October 2024-“Deteriorating” mental health supported change in custody
Deficiencies in appellant’s brief supported dismissal of the appeal but the respondent’s statement of facts made a review on the merits possible. In an action for dissolution of marriage, after an initial custody determination, statutes allowed a modification of custody. The elements of a motion to modify custody included a change in circumstances, including facts unknown at the initial determination. “When deciding a physical custody modification, the court only considers changes related to the custodial parents’ abilities to care for the children.” That included a party’s mental health issues because that party did not comply with treatment, the severity of the party’s mental illness was increasing, and the mental illness constituted a threat to the children’s health. The Missouri Court of Appeals affirmed the judgment modifying custody.
Missouri Court of Appeals-Western District - WD86668
September 2024-Grandparent intervention was an unconditional right
Grandparent filed motion to modify the parenting plan and a timely motion to intervene on the issue of visitation. Rule required a circuit court to grant any timely motion to intervene on the issue of visitation filed by a grandparent. Nevertheless, the circuit court denied the motion to intervene based on the merits of the motion to modify without an evidentiary hearing. The Court of Appeals reversed the circuit court.
Missouri Court of Appeals-Southern District - SD38151
August 2024-Attorneys-in-fact gained termination of parental rights
The petitioners were a parent’s attorney-in-fact and sued to terminate a parent’s parental rights in connection with adoption. Statute allows an attorney-in-fact to exercise care, custody, and control on a parent’s behalf but not to consent to parental termination of parental rights on that parent’s behalf. That statute was irrelevant to the judgment terminating the defendant’s parental rights because consent did not include petitioning, and the termination stood on evidence of neglect on the record.
Missouri Court of Appeals-Western District - WD86706
August 2024-Unauthorized adoption statute construed
Statute barring unauthorized adoption forbad the surrender or transfer of a child’s custody without court order but did not bar a parent from placing their child with someone if the parent retained custody. The defendant and defendant’s parents lived together. The defendant left their child with the defendant’s parents with instructions to keep the child safe. Those facts did not show a surrender or transfer of custody from the defendant to the defendant’s parents. The Missouri Court of Appeals reversed the child’s conviction.
Missouri Court of Appeals-Southern District - SD37815
August 2024-Change in circumstances must be substantial to modify custody, not parenting plan
On a motion to modify an order of child custody, the governing statute required movant to show a “change has occurred in the circumstances of the child or his custodian and that the modification is necessary to serve the best interests of the child.” as to any provision except physical and legal custody. As to legal and physical custody, case law required movant to show the change in circumstances was “substantial.” Health care decisions could be “allocated, apportioned, or decreed” in one parent without altering physical and legal custody. Therefore, no substantial change in circumstances was necessary to modify provisions on visitation or provisions on health care decisions, only a change in circumstances. The circuit erred in applying a higher standard to the motion than authorized by statute, so the Court of Appeals reversed the judgment, and remanded it for a determination under the statutory standard.
Missouri Court of Appeals-Southern District - SD38173
July 2024-Squandering found
In an action for dissolution of marriage, the circuit court had to divide marital property, which it had to value, and such valuation included squandered marital assets. The accusing party had the burden of persuasion but, on a “relatively low” prima facie showing of squandering, the accused party had the burden of production: to show where the assets were, or that the assets went to marital liabilities and reasonable living expenses. The circuit court’s determination of credibility were due deference on appeal. And appellant did not claim that the property division was inequitable, which abandoned the matter. The Missouri Court of Appeals affirmed the judgment.
Missouri Court of Appeals-Southern District - SD37929
July 2024-Parties mutually breached settlement agreement
In an action for dissolution of marriage, a settlement agreement incorporated into a judgment constituted a contract. Evidence of a breach did not constitute a collateral attack on the judgment. The parties’ breach of their obligation under a contract deprived the contract of consideration so, in a probate action, the circuit court did not err in refusing to enforce the agreement.
Missouri Court of Appeals-Eastern District - ED111518
June 2024-Award of Sole Custody Inconsistent
In a bench trial, appellant must preserve any point on appeal by presentation to the circuit court in some manner but not necessarily in a post-trial motion. Rule on a motion to amend judgment related only to the form, language, or omission of findings in a judgment; not to errors of law. A judgment could order a change in parenting time on the occurrence of a future event only if the event was definite and unconditional, like the child entering school or reaching the age for statutorily compulsory school attendance, so a remand was necessary to specify such an event. The resulting change in parenting time did not change the award of joint physical custody into sole physical custody. On the occurrence of that event, the judgment could also order an accompanying change in child support. The judgment purported to award sole legal custody, but included so much authority for the non-custodial parent that it looked more like joint legal custody, resulting in an internally inconsistent judgment that required reversal and remand. Form 14 distinguished child-rearing expenses as ordinary or extraordinary, and the commingling of ordinary expenses with extraordinary expenses was error, requiring reversal and remand. An award of attorney fees did not constitute an abuse of discretion.
Missouri Court of Appeals, Western District - WD86515
May 2024-Attorney fees discussed
To show that departure from the technicalities of a local rule constituted reversible error, appellant had to show that the departure “materially affecting the merits of the action.” As to a motion to withdraw by appellant’s attorney, the record showed no opposition by appellant until a verified motion for new trial, which the circuit court was free to disbelieve. Substantial evidence supporting an award of attorney fees was not confined to ability to pay and included conduct during the marriage and in litigation. In a dissolution of marriage, when a party seeks maintenance, the circuit court must determine whether that party can meet their reasonable needs through property, separate and divided marital, and employment. The circuit court erred in finding that appellant did not seek maintenance, so the Missouri Court of Appeals remands the judgment to resolve that matter.
Shawn Bitters vs. Darryl Olive Missouri Court of Appeals-Western District - WD86502
May 2024-Pleadings struck
Constitutional language stated that circuit courts have plenary subject jurisdiction, so defects in pleading affect only circuit court authority. In an action for dissolution of marriage, statutes required the circuit court to determine custody of all unmarried minor children, which pleadings partially resolved by identifying child. The pleadings contested custody, visitation, and support; which gave the court authority to determine those issues and appoint a guardian ad litem. Rules governing discovery provided for sanctions, including striking pleadings, and service of a motion for such sanctions constituted notice that the sanction could happen. A complete disregard of the circuit court’s discovery orders supported striking the pleadings. A re-assigned circuit judge had authority to modify and execute any such order. Rule governing continuances requires a motion in writing, absent which no denial is an abuse of discretion.
Missouri Court of Appeals-Western District - WD86233
May 2024-Maintenance modification reversed
Statute provided modification of maintenance only for unknown and unforeseeable “changed circumstances so substantial and continuing as to make” the current maintenance unreasonable. Such circumstances included a relationship in substitute for marriage, by permanency and financial co-dependence, that equitably constitute abandonment of maintenance. The circuit court’s findings, supported by the record, show no financial benefit to obligee defendant respondent. Nothing required a party to consume assets for an award or continuing receipt of maintenance, and the circuit court’s findings on that matter had no support in the record. Imputed income and speculative returns on assets awarded in the dissolution action were not unknown and unforeseeable. An abuse of discretion occurs when a circuit court omits judicial consideration, including the adoption of “a faulty proposed judgment[.]” The Missouri Court of Appeals reversed the judgment modifying maintenance and awarding attorney fees.
Missouri Court of Appeals-Eastern District - ED111233
May 2024-Investigation and social study conducted as ordered
In an action to terminate parental rights, a statute mandated the circuit court to order an investigation and study. The circuit court first issued five orders, one for each of the five children, by the Children’s Division Ozark County office. The circuit court then issued a sixth order for all five children by the Children’s Division without restriction. The report submitted did not comply with the first five orders. But the report complied with the sixth order. “Mother presents no challenge to the [sixth order], or argument that [the] preparation of the report was not responsive therewith.” The Court of Appeals affirmed the judgment of termination.
Missouri Court of Appeals-Southern District - SD38292, SD38293, SD38294, SD38295, and SD38296 Consolidated
May 2024-Termination of parental rights affirmed
Appellant raised issues on appeal not raised in circuit court, so there was no record on which to review them, even for plain error. Even if the juvenile office and Wayne County Children’s Division offered no services to appellant, those facts do not constitute circuit court error. Having affirmed one ground for termination, and one ground for termination being sufficient to affirm the judgment, the remaining point was moot, and the Missouri Court of Appeals chose not to reach it. Challenging only one of several findings on the children’s best interests leaves the unchallenged findings as support the circuit court’s conclusions on the children’s best interests. The Missouri Court of Appeals affirmed the judgment.
Missouri Court of Appeals-Southern District - SD38069
April 2024-Child’s best interest prevails over stipulation
In an action for dissolution of marriage, the circuit court has a duty to independently determine provisions of custody and visitation according to the child’s best interests and may do so without regard for the parties’ agreement. On the morning of trial, appellant offered to settle for custody and visitation on the terms set forth in respondent’s petition three years before, but the circuit court heard evidence anyway and issued judgment with different provisions accordingly.
Missouri Court of Appeals-Eastern District - ED111647
April 2024-Uniform parentage act analyzed
A partial judgment became final and subject to appeal on voluntary dismissal without prejudice of unadjudicated claims. The Missouri Uniform Parentage Act provided a procedure for determining parentage, including cases of adoption or same-sex couples, and was gender-neutral. For artificial insemination, the Act also set forth a procedure for generating and maintaining records of parentage, but departure from that procedure did not negate parentage. The Act set forth how to raise presumptions, resolve conflicting presumptions, and rebut presumptions. The Act also provided that a blood test was conclusive as to non-parentage, but not as to parentage, so other evidence was relevant to parentage. “[S]uch evidence included the knowing and intelligent agreements entered into between [parties and donors]; that Respondent had been held out to the Children and the world as the natural parent of the Children, and actively participated in raising them as a parent; and that [donors] never had parenting time with the Children, were never involved in decision-making concerning the Children, and were never asked to provide emotional, financial or physical support of the Children.” That analysis led the circuit court to conclude that both parties were “natural” parents and genetic donors were not.
Missouri Court of Appeals. Western District - WD86240 and WD86241 consolidated
March 2024-Stale valuation requires remand for recalculations
In an action for dissolution of marriage, when dividing property, the circuit court was required to value property as of the time of trial, unless the property division occurred later than reasonably proximate to trial, which could necessitate another hearing. Seventeen months was not reasonably proximate and increased the value of a 401(k) substantially. The court of appeals remands the action to circuit court for proceedings on property division and consequent ruling on maintenance.
Missouri Court of Appeals-Southern District - SD37791
March 2024-Parental rights not terminated
In an action to terminate parental rights, the juvenile officer had the burden of proof, and the respondent had no burden of proof, so a judgment for respondent needed no support in substantial evidence, though substantial evidence did support the judgment. The judgment could terminate parental rights only on grounds pleaded in the petition, so the circuit court did not err in denying termination on grounds not pleaded, and the circuit court’s application of the facts to the law negated any showing of prejudice. Events after the petition’s filing date were relevant and substantial evidence supported the circuit court’s finding that the circumstances alleged in the petition had changed. That conclusion mooted appellate review of whether termination was in the child’s best interests.
Missouri Court of Appeals, Western District - WD86314 Consolidated Case: WD86374
March 2024-Marital debt adjusted
Substantial evidence supported a finding that a payment to the parties was a loan and not a gift. Evidence that each party could earn enough to support their child rebutted the presumed child support amount. Statutes require a substantially equal division of marital property and debt, absent statutory factors, of which the record contains no evidence. Rule allows an appellate court to render the judgment that the circuit court should have, so the Court of Appeals adjusts the assignment of a marital debt equally between the parties.
Missouri Court of Appeals, Eastern District - ED111391
March 2024-Child support: Only agency addresses arrearage, courts address modification only
When the statutes committed a matter to an executive branch agency, the statutory procedures included a hearing, which constituted administrative remedies that a party must exhaust before judicial review of the agency decision. To decide arrearages in past child support, statutes mandated one procedure, which was an action initiated before an agency. To decide modifications of future child support, statutes permitted two options: an action initiated before an agency, or an action initiated in circuit court. None of those procedures were interchangeable. When an action to modify was pending before the agency, obligor defaulted, and obligor did not seek judicial review of the resulting default decision. “[Obligor’s] failure to use the administrative framework provided to challenge the [default decision] preclude[d] judicial review of any challenge to [the default decision].” While the agency action was pending, obligor filed a motion to modify in circuit court. The circuit court eventually stayed enforcement of the eventual default decision, but the obligor’s motion to modify in circuit court did not constitute a petition for judicial review of the default decision because, no hearing and decision had occurred, when obligor filed the motion to modify. Obligor voluntarily dismissed the motion to modify in circuit court, which lifted the stay. On the agency’s motion, the circuit court issued a judgment determining that obligor’s child support obligation was as decided in the default decision. Because the circuit court did not have any authority to alter past amounts accrued under the default order, and obligor abandoned efforts to modify future amounts by dismissing the motion to modify in circuit court, the Court of Appeals affirmed the judgment.
Missouri Court of Appeals, Southern District - SD38023
March 2024-Substitute for marriage not shown
Maintenance could be decretal: determined by the circuit court’s judgment and enforced like any other judgment; or contractual: by the parties’ contract not incorporated into the judgment and enforced by an action in contract; or a separation agreement decretal maintenance: contracted and incorporated into the judgment. “This hybrid is decretal for purposes of enforcement and contractual for purposes of modification.” That describes the parties’ maintenance provisions. Statutes allowed the parties to make a separation agreement providing that maintenance was non-modifiable, even by circuit court, and incorporating such a provision into a judgment barred the circuit from modifying maintenance. Maintenance on such a judgment terminated only on death or remarriage of the receiving party, or the receiving party’s equivalent of re-marriage. Equivalent of re-marriage refers to a degree of permanence, financial support, and holding out as “man and wife.” On those matters, the record supported the circuit court’s rulings: that the relationship did not afford respondent the protections of marriage, respondent and respondent’s partner were respectively economically self-sustaining, and that the relationship was not the equivalent of re-marriage. The circuit court did not err in denying appellant’s motion to terminate maintenance. Appellant showed no authority to procure discovery of records from non-parties and no prejudice from the denial of such discovery. The circuit court did not abuse its discretion in ordering appellant to pay a portion of respondent’s attorney fees.
Missouri Court of Appeals, Eastern District - ED111716
February 2024-Termination of parental rights affirmed
In an action to terminate parental rights, the elements include a statutory ground for termination and a “finding that termination is in the child’s best interest [, which] is a subjective assessment based on the totality of the circumstances.” The circumstances relevant to both elements can be the same. The circuit court’s findings on the child’s best interest had support in evidence that appellant parent, not the State, prevented a relationship between parent and child. Such evidence included parent’s inability to care for herself and failure to attempt any relationship during three years of foster care. Reasonable efforts at reunification by the Division of Children’s Services are not a promise of visitation or reunification, and statutes bar returning a child to a parent who has sexually abused the child.
Missouri Court of Appeals, Western District - WD86407
February 2024-Findings on child’s best interest explained
In an action to terminate parental rights, statutes required the State to show a statutory ground for termination and required the circuit court to make written findings of fact on those grounds. The statutes also required the State to show that termination was in the child’s best interests according to statutory factors and required the circuit court to make written findings of fact on those factors. The statutes further set forth policy considerations to guide statutory construction but did not require the circuit court’s written findings of fact on the child’s best interests to address those policy considerations. Because no such findings were required, the circuit court did not err in omitting such findings from its judgment.
Missouri Court of Appeals, Western District - WD86297
February 2024-Must consider childcare costs on Form 14
Rule requires circuit court to calculate child support via Form 14, which requires consideration of a custodial parent’s child-care expenses necessitated by work or school. That rule also allows omission of such expense if supported by findings of fact. Circuit court ordered each parent to bear their own child-care expenses, but entered no amount, and made no findings of fact supporting that omission. Only one party appealed the judgment, but the Court of Appeals remans the judgment for additional findings of fact on child-care expenses of both parties.
Missouri Court of Appeals, Western District - WD86394
January 2024-Visitation enforced by order for family access
Statutes governing custody and visitation require a custodial parent to provide notice of relocation, which no party can prevent, and requires no court approval if unopposed. Any party may seek to revise visitation, but no revision occurs automatically on relocation even if proposed in the notice. Judgment awarded custodial authority to grandmother during visitation without affecting mother’s sole custody. Statutes governing visitation authorize a circuit court to enforce its judgment through specified remedies. Those remedies include contempt. An order of contempt is final when enforced, which ordinarily means a fine or incarceration, but the statutes provide other enforcement mechanisms. Those enforcement mechanisms include compensatory time, a judgment for which is final when the compensatory time occurs. That event started the time for filing a notice of appeal, and appellant’s notice of appeal was timely in accordance with a “special order of the appellate court that permits a late filing of the notice of appeal [,]” as authorized by appellate rule. Nevertheless, all compensatory time has already occurred, so an appeal of that award is moot.
Missouri Court of Appeals, Western District - WD86052
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