Decisons - Family Law Updates, Courtesy of Stuart Law

Grandparent Custody Affirmed
Lack of finding waived unless raised in motion to amend. To rebut presumption in favor of parental custody requires proof of “a special, or extraordinary, reason or circumstance [.]” Such circumstance included parent’s unstable home and abusive and manipulative behavior and absence of such issues with grandmother.
IN THE MATTER OF: K.S.H., by Next Friend M.S.H., and M.S.H., individually vs. C.K., Defendant-Appellant and R.W.H., Intervenor-Respondent
Missouri Court of Appeals, Southern District - SD31297

Judgment Reversed for Failure to Appoint Attorney
Statute requires court-appointed lawyer when parent requests one and cannot pay for one. Substantial evidence did not support finding that parent could afford lawyer. Presenting case did not waive parent’s right to appointment of licensed lawyer.
In the Interest of D.P.P.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED96324

Motion to Modify Needs No Response
No responsive pleading need be filed in response to a motion to modify, so failure to file a responsive pleading is not grounds for a default judgment.
BRIAN E. METTLACH, Petitioner-Appellant vs. RHONDA METTLACH, Respondent-Respondent
Missouri Court of Appeals, Southern District - SD31242

FMV Is Indispensible
Valuation of property must stand on evidence of current fair market value, so circuit court cannot base its judgment on testimony omitting such data, even if such testimony is more credible.
Heidi Katherine Wood, Respondent, v. Michael Stephen Wood, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED96218\

Maintenance Affirmed
Statute allows maintenance to spouse if spouse cannot meet reasonable needs through property after property division and appropriate employment. “‘Reasonable needs’ are not just the spouse’s actual expenses at the time of dissolution; the trial court may take into account the standard of living maintained by the parties during marriage.” Incomplete record does not support reversal. Courts need not impute interest to property at any specific rate without evidence. Speculation supports neither award nor limitation of maintenance. No abuse of discretion in finding that spouse could not support herself through appropriate employment.
Lamona E. Angel vs. Richard Charles Angel
(Overview Summary)
Missouri Court of Appeals, Western District - WD72918

Mental Condition Not Fatal to Parental Rights
Evidence did not show that parent’s mental disability made her unable to care for child. Evidence that parent erred in administering medication and continued to neglect household cleanliness, to a degree that threatened child with asthma, was less than clear and convincing. Parent’s progress and compliance with social services plan negated charge of failure to rectify a harmful situation. Evidence of child’s pleasure on seeing parent and reluctance to leave parent show an emotional bond that is relevant to child’s best interests.
In the Interest of L.J.D.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED96322

No Prejudice from Deficient Relocation Notice
Statute requires that parent relocating with child gives notice to other parent. Receipt of notice starts time to file motion to bar relocation. Deficient notice does not, alone, provide grounds to modify custody and visitation. Notice was deficient, but motion was timely, so no prejudice resulted. Record includes evidence to support findings on child’s best interest so Court of Appeals defers to circuit court.
CHAD HUNTER HENRY, Petitioner/Appellant vs. KRISTINA ROBIN HENRY, Respondent/Respondent
Missouri Court of Appeals, Southern District - SD30897

Stale Evidence No Good on Remand
Under rule conforming pleadings to the evidence, a petition seeking either sole legal and physical custody of children or unsupervised visitation may be basis for ordering additional supervised visitation. But such order must stand on relevant evidence including children’s best interest. Record made in judgment issued almost three years ago and since “reversed, annulled and for naught held and esteemed” does not support order. Statute provides that supervised visitation requires presence of a responsible adult. A person’s previous commitments and illness do not disqualify that person entirely but overnight supervised visitation was not shown to be practical. Statutes bar person convicted of offenses against child and their co-habitants from serving, which includes father’s co-habitant.
Susan M. Cannon (Randall) vs. James R. Cannon
(Overview Summary)
Missouri Court of Appeals, Western District - WD72997

Incarceration Not Sole Cause for Termination
Statute provides that incarceration cannot be sole grounds for termination of parental rights. But unfitness is a cause for termination. Record supported a finding of unfitness because father has and will have no bond with children due to lengthy federal imprisonment out of state.
In The Interest Of: C.S. and C.S., Jr. Juvenile Officer vs. C.S., Sr. (Natural Father)
(Overview Summary)
Missouri Court of Appeals, Western District - WD73782

No Collateral Attack on Adoption
Where adoption judgment is final, denial of petition for writ of habeas corpus is not subject to appeal.
In the Matter of the Estate of R.M.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED95675

Distribution was Separate Property
Record supported a finding that pre-nuptial agreement was conscionable but parts were too vague to enforce as argued. Record supports circuit court’s finding as to valuation of stock. Retained earnings of corporation, distributed to shareholders on liquidation in ownership, were separate property consistent with source of the income rule. No abuse of discretion in award of attorney fees. Statute provides interest on judgment starts with judgment’s issuance.
Kathleen Short, Appellant/Cross-Respondent, vs. Howard N. Short, Respondent/Cross-Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED95663

Biology is Not an Element of Non-Support
Appellant has criminal liability for failure to support a child “legitimated by legal process,” but statutes allow action to set aside judgment of paternity and support and expunge conviction.
State of Missouri vs. Bobby Lee Buckler
(Overview Summary)
Missouri Court of Appeals, Western District - WD72794

No Forced Relocation
Mother was never married to father and lives in Ohio, so circuit court ordered her to move to Missouri. Relocation statute does not apply. Statute on relocation does not apply until circuit court has determined custody. Mother did not agree to circuit court’s order to move from Ohio to Missouri.
A.E.B., a Minor by Next Friend, L.D., and L.D., Individually, Respondent/Cross-Appellant vs. T.B., Appellant/Cross-Respondent.
(Overview Summary)
Missouri Supreme Court- SC91716

Birthing Expense Award Affirmed
Failure to file motion to amend waives judgment’s lack of findings even if statutorily required. Statute requires judgment “establishing or modifying custody or visitation” to include notice of relocation procedure. Child’s Social Security benefits, derivative of father’s contributions, constitute a credit against child support. Statute allows circuit court to award “reasonable expenses of the mother's pregnancy and confinement” without pleading. Form 14s submitted in violation of rule constituted invited error.
Andrea L. Villines vs. Comer "Rex" Phillips
(Overview Summary)
Missouri Court of Appeals, Western District - WD1926 and WD71974 and WD72036

Relocation Notice Requirement is Strict
Statute requires that parent relocating with child give notice to other parent. Receipt of notice starts time to file motion to bar relocation. “[I]f strict compliance with section 452.377 is required for the party opposing relocation, then it is also required for the party proposing relocation.” Substantial compliance with notice requirement is not sufficient so omission of known address rendered notice inadequate to start time for filing motion.
SUSAN Z. ABRAHAM, Petitioner-Appellant vs. JOHN L. ABRAHAM, Respondent-Respondent
Missouri Court of Appeals, Southern District - SD31099

Maintenance Continues after Re-Marriage
Statute presumes that maintenance terminates at re-marriage of obligee unless otherwise provided. Agreement incorporated into judgment of dissolution was silent on re-marriage but provided that maintenance would continue until end of fixed period and terminate “only” on death of a party.
Robert J. Simpson, Appellant, vs. Rowena A. Simpson, Respondent.
(Overview Summary)
Missouri Supreme Court - SC91498

Two Parts, Two Issues, Two Standards When Terminating Parental Rights
To protect fundamental interest in parental rights, statute provides that “clear, cogent and convincing evidence” must support cause for termination. Such evidence need not support each item of evidence underlying findings of fact. One ground is sufficient so lesser evidence on other grounds does not require reversal. To protect child, statute provides that preponderance of the evidence must support child’s best interest and constitution does not require a higher standard because child protection, not a fundamental parental right, is at issue. Circuit court’s projection of future harm from past conduct has support in record.
In the Interest of: B.H.
(Overview Summary)
Missouri Supreme Court - SC91584

No Modification Without Notice
At hearing in action to modify custody, appellant received notice of action ordering her to file a responsive pleading, and circuit court entered default based on failure to file responsive pleading and appear at hearing. On motion for relief from default judgment, appellant showed that statute did not require a responsive pleading, and appellant received no notice of hearing. “The language of a summons cannot impose a requirement to file a responsive pleading on Mother where no rule or statute requires the filing of a responsive pleading to a motion to modify.” Circuit court erred in deciding not to set aside default judgment.
Christopher Paul Schwermer vs. Amanda Lynn Schwermer
(Overview Summary)
Missouri Court of Appeals, Western District - WD73685

Non-Resident Gets Child Support
Federal law controlling Missouri provisions states that services shall be available regardless of nationality. Missouri statutes state that child support is available for all children. Provision, that child support is the same for other States’ residents as for Missouri residents, does not exclude residents of foreign nations.
Mark Andre Lajeunesse vs. State of Missouri, Department of Social Services, Director, Family Support Division
(Overview Summary)
Missouri Court of Appeals, Western District - WD73477

Maintenance Amount Needs Proof
Respondent showed that she qualified for maintenance but not what amount was due. “[W]here the proof seems to be available, the case should be remanded to permit the introduction of additional evidence.” Award reversed and remanded to take evidence of respondent’s reasonable needs on which to base amount of award.
MAUREEN MAREI DIRUSSO, Respondent vs. JOHN J. DIRUSSO, Appellant
Missouri Court of Appeals, Southern District - SD30859

Attorney previously consulted by a prospective client in divorce case is not barred from subsequent representation of ex-spouse of prospective client in modification action absent proof that confidential information was previously provided that could be significantly harmful in current case. State ex rel., et al. v. Dueker, No. 96570 (Mo. App. E.D., August 9, 2011), Crane, J.

This is an action for a writ of prohibition to prevent the trial court from barring the Schechter Law Firm from representing the ex-wife in an action brought by the ex-husband for modification of a maintenance judgment granted in the ex-spouses' divorce. It seems that prior to the finalization of the divorce action the ex-husband had consulted with a member of the Schechter Law Firm. He paid for the consultation but did not hire the firm. Four years later the ex-husband sued for a modification of the original maintenance judgment. Another member of the Schechter Law Firm was hired to represent the ex-wife, and the ex-husband sought an order requiring the firm to withdraw as her attorneys. The trial court agreed with the ex-husband and this proceeding in prohibition challenging that decision ensued. A temporary writ issued.

Held: Preliminary writ made permanent. The firm is allowed to represent ex-wife. The ex-husband met with a member of the firm for about one hour during which he discussed personal and confidential information about his business and personal life. He paid the firm for the consultation, but never hired the firm.

Editor's note: The ex-husband appears from the court's opinion to be the prototypical "prospective client."

The court's opinion notes the difference between former clients and former prospective clients, stating "An attorney-client relationship exists when a prospective client seeks and receives legal advice and assistance from an attorney who intends to undertake to provide legal advice and assistance to the prospective client in a particular matter. Donahue v. Shugart, Thompson & Kilroy, PC, 900 S.W.2d 624, 626 (Mo. banc 1995) et al." "Mere payment of a fee without proof that the payor received legal advice or assistance from the attorney or that the attorney intended to provide the client with legal advice or assistance, does not show an attorney-client relationship. Mid-Continent v. Powell, 196 S.W.3d 595, 598 (Mo. App. 2006) (citing Leidy v. Taliaferro, 260 S.W.2d 504, 507 (Mo. 1953)."

The opinion states that neither the ex-husband nor the original attorney consulted provided evidence that any legal advice was sought or provided in that one consultation four years hence. "Thus, `[i]n the context of prospective clients, a conflict occurs not because of the fact of consultation, but because of the passing of confidential information from the prospective client to the lawyer.' Pelley v. State, 901 N.W.2d 494, 507 (Ind. 2009) (citing RESTATEMENT (THIRD) OF THE LAW GOVERNING LAWYERS Sec. 15 (2000); see also Charles W. Wolfrom, Ethics 2000 and Conflicts of Interest: The More Things Change.., 70 Tenn. L. Rev. 27, 60 (2002)." "Accordingly, to disqualify a lawyer on the basis of a consultation with a former prospective client, not only must the matter of the consultation and the adverse matter be the `same' or `substantially related,' but also the information received during the consultation must be `significantly harmful if used in the matter.' Rule 4-1.18(c)." The burden is upon the party seeking disqualification.

Order of child protection proper against unmarried cohabitant of non-custodial parent because the child stays with each parent according to an on-going schedule.Cima v. Fansler, No.72702 (Mo. App. W.D., July 26, 2011), Hardwick, J.

An order of child protection was granted against Fansler who challenged, among other things, the conclusion that the child and she shared a household. Fansler is residing with the child's father, who is the non-custodial parent of the child and receives regular parenting time pursuant to an existing judgment for dissolution of marriage.

Held: Affirmed. The court's opinion notes the dearth of prior case law assessing a person's status as a resident of the child's household. Fansler argued that the child resides with his mother the majority of the time.

"Countryside Cas. Co. v. McCormick, 722 S.W.2d 655 (Mo. App. 1987), is helpful in the context of this case. In Countryside, the court held that a child with separated parents could have two separate residences. Id. at 659." The standard for determining if the child has two separate residents under these circumstances involves whether there are on-going periods of residence with both parents and whether the non-resident parent provides substantial support of the child in the home where the child primarily resides. "Evidence of either of these factors may be sufficient to warrant the determination that a child continues to be a resident of the insured parent's household. Id. at 657 (quoting Widiss, Uninsured and Underinsured Motorist Insurance, Second Ed. Vol. 1, Sec. 4. 13)." Consequently, Fansler met the statutory requirement as a member of the child's household.

Trial court erroneously concluded that disabled ex-spouse's social security disability benefits would continue in combination with imputed income that the court concluded she was capable of earning because the latter would cancel the former, if actually earned. Lindhorst v. Lindhorst, No. 90996 (Mo. Banc, June 14, 2011), Teitelman, J.

The parties were divorced in 1998 at which time the Wife received maintenance of $1,000 per month. She earned $1,387 per month as a registered nurse at that time. In 2003, she was determined to be disabled by the Social Security Administration and began receiving disability benefits. In 2008, the husband sued for a termination of maintenance and proved to the trial court's satisfaction that the wife was capable of earning $1,600 per month. "The trial court recognized the imputed income from part-time employment as `income in addition to her Social Security disability benefit.' "It reduced the maintenance amount. The wife appealed.

Held: Reversed. "Federal Social Security disability benefits are intended to `replace income lost due to the recipient's inability to work.' Weaks v. Weaks, 821 S.W.2d 503, 506 (Mo. Banc 1991). The applicable regulations provide that disability benefits will stop if the recipient engages in `substantial gainful activity.' 20 C.F.R. 404.401a." The amount of work the trial court concluded the Wife was capable of doing would be "substantial gainful activity" and would negate her Social Security disability benefits. "Consequently, the trial court erred in considering both the imputed income and (Wife's) Social Security disability benefit as a basis for reducing (Husband's) monthly maintenance obligation."

Next Friend Properly Named
Because constitution determines jurisdiction of circuit court, statutory references to jurisdiction refer to conditions for relief. Statute provides that minor without guardian appears in paternity action through next friend. Statutes did not prevent naming putative father as next friend and any error in naming next friend was no jurisdictional defect.
In re E.A.K., by her next friend R.L.K. R.L.K., Respondent vs. T.S.A.A.-C., Appellant
Missouri Court of Appeals, Southern District - SD30936

Relocation Denial Affirmed
Judgment for party with no burden of proof needs no evidentiary support. Review of judgments on motion to relocate is fact-specific. Judgment denying relocation was not against the weight of the evidence even when evidence might support a different result when weighed by a different fact-finder.
BOBBY WOODROW MITCHELL, Respondent vs. DEVIN ODALE MITCHELL, Appellant
Missouri Court of Appeals, Southern District - SD30775

Termination of Parental Rights Affirmed
Evidence of one statutory ground for terminating parental rights and one statutory factor as to child’s best interest supports circuit court’s determination to terminate parental rights. Evidence of whether mental condition threatening children’s safety is likely to improve, or further services will be effective, is for circuit court’s determination. Evidence that children still love their mother does not protect children, and does not outweigh their desire to not return to her custody.
IN THE INTEREST OF: T.L.B., M.K.S., N.T.S., N.J.S., and K.M.S., Minors A.M.B., Natural Mother, Appellant vs. GREENE COUNTY JUVENILE OFFICE, Respondent
Missouri Court of Appeals, Southern District - SD31135-SD31139

No Prejudice Shown in Property Division
In awarding land as separate property, circuit court failed to consider that marital income went to improving its value. But Appellant failed to show prejudice because she did not allege or show how the property division shorted her. Affirmed.
IN THE MARRIAGE OF: FRED A. GLENN, Respondent vs. DIANA R. MOORE GLENN, Appellant
Missouri Court of Appeals, Southern District - SD30829

Dissolution Decree Bars Later Action
Statute provides that property distribution is not modifiable. Res judicata bars later action to recover property, because property could have been sought in action for dissolution of marriage, in that property was known and the subject of discovery in dissolution action. Facts, not theory, on which relief is based defines claim. Defendant's bank could not convert checks issued to appellant but never delivered to her because conversion requires appellant to have had possession.
Susan Beth Dahn vs. Marcus Dewitt Dahn, A-1 Alarms, Inc. and First Community Bank
(Overview Summary)
Missouri Court of Appeals, Western District - WD71626

Imputed Income Negates Benefits
Federal statutes provide benefits to persons who, due to disability, have no income. Imputing income thus negates the premise of disability benefits. Therefore, circuit court cannot set child support and maintenance, and deny retroactive child support presumed under local rule, based on both benefits and imputed income.
In re the Marriage of Tanya L. Lindhorst and Eric J. Lindhorst; Tanya L. Lindhorst n/k/a Tanya L. Templeton, Appellant, vs. Eric J. Lindhorst, Respondent.
(Overview Summary)
Missouri Supreme Court - SC90996

TPR Affirmed
Record supports finding of “Mother’s extensive and continuing problems with engaging in episodic anger-induced violence and feloniously dangerous behaviors” and other statutory grounds for termination of parental rights.
In The Interest of: J.S.W.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED95390

TPR Affirmed
Incarceration is not determinative but is relevant and does not excuse failure to maintain minimal contact with child. That father’s ability to parent child “was . . . no better . . . on the date of trial than . . . at the time [child] was taken into custody” shows failure to rectify. Absence of emotional ties, foster home’s stability and father’s inability to provide stable home for child show that termination of parental rights is in child’s best interest.
In the Interest of: K.M.W., Minor GREENE COUNTY JUVENILE OFFICE, Petitioner-Respondent vs. B.D.W., Natural Father, Respondent-Appellant
Missouri Court of Appeals, Southern District - SD30885

Property Not Subject to Division
Circuit court “does not have authority to enter a decree dividing property not owned by either husband or wife.” Husband and wife’s children were beneficiaries of trust accounts, so circuit court could not divide them. Court of Appeals enters judgment that circuit court should have.
In re the Marriage of Faye Michelson and Mark Michelson: Faye Michelson, Respondent, v. Mark Michelson, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED95221

Remand for Retroactive Correction
Parties agreed that circuit erred by ordering an amount of maintenance other than what it found was due. Remanded with instructions to correct judgment retroactively.
Brent L. Uhrmacher vs. Lisa-Anne Uhrmacher
(Overview Summary)
Missouri Court of Appeals, Western District - WD71849

TPR Affirmed
Clear, cogent and convincing evidence that allowed the termination of Father’s parental rights included continuous lack of stable housing and employment, and failure to use services that would get children back. “A lack of effort to comply with a plan . . . can predict future problems.” Factors showing that children’s best interest supported termination included father’s continuation of criminal activity, despite resulting confinement, and father’s failure to offer financial support.
IN THE INTEREST OF: A.L.M., K.M.M., M.J.C.M., and R.K.M., Minors, D.L.M., Natural Father, Appellant vs. GREENE COUNTY JUVENILE OFFICE, Respondent
Missouri Court of Appeals, Southern District - SD30837 and SD30840

TPR in Adoption Action Affirmed
Exhibit outside the record is stricken. Standard under one chapter of statutes do not apply to action under another of statutes that allow termination of parental rights on a finding of willful abandonment for six months. Record supports such a finding because it showed no attempts at contact or support such as are possible even during incarceration. Child’s best interests trump father’s sense of fairness. Undetermined motion to strike does not preserve evidentiary objection for appeal.
IN THE MATTER OF: H.N.S. and K.J.S., minors
Missouri Court of Appeals, Southern District - SD30826

Settlement Agreement Ambiguous
Court of Appeals presumes that exhibits, not included in record on appeal, favor respondent. “[W]hether reasonable persons could fairly and honestly differ as to what the language in the settlement agreement means” determines whether settlement agreement is ambiguous. Settlement agreement provided that parties would split proceeds from sale of house, but did not state whether proceeds included encumbrance, so it was ambiguous. Circuit court did not abuse its discretion in disbelieving survivor’s extrinsic evidence and construing settlement agreement against drafter.
NORMA LEE LEKANDER, Petitioner-Appellant vs. IN THE ESTATE OF WILLIAM ROBERT LEKANDER, SR., Deceased, JASON WERNER LEKANDER, as Personal Representative of the ESTATE OF WILLIAM ROBERT LEKANDER SR., Deceased, Respondent-Respondent
Missouri Court of Appeals, Southern District - SD30702

No Evidence of Future Harm or Neglect
Statute allows termination of parental rights for abuse, or neglect, and failure to rectify but
requires clear, cogent and convincing evidence including a convincing link between past conduct and future behavior. Evidence that parent hurt child, or knew who did but would not say, was 15 months old at trial and did not support a projection of future conduct. Record included no testimony that parent was likely a danger to child in the future and that parental rights should end.
In The Interest of: X.D.G., Minor GREENE COUNTY JUVENILE OFFICE, Petitioner-Respondent vs. K.D.G., Natural Father, Respondent-Appellant
Missouri Court of Appeals, Southern District - SD30860

Contempt Order Must Have Supporting Findings
Non-payment of maintenance is grounds to jail ex-spouse for contempt, if ex-spouse has the ability to pay and thus purge contempt. That ex-spouse could purge contempt does not appear in the record. “The trial court made no findings determining Husband's income, his other financial obligations, whether he had divested himself of assets, what other assets were available to him, or the reasonableness of his claimed expenses . . . and state only conclusions, not facts, and, therefore, are facially insufficient.” Reversed.
Reynal Caldwell, Appellant, v Theresa Caldwell, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED95484

QDRO Not Qualified
Property division is not subject to re-determination and statutes governing qualified domestic relations order permit modification only to further intent of decree and protect qualified nature of QDRO. Later QDRO altered property division by equity value as set forth in dissolution decree, used wrong accrual date, was based on amounts not supported by record, and failed to make actuarial adjustments.
In re the Marriage of Richard V. Green and Sigrid V. Green, Richard V. Green, Appellant, v. Sigrid V. Green, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED94417

Maintenance Continues
Modification of maintenance is subject to review under abuse of discretion standard, and such discretion is less “[f]ettered” than on establishment of maintenance. Movant has burden of proof to show both grounds for and amount of modification. Record supported a finding that maintenance recipient could not meet her reasonable obligations through reasonable employment. Judgment’s conformity to settlement showed that amount awarded was reasonable.
Sharon Mary Conrad-Neustadter vs. Roger Marc Neustadter
(Overview Summary)
Missouri Court of Appeals, Western District - WD72040

Termination of Support Affirmed
Statute provides that circuit court may terminate support when parent requests documents on post-secondary education and does not receive them. Documents required to list the courses completed, credit hours for such classes, and grades. Class schedule for coming semester does not meet that description.
In Re the Marriage of: CLAIRE NOLAND-VANCE and BRENT VANCE, CLAIRE NOLAND-VANCE, Petitioner-Appellant vs. BRENT VANCE, Respondent-Respondent
Missouri Court of Appeals, Southern District - SD29773

Repeated requests for relocation, denied by the court, held not to justify a modification of custody. Hendry v. Osia, No. 94722 (Mo. App. E.D., March 29, 2011), Norton, J.
Full Summary and Other Cases

Court Must Hear Both Sides
Appellant filed motion to modify child support. Respondent filed motion to dismiss under rule allowing dismissal for appellant’s failure to comply with court order. Appellant’s convictions on charges of criminal non-support during certain periods did not collaterally estop litigation as to any other period. Circuit court erred in granting respondent’s motion to dismiss appellant’s motion to modify without hearing appellant’s response.
Erica L. Aubuchon, k/n/a Erica L. Sanchegraw, Respondent, v. Chad Aubuchon, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED94683

Attorney Fees Award Discussed
Statute allows award of attorney fees, and such award requires consideration of parties’ respective abilities to pay, but other factors include prolongation of litigation. Prevailing party’s ability to pay does not bar award, and circuit court did not err in attributing prolongation of litigation to appellant.
Amy Andrews n/k/a Amy Coleman,Respondent, v. Louie S. Andrews, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED94236

Relocation Affirmed under Joint Custody
Court of Appeals will affirm circuit court’s decision on motion for relocation if evidence supports it, even if evidence would also support a different conclusion. Matters to consider include factors for determining custody, parent’s move to better situation, travel time and expense, and highway time for child.
Laura Anne Robinson vs. Jeremy Lee Robinson
(Overview Summary)
Missouri Court of Appeals, Western District - WD72002

Forced Home Sale to Pay Maintenance Reversed
Record supported circuit court’s finding on marital home’s value and circuit court need not grant tardy motion to re-open record for more such evidence. Record supported findings on wife’s need for maintenance and husband’s ability to pay. Reasonable needs of husband are relevant to setting maintenance. Circuit court concluded that husband could not pay both maintenance and mortgage. In such a case “it is the duty of the payor spouse, not the court, to determine how best to meet those obligations.” Circuit court abuses its discretion in ordering sale of marital home unless evidence shows that it is a last resort to benefit at least one party when no in-kind property division will do and circuit court considers “judicial reluctance to uproot the custodial parent and unemancipated children residing there.”
Chiquita H. Handy vs. Kevin L. Handy
(Overview Summary)
Missouri Court of Appeals, Western District - WD71888

In TPR, Appoint Counsel on Request
As to statutes on termination of parental rights, “failure to strictly comply results in reversible error. ”Statute provided that a child’s indigent custodian shall, on request, have appointed counsel at all proceedings, including any proceeding after request. Custodian includes parent. Self-representation is no substitute for counsel.
In the Interest of: C.F. and A.K.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED95633

Must Appeal All Grounds for Termination of Parental Rights
Statutes on termination of parental rights do not necessarily apply in adoption action. Judgment shows that court proceeded under adoption statutes so lack of findings under termination statutes was no error. Judgment found both abandonment and neglect, so failure to appeal one allows other to stand.
In Re The Matter of the Adoption of: H.D.J.K., L.M. vs. K.K. (Natural Mother)
(Overview Summary)
Missouri Court of Appeals, Western District - WD72885

Grounds to Deny Relocation Shown
Record supported denial of mother’s motion for relocation because it contained evidence that relocation would disrupt parental involvement and “adjustment to home, school, and community[;]” and would provide no better education. But relocation was grounds for father’s motion to modify custody, so denial of relocation did not support modification of custody.
Shelly R. Osia Hendry, Appellant, v. Raymond C. Osia, Respondent.
(Overview Sumamry)
Missouri Court of Appeals, Eastern District - ED94722

Marital Property Discussed
Record showed that husband acquired real estate, increased retirement account, and opened savings account after marriage, making them marital property. Postnuptial agreement to waive interests in property must be made “freely, fairly, knowingly, understandingly and in good faith with full disclosure[,]” conscionably, and with consideration. In calculating child support, circuit court did not err in giving no credit to father for benefits due child that went to someone other than child’s custodian. Father’s evasion of discovery supported attorney fee award.
JENEFFER KEET BELL, Petitioner-Appellant/Respondent vs. MARK ROBERT BELL, Respondent-Respondent/Cross-Appellant
Missouri Court of Appeals, Southern District - SD30208 and SD30222

Abatement and Modification are Different
Abatement of child support is subject to different statutes than modification of child support—modification cannot be retroactive before service of process for modification action, while abatement may occur before any action is filed. Child’s change of residence showed voluntary relinquishment of custody. Decree provision conditioning parental support for college on child’s obligation “to apply for all available grants and scholarships to help defer [college] costs” left choice of institution to child. Statute, providing how child may require parent to pay support beyond the age of eighteen or share college expenses, requires a semester-by semester analysis. It requires proof in the form of an “official document” of classes and credits, but not necessarily a transcript.
John H. Colborne vs. Corinne J. Colborne (Now Drummond)
(Overview Summary)
Missouri Court of Appeals, Western District - WD71764

Tax Intercepts Revive Judgment
Statute provides that any child support payment is presumed paid ten years after its due date, absent revival of judgment. Revival of judgment occurs on recording of payment. Recorded payments include intercepted income tax refunds noted by court administrator.
James F. Martin vs. Emma F. Martin, State of Missouri ex rel. Department of Social Services, Family Support Division
(Overview Summary)
Missouri Court of Appeals, Western District - WD72186

Judgment Was on the Merits, Not a Default
Default occurs when party fails to appear for trial and fails to file pleading, so plaintiff is never in default, even when his pleadings are struck. When plaintiff failed to appear, defendant presented evidence. Such evidence supported judgment as to marital misconduct and spousal abuse, custody, property division, maintenance, attorney fees and costs. “It is unclear why Husband ignores the evidence relied on by the trial court.”
Michael E. Lindsey, Appellant, v. Zina A. Lindsey, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED94281

Empty-chair' trial nets $30M bench verdict for jilted woman
March 21st, 2011

A North Carolina judge has awarded the jilted spouse of Donald Puryear $30,162,000 in her suit against the woman she accused of stealing his affections.

Findings Required on Custody Issues
Evidence of past earnings in defunct business did not weigh against finding of no income potential. Maintenance of modifiable amount and indefinite duration is preferred. Award of statute requires no findings of fact on maintenance and absence of findings is no error when appellant asked for none. For custody award, statute requires findings on best-interest and public policy factors, rejection of parenting plan, on evidence of domestic violence, and on allegations of mental illness.
Scott Benjamin Hall vs. Elizabeth Joanne Hall
(Overview Summary)
Missouri Court of Appeals, Western District - WD72290

Expenses Must Have Ceiling
Order of modification provided that parents must split unlimited expenses for child’s extracurricular activities; mother determined what such activities will be. Assigning discretion was not error. But such order was unenforceably vague for lack of “sufficient limiting criteria to allow computation of the exact amount owed through ministerial computations or evidence presented at a hearing of actual amounts spent.” Point relied on did not correctly characterize circuit court error and is denied. Judgment cannot order parent to maintain life insurance for child’s benefit unless separation agreement does.
Julie Anne (Ferber) Pratt vs. David Victor Ferber, III
(Overview Summary)
Missouri Court of Appeals, Western District - WD72166

Statutes Do Not Determine Jurisdiction
Constitution determines circuit court subject matter jurisdiction, so provisions of Uniform Interstate Family Support Act governing how to modify another state’s judgment may be waived.
Marian Ware, Appellant, v. Philip Ware, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED95236

Duplication of Expense Requires Remand
Circuit court may not award custody based on religious preferences but husband showed no prejudice in circuit court’s inquiry into his faith. Circuit court need not impute full-time to wife employed part-time when children have special needs and are in her custody. Record supports amount assigned to cell-phone expense. Including daycare expense in both maintenance and child support expenses was an error. On remand, parties may present evidence of income produced by property awarded to wife and student loan expenses.
In Re the Marriage of Christi L. Atchley, Respondent, v. David M. Atchley, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED94525

Marriage annulled rather than dissolved. Meadows v. Meadows, No. 30426 (Mo. App. S.D., January 11, 2011), Barney, J.

This summary is provided primarily because there are so few appellate opinions regarding annulment. It is also instructive for cases in which one of the parties is incarcerated. The parties were married while the Husband was serving a life sentence in prison without the possibility of parole. Approximately 2 ½ years after the marriage, the Husband filed for a dissolution of the marriage. The Wife countered with a request for annulment. In the lead-up to trial, the Husband sought writ of habeas corpus so he could be present for the trial. That request was denied. The Wife testified to a variety of circumstances indicating that false representations made by the Husband had induced her to marry and remain married to him. She stated also that the marriage was never consummated. The trial court granted the Wife's request for an annulment. The Husband appealed.

Held: Affirmed.

Reason: "`The right of access (to the courts) does not automatically encompass a right to be present in person at trial.' State of Washington ex rel. Lewis v. Collis, 963 S.W.2d 700, 704 (Mo. App. 1998)."

" `.a prisoner has no absolute right to appear personally in a civil proceeding.' Beckwith v. Giles, 32 S.W.3d 6559, 663 (Mo. App. 2000); see Muza v Department of Social Services, 769 S.W. 2d 168, 176 (Mo. App., 1989)."

The opinion notes that the court may also look to reasonable alternative means by which a prisoner may be heard and thus gain access to the court. Beckwith 32 S.W. 3d at 663; see Kittrell v. Carr, 878 S.W. 2d 859, at 862 (Mo. App., 1994).

"Here it was Husband's burden to demonstrate he was denied meaningful access to the courts or that he was `substantially and irreparably prejudiced by his failure to attend' his hearing. State v. Christian, 182 S.W. 3d 240, 243 (Mo. App. 2005)."

Less than twelve college credits earned: impact on child support. Rozelle v. Rozelle, No. 94167 (Mo. App. E.D., September 14, 2010), Per curiam.

The parties were divorced in 2000. Their younger son began college in a timely manner. However, although enrolled in a minimum of twelve credit hours, he earned eight credits his first semester, and nine credit hours per semester twice thereafter. The Father sought a declaration of emancipation. The failure to earn twelve credit hours all occurred after the 2007 amendment of the child support statute (Section 452.340.5, RSMo). That amendment in pertinent part states that ". [W]hen enrolled in at least twelve credit hours, if the child receives failing grades in half or more of his or her courseload in any one semester, payment of child support may be terminated and shall not be eligible for reinstatement." The trial court noted the public policy of the State of Missouri promoting the pursuit of higher education and did not emancipate the child. The Father appealed.

Held: Affirmed. ". [T]he 2007 amendment [of Section 452.340.5] appears to indicate the Missouri legislature's priority to provide continuing support to any child who is continuing his higher education, regardless of academic struggles." Because the child continues to enroll in at least twelve credit hours and is continuing to go to college, it was not error to require the Father's continued support.

Modification of maintenance, not termination: cohabitation of payee. Karasiuk v. Karasiuk, No. 93632 (Mo. App. E.D., September 7, 2010), Sullivan, J.

The parties' marriage was dissolved in 2002, and the ex-husband was ordered to pay $12,000.00 per month in modifiable maintenance. The ex-wife has maintained a monogamous relationship with another man since 2003. They began living together in 2006 and have a child together. The evidence was that they intend to remain in a permanent, committed relationship. The trial court found that this relationship of the ex-wife warranted a reduction in her maintenance, but not termination. The trial court found that the ex-wife has what is intended to be a permanent relationship, but that they have not engaged in a "commitment service"; have not held themselves out as husband and wife; have no intention of getting married; and do not share finances, bank accounts or survivorship rights on life insurance or investment accounts. Therefore, this relationship was not a "substitute for marriage," but cohabitation only. The maintenance was reduced to $6,300.00 per month. The ex-husband appealed.

Held: Affirmed.

The case of Herzog v. Herzog, 761 S.W. 2d 267 (Mo. App. E.D. 1988), was relied upon by the ex-husband in arguing it was error not to terminate maintenance because the ex-wife's relationship was a substitute for marriage. The opinion notes that the statute regarding modification of maintenance (Section 452.371, RSMo), as amended after Herzog was decided, currently includes consideration of a payee's cohabitation with a person who is or should be sharing living expenses. It was not error ". in treating. (the ex-wife's) relationship as one of cohabitation and not as a substitute for marriage," since there was an absence of financial commitment between ex-wife and the other man.

Cash Award Affects Maintenance
Spouse, as part owner of property, may testify to its value. Circuit court need not believe a party’s financial evidence especially where some is missing. Circuit may consider health and education issues in deciding whether to impute income. Circuit court must consider income derived from award of cash assets in determining maintenance. On remand, circuit court shall also consider effect on judgment of mathematical error in adding value of property awarded.
Rex Earl Sharrai vs. Kristi Lynn Sharrai
(Overview/Summary)
Missouri Court of Appeals, Western District - WD71279

No Palimony by Unjust Enrichment
Plaintiff, decedent’s cohabitant, sued decedent’s estate for unjust enrichment. Circuit court found that plaintiff did not significantly contribute to construction of residence or purchase of rental property. Circuit court also found that plaintiff did not show that she received from decedent, in cash and in kind, less than she contributed. The record supports those findings. Therefore, circuit court did not err in finding that plaintiff’s cohabitation with decedent did not unjustly enrich decedent under theory of contract implied-in-law. Other theories of contract, implied-in-fact or express, do not apply on appeal when not raised in circuit court.
JUDY ANN JOHNSON, Plaintiff-Appellant vs. ESTATE OF WESLEY H. MCFARLIN, Deceased, by and through its duly appointed Personal Representative, REBECCA J. LINDSTROM, Defendant-Respondent
Missouri Court of Appeals, Southern District - SD30149

Judgment Not Final
Transferring separate property to both spouses, like refinancing one spouse’s house in both spouses’ names, raises a presumption that the house is now marital property, rebuttable only with clear and convincing evidence. Judgment, omitting from distribution brought to the attention of the trial court before the time for appeal had expired, is not final but Court of Appeals rules on points for judicial economy.
Nicole L. Howery vs. Roger William Howery
(Overview Summary)
Missouri Court of Appeals, Western District - WD71596

No Bond Required For Initial Custody
Statute, requiring any parent who is $10,000 behind in child support to bond, does not apply to judgment of initial custody, only to a modification of custody.
In re C.M.B. and M.M.J.B., by their Next Friend, MICHAEL BARKER, and MICHAEL BARKER, Individually, MICHAEL BARKER, Respondent, vs. REBECCA SUE LIND, Appellant.
Missouri Court of Appeals, Southern District - SD30210

Abandonment After State took Custody Shown
Evidence, that Father did not see children for a year while they were in State’s custody, supports a finding of abandonment by clear, cogent and convincing evidence. “[A] parent’s post[-]filing conduct is often given little weight in determining repentance and cannot be the court’s sole factor in finding repentance.” As to children’s best interests, record also contained evidence that children were emotionally detached from Father and no further services would help. Statute provides that, in determining children's best interests, circuit court need not give more weight to Father’s “token gestures” than to evidence of disinterest in children.
IN THE INTEREST OF: L.M. and A.M., Minors R.J.M., Appellant, vs. PHELPS COUNTY JUVENILE OFFICE, Respondent
Missouri Court of Appeals, Southern District - SD30082 & SD30083

Termination of Parental Rights Unsupported
Statute provides that, when considering whether to terminate parental rights, circuit court must consider certain factors, as to which evidence was either absent; less than clear, cogent and convincing; or favored parent. Factors including whether mental condition will improve does not mean intelligence. Whatever else may be appropriate, judgment terminating parental rights on such record is erroneous.
In the Interest of: T.A.L. Juvenile Officer vs. P.L.H. (Natural Mother)
(Overview Summary)
Missouri Court of Appeals, Western District - WD71958

Party’s Purchase Of Marital Home Triggered Maintenance
Parties’ agreement provided that maintenance obligation began with sale of residence. Wife’s sale of her interest in residence is within that provision, as husband’s testimony and transaction documents show.
Loretta M. Harvey, Respondent, v. Alfred D. Harvey, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED93159

Evidence For Attorney Fees PDL Discussed
Rule deems premature notice filed immediately after judgment becomes final. Standard of review for order pendent elite is less than for final judgment. To order attorney fees on account, circuit court needs no evidence of how much work needs to be done. Evidence of the parties’ resources, circuit court’s own expertise, and other relevant matters will do.
In re the Marriage of Kim E. Gardner and Claire Gardner: Kim E. Gardner, Appellant, v. Claire Gardner, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED94126 and ED94164

Court Can’t Pick Representative Payee
Statutes create a presumption preferring parents as child’s guardian, rebuttable by evidence that parents are unwilling, unfit, or unable. Evidence showed that mother’s five-year-old head injury continued to disable her and supported guardianship of paternal grandmother, with whom child had lived. Circuit court has no authority to appoint a representative payee for receipt of child’s social security benefits because only Commissioner of Social Security can do so.
In The Estate Of: A.T.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED94089

Amended Statute Extends Student’s Emancipation
Amended statute continues child support based on enrolling for at least 12 hours and ends it based on failing half of enrolled hours. “[T]he 2007 amendment appears to indicate the Missouri legislature’s priority to provide continuing support to any child who is continuing his higher education, regardless of academic struggles.” Court of Appeals corrects mathematical error in circuit court’s judgment.
Brian Rozelle, Respondent/Cross Appellant, v. Vickie Rozelle, Appellant/Cross Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED94167/ED94235

Medical Expense Evidence Discussed
Judgment split medical expenses between parents. Motion to modify requires no answer. Movant's burden is not to present evidence that supports motion if believed, but to show evidence that that supports motion and trier of fact does believe. No evidence is necessary to support ruling in favor of party without burden of proof. Tax code does not determine whether medical expenses are within judgment and circuit court need not find testimony of parent and her accountant persuasive.
KATHLEEN MARIE MARTZ, Petitioner-Appellant vs. ROBERT DINGEL MARTZ, Respondent-Respondent
Missouri Court of Appeals, Southern District - SD29838

Cohabitation Affects Maintenance
Cohabitation did not rise to substitute for marriage so as to terminate maintenance. In calculating maintenance, circuit court did not abuse its discretion in adjusting maintenance for cohabitant’s contribution to spouse’s new household and refusing to impute income to spouse who did not—by parties agreement—work outside home during marriage. Attorney fees award affirmed.
Corinne Karasiuk, Respondent, v. Brent Karasiuk, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED93632

Award Of Credits Discussed
Parenting plan is not a pleading so it needs signature only of proponent party’s attorney. Non-custodial parent has no burden of proving “that he incurred significant expenditures in order to receive the adjustment; rather, [custodial parent] was required to submit evidence showing that [non-custodial parent] did not incur such expenditures in order to rebut the adjustment. Record supports amount of credit for health-related insurance. To award dependent credit to non-custodial parent, federal statute requires custodial parent’s signature on declaration, and Missouri rule requires written rebuttal of presumed child support amount. Damages for frivolous appeal denied.
Dudley O. Nevins vs. Felicia A. Green
(Overview Summary)
Missouri Court of Appeals, Western District - WD71750

Imputation Of Income Supported
Evidence of past earning does not, alone, support imputation of income. But Father emailed, and texted, to Mother many descriptions of his concealment and dissipation of assets, and reducing income through underemployment. Father’s tax returns also supported his earning potential. “Mother was not obliged to prove that Father could generate the amount of income imputed to him when Father's conduct and words provided all of the proof the trial court needed that Father was purposefully underemployed.” Rule requiring no motion to preserve error does not allow point on appeal not raised to circuit court.
Stephanie Ann Heck vs. Douglas S. Heck
(Overview Summary)
Missouri Court of Appeals, Western District - WD71642

Stale Assessment And Division Of Third-Party Assets Okay
Husband squandered some assets and concealed others by transfer to non-party third person. Such conduct denied circuit court a chance to accurately evaluate and distribute assets so circuit court used 15-year old financial statements to evaluate assets, awarded them to husband, and made a compensatory monetary award to wife. Appeal from such evaluation and distribution is barred by husband’s conduct.
SONDRA JEAN JAMES, Petitioner-Respondent vs. JACK J. JAMES, Respondent-Appellant
Missouri Court of Appeals, Southern District - SD29958

Re-Hearing To Address Character, Value, and Distribution Of Property
Parties to an action for dissolution of marriage have “an equal burden to present evidence of” marital property’s value. Circuit court made no findings on any property’s value, thwarting appellate review. Parties’ unwritten agreement on property characterization, evaluation or division does not bind circuit court, and circuit court counted one pension twice. Marital misconduct supports award to injured spouse based on burden to household, not punishment of offending spouse. Notice of appeal is also untimely as to original judgment. Denial of wife’s motion for attorney fees affirmed because husband’s conduct was not so obstructive as to require grant, and because wife paid attorney with marital funds and can support self.
Judith Ann Seggelke, Appellant, v. Raymond Seggelke, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED92857

Involuntary Withdrawn Hours Count
Statute provides that, for determining whether child is enrolled in college or emancipated, class hours count for student status even if child flunks. College imposed involuntary withdrawal from class on child. Under college policy, college could treat such hours as flunked or withdrawn. College’s election to treat those hours as withdrawn does not convert such hours to voluntary withdrawal, nullify them, and emancipate child.
Helen J. Paden (Kerns) vs. David S. Kerns, Jr.
(Overview Summary)
Missouri Court of Appeals, Western District - WD71182

Paternity Claim Not Barred
On motion to dismiss, when both parties submit matters outside the pleadings, they waive notice of motion’s conversion to summary judgment. Statute on acknowledgement of paternity bars signatories from repudiating it, but no one else. Administrative order adjudicating paternity precludes parties to action, but no one else. Statute grants standing to claim paternity to any man alleging paternity of a child with no presumed father.
Nicholas Michael Wilson vs. Jennifer L. Cramer and James R. Stowe
(Overview Summary)
Missouri Court of Appeals, Western District - WD71313

Split Custody Affirmed
Record and written findings of fact as to statutory factors, including children’s best interests, support circuit court’s award of split custody with sole legal and physical custody of half of children to one parent. Other parent’s history of violating circuit court’s orders supported supervised visitation for that parent. In calculating child support, “It was up to the trial court to decide what part of [parent]’s testimony about [historic] earning was credible.” Award of more marital assets to one spouse was offset by award of more marital debt to same spouse and was no abuse of discretion. Party’s misconduct during litigation supports assessment of guardian ad litem fees against party and an award of attorney fees to other party. “The amount of time, energy and financial resources expended on this dissolution action beggars the imagination. . . . The quantity of litigation in the instant case far exceeded that usually seen in a typical dissolution action.”
In Re the Marriage of: CLAIRE NOLAND-VANCE and BRENT VANCE, CLAIRE NOLAND-VANCE, Appellant vs. BRENT VANCE, Respondent
Missouri Court of Appeals, Southern District - SD28699

Notice Of Relocation Insufficient
Statute requires notice of relocation to include a proposed “revised schedule of custody
or visitation[.]” Proposal to jointly work on that matter later is insufficient. Failure to comply with such requirement voided notice so lack of timely filing did not bar objection to notice.
In Re the Marriage of: ROCIO CORTEZ, Petitioner - Appellant vs. JESSUS CORTEZ, a/k/a JESUS CORTEZ, Respondent - Respondent
Missouri Court of Appeals, Southern District - SD30099

Inability To Bond Supports Termination Of Parental Rights
Statute allowing termination of parental rights of an “unfit parent” includes “parent unable, for the reasonably foreseeable future, to care appropriately for the ongoing physical, mental or emotional needs of the child.” Despite parent’s efforts to communicate with children while incarcerated, children did not understand who parent was, did not bond with parent, and built a strong bond with foster parents, and additional services would not help.
In the Interest of: T.W.C. and D.K.C.; F.W.M. vs. Children's Division of the Division of Social Services; Juvenile Officer
(Overview Summary)
Missouri Court of Appeals, Western District - WD71740 and WD71741

Disregard Of Statutes Is Plain Error
Constitution protects parent’s custody of child. Statutes allow change of custody only by certain persons through certain procedures that require certain notice and strict adherence. Circuit court’s failure to follow such procedures was plain error that prejudiced parent. “Respondents argue that anyone can place the child for adoption and it is up to the parent to contact the police in opposition to the placement prior to the court allowing a transfer of custody. This proposition has no support in our laws or a civilized society.”
IN RE THE ADOPTION OF C.M.B.R., a minor. S.M. and M.M., Respondents, vs. E.M.B.R., Appellant.
Missouri Court of Appeals, Southern District - SD30342

Evidence Needed On Burden From Misconduct
Evidentiary objection not made is not preserved, and appellant did not show that circuit court considered the disputed evidence. Misconduct may affect property distribution by “compensating the aggrieved spouse for the extra burden placed on the spouse in
the marriage by the offending spouse's misconduct” including non-monetary burden, but such burden must have support in the record.
JANET P. HIGHT, Respondent vs. RICHARD C. HIGHT, Appellant
Missouri Court of Appeals, Southern District - SD29991

TPR Unrelated To Record
Father’s six-year-old guilty plea to allowing ex-paramour commit abuse was discretionary, not mandatory, cause to bar his re-unification with children. Petition to terminate parental rights, and judgment, both stated that Father committed physical abuse. Evidence supported no such finding. Such facts did not show future likelihood of abuse. Evidence weighed against termination as in the best interests of the child.
In the Interest of: D.O. and K.N., Minors J.O., Natural Father, Appellant, vs. TANEY COUNTY JUVENILE OFFICE, and MISSOURI DEPARTMENT OF SOCIAL SERVICES, CHILDREN¿S DIVISION, Respondents.
Missouri Court of Appeals, Southern District - SD30077 and SD30079

Property Division No Substitute For Maintenance
Circuit court did not abuse its discretion in imputing income to husband who “because of a stubborn refusal to work for anyone else, had chosen to remain unemployed after his business failed.” Maintenance depends on need so a non-modifiable lump sum award of maintenance is suspect. Circuit court’s award to wife of maintenance in a lump sum equal to marital debt, dischargeable when husband paid such debt, was really just an improper method of property division.
Kathryn Lynn Sabatino vs. Victor Robert Sabatino
(Overview Summary)
Missouri Court of Appeals, Western District - WD70441

Costs Of Affair More Than Monetary
Circuit court has discretion in how to value interest in partnership and need not use partnership agreement. Only if extra-marital affair affects household is it relevant, but relevant effects are not limited to economic stresses. Expenses in excess of earnings supports an award of maintenance, but maintenance award need not cover all expenses. Recent financial statements showing one party’s “substantially higher income and thus, his greater ability to pay attorney’s fees” supports an award to other party of attorney fees at trial and on appeal.
Delisa L. Coleman, Appellant, v. Duane L. Coleman, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED92564

Objection To Relocation Required No Findings Of Fact
Mother’s relocation before ruling under statute governing relocation of children did not show bad faith. But relocation required change of schools that mother did not show was in children’s best interests. Relocation statute does not require circuit court to make written findings of fact on statutory factors defining children’s best interest. Court of Appeals therefore presumes that circuit court based judgment on relevant factors.
Chad Mantonya vs. Jamie D. Mantonya
(Overview Summary)
Missouri Court of Appeals, Western District - WD71368

No Contract For Support
In support of claim for support of step-children and maintenance, Wife cited her agreement to marry and immigrate. To establish a contract requires proof of agreement to do more than statute requires is necessary. To establish estoppel requires proof that immigration to United States was detrimental. Denial of maintenance and full attorney fees under statutes was not an abuse of discretion.
Howard L. Thacker vs. Maryam Kayumova Thacker
(Overview Summary)
Missouri Court of Appeals, Western District - WD71266

Incapacity Versus Incompetency
Judgment of disability and incapacity did not raise presumption of incapacity to sue eight months before such judgment. Such judgment raises presumption of incompetence to testify subject to rebuttal by evidence of “observation, recollection, and communication.” Incapacity does not necessarily bar participation in action especially when circuit court appoints guardian ad litem. Guardian ad litem became real party in interest after judgment of disability and incapacity party but appellant suffered no prejudice so Court of Appeals rules pleadings amended to conform to evidence. Record supports finding that marriage is irretrievably broken. Appointments of guardian and conservator did not require dismissal of guardian ad litem so circuit court did err in awarding fees to guardian ad litem.
Dorothy Szramkowski, Respondent, v. Joseph Szramkowski, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED93149

Record Incomplete
To show that circuit court abused its discretion requires a complete record, which appellant failed to provide, so Court of Appeals dismisses appeal.
Tina Ann Cantwell vs. Norman Bradford Cantwell
(Overview Summary)
Missouri Court of Appeals, Western District - WD71103

Parent Must Work Two Full-Time Jobs
Directions to Form 14 do not require circuit court to base imputation of income on unemployment or underemployment, only that parent is deliberately limiting work to avoid child support. Any appropriate time period may determine probable earnings. Circuit court need not believe parent’s testimony about motivation for reducing work hours. Since parent first chose to work two full-time jobs, judgment basing child support on such schedule is not unfair. Moving parent gets no adjustment for after-born child, even if other parent counter-moves for modification.
Anisa R. Cross vs. Justin G. Cross
(Overview Summary)
Missouri Court of Appeals, Western District - WD71386 and WD71439

Judgment Not Conditional
Appellant may not seek relief on appeal not sought in circuit court. Judgment setting conditions for unsupervised visitation was not a conditional judgment. Statute requires division of property into marital and non-marital property before making award, which circuit court failed to do, so Court of Appeals remands.
KELLY LYNN JOHNSON, Petitioner-Appellant vs. DAVID SCOTT DEBYLE, Respondent-Respondent
Missouri Court of Appeals, Southern District - SD29612

Corporation Did Not Need to Be a Party in Divorce Action
Since the trial court did not divide corporate assets between the parties, the corporation did not need to be named a party in the divorce case.
Robert R. Wisdom, Appellant vs. Nancy Jo Wisdom, Respondent
(Overview Summary)
Missouri Court of Appeals Western District - WD70930

CHILD SUPPORT AND PATERNITY TESTING
SRS V. KIMBREL
SHAWNEE DISTRICT COURT – AFFIRMED
NO. 101,722 – MAY 21, 2010
For full text of this opinion, go to http://www.kscourts.org/Cases-and-Opinions/opinions/CtApp/2010/20100521/101722.pdf.

Facts: Taylor and Kimbrel acknowledged paternity of J.L.K. by executing a document entitled “Paternity Consent Form for Birth Registration.” Kimbrel read and initialed every disclosure paragraph. Two years later SRS filed a petition for child support and served Kimbrel. In response, Kimbrel requested genetic testing. SRS opposed genetic testing based on the acknowledgement. The district court decided genetic testing was in the best interests of J.L.K. and granted Kimbrel’s motion. Tests showed that Kimbrel was not the biological father of J.L.K. An administrative hearing officer found Kimbrel did not have to pay child support. The district court affirmed finding the acknowledgement created only a presumption of paternity.

Issues: (1) Child support and (2) paternity testing

Held: In an action brought by the secretary of Social and Rehabilitation Services on behalf of a mother and her biological child for an order of child support, a district court may determine, based on genetic testing ordered pursuant to K.S.A. 38-1118(a), and In re Marriage of Ross, 245 Kan. 591, 783 P.2d 331 (1989), that clear and convincing evidence proves a man who has executed a voluntary acknowledgment of paternity under K.S.A. 38-1138 is not the biological father of the child, and accordingly, the court may find the presumption of paternity is rebutted, end the father child relationship, and deny a petition for child support.

Mother May Move to Florida
Appellant failed to prove that Respondent’s move to Florida was to prevent Appellant’s frequent and meaningful contact with the child and failed to preserve the issue for appeal.
Dana Marie Murray, Respondent vs. Erick Brian Murray, Appellant
(Overview Summary)
Missouri Court of Appeals Western District. - WD71381

Court Must Make a Specific Finding of Paternity to Amend Birth Certificate
The trial court had to make a specific finding that Appellant was the father in order for the birth certificate to be amended to reflect that.
In re the Marriage of Sharon L. Brown and Stacey O. Brown. Sharon L. Brown, Respondent, v. Stacey Orlando Brown, Appellant
(Overview Summary)
Missouri Court of Appeals Eastern District - ED93084

No Evidence Needed for Attorney Fee Award
Court of Appeals affirms judgment if evidence and law support it, and husband showed no such lack of support as to property division, maintenance, and attorney fee award. Circuit court did not abuse discretion, as to property division in dividing pensions; as to maintenance in determining need based on health problems, and using imputed income to support amount of maintenance attorney fees. “Because the trial court is an expert on attorney fees, and familiar with the issues involved, it can fix the amount of attorney fees without the aid of evidence if necessary.” Remanded to determine whether maintenance is modifiable or not.
JERRY JOE MILLER, Appellant vs. LAVERDA KIM MILLER, Respondent
Missouri Court of Appeals, Southern District - SD28960 and SD29159

Hearsay Admissible In Child’s Best Interest
Statute designates parties whom circuit court must appoint to file study, so when two were parties and third was not available in county, circuit court’s order making appointment and receiving report solely to comply with statute was “well-reasoned.” Reliance on historical and new information was not plain error. Hearsay relating child’s statements is admissible “where abuse may have occurred or been threatened and the child may not be competent or reasonably expected to testify to it[.]” Record, including adverse inference rule supports finding of abuse and neglect. Circuit court’s findings on past conduct infer findings as to future conduct. Court of Appeals need not strike from the record matter it did not consider.
IN THE INTEREST OF B.M.O., K.W.J., and M.C.J., minors. WAYNE COUNTY JUVENILE OFFICE, Petitioner-Respondent vs. S.A.J., Respondent-Appellant
Missouri Court of Appeals, Southern District - SD29710

Marital Interest In Separate Property
Wife’s contribution to husband’s separate property created a marital interest in such property, and circuit court did not err in evenly dividing such property for that reason.
In re the Marriage of: Gerald A. Hillis and Elizabeth M. Hillis, Gerald A. Hillis, Appellant, vs. Elizabeth M. Hillis, Respondent.
(Overview Summary)
Missouri Supreme Court - SC90458

Wife's infidelity doesn't factor in property division
May 5th, 2010

A husband who filed for divorce couldn't use his wife's alleged extramarital affairs as a ground for increasing his share of marital property, New York's highest court has ruled.
Read the court's opinion: Howard S. v. Lillian S.

DIVORCE, CUSTODY, MAINTENANCE, AND PROPERTY DIVISION
IN RE MARRIAGE OF VANDENBERG
MONTGOMERY DISTRICT COURT – AFFIRMED
NO. 101,745 – APRIL 30, 2010
For full text of this opinion, go to http://www.kscourts.org/Cases-and-Opinions/opinions/CtApp/2010/20100430/101745.pdf.

Facts: Jeffrey and Lisa Vandenberg were married in 2000. They both had children from previous marriages, but they also had a child of their own, T.V. Lisa’s teenage son R.C. lived with them and he had learning and behavior difficulties. Lisa received veteran’s disability in the amount of $1240 per month. In September 2007, Lisa told Jeffrey she no longer wanted to be married and that she was a lesbian. Upon agreement, Lisa moved to Colorado along with T.V. R.C. stayed in Kansas with Jeffrey. In October 2007, Jeffrey filed for divorce in Kansas. Without advising Lisa, Jeffrey drove to Colorado, picked up T.V. from school and returned to Kansas. Because R.C.’s behavior worsened, Jeffrey contacted R.C.’s father who traveled to Kansas and took R.C. back to Ohio with him. By this time, Lisa had moved into the Colorado Springs home of another woman with whom Lisa shared expenses. After a trial, the trial court granted the parties joint legal custody of T.V., with Lisa having residential custody. Jeffrey paid child support and also paid maintenance in the amount of $700 for 44 months, along with $2,000 for Lisa's attorney fees.
Issues: (1) Divorce, (2) custody, (3) maintenance, and (4) property division
Held: Court stated that while the trial court did not explicitly refer to several of the statutory factors for custody determination, Jeffrey failed to challenge this inadequacy in the court below. Court found that absence of an objection and a review of the record demonstrated the trial court considered the factors. Court held that T.V. wanted interaction with both parents and was well adjusted in both households. Jeffrey challenged the custody situation based on Lisa’s lifestyle. Court stated that both parents argued the custody issue and that considering the strength and shortcomings of both households, the court was unable to conclude that no reasonable judge would have granted Lisa residential custody in a very difficult choice. Court also found the trial court’s order of maintenance to be reasonable and not arbitrary or fanciful. The trial court considered Lisa’s co-habitation relationship, Lisa’s disability, disparity in incomes, and awarded substantially less maintenance than requested by Lisa. Court found no abuse of discretion in the trial court’s division of property either and that Jeffrey only incidentally raised the issue of attorney fees.

Award of maintenance in error after waiver of same. In Re: Marriage of Rita Kay Glascock and Stephen Benjamin Glascock, No. 29990 (Mo. App. S.D., March 18, 2010), Bates, J.

This was an action for dissolution of marriage. The Wife sought an award of maintenance in her petition, but waived any claim to maintenance in her testimony at trial. Nevertheless, the trial court awarded her maintenance of $250.00 per month. The Husband appealed.

Held: Reversed and remanded with instructions. "A spouse can expressly waive the right to seek maintenance. See Sovci v. Sovci, 284 S.W.3d 749, 760 (Mo. App. 2009); Craig-Garner v. Garner, 77 S.W. 3d 34, 38-39 (Mo. App. 2002); Farris v. Farris, 75 S.W.3d 345, 350, 561 (Mo. App. 2002); Gardner v. Gardner, 830 S.W.2d 559, 561 (Mo. App. 1992); In Re: Marriage of Noeltner, 569 S.W.2d 8, 11 (Mo. App. 1978)."

"A waiver of maintenance made voluntarily and understandingly should be given effect at a trial. Farris, 75 S.W.3d at 350." The opinion states that this was a misapplication of law."

Child custody jurisdiction. John T. Hightower, Respondent v. Melissa Ann Myers, Appellant, No. 89951 (Mo. banc, March 9, 2010), Breckenridge, J.

Originally in 2003, this was a claim for declaration of paternity and a determination of child custody. From June, 2000 to May, 2001, the parties had resided with the child in the State of Missouri. When their relationship ended, the Mother moved to the State of New Jersey. For the rest of 2001, the parties exchanged child custody for extended periods. In January, 2002, the Father filed his action for paternity and custody. Initially, the Mother filed a motion to dismiss for lack of personal jurisdiction. However, the parties reached a settlement and in 2003, Father was declared to be the child's father. Joint legal and physical custody was granted, and the Father was ordered to pay child support. For the next few years the Father had trouble getting his parenting time. The Mother moved five times while living in New Jersey without the proper notification to the Father. Then, in 2006, Mother told Father that she might be moving to the State of Georgia. She also sought an administrative review of child support. The Father then filed a motion to modify custody and child support. The Mother filed an objection to the motion pro se, but did not challenge the trial court's jurisdiction over her in the matter. The trial court granted the transfer of physical custody to the Father and ordered Mother to pay child support. She appealed.

Held: Affirmed.

Editor's Note: This case was determined under the Uniform Child Custody Jurisdiction Act.

The trial court stated that had Mother not moved from the State of New Jersey to the State of Georgia, New Jersey would have been the forum with the most evidence concerning the child's present and future care. However, the State of Missouri now holds that distinction over the State of Georgia. The Mother argued that the trial court lacked subject matter jurisdiction over child custody issues both in 2003 and 2006, citing older cases for the principle that jurisdiction under the UCCJA to hear custody issues is "subject matter jurisdiction," and, therefore, could not be waived.

However: The analysis of "subject matter jurisdiction" in these cases is no longer valid law in light of this Court's recent decision in J.C.W. ex rel. Webb v. Wyciskalla, which stated that Missouri courts recognize two types of jurisdiction-personal jurisdiction and subject matter jurisdiction-and both are based on constitutional provisions. 275 S.W.3d 249, 252 (Mo. banc 2009). Subject matter jurisdiction is governed by Article V of the Missouri Constitution. Id. Subject matter jurisdiction is a matter of "the court's authority to render a judgment in a particular category of cases." Id. at 253. The Missouri Constitution grants "original jurisdiction over all cases and matters, civil and criminal" to the circuit courts. Mo. Const. Art. V, Sec. 14. Subject matter jurisdiction is derived from the law and cannot be conferred by consent. State ex rel. Lambert v. Flynn, 154 S.W 2d 52, 57 (Mo. banc 1941). When a court lacks subject matter jurisdiction, any action it takes is null and void. Parmer v. Bean, 636 S.W.2d 691, 694-95 (Mo. App. 1982), overruled for other reasons by McCracken v. Wal-Mart Stores East. LP 298 S.W.3d 473 (Mo. banc 2009).

The opinion noted that because this was a civil case, it had constitutionally vested subject matter jurisdiction. Having failed to preserve her claim by submitting to the jurisdiction of the court, the Mother waived such objection.

As to the Mother's claim that there was insufficient evidence to grant the transfer of physical custody, the opinion noted that ". courts need not require a `substantial' change from the circumstances of the original judgment where the modification sought is simply a rearrangement in a joint physical custody. Russell v. Russell, 210 S.W.3d 191, 197 (Mo. banc 2007)." Here, there were numerous factors, including her repeated relocations and denials of Father's parenting time that supported the transfer of custody.

Antenuptial agreement unconscionable. Susan M. Potts, Respondent v. Raymond A. Potts, II, Appellant, No. 70196 (Mo. App. W.D., February 23, 2010), per curiam.

This matter involved the dissolution of a marriage of more than twenty years. The Husband filed an appeal on numerous issues. This summary addresses the determination by the trial court that the antenuptial agreement entered into by the parties was unconscionable and invalid. The circumstances pertaining to the agreement are as follows: The Husband had his attorney draft the prenuptial agreement several months before the wedding date. According the Wife, it was presented to her on the Wednesday before the Saturday wedding. She did not take it to an attorney, but having read a portion of it, she asked for some changes to its provisions. A revised agreement was presented to her at 7:00 p.m. on the Friday before the wedding, just as they were leaving for the rehearsal dinner.

There is no dispute that the agreement made full disclosure of each party's assets. The Husband was the only one with property that would generate future income. However, the terms of the agreement not only protected each party's pre-marital property, it also allowed the Husband to protect all property and income generated during the marriage as his non-marital property by keeping it in his sole name. The Wife signed the agreement without any advice from legal counsel. As noted, the trial court invalidated the agreement and the Husband appealed.

Held: Affirmed. There are two aspects to unconscionability: procedural unconscionability and substantive unconscionability. See Repair Masters Constr., Inc. v. Gary, 277 S.W.3d 854, 857 (Mo. App. 2009). "The former deals with the formalities of making the contract, while the latter deals with the terms of the contract itself." Id. "[P]rocedural unconscionability in general is involved with the contract formation process, and focuses on high pressure exerted on the parties, fine print of the contract, misrepresentation, or unequal bargaining position." Woods v. QC Fin. Serv., Inc., 280 S.W.3d 90, 95 (Mo. App. 2008). "Substantive unconscionability refers to an undue harshness in the contract terms." Repairs Masters Constr., Inc., 277 S.W.3d at 858. The courts look to both procedural and substantive unconscionability in determining whether a contract or a clause can be voided. See Woods, 280 S.W.3d at 95. It has been suggested that there should be a balancing between the substantive and procedural aspects and that if there exists "gross procedural unconscionability," then an agreement may be voided though there is not great substantive unconscionability. Id. It is also suggested "that the same sliding scale be applied if there are great substantive unconscionability but little procedural unconscionability." Id.

The trial court here concluded that the Wife had very little opportunity to review the agreement, which would be an aspect of procedural unconscionability. In addition, the provisions allowing the Husband to control all aspects of income that would otherwise be characterized as marital property is an aspect of substantive unconscionability. See In re: Marriage of Thomas, 199 S.W.3d at 860.

The Missouri Bar Courts Bulletin, 10-Apr

TRO Moot
Statute provides that final judgment terminates temporary restraining order.
Lezlee Lucas, Respondent, v. John Lucas, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED93175

Maintenance Re-Calculated
Judgment that “ultimately awarded the parties the same amount of marital property and debts[,]their personal vehicles as well as the personal property they requested” was not unfair and inequitable as to such distribution. “[R]easonable needs ‘[do] not automatically equal the standard of living established during the marriage.’” Imputation of income must stand more than speculation, so Court of Appeals re-calculates maintenance award.
WILLIAM DIXSON STIREWALT, Appellant vs. CHERYL ANN STIREWALT, Respondent
Missouri Court of Appeals, Southern District - SD29974

Error In Treatment Of Subchapter S Corporation
Record supported circuit court’s attribution of subchapter S corporation’s depreciation deduction to owner husband and valuation of subchapter S corporation without debt to husband. Use of valuations “fifteen to twenty-one months before the . . . judgment distributing the marital property” was reversible error because “by the time the trial court entered its final judgment, those valuations had significantly changed.” As to investments of separate property, appreciation is separate property, but dividends and interests were marital, and husband had burden to distinguish between the two.
Gavin T. Meier, Appellant, v. Christine D. Meier, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED92400

Learning Disability Discussed
Record shows that child’s learning disability did not prevent termination of child support based on emancipation. But statute provides that disability extends child support through college as an exception to termination for going less than full-time. Such extension may make father liable for certain expenses. But where father overpaid child support, circuit court need not award mother retroactive child support.
Susana Sullins, Appellant, v. John R. Knierim, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED92849

Maintenance Waived
When spouse waives maintenance under oath, circuit court cannot award it. Remanded to circuit court for an amended judgment with a non-modifiable award of no maintenance.
In Re the Marriage of: RITA KAY GLASCOCK and STEPHEN BENJAMIN GLASCOCK. RITA KAY GLASCOCK, Petitioner-Respondent vs. STEPHEN BENJAMIN GLASCOCK, Respondent-Appellant
Missouri Court of Appeals, Southern District - SD29990

Divorce and Life Insurance
Facts: Marc and Susan Hall divorced after 20 years of marriage with two kids reaching the age of majority and one still 12 years old at the time of the divorce. Susan requested that Marc cooperate with her attempts to obtain insurance on his life at her expense. The district court directed Marc to cooperate with Susan’s attempts to obtain insurance on his life at her expense in order to ensure support and education for the minor child in case Marc passed away.
Complete Case Study

Issues: (1) Divorce and (2) life insurance
Held: Court held that in Kansas, consent of the insured is not required in order to obtain life insurance on that person’s life. The only requirement in Kansas for one person to obtain insurance on another person’s life is an insurable interest between the party taking out the insurance policy and the party whose life is insured.
Statutes: K.S.A. 60-1610(a), (b)

Insurance settlement not gross income for child support purposes
February 16, 2010 9:55 AM
A one-time property insurance settlement for a moldy house couldn't be considered gross income for purposes of child support without analyzing the nature of the payment and whether any portion of it was a recoupment of capital, the Arizona Court of Appeals has ruled. Read the case digest: Insurance settlement not gross income for child support purposes Read the court's opinion: Strait v. Strait

Divorcing spouse can sue for breach of contract
February 12, 2010 11:52 AM
A divorcing wife can bring a breach of contract claim based on her promise to support her husband's medical career in exchange for his promise to provide a certain standard of living, the Utah Supreme Court has ruled. Read the case digest: Divorcing spouse can sue for breach of contract Read the court's opinion: Ashby v. Ashby

Woman not common law wife; can't inherit
February 11, 2010 10:33 AM
A woman failed to establish she was a common law wife under Oklahoma law or Mexican concubinage law, and therefore cannot inherit from the estate of the man she lived with, the South Dakota Supreme Court has ruled. Read the case digest: Woman not common law wife; can't inherit Read the court's opinion: Hargrave v. Duval-Couetil

Same-sex partner entitled to joint custody
February 4, 2010 10:06 AM
The same-sex partner of a biological parent is entitled to joint custody, the Kentucky Supreme Court has ruled. Read the case digest here: Same-sex partner entitled to joint custody Read the court's opinion here: Mullins v. Picklesimer

Termination Of Incarcerated Parent’s Reversed
In termination of parental rights, statutory grounds of abandonment, neglect, and unfitness require clear, cogent, and convincing evidence. Incarcerated parent’s diligent efforts at maintaining contact with child refuted such allegations. “Child may suffer from Father’s absence, but getting in trouble before he knew about Child is no proof that Father now wants no relationship with her.” Failure to send money from 28¢ per day wages was de minimis. Incarceration does not raise presumption of unfitness. Child’s best interests require only preponderance of evidence, but the issue never arises until statutory grounds are established.
In the Interest of Z.L.R., R.M., Appellant vs. Greene County Juvenile Office, Respondent
Missouri Court of Appeals, Southern District - SD29946

Evidence Of Contribution Exclusion As Sanction
Circuit court did not err in barring evidence of amount paid, but not disclosed in response to interrogatory, and for property; using appellant’s suggested method, but not numbers, in valuation of property; attributing contributions under source of the funds rule; and imputing income from sale of missing property to appellant.
In re the Marriage of BRUCE ROGERS and EVELYN ROGERS. BRUCE ROGERS, Petitioner-Appellant vs. EVELYN ROGERS, Respondent-Respondent
Missouri Court of Appeals, Southern District - SD29356

Balancing Payment Okay
Transmutation of separate property into marital property does not bar consideration of such contribution on dissolution of marriage. Money judgment awarded to equitably balance property division need not relate to any specific item of property.
In Re: Marriage of MARY L. SKAGGS and JERRY L. SKAGGS. MARY L. SKAGGS, Petitioner-Respondent vs. JERRY L. SKAGGS, Respondent-Appellant
Missouri Court of Appeals, Southern District - SD29604

Maintenance Upheld
Appellant’s motion to amend must cite error regarding findings of fact or waive such error. Record supported maintenance award because it showed that husband’s waste of marital estate left insufficient property for wife to meet her own needs, even with appropriate employment, while many of husband’s expenses were unnecessary. Award of maintenance is presumed modifiable.
Sandra Ray Coffman vs. Elvin Cale Coffman
(Overview Summary)
Missouri Court of Appeals, Western District - WD70028

Break From School Okay
Child took a ten-week break from post-secondary vocational school between sixty weeks of attendance and further attendance. Such break did not constitute less than continuous attendance, and did not result in emancipation, especially when paying for tuition was a problem. Overpayment of support, pursuant to withholding order instituted under dissolution decree, for such child is presumed voluntary and rebuttal of such presumption requires an objection.
Theresa Wilkins, Appellant, v. James K. Wilkins, Respondent.
(Overview/Summary)
Missouri Court of Appeals, Eastern District - ED92092

Motion To Amend Was Timely
Rule specific to cases heard by family commissioner supersedes general rule as to motion for new trial, but not as to motion to amend judgment. Motion to amend the judgment was timely under general rule.
Iman Eldieb vs. Tarik Firozi.
(Overview/Summary)
Missouri Court of Appeals, Western District - WD70651

Family Law
Driver's license suspended for failure to pay child support in another state. Lee Schroeder, Petitioner-Respondent v. Director Of Revenue, State of Missouri, Respondent-Appellant, No. 29568 (Mo. App. S.D., October 29, 2009), Bates, J.
Full Summary and Other Cases

Point Waived Without After-Trial Motion
Statute required publication of rule, which included Form 14. Form 14 is absent from judgment, as is any other findings of fact needed for appellate review. Appellant asserts that judgment was not supported by the evidence and was against the weight of the evidence in his claim of error. But such error is unpreserved without motion to amend judgment, which is also absent. Absent such motion, remedy is not to remand for findings of fact, but to dismiss appeal.
David Alan Crow, Appellant, and Judy Lynette Crow, Respondents.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED92412

Gift Porsche isn't husband's property at divorce
December 9, 2009 6:48 AM
A husband could not claim that a sports car given to him by his wife was his separate property when the parties divorced, the California Court of Appeal has ruled in reversing judgment. Read the case digest here: Gift Porsche isn't husband's property at divorce Read the court's opinion here: Buie v. Neighbors

Retirement assets must be equally divided at divorce
December 4, 2009 10:02 AM
The retirement assets of a divorcing couple should be equally divided - the husband is not entitled to a greater amount even though he earned more, the Wyoming Supreme Court has ruled.Read the case digest here: Retirement assets must be equally divided at divorce Read the majority opinion here: Zaloudek v. Zaloudek

Judgment Not Final
Circuit court dismissed motion to modify without prejudice based on movant’s failure to comply with circuit court’s earlier orders. Such dismissal did not address form of motion, so it did not end litigation on the motion in the form cast. Appeal dismissed.
Gregory B. Harlow, Appellant, v. Susan K. Harlow, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED92135

Father can't challenge paternity order
November 2, 2009 10:39 AM
Failure to attend a hearing precluded a father from challenging Kansas's recognition under the Uniform Interstate Family Support Act of a German paternity judgment and child support order, the Kansas Court of Appeals has ruled. Read the case digest here: Father can't challenge paternity order Read the full text of the court's opinion here: Dia v. OakleyCHILD SUPPORT, SOCIAL SECURITY DISABILITY INSURANCE BENEFITS, AND ADDITIONAL AUTHORITY ON APPEAL
SRS V. WHITE
BROWN DISTRICT COURT – AFFIRMED
NO. 101,330 – SEPTEMBER 25, 2009

Facts: In 1989, SRS commenced proceedings against White regarding the paternity of a child born in 1988. White was personally served with process, but failed to respond. The district court entered a default judgment against him declaring him to be the father of the child and ordering him to pay child support of $200 per month plus $1,614 for state assistance provided for the child. In 2003 White, who was now disabled, began receiving Social Security Disability Insurance (SSDI) benefits. In December 2005, the court issued a monthly income withholding order for $200 per month child support and for $50 per month to be applied to the accumulated arrearage. The order applied to White’s SSDI payments. In May 2006, the withholding order was reduced to $200 per month child support and $25 per month for the arrearage. In June 2007, White’s obligation for ongoing support ended when his child, who had already reached age 18, completed high school. Accordingly, in July 2007 the withholding order was modified to $225 per month to be applied to the child support arrearage, which by this time amounted to approximately $39,000. In 2008, White was in prison serving a 24-month sentence for burglary and theft. He is scheduled for release in December 2009. White moved to terminate the income withholding order. In September 2008, the district court denied White's motion.
Issues: (1) Child support, (2) Social Security Disability Insurance benefit, and (3) additional authority on appeal
Held: Court held that Social Security Disability Insurance is subject to execution for recovery of court-ordered child support. Supplemental Security Income (SSI) benefits, which are not treated as income in the calculation of child support in Kansas, are distinct from benefits received from Social Security Disability Insurance (SSDI), which are subject to execution for child support. Court held that under both state and federal law it is clear that SSDI benefits are subject to garnishment for past-due child support. Court also noted that a letter of additional authority pursuant to Supreme Court Rule 6.09(b) is reserved for citing significant relevant authorities not previously cited which come to a party's attention after briefing, not for raising new issues. An appellate court will not consider new issues raised for the first time in a party's Rule 6.09(b) letter.
Statutes: K.S.A. 60-2310

TERMINATION OF PARENTAL RIGHTS AND INFORMED OF APPEAL RIGHTS
IN RE L.B.
JOHNSON DISTRICT COURT – AFFIRMED IN PART AND
DISMISSED IN PART
NO. 102,202 – OCTOBER 16, 2009
Facts: On July 10, 2007, SRS took L.B. into custody because the state was concerned mother had left L.B. in daycare for extended periods of time. On January 9, 2008, the district court found L.B. was a child in need of care and ordered a reintegration plan. Eventually the state filed a petition to terminate mother’s parental right and the court found clear and convincing evidence that mother was unfit and the condition was unlikely to change. The journal entry of termination was filed on December 22, 2008. Mother filed a notice of appeal on January 20, 2009, challenging the decisions of “December 4, 2008” and the CINC decision of January 28, 2008. On March 4, 2009, mother filed a motion alleging her attorney had not told her that she had a right to appeal the CINC determination. The district court agreed, but the order of termination was not modified.
Issues: (1) Termination of parental rights and (2) informed of appeal rights
Held: Court agreed that mother’s notice of appeal as to the CINC orders was untimely, but addressed the application of State v. Ortiz, 230 Kan. 733, regarding knowledge of appeal rights, in the context of a civil child in need of care/termination of parental rights proceeding. Court applied a balance test of Mathews v. Eldridge, 424 U.S. 319, concerning the state's interest as parens patriae along with the parents' rights to preserve the family relationship and the child’s best interests. Court held that given the procedural posture of the case and the fact that an appeal of the temporary custody determination and the CINC findings would at this late date have little value and would only serve to delay the resolution of the case, the balance tipped in the state’s favor and the mother was not entitled to take an untimely appeal of the temporary custody and CINC findings. Court found it lacked jurisdiction to consider those issues. The court also found that weighing the evidence in the light most favorable to the state, a reasonable factfinder could determine it was highly probable that mother’s parental rights should be terminated and such termination was in L.B.’s best interests.
Statutes: K.S.A. 2008 Supp. 38-2201, -2202(d), -2205(b), -2269(b)(4), (7), (8), (c)(2), (3), (4), -2273(a), (c)

Child custody order can prohibit smoking
November 13, 2009 10:54 AM
A custody order could prohibit parents from smoking cigarettes in their daughter's presence, the Ohio Court of Appeals has ruled in affirming judgment. Read the case digest here: Child custody order can prohibit smoking
Read the court's opinion here: Anderson v. Anderson

No Bar To Paternity Claim
Pendency of adoption action does not require stay of paternity action. Absent requirement or request circuit court did not err in appointing no for guardian ad litem. Policy, logic, child’s best interest, statutorily unenforceable agreement do not outweigh undisputed fact that respondent is child’s biological father and presumed father physically could not be. Doctrines barring denial of paternity do not bar claim of paternity. Record shows no grounds to bar respondent’s visitation.
BRYAN COURTNEY and GRACE E. ROGGY, by her Next Friend, BRYAN COURTNEY, Respondents, v. GINA M. ROGGY and MARK L. ROGGY, Appellants.
(Overview Summary)
Missouri Court of Appeals, Western District - WD70143

Maintenance Terminated Despite Agreement
Agreement terminated maintenance “only” on death or lapse of a specified time period, but did not address remarriage, which terminates maintenance under statute. Striking, from agreement, language that terminating maintenance on remarriage does not create a negative inference that maintenance continues on remarriage. “[T]o rebut the statutory presumption that maintenance terminates upon the receiving spouse’s remarriage, a dissolution decree must expressly refer to the receiving spouse’s possible future remarriage, and must expressly provide that maintenance payments shall continue beyond that contingency.”
Joseph Lee Maddick vs. Robert (Sue) Ann Deshon (Formerly Roberta (Sue) Ann Maddick)
(Overview Summary)
Missouri Court of Appeals, Western District - WD70335

Compliance With Contempt Order Prevents Appeal
Circuit court’s contempt order allowed Appellant to purge himself by complying with parenting plan and taking other actions. Appellant did so, thus preventing contempt order from becoming a final order subject to appeal. Dismissed.
Jodie Kay Jones vs. Lloyd Elton Jones, Jr.
Missouri Court of Appeals, Western District - WD70105

No Relationship, No Protective Order
Statute allows a full order of protection from member of household or from repeated conduct. Having proved neither, respondent was entitled to no full order of protection against appellant.
H.K.R. vs. Avery Stemmons
(Overview Summary)
Missouri Court of Appeals, Western District - WD70560

Parenting Plan Unworkable
Statute provides that, on certain findings regarding parents, circuit court may assign decisions to third party. Assignment of child’s medical care, and other, decisions to her otherwise unidentified “team of doctors” was contrary to parents’ intention and too vague to be enforceable.
Brooke Nicole Traxel vs. Richard Louis Traxel
(Overview Summary)
Missouri Court of Appeals, Western District - WD70121

Appeal Of Full Order Of Protection Is Moot
After full order of protection has expired, Court of Appeals can grant no relief from it, so it is moot. Ex-wife’s “interest in personal vindication is insufficient to overcome the mootness of the underlying questions in this appeal.” Ex-wife’s appeal dismissed.
Christopher Warlick, Respondent, v. Tasha Warlick, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED92284

Grounds For Equitable Abatement Not Shown
Evidence supporting an equitable set-off of Father’s child support obligation includes “Mother’s failure to support the children at relevant times, or to timely request payment from Father.” Father showed right to set-off of child support as to one child, but not the other. It did not require “clairvoyance of Nostradamian proportions” to foresee the need for a Form 14 when Mother suggested an amount as to other child. Circuit court;’s use of such amount in lieu of Form 14 was invited error.
Sharon L. (Deming) Weber vs. John D. Deming
(Overview Summary)
Missouri Court of Appeals, Western District - WD69538

Yelling Violated Full Order Of Protection
While under full order of child protection, mother yelled at child that she would “get [him] back.” Evidence showed emotional impact on child, characterized it as emotional abuse barred by order, and supported criminal conviction for violating order. Evidence that mother threatened to kill her other child, if other child testified at criminal trial was admissible to show consciousness of guilt.
State of Missouri vs. Alta Renee Moran
(Overview Summary)
Missouri Court of Appeals, Western District - WD69397

Finding Reversed On Children’s Best Interest
Circuit court found that children’s best interest lay with Father in Missouri instead of with Mother who was relocating out of State. But evidence of Mother’s history as primary caregiver, careful provision for children’s needs including time with Father, and Father’s child support arrearages and criminal offenses, require reversal of that ruling. For motion to modify child support, speculation as to income and expenses does not constitute substantial evidence, past earnings are not conclusive for imputing future earnings and, while Form 14 considers income and expenses "in the community," income and expenses in another State are relevant if Mother has already relocated there. No substantial evidence showed Mother’s ability to pay attorney's fee award, or services rendered to support amount of fees for guardian ad litem, or father’s attorney.
Tanya Wightman, K/N/A Tanya Giovanni, Appellant v. Michael Wightman, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED91738

Judgment Modified
In awarding custody, circuit court need make findings as to relevant statutory factors. Evidence supported parenting plan, though circuit court erred in drafting by ordering alternating weeks with each parent all year instead of when school was out, so Court of Appeals modifies judgment.
Shawn B. Lalumondiere, Respondent, v. Tammy A. Lalumondiere, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED92345

Custody Terminology Requires Remand
Moral fitness, including mother’s extra-marital affairs, is relevant to determination of custody. Father’s displays of anger over such affairs, child’s preference for mother’s lax discipline, and discrepancy between judgment and docket sheet, are not determinative. Statute approves physical custody in two forms: joint or sole. Sole custody may include visitation for non-custodial parent. Remanded for judgment consistent with statute; and for parenting plan addressing emergency medical care, extracurricular activities and dispute resolution.
In re the Marriage of: BRENT SCOTT HALFORD, Petitioner-Respondent vs. BEVERLY KAY HALFORD, Respondent-Appellant
Missouri Court of Appeals, Southern District - SD29354

Award Stands On Existing Circumstances
Circuit court’s characterization of house and savings plan as marital property followed Appellant’s pleadings, so it was invited error, if error at all. Disparity of incomes, custody of three children and marital misconduct supported property division and maintenance award. Hypothetical fact scenarios and allegations not presented to circuit court do not support point on appeal.
Brenda Workman, Respondent, v. Steven Workman, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED92177

Modification Bond Statute Not Unconstitutional
Statute conditions filing of motion to modify custody judgment on posting of bond if Movant is behind a certain amount on child support. Balancing each parent’s fundamental right to relationship with child, child’s best interests, and State’s interest in administration of justice, statute does not violate due process or equal protection. Bond does not constitute an arbitrary and unreasonable barrier to such action, so it does not violate open courts provision.
Carolyn S. Weigand f/k/a Carolyn S. Edwards, Respondent vs. Jeffrey M. Edwards, Appellant
(Overview Summary)
Supreme Court of Missouri - SC89159

No Abuse Of Discretion In Property Division
“[T]he court’s division of particular household items is ‘so clearly within the trial court’s discretion that no extensive discussion would be profitable.’” Post-trial allegations of squandering require no finding of fact. Circuit court may disbelieve unchallenged affidavit in support of motion for new trial without hearing. Attorney fee award affirmed. Facts show that Wife meets standard for maintenance; remanded to determine amount.
Michael E. Manning, Respondent, v. Catherine M. Manning, Appellant.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED91491

Evidence Supported Findings
Circuit court’s valuation of property was within range supported by evidence. Evidence refuted wife’s contention that certificate of deposit was “funded for the benefit of [wife’s] children by child support payments from a previous spouse[.]” A finding of income based on evidence is not an imputation of income.
In Re: Marriage of GAYLE HAYES and FREDERICK JAY HAYES. GAYLE HAYES, Petitioner-Appellant vs. FREDERICK JAY HAYES, Respondent-Respondent
Missouri Court of Appeals, Southern District - SD29208

Incomplete Judgment Remanded
Motion to modify requires no responsive pleading but, if defendant files such pleading, its admissions are binding. Change in custodial parent’s custody is not subject to statute governing award of visitation. Statute requires findings only on relevant factors. Statutes require order modifying custody to include visitation schedule for specific days and specific language on relocation. Statute and rule require circuit court to show its child support calculation. Motion for new trial meets purposes of motion to amend. Reversed for compliance with statutes and rule.
In re The Marriage of: KARLA J. ALRED (HENSON), and HAROLD K. ALRED. KARLA J. ALRED (HENSON), Petitioner-Appellant vs. HAROLD K. ALRED, Respondent-Respondent
Court of Appeals, Southern District - SD28806

Child Not Shared By Father And Stepfather
Adult Abuse Act covers “adults who have a child in common regardless of whether they have been married or have resided together at any time” which limits covered persons to those who could have been married. Missouri Constitution limits marriage to persons of opposite sexes. Therefore, statutes do not apply to biological father and stepfather of child.
DUSTIN ROGERS, Petitioner-Appellant v. JOSEPH MCGUIRE, Respondent-Respondent
Court of Appeals, Southern District - SD29583

Court May Disbelieve Testimony
Circuit court did not err in denying motion for continuance that did not meet any requirement of governing rule, rejecting Husband’s inconsistent testimony on property value, awarding maintenance when Husband offered no evidence against it, or in awarding parenting time under joint physical custody.
IN RE: The Marriage of Carol Leigh House and Larry Joe House. CAROL LEIGH HOUSE, Petitioner-Respondent vs. LARRY JOE HOUSE, Respondent-Appellant
Missouri Court of Appeals, Southern District - SD29295

Life Partner's Contributions Support Modification
Contributions to Wife's accounts from her "life partner" were substantial and continuing enough to support a modification in her maintenance award. Husband did not show that his early retirement was involuntary or caused a continuous reduction in income.
William P. Schuchard, Appellant, v. Theresa T. Schuchard, Respondent.
(Overview Summary)
Missouri Court of Appeals, Eastern District - ED92124

Relocation request in divorce proceeding. In Re Marriage of: Nathan D. Lowery, Appellant v. Shayla R. Lowery, Respondent, No. 91383 (Mo. App. E.D., May 12, 2009), Richter, P.J.

This was an action for dissolution of marriage in which the parties originally met, married and lived in the State of Florida. They were very young and unable to support themselves, let alone their baby born in 2005. Therefore, they lived with the Husband's parents. When Husband's parents relocated to St. Louis in 2006, Husband and Wife followed.

The parties separated in 2007 and an action for dissolution of marriage was filed in which the Wife asked to be able to relocate the child to Florida. The trial court dissolved the marriage and granted permission to the Wife for a return to Florida. The Husband appealed.

Held: Reversed. The opinion notes that Wife's wish to relocate the child's residence to Florida is a factor under Section 452.375 RSMo, but the court is not required to consider the relocation statute (Section 452.377 RSMo).

There was no substantial evidence to support the finding that the return to Florida was in the child's best interest. The Wife presented no solid plans of what she would do upon her return to Florida, although she planned to live with her mother for a time there. She has no job, no housing, no evidence of schooling or care for the child. "Missouri Courts commonly reject relocation requests when a parent's relocation plan lacks specificity regarding the child's future living environment. See Wilson v. Wilson, 873 S.W. 2d 667, 670 (Mo. App. E.D. 1994). The court also reversed on the basis that the parenting time for the Husband was unrealistic. The Wife had unreliable transportation and the Husband had none of his own.

Attorney Fee Award Unsupported
Statute sets forth facts that determine an award of attorney fees, but Circuit Court sustained Wife’s objections to such evidence. Without such evidence, the record does not support the award. No remand for evidence to which Wife objected.
Wendy Andrews, Respondent, v. Jeffrey Andrews, Appellant
(Overview/Summary)
Court of Appeals, Eastern District - ED91820

Insurance Counted Only Once
On Form 14, Circuit Court correctly treated Father’s payment for Children’s insurance as a deduction in business’s gross receipts and not a second time as a resulting reduction in Father’s income. Contempt order imposed but stayed in execution—for Father to purge himself—is not ripe for appeal.
Charlotte A. Melson vs. Mark W. Melson
(Overview/Summary)
Court of Appeals, Western District - WD69863

No Standing For Maternity Action Shown
Same-sex partners had biological children. Plaintiff partner showed no standing to claim maternity, in her own name or biological child’s name, as to Defendant partner’s biological child. Theories included statutory procedures, equitable parenting doctrines, and extraordinary circumstances. Equitable estoppel does not create a standing. Petition did not state a contract claim for child support. Dismissal without prejudice is subject to appeal when Plaintiff chooses not to amend. Dismissal did not violate constitutional provisions related to open courts, due process, and equal protection.
Leslea Diane White, Individually and as Next Friend for C.E.W. and Z.A.W. vs. Elizabeth Michelle White, n/k/a Elizabeth Michelle Crowe
(Overview/Summary)
Court of Appeals, Western District - WD69580

Paternity Judgment Not Final
Circuit Court’s first ruling on paternity and travel issues, and second ruling setting aside first, were merely interlocutory orders, even though denominated as judgments and certified for appeal. Circuit Court abused its discretion in barring second amended petition that stated claims not possible under prior pleadings.
T.Q.L., by his next friend, M.M.A., and M.M.A., individually, Appellants vs. L.L., Respondent
Court of Appeals, Southern District - SD29293

Property Division Unsupported
Husband waived interest in Wife’s pension by not claiming it in Circuit Court. Fifty-fifty split of property valued to include Wife’s sweat equity is no abuse of discretion. But no evidence showed amount of property value’s increase, so marital equalization based on such amount was error. Without evidence that title to truck transferred, the record did not support a find that Husband gave truck to Wife. Attorney fees award affirmed based on parties income, conduct during marriage, and conduct during litigation.
John D. Cosby, Jr.., Appellant, v. Barbara N. Cosby, Respondent
(Overview/Summary)
Court of Appeals, Eastern District - ED91561

Evidence was Not Clear, Cogent and Convincing
On petition to terminate Mother’s parental rights, evidence in support of termination was not clear, cogent and convincing. Circuit Court’s own finding of no chemical dependency or mental condition, numerous negative drug screens, compliance with service agreement, and financial contributions though small, outweighed scant evidence of abuse or allowing Husband to abuse Children and persistence of conditions. Without grounds for termination, analysis of Children’s best interest is unnecessary.
In The Interest of W.C., M.M., W.M. and G.M.
(Overview/Summary)
Court of Appeals, Eastern District - ED91354

Income For Taxes and Child Support Discussed
Circuit Court may use parts of Appellant’s original tax return, ignoring amendments and accountancy conventions, to calculate income for child support purposes. Evidence of parties’ financial resources supported attorney fees award.
MELINDA MAE MAYBEN, Respondent vs. DARIC KARL GARREN, Appellant
Court of Appeals, Southern District - SD29072

No Support For Parenting Plan
Judgment claiming to be interlocutory was final, because it addressed all issues as to all parties, including motion to relocate. On motion to modify, parenting plan called for Child to alternate years with parents and so alternate years in different schools in different states. Such plan, unique though it was, was subject to same review as any other. Record included no evidence showing that such plan was in Child’s best interests.
ROBIN D. (WALTERS) CARLTON, Petitioner/Movant/Respondent/Respondent vs. JOHN E. WALTERS, JR., Respondent/Respondent/Movant/Appellant
Court of Appeals, Southern District - SD28879

Child Support Abated
Failure to appoint guardian ad litem after petition’s amendment, to remove allegations of abuse against Appellant, was not plain error. Record contained support for Circuit Court’s determination of child support amount including “repeated deception of the court concerning . . . income and assets.” Evidence on lack of college enrollment documents supported amendment to conform pleadings and abatement of support obligation. Attorney fees award affirmed.
Linda K. Downard, n/k/a Linda K. Miller, Respondent, v. Jonathan L. Downard, Appellant
(Overview/Summary)
Court of Appeals, Eastern District - ED91557

Source Of The Funds Rule Applied
Property statutorily POD to one spouse alone are separate property. Commingling marital property in an account in that spouse’s name only, though also containing marital property, does not transmute it into marital property without intent to convert it to marital property. Source of the funds rule determines spouses’ respective interests in account.
IN RE: THE MARRIAGE OF JANICE LOUISE LOONEY and BOBBIE RAY LOONEY. JANICE LOUISE LOONEY, Petitioner-Respondent vs. BOBBIE RAY LOONEY, Respondent-Appellant
Court of Appeals, Southern District - SD29161

Calculations Of Income Discussed
Record supported Circuit Court’s calculation of Husband’s income as $153,000 more than he alleged. Circuit Court need not believe Husband’s alleged inability to pay loan he did not disclose. Commingling of marital and separate property did not prevent attribution of Wife’s interest in car. Uncontested accountancy adjustment was not error. Omission from Wife’s income, of payments from her former spouse, requires $72 adjustment of child support award. Husband’s conduct of discovery outweighed parties’ ability to pay and merited attorney fee award.
Wendy C. Andrews, Respondent, v. Jeffrey M. Andrews, Appellant
(Overview/Summary)
Court of Appeals, Eastern District - ED90797

Relocation Barred On Child’s Best Interests
Relocation statute does not apply in initial custody determination. Initial custody determination statute determines child’s best interests, including parent’s intention to relocate. Record shows that Father is responsible and involved, while Mother’s “relocation plan lack[ed] specificity regarding the child's future living environment” and visitation may not be feasible. Circuit erred in awarding custody to her.
In Re The Marriage of: Nathan D. Lowery, Appellant, v. Shayla R. Lowery, Respondent
(Overview/Summary)
Court of Appeals, Eastern District - ED91383

Transmutation Of Trust Property Possible
Husband may not argue to Court of Appeals that he deserved an evidentiary hearing on his own competency when he opposed such hearing in Circuit Court, nor that residence was separate property when he listed it as marital property in Circuit Court. As Grantor and Trustee of his own trust, Husband could transmute separate property by transferring it to himself and Wife. Point regarding judgment’s omission of residence’s full legal description was not preserved, but requires remand nonetheless because it could impact chain of title. Medical issues and disparity in income supported modifiable maintenance of unlimited duration.
Richard J. Roche, Appellant, v. Donna J. Roche, Respondent
(Overview/Summary)
Court of Appeals, Eastern District - ED91294

Wife can access estranged husband's e-mails
May 18, 2009 10:17 AM
A wife has the right to access and utilize the e-mail account of her estranged spouse and obtain copies of his e-mails, a New York trial court has ruled. Click here to read the full text of the opinion.

Non-custodial parent can't initiate disabilities suit
May 8, 2009 6:56 AM
A non-custodial parent lacked standing to initiate proceedings to determine whether his child's school provided adequate special education services under federal disabilities discrimination law, New York's highest court has ruled in answering a certified question from the 2nd Circuit. Click here to read the full text of the opinion.

Maintenance Counts On Form 14
Findings of fact are not inadequate for a party who has requested none. Maintenance award had support in record as to need, amount, and unlimited duration. Circuit Court did not err in awarding more maintenance and attorney fees than pleadings asked for, where pleadings asked for no specific amounts. Property division showed no abuse of discretion. Wife’s Form 14, adopted by Circuit court, omitted maintenance awarded to her, requiring re-calculation with new evidence allowed.
In Re the Marriage of: TIMON SANS SOUCI, Appellant vs. SHERRI SANS SOUCI, Respondent
Court of Appeals, Southern District - SD29247

Statute Requiring Bond Inapplicable To Support Modification
Statute requires posting of bond for modification of custody decree, which does not include “a decision relating to child support or any other monetary obligation” so movant for modification of child support secured Circuit Court’s jurisdiction without posting bond.
James M. Hecht, Appellant, v. Tina L. Hecht, Respondent
(Overview/Summary)
Court of Appeals, Eastern District - ED91335

Treatment Of Social Security Benefits Discussed
Record and judgment show that Circuit Court treated projected social security benefits as it must: as separate property that cannot materially impact property division.
Robert D. Litz, Respondent, v. Tracey E. Litz, Appellant
(Overview/Summary)
Court of Appeals, Eastern District - ED91545

Non-Modifiable Maintenance Not Subject To Modification
Eight years after judgment, Husband moved to modify maintenance as set forth in unappealed judgment that incorporated parties’ non-modifiable settlement agreement. Circuit Court did not err in dismissing motion to modify for lack of jurisdiction.
In the Marriage of: CYNTHIA LEE MCBRIDE, n/k/a CYNTHIA LEA GEISINGER, Petitioner-Respondent vs. DAVID PAUL MCBRIDE, Respondent-Appellant
Court of Appeals, Southern District - SD29014

Termination Of Parental Rights
Contrary evidence did not render evidence in favor of termination less than clear, cogent, and convincing. Circuit Court was not required to believe parents’ evidence against charge of abandonment, especially when uncorroborated. Evidence of Mother’s continued interest in Child did not outweigh her inability to care for Child.
In the Interest of C.A.M. T.F., Appellant vs. GREENE COUNTY JUVENILE OFFICE, Respondent
Court of Appeals, Southern District - SD29254

No Jurisdiction Under UCCJA
Mother and Child’s brief residence in Missouri did not support Circuit Court’s jurisdiction under Uniform Child Custody Jurisdiction Act provisions for home state or significant connection jurisdiction. It also did not bar application of forum non conveniens to remainder of Father’s petition for legal separation. Dismissal under forum non conveniens is without prejudice.
Devlin P. Moyers, Appellant, v. Suzanne N. Moyers, Respondent
(Overview/Summary)
Court of Appeals, Eastern District - ED91121

Changes In Income May Cause Changes In Maintenance
Husband did not show that Wife’s increased assets resulted from increased income. Wife’s income excludes employer’s 401(k) contributions but includes hers. Wife’s expenses for Child count toward child support, but not also for maintenance. Intermingling of Wife and Child expenses requires remand.
Jackie D. McKown v. Rebecca A. McKown
(Overview/Summary)
Court of Appeals, Western District - WD69681

No Waiver Of Relocation Notice
Father’s objection to relocation was not untimely because no statutorily complaint notice ever started the filing time running. Statute provides no waiver. When changing parenting time, neither parent is presumed fit, and record supported change.
In re the Marriage of: TRACY L. BUCK, Petitioner-Appellant vs. DAVID L. BUCK, Respondent-Respondent
Court of Appeals, Southern District - SD29198

Similar Conduct Finds Similar Treatment
Property in Husband’s contradictory evidence was not "clear and convincing" as required to overcome the presumption that funds in account were marital property. Circuit Court erred in disparately treating spouses’ identical use of retirement funds without findings of fact in support. Despite absence of certain documents, record shows that Circuit Court considered parenting plans and Forms 14 on the evidence. Statute on income withholding for child support requires findings of fact when none is ordered. In calculating child support, Circuit Court need not include “unpredictable” bonuses as income. Record supported retroactive award of child support.
Troy R. Neal, Respondent, v. Alberta D. Neal, Appellant
(Overview/Summary)
Court of Appeals, Eastern District - ED90390

Collateral Attacks On Guardianship Thwarted
Appellants failed to timely appeal judgments appointing Guardian and their arguments as to subject matter are merely arguments of legal error. Guardian’s movement of Children between states is not subject to Interstate Compact on the Placement of Children. Appellants waived their due process challenge based on witnesses’ presence, and alleged events’ occurrence, in Missouri by not timely raising it.
IN THE MATTER OF J.L.B., M.K.B., AND M.L.B. S.B. and J.B., Appellants vs. J.L., Respondent
Court of Appeals, Southern District - SD28760, SD28761 and SD28762

No Maintenance In Gross Via Property Division
Statute bases maintenance on need, and so bars lump sum award. Judgment showed that Circuit Court used property division as maintenance, which Court of Appeals cannot cure because Circuit Court must consider statutory factors relevant to property division.
Margaret Leona Fisher, Decedent, and Shawn H. Garst, and Darlene S. Zolman Co-Personal Representatives of the Estate of Margaret Leona Fisher, Respondents, v. James Lee Fisher, Appellant
(Overview/Summary)
Court of Appeals, Eastern District - ED91076

Sanctions Struck
As its sanction for noncompliance with temporary support and discovery orders, Circuit Court chose to strike pleadings, bar evidence, and limit cross-examination by offending party. That choice of sanction limited Circuit Court’s ability to determine children’s best interest, including custody and support needs. “Had the court heard evidence from Husband, it would have been free to disregard such testimony[.]”
In re the Marriage of: DEANNA J. NOEL, Petitioner-Respondent vs. ROBERT A. NOEL, JR., Respondent-Appellant
Court of Appeals, Southern District - SD28876

Time In Foster Care Is Maximum, Not Minimum
Statute sets mandatory time in foster care before Juvenile Officer must file a petition to terminate parental rights, but Juvenile Officer may file before such time.
In the Interest of: M.N., L.N. (Mother) vs. Juvenile officer, Missouri Children's Division
(Overview/Summary)
Court of Appeals, Western District - WD69915

Damage Are Separate Property
As to periodic post-dissolution annuity payments from personal injury settlement, including amounts paid after Husband’s death, Husband overcame presumption of marital property. Without such characterization, Husband would require an award of maintenance.
Karolyn S. Blydenburg-Dixon vs. Barney H. Dixon
(Overview/Summary)
Court of Appeals, Western District - WD68898

Award Of Non-Tuition Expenses Discussed
Sufficient notice to Father of hearing on motion for sanctions included Father’s agreement that motion would be heard at trial on merits of petition. Sufficient evidence to support award of guardian ad litem’s fees against Father include appoint at Father’s request and discovery that his allegations were false. Statutes provide no attorney’s lien for guardian ad litem. Circuit Court must be more specific in awarding post-secondary educational costs. “The trial court should modify its decree to specify that Father’s obligation to pay tuition is limited to the children’s tuition costs net of financial aid[.]”
Catherine D. Carlson vs. Timothy R. Carlson
(Overview/Summary)
Missouri Court of Appeals, Western District - WD68783

Significant Connections Missing
Father sought to modify custody judgment. Father’s evidence did not negate that Child had a “home state” that could assume jurisdiction over Child’s custody under statute. Under statute requiring that a significant connection between Child and Missouri, a little over six weeks with her father in Missouri was not enough to support jurisdiction in Circuit Court.
John T. Hightower vs. Melissa Ann Myers, et al.
(Overview/Summary)
Missouri Court of Appeals, Western District - WD69095

Increase In Separate Property’s Value Is Marital Property
Property acquired during marriage and titled jointly is presumed marital, even if acquired with separate assets. If marital property contributes increase in separate property’s value, such increase is marital property. Judgment must fully describe real estate in which it changes legal interests. Attorney fees award affirmed based on noncompliance with pre-trial orders and greater ability to pay.
Sarah Groenings, Appellant, v. William A. Groenings, Sr., Respondent
(Overview/Summary)
Missouri Court of Appeals, Eastern District - ED90180

Order Must Have Deadline
Judgment splitting proceeds from ordered sale of property must include deadline for sale. Physical and mental disabilities support maintenance award. Ability to pay supports attorney fee award.
STANLEY T. BUSSEN, SR., Appellant vs. JOAN E. BUSSEN, Respondent
Missouri Court of Appeals, Southern District - SD28917

Circuit Court’s Solution Overreached
Statute allows Circuit Court, on a finding of fraud, to set aside its property division; but not to modify it, and not to do anything when it finds no fraud.
Mellisa Ann Young, Respondent, v. Nicholas Christopher Young, Appellant
(Overview/Summary)
Missouri Court of Appeals, Eastern District - ED90723

Incomplete Analysis Requires Reversal
Evidence supported Circuit Court’s finding of no pattern of domestic violence or abuse, joint custody, and child support amount. Wife acquiesced in computation of child support award without Husband’s part-time job because she submitted a Form 14 without such income. In awarding maintenance to Wife and child support, Circuit Court erred in failing to consider Wife’s share of property division, and her job prospects as a licensed physician and certified nephrologist, qualified to work as an internist. “The salaries for those positions ranged from $132,000 to $174,000 annually.”
Alexandra Ileana Voinescu vs. Michael Theodore Kinkade
(Overview/Summary)
Missouri Court of Appeals, Western District - WD68741 and WD68742

Rights Against Estate Survive Kansas Divorce
Kansas law provides that, under a dissolution decree that includes separate maintenance, spouses retain inheritance rights unless expressly severed. Because decree did not expressly sever right to inherit from spouse’s estate, Wife retained claims against Husband’s estate under Missouri statutes.
Estate of Larry R. McKown, Deceased, Sharon Cumpton, Public Administrator Personal Represetative; Elaine F. McKown vs. Lutricia Rapue
(Overview/Summary)
Missouri Court of Appeals, Western District - WD69360

Changed Circumstances Shown
Court of Appeals will review non-compliant points when Child’s welfare is at stake. Changes in parents’ communication and Child’s “medical, psychological, and educational needs” supported modification of legal custody. Any non-compliance with notice of relocation procedure is merely a factor in relocation decision. Record supported relocation under Child’s best interest test. Changes in expenses and income constituted a substantial and continuing change of circumstances for modification of child support.
ALAN DEAN HUECKEL, Petitioner-Appellant vs. MICHELLE LEE WONDEL n/k/a MICHELLE LEE GARNER, Respondent-Respondent
Missouri Court of Appeals, Southern District - SD28790

Separate Property Established
Clear and convincing evidence showed that Wife received stock as a gift of separate property. No abuse of discretion shown as to award child support retroactive to the date of petition’s filing. Husband did not show an abuse of discretion as to rulings based on his own evidence and lack of evidence. Errors on Form 14 require vacation of judgment and remand, and physical custody determination also remanded.
ERIKA LYNN MCFALL, Respondent vs. JOHN L. MCFALL, JR., Appellant
Missouri Court of Appeals, Southern District - SD28648

Identity theft conviction affirmed
November 26, 2008 9:12 AM
A husband who intended to annoy his ex-wife by signing her up for explicit websites and ordering adult magazines and books to be delivered to her house engaged in conduct intended to "harm" her for purposes of identity theft, the Wisconsin Court of Appeals has ruled in upholding his conviction. Click here to read the full text of the opinion.

Action In Equity May Divide Property
Statute bars modification of judgment dividing marital property, so Circuit Court properly dismissed motion for lack of jurisdiction. But such dismissal should be without prejudice because equity allows such an action.
Christopher Hawes Naunheim, Respondent v. Mary Elizabeth Naunheim, Appellant
Missouri Court of Appeals Eastern District

Maintenance May Be Waived
Circuit Court issued judgment that Husband was in arrears in paying maintenance to Wife. Such judgment was against the weight of the evidence because it did not account for $5,000 that Wife agreed she received from Husband. When Husband provided other things in lieu of maintenance payments, and Wife claimed no arrearage, acquiescence may bar claim for maintenance.
Tracy Stauffer, Appellant, v. Yvonne Stauffer, Respondent
Missouri Court of Appeals Western District

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