ARCHIVED CASES

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Parenting Plan Must Address School Holidays

Weight of the evidence on pendente lite order, work schedules, ability and willingness to parent, allowing contact with other parent, continuity of residence in family home, and relocation, was not against circuit court’s rulings.  Parenting plan’s “first right” provision need not guarantee non-custodial parent sole right to provide care for child when custodial parent cannot.  Statutes require parenting plan to include a dispute resolution provision and appellant did not show that circuit court’s was inadequate.  Statute requires parenting plan for school-aged children to address school holidays, which circuit court’s plan omitted, so Court of Appeals remands judgment.  Missouri Court of Appeals, Western District - WD77280 (January 13, 2015).

 

Change in Circumstances Shown

Substantial and continuing change in circumstances is the standard on motion to modify support.  For motion to modify custody, the standard is a substantial change in circumstances “of the child or thecustodial parent which is significant and directly affects the welfare of the child.”  Child’s welfare suffered after custodial parent’s remarriage and judgment otherwise was against the weight of the evidence.  On motion to modify custody, if circuit court does not find a change in circumstances, circuit court cannot determine whether change of custody is in child’s best interest.

Missouri Court of Appeals, Eastern District - ED101087 (December 23, 2014).

 

 

No “Very Unusual Circumstances” Needed to Support Attorney Fee Award

Point not supported by argument is abandoned.  Court of Appeals presumes that documents omitted from record on appeal support judgment.  Party asserting error in classification of property must not only show that the party overcame the presumption that property was marital but must also show prejudice; point’s failure to charge that resulting property division was inequitable cannot result in reversal.  Deferring to circuit court assessments of credibility, evidence supports amount of maintenance awarded.  Circuit court’s Form 14 used an amount for income that differed from its findings of fact and so reached an erroneous result.  Statute allows circuit court to award attorney fees and sets no “very unusual circumstances” standard.  “An award of attorney fees to a party is not an abuse of discretion merely because that party receives the benefit of a more-than-equal share in the division of property.”  
CHARLES HENRY STROH, Petitioner-Appellant, v. KELLY ANN STROH, Respondent-Respondent. Missouri Court of Appeals, Southern District - SD33052

 

Cause of Action Was Marital Asset

In dissolution of marriage action, all property is presumed marital, subject to rebuttal by “clear and convincing evidence that the property is [separate].”  Presence in record of petition initiating action did not require circuit court to find that action related solely to appellant’s separate property.  Property consisted of rights acquired during marriage and appellant did not appear at trial to show otherwise.  
Michael Lee Muza vs. Dena Leann Muza.  Missouri Court of Appeals, Western District - WD77431

 

Change in Circumstances Shown

Substantial and continuing change in circumstances is the standard on motion to modify support.  For motion to modify custody, the standard is a substantial change in circumstances “of the child or thecustodial parent which is significant and directly affects the welfare of the child.”  Child’s welfare suffered after custodial parent’s remarriage and judgment otherwise was against the weight of the evidence.  On motion to modify custody, if circuit court does not find a change in circumstances, circuit court cannot determine whether change of custody is in child’s best interest. Statutes control venue, so appellate review of a ruling on venue is de novo, not for abuse of discretion.  Statute provides that circuit court that makes a custody determination becomes the exclusive venue for the matter. 
Timothy Scherder, Respondent, v. Trisha Sonntag, Appellant.  Missouri Court of Appeals, Eastern District - ED101087

 

Evidence of Value Needed

Statute provides that increase in value of separate property constitutes marital property if increase came from marital property. But appellant showed only pre-marriage contributions and general maintenance post-marriage, and did not show value of contributions.  Appellant’s evidence of property value and debt did not support his allegations.  As to whether certain real property was separate or marital, circuit court need not credit appellant’s testimony over documentation, and Court of Appeals will defer to circuit court.  
Debra Anne Stone vs. Randy Alan Stone.  Missouri Court of Appeals, Western District - WD77156

 

No Grandparent Intervention

Statutes on grandparent and third party intervention in dissolution of marriage, and intervention in a juvenile action, do not apply in action under adoption statutes.  Grandparent has no standing to intervene unless ordered in an earlier action.  Biological parent’s termination with prejudice of paternity action barred any other action on behalf of child to establish rights of parent or grandparent including guardian ad litem’s cross-petition for paternity.  Rule on intervention as a matter of right did not support grandparent intervention.  Therefore, circuit court erred in awarding grandmother visitation.  
In the Matter of the Adoption of E.N.C., Minor.  Missouri Court of Appeals, Eastern District - ED101311