Davis v. Davis, 582 S.W. 3d 100 (Mo. Ct. App. W.D. 2019): Husband filed a petition for dissolution of marriage requesting that he and Wife have joint physical custody of their son. Wife requested in her counter-petition for dissolution of marriage that she be awarded maintenance. Following a bench trial, the Circuit Court characterized its judgment as awarding sole physical custody of the couple’s child to Husband and denied Wife’s request for maintenance. Wife appealed. The Court held that Husband and Wife were awarded joint physical custody. However, Trial Court characterized custody of the child as sole physical custody to the Husband and Husband was favored in six of eight best interest factors, where the Trial Court awarded each parent seven nights of physical custody in each two-week period, and holidays were also equally divided between Husband and Wife. The Court of Appeals stated: “Because Husband and Wife were awarded equal amounts of parenting time with Son, the circuit court’s parenting plan awarded the parties joint physical custody, and the court erred by characterizing its order as an award of sole physical custody to Husband.”
In the Interest of A.R.B. v. T.B., 586 S.W.3d 846 (Mo. Ct. App. W.D. 2019): Prospective adoptive parents of a child brought termination of parental rights and adoption action against Mother who had allegedly abandoned and neglected her child. The Circuit Court entered judgment terminating Mother’s parental rights. Mother argues on appeal that the Trial Court’s judgment constituted error in seven respects: (1) the commissioner who presided over the termination of parental rights trial and made findings and recommendations to the Trial Court was obligated to recuse himself pursuant to Rule 121.01; (2) Mother was never served with a summons for the petition filed on July 16, 2015; (3) Mother was not properly served with the first amended petition filed on August 19, 2016, because the officer making the return did not comply with Rule 54.20(b)(1); (4) in the underlying juvenile proceedings, Mother was not given notice of her right to counsel, Mother was not provided an application for appointment of an attorney, and Mother went unrepresented for over two and a half years; (5) Mother was not given notice of her right to counsel and was not appointed counsel for nearly six months after the petition to terminate parental rights was filed, and once Mother was appointed counsel, she was denied effective assistance of counsel; (6) the Trial Court improperly considered Mother’s “mental condition” as a basis for terminating parental rights; and (7) the guardian ad litem failed to discharge her duties to act diligently in the best interests of the child and to undertake a diligent independent investigation.
- As to point one, despite being the named officeholder for the entity that filed the abuse and neglect petition against Mother, Commissioner Jackson, who heard the case, asked the parties whether they wanted him to recuse himself and they all answered in the negative.
- As to the second and third points, Mother filed an answer to the first amended petition in October 2016. The answer to the first amended petition made no reference to the Trial Court’s lack of personal jurisdiction, to the sufficiency of process, or the sufficiency of the service of process.
- As to the fourth point, Mother’s fourth point on appeal is an impermissible collateral attack on the underlying juvenile matter.
- As to the fifth point, the Court of Appeals could not conclude that Mother did not receive a meaningful hearing, or that appointed counsel’s representation of Mother was ineffective.
- As to the sixth point, Mother expresses her dissatisfaction with the guardian ad litem’s representation of the Child without explaining what evidence, if any, the Trial Court would have had before it had the guardian ad litem conducted her investigation as Mother believes was necessary.
- As to the seventh point, the Court of Appeals ruled that the Mother consented to Trial Court’s consideration of and subsequent findings on the issue of Mother’s mental condition, despite mental condition not having been pleaded as a basis for termination of parental rights in a second amended petition, where Mother did not object to the testimony of a clinical psychologist who conducted a psychological evaluation of Mother. The Court of Appeals stated: “Dr. Sisk testified about the findings of the psychological examination he conducted on Mother without objection by Mother challenging the relevance of Dr. Sisk’s testimony. By failing to object to his testimony, Mother consented to the Trial Court’s consideration of and subsequent findings on the subject as required by sections 211.447.5(2) and (3).”
Hanger v. Dawson, 584 S.W.3d 798 (Mo. Ct. App. W.D. 2019): Mother and Father retained joint legal and physical custody. Father’s Mother (Grandmother) lived with him. Mother testified that the Child reported to her that Grandmother had physically abused him. Specifically, Child said that Grandmother had punched him in the stomach, and then, after he fled, Grandmother dragged him from a hiding spot. Trial Court granted an order of protection against both Father and Grandmother when Grandmother was at Father’s residence.
The Trial Court held that the order of protection did not prevent Father from visiting Child. Rather, it only specified where he could visit with Child. Namely, he could only visit with Child away from Grandmother. Therefore, Father’s visitation rights had not been terminated, but merely made to occur only under specific circumstances. Father asserted that under the statutory framework of chapter 455, RSMo, an order of protection cannot be entered against an individual based on the independent acts of a third party.
In constructing this argument, the Court of Appeals found that Father mischaracterizes the Trial Court’s findings and misconstrues the breadth of what constitutes an “assault” under the definition provided in section 455.010(1)(a). The Trial Court found that it was Father who “plac[ed] the child in fear of physical harm.” He accomplished this “by allowing the child to be in the presence of Paternal Grandmother.” In other words, Father is not being held responsible for the “independent acts” of Grandmother, but instead is being held to account for his conduct that “purposely or knowingly plac[ed] the child in fear of physical harm.” Thus, the Trial Court did not abuse its discretion.
Ross v. Scott, No. ED107725 (Mo. Ct. App. E.D. 2019): In January 2005, Kyle and Amanda Scott (“Amanda”) got married. Later that year, Amanda sought adoption by her step-mother Carol Wilson (“Wilson”). A court granted the adoption, which resulted in Ross – Amanda’s biological mother – losing all legal parental rights. As a result, Amanda’s birth certificate was changed to show Wilson as her mother and with no mention of Ross. During their marriage, Amanda and Kyle Scott had two children (“Children”) together. On October 31, 2012, Amanda and Kyle dissolved their marriage. Thereafter, Kyle Scott filed a motion to modify the custody provisions of the dissolution judgment, alleging drug use by Amanda. The Trial Court granted the motion in July 2014 pursuant to a modification judgment granting Kyle sole legal and sole physical custody of the Children.
Approximately two years later, in 2016, Amanda consented to the adoption of her two biological Children to Kyle Scott’s new Wife – Charlotte Scott. As a result, Amanda’s parental rights to the Children were terminated. In August 2018, Ross – as a third-party petitioner – filed a motion to modify the July 2014 judgment modifying Amanda and Kyle’s dissolution judgment, with Ross seeking grandparent visitation under section 452.402. Subsequently, Kyle Scott – as a third-party respondent – filed a motion for summary judgment arguing Ross was not entitled to relief because, inter alia, Ross is not the grandmother of the Children.
The Trial Court granted the motion for summary judgment in favor of Third-Party Respondents (and the Children’s Parents) Kyle and Charlotte, finding Ross is not a grandparent of the Children due to (1) the termination of her parental rights to the Children’s biological mother Amanda; and (2) the termination of Amanda’s parental rights to the Children. Ross appealed.
The Court of Appeals held it is undisputed Wilson is Amanda’s legal mother according to her birth certificate and finalized adoption proceedings. When Wilson adopted Amanda in 2005, all legal relationships, all rights, and all duties between Ross and Amanda ceased. Wilson – not Ross – is Amanda’s mother for “every purpose . . . as though born to [her] . . . in lawful wedlock.” Consequently, Ross gave up her potential status as grandmother when the adoption of Amanda took place. The law states unequivocally that all legal relationships and all rights and duties between a child and his natural parents are abrogated.
I.K.R. by J.M.R. v. K.L.D., No. ED107274 (Mo. Ct. App. E.D. 2019): Mother appeals from the judgment that modified the legal and physical custody arrangements set forth in the court’s 2014 judgment under which the parties had shared legal custody, Mother had sole physical custody, and Father unsupervised visitation. In Father’s motion to modify, he alleged that Mother had falsely accused him of sexually abusing Child and that Mother had wrongfully interfered with and damaged his visitation rights and relationship with Child. The Trial Court granted Father sole legal and physical custody of Child and Mother one hour of supervised visitation per week. Mother appealed. On appeal, Mother claims (1) the Trial Court’s award of one hour of supervised visitation per week violates § 452.375.4, and (2) there was no evidence to show that supervision is necessary to protect Child’s emotional development.
The Court of Appeals affirmed, noting that the trial looked to the statutory factors. For example, the Trial Court looked at the needs of the Child for a frequent, continuing, and meaningful relationship with both parents and the ability and willingness of each parent to provide for all the Child’s needs. The Trial Court also considered the testimony of the court-appointed psychologist, Dr. James Reid, that Mother demonstrated behaviors consistent with borderline personality disorder and that her condition posed a serious risk to Child’s psychological and emotional development. The Trial Court also examined evidence of Mother’s deliberate and calculated efforts to alienate Child from Father, including by denying him contact and visitation with Child and by accusing him in reports to law enforcement of sexually abusing Child.
The Trial Court also examined what parent was more likely to allow Child frequent, continuing, and meaningful contact with the other parent. The Trial Court found that evidence of Mother’s efforts to undermine Child’s relationship with Father demonstrates that Mother is opposed to Father having meaningful contact with Child and that unsupervised visitation would likely lead to further attempts by Mother to damage Father’s relationship with Child.
The Trial Court also considered the recommendation of the guardian ad litem, the interaction and interrelationship with parents, siblings and others. The Trial Court also considered the mental and physical health of all individuals involved and found that Dr. Reid’s testimony was persuasive. While the Court of Appeals acknowledged that Mother was granted very limited contact with Child, they deferred to the Trial Court’s discretion recognizing that the Trial Court has sought to respect § 452.375’s overarching mandate to protect the best interests of Child while considering Mother’s stated desire for contact.
Lynch v. Lynch, No. ED107455 (Mo. Ct. App. E.D. 2020): Mother and Father separated and filed separate parenting plans for the children they had during the marriage. The Court of Appeals held that evidence supported Trial Court’s determination that granting Mother sole legal custody of children upon dissolution of marriage was in the best interests of children, although Father had a career in education and did not abuse children; there was evidence that Father voluntarily stepped out of older, unemancipated children’s lives, that Father demonstrated lack of empathy toward the youngest child and an inability to communicate effectively with Mother; and that Father was angry and aggressive and unwilling to participate in improving his relationship with children.
The Trial Court also found the Youngest Child’s counselor and Mother credible in their testimony about the emotional effect of Father’s decisions and actions on the children. The Trial Court did not find Father was abusive or neglectful but did find Father was angry and aggressive and unwilling to participate in improving his relationship with the children.
T.J.E. v. M.R.M, No. ED107697 (Mo. Ct. App. E.D. 2020): This case involves a procedural posture consisting of: an initial judgment of paternity, support, and custody entered in November 2012; two modification judgments entered in February 2014 and January 2017; and the modification judgment entered in November 2018 (which was subsequently amended in March 2019) that Father is appealing in the instant case.
On January 29, 2018, Father filed a motion to modify legal custody, physical custody, and child support in the Circuit Court of the City of St. Louis. Father’s motion alleged that since the January 2017 modification judgment was entered, there had been a substantial and continuing change in the circumstances of the parties and Child as to make certain provisions of the custody order unreasonable and as to warrant a modification of custody. The Court of Appeals ruled that when looking at the best interest of the child factors the Appellate Court can not imply what is simply not there. The Trial Court did determine that frequent, continuing, and meaningful contact of the parent must always be considered in the custody of children. Further, the Trial Court ruled that the Father did not present sufficient evidence to support: (a) his desire to co-homeschool child; and (b) that parents could not effectively communicate were insufficient to support the denial of Father’s motions to modify joint and legal custody, warranting remand for statutorily required findings.
However, the findings did not provide the Appellate Court with sufficient information to permit meaningful review and were silent regarding public policy and relevant best-interest-of-the-child factors. The Court of Appeals stated specifically:
Notwithstanding the aforementioned general findings contained in the modification judgment at issue in this appeal, we hold the judgment does not provide this court with sufficient information to permit meaningful appellate review and fails to make sufficient findings under section 452.375.6 because it is silent with regard to both the public policy found in section 452.375.4 and the relevant best-interest-of-the-child factors listed in section 452.375.2(1)-(8). See Abernathy, 524 S.W.3d at 180-81; see also section 452.375.6; section 452.375.4; section 452.375.2; Speer, 155 S.W.3d at 62; Alberswerth, 184 S.W.3d at 88-93; Sewell-Davis, 174 S.W.3d at 60-61, 61 n.4; Dunkle, 158 S.W.3d at 833. Under these circumstances, the case must be reversed and remanded to the trial court for entry of such findings. See Abernathy, 524 S.W.3d at 181, 182. On remand, the trial court is instructed to make written findings in compliance with section 452.375.6 and to take whatever other action it deems appropriate. See Abernathy, 524 S.W.3d at 182 and Sewell-Davis, 174 S.W.3d at 67 (similarly holding). Point one is granted.
Baldon v. Baldon, SD36210 (Mo. Ct. App. S.D. 2020): Mother and Father separated in November 2017, and an action to dissolve their marriage was pending when Father passed away on April 2, 2018. Mother did not allow Grandfather to see Child after Mother and Father separated until April 28, 2018. The Trial Court held that the grandparent visitation statute did not require grandfather to have been denied visitation for 90 days before filing the petition for visitation. The Court of Appeals pointed out that our high court has determined that the grandparent visitation statute “requires only that the 90-day period elapse before a visitation order is entered.” Barker v. Barker, 98 S.W.3d 532, 534 (Mo. banc 2003). Further, the grandfather’s refusal to accept Mother’s conditions for visitation did not result in an artificially created 90-day gap in visitation. The Court of Appeals pointed out specifically:
Between April 28, 2018, and August 22, 2018, a period exceeding 90 days, Mother either denied Grandfather’s requests for visits outright or, on one occasion, placed significant conditions on the requested visit that Grandfather did not meet. As a result, Grandfather did not see Child for a period of more than 90 days.
The Trial Court also did not credit Mother’s alleged concerns surrounding Grandfather’s visits with Child. Instead, it specifically rejected them as pretextual and a cover for Mother’s anger at Father. The Trial Court further found that Mother did “not present any credible reason as to why [Child] should not be allowed to continue a relationship with Grandfather.”
State ex rel. Koehler v. Midkiff, SC98308 (Mo. 2020): Kelsey Koehler (Mother) filed a petition for dissolution of marriage against Ryan Koehler (Father). The parties subsequently filed competing motions for temporary custody of their minor child (Son). Without a hearing on the motions, the Circuit Court awarded temporary legal and physical custody solely to Father. Mother now seeks a writ of prohibition from this Circuit Court, asserting the Circuit Court acted in excess of its authority by awarding temporary custody without first conducting a hearing on the temporary custody motions. The Missouri Supreme Court issued a permanent writ of prohibition ordering the Circuit Court to vacate its order sustaining Father’s amended motion and awarding Father temporary custody of Son without a hearing.
Given the contentious nature of the custody dispute and Mother’s requests for a hearing to determine temporary custody, the record established Mother objected to temporary custody being awarded solely based on the motions. Accordingly, the Circuit Court was required to conduct a hearing before awarding temporary custody of Son.
Paternity
S.F.G. v. A.M.G., 591 S.W.3d 907 (Mo. App. E.D. 2019): A.F.R. (“Father”) petitioned for child custody of the parties’ minor child (“Child”). At the time of trial, the Child was four years old and suffered various medical conditions and developmental delays. When Father petitioned for paternity, the Child lived with A.M.G. (“Mother”) who testified she managed all the Child’s medical care and appointments and Father was not involved in the care or treatment of the Child. Father testified that Mother withheld numerous times visitation in violation of court orders and he also testified to multiple unsubstantiated allegations “of suspected abuse of the Child against Father.” The Trial Court entered judgment granting Father sole legal and physical custody of the Child with visitation to Mother on alternating weekends. Mother was also ordered to pay $115 in monthly child support. Mother appealed the Trial Court’s decision raising four points on appeal.
In reaching the physical custody determination, the Trial Court detailed the history of the case, including six orders on custody and visitation and Mother’s repeated violations of those orders in withholding visitation from Father since his petition was filed, including Father’s Day and other holidays — in some cases for more than thirty days at a time. Mother alleged on two different occasions during the pendency of the case that Father committed abuse or neglect. Still, the Trial Court found that no safety plans, orders of protection, temporary restraining orders or other orders affording Mother the authority to violate the pendente lite judgments in effect at the time of those allegations. All allegations of abuse were found to be unsubstantiated or without sufficient evidence. The Trial Court specifically found no justification for Mother’s continued violations of the Court’s orders. The Trial Court found that on one particular trial date, Mother did not appear, and the case was continued at Mother’s request. Given this history, the Trial Court concluded that Mother was not going to follow any court order, was not going to allow Father visitation and would continue to violate court orders without good cause.
In terms of legal custody, while the Court of Appeals agreed that at least some of the statements in the Trial Court’s judgment as identified in this point by Mother are incorrect, these incorrect statements do not impact the overall custody determination to such a degree that we must find it was not supported by substantial evidence or was against the weight of the evidence as Mother argues here. The Trial Court also found that Mother claimed to have an order of protection for four years, but also found that Father testified that Mother had come to Father’s residence, walked into Father’s residence, arrived ninety minutes early to points of exchange to pick up the Child, suggested she accompany Father on his day trips for visitation and claimed Father met her in a park and had sexual relations. The Trial Court further noted Father’s testimony that when he attempted to communicate via “Talking Parents,” a platform for communication between the parties which was set up by Mother’s counsel, Father was reported for violating the order of protection. The Trial Court also noted that Mother communicated with Father via “Talking Parents” during periods when the Child was with Father. Still, Mother refused to communicate with Father via “Talking Parents” when the Child was in her custody. Based on this conduct, the Trial Court found that joint legal custody is not in the Child’s best interest. The Trial Court did not believe the parties met and had sexual relations in the park, found Mother not credible and determined that “Mother’s behavior lends itself to an award of sole legal custody to Father.”
In terms of child support, Mother alleged: “the trial court erred in awarding child support to Father because there was no substantial evidence to support the decision and the decision was against the weight of the evidence in that the Trial Court’s conclusion that Mother was capable of working and earning was speculative, unsupported and unsubstantiated given that the only evidence presented on the issue was that Mother was receiving disability benefits.” The evidence in the record demonstrated that Mother was not working and had been on disability for seven years due to a medical condition. She received $770 in total disability each month. Mother’s income and expense statement itemized monthly income of $582 in SSI, $171 in SSA, and $234 in T/A for a total of $987. Mother’s property statement also showed that she had $6,131 in non-marital property, $3,000 in equity on her vehicle, and $6,253 in debt. The Trial Court found that Mother had an income of $987. However, she was “underemployed and imputed minimum wage at $1,365 per month, presumably based upon a forty-hour work week.” Mother was also credited for having one other child in her care and a 6% credit was given for Mother’s overnights.
The Court of Appeals found that “no evidence was presented from which the court could have imputed income to Mother as it did here.” Furthermore, there was no evidence that Mother had the ability to pay child support based on the imputation and nor was there any evidence establishing that Mother was capable of working. “There was no evidence of her work history, occupational qualifications, future employment and income potential or the availability of earning opportunities in her community.” The Court of Appeals granted Mother’s third point on appeal and the judgment was reversed and remanded to determine the appropriate amount of child support. In all other respects, the judgment was affirmed.
Biggs v. Brinneman, SD36178 (Mo. App. S.D. 2020): Angelia Brinneman (“Brinneman”) appeals from the Trial Court’s “Judgment and Order of Paternity, Custody and Support” whereby the Trial Court awarded joint legal and joint physical custody of the minor child (“Child”) to the parties, and designated Derrick Biggs’ residence as the residence of Child for educational and mailing purposes. Child was born to the parties in March 2015. The parties have never been married. On August 28, 2017, Biggs filed a “Petition for Declaration of Paternity, Custody, Visitation and Support.” In September 2018, Brinneman relocated with Child to the state of Kansas without the permission of the Trial Court, and in violation of section 452.450.
The Trial Court entered its “Judgment and Order of Paternity, Custody and Support” on February 26, 2019. The Trial Court considered the factors set forth in sections 452.375 and 452.377, and found that Brinneman was less likely to allow contact between Child and Biggs, based upon her conduct during the pendency of the case, including her relocation to Kansas without the Court’s permission and in violation of prior custody orders in place, and for the sole purpose of furthering the career of her paramour to the detriment of Biggs’ custodial time. The Trial Court ordered the parties to have joint custody of Child, with the residence of Child for educational and mailing purpose with Biggs. Mother appealed.
Rule 84.04(e) requires that “[a]ll factual assertions in the argument shall have specific page references to the relevant portion of the record on appeal, i.e., legal file, transcript, or exhibits.” While Brinneman makes sporadic attempts at compliance with this requirement in her argument section, a significant portion of the material relied upon therein lacks appropriate citations to the record-to a significant extent, this seems to be due to reliance on argument or speculation as though such were facts proper for our consideration (to be clear, they are not). The briefing deficiencies in Brinneman’s brief doom her challenge, and impede our review. Brinneman’s appeal is accordingly dismissed.
Child Support
Eichacker v. Eichacker, No. ED106976 (Mo. Ct. App. E.D. 2020): After parties’ marriage was dissolved, Mother moved to modify the original judgment to extend the age of emancipation for parties’ children because they both suffered from multiple psychological and emotional diagnoses which rendered them unable to support themselves past the legal age of emancipation and to hold Father in contempt for nonpayment of support. Father moved to terminate child support as to one of the children, B.R., since he had reached the age of emancipation. Following a hearing, the Circuit Court entered an order extending the age of emancipation and modifying child support. Father appealed and Mother filed a motion for attorney’s fees on appeal. Trial Court granted Mother’s motion and ordered Father to pay $25,000 attorney’s fees on appeal. Father appealed.
The Court of Appeals held that evidence supported the conclusion that the parties’ child was not yet employable, and thus child should not have been emancipated for child support purposes. Although Father’s expert opined that child was employable, the child’s treating psychiatrist opined that child was unable to maintain employment due to behavioral and learning disabilities. These disabilities impaired his capacity to communicate appropriately in social situations and affected his work performance in the classroom. The child also had difficulty securing and administering medications. The vocational rehabilitation expert testified that the child had extreme difficulty engaging in active conversation and that it would be “miraculous” for the child to maintain even a part-time job. Mother testified that the child had difficulty performing daily activities and that he had dynamic mood swings.
On an evidentiary note, by striking Dr. Lightfoot’s testimony on the threshold basis that she was not licensed as a vocational rehabilitation counselor, the Trial Court misinterpreted Missouri’s expert witness statute, § 490.065 and, therefore, erred as a matter of law. The record here is replete with evidence of Dr. Lightfoot’s practical experience in employability determinations that would qualify her as an expert on that subject. In particular, Dr. Lightfoot has a Ph.D. in psychology, is licensed as a clinical psychologist by the State of Missouri, and has been practicing in that field for the last thirty years. Earlier in her career, she worked for the U.S. Department of Veterans Affairs where she became certified to conduct disability determination and does so in her ongoing private practice. But since this was a court-tried case, the Court of Appeals found that they were not required to reverse.
In re Marriage of Koch, 584 S.W.3d 347 (Mo. Ct. App. S.D. 2019): During their marriage, George Koch (Father) and Christine Koch (Mother) bore one child in 2001. In March 2005, the marriage was dissolved. The dissolution decree was modified in September 2013. Mother and Father were granted joint legal and physical custody of the Child and neither party was ordered to pay child support. In July 2017, Child disclosed that Father had sexually assaulted her. A felony complaint was filed and Father was charged with rape, sodomy and incest. Father was arrested and later posted bond “with the condition he have no contact with Child or any children under the age of 17 years old.” Given the pending charges, Father, a doctor, lost his employment as well as his medical license privileges.
In December 2017, Mother filed a motion to modify the judgment requesting she be granted sole physical and legal custody of Child with Father having neither visitation nor contact with the Child. Mother also requested an order that Father pay child support. Father filed a counter-motion in which he stipulated to Mother’s request for sole physical and legal custody and no contact with the Child. With child support, Father alleged he should “be ordered to pay zero dollars [] per month because any presumed amount was ‘unfair and unconscionable.'” In May 2018, the Trial Court entered a judgment of modification awarding Mother sole legal and physical custody due to the “substantial and continuing change of circumstances” and ordered Father to pay $568 per month in child support. The Trial Court found that “Child ‘is in need of support from [Father] and [he] is able-bodied and capable of providing the same for [Child].'” Father filed an appeal alleging three counts of error, relevant here are points 2 and 3 challenging the award of child support.
The Southern District Court of Appeals affirmed the award of child support finding that “Father failed to meet his burden of proving reversible error.” Father’s pay stubs showed aggregate earnings of $536,750 from January 2016 through August 2017, with monthly earnings at approximately $27,526. Mother listed Father’s income at $27,526 per month, whereas Father listed his income as $0 per month. In addition, Father testified at trial that he made no attempt at finding new employment alleging he did not want to violate his bond condition of being around anyone under the age of 17 and that he learned of alleged damage to his reputation online. The Trial Court found that Father was “‘able-bodied and capable of providing’ support for Child” and that “any person of Father’s capabilities can earn $15 per hour with full-time employment without contact with minor children under age 17 in the community.” Father alleged the Trial Court erred because the evidence lacked substantial evidentiary support and was against the weight of the evidence presented at trial. The Court of Appeals did not reach the merits of Father’s argument finding that he failed to follow the “required framework for either evidentiary challenge.”
Furthermore, Father alleged the Trial Court erred in imputing an hourly wage of $15 per hour for full-time work. The Trial Court created its own Form 14, rejecting Mother’s Form 14 acknowledging that Father could no longer “‘earn his past income now or in the foreseeable future.'” The Trial Court also rejected Father’s Form 14, acknowledging Father’s obligation to seek “‘lesser replacement income'” and his failure to seek one. “Given Father’s qualifications and potential, the court imputed Father’s income at the relatively low end at $15 per hour.”
Warkenthein v. Family Support Division, 586 S.W.3d 840 (Mo. Ct. App. W.D. 2019): Father and Mother were married in 1982 and had three children. In 2007, the marriage was dissolved and judgment was entered, ordering Father to pay child support of $1,000 per month, health insurance, and spousal maintenance to Mother. In addition, Father was ordered to pay 75% of each child’s college expenses as defined by Missouri statute. A modification judgment (“Modification Judgment”) was entered in 2014, “finding that Father owed $59,807 in unpaid spousal maintenance; $2,000 in unpaid monthly child support; and $9,750 for Father’s share of post-secondary educational expenses for the children, all of whom were by then emancipated.”
The Director of the Family Support Division (“FSD”) certified to the United States Department of State (“Department of State”) that Father owed an arrearage of child support in excess of $2,500. As a result, in 2017, Father’s application to renew his passport had been denied. Father requested a hearing to challenge FSD’s certification. A hearing was held in December 2017, pursuant to Mo. Rev. Stat. 454.511 and 454.475. The Director affirmed the agency’s determination. After requesting judicial review, the Cole County Circuit Court affirmed and Father appealed.
The Western District Court of Appeals affirmed the Trial Court’s judgment. Father contended that the Director “‘incorrectly and improperly concluded’ that an arrearage owed by Father under the Modification Judgment for ‘college and maintenance’ was child support for purposes of certification of unpaid child support to the Department of State.” Despite a line of cases establishing the well-settled principle that “the payment of the reasonable expenses of a child, for whom an obligation of support is owed, for attending [college]” is a form of child support, Father argued that none of the cases addressed whether a separate order to pay college expenses constituted child support. So long as the order is not superfluous, a court may issue an order requiring payment of post-secondary education expenses separate from a monthly child support award calculated through Form 14. Thus, because educational expenses are a support obligation, and Father owed $9,750 in college expenses, the statutory threshold required for certification was met in this case.
Bryan v. Bryan, 583 S.W.3d 511 (Mo. App. S.D. 2019): In 2004, Kristy and Bill Bryan divorced and their separation agreement, made part of the decree, “established responsibilities for their children’s health insurance costs,” in addition to requiring “each parent to pay 50% of college costs through graduate or professional school, less ‘other aid that reduces cost.'” In 2017, Kristy moved the Trial Court to establish Bill’s arrearages. The Trial Court entered a judgment that “Bill pay $44,777 for Bill’s share of daughter Sara’s vet-school expenses; reimburse Kristy $2,345 for daughter Lexi’s educational expenses, and reimburse Kristy $17,822 for the children’s health insurance costs.” Bill appealed the awards.
The Southern District Court of Appeals affirmed the awards. In his first point of error, Bill contended that Kristy “had no standing to sue for education expenses after a child reached the age 21 ‘in that she had no legal obligation to provide such support'” and that such payments were voluntary. Bill and Kristy were legally bound to provide educational support beyond the age of 21 as they contracted to do so in their separation agreement. Bill later conceded to this fact. Moreover, the Court of Appeals was not persuaded with Bill’s argument that Kristy, as a contracting party to a bilateral agreement, had no legal standing. The Court of Appeals further denied Bill’s Point 3 and Point 4 challenging the award of expenses for health insurance and the award of Lexi’s education, respectively. The Court of Appeals stated that concerning both awards, Bill had multiple opportunities to bring before the Trial Court Point 3 and Point 4, which he failed to do and failed to preserve said points on appeal. As to Point 2, Bill alleged the award of $44,777 for daughter Sara’s vet-school costs were erroneous because Kristy’s mother made a substantial part of the payments, and that in essence is “‘aid that reduces cost.'” Accordingly, Bill urged that the total vet-school expenses be reduced by $39,000 (payments made by Kristy’s mother), thereby leaving Bill’s 50% obligation to $23,636. The Court of Appeals once again found that Bill failed to preserve this issue for appeal. Bill’s assertion that “Kristy’s testimony regarding her mother’s payments, the dissolution decree in evidence [], and paragraph #1 of Bill’s reply to the court’s opinion letter” were sufficient to preserve the issue on appeal. However, the Court of Appeals stated that this “aid that reduces cost” argument was not made previously; it was only raised on appeal.
Pogue v. Pogue, No. ED170323 (Mo. App. E.D. 2019): Andrew (“Father”) and Deborah (“Mother”) Pogue dissolved their marriage in May 2014. The judgment of dissolution-entered by consent, provided that the parties share joint legal and physical custody of their two minor children. In addition, Father was to pay Mother $105 per month in child support. In June 2017, Father filed a motion to modify his child support obligation asserting a “substantial and continuing change of circumstances.”
When Father filed the motion to modify, Mother’s gross monthly income had increased to $5,096. At the time of dissolution, Mother’s gross monthly income was $2,590. The parties stipulated Father’s imputed gross monthly income at $2,979 was to remain the same. Mother’s increased monthly income was included in both parties’ calculation of support in the Form 14. The Trial Court “specifically found incorporating the increased income into a ‘correctly calculated Form 14,’ with a Line 11 thirty[-]four percent maximum credit to Father for his overnight visitation yielded only a $7.00 reduction.” The Trial Court denied Father’s motion to modify, concluding that the $7.00 reduction did not “constitute a substantial and continuing change of circumstances.”
Father raised two appoints on appeal with point one being relevant here. Father asserted that the Trial Court erred in denying his motion to modify because there was sufficient evidence of a “substantial and continuing change of circumstances;” hence, the Trial Court’s decision was against the weight of the evidence. The Trial Court found that the consent child support in the dissolution judgment “deviated from the presumed Form 14 amount because Father’s Line 11 adjustment for overnight visitation was fifty percent.” However, absent a finding the presumed amount is unjust or inappropriate, thirty-four percent is the “maximum adjustment for a parent exercising approximately half of the overnight custody per year” according to the Form 14 directions. Father’s Form 14 stated a fifty percent credit on Line 11, which would have resulted in the support meeting the threshold for modification.
The Trial Court adopted the Mother’s Form 14, which stated a thirty-four percent credit for overnight visitation to Father, finding that the thirty-four percent credit was not unjust or inappropriate. The Court of Appeals affirmed the Trial Court’s decision to deny the motion finding that the Trial Court did not err in its decision. The testimony of the parties supported the Trial Court’s finding.
Lynch v. Lynch, No. ED107455 (Mo. App. E.D. 2020): LaDonna (“Mother”) and Paul Lynch (“Father”) were married on September 12, 1992, and separated on October 14, 2014. Mother and Father had five children during the marriage-two of the children were emancipated at the time of the judgment of dissolution. The judgment dissolving the marriage (“Original Judgment”) was entered on September 19, 2018. The Original Judgment granted Mother sole legal and physical custody of two of the three minor children. The Trial Court gave Mother sole legal custody, but joint physical custody of the youngest child. The Trial Court denied both parties Form 14 and completed its own. In calculating the presumed child support amount (“PCSA”), the Trial Court used “Mother’s income from social security disability and an estimate of her income from a part-time job.” In addition, the Trial Court recorded health insurance expenses provided by Father and granted no credit for overnight visitation to Father in its Form 14. Mother was given retroactive child support starting in November 2017, when Father stopped voluntarily paying support. The Trial Court was also asked to consider transfers from a Bankcorp bank account (“Bancorp account”) to Mother, which she made herself. A handwritten ledger, entered into evidence, “showed money being transferred out of the Bancorp account at approximately $87,500 per year from 2010 to 2016.” The Trial Court characterized these transfers as “gifts received from non-marital funds held by Mother’s family.” The ledger further showed deposits into Mother’s account, that substantial deposits were described as “‘capital distributions,'” and that “the account itself also gained ‘interest’ month-to-month.” Father was ordered to pay “70% of all non-covered medical expenses and 70% of parochial school expenses.” Mother would pay the remaining 30% of the non-covered medical expenses and parochial school expenses.
Father moved for a new trial or for reconsideration of the Original Judgment on October 16, 2018. An Amended Judgment was filed on December 12, 2018. The Trial Court explained in the Amended Judgment that the trust income and partnership distributions were “special requests by [Mother] to the caretaker of her family’s trust and not regular or mandatory distributions per special provisions of the trust.” (Italics and bold in original). The Trial Court went on to explain that these transfers were gifts and not earnings due to employment or some activity. Father was awarded $80,000 of equity on the family home. The Trial Court allowed Mother to offset this amount owed to Father against “child support arrearage and portions of debts owed to Mother for non-covered medical expenses and parochial school expenses.”
On appeal, Father asserted seven points of error. In point II, Father asserted the “trial court erred in calculating the amount of child support he owed.” The Court of Appeals found that the Trial Court “misapplied the law when calculating Mother’s monthly income.” There was no evidence before the Trial Court that the distributions from the Bancorp account came as income from a trust. Therefore, the Trial Court incorrectly described the distributions as trust income. Mother agreed at oral arguments that the transfers came from her pre-marital assets, none of which are trusts. So, the exception to trust income under the Directions and Comments, Line 1 of the Form 14 was erroneously applied. The ledger also showed an approximate gain of $30,000 in interest, which the Trial Court did not consider in its Form 14 and should have been included in the calculation. Furthermore, there were other deposits -approximately $1.5 million over six years -which the Trial Court should consider in its Form 14. “[T]he amount used by the Trial Court was against the weight of the evidence given the information before it.” The Trial Court failed to consider all the Mother’s resources.
In point III, Father asserted the award of retroactive child support was erroneous. The grant of retroactive child support was not incorrect, even if Mother did not specifically request it. However, retroactive child support must be recalculated if the child support award is affected on remand. “Should the trial court find Father paid more than his fair share of support from the time of filing the petition to the time retroactive child support begins, the trial court should consider this balance when assessing the factors under section 452.430.1.”
In points IV and V, Father asserted the Trial Court erred in ordering him to pay 70% of non-covered medical expenses and parochial school expenses. In the Amended Judgment, the Trial Court stated “the number used for apportioning the non-covered medical expenses was the proportion of income on Form 14.” Because the case was remanded to determine a new calculation of Mother’s monthly gross income, the Court of Appeals remanded “for the trial court to calculate a new income proportion and reconsider” the portion of non-covered medical expenses to be paid by Father. As with the non-covered medical expenses, the Court of Appeals remanded for the Trial Court to reconsider the division of obligations concerning the parochial school expenses.
Maintenance
Davis v. Davis, 582 S.W.3d 100 (Mo. App. W.D. 2019): Carletta (“Wife”) and Bryan Davis (“Husband”) were married on May 13, 2006. They had three children-two daughters now emancipated, and one minor son. Husband worked for the Department of Treasury. Wife worked for the City of Kansas until 2013. Husband and Wife separated in April 2016. The dissolution judgment awarded Husband sole legal and physical custody of the minor child, awarded property consistent with Husband’s statement of marital and non-marital assets and debts, and found that Wife was not entitled to maintenance.
Wife appealed, raising three points of error. Relevant here is point three in which Wife alleges the Trial Court erred in denying her maintenance. The Trial Court denied an award of maintenance because Wife provided no evidence that she was permanently disabled and could not work in the future. Wife argued that the Trial Court’s findings were unsupported by substantial evidence. Still, the ruling was not required to be supported by substantial evidence because it was against the party bearing the burden of proof. Wife testified that she was unable to work and provided a letter from the Social Security Administration stating it had found Wife to be disabled. The Western District Court of Appeals denied Wife’s point, stating that (1) the social security disability determination was not binding on Missouri Courts; (2) evidence at trial showed that Wife continued to work for some time “after the work-related injury which allegedly left her disabled;” and (3) Wife testified at trial that she was “‘functional'” after taking medication for her work-related injury.
Property Division
Alport v. Alport, 571 S.W.3d 680 (Mo. App. W.D. 2019): Wife filed for dissolution of marriage with the Trial Court which awarded Wife real property described as their “Florida Property” and seven vehicles (1968 Chevrolet Camaro, 1985 Cadillac Seville, 1996 Mercedes 500 SL, GMC Solstice, Lincoln MKX, and Harley Davidson Sportster). Husband was awarded four pieces of real property located in the Kansas City Area and their remaining vehicles. Husband appealed arguing the Trial Court erred in: (1) not including the legal descriptions for the real estate in its judgment, (2) not distinguishing between marital property and non-marital property in its judgment, (3) awarding the Florida Property to Wife as he owned the property before marriage, and (4) awarding Wife the Chevrolet Camaro, Cadillac Seville, and Mercedes 500 SL as they were also his premarital property.
On appeal, the Court of Appeals held: (1) the Trial Court was not required to include the legal description of real property in the judgment since legal descriptions were not provided to the Trial Court by the parties and the parties knew exactly which real properties were intended to be awarded to each party since they themselves referred to each of the properties similarly during their testimony; (2) the Trial Court reasonably determined all of the property to be marital property and properly divided it since Husband failed to properly suggest that any specific property was improperly classified as marital property nor how misclassification led to inequitable distribution of property; (3) as to points three and four, Husband failed to establish the alleged misclassification of property resulted in an unfair distribution. Therefore, the Appellate Court affirmed the Trial Court’s judgment.
In re Marriage of Cunningham, 571 S.W.3d 688 (Mo. App. S.D. 2019): Husband appeals Trial Court’s judgment dissolving his marriage to Wife. Husband asserts the Trial Court erred in: (1) failing to classify and set aside his non-marital property; and (2) the allocation of marital property and debt was not supported by substantial evidence in that the Trial Court awarded Wife disproportionate share of the value of the marital property.
The Court of Appeals held that Husband failed to demonstrate that the Trial Court abused its discretion because Husband did not request specific findings of fact whereby the Trial Court would designate and assign the marital property to each and then divide the remainder. Further, the division of property must be made fairly and equitably under the circumstances of the case and not simply divided equally. Finally, the Court of Appeals also noted that Husband failed to provide value to the property or to demonstrate their proportional values.
Thanhphuong Thi Nguyen v. Dieng Nguyen, 573 S.W.3d 150 (Mo. App. E.D. 2019): Wife and Husband, as part of their dissolution proceeding, entered into a separation agreement granting Husband three properties: their marital home and two flats in St. Louis. The only stipulation was that Husband was to release Wife from any obligations under the mortgages and deeds within 90 days of the entry of judgment. If he should fail, Husband was to list the property for sale at an agreed-upon listing price. The proceeds were to be divided equally, after the payment of indebtedness. Husband had failed to release Wife from any obligations under the mortgages and deeds, and Wife filed for enforcement of the agreement. During the proceedings, Husband released Wife from the obligations. The Trial Court realizing damage was done to Wife awarded her $9,600.00 and attorneys’ fees to be paid by Husband, but Husband was not required to sell the properties.
Wife appealed and argued the Trial Court improperly modified a separation agreement by refusing to order Husband to sell the properties and divide the proceeds. The Court of Appeals agreed with Wife and reversed the Trial Court’s decision while also awarding her $14,215.30 in attorney’s fees. The Court of Appeals explained the Trial Court lacked authority to modify the separation agreement and, by awarding Wife damages instead of requiring Husband to sell the properties and divide the proceeds with Wife, the Trial Court had modified the agreement.
Lollar v. Lollar, No. ED 106488 (Mo. App. E.D. 2019): Wife filed for dissolution of marriage following the incarceration of Husband. In regards to property division, Wife requested the Trial Court equitably set aside and divide the parties’ marital property. In particular, Wife sought to retain all property in her possession and remain responsible for all debts in her name while also receive 100% of Husband’s 401(k). Similarly, she sought for Husband to retain all property in his possession and remain responsible for all debts in his name while receiving no part of his 401(k). As to property division, the Trial Court awarded Wife the 2015 Chevrolet Cruze, all personal property in her possession, and responsibility for credit card debts in her name along with 50% of outstanding bills and taxes amounting to $11,000. Husband was awarded all personal property in his possession, 100% of his 401(k) account and responsibility for credit card debts in his name as well as 50% of outstanding bills and taxes amount to $12,800. In response, Wife motioned for a new trial or, in the alternative, to amend the judgment claiming the Trial Court failed to divide the marital property equitably. Still, her motion was denied to which Wife timely appealed.
On appeal, the Trial Court’s division of property was affirmed. In particular, the Court of Appeals noted the Trial Court has broad discretion in dividing marital property and that Wife and Husband failed to offer evidence establishing the actual value of the 401(k) account. The Court of Appeals further explained that given the Trial Court made its division absent complete information, the Court of Appeals could not say the Trial Court abused its discretion in awarding the 401(k) to Husband.
Collins v. Collins, 586 S.W.3d 282 (Mo. App. W.D. 2019): Wife filed for dissolution of marriage. Regarding property division, the Trial Court determined the following as marital property: (1) $152,960.06 held in Husband’s Thrift Saving Plan (TSP); (2) $425.96 of a “monthly benefit” Husband was due to receive from his Federal Employee Retirement System account (FERS); (3) the proceeds of Husband’s workers’ compensation claim; (4) the marital home; and (5) $19,145 in equity of a non-marital townhouse belonging to Wife before their marriage.
Based on these determinations, the Trial Court ordered: (1) Husband to pay $2,350 to equalize the division of the parties’ bank account; (2) the marital home and debt against it be set aside to Husband; (3) $76,480.03, representing half of the marital portion of Husband’s TSP account, be awarded to Wife; (4) Husband to pay Wife $69,210 to equalize the division of the marital assets; (5) the remaining marital and non-marital property were divided according to exhibits to the judgment; and (6) Husband to pay $212.98 a month (representing one-half of Husband’s monthly FERS account benefit).
Husband appealed arguing, in regards to property division, that the Trial Court had erred in its division of property since they had incorrectly characterized and valued the marital property leading to an inequitable award of 95% of the property to Wife and 5% of the property to Husband. The Court of Appeals affirmed the Trial Court’s judgment stating evidence supported the Trial Court’s determination of the value of the marital home, the proceeds from Husband’s sale of the premarital home, the worker’s compensation award, and the increase in the value of TSP were marital assets. The Trial Court could also determine that Wife’s townhouse was non-marital property.
Olofson v. Olofson, No. WD81882 (Mo. App. W.D. June 18, 2019): Husband was the Chairman and CEO of Epiq Systems, Inc. (Epiq), a publicly-traded based company in Kansas City, Kansas. When Wife filed for divorce, the parties entered into a settlement agreement regarding the division of property, which was incorporated into the judgment. The settlement agreement granted Wife 1,076,639 shares of Epiq stock valued $13.50 per share totaling about $14.5 million. On March 1, 2016, judgment was entered. On June 26, 2016, Epiq received an offer to buy the company for $16.50 per share and that sale was finalized on September 30, 2016. From the sale, stock owners received cash payout on the $16.50 per share. Husband, as a CEO, received an additional gross amount of $16 million in cash and other benefits.
On February 23, 2017, Wife filed to set aside the judgment. Wife claimed Husband made false statements during a deposition regarding his knowledge of the potential sale of the company. In opposition, Husband claimed Wife had not filed her motion within a reasonable time. On April 6, 2017, Husband filed his Memorandum in Opposition, arguing, among other things, that Wife’s Rule 74.06 Motion had not been filed within a reasonable time as required by Rule 74.06(c). On April 8, 2017, Husband died. A motion to substitute his Estate as a party was granted on June 9, 2017. On December 12, 2017, Husband’s estate moved for judgment on the pleadings because: (1) the Trial Court lacked subject matter jurisdiction because the proceeding abated upon Husband’s death; (2) there is no longer any judiciable controversy before the Trial Court for which meaningful relief may be granted; and (3) because Wife’s Rule 74.06 Motion is barred by the doctrines of res judicata and collateral estoppel (“Motion for Judgment on the Pleadings”).
The Trial Court found that the relief that Wife ultimately seeks, the reallocation of the marital property, is legally impossible. The Trial Court found that the only remedy it may provide under Rule 74.06(c) is to set aside the dissolution judgment, and there is no authority granting a Trial Court the ability to limit relief to the reallocation of a single marital asset. The Trial Court also found that it could not provide money damages under Rule 74.06. The Trial Court further found that setting aside the dissolution judgment would require the Trial Court to impermissibly adjudicate a moot controversy on hypothetical facts because one party is deceased. Therefore, the marital estate no longer exists. The Trial Court found that setting aside the dissolution judgment would put the parties in the same procedural posture as if the Husband died before the entry of the final judgment. At that point, the lawsuit would abate, and the Trial Court would lose the authority to take further action. For these reasons, the Trial Court granted Husband’s Motion for Judgment on the Pleadings and dismissed Wife’s Rule 74.06 Motion. This appeal followed.
The Court of Appeals affirmed finding that Husband’s Motion for Judgment on the Pleadings was well-founded because the case became moot as a result of Husband’s death, which made the grant of effectual relief impossible.
Fregeau v. Fregeau, 580 S.W.3d 92 (Mo. App. W.D. 2019): Husband appeals Trial Court’s marital dissolution judgment that, in dividing marital property and marital debt, ordered Husband to pay a cash equalization payment of $150,000 to Wife. Husband claims the equalization payment represented half of the value of his teacher retirement account, which he asserts is non-marital property not subject to division.
After the trial, the Trial Court orally announced its findings and conclusions from the bench and instructed the attorneys to prepare a proposed written judgment. The Trial Court entered a written judgment on February 21, 2018. The judgment dissolved the parties’ marriage, divided marital property and debts, and denied Wife’s request for maintenance. The judgment awarded both parties: “[a]ll personal property including any household furniture and furnishings, all clothing and jewelry” of which each currently had in their possession. The judgment further awarded Husband the Decatur home, the 2015 Jeep Cherokee, any life insurance policies maintained by him or on behalf of his employer, and the checking and savings accounts in Husband’s name. The judgment further awarded Wife the 2007 Pontiac, any life insurance policies maintained by her or on behalf of her employer, and the whole life insurance policy valued at approximately $16,735. Additionally, the judgment awarded a cash equalization payment of $ 150,000 to be paid by Husband to Wife. It also itemized marital debts, which were all assigned to Husband, although the itemization did not include the loan for the Harley Davidson. The judgment expressly found that Husband’s PSRS retirement account was Husband’s non-marital property.
The judgment did not specifically address the 1999 Jeep Cherokee, Wife’s Sioux Chief retirement account, the 2012 Harley Davidson, or the $5,000 loan against the Harley Davidson, though said items were addressed in the Trial Court’s oral pronouncement from the bench at the time of trial. We are compelled to reach the same result here. Though the judgment awarded “[a]ll personal property including any household furniture and furnishing, all clothing and jewelry” in the parties’ possession to each party, this catchall provision is insufficient to address the Sioux Chief retirement account according to Boone. This catchall provision also fails to address the debt owed against the Harley Davidson or the 1999 Jeep Cherokee which, though personal property, was not in either parties’ possession based on the evidence, and was the subject of disagreement concerning its status as marital or non-marital property. Though the catchall provision could arguably be construed to cover the 2012 Harley Davidson, personal property established by the evidence to be in Wife’s possession, it nonetheless remains that the judgment failed to address all of the property and debt identified in the evidence.
The written judgment’s deficiency in this regard cannot be cured by the Trial Court’s oral pronouncements from the bench. Thus, the Court of Appeals dismissed the appeal finding that the Trial Court’s judgment was not final barring the Court of Appeals from having jurisdiction to address Husband’s appeal. The judgment was not final because it did not satisfy 452.330.1 concerning all the property and debt identified in the evidence. Because the judgment entered in this case is not final, the Trial Court’s authority on remand is not limited to modifying the existing interlocutory judgment to address all the property and debt identified in the evidence.
Dickerson v. Dickerson, 580 S.W.3d 98 (Mo. App. E.D. 2019): Husband appealed Trial Court’s dissolution of marriage judgment which ordered Husband to pay Wife $7,350 in property equalization payment after dividing the marital assets and debts. Husband asserts, in regards to property division, the Trial Court erred in ordering him to pay Wife a property equalization payment of $7,350 because there was no evidence to support the amount of the award. Husband also argued that the Trial Court prohibited counsel from adducing evidence regarding Wife’s financial misconduct, and the order was against the weight of the evidence. The Court of Appeals disagreed and affirmed the Trial Court’s judgment pointing out that had the Trial Court not awarded Wife the equalization payment, she would have received a mere 4% net value of all marital assets. Husband had failed to show the judgment was “unduly weight in favor of Wife that it amounts to an abuse of discretion.”
In re Marriage of Strobel, 585 S.W.3d 862 (Mo. App. S.D. 2019): Husband appeals the judgment that dissolved his marriage to Wife. Husband claims, in regards to property division, that the Trial Court abused its discretion in dividing the couple’s marital property, specifically Wife’s 401(k) account and stock-ownership plan. The Trial Court had awarded 80% of the marital portion of such plans to Wife and 20% to Husband. The Court of Appeals affirmed the Trial Court’s judgment stating the Husband failed to prove reversible error. The Court of Appeals said specifically: “Husband has failed to note the proportional values of the items assigned, whether each is marital or non-marital, and how they fit into the overall division of property and debt. As a result, Husband has failed to demonstrate that the Trial Court committed reversible error in its property distribution. Points 1 and 2 are denied.”
In Re Marriage of Freed, 586 S.W.3d 868 (Mo. Ct. App. S.D. 2019): Susan Jane Freed (“Wife”) appealed the Trial Court’s judgment dissolving her marriage with Michael Leo Freed (“Husband”). The judgment ordered an agreed-upon $11,063.60 adjustment in the division of Husband’s 401(k), as previously provided in the Trial Court’s judgment of legal separation and accompanying Qualified Domestic Relations Order.
On July 1, 2018, Husband filed a Motion to Convert Legal Separation to Dissolution of Marriage (the “conversion motion”) seeking a judgment of dissolution and, in addition, asserting:
The parties have agreed to include in the [dissolution judgment] an additional provision which corrects certain accidental transfers of funds so as to effect the intent of the division of property set forth in the [legal separation judgment], to wit: [Wife] will make a non-taxable transfer of the sum of $11,063.60 from her 401(k) to [Husband’s] 401(k) … through a QDRO prepared by [Wife’s] attorney within fifteen (15) days of the entry of the [dissolution judgment].
Along with this motion, Husband’s counsel also submitted “a proposed Judgment and Decree of Dissolution of Marriage which has been approved by [Wife].” The next day, the Trial Court entered its order granting the conversion motion and, in accordance with that motion, executed and entered its judgment (the “dissolution judgment”) with the requested 401(k) adjustment in the form as submitted by Husband and agreed to by Wife.
The Court of Appeals held that Wife had waived any claim that the entry of the judgment is contrary to the property division agreement. By her agreement with Husband at that time, therefore, Wife invited the Trial Court to enter the dissolution judgment with the 401(k) adjustment, which is precisely what it did the next day. Having issued an invitation to the Trial Court to effectuate the intent of the parties’ agreed-upon division of their property by entering the dissolution judgment with the 401(k) adjustment, Wife has waived any claim in this appeal that the entry of that judgment is contrary to that property division agreement.
Attorney’s Fees
Gilbert v. Koparan, 588 S.W.3d 533 (Mo. App. E.D. 2019): Following the dissolution of marriage, Mother and Father were awarded initially joint physical and legal custody of their two minor children. However, after continuing litigation, the Trial Court awarded Father sole legal custody and joint physical custody with Mother. Additionally, the Trial Court ordered Mother to pay Father $52,411.25 in attorneys’ fees. Mother appealed the Trial Court’s judgment and argues, in regards to attorneys’ fees, the order lacked competent evidence and was based upon an improper determination that changing counsel and seeking court orders was misconduct.
The Appellate Court emphasized the Trial Court has broad discretion in awarding attorneys’ fees. Further, under RSMo section 452.355.1, to demonstrate abuse of discretion, the Court of Appeals pointed out that the complaining party must prove that the award is clearly against the logic of the circumstances and so arbitrary and unreasonable as to shock one’s sense of justice. Additionally, evidence of misconduct during litigation provides a sufficient basis for an award of attorneys’ fees. The Appellate Court noted that the Trial Court had reasonably ordered Mother to pay half of Father’s attorneys’ fees only after the Trial Court found court misconduct by Mother. For example, Mother had caused the expense of additional attorneys’ fee by forcing the parenting coordinator to withdraw, filing actions when she was aware of existing court orders, retaining several attorneys during litigation, and using her best efforts to thwart Father’s ability to exercise his period of custody and visitation. Therefore, the Appellate Court affirmed the award of attorneys’ fees to Father by Mother.
Statutory Changes
Two significant statutory amendments went into effect on August 28, 2019:
- CHILD RELOCATION (Section 452.377)
- This amendment requires a party intending to relocate a child subject to a custody or visitation agreement to notify any other parties entitled to custody or visitation of their right to file a motion seeking an order to prevent the relocation and an accompanying affidavit setting forth the specific good faith factual basis for opposing the relocation within 30 days of receipt of the notice.
- GRANDPARENT VISITATION (Section 452.402)
- Under this amendment, a court may grant grandparent visitation if the grandparent has been unreasonably denied visitation for a period exceeding sixty days (versus ninety days that was required before) and one of several other scenarios has occurred. Except as otherwise provided, if the child’s natural parents are legally married to each other and are living together with the child, a grandparent may not file for visitation. Before granting visitation, a court shall determine if such visitation would be in the child’s best interests. This repeals a provision of prior law establishing a rebuttable presumption that married parents living with a child know what is in the best interests of the child.
