Missouri Divorce & Family Law Blog

Missouri Divorce & Family Law Blog

for Missourians struggling with divorce and family law matters

Failure to include holiday or vacation schedule in parenting plan is trial court error; Voluntary reduction in Income does not support reduction in child support

Posted in Assets and Debts, Child Support, Child Support and Alimony, Divorce, Family Law, Financial Issues, Modifications

Recent Case from the Missouri Court of Appeals:  Parenting plans must contain holiday and vacation schedules; voluntary reduction in income does not support child support reduction

Mother appeals the trial court’s judgment of modification for a failure to properly apply the law and abusing its discretion in its judgment of modification. Mother contends, in relevant part, that: (1) the trial court erred in its modification because the parenting plan failed to include any holiday or vacation schedule for the minor children as required by statute; (2) the modification failed to properly calculate child support; and (3) the judgment failed to take into account the respondent’s voluntary reduction in income;

Holding:  Affirmed in part, Remanded in part

The trial court judgment that considered the particular needs of each child in its modification supported a parenting plan that awarded separate parenting time for each child. Missouri law adjusts the child support amount for overnight visits numbering 36 per year or more, so the trial court did not err in denying an adjustment based on 24 overnight visits per year.  In addition, voluntary reduced income caused by the dissipation of one’s own talents, in this case failure to comply with federal employee wage requirements resulting in substantial tax liability and subsequent bankruptcy filing, does not support a reduction in child support.

Missouri law requires the parenting plan to include a schedule of physical custody during enumerated holidays and vacations and omission of that schedule requires a remand back to the trial Court.

WS vs. ME

Missouri Court of Appeals, Western District


Restrictions on visitation, and subsequent removal of them, both require a ruling on child’s best interest

Posted in Child Custody and Visitation, Child Support, Child Support and Alimony, Custody and Visitation, Family Law, Financial Issues, Modifications

Recent Case:  When a custody order contains restricted visitation, those restrictions must not be lifted, or even phased out, until a subsequent hearing to determine whether removal of the restrictions is in the child’s best interest.

Evidence that Father has not sought employment within his expertise supported an imputation of income for determining child support.  The child’s best interests determine custody, including visitation.  Modification of custody requires proof that circumstances have substantially changed since, or at least facts unknown to circuit court when, circuit court last ruled on custody.  The former included evidence of deteriorating communication.  The latter is more likely when the parties settle as to custody and included evidence of drug manufacturing. Those facts supported modification of custody, even though the State dismissed related criminal charges, and notwithstanding appellant’s testimony and arguments to the contrary.  Such evidence also supported restrictions on visitation.  Reduction in such restrictions scheduled in parenting plan, without any ruling that such reductions were in the child’s best interest when they occurred, constituted error and mother’s discretion to demand more drug tests was no substitute for the statutory standard.  The case was remanded to the trial court to re-draft parenting plan, with discretion to hear fresh evidence if the circuit court chooses.


BR and OR v. LN

Missouri Court of Appeals-Western District

WD 79278

New Missouri custody law seeks to maximize time with each parent, takes effect August 28

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

Governor Jay Nixon signed House bill 1550 into law on July 1, 2016, which takes effect August 28, 2016.  This law has been dubbed as an equal custody law, or 50/50 custody law, but that is not an entirely accurate description.  Rather than specifically stating that custody should be equal, the bill’s wording is to “maximize” a child’s time with each parent to the “highest degree possible”, along with more stringent enforcement procedures and remedies.  The bill also bans “standard visitation” parenting plans.   The changes made by the new law are as follows:

  1. Within 120 days of August 28, 2016, Parenting plan guidelines shall be made available on the office of the state courts administrators website.
  2. When the parties have not reached an agreement on all issues relating to custody, the court shall enter written findings of fact and conclusions of law, including, but not limited to the 8 statutory factors in the current version of the statute.
  3. The Court shall not presume that a parent, solely because of his or her sex, is more qualified than the other parent to act as a joint or sole legal or physical custodian of the child.
  4. Every custody order entered after August 28, 2016, must state the following: “In the event of noncompliance with this order, the aggrieved party may file a verified motion for contempt. If custody, visitation, or third-party custody is denied or interfered with by a parent or third party without good cause, the aggrieved person may file a family access motion with the court stating the specific facts that constitute a violation of the custody provisions of the judgment of dissolution, legal separation, or judgment of paternity. The circuit clerk will provide the aggrieved party with an explanation of the procedures for filing a family access motion and a simple form for use in filing the family access motion. A family access motion does not require the assistance of legal counsel to prepare and file.”
  5. No court shall adopt any local rule, form, or practice requiring a standardized or default parenting plan for interim, temporary, or permanent orders or judgments. Notwithstanding any other provision to the contrary, a court may enter an interim order in a proceeding under this chapter, provided that the interim order shall not contain any provisions about child custody or a parenting schedule or plan without first providing the parties with notice and a hearing, unless the parties otherwise agree.
  6. The court shall consider, in a proceeding to enforce or modify a permanent custody or visitation order or judgment, a party’s violation, without good cause, of a provision of the parenting plan, for the purpose of determining that party’s ability and willingness to allow the child frequent and meaningful contact with the other party.
  7. The state courts administrator shall create a handbook or be responsible for the approval of a handbook outlining the following: Guide lines as to what is included in a parenting plan in order to maximize to the highest degree the amount of time the child may spend with each parent; and this handbook shall be readily available online and shall be served along with the Petition and summons.

LAGERS Pension divided as a future asset

Posted in Alimony / Maintenance, Assets and Debts, Divorce, Financial Issues, Property Division, Property-Debt Division

Recent Case:  LAGERS Pension present value of zero but future payment divided

Missouri Statutes require division of marital property, including local government retirement system benefits. The Circuit court treated the defined benefit pension as a future asset, requiring the beneficiary to pay the ex-spouse a fixed amount of the future payment, and assigning zero present value.  Such treatment is consistent with statutes requiring division of property and does not constitute deferred maintenance.  The nearly equal distribution of property stood on circuit court’s findings on factors set forth by statute. Misconduct that has affected the burdens within the marriage may affect the distribution of marital property but circuit court may still distribute marital property equally.

The trial court did not abuse its broad discretion in its distribution of marital property, in that the division of marital property was equitable, the order was definite and capable of enforcement, and the trial court considered the factors set forth in Section 452.330, RSMo.

Missouri Court of Appeals

Eastern District – ED102483

Filed July 19, 2016

Marijuana use not grounds for termination of parental rights

Posted in Child Abuse, Child Custody and Visitation, Family Law, Guardian Ad Litem, Parenting and Adoption, Trials

Recent Case: Marijuana use under the level of chemical dependency not grounds for termination of parental rights

Father appeals from the judgment terminating his parental rights. Grounds for termination of parental rights require clear and convincing evidence, so Court of Appeals examines evidence contrary to judgment.  Grounds include abuse or neglect and failure to rectify.  In this case there was not substantial evidence to support the trial court’s finding that Father’s marijuana use constituted a “chemical dependency” as defined in Section 211.447.5(2)(b) or Section 211.447.5(3)(d). Therefore, that condition cannot support termination on grounds of either abuse and neglect or failure to rectify.

Father’s refusal to comply with the service plan’s directive and court orders to become and remain drug free, however, could support termination on the failure to rectify ground, but only if there were also adequate findings supported by substantial evidence that the drug use itself was potentially harmful to the child. No such findings were made in this case, nor was there evidence of inability to care for the child.  Evidence of a failure to meet a condition of the service plan, without findings of fact—especially a finding related to harm—does not support judgment that is based on failure to rectify.  Coupled with the misstatements of the law regarding the required findings under Section 211.447.5(3), the judgment must be reversed.

Missouri Court of Appeals for the Eastern District


Filed July 12, 2016

Modification of Maintenance appropriate on Voluntary Retirement and Increase in Resources of Obligee; No entitlement to attorney fees just because of lesser income.

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

Recent Case:  Wife appeals Judgment of the Circuit Court modifying her spousal maintenance award and denial of attorney fees

Statutes base maintenance on, and limit it to, need, and allow modification when a substantial and continuing change in circumstances make the initial award unfair.  Such change may include involuntary retirement, on which the record supports the circuit court’s findings, with evidence that partnership agreement required retirement and that further employment would be expensive.  It may also include an increase in obligee’s resources, on which the record supports the circuit court’s findings, with evidence that obligee receives a monthly payment from obligor’s annuity and that obligee’s income is increasing.

Statutes assign authority to award attorney fees to circuit court exclusively.  Nothing entitles a party of lesser income, having sufficient resources to pay their lawyer, to an award of attorney fees.

Judgment Affirmed on other grounds

FB v. LB

Missouri Court of Appeals, Eastern District

ED 103035

Filed May 24, 2016

2 year statute of limitations applies to set aside a paternity and child support order, even if fraud exists.

Posted in Child Support, Family Law, Financial Issues, Paternity

Mother and Father (T.B.) had a baby in 2000.  Mother told T.B. he was the father, and he signed an affidavit acknowledging paternity.  The Family Support Division made an administrative determination that T.B. was the legal father, and ordered T.B. to pay child support for the child in February 2001.

Sometime prior to June 2010, to clear her conscience, Mother told T.B. that he was not the biological father.  Father filed a declaration of non-paternity on August 27, 2012.  He attached a DNA test report showing he was not the biological father of the child.  T.B. sought relief under Rule 74.06(d), asserting that Mother had perpetuated fraud against him by making false statements to him that he was the biological father when she knew he wasn’t.

The trial court concluded that T.B.’s right to bring an action for extrinsic fraud was foreclosed by the statutory time limit for him to contest paternity, which had run.

T.B. appealed.

Held: Affirmed.  The trial court properly found T.B.’s petition to be out of time, but for the wrong reason.  The trial court reasoned that T.B. had completed the DNA test results on June 15, 2010, although he did not pick them up until August 2012, shortly before he filed his petition.  Therefore, pursuant to § 516.280, RSMo, the statute of limitations for T.B. to act had run.

However, the appellate court determined that § 516.280 was inapplicable here because § 210.854.specifically sets forth the time in which a legal father may file a petition to set aside paternity (any time prior to December 31, 2011, or, after that date, within two years of the entry of the original judgment of paternity).  Because T.B. acknowledged his paternity in 2000, he only had until December 31, 2011, to file a petition to set aside that paternity judgment, which he did not do.  Section 210.854.1 does not authorize the time to be extended for any reason, including fraud. (Emphasis added).  The specific statute limiting a legal father’s time frame does not entitle T.B. to relief under Rule 74.06(d).

Source: Missouri Courts Bulletin April 2016

Spousal Support (Maintenance) Denied in Missouri Divorce

Posted in Alimony / Maintenance, Child Support and Alimony, Divorce, Family Law, Financial Issues, Getting a Divorce, Property-Debt Division

Recent Case: Missouri Court of Appeals upholds Judgment denying spousal support when sufficient property is awarded

Wife appeals from the trial court’s judgment that dissolved her marriage with Husband, divided marital property and marital debt, and denied her an award of maintenance. Wife challenges only the trial court’s denial of an award of maintenance.

Judgment Affirmed.

In an action for the dissolution of marriage, Missouri statutes allow an award of maintenance to spouse who cannot meet reasonable expenses through appropriate employment and property, including that awarded in dissolution action.

The evidence established that Wife was capable of working a full-time job and that Wife’s expenses were inflated on her income and expense statement. Further, the judgment awarded Wife her individual retirement account and half of Husband’s retirement account. Wife’s income and access to retirement account distributions combined to afford her with sufficient assets to provide for her reasonable needs so that the trial court did not abuse its discretion in denying Wife maintenance.

Missouri Court of Appeals, Western District – WD78527

Filed March 15, 2016

Child’s refusal to visit other parent no excuse to violate custody order; Parent held in Contempt

Posted in Child Custody and Visitation, Custody and Visitation, Divorce, Family Law, Legal Proceedings

Recent Missouri Case:     Parent responsible for violating the court order when child refuses to visit the other parent as required in the court ordered parenting plan

Appellant D.R.P. (“Mother”) appeals the judgment of the Circuit Court of Jackson County holding her in civil contempt of the court’s judgment regarding the parenting plan for M.P.P. (“Father”) with their minor child C.P. (“Daughter”). In her sole point on appeal, Mother argues the trial court erred in finding that she willfully, intentionally, and contumaciously disobeyed the court’s judgment and parenting plan because there was not substantial evidence to support such a finding.

The trial court did not err in holding Mother in contempt of court because there is substantial evidence to support the trial court’s finding that Father made a case for civil contempt and Mother failed to establish that her failure to enforce the parenting plan was not due to her own intentional and contumacious conduct. The Judgment ordered parents to execute parenting plan including parenting time.  The record shows that, at respondent’s scheduled parenting time, appellant picked up child after school and sat silent with child in car when child refused to accompany respondent on multiple occasions.  Such conduct “undermined” the parenting plan.


Missouri Court of Appeals, Western District – WD78541

All financial resources can be considered for support, but parent must have some level of control over gifts and inheritances to count as income

Posted in Alimony / Maintenance, Assets and Debts, Child Support, Child Support and Alimony, Divorce, Family Law, Financial Issues, Modifications

Courts Bulletin: No financial resource is exempt from the court’s consideration for child support and maintenance calculation purposes. However, financial gifts from a parent or third party and lump-sum inheritances/financial gifts are considered as to the level of control a parent has over said gifts and how they are used.

Recent Case No. 102017 (Mo. App. E.D., October 27, 2015), Clayton, J.

The parties were married in May 1998 and had four children. The trial court entered a consent judgment in March 2011 granting the parties joint legal and joint physical custody. Father, who was the sole owner of a catering family business at the time of the dissolution, was to pay Mother $2,500 per month in child support (an agreement above the Form 14) and $7,500 in maintenance.

Mother then filed a modification to increase Father’s child support obligation and reduce Father’s maintenance obligation. The parties agreed that Mother should have sole legal sole physical custody, and Father be awarded supervised visitation.

Father suffered from a very serious drinking problem, and squandered away a great deal of money from the family business on alcohol and lavish trips. At the time of the modification, Father’s Father (Sch. Sr.) had executed a warrant and purchased back 85% of stock in the family business because his son failed to make payments on a $1.35 million promissory note. Father’s parents paid for several stints in rehab, five months of his child support obligation, improvements to Father’s house, and Father’s attorney’s fees. Father no longer had anything to do with running the family business.

The trial court rejected a Form 14 that set Father’s child support obligation at $1,514 and ordered $5,000 per month in child support and $1,500 per month in maintenance.

Father appealed.

Held: Reversed and remanded. Among other points, Father argued that the support he received from his parents should not be taken into consideration by the court when determining a child support amount. The controlling cases on whether funds from parents or other third parties should be considered for support purposes are Thurman v. Thurman, 95 S.W.3d 172 (Mo. App. 2003) and In re Marriage of Petersen, 22 S.W.3d 760 (Mo. App. 2000).

For lump sum gifts and financial assistance from third parties to be considered, the court must examine whether said funds are given directly to the parent or if he/she had any control over how the funds were used.

In the case at bar, the trial court erred in calculating funds from the family business (from which Father once routinely had access) as well as the assistance from Father’s parents in its support calculation purposes. Sch Sr. testified that Father was to have nothing to do with the family business and both parents testified that they paid specific expenses for Father rather than turned the money over to his control.

Because the trial court erred in determining Father’s financial resources, both orders of child support and maintenance were remanded for further proceedings

Source for Post:  Missouri Bar Courts Bulletin