Missouri Divorce and Family Law Blog : Kansas City Divorce Lawyer & Attorney : Wortman Law Firm

Recent Case: JT Appellant vs. AT, Respondent  Missouri Court of Appeals, Eastern District - ED97995

Father appeals from the trial court's judgment of November 8, 2011, dissolving his marriage with Mother and entering a child custody and support award for their minor child ("Minor"). The trial court's judgment granted joint physical custody to the parties, with Mother as the residential parent, and ordered Father to pay child support to Mother.

 

Based on Rule 74.05(d), the Court did not find that the trial court abused its discretion in setting aside the parties' March 4, 2009 default judgment of dissolution because the motion to set aside was filed within one year. Mother presented good cause and a meritorious defense, and Father was not substantially harmed by the trial court's Judgment setting aside the default judgment. Further, due to the trial court's judgment setting aside the default judgment, Father's retirement plan is considered marital property because the parties were restored to their original positions as though the default judgment had never been entered.

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Recent case:  CJWQ vs. SJQ Missouri Court of Appeals, Western District - WD74342

Mother  appeals the circuit court’s judgment modifying the dissolution decree from her marriage to Father. Mother asserts that the court erred when: (1) it failed to appoint a guardian ad litem pursuant to section 452.423, RSMo Cum. Supp. 2011, claiming that Mother clearly alleged abuse and/or neglect in her motion to modify and, therefore, appointment of a guardian ad litem was mandatory; (2) it awarded sole physical custody to Father because its statutory findings under section 452.375.2, RSMo Cum. Supp 2011, were against the weight of the evidence and the evidence did not support that the custody change was in the best interests of the children; and (3) it allowed evidence of facts that occurred prior to the dissolution of marriage judgment, contending that section 452.410.1, RSMo 2000, restricts the court’s consideration to facts that have arisen since the prior decree.

 

HELD: AFFIRMED WITH MODIFICATION OF THE JUDGMENT

 

(1) The circuit court did not err in failing to appoint a guardian ad litem. Mother pled no express allegations of abuse or neglect such as would have triggered the mandatory appointment of a guardian ad litem pursuant to section 452.423

Mother pled no express allegations of abuse or neglect such as would have triggered mandatory appointment of a guardian ad litem pursuant to section 452.423. Mother’s pleadings - regarding “ongoing concerns” about the stability of Father’s mental state, the stability of the children’s environment when they are in Father’s care, and Father’s ability to care for the children in an unsupervised setting - lack specificity with regard to conduct on Father’s part that constitutes abuse or neglect. Mother’s charges, that Father returns the children to Mother with poor hygiene, rashes, and bruises and that she believes Father incapable of providing adequate care and support to the children, are not express allegations of abuse and neglect. Poor hygiene, rashes, bruises, and Mother’s opinion with regard to Father’s parental capabilities, without more, do not constitute abuse or neglect. Regarding bruises, Mother does not imply, let alone expressly allege, Father was responsible for the bruises.

(2) The circuit court did not err in changing the custodial periods awarded each parent. Both parties agreed that there were substantial and continuing changed circumstances that warranted modification of the parenting schedule. The court’s judgment is modified, however, to denominate Mother as joint custodian and to reference Mother’s time with the children as custodial periods.

The parenting plan adopted by the Court grants Mother alternating weekends, Wednesday evenings, alternating weeks during the summer, and alternating holidays.  This is “substantial” time for Father, and thus is joint physical custody, not sole physical custody.

(3) The circuit court did not err in allowing evidence of facts that occurred prior to the dissolution of marriage judgment. There is no indication that the court considered the original trial transcript concerning Mother’s previous positive testimony regarding father and even if the court did, it was not prejudicial.

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Recent ruling:
TC A Minor Child, by and through JC, Next Friend and JC, Individually v SI
Missouri Court of Appeals, Western District - WD7455

Father appeals from a judgment entered in the Circuit Court of Clay County in an action to establish the paternity of his daughter, T.C.C. Father challenges the trial court's decisions related to custody, visitation, and child support.

AFFIRMED AS MODIFIED.

Where Father was awarded parenting time starting 7:15 a.m. Wednesday with an ending time alternating between 4:45 p.m. Thursday and 4:45 p.m. Friday, half of holidays, and an additional five consecutive days over the summer, the trial court erred in declaring Mother to have sole physical custody in light of the significant parenting time awarded to Father.
 

Though the trial court mislabeled the physical custody awarded in its judgment, it is unnecessary to remand for correction of the decree where this court can simply recognize and clarify that he is a joint physical custodian. 

The question of whether or not a sole custody award to one parent with parenting time to the other parent is truly a sole physical custody award, the question is whether or not the parenting time awarded to the other parent is "significant".  It has been held that a typical every other weekend with one evening per week schedule is "significant".

It is this author's belief that in most situations where the parents share parenting time on some sort of schedule, it is a joint physical custody arrangement rather than "sole custody with visitation"   Care should be taken in the drafting of the parenting plan and the judgment to reflect the proper terminology, as sole custody and joint custody are clearly  very different It would be only in the most restrictive of parenting plans where "sole custody with visitation" could legally exist.

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In a recent decision by the Missouri Court of Appeals, clear, cogent and convincing evidence supported a finding of neglect in protecting the child, maintaining the household, and supervising the child.  "If a parent is unable to pay for all of a child's financial needs, he or she has a duty to provide as much as he or she reasonably can." A Father’s occasional support for child does not outweigh clear, cogent and convincing evidence of financial neglect through reluctance to work. The Circuit court’s determination of child’s best interests is subject to review for abuse of discretion. The Guardian ad Litem’s opinion is not controlling but merits “respectful consideration."

Missouri Court of Appeals, Southern District - SD30632

Source for Post:  Missouri Bar

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The statute provides that, when considering whether to terminate parental rights, the circuit court must consider certain factors, as to which evidence was either absent; less than clear, cogent and convincing; or favored the parent.  Factors including whether mental condition will improve does not mean intelligence.  Whatever else may be appropriate, judgment terminating parental rights on such record is erroneous. 

The requirements that the court must consider are as follows:

(a) The terms of a social service plan entered into by the parent and the division and the extent to which the parties have made progress in complying with those terms;

(b) The success or failure of the efforts of the juvenile officer, the division or other agency to aid the parent on a continuing basis in adjusting his circumstances or conduct to provide a proper home for the child;

(c) A mental condition which is shown by competent evidence either to be permanent or such that there is no reasonable likelihood that the condition can be reversed and which renders the parent unable to knowingly provide the child the necessary care, custody and control;

(d) Chemical dependency which prevents the parent from consistently providing the necessary care, custody and control over the child and which cannot be treated so as to enable the parent to consistently provide such care, custody and control[.]

 Proof of any one of these four factors (“relevant factors”) is sufficient to establish the trial court‟s authority to terminate a parent‟s rights.

Also, the following must be considered:

(1) The emotional ties to the birth parent;

(2) The extent to which the parent has maintained regular visitation or other contact with the child;

(3) The extent of payment by the parent for the cost of care and maintenance of the child when financially able to do so including the time that the child is in the custody of the division or other child-placing agency;

(4) Whether additional services would be likely to bring about lasting parental adjustment enabling a return of the child to the parent within an ascertainable period of time;

(5) The parent‟s disinterest in or lack of commitment to the child;

(6) The conviction of the parent of a felony offense that the court finds is of such a nature that the child will be deprived of a stable home for a period of years; provided, however, that incarceration in and of itself shall not be grounds for termination of parental rights;

(7) Deliberate acts of the parent or acts of another of which the parent knew or should have known that subjects the child to a substantial risk of physical or mental harm.

In this case, the court held that there was no clear and convincing evidence that the statutory factors were not met. The entire opinion can be read here.

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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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Trial judge is prohibited from ordering ex-husband to submit to genetic testing where previous divorce judgment found that ex-husband was not the father of child, where child was represented by a guardian ad litem (“GAL”) and where husband and wife agreed that husband was not the father. Failure to join the putative father did not deprive the court of jurisdiction but was merely reversible error which was waived. State of Missouri ex rel. Robert J. Conners, Relator v. Sara J. Miller and Honorable Cary Augustine, Respondents, No. 65748 (Mo. App. W.D., June 30, 2006), Lowenstein, J.
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