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

Recent Case: JK v. JK WD74592

Father appeals from a judgment entered in the Circuit Court of Cole  County granting Mother’s motion to modify child support. In its judgment, the circuit court found that a substantial and continuing change in circumstances had occurred including, but not limited to: (1) an agreement by the parties to exercise a "visitation" schedule different than that ordered by the court, (2) a change in the incomes of the parties giving rise to a change of more than twenty percent in the presumed child support amount, and (3) the passage of more than three years since the last modification. The circuit court averaged Father's gross yearly income from the previous four years, but did not consider bonus or interest income. The court found that Father was not entitled to a line 11 credit for overnight visitation because Mother's gross income fell below the $2,100.00 threshold for a parent with four children. The court also altered the previous division of the dependency tax exemptions to award Mother.

HOLDING: REVERSED AND REMANDED.

Where the prior child support amount was established based upon a stipulation by the parties that a jointly prepared Form 14 was accurate and represented the amount of child support that is just, reasonable and appropriate under the circumstances and the trial court found that the Form 14 was accurate and represented an amount of child support that is just, reasonable, and appropriate under the circumstances, the trial court cannot be deemed to have implicitly found the Form 14 amount to have been rebutted. Because the prior judgment establishing the child support amount was based upon the presumed amount pursuant to the child support guidelines, the twenty percent provision of § 452.370.1 was applicable to this case (The 20% rule applies if and when the Form 14 presumed support amount is used).

Mother's petition averred a substantial and continuing change in the circumstances based upon a twenty-percent change in the presumed child support amount as provided for in § 452.370.1 and, therefore, sufficiently pleaded her claim.

The trial court did not abuse its discretion in determining that Mother was not underemployed where she testified that she obtain more than 32 to 35 hours per week with her employer, that she had the children 90% of the time despite the parenting plan, and that Father had asked her to quit working a waitressing job she had so she could watch the children on one of the nights Father was supposed to have the children.

The trial court erred in failing to include interest income earned by Mother, and because of that fact, Mother actually earned sufficient income over the threshold for Father to receive an overnight credit on line 11.

Because circumstances might change, the trial court's award of all four dependency exemptions to Mother cannot be deemed improper per se. However, neither equity nor the best interests of the children can be served by taking away exemptions previously granted to Father only to have one or both go unused, as the evidence reflects is highly likely to occur in this case. Bearing this in mind, on remand, the trial court may re-evaluate its award of all dependency exemptions to Mother and attempt to structure the award to maximize the overall financial benefit of the exemptions to the family unit.

The trial court was not required to accept Father's testimony about bonuses he had received and the likelihood of receiving similar bonuses in the future as credible.

 

Because the judgment would allow for Father to seek credit for amounts he voluntarily paid in addition to the prior child support amount during the retroactive period of the modification of the child support award and the issue has yet to be decided by the trial court, the issue is not ripe for appellate review; however, the trial court is free to address the issue of such credit on remand

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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.”

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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.

 

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Missouri law allows for a man that has been named to be the father of the child, but is not biologically the father of the child, to petition the court to terminate a child support order that is two years old or less, and, among other things, extinguish the child support arrears. Missouri’s paternity set aside law provides that:

 

 

Upon a finding that the genetic test referred to herein was properly conducted, accurate and indicates that the person subject to the child support payment order has been excluded as the child’s father, the court shall, unless it makes written findings of fact and conclusions of law that it is in the best interests of the parties not to do so:

(1) Grant relief on the petition and enter judgment setting aside the previous judgments of paternity and support, or acknowledgment of paternity under section 210.823 only as to the child or children found not to bet the biological child or children of the petitioner;

(2) Extinguish any existing child support arrearage only as to the child or children found not to be the biological child or children of the petitioner; and

(3) Order the department of health and senior services to modify the child’s birth certificate accordingly.

A general order of child support for multiple children does not automatically preclude a trial court from setting aside at least some arrearages pursuant to law. Where the petitioner is not the father of any other unemancipated children subject to the general order and the arrearages owing that are attributable to the child at issue can be determined by competent, substantial evidence, the trial court shall set aside such arrearages, unless the trial court makes written findings of fact and conclusions of law that it is the best interests of the parties not to do so.

 

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Recent Case: State of Missouri (FSD) v. [Family Court Commissioner] Missouri Court of Appeals, Western District - WD75408

State ex rel. State of Missouri, Department of Social Services, Family Support Division ("Relator") sought a permanent writ of prohibition to prevent enforcement of an order issued by “Family Court Judge” directing the State to advance the cost of genetic paternity testing in an action filed by the alleged father seeking to set aside a judgment of paternity pursuant to section 210.854. The Court issued a writ of prohibition.

Section 210.854 was enacted in 2009, and creates a right to seek to set aside an otherwise final, non-appealable judgment determining paternity and to unwind the financial and criminal ramifications of non-support resulting from the judgment. Section 210.854.3 provides that genetic paternity testing costs required to contest a final judgment of paternity shall be paid by the petitioner, in this case, the alleged father. The Judge entered an order requiring the State to advance the cost of genetic paternity testing. But by the plain language of the section 210.854.3, the Judge did not have the authority or the discretion to impose the obligation to pay for genetic paternity testing on the State, even temporarily.  The Judge argued that the alleged father is indigent and could not be required to pay for genetic paternity testing pursuant to section 514.040.1. However, It is immaterial whether the alleged father had been permitted to pursue this action in forma pauperis,(as a poor person) or whether the cost of genetic paternity testing is a fee, tax, or charge within the scope of section 510.040.1, as there is no authority in any event to shift the alleged father’s statutory obligation to pay for section 210.854 genetic paternity testing to the State.  Absent statutory authority, costs cannot be recovered in state courts from the state of Missouri or its agencies or officials. The State can be assessed the obligation to pay the cost of genetic paternity testing pursuant to the authority of section 210.834.4, a provision relating to the initial determination of paternity. However, that provision has no application to an application to set aside paternity under section 210.854.   

 

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

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

 

HELD: AFFIRMED WITH MODIFICATION OF THE JUDGMENT

 

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

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

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

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

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

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Recent 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.

 

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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.

Reiter v. Reiter, No.74350 (Mo. App. W.D., August 7, 2012), Mitchell, J.

 

Source for Post:  Missouri Bar Courts Bulletin October 2012

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

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

AFFIRMED AS MODIFIED.

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

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

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

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

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Recent case: CB v. DB Missouri Court of Appeals, Western District - WD74067

Father requested information concerning Daughter’s college education, and received limited information through the child-support agencies which served as intermediaries between Father and Mother. On March 31, 2010, Father initiated the present proceedings by filing an affidavit for termination of his child support obligation. The circuit court conducted a trial of the matter in April 2011. The circuit court held that Father was entitled to abatement of his child-support obligation during the Fall 2010 academic semester, because he had not been provided with the information concerning Daughter’s college education required by § 452.340.5, RSMo, at the beginning of the semester. The circuit court rejected Father’s arguments that he was also entitled to abatement of his child-support obligations during the Fall 2009, Spring 2010, and Spring 2011 semesters. Father appeals.

REVERSED AND REMANDED.

The Court of Appeals held:

Section 452.340.5 provides for the continuation of child support benefits past the age of eighteen if the child enrolls in an institution of vocational or higher education by the October following their graduation from high school, if certain attendance, academic and notice requirements are met.

Here, Daughter failed to satisfy the requirements of § 452.340.5 in any of the semesters in which the circuit court refused to abate Father’s child support.

In the Fall 2009 semester, Daughter failed to complete twelve credit hours of classes, as required by § 452.340.5. The trial court erroneously held that Daughter was excused from this requirement because she was working at least fifteen hours per week during the semester; the evidence (including Daughter’s testimony) establishes that she failed to meet the fifteen-working-hour threshold. In addition, Daughter’s voluntary withdrawal from one class, which she could have successfully completed but for her withdrawal, cannot be considered “completion” of that class.

With respect to the Spring 2010 semester, Daughter failed to provide Father with copies of her grades for the Fall 2009 semester (which he was entitled to receive “at the beginning” of the Spring 2010 semester), until trial in April 2011. This was too late. In addition, due to her voluntary withdrawal from classes, Daughter failed to complete twelve hours of classes in this semester also.

With respect to the Spring 2011 semester, Daughter failed to provide Father with her course schedule until April 2011. This was not “at the beginning” of the Spring 2011 semester, as required by the statute.

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Recent Case:  JJ v. EJ Missouri Court of Appeals, Western District - WD74148

Adding a spouse to the title of non-marital property, in this case a farm, transmutes separate non-marital property into marital property. Consequently, when Respondent re-titled the property adding his spouse to the title, the farm became marital property. When the parties placed the property into their trust, the property remained marital property.  

In her third point, Appellant contends that the trial court erred in finding the wedding rings were marital property. The Appellate court agrees because there was no evidence in the record to support that the rings were marital property. The only evidence is Respondent’s testimony that he purchased the rings for Appellant, and an inter vivos gift to a spouse is non-marital property.

 

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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.

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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.

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Under § 452.377, RSMo, relocation of child’s residence requires strict compliance to statutorily required notice before strict compliance with time to file objection to relocation is required. Abraham v. Abraham, No. 31099 (Mo. App. S.D., October 26, 2011), Rahmeyer, J.

A dissolution of marriage was granted to the parties in April 2006. In September 2010, the Mother sent a certified letter of her intention to relocate their child’s residence to Orlando, Florida. The Father did not file an objection to the move until 37 days after receipt of the letter. The Mother asserted that the tardy objection was ineffective to preclude her absolute right to the relocation in accordance with an opinion issued in Baxley v. Jarred, 91 S.W. 3d 192, 199 (Mo. App. W.D. 2002). In Baxley, it was held that an objection to relocation that was not timely filed gave the relocating party an absolute right to relocate and that the only issue left for the court was the appropriate adjustment in parenting time between the parties. The trial court rejected that theory and denied the Mother her request to relocate. She appealed.

Held: Affirmed.“Mother claims that ‘strict compliance’ with the elements of a relocations letter is not required….” The Father asserted that the Mother’s failure to provide known details of the address to which relocation is intended renders her notice effective.

“We believe the legislature intended that the date for any legal obligation to begin for the nonrelocating party was the date of receipt of the certified letter which strictly complies with the provisions of the statute; it was intended as a bright line for parents, practitioners and the court. To hold otherwise causes confusion in the courts and the practicing bar as to whether a motion to prevent relocation needs to be filed.”

“[T]he notice requirement of § 452.377 must be strictly complied with.” Here, the Mother did not give notice of the actual specific address and mailing address of her new intended residence although she knew it. If one party must be held to compliance with the 30 day rule to object, the relocating party must be held to strict compliance with the notice provisions that trigger that obligation to act.

Concurring Opinion: “Waiver is the intentional relinquishment of a known right.’” In Baxley, neither party complied with the requirements of the statute as to notice and time to object. Yet, they weren’t treated the same in that the failures of the notice to relocate were forgiven while the failure to file a timely objection was not. However, in the instant case they were each given their day in court regarding the relocation. Thus, neither party was prejudiced by such non-compliance.

Rather than require strict compliance with the statute in all aspects here, the opinion asserts that the proper analysis is whether a party was prejudiced by such non-compliance. Thus, in the instant case, neither party complied with the statutory requirements and a full hearing of the relocation issue ensued. That was the proper result, not for failure of strict compliance, but rather because the trial court gave each party full and fair hearing on the relocation issues.

Concurring Opinion #2: There should be no “absolute right” to a default on the issue of relocation when an objection is not timely filed. There should be consideration given to the facts of the case because the welfare of the child is the paramount concern.

Source for Post:  Missouri Bar Courts Bulletin. 

 

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New Case Law: CB v. DB Missouri Court of Appeals, Southern District - SD31614

Notwithstanding the fact that the Missouri case law generally states that tax benefits must go to the custodial spouse unless the trial court expressly finds it unjust or inappropriate to do so, our western district has held that noncompliance with Form 14 directions is not reversible error unless the appellant is prejudiced thereby. Sarwar v. Sarwar, 117 S.W.3d at 171.  Appellate review is for prejudice, not mere error Pruett v. Pruett, 280 S.W.3d 749, 751 (Mo.App. 2009).

 

“Here, Wife does not argue or suggest any prejudice, nor could [the Court] glean any from the scant record that she has provided. In fact, the indication is otherwise. In her post-trial motion, Wife represented to the trial court that her only income during the two-year history of litigation was unemployment benefits, which had expired; that she had been unable to obtain employment; and that her gross income was “zero.” By contrast, Husband was earning an income, and apparently could benefit from the tax exemption, while Wife seemingly could not. A judgment will not be reversed unless an appellant is prejudiced by an error that materially affected the merits of an action. Rule 84.13(b).”

 

Wife did not meet her obligation to show that she was entitled to appellate relief and the judgment was affirmed.

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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

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Missouri statute requires that a parent relocating with a child give notice to the other parent. Receipt of notice starts the 30 day time limit to file a motion to bar the relocation. A deficient notice does not, alone, provide grounds to modify custody and visitation. In this case, the notice was deficient, but the motion was timely, so no prejudice resulted. The Record includes evidence to support findings on child’s best interest so Court of Appeals defers to circuit court.

Henry v. Henry Missouri Court of Appeals, Southern District - SD30897

Source: Missouri Bar

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Spousal maintenance, formerly known as alimony, can be awarded to either spouse in Missouri divorces.  To support the award, the Court must find that the spouse seeking maintenance (1) lacks sufficient property, including marital properly awarded, to meet their reasonable needs, and (2) the spouse is unable to support themselves through appropriate employment OR is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home.  The spouse seeking maintenance must be able to demonstrate a need for it, and maintenance is not awarded as a form of compensation for breach of the "marital contract".

There is no set formula for the calculation of maintenance, as in some other states, and it is determined on a case by case basis.   Duration of the marriage is an important factor also in cases where one spouse forgoes the development of a career while the other is free to advance a career, and maintenance is awarded more often in marriages longer than 10 years, but can be awarded in a marriage of any duration.  Ability to pay and earning capacity are also important factors, and the party receiving maintenance has an affirmative duty to seek employment.

Unless the court can determine an exact date when the receiving spouse will become self supporting, court ordered maintenance will have no termination date, and it must later be terminated by way of motion by the paying spouse.  However, the parties can agree to maintenance for a set term, but that generally will be non-modifiable. 

Maintenance, whether open-ended or non-modifiable for a set term, will still terminate upon remarriage of the receiving party or the death of either party, unless the decree specifically states that the award will survive either death or remarriage.  Maintenance that is open-ended can be modified or terminated upon showing of a substantial and continuing changed circumstances, including the financial resources of both parties, contributions of a new spouse or cohabitant, and the earning capacity of an unemployed party.

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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.

 

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A dispute that Missouri family law attorneys see on a regular basis is the sharing of children’s extracurricular activity expenses. Under Missouri law, the Court can require parents to share certain expenses, over and above the monthly child support amount. Included in these expenses are extracurricular activities, educational expenses, uninsured medical costs, and any other extraordinary costs. The Court of Appeals has recently held that, at least to extracurricular activities, and presumably to education and other expenses, the order must have “some limitation as to the scope of activities and resulting expenses or a cap on the total amount of [the parent’s] financial responsibility…to make the order sufficiently certain to be enforceable.”

This means that an order cannot simply require the parents to share a certain percentage in “all extracurricular activities”, particularly when one parent is given the discretion to make all decisions relating to those expenses. The Court noted that “[t]he term “extracurricular activities” is itself extremely broad. Not only is the range of activities that might qualify hard to define, each activity might include a number of different categories of expense (i.e. lessons, camps, equipment, uniforms, or travel). The Court held “that under the facts of this case the motion court should have used limiting language to define the scope of the activities covered by the order or, in the alternative, placed some sort of cap on the extraordinary expenses that Father had to pay for Daughter’s extracurricular activities, especially since it gave Mother sole discretion to decide which activities would occupy Daughter. A $200 monthly limit was imposed.

 

It is worth noting, though, that an agreement that is made for the sharing of expenses when the nature and extent of the expenses is known at the time is still enforceable regardless of limiting language, since the paying parent would have at least a general idea of what they were on the hook for financially

 

To see the entire opinion, click here.

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

Missouri Court of Appeals, Southern District - SD30632

Source for Post:  Missouri Bar

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Missouri’s paternity disestablishment law, enacted in August 2009, allows men who have been declared the father of a child by a court or the Division of Family Services to set aside (overrule) the finding of paternity and terminate child support and child support arrearages. Under this law, alleged fathers wishing to file such an action were given a 2 year “open season”, where the action could be filed regardless of when the original child support order was entered. This period expires on December 31, 2011. On January 1, 2012, the statute of limitations takes effect, and a paternity and child support order can only be set aside if the case is filed within 2 years of the entry of the original order. If not filed within that time, then relief under the statute is precluded. 

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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.

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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

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In today’s turbulent economic climate, where job losses or reductions in income are frequent, it is critical to immediately deal with a child support order upon any significant change in income. Failure to act quickly can lead to an even greater financial disaster.  Here’s why:

• In Missouri, a child support order, regardless of whether it is administrative (Family Support Division “FSD”) or judicial (through the Courts), remains in effect until modified. This means that even if income is reduced or lost, the obligor is liable for the child support under the order, regardless of income, until a formal modification proceeding takes place. 
• It is critical to file a motion to modify immediately upon an income change as the Court only has jurisdiction to go back and adjust child support back to the date of filing. Once it is filed, the obligor can then seek temporary immediate relief from the original order, and avoid the accumulation of child support arrearages.
• Failure to modify quickly can lead to the accumulation of child support arrearages that cannot be erased, which in turn can result in civil contempt, criminal non-support, suspension of driver licenses, interception of income tax refunds, additional payments to cover the past due child support, and other unpleasant results.
• It is not required that a person wait three years to modify the child support order, even if it is an administrative order. That is just the time interval in which the FSD may, on its own, review an order for modification. A child support order is modifiable at any time by either party.
•  It is always better to consult an attorney for a judicial modification rather than going to the FSD for an administrative modification. The court has power over the FSD and can modify any administrative or judicial order much more quickly, and can issue temporary orders for relief.
•  Once a judicial motion to modify is filed, even if the obligor stops paying child support or reduces the amount paid, the party will avoid contempt charges and administrative enforcement issues, and the Court can sort out what the new child support amount should be and adjust it accordingly back to the date the motion was filed. This may result in some child support arrearages, but nowhere near what there could be without the modification on file. At this stage of the game, damage control is crucial.
• The modification action can result in attorney fees and case costs, but those typically are minimal in comparison to the savings in child support, and are almost always a wise investment.
• Care should always be taken, however, before engaging in a child support modification, and it is not a good idea to do so without consulting an attorney. Modification cases can be full of possible land mines, so care and experience are required to keep a bad situation from getting worse.

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Generally, in Missouri child support terminates when a child dies, marries, enters the military, becomes self supporting, or turns 18. However, child support can continue after age 18, and all the way to age 21, if the following requirements are met:

If the child is enrolled in and attending high school when he or she turns 18, then child support will continue through the completion of the high school program or age 21, whichever first occurs.

If the child is enrolls in an institution of vocational or higher education (college) by October 1 following graduation from high school (or completion of a GED program), the obligation for child support can continue until the child completes the program or turns 21, whichever occurs first. However, the child must enroll for and complete (pass) at least twelve hours of credit each semester, not including the summer semester, and achieve grades sufficient to re enroll.  The credit hour requirement is reduced to 9 if the child is employed and working at least 15 hours per week.

To remain eligible for continued child support, at the beginning of each semester the child must submit to each parent a transcript which includes the courses enrolled in and completed for each term, the grades and credits received for each such course, and an official document from the institution listing the courses which the child is enrolled in for the upcoming term and the number of credits for each such course. If the child fails to comply with this requirement, the paying parent can motion the court for an abatement (temporary termination) for the particular semester. However, if the non-custodial parent makes a formal request for the required documents, the child must produce them within 30 days or the child support can be permanently terminated.  Also, either parent or the child can ask the court for support to be paid directly to the child.

Under the law, an "institution of vocational education" means any post-secondary training or schooling for which the student is assessed a fee and attends classes regularly. "Higher education" means any community college, college, or university at which the child attends classes regularly.

Note that a modification or termination of child support under any of the above scenarios is not automatic, and the parent wishing to modify or terminate must do so by filing a motion with the Court.

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In a recent termination of parental rights case, the Court stated that statutory grounds of abandonment, neglect, and unfitness require clear, cogent, and convincing evidence. The Incarcerated parent’s diligent efforts at maintaining contact with child refuted such allegations. The “Child may suffer from Father’s absence, but getting in trouble before he knew about Child is no proof that Father now wants no relationship with her.” Failure to send money from 28¢ per day wages was de minimis. Incarceration does not raise the presumption of unfitness. The child’s best interests require only preponderance of evidence, but the issue never arises until statutory grounds are established. 

The entire opinion can be read here.

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In cases involving children, the Court must, either by agreement or by trial, set up some sort of custodial arrangement for the kids involved. There are many options available, all of which fit under a just a few legally recognized categories. There are as many if not more “definitions” of custody floating around out there that don’t actually mean anything legally. People usually have at least some idea of what it is that they are seeking in their minds, but they have trouble defining it. So here we go with a little Child Custody 101 to assist those with their initial case preparation:

Legal Custody. This is one of the two types of custody that must be determined by a Missouri Court in all cases. The legal aspect of custody means decision making and parental authority, basically. It means having the legal right to make (and participate in) any material decisions affecting the children.  Included are the choice or change of school, college, camp, or comparable summer activity, special tutoring, music, sports, art, dance, and other cultural lessons, psychological or psychiatric treatment or counseling, doctors, and surgeons; notice of illness and injury; access to school and medical records; and all other material decisions affecting the health, education, and welfare of the children. Specifically, decisions regarding educational instruction, religious instruction, health care, discipline, and child care providers are included in the model parenting plan, but anything relevant to the children could be included in the definition. Legal custody can be granted to one or both parents, but the overwhelming preference is for joint legal custody. 

Physical Custody. This is the second aspect of custody that must also be determined. Physical custody simply means the right to have actual physical possession of the children at a certain specified time. The preference is for joint physical custody, which only means that both parents have the right to physical possession of the children at certain times. The actual schedule can vary greatly, however, and this is where tailoring to the specific needs of the family is important. Joint physical custody could be an alternate weekend schedule, alternate weeks, holidays and spring break only, summertime only, 3 day/4 day, 5 day/2 day, 50/50, open ended, or whatever other schedule is appropriate for the case. Just as a note, in a 50/50 joint physical parenting schedule, reduced child support is still usually paid in some form or another.

Joint Custody. As discussed above, this is the preferred arrangement and will usually be awarded unless a physical or emotional danger to the child is demonstrated. The Court has to determine whether joint custody is appropriate as to both the legal and physical aspects of custody.

Sole Custody. This is the alternative to joint custody where only one parent is granted either all of the decision making rights (sole legal custody) or all of the physical parenting time with the other parent  being excluded completely (sole physical custody), or both. Courts are reluctant to order either of these options unless it is shown to be in the children’s best interests, which usually means that physical or emotional danger to the children will occur under any other alternative. Also, as many times as I have seen it, there is no such thing as sole physical custody to one parent along with a parenting schedule for the other parent. If both parents are to see the children, whatever the schedule, that is joint physical custody by definition.

Split Custody.  This is an arrangement where the children are “split up” between the two parents, meaning that some of the children reside with one parent while the other children reside with the other parent. This is not too common, but it does happen. Courts are usually reluctant to split up children except in the most unique of circumstances, but the parents can agree to such an arrangement if they feel it is best.

Full Custody. There is no definition of Full Custody in Missouri and it has no legal significance.  When referring to this, people are talking about some combination of the above types of custody.

Primary Custody. This is no longer a legal definition in Missouri.   Now it is called “residential address for education and mailing purposes.” It usually means the home where the children reside for the greater amount of time, and the home that is in the children’s school district. The parents are supposed to be equal so they are no longer referred to as the primary parent and the lesser parent.

Visitation. This is the time where you view the body before a funeral.  So, if you are talking about your kids, call it something else, like “parenting time”.

Hopefully, this helps to clarify a little bit, but when it comes down to it, it is still just a bunch of words on paper. Put the children first, focus on what is best for them and what will really work with your family, and don’t get too wrapped up in the terminology.  

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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.

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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.  

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In today's highly mobile society, is is not uncommon at all for one parent to desire to relocate to another city or state.  While Courts recognize that a parent cannot realistically be confined to one geographic location, the greater the distance between the parents, the more difficult it can be to effectively exercise a joint physical custody arrangement.  Courts routinely have to make difficult decisions that will heavily impact the child's relationship with a non-custodial parent. 

When determining whether to allow children to relocate, the decision is made on a case by case basis, and there is no hard and fast rule.  The Court is required to consider whether the move is made in good faith and  will serve the best interests of the children, and the the court looks to the enumerated factors in RSMO 452.375.2, as in any custody proceeding.  Whether or not the children would benefit economically, socially, or educationally are also considerations, but economic benefit does not have to be shown.

In a recent ruling from the Court of Appeals, a finding prohibiting the relocation was overturned, based on evidence of Mother’s history as primary caregiver, careful provision for children’s needs including time with Father, Father’s child support arrearages and criminal offenses, as well as other factors.  The Court found that, even though the Father and other immediate family would have substantially less time with the children and the children would be moved to another city and another school, the move was in the children's best interests.  To get an idea of how the Court approaches these cases, and what other factors are considered, click here to read the opinion.

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On July 7, 2009, Governor Jay Nixon signed into law senate bill number 141, which modifies Missouri’s paternity laws, effective August 28, 2009. The new law revises sections 210.826, and 210.828 and adds a new section 210.854, which will now allow men who have been declared the father of a child by a court to petition to set aside the judgment and obtain relief from child support obligations when DNA testing shows that they are not the biological father, if filed within certain time limits.  

The provisions of the new paternity law are summarized as follows:

In an action to determine paternity of a child, a notification form shall be attached to the delivery of the petition through service of process. The notification form shall prominently state in bold face type as follows: "Important Notice. If you do not respond to this action, a judgment of paternity may be entered against you and you may be ordered to pay child support, medical support or reimburse someone for support previously paid for the child. You have the right to contest that you are the father of the named child and you have the right to request genetic testing to prove whether or not you are the father."

The act also provides that a person may file a petition to challenge entry of a judgment of paternity and support upon filing an affidavit stating that evidence exists which was not considered before entry of judgment. Such petition shall also include either an allegation that genetic testing was conducted within the past 90 days using DNA methodology, was performed by an expert, and that the test results indicate the petitioner is not the child's father or a request to the court for an order of genetic paternity testing using DNA methodology. The petition to set aside the judgment may be filed at any time prior to December 31, 2011. After that, the petition shall be filed within two years of the entry of the original judgment of paternity and/or support, whichever occurs later.

The court, after a hearing where all interested parties have been given an opportunity to present evidence and be heard and upon a finding of probable cause to believe the testing may result in a determination of non-paternity, shall order the relevant parties to submit to genetic paternity testing. The petitioner shall pay for the costs of testing.

The court shall grant relief, unless the court makes written findings of fact and conclusions of law that it is not in the best interest of the parties to do so, and enter judgment setting aside the previous judgment of paternity and child support, including a previous acknowledgment of paternity, extinguish any existing child support arrearage, and order the Department of Health and Senior Services to modify the child's birth certificate accordingly upon a finding that the genetic test was properly conducted, accurate, and excludes the petitioner as the child's father.

In addition, any petitioner may apply for expungement of criminal nonsupport records to the court in which the petitioner pled guilty or was sentenced. Such expungement shall only apply to records for criminal nonsupport of a child or children for which the petitioner was found not to be the biological father.

The provisions of this act shall not apply to grant relief to the parent of any adopted child nor shall such provisions be construed to create a cause of action to recover child support or state debt previously paid under court order. The petitioner shall not have a right for reimbursement of any monies paid previously under said order.

Beginning in 2010, the family support division shall track and report to the general assembly the number of cases known to the division in which a court, within the calendar year, set aside a previous judgment of paternity and support under the provisions of this act.

The entire text of the bill can be read here.

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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.

 

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An issue that I have seen a few times, and that was recently before the Court of Appeals for the Southern District, involves the incorporation of maintenance (alimony) provisions into a Marital Settlement Agreement, where the agreement provides that the terms are not subject to modification.   

Extreme care should be used when drafting such a document, as many times these agreements have  "boilerplate" language either at the beginning or end of the document, which says that the agreement  is the entire agreement and it is not subject to modification or change. That is all well and good for a contract, and the parties would want that in there for most purposes. Legally that language is not effective for child custody, visitation, or support orders, but it would be necessary for the division or property provisions. 

The problem is with maintenance.  If the parties agree to a certain amount and schedule for maintenance, that would normally be modifiable unless stated otherwise.  However, if the "non-modifiable" language is buried elsewhere in the document, usually at the end, that would be effective to make the maintenance non-modifiable, which would put the paying spouse on the hook indefinitely.  Obviously this could be a very expensive, unintended mistake.

So, the parties should make very clear, in the same paragraph, the type and duration of the maintenance, as well as whether or not it is modifiable.  Also, they should make sure that the provisions for non-modification of the settlement agreement, which could be anywhere in the document, do not apply to maintenance, unless that is the intent of the parties.  Also, each party should just thoroughly read and understand the agreement before signing it, even the "legalease".

For a recent case dealing with this issue, click here

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What happens when a parent tries to avoid a child support obligation because they are not working or only have a small amount of income? Well, in the eyes of the Court, that parent will be treated as if they did have income sufficient to pay the child support. The most common situation is when it is apparent that a parent is not working specifically to avoid child support, but there are many factors that the Court can consider when making this decision. This can happen in a divorce, paternity, or child support case, and it is called “imputed” income. The court can consider any relevant factor, and recent cases say the following:

For the non-custodial parent

• Any imputed income must be within a parent’s capacity to earn, and if a parent earned a different income prior to trial the court should consider that income in calculating retroactive child support.  
• Even if a parent did not try to evade child support, the court can impute higher income than earned if the parent has the earning capacity.  
• Imputed income must be supported by evidence, not speculation, and the court record must reflect how the income was figured.  
• The income imputed to an underemployed or unemployed parent must be according to what they could earn if using their best efforts to find employment
• The court can impute income if a parent has voluntarily and deliberately become unemployed, and a court should not do so if there is no showing of an attempt to evade responsibility
• If a parent is terminated and does not use best efforts to find new employment, refuses offers, or fails to show unemployment is only temporary, income may be imputed

For the custodial parent

• Factors include age, maturity of the child, availability of child care givers, relationship between the expense of child care and the net income the parent would receive, the reasons the parent stays home with the child.
• A court may not treat imputation of income on the Form 14 different than its maintenance calculation

Next installment: Adjustments to income for child support, maintenance, health insurance, and medical costs

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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.

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Findings are not required under 452.375 (custody statute) where the trial court has determined that the party seeking to change a custody order has failed to satisfy the required burden of proof.  The required findings under 452.376 do not come into play in a modification proceeding under 452.410 (modification statute) unless the court has first found the requisite change of circumstances. And the public policy findings of section 452.375.4 (third party custody) are likewise not for consideration until the court reaches the question of best interests.  The best interests analysis does not come into play before a change of circumstances has been proven. In Russell v. Russell, the Supreme Court reaffirmed that, where the proposed modification seeks to deprive one parent of physical custody, both a change in circumstances and best interests need to be proven. 

Such is the case in a recent ruling from the Court of Appeals, where Father sought to change sole custody to himself. Because Father sought a change from sole custody to Mother to sole custody to Father, he was required to prove a substantial change of circumstances. The Russell court limited its express holding to the change from joint custody to sole custody. The rationale, however, that a substantial change was required if one party seeks "to deprive one custodial parent of custody altogether" is equally applicable in this case, according to the Court of Appeals for the Western District.

 To read the entire opinion, click here.

 

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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

 

Continue Reading...

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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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