Kansas City Divorce Lawyer & Attorney : Wortman Law Firm

Princeton encourages it. Harvard’s a big fan. From Tufts to MIT, some of the most prestigious universities in the nation are urging students to consider something that would make most parents cringe: The idea of putting off college for a year in favor of some much-needed down-time. 

It’s called a “gap year.” And while it’s been a common and popular rite of passage in Australia and the U.K. for decades, the concept is now starting to gain significant steam here in America.

Why? A growing number of high school seniors are balking at riding the academic conveyer belt from preschool, all the way to university. They’re burnt out. Or not quite ready. Or they want to explore a few interests before deciding what to study in college. So instead of packing their bags in anticipation of freshman year, they’re volunteering in New Orleans or teaching in Thailand. They’re starting the great American novel, or interning to help figure out what they want to do with their lives.

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Circuit Court May Depart From Recommendations On Physical Custody
Guardian ad litem and court-appointed therapist both recommended joint legal custody and supervised visitation for Father. Circuit Court followed the former but not the latter. When evidence supports an alternative award, “the trial court is not bound by the requests of any party as to custody or visitation, even when both parties agree.” No judgment required Father to pay child support and Mother forgave some of it, so Circuit Court did not abuse its discretion in awarding no retroactive child support.
In re the Matter of L.J.S., by A.C.H., as next friend, and A.C.H., individually, Petitioner-Respondent, v. F.R.S., Respondent-Appellant. Missouri Court of Appeals Southern District

Circuit Court Must Decide Contempt Action
Upon dismissal of motion to modify custody, guardian ad litem was discharged, and testified only as to fees, mooting motion to remove guardian. Circuit Court issued an order that Father show cause why he should not be held in contempt for failure to pay child support. Circuit Court consolidated contempt action with child support modification action for all purposes, giving notice to Father, so that Circuit Court's failure to rule on it did not result in loss of jurisdiction. Circuit Court must decide it. Record supported Circuit Court's findings as to parties' relative income.
Angela Shapiro McCoy, Appellant v. Samuel Scavuzzo, Respondent. Missouri Court of Appeals Western District

 Findings Show Grounds For Termination Of Parental Rights
Presence of findings related to abuse shows that parental unfitness was not the sole grounds for termination of parental rights. Past abuse and lack of present reform raise presumption of future threat to Child's future.
In the Interest of: K.R.G., A.K.G., and R.C.G., C.G., Appellant v. The Christian County Juvenile Office, Respondent. Missouri Court of Appeals Southern District

Objection To Relocation Waived
Statute requires notice before permanently relocating children's residence. After temporary relocations, Mother gave notice of intention to permanently relocate as required by statute. Father did not file objection as required by statute and so waived objection.
Gina M. Dent, Petitioner/Respondent v. Charles W. Dent, Respondent/Appellant. Missouri Court of Appeals Eastern District

Source for Post:  The Missouri Bar

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From The Missouri Bar
Editor:
  John W. Dennis, Jr., Esquire

Paternity: Change of surname/meeting burden of proof. Warren Joshua Wright, Respondent v. Anden Richard Buttercase by his next friend, Heather Ladawn Buttercase, and Heather Ladawn Buttercase, Appellants, No. 67861 (Mo. App. W.D., January 15, 2008), Lowenstein, J.
  This child was born out of wedlock and given his mother's surname. In this action to establish paternity, custody and support, the trial court also ordered the child's surname changed to that of father. Mother appealed.
  Held: Affirmed. It is axiomatic that the party seeking to change the child's surname has the burden of proving that the change is in the child's best interest. Neither parent's name is presumed preferable to the other.
  The factors: (a) the child's age – here the child is too young to know the difference; (b) potential embarrassment or discomfort of the child in a change – here, the child is too young to know and is not in school, so no change will result in confusion, embarrassment or discomfort; and, (c) how the name change will affect the child's relationship with his parents. Father here testified that he was trying to build a relationship with the child. In addition, “every” child in the community had his father's surname and a change would help the child identify with the father's family. The trial court concluded that, given those circumstances, the child would be more likely to feel accepted by father if they shared a last name. Moreover, the child was so young that the change of surname would not affect his relationship with his mother.
  The foregoing was found to be substantial evidence to support the trial court's decision.
  Editor's Note: Although this case may be fact specific in relation to the outcome, it is instructive, in that there are outside factors to look for beyond a parent's motivation for seeking a name change for his/her child.

Child Support and College grades: Adequacy of notice. James Waddington, Petitioner/Appellant/Cross-Respondent v. Maureen (Waddington) Cox, Respondent/Cross-Appellant, No. 88992 (Mo. App. E.D., January 2, 2008), Shaw, J.
  The parties were divorced in 1996. The parties' son was placed in the “primary” care of father, and mother was ordered to pay child support of $378 per month. In October, 2000, son went off to college. He provided mother with the university's letter of conditional acceptance. Throughout his college career, the child provided mother with notice of his grades via an on-line access service the university provided to its students. Mother did not pay child support. Eventually, father sought enforcement of the child support judgment. Mother claimed the notice of son's grades was inadequate because the on-line printout was not an official transcript. The trial court agreed. Father appealed.
  Held: Reversed. This is a case of first impression in Missouri. Section 452.340.5 RSMo requires the child to provide each parent with a “transcript or similar official document” from the institution showing grades, courses and credits earned. There is no question that the records provided to mother were not official transcripts.
  “Given the varying definitions and the ubiquity and security of online student records systems similar to [the one provided here], this Court declines to speculate whether the legislature assumed that a 'transcript' is inherently official or considered the possible implications of such an assumption in a case like the one before us. We can only observe that the legislature did not include the word 'official' before transcript. As such, 'official' only modifies the word 'document.' To interpret the statute to require an official transcript would be to add qualifying language where it does not exist.”
  “Missouri courts liberally construe section 452.340.5 to be consistent with the public policy of promoting the pursuit of higher education. Mandel v. Eagleton, 90 S.W.3d 527,531 (Mo. App. E.D. 2002) (internal citations omitted). “Therefore, we conclude that a parent's obligation to provide financial support to a child in college should not terminate merely for lack of an official stamp, where, as here, substantial evidence demonstrates that the parent received actual notice in the form of an inalterable online transcript containing all the information required by the statute.”

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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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Administrative child support order was void because of prior judicial order. Court of Appeals denies motion to supplement record with evidence, of non-custodial parent's liability for child support, not received in Circuit Court. But non-custodial parent did not prove Family Support Division's liability for over-collected amounts because he did not show how much Family Support Division improperly received.
Tony Ward, Respondent, v. Janel Luck, As Director Family Support Division, Missouri Department of Social Services, Appellant. Missouri Court of Appeals Eastern District

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California child support order was due to expire, but Mother moved to Missouri and obtained modification. Father failed to appeal modification, and to impeach it when enforced or in his own action, and so waived personal jurisdiction. Father sought termination of child support, but Uniform Reciprocal Enforcement of Support Law only enforces payment of California order, not its termination. Missouri statutes extend child support through secondary education. "[T]he interest of Missouri in the welfare of its resident child outweighs the interest of [State] where father resides, in protecting its sovereignty."
Melissa Burke, Appellant, v. Earl Hutto, Respondent. Missouri Court of Appeals Eastern District

Source for Post: Missouri Bar

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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. 

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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

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On July 13 of this year, Governer Matt Blunt signed Senate Bill 25 into law.  This bill affects, among other things, the age of emancipation of children.  Under the current law, child support will 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, 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 below.  Items in brackets are parts of the current law that are removed, and items in bold are the text of the new law:

 Unless the circumstances of the child manifestly dictate otherwise and

 the court specifically so provides, the obligation of a parent to make child support

 payments shall terminate when the child:

 (1) Dies;

 (2) Marries;

 (3) Enters active duty in the military;

 (4) Becomes self-supporting, provided that the custodial parent has

 relinquished the child from parental control by express or implied consent;

 (5) Reaches age eighteen, unless the provisions of subsection 4 or 5 of this

 section apply; or

 (6) Reaches age [twenty-two] twenty-one, unless the provisions of the

 child support order specifically extend the parental support order past the child's

[ twenty-second] twenty-first birthday for reasons provided by subsection 4 of

 this section.

 4. If the child is physically or mentally incapacitated from supporting

 himself and insolvent and unmarried, the court may extend the parental support

 obligation past the child's eighteenth birthday.

 5. If when a child reaches age eighteen, the child is enrolled in and

 attending a secondary school program of instruction, the parental support

 obligation shall continue, if the child continues to attend and progresses toward

 completion of said program, until the child completes such program or reaches

 age twenty-one, whichever first occurs. If the child is enrolled in an institution

 of vocational or higher education not later than October first following graduation

 from a secondary school or completion of a graduation equivalence degree

 program and so long as the child enrolls for and completes at least twelve hours

 of credit each semester, not including the summer semester, at an institution of

 vocational or higher education and achieves grades sufficient to reenroll at such

 institution, the parental support obligation shall continue until the child

 completes his or her education, or until the child reaches the age of [twenty-two]

 twenty-one, whichever first occurs. To remain eligible for such continued

 parental support, at the beginning of each semester the child shall submit to each

 parent a transcript or similar official document provided by the institution of

 vocational or higher education which includes the courses the child is enrolled in

 and has completed for each term, the grades and credits received for each such

 course, and an official document from the institution listing the courses which the

 child is enrolled in for the upcoming term and the number of credits for each such

 course. When 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. Upon request for notification of the

 child's grades by the noncustodial parent, the child shall produce the

 required documents to the noncustodial parent within thirty days of

 receipt of grades from the education institution. If the child fails to

 produce the required documents, payment of child support may

 terminate without the accrual of any child support arrearage and shall

 not be eligible for reinstatement. If the circumstances of the child manifestly

 dictate, the court may waive the October first deadline for enrollment required

 by this subsection. [If the child has pursued a path of continuous attendance and

 has demonstrated evidence of a plan to continue to do so, the court may enter a

 judgment abating support for a period of up to five months for any semester in

 which the child completes at least six but less than twelve credit hours; however,

 such five-month period of abatement shall only be granted one time for each

 child.] If the child is enrolled in such an institution, the child or parent obligated

 to pay support may petition the court to amend the order to direct the obligated

 parent to make the payments directly to the child. As used in this section, an

 "institution of vocational education" means any postsecondary training or

 schooling for which the student is assessed a fee and attends classes

 regularly. "Higher education" means any junior college, community college,

college, or university at which the child attends classes regularly. A child who

 has been diagnosed with a [learning] developmental disability, as defined in

 section 630.005, RSMo, or whose physical disability or diagnosed health

 problem limits the child's ability to carry the number of credit hours prescribed

 in this subsection, shall remain eligible for child support so long as such child is

 enrolled in and attending an institution of vocational or higher education, and the

 child continues to meet the other requirements of this subsection. A child who

 is employed at least fifteen hours per week during the semester may take as few

 as nine credit hours per semester and remain eligible for child support so long as

 all other requirements of this subsection are complied with.

The bill also contains modifications to other statutes pertaining to child support, foster parents, and child protection and reformation.  The entire bill can be read here. 

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Senate Bill 25, set to take effect on August 28 of this year, was delivered to governor Matt Blunt on May 30, 2007.  The Bill affects various statutes pertaining to child protection, enforcement of child support, and termination of child support, The summary of the bill is as follows:

             CHILD ABUSE AND NEGLECT INVESTIGATIONS

This act prohibits the Missouri Children's Division from closing a child abuse or neglect investigation if a child subject to the investigation dies during the course of the investigation, until such time as any separate investigation by the Division regarding the death is completed. (Section 210.145)

FOSTER PARENTS' BILL OF RIGHTS

This act modifies several provisions regarding the rights of foster parents, and states that the children's division and its contractors shall provide foster parents with written notification of the rights enumerated in this act at the time of initial licensure or renewal of licensure.

The act provides that the division and its contractors shall provide foster parents with regularly scheduled opportunities for preservice training and pertinent inservice training, as determined by the Missouri State Foster Care and Youth Advisory Board. The division and its contractors shall provide to foster and potential adoptive parents, prior to placement of children, a full disclosure of all medical, psychological, and psychiatric conditions of the child, information from previous placements that would indicate a propensity of the child to engage in violent or destructive behavior, information related to the child or child's family including history of mental or physical illness, sexual abuse or perpetration, criminal background, fire-setting or other destructive behavior, substance abuse, or any other information that is pertinent to the care and needs of the child and protection of the foster or adoptive family. Knowingly providing false or misleading information in order to secure placement for a child shall be denoted in the caseworker's file and shall be kept on record by the division. Foster parents shall be informed in a timely manner of all team meetings related to licensure status or children placed in their home. Foster parents shall follow all division and contractor procedures related to requesting and using respite care.

The act also provides that foster parents may share otherwise confidential information about children in their care with school personnel in order to secure safe and appropriate education for such children, and may share such information as is necessary for medical or psychiatric care of the child. Foster parents also must share any concerns that arise in the care of any child in their home with members of the child welfare team. Foster parents are also required to be flexible and cooperative with regard to family visits.

The act states that the division and its contractors shall provide foster parents with training that specifically addresses cultural needs of foster children, including but not limited to skin and hair care, and religious or cultural practices of the child's biological family, and shall provide referrals to community resources for ongoing education and support. Foster parents shall use discipline methods which are consistent with division policy.

The act also provides that foster parents shall give two weeks notice when requesting removal of a child in their home, except in emergency situations. Also, if a child reenters the foster care system and cannot be placed in a relative home, such child's former foster parents shall be given first consideration for placement of the child. If a foster child becomes free for adoption, foster parents shall inform the caseworker within 60 days of any inquiry as to whether they desire to pursue adoption, and if they choose not to do so, foster parents shall support the child's placement in a permanent home by providing information on the history and care needs of the child, as well as accommodating transitional visitation. The act provides that foster parents shall be informed by the court no later than two weeks prior of all court hearings pertaining to a child in their care.

The act also provides that the division and its contractors shall provide access to an impartial grievance procedure to address issues relating to foster parent licensure, case management decisions, and service issues. (Section 210.566)

These provisions are substantially similar to SB 697 (2007).

CHILD SUPPORT ENFORCEMENT

This act modifies various provisions relating to child support enforcement. Under current law, the Child Support Enforcement Division may certify a person who owes a child support arrearage in excess of 5,000 dollars to the appropriate federal agency for denial, suspension or limitation of a passport to such person. This act lowers the arrearage threshold for passport denial certification from $5,000 to $2,500. This act also allows the division to open a corresponding child support case based on another state’s request for assistance.

Definitions for "parent," "dependent child," "obligee," "obligor," and "public assistance" are modified. Among such modifications are adding putative father and legal father into the definition of "parent" and adding the state into the definition of "obligee."

This act also allows the Child Support Enforcement Division to collect past due support owed to the state when a caretaker relative was on assistance or the child was in the custody of the state. The division is also allowed to establish an administrative order against any parent who does not already have an order against them. Under current law, the division can only establish an order if there is no order of support for the child. The division is also allowed to vacate an order which was improperly entered without jurisdiction or due process. Under current law, a court order is needed in order to avoid these orders. This act also specifies that an administrative modification can be made and must be approved by the court to become an enforceable order. If the order is not approved, the matter is then set for trial de novo.

This act also authorizes the Missouri Gaming Commission to direct gambling boats to intercept and pay over gambling winnings to individuals who owe past-due support or state debt, if winnings meet criteria for reporting to the Internal Revenue Service. (Section 454.390, 454.455, 454.460, 454.470, 454.496, 454.511, 511.350)

These provisions are substantially similar to SB 603 (2007) and HB 936 (2007).

CHILD SUPPORT MODIFICATION

This act allows a parent to stop paying child support when his or her child reaches 21 years of age or is at least 18 years of age and receives two failing grades in half or more of his or her courseload in any one semester when enrolled in at least 12 credit hours of higher education. (Section 452.340)

These provisions are substantially similar to HB 493 (2007).

The entire bill can be read here.

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Burden of proof of stalking for order of protection. Thomas Schwalm, Respondent v. Lori Schwalm, Appellant, No. 87829 (Mo. App. E.D., March 20, 2007), Richter, P.J.
  This case is instructional to the extent it discusses the failure of proof that required the reversal of the judgment for an order of protection.
  Husband sought an order of protection where the evidence showed that wife knocked on husband's door multiple times, once blocked husband's vehicle in a parking lot, followed him to work on occasion and once approached him at a gas station. That sounds like stalking, except for one crucial element. “While the statutory definition of stalking requires alarm (in the victim), a plaintiff is required to do more than simply assert a bare answer of 'yes' when asked if he was alarmed. A plaintiff must show that a defendant's conduct caused him fear of danger of physical harm as stated in the statutory definition of alarm. See Section 455.010(10)(c).”
  Note: A similar case was just reported for the same proposition: Clark v. Wuebbeling, No. 88413 (Mo. App. E.D., March 20, 2007), opinion also by Judge Richter.

Identical twins yield identical paternity tests. State of Missouri, ex rel., Department of Social Services, Division of Child Support Enforcement, and Holly Marie Adams, Petitioners/Respondents v. Raymon Miller, Respondent/Appellant and Richard Miller, Respondent, No. 27188 (Mo. App. S.D., March 14, 2007), Garrison, J.
  This was a paternity action in which twin brothers were having sexual relations with the eventual mother of a child for whom child support was sought. The brother named as the father appealed on the basis that the burden of proof of his paternity was not met because of the results of DNA testing of both brothers. The results were identical.
  Held: Affirmed. When competing tests for paternity show two potential fathers, the court must look to the nongenetic evidence to determine if there is a preponderance of evidence of the identity of the father. Here, the mother's testimony established that appellant was the only one of the two who could be the father.

Disqualification of guardian ad litem in modification action. State of Missouri, ex rel. Larry Dreppard, Relator, v. Hon. Phillip Jones, Com., and Hon. John Essner, Respondents, No. 89214 (Mo. App. E.D., March 6, 2007), Norton, P.J.
  A motion to modify was filed and the trial court re-appointed the guardian ad litem (“GAL”) from the dissolution of marriage action. Within 10 days of that appointment, father asked for the disqualification of the GAL. The request was denied. Father now seeks a writ of mandamus compelling the trial court to grant the motion to disqualify.
  Held: Writ made absolute. Section 452.423.1, RSMo provides that each party has a right to one disqualification of an appointed GAL if requested in a timely manner (within 10 days of the appointment). The trial court viewed the motion to modify as a continuation of the original dissolution action. However, the opinion notes “… that by 're-appointing' the GAL following the motion to modify, the court recognized that the modification proceeding was independent from the original dissolution proceeding. Otherwise, no appointment would have been necessary.” Since the motion to modify is deemed by the rules to be an independent proceeding, the parties had a right to disqualify the GAL.

Pension benefits and disability payments. Sandra Ray Coffman, Respondent v. Elvin Cale Coffman, Appellant, No. 66204 (Mo. App. W.D., February 27, 2007), Ellis, J.
  In this dissolution of marriage action, the parties were married in 1982. At that time, husband had worked for General Motors for approximately 4 ½ years. He continued that employment until December 2002 for a total of 24 years. Earlier that year he had been admitted to a psychiatric hospital and his father was named as his guardian and conservator by the probate court. He was 45 years old as of his last day at General Motors. He had received disability payment from General Motors and eventually qualified for Social Security disability benefits, too. He qualified and was ultimately receiving disability benefits from General Motors. The trial court determined that all but the pre-marital years of credited service were marital property having been accumulated during the marriage. It was divided equally between the parties. Husband appealed.
  Held: Reversed. The court of appeals determined from the evidence that the only reason the husband had begun receiving benefit payments was because of his disability. Otherwise, he would not be eligible for pension benefits until reaching retirement age under the plan. Further, the terms of the General Motor benefits provided that husband would receive the disability payments based on his years of service until either he reached age 65 (retirement age) or became capable of gainful employment. After age 65 the benefits would revert to being pension benefits in character. Thus, the benefits he was and would later be eligible for were partially marital and non-marital in character. The opinion notes that disability benefits are not marital property “… if they serve as a substitute for earnings lost due to the recipient's inability to work. In re: Marriage of Thomas, 21 S.W.3d 168,173 (Mo. App. S.D. 2000).”
  The case was remanded for a determination of which portion of the marital portion of the benefits will be awarded between the parties and to award husband the non-marital portion thereof.

Order of protection between brothers-in-law. Terry Pratt, Respondent, v. Chuck Lasley, Appellant, No. 65992 (Mo. App. W.D., January 16, 2007), Ellis, J.
  The two parties are brothers-in-law because they are each married to women who are sisters. Respondent was found to have assaulted the Petitioner and an order of protection was entered. The Respondent appealed asserting that the definition of family member in the statute (§455.020.1) did not apply since there is no blood relation between them.
  Held: Affirmed. “Had the legislature intended to limit the statute's applicability to those 'of kin' or related by cosanguinity or direct affinity as proposed by (respondent), the legislature would have used those terms in the statute.
  “The plain and ordinary meaning of the phrase 'related by marriage' includes one's brother-in-law.”

Source for Post:  The Missouri Bar

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Modifying Child Support Order Requires Calculation Of Presumed Amount
On motion to modify child support, Circuit Court must determine presumed amount, and determine whether to accept or reject it, even when no party requested findings of fact.
Laura M. Klingseisen, n/k/a Laura Al-Amery, Petitioner/Appellant, v. Robert E. Klingseisen, Respondent. Missouri Court of Appeals Eastern District

No Continuing Change Needed To Modify Custody
Statutes do not require a continuing change for modification of custody, only for modification of child support. Despite Circuit Court's use of incorrect basis to deny motion to modify, Court of Appeals affirms because Circuit Court found that Child's best interests also favored denial. Awarding attorney fees based only on the parties' incomes, without regard to their expenses, is an abuse of discretion.
Misti L. Kinner, Formerly Isenbletter, Petitioner-Appellant/Cross-Respondent, v. Michael L. Scott, Respondent-RespondentCross-Appellant. Missouri Court of Appeals Southern District

Order To Pay For Private School Not Supported In Record
To order a Parent to pay tuition for a private or parochial school, record must have evidence of Child's educational needs or parents' agreement. Court of Appeals affirms award of attorney fees to party who prevailed on issues in motion to modify, but such an award does not constitute maintenance.
Kenneth D. Goins, Appellant, v. Lori D. Goins, Respondent. Missouri Court of Appeals Eastern District

Paternity Determination Between Twins Affirmed
Blood tests showed that paternity by either twin was equally likely. Circuit Court was entitled to rely on other evidence, including testimony of Mother, to determine paternity. Affirmed.
State of Missouri, ex rel., Department of Social Services, Division of Child Support Enforcement, and Holly Marie Adams, Petitioners/Respondents v. Raymon Miller, Respondent/Appellant and Richard Miller, Respondent. Missouri Court of Appeals Southern District

Source for Post:  Missouri Bar

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