Compensatory Access Granted Without Intentional Wrongdoing
Relief under family access statute requires proof of denial of access without good cause, which does not require proof that “the denial or interference was . . . willful or intentional.”
Denise Kay Morgan f/k/a Denise Kay Gaeth, Appellant, v. Jeffrey Michael Gaeth, Respondent
Missouri Court of Appeals Western District

Educational Expenses Separately Awarded
Father’s conduct threatened and caused harm to Children, and so served as grounds for maintenance award. Evidence of Children's expenses supported departure from presumed child support amount. Ordering Father to pay for Children’s parochial schooling separately, instead of factoring that amount into child support, was not an abuse of discretion. Failure to properly characterize and legally describe property requires remand, with re-consideration of custody based on parties’ failure to comply with parenting plan if Parents raise them.
Jamie S. Schild, Respondent/Cross-Appellant v. Craig T. Schild, Appellant/Cross-Respondent
Missouri Court of Appeals Eastern District

Evidence Was Discoverable
Mother’s failure to discover evidence, that was freely available online on an issue of which she was already aware, showed a lack of due diligence that defeats a motion for new trial based on newly discovered evidence. Custody order based on Child’s imminent entry into kindergarten is not conditional and finds support in Child’s best interests.
Craig Pijanowski, Respondent, v. Hope Pijanowski, Appellant
Missouri Court of Appeals Western District

No Amending QDRO
Statute allows Circuit Court to conform an order that was intended to be a Qualified Domestic Relations Order ("QDRO") affecting a pension into a proper QDRO, or to effect such order’s intent, but does not allow amendment to QDRO.
In re the Marriage of Virgil L. Lueken and Toni S. Lueken, Virgil L. Lueken, Appellant/Petitioner, v. Toni S. Lueken, Respondent
Missouri Court of Appeals Eastern District

Wife may be able to keep support payments
October 23, 2008 8:12 AM
An ex-wife who often had a man spend the night at her home may still be able to collect support payments from her ex-husband, New York's highest court has ruled. Click here for the full article.

Attorney Fees Are Part Of Court Costs
Clear, cogent, and convincing evidence showed that the conditions leading to Child’s placement in foster care three years before persisted. Preponderance of the evidence showed that Child’s best interests lay with termination of Parent’s rights. Attorney fees for representing work on Parent’s appeal are allowed as court costs. Remanded to Circuit Court to determine amount of award.
In the Interest of: A.M.S. and K.P.S.; Plaintiffs, Missouri Department of Social Services, Children's Division, Respondent, v. S.V. (Natural Mother), Defendant, C.S. (Natural Father), Appellant
Missouri Court of Appeals Western District

Award Of Necessaries Denied
Circuit Court need not award cost of necessaries to Mother who rejected Father’s financial assistance and hid Child from Father. Circuit Court did not abuse its discretion by giving Father’s surname to Child. “Mother testified that she is in a committed relationship; if Mother does marry and take her husband's surname, Child would then have a different surname than both his parents. This Court has upheld surname changes based on less evidence than presented in this case.” Circuit Court’s modification of custody based on school attendance was not a banned conditional order because the contingency was a nearly certain event.
G.J.R.B., by his Next Friend, R.J.K., and R.J.K., Individually, Petitioners/Respondents v. J.K.B., Respondent/Appellant
Missouri Court of Appeals Southern District

GAL Is Not A Neutral Party
A Guardian ad Litem is not a neutral party. “To the contrary, the applicable statute requires a Guardian ad Litem to ‘[b]e the legal advocate for the best interest of the party he is appointed to represent[.’] Advocacy is not neutrality.” Circuit Court’s determination of Children’s best interest was not against the weight of the evidence because the characteristics that Appellants cite in their favor also apply to Respondents.
In re The Adoption of: F.C., M.C., and D.C., Minor children
Missouri Court of Appeals Southern District

Property Division Corrected
Record shows that Circuit Court considered both parties’ pre-marital contributions to marital home and properly valued it. Appellant’s classification supports Circuit Court’s classification. Incorrect classification of marital property upset Circuit Court’s intended 50/50 property division, so Court of Appeals adjusts award.
Joyce Rodieck, Appellant, v. Gary Rodieck, Respondent
Missouri Court of Appeals Western District

Family Law
Child support arrearage in excess of $10,000 affects court's jurisdiction over child custody matters. Tamara S. Burton, Relator v. Honorable Elizabeth W. Swann, Associate Circuit Judge, 11th Judicial Circuit, St. Charles County, Missouri, Respondent, No. 91385 (Mo. App. E.D., July 29, 2008), Odenwald, P.J.
Full Summary and Other Cases

Death Ends Maintenance
Statute presumes that death terminates maintenance obligation. Separation agreement and incorporating dissolution decree did not show otherwise because they provided maintenance only “during [Obligee’s] lifetime” and limited estate’s liability to a specific schedule, which expired before Obligor dies.
In the Estate of Robert B. Mackie; Jerry Mackie, Appellant, v. Jeanette Mackie, Respondent
Missouri Court of Appeals Western District

No Appealing Merits Of Default Judgment
Husband cannot appeal the Circuit Court’s division of property and debts in default judgment because Husband filed no motion to set aside default judgment and no direct appeal lies from a default judgment other than on jurisdictional grounds.
Tara Lea Cooper, Petitioner/Respondent v. Russell Paul Cooper, Respondent/Appellant
Missouri Court of Appeals Eastern District

Long-Arm Jurisdiction Sufficient For Some Issues, Not For Others
Record did not support application of rule to person who lived in lawful marriage in State. Record supported application of rule providing jurisdiction over a person with certain contacts in State but only as to actions arising from those contacts. “Other than the fact that Husband entered in to the alleged contractual relationships during his marriage, although after Husband and Wife were living separately, the record is void of any facts upon which we could conclude that Wife's petition for dissolution arose out of the actions and contacts upon which the trial court asserted personal jurisdiction over Husband.”
State of Missouri, ex rel. Patrick Gleeson, Relator, v. The Honorable Dennis N. Smith, Respondent
Missouri Court of Appeals Eastern District

Prenuptial Agreement Enforced
Spouse was pretermitted within statute’s definition because will made no provision for him but showed no intent to exclude him, and no other provision existed for him. Prenuptial agreement is valid without full financial disclosure, financial consideration, and advice of counsel. Knowledge of extent and nature of property, mutual waiver of rights, and overall fairness supports such agreement.
Tony Wayne Pulley, Respondent, v. Deborah Kay Short, et al., Appellants
Missouri Court of Appeals Western District

College student emancipation for child support purposes. Ronald E. Wilkerson, Appellant v. Patricia L. Leonard f/k/a Wilkerson, Respondent, No. 68491 (Mo. App. W.D., July 15, 2008), Hardwick, J.
Full Summary and Other Cases

Modifiable And Unlimited Maintenance Preferred
In setting maintenance, modifiable amount and unlimited duration are preferred. Amount of imminent social security benefits was certain enough to reduce maintenance. But whether Husband’s income would decrease was speculative and Circuit Court need not attribute income to Wife whose “age, physical limitations, and specific skills” showed no earning capacity. Such circumstances were not likely to change, so award of non-modifiable maintenance of limited duration was an abuse of discretion.
Carol E. Alberty, Appellant/Respondent v. William E. Alberty, Respondent/Appellant
Missouri Court of Appeals Western District

Findings Supported In Record
Testimony did not require appointment of a Guardian ad litem. Circuit Court’s valuation of business, liabilities, assets, and estimated monthly income for child support had support in the record. Failure to make findings on children’s best interest not preserved in motion to amend. Other arguments on children’s best interests, punitive property distribution, and property valuation all lacked factual support.
In re the Marriage of Kimberly Wood and James Wood. Kimberly Wood, Petitioner/Respondent v. James Wood, Respondent/Appellant

Property Not Transmuted
To show transmutation of separate property to marital property requires evidence of owner’s clear intent to contribute the property. Commingling is not enough. Wife’s contributions to Husband’s separate property did not transmute into marital property, but did support an equalization payment to Wife in proportion to her contribution. Court of Appeals awards Wife slightly less than Circuit Court.
Sheilafaye Goodwin, Respondent, v. Charles Lewis Goodwin, Appellant
Missouri Court of Appeals Western District

Findings Required On Custody Decision
Appellant did not request findings of fact beyond the Circuit Court’s Form 14, so none were required. Substantial evidence, including travel expenses, supported child support amount. United States’ recognition of Guatemala's accession to Convention on Abduction moots point on appeal. Statute requires findings of fact whenever Circuit Court decides a custody issue, not just when it changes custody. “It is easy to see why it appeared to the trial court that this was merely a reconfiguration of visitation because of family moves and the Father residing in another country. Custody provisions were modified. In such cases, trial courts should, out of an abundance of caution, include findings on the relevant [statutory] factors . . . in their judgments.” Remanded for findings.
Jill Suzanne Rosito, Appellant v. Mario Estuardo Rosito, Respondent
Missouri Court of Appeals Western District

No Prejudice Shown in Erroneous Calculation Of Value
Failing to allege prejudice from erroneous calculation abandons point. Unsupported opinion on value did not outweigh documentary evidence. Debt contracted in contemplation of marriage is marital debt. No authority required re-payment of amounts loaned between spouses pending dissolution. Conflicting evidence did not weigh against Circuit Court’s valuation of separate property. Erroneous valuation of property did not prejudice Appellant. “The net values of the non-marital and martial property and debt set aside to Husband are unchanged. . . . In both instances, Husband is receiving more than half of the marital estate.”
In re the Marriage of Valerie Altergott and John Altergott, III. Valerie Altergott, Petitioner/Respondent v. John Altergott, III, Respondent/Appellant.
Missouri Court of Appeals Southern District

No Modification Without Bond
Statute requiring a bond when filing a motion to modify child support is a condition precedent for Circuit Court’s “jurisdictional competence.” Without bond, Circuit Court had jurisdiction only to dismiss part of motion seeking to modify child support. Prohibition issues to prevent any other action.
Tamara S. Burton, Relator, v. Honorable Elizabeth W. Swann, Associate Circuit Judge, 11th Judicial Circuit, St. Charles County, Missouri, Respondent
Missouri Court of Appeals Eastern District

Full Order Of Protection Affirmed
Evidence showed that Appellant left threatening notes at her home and put nails in Respondent’s driveway, and that Respondent was alarmed and feared for the safety of herself and her daughter, supported the entry of a full order of protection, even without disputed evidence.
Lorraine M. Ritchie-Knuth, Respondent v. Noel A. Hazelwood, Appellant
Missouri Court of Appeals Southern District

Incompletes Do Not Defeat Child Support Obligation
Incompletes, later completed with passing grades, count as college credit hours under statute determining continuation of child support obligation past the age of 18 years.
Ronald E. Wilkerson, Appellant, v. Patricia L. Leonard f/k/a Wilkerson, Respondent
Missouri Court of Appeals Western District

Appeal Mooted
Mother appealed Circuit Court’s placement of Child with Children’s Division, but Circuit Court restored legal and physical custody to her. Circuit Court’s findings of fact relate to no present dispute. Dismissed as moot.
In the Interest of: J.L.R.
Missouri Court of Appeals Western District

Inconsistent Judgment Requires Remand
Settlement agreement described pension as marital property subject to division, but judgment incorporating settlement also described spouse’s share of pension as maintenance. Such documents leave material facts in genuine dispute, so Circuit Court erred in basing summary judgment on them.
In re the Marriage of: Mary Ann Chadwick, Petitioner/Appellant v. Charles Don Chadwick, Respondent/Respondent
Missouri Court of Appeals Southern District

Relocation Statute Inapplicable Until Custody Determined
Preliminary custody determination need not address relocation statute because such statute does not apply until there is a judgment of custody on the merits. Judgment showed that Circuit Court carefully considered Child’s best interests.
Taylor Elizabeth Day, a Minor, by Erin E. Finnern, Next Friend, and Erin E. Finnern, Individually, Petitioners/Respondents v. Jacob Franklin Day, Respondent/Appellant
Missouri Court of Appeals Eastern District

Settlement Not Reached
Statute providing for incorporation of written settlement agreement is satisfied if oral agreement is set forth on the record with parties’ agreement under oath when it is reached. “By the time that the agreement was actually presented on the record to the trial court, approximately a year later, Husband and Wife definitely did not agree.” Judgment granting motion to compel denied.
Stacy Freeland, Appellant v. Mark Freeland, Respondent
Missouri Court of Appeals Eastern District

Settlement Reached
Record shows that Appellant’s points relied on are new issues, not asserted error. Respondent’s uncontested affidavit shows disputed property was delivered and other issues waived. Affirmed as modified.
Susan Beth Dahn, Respondent v. Marcus Dewitt Dahn, Appellant; Securityone Services, Inc., Defendant; A-1 Alarms, Inc., Defendant; Integrity One Investments, LLC., Defendant
Missouri Court of Appeals Western District

Hearing On Change Of Judge Required
Motion for change of judge was adequate as to "time, notice, and form." Judge's expressed opinion on case's merits, with no basis in evidence, constituted cause for disqualification, and such allegations require a hearing on the motion.
Jeffrey K. Elnicki, Appellant v. Michelle D. Caracci, Respondent. Missouri Court of Appeals Eastern District

Maintenance Presumed Paid
Statute presuming judgment satisfied after ten years applies to maintenance obligation, so civil contempt action based on 12-year-old judgment is unenforceable.
Robert J. Halamicek, Appellant v. Joann Halamicek, Respondent. Missouri Court of Appeals Western District

Mother Relocates To San Francisco With Child
Evidence of Mother's involuntary job transfer to San Francisco supported Mother's good faith and Child's best interest in relocation. Evidence that Father did not use his parenting time fully undercut his arguments on Child's best interest in proximity to his side of Child's family. Circuit Court properly admitted and analyzed evidence of Father's financial stability and rejected evidence that Mother had been a victim of domestic violence. Father showed no error in parenting plan's visitation provisions. Circuit Court's failure to make findings on issues as Father requested raises inference that Circuit found against Father on such issues.
Steven Michael Ratteree, Appellant, v. Donna Jean Will, Respondent. Missouri Court of Appeals Eastern District

No Parenting Plan For Step-Child
Circuit Court has no jurisdiction to enforce parenting plan as to child born during, but not of, marriage.
Angela Lynn Warlop and Angela L. Warlop, as Next Friend of Sophia A. Warlop, Respondent v. James B. Warlop, Appellant. Missouri Court of Appeals Western District

Pension Earned Before Marriage Is Separate Property
Maintenance is unlimited unless evidence shows a prospect that parties' circumstances will change. Portion of one pension earned before marriage is separate property. Evidence did not show value of contributions to other pension that constituted separate property, so no error shown in characterizing other pension as marital property.
Mary L. Garrison, Respondent v. William M. Garrison, Appellant. Missouri Court of Appeals Western District

Stock Properly Classified As Marital Property
Assignment of stock in one spouse's name does not prove a gift of separate property. Evidence supporting Circuit Court's classification includes type of transfer, corporate records, and testimony consistent with documentation. Record supports Circuit Court's valuation of time share and life insurance policies. Issues raised in point relied on, but unsupported in argument, are waived.
In re the Marriage of Melanie D. Fisher and Robert M. Fisher. Melanie D. Fisher, Petitioner/Respondent v. Robert M. Fisher, Respondent/Appellant. Missouri Court of Appeals Southern District

Two Findings On Abuse Needed To Terminate Parental Rights
Jurisdictional hearing was no substitute for opportunity to present evidence at trial on petition to terminate parental rights. "By adopting a previous finding of abuse and neglect . . . and refusing to consider further evidence, the court denied Mother her due process rights and violated [the termination of parental rights statute.]"
In the Interest of E.A.C., a child under seventeen years of age. Missouri Court of Appeals Southern District

Mixing division of property with maintenance judgment and award of unspecified post-trial fees and costs. In re Marriage of: Bonnie L. Vanderpool, Respondent v. Larry R. Vanderpool, Appellant, No. 28365 (Mo. App. S.D., April 22, 2008), Barney, J.

This is an appeal of a judgment for dissolution of marriage in which husband was ordered to pay non-modifiable maintenance to wife. As a part of its order on maintenance, husband was ordered to pay the cost of selecting survivor annuity benefits on his pension. Wife was awarded 28.9 percent of husband's pension. The remainder was awarded to him, of which approximately 42 percent was pre-marital. Husband was also ordered to pay attorneys' fees and costs of wife, including “post-trial attorney fees and costs” in anticipation of the orders necessary to divide the pension. Husband appealed the judgment of non-modifiable maintenance and the decision to require him to bear the cost of the survivor annuity benefits for wife.

Held: Reversed. Clearly, the issue of maintenance and a division of marital property are separate issues. “The trial court erred in treating husband's survivor benefit election relating to his pension benefits, admittedly partly marital property, as a form of nonmodifiable maintenance.”

The award of “post-trial fees” for preparation of the judgment and enforcement of the court's orders was insufficiently definite and certain to be enforceable. The appellate court held that this portion of the judgment was without effect.

Child support modification and use of instructions in the guidelines. John S. Blevins, Appellant v. Allison Kay Blevins, Respondent, No. 68182 (Mo. App. W.D., April 15, 2008), Spinden, J.

This is an appeal from a judgment for modification of child support. Multiple issues were raised on appeal. This summary addresses those worthy of note. Mother sought an increase in child support and reimbursement of one-half of college expenses incurred for six semesters which had already occurred when the motion was filed. In addition, the original judgment made no provision for the college expense obligation. In his answer to the motion, father stated he was willing to pay one-half of those expenses. In trial testimony, father reiterated that willingness as long as mother provided an itemization of the expenses. Mother provided it. On appeal, father argued that the obligation ceased because the child did not provide the requisite grade and enrollment information to him.

Father had a closely-held business that was the source of his income. It was a C corporation. In trial, the Mother suggested the business expenses for depreciation and travel should be added to father's gross income for purposes of calculating his income. The trial court did so. Child support was increased. The judge also ordered father to pay one-half of past college costs. Both parties appealed.

Held: Affirmed in part; reversed in part.

As to Depreciation and Travel Expenses Added Back Into Father's Income: “If the court arrived at this amount by including a portion of the corporation's depreciation and travel and expenses deductions in (father's) income, it erroneously applied the law. The directions for completing Form 14 discuss when consideration of depreciation and other deductions is appropriate in determining a parent's gross income:”

“If a parent receives rents or royalties or is self-employed, in a sole proprietorship, or business with joint ownership, 'gross income' is gross receipts minus the ordinary and necessary expenses incurred to produce such receipts. Depreciation, investment tax credits and other non-cash reductions of gross receipts may be excluded from such ordinary and necessary expenses.”

“Form 14, Directions, Comments for Use and Examples for Completion of Form No. 14, Line 1: Gross Income. In sole proprietorships or partnerships, taxes are not assessed against the business entities, but income and losses, including depreciation, pass through to the individual tax returns of the proprietor, partners or, in the case of subchapter S corporations, the shareholders. See Thill v. Thill, 26 S.W.199, 207 (Mo. App. 2000) (discussing effect of depreciation on gross income of parent who was partner in a partnership and shareholder in subchapter S corporations). Depreciation and other deductions can reduce a parent's income from these types of businesses in a way that renders the income listed on the parent's individual tax return as not representative of the true amount of cash or benefit available to the parent and, therefore, available for supporting a child.” Id.

“None of these situations are involved in [father's] case. [Father's] business was a C corporation – not a sole proprietorship, a business with joint ownership, or a subchapter S corporation. The corporation paid taxes on its income. Hence, the corporation – not [father] or his wife – received the benefit of the depreciation and travel and entertainment expense deductions. Form 14's directions permitting the circuit court to consider depreciation and other non-cash reductions of gross receipts [to] determine gross income, did not apply to [father's] C corporation.

As to the Child's Post College Expenses: Despite the child's failure to comply with § 452.340.5 RSMo, as to timely submission of grade and enrollment information, father has repeatedly expressed to the court his willingness to contribute to that expense. “Because [father] acquiesced to paying half of the past college expenses, he cannot complain on appeal.”

Editor's Note: There is no discussion in the opinion about the fact that “[t]he (original) order may be modified only as to support … installments which accrued subsequent to the date of personal service.” § 452.370.6 RSMo. When the original judgment was silent on the issue of father's obligation for any portion of the child's college expenses, a judgment requiring him to pay one-half of college expenses incurred prior to the service of the motion to modify would seem to be beyond the court's jurisdiction. Perhaps this case presents a unique fact situation in which equity prevailed because of father's repeated statements of a willingness to bear that portion of the expense.

Decree Leaving Debt Undivided Is Not Final
Statutes require circuit courts to divide marital debt. Circuit Court's judgment on dissolution of marriage made no mention of $45,000 credit card debt in one spouse's name. No findings show that debt was separate and no conclusion set it aside from marital amounts. Judgment was therefore not final. Dismissed.
Paul Rogers, Appellant v. Linda Lee Rogers, Respondent. Missouri Court of Appeals Western District

Property Division Unreviewable
Wife transmuted separate property into marital property by putting Husband's name on the deed "[l]ater self-serving testimony that a gift was not intended" notwithstanding. Circuit Court's failure to value Husband's pension before awarding it all to him makes appellate review of property division impossible, so Court of Appeals remands for findings of fact.
Audrey G. Willbanks, Appellant v. Jerry D. Willbanks, Respondent. Missouri Court of Appeals Southern District

Drug Problems Supported Termination Of Parental Rights
Mother's testimony to the contrary notwithstanding, her repeated arrests, and failures to complete treatment, for drugs supported Circuit Court's finding that a long-term chronic addiction prevented Mother from exercising care, custody, and control over her children. Children's birth with drug exposure and childhood in foster care showed that termination of parental rights was in their best interests.
In the Interest of: M.L.R., M.D.F., S.D.F., J.C.M., and K.M., III; Respondents, S.F. (Mother), Appellant, v. Juvenile Officer, Respondent, K.R. (Putative Father), C.B. (Putative Father), L.H., Jr., (Putatitve Father), K.M., Jr., (Putative Father), Defendants. Missouri Court of Appeals Western District

Income Must Be Imputed On Form 14
Defending party in motion to modify, appealing an adverse judgment, need not show compliance with judgment to appeal. Corporation's income was not attributable to Father and, if it were, all of it would not support Circuit Court's finding as to Father's income. Imputation of income not made on Form 14 is waived. Insurance counts as a child-rearing expense only to the expense that it covers children and not ex-spouse. Record supported finding of acquiescence in Child's noncompliance with statute requiring documentation for college expenses.
John S. Blevins, Appellant, v. Allison Kay Blevins, Respondent. Missouri Court of Appeals Western District

Separate Property Transmuted Into Marital Property
Evidence that separate property transmuted into marital property included transfer of property to jointly-owned LLC and payments from marital funds. Statute supported equal division of health expenses. No expert testimony was needed to determine tax liability when dividing property. Circuit Court did not abuse its discretion in denying motion to reopen record, after trial and before judgment, on child custody.
Jacqueline M. Hernandez, Respondent/Appellant v. Robert A. Hernandez, Appellant/Respondent. Missouri Court of Appeals Western District

Evidence Showed That Father Supported Child
Clear and convincing evidence supported Circuit Court's findings that Father supported Child, which statute requires for Father's family to inherit through Child. Such evidence showed that Father housed, fed, and paid for the education of Child.
In the Estate of Thomas Edward Davis, Deceased. Sherry Shamel, as Personal Representative of the Estate of Thomas Edward Davis, Petitioner v. Donna Jean Root Soboy, Robert J. Davis, Diane Hawkins, Chris Davis, Apryl Keaty, Gail Williams, Shawn Miles Davis, Sidney Earl Davis, Roger Norman Davis, James Vincent Davis, Donald Dale Davis, Donna Linn, Barbara Halper, Lowell Dean Bittrich, Michelle Miller, Stacey Boston, Jeff Anderson, Shelby Johnson Devries, Roxanne Dewall, Denise Reuter, Gary Rishovd, Larry Rishovd, Sandi Williams, Clinton Rishovd, Glenn Gunderson, Francis Gunderson, and the unknown heirs, if any, of Thomas Edward Davis, George Sidney Davis, Evelyn Alice Rishovd, aka Evelyn Alice Davis, Adeline Davis Root, Sidney Moses E. Davis, Erwin Mathew Davis, Mildred A. A. Davis, Ernest H. A. Davis, Jerald Ernest Davis, Donald E. "Red" Davis, Hazel M. Davis, Sharon Johnson, Agnes J. Davis, Oden Rishovd, Harry Rishovd, Alpha Lauderback, and Ida Gunderson, Respondents, Sandi Williams, Francis E. Gunderson, Gary L. Rishovd, and Larry W. Rishovd, Respondents/Appellants v. Sid Davis, Robert Davis, Donna Jean Soboy, Chris Davis, Apryl Keaty, Gail Williams, Shawn Davis, Diane Hawkins, Donna Linn, Barbara Halper, Roger Davis, James Davis, Don Davis, Lowell Bittrich, Jeff Anderson, Shelby Devries, Roxanne Dewall, Michelle Miller, Stacey Boston and Denise Reuter, Respondents/Respondents. Missouri Court of Appeals Southern District

Pension Is Not Maintenance
Circuit Court must divide property, including pension, before determining maintenance and cannot award property, including pension, as maintenance. Record supports award of attorney fees before judgment. Circuit Court's award of attorney fees not yet incurred is indefinite and uncertain. Circuit Court cannot extend its own jurisdiction, even by order nunc pro tunc.
In Re Marriage of: Bonnie L. Vanderpool, Respondent, v. Larry R. Vanderpool, Appellant. Missouri Court of Appeals Southern District

Termination Of Parental Rights Reversed
Clear, convincing, and cogent evidence did not support statutory grounds required to terminate parental rights. At the time of the hearing, evidence of parents' personality disorders and depression was nineteen months old and did not show that they were likely irreversible; evidence of failure to support was seven months old and did not account for regular contacts and contributions; and evidence of failure to rectify was seven months old and did not account for change in lifestyle. Termination of parental rights reversed.
In the Interests of K.M. and J.M., Plaintiffs; Juvenile Officer, Respondent; Missouri Children's Division, Respondent, v. J.M. (Father), Appellant; K.M. (Mother), Appellants. Missouri Court of Appeals Western District

Military Disability Pay Not Subject To Division
Federal law allows and Missouri law provides that military retired pay is marital property, but federal law provides that military disability pay that replaces military retired pay is not. Retiree's substitute of disability pay for retired pay thus reduces Ex-Spouse's interest, but property division is not subject to modification. Judgment may address such possibility by including a provision, barring retiree from waiving retired pay in favor of disability pay, in property division.
David E. Morgan, Respondent, v. Karen E. Morgan, Appellant. Missouri Court of Appeals Western District
Corporate Assets Not Subject To Division
Circuit Court erred in distributing assets of a person who was not a party to the action, even if the person was a corporation owned by a party. "Unless a corporation is a party to the action, the circuit court has authority to divide and to dispose only the corporation's stock, not its assets." Judgment was therefore void and not subject to review. Remanded for re-distribution of property and inclusion of real property's description.
Agnes Marie Hughes, Appellant/Cross-Respondent v. Charles D. Hughes, Respondent/Cross-Appellant. Missouri Court of Appeals Western District

Ex-To-Be Inherits
Statute governing waiver of inheritance requires disclosure and consideration, elements not present in separation agreement and property division not incorporated into judgment. Therefore, Wife did not waive inheritance pending dissolution.
In the Estate of: Joseph L. Olsen, Deceased; Jessie Ann Olsen, Appellant, v. Johnathan Meyer, Successor Personal Representative, Respondent; Jolet Olsen and Holly Olsen, Respondents. Missouri Court of Appeals Western District

Failure To Rectify Shown
Mother's continued drug use and rejection of State assistance in supporting Child showed failure to rectify conditions that led to assumption of jurisdiction over Child.
In the Interest of: K.A.C. (DOB: 07-18-03) A Child Under Seventeen Years of Age. Missouri Court of Appeals Southern District

Termination Of Parental Rights Affirmed
Father's failure to follow service plan, and take medication for personality disorder, showed a failure to rectify conditions that led to assumption of jurisdiction.
In re the Interest of S.R.J., Jr., a minor, Missouri Division of Family Services, Petitioner-Respondent, v. S.R.J., Sr., The Child's Natural Father, Respondent-Appellant. Missouri Court of Appeals Eastern District

Federal court rejects challenge to QDRO
April 2, 2008 7:05 AM
A husband cannot sue in federal court to prevent his retirement plans from transferring assets to his ex-wife pursuant to a state divorce court's orders, the 1st Circuit has ruled. Click here to read the full text of the opinion.

Circuit Court May Depart From Recommendations On Physical Custody
Guardian ad litem and court-appoint therapist both recommended joint legal custody and supervised visitation for Father. Circuit Court followed the former but not the latter. When evidence supports an alternative award, “the trial court is not bound by the requests of any party as to custody or visitation, even when both parties agree.” No judgment required Father to pay child support and Mother forgave some of it, so Circuit Court did not abuse its discretion in awarding no retroactive child support.
In re the Matter of L.J.S., by A.C.H., as next friend, and A.C.H., individually, Petitioner-Respondent, v. F.R.S., Respondent-Appellant. Missouri Court of Appeals Southern District

Circuit Court Must Decide Contempt Action
Upon dismissal of motion to modify custody, guardian ad litem was discharged, and testified only as to fees, mooting motion to remove guardian. Circuit Court issued an order that Father show cause why he should not be held in contempt for failure to pay child support. Circuit Court consolidated contempt action with child support modification action for all purposes, giving notice to Father, so that Circuit Court's failure to rule on it did not result in loss of jurisdiction. Circuit Court must decide it. Record supported Circuit Court's findings as to parties' relative income.
Angela Shapiro McCoy, Appellant v. Samuel Scavuzzo, Respondent. Missouri Court of Appeals Western District

Findings Of Fact Inadequate
Receiving child support under judgment does not constitute acquiescence. Judgment was not final when issued because it addressed issue in recital portion, not in decretal portion, and left other issues undecided. Title of motion did not include "amend" but body of motion did, so issue as to findings of fact was preserved. Circuit Court can clarify inconsistent terms on remand.
Cole Howard Gipson and Ni'Cole Gipson, Plaintiffs/Appellants v. Kevin Orlando Fox, Defendant/Respondent. Missouri Court of Appeals Eastern District

Findings Show Grounds For Termination Of Parental Rights
Presence of findings related to abuse shows that parental unfitness was not the sole grounds for termination of parental rights. Past abuse and lack of present reform raise presumption of future threat to Child's future.
In the Interest of: K.R.G., A.K.G., and R.C.G., C.G., Appellant v. The Christian County Juvenile Office, Respondent. Missouri Court of Appeals Southern District

Objection To Relocation Waived
Statute requires notice before permanently relocating children's residence. After temporary relocations, Mother gave notice of intention to permanently relocate as required by statute. Father did not file objection as required by statute and so waived objection.
Gina M. Dent, Petitioner/Respondent v. Charles W. Dent, Respondent/Appellant. Missouri Court of Appeals Eastern District

Custody judgment in dissolution action and guardianship in probate court regarding same child. Jacob R. Kelly, Respondent v. Gaytha Jane Kelly, Appellant, Debra Jane McDowell and Anthony Martin McDowell, Appellants, No. 67737 (Mo. App. W.D., February 19, 2008), Holliger, J.

The Kellys had one child. Their marriage was dissolved in 2004, at which time they were awarded joint legal and physical custody. Mother had resided with her parents at that time. Over the course of the next several months, mother's lifestyle caused her parents concern for the child's safety during her parenting time. They sought and obtained the cooperation of father for an action for guardianship of the child by maternal grandparents. A judgment of guardianship was granted.

Father filed a motion to modify in 2006, in which he sought sole physical custody of the child. Both mother and maternal grandparents were served with the motion. Mother filed a motion to dismiss on the basis that father had no standing due to the intervening guardianship. The trial court denied mother's motion and ultimately granted sole physical custody to father. Mother and maternal grandparents now appeal.

Held: Reversed and remanded. After a thorough discussion of the various doctrines of jurisdiction, concurrent jurisdiction and inconsistent judgments, the opinion boils it down to the proper action for the court under these facts. “… [T]he modification court had subject matter jurisdiction to modify the custody order and … Mother and Grandparents raise an issue that is not actually jurisdictional. See In re the Marriage of Hendrix, 183 S.W.3d 582 (Mo. banc 2006). Nevertheless, the trial court legally erred in entering a judgment conflicting with the guardianship order before that order was terminated. The court should have taken steps to consolidate the two proceedings both for purposes of judicial efficiency and avoidance of inconsistent judgments. See Blackburn, 131 S.W.3d 396-398. The matters can be consolidated before either the modification court or the probate division; although, at this point, it would seem more efficient to consolidate the matters in front of the modification court, since it already has heard the evidence.”

Editor:
John W. Dennis, Jr., Esquire Editor's Note: Should not the same have been said of the probate division's action in rendering a judgment inconsistent with that of the dissolution court?

Full record of trial proceeding necessary. John Gregory Lyytinen, Appellant v. Lauri Jean Lyytinen, Respondent, No. 28711 (Mo. App. S.D., February 13, 2008), per curiam.

In this divorce case, the record was being made by tape recording. Two days of the trial were unavailable for transcription due to a “machine malfunction.” Appellant sought remand for new trial.

Held: Reversed and remanded. “[T]he appropriate remedy when 'the record on appeal is inadequate through no fault of the parties' is to reverse and remand the case” for new trial. Goodman v. Goodman, 165 S.W.3d 499, 501-02 (Mo. App. 2005).

College credits – applicable law. In re the Marriage of: Marsha Ann (Wood) Maggi and Brian Allen Wood, Marsha Ann (Wood) Maggi, Petitioner-Respondent v. Brian Allen Wood, Respondent-Appellant, No. 28458 (Mo. App. S.D., January 31, 2008), Bates, J.

The parties' marriage was dissolved in 1998. Their daughter graduated from high school in 2003, and she began attending college that Fall. By January 1, 2004, the verdict was in. Daughter had only gained 8 credit hours. She had worked an average of 15 hours per week and continued her college career. She never failed to meet the minimum credit threshold after that first semester.

After the aforesaid semester, Division of Child Support Enforcement administratively terminated father's child support obligation because daughter was emancipated under § 452.340, RSMo. Mother subsequently filed a motion to reinstate child support in which she argued that daughter's subsequent success warranted it. The trial court agreed. Father appealed.

Held: Reversed. The child's failure to obtain a minimum of nine hours rendered her emancipated. There was no evidence that her failure to achieve the minimum required was the result of manifest circumstances beyond her control. The statute was amended in 2007 to further define the standard for emancipation, i.e. failure to pass more than one-half of her credit hours. Mother argued that the amendment made the judgment correct.

“Under the law in effect in 2003, Father's obligation to pay child support terminated when Daughter failed to satisfy the minimum credit-hour requirement of Section 452.340.5.” The amended § 452.340.5 cannot be applied retrospectively.

Circuit Court May Depart From Recommendations On Physical Custody
Guardian ad litem and court-appoint therapist both recommended joint legal custody and supervised visitation for Father. Circuit Court followed the former but not the latter. When evidence supports an alternative award, “the trial court is not bound by the requests of any party as to custody or visitation, even when both parties agree.” No judgment required Father to pay child support and Mother forgave some of it, so Circuit Court did not abuse its discretion in awarding no retroactive child support.
In re the Matter of L.J.S., by A.C.H., as next friend, and A.C.H., individually, Petitioner-Respondent, v. F.R.S., Respondent-Appellant. Missouri Court of Appeals Southern District
Circuit Court Must Decide Contempt Action
Upon dismissal of motion to modify custody, guardian ad litem was discharged, and testified only as to fees, mooting motion to remove guardian. Circuit Court issued an order that Father show cause why he should not be held in contempt for failure to pay child support. Circuit Court consolidated contempt action with child support modification action for all purposes, giving notice to Father, so that Circuit Court's failure to rule on it did not result in loss of jurisdiction. Circuit Court must decide it. Record supported Circuit Court's findings as to parties' relative income.
Angela Shapiro McCoy, Appellant v. Samuel Scavuzzo, Respondent. Missouri Court of Appeals Western District

Findings Of Fact Inadequate
Receiving child support under judgment does not constitute acquiescence. Judgment was not final when issued because it addressed issue in recital portion, not in decretal portion, and left other issues undecided. Title of motion did not include "amend" but body of motion did, so issue as to findings of fact was preserved. Circuit Court can clarify inconsistent terms on remand.
Cole Howard Gipson and Ni'Cole Gipson, Plaintiffs/Appellants v. Kevin Orlando Fox, Defendant/Respondent. Missouri Court of Appeals Eastern District

Findings Show Grounds For Termination Of Parental Rights
Presence of findings related to abuse shows that parental unfitness was not the sole grounds for termination of parental rights. Past abuse and lack of present reform raise presumption of future threat to Child's future.
In the Interest of: K.R.G., A.K.G., and R.C.G., C.G., Appellant v. The Christian County Juvenile Office, Respondent. Missouri Court of Appeals Southern District

Objection To Relocation Waived
Statute requires notice before permanently relocating children's residence. After temporary relocations, Mother gave notice of intention to permanently relocate as required by statute. Father did not file objection as required by statute and so waived objection.
Gina M. Dent, Petitioner/Respondent v. Charles W. Dent, Respondent/Appellant. Missouri Court of Appeals Eastern District

Premature Investigation And Study Require Dismissal
Statute requires Circuit Court to order investigation and social service study after filing of petition to terminate parental rights. Circuit Court ordered investigation and social service study before filing of petition to terminate parental rights. Mother need show no prejudice for Court of Appeals to reverse judgment and remand for further proceedings.
In the Interest of: N.A.H. (D.O.B: 04-21-04) A Child Under Seventeen Years of Age. Missouri Court of Appeals Southern District

Paternity: Change of surname/meeting burden of proof. Warren Joshua Wright, Respondent v. Anden Richard Buttercase by his next friend, Heather Ladawn Buttercase, and Heather Ladawn Buttercase, Appellants, No. 67861 (Mo. App. W.D., January 15, 2008), Lowenstein, J.
This child was born out of wedlock and given his mother's surname. In this action to establish paternity, custody and support, the trial court also ordered the child's surname changed to that of father. Mother appealed.
Held: Affirmed. It is axiomatic that the party seeking to change the child's surname has the burden of proving that the change is in the child's best interest. Neither parent's name is presumed preferable to the other.
The factors: (a) the child's age – here the child is too young to know the difference; (b) potential embarrassment or discomfort of the child in a change – here, the child is too young to know and is not in school, so no change will result in confusion, embarrassment or discomfort; and, (c) how the name change will affect the child's relationship with his parents. Father here testified that he was trying to build a relationship with the child. In addition, “every” child in the community had his father's surname and a change would help the child identify with the father's family. The trial court concluded that, given those circumstances, the child would be more likely to feel accepted by father if they shared a last name. Moreover, the child was so young that the change of surname would not affect his relationship with his mother.
The foregoing was found to be substantial evidence to support the trial court's decision.
Editor's Note: Although this case may be fact specific in relation to the outcome, it is instructive, in that there are outside factors to look for beyond a parent's motivation for seeking a name change for his/her child.

College grades: Adequacy of notice. James Waddington, Petitioner/Appellant/Cross-Respondent v. Maureen (Waddington) Cox, Respondent/Cross-Appellant, No. 88992 (Mo. App. E.D., January 2, 2008), Shaw, J.
The parties were divorced in 1996. The parties' son was placed in the “primary” care of father, and mother was ordered to pay child support of $378 per month. In October, 2000, son went off to college. He provided mother with the university's letter of conditional acceptance. Throughout his college career, the child provided mother with notice of his grades via an on-line access service the university provided to its students. Mother did not pay child support. Eventually, father sought enforcement of the child support judgment. Mother claimed the notice of son's grades was inadequate because the on-line printout was not an official transcript. The trial court agreed. Father appealed.
Held: Reversed. This is a case of first impression in Missouri. Section 452.340.5 RSMo requires the child to provide each parent with a “transcript or similar official document” from the institution showing grades, courses and credits earned. There is no question that the records provided to mother were not official transcripts.
“Given the varying definitions and the ubiquity and security of online student records systems similar to [the one provided here], this Court declines to speculate whether the legislature assumed that a 'transcript' is inherently official or considered the possible implications of such an assumption in a case like the one before us. We can only observe that the legislature did not include the word 'official' before transcript. As such, 'official' only modifies the word 'document.' To interpret the statute to require an official transcript would be to add qualifying language where it does not exist.”
“Missouri courts liberally construe section 452.340.5 to be consistent with the public policy of promoting the pursuit of higher education. Mandel v. Eagleton, 90 S.W.3d 527,531 (Mo. App. E.D. 2002) (internal citations omitted). “Therefore, we conclude that a parent's obligation to provide financial support to a child in college should not terminate merely for lack of an official stamp, where, as here, substantial evidence demonstrates that the parent received actual notice in the form of an inalterable online transcript containing all the information required by the statute.”

The Missouri Bar Courts Bulletin, 8-Feb

Abandonment Shown
Record supports findings that Father could have supported and contacted Child but did not do so, that he did not repent of his conduct, and that his present and future conduct would be no different.
In the Matter of E.F.B.D. W.H. and K.H., Petitioners-Respondents, v. S.B., Respondent-Appellant. Missouri Court of Appeals Southern District

Child Support Too High
Failure to raise omitted findings of fact in a motion to amend waives error. Review of points supported by in-camera interview requires a transcript. Record did not support amount of child support Circuit Court awarded. Remanded for calculation on evidence offered at trial. Circuit Court did not abuse its discretion in denying attorney fees.
Janet L. Milone (Duncan) and Norma J. Hauschild, Respondents, v. Dale D. Duncan, et al, Appellants. Missouri Court of Appeals Western District

Full Description Required For Division Of Real Property
Failure to provide full legal description of property divided in decree of dissolution was plain error because judgment must include information sufficient to clear title.
In re the Marriage of Lindell Lee Tanner and Kathleen Tanner, Lindell Lee Tanner, Petitioner/Appellant/Cross-Respondent, v. Kathleen Tanner, Respondent/Respondent/Cross-Appellant. Missouri Court of Appeals Eastern District

Maintenance Affirmed
Past standard of living is not the standard for setting maintenance, but Wife showed that she can not meet her reasonable needs by working presently or in the future because of poor health and limited education. Circuit Court awarded proper amount, but used wrong term, in awarding maintenance, so Court of Appeals amends judgment to use right term. Substantial evidence supports imputation of income to Husband and award of attorney fees against him.
In re the Marriage of Debbie Lynn Taylor and Willie James Taylor, Debbie Lynn Taylor, Petitioner-Respondent, v. Willie James Taylor, Respondent-Appellant. Missouri Court of Appeals Southern District

Substantial And Continuing Change Not Shown
Evidence of Wife's Wife's earning capacity showed no change in circumstances because "[t]here was no evidence that this was new information or a recently acquired degree. Wife's master's degree . . . is not a new condition. Record showed no evidence of underemployment. Circuit Court abused its discretion is denying Wife an award of attorney fees. "'Financial inability of the spouse to pay attorney's fees is not a requirement for awarding attorney's fees.' . . . . On the other hand, one party's greater ability to pay is sufficient to support an award of attorney's fees."
George Katsantonis, Respondent, v. Christine Katsantonis, Appellant. Missouri Court of Appeals Eastern District

Right To Advice Of Counsel In Contempt Procedure
Undisputed allegations that Relator sought a continuance to secure counsel, that Circuit Court denied continuance on first setting and did not advise Relator of right to counsel, and sent Relator to jail after hearing, showed a violation of due process. "Procedural due process 'requires that one charged with contempt of court be advised of the charges against him, have a reasonable opportunity to meet them by way of defense or explanation, have the right to be represented by counsel, and have a chance to testify and call other witnesses in his [or her] behalf, either by way of defense or explanation.'" Court of Appeals treats petition for writ of mandamus as petition for writ of habeas corpus and orders Relator released.
Fernando Smith, Relator, v. Honorable John F. Kintz, Respondent. Missouri Court of Appeals Eastern District

Child Support Corrected
Court of Appeals corrects judgment to reflect record of parent's income and re-calculate child support amount.
Justin V. Collett, Appellant, v. Kimberly Lee Collett, Respondent. Missouri Court of Appeals Western District

Family Member Not Necessarily Preferred As Guardian And Conservator
Limited preference for near relatives applies only when all other factors are equal. For child custody determinations, "a good environment and a stable home" are the most important factors. Those factors favor Respondent over Child's teenaged stepsister.
In the Matter of D.E.B., a Minor, Amanda Cornelius, Appellant, v. Jay J. Roberts, Respondent. Missouri Court of Appeals Southern District

Insufficient Credit Hours To Continue Support Obligation
Statute passed in 2007 did not apply to obligation in 2002. In 2002, statute provided that Child working 15 hours per week could maintain support obligation by completing at least nine credit hours of post-secondary education. Child completed eight credit hours. No manifest circumstances shown.
In re the Marriage of: Marsha Ann (Wood) Maggi and Brian Allen Wood, Marsha Ann (Wood) Maggi, Petitioner-Respondent, v. Brian Allen Wood, Respondent-Appellant. Missouri Court of Appeals Southern District

Kinship Care Properly Denied
Blood test is mandatory on Juvenile Officer's request. Record supports Circuit Court determination that Appellant's clouded judgment makes him an unsuitable candidate for placement. Without status as a candidate for custody, Appellant had no right to appointed counsel, and Appellant was properly dismissed from action. Party dismissed from action has standing to appeal under statute.
In the Interest of: D.T. and L.T., Respondents; Joanna Smith, Defendant, and Richard Tolbert, Appellant v. Juvenile Officer, Respondent. Missouri Court of Appeals Western District

N.J. judge orders property settlement in same-sex split
In what is believed to be a first for New Jersey, a state judge has ordered a property settlement for two women ending a domestic partnership, saying the couple should be treated the same as married spouses who divorce, The Courier-Post reports.
Click here to read the full article.

Dissolution Of Marriage Did Not Revoke Designation Of Beneficiary
If Employer had any duty, when it changed insurers, to provide new beneficiary designation form to Decedent, its failure to do so did not injure ex-Spouse because designation of ex-Spouse continued under exemption to statute deeming designation revoked on dissolution of marriage. Summary judgment in action for negligence and negligent misrepresentation affirmed.
Gail Elliott, individually and as Guardian Ad Litem for Minors Marcus J. Cowan, Austin J. Cowan and Jeremy A. Cowan, Plaintiffs-Appellants, v. St. John's Regional Health Center, a Missouri Corporation, and Sisters of Mercy Health System, a Missouri Corporation, Defendants-Respondents. Missouri Court of Appeals Southern District

Child's Name Change Affirmed
Child's best interests determine which parent's surname Child shall bear. Evidence supporting change to Father's surname included evidence that it would help build relationship with Father and his family, that Mother would soon change her name, and that Child was young enough to not be confused by name change.
Warren Joshua Wright, Respondent, v. Anden Richard Buttercase by his next friend, Heather Ladawn Buttercase, and Heather Ladawn Buttercase, Appellants. Missouri Court of Appeals Western District

Non-parent has high burden in seeking custody
A non-parent third-party must allege a parent-like relationship and prove that a child's remaining with her parents would be clearly harmful to have standing to seek custody, the Connecticut Supreme Court has ruled.
Click here to read the full text of the opinion.

Sperm donor needn't pay child support
A sperm donor's oral agreement to provide sperm for in vitro fertilization in exchange for the mother's promise to refrain from seeking child support is enforceable, the Pennsylvania Supreme Court has ruled.
Click here to read the full text of the majority opinion, and visit Lawyers USA's Family Law Specialty Page for an overview of recent developments in the area.

Non-biological parent has visitation rights
A woman who gave birth to another man's child during her first marriage couldn't terminate her first husband's visitation rights after divorcing him and marrying the child's biological father, the Arkansas Court of Appeals has ruled.
Click here to read the full text of the opinion.

Student-Printed Transcript Constituted Notice Of Enrollment
Child's attendance of college away from home did not constitute emancipation. Non-custodial parent's notice of Child's initial enrollment in post-secondary education supported award of attorney fees. Notice of continued enrollment is not limited to an "official" transcript. "[A]ctual notice in the form of an inalterable online transcript containing all the information required by the statute" sufficed. Award of attorney fees is not required on "good faith interpretation of [statute] on a matter of first impression[.]"
James Waddington, Petitioner/Appellant/Cross-Respondent, v. Maureen (Waddington) Cox, Respondent/Cross-Appellant. Missouri Court of Appeals Eastern District

Oregon domestic partnership law halted
A federal judge on Friday placed on hold an Oregon domestic partnership law that was set to take effect Jan. 1, The Associated Press reports.
Click here to read the full article.

Money Judgment Offsets Maintenance Arrearage
Decree provided that monthly maintenance stopped when Wife received $250 in disability payments, but context showed that such amount was also meant to be monthly, not aggregate. Wife's claim for arrearage in maintenance was within statute of limitations, and no "special facts demanding extraordinary relief" supported laches. But the arrearage was offset by an award of attorney fees, which the body of the writing expressly described as a judgment, and debt from property settlement, of which Wife failed to prove satisfaction by quitclaiming marital home.
John William Janes, Appellant-Respondent, v. Anita Jean Janes, Respondent-Appellant. Missouri Court of Appeals Western District

Supervised Visitation Affirmed
Appellant's history of physical abuse supported circuit court's award of supervised visitation only. Issue of statutorily mandated findings not raised in a motion to alter or amend judgment is not preserved for review. Allegation of physical abuse supported appointment of guardian ad litem. If a Form 14 is not correctly calculated, circuit court need not find that it is unjust and inappropriate to reject it.
K.L.A., Respondent, v. Jacob Dewayne Aldridge, Appellant. Missouri Court of Appeals Western District

Failure To File Form 14 Forfeits Findings
Docket entry, amended judgment, and order nunc pro tunc were ineffective to extend circuit court's jurisdiction. Only original judgment was subject to appeal. Findings of fact were sufficient as to change of circumstances and evidence supported them "given the extra deference to trial courts regarding child custody matters[.]" Award of tax exemption and denial of award for contempt affirmed. Remanded for evidentiary hearing on factual issues related to guardian ad litem fees.
In re the Marriage of: Denise A. Basham, f/n/a Denise A. Williams, Petitioner-Appellant, v. Mark Allen Williams, Respondent-Respondent. Missouri Court of Appeals Southern District

No Jurisdiction Over Visitation In Probate Division
Grandparents filed a guardianship and conservatorship action relating to grandchildren in probate division. Statutes governing such actions make no provision for visitation, so probate division had no jurisdiction to award visitation to Grandparents. Such void judgment was subject to attack at any time. Father challenged void judgment in circuit court, which declared probate division's judgment void, and Court of Appeals affirms.
In the Matter of D.C.O. and A.D.O., Bill Hitt and Brenda Hitt, Appellants v. Mark S. Odom, Respondent. Missouri Court of Appeals Southern District

Blank Space For Presumed Child Support Requires Remand
Circuit Court must find a presumed child support amount before rebutting it and finding that such amount is unjust or inappropriate. Otherwise, appellate review of judgment is impossible. Remanded.
Charlene Miller, Respondent, v. Danny Miller, Appellant. Missouri Court of Appeals Eastern District

Form 14 Omitted Amounts
Mother's petition was sufficient to raise issues of child support and insurance. New schedules for Mother's work and Child's pre-school constituted changed circumstances supporting change in custody. Circuit Court erred on Form 14 by failing to account for other children and Father's overnight adjustment. Remanded for recalculation.
Douglas A. Gray, Petitioner/Appellant, v. Marlene A. Gray, Respondent/Respondent. Missouri Court of Appeals Eastern District

Hearsay On Child Abuse May Be Admissible
Circuit Court did not err in awarding joint legal custody when record contains no evidence that parents can work together and plentiful evidence that they cannot. Circuit Court based its order regarding unsupervised visitation on substantial evidence. "Missouri courts recognize a hearsay exception in court-tried cases for the statements of a child who alleges abuse." But statement of child, other than the one whose best interest is at issue, is subject to exclusion as irrelevant.
In re the Marriage of: Karen R. Kroeger-Eberhart, Appellant, v. Herbert Eberhart, III, Respondent. Missouri Court of Appeals Eastern District

Joint Physical Custody Ordered At No Party's Request
Record showed that alternating weekends between parents worked, and no evidence showed that sole physical custody would be better, so Circuit Court did not err in ordering joint physical custody though no party asked for it. Misconduct before and during litigation supported denial of attorney fees. Remanded for findings of fact on maintenance.
Dayna Ethridge, Respondent, v. Dwayne Ethridge, Appellant. Missouri Court of Appeals Eastern District
Personal Injury Page Update:

Claim Of Tort Of Spoliation Rejected
If such a tort intentional third-party spoliation existed under Missouri law, Plaintiff's petition failed to set forth its elements. Plaintiff's claim for injuries was barred by workers' compensation law because Defendant showed that it was a statutory employer. Circuit Court did not err in dismissing petition.
Brian Fisher, Plaintiff/Appellant, v. Bauer Corporation, Defendant, and Adzick Construction Co., LLC, Defendant/Respondent. Missouri Court of Appeals Eastern District

Dangerous Condition Of Property Shown
Tree fell on member of tree-cutting crew in State-owned right-of-way. Worker showed an exemption to sovereign immunity for dangerous condition of property because she showed that the tree was made dangerous when an intervening party, the chain saw operator, cut it. Such operator not a third party because operator was under supervision of a public entity. Statute exempts residents of correctional institutions from workers' compensation, so tort action allowed. Verdict director was erroneous because it omitted the dangerous condition. Reversed and remanded.
Hortense Cain, Respondent, v. Missouri Highways and Transportation Commission, Appellant. Supreme Court of Missouri

Defiance Of Orders Supports Dismissal
Plaintiffs' personal injury action was dismissed because they refused court-ordered medical examinations. When their lawyer refused to re-file the personal injury action, they sued him for malpractice, which again put the claimed injury at issue, and again refused court-ordered medical examination. Record supports dismissal for contumacious and deliberate disregard of Circuit Court's orders.
Delores Stockmann and Greg Stockmann, Plaintiffs/Appellants, v. Joseph Frank, Defendant/Respondent. Missouri Court of Appeals Eastern District

Court Need Not Value Property Before Dividing It
Record supported Circuit Court determinations on which property and debts were marital and which were separate. Circuit Court erred in dividing property of which the owner was not a party to the dissolution action. Record must support value of property divided, but Circuit Court need not assign a value to each item before dividing it. Record supports the equitable nature of the property division as modified.
Helen L. Dunnagan, Respondent, v. Gregory John Dunnagan, Appellant. Missouri Court of Appeals Southern District

Motions For Rehearing And To Amend Both Required
Mailing of ruling on motion for rehearing starts time for filing appeal. Appeal from such ruling treated as appeal from judgment. When claimed error is failure to make findings of fact, rule also requires a motion to amend. "Each requests a different sort of relief, even though the support for the requests may come from the same allegations of error." Greater deference is given to Circuit Court in custody cases than in other cases. Statute requires evidence of a substantial change in circumstances, not a recitation of substantial change in judgment.
Susan J. Southard, Petitioner/Respondent v. James A. Southard, Respondent/Appellant. Missouri Court of Appeals Eastern District

No Appeal Before Property Division Is Complete
Judgment is not final until Circuit Court has made a complete division of property and debt, so Circuit Court retained jurisdiction despite premature appeal, which Court of Appeals dismisses.
Elizabeth A. Hopkins, Respondent, v. Mark Hopkins, Appellant. Missouri Court of Appeals Southern District

No Interest Due When Marital Home Sold
Judgment awarded equity in marital home to Husband if house sold. When House sold, Circuit Court granted Husband interest on equity. Court of Appeals reverses because interest was not awarded in judgment.
Randall, Boxx & Masri, P.C., Plaintiff, v. Ed Norman and Lonna Norman, Defendants-Appellants, v. Chris Pugh, Defendant-Respondent. Missouri Court of Appeals Southern District

Corporation Was Acquired In Contemplation Of Marriage
In bankruptcy proceeding, Husband stated that he had no interest in Corporation. In deposition, he said he owned no stock in Corporation. In dissolution proceeding, Husband claimed interest in Corporation as marital property. The first two statements do not support judicial estoppel of the third. The first is too vague, and the second too different, to constitute inconsistent positions. Record supports Circuit Court's finding that Husband and Wife formed Corporation in contemplation of marriage. Circuit Court did not err in valuing Corporation as of parties' stipulated date. Judgment was sufficiently prompt to support denial of Wife's motion to re-open record for new evidence of Corporation's value.
Deanna Daughhetee Vinson, Appellant v. Ray Vinson, Jr., Respondent. Missouri Court of Appeals Eastern District

Action For More Property Too Late
During dissolution action, Wife suspected that Husband had interest in property, but did not pursue the issue. Dissolution judgment is not subject to an equitable motion to vacate, because alleged fraud was not extrinsic to the judgment, it was a core issue. Statute of limitations for fraud ran because it requires a plaintiff "to act with due diligence to discover 'the facts constituting the fraud.' Where the means for discovery exist, a plaintiff is deemed to know of the fraud, so that the period of limitations commences to run then." Statute of limitations on actions for payment of money does not apply to judgment.
Marilyn Sharpe, Petitioner/Appellant v. William H. Sharpe, Respondent/Respondent. Missouri Court of Appeals Eastern District

Missouri Law Extends California Order
California child support order was due to expire, but Mother moved to Missouri and obtained modification. Father failed to appeal modification, and to impeach it when enforced or in his own action, and so waived personal jurisdiction. Father sought termination of child support, but Uniform Reciprocal Enforcement of Support Law only enforces payment of California order, not its termination. Missouri statutes extend child support through secondary education. "[T]he interest of Missouri in the welfare of its resident child outweighs the interest of [State] where father resides, in protecting its sovereignty."
Melissa Burke, Appellant, v. Earl Hutto, Respondent. Missouri Court of Appeals Eastern District

WEST VIRGINIA'S HIGHEST COURT HAS RULED:
Incarcerated father must still pay child support
A father who is incarcerated must still pay child support, but the amount due should be calculated based on his actual income and available assets, West Virginia's highest court has ruled.
Click here to read the full text of the opinion, and visit Lawyers USA's Family Law Specialty Page for an overview of recent developments in the area.

Child Support and emancipation in Missouri:
OVERVIEW: The father filed a motion to terminate his child support obligation based on the alleged emancipation of the child. The trial court entered a decision that the child was emancipated because the child had turned 18 and was no longer in school, and the trial court ordered the mother to return to the father the child support payments that had been made after the child became emancipated. On appeal, the court affirmed the trial court's decision. The court explained that the trial court's decision modifying a divorce decree was affirmed unless the decision was not supported by substantial evidence. The court found that there was substantial evidence that the child was emancipated. Mo. Rev. Stat. § 452.370.4 required the mother to notify the father of the child's emancipation and required the return of child support payments made after the child was emancipated.

OUTCOME: The court affirmed the decision of the trial court, which entered a decision that the parties' child was emancipated and ordered the mother to return to the father the child support payments made after the child became emancipated.

Wyrick v. Coles, 834 S.W.2d 910 (Mo. Ct. App. 1992)

Attorney Fee Award Requires Evidence
Party seeking award of attorney fees has the burden of proof. Record contains some evidence of father's financial resources—retirement and disability—but none on Mother's financial resources or on "any unusual circumstances warranting departure from Missouri's adoption of the American rule requiring each litigant to bear their own expenses." Circuit Court abused its discretion in awarding fees. Reversed.
Tina Marie Hihn, Respondent, v. Joseph Alexander Hihn, Appellant. Missouri Court of Appeals Eastern District

Follow Local Rules
Husband followed local rule, requiring service of schedule disclosing assets. Wife prepared, but did not serve, schedule differing as to one item. On such item, Circuit Court excluded Wife's evidence. On such record, Circuit Court did not err in classifying item as set forth in Husband's schedule: as Husband's separate property.
In Re: The Marriage of Jennifer Stonebraker and Leslie Stonebraker, Jennifer Stonebraker, Petitioner-Appellant v. Leslie Stonebraker, Respondent-Respondent. Missouri Court of Appeals Southern District

Inconsistent Findings Of Fact Require Remand
Circuit Court's inconsistent findings of fact on changes in circumstances for custody and child support thwart appellate review. "The trial court's use of language such as 'According to [Mother],' 'According to [Father],' 'In the opinion of the Court' throughout the 'Findings and Conclusions' portion of its judgment creates confusion as to what its actual findings and conclusions are." Remanded.
Suzanne M. McGahan, Petitioner/Respondent v. Gerard V. McGahan, Respondent/Appellant. Missouri Court of Appeals Eastern District

Criminal Non-Support Conviction Reversed
In criminal action, Defendant may collaterally attack administrative order not supported by judgment. Under rule of lenity, administrative order does not suffice as legitimation by "legal process" to establish parent/child relationship because such process requires a judgment.
State of Missouri, Respondent v. David Salazar, Appellant. Supreme Court of Missouri

No Modification On Incarceration
Factors guiding court's determination on whether incarceration is grounds to modify child support award include: "(1) the length of incarceration experienced for the current conviction and the anticipated remaining period of incarceration, (2) the earning potential of the incarcerated parent following release, (3) the amount of the existing child support award, and (4) the total amount of child support that will accumulate upon the incarcerated parent's discharge." Post-incarceration income may also guide payment of arrearage.
Londa J. (Tarver) Moran, Respondent, v. Lindel W. Mason, Appellant. Missouri Court of Appeals Southern District

Settlement Agreement Didn't Waive Notice Of Courses
Statute requires Child to give notice of higher education courses, credits and grades to prevent abatement of payments. Settlement agreement provided a date when Father's payments for higher education would terminate, but did not waive abatement, so statute applied. Circuit Court did not err in not finding Father in contempt for payments not made when Child failed to give required notice.
Ellen Elaine Shands, Plaintiff/Appellants v. Wendell Gregory Shands, Defendant/Respondent. Missouri Court of Appeals Southern District

Attorney Fees and Reimbursement On Wages Require Evidence
Withdrawal of wage assignment for child support mooted appeal of assignment, but not motion for reimbursement of wages assigned. Ruling on that motion required evidence, and Circuit Court erred in entering judgment on argument alone. Record showed that Father received only retirement and disability, and did not show Mother's resources, so substantial evidence did not support award of attorney fees. "While it is true that a judge is an expert on attorney's fees, an award of attorney's fees and expert's costs must be supported by competent and substantial evidence."Tina Marie Hihn, Respondent v. Joseph Alexander Hihn, Appellant. Missouri Court of Appeals Eastern District

Child's Best Interest No Basis For Summary Proceeding On Paternity
In an action to establish paternity under Uniform Parentage Act, preliminary advisory hearing to determine whether action is in Child's best interest shall be informal, without applying law of evidence, conducted by a special master, closed to the public. Circuit Court held the hearing before Circuit Judge. Circuit Judge conducted it as an evidentiary hearing and dismissed the action. Reversed. In the Matter of D.A.B. Alesya Beaird Litvinov, Appellant v. Paul G. Beaird, et al., Respondents; and In the Matter of D.A.B. Konstantin Litvinov, Appellant v. Paul G. Beaird, et al., Respondents. Missouri Court of Appeals Southern District

Local Government Pension Exempt Form Garnishment For Maintenance
Circuit Court did not err in dismissing application for withholding of maintenance against Local Government Employees Retirement System. Such application stated no claim for relief. The later-enacted specific statutory exemption of local government pensions prevails over general earlier-enacted statutes subjecting all income to garnishment for maintenance.
Carol J. Smith, Appellant, v. Missouri Local Government Employees Retirement System, Respondent. Missouri Court of Appeals Western District

Departure From Form 14 Requires Remand
Breakdown in communication between parents is a change in circumstances sufficiently significant to support a modification in custody. Stipulation that controlled the issues when Circuit Court rendered judgment expired while appeal was pending, mooting point based on stipulation. Child support amount deviating from presumed amount without explanation requires remand. Denial of attorney fees award affirmed.
Sarah Kim Margolis, Appellant v. Thomas H. Steinberg, Respondent. Missouri Court of Appeals Eastern District

Full Order Of Protection Affirmed On Venue, Evidence
Evidence of temporary living arrangements did not establish domicile, but did establish residence, both of which are options for venue in action on order of protection. Plaintiff's testimony supported a finding of unlawful imprisonment, which is grounds for a full order of protection, notwithstanding Defendant's testimony to the contrary.
M.R., Respondent, v. S.R., Appellant. Missouri Court of Appeals Western District

Inferences Support Judgment
On appeal of maintenance award, issue is whether Circuit Court could have found reasonable expenses and income to support amount awarded. When no party requests findings of fact, Court of Appeals resolves all factual issues in accordance with Circuit Court's judgment. Inferences from the record support required amounts.
Barbara K. Maxwell, Respondent, v. Curtis Lane Maxwell, Appellant. Missouri Court of Appeals Southern District