Kansas City Divorce Lawyer & Attorney : Wortman Law Firm

Effective yesterday, July 1, 2008, Supreme Court Rule 88.09 comes into effect which requires parties not represented by counsel to participate in a litigant awareness program that explains the risks and benefits of self representation, as well as requiring certain court forms to be used and accepted by the Court.   The amended rule reads as follows:

88.09 PARTIES NOT REPRESENTED BY COUNSEL

Every party not represented by counsel who participates in a proceeding for dissolution of marriage, legal separation, parentage or the modification of a judgment in any such proceeding shall:

(a) Complete a litigant awareness program that includes an explanation of the risks and responsibilities of self-representation, unless waived by the circuit court. The awareness program shall be prepared by a committee designated by this Court, but each circuit may determine the manner and means by which the training shall be provided and the proof of compliance; and

(b) Unless such use is waived by the trial court, use the pleadings, forms, and proposed judgment prepared by a committee designated by this Court that have been approved by this Court. These forms shall be accepted by the courts of this state, until disapproved or superseded by this Court.

(c) Nothing in this Rule 88.09 prevents a court from determining the legal sufficiency of any pleading nor prevents a court from entering judgment in a form different from the judgment form approved pursuant to Rule 88.09(b).

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Two proposals by the Family Law Section of the Missouri Bar failed to pass in 2008. 

House Bill 1358 proposed to enact the Uniform Child Custody Jurisdiction Enforcement Act.  Missouri remains one of only four jurisdictions that has not adopted the Act.  If adopted, the act would have changed the rules pertaining to initial child custody jurisdiction, continuing jurisdiction, modification jurisdiction, and emergency orders.  Text of the bill can be read here.

House Bill 1360 would have made changes to Missouri's Interstate Family Support Act, which governs jurisdiction and enforcement for interstate child support orders.  The proposed bill would have also established several direct interstate enforcement mechanisms for caretaker parents.  Text of the bill 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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Wife Concedes Ambiguous Term In Agreement; Prevails On Appeal
Separation agreement provided non-modifiable maintenance to Wife, and Circuit Court found no basis for modification, so it had no power to modify maintenance. Husband's points, all related to manner of modification, are therefore moot. Ambiguity remains in terms of agreement, but Wife's concession of the point allows Court of Appeals to issue judgment Circuit Court should have.
Tracy Lynn Boden, Respondent/Cross-Appellant v. Thomas Robert Boden, Appellant/Cross-Respondent. Missouri Court of Appeals Eastern District

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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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Standard of proof for modification of joint physical custody. Kimberly Russell n/k/a Kimberly Bichsel, Respondent v. Mark Russell, Appellant, No. 87917 (Mo. banc, January 9, 2007), Wolff, C.J.
  It is axiomatic that the modification of visitation only requires that the proposed change be in the best interest of the child whereas a modification of custody requires a more stringent standard of proof, i.e. that there has been a change in the circumstances of the child or custodial parent such that a modification is needed in order to serve the best interests of the child.
  The parties' original judgment granted them joint legal and physical custody of their three-year-old child. The schedule essentially had the child with mother during the work week and with father every weekend. Since that time, mother has become employed full time, and the child goes to school. Father now worked until late evening on most Fridays as well. The trial court changed the core schedule to begin father's custody on Saturdays at 9:00 a.m. and granted the mother the third weekend of each month. Other modifications not involving custody were entered, but not important to this summary. Father appealed because the trial court used the standard of proof for visitation modification.
  Held: Affirmed as to modification of custody. Section 452.410 RSMo addresses modifications of custody, and §452.400.2 addresses modifications of visitation.
  “The question here is which modification statute applies to a court's previous award of joint physical custody. A threshold matter in many modification cases will be whether the initial custody arrangement is, in fact, joint physical custody, as defined by statute.”
[§ 452.375.1(3)]. This opinion determined that this original judgment was for joint physical custody.
  “This case presents a clear example of one concern created by this legal paradigm shift (from sole custody/visitation to joint custody). Changes such as those the circuit court made here – essentially a few hours a week – are not as drastic as a shift from sole custody of one parent to sole custody of another parent. The requirement that the change be substantial is no longer appropriate where simple shifts in parenting time are at issue. Courts should not require a 'substantial' change from the circumstances of the original judgment where the modification sought is simply a rearrangement in a joint physical custody schedule.”
  Even though the trial court applied the visitation modification statute, its judgment can be affirmed by applying the correct standard.

Source for Post:  Missouri Courts Bulletin for February 2007

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Record supports Trial Court's order for anger management, and order is sufficiently specific to enforce. Trial Court did not stop Father from participating during in-chambers interview, and Child's statements in that procedure support custody order. Trial Court erred by issuing parenting plan that failed to address custody on Child's birthday and school holidays, requiring remand.   The entire opinion can be read at  In re the Marriage of: Patrick Lynn Murphey and Angelic Marie Murphey. Patrick Lynn Murphey, Petitioner/Appellant v. Angelic Marie Murphey, Respondent/Respondent.

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Thirty days after it issues its judgment, Trial Court loses jurisdiction other than the modifications requested in timely motion and any necessary to correctly calculate child support. "In this case, when Husband petitioned the trial court to . . . re-calculate the . . . amount of support . . . , he automatically, albeit unwittingly, also asked the court to reexamine the propriety of this amount[.]"

The entire opinion can be read here

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In its simplest form, a deposition is the giving of oral testimony under oath before trial.  Depositions are conducted in front of a court reporter and will assist your attorney in the preparation for trial.  The use of oral depositions is a standard procedure in family law cases for discovering relevant and material facts, determining the strategy of the case, and searching the concience of the person being deposed (called the deponent).

It is very important to take the deposition seriously.  As a deponent, the attorney taking the deposition is searching for ways to discredit the deponent, obtain information, and obtain admissions.  The defending attorney is seeking to avoid harmful admissions, present the facts in the best light possible, and to protect the deponent's creditability.

You should remember that the deposition is usually the first chance the opposing attorney has a chance to see you, so you must make a good impression, and treat the deposition as if you were appearing in court.  You should do the following:

1.  Be clean and wear neat, conservative clothing

2. Be respectful

3.  Tell the truth to all questions asked

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In Missouri, generally, for a parent to modify child support, they must show a substantial and continuing change in circumstances that warrant a change in support.  Missouri law states that if there is a 20% increase or decrease in the incomes of one of the parents, that, by itself, will meet the change in circumstances requirement.  However, according to a recent ruling by the Missouri Court of Appeals, that will only apply if the Form 14 presumed amount of child support is used. 

In Selby v. Selby, the Missouri Court of Appeals for the southern district held that when a child support amount is based on an agreement between the parties deviating from the Form 14, in this case an agreement to zero, then a party wishing to modify will have to show that they cannot support the child/ren in a manner contemplated at the time of the agreement.  Although it may be the case that the income of a parent has changed by more than 20%, that by itself will not be enough if the moving party can still support the children in the same manner as before.  It would appear that evidence of the children's current expenses, evidence as to how much the children's expenses have increased, and evidence of the change in parties income in the intervening years would need to be shown.

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