Missouri Divorce & Family Law Blog

Missouri Divorce & Family Law Blog

for Missourians struggling with divorce and family law matters

Guardian Ad Litem recommendation not binding; Custody findings required; Property division must be fair, not necessarily equal

Posted in Assets and Debts, Child Custody and Visitation, Custody and Visitation, Divorce, Family Law, Guardian Ad Litem, Property Division, Property-Debt Division

Recent Ruling:  Court not required to follow Guardian Ad Litem Recommendation, Specific findings under the 8 statutory factors required in Judge tried case

Father appeals from the trial court’s dissolution judgment as to child custody and property division in favor of his former spouse, Mother. Father asserts that the trial court erred by: (1) failing to make specific findings of fact supporting its custody award as required by statute; (2) determining custody without the recommendation of the guardian ad litem; and (3) awarding Mother $108,500 as her interest in the marital residence

Case Reversed

No law requires guardian ad litem to make a recommendation or circuit court to follow it. However, statute provides that any custody arrangement not agreed to by the parties must have support in specific findings of fact. With regard to the marital property, the source-of-the-funds rule provides that property acquired during the marriage with funds part marital and part separate is part marital and part separate, but division of property need not be equal, only fair and equitable.

No. ED102196

Eastern District Court of Appeals

Filed November 3, 2015

Property division in Missouri divorce is final and cannot be modified

Posted in Assets and Debts, Divorce, Financial Issues, Property-Debt Division, Res Judicata and Collateral Estoppel, Retirement Plans and Division

Recent Case:  Division of Property is final and non-modifiable in divorce proceedings.  Statute enacted after the end of divorce case does not apply retroactively.

In a recent case from the Missouri Court of Appeals, Wife appeals the trial court’s determination that her agreement to turn over her survivor interest in her former husband’s (“Father”) pension benefits to his sons from his first marriage was enforceable. As part of their dissolution settlement, Father and Wife agreed that, should Father predecease Wife, she would pay over any survivor benefits from Father’s pension to Father’s sons. The dissolution court approved the separation agreement and made it a part of the judgment dissolving the marriage. Upon Father’s passing, the sons requested that Wife turn over the benefits she was receiving. When she declined, the sons filed suit. Wife argued that: (1) the separation agreement was invalid and unenforceable because Missouri statutes do not allow the transfer of pension survivor benefits and because the transfer of benefits is against public policy; and (2) the dissolution court lacked authority to enforce such an assignment. The trial court determined that the agreement was enforceable, and ordered Wife to turn over any benefits she receives.

1.      When a dissolution court finds a separation agreement to be fair, the terms of the separation agreement are binding on the trial court. The court does not retain the power to modify the terms of the separation agreement that is incorporated into a judgment and decree of dissolution.

2.      Res judicata, or claim preclusion, precludes the parties from later bringing claims arising from the same set of facts that could or should have been pursued in the prior action, and unequivocally applies to a defense that a defendant failed to raise in the prior action.

3.      If Wife believed that the agreement to pay over the survivor benefits to the sons was contrary to a statute that bans such assignments, her remedy was to appeal the judgment, not challenge the judgment in a proceeding, many years later.

4.      Res judicata also applies to Wife’s claim that a subsequently enacted statute bars the assignment of the survivor benefits, because the law bars the retrospective application of statutes to cases that have achieved final resolution.

5.      Subject matter jurisdiction is conveyed by the constitution, not statutes, and under the constitution, the dissolution court had jurisdiction over Wife and Father’s dissolution proceeding. Thus, even if the dissolution court did not have statutory authority to order Wife to pay over the survivor benefits, it still had subject matter jurisdiction over the case. So long as the dissolution court had subject matter jurisdiction over the proceeding, its judgment is not subject to collateral attack from a party to the judgment.



September 1, 2015

Western District


Relocation approved, custody changed from joint custody to sole custody

Posted in Child Custody and Visitation, Custody and Visitation, Modifications

Recent case:  Relocation must be in good faith and in children’s best interests; sole custody award appropriate when parents cannot jointly make decisions.

In a recent case from the Missouri Supreme Court, a mother sought to modify a judgment dissolving her marriage that had granted the parents joint legal and joint physical custody of their two children. The father appeals the circuit court’s judgment (1) approving the mother’s relocation to a different town and (2) modifying custody of the children from joint legal custody in favor of both parents to sole legal custody in favor of the mother.

Decision Affirmed.

Evidence supported the circuit court’s approval of the mother’s relocation as being in good faith. Evidence included that the mother lost her teaching job and found a new teaching job that would require her to move about 56 miles away, that she had identified a good school for the children in the new area, and that the children were familiar with that area and would have a support network there as the mother’s family lived nearby. Evidence also supported the circuit court’s finding that relocation was in the children’s best interests.  In particular, relocation would allow the children to distance themselves from the parents’ toxic relationship.

Substantial evidence also supported a change from joint to sole legal custody in the mother based on the evidence that the parents’ relationship was so contentious that they could not function effectively, communicate, or make joint decisions regarding the children, and that the father’s negative conduct had a deleterious impact on the children.


PLP, Appellant vs. DMP, Respondent.

Missouri Supreme Court – SC94488

Conduct not to level of stalking to support protection order

Posted in Domestic Abuse, Family Law, Spousal Abuse

Recent Case:  Respondent’s conduct did not rise to the level of stalking to support an order of protection.

Respondent appeals from the judgment of the trial court granting a full order of protection in favor of Petitioner.  Respondent argues the trial court erred in granting a full order of protection under Section 455.040 because Petitioner failed to prove by a preponderance of evidence that Respondent’s actions constituted “stalking” under Section 455.010(13).

Holding:  Reversed

Because of the potential stigma that may attach to an individual who is labeled a “stalker” under the Missouri Adult Abuse Act, trial courts must exercise great care to ensure sufficient evidence exists to support all elements of the statute before entering a full order of protection.

Section 455.010(13) defines “stalking” as:

When any person purposely and repeatedly engages in an unwanted course of conduct that causes alarm to another person when it is reasonable in that person’s situation to have been alarmed by the conduct.  As used in this subdivision:) “Alarm” means to cause fear of danger of physical harm;

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

(b) “Repeated” means two or more incidents evidencing a continuity of purpose.

Here, Respondent did not threaten any physical harm in the text messages. While he did attempt to summon Petitioner to his house in the middle of the night by getting her to deliver a pizza to him at 1:53 a.m., there is no evidence he did anything to cause Petitioner to fear physical harm. Also, in a videotaping incident, Respondent did not do anything to cause Petitioner to fear physical harm. Thus, the Court found it was not reasonable for Petitioner to fear she was in danger of physical harm based upon Respondent’s pattern of behavior. While his behavior was certainly unwanted and inappropriate, it does not amount to stalking, which is at issue here.

Missouri Court of Appeals

Eastern District


Filed May 19, 2015

Domestic Partnership does not constitute marriage for termination of spousal support (aka alimony)

Posted in Alimony / Maintenance, Divorce, Financial Issues, Marriage, Modifications, Trials

Recent case: Missouri law states that remarriage terminates spousal support unless expressly agreed or ordered otherwise. Domestic partnership does not qualify for this purpose.

Ex-Husband appeals the circuit court’s judgment denying his motion to terminate or modify maintenance. First, movant argues that the circuit court erred in denying his motion to terminate maintenance because his ex-wife remarried. Second, movant argues that the circuit court erred in denying his motion to modify maintenance because movant proved a substantial and continuing change in circumstances, while Respondent failed to adduce evidence to support a continued award of $1,800 per month of maintenance. Finally, movant argues that the circuit court erred in awarding Respondent’s attorney’s fees in the amount of $1,500 because the totality of the circumstances does not support an award of attorney’s fees.

Judgment upheld

The circuit court did not error in denying Movant’s motion to terminate or modify maintenance because (1) the cases cited by Movant to show that the trial court misapplied the law are distinguishable from the facts in the present case; most notably, there was a factual dispute here as to whether Respondent had a marriage ceremony (constituting a domestic partnership) and (2) the rental and health insurance expenses used by the court in calculating Respondent’s expenses were needed expenses and were supported by substantial evidence. We further conclude that the circuit court did not abuse its discretion in awarding Graham attorney’s fees because of the financial disparity between the parties and Respondent’s substantial amount owed in maintenance to Graham.

Missouri Court of Appeals, Western District – WD77399

No spousal support (alimony) award that leaves paying spouse negative income

Posted in Alimony / Maintenance, Divorce, Uncategorized

Recent Case: Trial Court error in awarding Wife spousal support amount that left Husband with negative budget, Court must also consider Wife’s ability to contribute

Husband appeals from the trial Court’s judgment awarding $1,000 in monthly maintenance to his former spouse.  Husband asserts that the trial court abused its discretion in that the award exceeds his ability to pay.

When determining the amount of maintenance, a trial court must balance the reasonable needs of the spouse seeking maintenance against the ability of the other spouse to pay. Here, the trial court acknowledged that its award left Husband at a monthly deficitof over $500. Additionally, a trial court should consider the obligation of a receiving spouse to contribute to her own support. Here, the court specifically found Wife capable of minimum wage work but assumed in its calculations that she would remain unemployed indefinitely.

Decision: Reversed
Filed April 21, 2015
Missouri Court of Appeals Eastern District

Employer required to garnish child support

Posted in Child Support, Child Support and Alimony, Divorce, Financial Issues

Recent case: Employer is required by law to comply with child support wage garnishment orders from the Family Support Division

The employer of a father ordered to pay child support appeals the trial court’s judgments in favor of the Department of Social Services Family Support Division after the employer failed to comply with income withholding orders.

The trial court ruling was affirmed.

When a wage garnishment for child support is sent to an employer, the employee has 30 days to contest the order based only on mistakes of fact as to the identity of the employee or the amount of the withholding (but not the amount of child support actually owed). Garnishment lasts until employer receives notice to cease, with liability to the State for failure to comply.

The trial court was correct in denying employer’s motion to join the child support obligor-employee as a necessary party. Section 454.505 clearly imposes liability directly on employers for failure to comply with the Division’s withholding orders. It does not allow employers to be co-defendants because their underlying child support obligation is not at issue. The only question is whether the employer complied with the Division’s orders.

The trial court’s finding that the employer failed to comply with the Division’s orders is supported by substantial evidence and is not against the weight of the evidence. The Division presented records showing that the employer failed to withhold and pay the ordered amounts. The employer’s attempt to attack the Division’s processes and the employee’s underlying arrears was irrelevant.

Missouri Court of Appeals, Eastern District – ED101158

Filed March 31, 2015


Attorney fee expenses cannot be considered part of reasonable monthly expenses in maintenance modification

Posted in Alimony / Maintenance, Family Law, Financial Issues, Modifications

Recent case: Attorney fees are not a substantial and continuing change in circumstances that supports a modification of maintenance, especially when the fees are for the modification case.

Husband appeals the judgment modifying the divorce decree increasing his maintenance obligation from $4000 to $4400 per month.

Holding: Reversed and remanded to trial Court

The trial court erred in including attorney fees in its calculation of Wife’s reasonable monthly expenses. In order to modify maintenance, the Court must find that there is a substantial and continuing change in circumstances from when the order was originally entered. Because the trial Court based its findings that Wife was unable to meet her reasonable needs on a calculation that was incorrect because it included attorney fees, the case was reversed and remanded back to the trial Court for reconsideration of whether a substantial and continuing change in circumstances exists, without the consideration of attorney fees, to grant a motion to modify.

Missouri Court of Appeals
Eastern District ED99952
Filed February 10, 2015

10 facts about divorce that every divorcing parent should consider

Posted in Family Law, Getting a Divorce, Marriage and Family

The following points are from a recent article on today.com, published by a divorce mediator.  If you are in the middle of a divorce or contemplating a divorce in Missouri, these are all excellent points to think about.

10 facts about divorce you should consider:

1.     Even if you are the one who wants to get divorced, you may often feel sad, loss, fear, anxiety.

2.     Just because you are divorced, all of your problems don’t just disappear. You still need to deal with your ex — particularly if there are children involved.

3.     Once the divorce papers are signed, now the real work begins. You need to heal from the emotional turmoil of a bad marriage and learn to be happy alone before you can enter a new relationship.

4.     Your kids may not tell you how they feel, though it may come out through their behaviors.

5.     Don’t rush through the process, as tempting as that is. Everyone needs time to adjust and make good, clear decisions that you can live with for many years to come.

6.     You may lose some friends — the ones you thought would be there for you may not be, and vice versa.

7.     Let go of your anger and resentment toward your spouse — this can only hurt you and your children and no good can come from it!

8.     Holidays are so hard, especially in the first few years. Start new traditions and make sure you are not alone.

9.     Spare your children from bad-mouthing your spouse no matter what: This can actually crush their self-esteem.

10. Don’t rush to start dating again.

Click here to read the full article and further explanations on each of the above points.

Parenting plan must have written time schedule and address holidays

Posted in Child Custody and Visitation, Custody and Visitation, Divorce, Getting a Divorce, Legal Separation

Recent Case:  Missouri parenting plans must have specific, written parenting time schedule and must address holidays.

Mother appeals from a judgment entered in the Circuit Court of Atchison County dissolving her marriage to Father. Mother challenges the trial court’s designation of Father’s home as the child’s residence for school and mailing purposes and its division of parenting time in its parenting plan.  The case was affirmed in part, reversed in part.

The trial Court found that the evidence at trial supported the Court’s findings regarding custody and parenting time.  However, Missouri statute requires that a parenting plan have a specific written parenting time schedule that addresses various holidays and other specified occasions. The trial court is not free to disregard any of the enumerated events. The parenting plan failed to address Presidents’ Day and Martin Luther King Jr. Day, both of which are school holidays specifically referenced in the Parenting Plan Guidelines issued by the Missouri Supreme Court, and may have failed to address other school holidays not specifically identified in Mother’s brief. The failure to account for such holidays in the parenting plan constitutes reversible error, requiring remand to permit the trial court to modify the parenting plan accordingly.

Missouri Court of Appeals


January 13, 2015