Kansas City Divorce Lawyer & Attorney : Wortman Law Firm

I recently posted an article discussing Missouri Senate Bill No. 25 which, affects, among other things, the age of emancipation of children for purposes of child support.  Under the old law, child support would continue until the child reaches the age of 22 or graduates from college, whichever is sooner, provided that the child enrolled in college by October of the year that they graduated high school and remained continuously enrolled.  Under the new law effective August 27, 2007, the age is reduced to 21 with some additional requirements for the support obligation to continue. The text of the new law pertaining to child support and enrollment in college, RSMo Section 452.340 is set forth in my previous post dated July 18.  

Since that post, I have received a number of inquiries regarding whether or not this new law would apply to pre-existing child support cases.  This question has not yet reached the courts, so there is no absolute answer that I am aware of yet.  However, we can look to past precedent and the current attitude of at least some Missouri courts for guidance on the issue.  

The statute itself does not state that the new law only applies to child support cases enacted after a certain date, and this is not the first time that the Missouri legislature has changed the child support emancipation law.  Previously, when emancipation was changed from 21 to the 18/22 rule, the courts held that the law at the time of emancipation of the child controlled.  The logic was that the amended statute did not violate savings statutes but operated to terminate future child support payments at an earlier date than anticipated when the order was entered.  The change in age was sufficient grounds for a modification to terminate child support payments because the child had reached the age of emancipation.

It is also true that at least some Missouri Courts have taken the same position regarding the new law.  So, we can reasonably conclude, unless and until the courts instruct us otherwise, that when a child reaches the age of 21, or earlier if all requirements are not met for continued support, they are emancipated and child support should terminate, regardless of when the order was first entered.  This would apply retroactively as to previous orders, but not retroactively to the 21st birthday if the child turned 21 before the enactment of the statute.  In this situation the date of emancipation would be the date the statute was enacted, August 28, 2007. 

• Print
• Comments
• Trackbacks

Discussed below is a recent ruling from the Western District of Missouri, where the Court, among other things, upheld the trial Court's ruling of imputation of income for child support and the award of attorney's fees. 

For calculation of child support, a trial court may impute income to a party according to what that party could earn by using best efforts to gain employment suitable to his or her capabilities.   Imputation is appropriate where the parent voluntarily reduces his or her income without justification. Further, Imputation is only proper where the trial court concludes from the evidence that the "parent has the capacity to earn more but voluntarily refuses to do so."  In imputing income, the directions to Form 14 indicate that the court may consider employment potential and probable earnings level based on the parent's recent work history, occupational qualifications, prevailing job opportunities in the community. 

As to the issue of attorneys fees, Missouri law permits the Court to award attorney's fees to a party, but it is not required to do so.  Generally the Court takes the position that each party must bear their own costs of litigation, and usually does not require one party to pay the attorney's fees of another party.  However, if the court does make such an award, the Court must consider all relevant factors including, the relative financial resources of the parties, the merits of the case, and the actions of the parties during the pendancy of the action.  In this recent case, the Court of Appeals stated in so many words that an award of attorney's fees would not be reversed if the award was arbitrary and unreasonable.

The summary of the case is as follows:

Circuit Court Need Not Award All Attorney Fees
Child's best interest does not necessarily require that Spouse who was caregiver during marriage has more parenting time after dissolution. Circuit Court properly imputed income to Spouse based on evidence of earning potential and desire not to achieve it. Actual income includes bonuses and benefits. In property division, Circuit Court need not credit Spouse with separate debts, including attorney fees, and need not award fees where much was spent litigating meritless issue. Payment of past maintenance did not waive contest of future payments, but Spouse did not show that the amount "was unwarranted, beyond [Spouse's] means to pay or so excessive as to constitute an abuse of . . . discretion. Rule allows award of half of transcript costs.
Sharlene Krepps, Appellant-Respondent, v. Richard Lee Krepps, Respondent-Appellant. Missouri Court of Appeals Western District

• Print
• Comments
• Trackbacks

What happens if there is a court ordered parenting plan as a result of a divorce, paternity case, or other proceeding, and one of the parents wishes to relocate to another city or state?  Well, Missouri law places a burden on the parent to notify the other parent, in writing, meeting specific requirements, before the relocation.  Essentially, the parents must be able to agree on a new parenting plan, and if they cannot, they have an opportunity to have the Court decide whether the parent can relocate.  The following are the requirements of Missouri's statutory restriction on relocation:

Absent exigent circumstances as determined by a court with jurisdiction, a parent with physical custody of a child will notify, in writing by certified mail, return receipt requested, and at least sixty days before the proposed relocation, each party to this action of any proposed relocation of the principal residence of the child, including the following information:

• The intended new residence, including the specific address and mailing address, if known, and if not known, the city
• The home telephone number of the new residence, if known
• The date of the intended move or proposed relocation
• A brief statement of the specific reasons for the proposed relocation of the child
• A proposal for a revised schedule of custody or visitation with the child

The parent’s obligation to provide this information to each party continues as long as that parent is entitled to custody of a child under a court order. The parent’s failure to abide by this provision regarding the proposed relocation may result in further litigation to enforce the requirement, including contempt of court for violating a parenting plan that has been incorporated into the court’s judgment. In addition, the parent’s failure to notify a party of the 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 the parent for failing to give the required notice.

            Once a parent intending to relocate has given the proper notice to the other parent, the parent receiving the notice has thirty days from the date the notice was received to file a motion and affidavit in court setting forth the factual basis supporting that parent’s objection to the relocation. The parent requesting the relocation will then file a response within fourteen days, unless extended by the court, and this response will include a counter-affidavit setting for the facts in support of the relocation as well as a proposed revised parenting plan for the child.

            The parent seeking to relocate will have the burden of proving that the proposed relocation is made in good faith and is in the best interests of the child.

• Print
• Comments
• Trackbacks