The Law Office of Kurt H King

March 19, 2013

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

October 18, 2012

When Sole Custody is Really Joint Physical Child Custody in Missouri

Filed under: Custody,Family Law,Paternity — kurthking @ 4:11 pm
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On September 18, 2012, the Western District of the Missouri Court of Appeals changed the trial court’s award of sole child custody to one of joint physical child custody.  The case is Clark v. Ingram, WD Slip Opinion 74554, appealed out of Clay County, Missouri.

The key facts behind the court of appeal’s decision to change the judgment to one of joint physical custody is that while the trial court labeled the custody awarded to the child’s mother as “sole custody,” the lower court also ordered “significant” parenting time for the father.  Specifically, the trial court initially granted the father one or two week days with the child staying  with him overnight, split the holidays between father and mother, and awarded father five consecutive days with the child during the summer.  Once the child started kindergarten, the court’s parenting plan changed somewhat to grant father alternate weekends from Friday at 4 p.m. until start of school on Monday, and from 4 p.m. on Wednesday until school began on Thursday each week.

Given this significant amount of visitation with the child, the court of appeals ruled that father has joint physical custody, not sole custody.

The “joint” custody label is important as it gives each parent impact and access to school and health information, as well as joint decision-making as to the child in those areas and others.

Kurt H. King

Law Office of Kurt H. King, 20 E. Franklin, Liberty, Clay County, Missouri; 816.781.6000

http://www.kurthking.com

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

Personal Injury, Workers’ Compensation, Litigation, Chapter 7 Bankruptcy

April 20, 2012

Does the ex-Spouse get the Ford Retirement?

Fact-set:  Ford worker dies soon after a contested Missouri divorce.  His Ford retirement benefits include money in the TESPHE savings plan and a group life insurance benefit.  During the divorce the Ford worker changed the beneficiary on the life insurance without the wife’s consent.  The beneficiary on the TESPHE never changed and the ex-spouse is still the named beneficiary.  What happens?

Like many states, Missouri law includes a statute that provides that upon divorce, the ex-spouse loses all rights as a named beneficiary of property owned by the other spouse.  See VAMS 461.051.1.  But while this law may bar the ex-spouse as beneficiary on an IRA (an example of a non-ERISA asset), a Ford worker’s retirement includes (1) the TESPHE savings plan, and/or (2) a pension plan–both of which are governed by federal law known as ERISA (Employee Retirement Income Security Act), as later modified by the REA (Retirement Equity Act).  ERISA preempts/overrides state law on matters sufficiently related to ERISA–including Missouri’s section 461.051.1.  See Egelhoff v. Egelhoff, 532 U.S. 141 (2001).

Note that the group life insurance provided by the employer is a welfare plan–not a retirement plan and thus not governed by ERISA or REA federal law.

Key questions:  (1) can the Ford worker validly change (before the divorce is final) the beneficiary on the life insurance benefit without the spouse’s consent?; and (2) is the ex-spouse entitled to the balance in the TESPHE savings plan since the ex-spouse remains the named beneficiary–even though the divorce judgment awarded all the retirement to the ex-husband/employee?

Generally, Missouri law and ERISA’s 29 U.S.C. section 1055 seems to allow change of beneficiary of LIFE INSURANCE during the marriage without the spouse’s consent.   So the Ford employee’s change of beneficiary on the employee life insurance benefit from spouse to adult son appears to be valid and lawful where the welfare plan and the underlying life insurance policy itself do not expressly prohibit.  See Sun Life Assurance Co. v. Mae Bell Benjamin, Case 1:09 CV 2452 (U.S. Dist. Ct., Northern District of Ohio, Eastern Division 2010). .

However, as to the FORD RETIREMENT, federal ERISA law governs.  DURING THE MARRIAGE, 29 U.S.C. section 1055 protects the worker’s spouse from being left high and dry form the employee changing the beneficiary on the retirement while married, mandating by law that the spouse gets at least half of the pension (the “qualified joint and survivor annuity) UNLESS (1) the spouse consents in a very specific writing that is notarized or witnessed by a plan representative; or, (2) by a Qualified Domestic Relations Order (“QDRO”) used in the case of divorce.  See subsection (c)(2)(A)  of section 1055 as to how a spouse may waive her interest in the worker’s pension plan.   And see 29 U.S.C. section 1056(d)(3) as to alienation/transfer of the spouse’s share by means of a QDRO.  Simply put, Congress crafted ERISA to grant the worker’s spouse at least half of the pension plan benefits, and to prevent the transfer or taking of the spouse’s share of the pension plan benefits without the spouse’s consent.

But what about cases where the divorce court awards the retirement to the employee, only for the employee ex-spouse to fail to change the beneficiary after the divorce?  A pair of U.S. Supreme Court cases squarely answer the question.

First, in Egelhoff v. Egelhoff, 532 U.S. 141 (2001), the high court held that pension plan administrators need only apply the language of the plan and pay the money to the last named beneficiary.  In so ruling, the Court observed that payment of pension plan benefits is a central aspect of ERISA plans and that it is unduly burdensome to saddle plan administrators with the task of figuring out the various laws that nearly all 50 states have to prevent the ex-spouse from getting the pension plan money after the divorce.  The Court focused on the need for the administrator to simply apply the pension plan’s provisions to determine the proper payee to save the time and expense of ascertaining  myriad state laws and the innumerable interpleader lawsuits that would result to protect the administrator from double liability due to paying the wrong payee.  So, with qualified pension plans, ERISA preempts state laws such as Missouri’s that attempt to cancel out the ex-spouse as the beneficiary after divorce.  Consequently, if the employee-spouse fails to change the  beneficiary after the divorce and leaves the now ex-spouse as beneficiary, the ex-spouse is entitled to employee’s pension plan monies.

Lastly, what of provisions commonly found in divorce settlement agreements which are often incorporated or quoted in the court judgments dissolving marriages–typically providing that each spouse forever waives all interests in the property awarded to the other party?  This question the Supreme Court answered in Kennedy v. Kennedy, 129 S.Ct. 865 (2009), involving a pension plan, where the Court held that the plan administrator need only follow the dictates of the plan on which the employee left the ex-spouse as beneficiary after divorce.  The plan administrator is free to IGNORE language in the divorce decree that the wife “is . . . divested of all right, title, interest, and claim in and to . . . [a]ny and all sums . . . the proceeds [from], and any other rights related to any  . . . retirement plan, pension plan, or like benefit program existing by reason of [William’s] past or present or future employment.”   Hence, the boilerplate waiver language in many divorce settlement agreements and judgments does not preclude the ex-spouse from receiving the proceeds of the pension plan on which she was left as named beneficiary after divorce.

Of note on page 15 of the Kennedy opinion is the Court’s statement that:  “ERISA forecloses any justification for enquiries into nice expressions of intent, in favor of the virtures of adhering to an uncomplicated rule: ‘simple administration, avoid[ing] double liability, and ensur[ing] that beneficiaries get what’s coming quickly, without the folderol essential under less-certain rules.'”

And on 17:  “What goes for inconsistent state law goes for a federal common law of waiver that might obsure a plan administrator’s duty to act in accordance with the documents and instruments.'”

“And this case does as well as any other in pointing out the wisdom of protecting the plan documents rule.”  (Also on page 17 of the opinion.)

In summary after considerable research of Missouri and federal common law, mind-mashing ERISA statutes, and U.S. Supreme Court opinions–the ex-spouse as cast above is the last named beneficiary on the TESPHE pension plan and as such entitled to those funds since there was no QDRO or consent divesting the ex-spouse as beneficiary.  If you are an employee with retirement or pension, make absolutely sure that you change the benficiary away from the ex-spouse unless yours is the rare case where you want the ex-spouse to remain as beneficiary.

Kurt H. King

Law Office of Kurt H. King, 20  E. Franklin, Liberty, MO 64068

816.781.6000

divorce & modification, child cusotdy and visitation, support and paternity

personal injury & workers’ compensation, bankruptcy, and probate.

February 23, 2012

Court Decides Not to Recognize an Equitable Claim for Child Custody by Nonparent

Facts:  man believes he is the father of the child born to the lady who lives with him;  man supports the child financially; he later files paternity case and discovers the child is not his–thus no relationship to the child by blood, adoption, or marriage. 

Regardless, guy petitions the court for custody rights to the child.   The court of appeals ultimately denies the father’s claim for equitable custody rights to the child as the man is a nonparent.

The court’s decision avoids opening Pandora’s box to address the almost infinite custody, visitation, support, and inheritance/probate issues that would arise once we step outside of the traditional family box formed by ties of blood or by legal adoption. 

See In Re The Matter of T.Q.L., M.M.A. v. L.L., and the Unknown Father, decided by the Southern District of the Missouri Court of Appeals in Slip Opinion SD31142, filed 02-14-2012.  It remains to be seen whether the decision will be appealed to the Missouri Supreme Court or if that court will take the case for its review.

However, it is not difficult to see how the decision impacts non-tradional family structure.  For instance, custody claims by a gay person against his or her partner who either gave birth to the child or adopted the child appear to be foreclosed as such a person seeking custody rights is a “nonparent.”  Consider too surrogate mother situations and the battles that could arise in that arena.

And, should a “nonparent” same sex partner obligated to pay child support by a sperm donor organization’s agreement or state statute for a child born to her mate have custody or visitation rights to the child?  Is it fair to have to pay child support but not have custody or visitation?

(Missouri statutes 210.824 and 193.085(9) address only instances where the married woman, with her husband’s official consent, is Artificially Inseminated with another man’s sperm under the supervision of a licensed physician.  In such cases, the husband and wife are both considered by law as the natural paents of the child.  And, the sperm donor is “treated in law as if he were not the natural father of a child thereby conceived.”)

The pressure on the law from same sex relationships and nonparent claims of custody and visitation piles on from many directions and varied formations.  This court’s limitation of custody to parents seems a sound course to maintain but there are sure to be hard cases where the nonparent is the only adequate person to have custody of the child.  What happens when denying the nonparent leaves the child with a parent who is unfit or nearly so?  Does the child fall to foster care and leave a “second” mom or dad in the wake?

Kurt H. King

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

816.781.6000

www.kurthking.com

Child Custody & Support,  Paternity,  Divorce & Modification

Bankruptcy, Personal Injury, Workers’ Compensation

January 26, 2012

7 Things to Remember in Missouri Divorce Cases

7 legal tibits that make a difference–

1.  Social Security benefits, including disability, shall not be divided in a Missouri Dissolution of Marriage case.  (section 169.572 of Revised Statutes of the State of Missouri)

2.  Likewise, Missouri Public Teachers Retirement benefits, which largely take the place of Social Security benefits for such teachers, shall not be divided in a Missouri divorce case.  (section 169.572 also)

3.  For much the same reason, Tier I of railroad retirement basically pays railroad workers what they would have received in Social Security benefits and therefore is not to be divided by the court in a divorce case.  Federal law, 45 U.S.C. section 231m, exempts Tier I benefits from the property a divorce court may divide.   The Railroad Retirement Board will not honor a court dissolution of marriage judgment/order that divides Tier I.  Only Tier II may be divided.

4.  Military disability benefits  are non-marital property of the soldier that the court shall not divide in a divorce case.  But ordinary military retirement benefits are marital property which may be dividedImportant:  the military spouse may elect to receive military disability benefits and if so the ordinary military retirement benefits are reduced dollar for dollar.  A legitimate reason for taking disability instead of ordinary retirement is that the disability benefits are not taxed as income to the receiving spouse.  Settlement agreements should prohibit the military spouse from electing to take disability benefits instead of ordinary retirement, or to indemnify the other spouse if the military spouse so elects and consequently reduces the amount of ordinary military retirement available to the other spouse.  (Morgan v. Morgan, 249 S.W.3d 226, 230 (Mo. Ct. App. W.D. 2008)

5.  In a Missouri divorce case, court cannot validly order a spouse to maintain a life insurance policy(s) to support the chilren in the event of the death of the spouse charged with paying child support, UNLESS the parties so agree [most likely in a settlement agreement in the divorce proceeding].  (Weiss v. Weiss, 954 S.W.2d 456, 459 (Mo. Ct. App. S.D. 19970); Wheeler v. McDonnell Douglas Corp., 999 S.W.2d 279, 287-88 (Mo. Ct. App. E.D. 1999))  But court may order a spouse to maintain life insurance for other reasons such as to secure the payment of maintenance (formerly called alimony).

6.  Social Security paid for a child due to the non-custodial parent’s  disability may be credited against his/her child support obligation.  (Wallace v. Wallace, 269 S.W. 3d 479 (Mo. Ct. App. E.D. 2008); Weaks v. Weaks, 821 S.W.2d 503, 506 (Mo. 1991))

7.  Social Security paid for a child due to the custodial parent’s disability shall  not be a direct dollar for dollar credit against the non-custodial parent’s child support obligation.  (Gerlach v. Adair, 211 S.W.3d 663, 667 (Mo. Ct. App. W.D. 2007).  But the court may still consider–not necessarily as a full dollar for dollar credit but simply as one of many possible factors–that the child has income of his/her own in the form of Social Security benefits.  (See Missouri Child Support Guidelines at Section G, Comment (1).)

Kurt H. King

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

816.781.6000

Divorce & Modification, Child Custody & Modification, Paternity

Bankruptcy, Personal Injury, Workers’ Compensation

www.kurthking.com

July 20, 2010

Calculating Child Support in Missouri (via Kurt’s Take on Law)

Filed under: Custody,Divorce,Family Law,Paternity,Support — kurthking @ 9:05 pm
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Trying to get a handle on how much child support should be in Missouri?  You may find this website with child support form and software helpful–www.teamlex.com/Areas/form14.htm And the 2009 Missouri Child Support Guidelines (which change upon periodic review by the Missouri Supreme Court) may be found at–www.mobar.org/data/esq08/oct10/order-form14.pdf Remember that Missouri uses gross income and not net income (exception:  self-employed may ded … Read More

via Kurt’s Take on Law

Kurt H. King
Law Office of Kurt H. King
816.781.6000
20 E. Franklin
Liberty, Clay County, Missouri 64068
http://www.kurthking.com

Bankruptcy, Child Custody and Support, Divorce and Modification, Family Law
Personal Injury, Workers’ Compensation

February 1, 2010

Setting Aside Paternity In Missouri

Filed under: Custody,Family Law,Paternity,Support — kurthking @ 4:26 pm
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Couple things fathers may need to know about paternity cases in Missouri. A 2009 Missouri law, 210.854, lets fathers get a court order of DNA paternity testing even after a court says that a particular guy is the father of the child involved. Deadline to file is December 31, 2011, but after that date you have to file the petition to set aside the paternity judgment within 2 years of the date that established paternity. If you wait too long, you may be out of luck. Second thing to know is that the local Clay County, Missouri, court clerk requires that you know the child’s SSN to file the case. Some mother’s don’t want to tell a guy that he is the father and do not trust him with the child’s SSN.

This law is a good thing for a father who failed to request a paternity test.  That happens sometimes when a father does not understand the Missouri court rules, did not see the notice of his right to request a paternity test, or maybe simply was sure he was the father but now is not.

Kurt H. King
Law Office of Kurt H. King
816.781.6000
20 E. Franklin
Liberty, Clay County, Missouri 64068
http://www.kurthking.com

Bankruptcy, Child Custody and Support, Divorce and Modification, Family Law
Personal Injury, Workers’ Compensation

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