Missouri Bar Annual Law Update: Family Law 2019

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Missouri Bar Annual Law Update: Family Law 2019

I. Child Support

Swanson v. Hernandez, 544 S.W.3d 315 (Mo. App. E.D. 2018): Father had three child support orders for three separate children of three separate mothers. The first order (S.M.S.) required father to pay $350.00 per month and it was initially ordered in New York, but was registered in Georgia after the mother and child moved there. After the move, New York recognized the Georgia registration and divested itself of jurisdiction under the UIFSA because none of the parties reside in New York. The second order (S.R.S.) required father to pay $450.00 per month and was ordered in Missouri. Finally, the third order (A.R.S.) required father to pay $300.00 per month and it was also ordered in Missouri. Proceeding pro se, Father filed a motion to register the New York child support order in Missouri, and to modify all three child support orders together. The Circuit Court granted father’s motion to register the New York order in Missouri for purposes of enforcement but denied motion to modify for lack of jurisdiction. The Circuit Court also ruled that each separate support case had to be addressed individually.

On appeal, father raised four points: First, the trial court erred in failing to register the New York Hernandez order for the purposes of modification under the UIFSA; Second, the trial court erred in failing to forward the pleadings and papers to Georgia under section 454.1563; and in his third and fourth points, challenged the trial court’s failure to rule on his claim that the aggregate amount of his three child support orders exceeded his ability to pay. In doing so, he questioned whether the State is permitted to create multiple child support orders where the sum of the aggregate orders is greater than his ability to pay. He also argued that Missouri law places the interests of the parent receiving child support over the constitutional liberty interest of the parent paying child support to maintain and keep a home.

In response to fathers four points, the Court of Appeals held the following: (1) Missouri lacked jurisdiction to modify the New York Child Support order that has been registered in Georgia; (2) Missouri’s authority to determine which of multiple child support orders involving same child controls did not apply to father’s motion to modify the New York Support order registered in Georgia; (3) trial court was required to forward father’s pleadings and papers on motion to modify the New York order registered in Georgia to Georgia court; (4) trial court did not abuse its discretion in denying father’s request to consider aggregate of separate child support orders as exceeding his ability to pay; and (5) father’s claim on appeal that the aggregate of child support orders resulting in amount exceeding his ability to pay could subject him to criminal proceeding for non-support was not ripe for appellate review. These holdings led the Court to “reverse and remand for the limited purpose of allowing the trial court to enter an order forwarding to Georgia the pleadings and documents relevant to the modification of the Hernandez order, as required under Section 454.1563, after dismissing any parties and Counts over which Georgia would not have jurisdiction” and affirm the rest of the trial courts judgment.

In re Marriage of Isakson, 555 S.W.3d 21 (Mo. App. S.D. 2018): On October 29, 2007, the parties’ marriage was dissolved after seventeen years. In the dissolution judgment, the trial court ordered father to pay mother $1,585.00 per month in child support for their three children, in addition to all future college expenses for each child. In October 2015, father filed a Motion to Modify Child Support alleging the following substantial changes: (1) father’s income had decreased; (2) mother’s expenses had decreased; (3) only one child, B.I., remained eligible for child support; and (4) B.I. was about to begin college and since father was required to pay for all college expenses, child support should terminate. The trial court did find that substantial continuing change was demonstrated and lowered the child support payment to $1,436.00 per month for B.I. to cover B.I.’s food allergies and home visits from college. Father appealed the judgment claiming the child support amount was unjust and inappropriate because (1) there was not substantial evidence to show that B.I.’s food allergies and home visits from college supported the presumed child support amount; and (2) father was already paying for B.I.’s college expenses and uncovered medical expenses.

The Court of Appeals affirmed the trial court’s judgment and held that the evidence supported finding that the higher presumed child support amount was appropriate for child’s food allergies and home visits from college as well as the child’s college expenses and uncovered medical expense.

Reinhart v. Reinhart, 554 S.W.3d 524 (Mo. App. E.D. 2018): After judgment and decree of dissolution of marriage was issued, which established custody and child support for parties’ two minor children, father filed motion to modify child support claiming substantial change in circumstances since one of the children had gone away to college. The judgment had ordered father to pay $1,500 per month for two children and $1,000 per month for one child-this amount was not determined in accordance with authorized support guidelines rather they were determined by an agreement between mother and father. In response to father’s motion, mother moved to hold father in contempt alleging that he was not paying full child support amount because father began paying $1,000 per month after one of the children went away for college. Following a trial, the Circuit Court reduced father’s child support payment to $288 per month, ordered mother to reimburse father for overpaid child support in the amount of $3,428, and denied mother’s motion for contempt.

Mother appealed the trial court’s ruling and made two points. First, she argues the trial court erred in granting father’s motion to modify because modification must be predicated on a finding of the obligor’s inability to pay the agreed upon amount of child support and father did not prove his inability to pay since he testified at trial that he was making more money than at the time of the original dissolution judgment; and he was able to pay his current child support obligation. Second, she alleges the trial court erred in not finding father in contempt for his failure to pay the required amount of child support while the parties’ oldest child attended college. The Court of Appeals disagreed and affirmed the trial courts judgment holding: (1) the trial court did not abuse its discretion in finding that modification of father’s child support obligation was based on substantial and continuing change of circumstances since the judgment of dissolution of marriage that was entered several years prior was reasonable and warranted; and (2) trial court’s denial of mother’s motion to hold father in contempt for alleged failure to pay child support obligation that was established in the judgment of dissolution was not an abuse of discretion.

Rosas v. Lopez, 556 S.W.3d 620 (Mo. App. E.D. 2018): In June 2003, the parties dissolved their marriage by consent in Colombia. The original dissolution decree gave the parties joint legal custody and awarded mother child support ten months per year and child support to father two months per year. When father moved to St. Louis, he registered the decree in Missouri and had it modified to award him sole legal custody and requiring neither party to pay child support. Later, the father filed a motion to modify mother’s visitation rights which led to mother taking custody of the child and relocating to Colombia where they currently reside. Following a “dizzying array of litigation,” Mother filed a motion to modify child support. In response, father filed a motion to dismiss mother’s modification motion and filed motions to determine amounts due and owing and for contempt. The Circuit Court granted in part and denied in part mother’s motion to modify, denied father’s motion for contempt, and ordered father to pay mother $1,586.00 per month for child support. Father appealed.

On appeal, father submitted three points: (1) trial court erred in denying father’s motion that the court lacked jurisdiction under UIFSA; (2) trial court erred in including private school tuition in mother’s award; and (3) trial court erred in failing to specify whether the judgment modified child’s age of emancipation. The Court of Appeals disagreed and affirmed the trial courts judgment holding that the Missouri court had subject matter and personal jurisdiction over mother’s motion to modify child support; father waived, for purposes of appeal, any potential defense concerning mother’s failure to comply with UIFSA; and the court did not abuse its discretion by including private school tuition in mother’s child support award.

Severn v. Severn, No. WD 81242, 2019 WL 121986 (Mo. App. W.D. Jan. 8, 2019): The parties, who were married September 7, 1991, dissolved their marriage February 27, 2008. The judgment, according to an agreement by the parties and through Form 14 calculations, awarded the parties joint custody and father was ordered to pay child support in the amount of $1,893.00 per month to mother for their three children. Father moved to modify the judgment of dissolution of marriage as to child support after two of the three children were emancipated, to which the Circuit Court found, using it owns Form 14 calculations, that the presumed child support amount for the remaining unemancipated child was $1,508.00 per month and awarded mother half of her attorney and expert witness fees. The Circuit Court, in determining the party’s gross income, included contributions from Father’s Employer in his deferred compensation plan, and they did not calculate mother’s income as if she was working 40 hours a week and instead based her income off the average number of customers she had. Father appealed.

On appeal, father raised the following points in regards to child support: the motion court erred in calculating child support because the motion court overstated his income by including his employer’s contributions to his deferred compensation plan and it understated mother’s income by failing to impute to her full-time income (father believed mother could be working 40 hours a week, but in bad faith was choosing not to do so). The Court of Appeals agreed in part and held that father’s employer’s contributions to a deferred compensation plan could not be used to determine father’s gross income for purposes of determining father’s presumed child support obligation. However, the Court of Appeals disagreed that the mother’s income, as a hairstylist, was understated. The court held that evidence supported the Circuit Court’s findings since mother was not underemployed, her income was reasonable, and that as a hairstylist she was not guaranteed 40 hours of work each week since her hours are based solely on the number of clients she received. Based on these holdings by the Court of Appeals, father’s presumed child support obligation was lowered to $1,455.00 per month.

II. Parentage

Truong v. Truong, 564 S.W.3d 761 (Mo. App. E.D. 2018): Presumptive father (father) and mother were lawfully married. Prior to their marriage, mother gave birth to two children. The first child was deemed the father’s child through a paternity judgment and father’s name was recorded on the second child’s birth certificate. Following the marriage, a third child was born and mother initiated a dissolution-of-marriage action against father. During the pendency of that action father, through a paternity test, discovered he was not the second child’s biological father, and, in response, father filed a civil action of one count of misconduct, negligence, and intentional misrepresentation of paternity and another count of fraud. However, father explicitly stated he was not seeking to adjudicate the parent child relationship between himself and the second child. The Circuit court, agreeing with mother, granted mother’s motion to dismiss for failure to state a claim. Father appealed.

On appeal, father argued that the Circuit Court erred in dismissing his petition because he pleaded with particularity the elements of misrepresentation, negligent misrepresentation, and general fraud. The Court of Appeals disagreed and affirmed the Circuit Courts decision because the only remedy available to father in Missouri was to adjudicate the paternity between himself and the second child which father explicitly said he was not doing. Additionally, the Court of Appeals explained that, in Missouri, paternity fraud is not recognized as a tort and even if it were it would go against Missouri’s public policy of prioritizing the best interest of the child. The Court of Appeals claimed that bringing a claim of paternity fraud “has the effect of saying, ‘I wish you had never been born’ to a child who, before the revelation of biological fatherhood, was under the impression that he or she has a father who loved him or her.”

III. Child Custody

Conoyer v. Kuhl, 562 S.W.3d 393 (Mo. App. E.D. 2018): Kyle Conoyer and Rachel Kuhl were in a romantic relationship where Child E.K. was born April 11, 2012. Child was result of a non-consensual encounter with another man before Kyle and Rachel resumed their relation (they had dated in high school and broke up previously). Kyle and Rachel lived together and Kyle helped to care for E.K. He viewed his relationship with Rachel and E.K. as that of a family. They separated around 2016 or 2017. Rachel did not allow Kyle any contact with E.K. On July 25, 2017, Kyle filed a petition for Third Party Custody. With the Court’s permission, he filed an Amended Petition for Third Party Custody in November 2017 that set out the facts of his relationship in further detail. In December 2017, Rachel file a motion to dismiss the Petition claiming that it failed to state a claim upon which the relief sought could be granted even if the facts alleged were true and asked for a hearing on the matter. A hearing was held on January 19, 2018. The court dismissed the petition.

Kyle appeals the decision to dismiss his claim. The Court stated that section 452.375.5 was not intended to an avenue to custody or visitation rights to any third party that comes along. It applies to individuals who have for a substantial period or to a substantial degree have fulfilled the role of a primary parent to a child, especially when at the behest of the child’s natural parent. This is for those with a significant bonded familial custodial relationship. The Court notes that there is a presumption that the natural parent or parents are fit and suitable and that is petition who has the burden of proving otherwise. They must use the fitness or welfare prong to rebut the parental presumption. Afterwards, the court must decide if custody or visitation would be in the child’s best interest and that third party can provide a suitable and stable environment.

In order to meet the welfare basis, there needs to be proof of a special or extraordinary circumstance (significant bonded familial custody relationship). This is highly fact sensitive. The Court continues to list several things that can be factors for this relationship, including the shared home, preset during pregnancy, and birth, the relationship was that of a parent and child, and that there was wedding planning. The Court also gave factors to be considered when determining Child’s best interest, including wishes of parents, needs of the child for meaningful relationships, mental and physical health, which parent would be more open to the others relationship with child and the wishes of the child. The Court has wide discretion to examine other factors as well. Ultimately, the Court held that the facts pled were sufficient to show that it would be in the best interest of E.K. to have a relationship with Kyle and that he would make a suitable custodian. The Court reversed and remanded for further proceedings consistent with their opinion.

Trueblood v. Mulvihill, 563 S.W.3d 172 (Mo. App. W.D. 2018): Mother and Father have two children together: B.M. born July 8, 2011 and A.M. born December 8, 2009. In February 2012, a Judgment of Dissolution of Marriage was entered which awarded the parties joint legal custody. Mother was awarded sole physical custody and Father was awarded a schedule of visitation. Both Mother and Father were members of the United States Air Force at this time. At the time of the proceeding, Mother was a member of the National Guard and Father was still with the United States Air Force. In December 2013, a stipulated judgment was entered to modify physical custody and award joint physical custody. Time was divided equally on a weekly basis and Mother’s home was designated as the residence for educational and mailing purposes. Father was notified in November 2016 that he was being reassigned to Guam starting in May 2017. In December, he filed his motion to modify and included a notice of relocation and a parenting plan.

Father proposed that the parties alternate years of physical custody. Children would move prior to the beginning of the school year and switch parents each year. Father was then given notice that he would actually be relocated to Alaska and sent another Notice of Relocation to Mother. A trial was held in January 2018. Testimony was provided by Father, Mother and Father’s current wife (Stepmother). Mother submitted her own parenting plan that included joint legal and physical custody where she would keep the children through the school year, and the children would spend the majority of the summer with Father. Father proposed an alternative parenting plan like the Mothers, but where he would have the children during the school year.

The Court entered judgment with alternate years of physical custody parenting plan. The Court reasoned that this was in the best interest of the children for the following reasons: the children have loving and attentive stepsiblings; each parent recognizes the need for frequent and meaningful contact with the other parent; the Father makes more of an effort to ensure daily communication; children travel frequently; and the parents have changed residences a number of times throughout the children’s lives and the children have seemed to adjust well each time. The Court notes the necessity of the distance between the parties due to the Father’s military service. The judgment was affirmed.

Hark v. Hark, No. ED 106281, 2019 WL 272478 (Mo. App. E.D. Jan. 22, 2019): Amy McKinney and John Hark were married in June 1999 and dissolved the marriage in May 2010. They were given joint legal and physical custody of the three children that were born of the marriage: Two daughters, G.H and N.H., and a son, M.H. The original plan was split to give both parents roughly the same amount of time for physical custody. In January 2015, Mother filed a Motion to Modify Child Support and to Modify Child Custody. The Mother wanted to modify custody from joint legal and physical custody to sole legal and physical custody. Mother wanted to decrease physical custody of Father to one night a week, some weekends, two weeks in the summer and designated holidays.

In February 2016, the trial court held a hearing on the motions. In December that year, they entered findings of fact a judgment denying Mother’s motion. Mother then filed a motion to reopen evidence and reconsider the custody modification. It was granted only to be re-opened for new evidence since the first hearings. In July 2017, the trial court held another hearing and issued a new judgment incorporating the factual findings from both the previous and the new fact finding in October that year. Mother filed another motion to amend in November 2017. The trial court denied the motion and issued an addendum adding the findings, but not changing the conclusions or order.

The Court states that section 452.410 governs the modification of child custody in two steps; the movant must show: (1) that a change has occurred in the circumstances of children; and (2) that modification is necessary for the best interest of the children. They held that when deciding physical custody modification, they needed to look at changes related to custodial parents’ abilities to care for the children. Mother needed to provide the court all the evidence in record and demonstrate why favorable evidence is dripping with probative value. Instead, Mother merely reargued her evidence. The court also found that the children liked the Father’s new wife; problems at home went away after moving into a larger home; and testimony about abuse seemed colored by mother’s opinions and was not found in any testimony by teachers, counselors, or doctors. The child custody modification was denied and judgment was affirmed.

IV. Property Division

Schutter v. Seibold, 540 S.W.3d 494 (Mo. App. E.D. 2018): Husband and Wife were married in November 2002. Wife filed a petition for dissolution of marriage after they separated in March 2012. A judgment was reached in 2013 which, in regards to division of property, awarded wife $619,389 in marital assets and husband $745,120 in marital assets, but husband was ordered to pay $101,265 to wife to equalize the division. In determining the division of property, the court considered that husband had dissipated $638,360 in marital assets during the parties’ separation. In 2014, the original judgment was amended, but did not affect the division of property. However, the 2014 amended judgment was challenged by both wife and husband in regards to the division of property. Husband challenged the court’s findings concerning his dissipation of marital assets and the court’s valuation and division of marital property, and wife alleged, since the 2014 amendment, she learned of other assets belonging to husband that he had not disclosed. In the 2016 amendment, the court classified, valued, and divided all the parties’ assets and debts taking into consideration husband’s misconduct of not fully disclosing all marital assets. Husband moved to set aside the 2016 amendment, but his motion was denied.

On appeal, husband contended that: (1) the Circuit Court erred in classifying three of his retirement accounts as marital property; (2) the Circuit Court erred in stating values on multiple dates for marital assets in its judgment; and (3) evidence was insufficient to support the Circuit Court’s finding that he possessed an undisclosed bank account worth $200,000. On the first point, husband had 3 retirement accounts, one was a Janus IRA worth $22,775.01, another was a Janney Montgomery Scott Account worth $8,066.58, and the last was an American Century 401(k) worth $26,457.75. The Court of Appeals, agreeing with husband in part, did find that one of the three retirement accounts, the American Century 401(k), was non-marital since it was entirely accrued before the marriage. However, the Court of Appeals agreed with the Circuit Court on all other points finding that there was sufficient evidence to support both the valuations and the undisclosed bank account worth $200,000. The case was remanded to the Circuit Court to set aside the American Century 401(k) as non-marital property but all other points were affirmed.

Hurst v. Hurst, 553 S.W.3d 853 (Mo. App. W.D. 2018): Husband and Wife were married October 5, 1996 and husband filed a petition for dissolution of marriage on September 18, 2015. Prior to trial, the parties could not agree upon the valuation of their marital and non-marital property amongst other things. Both parties brought in expert witnesses to appraise their marital home. Husband’s expert witness appraised their marital home at a value of $396,000, and wife’s expert witness appraised the home at $510,000. Additionally, there was a difference in valuation of household goods in wife’s possession. Wife valued the possessions at $10,000, while husband valued them at $20,000. Since the parties could not reach an agreement, the trial court addressed the valuation themselves and found the marital home to be valued at $300,000 and household goods to be valued at $20,000. The trial court allowed wife to keep the household goods and awarded husband the marital home. Wife appealed.

On appeal, wife contends that the trial court erred in valuing the marital home at $300,000 because the valuation was against the weight of the evidence in that both parties’ experts appraised the home at more than $300,000 and the home was insured for $400,000. Wife also contends the trial court erred in valuing her household possessions at $20,000 because the valuation was against the weight of the evidence that wife valued her possessions at $10,000 and the personal property was the former owner’s property and included in the purchase price of the home. The Court of Appeals agreed in part and found the evidence failed to support the court’s determination that husband’s marital home was valued at $300,000 and remand this point back to the trial court to revalue the property. However, the Court of Appeals disagreed with wife in regards to the household goods in wife’s possession holding that evidence supported the court’s valuation of the possessions at $20,000 and, therefore, affirmed this point.

V. Maintenance

In re Marriage of Schubert v. Schubert, 561 S.W.3d 787 (Mo. App. S.D. 2018): Husband and Wife were married on June 7, 1997. The couple had seven children between the years of 2000 and 2011. Wife worked as a nurse from 1997 to 2009. She began homeschooling their children in 2004, and allowed her nursing license to lapse in 2013. Wife oversaw the vast majority of the children’s care, including their numerous individual extracurricular activities, such as church groups, music lessons, and sports. Wife worked part-time as a daycare worker earning $400 per month. Husband primarily worked as an insurance agent, and also worked at a livestock auction barn. In 2005, the parties began a chicken operation together. The parties initially separated in September 2014 after Wife learned of Husband’s extra-marital affair with a younger woman. Husband and Wife reconciled after Husband reported the affair was over, and Husband and Wife began marriage counseling. During counseling, Wife learned Husband had fathered a child during the extramarital affair and as a result, the parties again separated on May 17, 2015. Wife filed a “Petition for Dissolution of Marriage” on June 22, 2015.

The trial court entered a temporary order on August 28, 2015 whereby Husband was to pay Wife half the costs of the Children’s extracurricular activities as well as half the Children’s medical, dental, and miscellaneous expenses. The parties continued the chicken operation, but Husband would consistently pay himself for more hours than he worked and refused to pay the Children for the substantial amount of work they performed at his insistence. On February 18, 2016, Wife removed herself and the Children from the family home leaving the chicken operation to Husband. Thereafter, Husband consistently violated the trial court’s temporary order of August 28, 2015 by failing to pay Wife half of the Children’s expenses. Wife pleaded with Husband, but to no avail. Recognizing Wife’s dire financial situation, friends, neighbors, and others began giving wife “gifts” in the form of Wal-Mart cards and cash.

Award of maintenance of modifiable maintenance of $2,000 per month was upheld under Mo. Rev. Stat. § 452.335 because the court found that the wife lacked sufficient property to provide for her reasonable needs and was unable to support herself through employment. Moreover, the husband failed to make an effort at accounting for the credited evidence like their comparative earning, duration of the marriage, and capacity of each spouse. Additionally, no explicit findings were made as to the value of the wife’s reasonable needs.

Fox v. Fox, 552 S.W.3d 777 (Mo. App. E.D. 2018): Husband and Wife met online through a dating website. Husband resided in the United States. Wife resided in China with her daughter from a previous relationship. After meeting several times in person, Husband brought Wife to the United States and they married in January 2009. Husband, Wife, and Daughter settled in St. Charles, Missouri. While in China, Wife worked as an assistant to a stockbroker and attended a few night classes in accounting. After moving to the United States, Wife initially was unemployed. Because Wife’s command of English was very limited, she attended English classes at a local community college. Wife later obtained part-time work in an Asian gift shop in 2011, but the shop closed in 2014. She claimed that she struggled to find employment because of her inability to understand English and her physical and emotional instability.

Before marriage, Husband worked for the United States military. After retirement, Husband received a net monthly military pension and disability payment of $1,755. During the marriage, Husband frequently worked overseas for private companies, providing security services for foreign mining interests. He often spent nine or ten months a year in Indonesia. Although Husband experienced a period of unemployment, when employed he averaged an annual salary of $150,000. In 2016, Husband obtained a new security contract paying him approximately $135,000 annually. Both his salary and military pension were deposited in the same Bank of America checking account. After depositing the money, Husband paid the parties’ joint bills and most of Wife’s bills. Husband also regularly transferred money from the Bank of America checking account to Wife’s bank account as her “allowance.” While Husband did not provide Wife with access to his checking and saving accounts and deterred her from acquiring a credit card, he provided Wife with many gifts and expensive vacations.

Husband filed for dissolution of the marriage in May 2015. Soon after, the trial court entered a pendente lite judgment awarding Wife monthly maintenance of $1,600. During the dissolution proceedings, Husband asked the trial court to award Wife no maintenance. Wife requested $3,600 in monthly maintenance. Husband listed his reasonable monthly expenses at approximately $3,000. Wife alleged that her reasonable monthly expenses were $5,115. Husband indicated that his total net income was approximately $14,255.36 during the months that he worked. Wife claimed no amount of regular income at dissolution. Husband acknowledged that he had significant discretionary monthly income.

The trial court entered judgment in September 2016 dissolving the marriage, dividing the parties’ marital property, and awarding Wife $2,600 in monthly maintenance. The trial court rejected Wife’s claimed expenses of $,5115, and determined that Wife’s reasonable monthly expenses were around $4,000. The trial court also found that Husband had sufficient discretionary income to pay maintenance and that Wife had limited income at her disposal. According to the trial court, Wife could only achieve a minimum-wage, full-time job because of her inability to speak English proficiently and her limited job training. Further, the trial court commented that Wife was “not completely settled emotionally or physically to engage in any form of employment above minimum wage and even that is speculative at this point.”

The trial court also addressed the parties’ standard of living. The trial court found that Husband provided a good standard of living throughout the marriage. The trial court reasoned that Wife did not embellish her standard of living because she lacked access to any money other than her monthly “allowance” or Husband’s gifts. The trial court concluded that Wife required maintenance and that Husband had the ability to pay such an award. After considering the statutory factors, the trial court ordered Husband to pay Wife $,2600 monthly in modifiable maintenance to contribute to her reasonable needs of $4,000.

The maintenance award of $2,600 a month was appropriate under Mo. Rev. Stat. § 452.335.2 because the wife struggled with English, lacked the means to earn sufficient income to satisfy her reasonable needs and either worked part-time or was unemployed throughout the marriage. The husband had significant disposable income and completely controlled the parties’ finances. The record failed to show the trial court erred in awarding the wife the accrued equity in the residence under Mo. Rev. Stat. § 452.330.1 because the husband deposited his income into his checking account, which commingled separate and marital property.

Sulkin v. Sulkin, 552 S.W.3d 793 (Mo. App. E.D. 2018): Husband and Wife were married on June 22, 1994. Wife filed her petition for dissolution of marriage on April 23, 2015. Husband answered and filed a cross-petition for dissolution on June 8, 2015. Wife then filed her amended petition for dissolution of marriage on August 5, 2016. On November 2, 2016, following a three-day bench trial, the trial court issued a judgment of dissolution of marriage.

Husband filed a post-trial motion to set aside, amend, clarify the judgment, or grant a motion for new trial asserting that the trial court erred in ordering him to pay Wife $5,000 per month in maintenance. The trial court heard arguments related to Husband’s post-trial motion and took the matter under submission on January 9, 2017. On January 23, 2017, the trial court entered its Amended Judgment of Dissolution of Marriage finding Wife’s reasonable expenses to be $5,000 per month. The trial court then imputed potential employment income to Wife in the amount of $2,667 per month, and ordered Husband to pay Wife $5,000 per month in maintenance. Husband appealed. In Husband’s sole point on appeal, he argued the trial court erred in ordering him to pay Wife $5,000 per month in maintenance.

During the dissolution proceedings, Wife requested the court to award her $7,500 per month in maintenance. Wife submitted to the trial court statements of her income and expenses, with the most recent statement including monthly expenses totaling $9,262. Additionally, the court heard testimony regarding Wife’s claimed expenses. During such testimony, Wife acknowledged the court could properly find the amount of Wife’s reasonable needs was lower than her stated expenses if it decided to subtract amounts claimed for vacations and the children’s expenses.

Although Wife had earned a master’s and a bachelor’s degree, she had not worked outside the marital residence since 1996. Wife received income from one of the two businesses Husband owned during the marriage, but the trial court found Wife provided no services for the business. During his testimony, Husband’s vocational expert opined, based on Wife’s background including her lack of experience in the field in which she received her degrees, that Wife could earn between $28,000 and $36,000 per year working in “a non-degreed position.”

Based on this, the trial court decided the appropriate amount for Wife’s reasonable monthly expenses was $5,000. In accordance with the testimony of Husband’s vocational expert, the court imputed income to Wife in the amount of $32,000 per year, or $2,667 per month, as her potential employment income. The trial court then declared, “Having previously found Wife’s reasonable expenses to be approximately $5,000[,] she is in need of maintenance to meet these expenses. After considering the imputed salary, [t]he [c]ourt awards Wife $5,000 per month in maintenance.”

The trial court erred in ordering the husband to pay the wife $5000 per month in maintenance under Mo. Rev. Stat. § 452.335.1 (2000) because it did not account for the potential employment income the trial court imputed to the wife in the amount of $2,667 and it exceeded the wife’s reasonable monthly expenses of $5,000 by $2,667. As such, the judgment was reversed and remanded.

Richardson v. Richardson, 564 S.W.3d 711 (Mo. App. W.D. 2018): Husband and wife were married on August 26, 1989, but separated June 30, 2012. On March 31, 2014, a judgment was entered ordering husband to pay wife $4,450.00 per month in maintenance that was to be reduced to $2,850.00 per month beginning on the month following wife receiving the monthly payments based on her portion of husband’s military pension. March 25, 2016, husband filed a Motion to Modify Decree of Dissolution for Reduction of Maintenance. Husband claimed a substantial and continuing change in circumstances had occurred in that: (1) wife had sufficient opportunity to gain employment; (2) wife’s home constituted an unreasonable expense that was not a reasonable need; and (3) the children of the parties no longer resided with wife.

The trial court found wife was capable of gainful employment and had made no good faith effort to obtain self-sufficiency. Following this finding, the trial court recalculated maintenance by imputing income to wife for 40 hours per week at minimum wage for a monthly income of $1,335. The trial court, however, did not did not impute the income wife received from husband’s military pension, despite wife having previously included it in her income. The court ordered that spousal maintenance due from husband to wife should be reduced to $1,960.00 per month.

Husband appealed claiming that the monthly benefits wife received from the military pension should have been included in the maintenance calculation. The Court of Appeals agreed finding that the modification court erroneously did not consider the pension benefits as income to wife in determining her ability to meet her reasonable needs. The Court of Appeals reversed and remanded for the trial court to recalculate the amount of maintenance, if any, to be paid from husband to wife taking into consideration the pension benefits.

Archdekin v. Archdekin, 562 S.W.3d 298 (Mo. 2018): Husband appeals from a 2013 trial court’s final judgment for maintenance of $1,500 per month retroactive to November 1, 2011 based off of an interlocutory judgment prior to division of parties’ properties. Husband asserts that (1) the maintenance awarded in the interlocutory judgments was not final and was, thereby, erroneous because it was made prior to the final division of the parties’ property and awarded maintenance retroactively; and (2) the trial court erred in determining that Wife was entitled to maintenance because its determination occurred prior to the final division of the parties’ property.

The Supreme Court of Missouri agreed with Husband’s first point that the Interlocutory Judgment was not final because it did not order a complete distribution of marital property. However, the distribution of property was not material and made no significant change in the award of, and therefore, the amount of maintenance awarded was not erroneous. The Court determined that the retroactive award of maintenance was erroneous because a retroactive maintenance award is not authorized under Section 452.335.

As to Husband’s second point, the Court notes that the trial court erred by awarding maintenance as part of its interlocutory order because Section 452.335 authorizes maintenance only as part of a final judgment disposing of all property. However, the Court still upheld the award relying upon the standard of review that a party is not entitled to reversal of a judgment on appeal unless the error is material. Here, any errors that were made were not material and, therefore, do not require reversal of the maintenance award. The award of retroactive maintenance was reversed and in all other respects affirmed.

Taylor v. Taylor, No. ED 106022, 2018 WL 6787062 (Mo. App. E.D. Dec. 26, 2018): Wife appeals from trial court’s judgment awarding non-modifiable maintenance in amount of $2,500 per month limited to thirty-six months. Wife was a licensed attorney, but had not worked full time since 1993, when she became the primary caretaker of their two children. In 2013, Wife’s earnings were a net loss of -$4,622. In 2014, Wife earned an income of $204 and had no reported income in 2015 or 2016. Wife had monthly expenses of $38,519 per month – $30,000 of which results from her residence of a fourteen acre barn, animals, and six riding horses. The court ordered the property to be sold as soon as practicable and the net proceeds to be divided 60/40% between Wife and Husband. A vocational expert testified that Wife could be employed in six months earning between $70,000 and $100,000, and therefore the trial court found that Wife would be self-supporting in less than the three-year term of maintenance.

On appeal, Wife contends that (1) the trial court erred in awarding non-modifiable maintenance for a duration of thirty-six months because there is no substantial evidence in the record of an impending change in Wife’s financial circumstances; and (2) the trial court erred in limiting the amount of Wife’s maintenance to $2,500 per month because that amount is unjust and insufficient under Section 452.335.2. The Court of Appeals notes that maintenance must be based on evidence from the parties’ existing circumstances, not speculative, future conditions, and it should only be limited when there is substantial evidence that the financial condition of the parties is subject to impending change. The Court of Appeals agrees with the first point reasoning that the conclusion that Wife would be able to meet her reasonable needs is entirely speculative, and that when relevant events are uncertain to occur, maintenance should be modifiable. The Court of Appeals also agrees with the second point that $2,500 is insufficient to cover Wife’s reasonable monthly expenses considering Husband has a gross monthly income of $42,000 and has the ability to meet his needs while also meeting the needs of Wife through maintenance. Both points were reversed and remanded to the trial court with instructions to enter an order for modifiable maintenance, without the thirty-six month limitation, and to review the amount of the monthly maintenance award.

Griffith v. Griffith, No. ED 106363, 2019 WL 347167 (Mo. App. E.D. Jan. 29, 2019): During the marriage, Wife worked for Husband’s residential construction company. Wife had two children from a prior marriage, a son (“Son”) and a daughter (“Daughter”), but the parties had no children together. In 2012, Son moved to California to pursue acting career, and in 2015, Wife and Daughter moved to California also to pursue Daughter’s modeling career. While Wife and children were in California, Husband covered all costs while he stayed at their primary residence in St. Louis County. In 2016, Husband could no longer afford to maintain two residences and Wife moved back to Missouri.

In 2017, Wife filed a Petition for Dissolution of Marriage along with a motion for an Award of Temporary Maintenance and requested $12,600 per month. Wife claimed monthly expenses of $9,389.23 and Husband claimed monthly expenses of $11,536.49. After filing for dissolution, Wife’s employment at the construction company ended and she moved back to California with Daughter, while Son remained with Husband. The trial court issued its judgment for Husband to pay temporary maintenance of $8,000 per month to Wife and the court denied Husband’s motion for a new trial.

On appeal, Husband contends that the trial court erred based on two points: (1) that Wife did not establish that her reasonable needs exceed her ability to earn income by that amount of maintenance, but instead sought an amount that approximated what she considered to be her standard of living in California, without consideration of her ability to earn income; and (2) that with monthly income slightly in excess of $8,000, he does not have the ability to pay that amount of maintenance to Wife and meet his reasonable needs of more than $11,000 per month.

The Court of Appeals disagrees with Husband’s first point by saying that there was substantial evidence to support the finding that Wife showed a need for maintenance and that she was not yet able to support herself through appropriate employment. The Court of Appeals relies on a detailed amended statement showing monthly rent, utilities, car and living expenses totaling to $10,000. The court also notes that there was no abuse of discretion in the finding that Wife could not yet provide for her needs through appropriate employment since the motion for temporary maintenance was heard only a few months after her move to California to set up her household, and her employment ended when she filed for dissolution of marriage. The Court of Appeals agrees with and grants Husband’s second point noting that the court is required to review the circumstances of the parties and decide what may justly be required of the paying spouse. The evidence shows Husband’s annual income was $99,000 and his temporary maintenance awards to $96,000 per year. The court notes that $8,000 per month exceeds Husband’s capacity to provide and will deprive him of the ability to satisfy his reasonable needs. The judgment was affirmed in part, reversed in part, and remanded for the trial court to reevaluate the temporary maintenance award.

VI. Legislation

There has been a movement toward shared parenting nationwide. This movement had a recent impact in Missouri. Much of this movement is based on psychological research that has been released. Of note, in 2012, Edward Kruk, Ph.D., Associate Professor of Social Work at the University of British Columbia, wrote an article in Psychology Today about co-parenting and high conflict. In a brief synopsis, he says there is a general consensus between legal and mental health professionals alike, that when divorcing parents are unable to come to an agreement on shared parenting arrangements for their children, and they remain caught up in a contentious relationship, their children suffer.

Kruk pointed out that the belief was that when children remain in the middle of their parents’ conflict, and the exposure is ongoing, the effect on their children can be extremely damaging. This is why there was often a legal presumption against shared parenting in high conflict cases in many jurisdictions. As a result, parents were implicitly encouraged to seek sole custody by using high-conflict as a reason for doing so. In some cases, it was his belief that parents were often overstating the extent of high conflict in order to ensure they received sole custody over shared parenting.

For many years, research supported the view that shared parenting in high conflict relationships was harmful to children. However, previous research indicated that the damage was more likely to occur when the parents exchanged children at pick-up times. To put it another way, children were exposed to their parents’ fighting at times of exchange. When the frequency of the exchanges is lessened and the children are exposed to less conflict, the thought was that the negative effects go away.

According to Kruk, the research actually showed the opposite. In other words, not only is shared parenting not harmful in high conflict situations, but shared parenting can get rid of the harmful effects of high conflict. Relying on a 2002 study, Kruk points out the benefits to shared parenting that exist regardless of parental conflict. Problems with parental conflict are likely to arise when fathers lose contact with their children in high parental conflict situations. It was later concluded in 2007, from children’s own perspective, that shared parenting is actually beneficial to children regardless if they are in a high or low conflict situation.

Kruk goes on to say that sole custody is likely to create conflict because it promotes an adversarial “winner-take-all” sole custody system where hostility runs high when parents become fearful of losing their children. As Kruk points out, half of first-time violence occurs after separation. In addition, studies indicate that when fathers have limited contact with their children, they become more hostile toward their ex-wives. In sum, it was Kruk’s view that sole custody arrangements lead to more conflict over time whereas shared parenting arrangements lead to less conflict over time.

The momentum is presently behind Kruk’s viewpoint nationwide. Many states have moved towards making shared parenting their norm. However, there are others out there who do not accept the viewpoint of Kruk that shared parenting is beneficial. For example, Dianne Post, J.D./M.A., attorney at Arizona Coalition against Domestic Violence, in her article entitled, “Arguments against Joint Custody,” published in the Berkeley Journal of Gender, Law & Justice, argues that several studies indicate that, “the emotional health of children who have been the subject of joint custody arrangements [have] deteriorated.” Additionally, Post sees shared parenting as nothing more than a design “to protect the divorcing father’s rights rather than the best interests of the children.” Post argues “Fathers are often economically motivated” and use joint custody as a way to reduce their child support payments, retain control, and get rights with no responsibility; fathers tend, in joint custody arrangements, “to leave the children with their mother during the father’s physical custody time.” These tendencies, according to Post, “cause psychological harm to the children and inconvenience to the mother” who is providing the same amount of care as if she had sole custody with less financial support.

Based in large part on literature by Kruk and others professing similar views , Missouri moved, significantly, toward making shared parenting the norm in 2016 through House Bill No. 1550, which was signed into law by Former Governor Nixon. The hope of this bill was to make fifty-fifty custody, or shared parenting, more likely in the State of Missouri. This made significant changes to RSMo. § 452.375 as follows:

  • Creates guidelines for parenting plans that “maximize to the highest degree the amount of time the child may spend with each parent;”
  • Requires courts to disclose why shared parenting wasn’t awarded if another arrangement is ordered;
  • Requires courts to provide written findings and conclusions in a custody case, which makes the case appealable if a party disagrees with the judgment.
  • Specifies that courts can’t “presume that a parent, solely because of his or her sex, is more qualified than the other parent;”
  • Prohibits local courts from establishing their own rules, such as having a default-parenting plan.
  • Requires this language in custody judgments after August 28, 2016: “In the event of noncompliance with this order, the aggrieved party may file a verified motion for contempt. If custody, visitation, or third-party custody is denied or interfered with by a parent or third party without good cause, the aggrieved person may file a family access motion with the court stating the specific facts that constitute a violation of the custody provisions of the judgment of dissolution, legal separation, or judgment of paternity. The circuit clerk will provide the aggrieved party with an explanation of the procedures for filing a family access motion and a simple form for use in filing the family access motion. A family access motion does not require the assistance of legal counsel to prepare and file.”

Ultimately, this legislation was in many ways a dagger to the parenting plans that used to be found in courtrooms throughout the state based on the decision in Sigenthaler v. Siegethenaler, that largely resulted in an every other weekend schedule for many non-custodial parents, a night during the week, holiday time and additional time in the summer. 761 S.W.2d (Mo. App. 1988).

Even after House Bill 1550 in 2016, there are efforts in Missouri to move the needle even further by making fifty-fifty custody a rebuttable presumption. In April of 2018, the Missouri House of Representatives passed HB 1667 by a vote of 137-7. The goal of the legislation was to make equal custody a presumption in Missouri. As one individual stated, “The legislation is a follow-up to an ‘equal parenting bill,’ HB 1550, that become law in 2016 that supporters say is not being properly enforced in some courts.”

Ultimately, this legislation never came up for a vote in the full Senate in 2018. However, the bill has not died. Known as Senate Bill 14, this legislation did pass the Seniors, Families and Children’s Committee in the Missouri Senate on January 30, 2019. However, it was since been on the informal calendar for perfection and did not come up for a full vote in the Senate before the legislative session ended in 2019. It will be fascinating to see whether this legislation were to ever become law in the future. If this legislation were to become law, it could be an enormous development in Missouri family law.

The exact language of the proposed legislation is as follows:

There shall be a rebuttable presumption that an award of equal or approximately equal parenting time to each parent is in the best interests of the child. Such presumption is rebuttable only by a preponderance of the evidence in accordance with all relevant factors including, but not limited to, the factors contained in subdivisions (1) to (8) of this subsection. (Emphasis added).

With a rebuttable presumption in place, family courts would likely have a difficult time not ordering equal or approximately equal time in the majority of their cases. For judges who are not already doing this, this would result in a significant change.

Edward Kruk, Ph.D, Co-Parenting and High Conflict, Psychology Today (May 15, 2012), https://www.psychologytoday.com/us/blog/co-parenting-after-divorce/201205/co-parenting-and-high-conflict (last accessed February 10, 2019).



















Dianna Post, Arguments against Joint Custody, 4 Berkeley J. Gender L. & Just., 316, 317 (1989), https://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=1033&context=bglj.

Id. at 316.



Linda Nielson, Shared Physical Custody: Summary of 40 Studies on Outcome for Children, Journal of Divorce & Remarriage, https://static1.squarespace.com/static/5154a075e4b08f050dc20996/t/54887e9fe4b04c36dc7d7873/1418231464149/40+studies+nielsen+.pdf (last accessed February 10, 2019).

Alisha Shurr, Shared parenting bill moving through legislature, https://themissouritimes.com/50574/shared-parenting-bill-moving-through-legislature/ (last visited February 10, 2018).


Establishes a rebuttable presumption that child custody arrangements that award equal parenting time are in the best interest of the child, MO H.B. 1667, 99th Gen. Assem. (2018). <https://legiscan.com/MO/bill/HB1667/2018>

2019 Bill Text MO S.B. 14, <https://legiscan.com/MO/bill/SB14/2019>


An Act, MO S.B. 14, 100th Gen. Assem. (2018). <https://www.senate.mo.gov/19info/pdf-bill/intro/SB14.pdf>

Establishes a rebuttable presumption that child custody arrangements that award equal parenting time are in the best interest of the child, MO H.B. 1667, 99th Gen. Assem. (2018). <https://legiscan.com/MO/bill/HB1667/2018>

2019 Bill Text MO S.B. 14, <https://legiscan.com/MO/bill/SB14/2019>

An Act, MO S.B. 14, 100th Gen. Assem. (2018). <https://www.senate.mo.gov/19info/pdf-bill/intro/SB14.pdf>


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