Missouri Bar Annual Law Update: Family Law 2018

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Missouri Bar Annual Law Update: Family Law 2018

Child Support

Beermann v. Jones, 524 S.W.3d 545 (Mo. App. W.D. 2017): Husband and Wife dissolved their marriage in November of 1998. At that time, they had one child, who had been born in 1997. Pursuant to the terms of a previous modification judgment, Husband agreed that he would pay 100% of his son’s college expenses. However, in January, 2015-about eight months before the son would begin attending college at the University of Missouri-Husband filed a motion to modify his child support obligation, seeking a reduction of $560 to either $355 or $158 once his son started college, on the basis that the incomes of the parties had changed. On April 22, 2015, Wife filed a “Motion to Enforce . . . the Judgment and Decree of Modification Regarding Reimbursement for the Cost of Non-Covered Medical Expenses; Extraordinary Expenses; and College Expenses.” On October 9, 2015 Wife then filed a counter-motion to increase Husband’s support obligation, claiming that the child was spending more time with her or at college, that Husband’s income had increased, that the child’s expenses had increased, and that she had paid most of the child’s direct expenses.

Husband contends that the circuit court erred in ordering a retroactive increase in his child support for the time periods of January 1, 2015, to August 30, 2015, and September 1, 2015, to beyond October 18, 2015. In particular, Husband argues that, because Wife filed her counter-motion to modify child support seeking an increase in Husband’s child support obligation on October 9, 2015, the circuit court did not have discretion to retroactively modify child support for the time before the filing of Wife’s counter-motion to modify child support and service of summons. The court agrees, citing to case law, which makes clear that “[w]hen the parties file cross-motions to modify and the prevailing party filed the later motion, it is error to award retroactive child support to the date of the motion filed by the party who did not prevail.”

Because Husband initially sought to reduce his child support payments to either $335 a month or $158 a month, and because the court instead adopted Husband’s presumed child support amount of $1,006, it cannot be said that Husband was the prevailing party. Indeed, Wife was the prevailing party. Thus, the circuit court was permitted to modify child support retroactive only to October 9, 2015. For this reason, the court reversed the circuit court’s award of a new child support amount retroactive for the time period from February 1, 2015, to August 20, 2015, and from September 1, 2015, and beyond.

Selleck v. Selleck, 528 S.W.3d 471 (Mo. App. E.D. 2017): Father appealed the motion court’s judgment increasing his monthly child-support obligation for his minor son. Father’s sole point on appeal claims that the motion court erred in calculating his monthly child-support obligation because it failed to include gift money received by Mother in determining the parties’ respective incomes. Indeed, although Mother made considerably less than Father per month, and had monthly expenses which outweighed her monthly wages, Father reasoned that Mother received “substantial” gift money from her parents, allowing her to live a more luxurious lifestyle than him. However, Father could not offer any direct evidence demonstrating the regularity of these money gifts, and Mother testified that her parents only gave her financial assistance “here and there” and that “[sic] it’s not a set amount every so many months.”

The appellate court affirmed the motion court’s decision to exclude these money gifts from Father’s child-support calculation. In reaching its conclusion, the court notes that the motion court has “considerable discretion to include or exclude gift money in calculating the parties’ respective incomes,” and that “[a]n abuse of discretion occurs when the trial court’s ruling is so arbitrary and unreasonable as to shock the sense of justice and indicate a lack of careful consideration.” Furthermore, the court stated that, while no resource is exempt from child support calculations, “the decision of whether to include . . . gifts is in the discretion of the court.”

Father pointed out that the record reflects these gifts to Mother were large enough to keep Mother from incurring any debt, despite the fact her monthly net wages were significantly less than her monthly expenses. However, the court argues that, though these money gifts were clearly substantial, infrequent and irregular gifts from third parties may be excluded from child support computation if they do not “rise to the level of predictability or stability required to be considered as a part of [the] parent’s income.” And indeed, here there was no such evidence showing any degree of regularity or specific amount of the money gifts received by Mother. Furthermore, there was no evidence that Mother had complete and unconditional control over any gifts of money or had any legal entitlement to the funds provided. As such, the court concluded that, while this gift money certainly could have been included as part of Mother’s income, there was no evidence establishing that the motion court had abused their discretion by omitting said gifts.

Keller v. Keller, 516 S.W.3d 906 (Mo. App. E.D. 2017): After Son had passed the age of 18-where he would normally be emancipated from any child support obligations owed by his parents-Father filed a motion to modify child support, arguing that Son was not yet emancipated because of diagnoses of autism, anxiety disorder, obsessive compulsive disorder, and bipolar mental illness received years earlier. Pursuant to RSMo. § 452.340.4, Father argued Mother’s child support obligation for Son should continue because son was mentally incapacitated from supporting himself, insolvent, and unmarried. On appeal, Mother raises two points: that it was against the weight of the evidence to find Son mentally incapacitated from supporting himself, and that no substantial evidence supported the finding that Son was insolvent. RSMo. § 452.340.4 requires a showing that the child is both mentally incapacitated from supporting himself and insolvent for child-support obligations to carry-on beyond the normal age of emancipation.

In reviewing the first point, the court stated that “[w]hen the evidence poses two reasonable but different conclusions, appellate courts must defer to the circuit court’s assessment of that evidence.” Here, Mother conceded that Son was, in fact, mentally incapacitated. However, she contested whether Son’s mental incapacity actually prevented him from supporting himself. Father had previously offered into evidence his own testimony describing how Son’s mental disability made it next to impossible for him to keep his job (where he worked two-and-a-half hour shifts three days a week), which Son eventually quit from due to the high levels of stress it caused him. As such, Father testified that he did not believe Son was capable of working an eight-hour day or any more hours than he worked at his most recent job. Despite this, Mother argued that, based on her professional experience in assisting those with disabilities to live independently, there were additional resources available to Son beyond those he had utilized. Mother also correctly asserted that lay testimony about a child’s condition is generally not enough to show mental incapacity. However, in this case, Mother had already conceded that Son suffered from a mental incapacity and was instead contesting the extent to which that incapacity rendered Son helpless in supporting himself. Therefore, the court decided to accept Father’s lay testimony for this purpose.

The court acknowledged that both parties presented sufficient evidence for a trial court to reasonably grant either one a favorable judgment. However, it is precisely for that reason that the appellate court here had to “defer to the circuit court’s assessment of the evidence” and affirm its judgment on this point in favor of Father.

As for the second point raised by Mother (the issue of Son’s insolvency), the appellate court once again affirmed the trial court’s ruling in favor of Father. There was enough evidence suggesting that Son’s reasonable living expenses were approximately $1260 a month, while his income was only $734 a month (received from a monthly disability benefit). This alone was sufficient to support the trial court’s conclusion that Son is unable to meet his obligations, and therefore is insolvent.

Richardson v. Richardson, No. ED 104179, 2018 WL 1056530 (Mo. Ct. App. Feb. 27, 2018): Mother and Father had two children together at the time of their divorce, wherein the trial court granted Mother and Father a 50/50 physical custody arrangement. Father’s gross monthly income was $3,566; Mother’s was $1,378. Using these numbers, the trial court arrived at a child support obligation for Father of $850 per month. Father argued, on appeal, that the trial court misapplied the law in reaching this child support amount, because RSMo. § 452.340.11 allows for a 50% visitation adjustment where the parents have equal custody which was not taken into account by the court.

In determining the appropriate amount of child support, the trial court must apply Rule 88.01 and Form 14 directions to calculate the presumed child support amount. The application of Rule 88.01 and Form 14 is “mandatory” per § 452.340.8, which requires that the child support amount shall be determined in accordance with Missouri Supreme Court rules developed for that purpose. Those rules, as found under Form 14, Line 11, provide that a parent obligated to pay child support is generally entitled to an adjustment based on the number of overnight periods of custody exercised by that parent per year, with certain explicitly delineated exceptions. The Form 14 directions set forth an adjustment of 10% for 92-109 overnight periods, but the directions allow that the trial court may apply an adjustment of over 10% and up to 50% when the paying parent exercises visitation or custody for more than 109 overnight periods per year, as is the case here.

However, there is a caveat to Form 14, Line 11, which provides that “an adjustment on line 11 shall not be allowed unless the adjusted monthly gross income of the parent entitled to receive supportexceeds the amounts set forth in the table below.” The minimum monthly income for two children, as set forth in Form 14, is $1,700, which is more than what Mother earned per month. As such, the plain language of § 452.340.8 and the Form 14 directions explicitly disallow the adjustment sought by Father. Furthermore, the use of the words “shall not” in the Form 14, Line 11 caveat makes it mandatory, not discretionary. Consequently, it was not even within the trial court’s discretion to grant Father his sought-after relief. Therefore, the appellate court affirmed the trial court’s judgment as to Father’s child support obligation amount.

Arndt v. Arndt, 519 S.W.3d 890 (Mo. App. E.D. 2017): The main issue in this case, on appeal, was a dispute over a maintenance modification owed by Husband to Wife. And although the overarching issue of this case was not necessarily related to child-support, one point raised by Husband on appeal forced the appellate court to make an important delineation between child support and spousal maintenance. Specifically, Husband’s first point was that Wife’s life-insurance policy, which was for the benefit of their children, should not have been counted among Wife’s present, reasonable needs when the trial court was making its determination for the appropriate maintenance amount.

The appellate court concurred. Indeed, Missouri law is clear that maintenance is limited to the needs of the recipient (i.e., Wife, and Wife alone), and that “awards of spousal maintenance and child support are two distinctly separate concepts, and that maintenance does not include child support.” Missouri case law maintains that the requirement to pay premiums on a life-insurance policy is seen as a support obligation to the beneficiaries of the policy. Wife herself testified that the purpose and benefit of her policy was to allow her children to handle all of her post-death expenses without worry.

While the appellate court acknowledges that this is a reasonable expense, it was nonetheless a misapplication of the law to allow the insurance-policy expenses to factor into the trial court’s spousal maintenance calculation. Though Wife expressed some expectation that the insurance policy would be used, upon her death, to cover her funeral and estate expenses, the death does not necessarily inure to her benefit. Indeed, the record is void on any limitations placed on the children’s use of any death benefits following Wife’s death; nor does the record suggest that children otherwise accepted any limitation on their use of any death benefits. Because of this, the appellate court found that, by including Wife’s life-insurance expense, the trial court had effectively required Husband to pay child support through the guise of maintenance. As such, the appellate court remanded the lower court’s ruling insofar as it involved Wife’s life-insurance expenses.


Bowers v. Bowers, No. ED 103176, 2017 WL 2822506 (Mo. Ct. App. June 30, 2017): In October 2007, Jason and Jessica began their romantic relationship, while she was pregnant with a child conceived by her and her former paramour, Steven. During the pregnancy, Jason and Jessica decided that Jason should be the father of the child, as Jessica was worried about Stephen’s ability to take responsibility and be a parent, as he eschewed his parental responsibilities with his other children. Steven remained uninvolved in the life of the child, J.B., and voluntarily allowed Jason to act as the father. After J.B. was born, Jason and Jessica executed a Missouri Affidavit Acknowledging Paternity, resulting in the State of Missouri issuing a birth certificate naming Jason as the father of J.B.

On May 10, 2013, Jason filed a “Petition for Dissolution of Marriage, for Determination of Physical and Legal Custody and for the Order of Child Support.” Jason alleged J.B. was born of the marriage and asked for joint legal and physical custody of J.B. to Jason and Jessica. Jessica then denied the allegation that J.B. was born of the marriage, and claimed J.B. was born prior to the marriage, but designated Jason as the legal father. She requested sole custody of J.B., with visitation to Jason.

Stephen, in January 2014, made his first appearance in J.B.’s life, by filing a Motion to Intervene and Third-Party Respondent’s Petition for Determination of Father-Child Relationship and Judgment and Order of Custody. Essentially, he wanted to establish his paternity and be granted joint custody of J.B. Following a bench trial, the court found Stephen was unfit, unsuitable, and unable to be the custodian of J.B. Similarly, the court found Jessica’s conduct demonstrated her shortcomings as a parent; namely, it did not think she was likely to allow J.B. to continue any frequent or meaningful contact with Jason, per court order. The court found Jessica and Jason unable to co-parent and awarded Jason sole legal and physical custody of J.B. as a third-party custodian.

On appeal, the court agreed with the trial judge’s assessment finding Jessica unfit to have custody. Further, Jessica appealed on procedural grounds that Jason was already a party to the dissolution, so he could not file a third-party motion after Stephen was found to be the father. The appeals court found that the trial court was acting in the best interest of the child, and therefore upheld the decision.

M.W. v. S.W., No. ED 105546, 2017 WL 6028666 (Mo. Ct. App. Dec. 5, 2017), reh’g and/or transfer denied (Jan. 30, 2018): M.W. and S.W. were married in 1991. In 2000, S.W. gave birth to twins of which M.W. is the father. In 2001, S.W. gave birth to a second set of twins of which M.W. discovered he was not the father of approximately ten years after the birth. This was discovered when W.M. left a letter in M.W.’s mailbox confessing to a lengthy affair with S.W. and his suspicions that the second set of twins were his. This led to M.W. ordering a paternity test in 2011, which determined that he was not the biological father of the second set of twins. Appellant and S.W. filed a petition for adoption of the twins, in which W.N. was intervened and consented. On July 12, 2011, the judgment of the adoption of the twins by M.W. was entered. In 2012, S.W. filed a petition for dissolution of marriage. M.W. filed a six-count petition for damages alleging fraud against S.W., conspiracy to commit fraud against S.W. and W.M., negligence of S.W., unjust enrichment and constructive trust by the law offices of S.W., deceptive practices/violation of Missouri Merchandising practices against law offices of S.W., and he alleged a violation of the Alienation and Affections act against W.M.

W.M. filed motion for summary judgment and the trial court granted it without specifying grounds thereto. Without leave of court S.W. filed an amended answer to include affirmative defenses. The trial court then granted S.W.’s motion for summary judgment without specifying the grounds.

As to the conspiracy to commit fraud claim, M.W. claims that W.M. and S.W. reached a mutual agreement to conceal the paternity of the twins. For this claim to succeed, M.W. has to show that the alleged tortuous action underlying the civil conspiracy charge (i.e., fraud) would, by itself, be sufficient to create a cause of action against one of the defendants if sued alone. In other words, W.M. and S.M.’s conduct must satisfy the elements of fraud before a conspiracy charge can be evaluated, which it does not. The first element of fraud is that the defendant made some representation to the plaintiff which was false. Because W.M did not make any false representations to M.W. about the twins’ parentage and because W.M. did not know, with certainty, the twins’ true parentage until the testing was done, M.W. cannot sustain a claim against him.

In regard to the summary judgment motion of W.M rightly prevailed, while S.W.’s summary judgment motion failed because it was thinly based on faulty procedural bar reasoning. The court concludes that W.M.s summary judgment is affirmed, while the S.W. summary judgment must be reversed.

K.M.M. v. K.E.W., No. ED 105087, 2017 WL 4365570 (Mo. Ct. App. Oct. 3, 2017), reh’g and/or transfer denied (Nov. 13, 2017): In October 2007, K.M.M. (Kathleen) and K.E.W. (Kate) began a committed romantic relationship. In the summer of 2008, Kathleen and her two children from a previous relationship moved into Kate’s home. In 2009, the parties opened a joint bank account, and in 2009 they purchased a home together where they lived with their children until the parties separated in 2015. In March 2011, the couple decided to have a child together and executed documents with the Fertility and Reproductive Medicine Clinic to the guidelines and consent of artificial insemination. These guidelines state that, should a child be produced by this procedure, the responsibilities of each parent are the same as if the child were conceived by intercourse. Both Kathleen and Kate signed. The trial court found that the parties shared in the decision-making process throughout Kate’s pregnancy. At the conclusion of evidence, the court found that there was a familial relationship, but that Kathleen failed to rebut Kate’s presumptive parental authority or otherwise demonstrate that it was in Child’s best interest that she be awarded any custody.

Kathleen appeals the trial court’s order and judgment granting Kate’s Motion to Dismiss for Failure to State a Claim two counts of Kathleen’s petition, on seeking to establish her legal parentage of B.W., the child, and one for breach of contract of a custody agreement. Kathleen sought joint legal custody and visitation of the child based on the parties’ voluntary custody agreement, equitable parentage, third-party custody or visitation, and her legal parentage. All claims were either dismissed or denied by the trial court.

Kathleen’s first point was denied at the appellate level simply for failing to preserve the point by raising the specific constitutional challenges at the first available opportunity. As to the breach of contract point as to the voluntary custody agreement per the insemination agreement, the court said that she must allege facts demonstrating the existence of a contract or agreement and the terms of that agreement; plaintiff performed or tendered performance; defendant’s failure to perform; and plaintiff’s damages resulting from defendant’s failure to perform. Her petition failed to adequately do this.

As to her third-party custody and visitation points, Kathleen challenged the trial court’s denial of her request for third-party custody or visitation pursuant to § 452.375.5(5)(a). The interest of a parent in the care, custody, and control of her child is one of the oldest fundamental liberty interests recognized as protected against government interference by the 14th amendment’s due process clause. Thus, a third party must demonstrate either that each parent is unfit, unsuitable, or unable to be a custodian (i.e.: the “fitness prong”); or that the welfare of the child requires the court to award custody to the third party, and it is in the best interests of the child to do so (i.e.: the “welfare prong”). To successfully rebut the parental presumption on the “welfare” basis, there must be proof of a special or extraordinary circumstance rendering it in the child’s best interest to award custody to a third party.

The trial court found Kathleen shared in nurturing and caring for Child, and was more than a mere caregiver, but served “an emotional role in [Child’s] life.” While the trial court found there was indeed a familial relationship, it also found it was not significant enough to constitute a special or extraordinary reason or circumstance under the welfare basis. In doing so, however, the appellate court found the trial court improperly considered factors beyond those going to the familial relationship by looking to factors relevant to the best interest determination, which is the second step in this statutory analysis. Indeed, the appellate court stresses that “welfare” and “best interests” are not the same thing under the applicable statute. The court is required to first determine whether a special or extraordinary circumstance exists (as per the “welfare” inquiry) and may only consider Child’s best interest upon a finding of such a circumstance. While some of the factors relevant to these two determinations may overlap, they must be considered independently and only when relevant to that particular determination.

While there is indeed some current level of conflict between the mothers and some evidence pertaining to Kathleen’s alcohol use and mental state, there is no indication these factors at all affected Kathleen’s ability to forge a bond with Child or vice versa. To the contrary, the record contained evidence of a significant bonded familial custody relationship between Kathleen and Child, which was overwhelming in both quantity and quality. As such, the court ruled that the trial court misapplied the law by improperly combining the “bonded parent-child relationship analysis” (i.e., the welfare analysis) with the best-interest analysis; and also failed to properly weigh the significant bonded parent-child relationship between Kathleen and Child as fostered by Kate against Kate’s presumptive parental fitness. The court determined that the case would be remanded to determine if Kathleen would be a suitable custodian who is able to provide a stable environment for the child and whether the award of custody or visitation to Kathleen is in the child’s best interest.

Child Custody

J.F.H. v. S.L.S., No. ED 105044, 2017 WL 6816712 (Mo. Ct. App. Dec. 26, 2017): On March 2009, the court entered a judgment establishing the paternity of Child and provided for Child’s custody by awarding Mother and Father joint legal and physical custody, with Mother’s address serving as Child’s form mailing and educational purposes. The disagreement giving rise to the case surrounds the driving distances and times between Marble Hills and Cape Girardeau now that Child has reached school age. On Father’s custody days that are also school days, he drives Child over 30 miles to Marble Hills, drives about the same distance back to his workplace in Cape Girardeau, and drives back to Marble Hill to pick up Child and take them back to Cape Girardeau. Father successfully attempted to make arrangements with the school district to have Child ride the bus. Father claims he lost his job because of the amount of time he missed in order to take Child to school, and he is concerned about the amount of time child spends on the road.

Both parents now seek their address as the Child’s for educational purposes, and Mother sought termination of the joint custody arrangement and requested both sole legal and sole physical custody of Child. The trial court entered judgment modifying the decree and granting Mother sole legal and sole physical custody of child and reducing Father’s physical custody during the school year to alternating weekends only.

On appeal, mother points to what she asserts as four examples of evidence of substantially changed circumstances relating to physical custody: the fact that on each of Father’s custody days on school days, Child must spend more than an hour on the road; the breakdown in communication between Mother and Father; two incidents described in further detail below, in which Father enrolled Child in school in violation of custody decree; and Father’s attempts to alienate Child’s affections from Mother.

The court determined that the driving distance was implicit in the parenting plan, therefore not counting as a change in circumstance. In addition, the breakdown in communication and cooperation between mother and Father is relevant only to the question whether a substantial change in the circumstances has occurred with respect to the parents’ joint exercise of legal custody of the child. Third, although interference with custodial rights is unacceptable, one or two instances, standing alone and without evidence of their effect on the child, are insufficient to support a change in the custody provision of a decree. And finally, Mother did not sufficiently demonstrate that it is in the Child’s best interests to sharply reduce the frequent, continuing, and meaningful contact between Child and Father that is preferred under Missouri public policy. The court determined that although it will affirm the legal custody decision of the trial court, they reverse the court’s judgment and remand for further proceedings.

S.K.B.-G. by & through J.P.G. v. A.M.G., 532 S.W.3d 231, 234 (Mo. Ct. App. 2017), reh’g and/or transfer denied (Oct. 23, 2017): On October 30, 2015, Father filed a Petition for Declaration of Paternity, Child Custody, Visitation and Support seeking a declaration of paternity and joint legal and physical custody of Child. Mother admitted Father was Child’s natural father and sought an order for sole legal and physical custody.

Child was born on August 1, 2012. The parties were never married. Mother lived with Father and his family for approximately two years prior to Child’s birth, but they were not living together at the time of birth. Mother and Child lived with Mother’s mother, and during this time Father voiced concerns, and the parties disagreed because Mother would leave Child in her mother’s care, even though she was a meth user with a criminal history. Mother now lives in Perry, Missouri with her husband. Child has her own room and uses a spare room as a playroom. In 2014, parties began exercising an alternative week custody schedule. Mother, in 2015, ended the agreement and told Father he would have no more custody of Child. When in his custody, Father provided for Child’s care except when working or sleeping, at which time Father’s mother or sister takes care of child. At the end of the trial, the court ordered the Father and Mother to share joint legal and physical custody, and when the child reached school age, the Father’s address would be used for educational purposes. Father was to pay mother $18 a month in child support, and Mother was to pay $4,000 to Father toward his attorney’s fees.

The appellate court again sets the standard for child custody as what is in the best interest of the child. The award of joint physical custody gives each parent significant, but not necessarily equal, periods of time during which a child resides with each of the parents. Joint physical custody shall be shared by the parents in such a way as to assure the child of frequent, continuing and meaningful contact with both parents. Mother claims the trial court mistakenly believed a joint physical custody award required the court to award the parents an equal amount of time with Child. Mother’s assertions however, were unsupported by law or record in the case, and the trial court did not misapply the law.

Further, Mother argued that the trial court misapplied the law in that the parenting plan order attempts to restrict her residence. The order states that if mother moves into the same school district at the child, the parenting plan will not change upon Child reaching school age. She claims that the trial court is without the power to make this order, and that the order constitutes a conditional judgment by attempting to provide for automatic modification of the physical custody schedule. The appellate court determined that numerous cases uphold custody award modification of custodial time periods once a minor child enters school. Although this provision generally benefits Mother, the court strikes it from the record, while leaving all other portions of the judgment. Mother’s next point that the court’s judgment was not based upon substantial evidence in assigning joint legal custody and misapplied the law. The provision stated that the two must attempt to agree and discuss all legal matters relating to the child, but that Father would have final decision making. The court upheld this.

Mother’s final point was objecting to the award of attorney fees to Father. Because of the financial resources of each party, and the merits of the case, the appellate level did not find an abuse of discretion in ordering Mother to pay attorney fees.

Moyers v. Lindenbusch, 530 S.W.3d 646 (Mo. App. W.D. 2017): Mother and Father had three children before their divorce in 2013. In the summer of that same year, Mother and children moved to Colorado. On April 15, 2016, Mother notified Father of her intent to relocate herself and the children to Austin, Texas. Father then filed a motion to prohibit Mother’s proposed relocation and a motion to modify custody, in which Father requested sole legal and physical custody of children with reasonable visitation rights for Mother. Under the modified custody arrangement, children would remain in Cole County, Missouri with Father, where they lived prior to the dissolution of their parents’ marriage. The trial court issued a judgment granting the Father sole legal custody and both parents joint physical custody, concluding this judgment was in the best interests of the children. On appeal, Mother contended that the trial court erred in its decision, alleging the ruling was designed primarily to punish her for her behavior.

The appellate court, however, held that the trial court adequately evaluated the children’s best interest in light of the enumerated factors in RSMo. § 452.375.2:

1. The wishes of the child’s parents as to custody and the proposed parenting plan submitted by both parties;

2. The needs of the child for a frequent, continuing and meaningful relationship with both parents and the ability and willingness of parents to actively perform their functions as mother and father for the needs of the child;

3. The interaction and interrelationship of the child with parents, siblings, and any other person who may significantly affect the child’s best interests;

4. Which parent is more likely to allow the child frequent, continuing and meaningful contact with the other parent;

5. The child’s adjustment to the child’s home, school, and community;

6. The mental and physical health of all individuals, including any history of abuse of any individuals involved;

7. The intention of either parent to relocate the principal residence of the child; and

8. The wishes of the child as to the child’s custodian.

Though Mother contends that the trial court failed to consider these factors and instead based their decision on a desire to punish her, the appellate court concluded that the trial court actually made extensive findings of fact on each of the eight § 452.375.2 factors. Based on its findings, the trial court held that only one factor-factor eight-was in favor of Mother. All other factors favored Father, except factors two and six, which were neutral. Indeed, because of findings of fact demonstrating that Mother had a troubled relationship with her oldest child, that Mother persistently inhibited communication between the children and Father, that Father intended to re-enroll children in their original school, and that Father intended to remain in Cole County, the trial court appropriately concluded that factors three, four, five, and seven all favored Father. Moreover, the appellate court affirmed that the one factor favoring Mother-the wishes of the child as to the child’s custodian- was not dispositive. Though the preferences of the children are an important consideration, those preferences should only be followed “if the welfare and interests of the child[ren], as determined by all evidence, are consistent with th[ose] preference[s].”

In arguing that the trial court impermissibly used custody as a means of punishing Mother for her perceived lifestyle choices, Mother contended the trial court based its best-interests determination on its finding that “Mother is a liar” and that she has created an “environment of deception.” Though these were findings of fact made by the trial court, nothing in the record suggested the trial court relied on these facts (as opposed to those listed in the above paragraph) in making its best-interest determination. Therefore, the appellate court upheld the trial court’s decision.

Fessler v. McGovern, 524. S.W.3d 208 (Mo. App. W.D. 2017): Fessler (father) and McGovern (mother) were never married, are now separated, and had one child together prior to their separation. In 2015, Fessler filed a petition seeking to establish joint legal and physical custody of the child, as well as a parenting plan wherein Fessler would have parenting time on the first, third, and when applicable, the fifth weekends of every month from 6:00 p.m. on Friday to 6:00 p.m. on Sunday. Fessler’s parenting plan further proposed that Fessler have parenting time with the Child four weeks each summer and proposed a holiday schedule for physical custody of the Child.

In turn, McGovern submitted her own parenting plan proposing that she have sole legal and sole physical custody of the child, and that Fessler have a “step-up” visitation plan which would start with supervised visitation every other Saturday from 12:00 p.m. to 3:00 p.m. for the first six months; and would ultimately rise to visitation every other weekend from 6:00 p.m. on Friday until 6:00 p.m. on Sunday. McGovern’s proposed parenting plan required Fessler to “be sober and not smell of alcohol when he arrives to pick up” the Child. The trial court ruled in favor of McGovern’s parenting plan, rewarding Fessler no parenting time for holidays, basing its decision on evidence “of the parties’ alcohol consumption, both past and present;” “the minor child’s difficulty with sleeping;” “the lack of overnights exercised by [Fessler] in the past;” and “evidence of [Fessler’s] continued use of alcohol on an almost daily basis and his willingness to drive while under the influence on a daily basis.”

Fessler appeals the custody award by arguing that the trial court does not properly consider the eight factors set forth by Mo. Stat. Ann. § 452.375.2 for determining custody.

Fessler argued the custody award and visitation schedule are not supported by the evidence because the trial court based its ruling on Fessler’s consumption of alcohol at times when the child was not present. However, the appellate court held there was enough testimonial evidence from McGovern-who cited instances demonstrating that Fessler would frequently come home drunk, operate motor vehicles while drunk, and pass out in random areas around their house-to support the trial court’s conclusion that Fessler’s drinking habits negatively affect the child. Thus, the appellate court upheld the trial court’s decision to the extent it was informed by Fessler’s heavy drinking.

However, Fessler also argued that the trial court improperly ignored Fessler’s parenting plan, and consequently failed to include a schedule of parenting time for holidays and special events enumerated in Mo. Stat. Ann. § 452.310.8, in violation of the requirements of § 452.375.9. § 452.310.8(1) requires a specific written schedule detailing the parenting plan for each party, including:

(a) Major holidays stating which holidays a party has each year;

(b) School holidays for school-age children;

(c) The child’s birthday, Mother’s Day and Father’s Day

(d) Weekday and weekend schedules and for school-age children how the winter, spring, summer and other vacation from school will be spent;

(e) The times and places for transfer of the child between the parties in connection with the residential schedule;

(f) A plan for sharing transportation duties associated with the residential schedule;

(g) Appropriate times for telephone access;

(h) Suggested procedures for notifying the other party when a party requests a temporary variation from the residential schedule;

(i) Any suggested restrictions or limitations on access to a party and the reasons such restrictions are requested….

The appellate court states that a trial court is not free to disregard any of these enumerated events so that the failure of the trial court to include all enumerated events in the parenting plan is reversible error. The court also points out that, even if Fessler’s proposed parenting plan had not requested parenting time for certain holidays and special events, the trial court’s failure to account for such events in its parenting plan would still be a reversible error.

Ashton v. Ashton, 511 S.W.3d 473 (Mo. App. W.D. 2017): Mother and Father had joint legal and physical custody of their children following the dissolution of their marriage in 2011. The parties agreed that they would each have the children two overnights during the week and alternating weekends. On March 12 2016, Mother e-mailed Father stating that she planned to relocate the children to St. Louis on April 1, 2016 (twenty days after Father received the e-mail). In her email, Mother explained that the sale of her old house “happened so quickly, I was unable to provide you with the statutory sixty-day advance notice.” Father replied to her e-mail, objecting to Mother’s proposed relocation and stating that he never received a certified letter containing notice (as required by RSMo. § 452.377.2) and that sending him notice less than 30 days before the relocation was unacceptable. Father soon thereafter filed a motion to procure an order prohibiting the proposed relocation. Mother, in turn, filed a motion to dismiss, claiming that, because Father did not file his motion within the required thirty days after receiving her “notice,” she had an absolute right to relocate the children’s residence sixty days after providing notice. The circuit court sustained Mother’s motion to dismiss, and Father appealed.

The appellate court here ultimately vacated the judgment of the circuit court, relying on Father’s claim that Mother’s purported notice did not meet the statutory requirements of § 452.377.2, which states:

Notice of a proposed relocation of the residence of the child, or any party entitled to custody or visitation of the child, shall be given in writing by certified mail, return receipt requested, to any party with custody or visitation rights. Absent exigent circumstances as determined by a court with jurisdiction, written notice shall be provided at least sixty days in advance of the proposed relocation. The notice of the proposed relocation shall include the following information:

(1) The intended new residence, including the specific address and mailing address, if known, and if not known, the city;

(2) The home telephone number of the new residence, if known;

(3) The date of the intended move or proposed relocation;

(4) A brief statement of the specific reasons for the proposed relocation of a child, if applicable; and

(5) A proposal for a revised schedule of custody or visitation with the child, if applicable.

The court notes that one of the purposes of this statute is to protect the non-relocating parent’s right to object to the relocation of his or her children. Although, normally, the non-relocating parent is required to file a motion to prevent the relocation and to do so in a timely manner (within 30 days), no such requirement exists if the relocating parent failed to provide proper notice of the relocation in the first place. Here, the appellate court found Mother’s noncompliance with the applicable statute on proper notice was quite clear.

Firstly, both parents agreed that Father did not receive notice “in writing by certified mail” and, therefore, Mother failed to meet one of the first requirements of § 452.377.2. However, the court acknowledges there may be some legitimacy in Mother’s argument that, despite not being sent by certified mail, Mother’s e-mail constituted “actual notice” in light of the court’s opinion in Baxley v. Jarred, 91 S.W.3d 192, 205 (Mo. App. 2002). In that case, the court held that, although the notice letter was not sent through certified mail, it nonetheless met all other requirements of § 452.377.2 and as such constituted actual notice by satisfying the purposes of the statute. Just as well, the Ashton court stated that the ruling in Baxley may conflict with more recent court decisions which emphasized the need for “strict compliance” with the plain language of § 452.377.

In any case, even if Mother’s email did constitute “actual notice,” the court found that it still otherwise failed to comply with the provisions of § 452.377.2. Indeed, Mother admitted in her email that she failed to satisfy the statutory requirement that notice be “provided at least sixty days in advance of the proposed relocation.” The court noted that the requirement that notice be provided at least sixty days in advance “absent exigent circumstances as determined by a court with jurisdiction,” indicates that, where a parent proposes to relocate in less than sixty days, there must be a judicial determination as to whether such “exigent circumstances” exist. In this case, the circuit court made no such determination. Consequently, the appellate court vacated the circuit court’s decision.

S.S.S. v. C.V.S., SC96307 (Mo. 2017): Mother and Stepfather filed a petition for the adoption of S.S.S. and termination of the parental rights of Father. The circuit court concluded Father’s consent to the adoption was not required pursuant to § 453.040(7), RSMo 2000, because Father willfully abandoned Child and willfully, substantially, and continuously neglected to provide Child with necessary care and protection. The circuit court terminated Father’s parental rights and granted the adoption. Father appeals from the circuit court’s judgment, arguing its conclusions regarding abandonment and neglect are against the weight of the evidence.

Mother testified Father does not have a close, personal relationship with Child. She explained Child does not talk about Father between calls and visits, Child struggles to interact with Father during visits, and there were occasions when Father was late or failed to show up for scheduled visits with Child. Mother also testified Father does not make Child’s interests a priority during visits, does not interact appropriately with Child, encourages Child to break rules, shows no concerns for social norms, and talks at “cross purposes” with Child. Mother further testified she does not trust Father to keep Child safe as he has shown a lack of concern for Child’s health and safety by placing Child in a vehicle without the appropriate seat belt or child seat.

The appointed guardian ad litem reported Child does not consider herself to be close to Father, does not request visits with Father, feels Father ignores her much of the time during visits, and Father was unable to tell the guardian ad litem much about Child. The guardian ad litem also reported Father was 20 minutes late to an arranged one-hour visitation with Child, there was no eye contact between Child and Father during the visit, and Child never looked at Father’s face during the visit.

The circuit court entered its judgment terminating Father’s parental rights and ordering Child to be considered Mother and Stepfather’s child “for all legal intents and purposes.” The circuit court concluded Father willfully abandoned Child for purposes of § 453.040(7) because, despite having occasional contact with Child, he does not have meaningful interactions with her. The circuit court further concluded Father willfully, substantially, and continuously neglected to provide Child with necessary care and protection for purposes of § 453.040(7) because the evidence established that Paternal Grandmother, not Father, was the source of the $400 monthly payments.

Ultimately, the opinion of the circuit was affirmed. The circuit court could have reasonably found, despite frequent contacts and visits, Father’s relationship with Child was merely superficial or tenuous. While it may also be reasonable to find Father’s relationship with Child was not merely superficial or tenuous, this Court must defer to the circuit court’s assessment of the evidence and its findings when the evidence poses two reasonable but different inferences. It was found to be noteworthy as well that Father provided no financial support for Child for the six months preceding the filing of the petition for adoption, despite having the ability and resources to do so.

Property Division

Landewee v. Landewee, 515 S.W.3d 691 (Mo. 2017): Wife and Husband were married in 1991. During the marriage, they acquired property and debts of Knaup Floral, Inc., the wife’s family business. This was connected by a breezeway to the marital home. Wife owned and worked at Floral shop while Husband worked for the city of Cape Girardeau. In the dissolution of the marriage, the trial court awarded Wife the Floral shop, along with the real estate, vehicles and bank account associated with it, the marital home connected, her retirement account, two life insurance policies, her personal bank account, and the debt on two credit cards. The court awarded Husband his pension, a vehicle, his retirement account, four life insurance policies and husband’s bank account. In order to equalize the awards, the court ordered Wife to pay husband $196,496.50. The court also determined that Husband’s pension was marital property, but since it could not be accessed until he retired, it was currently valued at zero, and if it did fully mature, Husband would pay Wife half of the accrued marital benefit.

Wife appealed the court’s ruling, saying that she should be awarded an immediate division of Husband’s pension. She also claims that the equalizing of the awards was unfair. As to the first count, the court noted that the husband has no guarantee he will receive his pension benefits because he could predecease the pension’s maturation. So, the value at the time of the dissolution was zero because neither Husband nor Wife had any ability or right to access those funds and, therefore, the receipt of the benefit was still contingent. The trial court’s future distribution of the vested, non-matured pension contemplated this fact and accounted for it in its decree.

As to the wife’s contention that the trial court erred in its division of property, she claimed that the section 452.330 factors were not considered. These includes the economic circumstances of each spouse, the contribution of each spouse to the acquisition of the marital property, the value of nonmarital property, the conduct of the parties during the marriage, and the custodial arrangement for minor children. The wife states that her Floral shop was valued at zero and she can only draw a modest salary from her employment, so her economic situation was worse than Husband’s. Further, she contends that husband was controlling and abusive, and that should therefore diminish his marital share. Wife believed that she should have received a larger share of the marital property because “Husband committed marital misconduct, that she is the spouse with much less in retirement, a victim of domestic assault, with residential custody of two children, a failing business, and two pieces of property that are akin to albatrosses,” so she shouldn’t have to pay Husband the equalization share. The court determined that her business was not failing, as she was able to take a salary of almost $70,000 a year from it, that the property she was given was worth half a million dollars, and that one episode of domestic violence precipitating the dissolution was worthy of disproportionate division of marital property. Therefore, the court upheld the decision of the lower courts.

L.R.S. v. C.A.S., 525 S.W.3d 172 (Mo. App. Ct. E.D. 2017): Husband and Wife were married in 1992. The parties enjoyed substantial financial resource throughout the marriage and grew accustomed to a certain standard of living. Wife stopped working when the parties had children and has not worked outside the residence since 1998. Wife received help caring for the parties’ children and maintaining the marital residence. Husband had suffered from alcohol addition, cocaine addiction and engaged in sexual relationships with massage therapists. All of the misconduct occurred while the minor children were still residing in the home. The trial court found that a 60%-40% property division in favor of the wife was fair and equitable.

On appeal, Husband argued he should not have had to pay an equalization payment for Husband’s violation of Local Rule 68. He also argued that the monthly maintenance amount he was to pay Wife, $14,617, was incorrect (an issue which is discussed in the next section of this CLE).

Local Rule 68 prohibits a party in a dissolution from essentially stealing or squandering money. The trial court has the authority to find the violating party in contempt and order fines or sanctions based upon the violation. The trial court found that Husband spent considerable amounts of marital cash and assets on his girlfriend, including purchasing furniture, clothing, nails, gas, and jewelry. The appellate court determined that the trial court’s actions in concluding Husband violated the local rule, but not holding him in contempt, meant that the court’s findings and conclusions relating to Husband’s misconduct to be in violation of local rule as part of the trial court’s larger consideration for the conduct of the parties during the marriage. In addition to this, the sixty-forty division of property was fair and equitable in light of Husband’s misconduct during the marriage.

Hagan v. Hagan, 530 S.W.3d 608 (Mo. App. S.D. 2017): Mark and Marsha Hagan were married for over 30 years when Marsha caught Mark, for a second time, having an affair-this time with an 18-year old employee at the bowling alley he owned (the Buffalo Bowl & Arcade, L.C.). Marsha petitioned for divorce, and so the court issued an order requiring the preservation of marital assets. However, in blatant disregard for this order, Mark proceeded to commit several “[sic] tomfooleries”, such as conveying his bowling alley to his father’s trust without Martha’s consent, which the lower court cited in their final judgment which declared that the couple’s marital property would be split 65/35 in Marsha’s favor-resulting in Marsha receiving 59.4% of the net marital estate. Other “tomfooleries” included “squander[ing], [concealing,] and convey[ing] to others (particularly his parents) significant assets that could have been divided between the parties.”

These assets include, without limitation, (a) a significant number of firearms that [Mark] claims to have disposed of prior to separation, but for which he was completely unable to present any evidence supporting such dispositions, (b) a debt of $16,500 owed to . . . an entity controlled by [Mark’s] father, that [Mark] received payment on but did not account for or share with [Marsha], (c) a [vehicle] sold by [Mark] prior to trial, and [Mark] retained all of the proceeds thereof exclusively for himself, and (d) substantially all of the assets of . . . [Mark’s] bowling alley business, which assets were conveyed by [Mark] to his parents in February 2015, without notice to [Marsha] or this Court, and without [Mark] causing any appraisals or other valuations or due diligence to have been conducted in order to determine the value of such assets prior to conveying them.

These actions were dispositive in the circuit court’s ruling which so strongly favored Marsha. And although Mark raises several points on objection to the court’s property classification, valuation, and division; the appellate court notes that the trial court has very broad discretion in making such determination. As such, the appellate court can reverse the trial court’s judgment as to the distribution of marital property only if no substantial evidence supports it, or it is against the weight of the evidence, or it erroneously declares or applies the law. Since relief for someone in Mark’s position can only be obtained by those three avenues, each of Mark’s points ought to have specified some particular basis for relief-and none did. The appellate court found this reason alone was enough to affirm the trial court’s ruling, but it nonetheless took the time to go through each of Mark’s points and explain why each would have failed anyway.

In short, most of Mark’s points failed because they were improperly argued, or simply unsupported by any of the facts. Still, a few of Mark’s points stand out. For example, Point IV, objecting to the valuation and distribution of the parties’ dog-breeding website, failed for interesting reasons. Five days prior to trial, Mark swore under oath that breeding website was valued at $10,000 and asked for it to be awarded to Marsha. However, the court awarded it to Mark instead, which caused Mark to openly contradict his previous sworn valuation, since he then argued on appeal that the website “had no value, [and] was not subject to award or division by the trial court.” The appellate court does not entertain this contention beyond dismissing it on the grounds that-even if the trial court’s valuation was made in error-it was made in error that Mark invited, and so Mark has no basis to complain of error.

On Points III and V, it appears Mark attempted to argue the trial court’s distribution of certain pieces of marital property was unjustified since there was conflicting evidence introduced at trial as to the valuation and ownership of these assets. Here, the appellate court spends no more than two short paragraphs denying these points, stating that it was wholly within the province of the trial court to determine what evidence to believe.

Due both to Mark’s disregard for the court’s authority and for the rules of pleading, the appellate court affirmed the trial court’s property distribution judgment.

In re Marriage of Hanson, No. SD 34963, 2018 WL 1193444 (Mo. Ct. App. Mar. 8, 2018): Charles M. Hanson (“Husband”) and Annette Leigh Hanson (“Wife”) were married in 1990; the judgment of dissolution was entered on April 4, 2017. Husband raised four claims contending that that the trial court erred in the valuation and division of marital property. Only two of these claims will be discussed here, specifically: Husband’s claim that the trial court erred in considering the Willow Funeral Home as marital property because it was a gift, and his claim that the trial court erred in valuing the marital residence of the parties.

The court’s standard of review will reverse the trial court’s judgment if it’s not supported by substantial evidence, is against the weight of the evidence, or is an erroneous declaration or application of the law. Additionally, the court stated it is not sufficient to simply claim error in the valuation or the distribution of a marital asset, but Husband must also claim that the distribution was inequitable when considering the total award of assets, and further, the trial court judgment is presumed correct.

As for Husband’s first point regarding the Willow Funeral Home: while Husband did admit that the real estate was acquired during the marriage and is jointly titled with a Mr. Andrew Gilmore, he also claims argues that the funeral home was a gift from Gilmore to him and therefore cannot be counted as marital property. The entire basis of his argument relied Mr. Gilmore’s testimony that, when he purchased the funeral home, it was Gilmore’s intent that Husband only have a contingent interest in the funeral home. The court then looked at the “circumstances surrounding the acquisition of the funeral home real estate.” The court noted, “Mr. Gilmore appears to be an intelligent and sophisticated businessman who would not carelessly give away a half interest in his property. There was no testimony of any conveyances or legal proceedings taken or planned to correct or change [Husband’s] ownership in the real estate.” The trial court found that Husband’s interest in the funeral home property was acquired during the marriage as a result of Husband’s employment relationship with Mr. Gilmore. The Appellate Court reasoned that it was within the province of the trial court to disbelieve the testimony of Mr. Gilmore and determine that the real estate was acquired during the marriage and was not a gift. The trial court’s finding that the funeral home real estate was marital property was not error.

Next, Husband argues that the trial court erred in valuing the marital residence (which was awarded to Husband at $108,000). In 2005, the home was for $108,000; and Husband had valued the property on the property list at $115,000. Wife had valued the property at $150,000. Husband then hired an appraiser who claimed the property was only worth $35,000, and so Husband now argues that the trial court erred in its valuation because the court was required to accept the valuation of the “expert.” The court, however, points out no such requirement exists. The trial court noted that the expert was a licensed Missouri auctioneer, but not a licensed real estate appraiser. The court also noted that, though the expert stated the standard for real estate appraisals was to use comparable real estate sales to determine value, the expert did not use any comparable sales. The expert testified that his price of $35,000 was the price that it would bring at an auction. The court reasoned that the deviation in the values placed on the house by the parties was too great and self-serving to be reliable testimony. Noting that “when the trial court’s valuation of property is within the range of conflicting evidence of value offered at trial, the court acts within its discretion to resolve conflicts in evidence, the trial court used the purchase price of $108,000.” The court reasoned that the trial court did not err in using the purchase price of the property as the value for the real estate.

For these reasons, the appellate court denied these two points raised by Husband; and, incidentally, Husband’s remaining two points pertaining to the trial court’s valuation and distribution of marital property was also denied.


L.R.S. v. C.A.S., 525 S.W.3d 172 (Mo. App. E.D. 2017): On appeal, Husband claims (amongst other things) that the trial court committed reversible error when computing his spousal maintenance obligation. In Missouri, per § 452.335.1, the trial court may award maintenance only upon first finding that the spouse seeking maintenance “(1) lacks sufficient property, including marital property apportioned to her, to provide for her reasonable needs; and (2) is unable to support herself through appropriate employment.” The spouse requesting the maintenance has the burden of establishing these two threshold requirements. In determining the maintenance amount, the trial court should consider all relevant factors, and balance the reasonable needs of the spouse seeking maintenance with the paying spouse’s ability to pay.

To compute a spouse’s reasonable needs, the trial court reviews each party’s statement of income and expenses, which a party may complete in light of their desired standard of living. In particular, in lengthy marriages where one spouse has foregone advancing his or her own career (such as the marriage in this case), the marital standard of living may serve as an important guide in computing the non-working spouse’s reasonable needs. In fact, the court noted that the marital standard of living is oftentimes the best evidence available to show what the parties together have determined their reasonable needs to be. In this case, the parties’ enjoyed an extravagant marital standard of living, and the trial court’s reliance on this luxurious lifestyle seems to be the basis for Husband’s objection on appeal. The appellate court ruled, however, that the trial court acted within its discretion to use the marital standard of living as a guide for computing Wife’s reasonable needs, and also appropriately reduced Wife’s claimed expenses to amounts which the trial court felt were more reflective of Wife’s reasonable needs. Therefore, the appellate court affirmed the trial court’s computation of Wife’s reasonable needs.

On the other hand, the appellate court did not agree with the trial court when it came to Wife’s ability to cover her own reasonable needs through marital property apportioned to her. Indeed, in Missouri, the trial court is required to consider the marital property awarded to the spouse seeking a maintenance award, per § 452.335. Here, the trial court decided that Wife’s reasonable monthly expenses were $16,784 per month; and after imputing to Wife $2,167 per month as her potential employment income, the trial court decided Husband’s maintenance obligation amount was $14,617. This computation suggests that the trial court did not include the 60% of marital assets awarded to Wife when it calculated Husband’s maintenance obligation. Because the record was unclear as to whether the trial court considered the marital assets, or any additional income Wife may earn from investing those assets, the appellate court reversed and remanded the ruling so that the trial court could determine to what extent, if any, the property division award affects Wife’s income for purposes of maintenance.

Barden v. Barden, No. ED 105496, 2018 WL 326416 (Mo. Ct. App. Jan. 9, 2018): Ex-husband moved for modification of dissolution decree. The circuit court terminated ex-husband’s maintenance obligation, reduced ex-husband’s child support obligation, terminated ex-husband’s obligation to contribute towards oldest child’s college expenses, and awarded ex-wife the right to claim all three children as exemptions for income-tax purposes. Ex-wife appealed, and the judgment was partially reversed for remand. On remand, the court reduced ex-husband’s maintenance obligation, reduced ex-husband’s child-support obligation for the two younger children, abated child support for the oldest child for particular time periods, ordered ex-wife to pay ex-husband $1,000, and gave ex-husband the right to claim a particular child as an exemption for income-tax purposes. Wife once again appealed, arguing the trial court erred in decreasing Husband’s maintenance obligation because his present income is not significantly lower than his income at the time of the dissolution judgment, and because he has the ability to pay the original award of maintenance.

The appellate court disagreed with Wife’s contention. Generally, a decrease in income of the spouse paying maintenance constitutes a substantial and continuing change in circumstances where the obligor spouse is unable to meet his own reasonable needs and is also unable to pay the original maintenance obligation. At the time of dissolution, Husband earned approximately $263,947 a year in gross income. In 2012, Husband was fired from his job, causing his annual salary to drop to $50,000 by 2013 (the time of the first maintenance modification between the parties). This translated to monthly earnings for Husband of only $3,878, which was not enough to cover Husband’s reasonable monthly expenses of $5,279. The court noted that, by 2016, Husband’s gross monthly income rose to $14,433, his reasonably monthly expenses also rose to $14,055. Although Husband’s income by 2016 slightly outweighed his monthly expenses, the court found that Husband did in fact have insufficient funds to meet his own reasonable financial needs while paying both child support and the original maintenance award.

Additionally, the trial court also considered Husband’s other financial resources, debts, and payments since dissolution, which is permitted by § 452.370.1. In doing so, the trial court seemingly found nothing in the way of additional financial resources, but found Husband’s debt had increased between 2013 and 2016 by roughly $7,380; and that Husband had taken on various other recurring and one-time expenses for the sake of his three children, such as buying two of them cars, covering all expenses related to those cars (gas, insurance, etc.), and paying $1,317 a month for one child’s college education.

As such, the appellate court affirmed the circuit court’s judgment as to the maintenance modification in favor of Husband.

Wagner v. Wagner, No. ED 105096, 2017 WL 5707421 (Mo. Ct. App. Nov. 28, 2017), transfer denied (Jan. 30, 2018): On or about May 28, 2004, the Circuit Court of St. Louis County dissolved the forty-year marriage between Ulrich and Veronica, pursuant to a consent judgment (“Dissolution Judgment”). The Dissolution Judgment provided, inter alia, that Ulrich and Veronica would continue to jointly own, as tenants-in-common, a business entity designated as Wagner Enterprises, LLC (“Wagner Enterprises”). The parties agreed to equally divide any income derived from Wagner Enterprises after expenses at the time the Dissolution Judgment was entered, each party received approximately $5,384 in pre-tax income per month from Wagner Enterprises.

The Dissolution Judgment, ordered Ulrich to pay Veronica the sum of $791 per month as and for modifiable maintenance. Ulrich was also ordered to pay the cost of Veronica’s supplemental healthcare insurance, estimated to cost approximately $150 per month.

Almost eleven years after the entry of the Dissolution Judgment, Ulrich filed a motion to modify his maintenance obligation. The court found that Veronica could satisfy her monthly reasonable needs without contribution from Ulrich, and so the Modification Judgment terminated Ulrich’s maintenance obligation, but denied Ulrich’s request to terminate his obligation to pay Veronica’s supplemental healthcare insurance. Additionally, the court ordered Veronica to pay $7,000 of Ulrich’s attorney’s fees.

Veronica appealed, contending that the modification court erred in entering the Modification Judgment. In her first point on appeal, Veronica asserted that the modification court erred in finding a change in circumstance sufficient to modify the Dissolution Judgment, in that Veronica’s increased-income was “foreseeable” at the time the Dissolution Judgment was entered. Thus, the court could not form the basis for a change in circumstances. Second, Veronica argues the modification court erred in denying her request for attorney’s fees and ordering her to pay $7,000 of Ulrich’s attorney’s fees. The court disagreed with Veronica on both points.

On review the court determined the modifiable maintenance provisions of a dissolution decree were subject to § 452.370, which permits a modification only upon a showing of changed circumstances so substantial and continuing as to make the terms unreasonable. Recent case law has expanded this statutory burden, requiring the change in circumstances be unknown and unforeseeable at the time of the entry of the original judgment that the spouse seeks to modify. Maintenance modification is only permitted if the change in circumstances involve a departure from prior known conditions, including those known at the time of dissolution. When the recipient-spouse can meet his or her reasonable needs without further contribution from the other spouse, unless otherwise set forth in the dissolution judgment, then a substantial and continuing change in circumstances has occurred, requiring a maintenance modification analysis. The court reasoned that the income-producing capacity of Wagner Enterprises was clearly known to the parties in 2004 when the Dissolution Judgment was entered, and that future increases or decreases to that income are subject solely to the “strict” change in circumstances. Since ensuring the recipient-spouse’s ability to meet his or her reasonable needs is the ultimate purpose of maintenance, Veronica’s point was denied.

Veronica also argues against Ulrich being granted $7,000 in attorney’s fees on appeal. The court here disagrees with her. Here, the record was adequate to permit the court to evaluate whether the trial court properly granted Ulrich’s motion for attorney’s fees, due to the courts frustration at the waste of financial resources incurred in the yearlong litigation.

McHugh v. Slomka, 531 S.W.3d 588 (Mo. Ct. App. 2017): Husband and Wife married in 1989. During the majority of their marriage Wife was not employed outside the home and was the primary caregiver of the parties’ three minor children (ages 15, 15, and 13 at the time the “Modification Judgment” was entered). For twenty years of their marriage, Husband was employed in various positions by the same large corporation in both Chicago and St. Louis. Eventually, he was promoted to Vice-President of Entertainment Marketing, earning approximately $250,000 per year as a base salary, plus annual bonuses of between $37,500 and $62,500. In 2009, Husband’s employment was terminated, and in 2010, Husband filed a Petition for Dissolution of Marriage in the Circuit Court of the City of St. Louis. Pursuant to a settlement agreement, a Dissolution Decree was entered in February 2011, dissolving the parties’ marriage. The Dissolution Decree incorporated a Marital Separation Agreement (“MSA”) and a Parenting Plan (collectively, the “Dissolution Judgment”).

The MSA addressed maintenance as follows:

a. Terms of Payment and Duration. It is reasonable for and [Husband] shall pay to [Wife] the sum of $2,000 per month as and for modifiable maintenance….

b. The parties understand that they are unable to maintain the standard of living during the marriage because [Husband] is unemployed. The parties understand that this amount is modifiable once [Husband] becomes employed….

In June 2011 Husband reported a household income of approximately $550,000 per year. Conversely, in August 2011, Wife and the three children moved to Indianapolis, Indiana to reside with her parents. Wife testified that the impetus for her move and co-habitation with her parents (both of whom are in their mid-seventies) was out of “necessity.” Wife had only been able to secure one part-time position for eight months, at $13 per hour. Since the dissolution, Wife has continued in her role as the primary caregiver of the parties’ three children. In October 2012, Wife filed a motion to modify the Dissolution Judgment, seeking an increase in maintenance and child support, reimbursement of medical, educational, and extraordinary expenses, and attorney’s fees. Husband filed a counter-motion to modify, seeking a reduction in maintenance, as well as, a revision of the joint legal custody provision. On June 2, 2015, after a two-day trial, the court entered a Modification Judgment, decreasing Husband’s maintenance to $1,000 per month and increasing child support to $3,169 per month for three children. The court denied Wife’s requests for expenses and attorney’s fees and removed Wife’s authority to make final decisions for the children.

On appeal the wife submitted the following five points (only two of which are relevant to this discussion), contending that the modification court erred in: (I) reducing, rather than increasing, Wife’s maintenance; and in (II) calculating the proper amount of child support.

The Wife’s first point on appeal, contends the modification court erred in decreasing maintenance because, pursuant to the terms of the MSA, because the parties agreed to increase the amount of maintenance awarded to Wife if Husband gained employment that would support their standard of living during the marriage. The court agreed. The court reasoned that when interpreting a marital separation agreement, the normal rules of contract construction apply, and the provision within the MSA clearly governed the parties’ modification proceeding. The trial court premised its judgment on whether a substantial change in circumstances had occurred, pursuant to § 452.370.1, and found that, since Wife’s reasonable expenses had decreased since the dissolution, a decrease in maintenance was warranted. The court reasoned this was in error and stipulated that the modification court could not ignore the bargained-for terms of the parties’ marital separation agreement. During the initial dissolution proceedings, the parties agreed that Husband would pay Wife $2,000 per month in maintenance, stipulating that they were “unable to maintain the standard of living during the marriage because [Husband] is unemployed.” The parties agreed that the amount was modifiable “once [Husband] becomes employed.” The court reasoned that the MSA does so contemplate a modification premised solely upon Husband’s employment, because the plain language of the MSA states as much: “The parties understand that this [maintenance] amount is modifiable once [Husband] becomes employed.” Thus, upon Husband’s reemployment at a salary much greater than that he enjoyed during the marriage, the court is required to order an increase in maintenance so that Wife, too, may return to the standard of living she enjoyed during the marriage.

In her second point on appeal, the Wife contends the modification court erred in calculating child support. If the court is establishing both child support and maintenance, the court shall first determine the appropriate amount of maintenance; and since the court agreed the maintenance needed to be recalculated, it was ordered that the modification court must determine maintenance, then prepare an amended Form 14 and recalculate child support obligations per child.

Layden v. Layden, 514 S.W.3d 667 (Mo. App. E.D. 2017): In this case, Husband sought to reduce or terminate his spousal maintenance obligation to his wife following a demotion he received at work which reduced his income by $600 a month. According to the trial court, Husband was demoted because he behaved inappropriately at work and made numerous discriminatory statements in the presence of his superior female coworkers. After his demotion, Husband claimed he applied for a new job (which he was not given) and took up a part-time job to help make up for his loss in income. Nonetheless, Husband admitted that he stopped making maintenance payments to Wife because he could no longer afford to pay them due to the demotion. Shortly thereafter, Wife successfully procured a court order garnishing Husband’s wages, although Husband testifies that his new wife had to help him pay the garnished maintenance. The trial court also ultimately denied Husband’s motion to reduce or terminate his maintenance obligation; finding that he and his new wife had the means to cover Wife’s reasonable monthly expenses (which she could not pay for on her own), and that Husband’s demotion for employee misconduct was not a substantial and continuing change in circumstances warranting a reduction or termination of his maintenance obligations. On appeal, Husband challenges both of these findings.

As for Husband’s demotion, the appellate court affirms the trial court’s decision, holding that Husband’s actions at work constituted a voluntary reduction in income, and as such his demotion does not amount to a substantial and continuing change of circumstances. Indeed, after his demotion, Husband remained on the payroll with his employer, and testified that he may be eligible for promotion. Moreover, Husband also testified that he took on a part-time job after his promotion to supplement his reduced income, which supports the contention that Husband’s ability to pay Wife’s maintenance remains mostly unchanged.

Husband attempted to rely on another Missouri case (Willis v. Willis, 50 S.W.3d 378 (Mo. App. W.D. 2001)) to argue that his demotion was not voluntary or deliberate. In Willis, the wife argued that her husband’s termination from his employment because he failed a workplace drug test constituted a voluntary and deliberate reduction of income. The Willis court disagreed, holding that the wife failed to distinguish between a reckless and irresponsible reduction of income and a voluntary and deliberate reduction of income. The Willis court maintained that, though the ingestion of marijuana is reckless and irresponsible, it was not for the purpose of intentionally reducing his income and defeating his maintenance obligations. In relying on Willis, Husband appears to be trying to argue that his workplace conduct constituted a reckless and irresponsible reduction of income, rather than a deliberate one. However, the appellate court here held that Husband was subject to adverse employment action-not because he was reckless-but because he exhibited unprofessional behavior and made numerous discriminatory statements in the workplace. The court therefore declined to characterize Husband’s intentional conduct as akin to the reckless and irresponsible behavior at issue in Willis, and so affirmed the trial court’s judgment on this issue.

Husband also contended that the trial court erred by considering the income of his new wife in reaching its decision to deny his motion to modify. However, this point is defeated by the plain language of Mo. Rev. Stat § 452.370, which clearly states:

In a proceeding for modification of any child support or maintenance judgment, the court, in determining whether or not a substantial change in circumstances has occurred, shall consider all financial resources of both parties, including the extent to which the reasonable expenses of either party are, or should be, shared by a spouse or other person with whom he or she cohabits . . . . (emphasis added).

When Husband submitted his statement of income and expenses into evidence, he testified that the expenses included represented the portion of household expenses for which he was responsible. He further testified that he and his current wife share a joint bank account, and that his current wife’s income “goes into the same pot . . . as where [his] household bills are paid.” This testimony, in light of the plan language of § 452.370, led the appellate court to affirm the lower court’s ruling here.

Missouri Adoptive Rights Act

Governor Nixon signed House Bill 1599 on July 1, 2016. The bill allows an adult adoptee or the adoptee’s attorney to request an uncertified copy of the adoptee’s original (prior to adoption) birth certificate.

Under this law, adoptees born before 1941 can request a copy of their original birth certificate beginning August 28, 2016. Adoptees born in and after 1941 can request a copy of their original birth certificate beginning January 1, 2018.

For more information, you can go to this link: http://health.mo.gov/data/vitalrecords/adopteerightsact.php


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