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Recent case from the Court of Appeals:

Husband appeals from the trial court’s judgment, dissolving his marriage Wife, dividing the parties’ marital property, and ordering him to pay maintenance. On appeal, Husband asserts that the trial court erroneously considered Wife’s physical and emotional condition in granting maintenance. Husband also contends that the trial court erred because it failed to factor the short duration of the marriage when computing maintenance and awarding Wife a marital interest in the parties’ residence, which Husband acquired prior to the marriage.

JUDGMENT AFFIRMED.

First, the trial court properly analyzed Wife’s condition in determining her employment opportunities and its findings regarding her condition were not inconsistent. When a party testifies in detail on their own symptoms, medical testimony is unnecessary to find that a condition limits the employment that respondent could find, especially in the presence of other limiting factors.

Second, the length of the marriage was not so short as to render the maintenance award unreasonable.  The marriage was 6.5 years and during that time the parties enjoyed a high standard of living. The brevity of the marriage does not control the amount of a maintenance award.

Third, the trial court properly awarded Wife an interest in the parties’ residence because the parties paid for the residence’s mortgage with marital property. An increase in the value of non-marital property is marital property subject to division, if the increase comes from marital assets, which includes separate assets commingled with marital assets. So, when Husband deposited his separate pension in an account with marital income of Husband and Wife, payments on a mortgage resulted in marital equity.

Missouri Court of Appeals, Eastern District – ED105252

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Recent Decision from the Missouri Supreme Court:

Overview: A mother appeals a circuit court’s judgment awarding third-party custody of a child to her stepfather in the mother and stepfather’s proceeding to dissolve their marriage. In a decision written by Judge George W. Draper and joined by five judges, the Supreme Court of Missouri affirms the judgment.

The circuit court did not err in designating the stepfather as a third party solely for the purpose of determining custody, and its award of third-party custody to the stepfather was not against the weight of the evidence. Chief Justice Zel M. Fischer concurs in the result affirming the circuit court’s judgment but would hold the mother’s point relied on regarding the custody award violates a mandatory briefing rule, preserving nothing for review.

Facts:

During a proceeding to dissolve a marriage, issues arose as to the paternity of a child born before the couple married. Subsequent DNA testing showed the child’s father was another man, whom the circuit court allowed to intervene in the dissolution proceeding. All three adults sought custody. The circuit court found it had authority to determine the child’s custody because the biological parents had asked it to do so and all interested parties were present. It also found it should treat the stepfather as a third party to the custody determination even though he already was a party to the dissolution proceeding. Following a trial, the circuit court found both biological parents were unfit, unsuitable and unable to be the child’s custodian, and it was not in the child’s best interest for either biological parent to have physical or legal custody of her. It further found the mother was unlikely to allow the child to have meaningful contact with the stepfather. The circuit court awarded the stepfather third-party custody, finding that arrangement was in the child’s best interest. The mother appeals.

TRIAL COURT DECISION AFFIRMED.

Court en banc holds:

(1) The circuit court did not err in designating the stepfather as a third party solely for the purpose of determining custody. The proper procedure is governed by Supreme Court Operating Rule 4.05.03, which instructs circuit courts to sever contested paternity actions from dissolution proceedings. That procedure, however, was not followed here. Instead, the stepfather pleaded a proper cause of action for third-party custody – he alleged the mother and biological father were unfit and unsuitable to be the child’s custodians, and the child’s welfare and best interest required he be awarded third-party custody. The mother cannot complain on appeal about an alleged error she actively invited by not challenging the biological father’s motion to intervene in the dissolution to adjudicate the child’s paternity and custody.

(2) The circuit court’s award of third-party custody to the stepfather was not against the weight of the evidence. The stepfather pleaded a proper cause of action under the statute, which permits third-party custody under certain circumstances. The circuit court had before it all the interested parties and a multitude of pleadings, and it held an extensive trial. It issued a judgment and addendum to the judgment setting forth the relevant factors it considered in awarding the stepfather third-party custody, and the mother has not demonstrated the circuit court’s judgment is erroneous. The circuit court properly found the stepfather rebutted the parental presumption in the mother’s favor when it determined she was unfit or unsuitable to have sole legal and physical custody of the child, and there was substantial evidence showing the child is bonded deeply to her stepfather and it would be psychologically destructive to the child’s emotional development to diminish or break that bond.

Missouri Supreme Court – SC96545

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