Courts Bulletin : April Family Law Cases

Burden of proof of stalking for order of protection. Thomas Schwalm, Respondent v. Lori Schwalm, Appellant, No. 87829 (Mo. App. E.D., March 20, 2007), Richter, P.J.
This case is instructional to the extent it discusses the failure of proof that required the reversal of the judgment for an order of protection.
Husband sought an order of protection where the evidence showed that wife knocked on husband's door multiple times, once blocked husband's vehicle in a parking lot, followed him to work on occasion and once approached him at a gas station. That sounds like stalking, except for one crucial element. “While the statutory definition of stalking requires alarm (in the victim), a plaintiff is required to do more than simply assert a bare answer of 'yes' when asked if he was alarmed. A plaintiff must show that a defendant's conduct caused him fear of danger of physical harm as stated in the statutory definition of alarm. See Section 455.010(10)(c).”
Note: A similar case was just reported for the same proposition: Clark v. Wuebbeling, No. 88413 (Mo. App. E.D., March 20, 2007), opinion also by Judge Richter.

Identical twins yield identical paternity tests. State of Missouri, ex rel., Department of Social Services, Division of Child Support Enforcement, and Holly Marie Adams, Petitioners/Respondents v. Raymon Miller, Respondent/Appellant and Richard Miller, Respondent, No. 27188 (Mo. App. S.D., March 14, 2007), Garrison, J.
This was a paternity action in which twin brothers were having sexual relations with the eventual mother of a child for whom child support was sought. The brother named as the father appealed on the basis that the burden of proof of his paternity was not met because of the results of DNA testing of both brothers. The results were identical.
Held: Affirmed. When competing tests for paternity show two potential fathers, the court must look to the nongenetic evidence to determine if there is a preponderance of evidence of the identity of the father. Here, the mother's testimony established that appellant was the only one of the two who could be the father.

Disqualification of guardian ad litem in modification action. State of Missouri, ex rel. Larry Dreppard, Relator, v. Hon. Phillip Jones, Com., and Hon. John Essner, Respondents, No. 89214 (Mo. App. E.D., March 6, 2007), Norton, P.J.
A motion to modify was filed and the trial court re-appointed the guardian ad litem (“GAL”) from the dissolution of marriage action. Within 10 days of that appointment, father asked for the disqualification of the GAL. The request was denied. Father now seeks a writ of mandamus compelling the trial court to grant the motion to disqualify.
Held: Writ made absolute. Section 452.423.1, RSMo provides that each party has a right to one disqualification of an appointed GAL if requested in a timely manner (within 10 days of the appointment). The trial court viewed the motion to modify as a continuation of the original dissolution action. However, the opinion notes “… that by 're-appointing' the GAL following the motion to modify, the court recognized that the modification proceeding was independent from the original dissolution proceeding. Otherwise, no appointment would have been necessary.” Since the motion to modify is deemed by the rules to be an independent proceeding, the parties had a right to disqualify the GAL.

Pension benefits and disability payments. Sandra Ray Coffman, Respondent v. Elvin Cale Coffman, Appellant, No. 66204 (Mo. App. W.D., February 27, 2007), Ellis, J.
In this dissolution of marriage action, the parties were married in 1982. At that time, husband had worked for General Motors for approximately 4 ½ years. He continued that employment until December 2002 for a total of 24 years. Earlier that year he had been admitted to a psychiatric hospital and his father was named as his guardian and conservator by the probate court. He was 45 years old as of his last day at General Motors. He had received disability payment from General Motors and eventually qualified for Social Security disability benefits, too. He qualified and was ultimately receiving disability benefits from General Motors. The trial court determined that all but the pre-marital years of credited service were marital property having been accumulated during the marriage. It was divided equally between the parties. Husband appealed.
Held: Reversed. The court of appeals determined from the evidence that the only reason the husband had begun receiving benefit payments was because of his disability. Otherwise, he would not be eligible for pension benefits until reaching retirement age under the plan. Further, the terms of the General Motor benefits provided that husband would receive the disability payments based on his years of service until either he reached age 65 (retirement age) or became capable of gainful employment. After age 65 the benefits would revert to being pension benefits in character. Thus, the benefits he was and would later be eligible for were partially marital and non-marital in character. The opinion notes that disability benefits are not marital property “… if they serve as a substitute for earnings lost due to the recipient's inability to work. In re: Marriage of Thomas, 21 S.W.3d 168,173 (Mo. App. S.D. 2000).”
The case was remanded for a determination of which portion of the marital portion of the benefits will be awarded between the parties and to award husband the non-marital portion thereof.

Order of protection between brothers-in-law. Terry Pratt, Respondent, v. Chuck Lasley, Appellant, No. 65992 (Mo. App. W.D., January 16, 2007), Ellis, J.
The two parties are brothers-in-law because they are each married to women who are sisters. Respondent was found to have assaulted the Petitioner and an order of protection was entered. The Respondent appealed asserting that the definition of family member in the statute (§455.020.1) did not apply since there is no blood relation between them.
Held: Affirmed. “Had the legislature intended to limit the statute's applicability to those 'of kin' or related by cosanguinity or direct affinity as proposed by (respondent), the legislature would have used those terms in the statute.
“The plain and ordinary meaning of the phrase 'related by marriage' includes one's brother-in-law.”

Source for Post: The Missouri Bar