Family Law

John W. Dennis, Jr., Esquire

In a petition to set aside judgment of paternity and support under § 210.854, the trial court has no authority to require the state to pay for the paternity tests. State ex rel. Department of Social Services, Family Support Division v. Honorable Patrick W. Campbell, No. 75408 (Mo. App. W.D., November 27, 2012), Martin, J.

Fields filed a petition in forma pauperis to set aside a judgment of paternity and support against him. Section 210.854 authorizes such an action. The trial court ordered the State to advance the costs for paternity testing. In response, the State sought a writ of prohibition on the basis that the trial court had no authority to require the State to pay for the tests. A preliminary writ was issued.

The attorney for Fields argued the case in support of the trial court’s order, and suggested that since Fields was indigent and allowed to proceed in forma pauperis the costs of paternity tests were tantamount to fees, taxes or charges from which the litigant was exempt.

Held: The court of appeals made the writ of prohibition absolute.

“It is immaterial whether Fields has been permitted to pursue his § 210.854 action ‘in forma pauperis,’ or whether the cost of genetic paternity testing is a fee, tax, or charge within the scope of § 510.040.1. Even if we accept, arguendo, both premises are true respondent fails to identify the source of his authority to shift Fields’ statutory obligation to pay for § 210.854.3 genetic paternity testing to the State.”

The opinion notes that there is a distinction between actions to establish paternity under the Missouri Uniform Parentage Act and actions to set aside judgments of paternity and support. The provisions related to assessment of costs for testing to establish paternity are separate from the action authorized by § 210.854.

Contract to alter visitation rights granted in divorce judgment with a provision for payment of monies for attorney’s fees in the event of a breach of the contract does not make the attorney a third-party beneficiary of the agreement because the promise to follow the terms of the divorce decree does not amount to mutual consideration required to establish a contract. Miller v. Dombek, No. 74604 (Mo. App. W.D., November 20, 2012), Mitchell, J.

Attorney Miller sued Dombeck for attorney’s fees incurred in pursuing a modification action for Dombeck’s ex-wife. Dombeck and his ex-wife were divorced in 2009. They had one child, and Dombeck was awarded specific visitation rights. Subsequently, Dombeck remarried a person who accused him of an act of domestic violence. He was charged with third-degree domestic assault.

When Dombeck’s ex-wife found out about the charges, she informed Dombeck she would not be allowing him visitation with the child and she filed a motion for modification of the parenting plan. A component of Dombeck’s visitation was from 9:00 a.m. on December 25, 2010, until 8:00 p.m. on January 1, 2011. When he arrived to get the child, his ex-wife would not relinquish custody until he signed an agreement to only exercise supervised visitation for Christmas Day in lieu of that ordered by the original decree. That agreement provided that the ex-wife was allowing him visitation in lieu of no time at all. It further provided that Dombeck would pay the fees attorney Miller incurred if she had to pursue legal action because Dombeck violated his promise to agree to supervised visitation.

Dombeck signed the agreement so that he could see their child. However, he did not fulfill his promise to accede to supervised visitation, and he exercised his visitation per the original decree.

Attorney Miller sued for the fees he incurred on behalf of the ex-wife. Although he won in small claims court, a trial de novo in circuit court resulted in judgment in favor of Dombeck. Attorney Miller appealed.

Held: Affirmed.
The ex-wife’s promise to allow Dombeck visitation, which the original judgment already allowed him, was no promise at all. "A promise to do that which one party is already legally obligated to do cannot serve as consideration for a contract." Wages v. Young, 261 S.W. 3d 711, 717 (Mo. App. W.D. 1998). Because (ex-wife) was legally obligated to provide Dombeck visitation on December 25, 2010, her agreement to allow that visitation with restrictions not authorized by any court cannot serve as consideration. Thus, the … agreement was not a valid contract, and whether Miller was a third-party beneficiary is irrelevant.”