Missouri Appeals court affirmed the original decision to award full physical custody of the children to the father. BY: Terilea W.

Link for Opinion: http://www.lexisnexis.com.proxy.msbcollege.edu/hottopics/lnacademic/

Title: Missouri Appeals court affirmed the original decision to award full physical custody of the children to the father.

The Missouri court of appeals held in CHESTER JOE WILMES QUERRY v. STEPHANIE JEAN QUERRY, WD 74342 2012 Mo. App. LEXIS 1439 that the court did not err in [*17] failing to appoint a guardian ad litem.

The couple was married October 23^rd 1999 and from that union two children were born. When the marriage was dissolved on January 7, 2910, the court awarded Father and Mother joint legal and joint physical custody of the minor children. The parties were ordered to alternate parenting times on a week to week basis, with exchanges occurring every Sunday at 6:00 p.m. There was no child support ordered.

Approximately seven months after the dissolution, on August 4^th, 2010, Mother requested sole legal and sole physical custody of the children as well as child support from Father and moved to modify the dissolution decree. While in the care of Father, Mother had concerns about Fathers mental state, the stability of the environment provided to the minor children, and the ability to care for the children when with Father unsupervised. Mother was also concerned about the poor hygiene, rashes, and bruises she found on the minor children when they were returned to her by Father. Mother also alleged that Father was not capable of providing adequate care and support for the children when in his care. The parenting plan arrangement set forth by the court is also having a negative impact on the children, alleged Mother.

At the new trial Mother testified that she no longer wanted sole legal and sole physical custody of the children. Mother admitted that she failed to comply with the previous parenting arrangements and purposely denied Father parenting time and failed to timely provide Father her new address. She requested that Fathers parenting time be changed to every other weekend from Friday at 6:00 p.m. to Sunday at 6:00 p.m. Mother also admitted that she had no complaints about Father’s child rearing and thinks he is a good Father.

The court awarded joint legal custody to Mother and Father and sole physical custody to Father. Visitation for Mother was during the school year every other weekend from Friday at 6:00 p.m. to Sunday at 6:00 p.m. and every Wednesday from 5:00 p.m. to 8:00 p.m. Every other week Mother was awarded during the summer. Father was also awarded child support in the amount of $460.00 per month and $1,500 judgment against Mother for Father’s partial attorney fees.

Labels for the post: custody, parenting, neglect, physical custody, minor children, modification, alternating, guardian ad litem, plain errors, pled, custodian, custodial, modify, best interests, prior decree, substantial change, dissolution, appointment, marriage, appoint, weekend, bruises, visitation, mandatory, stability, incapable, dissolution decree, manifest injustice, miscarriage of justice, original judgment

Supreme Court of Maine Affirms Ruling Enforcing Child Support Provisions of 1992 Divorce Judgment. BY: Jason S.

Link: http://law.justia.com/cases/maine/supreme-court/2012/2012-me-4.html

Title: Supreme Court of Maine Affirms Ruling Enforcing Child Support Provisions of 1992 Divorce Judgment

The Supreme Court of Maine affirmed the earlier judgment of a District Court in Cloutier v. Turner, 2012 ME 4 that the child support provisions of a 1992 divorce judgment would stand. Robin M. Turner had filed the motion seeking the enforcement. Raymond Coultier appealed on the grounds that (1) Turner lacks standing to bring the motion to enforce because she filed it after the children became adults; (2) the limitations period on a claim of overdue child support is six years; (3) the court’s failure to apply the six-year statute of limitations deprived Cloutier of his constitutional right of equal protection; and (4) laches should apply due to Turner’s delay in bringing the motion to enforce.

Cloutier and Turner were married in 1983 and divorced in 1987. An amended divorce judgment was entered in 1992. The amended judgment gave Turner primary custody of their two daughters and required Cloutier to pay $40.00 per week, effective October 2, 1992, as the total child support for both children. The 1992 order also required Cloutier to provide health insurance for the children, and to pay thirty-seven percent of any uninsured medical expenses.

On September 1, 2010, Turner filed a motion to enforce the judgment, seeking unpaid child support and Cloutier's portion of the uninsured medical expenses she had paid for the children. The court held a hearing on December 10, 2010 and ruled in her favor three days later.

Coultier appealed to the Maine Supreme Court on the above stated ground, and ultimately was unsuccessful in his attempts to avoid his legal obligations.

Labels: child support, divorce, appeal

Indiana: Appeals Court Holds that Father’s request for child visitation is denied . BY: Chi S.

Link for opinion: http://scholar.google.com/scholar_case?case=17917917383618116728&q=indiana+courts+child+visitation&hl=en&as_sdt=2,50&as_ylo=2012

Title: Indiana: Appeals Court Holds that Father’s request for child visitation is denied

The Indiana Court of Appeals held Hazelwood v. Hazelwood, No. 03A04-1109-DR-493 (Ind. Ct. App. Feb. 28, 2012). that the father of a child, who is incarcerated, should not have visitation with the child as it is not in the best interest of the child.

The father of the child (S.H) petitioned the court to establish a parenting visitation agreement while he was incarcerated.  He appealed and argues that the trial court abused its discretion in denying the petition.

The mother, Melissa Butler, was given custody of the minor child (S.H) with the father, Gary Hazelwood, to receive parenting time.  Gary was incarcerated for dealing methamphetamines when the minor child (S.H) was only three years old.  His sentence will allow him to be released when the minor child is the age of eighteen.  The minor child (S.H) lives with his mother.

The court held that mandatory visitation while the father was incarcerated was not in the best interest of the child as a visit inside of a correctional facility might endanger the child’s physical health or impair the child’s emotional development.  In this case, the child displayed behaviors after reading written correspondence from the father that led the mother to believe the child was not developed mentally or emotionally to deal with a visit with the father. 

The court ruled at this stage, the child is not mature enough emotionally to make visits mandatory.  f the child (S. H) requests to see his father,  mother is ordered to advise father so that appropriate arrangements can be made to transport the child to the Indiana Department of Corrections. The Court will not order mother or step-father to provide transportation although they may certainly do so if they are willing. Father’s request for child visitation was denied.  The court further ordered that the mother provide the father with any changes in her address so that written correspondence can be sent to the child.

Labels for the post: child visitation, father visitation, incarceration, incarceration of a parent

Illinois Court Denies a Father’s Petition for Primary Physical Custody. BY: Jessica S.

Link for opinion: http://www.isba.org/cases/illinois/appellate/2012/10/17/grunstadvcooper

In the case of Grunstad v. Cooper, 2012 IL App (3d) 120524, the father filed a petition for primary physical custody of his two children Olyvia and Keegan. The mother, Grunstad, had primary physical custody of them. The reasons for the change was because he thought that she did not provide a stable home by exposing the children  to domestic violence and she did not meet the children’s educational and medical needs.

A hearing Grunstad testified about the possible domestic violence exposure to the children and witnesses from both parties testified about the children’s welfare. Coopers witnesses included a teacher and a social worker from the school. Attorneys for both parties brought up their past history of drinking alcohol which both sides denied. It came out that both parties had difficulty communicating with each other.

On November 23, 2011, the circuit court ruled in favor of Grunstad based on the evidence presented. Cooper filed a motion for a camera interview to be done of his daughter and it was denied. Cooper appealed.

The Appellate Court affirmed the circuit court decision. It found in the matter of the camera interview not being allowed to agree with the circuit court decision based on Section 604(a) of the Illinois Marriage and Dissolution of Marriage Act because the court can use its discretion in deciding this matter. The court ruled that the daughter’s opinion was not the only factor to consider and would have “emotional impact” on her even though she wanted to live with her father. As far as Cooper’s argument that the decision for granting Grunstad a direct verdict, after analyzing the evidence presented by Cooper the court found he failed show there was a need to change the custody arraignment. This case shows the how law tends to not change rulings of previous decisions in custody cases.

Labels for the post:  Camera Interviews of Children, Best Interest of Child, Modify Custody

Utah: Appeals court holds that fathers decrease in salary constitutes a substantial change in circumstances. BY: Michael R.

Link for opinion:  https://a.next.westlaw.com/Document/I8e558b83436e11e1bd928e1973ff4e60/View/FullText.html

Title:  Utah:  Appeals court holds that fathers decrease in salary constitutes a substantial change in circumstances.

The Utah court of appeals held in Busche v. Busche, 272 P.3d 748 (Utah App. 2012) that the loss of ex-husband’s job and resulting in a much lesser salary constituted a substantial change in circumstances in which it was reversed and remanded back to the circuit court to analyze whether or not he was in fact voluntarily underemployed.  The court also affirmed the attorney fees that the district court awarded the wife in the amount of $3324.71 resulting from the August 29, 2005 order, but reversed and remanded the additional attorney fees that were included in the cross-appeal.

The ex-husband lost his job with Tahitian Noni on January 28, 2005 at that time he was making a monthly salary of $7067.  After this he began contractural employment with Tahitian Noni for a salary of $5000 monthly which ended in early 2006.  He was unemployed until October 2, 2006, when he began work with SupraNaturals at a monthly salary of $4583.33.  The district court held a hearing on the basis that the husband was aware by way of warnings that he was in jeopardy of losing his job due to bad behavior.  In the process of the hearing the court found that since he agreed to the child support and alimony awards with the knowledge of his potential loss of job that he was in fact voluntarily underemployed and that it did not constitute a change to the order.

The appeals court decided that the reason the husband lost his job was due to misconduct and that alone cannot be a reason to be voluntarily underemployed.  The District Court conflated the substantial change in circumstances analysis with the imputation analysis.  The husband had a loss in income of 35% which falls under applicable law to be reviewed as a substantial change in circumstances. “A substantial change in circumstances may include ... material changes of 30% or more in the income of a parent.” Utah Code Ann. § 78B–12–210(9)(b)(iii).

The attorneys fees awarded to the wife in the amount of $20,000 of which $3324.71 were upheld in the appeals court.  The court decided to remand the remaining amount of $16,675.29 back to the district court for further analysis based on the fact that the court did not distinguish between fees incurred to enforce existing support orders (OSC hearing fees) and those incurred in establishing a new order (trial fees) in making the award.

Tags:  Child support, modifying orders, underemployment, substantial change, imputation.

Nebraska: Appeals Court held that the grandparent did have visitation rights. BY: Anndrea P.

Link for opinion: http://www.lexisnexis.com.proxy.msbcollege.edu/hottopics/lnacademic/

Title: Nebraska: Appeals Court held that the grandparent did have visitation rights.

The Nebraska Court of Appeals held in BEAL v. ENDSLEY 3 Neb.App. 589 (Court of Appeals of Nebraska 1995) (1) divorced mother of the children was properly made party, and (2) court order granting visitation rights required clarification.

The district granted the grandparents limited visitation rights of their maternal grandchildren, the grandparents appealed.

The maternal grandparents of children whose parents had divorced petitioned the court for visitation rights to the children. The maternal grandparents challenge the amount of time granted.

Bart and Jacquelyn are the divorced parents of Nicholle and Tyler. At the time of the hearing on the Beals' petition, Jacquelyn resided in the Denver, Colorado, area and Bart resided in Alliance, Nebraska. Nicholle and Tyler are in Bart's custody. The Beals filed their petition in Box Butte County, naming Bart as the sole defendant. The petition alleges that “since the divorce of the grandchildren's parents,” the Beals had attempted to maintain a relationship with the grandchildren, but that these attempts had been unsuccessful, the differences between the parties becoming irreconcilable. The Beals allege that they had established a significant beneficial relationship with their grandchildren and allege that due to Bart's actions, the grandchildren had been limited in their ability to see their grandparents and spend time with them.

Bart answered the Beals' petition, alleging an oral agreement between him and the Beals providing that they have visitation with the minor children “the last weekend of each month that had five weekends in the month” and alleging that Jacquelyn “has the children for visitation during the months of June, July and August which allows adequate time for visitation with Plaintiffs.

The court found that a reasonable balance was stricken between the goal of allowing the mother her weekends and allowing the grandparents' visitation during her custody and the father's custody periods as well. The court also found the fifth weekend provision was sufficient as it interpreted that provision in a manner under which more such weekends existed than under the grandparents' interpretation.

Labels for the post: child visitation, grandparents’ visitation

Oklahoma. BY: Shelia M.

After performing some research I found a case on child support modification in the state of Oklahoma. This case took place October 10, 2012 between Mark Anthony Scungio, Appellee, Margaret Sue Scungio, Appellant. The case is SCUNGIO v. SCUNGIO, 2012 OK 90, Case Number: 110251.

            The Oklahoma Department of Human Services filed a "Motion to Determine [Child Support] Arrearage" and a "Motion to Modify [reduce] Child Support" in its administrative court on behalf of the father of children receiving child support services. The mother moved to dismiss the motion to modify based on provisions of the parties' settlement agreement which had been incorporated into their divorce decree. The administrative law judge issued an order transferring the matter to the District Court of Oklahoma County and filed it in the divorce action. Mother moved to dismiss the motion to modify in the district court. The trial court, Honorable Lynne McGuire, denied the motion to dismiss, holding that the parties' agreement failed to demonstrate an intent to be free from the statutory provisions governing modification of child support. The order was certified for immediate appeal and this Court granted certiorari review of the certified interlocutory order.

            In September, 2001, Mark Anthony Scungio (Father) and Margaret Sue Scungio (Mother) adopted their three foster children, siblings, two of whom were special needs children with serious psychological disabilities. In July, 2004, in contemplation of divorce, the parties entered into a written agreement titled "Contractual Agreement - Separation and Parenting Plan to be incorporated into divorce decree." A divorce action was filed in 2007 and the document was incorporated into the divorce decree in October, 2009. Under the Agreement, Mother became the custodial parent and Father assumed support obligations.

The Agreement and the divorce decree recited facts that are key to understanding the parties' intent concerning child support at the time of contracting. The parties were married in California in 1988 and have resided in Oklahoma since 1991. In the 2004 Agreement, Father admitted he committed "emotional abuse to his wife and children such that irreconcilable differences have arisen between the parties in consequence of which the parties are now living separate and apart." Concerning child support, the Agreement provided: "Husband agrees that his emotional abuse toward Wife and children exacerbated the any [sic] mental illnesses preexisting in the children and as such he has an even greater responsibility to support them." The Agreement also acknowledged that each parent: agrees that he or she understands that due to the psychiatric disabilities of [two of the children], their disabilities may continue into adulthood, and that either or both may require substantial care and personal supervision and may not be capable of self-support and that under [the applicable Oklahoma Statutes] it is the parent's duty to maintain such person. If such is the case, the Mother agrees to provide the continued care beyond the age of majority and the Father agrees to provide continued child support as established above.         

The trial court denied Mother's motion to dismiss the request for modification of child support without addressing the procedural issue and holding that Mother "failed to demonstrate an intention by the parties to the Separation Agreement not to be subject to the statutory conditions for modification of child support." The trial court set the motion to modify child support for an evidentiary hearing. Father joined Mother in urging that the order be certified for interlocutory appeal. The order was certified and this Court granted certiorari review of the procedural issue as well as the substantive issue presented in this matter.

Husband agrees that [two of the children] were known to be emotionally disturbed prior to adoption and that they are currently psychiatrically disabled to the extent to which they require substantial care and personal supervision such that Wife is now unable to work. Furthermore, the many psychiatric professionals involved with [the two children] say that in the next few years their need for care and supervision may only increase. Therefore, Husband agrees to pay Wife the sum of $615.00 alimony per month by the first of each month in the form of an allotment into Wife's checking account commencing with the signing of this Contractual Agreement and each month thereafter until all three children are no longer dependent on Wife for her care and supervision that is to include adult children.

At such time as Husband retires from the military if the share of retirement pay due to Wife is greater than what would be due in alimony, then when retirement pay starts, support alimony will cease.

  The retirement pay is part of the property division and is not alimony. Wife accepts the payments specified in and to be made under this section in full satisfaction and settlement of all her right, claim and demand against Husband for support, maintenance and alimony excluding retirement pay which will continue permanently. Furthermore, if Husband chooses to forgo his federal pension and leave the military early, he agrees to provide the $615.00 alimony [which] will continue permanently. The amount of alimony was changed to $265.00 when the contract was executed in 2004.

Mother's request for attorney fees is beyond the scope of the two issues certified by the trial court for interlocutory review. It is therefore denied.