Missouri Family Law Update 2015

Below is a list and synopsis of some important family law appellate decisions that have come out in Missouri in 2014 and 2015.  These cases help shed light on how many family law matters are being decided in Missouri. However, given that the facts of every circumstance is different, it is important to consult with an attorney regarding any particular circumstance.

Child Support

Abernathy v. Abernathy, 445 S.W.3d 638 (Mo. App. E.D. 2014): Father appealed arguing that the agency correctly determine that the diminution of Mother's child care costs constitutes a substantial and continuing change in circumstances sufficient to warrant a modification of the child support agreement. Father and Mother divorced in 2005. The parties agreed to forego the Form 14, and the Father would pay $1200 per month in child support and maintain medical insurance coverage for the child. In the beginning of 2012, the Missouri Department of Social Service proposed two orders of modification reducing the Father's child support to $410 per month. The trial court rejected the modification and reinstated the parties' original agreement.

The provision of any judgment respecting maintenance or support may be modified only upon a showing of changed circumstance as substantial and continuing as to make the terms unreasonable. The Father had the heavy burden of proving he was unable to support his child as provided in the child support agreement. The Father was required to establish he could no longer afford $1200 a month. Therefore, the court rejected the agency's proposed order of modification.

Steinberg v. Steinberg, 430 S.W.3d 321 (Mo. App. E.D. 2014): The parties' marriage was dissolved and the court granted joint legal and physical custody. The court ordered Father to pay child support and maintenance to Mother. At this point, both children were residing with Father. Father filed a motion to modify seeking sole custody, child support from Mother, and termination of child support obligations. Father testified that his income was $6,554, and Mother's income was $1,657 due to inability to work.

The trial court modified the judgment. The court awarded Father sole custody and ordered Mother to pay $306 per month for child support. The court ordered that Father's $500 per month maintenance payment be offset by Mother's $306 monthly child support obligation. Therefore, the court ordered Father to pay the remainder of maintenance, which is $194 per month. The Mother appealed the trial court's child support decision.

Rule 81.12(a) states: "[t]he record on appeal shall contain all of the record, proceeding and evidence necessary to the determination of all questions to be presented." Additionally, Rule 81.12(e) states that "[a]ppellant is responsible for depositing all exhibits that are necessary for the determination of any point relied on." Under Rule 81.12, Mother had the responsibility of providing the appellate court with Form 14. The record reveals that Father is only one with a copy of Form 14; the Form 14 is missing from the trial court file; and Father has failed to comply with Mother's counsel and the Court's order to provide the exhibit.

"When a party is free from fault or negligence, has exercised due diligence in seeking to prepare the record on appeal, and her right of appeal is prejudiced because a transcript of the proceedings in the trial court cannot be prepared, this Court should grant a new trial." Therefore, this case must be reserved and remanded to the trial court, which may produce a different child-support arrangement.

Hoffman v. Hoffman, 423 S.W.3d 869 (Mo. App. E.D. 2014): Mother filed a motion to modify and an amended motion to modify. Mother requested the trial court to increase the Father's child support payments because "circumstance had changed substantially and continuing so as to make the terms of the original decree unreasonable." Mother alleges that her income decreased drastically and Father has sufficient time to earn greater income. Father appealed claiming the trial court erred in imputing income to him, which increased Father's child support payments from $357 to $812 per month.

The primary purpose of imputing income is to prevent one party from alluding responsibility. "Proper circumstances" in which to impute income to a parent include situations where a parent has voluntarily reduced his or her income without justification or has lost his or her job involuntarily but "has failed to use his or her best efforts to secure new employment, refused offers of employment, or failed to make a showing that the unemployment was something other than temporary." Here, Father was an engineer and testified he was not seeking or applying for jobs. Further, Father continued running his business despite the company not making revenue. Substantial evidence supported that Father is underemployed, and Father did not make any effort to seek employment or earn a living. Therefore, the increase in child support was affirmed.

Stroh v. Stroh, No. SD 33052, 2014 WL 7450073, at *7 (Mo. Ct. App. S.D. 2014): The parties sought to dissolve their marriage. Husband challenged the trial court's orders in regards to child support, maintenance, property division and attorney fees. Husband contends that the trial court erred by miscalculating Husband's income, which resulted in a higher child support payment.

There is a rebuttable presumption that the amount of child support calculated pursuant to Civil Procedure No. 14 is the correct amount of child support to be awarded in any judicial or administrative proceeding. In making child support determinations, the trial court is required to determine the presumed correct child support amount pursuant to Rule 88.01 and Form 14. The trial court has discretion to accept one or both parties' Form 14 as well as deny the calculations. The trial court denied both parties' Form 14 and used its own. Here, the Husband's monthly income was $10,000 based on $9,000 from rental property and $1,000 from Social Security benefits. Yet, the trial court's Form 14 miscalculated Husband's monthly income to be $11,000. The trial court's Form 14, thus erroneously calculated, produced a presumed child support amount payable by Husband of $1,197 for two children and $842 for one child. The miscalculation was prejudicial to Husband. Therefore, the child support award is reversed.

Hall v. Utley, 443 S.W.3d 696 (Mo. App. W.D. 2014): Father appealed the trial court's judgment granting Mother sole legal custody of Child, and both parents sharing joint physical custody of Child. Further, the trial court ordered Father to pay child support. Father asserts that the trial court erred in failing to grant a new trial or amend the judgment regarding the calculation of child support based on new evidence.

Father and Mother made an informal visitation agreement when Child was one. After several years, Father filed a petition seeking sole legal and physical custody of Child. Father alleged Mother abused drugs and was financially unstable. The judgment ordered Father to pay Mother $1,371 per month in child support. Father filed a motion for a new trial or for relief from judgment. The trial court overruled the motion and Father appealed.

Father asserts he was entitled to a new trial or amended judgment because newly discovered evidence required a decrease in the amount of child support. The newly discovered evidence illustrated that Father anticipated making $32,000 less than the year prior. Father has failed to explain why this evidence could not have been discovered through due diligence prior to trial. Due diligence is defined as that degree of assiduity, industry or careful attention called for under the circumstances of the case. The trial court did not abuse its discretion is denying Father's motion.

Kelly v. Missouri Dep't of Soc. Servs., Family Support Div., No. WD 77544, 2015 WL 1119957, at *1 (Mo. A.D. W.D. 2015): This case arises out of the Husband petitioning for judicial review after the Missouri Department of Social Services sent Husband a notice that his driver's license could be suspended pending an administrative hearing because of his child support and maintenance arrearages. After a hearing the director of the department suspended his driver's license. The court of appeals held in this case that a judicial hearing on the department's decision was an improper collateral attack on the New York judgment, the action of suspending the Husband's driver's license was not tantamount to a garnishment action, the director was authorized to suspend the Husband's driver's license for nonpayment of child support, and emancipation of the youngest child did not relieve father of his obligation to pay child support.

Parentage

Cooper v. Cooper, 445 S.W.3d 589 (Mo. App. S.D. 2014): Mother filed for divorce in Cedar County but failed to appear at trial. Father testified he was the biological father of all three children, even though the two youngest children did not have the Father's surname. The court awarded Father custody and ordered Mother to pay for child support. Mother filed a motion to set aside the judgment asserting a third party was the biological Father of the two youngest children. The motion to set aside the judgment was overruled, and Mother's appeal was affirmed. Mother filed a petition for the "Determination of the Non-Existence of Paternity." The court dismissed the petition based on res judicata from the Cedar County dissolution decree.

The Mother filed a petition to set aside the judgment of paternity and support in Cedar County. Mother cited Section 210.854 as authority and again alleged Father was not the biological father of the two youngest children. The trial court found the Mother was not entitled to seek relief under Section 210.854. Mother appealed.

The plain language of Section 210.854 states, "the trial court may order relief only if the children are found not to be the biological children of the petitioner." Here, the Mother is the petitioner and she is not contesting that the two youngest are not her biological children. Therefore, the court found that there is no authority in the statute to grant the Mother's request for relief.

Ballenger v. Ballenger, 444 S.W.3d 914 (Mo. App. W.D. 2014): Mother and Father were awarded joint legal and physical custody of their minor child through a paternity judgment. Several years later, Mother and Father married. Father filed a petition for a writ of habeas corpus that sought custody of the child. Mother filed an answer alleging the parent's marriage effectively abrogated and nullified the paternity judgment. After the petition hearing, the trial court ordered the return of custody of the child to Father. Mother appealed.

The custody issue presented in this case has never been decided in Missouri. The weighing authority jurisdictions hold that "when divorced persons remarry, the remarriage terminates the court's jurisdiction over the parties and the minor children." Further, the remarriage nullifies the provision of a divorce decree relating to child custody. The rationale is when parties remarry; the parties no longer have separate rights of custody. The judgment was reversed.

Modification

Scherder v. Sonntag, 450 S.W.3d 856 (Mo. App. E.D. 2014): Mother appealed the trial court's decision in dismissing her motion to modify granting Father sole custody. Child was born in Louisiana and the Louisiana court granted joint custody. Mother remarried and moved to Pulaski County and registered the Louisiana judgment. Father moved to Pike County and filed a motion to modify the Louisiana judgment. Pike County trial granted Father sole custody.

Mother filed a motion to modify in Pulaski County. Mother alleged a change in circumstance because Father had a new girlfriend, a new baby, and the girlfriend physically and emotionally abused Child. Further, Father allows the abuse; Father has changed residences and jobs several times; and Father refused to facilitate communication between Mother and Child. The trial court heard testimony from Mother, Child and the guardian ad litem. Father moved for dismissal. The trial granted Father's dismissal because the evidence did not rise to level of change in circumstances warranting a modification of custody.

Section 452.410.1 states that a court shall not modify a prior custody decree unless it finds a change has occurred in the circumstances of the child or her custodian and that modification is necessary to serve the child's best interests. Before a custody decree can be modified, there must be a significant or substantial change in circumstances. Here, Father's relationship status changed and the new relationship affected Child's welfare. Additionally, the trial court misapplied the law when requiring 'substantial and continuing change' as a prerequisite for modification. Under Section 453.370, "a change in circumstance of the child or custodian warranting custody modification must be substantial or significant, but it need not necessarily be continuing."

The trial court's decision was against the weight of the evidence and the motion to modify was dismissed on a legal error. Therefore, the judgment is reversed and remanded to determine is modification is in Child's best interest.

J.T.P v. P.F., 440 S.W.3d 497 (Mo. App. E.D. 2014): Mother appealed the trial decision to modify the residential custody of Child. Mother suffered a stroke, which caused long-term cognitive impairment. After Mother and Father separated, the court entered a judgment awarding parties joint legal and physical custody. Mother's address was designated as Child's primary address, which Mother residence with other family members.

Father filed a motion requesting sole legal and physical custody of Child. The trial court found no substantial and continuing change in circumstances to justify modification. Father had some college credits and worked the night shift. Mother's family members provided Child with academic support and Mother is capable of parenting tasks. The trial court still found that Father was in a "superior position" to provide academic support for Child and it was in Child's best interest to live with Father. Mother filed a cross-appeal contending that the trial court erred in modifying residential custody with no change in circumstance.

Section 452.410.1 governs custody modifications. It states that the court shall not modify a prior custody decree unless a change in circumstances has occurred and modification is necessary to serve the best interests of the child. The trial court based their decision on Father's opportunity to provide academic support rather than Child's best interest. The trial court misapplied the law when asserting there was no change in circumstances, but noted that Father was in a "superior position." There was no evidence presented that Child lacked academic support at Mother's residency and Father's support was "superior". The judgment was reversed.

Mehler v. Martin, 440 S.W.3d 529, 531 (Mo. App. S.D. 2014): Mother and Father's marriage dissolved. In the original judgment dissolution, the parties were granted joint legal custody of the three minor children, and Father was ordered to pay $300 per month in child support. Mother remarried and relocated the children. Father filed a motion to modify custody as a result of the move, and Mother filed a cross-motion to modify. The trial court granted Mother sole legal custody and modified Father's visitation and child support payments to $1,000. Additionally, the court ordered Father to pay Mother's attorney fees. Father appealed and asserted that the trial court erred in modifying the custody and child support agreement.

Father argues that there was insufficient evidence to support "that a change has occurred in the circumstances of the child or his custodian" that would modify the custody. The evidence showed that communication between Mother and Father deteriorated. The deterioration of communication can constitute a change in circumstances that warrants modification. "Under joint legal custody, the parents are responsible for sharing decision-making regarding the health, education, and welfare of the minor child." Here, Father did not consult Mother regarding important issues affecting the children. Father enrolled the children into a new school without consulting with Mother first. Joint custody is not in the best interest of the children if both parents are unable to share decisions concerning the welfare of their children. The court affirmed the lower court's judgment awarding Mother sole legal custody.

R.S. v. J.S., No. ED 101391, 2015 WL 1119609, at *1 (Mo. App. E.D. 2015): Mother and Father married and had one child together. The parents divorced and the trial court awarded joint physical custody to both parents, but awarded Father sole legal custody. The court's determination was based on Mother's mental health and history of substance abuse. Mother filed a motion to modify seeking joint legal and physical custody. The trial court denied Mother's motion. Mother appealed asserting three points. Mother argues that the trial court erred in denying her motion to modify physical custody and legal custody. This court found that the trial court did not abuse its discretion in denying Mother's motion to modify physical custody. This case turns on the modification of legal custody.

Missouri public policy encourages parents to share decisions that affect the child's health, education, and welfare. Courts are guided to "determine the custody arrangement which will best assure both parents participate in such decisions... so long as it is in the best interest of the child." The evidence presented at the modification hearing showed that both parents were not communicating effectively and able to make legal custody decisions for the benefit of the child. The trial court found that the parents' joint decision-making capacity is necessary to advance the Son's best interest. However, the trial court shifted the legal standard and concluded the parents continue to love the child and not worry about labels, such as "joint" or "sole." The trial court's decision, in regards to legal custody, did not comport with Missouri law. Therefore, the court's judgment of legal custody is reversed.

Prach v. Westberg, No. WD77511, 2015 WL 965990, at *1 (Mo. App. W.D. 2015): Mother appealed the judgment denying Mother's motion to modifying the parenting plan. Mother and Father were awarded joint legal and physical custody of their two children and shared about equal parenting time. Mother remarried and relocated to South Carolina. The trial court reversed the parenting plan and made Father's residence the residence of the children for mailing and education purposes. Mother filed a motion to modify suggesting it was in the best interest of the children to relocate to South Carolina since Son was struggling in school. The court concluded it was not in the best interest of the children to modify the parenting time or residence.

Mother contends that the trial court erred by misapplying the standard as to whether a change in circumstances had occurred to warrant a modification to the parenting plan under section 452.410.1. The finding by a trial court of a change in circumstances is a threshold matter; if "the trial court finds that a change in circumstances has occurred, it then must determine whether a modification to the prior decree and parenting plan is warranted, considering the best interests of the children." After conducting an evidentiary hearing, the trial court denied Mother's motion to modify based on the evidence that it was not in the best interest to have Son relocate to South Carolina. Therefore, Mother fails to demonstrate that the trial court used an incorrect legal standard.

Child Custody

Keel v. Keel, 439 S.W.3d 866 (Mo. App. E.D. 2014): Father filed motion to modify a child custody plan. After the parties' second divorce, an Oklahoma court entered a joint child custody plan, which gave both parties joint legal and physical custody of their children. Father moved and registered the Oklahoma judgment as a foreign judgment in trial court, and Father filed a motion to modify alleging Mother was not complying with the custody plan. The trial court found Mother was unwilling to communicate with Father and Mother made decisions that were not in the best interest of the children. The trial court granted Father sole legal and physical custody. Mother appealed.

Mother asserted that the judgment was against the weight of the evidence because the trial court granted Father sole custody while only considering one out of eight factors pursuant to Section 452.365: "In the instant case, the trial court found that since the Oklahoma judgment and Custody Plan, a substantial and continuing change has occurred in the circumstances of the children and parents, such that a modification was necessary to serve the children's best interests. The court found the parties' inability to communicate, cooperate, and make shared decisions concerning their children's welfare makes joint legal custody inappropriate. The court noted that a breakdown of parental communication and cooperation is sufficient legally, in and of itself, to constitute a change of circumstances."

The law does not require the trial court to make a detailed finding on each fact, but make sufficient finding on the relevant factors. Here, the court did not believe Mother's behavior would allow a frequent, continuing and meaningful relationship with Father. Therefore, the court affirmed Father having sole legal and physical custody of the children.

Nestle v. Johns, 452 S.W. 3d 753 (Mo. App. E.D. 2015): Father of a child born out of wedlock filed a petition for paternity and custody of his child in the Circuit Court of St. Louis County in 2010 after the mother took the child from Missouri to New York with no intention of returning the child back to Missouri. Father was unable to serve the mother with the petition for almost an entire year. Mother failed to appear at the court hearing on July 12, 2011 and the St. Louis County court entered a default judgment against the mother. The father traveled to New York to bring the child back with the default judgment and the mother refused to comply. The father then filed in New York state court to register the Missouri court judgment. Before that matter was adjudicated, the mother filed for custody in New York court and also filed a motion to modify the Missouri custody judgment. The New York court consolidated all of these actions.

The New York court attempted to repeatedly contact the Missouri court in St. Louis County regarding the custody ruling. New York asserted that the New York courts, not the Missouri courts, were able to make a final custody determination. The Missouri courts did not respond and the New York court set aside the Missouri custody determination. The New York custody awarded physical custody to the mother and granted father a set schedule of parental time. In October 2013, the father took the child to Missouri during his scheduled time and told the Mother he would not return the child to New York in violation of the custody judgment. Mother then traveled to Missouri to have the foreign judgment registered. The father failed to file a timely response and a default judgment was entered against him. He filed a motion to have the default judgment set aside. The trial court denied the father's motion and this appeal followed.

This court held on appeal that trial courts judgment to deny the motion to vacate the default judgment is affirmed. The court noted that it was a stretch for the father to argue that Missouri had jurisdiction over this case and the child. In the year it took the father to serve the mother the original petition, the child's connection and ties to New York became stronger. In addition to the time it took the father to serve the petition, the child had lived in New York longer than he had ever lived in Missouri since he was both born in New York and spent time there prior to being moved to Missouri and after the mother took the child back to New York. Additionally, the Missouri court failed to respond to the New York court's inquiries into the original custody determination.

Wennihan v. Wennihan, 452 S.W.3d 723, 726 (Mo. App. W.D. 2015): Mother appealed from judgment where the lower court determined the father's address as the child's residence for mailing and school purposes and the division of parenting time in the parenting plan. The mother raised three claims; 1) that the lower court's application of Missouri statute 452.375.2(3), 452.375.2(5), and 452.375.2(7) regarding the best interests of the child goes against the weight of the evidence; 2) that the court's determination under Missouri statute 452.375.2(2) regarding the need for the child to have a frequent, continuing and meaningful contact with both parents and which parent is the most able to provide for this relationship with the other parent was against the weight of the evidence and; 3) that the court's decision regarding Missouri statute 452.375.2(1) regarding the wishes of the parents and proposed settlement plans, 452.375.2(3) regarding interactions between the siblings, child and parents, and 452.375.2(8) the wishes of the child as to custody arrangements were all decided against the weight of the evidence.

The court held that the mother loses on her first point because the trial court's decision reflects the court's concern with the mother's work schedule and her ability to therefore provide for an appropriate living situation for the child. The court also held that the mother loses on her second point and that the trial court properly weighed the evidence and that they properly viewed the father's evidence that he does not restrict phone calls between the mother and child, and provided in his suggested parenting plan that the mother have physical custody of the child on all school days that both the mother and child have off. When there is no evidence that one parent will prevent the child from having a continuing relationship with the opposite parent, it does not go against the weight of the evidence for the court to grant one parent the majority of physical custody.

The court held the third point is somewhat meritorious because the trial court's initial order did not make special provision for all major school holidays as is required under Missouri statute 452.375.2(1) for custody arrangements. Therefore, this narrow point alone is remanded back to the trial court for further determination, while the remainder of the issues are affirmed.

Andrews v. Andrews, 452 S.W.3d 150, 151 (Mo. Ct. W.D. 2015): The parties were divorced in 2010 and both parents were granted joint legal and physical custody. The mother then filed a motion to modify in June 2012 in order for her to relocate from Fort Leavenworth to Fort Hood in Texas where she was assigned by the U.S. Army. At the motion hearing, the circuit court denied the mother's motion to modify. The mother appealed the circuit court's judgment denying her motion for leave to relocate with her two minor children. She contended that circuit court erred in granting custody to the father because the decision was based on evidence not properly received at trial and the trial court erred in denying her motion to modify without presentation of evidence because of restricting the hearing to only one day for presentation of evidence. This court held that the lower court has discretion to set time limitations and the fact that the mother's trial counsel did not object to the time limitations and did not attempt to make an offer of proof as to any evidence that would be kept out due to the time limitation that the trial court did not err in it limiting the evidentiary hearing to one day.

Hazelbaker v. Hazelbaker, No. ED 101048, 2014 WL 5839380, at *1 (Mo. App. E.D. 2014): The dissolution decree of the parties granted the mother and father joint legal and physical custody of their minor child and named the father the residential parent. The mother filed a motion seeking sole legal and physical custody of the child. The father filed a cross-motion to modify seeking to restrict the mother's temporary custody and to increase her child support obligations. The trial court then granted Father sole legal custody of the child and modified the custody terms of the parties' parenting plan. On appeal, Mother argues that the trial court erred in allowing the testimony of Dr. Duncan-Hively and erred in not appointing a guardian ad litem ("GAL").

This court held that not appointing a GAL was within the statutory requirements of Section 452.423, which only mandates appointment of a GAL when abuse or neglect is alleged in the proceeding, neither of which were present in this case. Furthermore, the trial court did not err in allowing Dr. Duncan-Hively to testify, despite language in the marital settlement agreement precluding the father from calling this witness in any future hearing regarding the child. This court noted that Missouri law expresses a clear and resolute policy requiring the trial court to make custody determinations in the best interest of the child and hearing testimony from the child's therapist is important in understanding what is in the best interest of the child and what the child wishes as to the child's custodian.

M.P.P. v. R.R.E., No. ED 101446, 2015 WL 774849 (Mo. App. E.D. 2015): Mother and Father were in an on and off relationship. The parents had one child together, and Mother relocated from St. Louis to Cape Girardeau. Father moved for determination of paternity, name change, and order of custody and support. Mother counter-filed and requested sole legal and physical custody. The court issued its order stating "the parties have not filed a request for Finding of Fact or Conclusion of Law...the court hereinafter makes only such findings as it deems necessary to state the ground for its decisions." The court held it was in the best interest of the child that both parents share joint legal and physical custody, and the court ordered Father pay Mother $786 per month for child support.

Mother argued, on appeal, that the trial court failed to make the required findings under Section 452.375.6. Section 452.375.6 provides that if the parties have not agreed to a custodial arrangement, then the court shall include written findings in the judgment based on the public policy set forth in Section 452.375.4, detailing the relevant factors that made a certain custody arrangement in the best interest of the child. The trial court failed to issue a written finding, pursuant to Section 452.375.6, detailing factors that this custody was in the best interest of the child. The judgment is reversed.

G.E.R. v. B.R., 441 S.W.3d 190, 191 (Mo. App. W.D. 2014): The father appealed the trial courts order terminating his parental rights for his minor child. He appealed on the grounds that the trial court wrongly determined that he voluntarily and intentionally abandoned his child and that the court wrongly determined that it was in the child's best interest to terminate his parental rights. The appeals court held that the trial court did incorrectly determine that the father intentionally and voluntarily abandoned the child and reversed the decision terminating his parental rights. The minor child was born in April 2009 and was placed in the custody of the Children's Division due to the mother testing positive for drugs after giving birth. The mother proceeded for three years to lie to the father about the child's whereabouts, despite repeated attempts by the father to participate in the child's life and to provide financial support. Once the father did learn of the child's whereabouts in October 2012, he initiated services with the Division. The Court of Appeals determined that the record does not supply sufficient evidence to support a determination of voluntary and intentional abandonment.

In Interest of V.C.N.C., No. ED 101743, 2015 WL 1136497, at *1 (Mo. App. E.D. 2015): Mother and Father have two children together. The two children were removed from parents' custody, due to medical and nutritional neglect. The children remained in Children's Division and the parents were granted visitation. The parents barely visited the children, and the Children's Division filed a Termination of Parental Rights petition. After hearing the evidence, the trial court orally granted the TPR petition.

Mother and Father appealed the trial court's order terminating their parental rights. Mother and Father argued that there was no clear, cogent, and convincing evidence for terminating their parental rights. The court turned its analysis on whenever the parents abandoned and neglected/abused their children. Section 211.477.5(1)-(2) provides the requirements to find a parent has abandoned their child and/or abused/neglected their child. To constitute abandonment, the court must find that for a period of six months or longer, the parent has, "without good cause, left the child without any provision for parental support and without making arrangement to visit..." Here, prior to the TPR petition the Mother visited the children once and the Father never visited the children. Mother and Father never attended any medical appointment with the children. Additionally, both parents consented for the children to be adopted by Father's aunt. There was clear, cogent, and convincing evidence that Mother and Father abandoned their children.

The trial court found that both parents had failed to provide necessary care for their children and Mother was chemical dependent to alcohol. Mother was required to complete 50 drug screenings, which she only submitted to 30, and mother tested positive for alcohol 14 of those 30 times. Mother and Father failed to provide adequate care for the children. There was sufficient evidence that Mother and Father neglected the children. Therefore, the court affirmed the trial court's judgment.

In re S.Y.B.G., 443 S.W.3d 56 (Mo. App. E.D. 2014): The Children's Services Division removed Child after Mother was hallucinating from using methamphetamine and marijuana. The juvenile officer filed a petition to terminate Mother's parental rights pursuant to Section 211.447.5(2), for abuse and neglect. The trial court entered judgment terminating the Mother's parental rights based on evidence of neglect. Further, the court found the termination was in Child's best interest.

Mother appealed and asserted there was insufficient evidence supporting that termination was in the child's best interest. The termination of parental rights requires a two-step analysis. First, the trial court must find by clear, cogent, and convincing evidence that grounds for termination of parental rights exists. "Second, the court must determine whether by a preponderance of the evidence, the termination of parental rights is in the child's best interest." The best interest standard is subjective and is based on the totality of the circumstances. Here, the court found that Mother and Child had a strong bond and relationship. Mother regularly visited Child. However, there was substantial evidence that Mother failed to provide for cost of care and maintenance of Child. Further, the Division did not believe Mother would be able to adjust her circumstances to provide a proper home for the child, despite providing Mother with several opportunities. Therefore, the court affirmed that it was in the best interest of the Child for Mother's parental rights to be terminated.

Courtney v. Courtney, No. ED 100834, 2015 WL 1246558, at *1 (Mo. App. E.D. 2015): Father appeals the trial court's custody modification from his 2010 divorce. This Court reversed the trial courts modification of child custody because the amended judgment did not include a written parenting plan as required by Missouri statute 452.375.9. This court also reversed the trial courts determination as to custody based on the court's use of "stale evidence" that did not take into consideration the best interests of the child at the current time. In the lower decision the trial court used evidence presented by the Mother from seventeen months prior and did not look at any current evidence at the time. Additionally, Father appealed the trial court's judgment modifying his child support and maintenance obligations. This Court reversed based on the trial court's use of outdated financial evidence.

Blankenship v. Porter, 452 S.W.3d 656, 659 (Mo. App. E.D 2014): This appeal arises out of a custody dispute where the Mother relocated the child from Kansas to Georgia without permission and the trial court found that the mother acted in bad faith by taking the child, changed the residential custody of the child to the Father's residence for education and mailing purposes and awarded both parties joint legal and physical custody of the child. The mother argues that the trial court awarding the father residential custody goes against the weight of the evidence for what is in the best interest of the child. The mother also argued that the trial court's determination that she failed to meet her burden to show that moving the child was in good faith was in error. This Court affirms the lower courts decision. The trial court did not error in not finding that the Mother acted in good faith by relocating the child because the mother relocated without a court order and while the matter was still pending based on the Father's motion to modify. Additionally, the trial court looked at all of the factors under Missouri statute 452.375.2, except for two where there was little to no evidence presented on them, to determine the best interest of the child and found that all of the factors considered favored Father. Therefore, the trial court's determination that the Father should have residential custody is not against the weight of the evidence.

Property Division

Stone v. Stone, 450 S.W. 817 (Mo. App. W.D. 2014): The husband appealed the distribution of property upon the dissolution of his marriage. He argued that the trial court failed to consider his contributions to his wife's pre-marital home that increased the value. The trial court noted that he failed to provide any evidence of the value of the wife's pre-marital home at the time of marriage and any subsequent improvement of the value post-marriage. In his second point, the husband argued that the two properties acquired during the marriage were considered marital property in error. He argued that the two properties were purchased with his own assets that he had prior to the marriage. The cashier's check the husband provided stated that the property was for the enjoyment of both husband and wife and, therefore, the trial court deemed it to be marital property. The husband's final argument is that the trial court improperly assigned him debt from the marital property. On appeal, this court affirmed the trial court's decision on all points due to the husband's lack of evidence for any of his assertions.

England v. England, No. WD 77209, 2015 WL 777658, at *1 (Mo. App. W.D. 2015): This case involves a cross-appeal between both parties. The trial court awarded the couple's dog to the wife, determined that the $115,000 gift from the husband's mother was non-marital, and that the $50,000 gift from the husband's mother to him prior to the marriage had fully dissipated at the time of this hearing. Additionally, the court determined that the couple was unable to provide evidence of the $78,473 marital debt they claimed. Therefore, this debt was not included in the distribution of marital assets analysis. On appeal, the wife claimed that the $115,000 gift from the husband's mother was marital property because it was deposited into the couple's joint checking account. This Court held that the trial courts determination was not in error because the husband overcame the presumption of the money being a joint marital asset by clear and convincing evidence that this was a gift solely for him based on the testimony of his mother who gave the gift. The husband argued, on appeal, that the court improperly determined the dog to be marital property and, therefore, erred in granting the dog to his ex-wife.

The husband argued that his former mother-in-law gave the dog to him specifically as a gift. The trial court did not believe this and there was no solid evidence to suggest that the dog was truly only meant to be his as a gift. Therefore, this Court determined that the determination of the dog was not in error. Husband also claims that the court should have considered the sizeable debt accrued during the marriage.

This Court found that the husband could not provide any documentation showing these large debts. The husband also argues that the trial court erred in considering his motorcycle as marital property and for determining that his $50,000 gift from his mom was already depleted. He argued that $50,000 should be set aside by him from the marital assets for this gift to him. The trial court was not in error in its determination of the $50,000 gift. The husband bears the burden of showing the remaining value of this asset at the time of marriage and has failed to do so. Additionally, the trial court did not err in assigning the motorcycle as marital property. The only evidence the husband referenced was a stipulation by the wife that called the motorcycle "non-marital." The trial court found that this language was not intended to exclude the motorcycle from the marital assets but that the wife was stipulating that the husband could have it out of the overall marital assets. Therefore, on appeal, this Court affirms the lower court's decision in its entirety.

Muza v. Muza, 451 S.W.3d 326 (Mo. Ct. W.D. 2014): The wife in this case filed an appeal arguing that the trial court erred in considering future proceeds from a lawsuit she had filed with her former employer AT&T in the marital assets. The analysis for whether future proceeds from a lawsuit are considered marital property is whether the legal rights claimed in the suit arose during the marriage. For instance, if the claim is for lost wages that would have been wages during the marriage then any award for damages would be considered marital property. The trial court determined that the future proceeds from the wife's lawsuit against her employer asserted legal rights during the marriage. Additionally, the wife failed to appear at the dissolution hearing and, therefore, did not present any evidence to rebut the presumption that the future proceeds should be considered marital property. On appeal this Court affirmed the lower court's decision.

In re Marriage of Miller, No. SD 33253, 2015 WL 1285323, at *1 (Mo. App. S.D. 2015): The parties were divorced in February 2014 and the Husband appealed arguing that a Fidelity IRA was improperly categorized as marital property. This Court found no error and affirmed the judgment. The Fidelity IRA was comprised of several IRAs that were accumulated both before the marriage and during the marriage. The Husband tried to argue that the Fidelity IRA came from his employment prior to the marriage. The trial court found that the Husband did not present any evidence to decipher which IRAs were established during the marriage and which ones were his separate property from before the marriage.

Maintenance

Bechtold v. Bechtold, No. SD 33219, 2014 WL 6464537, at *2 (Mo. Ct. App. S.D. 2014): Upon the dissolution of the parties marriage, the trial court granted the wife spousal maintenance under the condition that it would terminate upon her cohabitation. If the wife cohabitated, she was required to send notice to her former spouse and the court and the maintenance was to permanently cease immediately. On appeal, the Missouri Court of Appeals determined that this was in error because, "the economic implications of cohabitation for the spouse receiving maintenance must be addressed before the maintenance award may be modified, suspended, or terminated."

Cule v. Cule, No. ED 100694, 2015 WL 343128, at *1 (Mo. App. 2015), reh'g and/or transfer denied (Mar. 11, 2015): On appeal, the wife claimed that the trial court erred in denying her spousal support at the dissolution of her marriage. The wife claims that her monthly expenses of $4,678 exceed her monthly income of $3075.70. The trial court will only be assumed to have abused its discretion in denying spousal maintenance when it is shown that the party cannot support themselves without spousal maintenance. Here, the trial court determined that the wife could support herself through employment and property she owned and, therefore, was not entitled to spousal maintenance. This court determined that the trial court did not err in its judgment that the wife could support herself based on her educational background and ability to obtain employment.

Greenberg v. Greenberg, No. ED 99952, 2015 WL 545258, at *1 (Mo. App. E.D. 2015): The husband appeals the judgment modifying the husband's required spousal maintenance from $4,000 per month to $4,400 per month. The husband argued that the maintenance should be lowered due to his lowered income and the wife's employment and ability to support herself. The wife counter-argued that the maintenance amount should be increased due to inflation and her changing health issues limited her ability to earn money. This Court reversed and remanded for the trial court's denial of husband's motion to modify and granting the wife's motion to modify. "Given that Wife's claimed monthly legal expenses arose solely from the maintenance modification proceeding...we conclude that the trial court erred in including claimed legal fees generated in connection with the instant proceeding in the calculation of Wife's reasonable expenses." On remand, the trial court must make a factual determination if the husband and wife's situations have changed in a manner that would require an adjustment in spousal maintenance.

Vacca v. Vacca, 450 S.W.3d 490, 491 (Mo. App. E.D. 2014): Both parties appealed the trial court's order arguing that the determinations were arbitrary and without evidence in every aspect. The court of appeals agreed and reversed and remanded for a new trial. The trial court determined that the husband's reasonable monthly expenses were $16,000 and, therefore, ordered the wife to pay $1,200 per month in spousal maintenance. The $16,000 is not supported by the record and appears to be an arbitrary median between the husbands claimed changing and increasing expenses. The Court of Appeals also noted: "[t]he rest of the Judgment is filled with similarly arbitrary decisions, which is likely due, at least in part, to the nearly year-long gap between the conclusion of the trial and the issuance of the Judgment."

Hopkins v. Hopkins, 449 S.W.3d 793, 796 (Mo. App. W.D. 2014): Husband appealed the trial court's denial of his motion to terminate spousal maintenance payments to his former wife. Finding no error, the Court of Appeals affirmed the decision. In 1998, the husband was ordered to pay $1,000 per month in spousal maintenance. He filed a motion to terminate in 2001 and the maintenance was modified to only $489 a month. Again, in 2013, the husband filed a motion to terminate spousal maintenance. This motion was denied. The husband argued three points. First, he argued the wife's permanent relationship with another required termination of maintenance as a matter of law, regardless of this individual actually supporting wife. The trial court did not incorrectly analyze the cohabitation and the financial impact of it on the wife. "To find a substantial change in circumstances warranting modification of maintenance based on cohabitation...requires evidence to support the conclusion that the relationship is of such a nature that it is tantamount to marriage." The Court relied heavily on Herzog v. Herzog, 761 S.W.2d 267 (Mo. App. E.D. 1988)

The husband argues that 2) the wife was supporting the four other people living in her house with their minor expenses; and finally the husband argued 3) that the trial court's ruling was against the weight of the evidence. On appeal, the Court of Appeals determined that the trial court's determination that the wife was not supporting the four individuals living in her residence was not in error. The Court of Appeals pointed out that: [t]he only direct evidence of Wife providing financial support to any of the people living in the house was her acknowledgment that she pays $104 a month toward her Daughter's dental bills.

Finch v. Finch, 442 S.W.3d 209, 212 (Mo. App. W.D. 2014): Husband appealed the trial court's decision ordering $4,050 in spousal maintenance per month. The husband raised on appeal that the wife failed to establish the amount of income she can earn on the $1,602,005 awarded to her in the marital settlement; that the wife failed to establish the amount of income she can earn on a smaller marital award; that the husband should not be forced to deplete his awarded marital assets; and that the maintenance determination is against the weight of the evidence.

The trial court found that the wife did not work outside of the home for the majority of the thirty-eight year marriage. She suffers from significant physical ailments and memory problems that limit her ability to maintain both part time or full time employment and her lack of education and training limit her earning potential. This Court determined that the trial court did not abuse its discretion in awarding spousal maintenance to the wife in light of the Hill factors (Hill v. Hill, 53 S.W.3d 114 (Mo. banc 2001) and § 452.335).

Sheerin v. Sheerin, ED101583 (Mo. App. E.D. 2015): Husband appealed the trial court's judgment awarding $1,000 in monthly maintenance to his former spouse. At the time of trial, Husband earned a gross monthly salary of $2,083 working for a construction company and also derived about $1,000 a month from independent jobs. Husband's itemized living expenses were $2,599. Wife's claimed living expenses were $1,824. Both figures included the couple's mortgage of $713, which Husband was paying to avoid foreclosure. On the issue of maintenance, the trial court found Wife was able to work at minimum wage, but it did not impute any income to her in assessing her ability to support herself. Rather, it found that, even with minimum wage employment, Wife would be unable to meet her needs.

Even accepting Husband's income at the time of trial and disregarding his physical limitations affecting future income, the trial court found that Husband was left with a deficit at $500 per month. Thus, the award was clearly beyond his means. Further, the trial court's calculation of Wife's income, expenses, and result deficit is against the weight of the evidence. While a trial court is not legally required to impute income to a spouse seeking maintenance, the Court of Appeals found it "puzzling" that the court here specifically found Wife capable of making minimum wage, yet assumed in its deficit calculation that Wife would be unemployed for the rest of her left. Accordingly, the trial court's maintenance award discounts Wife's obligation to seek employment, exceeds Husband's ability to pay and constitutes an abuse of discretion. The trial court's judgment is reversed and remanded.

Attorney Fees

G.K.S. v. Staggs, 452 S.W.3d 244 (Mo. App. W.D. 2014): Father filed a motion for an order nunc pro tunc or, in the alternative, a motion to modify the order of temporary parenting time and child support. The trial court conducted a bench trial and found that it was in the best interest of the child for Father to have sole legal custody and Mother and Father share joint physical custody. The trial court held that each party shall pay his or her own attorney fees and costs in regard to this action.

Father appealed and asserted that the trial court erred for failing to impose monetary sanctions on Mother, including particularly deposition cost and attorney fees. "The trial court is vested with broad discretion in its award of attorney's fees, and we will not disturb that award absent an abuse of discretion." The trial court must consider the parties' financial position and the merits of the case. The court must further look at the parties' actions in regards to the pending case. Awarding attorney's fee is discretionary, and awarding of attorney's fees is held presumptively correct. Therefore, we find no abuse of discretion in the trial court's refusal to award Father the sanctions requested.

Prach v. Westberg, No. WD77511, 2015 WL 965990, at *1 (Mo. App. 2015): Mother appealed the judgment denying Mother's motion to modifying the parenting plan and awarding attorney's fees in the amount of $1,500 to Father. Mother and Father were awarded joint legal and physical custody of their two children and shared about equal parenting time. Mother remarried and relocated to South Carolina. The trial court reversed the parenting plan and made Father's residence the residence of the children for mailing and education purposes. The court concluded it was not in the best interest of the children to modify the parenting time or residence, and awarded Father $1,500 in attorney's fees.

Mother's fifth point, on appeal, was the trial court lacked authority to award Father $1,500 in attorney fees. The trial court awarded Father's attorney fees because the trial court believed that Mother's post-judgment motion was frivolous and Father had to defend himself against these claims. Mother must show that the award was an abuse of discretion. "An abuse of discretion may only be demonstrated by showing that the attorney's fees award is clearly against the logic of the circumstances and is so arbitrary and unreasonable as to shock's one's sense of justice." Here, the trial court believed Mother was unnecessarily prolonging the litigation causing Father to incur additional legal fees. It was in the trial court discretion to concluded that Mother pay a portion of legal expenses. Mother was ordered to $1,500, which the trial court found to be unnecessary proliferation of litigation matters.

Greenberg v. Greenberg, No. ED 99952, 2015 WL 545258 (Mo. App. E.D. 2015): The trial court denied Husband's motion to modify maintenance and granted Wife's counter-motion to modify maintenance. The trial court found that Wife's reasonable monthly expenses were $6,000 and reduced Wife's "legal services" expenses to $1,000 per month.

On appeal, Husband asserted that the trial court erred in including $1,000 per month in legal services when it calculated Wife's monthly expenses. Husband further asserted that attorney fees are awarded under section 425.355. Husband cited Holder v. Holder, 826 S.W.2d 379 (Mo.App.1992), where the court held that the trial court cannot consider monthly expenses for attorney fee payments when calculating a spouse's reasonable expenses. Additionally in Holder, the court emphasized that attorney fees are separately provided in section 452.355 and are not entitled to be included under the guise of maintenance. At oral argument, Wife's counsel conceded that legal expense should not be calculated for purposes of maintenance.

Noble v. Noble, No. WD 77476, 2015 WL 1120058 (Mo. App. W.D. 2015): Wife appealed the judgment, which quashed several garnishments Wife sought in aid of executing a monetary judgment against Husband. The court denied Wife's motion and awarded Husband $2,500 in attorney fees. On appeal, Wife argued that there was no authority for the award and there was insufficient evidence in the record for the award. The court does address the second argument because the first claim is dispositive.

Missouri courts follow the American Rule, which requires each litigant to bear the expense of his or her attorneys' fees. Attorney fees are generally recoverable only if the statute specifically authorizes the recovery or fees are provided for by contract. "By statute, '[i]f any plaintiff in attachment shall cause any person to be summoned as garnishee, and shall fail to recover judgment against such garnishee, all the costs attending such garnishment shall be adjudged against such plaintiff, and the court shall render judgment in favor of such garnishee' for various costs, including attorney's fees. § 525.240."

The court's award of fees to Husband was an error, given the fact that it was Garnishees, not Husband, that requested attorney's fees in the specific amount awarded by the court. First, none of the preconditions provided in Rule 90.12 for an award of attorney's fees to a garnishee have been met in this case. There was only one answer filed in response to the eighteen garnishments, and that answer was in response to an expired garnishment and, therefore, without any legal effect.

Secondly, where a garnishee engages in conduct beyond mere attendance, such as claiming exemptions for the debtor, contesting denials of its answer, and denying the jurisdiction of the court, the "garnishee can no longer be classified as a mere stakeholder but becomes a litigant" and is no longer entitled to attorney's fees, costs and expenses, even if his position prevails. Here, Garnishees assumed the role of litigant. The Garnishees challenged the enforceability of the dissolution judgment, and contended the form of the garnishments. There is no authority for the court's award of attorney's fees and the award must be reversed.

Procedure

O'Neill v. O'Neill, No. ED 102038, 2015 WL 1476770, at *1 (Mo. App. E.D. 2015): The wife filed for an appeal in this case after a default judgment was entered against her. As part of the default judgment, the court ordered marriage be dissolved, incorporated his parenting plan by reference as well has his proposed property division. The wife was present at the default hearing and was not allowed to provide any evidence or submit her responsive pleading as the court determined that it had to be filed prior to the hearing that day. Therefore, it was deemed untimely and the court proceeded to have a default hearing against her. The wife had her written notarized pleading with her at the time and believed that she was supposed to bring the pleading with her. Wife was unaware that it needed to be filed the day prior. This court determined that the wife made an "affirmative effort" to defend the petition and because she "otherwise defended" the husband's petition, the default judgment against her was in error. This court reversed and remanded.

Keywords: Missouri, Family Law, Divorce, Appellate Decisions, 2014, 2015