Legal Summary: Motions in Divorce – With Examples

1. A temporary restraining order may be issued by the court at the request of the plaintiff without notice to the other party only if the plaintiff can show that immediate and irreparable injury or loss will result before the opposing party can be heard and only if it is shown that efforts have been made to notify the other party. A temporary restraining order issued without notice is good for only ten days, unless extended by the court.

2. A preliminary injunction then may be issued after appropriate notice to the defendant and after a hearing. Both the temporary restraining order and the preliminary injunction are intended to preserve the status quo until a full hearing can be had on the merits of the case.

a. Neither a temporary restraining order nor a preliminary injunction can be issued until the plaintiff posts a bond approved by the court for the payment of damages and costs if the temporary restraining order or preliminary injunction is later dissolved.

3. After a final hearing, a permanent injunction may be issued. An injunction must be specific in its terms, and is binding only on the parties, their officers, agents and employees and persons in active concert or participation with the parties who have actual notice of the injunction.

Under the Federal Rules of Civil Procedure, injunctions and restraining orders can be entered under Rule 65. Be sure to check your local rules, statutes and case law in terms of the requirements of a Temporary Restraining Order in other states. The requirements can vary. In some instances, a party might even seek a Preliminary Injunction and/or a Permanent Injunction, although these are not common in a divorce context.

A petition of habeas corpus can be used in some cases to stop a parent from fleeing with a child after divorce or custody proceedings have begun. The petition of habeas corpus is a way for a party to get the child ordered back to the state where one parent has fled with a child. It is often important for a party to take quick action in these instances to ensure jurisdiction is preserved and visitation rights are maintained.

There are samples of both a TRO and petition of habeas corpus in the materials at the end of this packet.

1. Protective Orders

A party may be enjoined from “transferring, encumbering, concealing, or in any way disposing of any property except in the usual course of business or for the necessities of life … .” If such an order is obtained, a party may also obtain an order that will require the restrained party to account for all extraordinary expenditures made after the order is entered. The affidavit that accompanies this motion should clearly specify the factual basis for the motion. Statements that are mere suspicions or fears are not sufficient. Sufficient facts should be alleged and proved “that a transfer is actually threatened and that it would prejudice a valid claim to the property by the moving party.” Local court rules also explicitly prohibit this in many counties. For example, the St. Louis County Circuit Court specifically does so in Local Rule 68.3.

A party may be excluded from the family home or from the home of the other party upon a showing that physical or emotional harm would otherwise result. Where there have been past acts, or it may appear there will be future acts of violence or harassment, a party may be enjoined from harassing, abusing, molesting, or disturbing the peace of the other party or of any child. An ex parte restraining order may be issued if irreparable injury would result to the moving party if an order were not issued until the time for answering had elapsed. This order should state the date on which a hearing will be held, and when a party may file an answer to this ex parte motion.

The adoption of the Adult Abuse Act created a very powerful tool for those adults who have been abused or have been threatened with abuse by a spouse or other adult household member. An ex parte order of protection is available upon a showing that any immediate and present danger of future abuse exists. Temporary relief available under the Act includes:

• Restraining the respondent from abusing, threatening to abuse, molesting, or disturbing the peace of the petitioner;
• Restraining the respondent from entering the premises of the dwelling unit of petitioner when the dwelling unit is:

• Jointly owned, leased, or rented and jointly occupied by both parties;

• Owned, leased, or rented by petitioner individually;

• Jointly owned, leased, or rented by petitioner and a person other than respondent; or

• Generally occupied by the petitioner and a person other than the respondent, provided, however, that the respondent has no property interest in the dwelling unit; or

• Issuing a temporary order of custody of minor children, where appropriate.

If a temporary order of protection is granted by the court, in Missouri, it will terminate upon the dissolution of marriage or the legal situations, except for provisions that require a respondent to attend court-approved counseling program or that enjoin the respondent from committing acts of domestic violence against the petitioner while petitioner rightfully remains in a dwelling.

It is important for parties to check their state rules, statutes and case law for the requirements in any jurisdiction. The procedure and process can vary.

1. Temporary Injunctions

Pre-trial motions can be filed in between the time when a divorce petition is filed and when the final hearing on the divorce occurs. Request for temporary orders are often filed simultaneously with the divorce petition. There are both advantages and disadvantages to filing pre-trial motions. The filing of pre-trial motions can increase the cost of divorce, which can lead to a financial burden for the party with fewer resources. On the other hand, the advantage to pre-trial motions is having some things decided temporarily on important issues that otherwise need to be resolved. In other cases, important discovery may need to be obtained that can only be obtained through filing motions to compel and/or motions for sanctions. A motion in limine can also be warranted in many cases as it relates to the presentation of evidence at trial. There are also temporary motions that may need to be considered, like a motion for a guardian ad litem, motion for a protective order and countless other motions allowed by rules of civil procedure. Temporary orders can also lead to settlement or at least for you to get a sense of what the opposing party is like. Depending on the jurisdiction, pre-trial temporary motions may not be called “temporary orders”; some jurisdictions call them ” pendente lite” or “interlocutory” orders. Temporary orders should be filed in the same county that the divorce petition has been filed. A pendente lite order for example can help resolve matters while a divorce is pending such as the custody and support of the children, spousal support/alimony, payment of property and debts, temporary attorney’s fees and other important issues.

1. Emergency Motion for Sole Custody

The laws in states can vary as to the ability to get an emergency motion for sole custody heard. The general statute in Missouri regarding temporary custody states, “a party to a custody proceeding may move for a temporary custody order. The motion must be supported by an affidavit. The court may award temporary custody after a hearing or, if there is no objection, solely on the basis of the affidavits.” Also, if a proceeding for a dissolution of marriage or legal separation is dismissed, all temporary custody orders are vacated unless the court, after a hearing, believes that circumstances and the best interest of the child align with keeping a custody decree. So, if one parent asks for temporary custody of the child during the divorce process, they must do so with an affidavit in support, and the court can only rule based on affidavits if the other party does not wish to present evidence inconsistent with the affidavit.

A court may choose to enter a temporary custody order or support order pendente lite without the necessity of a formal hearing. The order is entered upon the filing of the application and effective after service. But, the order cannot be executed until thirty days after service. Suggestions and affidavits can be filed in opposition to the motion for the court order. An oral hearing may be requested on issues that arise by the motion pendente lite, but the request will not suspend or delay of the obligations and rights under the order pendente lite. While this process applies to couples in divorce proceedings, it does not explicitly apply to unmarried couples that are terminating their relationship and have children.

The same process applies to asking for temporary child support, where a request must be accompanied by an affidavit, and the respondent may choose to demand a hearing to present evidence inconsistent with the affidavit . In addition to the stipulations set forth in asking for temporary custody, a temporary support motion must also have the amount requested backed by factual basis for that amount. When determining custody of the child, even temporary custody, the court must look factors, including:

• The wishes of the child’s parents, as well as the proposed parenting plan submitted by both parents;
• 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;
• The interaction and interrelationship of the child with parents, siblings and other persons that may significantly affect the child’s best interests;
• Which parent is more likely to allow the child frequent, continuing and meaningful contact with the other parent;
• The child’s adjustment to the child’s home, school and community;
• The mental and physical health of all individuals involved, including any history of abuse;
• The intention of either parent to relocate the principal residence of the child; and
• The wishes of a child as to the child’s custodian.

Filing for a child order of protection may also be an option in certain states where child abuse or domestic violence is taking place. In certain instances, this is the better path for an emergency order because a hearing may be required for a pedente lite or temporary custody order by certain courts or judges.

It is important for parties to check their state rules, statutes and case law for the requirements in any jurisdiction. The procedure and process can vary.

II. Preliminary/Pendente Lite Motions- Factors to Consider

1. Alimony and Support

Filing Procedures: The laws can vary by state, but in many states, the purpose behind temporary spousal maintenance is to maintain the living conditions and standards of both parties as close to life prior to the divorce action as possible. The party filing a motion for temporary spousal maintenance may have to prove that they are financially incapable of maintaining the same standard of living as they enjoyed while cohabitating in the marital home. In other states, the party seeking maintenance may have to prove that they are unable to meet their reasonable needs based on their income to be successful on a claim for maintenance. The court has wide discretion on the amount of temporary spousal maintenance to order by balancing the need of the spouse seeking support with the ability of the other spouse to pay temporary maintenance and the standard of living during the marriage. Many jurisdictions allow for temporary spousal maintenance as “transitional alimony” for a brief period of time to help the spouse in need of support to transition to independence post-divorce. Please note as well that some states still refer to spousal support as alimony, while others refer to it as spousal maintenance, spousal support and maintenance, and that the laws can vary significantly by state.

1. Custody and Parenting

The general statute in Missouri regarding temporary custody states, “a party to a custody proceeding may move for a temporary custody order. The motion must be supported by an affidavit. The court may award temporary custody after a hearing or, if there is no objection, solely on the basis of the affidavits.” Additionally, if a proceeding for a dissolution of marriage or legal separation is dismissed, all temporary custody orders are vacated unless the court, after a hearing, believes that circumstances and the best interest of the child align with keeping a custody decree. Thus, if one parent asks for temporary custody of the child during the divorce process, they must do so with an affidavit in support, and the court can only rule based on affidavits if the other party does not wish to present evidence inconsistent with the affidavit. However, the granting of temporary custody by affidavit is extremely rare. Generally, a hearing is required unless the parties can enter an agreement by consent.

In Cole County, Missouri, as an example, a court may choose to enter a temporary custody order or support order pendente lite without the necessity of a formal hearing per local rules. The order is entered upon the filing of the application and effective after service. However, the order cannot be executed until thirty days after service. Suggestions and affidavits can be filed in opposition to the motion for the court order. An oral hearing may be requested on issues that arise by the motion pendente lite, but the request will not suspend or delay of the obligations and rights under the order pendente lite. Please be sure to see the local rules in your locality.

The same process applies to asking for temporary child support where a request must be accompanied by an affidavit, and the respondent may choose to demand a hearing to present evidence inconsistent with the affidavit. In addition to the stipulations set forth in asking for temporary custody, a temporary support motion must also have the amount requested backed by factual basis for that amount. When determining custody of the child, even temporary custody, the court must look factors, including:

• The wishes of the child’s parents, as well as the proposed parenting plan submitted by both parents;

• 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;
• The interaction and interrelationship of the child with parents, siblings and other persons that may significantly affect the child’s best interests;
• Which parent is more likely to allow the child frequent, continuing and meaningful contact with the other parent;
• The child’s adjustment to the child’s home, school and community;
• The mental and physical health of all individuals involved, including any history of abuse.
• The intention of either parent to relocate the principal residence of the child; and
• The wishes of a child as to the child’s custodian.

Missouri statutes also indicate that temporary child support can be ordered in paternity cases: “The court shall enter a temporary order requiring the provision of child support pending the final judicial determination if there is clear and convincing evidence establishing a presumption of paternity pursuant to section 210.822. In determining the amount of child support, the court shall consider the factors set forth in section 452.340.”

It is important for parties to check their state rules, statutes and case law for the requirements in any jurisdiction. The procedure and process can vary.

1. Exclusive Use of Marital Residence

During divorce proceedings, one party may ask a court to grant temporary exclusive occupancy of the marital home. One reason a party may be granted exclusive rights to the marital home is to give that party a place safe from physical or emotional abuse. In general, if there are no special circumstances, a court will treat the marital home as any other asset to be split among the parties. One of the most common special circumstances is if there is a minor child that will be harmed by losing his family home, especially at the same time as the rest of his family is breaking down. Another situation where a court may see fit to grant temporary exclusive control of the marital assets is when one spouse is disabled. A disabled spouse will have a difficult time finding, affording and adapting to a new residence, especially since it is likely that the marital home has already been modified to the specific disability. Further, a special situation that may occur is that one spouse has abused the other during the marriage. The courts will want to keep the parties apart in order to keep the abused party safe. In these instances, the burden will fall to the abuser to find a new residence and leave the marital home as a refuge of sorts to the abused. Other situations that may occur that will lead to the granting of temporary exclusive rights to the marital home during divorce proceedings include one party needing the home to maintain their business set up in the house, and an already established third party, like an elderly parent or disabled relative, that cannot be easily moved from the house. These temporary orders allowing exclusivity of the marital home will become void when the marriage is officially dissolved in favor of a permanent ruling by the court.

1. Fees

A court may choose to grant attorney fees prior to the end of the marriage to provide support for the spouse that needs it, and to do so at the expense of the spouse that can afford to provide it. The court can order a party to pay a reasonable amount for the cost to the other party of maintaining or defending any proceedings and for attorney’s fees, including sums for legal services rendered and costs incurred prior to commencement of proceeding and after entry of a final judgment. In a pendente lite action, the court can award attorney fees on account, and these fees are within the trial court’s discretion. In Costley v. Costley, the husband was awarded only twenty-three percent of the marital assets, a large portion of the marital debts, and had to pay child support. In addition to all of this, he also had to pay for the wife’s attorney fees, and the court ruled that this, even in concurrence with all of the other rulings, was still soundly in the discretion of the trial court. If asking for attorney fees or other legal related fees, counsel should be prepared to describe to the court in detail the attorney fees and costs occurred to date, and should provide a reasonable schedule as to what the anticipated attorney fees and costs will be, including things such as expert witnesses and appraisals.

Examples: Thirty-six states have recognized that trial courts have the discretion to award prospective attorneys fees in order for a party to be able to proceed with, or defend, a divorce action. For example, in Arkansas the court in Slocum v. Slocum, held that the trial court did not abuse its discretion in awarding the wife $400 for attorney fees. In order to collect for the attorneys fees prior to the conclusion of the divorce action the wife had to prove 1) that there is a marriage, 2) a probable cause for the divorce, or valid defense, 3) her inability to support herself and defend or prosecute the action, and 4) her husband’s ability to support her.

III. Creatively Utilizing Discovery/Evidence Motions

1. Motion to Compel Discovery/Order of Compliance

Attorneys will need to use discovery tools creatively in order to assess the strengths and weaknesses of their client’s case in order to create the most effective strategies throughout litigation. At times, opposing counsel may be uncooperative or fail to provide necessary discovery materials. At that time, the party seeking discovery can request that the court issue an order compelling the other party to comply with discovery and produce the requested information. If the motion is granted, the court will conduct a hearing to determine whether attorney fees and other costs can be awarded to the movant. Additionally, the court can decide to strike pleadings, dismiss parts or the whole of the entire action, strike evidence or testimony as part of sanctions against the noncomplying party. However, it is important to note that

Although a complete failure to respond is the clearest case of willfulness, incomplete or evasive answers have been considered willful violations where the responding spouse simply intends to frustrate discovery. On the other hand, the court may not drastically penalize a spouse who makes a good-faith attempt to provide the requested information, even if the answers are incomplete. Utilizing a motion to compel for is important as it puts the court on notice to the noncomplying party’s refusal to comply with their discovery obligations. These motions allow the court to resolve discovery disputes by ordering compliance or imposing discovery sanctions on the other party that are favorable for your client. Additionally, these motions can create an impression that the opposing party is sloppy or unethical when they fail to meet their discovery obligations. Moreover, seeking consequences to another party’s failure to respond can save time and expenses on the case.

1. 1. Motions in Limine

There are multiple reasons for utilizing motions in Limine, but we will try to address the use of the motion authentication and admission of evidence, as well as keeping your opponent’s evidence out. There are five main objectives in using a motion in Limine.

The first objective of using the motion in Limine is to isolate the potentially prejudicial evidence from the jury. The idea is to preserve neutrality in a proceeding by preventing any reference or inquiry into materially prejudicial evidence. Attorneys should use creativity and knowledge to anticipate the potential areas of prejudice that the opposing party will attempt to target. The second objective in using the motion in Limine is discovering your opponent’s case. The motion can be used to probe any specific facts that may be important to the opposing party’s case. By making a pre-trial motion on a vulnerable evidentiary area, the attorney can force opposing counsel to disclose what prejudicial evidence they intend to offer, as well as the legal theory they intend to rely on as well. The third objective in using a motion in Limine is to force your opponent to make elections. Because the opportunity to present certain evidence during trial may be foreclosed by a motion in Limine, the opposing attorney is forced to make evaluations and elections regarding the evidence they choose to present and when exactly to present it. Depending on the strength of their entire case, a decision not to resist the motion and not use the prejudicial evidence at trial may spring from a sense of “fair play.” Conversely, the attorney may become so aggressive and insistent about his right to use the prejudicial evidence, that he might commit reversible error at the trial by presenting material that he might otherwise not have offered. Any explanation by the opposing counsel of relevancy of the evidence or the purpose for which it is being offered can be considered a limiting commitment, and any use of that evidence at trial for other purposes will afford the movant an opportunity to argue unfair surprise, to restate his contentions in prejudice, as well as to obtain exclusion of the evidence at that time.

The fourth objective in using motions in Limine is to preserve the record for appeal. Whichever way the court rules, the attorney urging prejudice is in a relatively strong position when he initiates his resistance to the prejudicial matter through a pre-trial motion in Limine. A favorable prohibitive order will indicate that a judge at the trial level concluded that the evidence was so inflammatory that its very mention should be suppressed to ensure a fair trial. Thus, any direct or indirect violation of the order will enable moving counsel to argue more persuasively on appeal that reversible error resulted. Or, if the motion is denied, counsel can argue that the trial was tainted from the start by the green light given by the trial judge to opposing counsel to parade prejudice before the jury.

The last objective in using a motion in Limine is to obtain a favorable outcome or settlement offer. Success in this motion can aid counsel to acquiring more favorable terms than it might have been able to obtain before trial. The plaintiff and defendant in a civil proceeding may find that the outcome of a hearing on a motion in Limine will supply the leverage needed to produce a settlement between the parties. Depending on whether the motion is granted or denied, the parties’ valuation of their respective cases will be affected accordingly.

Now that we have established the objectives in using the motions in Limine, we will discuss the types of motions. The first type of the two motions is a prohibitive motion. A pretrial prohibitive form may either be absolute or in a preliminary form. The absolute form prohibits a party from offering and mentioning the offending evidence at trial in any way. It is in fact and in effect, a final ruling of the inadmissibility of potentially prejudicial evidence. The preliminary order prohibits the party from offering or discussing the prejudicial proof in front of the jury at trial unless the matter is first taken up with the court in chambers and the court rules that it is admissible. In contrast to the prohibitive motion, which seeks a judicial declaration that certain evidence expected to be offered by an adversary is inadmissible, the permissive motion is made by the party proposing to offer sensitive evidence and seeking a pre-trial determination that the evidence is admissible under the circumstances of the case. By submitting possibly prejudicial evidence prior to judicial scrutiny through a permissive motion, the attorney who proposed the evidence may avoid committing reversible error at trial. It should be noted that a motion in Limine is not a substitute for a summary judgment motion, nor should it ordinarily be employed to choke off an entire claim or defense.

The motion can also be used to address the excessive quantum of proof. Counsel can often use this motion to force his adversary to scale down the quantity of evidence he intends to offer in proving an element of the case. If the trial judge can be convinced that a large amount of proof would be of limited use in comparison with the amount of trial time it would require, or that undue emphasis may unduly exaggerate the importance of a particular issue, he may grant the motion.

The motion can also be applied to prejudicial documents. The court will often require the parties to a civil proceeding to exchange lists of the documents they propose to offer as evidence at trial. It may also require that any objections to the admissibility of these documents be made by a certain date so that the tentative pre-trial rulings based on the parties’ descriptions of the document might be made. Doing this gives attorneys an opportunity to motion in Limine that certain aspects of the opponent’s document be excluded as prejudicial. Motions of this nature have been granted on several grounds. For example, documented accident investigation reports have been excluded for their opinionated, non-factual, and conclusory nature. Language contained in pretrial orders that exclude documents tends to be quite precise as to the exact effect of the order with respect to the admissibility or inadmissibility of the questioned material. An order in “absolute-prohibitive” form, for example, will often specify that counsel is not to reoffer the excluded documents either in court or in chambers. Likewise, a “preliminary-prohibitive” order will generally particularize the procedure that counsel must use to seek admission of the sensitive documents during the trial. Such preciseness in the wording of a pretrial order prevents any possible claim of misapprehension of the procedural effect or requirements of the court’s ruling.

The motion in Limine is also advantageous to utilize if an attorney doesn’t want a privilege invoked to be alluded to or mentioned at trial. One case demonstrates just this. In Burdick v. York Oil Co., the attorney made numerous and improper references to opposing counsel using privilege to protect information in an effort to prejudice the jury. There was a pre-trial motion prohibiting this, and therefore, reversible error.

Motions in Limine can also be used to address matters that adversely affect the credibility or character of a party. In the context of prior lawsuits, the motion can be used to prevent mention of those lawsuits. Attorneys will attempt to create suspicion in the jurors’ minds that the plaintiff has fabricated or exaggerated his claim against the other party, by skillfully disclosing that the plaintiff has on prior occasions filed other lawsuits and claims for injuries. Such prior claims do not have to be relevant to the case, but if presented with sufficient skill, it can mislead the jury to believe that the plaintiff is nothing more than a profession claimant. Use of the motion for this purpose was illustrated in one case involving a claim that sought workmen’s compensation for a totally disabling back injury the plaintiff received while working on the job. In McClintock v. Travelers Ins. Co., there was a pre-trial order issued on a motion in Limine to refrain from any reference at trial to prior lawsuits initiated by the plaintiff. Despite the pre-trial order, counsel for the defense elicited in testimony before the jury a history of the plaintiff’s minor injuries and claims dating back some thirty-five years. The appellate court held that conduct of this nature must have so prejudiced the jurors that they would have had difficulty rejecting the belief that the plaintiff was a “litigation-prone” individual.

The motion also is important with regards to reference of prior criminal records. According to the traditional rule, a judgment of conviction in a criminal prosecution is not admissible in a civil case as evidence of facts on which the civil case is based. Mention at trial by counsel of an inadmissible conviction might constitute a very powerful tool to influence the juror’s attitudes toward the formerly convicted party. That is why the motion in Limine regarding this matter may attribute to the success of your case.

This list isn’t exhaustive. There are almost a limited amount of contexts to which to use the motion. The key is to remember to identify the vulnerable evidentiary areas and try to use a motion in Limine to your advantage.

There are numerous cases that deal with using these motions to authenticate evidence, but there are two I wanted to point out in particular. The first one conveys the general use and meaning of the motion in Limine to authenticate, and the second demonstrates that the motion in Limine may not be relied upon as a final ruling.

The first case is United States v. Scott, where the party used a motion in Limine to authenticate and admit evidence under self-authentication prior to commencing trial. Again, this just demonstrates the general use of the motion. The second case lends a lesson of caution when proceeding to trial after a favorable in Limine ruling. In Leigh v. Schwartz, the defense counsel made a motion in Limine to prevent evidence of past or pending claims against his client. The defense counsel had acquiring a favorable ruling on the matter. Unfortunately for the defense counsel and his client, he later opened the door for evidence of past and pending claims through evidence that he presented himself. Counsel effectively waived the preclusion of any such evidence that he had recently acquired in the motion in Limine. The take-away here is be cautious of evidence that you present and make sure that it does not open the door back up to any evidence that you have had successfully precluded through a motion in Limine.

1. 1. Discovery Protective Orders

There are several possible objections a party may make with regard to the manner in which ESI discovery is conducted. The first rationale, and perhaps the rationale the courts were initially most willing to accept, was that a discovery request was overly burdensome or costly under Fed. R. Civ. P. 26(b)(2)(B). Generally speaking, the cost of allowable E-Discovery will vary directly with the amount in controversy. According to the Comments associated with Fed. R. Civ. P. 26(b)(2)(B) in accessing discoverability the court should consider: (1) the specificity of the discovery request; (2) the quantity of information available from other and more easily accessed sources; (3) the failure to produce relevant information that seems likely to have existed but is no longer available on more easily accessed sources; (4) the likelihood of finding relevant, responsive information that cannot be obtained from other, more easily accessed sources; (5) predictions as to the importance and usefulness of the further information; (6) the importance of the issues at stake in the litigation; and (7) the parties’ resources. Many of these factors are explicitly considered under Fed. R. Civ. P. 26(b)(2)(C), which authorizes a protective order to limit discovery.

Rule 26(b)(2)(C) provides:

When Required. On motion or on its own, the court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that:

(i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive;

(ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or

(iii) the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.

Be mindful, though, that this is a Federal Rule of Evidence, while adopted in most jurisdictions the particularities of E-Discovery may differ in your jurisdiction.

Also, even if the judge does not find that the material is too burdensome or costly, the judge does have the authority to shift the burden of discovery related costs. Ordinarily, the producing party bears the burden of the associated costs, but instances where a party requests that documents be provided in a format different from which they are usually kept, may be sufficient to justify expense shifting. Other factors such as whether the information is available from other sources, such as depositions, interrogatories, requests for admission, or other discovery devices; each party’s respective resources; the nature of the issue being litigated; and, each party’s ability to control costs.

Further, one can object that the discovery request is likely to produce privileged material. Fed. R. Civ. P. 26(b)(5)(B) is essentially a claw-back provision. It provides that if information produced in discovery is subject to a claim of privilege or of protection as trial-preparation material, the party making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it before being notified; and may promptly present the information to the court under seal for a determination of the claim. The producing party must preserve the information until the claim is resolved.

Finally, and often related to burden and cost, one can object that discovery of, in this case, social media evidence is not relevant to the matter at hand. In order for any evidence to be admitted, it must as a threshold matter be relevant under F.R.E. 401. Depending upon what issue is being contested, your client’s social media use may provide no insight as to finances or childcare habits. Further, even if there is evidence to be found, perhaps the purpose for which the materials are being sought is not relevant. Take infidelity for example, in some no-fault jurisdictions, evidence of marital indiscretion so long as it is not wasting marital resources is irrelevant. However, in other states, marital misconduct can still be relevant as to property and debt division and spousal support maintenance. It can also be relevant in some instances as to child custody and visitation when it impairs on the best interests of the child.

From a discovery context, protective orders can also be sought to ensure that discovery is not released to third parties under Federal Rule of Civil Procedure 26(c). In some cases, this can be important to ensure that sensitive information is not passed on to protect a party or person from “annoyance, embarrassment, oppression, or undue burden or expense.”

1. 1. Disclosure of Expert Witnesses

Missouri Supreme Court Rule 56 states that “A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial by providing such experts name, address, occupation, place of employment and qualifications to give an opinion, or if such information is available on the expert’s curriculum vitae, such curriculum vitae may be attached to the interrogatory answers as a full response to such interrogatory, and to state the general nature of the subject matter on which the expert is expected to testify, and the expert’s hourly deposition fee.” Be sure to check your local state, rules and statutes. In some instances, a court may impose deadlines in a scheduling order/pre-trial order.

Parties are entitled to discover information regarding the others expert witnesses. This will usually include the name of the expert witness, as well as the substance of their testimony. The reason for this is to ensure that no party will be unfairly surprised by a witness called, and will also allow for a better adversarial trial because the other party will have the opportunity to respond with their own expert witnesses. Asking for disclosure of expert witnesses will not only give insight into the other party’s strategy, but if the party fails to disclose an expert, then that error may allow the innocent party to preclude their testimony. An expert witness that is acting in only an advisory capacity may be exempt from discovery disclosures because the expert will not appear in trial. Using an expert witness in this way can help an attorney to fully grasp the scope of the issues in the case, without forcing any disclosures to the opposing party. When, however, the expert witness will be called, in addition to name and general scope of testimony, the other party can request the following information about the witness:

• the address and employer of the expert witnesses;
• the field of expertise and the subject matter on which the expert is expected to testify;
• the expert opinions the witness is expected to put forth in his or her testimony; and
• the substance of the ground for each such expert opinion.

In family law, the case may move more quickly than other areas of law. For this reason, the disclosure of expert witnesses deadline comes more quickly than disclosure requirements in other cases. However, the disclosure schedule for expert witnesses may be modified as long as it does not interfere with a trial date, and both parties agree. Even with the agreement of the parties, the court will grant the motion if:

• the requested modification will not cause undue prejudice to any other party;
• the requested modification will not cause undue interference with the trial schedule; and
• the need for the requested modification was not caused by a bad faith delay of disclosure by the party seeking modification.

Also, in the disclosure of expert witnesses, it is important to select an expert witness early. By finding an expert witness early, not only will there be more options, but it will preclude the other party from utilizing the expert witness once the witness has learned facts about your side of the case. The earlier the expert witness is involved in the case, then the more integrated and familiar the expert will be with the case. This will be extremely helpful in discovery, as an expert witness can be the guide in determining what documents, interviews, questions, inspections, and other evidence will be required to prove a case.

In addition, after the disclosure of the witness is made, as well as the scope of the expert’s testimony, the attorney will not be able to surprise the other side with another undisclosed expert or testimony. So, if experts are found early in the process, even though it may cost more to retain, there is less of a chance that the disclosure will lock one party into a list of expert witnesses that are not sufficient to win the case.

It is also important to know what the expert witness will need to disclose. At the time of the disclosure, the expert’s file becomes open and the confidentiality of work-product protection becomes essentially obsolete. For this reason, knowing exactly what is in the expert’s file before disclosure will be necessary. If there is something that the attorney would not want to disclose, then the only ethically acceptable way to not disclose it is to ensure that the expert does not allow it to end up that file to begin with. So, while it is imperative to get all the information possible from the other party’s expert witness disclosed, keeping track of exactly what will have to be disclosed for your own party’s expert witness will be helpful.

e. Motion of Scheduling Order (Depositions/Discovery)

A scheduling order generally will set deadlines for all of the following:

• filing of financial statements;
• filing of real estate certificates;
• scheduling and completion of mediation;
• completion of discovery;
• designation of expert witnesses and exchange of Rule 26 information and reports;
• exchanging witness and exhibit lists;
• scheduling of a pretrial conference if necessary;
• filing of motions; and
• placement of trial list.

Generally, a court will only modify a scheduling order for good cause. An agreement by both parties for the modification generally will satisfy the good cause requirement. If one party feels they cannot meet a deadline set forth in the scheduling order, they need to file for a deadline or a motion to modify as soon as possible. Remaining vigilant in considering pre-trial orders will not only ensure more preparedness in the trial, but can win an attorney favor with the court. When a court becomes angry at failure to comply with the scheduling order, it has been deemed acceptable for the judge to dismiss a cause of action with prejudice as a sanction. Non-compliance with the scheduling order will appear to be a disregard for the court, and can be seen as acting in bad faith.

In addition, when consenting to a scheduling order with the other party, the attorney must think realistically and be sure that they can accomplish everything in that specified amount of time. For example, in Brown v. Brown, the court determined that the trial court did not err in not allowing him to later present witnesses or exhibits, even though he only had fifteen days to comply with the scheduling order, because he agreed to the scheduling order at the scheduling conference.

f. Motions to Seal File/Close Courtroom

When requesting that a record or portion of a record be filed under steal, a motion must be filed for an order that will seal it, in addition to a memorandum and declaration of the facts that justify the sealing of the document. Even if a judge orders the record sealed, parties that already have access to the records that will be sealed must be given both an unredacted copy of the papers as well as a redacted version. Generally, unless confidentiality is required by law, court records are presumed to be open to the public. So, in order to have documents sealed, parties cannot merely agree to it, but a court must grant an order for sealing files. In addition, a judge that ordered the sealing of files may order those documents to be unsealed. While a motion to seal files is pending, these documents must be lodged with the clerk in a sealed envelope stating that these files are conditionally under seal. If the motion is denied, then the clerk will return these documents, or will file the documents. If the motion is granted, then the sealed documents will remain sealed. In California, for instance, in order to grant a motion to seal files, the court must find that:

• an overriding interest exists that overcomes the right of public access to the record;
• the overriding interest supports sealing the records;
• a substantial probability exists that the overriding interest will be prejudiced if the record is not sealed;
• the proposed sealing is narrowly tailored; and
• no less restrictive means exist to achieve the overriding interest.

Other states, like South Carolina, for example, will focus on when sealing is necessary, and whether there is a less drastic alternative. Essentially, this looks at whether sealing the document is a definite necessity based on questions of the confidential or proprietary nature of the documents, or whether another method will accomplish the same protection without being as restrictive to the right of the public to see the documents. Some inherent problems in sealing a file include: (1) the adverse impact on the public’s right to access; (2) the practical considerations for the court system of maintaining documents under seal indefinitely; and (3) the risk to a client that the court may, someday, open the documents a person intended to remain sealed forever.

Also in tension with the right of public access, is a closed courtroom. Generally, public access is favored by the court. Divorce cases are no exception to this general rule. A trial judge is given the discretion to close a divorce proceeding case to protect the parties if good cause is shown. Some factors included in whether a court will close a courtroom is the whether the orderly and sound administration of justice requires closure. This includes the nature of the proceedings, the privacy interests of the individuals before the court, and the need for protection of the litigants, especially the children. Consent from both parties for a closed court room will not be sufficient, a court will need to have these good cause factors in order to close the courtroom. In addition, a judge is given the ability to close the courtroom to parents specifically while their minor child testifies in the case.

Please note as well that some states make divorce and paternity case files closed records just by statute. Thus, sealing the records may be unnecessary in these states.

g. Motions to Sequester Non-Party Witnesses

Before evidence is offered, either party can move to exclude all witnesses except the one witness being examined. This motion will apply to all non-party witnesses, regardless of who called the witnesses. The goal of the motion to sequester the non-party witnesses is to prevent witnesses from altering their testimony to either conform or contradict what is said by the other witnesses and evidence being presented. If a motion to sequester non-party witnesses is granted, then a contempt order may occur to punish a witness that violates the order. Generally, the parties and the expert witnesses will be exempt from this motion if it is granted. In a lot of cases, this motion to sequester will benefit a party with few witnesses, and work against a party with a lot of witnesses. This happens because the party with a lot of witnesses will have more possibility of contradiction in testimony, and allow the other party to capitalize on the contradictions.

The Federal Rules of Evidence state:

At a party’s request, the court must order witnesses excluded so that they cannot hear other witness’s testimony. Or the court may order the exclusion of witnesses on its own. But this rule does not authorize excluding:

(a) a party who is a natural person;

(b) an officer or employee of a party that is not a natural person, after being designated as the party’s representative by its attorney;

(c) a person whose presence a party shows to be essential to presenting the party’s claim or defense; or

(d) a person authorized by statute to be present.

IV. Establishing Grounds for Post-Trial Motions and Responses

1. Motions to Modify Child Support

In order to reduce a child-support payment, a parent must petition the court and ask the judge. This will be done by filing a motion to modify child support. While the process will vary from state to state, as most processes do, the general process is the same. So, the first step is to get the right forms to file the motion. Most states have these forms on their court’s website, and can sometimes even be filled out online. While filling out the paperwork, making a case for the reduced payment is important. The court needs to know why the parent wants to lower the support amount, whether a job change resulted in lower payment, or if a job was lost all together will matter to the judge. In addition to filing the motion, attaching proof of the change in circumstances will be necessary. If income has been reduced, an income statement, tax returns, or pay stubs can be sufficient. If the parent is newly unemployed, attaching unemployment or disability paperwork will be helpful. Along with the motion, most states will require a Case Information Statement, which essentially will require you to disclose all income, assets and debts. After these forms are accurately completed, the other parent needs to be served with these papers. Either mailing or hand-delivering the papers will work depending on the state. When serving the other parent, proof is necessary for the court so the other parent cannot claim they did not receive the paperwork and stall the modification.

Once the papers have been filled out and served on the other parent, then proving the change in circumstances will be the next step. Most states require a significant change in circumstances in order to lower child support payments. For this reason, if the change promoting a request for modified child support is due to employment, the court will want proof that the parent has tried to find new work, and is not merely collecting unemployment and doing nothing. This can include copies of job applications or application advertisements, as well as rejection letters or emails. If the reason for less income is due to a disability, then keeping the letters from state about the disability will help the court to believe the parent. In addition, if the reason for a modification of child support is because of increased expenses, whether the parent has had another child or the parent’s new spouse has lost his or her job, the court needs to know that also. Whatever the parent claims for the reason for a substantial change in circumstances should be proven to the court.

One other reason to ask for modification is if the other parent has had a substantial increase in income. This can be a harder claim to prove, because the parent will need to explain how he or she is knows this, and will need to know more than just a general amount. The court will expect more than a parent guessing at the other parent’s income. This will require either pay stubs from the other parent, or even an employer confirming that the person has begun to work at the new job or was promoted.

Modifying child support relies greatly on proving the change in circumstance. A judge will generally not modify child support just because a person wants to pay less money. The court will rule on a decrease in child support only if it is a real necessity based on the child support guidelines/formula. An example motion to modify child support form is included in the appendix of this document.

1. Motions to Modify Custody

Many parents who go through a divorce and child custody dispute are left feeling defeated when everything has been finalized. This is especially true for parents who did not receive primary or sole custody. But it’s important to remember that a finalized child custody agreement is not necessarily a permanent one. As time goes on and circumstances change, child custody orders can be modified. This can occur either as the result of a consent order or a motion filed with the courts.

The consent order is essentially an agreement to change the current agreement. Say, for instance, that a child has been living primarily with his mom. As he enters into his teenage years, he decides that he would prefer to live with his dad most of the time. His mom and dad may discuss the matter and agree to honor his wishes. They will formalize their new arrangement in a consent decree showing that both parties agreed to make the change. The consent decree is then as enforceable as the original custody agreement.

The other way to modify a custody agreement is through the courts. One parent can file a motion to modify the custody agreement, often seeking sole or joint physical or legal custody – or an adjustment to parenting time and allocation of parental responsibilities. In order to modify the current arrangement, however, the parent filing the motion has to demonstrate that such a modification is warranted due to a “substantial change in circumstances. Any changes in a co-parent’s household that could put the children in danger or harm them would be a good reason to seek a modification. For instance, a parent may learn that their former spouse is abusing drugs or alcohol (or has relapsed after previously seeking help for substance abuse). As another example, a parent may learn that their co-parent has started to become violent or otherwise abusive toward the children. If a co-parent has experienced a major change in job or working hours, this could warrant a modification of custody as well. For instance, it probably doesn’t make sense for a co-parent to maintain sole custody if he or she has to regularly work overnight shifts and weekends. Minor children need a parent to be there for most of the hours that they are out of school. Finally, a major relocation could warrant a change in custody. If an ex-spouse decides to move out of town or out of state, you may be able to seek a change in the custody agreement.

Courts differ on what they consider a substantial change. However, below are a number of examples that could be considered substantial changes leading to a change in the previous order:

• Geographic move. If a custodial parent intends to make a significant geographic move, it may constitute a changed circumstance that would cause a court to modify a custody or visitation order. In that situation some courts switch custody from one parent to the other. Most judges, however, ask the parents to work out a plan under which both parents may continue to have significant contact with their children. The Court will carefully examine the best interests of the child and make a decision about which parent should have custody. In some states, if a custody order has been entered, in the event one parent intends to relocate their residence, they must provide written notice to the other parent that meets certain statutory requirements prior to their move. If the parent moving fails to provide this notice prior to their move, they may be ordered to return the children to the state (if they have moved out of state), or they may jeopardize their custodial rights under the previous order.
• Change in lifestyle. A parent can obtain a change in a custody or visitation order if substantial changes in the other parent’s lifestyle threaten or harm the child. For example, if a custodial parent begins leaving a young child unsupervised or fails to get the child appropriate medical treatment, the other parent may request a change in custody. Similarly, if a noncustodial parent begins drinking heavily or taking drugs, the custodial parent may file a request for modification of the visitation order (asking, for example, that visits occur when the parent is sober, or only under the watch of a court appointed supervisor).
• The Child’s desires. Older more mature children can have some input in deciding with which parent he or she will live with primarily. However, although that child’s wishes can be considered, the child does not have a right to ultimately “choose” which parent to live with. It is also ill advised to encourage a child to request a change in custody as oftentimes the court will view this as placing undue pressure on the child. This behavior will reflect badly on the parent pressuring/encouraging the child and could affect that parent’s custody and visitation rights
• Deviation from custody schedule. In some cases, the parties may have deviated from the custody order to such an extent, and for a long enough time, that a modification may become possible to simply make legitimate what the parties have been doing. For example, if one party received sole custody, but the parties have been in reality exercising fifty-fifty custody for a long enough period of time, a court may entertain a modification to formalize what the parties have been doing.

Sadly, when parents decide to get divorced, the parents of the non-custodial parent often find it difficult to keep in touch with their grandchildren. More and more, they have been going to court to protect their visitation rights and their relationships with the grandchildren they love. In Missouri, grandparents often face an uphill battle when enforcing these visitation rights. They need a strong and forceful attorney who knows the law – someone who does not hesitate to fight hard for them.

There are many grandparents who seek child custody or visitation in special circumstances, like when a parent is incapable of properly caring for a child due to alcoholism, addiction, mental illness or family violence. Statutes can also allow grandparents visitation in some states. These grandparents may be entitled to increased custody or visitation.

Missouri law supports contact between grandparents and their grandchildren in certain situations, like the ones listed below:

• When the parents of the child have filed for divorce, grandparents have the right to intervene solely on the issue of visitation rights. Grandparents also have the right to file a motion to modify the original divorce decree to seek visitation rights.
• When one parent of the child is deceased and the surviving parent denies the grandparent reasonable visitation rights, grandparents may take legal action.
• When the child has resided in the grandparent’s home for at least six months within the 24-month period immediately before the filing of the petition for grandparent rights, grandparents can file a lawsuit to protect their relationships with the children involved.
• When the grandparent has been unreasonably denied visitation with the child for more than 90 days, (unless the natural parents are legally married to each other and are living together with the child) the grandparent may file for visitation.
• When the child is adopted by a stepparent, another grandparent or other blood relative, grandparents can file lawsuits to protect their rights.

Determining whether or not grandparents are entitled to visitation can be complex. The court sometimes requires a home study performed by a court-appointed investigator. The court may also appoint a guardian ad litem to help determine the best interests of the child. It may also consult with the child regarding the child’s wishes. The court will grant grandparent visitation only if it is in the child’s best interest. A court will deny grandparent visitation if the visits will endanger the child’s physical health or impair the child’s emotional development. Like with other custody cases, the court may appoint a guardian ad litem to help determine the best interest of the child. A guardian ad litem is an attorney appointed by the court to represent the child. The recommendation of the guardian is often key in these cases.

Situations may arise that call for custody arrangements outside the normal parent-child relationship. There are a variety of cases involving third-party custody – that is, representing a client other than a biological or adoptive parent who seeks legal authority similar to that of a parent.

Child custody agreements are some of the most important parts of the divorce decree. They provide the framework for stability and guidance children need as they grow up, and they ensure that you can spend meaningful time with your children – something that goes beyond day-to-day living needs. Holidays are an opportunity for each parent to instill traditions, visit extended family members and create lasting memories. Your child custody agreements should outline holiday visitation arrangements to avoid arguments or custody violations later on. Since child support payments and visitation schedules are two separate agreements in divorce proceedings, child support typically does not change during holiday visitation. Of course, the definition of holiday to each individual may vary. For example, if the child simply spends a 4-day weekend with a noncustodial parent, support payments likely would not change. If the child spends months with the noncustodial parent, like during a summer break from school, you and your spouse may need to work out a modified support schedule to reflect the more significant change in living arrangements. If one parent has not been making court ordered child support payments, the custodial parent may feel inclined to withhold visitation rights. This is not legal. One parent cannot violate custody arrangements because of issues with child support. It is always best to fulfill your obligations in child custody and child support arrangements. If you are unable to, or if your spouse is violating an agreement, make sure you work with an attorney as soon as possible.

1. Motion to Enforce

In divorces, property must be split among the two parties that no longer are living or using the possessions together. In quite a few of these cases, however, one party does not comply. In order for the non-offending party to actually receive their property, they may file a motion to enforce. In Virginia, for instance, courts are granted continuing authority and jurisdiction to make any additional orders necessary to enforces an order entered, including the power to:

• Order a date certain for transfer or division of any jointly owned property or payment of monetary award;
• Punish as contempt of court any willful failure of a party to comply with the provisions of any order made by the court; and
• Appoint a special commissioner to transfer any property where a party refuses to comply with the order of the court to transfer such property.

If a court had personal jurisdiction over a spouse when the original order was made, even if the spouse moves out of that jurisdiction, the court still is given personal jurisdiction over a future motion to enforce that original final order.

When there are children involved in the divorce, a custody and support order will be specified by the court. These orders also are frequently not followed. In these situations, the Uniform Child Custody Jurisdiction and Enforcement Act will specify the relief available on an enforcement order. These methods of enforcement can include:

• An order to produce the child on 24 hours’ notice;
• An ex parte warrant for physical possession in cases of emergency;
• Make-up visitation;
• Fees and costs to the prevailing party; and
• Additional remedies made available by state law.

The UCCJEA also allows for enforcement across states. As long as the original order is valid, then other states should enforce it upon its registration.

When child support is not being paid, the non-paying spouse will likely first be held in contempt for their failures to pay, and then a court will issue a motion to enforce the child-support payment that will subsequently discharge the contempt sentence. In Texas, for example, Section 14.33(a) of the Texas Family Codes specifies that an enforcement order will contain findings in ordinary and concise language as to the original order for which enforcement is now sought, the acts or omission that are the subject of the order, the manner of noncompliance, and the relief to be awarded by the court.

In Texas, if the enforcement order includes either a fine or incarceration for the non-paying party, the court must specifically state what provision of the final order was sought, as well as the date, time and place of each occasion on which the respondent did not comply with the support provision and the relief awarded by the court.

1. Motion for Contempt

The nature of a motion for contempt in civil court is remedial; and its object is the protection of the party for whose benefit an order, judgment, or decree was entered. Its function, therefore, is to provide a coercive means of compelling the other party to comply with the relief granted to his or her adversary; and so where a party is guilty of willful disobedience or obstinacy to such relief, the court is empowered to punish that party for contempt and sentence him or her to imprisonment until the relief is paid.

Generally, the movant for a motion for contempt is required to show, through clear and convincing evidence, that:

1. the contemnor had notice of the order;
2. the order was clear and unambiguous;
3. the contemnor had the ability to comply with the order; and
4. the contemnor violated the order.

It is to be noted that the nature of civil contempt proceedings are also dichotomous, possessing both civil and criminal overtones, and therefore the same strict notice requirements applied in even indirect criminal contempt proceedings also apply in any civil contempt proceeding. This means that the facts and circumstances constituting the offense, not mere legal conclusions, must be recited with particularity in both the judgment of contempt and the order of commitment. For example, in Jacoby v. Jacoby, the petitioner-wife tried to hold her ex-husband in contempt with regards to the terms in their divorce decree, because he had spent $34,000 on household goods and clothing for his subsequent family while being delinquent in at least $1,250 in his child-support payments. Thus, the trial-court ordered him to sell a portion of those household goods to make that payment. However, the court noted that no decretal provision existed in the divorce decree that obligated the husband to refrain or abstain from spending any amount, from any source, on his subsequent family, and therefore the trial-court erred in forcing the sale of those goods since such an order was based on grounds for which the husband had no notice.

Therefore, it is critical that motions for contempt clearly articulate their basis in the original order, decree, or judgment that your adversary is violating or resisting. Courts are generally reluctant to enforce a motion for contempt that would, like in the Jacoby case, needlessly interfere with any exercise of personal freedom which that person reasonably believed she was entitled to, given the specific provisions of a court’s order. In other words, it is important that basis of a motion for contempt and the specific enforcement being sought cannot be construed as the court overstepping the bounds of its own previous judgment against that person.

To protect against this, most courts require that you always include, in your motion, an excerpt of the exact text taken from the decree, order, or judgment being violated and the date that order became effective. You should then briefly explain that the terms of that order are still effective as is (they have not been modified, expired, etc.), and state the violating party actually had notice of these terms. Furthermore, since contempt requires willful noncompliance with an order, you should also state that the violating party was given the chance to comply with the order (e.g.: notifying that party child-support payments are due, or that they wish to exercise their visitation rights on a given weekend), and that the violating party then knowingly refused to comply. An example of such a motion can be viewed in the appendix.

Additionally, Missouri Court Rule 68.1 imposes certain requirements for the filing of a motion for contempt arising from divorce litigation. These requirements include:

1. That the caption contain the:
   1. name and social security number of each party;
   2. the address at which personal service may be effected upon respondent; and
   3. the nature of the action.
2. That the petitioner/movant or her counsel must certify, based on a reasonable investigation, whether visitation or child custody will be a substantial and genuine issue to the motion, and if so, the party must include in the caption the following legend: “Child Custody or Visitation at Issue.”
   1. If the petitioner does not certify this, the respondent must conduct a similar investigation to determine if custody or visitation will be at issue, and if so, the respondent must include the same legend above in the caption of their responsive pleading.
3. Any responsive pleading by the respondent must be filed within thirty days after service of the original action.
4. Furthermore, within (15) days after the expiration of the thirty days allowed for a responsive pleading, if child custody or visitation has been certified as an issue to the motion by any party, the Domestic Relations Unit of the Family Court (“DRU”) will send each party a notice which:
   1. requires the party to forward a proposed plan to the DRU, within (15) days, for parental decision making, parenting time, and residential agreements for any minor child;
   2. schedules an appointment for the parties for mediation with a Deputy Juvenile Officer; and
   3. cautions the party that attorney fees and costs may be awarded if the court discovers that neither child custody nor visitation were a substantial issue to the motion.
5. Additionally, failure to comply with the requirements of this rule may result in sanctions against the failing party.

1. Motion to Divide Assets Discovered Post-Decree

The general rule against modification is strong, and it is broadly applied by the courts. Normally, it is an unflinchingly rigid rule, that prevents the court from considering any equitable distribution issue once a property division order has become final, regardless of whether or not the court considered that issue earlier in the case. Note, however, that there is more flexibility when modifying support awards than property division orders, and that awards for permanent spousal support are ordinarily subject to future modification. On the other hand, marital property under equitable distribution can generally only be divided at the time of the initial divorce proceedings, and cannot be divided after final judgment. This precludes not only issues that were actually litigated, but also anything which could have been litigated-which includes existing assets discovered post-decree. However, this preclusive effect does not apply to assets owned jointly by the parties, and upon discovery of those assets a court can order a partition proportionate to each party’s ownership interest. Note that this means that the parties are also jointly liable for any debts that they were liable for during their marriage.

There are two primary exceptions to this preclusion against dividing undisclosed assets. The main one is that divorce-decrees can be reopened where assets where omitted because of fraud or duress. Additionally, a minority of states (including Missouri) holds that a judgment is not actually final unless all marital assets have been divided. The Missouri Court of Appeals recently held in Boone v. Boone that:

“If [ ] undistributed property is discovered before the time for appeal has run, the appellate court, when presented with an appeal raising the issue of undistributed property, must dismiss the appeal because the trial court has not exhausted its jurisdiction and has not rendered a final judgment from which an appeal can be taken.” Even where no party raises the issue of finality with the trial court or with this court, the finality of a judgment is a jurisdictional prerequisite and we have a duty sua sponte to determine our jurisdiction.

A judgment may also be found to be void where all assets are not divided. Moreover, it is to be noted that, in the past ten years, there has been a growing sentiment that policy favoring division of all marital assets is more important than policy favoring finality of judgments, especially in cases where the owing spouse has failed to disclose assets to the court. This has led a small but increasing number of states to adopt the position, by state statute or by common law, that the court may divide omitted marital assets even after a property division becomes final. However, these states still require an evidentiary hearing if there is any material issues of fact as to the undisclosed assets. A sample motion to vacate a judgment and redistribute assets can be found at the end of this section.

Furthermore, if the above exceptions fail, the rule against modifications can also be circumvented to by motions for reconsideration and clarification.

The broadest exception to the rule against modification is based upon time. A divorce decree does not become final as soon as it is entered. Instead, the finality of the court’s order is delayed for a short period, which varies from state to state, but is usually within the range of twenty-one to thirty days. During this reconsideration period, the court has unlimited authority to reconsider or modify the judgment on any equitable basis .

While most of the case law arises from a motion for reconsideration filed by a party, the court is permitted to reconsider a judgment on its own initiative, even if no motion has been filed. The reconsideration period does not start to run until the trial court has resolved all outstanding issues in the case. Therefore, attorneys should be mindful of judgments which are not self-executing, and require future actions before it can be executed. For example, in In Re Marriage of Petraitis, the court ordered preparation of a QDRO to divide a pension, and no time limit had been set for its preparation. Since no QDRO had been prepared, the matter of that pension’s distribution had not been disposed of, and so was subject to substantive modification. Additionally, the reconsideration period may be extended if there are post judgment motions pending before the trial court. However, of course, those post-judgment motions themselves must be filed within certain time limitations after trial.

The second biggest exception to the rule against modifications arises from ambiguous or unclear an original judgment-which makes it a viable option since there is generally no time limit on when a motion to clarify can be filed. However, showing ambiguity can prove challenging. Indeed, the Ohio Court of Appeals noted that “no clear standard has evolved to determine the level of lucidity necessary for a writing to be unambiguous. . . [A] court is to objectively and thoroughly examine the writing to attempt to ascertain its meaning. . . Only when a definitive meaning proves elusive should rules for construing ambiguous language be employed.” However, once ambiguity has been shown, the court must clarify that ambiguity, and such clarifications can seem like modifications to any party whose interpretation of the ambiguous original order is not adopted by the court. So in that sense, though divorce judgments are final, they also continue to be essentially interlocutory in the event it becomes necessary to “refine, clarify, implement, or enforce its provisions.” Note that, if asked to clarify, the court will interpret and enforce any ambiguous provisions with respect to the laws that were in effect at the time the original judgment was entered. Furthermore, a motion to clarify will not be granted without giving all parties notice and holding a hearing.

APPENDIX

IN THE FAMILY COURT OF

STATE OF MISSOURI

)

)

)

Petitioners, ) Cause No.

)

) Div.

)

)

Respondent. )

)

and )

)

)

Intervenor. )

PETITIONER’S PETITION FOR TEMPORARY RESTRAINING

ORDER AND INJUNCTION

COMES NOW Petitioner, (“Father”), by and through counsel, and moves this Court for relief pursuant to Missouri Revised Statutes 452.315, 526.140, 452.400 and Missouri Rule of Civil Procedure 92, and/or any other applicable rule or statute, and in support thereof, states as follows:

1. This Court has jurisdiction of the parties and of the subject matter herein.

2. On or about the [DATE], this Court entered an Order Modifying the Previous PDL Order and Judgments “(“PDL Order”).

2. This proceeding involves custody and support of (“minor child”).

3. Pursuant to the PDL Order, Father had sole legal and sole physical custody with Mother, (“Mother”), being granted temporary custody every other weekend and the holiday time set forth in the PDL Order.

4. The following averments justify this motion:

5. Father is in need of immediate relief in that unless Mother, Intervenor and their family are restrained from having contact and visitation with the minor child, the minor child will suffer immediate and irreparable physical and emotional injury as outlined above.

6. There is a strong likelihood of ultimate success based on the merits of Father’s cause.

8. That the detriment of a temporary restraining order against Mother, Intervenor and their family is greatly outweighed by the best interests of the minor child herein.

WHEREFORE, Father prays as follows:

A. For a for a Temporary Restraining Order and Preliminary Injunction ordering Mother, Intervenor and their family, including but not limited to ,to have no contact or visitation with the minor child until further order of this Court;

B. For a Preliminary Injunction, enjoining Mother, Intervenor and their family, including but not limited to , to have no contact or visitation with the minor child until further order of this Court;

C. For a Permanent Injunction, enjoining Mother, Intervenor and their family, including but not limited to , to have no contact or visitation with the minor child until further order of this Court;

D. That this Temporary Restraining Order and Preliminary Injunction is effective as of o’clock .m. on the day of , , and is entered by the Hon. of the Circuit Court of , Missouri. That this order shall remain in full force and effect until ten (10) days from the date hereof or until such times as the Court may conclude a hearing for a preliminary injunction, whichever comes first; however, in the event that, for whatever reason the hearing cannot be held within this ten (10) day period, then the movant may move for an extension of the period covered by the temporary restraining order for an additional ten (10) days.

E. For such other further relief as in equity may be just.

STATE OF MISSOURI )

) ss:

COUNTY OF __________ )

COMES NOW being of lawful age and after being duly sworn, states that she has read the foregoing Petition for Temporary Restraining Order and Injunction and that the facts therein are true and correct according to the best of her knowledge, information and belief.

Subscribed and sworn to before me, a Notary Public, this _____ day of ______________, 2014.

Notary Public

My Commission Expires:

IN THE FAMILY COURT OF County

STATE OF MISSOURI

)

)

Petitioners, ) Cause No.

)

and ) Div.

)

)

Respondent. )

)

and )

)

)

)

Intervenor. )

TEMPORARY RESTRAINING ORDER

This cause coming on to be heard on Petitioner’s Motion for Temporary Restraining Order, and the Court being fully advised in the premises, finds the petition states a claim, and therefore,

IT IS HEREBY ORDERED, ADJUDGED AND DECREED:

1. Mother, , and Intervenor, , and their family, including but not limited to, are to have no contact or visitation with the minor child until further order of this Court.

2. It is further ordered that Petitioner, (“Father”), give bond to be approved by the Court in the amount of $____________.

3. This order is issued on , at __.m. and is entered by the Honorable, State of Missouri.

4. The reason for issuance of this order is to prevent Mother, Intervenor and their family, including but not limited to____, from having contact or visitation with the minor child,____.

5. That this Temporary Restraining Order shall remain in full force and effect until the day of , 2014, or to such other time as may be extended by this Court or as this Honorable court may conclude a hearing for injunction, whichever comes first; however in the event that, for whatever reason the hearing cannot be held within the period above, then Father may move for an extension of this period covered by the Temporary Restraining Order for an additional ten (10) days.

6. That the hearing on Father’s Motion to extend this Restraining Order, or in the alternative, for a Preliminary Injunction, shall be set for the day of , 2014 at

__.m. in Division _____ of the County Courthouse, and the Mother and Intervenor to show cause before me on said day why a Preliminary Injunction should not be granted restraining Mother, Intervenor and their family from the matters in the restraining order described.

SO ORDERED:

JUDGE

VIOLATIONS OF THE SAID TEMPORARY RESTRAINING ORDER WILL SUBJECT YOU TO THE PENALTY OF THE LAW

IN THE FAMILY COURT OF County

STATE OF MISSOURI

)

Petitioners, ) Cause No.

)

and ) Div.

)

Respondent. )

)

and )

)

)

Intervenor. )

MOTION FOR PRELIMINARY INJUNCTION

COMES NOW Petitioner, (“Father”), by and through counsel, and states as follows:

1. On or about _______________, 20___ this Court entered a Temporary Restraining Order restraining Respondent (“Mother”) and Intervenor and their family, including but not limited to, from having contact or visitation with, age six (6) (“minor child”).

2. Immediate and irreparable harm, danger and injury will result to the minor child by reason of Mother’s actions, as more particularly appears in Petitioner’s Petition for Temporary Restraining Order incorporated herein as if more fully set forth herein.

4. That Father has no adequate remedy at law.

5. If this Preliminary Injunction be granted, the injury, if any, to Mother, if final judgment be in Mother’s favor, will be inconsiderable and will be adequately indemnified by bond.

WHEREFORE, Father prays as follows:

1. For a Preliminary Injunction, enjoining Mother, Intervenor and their family, including but not limited to, to have no contact or visitation with the minor child until further order of this Court;

2. For a Permanent Injunction, enjoining Mother, Intervenor and their family, including but not limited to, to have no contact or visitation with the minor child until further order of this Court; and

3. For such other further relief as in equity may be just.

IN THE FAMILY COURT OF County

STATE OF MISSOURI

)

)

Petitioners, ) Cause No.

)

) Div. I

)

)

Respondent. )

)

and )

)

)

)

Intervenor. )

MOTION FOR APPROVAL OF INJUNCTION BOND

COMES NOW Petitioner, by and through counsel, and pursuant to Rule 92.02 (C) of the Missouri Rules of Civil Procedure, requests this Honorable Court to approve a cash bond in the sum of $_____________ to be deposited into the registry of the Court in lieu of surety bond.

BY: _____________________________

Attorneys for Petitioner

IN THE FAMILY COURT OF County

STATE OF MISSOURI

)

)

Petitioners, ) Cause No.

)

) Div.

)

)

Respondent. )

)

and )

)

)

Intervenor. )

INJUNCTION BOND

This cause coming to be heard on the Motion of Petition for Approval of Injunction Bond, and the same being considered, Petitioner’s motion is hereby GRANTED. Petitioner shall deposit with the registry of the Court the sum of $____________ in lieu of bond, to secure the amount or other matter to be enjoined, and all damages that may be occasioned by the party enjoined if the Temporary Restraining Order and Injunction shall be dissolved.

SO ORDERED:

_________________________________

Judge

Dated:_________________

CERTIFICATE OF SERVICE

The undersigned hereby certifies that a true and accurate copy of the foregoing (Petition for Temporary Restraining Order and Injunction, Temporary Restraining Order, Motion for Preliminary Injunction, Motion for Approval of Injunction Bond and Injunction Bond) was sent via fax on this ____ day of __________, _____, to:

IN THE CIRCUIT COURT OF THE COUNTY OF

STATE OF MISSOURI

)

Petitioner, )

) Cause No.

v. )

) Div.

)

Respondent )

PETITION FOR WRIT OF HABEAS CORPUS

COMES NOW Petitioner, , by and through his attorneys, , and for his Petition for Writ of Habeas Corpus, states as follows:

1. On or about ______ ___, 20___, this Court entered its Judgment Pursuant to Uniform Parentage Act (hereinafter “Judgment”) between Petitioner and Respondent, which found that Petitioner is the father of minor child.

2. The Judgment also awarded Respondent sole physical and legal custody of the child and ordered Petitioner to pay $ a month in child support.

3. To the best of Petitioner’s knowledge, information and belief, Respondent has relocated and taken the minor child to , without giving notice to Petitioner and is living there with the child at: ___________________________________________________________.

4. Since the minor child’s birth, including for more than the last six consecutive months, the minor child has resided in the State of Missouri.

5. Petitioner has not participated in any capacity in any other litigation concerning the custody of the minor child in this or any other state; other than the Paternity Judgment in .

6. Petitioner has requested that Respondent return to with the minor child, but Respondent has refused to do so.

7. By removing the minor child to Respondent has obtained physical possession of the minor child and has made it virtually impossible for Petitioner to have any physical contact with the minor child.

8. As a result of the foregoing, and unless relief is ordered by this Court, Petitioner will be deprived of the custody of the aforesaid minor child and the minor child will be deprived of the opportunity to enjoy the affection of her natural father.

9. The aforesaid restraint of the minor child by Respondent is not in the best interests of the minor child.

10. No petition for relief sought herein has been made to any other Court, nor has this Writ been denied by any of Court.

11. Petitioner has incurred and will continue to incur attorney’s fees and costs herein, for which Respondent should be responsible.

WHEREFORE, Petitioner prays that this Court: (1) Issue a Writ of Habeas Corpus to be served upon Petitioner directing her to produce the minor child before this Court at _______a.m./p.m. on the ________day of ________________, , so that the custody of the minor child can be determined by the Court; and (2) award to Respondent reasonable sums for attorney’s fees, suit monies, and court costs incurred in conjunction with prosecuting this action; and for such other and further relief as this Court may deem just and proper.

IN THE FAMILY COURT OF THE COUNTY OF ST. LOUIS

STATE OF MISSOURI

In re Marriage of: )

)

JANE DOE, )

SSN: XXX-XX-XXXX )

Petitioner, )

) Cause No. 0000-0000

v. )

) Division 00

JOHN DOE, )

SSN: XXX-XX-XXXX )

Respondent )

SPECIAL PROCESS SERVER

TO SERVE PETITIONER AT:

Address Line One

Address Line Two

1. RESPONDENT’S MOTION FOR CONTEMPT

COMES NOW, Respondent, John Doe, by and through his attorneys and for his Motion for Contempt alleges and states to the Court as follows:

1. Respondent’s Social Security Number is XXX-XX-XXXX, and Petitioner’s Social Security Number is XXX-XX-XXXX.
2. On or about April 25, 2006 this Court entered its Family Court Judgment (“Judgment”) dissolving the marriage of the parties.
3. As part of this Judgment, this Court awarded the parties joint legal and joint physical custody of the minor children of the parties, namely Child One (Age X), Child Two (Age X) and Child Three (Age X). Joint legal requires the parties to confer and agree before making any decisions affecting the growth and development of the children.
4. The Judgment also allows each parent immediate access from the other or from a third party to records and information pertaining to the children, including not limited to medical, dental, health, child care, school and education records.
5. Petitioner with the full knowledge of the aforesaid terms of the Judgment, willfully disobeyed, failed and refused to comply with the aforesaid terms of the Judgment as set forth above below:
   1. Petitioner refuses to discuss important decisions regarding the minor children with the Respondent and unilaterally decides important matters regarding said minor children in violation of the Judgment regarding legal custody.
   2. Petitioner unilaterally pulled the minor children out of therapy with Therapist in violation of the Judgment when Respondent did not agree and did not believe this decision was in the best interests of the minor children.
   3. Petitioner unilaterally pulled the minor children from attending After-School Care.
   4. Petitioner has repeatedly failed to supply information on a timely basis to Respondent involving the education of the minor children in violation of the Judgment allowing Respondent immediate access to records.
   5. Petitioner has instructed the School District to deny Respondent access to information regarding the schooling of the minor children in violation of the Judgment allowing Respondent immediate access to records.
   6. Respondent has attempted to mediate disputes with Petitioner through Domestic Relations Services to no avail. Petitioner still makes decisions unilaterally affecting the children and refuses to allow Respondent immediate access to records involving the children.
   7. Petitioner refuses to exercise her best efforts to foster the respect, love and affections of the children toward the Respondent and demeans the Respondent in front of the children in violation of the Judgment.
   8. Petitioner has traveled outside the St. Louis area with the children and failed to provide the Respondent with telephone numbers where the children may be reached in violation of the Judgment.
6. This Court should order Petitioner to comply with the terms of the Judgment regarding joint legal custody and immediate access to records. The Court should further order that the minor children continue their therapy with Therapist, that Petitioner refrain from demeaning the Respondent in front of the children and that Petitioner provide Respondent with telephone numbers where the children may be reached when Petitioner travels outside the St. Louis area with the children.
7. Petitioner should be required to pay Respondent’s reasonable attorney’s fees, costs and expenses herein, because this action and its resulting fees and costs were necessitated by Petitioner’s disobedient behavior.

WHEREFORE, Respondent prays this Court enter its Judgment ordering Petitioner to comply with the terms of the Judgment regarding joint legal custody and immediate access to records; order that the minor children continue with their therapy with Therapist; order that Petitioner refrain from demeaning Respondent in front of the children; order that Petitioner provide Respondent with numbers where the children may be reached before leaving the St. Louis area with the children; that this Court issue an Order to Show Cause directed to Petitioner, directing that she appear on the date and time as specified, and then and there show cause why she, Petitioner, should not be held in contempt of Court; that a Judgment of Contempt should be entered and a warrant of commitment requiring Petitioner’s incarceration until such time that Petitioner purges herself of the Judgment of Contempt; and for such other orders and further relief as this honorable Court deems just and proper in under the circumstances.

STANGE LAW FIRM, PC

_________________________

KIRK C. STANGE, #49732

Address

Phone number

E-mail

STATE OF MISSOURI )

) SS

COUNTY OF ST. LOUIS )

COMES NOW John Doe, being duly sworn upon his oath, and states the facts set forth in his Respondent’s Motion for Contempt are true and correct to the best of his personal knowledge, information and belief.

_______________________________

John Doe/Respondent

Subscribed and sworn to before me, a notary public, this day of __________, 2009.

______________________________

Notary Public

My Commission Expires:

21A Mo. Prac., Family Law § 22:8

Id.

Id.

Id.

RSMo. § 452.315.3 (2016).

Id.

RSMo. § 455.050 (2016).

Id.

RSMo. § 455.060 (2016).

Child Custody Prac. & Proc. § 8:1.

Id.

Id.

Id.

Id.

Id.

Mo. Rev. Stat. § 452.380.1 (2016).

Id.

§ 22:6. Temporary custody and support, 21A Mo. Prac., Family Law § 22:6 (3d ed.).

MO R 19 CIR Rule 68.12

Id.

Id.

Id.

Mo. Rev. Stat § 452.315 (2016).

Id .

Ken LeMance, LegalMatch Law Library, Child Order of Protection, available at http://www.legalmatch.com/law-library/article/child-protection-order.html

Determining Child & Spousal Support § 3:74.

Id.

Id.

Id.

RSMo. § 452.380.1 (2016).

Id.

§ 22:6. Temporary custody and support, 21A Mo. Prac., Family Law § 22:6 (3d ed.).

MO R 19 CIR Rule 68.12

Id.

Id.

Id.

RSMo. § 452.315 (2016).

Id.

RSMo. § 452.315.7 (2016).

§ 22:8. Temporary restraining orders and injunctions, 21A Mo. Prac., Family Law § 22:8 (3d ed.); RSMo. § 452.315.2(3) (2016).

§ 6:85.Marital home-Division of the marital home, 2 Equit. Distrib. of Property, 3d § 6:85

Id.

Id.

Id.

Id.

Id.

Id.

§ 22:7. Attorney fees, suit fees, and costs, 21A Mo. Prac., Family Law § 22:7 (3d ed.)

RSMo.§ 452.355 (2016).

Id.

Costley v. Costley, 717 S.W.2d 540, 542 (Mo. Ct. App. S.D 1986).

Id. at 545

§ 452.355

22 A.L.R.4th 407.

Slocum v. Slocum, 86 Ark. 469, 111 S.W. 806, 807 (Ark. Ct. App. 1908).

Mo. Sup. Ct. R. 58.01. A motion to compel typically alerts the judge that discovery requests were sent and on what date, the response deadline that the other party missed, that the court needs to issue an order, and that you had contacted the other party about their lack of a response (required only in some jurisdictions).

16 Mo. Prac., Civil Rules Practice § 61.01(d):1 (2016 ed.); Mo. Sup. Ct. R. 61.01(d).

16 Mo. Prac., Civil Rules Practice § 61.01(d):1 (2016 ed.); Mo. Sup. Ct. R. 61.01(d).

See, e.g., Giesler v. Giesler, 731 S.W.2d 33, 35 (Mo. App. 1987) (answers that husband finally filed were “at best, incomplete and evasive”).

See Houtchins v. Houtchins, 727 S.W.2d 181, 184-85 (Mo. App. 1987) (error to strike wife’s answer where good-faith, albeit incomplete, responses were given to interrogatories).

See Whitworth v. Whitworth, 878 S.W.2d 479, 482 (Mo. App. 1994) (emphasizing that husband received repeated notice before his pleadings were struck).

The most severe sanction for discovery violations is to preclude the spouse from contesting your client’s position, generally by striking their pleading and entering a default judgment. See Whitworth v. Whitworth, 878 S.W.2d at 481-82; Giesler, 731 S.W.2d at 35. The trial court may also resolve factual disputes against the spouse who refused to provide the requested discovery. For example, it is reasonable to consider a spouse’s discovery violations when assessing his or her credibility. See, e.g., Hall v. Hall, 804 S.W.2d 411, 415 (Mo. App. 1991).

20 Am. Jur. Trials 441 (1973).

Id.

Id.

Id.

Id.

Id.

20 Am. Jur. Trials 441 (1973).

Id.

Id.

Id.

Id. at § 4. (citing Jefferson v. Lyon Sheet Metal Works, 376 S.W.3d 37 (Mo. Ct. App. E.D. 2012), reh’g and/or transfer denied, (June 28, 2012)).

Id. at § 12.

Id. at § 17.

Id. at §17 (citing Parmelee Transp. Co. v. Keeshin, 292 F.2d 794 (7th Cir. 1961)).

20 Am. Jur. Trials 441, §17 (1973), (citing Fid. & Cas. Co. of New York v. Frank, 227 F. Supp. 948 (D. Conn. 1964)).

Id. at §17 (citing Parmelee Transp. Co.).

Id. (citing Burdick v. York Oil Co. , 364 S.W.2d 766, 767 (Tex. Civ. App. 1963), writ refused NRE (May 15, 1963)).

Id.

Id. (citing McClintock v. Travelers Ins. Co., 393 S.W.2d 421, 422 (Tex. Civ. App. 1965), writ refused NRE (Nov. 10, 1965)).

Id.

Id. at §34.

United States v. Scott, No. 2:13CR164, 2014 WL 2808802, at 3 (E.D. Va. June 20, 2014).

Leigh v. Schwartz, No. CV116018306S, 2016 WL 1315611, at 1 (Conn. Super. Ct. Mar. 7, 2016).

Id.

1 Equit. Distrib. Of Property, 3d § 4:7 (Nov 2016)

Id.

Id.

Id.

CT CLE Divorce § 13.4.4 Discovery From Experts (2013).

Id.

Id.

Id.

Id.

Id.

21-FALL Fam. Advoc. 30 (Fall 1998)

Id.

Id.

Id.

Id.

Id.

Id.

Id.

Id.

Id.

Id.

ME CLE § 12.3.2 Scheduling Order (2016).

Id.

Id.

Id.

31-FALL Fam. Advoc. 24 (2008)

Id.

Id.

24 Am. Jur. 2D Divorce and Separation § 282

Id.

1 Cal. Judges Benchbook Civ. Proc. Before Trial Chapter 2, § 2.144

Id.

Cal. Prac. Guide Civ. Pro. Before Trial Ch. 9(I)-I

Id.

Id.

Id.

13-JUN S.C. Law 26 (2000)

Id.

Id.

24 Am. Jur. 2D Divorce and Separation § 283

Id.

Id.

Id.

Id.

Id.

Id.

Will Contests § 14:3 (Updated June 2016).

Id.

Id.

Id.

Id.

Id.

Id.

Fed. Rules of Ev. Rule 615. Excluding Witnesses. https://www.law.cornell.edu/rules/fre/rule_615

Gambone, Angie, “How To Write A Petition to Reduce Child Support Payments.” Legal Zoom. (Last Visited May 17, 2017). http://info.legalzoom.com/write-petition-reduce-child-support-payments-25124.html

Id.

Id.

Id.

Id.

Id.

Id.

Id.

Id.

Id.

Id.

Id.

Id.

Id.

Id.

Id.

Id.

Id.

Id.

Id.

3 Equit. Distrib. of Property, 3d § 9:16 (November 2016)

Id.

Id.

Id.

Child Custody Prac. & Proc. § 3:31 (Updated March 2017).

Id.

Schroeder, 24 Tex. Tech. L. Rev. 921 (1993).

Id.

Id.

Yeager v. Yeager, 622 S.W.2d 339, 343 (Mo. App. E. Dist. 1981).

Id., see also Mo. Rev. Stat. Ann. § 476.110 (West).

In re Grand Jury Investigation, 545 F.3d 21, 25 (1st Cir. 2008).

Hawkins v. Dept. of Health and Human Services for New Hampshire, Com’r, 665 F.3d 25, 31 (1st Cir. 2012)

Jacoby v. Jacoby, 675 S.W.2d 117, 120 (Mo. App. W. Dist. 1984).

Id.

Id.

Id. at 120-121

Id. at 121

In Re The Marriage of: Sandra Lee (Welborn) BAKER, Petitioner/Respondent, v. Kenneth Richard WELBORN, Respondent/Movant., 2001 WL 34884913 (Mo.Cir.)

MO R 22 CIR Rule 68.1

Id. § 1

Id. § 3

Id. § 4

Id.

Id. § 5

Id. § 6

See Meyer v. Meyer, 583 N.E.2d 716, 718-719 (Ill. App. 5th Dist. 1991).

24A Am. Jur. 2d Divorce and Separation § 718

§ 9:28. Modification and other post judgment actions-Omitted marital assets, 3 Equit. Distrib. of Property, 3d § 9:28

See Id.

Id.

Id.; see also Garris v. Garris, 643 So. 2d 993, 995 (Ala. Civ. App. 1994)

3 Equit. Distrib. of Property, 3d § 9:28

Id.

Boone v. Boone, 438 S.W.3d 494, 497 (Mo. App. W. Dist. 2014) quoting Meltzer v. Meltzer, 775 S.W.2d 120, 120-21 (Mo. banc 1989).

3 Equit. Distrib. of Property, 3d § 9:28

Id.

Id.

Karen L. YANCEY, n.k.a., Karen L. Barron, Plaintiff, v. Anthony William YANCEY, Defendant., 2006 WL 5435421 (Ohio Com.Pl.).

See Va. Sup. Ct. R. 1:1 (21 days); Mo. Sup. Ct. R. 81.05 (30 days); Ala. R. Civ. P. 59(e) (30 days)

Kahn v. Kahn, 839 S.W.2d 327 (Mo. Ct. App. 1992).

Fox v. Fox, 103 N.C. App. 13, 404 S.E.2d 354 (1991).

In re Marriage of Petraitis, 636 N.E.2d 691, 702 (Ill. App. 1st Dist. 1993)

Id.

Id.

Id.

Kahn at 330.

Id.

§ 9:27. Modification and other post judgment actions-Construing the ambiguous judgment, 3 Equit. Distrib. of Property, 3d § 9:27

Landry v. Landry, 2017-Ohio-564, ¶ 8 citing State v. Porterfield, 106 Ohio St.3d 5, 2005-Ohio-3095, 829 N.E.2d 690, ¶ 11

3 Equit. Distrib. of Property, 3d § 9:27

Atchison v. Atchison, 646 So. 2d 72, 73 (Ala. Civ. App. 1994)

3 Equit. Distrib. of Property, 3d § 9:27

Id.