Case Summary for November 12, 2008

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Case Summary for November 12, 2008

THE FOLLOWING DOCKET SUMMARIES ARE PREPARED BY THE COURT'S STAFF FOR THE INTEREST AND CONVENIENCE OF THE READER. THE SUMMARIES MAY NOT INCLUDE ALL ISSUES PENDING BEFORE THE COURT AND DO NOT REFLECT ANY OPINION OF THE COURT ON THE MERITS OF A CASE. COPIES OF ALL BRIEFS FILED WITH THE COURT ARE AVAILABLE AT THE SUPREME COURT BUILDING, COURT EN BANC DIVISION. SUMMARIES ARE UNOFFICIAL AND SHOULD NOT BE QUOTED OR CITED.

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The attachments below may not reflect all briefs filed with the Court, the complete filing or the format of the original filing. Appendices and other attachments generally will not be posted here. To see what documents have been filed in a particular case, visit Case.net.

DOCKET SUMMARIES
SUPREME COURT OF MISSOURI

9 a.m. Wednesday, November 12, 2008

__________________________________________________________________________________________

SC89118
Susan M. Cannon (Randall) v. James R. Cannon
Cole County
Constitutional validity of child custody statute
Listen to the oral argument:

Randall was represented during argument by William P. Nacy of Hanrahan Trapp PC in Jefferson City; and Cannon was represented by Clifford W. Cornell of Brown, Cornell & Farrow LLC in Jefferson City and Sara C. Michael of Hendren Andrae LLC in Jefferson City.

Susan Randall and James Cannon were married in June 1995. In January 2001, Cannon was convicted of raping Randall's daughter, and Randall and Cannon's marriage was dissolved. Cannon was granted supervised visitation of his and Randall's other two children. In September 2006, the child custody guidelines of section 452.375, RSMo, were amended to preclude unsupervised contact or custody to a parent who has been found guilty of certain offenses where the victim is a child, including Cannon's convictions. That same month, Cannon sought to modify the dissolution decree so that he could have unsupervised visitation. Randall argued such visitation was prohibited pursuant to section 452.375. In February 2008, the trial court found that section 452.375 was unconstitutional as to Cannon as having a retrospective effect and ordered joint legal and physical custody. Randall appeals.

Randall argues section 452.375 does not deprive Cannon of any vested right because it was in effect prior to the time Cannon filed his motion to modify. She contends the award of joint legal and physical custody is not supported by substantial evidence and is against the weight of the evidence. Randall asserts Cannon abandoned his claim for joint legal and physical custody by admitting that the only issue in the case was whether he would have unsupervised visitation. She further argues there was no evidence the parties had a commonality of beliefs concerning parental decisions and that the parties had the ability to function as a parental unit in making such decisions. Randall contends each parties' expert witnesses presented uncontroverted testimony Cannon is either an incurable pedophile or child molester and that he poses an absolute danger to the children if he were allowed custody or unsupervised contact.

Cannon responds section 452.375 is unconstitutional as to him in that it operates retrospectively, denies his due process and violates his right to equal protection. He contends that at the time he pleaded guilty to the applicable crimes, section 452.375 allowed him to pursue unsupervised contact with his children and allowed him an opportunity to present evidence as to his fitness as a parent. Cannon argues that after the amendments he was treated differently as similarly situated persons. He asserts the evidence presented in support of his motion to modify was substantial, more credible and outweighed Randall's evidence. Cannon argues that he never abandoned his claim for joint legal and physical custody and that he clearly articulated he would work with Randall to co-parent the children. He contends that his expert showed he was unlikelihood to reoffend and that he was no threat of harm to the children.

SC89404
J.C.W. and T.D.W., Minors, by Their Next Friend, Kelly K. Webb v. Jason L. Wyciskalla
Jefferson County
Modification of custody, visitation and child support
Listen to the oral argument:

Mother was represented during argument by Jonathan D. Marks of The Marks Law Firm LLC in Creve Coeur; and Father was represented by Lawrence G. Gillespie of Gillespie, Hetlage & Coughlin LLC in Clayton.

A circuit court declared Father the natural father of two minor children in May 2003. Mother was awarded sole legal and physical custody, but Father received a schedule of visitation. He was ordered to pay child support in the amount of $1,090 per month and retroactive child support in the amount of more than $10,900. The following year, the parties entered a consent modification gradually increasing the temporary custody and visitation. In July 2004, Father moved to again modify the child support order, seeking to reduce current and back child support. Mother moved for summary judgment arguing there has been no substantial and continuing change in circumstances in the three months between the prior modification and the filing of the motion. The circuit court sustained Mother's motion and dismissed Father's motion to modify with prejudice. In July 2005, Mother requested to relocate to California. Two months later, Father moved to modify claiming substantial and continuing changed circumstances. In January 2007, the circuit court issued a judgment of modification giving the parties joint legal and joint physical custody with Mother as residential custodian. Neither party was to pay child support and the court erased any back child support owed. Mother appeals.

Mother argues pursuant to section 452.455, the trial court lacked jurisdiction to entertain Father's motion to modify. She contends Father had past due child support for more than $10,000 and failed to post a bond with his motion, as required by section 452.455, depriving the court of jurisdiction. Mother asserts the modification was prohibited by the doctrine of res judicata and that all of the claims had been previously adjudicated. She argues that there was no evidence supporting there had been a substantial change in circumstances and that the parties lacked the requisite commonality of beliefs and ability to function as a parental unit to make joint decisions as required by section 452.375, so that joint custody was not an appropriate disposition. Mother contends there was no evidence that increasing Father's physical custody was in the best interest of the children as required by section 452.410, RSMo. She further argues that the trial court was not permitted to reduce the past child support in an amount in excess of $2,400.

Father responds the circuit court had subject matter jurisdiction. He contends Mother waived any lack of personal jurisdiction when she notified the circuit court of her intent to relocate pursuant to section 452.377, RSMo. Father asserts there was significant evidence supporting a modification including Mother's failure to comply with section 452.377 with regard to her move and her failure to abide by the terms of the custody decree with regard to exchanges, communication between the parties and contact with the children. He argues the trial court properly determined he overpaid child support during the proceedings and offset his child support arrearage using the circuit court's Form 14 calculation.

SC89370
Gilbert L. Alderson, et al. v. State of Missouri, et al., County Employees' Retirement Fund, et al.
Jefferson and Cole counties
Constitutional validity to state retirement exclusions
Listen to the oral argument:

The employees were represented during argument by Theodore R. Allen Jr., chief attorney for the 23rd Judicial Circuit juvenile officer in Hillsboro; and the retirement fund was represented by Edward F. Downey of Bryan Cave LLC in Jefferson City.

Gilbert Alderson, Joseph Polette and Theodore Allen, Jr., are all state employees appointed by the Jefferson County Circuit Court. They all sought to be included in, and were denied membership to, the Jefferson County Employee's Retirement Fund. In October 2006, the three employees sought declaratory judgment that sections 50.1000, 50.1010 and 211.393, RSMo, denying them membership and benefits of the county retirement fund based on their appointment by the circuit court violated the equal protection clauses of the United States and Missouri constitutions. The statutory language in chapter 50 specifically excludes them from the fund, but they contend that such exclusion violates the equal protection clause of the state and federal constitutions, the separation of powers clause of the Missouri constitution, and the special laws prohibited of article III, section 40. The employees moved for summary judgment. The circuit court overruled their motion and found the statutes were valid. The employees appeal.

The employees argue sections 50.1000(8), 50.1010, 211.393.1(1) and (5), RSMo, and 16 CSR 50-2-010(1)(L) denied them equal protection of the laws and that the classifications in the statutes and administrative rule are arbitrary and do not rationally relate to any legitimate state interest. They contend the sections violate the separation of powers because the circuit court, as an arm of the judicial branch, is the appointing and supervising authority for the employees. The employees argue the laws do not apply to all employees equally and there is not a substantial justification for making a distinction between different classes of employees, violating the special laws provision of the state constitution. They assert that their claims were not barred by laches (not asserting a right within the proper time frame creates a presumption a party has abandoned the right).

The retirement fund responds the statutes and regulation do not violate the employees' right to equal protection under the laws in that there is a reasonable basis for their exclusion from the fund. It contends the employees, and others similarly situated, are not eligible for membership because their employment is subject to the direction and control of the circuit court, not the county or the state, and, therefore, the employees do not meet the definition of an "employee" of a county for the purpose of the county employment retirement fund. It contends the state has a legitimate interest in excluding employees from county retirement funds when the employees are not hired and fired by and subject to the direction and control of a county official. The retirement fund asserts the fund's principal source of funding is limited and not tied to the number of participants. It contends to allow the members meaningful pensions, the state had to limit who may participate. The retirement fund further responds these provisions apply to all employees within a properly defined class and are not special laws prohibited by article III, section 40 of the Missouri Constitution. It asserts the employees are able to be members in other state retirement plans such as MOSERS and LAGERS. In addition, the retirement fund argues, if the laws are invalid, the employees claims are barred by the doctrine of laches because their delay in bringing this action was unreasonable and allowing them to proceed would cause undue harm to the retirement fund and its existing members.

SC89442
In re: Roy King, Jr.
Jackson County
Attorney discipline
Listen to the oral argument:

Alan D. Pratzel, the chief disciplinary counsel in Jefferson City, represented his own office during argument, and King, of Kansas City, also represented himself during argument.

Roy King, Jr., was admitted to practice law in Missouri in September 1985 and practiced in Kansas City. In December 2003, Shelby Phenix was in a car accident in Kansas City. He and King have known each other for 15 years. In March 2004, Phenix hired King to represent him after he filed in small claims court to recover damages from his car accident. Phenix paid King a flat fee of $850, and King told him to not appear for the hearing on the small claims petition because King would re-file the claim at the circuit court. King filed in circuit court in April 2004. Between April and October, Phenix and King have conflicting information about the amount of contact, whether King kept Phenix updated on his case, and the reason why King moved to withdraw from Phenix's case. In November 2004, Phenix and King got into a physical altercation at a mutual friend's house. Phenix applied for and received an order of protection against King. He filed a complaint about King to the Office of Chief Disciplinary Counsel. In May 2007, the disciplinary panel held an evidentiary hearing and found King violated Rule 4-1.1 in failing to provide competent representation to Phenix, Rule 4-1.4 in failing to keep Phenix reasonably informed about the status of his lawsuit and failed to promptly comply with reasonable requests for information from Phenix as to the status of the lawsuit; Rule 4-8.4(d) in using profane language and in fighting with Phenix at a public social gathering constituting conduct prejudicial to the administration of justice. The panel recommended King be suspended from the practice of law for one year and in lieu of the suspension, be placed on probation for one year under conditions specified by the panel. The disciplinary counsel seeks to enforce the panel's recommendation.

The disciplinary counsel argues King violated the rules of professional conduct by engaging in conduct prejudicial to the administration of justice, by failing to reasonably communicate with this client and by failing to diligently handle the matter for which he was retained. He contends this Court should suspend King's law license, stay the suspension and place King on probation consistent with the recommendation and terms set forth in the disciplinary hearing panel's decision.

King responds he did not violate any rules of professional conduct in representing Phenix. He contends he communicated with Phenix and diligently handled the matter for which he was retained. King argues this Court should dismiss all of the alleged violations with prejudice.