Missouri Family and Divorce Lawyer Blog

Temporary Custody Orders in Modification Actions

In the case of State of Missouri ex rel. Jennifer Lynne Milner v. Carlton, et al., the Southern District of the Missouri Court of Appeals found that the temporary custody order of the trial court in a modification action  violated the mother's due process rights.  The parties were divorced  in 2005 and mother was awarded the sole legal and physical custody of the children subject to the father's rights of visitation.  Thereafter the mother moved with the children to the State of Kansas without providing the father with the proper notice as required by section 452.377.11, RSMo.  The father filed a motion to prevent the relocation and to modify the dissolution judgment.  Without notice to the mother or an opportunity for her to be heard on the motion, the trial court entered a temporary order awarding the custody of the children to the father.  Mother appealed on the basis that such an order violated her due process rights.  The Southern District agreed because the order, although temporary, deprived the mother of her custody rights given to her in the dissolution judgment and affected her parental rights.  The Southern District ordered  the issuance of a peremptory writ in mandamus whereby the trial court was ordered to vacate the "Order for Temporary Custody" entered June 23, 2006, in the underlying case and to conduct such further proceedings as are necessary and appropriate with due regard for the parties' due process rights.

What is interesting about this case are the footnotes to the case.  The Southern District noted that the reference to "primary" physical custody is no longer appropriate under section 452.375, RSMo.   Custody must now be either sole or joint custody as ordered in the case of In re Marriage of Hendrix, 183 S.W.3d 582, 585 n.2 (Mo. banc 2006).

The Southern District also commented on the prior case law  that has "suggested" that temporary custody  orders are not authorized in modification actions. See, e.g., Fortner v. Fortner, 166 S.W.3d 615, 620 n.3 (Mo. App. 2005); Adams v. Adams, 812 S.W.2d 951, 954-55 (Mo. App. 1991); Muegler v. Muegler, 784 S.W.2d 839, 840 n.1 (Mo. App. 1990).      The Southern District hinted that this may no longer be the case.  This particular action involved a motion to prevent relocation of the children due to lack of notice as well as modification of the dissolution judgment.  It stated that: 

Section 452.377, which governs relocation of a child, expressly provides: "The court shall consider a failure to provide notice of a proposed relocation of a child as ... [a] basis for ordering the return of the child if the relocation occurs without notice[.]" Section 452.377.5(2). Arguably, this provision may provide authority for the entry of a temporary order concerning custody where a child has been relocated without the requisite notice. Given the state of the record before us, as well as the fact that the parties have not raised or argued this issue, we do not believe it would be appropriate to decide the scope of Section 452.377.5(2) in this writ proceeding. Assuming, arguendo, that this provision does authorize the issuance of a temporary order, we nevertheless conclude that Relator was entitled to notice and an opportunity for hearing prior to the entry of such order.

It will be interesting to see what the courts hold in the future on this issue.

Source:  State ex rel. Milner v. Carlton,  SD28192, Missouri Court of Appeals, Souther District, May 23, 2007

   

Adult Abuse - Order of Protection - Stalking

Most cases involving orders of protection involve female vs. male or female vs. female.  You do not see too many involving just males.  Recently the Missouri Court of Appeals, Southern District, had an opportunity to review a case wherein a male sought and was granted a full order of protection under the Adult Abuse Act (sections 455.005 - .090, RSMo) against another male.  In his petition, the plaintiff alleged that the defendant had harassed and stalked him by forcing his vehicle to stop in August 2005 and threatening violence  and to kill him.  The trial court granted plaintiff an ex parte order of protection against the defendant based upon the allegations in the petition.  During the bench trial the plaintiff admitted that he was not a family member of the defendant, that he and the defendant had never resided together, that the threats against had occurred in August 2005 and again in October 2005.  Based upon this testimony the trial court permitted the plaintiff to amend his petition to include the October 2005 incident and it issued a full order of protection against the defendant.  The defendant appealed on three grounds - 1) the petition failed to state a cause of action; 2) the court erred when it allowed the petition to be amended; and 3) the judgment was not supported by the evidence.  The Court found that the first two grounds were moot but due to the repercussions of having a full order of protection on the defendant's record, the appellate court decided to hear this appeal on its merits on the third ground even though the order had expired.

Due to the plaintiff not being a family member of defendant nor having resided with the defendant, the plaintiff was only entitled to an order of protection for stalking.  Stalking is defined to occur when:

[A]n adult purposely and repeatedly engages in an unwanted course of conduct that causes alarm to another person when it is reasonable in that person's situation to have been alarmed by the conduct. As used in this subdivision:

(a) "Course of conduct" means a pattern of conduct composed of repeated acts over a period of time, however short, that serves no legitimate purpose. Such conduct may include, but is not limited to, following the other person or unwanted communication or unwanted contact;

(b) "Repeated" means two or more incidents evidencing a continuity of purpose; and

(c) "Alarm" means to cause fear of danger of physical harm.

Section 455.010(10). The plaintiff had to prove his case by a preponderance of the evidence.  The defendant contended that  the plaintiff failed to do this because there was no evidence that the defendant had engaged in conduct that caused alarm to the plaintiff.  The Court agreed.  The plaintiff had to prove that the defendant:  (1) purposely and repeatedly; (2) engaged in an unwanted course of conduct; (3) that caused alarm to plaintiff; (4) when it was reasonable in the plaintiff's situation to have been alarmed by the conduct. Section 455.010(10).   The Court went on to state:

As defined by this subsection of the Act, a "course of conduct" must be composed of repeated acts over a period of time that serves no legitimate purpose. Section 455.010(10)(a). "Repeated" is further defined to require two or more incidents demonstrating a continuity of purpose. Section 455.010(10)(b). Alarm requires proof that the petitioner was placed in "fear of danger of physical harm." Section 455.010(10)(c). The evidence in the case at bar was deficient in two respects.
First, proof of stalking involves both a subjective and an objective component. Thus, it was essential for Glover to present substantial evidence that: (1) Michaud's threats caused Glover to subjectively fear physical harm; and (2) a reasonable person under the same circumstances would have feared physical harm. Section 455.010(10); Schwalm v. Schwalm, 217 S.W.3d 335, 337 (Mo. App. 2007). At no point in Glover's testimony did he ever testify that he was afraid of Michaud or feared being physically harmed by him. Neither was there a sufficient factual development of the evidence to permit the trial court to reasonably determine whether an objective person in the same circumstances would have felt that way. In short, proof that Michaud threatened Glover during the course of an argument on August 21, 2005 does not, ipso facto, constitute proof that Glover took the threat seriously or that a reasonable person would have done so.
Second, there was insufficient proof that Michaud engaged in the requisite "course of conduct" that is an essential element of stalking as defined by Section 455.010(10). Glover testified, albeit in a most cursory and unsatisfactory fashion, about one incident that took place on August 21, 2005. Later, he testified that Michaud also "blocked the road" and "restrained" Glover on October 20, 2005. In the absence of any factual explanation of what actually occurred on the latter date, however, Glover's naked conclusions did not constitute substantial evidence from which the trial court could draw any reasonable inferences. See Hutchings v. Roling, 151 S.W.3d 85, 89 (Mo. App. 2004) (when devoid of any factual support, a lay witness' conclusions do not rise to the level of substantial and competent evidence). For example, the court was not presented with any facts from which it could determine whether Michaud's conduct on that occasion served a legitimate purpose or would have alarmed a reasonable person. The only facts concerning the events of that day came from Michaud, who testified that Glover's complaint involved nothing more than the ordinary act of slowing down on a highway in order to make a turn. Thus, the evidentiary support for the judgment falls short for this reason as well.
Based on our review of the record before the trial court, we conclude that insufficient evidence was presented to support the entry of a full order of protection against Michaud. This holding prompts us to repeat the following cautionary note from Wallace v. Van Pelt, 969 S.W.2d 380 (Mo. App. 1998):

The potential for abuse of the stalking provision of the Adult Abuse Act is great. And, the harm that can result is both real and significant, not the least of which will be the stigma that attaches by virtue of a person having been found to be a stalker. Moreover, such a finding could lead to criminal prosecution for violation of the criminal stalking statute, Section 565.225. Thus, it is incumbent that the trial courts exercise great vigilance to prevent abuse of the stalking provisions in the Adult Abuse Act and in making sure that sufficient credible evidence exists to support all elements of the statute before entering a protective order.

James B. Glover v. Wiatt Michaud, SD27565, Missouri Court of Appeals, Southern District, May 24, 2007

More Suggestions on Preparing for a Divorce

I want to take the liberty of directing  you to another attorney's blog and his suggestions on how to prepare for a divorce.  The firm of Sherman & Jeffries have the Alabama Family Law Blog and have posted a series of steps on this.  Please take the time to read these steps if you are considering a divorce.  The steps are:

Step 1 - Find a Wise Guide
Step 2 - Make an accounting of the family finances
Step 2A - Determine what you own
Step 2B - Determine what you owe
Step 2C - Determine Income
Step 3 - Make photocopies of all the financial records
Step 4 - Prepare a budget (or two)
Document & Safeguard Personal Property
Step 6 - Establish your own credit
Step 7 - Assess the Financial Accounts
Step 8 - Address the Credit Accounts
Step 9 - Avoid additional debt or major purchases
Step 10 - Stay Put (until further notice)
Step 11 - Keep a diary

Although all of the steps are important, I want to point out step 11 - keeping a diary.  I recommend all my clients, whether going through a divorce or a modification, keep a diary that logs telephone calls and in-person conversations, the date and time of each, and the content of each.  I also have clients keep logs of items involving the children - comments the children make about a situation that is at issue, whether the other parent was involved, etc.  The more you can give the court specifics about an incident, the more likely your testimony is going to be believed by the court.  There are ways to protect this from being discoverable and you should discuss these ways with your attorney.

Social Security/Medicare Elgibility

If you are a stay-at-home parent, do you know how your Social Security and Medicare benefits are affected by a divorce?  You should be, especially if you are being asked to give up your interest in your spouse's Social Security and retirement benefits.  Did you know that unless you have earned 40 Social Security quarters the free Medicare A in not available to you?  Or that if you are between 0 and 39 quarters you will need to have other arrangements made?  Before you sign off on your spouse's benefits, check out your status at www.medicare.gov/MedicareEligibility and discuss the same with your attorney. 

New Books & Website to Review

Here are a couple of books that give information on the divorce process and what a divorce entails.  They are:  Your Pocket Divorce Guide by Linda C. Senn and The Divorce Recovery Journal co-authored by Linda C. Senn. 

You might also want to check out the following website for information on the books and a few articles:   DivorceTransitions.com.

Missouri Child Support FAQs

The following has been provided to the public by the Missouri Bar:

The purpose of this pamphlet is to answer some of the questions frequently asked about obtaining and enforcing support orders, and to give you an idea of the services which are available to assist you in your efforts.

Child Support in Missouri: Establishing and Enforcing Your Rights was prepared by the Young Lawyers’ Section of The Missouri Bar and was generously sponsored by the Young Lawyers Division of the American Bar Association.

Committee: Mary‑Michael Kelly, Esq., chairman, and special thanks to committee members: Melissa Mauer‑Smith, Esq. and Mark Katz, Esq. from the Family Support Division of the Jackson County Prosecutor’s Office, Kansas City, Missouri, for their contributions to this publication.

Copyright 1990, The Missouri Bar

ESTABLISHMENT OF CHILD SUPPORT ORDER

What is child support?

Child support is money that a non-custodial parent is ordered to pay on a regular basis to help pay for the costs of raising his or her child.

What is a child support order?

A child support order is a document from a court or Division of Child Support Enforcement (D.C.S.E.). It states 1) when, 2) how often and 3) how much a parent is to pay for child support. A child support order is usually included in a divorce judgment or paternity judgment.

Am I entitled to obtain a child support order?

If you have physical custody of your child rather than legal custody, if you are in the process of getting divorced, or if you are separated from your spouse, or if you have actual custody of a child for whom paternity has not been legally determined and there is no support order, then you are probably entitled to obtain an order for child support.

What amount will I receive for child support?

The State of Missouri has established guidelines for child support orders. These guidelines consider the needs of the child(ren) and the income of each party, i.e. the custodial and non‑custodial parent, and costs for child care and health insurance. Therefore, the amount of child support you receive will be different depending on your individual circumstances.

Who can change or terminate a child support order?

Only the court can change or terminate court ordered child support orders. Under no circumstances can the parties agree between themselves to alter a court order without the court’s permission.

In cases where D.C.S.E. has issued an administrative order, D.C.S.E. has the power to modify the child support amount.

How do visitation and joint custody affect child support?

Child support is not affected by visitation in most cases. Only a court can change a child support order because a custodial parent has not allowed the court ordered visitation. By the same token, visitation cannot be denied because a parent is behind in child support payments. D.C.S.E. is not allowed to get involved in visitation issues.

Any questions you may have on visitation issues should be discussed with your attorney.

In my divorce decree, the court did not order any child support. Can I apply for child support now?

You may be able to obtain an order of child support administratively or through the court depending on the language in your divorce decree and the circumstances.

Also, you may wish to speak with an attorney about changing the terms of your original decree. In some cases, the court may change an order of child support if the evidence supports a modification.

Who can order child support to be paid?

A child support order can be entered in several ways. A judge may issue a temporary order while a divorce or legal separation is pending, and the order may be finalized at the end of the case. A judge may issue an order as part of a paternity case. An order may also be entered as part of a juvenile proceeding, or as part of an adult abuse action. If a court has not already ordered child support, the director of the Division of Child Support Enforcement may issue an order in certain cases.

What is the Division of Child Support Enforcement?

The Missouri legislature set up the Division of Child Support Enforcement to assist parents in obtaining child support orders and in collecting child support. It is sometimes referred to as a IV‑D agency, because it was created under Title IV‑D of the Social Security Act.

In this pamphlet it will be referred to as D.C.S.E. The services offered by the D.C.S.E. are free.

How can I sign up for the services of D.C.S.E.?

Applications for child support assistance can be obtained at your local D.C.S.E. office. Check your local telephone directory for the Division of Child Support Enforcement office located nearest you.

Do I have to meet any financial qualification in order to obtain the assistance of the Division of Child Support Enforcement?

The child support services are available to all custodial parents, regardless of income level.

Can I get child support if I am receiving state aid?

As an A.F.D.C. recipient, you have signed over your rights to child support to the state. The state, through D.C.S.E., will try to establish and enforce a child support order. The money collected will be turned over to the state to pay back the state aid which you have received.

If you are receiving state aid, your caseworker should be able to answer your questions about their policies.

Who keeps track of my child support payments?

In all cases, child support payments are tracked through the Family Support Payment Center (FASTPAC).

 

When does the child support obligation end?

Usually, child support will terminate at the age of emancipation, which differs in each state. In most cases in Missouri, the obligation to pay child support will end when the child is between the ages of 18‑22 years. The actual date of emancipation will depend on whether the child has graduated from high school and is attending some form of higher education. Other factors include whether the child is married, is on active duty in the armed forces, or is self‑supporting.

My spouse and I are separated, but neither one of us has filed for divorce or legal separation. Our children are living with me. What can be done to get child support for my kids?

The Division of Child Support Enforcement can obtain a child support order for a custodial parent through administrative procedures.

The D.C.S.E. does not handle divorces; therefore, you may wish to contact an attorney to discuss your other options.

PATERNITY ISSUES

The father of my child and I are not married. Can I receive child support from him?

Your case can be handled either by D.C.S.E. or your own attorney and would generally be called a paternity case. In a paternity case, once paternity (fatherhood) is established, you may be able to obtain child support from him for your child.

How long does it take to get an order establishing paternity?

If the father of the child is unwilling to cooperate in establishing paternity and it must be proven that he is the father, establishing paternity can be a long process. Every case is different and the time span varies widely. If, on the other hand, the father legally admits his paternity, the case can proceed fairly quickly.

Will a blood test be done in my paternity case?

Generally, in cases where a man denies that he is the father of your child, the alleged father is entitled to request a DNA genetic parentage test to determine if he is the biological father. Sampling may be obtained by blood or buccal (cheek) swab. Today the vast majority of testing is performed using buccal cells, rather than blood. This technique is approved by the paternity testing accreditation organization, the American Association of Blood Banks.

ENFORCEMENT OF CHILD SUPPORT ORDER

I already have a child support order, but the other parent isn’t paying. What’s the next step?

Once you have a child support order, if the support is not being paid, the next step is to enforce the order. You may try to enforce the order on your own, or you may wish to speak with an attorney or go through D.C.S.E.

How can a child support order be enforced?

Usually, the quickest and most effective ways to enforce a child support order are through wage assignments and garnishments. These are orders to employers, banks and others who may owe money to the absent parent to pay the delinquent child support instead of the absent parent. Other methods of enforcement include real estate liens, personal property liens and attachments. These methods are usually more time‑consuming and, in the case of attachments, may involve large cash deposits to cover sheriff’s fees, storage and court costs.

What is civil contempt of court?

A civil contempt order is one way that a judge can enforce a child support order. In certain circumstances an absent parent may be sent to jail until he or she pays off the child support arrearage. Civil contempt is a very complicated area of law. It is recommended that you consult an attorney or the D.C.S.E. rather than trying to obtain a civil contempt order on your own.

What if the absent parent is not in Missouri?

The fact that an absent parent does not live in this state may make child support collection more difficult. However, all 50 states have passed laws which increase interstate cooperation. You may wish to contact your attorney to discuss the possibility of registering your child support order in the absent parent’s state.

D.C.S.E. has the ability to cooperate with IV‑D agencies in other states through administrative procedures. The agencies may also work together by filing a petition under the Uniform Reciprocal Enforcement of Support Act (URESA).

What will happen to the child support if I move out of Missouri?

In most cases, child support is not affected if you leave the state. If you have child support collection problems, you should contact the IV‑D agency in your new location. You should be aware, however, that leaving the state may have implications where custody and visitation are concerned.

If you are thinking of leaving the state, it is recommended that you speak with your attorney to get a full explanation of your rights and responsibilities.

What can I do to help the D.C.S.E. obtain and/or enforce the child support order for my kids?

You can provide all information and required documents with your application. You can keep D.C.S.E. advised of any new information on location or employment of the absent parent.

What about:

Custody ? Visitation ? Divorce ? Abuse ? Mediation/Arbitration ?

These issues are beyond the scope of this pamphlet and you may wish to discuss them with your attorney. The D.C.S.E. does not have the authority to deal with these issues.

Source:  The Missouri Bar

Also take a look at a new website, The Child Support Web, for information about child support in various states or to find an attorney in the different states.