2003

The Missouri Supreme Court adopted changes to the child support guidelines. These included expansion of the income levels and deductions from gross income for maintenance paid.

1999 LEGISLATIVE CHANGES

Missouri statutes had only a few changes affecting family law in the 1999 legislative session.

• Child support collection and distribution has been shifted from the local court to a state agency.
  
  
• Children are automatically emancipated under certain conditions without the requirement of a court hearing.
  
  
• A parenting plan does not have to be filed until 30 days after the Petition for Dissolution.
  
  

SIGNIFICANT JUDICIAL DECISIONS IN 1999

• The Missouri Supreme Court in Kohring v. Snodgrass upheld the statute authorizing the courts to require divorced parents to pay college expenses of their children. The law had been challenged on constitutional grounds based on equal protection.
  
  
• The Missouri Court of Appeals Western District in Wofford v. Wofford confirmed that the value of fringe benefits and certain retirement benefits are to be included in a parent's gross income in calculating child support.
  
  

1998 LEGISLATIVE CHANGES

SENATE BILL 910

Senate Bill 910 contains numerous significant changes in the dissolution statutes. These include new rules in RSMo Section 452.377 regulating the custodial parent's right to move the permanent residence of a child, Family Access Motion to enforce visitation in RSMo Section 452.400, and a parenting plan in RSMo Section 452.305. The remainder of this article will detail these new provisions with some discussion of the background and reasons for the changes as well as an analysis of their significance and practical application.

SUBJECTS:

Where the Petition Can Be Filed

A Petition for Dissolution or Legal Separation pursuant to RSMo Section 452.300 can now be filed in the county of residence of either the Petitioner or the Respondent, However now the Respondent, prior to filing a responsive pleading, can move to change the venue from the Petitioner's county of residence to the Respondent's county of residence.

The grounds for a change of venue are: 1) that for the ninety days immediately preceding the filing of the petition, the children of the marriage resided in the Respondent's county of residence or 2) the best interests of the children require transfer to the other county because the children and at least one parent have a significant connection with the county and there is substantial evidence concerning the future care and relationships of the children in that county.

Legal Separation

A change in RSMo Section 452.305 clarifies the requirements to obtain a legal separation. Colobianchi v. Colobianchi, 646 S.W. 2d 61 (Mo banc. 1983) held that a legal separation could not be granted if the party requesting it claims the marriage is irretrievably broken. The new RSMo Section 452.305 requires the litigant seeking a legal separation to plead that the marriage is not irretrievably broken. Although in the current law the judge must grant a legal separation if requested, Senate Bill 910 now requires a judgment of legal separation only if the judge finds that the marriage can be preserved.

Custody of the Child While the Case is Pending

Another corrective measure included in Senate Bill 910 in RSMo Section 452.310 affects custody of a child during the pendency of the dissolution action. The existing statute provides that the parent with custody of the child on the date the Petition for Dissolution is filed has the right to retain physical custody of the child until the dissolution is concluded. RSMo Section 452.310 now provides that the children shall not be removed from the parent with whom the children resided for the sixty days before the filing of the Petition for Dissolution. Thus, a spouse cannot gain an advantage by arbitrarily removing a child from the other parent and "racing" to the courthouse.

Parenting Plan

Another modification to RSMo Section 452.310 mandates filing a detailed and comprehensive "parenting plan" with the Petition and the Answer. RSMo Section 452.310 details the specific timesharing issues which the plan must address including holidays, school year, and summer schedules. If a parent wants the other parent's contact with the children supervised or limited in some way, the plan must include the requested limitations and the reasons for the restrictions.

The parenting plan also includes details of sharing legal decisions on education, health insurance, and child care. A parent who wants sole legal custody must delineate reasons for this in the plan. Finally, the plan must include recommendations for the child's immediate support, health insurance coverage and payment of education and other expenses.

If the parenting plans suggested by each parent differ substantially and the differences are not resolved by negotiation, either party can file a motion and after a hearing, the court must issue an order addressing all of the statutory parenting plan components.

The legislation requires the Supreme Court within 120 days of the effective date of the statute to develop guidelines for a parenting plan form and to prepare a handbook to be mailed to each litigant in a dissolution action describing the advantages of Alternative Dispute Resolution and of the parties agreeing on a parenting plan as well as describing other new procedures in this statute. The genesis of these sections is the belief of many legislators that parents should be empowered to take a more active role in the dissolution.

Child Support Changes

Several important changes were made regarding continuation of child support beyond age 18. In 1997, Senate Bill 361 added a new requirement to RSMo 452.340 that a child over 18 must carry 12 credit hours each semester to be eligible for continued child support. This mandate was to remedy situations where a child who takes one class remained eligible for child support. The 12 hour per semester requirement, however, created unjust situations for a child with an illness or who had an accident or who was too poor to afford to pay for 12 hours of school. It was also unclear whether the 12 hours per semester applied to summer school.

As part of its proposed legislation, the Family Law Section recommended changes to RSMo Section 452.340 to remedy these problems, many of which were adopted. Senate Bill 910 modifies RSMo Section 452.340 so that a child with a diagnosed learning disability or physical disability or diagnosed health problem which limits the child's ability to maintain 12 hours may now take fewer hours and continue to receive child support. Also, a child who works 15 hours per week during the school year can carry as few as 9 hours per semester.

Senate Bill 910 also eliminates the confusing credit against child support for college expenses enacted in 1997. It includes a new provision that the court order the tax exemption for a college age child after analyzing the tax consequences. This recognizes the Taxpayer Relief Act of 1997 which allows a parent to use the Hope Education Credit and the Lifetime Learning Credit only if that parent can claim the exemption for the child.

Visitation Enforcement

RSMo Section 452.400 requires the Office of State Court Administrator to develop a form that litigants can use (without a lawyer if they so choose) to specify the details of interference with or denial of physical custody or visitation rights without good cause. Each court must provide a clerk to explain to the aggrieved party how to file the Family Access Motion. Within 5 days of receipt of the complaint, the court must initiate personal service on all parties with visitation or custody rights of the motion along with a Notice listing possible remedies. The party against whom the complaint has been made has 10 days to file a written response with the circuit clerk.

The next phase of the new enforcement procedure involves Alternative Dispute Resolution. The clerk must advise the parties if Alternate Dispute Resolution services are available, and schedule an appointment for attempted resolution of the problem through mediation. If the mediation fails or if no Alternative Dispute Resolution exists in the circuit, within 14 days the matter must be scheduled for hearing and a final judgment issued on the complaint within 60 days of the service of the motion.

The statute specifies remedies including, but not limited to: compensatory time for the missed visitation, a fine up to $500.00, and counseling for the violator on the importance of the child's relationship with the other parent.

Another significant statutory change regarding visitation and physical custody is RSMo Section 452.400 which requires the judge to order all parties to a dissolution action and the children to comply with custody and visitation orders. This change allows the custodial parent to enforce specified visitation when the other parent fails to exercise the ordered time with the children.

Additionally, RSMo Section 454.031 states that all penalties attaching to certain failures to pay child support, such as suspension of professional, hunting and fishing licenses, apply to denials or interference within 2 consecutive periods of visitation. The statute contains no guidelines for applying these remedies to visitation violations.

Visitation Restrictions

RSMo Section 452.400 prohibits visitation if a parent has been found guilty of or plead guilty to a felony under RSMo 566 or 568 (except 568.040) or to an offense against a child committed in another state which would be a felony in Missouri.

Moving a Child's Residence - Relocation

RSMo. Section 452.377 creates a new notice requirement before moving a child's permanent residence. Relocation is defined as "a change in the principal residence of a child for a period of 90 days or more but does not include a temporary absence from the home". Significantly this applies to any permanent move not just moves outside of Missouri as in the current law.

A parent must notify the other parent and any party with visitation or custody rights in writing, return receipt requested, 60 days before a move. If there are exigent circumstances, the court can allow a shorter notice time. The notice must include: 1) the intended residence and mailing address and if these are not known, the city; 2) the home telephone number of the new residence; 3) the date of the intended move; and 4) if the move is of a child's residence, a statement of the reasons for the relocation and a proposed revised custody or visitation schedule. The court can limit the disclosure of this information if the health or safety of a child or the parent would be unreasonably at risk by such notice.

A parent who objects to the move must file a motion specifying the reasons for opposition to the move within 30 days of receiving the notice. A party who objects in good faith shall not be ordered to pay the other parent's attorney fees. If no opposing motion is filed, the parent can move without court order.

If the parties agree to revisions in custody or visitation necessitated by a move, they may submit it to the court with an affidavit signed by all parties and the court may enter a revised order without a hearing.

A third party with visitation rights may file a motion to modify the visitation but not to prevent the move. This is consistent with Komosa v. Komosa, 939 S.W. 2nd 479 (Mo.App. 1997) which differentiated between the rights of parents and those of third parties in objecting to a child's move to Colorado with the parent.

Dividing Marital Debts

The bill contains numerous other changes. For example, the judge must now divide marital debts as well as marital property in a dissolution or legal separation action pursuant to RSMo Section 542.330. Previously the court had the authority to divide debts but was not required to do so.

Attorney Fees

Several provisions regarding payment of attorney fees were modified. RSMo Section 452.355 allows the court to order a party to pay the other party's costs and attorney fees incurred prior to the commencement of the proceedings and after entry of final judgment. In several sections it makes the award of attorney fees mandatory for actions or violations without good cause.

Custody

The custody provisions in RSMo Section 452.375 were modified slightly. The definition now specifies that Joint Physical Custody means significant but not necessarily equal periods of time with each parent. Third party custody is defined as a third party designated as the legal and physical custodian. The custody options available are spelled out with a requirement in joint physical custody arrangements that one parent's home be designated the child's mailing address for educational purposes.

The factors to be considered in awarding custody were rearranged but with only minor wording changes. An added limit is that the court cannot use the fact that a parent home schools a child as the sole factor in determining custody. The public policy statement was revised to state that the frequent, meaningful and continuing contact with both parents is in the child's best interest unless the court finds otherwise.

One significant requirement in Senate Bill 910 is that in contested custody actions the judge must include written findings in the judgment as to how the custody decision relates to the public policy statement and the factors enumerated in RSMo Section 452.375. The requirement to include specific findings is mandated whether or not an attorney requests findings of fact.

A new section also authorizes the court to require parents to bring the children to a neutral location for exchanges in connection with visitation.

Public Pensions - Child Support & Maintenance

Sections 104.50 and 287.820 and 476.688 allow a garnishment or Writ of Sequestration to collect child support and maintenance from certain public pensions.

Guardian Ad Litem

RSMo Section 452.423 now allows each party in actions pursuant to Chapters 210 or 452 to disqualify one guardian ad litem without giving any reason so long as the motion to disqualify is filed within 10 days of the appointment of the guardian. For cases in which the guardian was appointed prior to the passage of the statute, the guardian may be disqualified on application within 10 days of the statute's effective date.

Educational Sessions

Senate Bill 910 requires that all circuits establish educational sessions for parties to a dissolution. Such programs already exist in the largest circuits but this will be a major undertaking for rural circuits.