452.025. 1. All pleadings required to be verified under this chapter may at the time of execution be made by the acknowledgment thereof by the petitioner or respondent made before an officer authorized to administer oaths under the laws of this state, and evidenced by the officer's certificate, under official seal, attached or annexed to the pleading in form and content substantially as follows:
THE STATE OF ......................
COUNTY OF .........................
(The undersigned), of lawful age, being duly sworn on his/her oath, states that he/she is the petitioner/respondent named above and that the facts stated in the ................... are true according to his/her best knowledge and belief.
.............................
Petitioner/Respondent
Subscribed and sworn to before me this ..... day of ....., 20...
My commission expires: ................................. .............................. Notary Public
2. All references in this chapter regarding a "verified" document shall be satisfied by compliance with the requirements of subsection 1 of this section.
(L. 2004 S.B. 1211)
452.075. When a divorce has been granted, and the court has made an order or decree providing for the payment of alimony and maintenance, the remarriage of the former spouse shall relieve the spouse obligated to pay support from further payment of alimony to the former spouse from the date of the remarriage, without the necessity of further court action, but the remarriage shall not relieve the former spouse from the provisions of any judgment or decree or order providing for the support of any minor children.
(L. 1957 p. 390 § 1, A.L. 2001 H.B. 537)(1977) Subsequent remarriage terminated alimony even though such marriage was annulled because of fraud. Glass v. Glass (A.), 546 S.W.2d 738.
452.080. Upon a decree of divorce, the court may, in its discretion, decree alimony in gross or from year to year. When alimony is decreed in gross, such decree shall be a general lien on the realty of the party against whom the decree may be rendered, as in the case of other judgments. When such decree is for alimony from year to year, such decree shall not be a lien on the realty as aforesaid, but an execution in the hands of the proper officer, issued for the purpose of enforcing such decree, shall constitute a lien on the real and personal property of the defendant in such execution, so long as the same shall lawfully remain in the possession of such officer unsatisfied. In lieu of the lien of such decree for alimony from year to year, it is hereby provided that the party against whom such decree may be rendered shall be required to give security ample and sufficient for such alimony; but where default has been made in giving such security, the decree for alimony from year to year shall be a lien as in case of general judgments.
(RSMo 1939 § 1520, A.L. 2001 H.B. 537)Prior revisions: 1929 § 1356; 1919 § 1807; 1909 § 2376
(1977) Statute allowing award of maintenance in gross was not repealed by the dissolution of marriage statutes and § 452.335 does not preclude award of maintenance in gross. Carr v. Carr (A.), 556 S.W.2d 511.
452.110. No petition for review of any judgment for divorce, rendered in any case arising pursuant to this chapter, shall be allowed, any law or statute to the contrary notwithstanding; but there may be a review of any order or judgment touching the alimony and maintenance of the spouse, and the care, custody and maintenance of the children, or any of them, as in other cases.
(RSMo 1939 § 1525, A.L. 2001 H.B. 537)Prior revisions: 1929 § 1361; 1919 § 1812; 1909 § 2381
452.130. When a person, without good cause, shall abandon his or her spouse, and refuse or neglect to maintain and provide for him or her, the circuit court, on his or her petition for that purpose, shall order and adjudge such support and maintenance to be provided and paid by such person for the spouse and the spouse's children, or any of them, by that marriage, out of his property, and for such time as the nature of the case and the circumstances of the parties shall require, and compel the person to give security for such maintenance, and from time to time make such further orders touching the same as shall be just, and enforce such judgment by execution, sequestration of property, or by such other lawful means as are in accordance with the practice of the court; and as long as said maintenance is continued, the person shall not be charged with the spouse's debts, contracted after the judgment for such maintenance.
(RSMo 1939 § 3376, A.L. 2001 H.B. 537)Prior revisions: 1929 § 2989; 1919 § 7314; 1909 § 8295
CROSS REFERENCE:
Amounts paid under order of support, credited how, RSMo 454.280
(1973) Judgment of trial court dismissing Petition for Separate Maintenance with prejudice may not be set aside unless it is clearly erroneous. Brokaw v. Brokaw (A.), 492 S.W.2d 859.
452.140. No property shall be exempt from attachment or execution in a proceeding instituted by a person for maintenance, nor from attachment or execution upon a judgment or order issued to enforce a decree for alimony or for the support and maintenance of children. And all wages due to the defendant shall be subject to garnishment on attachment or execution in any proceedings mentioned in this section, whether the wages are due from the garnishee to the defendant for the last thirty days' service or not.
(RSMo 1939 § 3377, A.L. 1957 p. 391, A.L. 2001 H.B. 537)Prior revisions: 1929 § 2990; 1919 § 7315; 1909 § 8296
(1952) Garnishment on judgment in divorce action for support and maintenance of minor children held limited to ten percent of wages of defendant who had remarried, had children and was head of family. York v. York (A.), 249 S.W.2d 870.
(1957) Where judgment consisting of $1,243.33 for alimony and $2,486.67 for child support was revived in 1953 against nonresident defendant, garnishment could reach only 10% of amount of defendant's wages for child support but entire amount of wages could be seized to satisfy judgment for alimony. Ferneau v. Armour & Co. (A.), 303 S.W.2d 161.
452.150. The father and mother living apart are entitled to an adjudication by the circuit court as to their powers, rights and duties in respect to the custody and control and the services and earnings and management of the property of their unmarried minor children without any preference as between the said father and mother, and neither the father nor the mother has any right paramount to that of the other in respect to the custody and control or the services and earnings or of the management of the property of their said unmarried minor children; pending such adjudication the father or mother who actually has the custody and control of said unmarried minor children shall have the sole right to the custody and control and to the services and earnings and to the management of the property of said unmarried minor children.
(RSMo 1939 § 1526, A.L. 1998 S.B. 910)Prior revisions: 1929 § 1362; 1919 § 1813
CROSS REFERENCES:
Consent of parents necessary to adopt, RSMo 453.030 to 453.050
Custody of children, award on habeas corpus, RSMo 532.370
Transfer of custody of child prohibited, RSMo 453.110
(1953) Where divorce decree awarded custody of child to father and made no provision for visitation by the mother, nor for keeping the child in this state, the removal of the child from the state by the father did not constitute contempt. Middleton v. Tozer (A.), 259 S.W.2d 80.
(1953) On motion to modify decree as to custody of minor child, there must not only be proof of a change in conditions but it must be a change that would beneficially affect the interest of the child. Frams v. Black (A.), 259 S.W.2d 104.
(1954) In action by divorced mother to recover amounts expended for support of child from its father, limitations must be computed from the time the cause of action accrued and not from the date of last item in the account. Allen v. Allen, 364 Mo. 955, 270 S.W.2d 33.
(1957) Court of equity has inherent power to allow suit money attorney fees to the mother in proceeding to obtain custody of child. I.... v. B.... (A.), 305 S.W.2d 713.
(1963) Where court makes no custody award in a divorce action, it is not res judicata in subsequent action for custody of children. R.... v. E.... (A.), 364 S.W.2d 821.
(1963) Jurisdiction of trial court in divorce action to make an ad interim order with respect to the temporary custody of minor children pending the appeal, upon pleading and proof that their welfare is substantially endangered during that period, is not divested by the giving of the statutory supersedeas bond. State ex re. Stone v. Ferris (Mo.), 369 S.W.2d 244.
(1968) The Missouri Supreme Court held that the proper construction of Missouri statutory provisions relating to the obligations and rights of parents affords illegitimate children a right equal with that of legitimate children to require support by their fathers. Prior cases to the contrary were expressly overruled. R.... v. R.... (Mo.), 431 S.W.2d 152.
452.160. The terms of section 452.150 shall apply to children born out of wedlock and to children born in wedlock, and the terms "father and mother", "parent", "child", shall apply without reference to whether a child was born in lawful wedlock.
(RSMo 1939 § 1527)Prior revision: 1929 § 1363
CROSS REFERENCE:
Issue of certain marriages legitimate, RSMo 474.080
(1968) The Missouri Supreme Court held that the proper construction of Missouri statutory provisions relating to the obligations and rights of parents affords illegitimate children a right equal with that of legitimate children to require support by their fathers. Prior cases to the contrary were expressly overruled. R. . . . v. R. . . . (Mo.), 431 S.W.2d 152.
452.170. If any married person shall hold real estate in his or her own right, and his or her spouse, by criminal conduct toward him or her, or by ill usage, shall give him or her cause to live separate and apart from him or her, such person may petition the circuit court, setting forth such facts, and therein pray that such estate may be enjoyed by him or her for his or her sole use and benefit.
(RSMo 1939 § 3386, A.L. 2001 H.B. 537)Prior revisions: 1929 § 2999; 1919 § 7324; 1909 § 8305
452.180. The circuit court, on due proof of such facts, may, in its discretion, make such order and decree in the premises as shall give such married person the sole use and benefit of such real estate, or such part thereof as it may think reasonable.
(RSMo 1939 § 3387, A.L. 2001 H.B. 537)Prior revisions: 1929 § 3000; 1919 § 7325; 1909 § 8306
452.190. When any married person shall abandon his or her spouse, or from worthlessness, drunkenness or other cause fail to make sufficient provision for his or her support, the circuit court of the county where he or she has his or her home and residence may, on his or her petition, authorize him or her to sell and convey his or her real estate, or any part thereof, and also any personal estate which shall, at the time, have come to such person by reason of the marriage, and which may remain within the state undisposed of by him.
(RSMo 1939 § 3378, A.L. 2001 H.B. 537)Prior revisions: 1929 § 2991; 1919 § 7316; 1909 § 8297
452.200. Any married person may file a petition in the circuit court, setting forth that his or her spouse, from habitual intemperance, or any other cause, is about to squander and waste the property, money, credits or choses in action to which he or she is entitled in his or her own right, or any part thereof, or is proceeding fraudulently to convert the same, or any part thereof, to the spouse's own use, for the purpose of placing the same beyond his or her reach, and depriving him or her of the benefit thereof; and the court, upon the hearing of the case, may enjoin the spouse from disposing of or otherwise interfering with such property, moneys, credits and choses in action, and may appoint a receiver to control and manage the same for the benefit of the petitioner, and may also make such other order in the premises as they may deem just and proper, and upon the filing of such petition an injunction may be allowed as in other cases, and such petition shall be filed in the county where said petitioner resides, and the spouse of said petitioner shall be made a party defendant to said petition.
(RSMo 1939 § 1682, A.L. 2001 H.B. 537)Prior revisions: 1929 § 1518; 1919 § 1968; 1909 § 2533
452.210. The court may also, upon the petition of such person, authorize any person holding money or other personal estate to which the spouse is entitled in his or her right to pay and deliver the same to the petitioner, and may authorize him or her to give a discharge for the same, which discharge shall be as valid as if made by the spouse.
(RSMo 1939 § 3379, A.L. 2001 H.B. 537)Prior revisions: 1929 § 2992; 1919 § 7317; 1909 § 8298
452.220. Such married person, during the period his or her spouse shall fail to provide for his or her support, as stated in section 452.130, shall be entitled to the proceeds of the earnings of his or her minor children; and the same shall be under his or her sole control and shall not be liable in any manner for the spouse's debts.
(RSMo 1939 § 3380, A.L. 2001 H.B. 537)Prior revisions: 1929 § 2993; 1919 § 7318; 1909 § 8299
452.230. All the proceeds of such sales, and all other money and personal estate which shall come to the hands of a person by force of the provisions of sections 451.250 to 451.300, RSMo, and sections 452.130, 452.140, 452.170 to 452.190 and 452.210 to 452.250, may be used and disposed of by him or her for the necessary support of himself or herself and family.
(RSMo 1939 § 3381, A.L. 2001 H.B. 537)Prior revisions: 1929 § 2994; 1919 § 7319; 1909 § 8300
CROSS REFERENCE:
Workers' compensation death benefits, rights of widows and children, RSMo 287.240
452.240. The petition of a married person for any of the purposes before mentioned may be filed and the case heard and determined in the circuit court, and the like process and proceedings shall be had as in other civil suits triable before circuit judges.
(RSMo 1939 § 3382, A.L. 1978 H.B. 1634, A.L. 2001 H.B. 537)Prior revisions: 1929 § 2995; 1919 § 7320; 1909 § 8301
452.250. The same proceedings shall be had in relation to such petition as the law requires in other proceedings before circuit judges, and in relation to enforcing the orders and decrees, except that no appeal shall be allowed to the supreme court, or court of appeals, from any order or decree, on the part of the person's spouse, until he or she has indemnified the petitioner for all delays and costs, in such manner as the court shall direct.
(RSMo 1939 § 3388, A.L. 1973 S.B. 263, A.L. 1978 H.B. 1634, A.L. 2001 H.B. 537)Prior revisions: 1929 § 3001; 1919 § 7326; 1909 § 8307
452.300. 1. The rules of the supreme court and other applicable court rules shall govern all proceedings pursuant to sections 452.300 to 452.415.
2. A proceeding for dissolution of marriage, legal separation, or declaration of invalidity of marriage shall be entitled: "In re the Marriage of ..... and .....".
3. The initial pleading in an original proceeding pursuant to sections 452.300 to 452.415 shall be denominated a "petition" and the responsive pleading in an original proceeding shall be denominated an "answer". Other pleadings in an original proceeding and all pleadings in other proceedings pursuant to sections 452.300 to 452.415 shall be denominated as provided in the rules of the supreme court and other applicable court rules.
4. Any party who files the initial pleading in an original proceeding pursuant to sections 452.300 to 452.415 shall be denominated the "petitioner" and any party who is required to file or who files a responsive pleading in an original proceeding shall be denominated the "respondent". Each party shall retain such denomination from the original proceeding in any other proceedings pursuant to sections 452.300 to 452.415.
5. An original proceeding pursuant to sections 452.300 to 452.415 shall be commenced in the county in which the petitioner resides or in the county in which the respondent resides. If an original proceeding is commenced in the county in which the petitioner resides, upon motion by the respondent filed prior to the filing of a responsive pleading, the court in which the proceeding is commenced may transfer the proceeding to the county in which the respondent resides if:
(1) The county in which the respondent resides had been the county in which the children resided during the ninety days immediately preceding the commencement of the proceeding; or
(2) The best interest of the children will be served if the proceeding is transferred to the county in which the respondent resides because:
(a) The children and at least one parent have a significant connection with the county; and
(b) There is substantial evidence concerning the present or future care, protection and personal relationships of the children in the county.
6. In proceedings pursuant to sections 452.300 to 452.415, "judgment" shall include a "decree".
(L. 1973 H.B. 315 § 1, A.L. 1998 S.B. 910)
452.305. 1. The court shall enter a judgment of dissolution of marriage if:
(1) The court finds that one of the parties has been a resident of this state, or is a member of the armed services who has been stationed in this state, for ninety days immediately preceding the commencement of the proceeding and that thirty days have elapsed since the filing of the petition; and
(2) The court finds that there remains no reasonable likelihood that the marriage can be preserved and that therefore the marriage is irretrievably broken; and
(3) To the extent it has jurisdiction, the court has considered and made provision for child custody, the support of each child, the maintenance of either spouse and the disposition of property.
2. The court shall enter a judgment of legal separation if:
(1) The court finds that one of the parties has been a resident of this state, or is a member of the armed services who has been stationed in this state, for ninety days immediately preceding the commencement of the proceeding and that thirty days have elapsed since the filing of the petition; and
(2) The court finds that there remains a reasonable likelihood that the marriage can be preserved and that therefore the marriage is not irretrievably broken; and
(3) To the extent it has jurisdiction, the court has considered and made provision for the custody and the support of each child, the maintenance of either spouse and the disposition of property.
3. Any judgment of dissolution of marriage or legal separation shall include the Social Security numbers of the parties.
(L. 1973 H.B. 315 § 2, A.L. 1997 S.B. 361, A.L. 1998 S.B. 910)(1976) Held, a cross bill seeking separate maintenance coupled with an after trial motion to amend the dissolution decree to one of legal separation does not require court to enter a decree of legal separation. Nichols v. Nichols (A.), 538 S.W.2d 727.
(1977) Held, that court must grant a decree of legal separation if either party requests it. The court applies the rule that when conflicting provisions occur in an act the last in order of position shall prevail. McRoberts v. McRoberts (A.), 555 S.W.2d 682.
452.310. 1. In any proceeding commenced pursuant to this chapter, the petition, a motion to modify, a motion for a family access order and a motion for contempt shall be verified. The petition in a proceeding for dissolution of marriage shall allege that the marriage is irretrievably broken and that therefore there remains no reasonable likelihood that the marriage can be preserved. The petition in a proceeding for legal separation shall allege that the marriage is not irretrievably broken and that therefore there remains a reasonable likelihood that the marriage can be preserved.
2. The petition in a proceeding for dissolution of marriage or legal separation shall set forth:
(1) The residence of each party, including the county, and the length of residence of each party in this state and in the county of residence;
(2) The date of the marriage and the place at which it is registered;
(3) The date on which the parties separated;
(4) The name, date of birth and address of each child, and the parent with whom each child has primarily resided for the sixty days immediately preceding the filing of the petition for dissolution of marriage or legal separation;
(5) Whether the wife is pregnant;
(6) The Social Security number of the petitioner, respondent and each child;
(7) Any arrangements as to the custody and support of the children and the maintenance of each party; and
(8) The relief sought.
3. Upon the filing of the petition in a proceeding for dissolution of marriage or legal separation, each child shall immediately be subject to the jurisdiction of the court in which the proceeding is commenced, unless a proceeding involving allegations of abuse or neglect of the child is pending in juvenile court. Until permitted by order of the court, neither parent shall remove any child from the jurisdiction of the court or from any parent with whom the child has primarily resided for the sixty days immediately preceding the filing of a petition for dissolution of marriage or legal separation.
4. The mere fact that one parent has actual possession of the child at the time of filing shall not create a preference in favor of such parent in any judicial determination regarding custody of the child.
5. The respondent shall be served in the manner provided by the rules of the supreme court and applicable court rules and, to avoid an interlocutory judgment of default, shall file a verified answer within thirty days of the date of service which shall not only admit or deny the allegations of the petition, but shall also set forth:
(1) The Social Security number of the petitioner, respondent and each child;
(2) Any arrangements as to the custody and support of the child and the maintenance of each party; and
(3) The relief sought.
6. Previously existing defenses to divorce and legal separation, including but not limited to condonation, connivance, collusion, recrimination, insanity, and lapse of time, are abolished.
7. The petitioner and respondent shall submit a proposed parenting plan, either individually or jointly, within thirty days after service of process or the filing of the entry of appearance, whichever event first occurs of a motion to modify or a petition involving custody or visitation issues. The proposed parenting plan shall set forth the arrangements that the party believes to be in the best interest of the minor children and shall include but not be limited to:
(1) A specific written schedule detailing the custody, visitation and residential time for each child with each party including:
(a) Major holidays stating which holidays a party has each year;
(b) School holidays for school-age children;
(c) The child's birthday, Mother's Day and Father's Day;
(d) Weekday and weekend schedules and for school-age children how the winter, spring, summer and other vacations from school will be spent;
(e) The times and places for transfer of the child between the parties in connection with the residential schedule;
(f) A plan for sharing transportation duties associated with the residential schedule;
(g) Appropriate times for telephone access;
(h) Suggested procedures for notifying the other party when a party requests a temporary variation from the residential schedule;
(i) Any suggested restrictions or limitations on access to a party and the reasons such restrictions are requested;
(2) A specific written plan regarding legal custody which details how the decision-making rights and responsibilities will be shared between the parties including the following:
(a) Educational decisions and methods of communicating information from the school to both parties;
(b) Medical, dental and health care decisions including how health care providers will be selected and a method of communicating medical conditions of the child and how emergency care will be handled;
(c) Extracurricular activities, including a method for determining which activities the child will participate in when those activities involve time during which each party is the custodian;
(d) Child care providers, including how such providers will be selected;
(e) Communication procedures including access to telephone numbers as appropriate;
(f) A dispute resolution procedure for those matters on which the parties disagree or in interpreting the parenting plan;
(g) If a party suggests no shared decision-making, a statement of the reasons for such a request;
(3) How the expenses of the child, including child care, educational and extraordinary expenses as defined in the child support guidelines established by the supreme court, will be paid including:
(a) The suggested amount of child support to be paid by each party;
(b) The party who will maintain or provide health insurance for the child and how the medical, dental, vision, psychological and other health care expenses of the child not paid by insurance will be paid by the parties;
(c) The payment of educational expenses, if any;
(d) The payment of extraordinary expenses of the child, if any;
(e) Child care expenses, if any;
(f) Transportation expenses, if any.
8. If the proposed parenting plans of the parties differ and the parties cannot resolve the differences or if any party fails to file a proposed parenting plan, upon motion of either party and an opportunity for the parties to be heard, the court shall enter a temporary order containing a parenting plan setting forth the arrangements specified in subsection 7 of this section which will remain in effect until further order of the court. The temporary order entered by the court shall not create a preference for the court in its adjudication of final custody, child support or visitation.
9. Within one hundred twenty days after August 28, 1998, the Missouri supreme court shall have in effect guidelines for a parenting plan form which may be used by the parties pursuant to this section in any dissolution of marriage, legal separation or modification proceeding involving issues of custody and visitation relating to the child.
10. The filing of a parenting plan for any child over the age of eighteen for whom custody, visitation, or support is being established or modified by a court of competent jurisdiction is not required. Nothing in this section shall be construed as precluding the filing of a parenting plan upon agreement of the parties or if ordered to do so by the court for any child over the age of eighteen for whom custody, visitation, or support is being established or modified by a court of competent jurisdiction.
(L. 1973 H.B. 315 § 3, A.L. 1990 H.B. 1370, et al., A.L. 1998 S.B. 910, A.L. 1999 S.B. 1, et al., A.L. 2004 H.B. 1364 merged with S.B. 1211)
452.311. A petition is not filed within the meaning of supreme court rule 53.01 in any cause of action authorized by the provisions of this chapter, unless a summons is issued forthwith as required by supreme court rule 54.01, a verified and notarized entry of appearance of respondent is filed or an attorney files an entry of appearance on behalf of respondent.
(L. 1989 1st Ex. Sess. H.B. 2 § 7, A.L. 1991 S.B. 312, A.L. 2003 H.B. 613)
452.312. 1. Every petition for dissolution of marriage or legal separation, every motion for modification of a decree respecting maintenance or support, and every petition or motion for support of a minor child shall contain the name and address of the current employer and the Social Security number of the petitioner or movant, if a person, and, if known to petitioner or movant, the name and address of the current employer and the Social Security number of the respondent.
2. Every responsive pleading to a petition for dissolution of marriage or legal separation, motion for modification of a decree respecting maintenance or support, and petition or motion for support of a minor child shall contain the name and address of the current employer and the Social Security number of the respondent, if the respondent is a person.
3. Every decree dissolving a marriage, every order modifying a previous decree of dissolution or divorce, and every order for support of a minor child shall contain the Social Security numbers of the parties, if disclosed by the pleadings.
(L. 1984 H.B. 1275)
452.314. Notwithstanding any other provision of law to the contrary, a guardian for an incapacitated person may file a petition for dissolution of the marriage of, or if the incapacitated person has a history of religious objection to divorce, the guardian may file for a legal separation for such incapacitated person and may give testimony in support of the allegations contained in the petition, if the guardian has reasonable cause to believe that the incapacitated person has been the victim of abuse by the spouse of such incapacitated person.
(L. 1990 H.B. 1370, et al.)
452.315. 1. In a proceeding for dissolution of marriage or legal separation, either party may move for temporary maintenance and for temporary support for each child entitled to support. The motion shall be accompanied by an affidavit setting forth the factual basis for the motion and the amounts requested. In a proceeding for disposition of property, maintenance or support following the dissolution of the marriage by a court which lacked personal jurisdiction over the absent spouse, either party may move for maintenance and for support of each child entitled to support. This motion shall be accompanied by an affidavit setting forth the factual basis for the motion and the amounts requested. This motion and the affidavit shall be served as though an original pleading upon the opposite party.
2. As a part of a motion for temporary maintenance or support or by independent motion accompanied by affidavit, either party may request the court to issue an order after notice and hearing:
(1) Restraining any person from transferring, encumbering, concealing, or in any way disposing of any property except in the usual course of business or for the necessities of life and, if so restrained, requiring the person to notify the moving party of any proposed extraordinary expenditures and to account to the court for all extraordinary expenditures made after the order is issued;
(2) Enjoining a party from harassing, abusing, molesting or disturbing the peace of the other party or of any child;
(3) Excluding a party from the family home or from the home of the other party upon a showing that physical or emotional harm would otherwise result;
(4) Establishing and ordering compliance with a custody order and providing for the support of each child.
3. The court may issue a restraining order only if it finds on the evidence that irreparable injury would result to the moving party if an order is not issued until the time for answering has elapsed.
4. An answer may be filed within ten days after service of notice of motion or at the time specified in the restraining order.
5. On the basis of the showing made and in conformity with section 452.335 on maintenance and section 452.340 on support, the court may issue a temporary injunction and an order for temporary maintenance or support in such amounts and on such terms as are just and proper in the circumstances.
6. A restraining order or temporary injunction:
(1) Does not prejudice the rights of the parties or the child which are to be adjudicated at subsequent hearings in the proceedings;
(2) May be revoked or modified prior to final judgment on a showing by affidavit of the facts necessary to revocation or modification of a final judgment pursuant to section 452.370; and
(3) Terminates when the final judgment is entered or when the petition for dissolution or legal separation is voluntarily dismissed.
7. The court shall enter a temporary order requiring the provision of child support pending the final judicial determination if there is clear and convincing evidence establishing a presumption of paternity pursuant to section 210.822, RSMo. In determining the amount of child support, the court shall consider the factors set forth in section 452.340.
8. Any order entered in modification or vacation of any temporary order entered pursuant to this section may be retroactive to the date of entry of the original temporary order.
(L. 1973 H.B. 315 § 4, A.L. 1997 S.B. 361, A.L. 1998 S.B. 910)
452.317. From the date of filing of the petition for dissolution of marriage or legal separation, no party shall terminate coverage during the pendency of the proceeding for any other party or any minor child of the marriage under any existing policy of health, dental or vision insurance.
(L. 1998 S.B. 910 § 3)
452.318. In any action for dissolution of marriage involving minor children, the court may order counseling for such children. The court may assess and apportion the costs of child counseling between the parties.
(L. 1999 S.B. 329 § 1)
452.320. 1. If both of the parties by petition or otherwise have stated under oath or affirmation that the marriage is irretrievably broken, or one of the parties has so stated and the other has not denied it, the court, after considering the aforesaid petition or statement, and after a hearing thereon shall make a finding whether or not the marriage is irretrievably broken and shall enter an order of dissolution or dismissal accordingly.
2. If one of the parties has denied under oath or affirmation that the marriage is irretrievably broken, the court shall consider all relevant factors, including the circumstances that gave rise to the filing of the petition and the prospect of reconciliation, and after hearing the evidence shall
(1) Make a finding whether or not the marriage is irretrievably broken, and in order for the court to find that the marriage is irretrievably broken, the petitioner shall satisfy the court of one or more of the following facts:
(a) That the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;
(b) That the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;
(c) That the respondent has abandoned the petitioner for a continuous period of at least six months preceding the presentation of the petition;
(d) That the parties to the marriage have lived separate and apart by mutual consent for a continuous period of twelve months immediately preceding the filing of the petition;
(e) That the parties to the marriage have lived separate and apart for a continuous period of at least twenty-four months preceding the filing of the petition; or
(2) Continue the matter for further hearing not less than thirty days or more than six months later, or as soon thereafter as the matter may be reached on the court's calendar, and may suggest to the parties that they seek counseling. No court shall require counseling as a condition precedent to a decree, nor shall any employee of any court, or of the state or any political subdivision of the state, be utilized as a marriage counselor. At the adjourned hearing, the court shall make a finding whether the marriage is irretrievably broken as set forth in subdivision (1) above and shall enter an order of dissolution or dismissal accordingly.
(L. 1973 H.B. 315 § 5, A.L. 1977 H.B. 470)(1976) This act is not a true "no fault" dissolution law and dissolution should not be granted over the objection of an innocent spouse. In re Marriage of Mitchell (A.), 545 S.W.2d 313.
(1977) If a party denies under oath that a marriage is irretrievably broken the court must find one of the statutory grounds has been met. Failure to prove any of these grounds must result in a refusal to dissolve the marriage. In re Marriage of Capstick (A.), 547 S.W.2d 522.
(1977) Held, parties had been living "separate and apart" even though they lived in the same home. In re Marriage of Uhls (A.), 549 S.W.2d 107.
(1977) Failure to mail notice does not deprive the court of jurisdiction. LeBeau v. LeBeau (A.), 556 S.W.2d 204.
(1977) Court erroneously applied the law by failing to hold a hearing on whether marriage is irretrievably broken, when absent party, after receiving notice of interlocutory finding, files an objection within ten days. Brown v. Brown (A.), 561 S.W.2d 374.
(1978) Court must make specific finding that marriage was irretrievably broken before granting a decree of dissolution, B.W. v. F.E.W. (A.), 562 S.W.2d 137.
452.325. 1. To promote the amicable settlement of disputes between the parties to a marriage attendant upon their separation or the dissolution of their marriage, the parties may enter into a written separation agreement containing provisions for the maintenance of either of them, the disposition of any property owned by either of them, and the custody, support and visitation of their children.
2. In a proceeding for dissolution of marriage or for legal separation, the terms of the separation agreement, except terms providing for the custody, support, and visitation of children, are binding upon the court unless it finds, after considering the economic circumstances of the parties and any other relevant evidence produced by the parties, on their own motion or on request of the court, that the separation agreement is unconscionable.
3. If the court finds the separation agreement unconscionable, the court may request the parties to submit a revised separation agreement or the court may make orders for the disposition of property, support, and maintenance in accordance with the provisions of sections 452.330, 452.335 and 452.340.
4. If the court finds that the separation agreement is not unconscionable as to support, maintenance, and property:
(1) Unless the separation agreement provides to the contrary, its terms shall be set forth in the decree of dissolution or legal separation and the parties shall be ordered to perform them; or
(2) If the separation agreement provides that its terms shall not be set forth in the decree, only those terms concerning child support, custody and visitation shall be set forth in the decree, and the decree shall state that the court has found the remaining terms not unconscionable.
5. Terms of the agreement set forth in the decree are enforceable by all remedies available for the enforcement of a judgment, and the court may punish any party who willfully violates its decree to the same extent as is provided by law for contempt of the court in any other suit or proceeding cognizable by the court.
6. Except for terms concerning the support, custody or visitation of children, the decree may expressly preclude or limit modification of terms set forth in the decree if the separation agreement so provides.
(L. 1973 H.B. 315 § 6)Effective 1-1-74
(1979) Purpose of statute to put to rest questions of overreaching and fraud in the settlement of property questions, does not require the trial court to make evidentiary examinations of the economic circumstances only after it is found that the separation agreement is unconscionable. Block v. Block (A.), 593 S.W.2d 584.
(1987) This section allows but does not require court to investigate and examine the economic circumstances of the parties to the divorce and other relevant factors in determining conscionability of the settlement agreements. Dow v. Dow, 732 S.W.2d 906 (Mo. banc).
(1989) Amendment to statute which changes the age on which the obligation to pay child support terminates is a change in condition which authorizes a modification of the judgment where father did not agree to anything beyond that required by law. (Mo.App.W.D.) Kocherov v. Kocherov, 775 S.W.2d 539.
452.330. 1. In a proceeding for dissolution of the marriage or legal separation, or in a proceeding for disposition of property following dissolution of the marriage by a court which lacked personal jurisdiction over the absent spouse or lacked jurisdiction to dispose of the property, the court shall set apart to each spouse such spouse's nonmarital property and shall divide the marital property and marital debts in such proportions as the court deems just after considering all relevant factors including:
(1) The economic circumstances of each spouse at the time the division of property is to become effective, including the desirability of awarding the family home or the right to live therein for reasonable periods to the spouse having custody of any children;
(2) The contribution of each spouse to the acquisition of the marital property, including the contribution of a spouse as homemaker;
(3) The value of the nonmarital property set apart to each spouse;
(4) The conduct of the parties during the marriage; and
(5) Custodial arrangements for minor children.
2. For purposes of sections 452.300 to 452.415 only, "marital property" means all property acquired by either spouse subsequent to the marriage except:
(1) Property acquired by gift, bequest, devise, or descent;
(2) Property acquired in exchange for property acquired prior to the marriage or in exchange for property acquired by gift, bequest, devise, or descent;
(3) Property acquired by a spouse after a decree of legal separation;
(4) Property excluded by valid written agreement of the parties; and
(5) The increase in value of property acquired prior to the marriage or pursuant to subdivisions (1) to (4) of this subsection, unless marital assets including labor, have contributed to such increases and then only to the extent of such contributions.
3. All property acquired by either spouse subsequent to the marriage and prior to a decree of legal separation or dissolution of marriage is presumed to be marital property regardless of whether title is held individually or by the spouses in some form of co-ownership such as joint tenancy, tenancy in common, tenancy by the entirety, and community property. The presumption of marital property is overcome by a showing that the property was acquired by a method listed in subsection 2 of this section.
4. Property which would otherwise be nonmarital property shall not become marital property solely because it may have become commingled with marital property.
5. The court's order as it affects distribution of marital property shall be a final order not subject to modification; provided, however, that orders intended to be qualified domestic relations orders affecting pension, profit sharing and stock bonus plans pursuant to the U.S. Internal Revenue Code shall be modifiable only for the purpose of establishing or maintaining the order as a qualified domestic relations order or to revise or conform its terms so as to effectuate the expressed intent of the* order.
6. A certified copy of any decree of court affecting title to real estate may be filed for record in the office of the recorder of deeds of the county and state in which the real estate is situated by the clerk of the court in which the decree was made.
(L. 1973 H.B. 315 § 7, A.L. 1981 H.B. 96, A.L. 1988 H.B. 1272, et al., A.L. 1996 S.B. 869, A.L. 1998 S.B. 910)*Word "the" omitted from original rolls.
(1975) Rights acquired under a contract to purchase land constitute "property" and "marital property" and are subject to division by the court in a dissolution of marriage. Claunch v. Claunch (A.), 525 S.W.2d 788.
(1975) Discussion of items constituting "marital property" and various awards allowable under this section. Nixon v. Nixon (A.), S.W.2d 835.
(1975) For extensive discussion of the law under this section, see In re Marriage of Powers (A.), 527 S.W.2d 949.
(1976) All property acquired subsequent to marriage taken in joint names is marital property subject to division upon dissolution unless (1) it is shown that such property was acquired in exchange for property acquired prior to the marriage, and (2) it is shown by clear and convincing evidence that the transfer was not intended as a provision for a settlement upon or as a gift to the other spouse. Conrad v. Bowers (A.), 533 S.W.2d 614.
(1976) For the purposes of this division of marital property under this section, the "conduct" of the parties during the marriage is a relevant factor to be considered by the trial court and the award to the husband of all of the real estate determined to be marital property was not error. Conrad v. Bowers (A.), 533 S.W.2d 614.
(1976) Trial courts are vested with broad discretion in dividing marital property in dissolution of marriage proceedings. In re Marriage of Vanet (A.), 544 S.W.2d 236.
(1976) The word "conduct" means general conduct of the parties during the marriage and is not limited to conduct relating to financial misdeeds. Butcher v. Butcher (A.), 544 S.W.2d 249.
(1976) For discussion of division of marital property and definition of same see Davis v. Davis (A.), 544 S.W.2d 259.
(1977) While wife's misconduct was to be taken into account in dividing marital property, it had begun late in the nineteen year marriage and was not such as to deprive her of right to share equitably in marital property. Thus, in addition to shares in closely held corporation awarded by trial court, she would be awarded a farm acquired by parties during marriage. Marriage of Schulte (A.), 546 S.W.2d 41.
(1977) Requirement that court make a division of marital property in a dissolution action is mandatory and failure to comply results in no final judgment in the action. The fact that a final judgment has not been rendered bars an appeal under the provisions of § 512.020, RSMo. Corder v. Corder (A.), 546 S.W.2d 798.
(1977) Property purchased with earnings during marriage is marital property regardless of how title is taken. Held error to set a future date for sale of property and allow a party a dollar value when sold. Inflation could seriously alter the value of the amount received so that proper judgment should have been for a percentage of the sale to be held in the future. Ortmann v. Ortmann (A.), 550 S.W.2d 226.
(1977) Held, failure of either party's petition to ask for division of property does not relieve trial judge from duty to make a division of the property. Hulsey v. Hulsey, (A.), 550 S.W.2d 902.
(1977) A husband may not voluntarily limit his work to reduce his income and escape support payments. A court may in proper circumstances impute an income to a husband according to what he could have earned by the use of his best efforts. Klinge v. Klinge (A.), 554 S.W.2d 474.
(1978) Statute does not require equal division of marital property, but only "just" division. This is true where one spouse has engaged in marital misconduct. Arp v. Arp (A.),572 S.W.2d 232.
(1978) Personal jurisdiction over an absent spouse is not necessary to confer jurisdiction for the purpose of dividing marital property. Chenoweth v. Chenoweth (A.), 575 S.W.2d 871.
(1984) "Source of funds" theory, adopted in this case, requires that the court determine the character of property by the source of funds financing the purchase, so that the property is considered to have been "acquired" as it is paid for. This theory allows for reimbursement for increase in value of the property. Hoffman v. Hoffman (Mo. banc), 676 S.W.2d 817.
(1985) Held, the "source of funds rule" as announced in Hoffman v. Hoffman, 676 S.W.2d 817 (Mo banc 1984) should be retrospectively applied. Sumners v. Sumners, (Mo.), 701 S.W.2d 720.
(1987) Goodwill in a professional practice is property subject to division pursuant to this section and is defined as the value of the practice which exceeds its tangible assets and which is the result of the tendency of clients/patients to return to and recommend the practice irrespective of the reputation of the individual practitioner. Hanson v. Hanson, 738 S.W.2d 429 (Mo. banc.).
(1987) Proper date for valuing marital property in a dissolution proceeding is the date of the trial. Taylor v. Taylor, 736 S.W.2d 388 (Mo. banc.).
(1987) It was proper for the court to consider, as an economic circumstance, in making a division of property, the sums voluntarily expended by husband for the support and education of a healthy adult child and to offset the wife's entitlement to husband's retirement pay by sums she received or would have received in maintenance. In Re Marriage of Dildy, 737 S.W.2d 756 (Mo.App.S.D.).
(1997) Statute does not allow the court to quash a QDRO and replace it with a domestic relations order that was not qualified. Offield v. Offield, 955 S.W.2d 247 (Mo.App.W.D.).
(1999) Statute does not give a trial court discretion to divide and distribute marital property to the parties' children. Randolph v. Randolph, 8 S.W.3d 160 (Mo.App.W.D.).
(2003) Section is more specific concerning authorization for modifying qualified domestic relations order and thus prevails over more general statute precluding modification of marital property division. Ricketts v. Ricketts, 113 S.W.3d 255 (Mo.App. W.D.).
452.335. 1. In a proceeding for nonretroactive invalidity, dissolution of marriage or legal separation, or a proceeding for maintenance following dissolution of the marriage by a court which lacked personal jurisdiction over the absent spouse, the court may grant a maintenance order to either spouse, but only if it finds that the spouse seeking maintenance:
(1) Lacks sufficient property, including marital property apportioned to him, to provide for his reasonable needs; and
(2) Is unable to support himself through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home.
2. The maintenance order shall be in such amounts and for such periods of time as the court deems just, and after considering all relevant factors including:
(1) The financial resources of the party seeking maintenance, including marital property apportioned to him, and his ability to meet his needs independently, including the extent to which a provision for support of a child living with the party includes a sum for that party as custodian;
(2) The time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment;
(3) The comparative earning capacity of each spouse;
(4) The standard of living established during the marriage;
(5) The obligations and assets, including the marital property apportioned to him and the separate property of each party;
(6) The duration of the marriage;
(7) The age, and the physical and emotional condition of the spouse seeking maintenance;
(8) The ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance;
(9) The conduct of the parties during the marriage; and
(10) Any other relevant factors.
3. The maintenance order shall state if it is modifiable or nonmodifiable. The court may order maintenance which includes a termination date. Unless the maintenance order which includes a termination date is nonmodifiable, the court may order the maintenance decreased, increased, terminated, extended, or otherwise modified based upon a substantial and continuing change of circumstances which occurred prior to the termination date of the original order.
(L. 1973 H.B. 315 § 8, A.L. 1988 H.B. 1272, et al.)(1975) For extensive discussion of the law under this section, see In re Marriage of Powers (A.), 527 S.W.2d 949.
(1976) This section does not apply to modification of existing dissolution decree but only to original decree. Modifications are governed by § 453.370. Sifers v. Sifers (A.), 544 S.W.2d 269.
(1976) For discussion of "abuse of discretion" and items to be considered in making property settlements, support and attorney's fee awards, see Beckman v. Beckman (A.), 545 S.W.2d 300.
(1977) Held, trial court erred in making a periodically decreasing or "stairstepped" award. Modifications must not be made on speculation. In re Marriage of Cornell (A.), 550 S.W.2d 823.
(1977) Appellate court held that under the circumstances wife, though guilty of misconduct, was entitled to greater proportion of marital property and a continuation, after dissolution of marriage, of maintenance of $375.00 a month awarded by trial court. Marriage of Schulte (A.), 546 S.W.2d 41.
(1977) Held, "reasonable needs" does not automatically equal the standard of living established during the marriage. There is an affirmative duty on the part of a spouse seeking dissolution to seek employment. Brueggemenn v. Bureggemann (A.), 551 S.W.2d 853.
(1977) Maintenance in gross may be awarded under this section. Miller v. Miller (A.), 553 S.W.2d 482.
(1977) Statute allowing award of maintenance in gross was not repealed by the dissolution of marriage statutes and § 452.335 does not preclude award of maintenance in gross. Carr v. Carr (A.), 556 S.W.2d 511.
452.340. 1. In a proceeding for dissolution of marriage, legal separation or child support, the court may order either or both parents owing a duty of support to a child of the marriage to pay an amount reasonable or necessary for the support of the child, including an award retroactive to the date of filing the petition, without regard to marital misconduct, after considering all relevant factors including:
(1) The financial needs and resources of the child;
(2) The financial resources and needs of the parents;
(3) The standard of living the child would have enjoyed had the marriage not been dissolved;
(4) The physical and emotional condition of the child, and the child's educational needs;
(5) The child's physical and legal custody arrangements, including the amount of time the child spends with each parent and the reasonable expenses associated with the custody or visitation arrangements; and
(6) The reasonable work-related child care expenses of each parent.
2. The obligation of the parent ordered to make support payments shall abate, in whole or in part, for such periods of time in excess of thirty consecutive days that the other parent has voluntarily relinquished physical custody of a child to the parent ordered to pay child support, notwithstanding any periods of visitation or temporary physical and legal or physical or legal custody pursuant to a judgment of dissolution or legal separation or any modification thereof. In a IV-D case, the family support division may determine the amount of the abatement pursuant to this subsection for any child support order and shall record the amount of abatement in the automated child support system record established pursuant to chapter 454, RSMo. If the case is not a IV-D case and upon court order, the circuit clerk shall record the amount of abatement in the automated child support system record established in chapter 454, RSMo.
3. Unless the circumstances of the child manifestly dictate otherwise and the court specifically so provides, the obligation of a parent to make child support payments shall terminate when the child:
(1) Dies;
(2) Marries;
(3) Enters active duty in the military;
(4) Becomes self-supporting, provided that the custodial parent has relinquished the child from parental control by express or implied consent;
(5) Reaches age eighteen, unless the provisions of subsection 4 or 5 of this section apply; or
(6) Reaches age twenty-one, unless the provisions of the child support order specifically extend the parental support order past the child's twenty-first birthday for reasons provided by subsection 4 of this section.
4. If the child is physically or mentally incapacitated from supporting himself and insolvent and unmarried, the court may extend the parental support obligation past the child's eighteenth birthday.
5. If when a child reaches age eighteen, the child is enrolled in and attending a secondary school program of instruction, the parental support obligation shall continue, if the child continues to attend and progresses toward completion of said program, until the child completes such program or reaches age twenty-one, whichever first occurs. If the child is enrolled in an institution of vocational or higher education not later than October first following graduation from a secondary school or completion of a graduation equivalence degree program and so long as the child enrolls for and completes at least twelve hours of credit each semester, not including the summer semester, at an institution of vocational or higher education and achieves grades sufficient to reenroll at such institution, the parental support obligation shall continue until the child completes his or her education, or until the child reaches the age of twenty-one, whichever first occurs. To remain eligible for such continued parental support, at the beginning of each semester the child shall submit to each parent a transcript or similar official document provided by the institution of vocational or higher education which includes the courses the child is enrolled in and has completed for each term, the grades and credits received for each such course, and an official document from the institution listing the courses which the child is enrolled in for the upcoming term and the number of credits for each such course. When enrolled in at least twelve credit hours, if the child receives failing grades in half or more of his or her courseload in any one semester, payment of child support may be terminated and shall not be eligible for reinstatement. Upon request for notification of the child's grades by the noncustodial parent, the child shall produce the required documents to the noncustodial parent within thirty days of receipt of grades from the education institution. If the child fails to produce the required documents, payment of child support may terminate without the accrual of any child support arrearage and shall not be eligible for reinstatement. If the circumstances of the child manifestly dictate, the court may waive the October first deadline for enrollment required by this subsection. If the child is enrolled in such an institution, the child or parent obligated to pay support may petition the court to amend the order to direct the obligated parent to make the payments directly to the child. As used in this section, an "institution of vocational education" means any postsecondary training or schooling for which the student is assessed a fee and attends classes regularly. "Higher education" means any community college, college, or university at which the child attends classes regularly. A child who has been diagnosed with a developmental disability, as defined in section 630.005, RSMo, or whose physical disability or diagnosed health problem limits the child's ability to carry the number of credit hours prescribed in this subsection, shall remain eligible for child support so long as such child is enrolled in and attending an institution of vocational or higher education, and the child continues to meet the other requirements of this subsection. A child who is employed at least fifteen hours per week during the semester may take as few as nine credit hours per semester and remain eligible for child support so long as all other requirements of this subsection are complied with.
6. The court shall consider ordering a parent to waive the right to claim the tax dependency exemption for a child enrolled in an institution of vocational or higher education in favor of the other parent if the application of state and federal tax laws and eligibility for financial aid will make an award of the exemption to the other parent appropriate.
7. The general assembly finds and declares that it is the public policy of this state that frequent, continuing and meaningful contact with both parents after the parents have separated or dissolved their marriage is in the best interest of the child except for cases where the court specifically finds that such contact is not in the best interest of the child. In order to effectuate this public policy, a court with jurisdiction shall enforce visitation, custody and child support orders in the same manner. A court with jurisdiction may abate, in whole or in part, any past or future obligation of support and may transfer the physical and legal or physical or legal custody of one or more children if it finds that a parent has, without good cause, failed to provide visitation or physical and legal or physical or legal custody to the other parent pursuant to the terms of a judgment of dissolution, legal separation or modifications thereof. The court shall also award, if requested and for good cause shown, reasonable expenses, attorney's fees and court costs incurred by the prevailing party.
8. The Missouri supreme court shall have in effect a rule establishing guidelines by which any award of child support shall be made in any judicial or administrative proceeding. Said guidelines shall contain specific, descriptive and numeric criteria which will result in a computation of the support obligation. The guidelines shall address how the amount of child support shall be calculated when an award of joint physical custody results in the child or children spending substantially equal time with both parents. The Missouri supreme court shall publish child support guidelines and specifically list and explain the relevant factors and assumptions that were used to calculate the child support guidelines. Any rule made pursuant to this subsection shall be reviewed by the promulgating body not less than once every four years to ensure that its application results in the determination of appropriate child support award amounts.
9. There shall be a rebuttable presumption, in any judicial or administrative proceeding for the award of child support, that the amount of the award which would result from the application of the guidelines established pursuant to subsection 8 of this section is the correct amount of child support to be awarded. A written finding or specific finding on the record in a judicial or administrative proceeding that the application of the guidelines would be unjust or inappropriate in a particular case, after considering all relevant factors, including the factors set out in subsection 1 of this section, is required if requested by a party and shall be sufficient to rebut the presumption in the case. The written finding or specific finding on the record shall detail the specific relevant factors that required a deviation from the application of the guidelines.
10. Pursuant to this or any other chapter, when a court determines the amount owed by a parent for support provided to a child by another person, other than a parent, prior to the date of filing of a petition requesting support, or when the director of the family support division establishes the amount of state debt due pursuant to subdivision (2) of subsection 1 of section 454.465, RSMo, the court or director shall use the guidelines established pursuant to subsection 8 of this section. The amount of child support resulting from the application of the guidelines shall be applied retroactively for a period prior to the establishment of a support order and the length of the period of retroactivity shall be left to the discretion of the court or director. There shall be a rebuttable presumption that the amount resulting from application of the guidelines under subsection 8 of this section constitutes the amount owed by the parent for the period prior to the date of the filing of the petition for support or the period for which state debt is being established. In applying the guidelines to determine a retroactive support amount, when information as to average monthly income is available, the court or director may use the average monthly income of the noncustodial parent, as averaged over the period of retroactivity, in determining the amount of presumed child support owed for the period of retroactivity. The court or director may enter a different amount in a particular case upon finding, after consideration of all relevant factors, including the factors set out in subsection 1 of this section, that there is sufficient cause to rebut the presumed amount.
11. The obligation of a parent to make child support payments may be terminated as follows:
(1) Provided that the child support order contains the child's date of birth, the obligation shall be deemed terminated without further judicial or administrative process when the child reaches age twenty-one if the child support order does not specifically require payment of child support beyond age twenty-one for reasons provided by subsection 4 of this section;
(2) The obligation shall be deemed terminated without further judicial or administrative process when the parent receiving child support furnishes a sworn statement or affidavit notifying the obligor parent of the child's emancipation in accordance with the requirements of subsection 4 of section 452.370, and a copy of such sworn statement or affidavit is filed with the court which entered the order establishing the child support obligation, or the division of child support enforcement;
(3) The obligation shall be deemed terminated without further judicial or administrative process when the parent paying child support files a sworn statement or affidavit with the court which entered the order establishing the child support obligation, or the family support division, stating that the child is emancipated and reciting the factual basis for such statement; which statement or affidavit is served by the court or division on the child support obligee; and which is either acknowledged and affirmed by the child support obligee in writing, or which is not responded to in writing within thirty days of receipt by the child support obligee;
(4) The obligation shall be terminated as provided by this subdivision by the court which entered the order establishing the child support obligation, or the family support division, when the parent paying child support files a sworn statement or affidavit with the court which entered the order establishing the child support obligation, or the family support division, stating that the child is emancipated and reciting the factual basis for such statement; and which statement or affidavit is served by the court or division on the child support obligee. If the obligee denies the statement or affidavit, the court or division shall thereupon treat the sworn statement or affidavit as a motion to modify the support obligation pursuant to section 452.370 or section 454.496, RSMo, and shall proceed to hear and adjudicate such motion as provided by law; provided that the court may require the payment of a deposit as security for court costs and any accrued court costs, as provided by law, in relation to such motion to modify.
12. The court may enter a judgment terminating child support pursuant to subdivisions (1) to (3) of subsection 11 of this section without necessity of a court appearance by either party. The clerk of the court shall mail a copy of a judgment terminating child support entered pursuant to subsection 11 of this section on both the obligor and obligee parents. The supreme court may promulgate uniform forms for sworn statements and affidavits to terminate orders of child support obligations for use pursuant to subsection 11 of this section and subsection 4 of section 452.370.
(L. 1973 H.B. 315 § 9, A.L. 1988 H.B. 1272, et al., A.L. 1989 1st Ex. Sess. H.B. 2, A.L. 1990 S.B. 834, A.L. 1993 S.B. 253, A.L. 1994 H.B. 1491 & 1134, A.L. 1995 S.B. 174, A.L. 1997 S.B. 361, A.L. 1998 S.B. 910, A.L. 1999 S.B. 1, et al. merged with S.B. 291, A.L. 2005 S.B. 420 & 344, A.L. 2007 S.B. 25)(1974) For discussion of child support criteria see Williams v. Williams (Mo.), 510 S.W.2d 452.
(1977) Held, trial court did not abuse its discretion in awarding income tax exemption for children to father who did not have custody and was required to pay twenty dollars a week per child as child support. Roberts v. Roberts (A.), 553 S.W.2d 305.
(1977) An adopted child is a "child of the marriage" see § 453.090 RSMo. D.L.C. v. L.C.C. (A.), 559 S.W.2d 623.
(1993) Parental child support obligation should not be terminated as a result of child's temporary inability to attend classes due to illness or physical disability when substantial evidence supports finding that interruption is temporary and that child intends to continue education. Braun v. Lied, 851 S.W.2d 93 (Mo. App W.D.).
(1993) Statute relating to parental support obligation does not require that child attend an institution of higher education on full-time basis. Age limitation protects parent from protracted college education. Harris v. Rattini, 855 S.W.2d 410 (Mo. App. E.D.).
(1993) Where child brought action against health care providers for injuries sustained during mother's pregnancy and child was not conceived at time of alleged negligent medical treatment, tort recovery was not barred by two-year statute of limitation. Exception to statute of limitations for children under age ten applied to action. Lough v. Rolla Women's Clinic, Inc., 866 S.W.2d 851 (Mo en banc).
(1994) Cadet at West Point was considered emancipated for purposes of child support even though academy provided education. Cadet's life at West Point is largely controlled by the government, which also provides for the bulk of the cadet's material needs. Federal law establishes that a cadet is part of the regular Army. Porath v. McVey, 884 S.W.2d 692 (Mo. App. S.D.).
(1997) Per diem payments received from an employer can be included in gross income when calculating a parent's child support obligation. Buckner v. Jordan, 952 S.W.2d 710 (Mo.banc).
(1997) Home-study program for attaining high school diploma was not "secondary school program of instruction" absent a showing of seriousness and good faith efforts on child's part to complete his education. Russell v. Russell, 949 S.W.2d 87 (Mo.App.W.D.).
(1999) Section requiring unmarried, divorced or legally separated parents to pay child support for college expenses does not violate equal protection clauses of federal and state constitutions. In re Marriage of Kohring, 999 S.W.2d 228 (Mo.banc).
(2000) Section requires child to receive credit for at least twelve hours to maintain eligibility to receive child support. Lombardo v. Lombardo, 35 S.W.3d 386 (Mo.App.W.D.).
(2004) Child's attention deficit hyperactivity disorder was manifest circumstance preventing successful completion of twelve credit hour requirement and thus continuing child support obligation. Pickens v. Brown, 147 S.W.3d 89 (Mo.App. W.D.).
(2004) Death of custodial parent of college student in compliance with section does not terminate existing child support obligation. Kreutzer v. Kreutzer, 147 S.W.3d 173 (Mo.App. S.D.).
452.341. 1. Any person obligated under a judgment or order of a court to make installment payments of child support or spousal support may request from the person entitled to such support payments an affidavit attesting to the fact that the obligor is current in such support payments and that there are, on the date that the request is made, no installment payments due and unpaid. Upon such request by an obligor, any person entitled to child support or spousal support shall execute an affidavit as required by this section.
2. No affidavit shall be required to be executed if any installment of the obligor's support obligation is due or unpaid on the date that the request is made. If, however, any obligor who is current in payment of support obligations makes a request for a statement of that fact under this section and the person entitled to such support payment refuses or fails to execute the affidavit required by this section within ten days of the request, the obligor shall have a cause of action against such person for any damages caused by such failure or refusal and may, in addition to such cause of action, petition a court of competent jurisdiction to order the person entitled to the support obligation to execute the affidavit. Any person who executes a false affidavit under this section commits a class A misdemeanor as provided in section 575.050, RSMo.
(L. 1986 H.B. 1479)
452.342. The court which issued a judgment or order of child support payments may, upon petition of the party obligated to make the payments and upon good cause shown, order the custodial parent to furnish the party having the support obligation with a regular summary of expenses paid by the custodial parent on behalf of the child. The court may prescribe the form and substance of the summary.
(L. 1988 H.B. 1272, et al.)
452.343. Notwithstanding any provision of law to the contrary, every judgment or order issued in this state which, in whole or in part, affects* child custody, child support, visitation, modification of custody, support or visitation, or is issued pursuant to section 454.470 or 454.475, RSMo, shall contain the Social Security number of the parties to the action which gives rise to such judgment or order.
(L. 1997 S.B. 361 § 2)Effective 7-1-97
*Word "effects" appears in original rolls.
452.344. 1. Upon entry of an order for support or division of property under this chapter or otherwise, or at any time the court finds any of the elements which constitute grounds for attachment under section 521.010, RSMo, the court, by its own motion or that of a party or assignee of a party, may require that the obligor provide sufficient security, bond or other guarantee to secure the obligation to make support payments or to secure the division of property, conditioned that the obligor will pay all support payments as they come due, together with interest thereon, and will abide the orders of the court with respect to division of property.
2. The bond shall be filed with the clerk of the circuit court in the county where the order for support or division of property is filed, and the bond may be entered into before the clerk, if the court or judge entering the order for support or division of property shall first approve of the security.
3. The court, upon default in the condition of the bond, shall enter judgment against the obligors on the bond, according to the circumstances of the case, including interest or damages, and may award execution thereon, or otherwise enforce such judgment, according to the rules and practice of the court.
(L. 1984 H.B. 1275)
452.345. 1. As used in sections 452.345 to 452.350, the term "IV-D case" shall mean a case in which support rights have been assigned to the state of Missouri or where the division of child support enforcement is providing support enforcement services pursuant to section 454.400, RSMo.
2. At any time the court, upon its own motion, may, or upon the motion of either party shall, order that maintenance or support payments be made to the circuit clerk as trustee for remittance to the person entitled to receive the payments. The circuit clerk shall remit such support payments to the person entitled to receive the payments within three working days of receipt by the circuit clerk. Circuit clerks shall deposit all receipts no later than the next working day after receipt. Payment by a nonguaranteed negotiable financial instrument occurs when the instrument has cleared the depository institution and has been credited to the trust account. Effective October 1, 1999, at any time the court may upon its own motion, or shall upon the motion of either party, order that support payments as required by section 454.530, RSMo, be made to the family support payment center established in section 454.530, RSMo, as trustee for remittance to the person entitled to receive the payments. However, in no case shall the court order payments to be made to the payment center if the division of child support enforcement notifies the court that such payments shall not be made to the center. In such cases, payments shall be made to the clerk as trustee until the division notifies the court that payments shall be directed to the payment center. Further, with the agreement of the division, the court may order payments to be made to the payment center prior to October 1, 1999.
3. The circuit clerk shall maintain records in the automated child support system which list the amount of payments, the date when payments are required to be made, and the names and addresses of the parties affected by the order. Nothing in this section shall prohibit the division of child support enforcement from entering information in the records of the automated child support system, as provided for in chapter 454, RSMo.
4. The parties affected by the order shall inform the circuit clerk or the payment center established in section 454.530, RSMo, of any change of address or of other conditions that may affect the administration of the order.
5. For any case in which an order for support or maintenance was entered prior to January 1, 1994, which has not been modified subsequent to that date, except a IV-D case, if a party becomes delinquent in maintenance or support payments in an amount equal to one month's total support obligation, the provisions of this subsection shall apply. If the circuit clerk has been appointed trustee under subsection 2 of this section, or if the person entitled to receive the payments files with the clerk an affidavit stating the particulars of the obligor's noncompliance, the circuit clerk shall send by regular mail notice of the delinquency to the obligor. This notice shall advise the obligor of the delinquency, shall state the amount of the obligation, and shall advise that the obligor's income is subject to withholding for repayment of the delinquency and for payment of current support, as provided in section 452.350. For such cases, the circuit clerk shall, in addition to the notice to the obligor, send by regular mail a notice to the obligee. This notice shall state the amount of the delinquency and shall advise the obligee that income withholding, pursuant to section 452.350, is available for collection of support delinquencies and current support, and if the support order includes amounts for child support, that support enforcement services, pursuant to section 454.425, RSMo, are available through the Missouri division of child support enforcement of the department of social services.
(L. 1973 H.B. 315 § 10, A.L. 1982 S.B. 468, A.L. 1986 H.B. 1479, A.L. 1990 S.B. 834, A.L. 1996 S.B. 869, A.L. 1997 S.B. 248 merged with S.B. 361, A.L. 1999 S.B. 291)Effective 7-1-99
(1976) Proceeding to cite defendant for contempt for failure to pay court ordered support and maintenance for plaintiff and their minor children classified as civil contempt and subject to review on appeal. Judgment, with sentence of imprisonment, reversed and remanded since there was no evidence from which trial court could have concluded that defendant was financially able to pay the award. Teefey v. Teefey (Mo.), 533 S.W.2d 563.
(1976) Held that imprisonment for contempt is proper remedy for failure to comply with court order for maintenance and child support when person disobeying order has intentionally placed himself in a position which made compliance impossible. State ex rel. Stanhope v. Pratt overruling Coughlin v. Ehlert, 39 Mo. 285 (1866). State ex rel. Stanhope v. Pratt (Mo.), 533 S.W.2d 567.
(1976) Court may not amend an alimony payment order of its own motion. Dolan v. Dolan (A.), 540 S.W.2d 220.
452.346. Upon written request of a parent of a child, as defined in section 452.302, who is receiving medical assistance pursuant to section 208.151, RSMo, the division of family services shall provide such parent with documentation that allows the child to obtain medical assistance. This section shall not apply to parents of children in the custody of a public agency.
(L. 1998 S.B. 910 § 6)
452.347. In any proceeding before a court where child support may be established or modified for an applicant or recipient of child support services pursuant to chapter 454:
(1) The applicant or recipient of child support enforcement services shall be provided by any other party with notice pursuant to Rule 41 of the Missouri rules of civil procedures of all proceedings in which support obligations may be established or modified. Notice to an attorney representing a party is deemed notice on the party for purposes of this section; and
(2) A copy of any order establishing or modifying a child support obligation, or an order denying a modification shall be mailed to the division of child support enforcement by the court within fourteen days of issuance of such order.
(L. 1997 S.B. 361)Effective 7-1-97
452.350. 1. Until January 1, 1994, except for orders entered or modified in IV-D cases, each order for child support or maintenance entered or modified by the court pursuant to the authority of this chapter, or otherwise, shall include a provision notifying the person obligated to pay such support or maintenance that, upon application by the obligee or the Missouri division of child support enforcement of the department of social services, the obligor's wages or other income shall be subject to withholding without further notice if the obligor becomes delinquent in maintenance or child support payments in an amount equal to one month's total support obligation. The order shall also contain provisions notifying the obligor that:
(1) The withholding shall be for the current month's maintenance and support; and
(2) The withholding shall include an additional amount equal to fifty percent of one month's child support and maintenance to defray delinquent child support and maintenance, which additional withholding shall continue until the delinquency is paid in full.
2. For all orders entered or modified in IV-D cases, and effective January 1, 1994, for every order for child support or maintenance entered or modified by the court pursuant to the authority of this chapter, or otherwise, income withholding pursuant to this section shall be initiated on the effective date of the order, except that such withholding shall not commence with the effective date of the order in any case where:
(1) One of the parties demonstrates, and the court finds, that there is good cause not to require immediate income withholding. For purposes of this subdivision, any finding that there is good cause not to require immediate withholding must be based on, at least, a written determination and an explanation by the court that implementing immediate wage withholding would not be in the best interests of the child and proof of timely payments of previously ordered support in cases involving the modification of support orders; or
(2) A written agreement is reached between the parties that provides for an alternative arrangement.
If the income of an obligor is not withheld as of the effective date of the support order, pursuant to subdivision (1) or (2) of this subsection, or otherwise, such obligor's income shall become subject to withholding pursuant to this section without further exception on the date on which the obligor becomes delinquent in maintenance or child support payments in an amount equal to one month's total support obligation. Such withholding shall be initiated in the manner provided in subsection 4 of this section. All IV-D orders entered or modified by the court shall contain a provision notifying the obligor that he or she shall notify the division of child support enforcement regarding the availability of medical insurance coverage through an employer or a group plan, provide the name of the insurance provider when coverage is available, and inform the division of any change in access to such insurance coverage. Any income withheld pursuant to this section for a support order initially entered on or after October 1, 1999, shall be paid to the payment center pursuant to section 454.530, RSMo. Any order of the court entered on or after October 1, 1999, establishing the withholding for a support order as defined in section 454.460, RSMo, or notice from the clerk issued on or after October 1, 1999, pursuant to this section for a support order shall require payment to the payment center pursuant to section 454.530, RSMo.
3. The provisions of section 432.030, RSMo, to the contrary notwithstanding, if income withholding has not been initiated on the effective date of the initial or modified order, the obligated party may execute a voluntary income assignment at any time, which assignment shall be filed with the court and shall take effect after service on the employer or other payor.
4. The circuit clerk, upon application of the obligee or the division of child support enforcement, shall send, by certified mail, return receipt requested, a written notice to the employer or other payor listed on the application when the obligated party is subject to withholding pursuant to the child support order or subsection 2 of this section. For orders entered or modified in cases known by the circuit clerk to be IV-D cases in which income withholding is to be initiated on the effective date of the order, and effective January 1, 1994, for all orders entered or modified by the court in which income withholding is to be initiated on the effective date of the order, the circuit clerk shall send such notice to the employer or other payor in the manner provided by this section at the time the order is entered without application of any party when an employer or other payor is identified to the circuit clerk by inclusion in the pleadings pursuant to section 452.312, or otherwise. The notice of income withholding shall be prepared by the person entitled to support pursuant to the order, or the legal representative of that person, on a form prescribed by the court, and shall be presented to the clerk of the court at the time the order of support is entered. The notice shall direct the employer or other payor to withhold each month an amount equal to one month's child support and maintenance until further notice from the court. In the event of a delinquency in child support or maintenance payments in an amount equal to one month's total support obligation, the notice further shall direct the employer or other payor to withhold each month an additional amount equal to fifty percent of one month's child support and maintenance until the support delinquency is paid in full. The notice shall also include a statement of exemptions which may apply to limit the portion of the obligated party's disposable earnings which are subject to the withholding pursuant to federal or state law and notify the obligor that the obligor may request a hearing and related information pursuant to this section. The notice shall contain the Social Security number of the obligor if available. The circuit clerk shall send a copy of this notice by regular mail to the last known address of the obligated party. A notice issued pursuant to this section shall be binding on the employer or other payor, and successor employers and payors, two weeks after mailing, and shall continue until further order of the court or the division of child support enforcement. If the notice does not contain the Social Security number of the obligor, the employer or other payor shall not be liable for withholding from the incorrect obligor. The obligated party may, within that two-week period, request a hearing on the issue of whether the withholding should take effect. The withholding shall not be held in abeyance pending the outcome of the hearing. The obligor may not obtain relief from the withholding by paying overdue support, if any. The only basis for contesting the withholding is a mistake of fact. For the purpose of this section, "mistake of fact" shall mean an error in the amount of arrearages, if applicable, or an error as to the identity of the obligor. The court shall hold its hearing, enter its order disposing of all issues disputed by the obligated party, and notify the obligated party and the employer or other payor, within forty-five days of the date on which the withholding notice was sent to the employer.
5. For each payment the employer may charge a fee not to exceed six dollars per month, which shall be deducted from each obligor's moneys, income or periodic earnings, in addition to the amount deducted to meet the support or maintenance obligation subject to the limitations contained in the federal Consumer Credit Protection Act (15 U.S.C. 1673).
6. Upon termination of the obligor's employment with an employer upon whom a withholding notice has been served, the employer shall so notify the court in writing. The employer shall also inform the court, in writing, as to the last known address of the obligor and the name and address of the obligor's new employer, if known.
7. Amounts withheld by the employer or other payor shall be transmitted, in accordance with the notice, within seven business days of the date that such amounts were payable to the obligated party. For purposes of this section, "business day" means a day that state offices are open for regular business. The employer or other payor shall, along with the amounts transmitted, provide the date each amount was withheld from each obligor. If the employer or other payor is withholding amounts for more than one order, the employer or other payor may combine all such withholdings that are payable to the same circuit clerk or the family support payment center and transmit them as one payment, together with a separate list identifying the cases to which they apply. The cases shall be identified by court case number, name of obligor, the obligor's Social Security number, the IV-D case number, if any, the amount withheld for each obligor, and the withholding date or dates for each obligor, to the extent that such information is known to the employer or other payor. An employer or other payor who fails to honor a withholding notice pursuant to this section may be held in contempt of court and is liable to the obligee for the amount that should have been withheld. Compliance by an employer or other payor with the withholding notice operates as a discharge of liability to the obligor as to that portion of the obligor's periodic earnings or other income so affected.
8. As used in this section, the term "employer" includes the state and its political subdivisions.
9. An employer shall not discharge or otherwise discipline, or refuse to hire, an employee as a result of a withholding notice issued pursuant to this section. Any obligor who is aggrieved as a result of a violation of this subsection may bring a civil contempt proceeding against the employer by filing an appropriate motion in the cause of action from which the withholding notice issued. If the court finds that the employer discharged, disciplined, or refused to hire the obligor as a result of the withholding notice, the court may order the employer to reinstate or hire the obligor, or rescind any wrongful disciplinary action. If, after the entry of such an order, the employer refuses without good cause to comply with the court's order, or if the employer fails to comply with the withholding notice, the court may, after notice to the employer and a hearing, impose a fine against the employer, not to exceed five hundred dollars. Proceeds of any such fine shall be distributed by the court to the county general revenue fund.
10. A withholding entered pursuant to this section may, upon motion of a party and for good cause shown, be amended by the court. The clerk shall notify the employer of the amendment in the manner provided for in subsection 4 of this section.
11. The court, upon the motion of obligor and for good cause shown, may terminate the withholding, except that the withholding shall not be terminated for the sole reason that the obligor has fully paid past due child support and maintenance.
12. A withholding effected pursuant to this section shall have priority over any other legal process pursuant to state law against the same wages, except that where the other legal process is an order issued pursuant to this section or section 454.505, RSMo, the processes shall run concurrently, up to applicable wage withholding limitations. If concurrently running wage withholding processes for the collection of support obligations would cause the amounts withheld from the wages of the obligor to exceed applicable wage withholding limitations and includes a wage withholding from another state pursuant to section 454.932, RSMo, the employer shall first satisfy current support obligations by dividing the amount available to be withheld among the orders on a pro rata basis using the percentages derived from the relationship each current support order amount has to the sum of all current child support obligations. Thereafter, delinquencies shall be satisfied using the same pro rata distribution procedure used for distributing current support, up to the applicable limitation. If concurrently running wage withholding processes for the collection of support obligations would cause the amounts withheld from the wages of the obligor to exceed applicable wage withholding limitations and does not include a wage withholding from another state pursuant to section 454.932, RSMo, the employer shall withhold and pay to the payment center an amount equal to the wage withholding limitations. The payment center shall first satisfy current support obligations by dividing the amount available to be withheld among the orders on a pro rata basis using the percentages derived from the relationship each current support order amount has to the sum of all current child support obligations. Thereafter, arrearages shall be satisfied using the same pro rata distribution procedure used for distributing current support, up to the applicable limitation.
13. The remedy provided by this section applies to child support and maintenance orders entered prior to August 13, 1986, notwithstanding the absence of the notice to the obligor provided for in subsection 1 of this section, provided that prior notice from the circuit clerk to the obligor in the manner prescribed in subsection 5 of section 452.345 is given.
14. Notwithstanding any provisions of this section to the contrary, in a case in which support rights have been assigned to the state or in which the division of child support enforcement is providing support enforcement services pursuant to section 454.425, RSMo, the director of the division of child support enforcement may amend or terminate a withholding order issued pursuant to this section, as provided in this subsection without further action of the court. The director may amend or terminate a withholding order and issue an administrative withholding order pursuant to section 454.505, RSMo, when the director determines that children for whom the support order applies are no longer entitled to support pursuant to section 452.340, when the support obligation otherwise ends and all arrearages are paid, when the support obligation is modified pursuant to section 454.500, RSMo, or when the director enters an order that is approved by the court pursuant to section 454.496, RSMo. The director shall notify the employer and the circuit clerk of such amendment or termination. The director's administrative withholding order or withholding termination order shall preempt and supersede any previous judicial withholding order issued pursuant to this or any other section.
15. For the purpose of this section, "income" means any periodic form of payment due to an individual, regardless of source, including wages, salaries, commissions, bonuses, workers' compensation benefits, disability benefits, payments pursuant to a pension or a retirement program and interest.
16. If the secretary of the Department of Health and Human Services promulgates a final standard format for an employer income withholding notice, the court shall use or require the use of such notice.
(L. 1973 H.B. 315 § 11, A.L. 1982 S.B. 468, A.L. 1984 H.B. 1275, A.L. 1986 H.B. 1479, A.L. 1987 H.B. 484, A.L. 1990 S.B. 834, A.L. 1993 S.B. 253, A.L. 1994 H.B. 1491 & 1134, A.L. 1997 S.B. 361, A.L. 1999 S.B. 291)Effective 7-1-99
(1980) Statute providing specifically for assignment of future wages upon order of court for purposes of enforcing order for maintenance created an exception to § 432.030 prohibiting the assignment of future wages. Brinley v. Karnes (A.), 595 W.W.2d 465.
452.355. 1. Unless otherwise indicated, the court from time to time after considering all relevant factors including the financial resources of both parties, the merits of the case and the actions of the parties during the pendency of the action, may order a party to pay a reasonable amount for the cost to the other party of maintaining or defending any proceeding pursuant to sections 452.300 to 452.415 and for attorney's fees, including sums for legal services rendered and costs incurred prior to the commencement of the proceeding and after entry of a final judgment. The court may order that the amount be paid directly to the attorney, who may enforce the order in the attorney's name.
2. In any proceeding in which the failure to pay child support pursuant to a temporary order or final judgment is an issue, if the court finds that the obligor has failed, without good cause, to comply with such order or decree to pay the child support, the court shall order the obligor, if requested and for good cause shown, to pay a reasonable amount for the cost of the suit to the obligee, including reasonable sums for legal services. The court may order that the amount be paid directly to the attorney, who may enforce the order in his name.
3. For purposes of this section, an "obligor" is a person owing a duty of support and an "obligee" is a person to whom a duty of support is owed.
4. For purposes of this section, "good cause" includes any substantial reason why the obligor is unable to pay the child support as ordered. Good cause does not exist if the obligor purposely maintains his inability to pay.
(L. 1973 H.B. 315 § 12, A.L. 1988 H.B. 1272, et al., A.L. 1998 S.B. 910)(1977) Prospective termination of spousal maintenance without evidence of change in circumstances is abuse of discretion. In re Marriage of Valleroy (A.), 548 S.W.2d 857.
452.360. 1. A judgment of dissolution of marriage or of legal separation is final when entered, subject to the right of appeal. An appeal from a judgment of dissolution that does not challenge the finding that the marriage is irretrievably broken does not delay the finality of that provision of the judgment which dissolves the marriage beyond the time for appealing from that provision, so that either of the parties may remarry pending appeal.
2. The court's judgment of dissolution of marriage or legal separation as it affects distribution of marital property shall be a final judgment not subject to modification.
3. No earlier than ninety days after entry of a judgment of legal separation, on motion of either party, the court may convert the judgment of legal separation to a judgment of dissolution of marriage.
4. On motion of both parties, the court shall set aside a judgment of legal separation.
5. The circuit clerk shall give notice of the entry of a judgment of legal separation or dissolution to the department of social services.
(L. 1973 H.B. 315 § 13, A.L. 1998 S.B. 910)(1976) Held that court rule 75.01 is not affected by this section and insofar as an appeal is concerned the judgment does not become final until thirty days after its entry absent the timely filing of a motion for new trial. State ex rel. Nilges v. Rush (A.), 532 S.W.2d 857.
(1978) Distinction between separate maintenance and legal separation; held separate maintenance decree cannot be converted into a decree of dissolution as a decree of legal separation can. In re Marriage of E. A. W. (A.), 573 S.W.2d 689.
(1987) Converting a decree of separation into a decree of dissolution is a new and separate cause of action, so full notice must be given to adverse parties. Madsen v. Madsen, 731 S.W.2d 324 (Mo.App. E.D.).
(1987) Unappealed partial decree was final although not subject to appeal and issues unresolved in decree were not abated by death of ex-husband. Fischer v. Seibel, 733 S.W.2d 469 (Mo.App.W.D.).
452.365. If a party fails to comply with a provision of a decree or temporary order or injunction, the obligation of the other party to make payments for support or maintenance or to permit visitation is not suspended but he may move the court to grant an appropriate order.
(L. 1973 H.B. 315 § 14)Effective 1-1-74
452.370. 1. Except as otherwise provided in subsection 6 of section 452.325, the provisions of any judgment respecting maintenance or support may be modified only upon a showing of changed circumstances so substantial and continuing as to make the terms unreasonable. In a proceeding for modification of any child support or maintenance judgment, the court, in determining whether or not a substantial change in circumstances has occurred, shall consider all financial resources of both parties, including the extent to which the reasonable expenses of either party are, or should be, shared by a spouse or other person with whom he or she cohabits, and the earning capacity of a party who is not employed. If the application of the child support guidelines and criteria set forth in section 452.340 and applicable supreme court rules to the financial circumstances of the parties would result in a change of child support from the existing amount by twenty percent or more, a prima facie showing has been made of a change of circumstances so substantial and continuing as to make the present terms unreasonable, if the existing amount was based upon the presumed amount pursuant to the child support guidelines.
2. When the party seeking modification has met the burden of proof set forth in subsection 1 of this section, the child support shall be determined in conformity with criteria set forth in section 452.340 and applicable supreme court rules.
3. Unless otherwise agreed in writing or expressly provided in the judgment, the obligation to pay future statutory maintenance is terminated upon the death of either party or the remarriage of the party receiving maintenance.
4. Unless otherwise agreed in writing or expressly provided in the judgment, provisions for the support of a child are terminated by emancipation of the child. The parent entitled to receive child support shall have the duty to notify the parent obligated to pay support of the child's emancipation and failing to do so, the parent entitled to receive child support shall be liable to the parent obligated to pay support for child support paid following emancipation of a minor child, plus interest.
5. If a parent has made an assignment of support rights to the division of family services on behalf of the state as a condition of eligibility for benefits pursuant to the Temporary Assistance for Needy Families program and either party initiates a motion to modify the support obligation by reducing it, the state of Missouri shall be named as a party to the proceeding. The state shall be served with a copy of the motion by sending it by certified mail to the director of the division of child support enforcement.
6. The court shall have continuing personal jurisdiction over both the obligee and the obligor of a court order for child support or maintenance for the purpose of modifying such order. Both obligee and obligor shall notify, in writing, the clerk of the court in which the support or maintenance order was entered of any change of mailing address. If personal service of the motion cannot be had in this state, the motion to modify and notice of hearing shall be served outside the state as provided by supreme court rule 54.14. The order may be modified only as to support or maintenance installments which accrued subsequent to the date of personal service. For the purpose of 42 U.S.C. 666(a)(9)(C), the circuit clerk shall be considered the "appropriate agent" to receive notice of the motion to modify for the obligee or the obligor, but only in those instances in which personal service could not be had in this state.
7. If a responsive pleading raising the issues of custody or visitation is filed in response to a motion to modify child support filed at the request of the division of child support enforcement by a prosecuting attorney or circuit attorney or an attorney under contract with the division, such responsive pleading shall be severed upon request.
8. Notwithstanding any provision of this section which requires a showing of substantial and continuing change in circumstances, in a IV-D case filed pursuant to this section by the division of child support enforcement as provided in section 454.400, RSMo, the court shall modify a support order in accordance with the guidelines and criteria set forth in supreme court rule 88.01 and any regulations thereunder if the amount in the current order differs from the amount which would be ordered in accordance with such guidelines or regulations.
(L. 1973 H.B. 315 § 15, A.L. 1982 S.B. 468, A.L. 1986 H.B. 1479, A.L. 1987 H.B. 484, A.L. 1988 H.B. 1272, et al., A.L. 1990 S.B. 834, A.L. 1993 S.B. 253, A.L. 1994 H.B. 1491 & 1134, A.L. 1997 S.B. 361, A.L. 1998 S.B. 910)CROSS REFERENCES:
Court may abate past or future support obligation if custodial parent, without good cause, fails to honor visitation order, RSMo 452.340
Emancipation of child, factors determining, RSMo 452.340
(1976) Evidence that former husband had suffered, at most, eight percent reduction in pay since time of divorce, that he had been on strike for six weeks, and that he had suffered loss of income as result of medical and dental care held insufficient to show changed circumstances so substantial and continuing as to make terms of alimony decree unreasonable. Ward v. Ward (A.), 534 S.W.2d 593.
(1976) Receipt of inheritance by wife held not to constitute such a change in circumstances as would justify modification of alimony decree ($65,900.00) increase in net worth. Seelig v. Seelig (A.), 540 S.W.2d 142.
(1977) Held that increase of father's income from twenty thousand dollars a year to fifty-one thousand dollars a year justified increasing child support from one hundred dollars a month to four hundred fifty dollars a month. Barnhill v. Barnhill (A.), 547 S.W.2d 858.
(1977) Court seems to say that income of "new" wife is to be considered as part of father and former husband's "means" in determining amount of award for attorney's fees and impliedly in computing ability to pay child support. In re Marriage of Engelhardt (A.), 552 S.W.2d 356.
(1978) Reduction of monthly child support by $140, and not $200, was authorized, where only changed circumstances following marriage dissolution was ex-husband's $140 reduced monthly income. Nagel v. Nagel (A.), 561 S.W.2d 693.
(1978) Held, finding that wife, unemployed at time of divorce, but who now earned salary of $654 a month, was substantial enough circumstances to make terms of original decree awarding alimony unreasonable. Stahlhut v. Stahlhut (A.), 562 S.W.2d 764.
(1978) Held, that although facts that needs of growing children increase, and increase in income of supporting spouse would support a modification of decree, it must be shown that their effect make the decree unreasonable. Plattner v. Plattner (A.), 567 S.W.2d 139.
(1981) Common law rule that parent's obligation for child support terminates on death of parent was not modified by enactment of statute governing termination of support by emancipation of child. Bushell v. Schepp (A.), 613 S.W.2d 689.
(1981) Purpose of statute governing termination of child support is to make it absolute that, absent express provisions to contrary in divorce decree or separation agreement, obligation ends upon emancipation and does not automatically continue to age 21. Bushell