2019 FAMILY LAW UPDATE

ANNUAL LAW UPDATE 2019

FAMILY LAW

Andy Scholz and Mallory McDonald

Rooney McBride and Smith, LLC

(417) 708-9681

Modification

Settlement Documents

Ross v. Ross, SD 34997, May 29, 2018. In this case, the Father files a Motion to Modify asking for a change of custody for four children ages 12 to 18. During the pendency of the case, all four children switch residences from Mother’s home to Father’s home, with Mother’s agreement. When the trial date rolls around, the parties take the stand and testify they have reached a stipulated agreement. This agreement gives Father sole custody of all children. The parties agree Father’s attorney will draw up the Parenting Plan to match the stipulated agreement. Father sends Mother’s attorney the proposed judgment and parenting plan and waited months for a response and got none. Father’s attorney then submits the proposed parenting plan to the Court and copies Mother’s attorney. Mother’s attorney advises the court that he “had been waiting to see how visitation went through the holidays.” Mother proposes amending the language of the parenting plan. The amendment would allow the children to decide their own holiday parenting time if they spend at least twenty-four hours with Mother on each holiday. The Court enters the parenting plan without the twenty-four-hour provision. On appeal, Mother alleges the Parenting Plan was improper because it gave the children the discretion to decide when they see their Mother. “While we do not endorse these visitation provisions, we decline to entertain Mother’s objections given her representations to the trial court.” Judge Nancy Rahmeyer writes a very good dissent. “Although I agree that the attorneys many have invited error, which we all agree was error, the trial court cannot entirely escape its responsibility to determine whether this proposed parenting plan was in the best interest of the children.”

Modification

Continuing Maintenance

Child support

In re Marriage of Isakson, 555 S.W.3d 21, 24 (Mo. Ct. App. 2018), reh’g and/or transfer denied (July 3, 2018), transfer denied (Sept. 25, 2018). Modification of maintenance and child support case. Husband argues:1) trial court erred when it reduced, but continued maintenance payments because Wife had not made sufficient efforts to become self-supporting; 2) trial court should have reduced child support amounts because Father was also ordered to pay college and medical expenses; and 3) trial court should have reduced child support because Wife’s income and expense statement had a total amount of expenses for the child at an amount that was lower than the presumed child support. Maintenance. Since the first trial, Wife earned a Bachelor’s Degree from Drury in December 2012. In February of 2016, Wife entered an MBA program where she received free tuition for working at the university. (INTERESTING NOTE: this case has a previous appellate court decision where the trial court was overruled because it ordered Husband to pay for Wife’s college expenses.) Husband specifically argues, erroneously, that the law mandates self-sufficiency at a specific date if you receive maintenance. Modification trial court finds: 1) Wife continues to lack the ability to provide for herself with reasonable employment; 2) Wife has diligently sought employment; employment income within the range of her capabilities; and 3) Wife is not underemployed. Appellate court finds Wife had made a “good faith effort to become self-supporting in a reasonable amount of time.” (INTERESTING NOTE: Trial court did reduce maintenance, but just didn’t completely terminate it. Appellate court points out Husband failed to raise the proper argument to claim the amount of the decrease was too small.) Child support. Trial court orders the presumed amount of child support. Husband does not challenge the presumed amount found, just the failure to deviate from it. Trial court, in addition to the presumed amount of CS, orders Husband to all pay extraordinary and medical expenses. Wife’s I and E has a totaled combined amount for the child’s expenses at an amount lower than the presumed CS amount. “The trial court, however, is not restricted to only the income and expense statement of Ex-Wife in determining [the child’s] expenses, but can consider all relevant evidence. Although it is within the trial court’s discretion to award the higher amount if it determines that amount to be just, the trial court must explain its decision to do so, citing the specific factors supporting the award.” The trial court does make specific findings such as this (e.g. child had gall bladder issues, so he had dietary restrictions; child stayed with Wife during college breaks). Husband also argues CS amount is duplicative expense and trial court should have deviated from the presumed amount because he was ordered to pay all the extraordinary and medical expenses. “When the trial court orders a parent to pay a portion of non-covered or extraordinary medical expenses or extraordinary post-secondary educational expenses in a separate order outside of the Form 14 presumed child support amount, the trial court is not required to find that the presumed child support amount is unjust or inappropriate and is, therefore, rebutted by the extraordinary expenses.”

Maintenance

Short marriage

Vocational Expert

Fox v. Fox, ED105252, June 26, 2018

Trial court awards maintenance to Wife and awards Wife a portion of the equity of a residence. Husband argues: 1) trial court erroneously considered Wife’s physical and emotional condition in granting maintenance; 2) trial court failed to consider the short duration of the marriage when awarding maintenance; and 3) trial court made an error when it awarded Wife a portion of the equity in the residence, which Husband acquired prior to the marriage. Husband was retired military and he met Wife online, when she lived in China. Wife moves to America to be with Husband. Husband earns a military pension, but also earns income as a security contractor. Wife had a limited command of the English language, limited work experience, and suffered from dizziness, headaches and emotional instability. Husband had a vocational expert testify, but that expert never interviewed Wife or any potential employer! Trial court discounted the expert testimony. Trial court found Wife could only earn minimum wage. Wife never had an expert testify about her medical or emotional deficiencies but did provide her own detailed testimony regarding the deficiencies. “It is well established that the trial court may properly accept detailed testimony from a party claiming that he or she is unable to work due to his or her physical or emotional condition, even in the absence of testimony from medical experts.” Husband also argues that, because the marriage was so short, the trial court improperly considered the Wife’s standard of living during the marriage. Appellate court points out that there is no precedent which precludes factoring in the standard of living if the marriage is short. Appellate court also points out that the record is replete with facts establishing that Husband controlled 100% of the finances during the marriage. When factoring in this control along with the duration of the marriage, the appellate court finds the maintenance award proper. The court then addressed the award of marital equity to Wife. Husband bought the residence before the marriage and it was never titled in Wife’s name. However, Husband paid the mortgage down $60,000.00 using the income he earned during the marriage. “Any increase in the value of separate property is marital property if marital assets or marital labor contributed to acquiring that increase.” Judgment affirmed.

Child Support

Modification of child support

Jurisdiction

Rosas v. Lopez, 556 S.W.3d 620, 625 (Mo. Ct. App. 2018). Husband and Wife originally obtain a dissolution from the country of Columbia. Husband then relocates to Missouri. Wife stays in Columbia with the children. Husband, with Wife’s consent, registers the Columbian judgment in the Circuit Court of St. Louis. In July of 2011, the parties file a Consent Judgment which awards Husband sole legal and sole physical custody of the children. In December of 2012, Husband files a second Motion to Modify asking for a change in Wife’s visitation. Mother files a motion to set aside the Consent Judgment, claiming it was void since the parties falsely alleged the children had lived in Missouri at least six months prior to the filing of the modification. Court agrees and renders the Consent Judgment void. In April of 2013, Wife relocates the children to Columbia, where they remain. Parties then file a large amount of motions, and amongst those is a Motion to Modify Child Support, filed by Wife. Trial court orders Husband to pay an increased amount of child support and orders him to pay the cost of private school tuition in Columbia. Husband appeals.

            Husband argues on appeal: 1) court lacked jurisdiction under Uniform Interstate Family Support Act (UIFSA); 2) court erred when it included private school tuition in Wife’s award; and 3) Court failed to specify whether the children’s age of emancipation is modified. Court plainly states that jurisdiction is not at issue. Court points out the obvious. When Husband lived in St. Louis, he registered the judgment and subsequently asked for a modification. The Court states:

“Father has acquiesced to any child support modification rendered by the trial court by his continued presence in Missouri and, more persuasively, his consistent litigation in Missouri courts. He registered the Colombian decree, modified his child support and custody and later filed his second motion to modify and motions to quash income withholding, contempt and to determine amounts due and owing. By Father’s choice, litigation continued in Missouri for more than three years prior to Mother’s motion to modify. Father did not raise any deficiency under UIFSA during that period of time. Therefore, Father waived any potential defense concerning Mother’s failure to comply with UIFSA.”

            Court then rules the award of private school tuition is not an abuse of discretion when you consider the Columbian school is a school approved by the Department of State. Also, Husband and Wife both attended the school when they were younger. Appellate court then says the issue of whether the child support emancipation age has changed is best considered when the children reach an age of possible emancipation.

            Judgment affirmed.

Maintenance

Court order of maintenance termination after a span of years

Non-modifiability of maintenance

Parciak v. Parciak, 553 S.W.3d 446, 450 (Mo. Ct. App. 2018). Dissolution case where the trial court awarded Wife $10,000 per month in non-modifiable maintenance, which terminated upon: 1) youngest child’s graduation from high school; 2) sale of the marital home; or 3) normal statutory termination events (e.g. death or remarriage). Husband and Wife file cross appeals on several issues. Most importantly, Wife argues the trial court erred when it ordered non-modifiable maintenance with a termination based on future events that do not carry with them any guarantee that Wife will be self-sufficient upon occurrence of the events. The Eastern District agrees. It finds there is absolutely no evidence in the record to indicate Wife will be able to meet her needs when the kids graduate high school or when the marital home sells. By the Husband’s own admission, Wife has a current reasonable need of more than $7,000.00 per month. Evidence was presented at trial showing Wife had a small photography business that had a $14,000.00 annual loss. Zero evidence Wife will have increased income when the kids graduate or the home sells. Reversed and remanded with instructions for the court to order non-terminable, modifiable maintenance. Appellate court affirms the trial court’s decision for both parties to pay their own attorney’s fees. Appellate court affirms the trial court’s decision to award the marital home to Wife while also ordering Husband to pay the mortgage.

Maintenance

Court order of maintenance termination after a span of years

Non-modifiability of maintenance

Taylor v. Taylor, 566 S.W.3d 641 (Mo. Ct. App. 2018). Husband is a vice president at Anheuser-Busch and earns over $500,000 gross per year. Wife has a law degree from 1992 but has not been actively engaged in a legal practice since 1993. After a trial, the court ordered Wife to receive $2,500 in monthly, non-modifiable maintenance for thirty-six months. On appeal, Wife has three arguments: 1) The award of terminable, non-modifiable maintenance was in error; 2) The amount of maintenance awarded is in error because it does not allow Wife to meet her reasonable needs; 3) the trial court erred when it quashed Wife’s subpoenas requesting communication between Anheuser-Busch and a non-party witness who Husband admits is his paramour; 4) the trial court erred when it failed to dismiss Husband’s claim of tortious interference. The Eastern District agreed with Wife’s points one, two and four.

            At trial, Husband had a vocational expert testify that Wife had the ability to find employment at a law firm earning over $70,000 per year. The expert submitted a vocational report as evidence. The trial court used the testimony and the report as the basis upon which to conclude Wife only needed maintenance for a short period of time. The Eastern District found the vocational report to be deficient. The vocational expert “did not inquire about her professional networking or how many hours she had actually contributed to her part-time solo practice.” The vocational expert found Wife to be an experienced attorney and attributed to her a salary commensurate with this experience. However, the appellate court points out the vocational report is inconsistent because it states Wife’s salary range is in the inexperienced, one to three-year range. The Eastern District states this contradiction in the expert’s testimony “lends support to our holding that the record lacks substantial evidence of a non-speculative impending change in Wife’s current financial circumstance”. Because of this, the appellate court reversed the trial court and remanded with instructions to enter an order for modifiable maintenance, without the thirty-six-month limitation, and to review the amount of the monthly maintenance award considering the evidence presented.

            As to Wife’s third argument, that the trial court erred by quashing her subpoena, the appellate court found no reason for reversal. The subpoena in question asked for all email and written correspondence between Husband’s paramour and Husband’s employer, Anheuser-Busch. Eastern District holds this discovery was not likely to lead to admissible evidence. Any probative value was outweighed by the inconvenience on non-parties.

            For the fourth argument, appellate court finds the trial court should have dismissed Husband’s count of tortious interference because everyone agreed Husband suffered no damages. Who knew you could add tortious interference as a count to divorce case? I find that revelation terrifying.

Juvenile

Termination of Parental Rights

In Interest of K.S., 561 S.W.3d 399, 401 (Mo. Ct. App. 2018), reh’g and/or transfer denied (Sept. 25, 2018), transfer denied (Dec. 4, 2018). Bio parents challenge the termination of their parental rights. The Appellate Court finds: 1) termination of Mother’s parental rights on basis of abandonment was supported by clear, cogent, and convincing evidence; 2) substantial evidence supported trial court’s finding Father had a pattern of abusive behavior, which showed no sign of being changed; and 3) substantial evidence supported trial court’s finding that termination of Father’s parental rights was in children’s best interests.

Step-Parent Adoption

Abandonment and neglect

Service by publication

Matter of A.R.V., 561 S.W.3d 817 (Mo. Ct. App. 2018), reh’g and/or transfer denied (Oct. 1, 2018), transfer denied (Dec. 18, 2018). IF YOU DO ADOPTIONS YOU DEFINITELY NEED TO READ THIS CASE. Step-parent adoption case. Biological Father (bio-Father) and Mother are unmarried and have a child together in August of 2008. Bio-Father is disabled due to a spinal cord injury. Bio-Father and Mother separate, and Mother gets a paternity judgment in April of 2009. Paternity judgment gives Mother sole legal and sole physical custody and orders bio-Father to continue providing child with SSDI dependent benefits, in lieu of child support. Paternity judgment orders each parent to notify the other of their address. In August of 2009, bio-Father moves to Colorado. In February of 2010 bio-Father suffers a stroke that leaves him paralyzed and unable to communicate for six months. Bio-Father does not see the child from August of 2009 to January of 2015. In January of 2012, Mother moves and does not provide bio-Father with her new address. Mother marries a man (step-Father) and in September of 2014, they file a petition to have step-Father adopt child. In their petition for adoption, they allege the bio-Father’s consent is not needed because he had willfully abandoned and willfully, substantially, and continuously neglected Child. Bio-Father is not personally served with that summons or petition. The Court allows service by publication after a special process server attested that serving Father was impossible because he had moved from his last known address. In February of 2015, the trial court enters a default judgment of adoption when Father does not appear at trial. In the meantime, bio-Father has been making efforts to locate Mother and child and files a Motion for Family Access after the default adoption has been awarded. Father then learns of the default and files a motion to set aside the judgment of step-parent adoption. The trial court grants this motion and sets the case for trial on the merits in May of 2016. After trial, court grants the adoption by step-Father. Father filed a Motion for New Trial, which the trial court grants and states that the relevant issue issues are abandonment and bio-Father’s ability to care for the child. Father then files for a summary judgment asking the court to deny the petition for adoption. The court grants this motion. Mother and step-Father file an appeal alleging 1) The trial court improperly set aside the default judgment; and 2) the court erred in failing to find that bio-Father willfully abandoned and willfully, substantially, and continuously neglected the child, and that the adoption was in the child’s best interests.

            The appellate court disposes of Mother and step-Father’s first argument by pointing out that the order setting aside the default judgment was a final order and Mother and step-Father failed to file a timely request for new trial or Notice of Appeal. Those deadlines have long since passed. The court then turns to the issue of abandonment and neglect. The court states that it will terminate a parent’s rights only where clear, cogent, and convincing evidence is presented that such a termination is necessary. The appellate court finds Mother and step-Father have not met this burden. Bio-Father continuously provided the child with support because the child received SSDI dependent benefits. Bio-Father also demonstrated that he had made reasonable efforts to contact the child, but those efforts were hindered by Mother’s failure to give bio-Father her new address and by bio-Father’s disabilities. 

Parenting Plans

School holidays

Trial court’s findings for child support

Olson v. Olson, SD35239, Southern District, September 10, 2018. Father and Mother have been divorced since October 2011. After the divorce, Father moves to Wisconsin. Due to the relocation and due to the children’s age, Father files a Motion to Modify asking for a new parenting plan and a re-calculation of child support. Mother files a counter-petition asking for a modification of joint custody and an increase of child support. After trial, the court modifies Father’s parenting time and sets child support at $814.00 per month. Father appeals on two issues: 1) The parenting plan is deficient because it does not delineate parenting time for all legally-required holidays; and 2) The ordered child support is improper because the court failed to state how it calculated Father’s child support obligation and did not include its own Form 14. The appellate court finds both arguments persuasive. Section 452.310.8 provides that a parenting plan shall include delineated parenting time for all school holidays for school-aged children. The Missouri Supreme Court’s Parenting Plan Guidelines also include a schedule for MLK Day, President’s Day, Memorial Day and Labor Day. The Southern District finds the failure to account for these holidays in the parenting plan constitutes reversible error. The appellate court also finds it is reversible error when the trial court calculated child support but did not put its own Form 14 worksheet in the record and did not clearly indicate how it derived its Form 14 amount. The trial court’s only finding was that the child support “is in conformity with Rule 88 and Form 14 guidelines.” The appellate court reversed the trial court’s judgment, in part, with instructions to conduct a new trial and enter a new parenting plan in conformity with its ruling on school holidays and Form 14.

Juvenile

Termination of parental rights

Interest of C.E.B., 565 S.W.3d 207, 210 (Mo. Ct. App. 2018). Juvenile case from Greene County. Judge Holden was the trial judge. Southern District finds: 1) Trial court’s decision to hold permanency hearing on same date as jurisdictional hearing complied with statutory time period; 2) trial court’s finding that father suffered from chemical dependency was not against weight of the evidence; and 3) trial court did not abuse its discretion in finding that termination of parental rights was in child’s best interest.

Parenting Plans

Therapists

Impermissible delegation of judicial authority

Clark v. Clark, 568 S.W.3d 920, 921 (Mo. Ct. App. 2019). The Southern District states its rule clearly and succinctly: “[I]t is impermissible to enter an order allowing a therapist to decide when conditions have changed enough to alter the parenting plan.”

            Mother and Father file for divorce. The parties’ three children were then ages 10, 15 and 18. At trial, the court heard testimony from: 1) the family therapist who had conducted therapeutic visitation between Mother and children; 2) the children’s therapist; 3) Mother’s therapist; 4) Mother; 5) Father; and 6) the three children. The court’s judgment after trial finds that frequent, continuing and meaningful contact with the mother is not in the children’s best interest. The judgement then has carefully-crafted language that says mother shall continue therapeutic visitation with the children. After ample sessions have been conducted, all the therapists, along with another therapist titled the “therapeutic visitation therapist”, decide together the level of Mother’s supervision and whether or not Mother will receive unsupervised contact. In a way, this case is heartbreaking because the children testified at trial as to their wishes (which is always difficult) and you can tell the trial court really tried to craft a judgment that protected the children’s best interest, with input from qualified counselors. But you simply cannot do that.

Child Support Liens

Peoples v. Med. Protective Co., No. WD 81715, 2019 WL 1118522, (Mo. Ct. App. Mar. 12, 2019). Western District case holds that mother was not required to comply with statute requiring filing notice of lien in the court where father’s suit was filed in order to attach child support lien.

            In 1998 Father is ordered to pay child support. He never makes a payment. Later, he is confined in a correctional facility for unrelated crimes. While there he has a leg amputated due to vascular issues. Father sues the doctor who treated him for the vascular issues. Father and doctor settle the case on the agreement that Father gets $100,000. At the time of the settlement, Father owes over fifty thousand in unpaid child support. Mother’s attorney sends a certified letter pursuant to section 454.519. Mother’s attorney also sends a copy of the Judgment Order of Dissolution of Marriage, as well as an affidavit attesting to the amount of Father’s child support arrearage. The Lien Letter directed doctor’s attorney to forward the correspondence to doctor’s professional liability insurer, MedPro. Despite this letter, MedPro pays the money to Father. Mother sues MedPro for the amount of unpaid child support she should have received.

            For a child support lien, there are two ways a child support obligee can effectuate the lean. First, section 454.518, which requires that the obligee file written notice in the county where the suit is pending.  Second, section 454.519, which only requires that the obligee send a certified letter to the tort-feasor or the attorney of record. MedPro argues these statutes conflict and that section 454.518 should control. The Western District disagrees and says a certified letter pursuant to 454.519 is sufficient. MedPro ordered to pay Mother the unpaid child support.

Motion to Modify Child Custody

Change of Venue

Psychological evaluation expert

Disqualification of GAL

Brown v. Brown, No. SD 35304, 2019 WL 441528 (Mo. Ct. App. Feb. 5, 2019), transfer denied (Feb. 21, 2019). Southern District holds: 1) trial court did not abuse its discretion in denying father’s motion for a change of venue back to the original court; 2) trial court’s determination that the testimony of father’s expert witness, a clinical psychologist, was not credible could not be a basis to reverse; 3) Father failed to timely argue for a replacement of the GAL.

            Another case with a tortured history. Marriage is dissolved in Texas in 2006. Father is in the military. Mother moves to St. Charles County, Missouri. Father ends up in Nebraska. Texas judgment registered in St. Charles County. In 2011, St. Charles county judge gives sole legal custody to the Mother due to the parties’ inability to properly co-parent. In 2012, Mother files a Notice of Intent to Relocate to Barry County, Missouri. Father files a Motion to Modify in St. Charles County. Mother moves the children to Barry County before trial on the issue. Mother files for a change of venue from St. Charles County to Barry County, alleging inconvenient forum. St. Charles County transfers the case to Barry County. In May of 2017, Mother relocates the kids again, this time to Arkansas. Trial on Father’s Motion to Modify occurs in Barry County in 2017. Court finds no continuing change of circumstance to warrant a change of the parenting plan or a change of sole custody for Mother. Trial court approves the previous relocations. Father appeals.

            In his first two points, Father argues the change of venue to Barry County was in error. Father basically concedes that the convenient forum is in Barry County but argues Mother improperly relocated with the minor children in and should not be allowed to use that misconduct to her advantage in the venue decision. Court points out there is no statute or caselaw authority backing up this argument. Father’s first two points are denied.

            Father next argues the trial court abused its discretion in when it disregarded evidence presented on behalf of Father’s expert witness Dr. Ann Duncan. Dr. Duncan performed a psychological evaluation of Mother. Dr. Duncan allowed Father to be present during all of Dr. Duncan’s testing of Mother. Dr. Duncan originally did not diagnose mother with any personality disorder. However, four days before trial, Dr. Duncan says she has received further information from Father and now can diagnose her with borderline personality disorder. Father argues it is against the children’s best interests to ignore Dr. Duncan’s opinion. Southern District disagrees. Points out that the trial court had specific findings regarding Dr. Duncan’s lack of credibility. Trial court mentions how problematic it is having Father present during Mother’s testing. Appellate court has no problem with the trial court’s finding that Dr. Duncan’s opinion was one-sided and inappropriate.

            Father’s last argument is that the trial court should have replaced the GAL upon hearing the GAL’s recommendation after trial. Southern District states the obvious—Father waited until his appeal to argue this and, therefore, the request to replace the GAL was not timely filed.

            The judgment of the trial court is affirmed.

Enforcement of a Judgment of Dissolution

Motion to Compel vs. Motion for Contempt

State ex rel. Cullen v. Harrell, 567 S.W.3d 633 (Mo. 2019). Missouri Supreme Court holds: 1) one-year time limitation for filing motion for relief from judgment did not apply; 2) order sustaining motion to compel was valid use of inherent authority to effectuate dissolution judgment; 3) Husband was not entitled to hearing on motion to compel; 4) Husband’s due process and privacy rights were not violated by order; and 5) doctrines of collateral estoppel and res judicata did not bar motion to compel.

            Parties were originally divorced in 2007. Husband was a reservist with the United States Air Force. As part of the Marital Settlement Agreement, wife is to receive one-half of Husband’s marital military retirement benefits. In order to submit proper paper work to the United States government so Wife can get her one-half share, Wife needs to know the total number of reservist points earned by Husband and the reservist points earned during the marriage. Wife sends a request to Husband asking for this information and Husband refuses. Wife then files a Motion to Compel asking the court to order Husband to turn over the information regarding reservist points. Trial court, without a hearing, then ordered Husband to deliver to Wife all correspondence sent to him related to his military retirement pay and required Husband to execute an authorization releasing his military records to Wife’s counsel. Husband files a Writ of Prohibition.

            Husband first argues Wife’s motion to compel is barred by the doctrines of collateral estoppel and res judicata and by the one-year time limitation in Rule 74.06(c) for relief from a judgment. The Missouri Supreme Disposes of this when it points out the doctrines of collateral estoppel and res judicata apply only in a second, subsequent lawsuit. The Motion to Compel filed by wife is not a separate lawsuit, but rather an effort to enforce the original judgment.

            Husband next argues the Motion to Compel is barred by the one-year time limitation in Rule 74.06(c) for relief from a judgment. Originally, the judgment was amended to correct a mistake so that Husband was properly listed as a reservist. But that correction was a final judgement and Husband failed to appeal it. This new order was only an enforcement of the judgment to effectuate it’s terms. Portions of the judgment and Marital Settlement Agreement require both parties to provide all documents to help accomplish the orders of the court. Husband agreed to this language and should be bound by it, the appellate court states. Enforcing the judgment is not modifying the judgment. Husband also claims error because the trial court ruled on the Motion to Compel without giving him the chance to have an evidentiary hearing. The Missouri Supreme Court states: “Husband cites no authority for the proposition he was entitled to a hearing outside the Rule 74.06(b) context.”

            Husband next argues his privacy and due process rights were violated by the trial court’s order because it requires him to disclosed information protected by HIPAA. Unfortunately for Husband, he fails to clearly articulate why turning over information about his reservist points violates HIPAA. The majority opinion rejects all of Husband’s arguments and denies the request for a Writ of Prohibition.

This case also has a dissenting opinion that is worth reading. The dissent argues that Wife should have filed a Motion for Contempt rather than a Motion to Compel. I think this brings up a good practice tip. In my opinion, you are better off filing a Motion for Contempt rather than a Motion to Compel when you are dealing with the enforcement of a judgment.

Adoption

Termination of Parental Rights

In the Interest of: F.L.M., 561 S.W.3d 561 S.W.3d 474 (Mo. Ct. App. 2018). Adoption case of a six (6) year old. Father was incarcerated when the child was three (3) months old. When the child was two (2) years old, the mother was alleged of abuse and neglect, and the child was placed with great-uncle (herein “K.F.”)  and his then fiancée (herein “L.F.”). Mother and father consented to K.F. and L.F.’s serving as the child’s guardians. K.F. and L.F. petitioned for adoption of the child. At trial, father testified that he consented to guardianship because he wanted the child to be in K.F. and L.F.’s care until his release from prison. While the father was in prison, he sent cards, had phone calls, and had a few visits with the child, but did not provide any monetary support.  He also participated in various improvement programs and parenting courses in prison. The trial court concluded that father loved the child, and made no finding regarding his credibility. The trial court found the guardians to be less than forth coming about mother’s attempted contact with the child and that they failed to provide constant and regular contact between the parents and child. The trial court found that father willfully neglected the child by not providing monetary support and that he lacked adequate housing for the child any time in the near future. The trial court terminated the parental rights of mother and father, and granted the adoption. Father appealed the judgment. The Eastern District Court of Appeals reversed and remanded the trial court’s decision on the basis that “the record contains no clear, cogent, and convincing evidence to support the trial court’s determination that the father willfully, substantially, and continuously neglected to provide the child with necessary care and protection.” A parent’s failure to provide financial support, by itself, is not a basis for termination of parental rights.  A finding of willful neglect on the basis of failure to provide financial support must be coupled with evidence of a lack of contact.

Orders of Protection

Stalking via social media

E.D.H. v. T.J., 559 S.W.3d 60, 62 (Mo. Ct. App. 2018). Boyfriend sought and obtained an Order of Protection against Girlfriend due to a social media post Boyfriend claimed would harm his reputation. Girlfriend argues there was insufficient evidence to support an order of protection against her. She argues her conduct would not have caused fear of physical harm in a reasonable person. She argues her conduct did not cause Boyfriend substantial emotional distress.

            Boyfriend and Girlfriend break up and, several years later, Girlfriend sees a post by Boyfriend where he is renewed his vows to his wife of many years. Girlfriend states she did not know Boyfriend was married. Over a series of posts which mentioned Boyfriend’s wife and children, Girlfriend reveals her past relationship with Boyfriend.  Girlfriend states her purpose was to tell her story in relation to African-American women’s issues. She stated she is an advocate for African-American women’s issues and always discusses such issues through the lens of her own experience. Boyfriend immediately files a Petition for an Order of Protection. In the section where it asks whether there is a threat of physical violence, Boyfriend states, ““Defamation to my character. Contacting and referencing church and job. Don’t know what she’s capable of. I’ve been non-responsive … but she won’t go away!” Boyfriend then checked the boxes for stalking and harassment. Trial court grants the initial ex parte and then the full order after a hearing where Boyfriend and Girlfriend testify.

            Appellate court overturns the trial court’s decision. Eastern District says this does not fit the definition of stalking because Girlfriend’s post and behavior would not lead a reasonable person to fear physical harm. To fit the definition of “harassment”, Girlfriend’s behavior would need to cause alarm or distress. There was no testimony in the record by Boyfriend that established in any way that he experienced alarm or distress. He answered “yes” when asked if Girlfriend had stalked and harassed him, but he did not say how she harassed him, other than saying she had damaged his reputation. The Eastern District points out that the Order of Protection statutes are not “intended to be a solution for minor arguments between adults.”