The Law Office of Kurt H King

June 12, 2014

WHEN STEP-PARENTS AND OTHER NON-BIOLOGICAL PARENTS MAY HAVE TO PAY CHILD SUPPORT BY MISSOURI LAW

Filed under: Divorce,Family Law,Paternity,Support — kurthking @ 8:41 pm
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Missouri recognizes at least two exceptions to the general rule that a husband is not bound to support illegitimate children born to his wife before or during the marriage.  Those exceptions are: 1)  express contract; and, 2) equitable estoppel.

Several Missouri appellate court opinions address issues as to whether the facts of a particular case merit application of one or both of those exceptions.  Thus far, only one Missouri case so holds, that being the early case of L . . . v. L . . ., 497 S.W.2d 840 (Mo. Ct. App. W.D. 1973), where husband expressly contracted to support the child to be born as consideration for wife’s agreement to marry him.

Cases ruling against the proponent of such an exception include: White v. White, 293 S.W.3d 1 (Mo. Ct. App. W.D. 2009) (same sex partners; failure to plead and prove the elements of express contract or equitable estoppel); Jefferson v. Jefferson, 137 S.W.3d 510 (Mo. Ct. App. E.D. 2004) (Missouri has not adopted the “equitable parent” doctrine; wife misrepresented to husband that he was father of child); Stein v. Stein, 831 S.W.2d 684 (Mo. Ct. App. E.D. 1992) (divorce filed before adoption final; wife, with a profession and independent financial means, adopted on her own, husband having withdrawn from the adoption; husband’s representations that he would support child were made to adoption and immigration officials, not wife, so no express contract; no equitable adoption because no detrimental reliance and no injustice to wife or child); S.E.M. v. D.M.M., 664 S.W.2d 665 (Mo. Ct. App. E.D. 1984) (wife became pregnant while separated from husband, then reconciled, husband treated child as his own until final separation when child was approximately eight months old; wife’s agreement to reconcile not sufficient consideration for an express contract that husband support the child; no detrimental reliance for equitable estoppel).

Step-parents beware.

 

Kurt H. King

Law Office of Kurt H. King, 20 E. Franklin, Liberty, Clay County, Missouri 64068

816.781.6000

Family Law–Divorce, Modifications, Child Custody/Support/Visitation, Paternity, Guardianship

Personal Injury, Workers’ Compensation, Chapter 7 Bankruptcy for Debtors

http://www.kurthking.com

November 18, 2013

Unusual Varieties of Income for Child Support Calculations

Filed under: Divorce,Family Law,Paternity,Support — kurthking @ 9:23 pm
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Here is a list of some out-of-the-ordinary sources of gross income for child support calculations in Missouri–from Heckman v. Heckman, Slip Opinion WD75676 (October 15, 2013):

1.  Salary, of course

2.  Dividends, capital gains, annuities, pension and retirement benefits–but the increase in value of stock is GENERALLY NOT included unless it is liquidated so as to result in capital gain (Gordon v. Gordon, 924 S.W.2d 529, 533 (Mo. Ct. App. 1996))–HOWEVER, the employee’s sale of restricted stock issued by company to employee as part of compensation package may be treated as dividends and included in gross income–p. 8 of Heckman

3.  Pre-tax “flex plan benefits”–citing Fulton v. Adams, 924 S.W.2d 548, 554 (Mo. Ct. App. 1996); but not employer contributions to retirement plan, Roberts v. Roberts, 847 S.W.2d 108, 109 (Mo. Ct. App. 1992)

4.  Rent received is included–Graves v. Graves, 967 S.W.2d 632,641 (Mo. Ct. App. 1998)

5.  The value of new stock issued as part of annual compensation package–even if it is restricted stock that vests over a time span of years, at least where the amount that vests each year may be averaged or there is some other reasonable method for considering past, present, and anticipated restricted stock earnings–pp. 7-8 of Heckman slip opinion

6.  The employee’s sale of restricted stock issued by company to employee as part of compensation package may be treated as dividends and included in gross income–p. 8 of Heckman

7.  Company stock purchased with funds which would otherwise have been received as compensation is included–p. 9 of Heckman

Kurt H. King

Law Office of Kurt H. King, 20 E. Franklin, Liberty, Clay County, Missouri 64068

816.781.6000

Family Law–Dissolution of Marriage, Modification, Paternity–Child Custody, Support, Visitation

Personal Injury, Workers’ Compensation, Chapter 7 Bankruptcy, General Matters

HOW TO GET YOUR PROPERTY BACK AFTER DIVORCE AND IN OTHER CASES–Missouri’s 511.310

Filed under: Divorce,Family Law,Litigation,Uncategorized — kurthking @ 3:13 pm
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Missouri law 511.310, RSMo 2013, seems to be a rarely used, straight forward way to recover for property that the ex-spouse fails to return as ordered in a divorce judgment.  However, the law does not limit itself to divorce judgments and applies generally. That statute provides:

“511.310. Damages in lieu of performance of judgment

When complete justice cannot otherwise be done, the court may, on the petition of the party entitled to the benefit of a final judgment, cause an inquiry to be made by a jury of the amount of damages which ought to be paid in lieu of the performance of the judgment, and may render a judgment for the damages so assessed, and award execution thereon.”

Perhaps an advisory jury would suffice instead of a full-blown jury trial.

In any event, 511.310 may be a viable and effective alternative to actions for contempt of court and conversion of property.

Kurt H. King

Law Office of Kurt H. King, 20 E. Franklin, Liberty, Clay County, Missouri

816.781.6000

Family Law–Child Custody, Support, Visitation, Dissolution of Marriage, Modifications, Paternity

Personal Injury, Workers’ Compensation, Chapter 7 Bankruptcy, General Matters

September 30, 2013

Child Must Have Been Incapacitated At 18 For Child Support To Continue

Filed under: Divorce,Family Law,Support — kurthking @ 8:52 pm
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When does a parent pay child support for a child over age 18 but unable to care for himself/herself?

In Bright v. Bright989 S.W.2d 196 (Mo. Ct. App. S.D. 1999), the child did not become disabled until he became mentally ill during his first semester in college.   The child withdrew from college before the end of that semester and father ceased paying child support.   The child committed suicide over a year later–two months before his 22nd birthday–being incapacitated and unable to provide for his necessities due to his illness.  The mother later sued the father for child support for the months after the child withdrew from college, funeral and medical expenses of the child, and her attorneys fees.  The trial court compassionately awarded mother the relief she requested but the court of appeals reversed, taking it all away except the attorneys fees award.

The appellate court found little or no evidence that the child was incapacitated at age 18.  Father’s duty to continue to pay child support after the child reached age 18 was based solely upon the child attending college.  When the child withdrew from college that basis for father to continue to pay child support ceased.

Looking to Missouri’s 452.340 (subsections 3 and 4), the court found no intent that Missouri lawmakers intended to restart child support after it terminates by law.  Had the child simply gone on work a job after turning 18, no one would argue that a parent should have to recommence paying child support if the child later became incapacitated.  Likewise, no child support would be due from a parent if a 50, 60, or 70 year old child of that parent became incapacitated.  In order that the law be uniformly fair, the court could not in good conscience give the mother of the mentatlly incapacitated child in this case any back child support for those months after the obligation to support the child terminated by law.

Thus, the court of appeals reads 452.340.4 as granting a court the power to order child support of a mentally or physically incapacitated child to continue ONLY IF the child is so incapacitated on his or her 18th birthday.

As for the child’s medical and funeral expenses, the court found no Missouri law obligating a parent to pay for the such expenses of their child when that child is no longer a minor.

But the court left in place the trial court’s award of attorneys fees in favor of wife.  Given the novel questions of law, and the father’s much greater income, the court of appeals found no abuse of discretion in the award of fees to mother.

Kurt H. King

Law Office of Kurt H. King, 20 E. Franklin, Liberty, Clay County, Missouri 64068

816.781.6000

Family Law, Divorce, Modifications, Paternity; Child Support, Visitation, & Custody

Personal Injury, Workers’ Compensation, Chapter 7 Bankruptcy for Debtors

http://www.kurthking.com

June 14, 2013

Child Support In Missouri When Neither Parent Has Custody

Filed under: Custody,Divorce,Family Law,Paternity,Support,Uncategorized — kurthking @ 2:01 pm
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When the child is a minor and neither parent has custody, a case for child support can be initiated for the child by a state agency, a guardian, or third person providing support as next friend for the minor child.

But what about an adult son or daughter over the age of 18 in college living with neither parent?  While child support generally continues until the the child reaches age 21 for those who go on to college or other certain other post-high school education, who can bring a case in court for support of the adult child not yet 21 who left both parents behind (or vice versa) for whatever reason and is taking the required class load and working part-time?

First, can a parent file for the other parent to pay support when the child lives on his/her own or with third persons?

Law:  Where an adult child not yet 21 years of age is not living with either parent–i.e., on their own or living with friends–and attending college or such, and neither parent is making a financial contribution to the child’s expenses, then neither parent is sufficiently affected by the non-payment of child support by the other so as to be able to sue for child support from the other parent.  See Higginbotham v. Higginbotham, 362 S.W.3d 34, 36-37 (Mo. Ct. App. S.D. 2012) (daughter could not sue for child support ordered paid by mother to the grandmother).

And see Denton v. Sims, 884 S.W.2d 86, 89 hn. 5 (Mo. Ct. App. E.D. 1994), where the court of appeals reversed the trial court by ruling that the mother was not entitled to retroactive child support for one of three children  “for a period of time when she was not supporting daughter and daughter was not living with her.”  The daughter lived with a third-party and mother then made “no financial contribution to her upbringing.”

Second, if the parents cannot sue, can such an adult child entitled to support sue one or both parents in those circumstances?

Despite a dearth of Missouri cases on this point, there seems to be no reason why the adult child could not sue in his or her own name for support just as an adult could bring other cases in court.  But, this does not appear to be happening as a practical matter.  Presumably, adult children having flown or been kicked out of  the family nest are not of the mindset to turn back and sue a parent for support.  Maybe it is pride, but certainly it is psychologically difficult to sue to your parents.  And so, while it can happen, it doesn’t.

Lastly, if the lot of such an adult child not yet 21 trying to make it in the world and get a college or similar education, without support from the parents, seems unfair, REMEMBER: life is not fair, and Missouri law does not require parents still married to support their children after high school either.  For some reason, divorced parents can be ordered to pay support during college generally until the child turns 21, but married parents need not.  One of life’s little injustices?

Kurt H. King

Law Office of Kurt H. King, 20 E. Franklin, Liberty, Clay County, Missouri 64068

816.781.6000

Family Law, Personal Injury, Workers’ Compensation, General Matters

May 22, 2013

The General Rule on Maintenance in Missouri

Filed under: Divorce,Family Law,Litigation,Support — kurthking @ 9:38 pm
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The recent May 7, 2013, opinion ED98727 out of the Eastern District of the Missouri Court of Appeals in In re the Marriage of John P. McMillian and Susan I. McMillian, follows established Missouri law on  how maintenance (formerly called alimony) is to be awarded by Missouri courts in divorce cases.

Here the husband enjoyed a substantial income while the wife’s income had diminished with no real signs of improvement in the future.  Not having settled the issue of maintenance, the parties tried the case to the court in a bench trial.  The trial judge awarded maintenance but limited it to three years and declared it to be non-modifiable.

The Eastern District reversed as it found no or insufficient proof that the wife’s income would increase by three years time.  Accordingly, the court of appeals ordered that such maintenance shall be paid indefinitely but that the maintenance shall be modifiable so that the husband may move to modify the maintenance award should the financial circumstances of the parties change significantly in the future.

This case illustrates Missouri case law holding that to limit the duration of maintenance there must be adequate proof that the financial situation of the parties will definitely change at a certain point in the future.   Lacking such proof, trial courts are not to set a time limit, unless the parties agree on one.

So if you want to limit the time that you will have to pay maintenance, try to reach an agreement which may well mean that you will have to sweeten the pot by offering your spouse more maintenance than the judge may order so that he/she will agree to a cut-off date.  This is a dangerous issue to take to trial so try to settle it.

 

Kurt H. King

Law Office of Kurt H. King, 20 E. Franklin, Liberty, Clay County, Missouri 64068

816.781.6000

Family Law–Divorce, Modifications, Child Custody, Support & Visitation, Paternity

Personal Injury, Workers’ Compensation, Chapter 7 Bankruptcy

May 7, 2013

SSI For A Disabled Child Is NOT Credited Against Child Support

Filed under: Divorce,Family Law,Paternity,Support,Uncategorized — kurthking @ 5:16 pm
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Previous posts speak of the non-custodial parent receiving a credit against that parent’s child support obligation in the amount of Social Security Disability paid for the child on account of the obligated parent’s disability.  And, that a credit for SS Disability is not granted the obligated parent when SS Disability is paid for the child on account of the CUSTODIAL parent’s disability.

BUT what about when the child is disabled and receiving Supplemental Security Income (SSI) payments from Social Security due to the child’s own disability and not that of either parent?

Both the Western and Eastern Districts of the Missouri Court of Appeals rule that the parent paying child support is not entitled to a credit against his or her child support obligation for SSI paid due to the child’s disability.  Lewis v. Dept. of Social Services, 61 S.W.3d 248, 258 (Mo. Ct. W.D. 2001); Malawey v. Malawey, 137 S.W.3d 518, 528 (Mo. Ct. App. E.D. 2004).

The courts reason that SSI paid on the child’s account due to the child’s disability merely supplements in order to defray the extraordinary cost of caring for a child with disability.  Too, such SSI  is paid on account of the child, disconnected from the Social Security account of the parent obligated to pay child support.

So, a credit against child support due to SSI on account of the child’s disability is not happening in Missouri.

Kurt H. King

Law Office of Kurt H. King, 20 E. Franklin, Liberty, Clay County, Missouri 64068

816.781.6000

http://www.kurthking.com

Family Law–Divorce, Modification, Paternity, and Child Custody, Support, Visitation

Personal Injury, Workers’ Compensation, and General Matters

March 19, 2013

50/50 Custody and Child Support in Missouri

Filed under: Custody,Divorce,Family Law,Paternity,Support — kurthking @ 8:44 pm
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Times have changed since my previous post on 50/50 custody.  It is now the rule and not the exception in Missouri.  Lawmakers have moved on since the former days of one parent having primary or residential custody, with the other parent having alternate weekends, holidays, and weeks during the summer.

Kurt H. King

Law Office of Kurt H. King, 20 E. Franklin, Liberty, Clay County, Missouri 64068

816.781.6000

Family Law–Dissolutions, Modifications, Child Support/Custody/Visitation, Paternity

General Litigation and Matters

http://www.kurthking.com

Missouri Grandparent Visitation Under 452.402

Filed under: Custody,Divorce,Family Law,Paternity,Support — kurthking @ 8:17 pm
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At a Clay County family law seminar last Friday (03.15.2013), Commissioner Roberts spoke on Grandparent Visitation in Missouri under much revised statute 452.404.   Our Commissioner apparently put a good deal of work into researching the background and status of this relatively involved law.  The gist of what I took from her presentation includes:

1.  Important to select the correct tool to proceed for grandparent visitation rights.  Use the wrong one at your extreme peril and likely defeat.  Choices include: 1) Motion to Intervene into a Dissolution of Marriage case; 2) Motion to Modify where this is already a judgment of dissolution; 3) separate action for grandparent visitation where, for example, one parent is deceased and the surviving parent denies visitation.

2.  If the parents are legally married, and living together with the child (not having filed for divorce or legal separation), the grandparents CANNOT file for visitation under 452.404 even if unreasonably denied all visitation with the grandchildren.

3.  When a denial is “unreasonable,” and what visitation is “reasonable,” is undefined and far from clear.

4.  The Commissioner  reads 452.404 as requiring in all cases that unreasonable denial of visitation have run for 90 days or more.  Otherwise, the court lacks jurisdiction and the case may well be dismissed.  The statute is unclear but the Commissioner is probably right.  Simply put, if the denial is not unreasonable and has not run for at least 90 days, do not file for grandparent visitation.

5.  Step-grandparents have no right to use 452.404 but may try to proceed for visitation as a “third party” under 452.375.

6.  Older cases allowed grandparents of children born out of wedlock to obtain visitation rights.  Commissioner Roberts opines that the new version of 452.404 limits such grandparent visitation actions involving out of wedlock grandchildren to only cases where a parent dies and the grandparents of the deceased parent are unreasonably denied visitation with the grandchildren; OR, the grandchild lived with the grandparent the necessary time frames AND the grandparent is unreasonably denied visitation for 90 days or more.

7.   As a broad general rule, there is no room for grandparent visitation motions to intervene in a case to adopt the grandchildren.  Rare exception was once made where the grandparents had already been granted visitation rights (in a paternity case) which the court found were NOT terminated by the subsequent adoption case.  There is also the alternative route of seeking generic third party rights through a 452.375 action.

8.  In probate actions by a grandparent for guardianship of the grandchild, a settlement whereby the grandparents dismiss in exchange for an order of visitation rights runs considerable risk.  In Clay County, the court finds that it has NO equitable rights to order such grandparent visitation rights and 452.404 does not apply in probate settings.  Clay County would say that it cannot grant the petitioning grandparents visitation as all they can seek there is guardianship and to also be appointed conservator.    Thus, such a visitation order would be void ab initio in Clay County as was also the case in the case of In the Matter of DCO and AOD, 239 S.W.3d 714 (Mo. Ct. App. S.D. 2007).  Jackson County begs to differ, however, contending that it has the equitable power to order grandparent visitation in such an instance.

9.  Note that grandparent visitation is a creature of statute and cannot survive absent specific statutory authority.

10.  Again, 452.404 does NOT apply to probate proceedings.

11.  A mere 2 hours every 90 days has been found to be sufficient grandparent visitation.  Is a grandparent visitation case worth the time and trouble?

12.  Commissioner Roberts provided a good working outline on this subject and presumably would share it with interested counsel.

 

Kurt H. King

Law Office of Kurt H. King, 20 E. Franklin, Liberty, Clay County, Missouri 64068

816.781.6000

Family Law–Dissolutions, Modifications, Child Support/Custody/Visitation, Paternity

General Litigation and Matters

http://www.kurthking.com

February 25, 2013

Using A QDRO To Collect Back-due Child Support Or Maintenance Under Missouri Law

Filed under: Family Law,Support — kurthking @ 5:47 pm
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Missouri case law acknowledges the right of a former spouse to apply to the court for a Qualified Domestic Relations Order to collect past-due child support or maintenance.  See the Eastern District’s decision in Baird v. Baird, 843 S.W.2d 388 (1992), which without much ado simply recognizes that the federal ERISA authorizes such division of retirement accounts by QDRO in connection with child support and maintenance.  That court rejected the notion that allowing the use of a QDRO to collect a child support arrearage improperly redivides the marital property.

Collection of child support or maintenance by QDRO would seem to work best if the retirement asset is a 401(k) or equivalent from which a lump sum distribution may be made to pay off the child support or maintenance arrears.  If the retirement asset is a pension that pays “x” dollars of benefits each month after retirement, a lump sum distribution may not be possible and thus collection may not begin for years and have to run for many months or even years before the arrears is fully collected.

But in the right situation, an application for a QDRO may be the perfect tool to collect child support or maintenance.

 

Kurt H. King

Law Office of Kurt H. King, 20 E. Franklin, Liberty, Clay County, Missouri 64068

816.781.6000

Family Law–Dissolution of Marriage; Modifications; Child Custody, Support, Visitation; Paternity

General Litigation, Personal Injury, Workers’ Compensation

http://www.kurthking.com

 

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