The Law Office of Kurt H King

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

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 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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Many parents facing divorce aim to avoid paying child support by pressing for equal custody of the children of the marriage.   The common belief is that if they split time with the children basically down the middle, no child support payments to the other spouse will be required.

In an agreed-upon/uncontested case, the court may well approve such a custody arrangement.  But is the 50/50 custody split in the best interests of the children?  Many would say not–including Judge Chamberlain who spoke at the March 15, 2013, Family Law CLE in Clay County.  By and large, judges do not favor 50/50 custody because one home base for the child beats trying to make a dual home rotation function.

So, if your divorce or other custody battle is for trial, there is little chance of an award of 50/50 custody from the judge.

And if you insist on taking that route, the court will require extensive proof as to who pays what bills and provides what support so as to determine and order what bills and expenses paid by each parent.  The cost of coming up with sufficient proof is high and as the judge said, “95% of your clients can’t afford you anyway.”

Why spend the money on this expensive long-shot?

Lastly, in such a case the judge will also examine the parties’ incomes.  If one parent makes more money that the other, the court can still order the parent with the greater income to pay child support to the other even in a 50/50 custody situation.

One bit more–the judge may insist that all issues be tried even where the parties claim to have an agreement of 50/50 custody.  All the facets of the case intertwine to affect the court’s judgment and thus a small trial on just a few issues may snowball into a full blown trial covering child custody issues as well–pouring all your hard work spent to hammer out a 50/50 custody agreement down  the drain.  Not good.

 

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

 

January 24, 2012

Credit Given Against Child Support for Social Security due to Disability of Non-Custodial Parent

Filed under: Family Law,Support — kurthking @ 10:10 pm
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Is a disabled non-custodial parent with the duty to pay child support entitled to a credit for Social Security paid “to” the child due to the disability of that non-custodial parent?  Yes in Missouri.

In Wallace v. Wallace, the court of appeals dealt with a situation where mother had residential custody and the disabled father owed child support.  Their minor child received Social Security due to the father’s disability.  The court ruled that the Social Security disability paid to the child should be credited against the amount of child support owed by the father.  269 S.W.3d at 479-81, headnote 4 (Mo. Ct. App. E.D. 2008).  In so ruling, the court of appeals followed the earlier Missouri Supreme Court decision in Weaks v. Weaks, 821 S.W.2d 503, 506 (1991).

So, the child’s Social Security disability received due to disability of the non-custodial parent reduces the non-custodial parent’s child support obligation. 

However, this credit does not apply if the Social Security is paid to the child due to the custodial parent’s disability.  (See Adams v. Adams, 108 S.W.3d 821, 830 (Mo. Ct. App. W.D. 2003)

Kurt H. King

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

816.781.6000

Family Law, Child Custody & Support, Divorce & Modification, Paternity

Bankruptcy, Personal Injury, Workers’ Compensation

www.kurthking.com

 

December 19, 2011

No Credit For Child’s Social Security Disability $ If Due To Disability of Custodial Parent

Filed under: Custody,Divorce,Family Law,Support — kurthking @ 10:24 pm
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Possible scenario:  Mom has  residential physical custody of a child who receives Social Security Disability each month due to the disability of the mother who cannot work.  Father wants a credit for the amount of the child’s disability checks in order to reduce his child support obligation under Missouri law. 

Answer: No reduction for father becasue the disability money comes to the child because of the disability of the parent with custody–mom. 

But the answer may be yes if the father was the disabled person and the child received disability payments due to the non-custodial father’s disability.

The Missouri case on point is Gerlach v. Adair, 211 S.W.3d 663, 667 hn.8 (Mo. Ct. App. W. D. 2007).

However, there is another angle in through the back door for the non-custodial father to try.   That is that the Missouri Child Support Guidelines are just guidelines from which the court may deviate for good reason.  And one factor which could cause a deviation is that the court is supposed to consider the child’s income in deciding how much child support to order. 

One practical approach to this scenario was experienced in a Platte County, Missouri, court where the judge added the amount of money the child received each month due to the custodial mother’s disability, back into the total income of the mother which resulted in a small but fair discount in the amount of child support that the court ordered the non-custodial, non-disabled father to pay.

Kurt H. King

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

www.kurthking.com

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

January 5, 2011

Changing Child Custody or Support by Agreement in Missouri–Get a Court Order!

Filed under: Custody,Family Law,Support — kurthking @ 5:45 pm
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What if father pays child support and mother brings the children to him and says, “you take care of them–and I don’t want any child support?” What happens if the father stops sending in his child support to the Family Support Payment Center? And, what if mother changes mind 7 months later and takes children back?

The father in this example needs to file to get a court order immediately based on a stipulation/agreement with mother, or otherwise if she won’t sign a stipulation, changing custody and terminating his child support obligation.

If he fails to do so, his child support obligation does NOT stop, he builds up a child support non-payment arrearage, and he lacks the court order to prove that he now has the primary/home/residential custody rights to the children. That let’s the mother in this example walk back in and take the chilren–even claim the back due child support that accrued while the father had the children (she may or may not win on the back support but she puts father out to hire an lawyer and try to get court order that he does not owe the back support).

This happens time and again, often to folks who cannot afford to make a mistake and cannot repay back child support.

Get A Court Order or Beware.

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

Child Support and College

Filed under: Family Law,Support — kurthking @ 5:31 pm
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Many divorced folks wonder what their child support obligation is for children in college or other post-high school education/training. There are many facets to this question but let me point out some of the main points:

1. Missouri law changed from 22 to 21 as the age up to which support is required (exceptions for non-self supporting children with special needs);
2. Parent paying child support can ask court for permission to pay support directly to the child so attending;
3. Child generally has to provide enrollment and grade information and take sufficient number of hours (be full-time, basically) or else child support obligation may be terminated;
4. Some judges expect child to pay for some of college/post H.S. education expense by student loan, work, other;
5. Some judges look at parent incomes and other factors and may not require student to pay for part of such costs;
6. In Missouri, such college/post-high school education costs are generally capped at what tuition, books, meals, and housing would cost on a plan for a regular year at the University of Missouri–not what a more expensive private or Ivy League school costs;
7. I believe most judges consider if the child commutes from home to the school, spends the summers and school breaks at home, etc., to determine how much support should continue to be paid to the home parent of the child. For example, if the child is home 4 months a year and in school dorm the other 8, then judge may consider having the total of 4 months of support, divided by 12 so that the paying parent pays a part each month of the year, continue on being paid to the home parent, so to speak.

These are some basic factors and there are usually more to be considered. What is fair for one situation may not be for another, so check it out–especially given the amount of money involved.

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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