Family Law

John W. Dennis, Jr., Esquire

Child custody judgment set aside because custody routine the parties had used pendente lite led the father to believe a judgment consistent with that schedule would be entered. Lewis v. Lewis, No. 31663 (Mo. App. S.D., August 23, 2012), Rahmeyer, J.

This was an action for dissolution of marriage in which a default was taken against the Father. He sought to have the judgment set aside, but the trial court denied his request. The Parenting Plan entered gave the parties joint legal and physical custody with the cornerstone physical custody of the Father being every other weekend. However, he had to work on Friday, Saturday and Sunday in alternating months. During the pendency of the case, his work schedule had been accommodated. He was led to believe a Parenting Plan would be set in similar fashion. The Parenting Plan of the default judgment effectively eliminated his weekend time for six months of the year unless the Mother acceded to a variance therefrom.

Soon after the entry of the default the Mother refused to work around the Father’s work schedule. The trial court noted that the Father could always seek a modification of the judgment if this persisted. The Father’s request for the judgment to be set aside was denied. Father’s appeal followed.

Held: Reversed.  
“A work schedule that does not allow for meaningful parental contact six months of the year constitutes a meritorious defense.”

Moreover, the parties had a previous agreement under which they were working, thereby causing the Father to assume the judgment would be consistent with it. “If the (trial) court’s assessment of the situation indicated that, as a matter of law, agreements between the parties was not a valid reason to default in dissolution, then we disagree. In this case, where the parties had voluntarily maintained a custody schedule and a child support schedule, where Father was not served with a different Parenting Plan that would have put him on notice that the parties did not have an agreement, where Mother knew that Father received his mail at a post office box and not the address where he was physically served, where the motion to set aside the default judgment was entered, and where the entered judgment differed significantly from the status quo, Father’s behavior in failing to file an answer was not intentionally or recklessly designed to impede the judicial process.”

Modifiable maintenance granted at divorce is terminated when all of the reasons it was awarded have changed. Reiter v. Reiter, No.74350 (Mo. App. W.D., August 7, 2012), Mitchell, J.

An action to terminate modifiable maintenance was granted. The case is fact-specific, but deserves reporting simply because of the dearth of appellate cases in which modifiable maintenance is terminated.

At the time of the parties’ divorce (dates not noted in opinion, but approximately 2003-2004), the Husband ran a business which earned him approximately $190,000 annually. The Wife had worked for the business, but that ended with their separation. Her stated needs at divorce were $2,490 per month. She intended to go to school full-time and become self-sufficient thereafter. She requested and obtained $2,000 per month in modifiable maintenance.

Fast forward to 2010 at which time the Wife had graduated from college and gotten a job with the IRS earning approximately $34,000 annually. She had also inherited a half-interest in a piece of real estate worth $63,000 and her residence was paid for and worth $200,000. The Husband filed a motion to terminate the maintenance. His request was granted, and this appeal followed.

Held: Affirmed.
  “In determining whether an increase in income renders the prior decree unreasonable, the court may consider a number of factors, including the purpose of the award of maintenance and the current financial needs of the receiving spouse.” Here the Wife’s increased income (from -0- to $3,000 per month), the attainment of her college degree, the acquisition of full-time employment and ownerships of substantial unencumbered assets all indicated her ability to support herself without the need for maintenance. These were reasons sufficient for the trial court to exercise the discretion to conclude the monthly maintenance was now unreasonable.