Kansas City Divorce Lawyer & Attorney : Wortman Law Firm

Record supports findings that Father could have supported and contacted Child but did not do so, that he did not repent of his conduct, and that his present and future conduct would be no different.
In the Matter of E.F.B.D. W.H. and K.H., Petitioners-Respondents, v. S.B., Respondent-Appellant. Missouri Court of Appeals Southern District

(Father) appeals from a judgment terminating his parental rights to E.F.B.D.(FN1) Father's parental rights were terminated on the ground of abandonment pursuant to Section 211.447.4(1)(b).(FN2) On appeal, Father contends there was insufficient evidence to prove this statutory ground for termination. Alternatively, he contends there was sufficient evidence to show that he repented of his abandonment of E.F.B.D. The Court affirms.

Law Pertaining to Termination of Parental Rights
To terminate parental rights, a trial court must use a two-step analysis. In re S.J.H., 124 S.W.3d 63, 66 (Mo. App. 2004). In the first step, the court must find by clear, cogent and convincing evidence that one or more statutory grounds for termination exist. Section 211.447.5; In re P.L.O., 131 S.W.3d 782, 788 (Mo. banc 2004). "Clear, cogent, and convincing evidence is evidence that instantly tilts the scales in favor of termination when weighed against the evidence in opposition and the finder of fact is left with the abiding conviction that the evidence is true." In re S.M.H., 160 S.W.3d 355, 362 (Mo. banc 2005). This standard of proof may be satisfied even though the court has contrary evidence before it or the evidence might support a different conclusion. In re Adoption of W.B.L., 681 S.W.2d 452, 454 (Mo. banc 1984); In re A.K.F., 164 S.W.3d 149, 151 (Mo. App. 2005). After finding one or more statutory grounds for termination have been proven, the trial court then moves to the second step and must determine, by a preponderance of the evidence, whether the termination of parental rights is in the child's best interest. Section 211.447.5; P.L.O., 131 S.W.3d at 789; S.J.H., 124 S.W.3d at 66.

Abandonment in Missouri

Section 211.447.4(1)(b). In relevant part, this subsection states that "[t]he court shall find that the child has been abandoned if, for a period of six months or longer … (b) The parent has, without good cause, left the child without any provision for parental support and without making arrangements to visit or communicate with the child, although able to do so[.]" Id.; see In re J.M.S., 83 S.W.3d 76, 82 (Mo. App. 2002). Abandonment has been defined as either "a voluntary and intentional relinquishment of the custody of the child to another, with the intent to never again claim the rights of a parent or perform the duties of a parent; or ... an intentional withholding from the child, without just cause or excuse, by the parent, of his presence, his care, his love, and his protection, maintenance, and the opportunity for the display of filial affection." In re Watson's Adoption, 195 S.W.2d 331, 336 (Mo. App. 1946); see In re P.G.M., 149 S.W.3d 507, 514 (Mo. App. 2004). This largely presents an issue of intent, which is inferred from the parent's conduct. In re P.L.O., 131 S.W.3d 782, 789 (Mo. banc 2004); P.G.M., 149 S.W.3d at 514. Evidence of the parent's conduct both before and after the requisite six-month period may be considered. In re J.B.D., 151 S.W.3d 885, 888 (Mo. App. 2004). However, "[o]nly the parent's conduct prior to the filing of the petition for termination may be considered to establish the six-month period." Id.

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Case Summary:
Past standard of living is not the standard for setting maintenance, but Wife showed that she can not meet her reasonable needs by working presently or in the future because of poor health and limited education. Circuit Court awarded proper amount, but used wrong term, in awarding maintenance, so Court of Appeals amends judgment to use right term. Substantial evidence supports imputation of income to Husband and award of attorney fees against him.
In re the Marriage of Debbie Lynn Taylor and Willie James Taylor, Debbie Lynn Taylor, Petitioner-Respondent, v. Willie James Taylor, Respondent-Appellant. Missouri Court of Appeals Southern District

Missouri Law pertaining to Awards of Maintenance (Alimony)
The trial court can award maintenance only if it finds that the party seeking maintenance "(1) Lacks sufficient property, including marital property apportioned to him, to provide for his reasonable needs; and (2) Is unable to support himself through appropriate employment[.]" Section 452.335.1.This section requires the trial court to follow a two-part threshold test. The court must initially determine if the requesting party has sufficient property to meet his or her reasonable needs, and if they do not, then the court must examine whether or not the party's reasonable needs can be met through appropriate employment.  Childers v. Childers,26 S.W.3d 851, 854 (Mo.App.W.D. 2000). The spouse seeking maintenance has the burden of establishing the threshold requirements. Comninellis v. Comninellis, 147 S.W.3d 102, 106 (Mo.App.W.D. 2004). After the court finds the threshold test has been satisfied, then the court may consider the statutory factors under Section 452.335.2 with respect to amounts and duration. Monsees v. Monsees, 908 S.W.2d 812, 817 (Mo.App.W.D. 1995).

In this case, Wife established that (1) she lacked sufficient property, including marital property apportioned to her during the dissolution, to meet her reasonable needs; and (2) that she is unable to support herself through appropriate employment.

Under Section 452.335.2, the court, in determining the amount and duration of a maintenance award, may consider all relevant factors including:

The financial resources of the party seeking maintenance, including marital property apportioned to him, and his ability to meet his needs independently[;]
The time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment;
The comparative earning capacity of each spouse;
The standard of living established during the marriage;
The obligations and assets, including the marital property apportioned to him and the separate property of each party;
The duration of the marriage;
The age, and the physical and emotional condition of the spouse seeking maintenance;
The ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance;
The conduct of the parties during the marriage; and
(10) Any other relevant factors.

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The following information is from the The Oregon Divorce Blog, recently also posted on the South Carolina Family Law Blog, two great family law blogs.  The following are excellent points and should be followed by anyone involved in a divorce case (or other family law matter).

Divorce is not easy. There are many pitfalls and traps awaiting parties that have not educated themselves about the process. People often make bad decisions under stress, or without the guidance of an experienced lawyer. Don’t be one of them. Divorce law isn’t rocket science, but it isn’t always intuitive. Avoid the following 10 divorce pitfalls to get a better result.

During your divorce, you should NOT:

1. Lie to your lawyer: We are here to help you. Your communication with us is privileged, meaning we can’t tell others about it, except in certain child abuse scenarios. The more we know, the more we can help. We need to know everything, the embarrassing, the ugly, and the secret. If you have a drug, alcohol, or gambling problem, tell us. You have two options: (1) Disclose and likely hear from your lawyer that your secret or problem is irrelevant to the court process, or (2) Fail to disclose and have your case hurt at trial because the other lawyer knows facts you haven’t told your lawyer.
2. Lie to the court: If you have a trial, the result is directly affected by your credibility. Judges are generally experts at determining who is telling the truth, and who is lying. Not only is lying to the court a crime, but your lawyer may have a duty to stop the proceeding and tell the court if he or she knows you are misrepresenting facts! If you have areas of your case that are sensitive, work with your lawyer on what you are going to say, but don’t misrepresent.
3. Involve the kids in the process: If your case involves a custody or parenting time dispute, nothing will draw the wrath of the court faster than involving your kids in the dispute. Don’t talk to them about the case. Don’t use them as pawns in the battle against your spouse. Don’t use them as your therapist, or treat them as your peers. Don’t put your spouse down in front of the kids. You are not only harming your case, you are harming your children.
4. Hide or fail to produce documents: You have an absolute right to see your spouse’s financial documents. Your spouse has an absolute right to see your financial documents. I have seen many cases that could have been simple turn complex and expensive when someone decides to not voluntarily produce records. The court can force you to produce records, and order that you pay your spouse’s lawyer fees incurred in getting the records. Good clients and good lawyers produce documents quickly and voluntarily. I had a case where we asked for some email records from the other side. They did not produce them, and when we filed a motion to compel their production, they tried to tell the court that they had been destroyed. The stunt seriously impacted the opposing lawyer’s credibility with the court.
5. Refuse to cooperate with a court appointed expert: In divorce and custody cases, experts called “custody evaluators” are routinely appointed to gather information about a family and make a recommendation regarding an appropriate parenting plan. If one is appointed in your case, cooperate. Be on time for appointments. Treat the expert with appropriate respect. Ignoring the requests of the evaluator can seriously harm your position and credibility with the court. An evaluator will likely make negative assumptions about you if you cannot comply with a court’s order to cooperate.
6. Settle without analyzing your case: Divorce can be unpleasant and emotionally painful. One reaction is to try to get it over quickly. Do not give into the urge to be done with the case before you have a full understanding of the assets and what a fair distribution looks like. You don’t want to be in a position where you are contemplating settlement and your spouse knows more about the assets than you. Prepare and go over a proposed distribution of assets and liabilities with your lawyer. Make sure you know the nature and extent of the assets, and get additional discovery if you don’t. Do not settle prematurely, before you know what is fair.
7. Fail to try to resolve the case outside of court: Don’t settle early without analysis, but also don’t fail to try to settle. Good lawyers and reasonable people settle most divorce cases without a trial. Many clients benefit from mediation, either through the county courthouse or through a private mediator. Our experience has been that many very difficult settle in mediation with the guidance of a trained expert mediator. You should always consult with your lawyer during the process to make sure you are getting a fair result. Settling also means you choose the outcome rather than have a judge impose an outcome on you. Parties that settle are generally happier long term, and have less ongoing conflict. Even if the other side is unreasonable, you should still make an offer to create a record of your position.
8. Take out your stress in unhealthy ways: This is the wrong time to up the drinking or other unhealthy behavior. Expect stress from the conflict and plan for it. Take out your stress in healthy ways, like at the gym, sports, or in talking to friends or a counselor. Don’t take it out on your children, or your body through unhealthy behaviors.
9. Be economically irrational in negotiations: At some point in every case it costs more to continue arguing than what is at stake. Approach your case with a business like mind. Are you really winning if you spend $1000 on lawyers to argue over a $50 lamp? Some (bad) lawyers insist on arguing about every point, without regard to cost. Every issue is a new battle front. A request to resolve one issue results in two more contested issues. In our opinion, these lawyers don’t serve their clients well. Pick your battles. If it costs $1000 to argue over something you can replace at Target for $20, buy a new one, and focus on what is really important.
10. Be your own lawyer if your case is contested and your spouse is represented: Many judges dislike unrepresented parties. Even experienced divorce lawyers hire experienced divorce lawyers for an objective opinion. Many unrepresented people who think they have a great case find out otherwise after a judge rules against them because they can’t tell the judge everything they want to because of the rules of evidence. If you disagree over property or custody, and your spouse has a lawyer, seek representation.

Source:  "Top 10 List: Top 10 Things to NOT Do During Your Divorce" by C. Sean Stephens, published at The Oregon Divorce Blog.

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Statute passed in 2007 did not apply to obligation in 2002. In 2002, statute provided that Child working 15 hours per week could maintain support obligation by completing at least nine credit hours of post-secondary education. Child completed eight credit hours. No manifest circumstances shown.

Father appeals from a judgment ordering him to pay retroactive child support to Mother for their child. Father contends that the trial court misapplied Section 452.340.5 because: (1) Daughter became emancipated as of January 1, 2004, after failing to satisfy the minimum college credit-hour requirements prescribed in this statute; and (2) neither she nor Mother provided Father with a transcript or similar official document so as to remain eligible for continued child support.

Mother argues that the trial court’s ruling should be upheld because of a 2007 amendment to Section 452.340, which states that "[w]hen enrolled in at least twelve credit hours, if the child receives failing grades in half or more of his or her courseload in any one semester, payment of child support may be terminated and shall not be eligible for reinstatement." Mother contends this amended language gave the trial court discretion to decide that Daughter was not emancipated. In essence, Mother is arguing that the 2007 amendment should be applied retrospectively.

The Missouri Constitution prohibits laws that are retrospective in operation.  A retrospective law includes one that creates a new obligation or duty with respect to past transactions. If a law gives something already done a different effect from that which it had when the events transpired, it is retrospective. Under the law in effect in 2003, Father’s obligation to pay child support terminated when Daughter failed to satisfy the minimum credit-hour requirements of Section 452.340.5. Therefore, the 2007 amendment to Section 452.340.5 cannot be applied retrospectively to those past events to create a new obligation to pay child support.

The Opinion can be read at: In re the Marriage of: Marsha Ann (Wood) Maggi and Brian Allen Wood, Marsha Ann (Wood) Maggi, Petitioner-Respondent, v. Brian Allen Wood, Respondent-Appellant.

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