Family Law

Editor:
John W. Dennis, Jr., Esquire

Potential pathway to third party custody by non-relative; claim that biological parents are unfit, unable or unwilling to be child’s custodian and the best interests of the child would be served by awarding third party custody. In the Matter of T.Q.L., M.M.A. v. L.L., No. 92442, (Mo. banc, December 18, 2012), Russell, J.

M.M.A. is not the biological father of T.Q.L., although for several years he thought he was. He supported the child and maintained a continuing relationship with him. “Over the years, (M.M.A.) acted as child’s father, taking an active role in his life.” In the process of establishing paternity, the truth was determined, although the actual father has never been known.

Regardless of the foregoing, M.M.A. sought custody rights. His claim was summarily dismissed, but on appeal, the case was remanded to allow him to file an amended pleading. That pleading alleged in many specific respects that the biological mother is unfit, and that the unknown biological father is unfit. Further, M.M.A. alleged that he could better serve the best interests of the child as a third party alternative to parental custody. That petition was also dismissed, and M.M.A. appealed once again.

Held: Reversed.
It is important to note that the appellate opinion repeatedly states that the review is based on the assumption that the allegations of the claim are true in assessing whether it should nevertheless be dismissed. The standard for review of summary dismissal of a pleading is strictly based on whether the allegations, if true, meet the elements necessary to state a claim. It makes no judgment of the credibility of the claims made in the pleadings.

Section 452.375.5(5)(a) sets forth the factors to be considered in awarding custody when third party custody is in play. In short, M.M.A. jumped through all of those hoops, and the truth or falsity of those allegations will be for the trial court to determine as to whether this non-biological claimant has made a case. “[T]he petition will be reinstated.”


A general order of child support for two children was entered. Later, it was determined that the younger child was not the biological child of the payor. Child support arrearages accruing after the emancipation of the older child, if any, need to be stricken. This case is very fact specific. R.B. v. S.W. and C.B. and State of Missouri, No. 98326 (Mo. App. E.D., December 26, 2012), Ahrens, J.

The parties were divorced in 1989 and the father was ordered to pay $494.00 per month for two children. In 2012, the father won a case that determined he was not the biological father of the younger child. He had asked the court to terminate child support for the younger child and reduce his child support arrearage after the older child became emancipated. The trial court did not alter the child support arrearage. The father appealed.

Held: Reversed and remanded.


“[U]nder the particular facts of this case, (the older child) attained his majority on January 18, 2001, and all child support that accrued thereafter could only have been for (the younger child).”

Section 210.854.4, RSMo, provides for a challenge to paternity and child support. The only reason that a child support judgment is disproven is whether the circumstances make it in the best interests of the parties not to do so. The trial court merely denied the father relief from the support arrearage, even though it determined that he was not the biological father of the younger child. The case was remanded for the trial court to terminate father’s obligation for child support accruing after the emancipation of his biological child or determine that the best interests of the parties require otherwise.


Duty of guardian ad litem under § 452.423 ends at trial and does not continue on appeal. Therefore, it was error to award guardian ad litem fees on appeal. Brown v. Brown, No. 98353 (Mo. App. E.D., December 26, 2012), Odenwald, J.

The guardian ad litem sought and obtained an award of fees she incurred in preparing an appellate brief in response to father’s appeal. The father appealed on the basis that the court had no statutory authority to award fees to a guardian ad litem on appeal.

Held: Reversed.


This is a matter of first impression in Missouri. The straightforward answer is that § 452.423, RSMo, does not provide for a guardian ad litem fees on appeal.

Concurring opinion: “I separately write in the hope that the Supreme Court or the legislature will authorize the participation of guardian ad litem in our appellate courts.”


Ex-husband’s bankruptcy discharge of debts he was ordered to pay in marital settlement agreement incorporated in judgment of dissolution of marriage did not absolve him of obligation nor exempt him from action of contempt. Henderson v. Henderson, No. 98357 (Mo. App. E.D., December 26, 2012)

The parties were divorced in 2010. They entered into an agreement which set forth their respective obligations to pay certain debts of the marriage. Throughout the agreement, there was language that the agreement to pay said debts and hold the other harmless thereon was not dischargeable in bankruptcy. Nevertheless, the ex-husband sought the discharge of his portion of those obligations in a Chapter 7 bankruptcy filing in 2011. His petition for discharge was granted, and the ex-wife had not objected to same in bankruptcy court.

Thereafter, ex-wife filed an action against ex-husband for a contempt citation related to the debts he got discharged. The ex-husband argued that she waived her right to object by failing to file anything in the bankruptcy proceeding. The trial court only required the ex-husband to pay a portion of the debt in question. It determined that only a portion of the debt was in the nature of a domestic obligation non-dischargeable in bankruptcy.

However, it held the ex-husband responsible for a portion of the discharged debt. Both parties appealed.

Held: Reversed.


Under current Chapter 7 bankruptcy law (11 U.S.C. § 523 (a)), “‘all debts owed to a spouse, former spouse, or child of a debtor are non-dischargeable if incurred in the course of a divorce proceeding, notwithstanding the debtor’s ability to pay the debt or the relative benefits and detriments to the parties.’ In re: Tarone, 434 B.R. 41, 48 (Bankr. E.D. N.Y. 2010).”

Thus, a property settlement obligation encompassed by 11 U.S.C. § 523 (a)(15) is non-dischargeable. The trial court erred in finding the debt partially dischargeable.