Lee's Summit Family Law Update Blog

August 2025- Contempt order not final 

Statutes alone determine whether a party had any right to, and whether an appellate court had authority to hear, an appeal. Appeals were generally possible only from final judgments, which did not describe orders of contempt until enforced. Enforcement of the appellant’s contempt order was by fine, on which the respondent had not attempted to execute, so the order was not subject to appeal. A ruling could also be subject to appeal if the matter ruled on was discrete from other pending matters and a circuit judge certified that there was no just reason for delay. A later order met none of those requirements. The Missouri Court of Appeals dismissed the appeal. 

Donna J. Scalise, Respondent, vs. William J. Scalise, Appellant. 

Missouri Court of Appeals-Eastern District - ED112945

August 2025- Repentance preserved parental rights 

Appellate courts had discretion to review a point relied on that did not comply with appellate rules. To grant a petition for adoption without the parents’ consent required termination of parental rights, which focused on the parent/child relationship. One parent’s relationship with the child remained strong personally despite financial neglect. Neglect did not necessarily constitute abandonment, because abandonment depended on the parent’s intent to abandon, which mere token contacts did not negate. But the circuit found meaningful contact and parental repentance, especially in the six months before the filing of the petition, and that finding had support in the record. That finding barred any grant of the petition and whether the circuit court erred in denying termination of the other parent’s rights was therefore moot. The circuit court denied the petition, and the Missouri Court of Appeals affirmed that judgment. 

In the Matter of: K.W.C.B., now legally known as K.W.C.W., a Minor Child; D.S.B. vs. A.L.B. (Mother) and K.W.W., (Father) 

Missouri Court of Appeals-Western District – WD87594

August 2025- Attorney fee award affirmed 

Judgments of contempt were not final until “[a]ctual enforcement — and not the mere threat of enforcement[.]” Enforcement of a fine occurred on execution. No execution had occurred on the judgment appealed, only a withdrawn order of commitment on an earlier judgment, so the Missouri Court of Appeals dismissed the point appealing the contempt judgment. A contempt judgment’s award of attorney fees was, however, subject to appeal because it was not a coercive mechanism. The award was presumptively correct subject to an abuse of discretion that the record did not show. The Court of Appeals affirmed the award. 

Renee T. Vaught (a/k/a Renee Lepper, a/k/a Renee Wilde) vs. Shawn Vaught

Missouri Court of Appeals-Western District – WD87742

August 2025- Termination of parental rights affirmed 

The appellant waived review of the social study’s admission into evidence by stating “no objection” and objecting in a motion for new trial was no substitute for a timely objection. Sufficient evidence supported a finding that five out of seven statutory factors showed that termination of parental rights was in the child’s best interest. Abuse of discretion occurred when circuit courts denied motions to re-open the evidence and no inconvenience to the circuit court or disadvantage to any party would have followed, which was usually the case when the motion occurred before judgment. But after judgment, the appellant’s motion to re-open the evidence constituted a great inconvenience to the circuit court and would have been unfair to the respondent county juvenile office. Asking an appellate court to re-weigh the evidence constituted a failure to resolve disputed evidence in favor of the judgment as required for an against-the-weight-of-the-evidence challenge. 

IN THE INTEREST OF D.J.Z., a minor child under seventeen years of age, MISSOURI DEPARTMENT OF SOCIAL SERVICES, CHILDRENS DIVISION, and, CRAWFORD COUNTY JUVENILE OFFICE, Petitioners-Respondent v. D.Z., Respondent-Appellant 

Missouri Court of Appeals-Southern District – SD38618

July 2025- Consent judgment reviewed 

For an evidentiary hearing, any error in the appointment of a special master was rendered moot by the parties’ settlement. Parties who received a judgment in accordance as requested were not aggrieved, but that principle assumed that the circuit court acted on the parties’ valid consent. Consent was not valid due to a head injury, the appellant alleged, so the Missouri Court of Appeals reviewed whether the judgment embodying the parties’ settlement was unconscionable. That matter was the subject of the appellant’s motion for new trial, on which the circuit court made a record, on which the circuit court’s findings of fact were due deference in the Court of Appeals. The record supported the rulings, including an award of attorney fees for the respondent. Rulings on untimely motions were void, including an order on an after-trial motion filed more than 30 days after entry of judgment, so the Court of Appeals dismissed the point relied on appealing such a ruling. 

Matthew J. Weiss, Respondent, vs. Mary D. Weiss, Appellant. 

Missouri Court of Appeals-Eastern District – ED112738

July 2025- Record supported parenting plan 

“[G]reater deference than other decisions” was due the rulings of circuit courts on child custody. Child custody decisions were subject to appellate review for abuse of discretion. Abuse of discretion might not occur even when the record did not “clearly preponderate in favor of either parent” so, when the evidence could support a determination for either party, appellate courts affirmed the circuit court’s determination. Factors that guided custody determinations included the parents’ proposals, the child’s relationships and contacts with parents and other family, the child’s adjustment to social settings, relocation issues, and the well-being of all individuals involved. On each factor, substantial evidence supported the circuit court’s rulings, so the Missouri Court of Appeals affirmed the judgment. 

S.P.S., by their next friend, E.W.S., and E.W.S., individually, Respondents, vs. K.A.E., Appellant. 

Missouri Court of Appeals-Eastern District - ED113100

June 2025- Income imputed 

Though the appellant’s brief departed from the analysis required for an against-the-weight-of-the-evidence challenge, was deficient as to its statement of facts, and the facts necessary to resolution appeared in respondent’s brief, the Missouri Court of Appeals reached the appeal’s merits. In calculating a party’s income, circuit courts could impute income to a party who voluntarily reduced their earning capacity, and the record supported such imputation to the appellant. In calculating child support, parochial school expenses could not constitute basic obligations but could constitute extraordinary education expenses, if a party showed an educational need. No educational need appeared in the record, merely one party’s preference, so the Court of Appeals reversed the award as to parochial school tuition.

Jennifer J. McKenna vs. Steven E. McKenna 

Missouri Court of Appeals-Western District – WD87213

June 2025- Child support amount must stand on record Circuit courts that rejected the parties’ Form 14s had to prepare their own Form 14s based on the record. Circuit court-drafted Forms 14 were presumptively correct subject to a finding that they are “unjust or inappropriate[.]” The circuit court made a record on the amount of child support due. Based on that record, the circuit court rejected the parties’ Form 14s and drafted its own Form 14. It then rejected its own Form 14, without any finding that any amount was unjust or inappropriate, and entered an amount in accordance with an interlocutory order four years old. That ruling constituted a misapplication of law, so the Missouri Court of Appeals entered judgment awarding child support in accordance with the circuit court’s Form 14. 

C.A.W., Respondent, vs. N.K.D., Appellant. 

Missouri Court of Appeals, Eastern District – ED112725

June 2025- Income imputed, calculations explained

Circuit courts could impute income to parties whom the courts found underemployed. Such a finding had support in a party’s resignation from, and abandonment, of a lucrative career in favor of self-employment. A property division awarding assets 58/42 was not an abuse of discretion, and the circuit court correctly calculated maintenance and support, in that order.

Joy Janelle McVean, Respondent, vs. Anthony David McVean, Appellant.

Missouri Court of Appeals, Eastern District - ED112557

June 2025- Termination of parental relationship affirmed 

Grounds for termination of parental rights included failure to rectify the conditions that required state action. That ground had support in evidence of inconsistent compliance with a service plan, especially as to unsafe and unsanitary household conditions despite extra ordinary agency support, and irreversible mental impairment. Grounds for termination of parental rights also included unfitness to parent, of which a presumption arose when the child had spent a specified amount of time in foster care, bolstered by evidence of household conditions and child’s ingestion of marijuana. The state showed the child’s best interest was in termination of parental rights with evidence of that there was no parent/child bond and parent’s disinterest during visits. The circuit court did not err in denying a parent’s motion to re-open the record solely as a back-up strategy when the parent’s primary strategy failed. 

In the Interest of: S.R.W. 

Missouri Court of Appeals-Eastern District – ED87157

May 2025- Sole physical custody affirmed 

Joint physical custody with equivalent parenting time was presumed to be in the best interests of the children, subject to specified factors. Evidence relevant to such factors included appellant’s paranoiac and controlling behavior, removal from family contacts including appellant’s side, and threats of dilatory legal tactics. Relevant evidence of abuse was not limited to violence against the children but included abuse against respondent, which was especially probative when it occurred in the children’s presence. The circuit court’s award of sole physical custody to respondent did not misapply the law and was not against the weight of the evidence.

In Re: The Marriage of Brian L. Campbell vs. Shelbie E. Campbell 

Missouri Court of Appeals-Western District – WD87402

May 2025- Texas orders did not require dismissal of Missouri motion to modify child support 

The Uniform Child Custody Jurisdiction and Enforcement Act presumed that the first state to adjudicate child custody or support retained continuing and exclusive authority over those matters, subject to orders from and discussions with courts of another state, which other states could enforce pending final judgment. Under that law, a Texas court order temporarily modifying child custody supported the circuit court’s dismissal of movant’s motions for access and contempt. Holding otherwise “would create the possibility of inconsistent enforcement of the Texas Order and subvert the purpose of the [act] ‘to avoid jurisdictional competition and conflict.’” But the act did not govern child support, so the Texas orders did not support dismissal of movant’s motion to modify child support, and the circuit court erred in dismissing the motion to modify child support. 

Jennifer L. Schutter vs. Paul J. Seibold

Missouri Court of Appeals-Western District - WD86995

May 2025- No support for educational expense award 

Judgment on a motion to modify a parenting plan and child support was subject to review for abuse of discretion. No abuse of discretion occurred when the circuit court rejected appellant’s challenge to the presumed child support amount based on additional travel expenses because the judgment showed that the circuit court generally considered all the evidence and specifically considered travel expenses. The presumed child support amount covered a child’s ordinary living expenses, including education, and any further award of expenses had to be extraordinary. Zero dollars was the circuit court’s finding as to extraordinary expenses, so an additional award for educational expenses was duplicative, and the Court of Appeals reversed that award. 

Jonathan Hereth vs. Brandy Hereth 

Missouri Court of Appeals-Western District – WD87174

April 2025- Third-party visitation affirmed 

The non-waivable nature of subject matter jurisdiction issues like standing means that a party may challenge the standing once but may still waive it later. Visitation with and custody of a child were available to a person unrelated to the child by blood or marriage. Such an award was available by independent action on grounds that included having acted a primary parent, unfitness of the primary custodian, and the child’s best interest and welfare. When a proposed judgment came before a circuit court, and the parties agreed to it, the circuit court could enter it as a consent judgment. Consent described the parties’ visitation schedule but the judgment was otherwise subject to the circuit court’s review of and determinations on the parties’ filings. The Missouri Court of Appeals denied respondent’s motion for sanctions because respondent’s argument were not frivolous, just unsuccessful.

In Re the Matter of: A.L.P. and S.H.P., Minors; Alicia Smith vs. Lora Martinez 

Missouri Court of Appeals-Western District – WD87406 consolidated with WD87522

April 2025- No notice of right to appointed counsel was necessary 

Constitutional provisions gave appellant parent the right to appointed counsel when parental rights were at stake. In an action to terminate parental rights, statutes required notice of the right to appointed counsel. Appellant received no notice of the right to appointed counsel and received no appointed counsel until after judgment was final. Appointed counsel then preserved the matter of notice for appellate review by raising it at the first opportunity. But appellant was not party to an action to terminate parental rights; appellant was party to an action for adoption without parental consent because of abandonment. That action had the effect of terminating parental rights, but no statute required notice to appellant of the right to counsel. The Missouri Court of Appeals affirmed the judgment. 

IN THE INTEREST OF A.D.S.: N.A.W., Respondent vs. R.L.S., II, Appellant 

Missouri Court of Appeals-Southern District – SD38621

April 2025- Counsel not shown ineffective 

In an earlier action, the juvenile division found appellant biological parent guilty of neglecting child, and parent did not appeal that judgment. That finding rendered parent’s consent unnecessary in a later action by respondent guardians to adopt child and, in effect, terminate parent’s parental rights. In an action to terminate parental rights, parent had the right to appointed counsel. Appointed counsel had to be “effective in providing his [or her] client with a meaningful hearing based on the record.” The record on appeal from the later judgment did not include documents from the earlier action even if included in an appendix to the record on appeal from the later judgment. Parent included those documents to show that the earlier judgment was jurisdictionally flawed because he received no notice of the action as the putative father. But parent’s biological fatherhood was revealed only at the end of the earlier action, so no such notice was due in the earlier action. And, even if notice was due in the earlier action, a challenge to the earlier judgment in the later action would have constituted a collateral attack on the earlier judgment. For those reasons, arguments related to the earlier judgment would have been meritless arguments that trial counsel need never make to be effective. To be ineffective meant that trial counsel was effectively absent, which the record of trial counsel’s rebutted, with trial counsel’s examination and cross-examination of witnesses on the allegations in dispute in the later action. The Missouri Court of Appeals affirmed the judgment granting the respondent guardians’ adoption of child. 

IN THE MATTER OF A.R.H., a minor, J.M.J. and B.L.N.J., Respondents vs. E.R.T., Jr., Appellant

Missouri Court of Appeals-Southern District – SD38536

March 2025- No Set Format for Considering Custody Factors

Statutory factors guiding contested awards of child custody included any history of abuse and adjustment to school. During elementary school attendance over the course of four years, child received inappropriate touches from fellow students twice. The circuit court set forth its consideration of those incidents, did not have to give appellant’s testimony more weight than it did, and did not have to set forth that consideration under the factors of abuse and adjustment to school. The circuit court denied the motion to modify child custody and the Court of Appeals affirmed the judgment.

In Re: The Marriage of J.J., Petitioner-Appellant v. D.J., Respondent-Respondent

Missouri Court of Appeals, Southern District - SD38576

March 2025- Termination of parental rights affirmed 

Substantial evidence showed that that appellant had failed to rectify the circumstances that brought appellant’s children into the circuit court’s authority more than a year before, and the circuit court found that evidence clear, cogent, and convincing. The evidence included: incomplete parenting education, counseling, and substance abuse treatment; unstable home and employment; and failure to communicate with Children’s Division and visit children. The circuit court did not abuse its discretion in finding that the best interests of the children favored termination of parental rights. The circuit court terminated appellant’s parental rights and the Missouri Court of Appeals affirmed that judgment. 

 In the Interest of L.M.S. & L.S.S., Minors. 

Missouri Court of Appeals-Eastern District – ED112602 and ED112603

March 2025- No right to appear at trial

The absence of a written motion was sufficient grounds to deny a continuance. No continuance was necessary to permit appellant’s appearance when released from jail because “A party has no constitutional or statutory right to appear in person at a civil trial. It is well settled that a prisoner is not entitled to perfect access to the courts; an incarcerated person is entitled to meaningful access. This right of access is satisfied by the presence of sufficient alternatives to a personal appearance when the prisoner makes a timely request” Zealous counsel, with whom appellant had met during a previous continuance, sufficed as an alternative to a personal appearance at trial. A challenge to a judgment as against the weight of the evidence required consideration of all evidence supporting the judgment, which appellant omitted. The circuit court’s finding that termination of appellant’s parental rights was in the child’s best interest had support in evidence that appellant failed to visit the children consistently and provide support during foster care. “When a parent refuses ‘to cooperate with and fail[s] to progress in services offered, the court may find that additional services would be useless.’”

In the Interest of K.G.K. and A.R.K., MISSOURI DEPARTMENT OF SOCIAL SERVICES, CHILDREN'S DIVISION, Respondent v. S.J.K., Appellant

Missouri Court of Appeals, Southern District - SD38474 and SD38654

March 2025- Maintenance re-calculated 

One party’s transfer of assets into a trust with the other spouse’s property raised a presumption of transmutation from separate to marital property, which required clear and convincing evidence to rebut, which the appellant did not offer. In calculating maintenance, the circuit court erred in reducing the respondent’s income by gross income by itemized deductions and Child Tax Credit. In calculating the appellant’s liability for child support, Form 14 prescribed a three-year income average, but allowed departure from that standard, and the circuit court did not err in using a four-year average. That average supported including private school tuition in child support. Judgment reversed and remanded for the circuit court to order maintenance and child support in amounts as found by the Missouri Court of Appeals. 

Melissa M. Carter, Respondent, vs. Drew B. Carter, Appellant. 

Missouri Court of Appeals-Eastern District - ED112335

February 2025- Income evidence was stale Maintenance was due for parties with insufficient property to support their reasonable needs without employment. The award of maintenance was not against the weight of the evidence because the evidence showed that reasonable expenses were greater than current income. But the circuit court awarded child support on evidence that did not reflect current earning capacity so that award was against the weight of the evidence. A physical custody award less than three out of 14 days did not constitute joint physical custody, but that award had support in the evidence that favored one parent with five out of eight statutory factors, the remaining factors favoring neither party. The circuit court did not err in finding that relocation of the parties’ children was in good faith and in the children’s best interest and designating the relocating parent’s address for educational purposes. The Missouri Court of Appeals remanded the action for the circuit court to characterize custody as sole custody and re-calculate child support using current information. 

CLAIRE S. WILKERSON, Respondent v. CLAY M. WILKERSON, Appellant 

Missouri Court of Appeals-Southern District – SD38454

February 2025- No action for non-paternity A motion to dismiss for failure to state a claim tested only whether the petition’s allegations described facts on which the law offered relief. The Uniform Parentage Act allowed challenges to an affidavit of paternity based on material mistake of fact. The elements included evidence not considered before a judgment of paternity, which the petition negated: The plaintiff alleged that he knew, before signing the affidavit of child’s paternity, that the plaintiff was not the child’s father. The court did not err in dismissing the petition. 

C.M.G., Petitioner/Appellant, vs. B.M.C., Respondent/Respondent, O.R.C., Minor, and State of Missouri, Dept. of Social Services, Family Support Division, Respondent/Respondent.

Missouri Court of Appeals-Eastern District - ED112716

February 2025- Child support payment affirmed 

In an action to determine child support due, the record supported the calculations of the Missouri Family Services Division, including the division’s correction of its earlier error. The record also showed that the appellant obligor had counted Kansas payments twice. Therefore, the circuit court did not err in affirming the division’s decision. 

 Bryan L. Oliver vs. Lindsay King, F/K/A Lindsay Oliver, State of Missouri, Department of Social Services, Family Support Division 

Missouri Court of Appeals-Western District – WD87471

February 2025- Good cause was no defense to civil contempt 

Parties were liable for civil contempt on proof that they failed to meet an obligation imposed by a decree of dissolution of marriage. The circuit court found that the obligor’s failure to pay child support was willful and contumacious but also found that the obligor had good cause. Good cause applied to actions for failure to pay child support, not to actions for civil contempt. The earliest that a circuit court could order a retroactive modification of child support was the date on which the responding party received personal service of a motion to modify filed in Missouri, not the motion to modify filed in Kansas. The Missouri Court of Appeals reversed the judgment as to the retroactive date and reconsideration of civil contempt and an award of attorney fees in the contempt action. 

Jon P. Whitton vs. Heather A. Whitton (NKA Peterson) 

Missouri Court of Appeals-Western District – WD86940 consolidated with WD86952

January 2025-Joint legal custody required 

Appellant’s briefing violations did not impede appellate review so the Missouri Court of Appeals denied respondent’s motion to dismiss the appeal. Statutory grounds for dissolution of marriage included a finding that the marriage was irretrievably broken, which the record supported with a “prolonged history of discord[.]” But that finding did not require an award of sole legal custody, and the record showed a “commonality of belief in parenting decisions” that supported an award of joint custody as favored by statute. The Missouri Court of Appeals reversed the judgment as to sole legal custody and remanded the action for the circuit court to enter a judgment for joint legal custody. 

Deborah S. Thornburg, Respondent, vs. James T. Thornburg, Appellant. 

Missouri Court of Appeals-Eastern District - ED112178

January 2025- Parenting time was “approximately equal”

For child custody, statutes established a presumption favoring “approximately equal parenting time to each parent[.]” That presumption did not require a 50-50 split, and the standard remained the child’s best interest, which depended on the circumstances before the circuit court. The circuit court applied that standard to the facts, as the circuit court found them, and consistently with its credibility determinations. Contrary evidence was not relevant on appeal, even though appellant was a physician. “[A]n expert’s opinion is not entitled to more weight, as a matter of law, than a lay witness’s testimony or even any weight at all[.]”

Frank Chan vs. Elizabeth Chan

Missouri Court of Appeals-Western District - WD87136

December 2024- Custody award and property division affirmed 

Circuit court determinations on child custody were due even more deference than determinations in other cases. In determining custody, circuit courts had to apply factors set out by statute for determining the child’s best interests, but only as made applicable by the evidence, and did not have to discuss factors not at issue. The circuit court’s “meticulous” findings of fact addressed the applicable factors. The record showed that the circuit court carefully weighed the evidence and its judgment was not against the weight of the evidence. The record supported a range of valuations for the parties’ real property ands the circuit court’s chosen amount was within that range. 

Aylicia D. Mickow, Appellant, vs. Cody F. Mickow, Respondent 

Missouri Court of Appeals, Eastern District – ED111927

December 2024- Grandparent lacked standing to seek visitation 

In an action for guardianship, one statutory subsection set forth factors for ruling, but the circuit court applied factors for ruling on custody. The Missouri Court of Appeals remanded the action to apply the correct factors to claims for co-guardianship and co-conservatorship. The circuit court also awarded visitation to a grandparent. Grandparents had standing to move for visitation only as the statutes provided: when denied reasonable visitation for a prescribed period, with one of several other specified facts. The movant did not show either element. The Court of Appeals reversed the judgment as to granting visitation. 

In the Matter of: G.H., 

Missouri Court of Appeals-Eastern District – ED112324

November 2024- Joint custody reversed In an action for paternity, the statutes favored joint custody, in which the parents confer with one another and make decisions together. When the circuit court found that “To date, neither parent has demonstrated a willingness to communicate with the other parent or to involve the other parent in the child’s life[,]” and found the parents unable “to co-parent without disputes and the complaints from both parents regarding the behavior of the other parent during exchanges and in the child’s presence at doctor appointments[,]” awarding joint custody was an abuse of discretion. Evidence supporting a change to the child’s surname included evidence that the child already had two middle names, so a hyphenated surname would be cumbersome, and the parties’ earlier agreement that the child would bear the father’s surname. Objections to notice of the name change and Form 14 calculations, not made in circuit court, are unavailable on appeal. Evidence that the special-needs child was “well-adjusted and thriving” in the child’s current school supported assigning the father’s address to the child over the mother’s, especially when the mother wanted to move to North Carolina.

Ron Elliott Irving, Individually, and I.D.A.A., Minor Child, by Next Friend, Ron Elliott Irving vs. Jenny Anne Angstrom 

Missouri Court of Appeals-Western District – WD86648

November 2024- Termination of parental rights affirmed Statutes allowed termination of parental rights on facts described by statute and the children’s best interests. The statutory grounds included failure to rectify the conditions that brought the children into circuit court, which the state showed with evidence that the parent had a chemical dependency that she refused to treat, and that disabled the parent from parenting. Facts relevant to the children’s best interest included parent’s irregular visits, spending on chemicals instead of children, failure to follow a plan of correction, children’s distress during visits with the parent, and parent/child role reversal. The Missouri Court of Appeals affirmed the judgment terminating parental rights. 

In the Interest of A.D.G. and B-J.J. 

Missouri Court of Appeals-Eastern District – ED112626

November 2024- Paternity judgment changed child’s surname 

No presumption assigned either parent’s name to a child born outside of marriage. Statute governing paternity actions authorized circuit court to make any order on “[a]ny matter in the best interest of the child.” That included changing the child’s name. Factors guiding circuit court’s exercise of discretion included local custom, comfort, and fostering a relationship with parents bearing the same name. The circuit court did not abuse its discretion in ordering the child to bear a hyphenated surname composed of the parents’ surnames. 

In Re the Matter of: H.G., By Their Next Friend, K.B., and K.B., Individually vs. C.G. 

Missouri Court of Appeals-Western District – WD86704

October 2024- Time in foster care supported termination of parental rights 

Statutes allowed termination of parental rights, if in a child’s best interests, on proof of a statutory ground. The statutes provided multiple grounds for terminating parental rights but only one was necessary. Grounds for terminating parental rights included parental unfitness, which the statute presumed if the child had spent a specified amount of time in foster care. That included foster care resulting from parent’s incarceration, though the incarceration was not per se cause for terminating parental rights, depending on the effect on the child. The circuit court did not err in finding that time in foster care allowed termination of parental rights. As to whether termination of parental rights was in the child’s best interests, the statutes provided multiple factors to determine, of which any one supported termination. Therefore, so a challenge to less than all factors found left unchallenged factors supporting termination, requiring affirmation of the judgment terminating parental rights. 

In the Interest of Z.R.L.C., GREENE COUNTY JUVENILE OFFICE, Respondent vs. C.R.A.W., Appellant 

Missouri Court of Appeals-Southern District – SD38520

October 2024- Record had to be re-opened for required documents 

In an action for adoption, the most important factor was the child’s best interest, and statutes informed that determination by requiring investigations and the filing of reports. On a motion to re-open the record, the moving party’s lack of diligence was grounds for denying the motion. Incomplete and stale compliance show that no independent determination occurred and could not support a judgment. Post-judgment compliance was irrelevant. The circuit court abused its discretion by denying a motion to re-open the record for the filing of required reports. The Court of Appeals reversed the judgment and remanded the action with the abjuration that an adoption proceeding’s primary purpose is not to litigate paternity. 

In the Matter of M.D.P., a minor., Respondent, vs. T.P., Appellant. 

Missouri Court of Appeals-Eastern District - ED112029

October 2024-Self-employed income discussed

A rule specifically preserved the right to enter a limited appearance without waiving any challenge to personal jurisdiction. The defendant entered a limited appearance to challenge personal jurisdiction via a motion to dismiss so, even though the circuit court denied that motion, a later motion did not waive that challenge. After multiple issuances of summonses and multiple attempts at service, service of process occurred within the time required by rule from the issuance of the respective summons. That date set the earliest time for retroactive abatement of child support for failure to send documentation on higher education. Such abatement was within the circuit court’s discretion, which the circuit court did not abuse. Pre-trial proposed findings of fact and conclusions of law did not constitute a request for written findings of fact and conclusions of law; and, even if it did, the judgment was sufficiently detailed to avoid prejudice. Any error in denial of discovery on financial information was invited when the parties agreed as to which financial information to use. A party who agreed to a transfer of property could not appeal it and, even if that party could appeal, no prejudice occurred where the transferred property remained dedicated to the agreed purpose. The merits of such transfer was “outside the record.” Rule included the form for calculating child support, including imputation of income, to which a comment allowed judicial notice of specified published statistics. The circuit court did not err in calculating income for a self-employed parent. Stale evidence could not support a finding on income, but the record showed that an old loan application went only to impeachment and was not substantive evidence. Expanding the record was impossible once an appeal started.

Evita Tolu, Appellant, vs. Robert J. Stientjes, Respondent.

Missouri Court of Appeals-Eastern District - ED112115

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. 

Scott Lavery vs. Rebecca Lavery 

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.

IN RE THE MARRIAGE OF BRITTANY M. SMITH, Respondent v. PATRICK A. SMITH, Respondent and GOLDIA M. KRANAWETTER, Proposed Intervenor/Appellant

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.

In the Interest of A.J.C.: L.E.R. and L.C.R. vs. A.J.C.

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.

STATE OF MISSOURI, Respondent v. CHAZ D. LEWIS, Appellant

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.

BRANDON SCHIESSWOHL, Appellant v. BOBBI SPAIN, Respondent

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.

LEROY F. GILBERT, Respondent v. ANDREA D. CHRISMER-STILL, Appellant

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.

Deborah Pagoria, Appellant, vs. Jerrold Pagoria, Personal Representative of the Estate of Nick S. Pagoria, Respondent.

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. 

J.W., Juvenile by her next friend K.C.G. and K.C.G. Individually as next friend for J.W. vs. N.R.W. 

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.

Stephen C. Kronk vs. Aleek J.C. Awan

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.

Carol Cullen, Respondent/Cross-Appellant, vs. Robert Bernstein, Appellant.

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.

IN THE INTEREST OF A.R.S., J.D.S., J.E.S., L.K.S., and T.E.S., MISSOURI DEPARTMENT OF SOCIAL SERVICES, CHILDREN'S DIVISION, Respondent vs. G.D.S., Appellant

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.

IN THE INTEREST OF M.L.P. and M.R.P., WAYNE COUNTY CHILDREN'S DIVISION, Respondent vs. A.N.B., Appellant 

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.

Derek Maxwell, Respondent, vs. Christina Maxwell, Appellant.

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.

In Re the Matter of: A.I.A.K. & E.H.K. by S.A.K. as Next Friend and S.A.K. Individually vs. T.M.K., M.L.K., R.J.R.

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.

JEANETTE PICKENS, Petitioner-Appellant v. JAMES EDWARD PICKENS, Respondent-Respondent

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.

In the Interest of: K.A.L.; Juvenile Officer vs. H.L.

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.

Katey L. Gipson, Respondent, vs. Joseph L. Gipson, Appellant.

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.

STATE OF MISSOURI, DEPARTMENT OF SOCIAL SERVICES KIMBERLY LEAVELL, Respondents v. ERIC ADAMS, Appellant

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. 

Kristen L. Main, Respondent, vs. Donet C. Main, Appellant, and Ethan Main, Intervenor. 

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.

In the Interest of: B.K.B.; Juvenile Officer vs. D.M.G.

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. 

In the Interest of: E.R.; Children's Division vs. A.G.

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.

Matter of: M.D.P.-W., a Minor, by B.N.W., as Next Friend, and B.N.W. vs. M.P.

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.

Samantha Smith vs. Kevin C. Smith and Angela Wilson-Smith

Missouri Court of Appeals, Western District - WD86052