by the dissipation of one’s own talents, in this case failure to comply with federal employee wage requirements resulting in substantial tax liability and subsequent bankruptcy filing, does not support a reduction in child support.

Missouri law requires the parenting plan to include a schedule of physical custody during enumerated holidays and vacations and omission of that schedule requires a remand back to the trial Court.

WS vs. ME

Missouri Court of Appeals, Western District

WD79347

Restrictions on visitation, and subsequent removal of them, both require a ruling on child’s best interest

Posted in Child Custody and Visitation, Child Support, Child Support and Alimony, Custody and Visitation, Family Law, Financial Issues, Modifications

Recent Case:  When a custody order contains restricted visitation, those restrictions must not be lifted, or even phased out, until a subsequent hearing to determine whether removal of the restrictions is in the child’s best interest.

Evidence that Father has not sought employment within his expertise supported an imputation of income for determining child support.  The child’s best interests determine custody, including visitation.  Modification of custody requires proof that circumstances have substantially changed since, or at least facts unknown to circuit court when, circuit court last ruled on custody.  The former included evidence of deteriorating communication.  The latter is more likely when the parties settle as to custody and included evidence of drug manufacturing. Those facts supported modification of custody, even though the State dismissed related criminal charges, and notwithstanding appellant’s testimony and arguments to the contrary.  Such evidence also supported restrictions on visitation.  Reduction in such restrictions scheduled in parenting plan, without any ruling that such reductions were in the child’s best interest when they occurred, constituted error and mother’s discretion to demand more drug tests was no substitute for the statutory standard.  The case was remanded to the trial court to re-draft parenting plan, with discretion to hear fresh evidence if the circuit court chooses.

 

BR and OR v. LN

Missouri Court of Appeals-Western District

WD 79278

New Missouri custody law seeks to maximize time with each parent, takes effect August 28

Posted in Child Custody and Visitation, Custody and Visitation, Divorce, Family Law, Modifications, Paternity

Governor Jay Nixon signed House bill 1550 into law on July 1, 2016, which takes effect August 28, 2016.  This law has been dubbed as an equal custody law, or 50/50 custody law, but that is not an entirely accurate description.  Rather than specifically stating that custody should be equal, the bill’s wording is to “maximize” a child’s time with each parent to the “highest degree possible”, along with more stringent enforcement procedures and remedies.  The bill also bans “standard visitation” parenting plans.   The changes made by the new law are as follows:

  1. Within 120 days of August 28, 2016, Parenting plan guidelines shall be made available on the office of the state courts administrators website.
  2. When the parties have not reached an agreement on all issues relating to custody, the court shall enter written findings of fact and conclusions of law, including, but not limited to the 8 statutory factors in the current version of the statute.
  3. The Court shall not presume that a parent, solely because of his or her sex, is more qualified than the other parent to act as a joint or sole legal or physical custodian of the child.
  4. Every custody order entered after August 28, 2016, must state the following: “In the event of noncompliance with this order, the aggrieved party may file a verified motion for contempt. If custody, visitation, or third-party custody is denied or interfered with by a parent or third party without good cause, the aggrieved person may file a family access motion with the court stating the specific facts that constitute a violation of the custody provisions of the judgment of dissolution, legal separation, or judgment of paternity. The circuit clerk will provide the aggrieved party with an explanation of the procedures for filing a family access motion and a simple form for use in filing the family access motion. A family access motion does not require the assistance of legal counsel to prepare and file.”
  5. No court shall adopt any local rule, form, or practice requiring a standardized or default parenting plan for interim, temporary, or permanent orders or judgments. Notwithstanding any other provision to the contrary, a court may enter an interim order in a proceeding under this chapter, provided that the interim order shall not contain any provisions about child custody or a parenting schedule or plan without first providing the parties with notice and a hearing, unless the parties otherwise agree.
  6. The court shall consider, in a proceeding to enforce or modify a permanent custody or visitation order or judgment, a party’s violation, without good cause, of a provision of the parenting plan, for the purpose of determining that party’s ability and willingness to allow the child frequent and meaningful contact with the other party.
  7. The state courts administrator shall create a handbook or be responsible for the approval of a handbook outlining the following: Guide lines as to what is included in a parenting plan in order to maximize to the highest degree the amount of time the child may spend with each parent; and this handbook shall be readily available online and shall be served along with the Petition and summons.

LAGERS Pension divided as a future asset

Posted in Alimony / Maintenance, Assets and Debts, Divorce, Financial Issues, Property Division, Property-Debt Division

Recent Case:  LAGERS Pension present value of zero but future payment divided

Missouri Statutes require division of marital property, including local government retirement system benefits. The Circuit court treated the defined benefit pension as a future asset, requiring the beneficiary to pay the ex-spouse a fixed amount of the future payment, and assigning zero present value.  Such treatment is consistent with statutes requiring division of property and does not constitute deferred maintenance.  The nearly equal distribution of property stood on circuit court’s findings on factors set forth by statute. Misconduct that has affected the burdens within the marriage may affect the distribution of marital property but circuit court may still distribute marital property equally.

The trial court did not abuse its broad discretion in its distribution of marital property, in that the division of marital property was equitable, the order was definite and capable of enforcement, and the trial court considered the factors set forth in Section 452.330, RSMo.

Missouri Court of Appeals

Eastern District – ED102483

Filed July 19, 2016

Marijuana use not grounds for termination of parental rights

Posted in Child Abuse, Child Custody and Visitation, Family Law, Guardian Ad Litem, Parenting and Adoption, Trials

Recent Case: Marijuana use under the level of chemical dependency not grounds for termination of parental rights

Father appeals from the judgment terminating his parental rights. Grounds for termination of parental rights require clear and convincing evidence, so Court of Appeals examines evidence contrary to judgment.  Grounds include abuse or neglect and failure to rectify.  In this case there was not substantial evidence to support the trial court’s finding that Father’s marijuana use constituted a “chemical dependency” as defined in Section 211.447.5(2)(b) or Section 211.447.5(3)(d). Therefore, that condition cannot support termination on grounds of either abuse and neglect or failure to rectify.

Father’s refusal to comply with the service plan’s directive and court orders to become and remain drug free, however, could support termination on the failure to rectify ground, but only if there were also adequate findings supported by substantial evidence that the drug use itself was potentially harmful to the child. No such findings were made in this case, nor was there evidence of inability to care for the child.  Evidence of a failure to meet a condition of the service plan, without findings of fact—especially a finding related to harm—does not support judgment that is based on failure to rectify.  Coupled with the misstatements of the law regarding the required findings under Section 211.447.5(3), the judgment must be reversed.

Missouri Court of Appeals for the Eastern District

ED103681

Filed July 12, 2016

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