Missouri Divorce & Family Law Blog

Missouri Divorce & Family Law Blog

for Missourians struggling with divorce and family law matters

Missouri Supreme Court Case: Dissolution of marriage involving non-biological child should be adjudicated with a separate paternity action; Third party custody appropriate when biological parents are unfit.

Posted in Child Custody and Visitation, Custody and Visitation, Divorce, Paternity

Recent Decision from the Missouri Supreme Court:

Overview: A mother appeals a circuit court’s judgment awarding third-party custody of a child to her stepfather in the mother and stepfather’s proceeding to dissolve their marriage. In a decision written by Judge George W. Draper and joined by five judges, the Supreme Court of Missouri affirms the judgment.

The circuit court did not err in designating the stepfather as a third party solely for the purpose of determining custody, and its award of third-party custody to the stepfather was not against the weight of the evidence. Chief Justice Zel M. Fischer concurs in the result affirming the circuit court’s judgment but would hold the mother’s point relied on regarding the custody award violates a mandatory briefing rule, preserving nothing for review.

Facts:

During a proceeding to dissolve a marriage, issues arose as to the paternity of a child born before the couple married. Subsequent DNA testing showed the child’s father was another man, whom the circuit court allowed to intervene in the dissolution proceeding. All three adults sought custody. The circuit court found it had authority to determine the child’s custody because the biological parents had asked it to do so and all interested parties were present. It also found it should treat the stepfather as a third party to the custody determination even though he already was a party to the dissolution proceeding. Following a trial, the circuit court found both biological parents were unfit, unsuitable and unable to be the child’s custodian, and it was not in the child’s best interest for either biological parent to have physical or legal custody of her. It further found the mother was unlikely to allow the child to have meaningful contact with the stepfather. The circuit court awarded the stepfather third-party custody, finding that arrangement was in the child’s best interest. The mother appeals.

TRIAL COURT DECISION AFFIRMED.

Court en banc holds:

(1) The circuit court did not err in designating the stepfather as a third party solely for the purpose of determining custody. The proper procedure is governed by Supreme Court Operating Rule 4.05.03, which instructs circuit courts to sever contested paternity actions from dissolution proceedings. That procedure, however, was not followed here. Instead, the stepfather pleaded a proper cause of action for third-party custody – he alleged the mother and biological father were unfit and unsuitable to be the child’s custodians, and the child’s welfare and best interest required he be awarded third-party custody. The mother cannot complain on appeal about an alleged error she actively invited by not challenging the biological father’s motion to intervene in the dissolution to adjudicate the child’s paternity and custody.

(2) The circuit court’s award of third-party custody to the stepfather was not against the weight of the evidence. The stepfather pleaded a proper cause of action under the statute, which permits third-party custody under certain circumstances. The circuit court had before it all the interested parties and a multitude of pleadings, and it held an extensive trial. It issued a judgment and addendum to the judgment setting forth the relevant factors it considered in awarding the stepfather third-party custody, and the mother has not demonstrated the circuit court’s judgment is erroneous. The circuit court properly found the stepfather rebutted the parental presumption in the mother’s favor when it determined she was unfit or unsuitable to have sole legal and physical custody of the child, and there was substantial evidence showing the child is bonded deeply to her stepfather and it would be psychologically destructive to the child’s emotional development to diminish or break that bond.

 

Missouri Supreme Court – SC96545

 

Child Support Overnight Credit Denied if Recipient’s Income is Below Threshhold

Posted in Child Support, Financial Issues, Modifications

Recent Case-Missouri Court of Appeals:  Father appeals denial of overnight credit in child support case.

In a judicial action for child support where the non-custodial parent has overnight parenting time with the child(ren), he or she is entitled to an overnight credit based upon the number of overnights per year as provided in the instructions to the Form 14.  However, the overnight credit cannot be granted if the income of the receiving parent is under a certain limit, which is based on the number of children.  In this case, the minimum income for the custodial parent was $1700 for two children for the overnight credit to apply, and because Mother’s income was below this level, Father was entitled to no overnight credit.

Missouri Court of Appeals, Eastern District – ED104179

Under the current law, the overnight credits and custodial parent income limits are as follows:

Number of Overnights per year Overnight Credit
Less than 36 0%
36-72 6%
73-91 9%
92-109 10%
110-115 13%
116-119 15%
120-125 17%
126-130 20%
131-136 23%
137-141 25%
142-147 27%
148-152 28%
153-158 29%
159-164 30%
165-170 31%
171-175 32%
176-180 33%
181-183 34%

Minimum income limits for the custodial parent in order for the above credits to apply:

1 child 2 children 3 children 4 children 5 children 6 children
$1,400 $1,700 $1,900 $2,100 $2,350 $2,550

Increase in Income Ends Maintenance but Strict Compliance With Statute Required

Posted in Alimony / Maintenance, Financial Issues, Modifications

Recent Case from the Missouri Court of Appeals

Wife appeals the modification court’s judgment granting, in part, Husband’s motion to modify his maintenance obligation.

The purpose of maintenance is to meet the reasonable expenses of a dependent spouse during dependency. Modification to an order for maintenance is necessary only upon a substantial and continuing change of circumstances, which was “unknown and unforeseeable” that make the order unreasonable. This statutory standard for modification is designed to be ‘strict’ so as to discourage and prevent recurrent and insubstantial motions for modification.

In this case, the modification court did not err in terminating Ulrich’s maintenance obligation, in that twelve years post-dissolution, Wife can now satisfy her monthly reasonable needs without contribution from Husband. Furthermore, Wife’s increase in income was not “foreseeable” at the time the dissolution judgment was entered. Further, the trial court did not err in awarding Husband $7,000 in attorney’s fees. Husband successfully litigated the merits of his motion to modify, and the modification court found Wife’s conduct during the course of litigation to be more egregious.

Missouri Court of Appeals, Eastern District – ED105096

Spousal Maintenance (f/k/a alimony) reduced based on medical disability

Posted in Alimony / Maintenance, Child Support and Alimony, Financial Issues, Modifications

Recent Missouri case:  On a motion to modify (reduce) maintenance, evidence of a substantial and continuing change included “detailed evidence” of Movant Husband’s stroke-induced disability and reduced income, and no evidence of an increase in Wife’s income was necessary.

The trial court: (1) did not abuse its discretion in dismissing ex-wife’s motion to dismiss under Missouri Rule of Civil Procedure 67.03 because the facts showed that ex-Husband was unable to comply with the existing maintenance order following his stroke; (2) did not err in granting ex-husband’s motion to modify maintenance, because he met his burden to show a change in circumstances so substantial and continuing as to make the original maintenance order unreasonable; and (3) did not abuse its discretion in awarding ex-wife only a partial amount of attorney’s fees.

Missouri Court of Appeals, Eastern District – ED104502

Guardianship of children approved upon showing of unfitness and inability to parent

Posted in Adoption and Guardianship, Child Abuse, Custody and Visitation, Family Law

Recent Case from the Court of Appeals:   Letters of Guardianship Affirmed

Mother appeals from the trial court’s judgment, which appointed Petitioners as guardians over two minor children. The trial court’s judgment found the children’s parents (Mother and three separate fathers) unwilling, unable, or unfit to fulfill their duties as guardians under Section 475.030.4(2). On appeal, Mother contends that no substantial evidence supported a conclusion that she was unfit.

JUDGMENT AFFIRMED.

Substantial evidence in the record, including addiction, cohabitation with an addict, feeding children food to which they were allergic, and lack of age appropriate car seats, supported the trial court’s finding that Mother was unfit to assume the duties of guardianship.

A challenge to each finding singly does not constitute a challenge to the record as a whole. Nothing bars the circuit court from both appointing a guardian for appellant’s children, based on appellant’s unfitness and inability to parent, and allowing visitation with children by appellant to preserve the parent/child relationship.

Missouri Court of Appeals

Eastern District – ED104772

New Missouri Child Support Guidelines in Effect as of July 1, 2017

Posted in Child Support, Divorce, Financial Issues

Effective July 1, 2017, Missouri’s New Form 14 and new Child Support Guidelines took effect.  Notable changes to the previous law include:

  • Changes to the presumed amounts in the chart, especially at the lower and higher income levels
  • Changed schedule for calculating the overnight credit
  • New directions and comments for use, and new instructions for calculating support when a third party has been awarded custody
  • New method for calculating the line 5 basic support amount including a low income test
  • New Form 14

All child support orders entered after July 1, 2017 must comply with the new law, forms, and guidelines.

Modification of Another State’s Custody Order Depends on The Other State Releasing Jurisdiction

Posted in Child Custody and Visitation, Custody and Visitation, Divorce, Family Law, Modifications

Recent Case from the Court of Appeals:  States have continuing, exclusive jurisdiction over their custody judgments until released by the rendering state.

The Uniform Child Custody Jurisdiction and Enforcement Act conditions authority of any State to modify another State’s custody order on whether the residences of parties or child remain in the other State, as states generally retain exclusive jurisdiction over their judgments unless the parties and the child reside elsewhere.  The state rendering the judgment must make that determination. Because there is no determination in this record by the California court either finding that it no longer has continuing, exclusive jurisdiction over its custody orders or declining to exercise that jurisdiction because Missouri is more convenient, the Missouri court did not have authority to modify those custody orders under the Uniform Child Custody Jurisdiction and Enforcement Act.

Missouri Court of Appeals, Eastern District – ED105083

Child support continued for child over age 18 with mental disability

Posted in Assets and Debts, Child Support, Child Support and Alimony, Financial Issues

Recent Case from the Missouri Court of Appeals:

Mother appeals from a judgment modifying her child support obligation to continue support for a child beyond the age of eighteen. Mother argues that it was against the weight of the evidence to find the child mentally incapacitated from supporting himself, and that no substantial evidence supported finding that the child was insolvent.

Judgment Affirmed.

Missouri law states that child support terminates at age 18 for a child who is not enrolled in post-secondary education or 21 for a child who is. Statutes also allow an extension of that obligation for a child who cannot support themselves due to mental disability and financial insolvency. It was not against the weight of the evidence for the trial court to find the child mentally incapacitated from supporting himself.  Mental disability is not a matter of lay opinion, but appellant’s child had undisputed diagnoses of mental disorders, and lay opinion—Father’s first-hand observations as to the extent that the disorders hindered child’s self-support was sufficient evidence for circuit court to extend appellant’s obligation.  Further the child’s income is outpaced by his expenses, which consist of spending drawn from his disability benefit and the expenses incurred by Father.  The child would be unable to meet his financial needs without Father’s help, so the circuit court did not err in extending the child support obligation.

KK vs. JK

Missouri Court of Appeals, Western District – WD79931

Grandparent Visitation must be done as a motion to modify if a divorce decree exists; visitation denied due to best interests of the child

Posted in Custody and Visitation, Modifications

Recent Case from the Missouri Court of Appeals:

Father appeals from a judgment denying his motion to modify child support. Grandparents appeal from the same judgment which also denied their petition seeking grandparent visitation.

The Grandmother did not seek visitation in a manner authorized by statute because the visitation petition was an independent petition seeking visitation rights rather than a motion to modify the dissolution decree.

Missouri law states that the court shall determine if the visitation by the grandparent would be in the child’s best interest or if it would endanger the child’s physical health or impair the child’s emotional development. Visitation may only be ordered when the court finds such visitation to be in the best interests of the child.

Visitation with Grandmother was found not to be in the child’s best interests because Father had been convicted of a crime involving the children and the grandmother had chosen her son over the grandchildren. The trial court’s characterization of Father’s criminal status as a felony vs a misdemeanor was immaterial. Because Grandparents sought collective visitation and reside together, the basis for denying Grandmother’s petition apply equally to Grandfather. In any event, Grandfather failed to sustain his burden that visitation would be in the child’s best interest and would not endanger the child’s physical health or emotional development.

 

Missouri Court of Appeals

Western District

WD79567

Child support paid by third party does not equal child neglect; Proposed Judgments prepared by counsel should not be signed verbatim.

Posted in Adoption, Adoption and Guardianship, Legal Proceedings, Parenting and Adoption, Trials

The Constitution protects the fundamental right of a parent to custody of their child even though child’s best interests are the goal of statutes governing adoption.  An action for adoption without parental consent terminates, without a separate action for termination of, parental rights.  Adoption statutes afford relief on clear, cogent, and convincing evidence of abandonment or neglect.  Those statutes make relevant the events of the preceding six months, during which parent maintained regular and substantial contact with child, rendering evidence of parent’s conduct during a more distant time less than clear, cogent, and convincing evidence of abandonment.  Satisfaction of child support obligation, from third party instead of directly from parent, does not clearly, cogently, and convincingly show willful neglect.

For the circuit court to sign a proposed judgment exactly as prepared by a party may not be erroneous, per se, but our appellate courts have repeatedly chastised our trial courts for adopting, verbatim, proposed judgments because there may be a problem with the appearance, and even the most conscientious advocate cannot reasonably be expected to prepare a document which would reflect precisely the trial court’s view of the evidence.

S.S.S., L.W.V. & M.T.S.-V., Respondents, v. C.V.S., Appellant.

Missouri Court of Appeals, Eastern District – ED104249

Originally posted by the Missouri Bar