MAY 22-28, 2015

 

No Modification of Property Division

 
Statute provides that judgment dividing marital property and debt is not subject to modification, and rule allows action in equity to set aside judgment as to debt only if omitted from judgment, but judgment expressly divided tax debt so circuit court erred in redistributing it.  Reversed, with associated attorney fees award.  Determination of contempt is fact-based, and circuit court did not abuse its discretion in finding no contumacious behavior.  
Deborah A. Walker vs. Jack J. Lonsinger, Missouri Court of Appeals, Western District - WD77805

 

No Guardian ad Litem Required

In motion to modify, statutes provide that circuit court must appoint a guardian ad litem on charges of abuse and neglect and, when not pleaded but evidenced, should treat pleadings as modified to conform to the evidence and appoint a guardian ad litem.  Pleadings do not charge abuse by alleging conduct during the marriage, general unfitness, conduct between mother and father, and conduct of a third party.  Evidence of bad parenting does not necessarily prove abuse.  Court of Appeals infers that transcript omitted from record on appeal would be adverse to appellant’s case.  
Julie Ann Reno vs. Jason C. Reno, Missouri Court of Appeals, Western District - WD77923 

 

MARCH 6-12, 2015

 

Driver’s License Suspended for Child Support Arrearage

Statutes provide that foreign order assessing child support arrearage is not subject to collateral attack, and is subject to enforcement like any domestic order. Enforcement includes suspension of driver’s license on specified amount of arrearage, which competent and substantial evidence showed upon the whole record.  Federal statutes governing garnishment do not apply.  Liability for arrearage does not end with emancipation of children.  
John M. Kelly vs. Missouri Department of Social Services, Family Support Division, Missouri Court of Appeals, Western District - WD77544

 

No Modification of Maintenance Based on Post-Dissolution Conduct

Statutes provide that factors affecting award of maintenance include conduct during marriage but not conduct after marriage. Statute allows modification of maintenance and child support on change of circumstances that is substantial and continuing, meaning that “obligor cannot pay or recipient could meet “reasonable needs with a lesser amount,” recipient’s attempt to alienate children from obligor, and college-aged child’s’ conduct did not show.  Termination of maintenance and child support reversed and remanded to re-calculate modifications using relevant factors.  Record supports characterization of earnings, calculated as a percentage of fees, as commissions. 
Theodore M. Barden, Respondent, vs. Jill L. Barden, Appellant., Missouri Court of Appeals, Eastern District - ED101443

 

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Custody Judgment Was Void

Statutes provide that only courts of home state, as defined, have authority to determine custody.  Home state was not Missouri, so Missouri judgment was subject to collateral attack by action in foreign home state.  Reliance on Missouri judgment did not constitute a meritorious defense to support setting aside judgment registering foreign judgment establishing custody.   
Fallon R. Nestle, Respondent, vs. Brandon E. Johns, Appellant. Missouri Court of Appeals, Eastern District - ED100902

 

Earlier Judgment Prevails

Constitution vests circuit courts with jurisdiction in all civil matters, and statutes provide circuit courts with authority to provide same remedy in more than one action.  Judgment entered in conflict with existing and effective judgment is error.  As to child, earlier judgment in dissolution action gave decision-making authority to both parents.  That judgment remained in effect because statutes provided that child was not emancipated.  Later judgment in guardianship action gave sole decision-making authority to one parent.  Guardianship judgment remanded for further proceedings.  
In the Matter of: S.J.M. Missouri Court of Appeals, Eastern District - ED101082

 

Agreement Enforced

Parties' agreement on division of property, providing a division of "the net from the sale" of soybeans, required use of actual post-harvest revenue, not pre-harvest and pre-sale estimates. Agreement providing for full accounting as to income from marital property provided for deduction of some expenses but not others.  Record supported a reading of the agreement denying deduction of other expenses from award, so that reading was not error, especially when appellant was tardy with accounting.  Court of Appeals amends judgment to correct amount of award.  
Andrea Story, Respondent, vs. George R. Story, Appellant. Missouri Court of Appeals, Eastern District - ED101261

 

No Attorney Fee Award 

Temporary orders of child support are not subject to appeal, even when denominated as a judgment.  Statutes on costs, Uniform Parentage Act, and rule commit award of attorney fees to circuit court's discretion, which it did not abuse in denying, where both parties were difficult.  
In the Matter of: G.K.S., a Minor, By her next friend Kati Jo Spencer and Kati Jo Spencer, Individually vs. Jason Lee Staggs. Missouri Court of Appeals, Western District - WD76982

 

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