Missouri Divorce and Family Law Blog

Modification of grandparent custody to Mother solely requires change in circumstances; best interest of child

Kansas City Divorce Attorney Mark Wortman — Sat, 15 Jun 2013 09:05:27 -0600

Recent case: Missouri Court of Appeals, Eastern District - ED99303

Grandparents appeal from the judgment of the trial court modifying a 2009 custody order changing an arrangement of joint custody between grandparents and Mother to an award of sole legal and physical custody to Mother. Grandparents argue the trial court erred because: (1) it incorrectly applied a statute pertaining to third party custody rather than the change in circumstances standard and; (2) it incorrectly found a change in circumstances sufficient to warrant modification and that the modification was not in the best interests of the child.

Holding: AFFIRMED.

Modification of a child custody decree is governed by Section 452.410 which states, in relevant part, "the court shall not modify a prior custody decree unless . . . it finds, upon the basis of facts that have arisen since the prior decree or that were unknown to the court at the time of the prior decree, that a change has occurred in the circumstances of the child or his custodian and that the modification is necessary to serve the best interests of the child."

Pursuant to Section 452.410, modification from joint to sole custody requires a substantial change in circumstances since the original custody order, of either the child or the child's custodian, and modification must be in the best interests of the child. Because Mother and Grandparents had joint custody of Child pursuant to the 2009 order, Section 452.410 requires a substantial change in circumstances of Child, Grandparents, or Mother. Changes in employment and marital status are substantial changes that can support modification of a child custody order, and both occurred in this case.

The Court then looked to the best interests of the child. The trial court's modification places child with her biological mother in a two-parent household that will allow Mother and Child to spend more time together. Additionally, child's relationship with grandparents can continue as grandparents were awarded visitation on Monday through Thursday from 3:00pm until 7:00pm. There is insufficient evidence to suggest that this is not in the best interests of the child, and the judgment is affirmed.

Trial court must identify all property as marital or non-marital in Missouri divorce proceeding; specific values not required

Kansas City Divorce Attorney Mark Wortman — Sat, 01 Jun 2013 10:51:42 -0600

Recent Ruling: MP v. DLP Missouri Court of Appeals, Western District - WD75647

Husband appeals from the trial court's judgment and decree of dissolution of marriage with respect to its division of property. Husband claims that the trial court erred in (1) awarding Wife an account as nonmarital property, though not expressly designated by the trial court as either marital or nonmarital, (2) awarding a 1919 Studebaker to Husband presumably as marital property, though not expressly designated by the trial court as either marital or nonmarital, (3) failing to designate all property marital or nonmarital before dividing the marital property; (4) failing to designate a value for all of the property as required to determine if the marital property was divided in a just manner; and (5) dividing the marital property because the division was not just and was against the weight of the evidence.

Holding: Affirmed in part, reversed in part, and remanded for further proceedings.

(1) The trial court's judgment made express marital/nonmarital designations regarding some of the property. The judgment made additional reference to agreed marital/nonmarital designations. However, this fails to completely satisfy the trial court's statutory obligation designate all property as marital/nonmarital.

(2) The reference identifies Wife's account as marital property and the 1919 Studebaker as Husband's nonmarital property. The judgment does not otherwise designate these items.

(3) The trial court is not required to assign specific values to the marital property it divides.

(4) The trial court is not bound to accept either party's proposed valuation of property as exact. The trial court is free to find a valuation within the range of evidence offered by the parties.

(5) Until the trial court completes its task of designating all the property as either marital or nonmarital, it cannot be determined whether the division was fair and equitable.

Missouri Divorce FAQ: What is an Uncontested Divorce in Missouri?

Kansas City Divorce Attorney Mark Wortman — Sun, 26 May 2013 10:31:26 -0600

An uncontested divorce in Missouri is a divorce where both the Husband and the Wife are in complete agreement with all terms of the divorce before the case is filed. In almost all cases, if the case can be resolved as an uncontested matter, there will be substantial savings of both time and money, and perhaps most importantly, the parties will not be involved in a drawn out court battle that can have a negative effect on the children for years to come.

Most Missouri divorce attorneys will consider a case uncontested if there is only one attorney involved. It is important to note that an attorney can only represent one party in any divorce case. So, for an uncontested case, one party will be represented by an attorney, and the other party will be unrepresented, or pro se. If each party has their own attorney, most attorneys will consider the case to be contested, and will charge higher fees. It is possible, however, for one party to have an attorney working in a limited capacity, such as for document review, and the case will still be considered uncontested. While most contested cases end up being settled before trial, and thus become uncontested, for purposes of time and cost of the case, a divorce case that is “uncontested” is settled prior to filing.

In order for the case to be uncontested, the parties to the case must have reached an agreement on all of the following:

Division of property: including the home, vehicles, retirement plans, household and personal goods, debts, and any other property matters;
Parenting plan issues: including who is custodial parent, residential schedule, holiday schedule, joint or sole legal and physical custody, guidelines for physical custody, restrictions or conditions of parenting time
Child Support: Including monthly amount per form 14 vs. agreed upon amount, payment of health insurance premiums, non-covered medical care, educational expenses, and child care costs;
Spousal support (a.k.a. maintenance or alimony) if applicable;
Payment of attorney fees and costs of the case;

Because any one of the above issues can have a huge effect on the case and your rights under the law, it is well worth the money to hire a competent Missouri uncontested divorce attorney, and not to try to do it on your own. Many counties in Missouri will even allow the uncontested case to be submitted by affidavit, meaning without court date, as long as there is an attorney involved.

Selling the Marital Home: Missouri divorce decree requiring home to be sold must specifically designate conditions of sale

Kansas City Divorce Attorney Mark Wortman — Fri, 17 May 2013 15:53:40 -0600

Recent ruling NC v. CC Missouri Court of Appeals, Eastern District - ED95337

Husband appeals from the trial court's Amended Judgment and Decree of Dissolution of Marriage dated June 2, 2010, ordering Husband to pay monthly maintenance to Wife and dividing the parties' property and debts. Husband challenges the validity of the trial court's order, and the court's orders regarding maintenance and the division of property and debts.

Decision:

In a dissolution judgment ordering the sale of a marital residence, the judgment must specifically designate how the marital residence will be placed for sale, provide a time frame for selling, and any reasonable conditions upon the sale of the home as the trial court deems necessary. Here, the trial court's order directing the sale of the marital residence failed to set a time frame for the sale. The Court remanded for a new trial as it relates to maintenance, the division of marital property, and the division of marital debts, as the sale of the marital residence affects the division of marital property, maintenance, and debts.

Temporary interruption from enrollment because of extraordinary circumstances and intent to re-enroll constitutes exception to the continuous enrollment requirement; No overnight credit when overnights not likely; misconduct supports attorney fees

Kansas City Divorce Attorney Mark Wortman — Fri, 03 May 2013 13:40:12 -0600

Recent Ruling LP v. EP, WD75030 Missouri Court of Appeals

Following a bench trial, the trial court entered a judgment of dissolution, dissolving the marriage of Mother and Father. The trial court divided the marital property, established custody and awarded child support to Mother. On appeal, Father alleges the trial court erred in (1) "not making a just and equitable distribution of property" in that it accepted Mother's valuation of the home and not the appraiser's opinion; (2) ordering Father to pay a portion of Mother's attorney fees, alleging that there was no substantial evidence to support the award; (3) awarding child support for his nineteen-year-old son ("Son") because Son did not meet the statutory requirement of being enrolled in college by October 1 following high school graduation; and (4) in calculating the amount of child support owed because the court's Form 14 calculation did not contain an overnight visitation credit, nor did it accurately reflect Mother's monthly income.

AFFIRMED IN PART, REVERSED IN PART

Held: (1) because a party is qualified to testify as to the value of property and the court can believe or disbelieve either an owner or appraiser's valuation of property, the trial court did not err in accepting Mother's valuation of the marital home such that an equitable distribution resulted;

(2) because substantial evidence established Father's misconduct during the marriage and separation, as evidenced by incidents of domestic violence against Mother and Son, misuse of finances and his incarceration for felony DWI while the case was pending, the court did not err in awarding Mother a portion of her attorney's fees;

(3) Because Son had joined the National Guard in order to receive tuition assistance and planned to enroll one semester late following a required training period, the Court did not err in its award of child support for Son as he fits the statutory exception to emancipation; and

(4) with regard to the actual calculation of child support ordered by the court, there was error in the stated income of Mother, which both sides admitted, such that the court's award erroneously added $30 per month to Father's child support obligation and added to the child support arrearage owed by Father. Father was not entitled to overnight visitation credits based on evidence that overnight visits had not occurred during the separation and would likely not occur in the future so as to warrant a credit.

Missouri Divorce FAQ Series: How long will does a divorce case take from beginning to end

Kansas City Divorce Attorney Mark Wortman — Tue, 30 Apr 2013 13:34:30 -0600

The duration of a divorce in Missouri varies from case to case. Factors that determine length include how contested the case is, the cooperation of the parties, whether or not there are two attorneys involved, the complexity of the issues, whether or not there are issues of abuse or neglect of children and the appointment of a guardian ad litem, whether or not the case goes to trial, the county where the case is filed, involvement of experts, and other case specific factors.

On the short end, a Missouri divorce case that is completely uncontested, where only one party is represented by counsel, and the parties have signed written agreements for parenting matters (parenting plan), child support, property and debt division, and maintenance, can be completed in most cases in about 45-60 days from the date of filing, depending on the county. Note however that the length of time that is spent negotiating, drafting, and reviewing the agreements may add some time to this.

For a contested Missouri divorce case, where the parties are not in agreement at the beginning, but eventually come to an agreement resolving all of the issues without trial, the time frame usually runs in the range of 6 months, but again is county and case specific.

For a contested Missouri divorce case that goes all the way to trial, not counting post trial motions, appeals, or further proceedings, will often take between 6 months and 1 year, but could easily exceed that time frame depending on the county and the complexity of the case. In the event of appeal of a tried divorce case, the time frame will almost always exceed 1 year.

Note that there is a statutory 30 day waiting period for all Missouri divorce cases which starts on the day of filing, but it is rarely that even an uncontested case is completed this quickly, as the dockets of most courts will exceed the minimum waiting period.

Court must consider division of marital property before ordering spousal maintenance (alimony); Factors that determine amount of spousal support.

Kansas City Divorce Attorney Mark Wortman — Tue, 23 Apr 2013 13:44:28 -0600

In a recent ruling from the Court of Appeals, Husband appealed the trial Court's decision granting maintenance to the Wife, claiming, among other things, that the Court did not consider the Wife's award of marital property, and the ability to earn income from it, in its maintenance determination. The Court of Appeals agreed, remanding the case back to the trial court for consideration of that issue.

In a proceeding for divorce, a court may award maintenance to a spouse “only if it finds the spouse seeking maintenance: (1) Lacks sufficient property, including marital property apportioned to him, to provide for his reasonable needs; and (2) Is unable to support himself through appropriate employment ….”

After determining a spouse’s reasonable needs, the court next considers whether the spouse lacks sufficient property, including marital property apportioned to her, to provide for these reasonable needs, or is unable to support herself though appropriate employment

Although the trial court stated it determined the maintenance award “pursuant to Section 453.335,” the court failed to consider fully whether Wife could provide for her needs through use of property, including the marital property apportioned her in the dissolution. The court awarded Wife $282,540 in marital assets, including $260,500 in marital and nonmarital IRAs and retirement accounts. While a spouse is not required to deplete or consume his or her portion of the marital assets before being entitled to maintenance, a court must consider whether the spouse can earn income from his or her share of the marital property. “Failure to consider the recipient spouse’s reasonable expectation of income from investment of the marital property constitutes error.” The trial court may, after consideration, include or exclude income attributable to retirement and IRA accounts awarded as marital property in the calculation of maintenance; however, the court must first consider such income.

With regard to the calculation of the amount of maintenance, once the court determines a spouse is entitled to maintenance, the court shall order an amount it deems just, after considering all relevant factors, such as: (1) the financial resources of the party seeking maintenance, including the extent to which a provision for support of a child living with the party includes a sum for that party as custodian; (2) the time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment; (3) the comparative earning capacity of each spouse; (4) the standard of living established during the marriage; (5) the marital and nonmarital property apportioned to each party in the dissolution; (6) the duration of the marriage; (7) the age and physical condition of the spouse seeking maintenance; (8) the ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance; (9) the conduct of the parties during the marriage; and (10) any other relevant factors. The trial court has considerable discretion in determining the amount of the maintenance award.

Missouri Child Support Modification: 20% change in support amount, overnight credits, bonus and interest income, income tax dependency.

Kansas City Divorce Attorney Mark Wortman — Fri, 05 Apr 2013 12:13:43 -0600

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

Debts ordered to be paid in Divorce Decree are not dischargeable in Chapter 7 Bankruptcy

Kansas City Divorce Attorney Mark Wortman — Thu, 07 Mar 2013 13:05:18 -0600

Since 2005, the Bankruptcy law has been relatively clear that nearly any obligation resulting from a dissolution of marriage proceeding is not dischargeable in bankruptcy, whether that is in the nature of a domestic support obligation (11 USC 523(a)(5)) or a property/debt settlement (11 USC 523 (a)(15). The Missouri Court of Appeals has reiterated this in a recent ruling.

Recent case: Henderson v. Henderson, No. 98357 (Mo. App. E.D., December 26, 2012)

The parties were divorced in 2010. They entered into an agreement which set forth their respective obligations to pay certain debts of the marriage. Throughout the agreement, there was language that the agreement to pay said debts and hold the other harmless thereon was not dischargeable in bankruptcy. Nevertheless, the ex-husband sought the discharge of his portion of those obligations in a Chapter 7 bankruptcy filing in 2011. His petition for discharge was granted, and the ex-wife had not objected to same in bankruptcy court.

Thereafter, ex-wife filed an action against ex-husband for a contempt citation related to the debts he got discharged. The ex-husband argued that she waived her right to object by failing to file anything in the bankruptcy proceeding. The trial court only required the ex-husband to pay a portion of the debt in question. It determined that only a portion of the debt was in the nature of a domestic obligation non-dischargeable in bankruptcy.

However, it held the ex-husband responsible for a portion of the discharged debt. Both parties appealed.

Held: Reversed.

Under current Chapter 7 bankruptcy law (11 U.S.C. § 523 (a)), “‘all debts owed to a spouse, former spouse, or child of a debtor are non-dischargeable if incurred in the course of a divorce proceeding, notwithstanding the debtor’s ability to pay the debt or the relative benefits and detriments to the parties.’ In re: Tarone, 434 B.R. 41, 48 (Bankr. E.D. N.Y. 2010).”

Thus, a property settlement obligation encompassed by 11 U.S.C. § 523 (a)(15) is non-dischargeable. The trial court erred in finding the debt partially dischargeable.

From the Missouri Bar Courts Bulletin March Edition

Note: Some debts of this type may be dischargeable in Chapter 13 proceedings.

Electronic Domestic Case Filing Begins in March in Jackson County

Kansas City Divorce Attorney Mark Wortman — Sat, 16 Feb 2013 12:50:54 -0600

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.”

Relocation of a child subject to a Missouri custody order

Kansas City Divorce Attorney Mark Wortman — Sun, 27 Jan 2013 14:06:35 -0600

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.

Important Considerations when Choosing a Family or Divorce Attorney

Kansas City Divorce Attorney Mark Wortman — Sun, 13 Jan 2013 14:34:46 -0600

There are many attorneys that practice in the area of family law/divorce. Choosing a family lawyer is an incredibly important decision, as it will have a direct impact on the time, cost, and outcome of the case, as well as how smoothly the case runs. Some important things to consider:

1. Trust. This is the most important. If you do not have the confidence and trust in your attorney, you should not hire them or continue with them if already involved in a case.

2. Find an attorney whose personality is compatible with yours, and whose style and approach will be effective for meeting your goals. Even among the best family lawyers, not every attorney is best for every client, or every type of case.

3. Your attorney should be up front with you from the first meeting about the merits of your case, and should be very clear about what you can expect. Your attorney should keep you on the right side of the case and the court, and should be clear with you about all strengths and weakness in your case. An effective family lawyer will make sure your expectations are in line with reality, and will not simply tell you what you want to hear. Also, keep in mind that your attorney does not have a crystal ball, and cannot guarantee a particular outcome, but should give you a range of possibilities based on experience along with a cost vs. benefit analysis of any particular scenario.

4. Consider hiring an attorney that focuses primarily on family law/divorce. Family law is a highly specialized area, and if your attorney is handling personal injury cases, workers compensation, social security, DUI's, etc., they may not have the experience, time, or patience that is required for your case.

5. Be cautious of a family attorney that describes themselves as “aggressive”. This is a marketing buzzword, and there is a difference between an effective, zealous advocate, and a disrespectful, unprofessional, and/or abusive lawyer. Make sure you know which you are dealing with, as the latter will do more harm than good.

6. Be clear about the fee, and always ask for a written fee agreement. Family attorneys typically charge by either an hourly rate or by fixed fee. If paying hourly, ask for an estimate of time depending on how far the case goes. If paying by fixed fee, make sure that you know what events in the case might trigger additional fixed fees. Also, be sure you know if you are paying for expenses, such as mileage, copies, or postage, on top of time or fixed fee charges.

Court must set aside child support order if requirements of paternity set-aside statute are met unless court finds and concludes that it is not in the best interests of the child to do so; General order for multiple children does not preclude compliance

Kansas City Divorce Attorney Mark Wortman — Sun, 30 Dec 2012 10:32:59 -0600

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.

Setting aside of default judgment appropriate when good cause shown and meritorious defense; Ability to pay supports award of attorney's fees

Kansas City Divorce Attorney Mark Wortman — Sat, 15 Dec 2012 13:02:34 -0600

Recent Case: JT Appellant vs. AT, Respondent Missouri Court of Appeals, Eastern District - ED97995

Father appeals from the trial court's judgment of November 8, 2011, dissolving his marriage with Mother and entering a child custody and support award for their minor child ("Minor"). The trial court's judgment granted joint physical custody to the parties, with Mother as the residential parent, and ordered Father to pay child support to Mother.

Based on Rule 74.05(d), the Court did not find that the trial court abused its discretion in setting aside the parties' March 4, 2009 default judgment of dissolution because the motion to set aside was filed within one year. Mother presented good cause and a meritorious defense, and Father was not substantially harmed by the trial court's Judgment setting aside the default judgment. Further, due to the trial court's judgment setting aside the default judgment, Father's retirement plan is considered marital property because the parties were restored to their original positions as though the default judgment had never been entered.

Also, the trial court did not abuse its discretion by awarding joint physical custody, ordering Mother as the residential parent, and adopting the GAL's parenting plan as the evidence did not clearly preponderate in favor of either parent. Additionally, including Father's average monthly income from his secondary-employment for purposes of determining Gross Income on Form 14 was not an abuse of discretion as the income was demonstrated to be consistent and reliable.

Because, one spouse's greater ability to pay is sufficient to support an award of attorney's fees to the other spouse, the trial court did not abuse its discretion in awarding Mother attorney's fees since Father had a greater ability to pay. Finally, the trial court properly exercised its broad and sound discretion in the final determination of the child support award by increasing Father's Form 14 child support payments due to Father's ability to claim the dependent tax exemption, in that Section 452.340.9 permits the trial court to account for all relevant factors in determining whether a Form 14 calculation would be unjust or inappropriate.

The Petitioner (or movant) in an action to set aside a previous order for paternity and child support must pay the costs of DNA testing.

Kansas City Divorce Attorney Mark Wortman — Fri, 30 Nov 2012 14:28:21 -0600

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.

Parenting Plan must account for all custodial time; Court can determine child's education when parents are unable to agree; Court has broad discretion in dividing property and division will be upheld unless Court abuses discretion

Kansas City Divorce Attorney Mark Wortman — Sat, 24 Nov 2012 10:23:59 -0600

Recent Case: KO vs. MS Missouri Court of Appeals, Western District - WD74673

Wife appeals the judgment of the trial court entering a dissolution decree. In several points on appeal, she challenges the court’s determinations regarding child custody and property division issues.

The Court Held:

(1) Because the parenting plan did not assign all custodial time the case must be remanded for a revised plan that does.

(2) the trial court did not err in ordering what school the children are to attend because there was evidence that Husband and Wife were unable to agree on the proper school for the children,

(3) the court’s parenting plan is not erroneous because it gives each parent approximately equal parenting time and allows for the children to have the maximum amount of time possible with their half siblings, and therefore is in the best interests of the children,

(4) the court’s division of the parties disputed bank account was not erroneous because it was in accordance with the premarital agreement,

(5) the court’s division of the parties residences, their respective debt and equity, and the related equalization payment was not reversible error because the difference between its division and that under the proper calculation is de minimis, and

(6) the trial court’s valuation of the furniture in Wife’s possession at the time of dissolution was not erroneous because it was supported by Husband’s credible testimony.

Express allegations of abuse or neglect required for mandatory appointment of Guardian Ad Litem; Alternating weekend parenting plan is joint physical custody.

Kansas City Divorce Attorney Mark Wortman — Fri, 16 Nov 2012 15:55:28 -0600

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.

No Jurisdiction to Modify Custody Decree under UCCJEA

Kansas City Divorce Attorney Mark Wortman — Sat, 10 Nov 2012 12:53:30 -0600

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.

Courts Bulletin: Modifiable maintenance granted at divorce is terminated when all of the reasons it was awarded have changed.

Kansas City Divorce Attorney Mark Wortman — Wed, 07 Nov 2012 08:37:38 -0600

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

"Sole physical custody" award that incorporates significant parenting time to the other parent is not sole custody by definition, but joint custody instead

Kansas City Divorce Attorney Mark Wortman — Mon, 24 Sep 2012 13:22:43 -0600

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.