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

Recent Ruling: MP v. DLP Missouri Court of Appeals, Western District - WD75647

Husband appeals from the trial court's judgment and decree of dissolution of marriage with respect to its division of property. Husband claims that the trial court erred in (1) awarding Wife an account as nonmarital property, though not expressly designated by the trial court as either marital or nonmarital,   (2) awarding a 1919 Studebaker to Husband presumably as marital property, though not expressly designated by the trial court as either marital or nonmarital,   (3) failing to designate all property marital or nonmarital before dividing the marital property; (4) failing to designate a value for all of the property as required to determine if the marital property was divided in a just manner; and (5) dividing the marital property because the division was not just and was against the weight of the evidence.

Holding: Affirmed in part, reversed in part, and remanded for further proceedings.

(1) The trial court's judgment made express marital/nonmarital designations regarding some of the property. The judgment made additional reference to agreed marital/nonmarital designations. However, this fails to completely satisfy the trial court's statutory obligation designate all property as marital/nonmarital.

(2) The reference identifies Wife's account as marital property and the 1919 Studebaker as Husband's nonmarital property. The judgment does not otherwise designate these items.

(3) The trial court is not required to assign specific values to the marital property it divides.

(4) The trial court is not bound to accept either party's proposed valuation of property as exact. The trial court is free to find a valuation within the range of evidence offered by the parties.

(5) Until the trial court completes its task of designating all the property as either marital or nonmarital, it cannot be determined whether the division was fair and equitable.

• Email This
• Print
• Comments
• Trackbacks

An uncontested divorce in Missouri is a divorce where both the Husband and the Wife are in complete agreement with all terms of the divorce before the case is filed.  In almost all cases, if the case can be resolved as an uncontested matter, there will be substantial savings of both time and money, and perhaps most importantly, the parties will not be involved in a drawn out court battle that can have a negative effect on the children for years to come.

Most Missouri divorce attorneys will consider a case uncontested if there is only one attorney involved.  It is important to note that an attorney can only represent one party in any divorce case.  So, for an uncontested case, one party will be represented by an attorney, and the other party will be unrepresented, or pro se. If each party has their own attorney, most attorneys will consider the case to be contested, and will charge higher fees.  It is possible, however, for one party to have an attorney working in a limited capacity, such as for document review, and the case will still be considered uncontested.  While most contested cases end up being settled before trial, and thus become uncontested, for purposes of time and cost of the case, a divorce case that is “uncontested” is settled prior to filing.

In order for the case to be uncontested, the parties to the case must have reached an agreement on all of the following:

• Division of property: including the home, vehicles, retirement plans, household and personal goods, debts, and any other property matters;
• Parenting plan issues:  including who is custodial parent, residential schedule, holiday schedule, joint or sole legal and physical custody, guidelines for physical custody, restrictions or conditions of parenting time
• Child Support:  Including monthly amount per form 14 vs. agreed upon amount, payment of health insurance premiums, non-covered medical care, educational expenses, and child care costs;
• Spousal support (a.k.a. maintenance or alimony) if applicable;
• Payment of attorney fees and costs of the case;

Because any one of the above issues can have a huge effect on the case and your rights under the law, it is well worth the money to hire a competent Missouri uncontested divorce attorney, and not to try to do it on your own.  Many counties in Missouri will even allow the uncontested case to be submitted by affidavit, meaning without court date, as long as there is an attorney involved.

• Email This
• Print
• Comments
• Trackbacks

The duration of a divorce in Missouri varies from case to case.  Factors that determine length include how contested the case is, the cooperation of the parties, whether or not there are two attorneys involved, the complexity of the issues, whether or not there are issues of abuse or neglect of children and the appointment of a guardian ad litem, whether or not the case goes to trial, the county where the case is filed, involvement of experts, and other case specific factors.

On the short end, a Missouri divorce case that is completely uncontested, where only one party is represented by counsel, and the parties have signed written agreements for parenting matters (parenting plan), child support, property and debt division, and maintenance, can be completed in most cases in about 45-60 days from the date of filing, depending on the county.  Note however that the length of time that is spent negotiating, drafting, and reviewing the agreements may add some time to this.

For a contested Missouri divorce case, where the parties are not in agreement at the beginning, but eventually come to an agreement resolving all of the issues without trial, the time frame usually runs in the range of 6 months, but again is county and case specific.

For a contested Missouri divorce case that goes all the way to trial, not counting post trial motions, appeals, or further proceedings, will often take between 6 months and 1 year, but could easily exceed that time frame depending on the county and the complexity of the case. In the event of appeal of a tried divorce case, the time frame will almost always exceed 1 year.

Note that there is a statutory 30 day waiting period for all Missouri divorce cases which starts on the day of filing, but it is rarely that even an uncontested case is completed this quickly, as the dockets of most courts will exceed the minimum waiting period.

• Email This
• Print
• Comments
• Trackbacks

• Email This
• Print
• Comments
• Trackbacks

Since 2005, the Bankruptcy law has been relatively clear that nearly any obligation resulting from a dissolution of marriage proceeding is not dischargeable in bankruptcy, whether that is in the nature of a domestic support obligation (11 USC 523(a)(5)) or a property/debt settlement (11 USC 523 (a)(15).  The Missouri Court of Appeals has reiterated this in a recent ruling.

Recent case: Henderson v. Henderson, No. 98357 (Mo. App. E.D., December 26, 2012)

The parties were divorced in 2010. They entered into an agreement which set forth their respective obligations to pay certain debts of the marriage. Throughout the agreement, there was language that the agreement to pay said debts and hold the other harmless thereon was not dischargeable in bankruptcy. Nevertheless, the ex-husband sought the discharge of his portion of those obligations in a Chapter 7 bankruptcy filing in 2011. His petition for discharge was granted, and the ex-wife had not objected to same in bankruptcy court.

Thereafter, ex-wife filed an action against ex-husband for a contempt citation related to the debts he got discharged. The ex-husband argued that she waived her right to object by failing to file anything in the bankruptcy proceeding. The trial court only required the ex-husband to pay a portion of the debt in question. It determined that only a portion of the debt was in the nature of a domestic obligation non-dischargeable in bankruptcy.

However, it held the ex-husband responsible for a portion of the discharged debt. Both parties appealed.

Held: Reversed.

Under current Chapter 7 bankruptcy law (11 U.S.C. § 523 (a)), “‘all debts owed to a spouse, former spouse, or child of a debtor are non-dischargeable if incurred in the course of a divorce proceeding, notwithstanding the debtor’s ability to pay the debt or the relative benefits and detriments to the parties.’ In re: Tarone, 434 B.R. 41, 48 (Bankr. E.D. N.Y. 2010).”

Thus, a property settlement obligation encompassed by 11 U.S.C. § 523 (a)(15) is non-dischargeable. The trial court erred in finding the debt partially dischargeable.

From the Missouri Bar Courts Bulletin March Edition

Note:  Some debts of this type may be dischargeable in Chapter 13 proceedings.

• Email This
• Print
• Comments
• Trackbacks

News Release from the Jackson County Circuit Court:

Starting in March, there will be no more mad dashes to the courthouse by attorneys to file papers at the last minute. The Circuit Court in Jackson County will begin paperless electronic filing which is expected to save shoe leather for attorneys and public dollars for the community.

The Court has been working for years in its efforts to get ready for electronic filing. The Office of State Courts Administrator in Jefferson City has given the Court a green light to go green."It is a distinct privilege for Jackson County to enter the future with electronic filing which, at its core, is another tool to facilitate the public's access to the courts," said Presiding Judge Marco A. Roldan.

 Electronic filing will start for civil and domestic cases filed and pending in Independence

on March 4. Electronic filing will start in Kansas City on March 25. The move to electronic filing is expected to save the Court money in reduced paper costs, less postage, and document storage, and lead to administrative efficiencies. It will also benefit attorneys who will no longer need to file papers in person. Computer filings will be mandatory for attorneys in civil and domestic cases. At this time, paper filings will continue to be used in criminal, probate, and juvenile matters, as well as in pro se filings where the parties represent themselves without an attorney. Pro se cases are typically filed in small claims, in adult abuse petitions and divorce filings.

Thus far, three circuits out of 45 in the state have instituted electronic filing. However,

Jackson County will be the largest circuit to date. In fiscal year 2012, according to the state’s

figures, there were a total of 49,210 civil and domestic cases filed in the Circuit Court of Jackson

County.“Due to the hard work of the Jackson County court staff, our civil divisions have already gone paperless in anticipation of eFiling,” said Joel P. Fahnestock, who is chair of the Circuit

Court’s Technology Committee, and who is a member of the Missouri Court Automation

Committee in Jefferson City. “The judges and staff are excited that the state’s eFiling system is

coming to Jackson County next. It is quite an honor.”

• Email This
• Print
• Comments
• Trackbacks

Missouri law governs the relocation of children after a custody order has been entered. "Relocation" is defined as "a change in the principal residence of a child for a period of ninety days or more, but does not include a temporary absence from the principal residence." A parent who intends to relocate must give written notice of the proposed relocation to the other parent by certified mail, return receipt requested, at least 60 days prior to the proposed relocation, which includes the following:  

(1) The intended new residence, including the specific address and mailing address, if known, and if not known, the city;

(2) The home telephone number of the new residence, if known;

(3) The date of the intended move or proposed relocation;

(4) A brief statement of the specific reasons for the proposed relocation of a child, if applicable; and

(5) A proposal for a revised schedule of custody or visitation with the child, if applicable.

Once the notification is received, the non-relocating parent has thirty days to file a motion to prevent relocation. The non-relocating parent waives any objection to the relocation by failing to object in a timely manner, giving the relocating parent an absolute right to relocate with the child, without the permission of the non-relocating parent or the court. In such a case, the child may be relocated sixty days after the non-relocating parent received the relocation notice.  However, strict compliance with the relocation statute is required, including compliance with the certified mail provisions and providing a specific address.

When a parent does not have an absolute right to relocate, the parent may still relocate with the child by order of the circuit court. In such cases, the party seeking to relocate is required to prove that the proposed relocation is made in good faith and in the best interests of the child.  In determining whether the relocation is in the best interests of the child, the Court will look to the statutory factors that govern any Missouri custody decision.

For a recent Court of Appeals ruling dealing with the issues of strict compliance, specific address requirement, and relocation based on best interest of the child, click here.

• Email This
• Print
• Comments
• Trackbacks

Recent Case: SHA, Respondent, vs. COA, Appellant. Missouri Court of Appeals, Eastern District - ED97993

Mother appeals from the judgment of the trial court dismissing her motion to modify a child custody order entered in the State of Illinois. Mother first asserts that her motion to modify sufficiently pleaded facts that, when taken as true, entitle her to relief. Specifically, Mother claims she pleaded facts sufficient to support her allegation that, under the Uniform Child Custody Jurisdiction Act (UCCJEA), Missouri had jurisdiction over the child custody matter while Illinois did not. Ancillary to her first point, Mother also claims the trial court erred by considering an order of the Illinois court affirming its jurisdiction over the child custody matter. Mother finally argues the trial court erred in dismissing her motion to modify because there was no simultaneous proceeding in the Illinois court per Mo. Rev. Stat. Section 452.765 (2011) that would prevent the trial court from exercising jurisdiction.

JUDGMENT AFFIRMED. The trial court did not err in granting Father’s motion to dismiss or in considering the order of the Illinois court affirming its jurisdiction over the child custody issue.  A Missouri court shall not modify a child custody determination made by a court of another state unless, first, the Missouri court has jurisdiction to make an initial determination of custody under subdivision (1) or (2) of Section 452.740.1 and either (1) the court of the other state determines it no longer has exclusive, continuing jurisdiction or Missouri would be a more convenient forum, or (2) a court of this state or a court of the other state determines that neither the child nor a parent resides in the other state.

The trial court properly considered and applied the statutory provisions of the Uniform Child Custody Jurisdiction and Enforcement Act as adopted by the Missouri legislature. In following this statutory mandate, the trial court appropriately recognized the limits of its authority to accept jurisdiction of the child custody matters, which are within the continuing, exclusive jurisdiction of the Illinois courts. Additionally, Section 452.765 regarding simultaneous proceedings is not applicable to the facts of this case. The Court found no error in the trial court’s dismissal of Mother’s motion to modify the child custody order entered in the State of Illinois.

• Email This
• Print
• Comments
• Trackbacks

An action to terminate modifiable maintenance was granted. The case is fact-specific, but deserves reporting simply because of the dearth of appellate cases in which modifiable maintenance is terminated.

At the time of the parties’ divorce (dates not noted in opinion, but approximately 2003-2004), the Husband ran a business which earned him approximately $190,000 annually. The Wife had worked for the business, but that ended with their separation. Her stated needs at divorce were $2,490 per month. She intended to go to school full-time and become self-sufficient thereafter. She requested and obtained $2,000 per month in modifiable maintenance.

Fast forward to 2010 at which time the Wife had graduated from college and gotten a job with the IRS earning approximately $34,000 annually. She had also inherited a half-interest in a piece of real estate worth $63,000 and her residence was paid for and worth $200,000. The Husband filed a motion to terminate the maintenance. His request was granted, and this appeal followed.

Held: Affirmed.  “In determining whether an increase in income renders the prior decree unreasonable, the court may consider a number of factors, including the purpose of the award of maintenance and the current financial needs of the receiving spouse.” Here the Wife’s increased income (from -0- to $3,000 per month), the attainment of her college degree, the acquisition of full-time employment and ownerships of substantial unencumbered assets all indicated her ability to support herself without the need for maintenance. These were reasons sufficient for the trial court to exercise the discretion to conclude the monthly maintenance was now unreasonable.

Source for Post:  Missouri Bar Courts Bulletin October 2012

• Email This
• Print
• Comments
• Trackbacks

Recent Case: M.R.H., Respondent, vs. J.N.P., Appellant.
Missouri Court of Appeals, Eastern District - ED97338

J.N.P. ("Mother"), biological mother of M.R.H. ("Child"), appeals from the judgment of the trial court following a paternity suit brought by M.R.H. ("Father") in the Circuit Court of St. Louis County. Mother argues the trial court erred in failing to grant her request to change Child's surname from Father's alone, to a hyphenated combination of both Mother and Father's surnames.

AFFIRMED. Division Three Holds: When analyzing requested changes to a child's surname during paternity actions, the trial court is afforded wide discretion. Here, the trial court rejected Mother's requested alteration to Child's surname after holding a hearing on the matter and listening to the testimony of both Mother and Father as to their respective positions. Upon our review of the record, the Court finds that the trial court did not abuse its discretion in making its determination.

• Email This
• Print
• Comments
• Trackbacks

In Missouri, there are guidelines that the Court must follow in making a child custody determination.  While all child custody determinations must be made in accordance with the best welfare and interests of the child, there is also a statutory and case law framework that guides the court in making the determination.  Note that when parties come to an agreement on custody, most courts take the position that the parents are in a better position to determine what is in their child's best interest, and will generally approve a joint parenting plan (although a joint parenting plan is advisory only, and the Court can make it's own determination in any case-albeit infrequently).  However, when the parents cannot agree on a parenting plan, the Court will decide the case based on the following:

Statutory Factors

1. Wishes of the parents and the proposed parenting plan submitted by the parents;
2. The needs of the child for a frequent, continuing, and meaningful relationship with both parents, and the ability and willingness of parents to actively perform their functions as mother and father for the needs of the child;
3. The interaction and interrelationship of the child with the parents, siblings, and any other person who may significantly affect the child's best interests'
4. Which parent is more likely to allow the child frequent, continuing, and meaningful contact with the other parent;
5. The child's adjustment to home, school, and community;
6. The mental and physical health of all individuals involved, including any history of abuse of any individuals involved;
7. The intention of either parent to relocate the principal residence of the child;
8. The wishes of the child as to the child's custodian.

Case law factors:

1. A good and stable home is the most important single consideration in addition to the statutory factors;
2. Stability, including frequent moves and intent to relocate;
3. Parenting skills and primary care;
4. Moral fitness as it relates to the children;
5. Adultery, sexual misconduct, and cohabitation (note however that these facts, in and of themselves, do not necessarily affect a custody decision.  There must be an effect on the child's interests)
6. Homosexuality (although, in and of itself, cannot be a basis for denying a parent custody);
7. Drug and alcohol use;
8. Attempted alienation of the child;
9. Religious beliefs;
10. Custodial preference of the child (although age of the child will affect the weight given, or if considered at all).
11. Any other relevant factors.

A child custody determination is based on evidence that is highly fact specific, and every case is different.  The above factors do not constitute a complete list, and any particular case can be decided on any one or multiple factors, depending on the situation.

• Email This
• Print
• Comments
• Trackbacks

Recent Case: TLD v. JRD Missouri Court of Appeals, Western District - WD73385

Mother appeals from the trial court's amended judgment order of modification retroactively modifying Father’s child support obligation and ordering Mother to pay Father $19,305.00 in overpaid child support accumulated during the retroactive period. Mother claims the trial court erred in calculating the overpayment.

Even if the trial court erroneously characterized an amount that Mother credited Father, in connection with a settlement which led to a reduction in Father's child support obligation in 2005, as an amount "paid" by Father, that error played no role in the calculation of Father's judgment. Mother's suggestion that Father's judgment against her should be reduced by the credited amount constitutes an impermissible collateral attack on the 2005 Modification which fully and finally determined Father's then existing arrearage.

The trial court's determination that Father was entitled to a reduction in his child support arrearage as of the time of trial by an abeyance amount addressed in the 2005 Modification was not against the weight of the evidence.

Father's judicial admission regarding the amount of his child support arrearage as of the time of trial conclusively negated the trial court's ability to find that all arrearages accumulated after the 2005 Modification had been satisfied and paid in full. Thus, the trial court erred in failing to reduce Father's judgment by Father's admitted arrearage.

Held: Affirmed in part, and reversed and modified in part.

• Email This
• Print
• Comments
• Trackbacks

The following post was contributed by guest author Grant Webb, an accounting and accounting law writer for Bisk Education and Villanova University.

Forensic Accountants Fill a Unique Niche

Family law and divorce cases are often quite complex. Depending on the number of family members involved, the amount of assets at stake, and the specific circumstances of the case, even the most experienced attorney might need to acquire additional expertise to achieve the best results for the client. In cases where assets may have been hidden, misrepresented, under-valued or mysteriously liquidated, an experienced forensic accountant may provide the expertise necessary to uncover the facts needed so that the case can move forward in an effective manner.

With the increase in sophisticated technology over the past decade also comes the dawn of more sophisticated investigative power tools. At the same time, people who intend on hiding assets have also become stealthier. When a marriage with significant assets needs to be evaluated for net worth, the assets are often spread across many different areas. Property, businesses, savings accounts, mutual funds, municipal bonds, antiques, jewelry, and recreation items like watercrafts for example are all items that need to be documented and valued. Anticipating the divorce or other family litigation, one of the involved parties may begin to re-title items, sell off or give away valuable possessions to a close friend or relative for later retrieval, and in general hide investments. While the family or divorce attorney is building the case with a general understanding of these facts and other related details, a forensic accountant can usually retrieve highly detailed evidence to make the case stronger. Drawing connections to see the whole picture is a forensic accountant’s fortè. Working together with a family or divorce attorney, a forensic accountant presents a formidable partner on a legal team where financial wrong-doing is an important topic of the investigation.

A complex case requires the expert knowledge of professionals who can secure the best possible outcome for a client. Hiring an attorney who is accustomed to bringing in and working effectively with other expert professionals such as a forensic accountant could mean a more favorable outcome. While cost is always a concern when pursuing legal solutions to disputes, many settlements or court decisions will have long-lasting effects on family members so it is important to be as effective and thorough a possible as the case proceeds. A Certified Forensic Accountant offers a unique skill set to the legal professional and can help provide the experience necessary to help secure critical financial evidence. When choosing a family or divorce attorney to help resolve a complicated dispute, savvy clients make sure that they can keep the option open to bring in other experts, like a forensic accountant or CPA, in order to secure the best outcome possible despite stressful circumstances. There are countless justifications for hiring legal representation of this type but for clients that may not know the upside to hiring a forensic accountant or even know how to hire the right CPA, it's always a good practice to interview or even research these industry professionals to determine the best hire or fit for a client’s needs.

• Email This
• Print
• Comments
• Trackbacks

Recent Case: SD v. MW Missouri Court of Appeals, Southern District - SD31296

Under section 455.010(13), "stalking" occurs when any person purposely and repeatedly engages in an unwanted course of conduct that causes alarm to another person when it is reasonable in

that person's situation to have been alarmed by the conduct. As used in this subdivision:

(a) "Alarm" means to cause fear of danger of physical harm;

(b) "Course of conduct" means a pattern of conduct composed of repeated acts over a period of time, however short, that serves no legitimate purpose. Such conduct may include, but is not limited to, following the other person or unwanted communication or unwanted

contact; and

(c) "Repeated" means two or more incidents evidencing a continuity of purpose.

"Stalking statutes should be construed narrowly enough to prevent serious abuse, but broadly enough to maximize victim protection." Towell v. Steger, 154 S.W.3d 471, 476 (Mo. App. S.D. 2005). Because harm can result from an abuse of the Adult Abuse Act, "trial courts must exercise great care to make certain that sufficient evidence exists to support all elements of the statute before entering a full order of protection." Overstreet v. Kixmiller, 120 S.W.3d 257, 259 (Mo. App. E.D. 2003).

Petitioner did not claim Appellant was following her. Petitioner did not offer any evidence showing that Appellant had ever engaged in any violent acts or that Petitioner had any other reason to believe Appellant was a violent person. Petitioner presented no evidence that Appellant said anything, made any gestures, or otherwise communicated any specific thing to Petitioner that would cause a reasonable person to believe he or she was in danger of physical harm from Appellant. As a result, no substantial evidence supported the existence of this necessary element of stalking. Appellant's point is granted.

The judgment was reversed, and the cause was remanded to the trial court which is directed to vacate the full order.

• Email This
• Print
• Comments
• Trackbacks

Administrative child support orders are available for the support of all eligible children, including children of citizens of other countries. Lajeunesse v. State of Missouri Department of Social Services, No. 73477 (Mo. App. W.D., October 4, 2011), Martin, J.

A child was born to a Russian citizen in West Virginia. Father was a Missouri resident and a support order was sought for the child through the Department of Social Services (DSS), which established paternity and Father’s financial responsibility for support. Mother and child now live in Russia. The Father filed a petition for judicial review and the trial court found that Department of Social Services was without jurisdiction to enter an administrative order requiring Father to pay child support. Upon Father’s motion the trial court overturned the administrative order. DSS appealed.

Held: Reversed. “. . . Father argues that unless a recipient is a resident of the State of Missouri or another state, the recipient is not eligible for child support services.”

The applicable sections of the statutes, § 454.425 and 454.400, do not provide for child support relief for only United States residents. “By its plain terms, § 454.400.2(14) is broad, requiring child support services to be provided to any other child for whom services are applied. This is in keeping with § 454.425, which also broadly permits services to be provided to all children, custodial parents, and persons entitled to receive support. A harmonious reading of § 454.425 and 454.400.2(14) indicates that the legislature intended to authorize and require DSS to provide services to any child for whom services are applied. This broad and unrestricted directive is not, by its terms or by implication, limited to residents (or citizens) of the United States.”

An agreement that maintenance will terminate “only” upon death excludes application of § 452.370 for termination of maintenance upon remarriage. Simpson v. Simpson, No. 91498 (Mo. banc, October 4, 2011), Fischer, J.

The parties were divorced in 2005. They entered into an agreement by which the Husband would pay the Wife $12,000 per month in non-modifiable maintenance for 15 years. Said maintenance was to “terminate prior to the expiration of said 15 year period only in the event of the death of either party.” In 2009, the Wife remarried. The Husband filed a motion to terminate maintenance on the basis of her remarriage. The Wife responded by filing a motion to dismiss his claim, which was granted. The Husband appealed, and the matter ended up in the Missouri Supreme Court to address the applicability of § 452.370.3, RSMo, that provides that maintenance terminates immediately upon Wife’s remarriage unless otherwise agreed in writing or expressly provided in the judgment.

Held: Affirmed. “The problem with the Husband’s argument is that he and Wife agreed in writing in the separation agreement that maintenance would terminate ‘only in the event of the death of either party.”

“[T]he use of the word ‘only’ in the separation agreement is sufficient to overcome the statutory presumption of § 452.370…”

Generally, retained earnings of closely-held corporation are corporate assets and not marital property and distributions to liquidate corporation in exchange for non-marital stock are not marital property. Short v. Short, No. 95663 (Mo. App. E.D., October 25, 2011), Sullivan, J.

This was an action for dissolution of marriage in which the parties had a prenuptial agreement. The meaning of the agreements terms were in dispute, especially regarding whether it provided that earnings derived from separate property had been excluded from marital property. Both parties appealed. As a side note, it is interesting that the parties met four days before the wedding to discuss the terms of the prenuptial agreement in detail. A draft of the agreement was first presented to the unrepresented Husband the day before the wedding. The trial court’s determination that the agreement should be upheld as valid was affirmed despite the short amount of time noted herein.

The trial court found that the agreement did not expressly exclude as non-marital property the income earned from that non-marital property during the marriage. During the marriage the Wife received several million dollars in liquidating distributions in exchange for cancellation of her non-marital stock interest in a closely-held corporation. The trial court found those distributions to be marital property.

Held: Reversed in part as to the character of the corporate liquidation payments in exchange for non-marital stock. “Evidence presented at trial showed that approximately 97% of (corporation’s) assets at the time of (corporation’s) liquidation were comprised of …̔ retained earnings.’ Generally, retained earnings of a corporation do not constitute marital property. Hoffmann v. Hoffmann, 676 S.W.2d 817, 827(Mo. banc 1984); Craig-Garner v. Garner, 77 S.W.3d 34, 38 (Mo. App. E.D. 2002). Retained earnings and profits of a corporation are a corporate asset and remain the corporation’s property until severed from other corporate assets and distributed as dividend. Hoffmann v. Hoffmann, at 827; Craig-Garner v. Garner, at 38.”

Moreover, “[t]he money Wife received as liquidating distributions from the dissolution of (corporation) was not income earned by her separate stock; rather, it was liquidated capital distributions received in exchange for, and in cancellation, of her stock in (corporation), which was her separate property.”

Source for Post:  November issue of Courts Bulletin.  A publication of the Missouri Bar

• Email This
• Print
• Comments
• Trackbacks

www.courts.mo.gov/file.jspMissouri Constitution provides subject matter jurisdiction of circuit courts. The Uniform Child Custody Jurisdiction Act provides comity among states and determines which state is the most appropriate forum for seeking remedy. The Circuit court should make findings under those provisions. Rule and statute describe minimum contacts necessary to make a person subject to circuit court jurisdiction. Under those provisions, “liv[ing] in lawful marriage within” Missouri is more than passing through while traveling and appearances to enforce foreign orders. “It is not necessary to stand on your jurisdictional challenges and refuse to participate in the proceedings to preserve your objections to jurisdiction.” Circuit court lacked personal jurisdiction to render appellant liable for child support and marital debts.

The Court held as follows:

(1)The circuit court erred in asserting personal jurisdiction over wife because she and Husband never lived in lawful marriage in the State of Missouri. The circuit court lacked jurisdiction to subject her to an in personam judgment for child support and division of marital property (not within the State). The circuit court, therefore, erred in ordering Wife to pay child support in the amount of $278.00 per month and to pay certain marital debts. The circuit court did, however, have jurisdiction over the status of the marriage and could dissolve it.

(2) The Circuit Court of Clay County had the authority to make the child custody determination in this case under the UCCJA. The record established that the only other state that would have jurisdiction over this matter refused to assert jurisdiction and declined to exercise jurisdiction because Missouri was the more appropriate forum.

(3) The factual record established that the circuit court had the authority to proceed under the UCCJA and to determine the child custody issue. Case remanded to Circuit Court for further proceedings

The entire opinion can be read here

• Email This
• Print
• Comments
• Trackbacks

The Circuit Court does not have authority to divide assets that are not owned by either spouse in a dissolution of marriage.  In a recent Missouri case, the trial court entered a judgment that divided certain trusts where the children were the sole beneficiaries.  Since the parties to the case did not have any interest in these assets (as they belonged to the children), the Court could not make any division.  The same would also hold true for property titled in the children's (or another persons) name, such as a vehicle or bank account. 

To view this recent opinion, click here.

• Email This
• Print
• Comments
• Trackbacks

While Missouri courts normally follow the “American Rule” regarding legal fees – that each party is responsible for his or her own costs – Missouri dissolution of Marriage statutes give the court the discretion to order one party to contribute to the other party’s fees. Specifically, Section 452.355.1 provides:

Unless otherwise indicated, the court from time to time after considering all relevant factors including the financial resources of both parties, the merits of the case and the actions of the parties during the pendency of the action, may order a party to pay a reasonable amount for the cost to the other party of maintaining or defending any proceeding pursuant to sections 452.300 to 452.415 and for attorney's fees, including sums for legal services rendered and costs incurred prior to the commencement of the proceeding and after entry of a final judgment. The court may order that the amount be paid directly to the attorney, who may enforce the order in the attorney's name.

The court is always required to consider the financial resources of each party before deciding on a request for attorney’s fees.  While the court must consider the financial resources of each party, a spouse is not required to forego a claim for attorney's fees merely because assets on hand are available to make payment.

In most cases, attorney fees are not an issue, and usually judges are reluctant to award attorney fees. However, when the issue does arise, the conduct of the parties during the litigation and how the judge perceives the parties are usually just as important as financial resources in determining the award.

• Email This
• Print
• Comments
• Trackbacks

The Circuit court ordered re-financing of the house after divorce.  At the hearing on a subsequent contempt action, the circuit court found that failure to comply was not contemptuous because party did not have the financial ability to comply with the order. Record supports such finding.  The court stated that  "A party alleging contempt establishes a prima facie case for civil contempt when the party proves: (1) the contemnor's obligation to perform an action as required by the decree; and (2) the contemnor's failure to meet the obligation “The alleged contemnor then has the burden of proving that person's failure to act was not due to her own intentional and contumacious conduct."

The second point on appeal was the child custody modification. The court stated:

"'Under § 452.410.1, a court may not modify a prior custody decree unless it finds, on the basis of facts which have arisen subsequent to [that] decree, that (1) a change has occurred in the circumstances of the child or his custodian and (2) a modification of custody is in the best interests of the child."A motion to change from joint custody to sole custody requires a showing that the change in circumstances is substantial.""[T]he parent requesting the change of custody has the burden of proving the change in circumstances warranting custody modification."Thus, in ruling on a motion to modify from joint legal to sole legal custody, the trial court must first determine whether the evidence establishes that a substantial change has occurred in circumstances of the child or the child's custodian; and, if so, it must then consider whether the best interests of the child would be served by modifying custody.

A Substantial change in circumstances includes parents’ failure to communicate for eight months.

The entire opinion can be read here.

• Email This
• Print
• Comments
• Trackbacks

Similar to other states, Missouri is a modified no-fault divorce state. However, there is some misconception out there about what this actually means for divorcing parties in Missouri. Modified no-fault divorce means that a party does not have to prove that their spouse committed some kind of misconduct, such as adultery, abandonment, financial, etc., in order for the court to grant the divorce. All that has to be proven, with regards to grounds, is that there is “no reasonable likelihood that the marriage can be preserved, and that the marriage is irretrievably broken”, which is basically the familiar “irreconcilable differences”.  If that is proven, or as is often the case, agreed to in the filings, the court will grant the divorce (assuming jurisdictional and procedural requirements are also met). 

However, no fault does not mean that conduct is not relevant.  Although conduct does not need to be proven to actually get the divorce, conduct, or misconduct, can have a bearing on all aspects of the case.   Conduct can affect how the court divides the property, awards spousal maintenance, awards attorney’s fees, awards custody, parenting time, and to some extent child support. Although there is usually a preference for joint custody and equal property division, “no fault” does not mean that that will be the case, and “no-fault” does not mean that everything will end up equal.  The court has to look at other standards for each particular issue in the case, and will make orders accordingly as to those issues.

It is also not required that a spouse “grant” the other spouse the divorce, however it is possible that a party could try to prove that the marriage was not actually broken and could be preserved. My thought is that if spouses are actually to the point of litigating in court, the court is probably going to find that the marriage is broken. So, modified no fault may in reality mean actual no fault, but there is still that standard of proof in all cases.

• Email This
• Print
• Comments
• Trackbacks

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.

• Email This
• Print
• Comments
• Trackbacks

The Missouri statute that mandates the continuation of child support after age 18 if the child attends college was amended in 2007, and provisions were added that are somewhat contradictory. In a recent ruling by the Missouri Court of Appeals, the Court clarified the statute, as well what will cause a child to fail to meet the credit hour requirements of the statute.

Section 452.340.5 RSMo states: If when a child reaches eighteen, . . . [i]f the child is enrolled in an institution of vocational or higher education not later than October first following graduation from a secondary school . . . and so long as the child enrolls for and completes at least twelve hours of credit each semester, not including 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-one, whichever first occurs. . . .  

The statute goes on to provide 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." 

The case law until the statute was amended clearly held that a child must enroll and actually complete 12 hours of credit, and failing grades in any class could cause the child not to meet the credit hour requirement as no credit is given for a failing grade. However, the court has now clarified that the prior case law, specifically the Lombardo line of cases, is effectively overruled and now, with the addition of “failing half or more of his or her courseload” language, a failing grade no longer triggers a failure to comply with the credit-hour requirement, provided that the child does not fail half or more of their classes (if enrolled in at least 12 hours). The Court stated:

“Where a student voluntarily withdraws from a class prior to its completion, he or she clearly fails to meet the requirements of the statute that the student complete the class [12 hour requirement]. On the other hand, where a child receives a failing grade in a course, provided the child does not fail half or more of his or her classes, the child is deemed to satisfy the requirements of § 452.340.5.3” 

Interestingly, in the recent case, the child actually withdrew from the class instead of failing, but the evidence showed that the child was withdrawn by the teacher and not the student himself as a “favor” to avoid receiving a failing grade, so the Court deemed that a failing grade and treated it as such under the statute.  Outside of this exception however, it seems that a typical withdrawal will fall under the “completion” requirement of the statute.

The entire opinion can be read here

• Email This
• Print
• Comments
• Trackbacks

In a recent ruling by the Missouri Court of Appeals for the Southern District, a division of property and debt where the Wife received 93% of the assets and 27% of the debts, and the Husband received 7% of the assets and 73% of the debt was reversed and remanded to the trial court for further proceedings.

It is typical in a majority of cases for the trial court to divide property and debt equally. However, the Court is not required to follow a rigid formula for property division and is not required to divide the property equally. The division must be “fair and equitable” to the parties. This means that the court has a great deal of discretion when dividing property and debts, but there must be sufficient evidence to support a disproportionate division as being fair and equitable. In determining the property division, the court must consider the economic circumstances of the parties, contributions during the marriage, the value of non-marital property, conduct during the marriage, the custodial arrangement for the children, and other factors.

In the recent case, the Court looked primarily at the conduct during the marriage, and the trial court had found that physical abuse and verbal threats had occurred which supported the disproportionate division. However, there must be evidence to show the additional financial, emotional, or other burdens placed on the aggrieved spouse due to the conduct. It is not appropriate to “punish” a spouse’s marital conduct by way of disproportionate property division, and conduct is the only factor that must be considered.

In this case, there was evidence of the misconduct, but no evidence as to how it caused additional burdens or stress on the other spouse or the marriage, financial or otherwise to support the grossly disproportionate division. The case was remanded to the trial court for further proceedings to make those findings.

SD29991-  Missouri Court of Appeals for the Southern District of Missouri

• Email This
• Print
• Comments
• Trackbacks

In a recent ruling by the Missouri Court of Appeals, in a custody modification proceeding, the trial court’s modified parenting plan delegated the authority to make all medical, educational, and extracurricular decisions for one of the parents’ two children to her “team of doctors.” The Court held that these provisions of the plan are too vague and indefinite to be enforceable in that the phrase “team of doctors” is not sufficiently definite and specific. Provisions in a judgment should be definite as indefinite provisions are unenforceable. The judgment must be sufficiently certain to be susceptible of enforcement in the manner provided by law without requiring external proof.

Although not specifically held, it was noted that  452.375.5(5)(a) allows a court to grant custody to a third party when it finds that each parent is unfit, unsuitable, or unable to be a custodian, or the welfare of the child requires, and it is in the best interests of the child. However, to do this, the court must make that third person a party to the action.  However, parents who share joint legal custody of a child or children can agree to designate a third party as a tie-breaker to resolve individual issues upon which they cannot agree, and such an arrangement does not violate section 452.375.1(2).  In this case, the “team of doctors” were not made a party to the case, and the modified parenting plan was against the weight of the evidence in that the parents did not intend to delegate to the team of doctors their authority to make educational or extracurricular decisions for their daughter.  

The entire opinion can be read here.

• Email This
• Print
• Comments
• Trackbacks

In Missouri, there are two primary ways that a non-married parent can seek to establish child support, judicial and administrative.   A judicial action is through the circuit court, and an administrative action is through the Family Support Division. The Division is an administrative agency which has the power to issue binding orders for child support, which may or may not later be filed as a judicial action in the appropriate circuit court. The agency has their own administrative process, where a case worker calculates child support on information provided by the custodial parent, and the non-custodial parent is then served, usually by mail, with the notice of an order. The non-custodial parent is given the opportunity to dispute the amount calculated by the case worker, and request a hearing within a certain number of days. If the non-custodial parent does not act, then the order becomes final, and the non-custodial parent is bound without further legal process. However, if a hearing is requested, then a telephone “trial” before a hearing officer is conducted, and the child support is determined based on the evidence presented. Also, a parent can petition the circuit court for judicial review of the administrative order within 30 days of the entry of an administrative order, even after an administrative hearing.

However, the non-custodial parent must know that the hearing docket is backlogged for many months, sometimes even a year, and even after the hearing is conducted it may be many more months before the order is issued. Once the order finally is issued, it is set to take effect all the way back to the date that the case was started, so the non-custodial parent may have a year or more of back child support simply because of the slow administrative process, even though there was no order in effect for those months.  This can negatively affect the obligor's credit, and the arrearage is usually assessed at an additional amount per month, basically raising the child support by as much as a few hundred dollars.  Also, once all of this is over, there is an order for child support, but the agency does not have the power to issue orders for custody or visitation, and if the non-custodial parent is the father, essentially there are no legal rights established, other than the “right” to pay child support

The best course of action to take when served with an administrative action for child support is to immediately consult with an attorney. At a minimum, the attorney can represent the non-custodial parent at the administrative hearing to ensure the proper evidence is before the agency and that the support amount is calculated properly. But more importantly a good child support attorney may be able to, in effect, “move” the case to a circuit court before a judge through a judicial action, establish legal custody or visitation rights, ensure paternity is determined conclusively, terminate the administrative action, and remove the family support division from the case.   In a judicial action, unless state debt or interest is in issue, the Family Support Division or other state agency will not participate in the case.  Timing is everything however in dealing with these cases, so consulting with an attorney immediately is critical to avoid a potential financial mess.  

• Email This
• Print
• Comments
• Trackbacks

Newly passed legislation will finally enact the Uniform Child Custody Jurisdiction and Enforcement Act as of August 28, 2009. Missouri was one of only three states that had not yet enacted the UCCJEA. This act will replace the current Uniform Child Custody Jurisdiction Act (UCCJA).

The act limits child custody jurisdiction to one state, avoids competing orders, and provides enforcement provisions for child custody orders. The act further establishes orders of priority and guidance on issues regarding establishing initial custody determinations, continuing jurisdiction, modification of custody determination, and emergency orders.

Similar to the UCCJA, The UCCJEA establishes an order of priority for determining which state has proper jurisdiction to make an initial determination of child custody. The order of priority includes a determination of (1) the child's home state, (2) the state in which the child and at least one parent have a significant connection and substantial evidence concerning the custody determination is available or (3) the state having an appropriate connection with the child.

The child's home state is defined as the state where the child has lived with a parent for six consecutive months prior to the commencement of the proceeding, or since birth, for children younger than six months.

Once a state court has made a custody determination, the state keeps exclusive and continuing jurisdiction over all matters concerning the child until circumstances have changed regarding home state status, or there is no longer a significant connection to the state or evidence concerning the child's custody is no longer available in that state. The circumstances are specified in the act.

Also, once a custody determination has been made, a court of another state does not have authority to modify the determination unless the state with jurisdiction determines that it does not have jurisdiction or any state court determines that the child, parents, or any acting parents do not reside in the state which currently has jurisdiction.

A state which does not otherwise have jurisdiction may enter a temporary emergency order if the child is in danger and needs immediate protection. After issuing the order, the state court should determine if there is an existing custody order from another state in effect. If there is an existing order, the emergency court must allow a reasonable time period for the parties to return to the state having jurisdiction and argue the issues to the court with jurisdiction.

If there is no previous child custody order in existence, the emergency court's order will remain in effect until a determination is made in a court having home state jurisdiction over the child. If no determination is made and the emergency court's state becomes the home state of the child, the emergency order becomes a final determination of custody.

Missouri has now also done away with the requirement that social security numbers be included in family law pleadings and judgments.   Under the new law, parties will still file social security numbers with an information sheet, but that will be maintained by the court confidentially, and only the last 4 numbers will be included in the judgments or pleadings in the public record.

• Email This
• Print
• Comments
• Trackbacks

With so many people facing bankruptcy in the current climate, it may be good news to know (depending on which side you are on, of course) that the bankruptcy does not allow a person owing a domestic support obligation to use bankruptcy as a way to avoid payment of the debt. In fact, virtually any obligation that is domestic in nature cannot be discharged in bankruptcy. Here are a few facts:

• A domestic support obligation is not dischargeable in a Chapter 7 or Chapter 13 consumer bankruptcy proceeding. 
• “Domestic Support Obligation” is a debt that is owed to or recoverable by a spouse, ex-spouse, or child of the debtor or their guardian or representative, or a governmental unit (such as the Children’s division or the Court). This includes alimony, maintenance, child support, state assistance, even if the debt is not titled exactly in that manner. Also included is a debt arising out of a separation agreement, divorce decree, or property settlement agreement.
• Also non-dischargeable in a Chapter 7 is any debt to a spouse, former spouse, or child not described above that is incurred by the debtor in the course of a divorce or separation or in connection with a separation agreement, divorce decree, or other order of a court of record. Any debt that falling under this section may be dischargeable in a Chapter 13 debt adjustment, however.
• Domestic Support Obligations receive the number 1 priority for repayment in a Chapter 13 plan or when funds are available in a Chapter 7 bankruptcy estate.
• To summarize, if it is domestic in nature, it is going to have to be paid. This includes not only child support or maintenance, but also property and debt divisions, such as: marital estate equalization payments, payments in settlement, qualified domestic relations orders, contempt payments, divisions of debts, vehicle debts, mortgages, credit cards, lines of credit, personal loans, medical insurance, costs for non-covered medical care, retirement plan divisions, military retirement divisions, attorney fee awards, and the kitchen sink.
• No special language is necessary in the divorce settlement or decree to make these provisions apply, although it may be a good idea just to drive the point home.

• Email This
• Print
• Comments
• Trackbacks

On August 20, 2008 the Advisory Commitee of the Supreme Court of Missouri issued a formal opinion that the practice of Collaborative law, a form of practice where clients agree from the outset to settle their case out of court through negotiation rather than litigation, is ethical and permissible in Missouri. 

In the area of family law, both parties and their attorneys formally agree that no documents will be filed with the court until the case is resolved.  Rather than taking a course of litigation, where papers are filed and served, discovery is exchanged, and the case is prepared for trial, the parties negotiate in a series of 4 way open discussions.  In these discussions, the parties agree not to go to court, or even threaten to, and all information is exchanged freely and openly to assist the attorneys in resolving the case in a cooperative manner.  In the rare event that the case is not settled, both parties must retain new trial counsel and the collaborative attorneys must withdraw.

The primary concern of the Advisory Committee was that the client understand the pros and cons of the collaborative process and sign a written consent and contract providing that the attorney has no choice but to withdraw should the case not settle.

Collaborative family law has been around for many years, and is quickly gaining momentum and popularity in Missouri as a superior way to resolve domestic relations cases

• Email This
• Print
• Comments
• Trackbacks

As most people know, the California Supreme Court recently ruled that the state's ban on same-sex marriage was unconstitutional.  So what does that mean for Missourians? 

• In California, there were two statutes that said that a marriage is between a man and a woman, which was interpreted to prohibit same sex marriage.  The Supreme Court ruled those statutes to be unconstitutional under the California Constitution (not the federal).   It is now legal for same sex couples to marry in California.

• Missouri is different.  In Missouri, rather than a statutory ban on same-sex marriage, we have a constitutional amendment (2004) that defines marriage as being only between a man and a woman, and marriages between same-sex couples are not recognized.  There is also a federal statute in play called the Federal Defense of Marriage Act which permits Missouri (and other states) to deny full faith and credit to the marriage laws of another state.  This means that Missouri does not have to recognize a same-sex marriage that is perfectly legal in California since it is inconsistent with Missouri law.  The federal law's constitutionality has not been fully challenged yet.

• Taken together, it is presumed that if a same sex married couple moved to Missouri, or Missourians went to California to get married and returned to Missouri, their marriage would not be recognized.

• This also means that same-sex married couples could not obtain a divorce in Missouri because there would be no jurisdiction for the courts.  Thus, dissolution of marriage laws that control child custody, visitation, support, maintenance, and property division would presumably not apply.

• In the event of a separation the couple would probably have to file an action under the Uniform Parentage Act (commonly known as a paternity action currently) to determine custody, visitation, and child support issues if adopted children are involved.

• Same sex couples may want to utilize prenuptial agreements, antenuptial agreements, contracts, and other documentation to control the disposition of assets, including real estate, personal property, bank accounts, securities, business interests, etc.

Source for Post:  mobar.org Esq. soundbite. 

• Email This
• Print
• Comments
• Trackbacks

The Pennsylvania Family Law Blog had a great post yesterday about why you need a lawyer for your divorce case.  The full article can be read here, and is summarized as follows:

A good divorce lawyer is part lawyer, part psychologist and part clergy. A good divorce lawyer also is indispensable if you are contemplating a divorce (or, for lawyers, if your client is doing so).

An experienced divorce lawyer will already be aware of the issues likely to arise in your case. This divorce lawyer knows the court rules and the court personnel. She knows the other practitioners in her area of expertise.  She knows the best appraisers (real estate, jewelry, pensions, etc.), the best therapists, and the best tax lawyers for this case.

Your divorce lawyer also brings certain unique skills to the case. He negotiates in a way that is designed to lessen antagonism with your child’s other parent, while still vigorously protecting your rights. He gives you advice that is geared to your family situation, not just your financial needs. 

These are all great points.  I would add the following:

Judges hold pro se litigants to the same strict standards and rules as attorneys, and honestly, most judges to not like people coming into court without an attorney.  

If the other side has an attorney that is worth their salt, the pro se litigant will have probably lost the case months before they even get to court.  Issues with jurisdiction, service, discovery, depositions, admissions, temporary orders, default, local rule compliance, etc. can blow the whole case.

Divorce is stressful enough without an experienced attorney who specializes in family law.  The attorney can take much of the burden off of the litigant, reduce the length of the case, and hopefully negotiate a settlement where everyone wins and nobody goes to court.  Its better that way, trust me.

You wouldn't perform your own surgery, why would you try to take on the court by yourself.  Divorce lawyers are here for a reason. 

The court is not going to accept those forms you downloaded from the Internet.  

Whatever your argument, the judge has heard it before.  The attorney knows how to pick the battles and keep you on the judges good side.

Family law is not like other areas of the law.  A skilled negotiator is superior to a combative lawyer or litigant who wants to fight about everything.

• Email This
• Print
• Comments
• Trackbacks (1)

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

• Email This
• Print
• Comments
• Trackbacks

Susan J. Southard, Petitioner/Respondent v. James A. Southard, Respondent/Appellant, No. 89217 (Mo. App. E.D., November 27, 2007), Romines, J.
  This was an action for modification heard by a family court commissioner. The commissioner's findings and recommendations were adopted and the original judgment was modified as to custody. Father filed a motion for de novo rehearing. The motion was denied. He appealed. One of the claims made in father's motion was that the trial court's judgment was deficient in making statutorily required findings for modification of custody.
  Held: Affirmed.
  By failing to file a motion to amend the judgment to make statutorily required findings, father waived his right to make that argument on appeal. Rule 78.07(c).
“The fact that Rule 129 exists does not mean that a family court judge is confined to ordering relief found in Rule 129 alone. While Rule 129 does govern procedures in front of commissioners and supersedes all inconsistent rules by its own terms, see Rule 129.02, it does not preclude the application of rules with which it is not inconsistent.”
  “Rule 78.07(c) is clear that a motion to amend must be filed in order to preserve error in all cases in which failure to make statutorily required findings is raised. A party simply must file both motions if he wants a rehearing in front of a circuit judge but wishes to preserve his claims of error for appeal in the event that motion for rehearing is denied.”
  It did not matter that the post-judgment motion filed by father, and designated as a motion for rehearing, contained all of his claims of error, including those related to Rule 78.07(c) deficiencies. Dual motions were required.

Source for Post:  Missouri Bar Courts Bulletin

• Email This
• Print
• Comments
• Trackbacks

Death Moots Appeal
Father's death mooted Mother's appeal of visitation provisions in judgment. As to Third-Party Respondent, Mother's appeal of property division is supported by evidence in the record, so Court of Appeals affirms. "[T]his Court accepts as true the evidence and reasonable inferences . . . in the light most favorable to the trial court's decision [and will] disregard all contradictory evidence and inferences . . . contrary to the court's decision."
Mary Margaret Holtgrewe, Appellant, v. Kurt Lawrence Holtgrewe, Respondent, Marlene V. Holtgrewe, Third Party Respondent. Missouri Court of Appeals Eastern District

Stalking By Text Messaging Not Proven
Plaintiff alleged that Defendant's contacts alarmed her, but testified merely that Defendant's text messages and telephone calls bothered her. Such evidence was insufficient to support a full order of protection.
Christinia M. George, Respondent, v. Candace McLuckie, Appellant. Missouri Court of Appeals Western District

Tax Returns Must Be Disclosed
Movant showed no prejudice in Circuit Court's erroneous refusal to require production of Respondent's tax returns because she did not show that the returns alone would have proven her case. Because Circuit Court found that Movant didn't meet her burden of proof, Circuit Court's failure to make a requested finding of fact on whether maintenance was modifiable or not was harmless.
In Re the Marriage of: Bradley Alan Mangus and Ronda Darlene Mangus. Bradley Alan Mangus, Petitioner/Respondent v. Ronda Darlene Mangus, Respondent/Appellant. Missouri Court of Appeals Southern District

• Email This
• Print
• Comments
• Trackbacks

Evidence showing Husband's abuse and attempts to co-opt Child into abusive behaviors supported order of restricted and supervised visitation. Testimony against Husband was not biased, just unfavorable. Trial Court erred in classifying property as separate even though there was no evidence to rebut the presumption that the property was marital, but such error did not cause property division to be so unduly weighted in either party's favor as to constitute an abuse of discretion.

Entire opinion of this case can be read here

• Email This
• Print
• Comments
• Trackbacks

If you are contemplating filing for divorce, or if you are already involved in a proceeding, it is critically important for your attorney to have a complete financial picture of both spouses.  This includes income, asset, and debt information for both parties to the action. The earlier this information is gathered, the better.  By being prepared BEFORE the case is filed, you can help your attorney discover income or assets that your spouse may be hiding, and you can save time and money as information gathering becomes harder after the parties split and/or the tensions of the litigation take hold.

The following is a general list of documents that you should have available or readily accessible when you begin your case:

1. Income Tax Returns. Completed personal, corporate, partnership, joint venture,

or other income tax returns, state and federal, including W-2, 1099, and K-1

forms, in your possession or control for the last 3 years.

2. Income Information. Current income information, including payroll stubs and all

other evidence of income since the filing of your last tax return.

3. Personal Property Tax Returns filed in this state or anywhere else from the start

of the marriage..

4. Banking Information. All monthly bank statements, passbooks, check registers,

deposit slips, canceled checks, and bank charge notices on personal and business

accounts, certificates of deposit, and money market and retirement accounts from

banks, savings and loan institutions, credit unions, or other institutions in which

you or your spouse has an interest.

5. Financial Statements submitted to banks, lending institutions, or any other persons

or entities, which were prepared by you or your spouse at any time during

the last five (5) years.

6. Any Loan Applications made within the last five (5) years.

7. Brokerage Statements. Monthly statements from all accounts of securities and/or

commodities dealers or mutual funds maintained by you or your spouse during

the marriage, and held individually, jointly, or as a trustee or guardian.

8. Stocks, Bonds and Mutual Funds. Certificates, if available, of accounts owned by

either spouse during the marriage or pre-owned by you.

9. Stock Options. All records pertaining to stock options held in any corporation or

other entity, exercised or not exercised.

10. Pension, Profit Sharing, Deferred Compensation Agreement, and Retirement

Plans or any other kind of plan owned by you or by any corporation in which

you or your spouse has been a participant during the marriage, including annual

statements.

1. Income Tax Returns. Completed personal, corporate, partnership, joint venture,
or other income tax returns, state and federal, including W-2, 1099, and K-1
forms, in your possession or control for the last 3 years.

2. Income Information. Current income information, including payroll stubs and all
other evidence of income since the filing of your last tax return.

3. Personal Property Tax Returns filed in this state or anywhere else from the start
of the marriage..

4. Banking Information. All monthly bank statements, passbooks, check registers,
deposit slips, canceled checks, and bank charge notices on personal and business
accounts, certificates of deposit, and money market and retirement accounts from
banks, savings and loan institutions, credit unions, or other institutions in which
you or your spouse has an interest.

5. Financial Statements submitted to banks, lending institutions, or any other persons
or entities, which were prepared by you or your spouse at any time during
the last five (5) years.

6. Any Loan Applications made within the last five (5) years.

7. Brokerage Statements. Monthly statements from all accounts of securities and/or
commodities dealers or mutual funds maintained by you or your spouse during
the marriage, and held individually, jointly, or as a trustee or guardian.

8. Stocks, Bonds and Mutual Funds. Certificates, if available, of accounts owned by
either spouse during the marriage or pre-owned by you.

9. Stock Options. All records pertaining to stock options held in any corporation or
other entity, exercised or not exercised.

• Email This
• Print
• Comments
• Trackbacks