Kansas City Divorce Lawyer & Attorney : Wortman Law Firm

Challenge to administrative review of child support. State ex rel. Sherrie L. Hansen, Relator v. State of Missouri, Department of Social Services, Family Support Division, Janel Luck, Director, Respondent, No. 88242 (Mo. banc, June 26, 2007), Stith. J.
  This is another attempt to challenge the authority of the State of Missouri to seek modification of child support judgments administratively. The opinion highlights the difference between perception and reality in that the state cannot enter orders modifying child support. “…[S]ection 454.496 'does not vest the Division with powers reserved exclusively by the constitution to the judicial department' because it does not, in fact, permit the Division to administratively modify a child support order. Rather, the statute merely provides a procedure whereby the Division can seek judicial modification of such an order.'” Chastain v. Chastain, 932 S.W.2d 396 (Mo. banc 1996).
  Held: Preliminary writ of prohibition quashed.
  One of the interesting arguments made by Hansen in challenging the authority of the Division of Family Support was essentially that the division's conclusions on a child support modification do not take into consideration all of the requisite factors under § 452.340.1 and Rule 88.01 (a)-(b).
  However, since the preliminary writ of prohibition halting the division's administrative process occurred prior to a hearing and judicial review, consideration of this aspect of the case was premature. The opinion notes that the statute requires the division to consider all relevant factors related to the modification of child support. “If the Division, at some later date, attempts to apply a standard different than that required by Rule 88.01 or section 452.340, Ms. Hansen can then seek the appropriate relief.” What this opinion does not say but implies is that the “different standard” is the process for modification consisting of nothing more than the mathematical computation of a Form 14. Therefore, this issue is not necessarily dead.

Income tax deductions in true joint physical custody. Harold Robertson, Appellant v. Samantha Robertson, Respondent, No. 67330 (Mo. App. W.D., July 24, 2007), Newton, P.J.
  Father appealed on several grounds the modification judgment as to child custody and support. This summary only addresses the one upon which reversal was ordered. In the original divorce in 1997, the trial court awarded both dependency exemption deductions to father. In the modification judgment, the trial court “… granted . . .the tax deduction for one of the children” to mother. Although the parties have joint physical custody, father claimed to be the “primary” physical custodian. Therefore, he argues that he should get both deductions in accordance with the Internal Revenue Code.
  The opinion notes that this parenting plan provides for a virtual 50/50 physical custody split.
  Held: Reversed.
  “Assignment of the tax deduction must follow federal law under 26 U.S.C. Section 152(e). Simon-Harris v. Harris, 138 S.W.3d 170 at 183 (Mo. App. WD 2004). In order to grant the child tax deduction to the non-custodial parent, the trial court must order the other parent to annually assign the tax deduction to the non-custodial parent. Id. Custody in this case is shared equally; 26 U.S.C. Section 152 (c)(4)(B)(ii) grants the deduction to the person with the highest adjusted gross income where custody is shared equally. Since the trial court has found that each parent should obtain the deduction for one of the children, the trial court must order the parent with the highest adjusted gross income to annually assign one of the deductions to the other.”

From The Missouri Bar Courts Bulletin, 7-Aug

• Print
• Comments
• Trackbacks

In Missouri, there is a specific law that details under what circumstances Missouri Courts have jurisdiction to make custody and visitation orders, called the Uniform Child Custody Jurisdiction Act, or MoUCCJA.  Section 452.150.1 sets out the four alternative jurisdictional bases that exist under the UCCJA. If a court is otherwise competent to decide a child custody matter, the statute grants the court subject matter jurisdiction to do so if:

(1) this state is:

            (a)        The “home state” of the child at the time of the commencement of the proceeding (defined as the state where a child has lived for 6 consecutive months); or

            (b)        had been the child’s home state within the six months before commencement of the proceeding and the child is absent from this state for any reason, and a parent or person acting as parent continues to live in this state; or

(These two 6 month provisions are different and must be read together)

(2) It is in the best interests of the child that a court of this state assume jurisdiction because:

            (a)        The child and his parents, or the child and at least one litigant, have a significant connection with this state and

            (b)        There is available in this state substantial evidence concerning the child’s present or future care, protection, training, and personal relationships; or

(3) The child is physically present in this state and:

            (a)        Has been abandoned; or

            (b)        It is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse, or is otherwise being neglected; or

(4) It appears that no other state would have jurisdiction under prerequisites 1, 2, or 3, or another state has declined to exercise jurisdiction on the ground that this state is the more appropriate forum to determine the custody of the child, and it is in the best interest of the child that this court assume jurisdiction. 

       “The primary purpose of the UCCJA is to ensure that custody determinations are made in accordance with, and in the state best suited to provide for, the welfare and best interest of the child. To that end, the UCCJA is purposely designed “to ensure that a child’s custody determination is made in the state with which the child and his family are most closely connected and where the most significant evidence concerning the child’s custody is available. The comments to the UCCJA make it clear that the bases of jurisdiction in paragraphs (1) – (4) of §452.450.1 are set out in descending preferential order and that the first two bases for jurisdiction, home state and significant connection with family, establish the two major bases for jurisdiction.

            A trial court’s jurisdiction under the UCCJA to hear custody matters must be based upon circumstances existing at the time the Court’s jurisdiction is invoked. Missouri courts have repeatedly observed that "it is implicit in the scheme of the UCCJA that the trial court should make an initial determination of jurisdiction by express findings of fact before proceeding to the substantive issue of custody

Recent rulings in the last few weeks

  In Roman Gosserand, Respondent, v. Tiffani Gosserand, Appellant  the court restated that the jurisdictional bases are to be analyzed in decending order, which means that home state jurisdiction is the strongest, with significant contacts being second. In this case there was a “home state” as defined in the statute, and the Father of the child argued that the state with the most “significant contacts” should be the appropriate state. The Gosserand court disagreed and held that since there was a “home state”, that was the strongest jurisdictional base and there was insufficient evidence to overcome it, and the “home state” was the appropriate jurisdiction.

In Theresa Schoenecke, Plaintiff-Appellant, v. Brent Schoenecke, Defendant-Respondent, the Court dealt with the issue of the requirement that the Court must make express findings of fact as to jurisdiction before proceeding to determine the substantive issue of custody. In Schoenekcke, the trial court ruled that there was no child custody jurisdiction without any explanation as to how the court came to that decision. This ruling was based on in chambers and off the record arguments of the attorneys. There was no presentation of evidence to support the ruling of the court. Because of this the Court of Appeals remanded the case back to the trial court to make express findings as to jurisdiction.

• Print
• Comments
• Trackbacks

The New York Divorce Report recently had an interesting post regarding pets and divorce.  Being a dog fanatic myself (Golden Retriever and Black Lab in our family), I thought it was particularly interesting

When a childless couple divorces there is generally no issue of custody, except when there is a dispute about who will get custody of the four legged family members.

The ABA Journal E Report features a case in which a lawyer was appointed as guardian ad litem for a dog in a contested custody dispute. This report lead a columnist for the Times and Democrat to imagine the negotiation for custody of a dog in a divorce:

There would be many issues to discuss: Who will get primary custody and who will get visitation rights? Is joint custody a possibility? With whom does the dog spend holidays? Then there is the issue of doggie support: Who will be responsible for the dog’s veterinary care and the associated expenses? Who will pay for his grooming? Well, at least the couple wouldn’t have to argue about who pays for his education.

I would agree with the New Your Divorce Report that when a divorcing couple disputes custody of a dog or cat, courts have treated the matter not as a custody dispute but as a personal property issue.  However, I have seen on a few occasions in Missouri courts, a parenting plan for pets.  It is minimal and just limited to visitation, but I imagine that if someone wanted the Court to order such a plan, it would do so.  Whether that could actually be enforced is another question, though.

• Print
• Comments
• Trackbacks

Distribution DecreasedMarital property may include property titled in one spouse’s name, and increase in property value if financing paid for with marital income.  Court of Appeals adjusts values of property and amounts distributed to Wife. Respondent may raise error as to Circuit Court rulings without a cross-appeal if it helps maintain a judgment favorable to her.  Pre-nuptial agreement was erroneously entered into evidence because it was relevant to an affirmative defense, not plead.
Lavonne Carol Holman, Respondent, v. William Hill Holman, Appellant. Missouri Court of Appeals Southern District

Source for Post: The Missouri Bar

• Print
• Comments
• Trackbacks

The following article was recently published by Jimmy Atkinson on his blog Ask the Advisor.  This article addresses a very important issue in a dissolution of marriage proceeding, the division of debt.  If not done properly or completely, outstanding debts can cause disasterous consequences to a sometimes innocent party.  The fact is, a Court can order a party to a divorce to pay a certain debt, but the court cannot alter the relationship of the parties with their creditors.  This means that, for example, if Husband and Wife are jointly on a credit card account, and the court orders Wife to pay the debt, if Wife does not pay,  the creditor can and likely will still come after husband for payment.  It is then up to Husband to pay the debt and try to recover the money from Wife in an enforcement or contempt proceeding.  This is a costly and time consuming process that can be avoided with proper planning, and this is why It is important to remove names or transfer debts into the name of the person who is obligated to pay prior to the divorce. 

The article contains additional infomation and is reproduced in its entirety below

• Print
• Comments
• Trackbacks