C.M.B.R v. E.M.B.R., Case No. SD30342 (Mo. App. S.D., July 21, 2010)

August 8th, 2011

THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. IT MAY BE SUBJECT TO A MOTION FOR REHEARING OR TRANSFER. IT MAY BE MODIFIED, SUPERSEDED OR WITHDRAWN.

On May 22, 2007 Mother, a citizen of Guate­mala, was employed at a poultry plant raided by Immigration and Customs Enforcement (ICE), and subsequently taken into custody. Mother was prosecuted for aggravated identity theft by the ICE, pled guilty, and was sentenced to deportation from the United States after serving a mandatory two years in prison. At the time of Mother’s arrest, her child was staying with Mother’s brother. A few days after her arrest, the child began staying with Mother’s sister. The sister was unable to care for the child and enlisted babysitting services of the Velazco family. After a few weeks, the child began living with the Velazco family during the week and returned to the sister on the weekends. On September 24, 2007, the Velazco family contacted Respondents about adopting the child. On October 5, 2007, after 10 days of visitation and one overnight, the child came to live with Respondents. The Respondents simultaneously filed their petition to adopt the child and termi­nate Mother’s parental rights. The Mother was in prison at the time and did not consent to the adoption. The court granted Respondent’s petition to adopt and terminated Mother’s parental rights. On appeal, Mother argues the trial court failed to adhere to the statutorily mandated placement requirements in § 453.014, which set forth who may place a child for adoption. Mother argues that the Velazcos did not have the authority to place the child with Respondents under 453.014 and, therefore, the private adoption should not have occurred. The Court of Appeals agreed that neither the Velazcos nor Mother’s family members were intermediaries authorized to “place” the child with Respondents. Placement of the child is one of the first steps in any adoption proceeding, and § 453.014 de­fines the parties who may place a minor as: 1) the Division of Family Services; 2) a child plac­ing agency; 3) the child’s parents, without the direct or indirect assistance of an intermediary, in the home of a relative of the child within the third degree; and 4) an intermediary, which shall include an attorney, a physician or a clergyman of the parents. The appellate court did not agree with Respondents’ argument that any party can place a child for adoption so long as it is in the best interest of the child. The court stated that “we have never allowed courts to choose between competing parents on the simple standard of ‘best interests’ of the child. By allowing this type of transfer, we would not only contradict the statu­tory requirements, but would also open the door to the black-marketing of children.” The judgment ordering adoption of the child and termination of Mother’s parental rights was reversed and the trial court directed to dismiss the petition.

Reprinted from the Family Law Section Newsletter of the Missouri Bar Association (Winter 2011).

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Hight v. Hight, 314 S.W.3d 874 (Mo. App. S.D., July 13, 2010)

August 8th, 2011

A judgment of dissolution awarded Wife 93 percent of the marital assets and 27 percent of the marital debt. Husband received approximately seven percent of the marital assets and 73 percent of the marital debt. Husband appealed, alleging that the division of marital property and debt is so one-sided as to constitute an abuse of discre­tion by the trial court. The Court of Appeals held that there was not enough substantial evidence that Husband’s misconduct supported the trial court’s award of the marital property and debt and reversed and remanded the case. On appeal, the court looked to the factors set forth in § 452.330 and determined that the fourth factor (conduct of the parties during the marriage) was the most relevant. There was evidence of Husband’s abuse and threats towards Wife during the marriage. However, marital conduct is only “a factor in property division when the offending conduct places an extra burden on the other spouse.” Mc­Nair v. McNair, 987 S.W.2d, 4, 6 (Mo. App.W.D. 1998). The court must look for evidence that “in disproportionately dividing the marital property, based in whole or in part on marital misconduct, is not ‘punishing the offending spouse, but is compensating the aggrieved spouse for the extra burden placed on the spouse in the marriage by the offending spouse’s misconduct.’” Nelson, 25 S.W.3d at 519. The only evidence of added bur­dens to Wife was that Husband’s abuse compelled Wife to separate and cause the marriage to fail, which the Court of Appeals held was not enough substantial evidence to support the trial court’s division granting Wife 93 percent of the marital assets and 27 percent of the marital debt.

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Thacker v. Thacker, 311 S.W.3d 402 (Mo. App. W.D., June 8, 2010)

August 8th, 2011

Husband, a retired physician, and Wife, a Russian school teacher with two daughters, met over the Internet in late 2005. The following summer, Husband traveled to Russia to meet Wife and her daughters and asked Wife to marry him. Wife accepted and upon Husband’s return to the United States they kept in contact by email, with Husband professing his love for Wife and discussing excitement over becoming a family and purchasing her a vehicle. In January 2008, Husband proceeded with submitting documents to Department of Homeland Security stating he intended to contribute to the support of Wife and her daughters and documents to the American Embassy in Russia, all to facilitate Wife’s visa. In anticipation of her move to the United States, Wife sold her apartment in Russia as well as many of their possessions. Upon arrival in the United States, Wife and daughters moved into Husband’s home. In March of 2008 the parties were married, but the marriage had trouble, with Wife alleging that Husband viewed pornography, demanded sex, kept loaded firearms in the home and took photos of her daughters. Husband alleged Wife was never happy, complained about the house, and her interest in sex decreased after marriage. Wife eventually left the residence with her daughters, and later attempted to reconcile. Husband refused and filed for dis­solution. Wife’s counter-petition for dissolution sought spousal maintenance and child support on the theory that Husband’s representations to the Department of Homeland Security evidenced an express contract for Husband’s support of Wife and children in exchange for Wife’s agreement to marry and that Husband was estopped from denying any obligation to support them because they had relied to their detriment on Husband’s representations promising support. The trial court awarded Wife no maintenance and no child sup­port, finding that there was no existence of an express or implied contract for Husband to provide support. As to Wife’s estoppel theories, the trial court found that Wife failed to state a claim upon which relief could be granted, or, in the alterna­tive, she had not met her burden with respect to her claim of estoppel. The trial court stated that life for Wife and her daughters in Russia was difficult and they wanted to come to the United States; thus, any reliance on Husband’s promises was not to their detriment.

The Court of Appeals affirmed and also held that that Wife did not establish the existence of an express contract of support. For her to establish such, Wife would have to show that, in exchange for her promise to marry Husband, or for some other consideration, Husband promised to Wife that he would support her daughters, even if they no longer lived with him. Instead, Wife testified that she married him because she loved him and thought he would make a good husband and father, not because of a promise of support. Wife also claimed on appeal that the trial court erred in failing to order child support based on the theory of estoppel. The appellate court agreed with the trial court that Wife did not meet her burden to establish the claim; therefore, they did not need to decide whether there was error in finding Wife failed to state a claim upon which relief could be granted. In order for Wife to establish a claim for child support based on the estoppel theory, she would have to prove that: (1) Husband promised to support Wife’s daughters; (2) Wife (or her daugh­ters) had relied on Husband’s promise to their detriment; (3) Husband expected or should have expected reliance; and (4) that injustice resulted from the reliance that only enforcement of the promise could cure. See White, 293 S.W.3d at 27 (Ahuja, J., dissenting); Bauer Dev. LLC v. BOK Fin. Corp, 290 S.W.3d 96, 100 (Mo. App. W.D. 2009). Even if Wife and her daughters had relied on the promise of support, there was evidence to support a finding that the reliance was not to their detriment, as their life in Russia was not easy and they had made no attempts to return to Russia despite having return plan tickets. The conclusion that Wife failed to meet her burden was supported by substantial evidence.

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Cortez v. Cortez, No. SD 30099 (Mo. App. S.D., July 29, 2010)

August 8th, 2011

Mother appealed a judgment of the circuit court of McDonald County denying her request to re­locate with the parties’ daughter and ordering her to return the child to Missouri. The child resided primarily with Mother, and Father had visitation. On or about December 7, 2008, she sent Father a letter by certified mail notifying him that she would be moving from Noel, Missouri (where Father also resided) to Dallas, Texas in 60 days. Fifty-three (53) days after the date of Mother’s notice, Father filed an objection to Mother’s relocation and a motion to modify. Mother moved to Dallas with the child and did not inform Father prior to any ruling by the court on Father’s motions. After moving, Mother filed a motion to dismiss Father’s motions on the grounds that Mother acquired an absolute right to relocate child when Father failed to object to her proposed relocation within 30 days of receiving Mother’s notice. The trial court held an evidentiary hearing and some of Mother’s testimony included that she did not have family in Dallas, TX and the schooling she was seeking in Texas was to assist her in obtaining her GED. Father testified that he saw the child every day at school when she resided in Missouri, she stayed with him for an hour after school 3-4 times a week, and he had visitation every Wednesday until 8:00 p.m. and once every two weeks from Friday through Monday. The trial court denied the reloca­tion and pending motions to modify, maintained the original court order and ordered the Mother to return the child to Missouri. The Mother appealed on the same grounds for her request that Father’s pleadings be dismissed, claiming that she had an absolute right to relocate due to Father’s failure to object to her proposed relocation within 30 days of receiving notice. The Court of Appeals affirmed the judgment and pointed to Mother’s failure to include in her notice a “proposal for a revised schedule of custody or visitation with the child” as required in § 452.377.2(5). Her notice only stated that the parties needed to come to an agreement on visitation at some time in the future, which the Court of Appeals states is not the equivalent of the requirement under 452.377.2(5). Mother argues that strict compliance with § 452.377 is not required per Baxley v. Jared, 91 S.W.3d at 20506. But the court distinguishes the facts, as Baxley stands for the proposition that notice by certified mail is not required if actual notice is proven and all other requirements of § 452.377 are met.

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