• Jurisdiction

    Jurisdiction

    Circuit Court Had Jurisdiction Over Child Born in Kansas
    Child was born in Kansas, but Uniform Child Custody Jurisdiction and Enforcement Act  (UCCJA) provides that child’s address is the address of her parents.   The Act further accords authority over child to child’s home state, which is where a child less than six months old lives.
    In the Interest of: Baby Girl Arnold; Juvenile Officer vs. Timothy Arnold and Royce Arnold

    Missouri Court of Appeals, Western District – WD80474

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  • Judgment Affirmed!

    Judgment Affirmed!

    In the

    Missouri Court of Appeals

    Western District

    DANIEL BARKHO,

    Respondent,

    BETH READY,

    Respondent,

    DOUGLAS READY,

     

    WD79827

    OPINION FILED:

    March 28, 2017

    Appeal from the Circuit Court of Callaway County, Missouri

    The Honorable Gary M. Oxenhandler, Judge

    Before Division One:

    James Edward Welsh, P.J., Anthony Rex Gabbert, and Edard R. Ardini, Jr., JJ.

    Douglas Ready appeals the circuit court’s judgment ordering specific performance of an

    oral contract for the purchase of land and ordering him to pay attorneys’ fees on behalf of Daniel

    Barkho and Beth Ready.1 Douglas contends that the circuit court erred (1) in finding that the

    parties had an oral contract for the sale of property that was not barred by the statute of frauds

    because the evidence was insufficient to prove “by clear and convincing evidence beyond a

    1Given that some of the parties have the same last name, we will refer to the parties by their first names

    going forward. No disrespect is intended.

    2

    reasonable doubt” that the parties entered an oral contract for the purchase of the land and (2) in

    ordering specific performance of the alleged oral contract rather than restitution. In regard to

    attorneys’ fees, Douglas asserts that the circuit court erred in awarding Daniel and Beth

    attorneys’ fees under the “special circumstances” or “very unusual circumstances” exception to

    the American Rule or abused its discretion in ordering him to pay Daniel’s and Beth’s attorneys’

    fees as a sanction under the court’s inherent powers. We affirm.

    In 1981, the father of Daniel and Beth purchased a farm in Callaway County, Missouri.

    Their father, desiring to divide up the farm property between Daniel, Beth, and his four other

    children,2 drew up a plan outlining the parcels of land that each child would receive. When their

    father died in 2009, their mother, Alene Barkho, became the owner of the property. Because of

    financial difficulties in making the payments on the property, Alene, in 2011, approached all of

    her children about their interest in purchasing the parcels of land that their father desired each

    child to have. At that time, Daniel could not obtain financing to purchase his designated parcel,

    Tract V.

    On May 29, 2011, Beth and her husband, Douglas, purchased property from Alene that

    included Tract V. Pursuant to the terms of the contract, Beth and Douglas agreed that if they

    desired to sell the property within 5 years of the date they purchased it, they would notify all of

    Beth’s siblings. The contract stated:

    Any of the said siblings of the Buyer who offer to purchase the property shall be

    entitled to purchase said property for a price equal to the cost paid by Buyer under

    this contract, together with the actual costs of any improvements placed upon the

    property by the Buyer from the date of the acquisition of title by the Buyer.

    2George W. Barkho, Helen Herigon, Maria Brondel, and Tom Barkho are siblings of Daniel and Beth.

    They were parties to the lawsuit but asserted no claims.

    3

    The contract also provided: “With regard to Tract V, if Buyer offers same for sale, then Seller’s

    child, Daniel M. Barkho shall have the right to refuse to purchase the property over any and all

    other siblings. Should he reject the right to purchase, then that right passes to the remaining

    siblings, equally.” According to Daniel, he informed his siblings by word of mouth that it was

    his intent to purchase Tract V.

    Thereafter, in 2011, according to Beth, Douglas encouraged Daniel to go to bank in

    Callaway County to obtain a loan. Beth and Daniel went to the bank, but the bank denied the

    loan. In 2012, Daniel sought advice3 from Douglas about a lending company based in

    Oklahoma. According to Daniel, he and Douglas had a discussion about the land and about it

    being transferred to Daniel. Daniel said that Douglas did not give him a figure in writing about

    the price of the land, but they discussed it verbally. In July 2012, Douglas computed figures for

    Tract V with the improvements on the land so that Daniel could inquire about a loan for the land.

    In January 2013, Daniel spoke to his boss about possibly borrowing money from him to

    purchase the land. When Daniel’s boss agreed to loan him $45,000, Daniel contacted Douglas

    and Beth and inquired about the purchase price of Tract V. Daniel said it was his understanding

    that he would pay $400 per acre plus the cost of any improvements on the land. On January 22,

    2013, Douglas did a handwritten calculation of the purchase price of Tract V with improvements

    on the land at $45,728.89 “as of 1/22/13.” Beth emailed this figure to Daniel on January 27,

    2013. Beth also emailed Daniel handwritten calculations from Douglas showing the figures “as

    of 7/30.” Daniel said that he understood that the $45,728.89 figure was the purchase price for

    the property, and Beth agreed that she and Douglas were willing to sell the land for that price.

    3Douglas had a real estate license for 20 years and had two to three years of experience as a loan officer.

    4

    Between January and February 2013, Daniel and Douglas talked on the telephone about

    Daniel sending $45,000 and paying the remaining balance of $728.89 at a later time. According

    to Daniel, Douglas was fine with that arrangement. Daniel, however, waited until he received his

    $1,000 tax return so that he could add that to the $45,000 he received from his boss as a loan.

    On March 11, 2013, Daniel’s bank issued a cashier’s check payable to “Doug or Beth Ready” in

    the amount of $46,000, and the check was signed by Daniel’s wife. When the check was mailed

    to Douglas and Beth, Douglas retrieved the check from their mailbox and put it “on the counter.”

    A couple of days later, Beth asked Douglas where to deposit the check, and Douglas told her to

    deposit it in Maries County Bank. Thereafter, Beth mailed the cashier’s check to Maries County

    Bank with a note to “Please deposit this on our loan account.”

    When the bank received the check, it initially applied the check towards the principal on

    Douglas’s and Beth’s land loan. On April 10, 2013, Douglas contacted Maries County Bank and

    asked the bank to reallocate the $46,000 on their land loan. In particular, Douglas instructed the

    bank to apply $11,201.79 for the regular payment and to apply the remainder ($34,798.21)

    towards the principal. Douglas never asked the bank to return the $46,000 to him. On April 12,

    2013, Maries County Bank, acting on directives from Douglas, reversed the $46,000 principal

    payment and re-applied the payment as $11,201.79 for a regular payment (consisting of

    $3,099.44 as principal and $8,192.35 as interest) and $34,798.21 applied to principal.

    On April 22, 2013, Douglas texted Daniel and told him that he would call the title

    company “tomorrow. “ Douglas also sent an email to Beth on that same day saying that he was

    “going to set the transfer of the land to Danny” on May 1, 2013. On April 23, 2013, Douglas

    contacted Boyd & Boyd, Inc., a land title company, regarding the sale of Tract V. Douglas

    requested that Boyd & Boyd issue a title insurance owner’s policy in the amount of $31,692,

    5

    with a cash lender and counter closing. According to Julia Uhls, the owner of Boyd & Boyd, the

    date of May 1, 2013, “was chosen” as the closing date “because they wanted to do it as soon as

    possible and that was about the soonest Boyd & Boyd could deliver.” Douglas also requested

    that Boyd and Boyd prepare a warranty deed to transfer the property. On April 28, 2013,

    Douglas texted Daniel and said, “They are supposed to call u on how the names supposed to be

    on title.” Boyd & Boyd did contact Daniel about the name to put on the warranty deed, and

    Daniel instructed them to put it in his name only. On April 30, 2013, Douglas texted Daniel and

    said, “They only have your name on warranty deed. Is that the way u want it.”

    Douglas instructed Boyd & Boyd to contact Beth when the warranty deed and title

    insurance policy were ready to be picked up. Boyd & Boyd prepared a title insurance owner’s

    policy in the amount of $31,6924 for Tract V with the insured listed as Daniel and stating that

    title in the land was vested in Douglas and Beth. Boyd & Boyd also prepared a warranty deed

    and a billing statement for $228. The billing statement listed the customer as “Douglas Ready-

    Daniel L. Barkho.” Beth picked up these documents from Boyd & Boyd, and Douglas admits he

    saw at least the warranty deed prepared by Boyd & Boyd.

    After a 23 year marriage, Beth Ready filed a dissolution of marriage action against

    Douglas on May 1, 2013. According to Beth, when Douglas became aware that she wanted a

    divorce, Douglas tried to get her to sign an agreement where, if she agreed to not divorce him, he

    would transfer the property to Daniel, but, if she went through with the divorce, Douglas would

    allow her to have Daniel’s property and Douglas would get “all of the [remaining] property.” In

    an email, Douglas told Beth: “The only way Danny doesn’t get the land is if you don’t sign

    4The amount of $31,692 was calculated by multiplying the number of acres for Tract V, which was 79.23

    acres, by $400, which was the price per acre that Douglas and Beth paid for the property.

    6

    it. . . . If you don’t sign, then I guess you can explain it to Danny.” Beth did not sign the

    agreement. Beth, however, has always been willing to sign the deed to transfer the property to

    Daniel, but Douglas has refused to sign the deed.

    On May 6, 2013, Daniel’s attorney sent Douglas a demand letter to sign the warranty

    deed or return the money. Douglas did neither of these things. Thereafter, on June 18, 2013,

    Daniel filed a petition with the circuit court seeking specific performance of the contract with

    Douglas and Beth to convey the property. On January 7, 2016, the circuit court ordered Douglas

    and Beth to deposit $46,000 to the Registry of the Court. Daniel filed a fifth amended petition

    for specific performance, for damages and attorney’s fees, and to quiet title on January 7, 2016.

    On January 12, 2016, Douglas filed an answer denying the existence of any oral contract and

    seeking a judgment in his favor. He also stated as affirmative defenses that Daniel had no right

    to specific performance because the alleged oral contract was barred by the statute of frauds and

    Daniel could not show that he did not have an adequate remedy at law. On January 20, 2016,

    Beth filed an answer joining in Daniel’s claim for specific performance and filed a cross-claim

    against Douglas for specific performance. She also requested that Douglas pay her attorney’s

    After a bench trial, the circuit court entered its judgment finding that the parties’ actions

    formed an oral contract for the sale of the property and ordered specific performance of the

    contract. The court found that there was a meeting of the minds in that:

    [Daniel] and Douglas discussed the sale of the real estate via text messages. . . . .

    Douglas computed the figures for the sale on different documents at different

    times, including taxes, fencing, survey, and interest . . . . Douglas sent to . . . Beth

    a signed e-mail that closing would occur on May 1, 2013 . . . . [Daniel’s] actions

    and Douglas’s actions clearly evidence a contract to convey Tract V to [Daniel.]

    7

    In making that determination, the circuit court stated that, “other than the evidentiary matters that

    Douglas committed to writing, e.g. texts, emails, etc., prior to the time of the filing of the

    litigation, the testimony of Douglas post filing of litigation, e.g. pleadings, deposition, testimony

    of trial, etc., denying the efficacy of his writings was without a scintilla of credibility.” The

    circuit court held that the statute of frauds was not applicable because Daniel fully performed his

    obligations by paying the purchase price. The circuit court also ordered that Douglas pay

    Daniel’s and Beth’s attorneys’ fees. In ordering the payment of attorneys’ fees, the circuit court

    mentioned case law on the court’s inherent power to sanction a party for bad faith, false

    pleadings or affidavits, or perjury, the existence of “exceptional” or “unusual” circumstances in a

    suit in equity, and special circumstances justifying attorneys’ fees. Without making any findings

    on the basis that it chose, the circuit court ordered Douglas to pay Daniel $19,785 in attorney’s

    fees and Beth $23,081.61 in attorney’s fees. Douglas appeals from the circuit court’s judgment.

    On review of a court-tried case, we will affirm the circuit court’s judgment unless there is

    no substantial evidence to support it, it is against the weight of the evidence, or it erroneously

    declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). We view

    “the evidence in the light most favorable to the circuit court’s judgment and defer to the circuit

    court’s credibility determinations.” Ivie v. Smith, 439 S.W.3d 189, 200 (Mo. banc 2014). Id. We

    “accept as true the evidence and inferences . . . favorable to the trial court’s decree and disregard

    all contrary evidence.” Id. (citation and internal quotation marks omitted). We also recognize

    that “[c]ircuit courts are free to believe any, all, or none of the evidence presented at trial.” Id.

    “The same standard of review applies in all types of court-tried cases regardless of the burden of

    proof at trial.” Id. at 199.

    8

    In his first point on appeal, Douglas asserts that the circuit court erred in finding that the

    parties had an oral contract for the sale of property that was not barred by the statute of frauds.

    In particular, Douglas asserts that the evidence was insufficient to prove “by clear and

    convincing evidence beyond a reasonable doubt” that the parties entered an oral contract for the

    purchase of the land. Douglas asserts that no evidence existed of any actual promise to sell or

    purchase the property, of any firm agreement as to the purchase price, of any set closing date, of

    the type of deed to be delivered at closing, or of the allocation of insurance and the tax liabilities.

    The statute of frauds, set forth in section 432.010, RSMo, 2000, provides:

    No action shall be brought . . . to charge any person upon any agreement

    made . . . upon any contract made for the sale of lands, tenements, hereditaments,

    or an interest in or concerning them, . . . unless the agreement upon which the

    action shall be brought, or some memorandum or note thereof, shall be in writing

    and signed by the party to be charged therewith[.]

    “An oral agreement for the sale of real property falls squarely within the Statute of Frauds . . .

    and will not be enforced at law.” Skaggs v. Dial, 861 S.W.2d 188, 191 (Mo. App. 1993). Equity,

    however, will provide specific performance of an oral contract to convey land upon clear and

    convincing proof of the existence of contract, “if a party has acted to such a degree upon the

    contract that denying the party the benefit of the agreement would be unjust.” Id. at 191-92.

    Specific performance, however, “is granted sparingly and only when the terms of the oral

    agreement are proved by clear and convincing evidence.” Id. at 192. “The essential elements of

    an agreement to convey real property are: 1) the parties; 2) the subject matter; 3) the promises

    on both sides; 4) the price; and 5) the consideration.” Id. Moreover, “[t]he statute of frauds is

    not applicable to contracts which have been fully performed by one of the parties.” Lederle v.

    Lederle, 916 S.W.2d 423, 429 (Mo. App. 1996).

    9

    In this case, all of the essential elements for a contract to convey the property were met in

    this case. The evidence established that Daniel, Beth, and Douglas discussed the sale of Tract V.

    Daniel inquired about the purchase price of the land, and Douglas personally computed the

    purchase price of the land, and the price was conveyed to Daniel. Daniel paid the purchase price

    of the land by sending a cashier’s check to Beth and Douglas. Beth and Douglas deposited that

    check into their bank, and Douglas specifically directed the bank how to allocate that money to

    their land loan. Douglas then ordered title insurance and a warranty deed for closing on May 1,

    2013. Such evidence is more than sufficient to prove both the content of the contract and the fact

    that Daniel fully performed under the terms of the contract. The contract was proven “by

    evidence so unquestionable in its character, so clear, cogent, and convincing that no reasonable

    doubt can be entertained of its truth; that no doubt can linger either as to the existence of the

    contract or the certainty of its terms, or that [Daniel] has wholly performed his part.” Russell v.

    Sharp, 91 S.W. 134, 138 (Mo. 1905). The circuit court, therefore, did not err in finding that the

    parties had an oral contract for the sale of property that was not barred by the statute of frauds.

    In his second point relied on, Douglas asserts that the circuit court erred in ordering

    specific performance of the oral contract to convey the property rather than restitution. Douglas

    contends that, when an oral contract for the sale of land otherwise barred by the statute of frauds

    is enforceable under the statute’s equitable exception for partial performance, the equitable

    remedy of specific performance is available only where the legal remedy of restitution is

    inadequate. Douglas argues that, where the only performance is payment of monetary

    consideration, restitution is always an adequate remedy. We disagree.

    Douglas fails to appreciate and recognize the distinction between a situation where one

    party has fully performed its obligations under a contract and the situation where one has

    10

    partially performed under a contract. The circuit court specifically found that Daniel paid the

    purchase price set by Douglas and concluded that Daniel fully performed his obligations under

    the oral contract. Indeed, the evidence established that Daniel paid Douglas and Beth $46,000

    and that Douglas and Beth retained that money. No evidence was presented that the purchased

    price exceeded that sum or that Daniel promised some additional action that he did not do. As

    we previously noted, “[t]he statute of frauds is not applicable to contracts which have been fully

    performed by one of the parties.” Lederle, 916 S.W.2d at 429.

    Douglas also fails to appreciate that “[e]very tract of land is recognized as having a

    unique value,” and because each parcel of land is unique; “specific performance is ordinarily an

    appropriate remedy for breach of a contract to sell land.” Kay v. Vatterott, 657 S.W.2d 80, 82

    (Mo. App. 1983). “[I]t has been held time and again that a tract of land is unique, entitling a

    purchaser to specific performance of a contract for its purchase, irrespective of special facts

    showing inadequacy of the purchaser’s legal remedy.” Nickels v. Cohn, 764 S.W.2d 124, 136

    (Mo. App. 1989) (citing Wilkinson v. Vaughn, 419 S.W.2d 1, 5 (Mo. 1967)). The circuit court,

    therefore, did not err in in ordering specific performance of the oral contract to convey the land

    to Daniel.

    In his third and fourth points relied on, Douglas complains about the circuit court’s

    judgment ordering him to pay Daniel’s and Beth’s attorneys’ fees. Douglas asserts that the

    circuit court erred in awarding Daniel and Beth attorneys’ fees under the “special circumstances”

    or “very unusual circumstances” exception to the American Rule or abused its discretion in

    ordering him to pay Daniel’s and Beth’s attorneys’ fees as a sanction under the court’s inherent

    11

    “The determination of attorney fees is within the sound discretion of the trial court and

    should not be reversed unless the award is arbitrarily arrived at or is so unreasonable as to

    indicate indifference and lack of proper judicial consideration.” Trimble v. Pracna, 167 S.W.3d

    706, 714 (Mo. banc 2005). “Whether a trial court has authority to award attorneys’ fees is a

    question of law which we review de novo.” St. Louis Title, LLC v. Talent Plus Consultants, LLC,

    414 S.W.3d 24, 26 (Mo. App. 2013).

    “Generally, with regard to awards of attorney’s fees and costs, Missouri courts adhere to

    the ‘American Rule,’ which provides that each litigant should bear his or her own expenses.”

    Hinton v. Dir. of Revenue, 21 S.W.3d 109, 112 (Mo. App. 2000). Exceptions, however, are made

    where fees are permitted by statute or by contract, where unusual circumstances exist such that

    equity demands a balance of benefits, where the fees result from certain collateral litigation, or

    where special circumstances exist. St. Louis Title, 414 S.W.3d at 26.

    At trial, the circuit court stated on the record:

    [I]t is my belief at this point, having listened to the evidence, that [Douglas] is a

    bad actor in this case and there is a few ways that I can reach bad actors—one of

    them is via attorney’s fees, and one of them is via punitive damages—because he

    took the money and ran and he took the land and ran. And so he’s hard-pressed to

    come into the courtroom and expect to pluck anybody’s heartstrings that he didn’t

    understand what he was putting on paper. I don’t buy it at all. I don’t buy all of

    his arguments with regard to those weren’t his emails—or, excuse me, texts. I

    don’t believe it. He sat here for forty-five minutes and I’ve observed him, and

    that’s where I am with regard to it.

    Further, in its findings of fact and conclusions of law, the circuit court specifically found:

    The Court finds that other than the evidentiary matters that Douglas committed to

    writing e.g. texts, emails etc., prior to the time of the filing of the litigation, the

    testimony of Douglas post filing of litigation e.g. pleadings, deposition, testimony

    at trial, etc., denying the efficacy of his writings was without a scintilla of

    credibility. It appeared to the Court that Douglas was driven by his desire to

    reconcile with Beth (even if that meant using the sale of the real estate as a

    leverage tool against her and/or her brother to achieve reconciliation) and that he

    12

    intentionally used the sales proceeds to his financial advantage, refused to transfer

    Tract V and refused to return the sales proceeds (until ordered by this Court to do

    so). Such actions were reckless, willful, and malicious.

    On “rare occasions in an equity action,” the circuit court may award attorneys’ fees when

    it “finds it’s necessary to award the fees in order to balance the benefits.” Farley v. Johnny

    Londoff Chevrolet, Inc., 673 S.W.2d 800, 806 (Mo. App. 1984). “Fees may be awarded in equity

    actions but only in exceptional circumstances.” Speedie Food Mart, Inc. v. Taylor, 809 S.W.2d

    126, 131 (Mo. App. 1991). “‘Unusual circumstances’ have been found where a party’s conduct

    is ‘frivolous, without substantial legal grounds, reckless or punitive.’” Birdsong v. Children’s

    Div., Mo. Dep’t of Social Servs., 461 S.W.3d 454, 460 (Mo. App. 2015). Although courts have

    rarely found the very unusual circumstances that permit the award of attorneys’ fees in the

    absence of a statute or contract,” id. at 460-61, it is still within the circuit court’s discretion to

    award attorneys’ fees when unusual or exceptional circumstances exist. Given that the circuit

    court found and the evidence supported that Douglas’s actions were reckless, willful, and

    malicious, we conclude that the circuit court did not abuse its discretion in ordering Douglas to

    pay Daniel $19,785 in attorney’s fees and Beth $23,081.61 in attorney’s fees.5

    Daniel and Beth also filed motions for attorneys’ fees on appeal with this court. Under

    this court’s Special Rule XXIX, “a party may file a motion in this court for attorney fees

    ‘pursuant to contract, statute, or otherwise.’” Motor Control Specialties, Inc. v. Labor and Indus.

    Relations Comm’n, 323 S.W.3d 843, 857 (Mo. App. 2010); Lake at Twelve Oaks Home Ass’n,

    Inc. v. Hausman, 488 S.W.3d 190, 202 (Mo. App. 2016). Daniel and Beth cite to no contract or

    5Given that we reached this conclusion, we need not address Douglas’s contention that the circuit court

    abused its discretion in ordering him to pay Daniel’s and Beth’s attorneys’ fees as a sanction under the court’s

    inherent powers.

    13

    statute that gives them the right to attorneys’ fees on appeal; thus, we presume that they are

    making their request for attorneys’ fees based on an “otherwise” situation. Their motions

    essentially suggest that because the circuit court found Douglas’s actions at the trial level to be

    reckless, willful, malicious, and in bad faith, we must necessarily find that his actions on appeal

    are reckless, willful, malicious, and in bad faith. We decline to make such assumptions in regard

    to Douglas’s actions on appeal. Therefore, although we are affirming the circuit court’s award of

    attorney’s fees at trial level, we find that Daniel and Beth have not “otherwise” established that

    they are entitled to attorneys’ fees on appeal.

    We affirm the circuit court’s judgment ordering specific performance of an oral contract

    for the purchase of land and ordering Douglas to pay attorneys’ fees on behalf of Daniel and

    /s/ James Edward Welsh

    James Edward Welsh, Presiding Judge

    All concur.

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  • HB 1550

    HB 1550

    PARENTING PLAN GUIDELINES (Section 452.310, RSMo)

    The Supreme Court must have parenting plan guidelines for parties

    in a proceeding involving the custody and visitation of a child.

    The parenting plan guidelines must be available on the Office of

    State Courts Administrator’s website.

    CHILD SUPPORT (Section 452.340)

    There is a rebuttable presumption that the award of child support

    in the amount established by the application of the guidelines is

    the correct amount of child support to be awarded. Currently, a

    written finding that the application of the award guidelines would

    be unjust or inappropriate is required only if requested by a

    party. This bill specifies that such a written finding is required

    and sufficient to rebut the presumption in the case.

    CHILD CUSTODY ORDER (Section 452.375)

    Currently, the court determines child custody that is in the best

    interest of the child. This bill specifies that when the parties

    have not reached an agreement, the court must consider relevant

    factors and enter written findings of fact and conclusions of law.

    The bill prohibits a court from presuming that one parent, based

    solely on his or her sex, is more qualified than the other parent

    to act as custodian for the child.

    This bill requires any child custody order to include a written

    statement that gives notification to the parties that if any

    provision of that custody order is violated, the injured party may

    file either a verified motion for contempt or a family access

    motion in order to enforce the provision that has been violated.

    The bill allows the court to enter an interim order regarding child

    custody only when the parties have received a notice and a hearing,

    unless the parties otherwise agree.

    VIOLATION OF CHILD CUSTODY ORDER (Section 452.400)

    This bill requires the court to consider, in a proceeding to

    enforce or modify a permanent custody or visitation order or

    judgment, a party’s violation of a parenting plan without good

    cause, for the purpose of determining that party’s ability and

    willingness to allow the child frequent and meaningful contact with

    the other party.

    PARENTING PLAN HANDBOOK (Section 452.556)

    The bill requires the Office of the State Court Administrator to

    modify the current handbook regarding parenting plans, as

    specified, and make the handbook available on-line and upon request

    by the party.

    This bill also specifies how each party in a child custody case is

    provided a copy of the handbook.

    The bill changes the effective date of the repeal and enactment of

    certain provisions of the Uniform Interstate Family Support Act.

     

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  • Note and Deed of Trust

    Note and Deed of Trust

    Jillian Johnson vs. Nationstar Mortgage, LLC, et al

    Missouri Court of Appeals, Western District – WD78179 The Note and Deed of Trust provided the original lender by using lender’s trade name, and slight variations did not create an ambiguity.  There needs to be evidence of a chain of transfer.

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  • Maiden Name in Dissolution and Court’s authority on Judgment

    Maiden Name in Dissolution and Court’s authority on Judgment

    Rules provide that an authorized after-trial motion extends circuit court’s authority for 90 days but no more. Court entered a ruling on the 91st day.  At the end of the ninetieth day, the circuit court’s authority expires.

    The Circuit Court was in error by denying the request for Wife’s maiden name to be restored. Court of Appeals corrects error under authority to render judgment that circuit court should have rendered, thus her maiden name was restored.

    See Jennifer A. Hanna vs. Michael A. Hanna, Western District

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  • Appeal – Circuit Court must Address All Property

    Appeal – Circuit Court must Address All Property

    In Irina Boone vs. Dennis Boone, Western District Court of Appeals, August 12, 2014, the Circuit Court did not dispose of all claims of the parties by Judgment.  The Judgment failed to address the pension.  Dismissal of Appeal.

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  • Order of Protections

    Order of Protections

    Order of Protection denied because the statutes provide that elements of stalking include repeated and purposeful conduct that alarms Petitioner for order. The record showed two incidents, a random meeting and a teacher-parent conference, neither of these incidents  created alarm in Petitioner. Therefore, no issuance of a full order of protection. SEE  BETSY DEANN WASHBURN, Petitioner-Respondent, vs. SHEILA LYNN KIRK, Respondent-Appellant, Missouri Court of Appeals, Southern District – SD33077

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  • Contract Guaranty

    Contract Guaranty

    Addition of new collateral to Note did not release guaranty 
    “To recover on a contract of guaranty, a creditor must show “’(1) that the defendant executed the guaranty, (2) that the defendant unconditionally delivered the guaranty to the creditor, (3) that the creditor, in reliance on the guaranty, thereafter extended credit to the debtor, and (4) that there is currently due and owing some sum of money from the debtor to the creditor that the guaranty purports to cover.’”
    Pulaski Bank, Respondent, vs. Nantucket Partners, L.C., a Missouri Limited Liability Company, and Julian Hess, Defendants, and Keith Barket, Appellant, ED 99060.

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  • Grandparent’s/ Relative Rights- Juvenile Court

    Grandparent’s/ Relative Rights- Juvenile Court

    Grandparent’s right to intervene in action, restrictions, termination.

    211.177. 1. A grandparent shall have a right to intervene in any proceeding initiated pursuant to the provisions of this chapter, in which the custody of a grandchild is in issue, unless the juvenile judge decides after considering a motion to intervene by the grandparent that such intervention is against the best interest of the child.

    2. The right of a grandparent to intervene pursuant to the provisions of this section may terminate upon the adoption of the child except where the child is adopted by a stepparent, another grandparent or other blood relative.

    Grandparent placement preferred in emergency placements–definitions–diligent efforts required, when.

    210.305. 1. When an initial emergency placement of a child is deemed necessary, the children’s division shall immediately begin diligent efforts to locate, contact, and place the child with a grandparent or grandparents of the child, except when the children’s division determines that placement with a grandparent or grandparents is not in the best interest of the child and subject to the provisions of section 210.482 regarding background checks for emergency placements. If emergency placement of a child with a grandparent is deemed not to be in the best interest of the child, the children’s division shall document in writing the reason the grandparent has been denied emergency placement and shall have just cause to deny the emergency placement. Prior to placement of the child in any emergency placement, the division shall assure that the child’s physical needs are met.

    2. For purposes of this section, the following terms shall mean:

     

    (1) “Diligent efforts”, a good faith attempt documented in writing by the children’s division, which exercises reasonable efforts and care to utilize all available services and resources related to meeting the ongoing health and safety needs of the child, to locate a grandparent or grandparents of the child after all of the child’s physical needs have been attended to by the children’s division;

    (2) “Emergency placement”, those limited instances when the children’s division is placing for an initial placement a child in the home of private individuals, including neighbors, friends, or relatives, as a result of a sudden unavailability of the child’s primary caretaker.

    3. Diligent efforts shall be made to contact the grandparent or grandparents of the child within three hours from the time the emergency placement is deemed necessary for the child. During such three-hour time period, the child may be placed in an emergency placement. If a grandparent or grandparents of the child cannot be located within the three-hour period, the child may be temporarily placed in emergency placement; except that, after the emergency placement is deemed necessary, the children’s division shall continue to make diligent efforts to contact, locate, and place the child with a grandparent or grandparents, or another relative, with first consideration given to a grandparent for placement.

    4. Nothing in this section shall be construed or interpreted to interfere with or supercede laws related to parental rights or judicial authority.

    Relatives of child shall be given foster home placement, when–relative, defined–order of preference–specific findings required, when–sibling placement–age of relative not a factor, when–federal requirements to be followed for placement of Native American children–waiver of certain standards, when–GAL to ascertain child’s wishes, when.

    210.565. 1. Whenever a child is placed in a foster home and the court has determined pursuant to subsection 4 of this section that foster home placement with relatives is not contrary to the best interest of the child, the children’s division shall give foster home placement to relatives of the child. Notwithstanding any rule of the division to the contrary, the children’s division shall make diligent efforts to locate the grandparents of the child and determine whether they wish to be considered for placement of the child. Grandparents who request consideration shall be given preference and first consideration for foster home placement of the child. If more than one grandparent requests consideration, the family support team shall make recommendations to the juvenile or family court about which grandparent should be considered for placement.

    2. As used in this section, the term “relative” means a grandparent or any other person related to another by blood or affinity within the third degree. The status of a grandparent shall not be affected by the death or the dissolution of the marriage of a son or daughter.

    3. The following shall be the order or preference for placement of a child under this section:

    (1) Grandparents and relatives;

    (2) A trusted adult that has a preexisting relationship with the child, such as a godparent, teacher, neighbor, or fellow parishioner who voluntarily agrees to care for the child; and (3) Any foster parent who is currently licensed and capable of accepting placement of the child.

    4. The preference for placement and first consideration for grandparents or preference for placement with other relatives created by this section shall only apply where the court finds that placement with such grandparents or other relatives is not contrary to the best interest of the child considering all circumstances. If the court finds that it is contrary to the best interest of a child to be placed with grandparents or other relatives, the court shall make specific findings on the record detailing the reasons why the best interests of the child necessitate placement of the child with persons other than grandparents or other relatives.

    5. Recognizing the critical nature of sibling bonds for children, the children’s division shall make reasonable efforts to place siblings in the same foster care, kinship, guardianship, or adoptive placement, unless doing so would be contrary to the safety or well-being of any of the siblings. If siblings are not placed together, the children’s division shall make reasonable efforts to provide frequent visitation or other ongoing interaction between the siblings, unless this interaction would be contrary to a sibling’s safety or well-being.

    6. The age of the child’s grandparent or other relative shall not be the only factor that the children’s division takes into consideration when it makes placement decisions and recommendations to the court about placing the child with such grandparent or other relative.

    7. For any Native American child placed in protective custody, the children’s division shall comply with the placement requirements set forth in 25 U.S.C. Section 1915.

    8. A grandparent or other relative may, on a case-by-case basis, have standards for licensure not related to safety waived for specific children in care that would otherwise impede licensing of the grandparent’s or relative’s home. In addition, any person receiving a preference may be licensed in an expedited manner if a child is placed under such person’s care.

    9. The guardian ad litem shall ascertain the child’s wishes and feelings about his or her placement by conducting an interview or interviews with the child, if appropriate based on the child’s age and maturity level, which shall be considered as a factor in placement decisions and recommendations, but shall not supersede the preference for relative placement created by this section or be contrary to the child’s best interests.

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  • Adoption

    Adoption

    Guardian’s Consent 
    In action for adoption of mentally incapacitated person, statutes do not require consent of the adoptee or guardian.  Guardian’s opinion on ward’s best interest is relevant, but not determinative. Matter was reversed and remanded.  Case was in Jefferson City, Missouri.

    In the matter of Carl Lee Debrodie, an incapacitated and disabled adult; Karen Digh Allen, Callaway County Public Administrator/Guardian and Conservator for Carl Lee Debrodie vs. Bryan Keith Martin and Mary Elizabeth Martin
    (Overview Summary)
    Missouri Court of Appeals, Western District – WD75853

     

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  • Columbia Alligator Case

    Columbia Alligator Case

      In an appeal from Judge Oxenhandler’s ruling, the City of Columbia in the Court of Appeals, Western District, appealed a decision regarding two alligators allowed to be kept in Columbia.  The trial court granted against the City a Motion to Dismiss reviewing Section 5-29 of the Columbia Code of Ordinances.  The Court of Appeals held the trial court erred in granted the Motion to Dismiss because the City’s allegations if proved,could support the charges under Section 5-29.  Therefore, the case was reversed and remanded.  City of Columbia v. Kenneth Henderson, WD75559, May 21, 2013

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  • Nonpaternity

    Nonpaternity

    “Statute provides that, if genetic testing proves that person named as father on birth certificate is not father, circuit court shall order name removed, set aside judgment of paternity, and extinguish child support arrearage, unless circuit court makes findings of fact that such relief is contrary to child’s best interest.”

     

    See R.B., Appellant, vs. S.W. and C.B., and State of Missouri, Respondents.

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  • FDCPA

    FDCPA

    Violation of Fair Debt Collection Practices Act (FDCPA):

     

    § 813. Civil liability

    (a) Except as otherwise provided by this section, any debt collector who fails to comply with any provision of this title with respect to any person is liable to such person in an amount equal to the sum of—

    1. (1) any actual damage sustained by such person as a result of such failure;
    2. (2) (A) in the case of any action by an individual, such additional damages as the court may allow, but not exceeding $1,000; or(B) in the case of a class action,
      1. (i) such amount for each named plaintiff as could be recovered under subparagraph (A), and
      2. (ii) such amount as the court may allow for all other class members, without regard to a minimum individual recovery, not to exceed the lesser of $500,000 or 1 per centum of the net worth of the debt collector.

     

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  • Termination of Parental Rights Standard

    Termination of Parental Rights Standard

    Standard of Review for Termination of Parental Rights The termination of parental rights requires a two-step analysis. First, the trial court must find that clear, cogent, and convincing evidence exists of one or more statutory grounds for termination of parental rights under Section 211.447 RSMo. Once the trial court has determined one of the statutory grounds for termination exists, the trial court must then determine whether, by a preponderance of the evidence, termination is in the best interests of the child.

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  • Relocations

    Relocations

    There is specific language in the Missouri Revised Statutes for Relocations: Section 452.377, RSMo: Relocation of child by parent for more than ninety days, required procedure–violation, effect–notice of relocation of parent, required procedure. 452.377. 1. For purposes of this section and section 452.375, “relocate” or “relocation” means a change in the principal residence of a child for a period of ninety days or more, but does not include a temporary absence from the principal residence. 2. Notice of a proposed relocation of the residence of the child, or any party entitled to custody or visitation of the child, shall be given in writing by certified mail, return receipt requested, to any party with custody or visitation rights. Absent exigent circumstances as determined by a court with jurisdiction, written notice shall be provided at least sixty days in advance of the proposed relocation. The notice of the proposed relocation shall include the following information: (1) The intended new residence, including the specific address and mailing address, if known, and if not known, the city; (2) The home telephone number of the new residence, if known; (3) The date of the intended move or proposed relocation; (4) A brief statement of the specific reasons for the proposed relocation of a child, if applicable; and (5) A proposal for a revised schedule of custody or visitation with the child, if applicable. 3. A party required to give notice of a proposed relocation pursuant to subsection 2 of this section has a continuing duty to provide a change in or addition to the information required by this section as soon as such information becomes known. 4. In exceptional circumstances where the court makes a finding that the health or safety of any adult or child would be unreasonably placed at risk by the disclosure of the required identifying information concerning a proposed relocation of the child, the court may order that: (1) The specific residence address and telephone number of the child, parent or person, and other identifying information shall not be disclosed in the pleadings, notice, other documents filed in the proceeding or the final order except for an in camera disclosure; (2) The notice requirements provided by this section shall be waived to the extent necessary to protect the health or safety of a child or any adult; or (3) Any other remedial action the court considers necessary to facilitate the legitimate needs of the parties and the best interest of the child. 5. The court shall consider a failure to provide notice of a proposed relocation of a child as: (1) A factor in determining whether custody and visitation should be modified; (2) A basis for ordering the return of the child if the relocation occurs without notice; and (3) Sufficient cause to order the party seeking to relocate the child to pay reasonable expenses and attorneys fees incurred by the party objecting to the relocation. 6. If the parties agree to a revised schedule of custody and visitation for the child, which includes a parenting plan, they may submit the terms of such agreement to the court with a written affidavit signed by all parties with custody or visitation assenting to the terms of the agreement, and the court may order the revised parenting plan and applicable visitation schedule without a hearing. 7. The residence of the child may be relocated sixty days after providing notice, as required by this section, unless a parent files a motion seeking an order to prevent the relocation within thirty days after receipt of such notice. Such motion shall be accompanied by an affidavit setting forth the specific factual basis supporting a prohibition of the relocation. The person seeking relocation shall file a response to the motion within fourteen days, unless extended by the court for good cause, and include a counter-affidavit setting forth the facts in support of the relocation as well as a proposed revised parenting plan for the child. 8. If relocation of the child is proposed, a third party entitled by court order to legal custody of or visitation with a child and who is not a parent may file a cause of action to obtain a revised schedule of legal custody or visitation, but shall not prevent a relocation. 9. The party seeking to relocate shall have the burden of proving that the proposed relocation is made in good faith and is in the best interest of the child. 10. If relocation is permitted: (1) The court shall order contact with the nonrelocating party including custody or visitation and telephone access sufficient to assure that the child has frequent, continuing and meaningful contact with the nonrelocating party unless the child’s best interest warrants* otherwise; and (2) The court shall specify how the transportation costs will be allocated between the parties and adjust the child support, as appropriate, considering the costs of transportation. 11. After August 28, 1998, every court order establishing or modifying custody or visitation shall include the following language: “Absent exigent circumstances as determined by a court with jurisdiction, you, as a party to this action, are ordered to notify, in writing by certified mail, return receipt requested, and at least sixty days prior to the proposed relocation, each party to this action of any proposed relocation of the principal residence of the child, including the following information: (1) The intended new residence, including the specific address and mailing address, if known, and if not known, the city; (2) The home telephone number of the new residence, if known; (3) The date of the intended move or proposed relocation; (4) A brief statement of the specific reasons for the proposed relocation of the child; and (5) A proposal for a revised schedule of custody or visitation with the child. Your obligation to provide this information to each party continues as long as you or any other party by virtue of this order is entitled to custody of a child covered by this order. Your failure to obey the order of this court regarding the proposed relocation may result in further litigation to enforce such order, including contempt of court. In addition, your failure to notify a party of a relocation of the child may be considered in a proceeding to modify custody or visitation with the child. Reasonable costs and attorney fees may be assessed against you if you fail to give the required notice.”. 12. Violation of the provisions of this section or a court order under this section may be deemed a change of circumstance under section 452.410, allowing the court to modify the prior custody decree. In addition, the court may utilize any and all powers relating to contempt conferred on it by law or rule of the Missouri supreme court. 13. Any party who objects in good faith to the relocation of a child’s principal** residence shall not be ordered to pay the costs and attorney’s fees of the party seeking to relocate.

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  • Uniform Child Custody Jurisdiction Act (UCCJA)

    Uniform Child Custody Jurisdiction Act (UCCJA)

    Uniform Child Custody Jurisdiction Act provides comity among states and determines which state is the most appropriate forum for seeking remedy. Circuit court lacked personal jurisdiction to render appellant liable for child support and marital debts. See: Michael Ketteman vs. Rachel Ketteman Missouri Court of Appeals, Western District – WD73205

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  • Postnupital Agreement

    Postnupital Agreement

    Marital Property Discussed Record showed that husband acquired real estate, increased retirement account, and opened savings account after marriage, making them marital property. Postnuptial agreement to waive interests in property must be made “freely, fairly, knowingly, understandingly and in good faith with full disclosure[,]” conscionably, and with consideration. In calculating child support, circuit court did not err in giving no credit to father for benefits due child that went to someone other than child’s custodian. Father’s evasion of discovery supported attorney fee award. JENEFFER KEET BELL, Petitioner-Appellant/Respondent vs. MARK ROBERT BELL, Respondent-Respondent/Cross-Appellant Missouri Court of Appeals, Southern District – SD30208 and SD30222

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  • Child Abuse Records

    Child Abuse Records

    In William Allen Young vs. Chasity L. Pitts Circuit court may limit time for presentation of evidence with certain safeguards. Statute closes investigation records to most persons but allows release of redacted version, so circuit erred in denying Mother access. But Mother showed no prejudice in denial of records, because circuit court did not use such records, and any information in the records unfavorable to her came from her evidence. To preserve challenge to statute’s constitutionality requires appellant to raise the issue at first opportunity. “The facts comprising the constitutional violation must be stated, and the constitutional challenge must be preserved throughout the lower court proceeding.” Missouri Court of Appeals, Western District – WD71794 and WD72124

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  • Violations of Fair Debt Collection Practices Act

    Violations of Fair Debt Collection Practices Act

    § 813. Civil liability [15 USC 1692k] (a) Except as otherwise provided by this section, any debt collector who fails to comply with any provision of this title with respect to any person is liable to such person in an amount equal to the sum of — (1) any actual damage sustained by such person as a result of such failure; (2) (A) in the case of any action by an individual, such additional damages as the court may allow, but not exceeding $1,000; or (B) in the case of a class action, (i) such amount for each named plaintiff as could be recovered under subparagraph (A), and (ii) such amount as the court may allow for all other class members, without regard to a minimum individual recovery, not to exceed the lesser of $500,000 or 1 per centum of the net worth of the debt collector; and (3) in the case of any successful action to enforce the foregoing liability, the costs of the action, together with a reasonable attorney’s fee as determined by the court. On a finding by the court that an action under this section was brought in bad faith and for the purpose of harassment, the court may award to the defendant attorney’s fees reasonable in relation to the work expended and costs. (b) In determining the amount of liability in any action under subsection (a), the court shall consider, among other relevant factors — (1) in any individual action under subsection (a)(2)(A), the frequency and persistence of noncompliance by the debt collector, the nature of such noncompliance, and the extent to which such noncompliance was intentional; or (2) in any class action under subsection (a)(2)(B), the frequency and persistence of noncompliance by the debt collector, the nature of such noncompliance, the resources of the debt collector, the number of persons adversely affected, and the extent to which the debt collector’s noncompliance was intentional. (c) A debt collector may not be held liable in any action brought under this title if the debt collector shows by a preponderance of evidence that the violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any such error. (d) An action to enforce any liability created by this title may be brought in any appropriate United States district court without regard to the amount in controversy, or in any other court of competent jurisdiction, within one year from the date on which the violation occurs. (e) No provision of this section imposing any liability shall apply to any act done or omitted in good faith in conformity with any advisory opinion of the Commission, notwithstanding that after such act or omission has occurred, such opinion is amended, rescinded, or determined by judicial or other authority to be invalid for any reason

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  • FDCPA

    FDCPA

    Fair Debt Collection Practices Act (FDCPA) Violations: Civil liability [15 USC 1692k] (a) Except as otherwise provided by this section, any debt collector who fails to comply with any provision of this title with respect to any person is liable to such person in an amount equal to the sum of — (1) any actual damage sustained by such person as a result of such failure; (2) (A) in the case of any action by an individual, such additional damages as the court may allow, but not exceeding $1,000; or (B) in the case of a class action, (i) such amount for each named plaintiff as could be recovered under subparagraph (A), and (ii) such amount as the court may allow for all other class members, without regard to a minimum individual recovery, not to exceed the lesser of $500,000 or 1 per centum of the net worth of the debt collector; and (3) in the case of any successful action to enforce the foregoing liability, the costs of the action, together with a reasonable attorney’s fee as determined by the court. On a finding by the court that an action under this section was brought in bad faith and for the purpose of harassment, the court may award to the defendant attorney’s fees reasonable in relation to the work expended and costs. (b) In determining the amount of liability in any action under subsection (a), the court shall consider, among other relevant factors — (1) in any individual action under subsection (a)(2)(A), the frequency and persistence of noncompliance by the debt collector, the nature of such noncompliance, and the extent to which such noncompliance was intentional; or (2) in any class action under subsection (a)(2)(B), the frequency and persistence of noncompliance by the debt collector, the nature of such noncompliance, the resources of the debt collector, the number of persons adversely affected, and the extent to which the debt collector’s noncompliance was intentional. (c) A debt collector may not be held liable in any action brought under this title if the debt collector shows by a preponderance of evidence that the violation was not intentional and resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adapted to avoid any such error. (d) An action to enforce any liability created by this title may be brought in any appropriate United States district court without regard to the amount in controversy, or in any other court of competent jurisdiction, within one year from the date on which the violation occurs. (e) No provision of this section imposing any liability shall apply to any act done or omitted in good faith in conformity with any advisory opinion of the Commission, notwithstanding that after such act or omission has occurred, such opinion is amended, rescinded, or determined by judicial or other authority to be invalid for any reason. Suits filed: Legal actions by debt collectors [15 USC 1692i] (a) Any debt collector who brings any legal action on a debt against any consumer shall — (1) in the case of an action to enforce an interest in real property securing the consumer’s obligation, bring such action only in a judicial district or similar legal entity in which such real property is located; or (2) in the case of an action not described in paragraph (1), bring such action only in the judicial district or similar legal entity — (A) in which such consumer signed the contract sued upon; or (B) in which such consumer resides at the commencement of the action. (b) Nothing in this title shall be construed to authorize the bringing of legal actions by debt collectors. Unfair Practices of Debt Collector: § 808. Unfair practices [15 USC 1692f] A debt collector may not use unfair or unconscionable means to collect or attempt to collect any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section: (1) The collection of any amount (including any interest, fee, charge, or expense incidental to the principal obligation) unless such amount is expressly authorized by the agreement creating the debt or permitted by law. (2) The acceptance by a debt collector from any person of a check or other payment instrument postdated by more than five days unless such person is notified in writing of the debt collector’s intent to deposit such check or instrument not more than ten nor less than three business days prior to such deposit. (3) The solicitation by a debt collector of any postdated check or other postdated payment instrument for the purpose of threatening or instituting criminal prosecution. (4) Depositing or threatening to deposit any postdated check or other postdated payment instrument prior to the date on such check or instrument. (5) Causing charges to be made to any person for communications by concealment of the true propose of the communication. Such charges include, but are not limited to, collect telephone calls and telegram fees. (6) Taking or threatening to take any nonjudicial action to effect dispossession or disablement of property if — (A) there is no present right to possession of the property claimed as collateral through an enforceable security interest; (B) there is no present intention to take possession of the property; or (C) the property is exempt by law from such dispossession or disablement. (7) Communicating with a consumer regarding a debt by post card. (8) Using any language or symbol, other than the debt collector’s address, on any envelope when communicating with a consumer by use of the mails or by telegram, except that a debt collector may use his business name if such name does not indicate that he is in the debt collection business

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  • Annulment

    Annulment

    Rights Are Different in Annulment Appellant shows no violation of constitutional right of access to courts, and waives cross-examination, unless he shows that only personal appearance is adequate for his case. Statute governing property division in actions of dissolution of marriage or legal separation does not apply in annulment. Circuit court need not make findings of fact when none are requested. HAROLD E. MEADOWS, JR., Appellant vs. JANET L. MEADOWS, Respondent Missouri Court of Appeals, Southern District

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  • Unjust Enrichment

    Unjust Enrichment

    No Palimony by Unjust Enrichment Plaintiff, decedent’s cohabitant, sued decedent’s estate for unjust enrichment. Circuit court found that plaintiff did not significantly contribute to construction of residence or purchase of rental property. Circuit court also found that plaintiff did not show that she received from decedent, in cash and in kind, less than she contributed. The record supports those findings. Therefore, circuit court did not err in finding that plaintiff’s cohabitation with decedent did not unjustly enrich decedent under theory of contract implied-in-law. Other theories of contract, implied-in-fact or express, do not apply on appeal when not raised in circuit court. JUDY ANN JOHNSON, Plaintiff-Appellant vs. ESTATE OF WESLEY H. MCFARLIN, Deceased, by and through its duly appointed Personal Representative, REBECCA J. LINDSTROM, Defendant-Respondent Missouri Court of Appeals, Southern District – SD30149

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  • Judgment

    Judgment

    Judgment Not Conditional Appellant may not seek relief on appeal not sought in circuit court. Judgment setting conditions for unsupervised visitation was not a conditional judgment. Statute requires division of property into marital and non-marital property before making award, which circuit court failed to do, so Court of Appeals remands. KELLY LYNN JOHNSON, Petitioner-Appellant vs. DAVID SCOTT DEBYLE, Respondent-Respondent Missouri Court of Appeals, Southern District – SD29612

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  • Child Support, Form 14

    Child Support, Form 14

    Parent Must Work Two Full-Time Jobs Directions to Form 14 do not require circuit court to base imputation of income on unemployment or underemployment, only that parent is deliberately limiting work to avoid child support. Any appropriate time period may determine probable earnings. Circuit court need not believe parent’s testimony about motivation for reducing work hours. Since parent first chose to work two full-time jobs, judgment basing child support on such schedule is not unfair. Moving parent gets no adjustment for after-born child, even if other parent counter-moves for modification. Anisa R. Cross vs. Justin G. Cross (Overview Summary) Missouri Court of Appeals, Western District – WD71386 and WD71439

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  • Corporation in Dissolution

    Corporation in Dissolution

    Corporation Did Not Need to Be a Party in Divorce Action Since the trial court did not divide corporate assets between the parties, the corporation did not need to be named a party in the divorce case. Robert R. Wisdom, Appellant vs. Nancy Jo Wisdom, Respondent (Overview Summary) Missouri Court of Appeals Western District – WD70930

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  • Sub S Corporation

    Sub S Corporation

    OPINION SUMMARY

    GAVIN T. MEIER, Appellant, ) No. ED92400

    )

    vs. ) Appeal from the Circuit Court of

    ) St. Louis County

    CHRISTINE D. MEIER, Respondent/Cross- )

    Appellant. ) Filed: March 23, 2010

    OPINION SUMMARY

    Gavin Meier (Husband) appeals and Christine Meier (Wife) cross-appeals from the judgment of the Circuit Court of St. Louis County dissolving their marriage. Husband claims that the trial court erred by: (1) using property values and income and expense statements that were over one year old when dividing the parties’ marital property and awarding Wife maintenance and attorney’s fees; (2) including as Husband’s gross income the depreciation deduction reported for Husband’s S corporation, Meier Environmental Services & Associates, Inc. (MESA); (3) awarding Wife a disproportionate share of the marital property; (4) valuing Husband’s corporation at $0 instead of negative $139,902.00; and (5) awarding Wife $130,858 in dividends and interest from Husband’s Charles Schwab brokerage account (Schwab account) instead of a percentage of the account as required by the parties’ stipulation. In her cross-appeal, Wife asserts that the trial court erred in finding that only the interest and dividends generated by the Schwab account, rather than the Schwab account itself, constituted marital property.

    AFFIRMED IN PART AND REVERSED AND REMANDED IN PART

    Division Two Holds

    Opinion by: Patricia L. Cohen, J. Sherri B. Sullivan, P.J., and Robert G. Dowd, Jr., : With respect to Husband’s points on appeal, the trial court erred in relying on stale valuation evidence of Husband’s separate property and the parties’ respective income and expenses when dividing the marital estate. The trial court, however, acted within its discretion when including MESA’s non-cash depreciation deduction in Husband’s gross income and valuing MESA at $0. Because our resolution of Husband’s first point requires reversal of the trial court’s division of marital property and awards of maintenance and attorney’s fees, we decline to reach the merits of Husband’s third and fifth points regarding Wife’s share of the marital property and the trial court’s failure to award the marital portion of MESA in accordance with the parties’ stipulation. With respect to Wife’s cross-appeal, the trial court erred in finding that the Schwab account, except the interest and dividends, was Husband’s separate property when the trial court also found that a portion of the account was marital property and Husband failed to prove which portion of the account was traceable to his separate property.

    MISSOURI COURT OF APPEALS EASTERN DISTRICT

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  • Pre-Nup Not Valid Western District

    Pre-Nup Not Valid Western District

    Pre-Nuptial Agreement No Good: Circuit court did not err in decreeing “sole physical custody” because it awarded each parent significant time with child, which makes it “joint physical custody, regardless of how the court characterizes it.” Circuit court did not err in classifying property according to pre-nuptial agreement because its provisions purporting to shift marital property to agreement’s drafter made it unconscionable. Record supports awards of maintenance, child support, and attorney fees. Susan M. Potts vs. Raymond A. Potts, II Missouri Court of Appeals, Western District – WD70196 and WD70455

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  • Court of Appeals, Dismissal of Motion to Modify 11-17-09

    Court of Appeals, Dismissal of Motion to Modify 11-17-09

    In the Missouri Court of Appeals Eastern District DIVISION TWO GREGORY B. HARLOW, No. ED92135 Appellant, Appeal from the Circuit Court of vs.St. Charles County SUSAN K. HARLOW, Honorable Norman C. Steimel, III Respondent. FILED: November 17, 2009 Introduction Gregory Harlow (Father) appeals from the trial court’s judgment dismissing his motion to modify the child custody provisions of his decree of dissolution of his marriage to Susan Harlow (Mother). Mother asserts that the trial court’s dismissal, designated as without prejudice, is not final and therefore not appealable. Appeal dismissed. Background Father and Mother divorced in 2004. The parties’ decree of dissolution awarded Mother full legal and physical custody of the parties’ two minor children and ordered Father to pay Mother $4,000 in maintenance per month for sixty months, pay $1,500 per month in child support, and provide health insurance for the two children. On August 20, 2007, Father filed a motion to modify the child custody provisions in the decree. At that time, Father had accumulated significant arrearages in both his maintenance and child support obligations. Upon Wife’s motion, the trial court dismissed Father’s motion to modify without prejudice on January 16, 2008.1 On January 25, 2008, after submitting a payment of $9,500 for past due child support, Father filed a second motion to modify child custody. Mother moved to dismiss citing Rule 67.03, which provides that a defendant may move for an involuntary dismissal of the civil action for the plaintiff’s failure to comply with “any order of the court.” In her motion, Mother alleged that Father had failed to comply with the trial court’s orders and was in arrears in the sum of $140,000 in maintenance and $9,800 in child support. After a hearing, the trial court dismissed Father’s motion without prejudice finding that Father failed “to make even a token good faith effort at fulfilling his court ordered obligations . . . .” and he therefore “cannot expect sympathy from the courts on [his] claims for affirmative relief.” Father appeals. Discussion At the outset, we address Mother’s claim that the judgment was not final. “A party may appeal only from a final judgment.” Southwestern Bell Yellow Pages, Inc. v. Walsh, 950 S.W.2d 528, 530 (Mo.App.E.D. 1997); Mo. Rev. Stat. § 512.020 (2000). “The general rule is that a dismissal without prejudice is not a final judgment and, therefore, is not appealable.” Chromalloy Am. Corp. v. Elyria Foundry Co., 955 S.W.2d 1, 3 (Mo. banc 1997). In most instances, a dismissal without prejudice is not a final judgment because it is not an adjudication on the merits, and the plaintiff typically can cure the dismissal by filing another suit in the same court. Vernor v. Mo. Bd. of Prob. and Parole, 934 S.W.2d 13, 14 (Mo.App.W.D. 1996). Here, the trial court’s dismissal did not reach the merits of Father’s motion to modify and nothing in the trial court’s dismissal prevents Father from re-filing his motion. 1 Neither Wife’s motion to dismiss nor the trial court’s January 16, 2008 order was included in the record on appeal. 2 3 Father claims that the trial court’s judgment is appealable because it falls within an exception to the general rule that provides that a party may appeal a dismissal without prejudice when “the dismissal has the practical effect of terminating the litigation in the form cast . . . .” Chromalloy, 955 S.W.2d at 3. Father argues that the “trial court’s second dismissal, on the same grounds [as its previous dismissal], after [Father] took steps to rectify the child support arrearage, has the practical effect of terminating the action in the form cast.” We disagree. Nothing in the trial court’s dismissal precludes Father from filing a new motion in the same “form” and seeking a judgment on the merits. Accordingly, the trial court’s dismissal without prejudice is not a final and appealable judgment. Appeal dismissed. ______________________________ Patricia L. Cohen, Judge Sherri B. Sullivan, P.J., Concurs Robert G. Dowd, Jr., J., Concurs

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