Section 18.10 Pleadings and Practice

• Library: Family Law Deskbook and 2014 Supp

III. (§18.10) Pleadings and Practice

A request for temporary relief under §§ 452.315 and 452.380, RSMo 2000, must be made by filing a motion and an affidavit setting forth the specific facts that support the motion. While it is not specifically delineated in either statute whether it is necessary to file two separate documents, In re Marriage ofGillett, 762 S.W.2d 525 (Mo. App. S.D. 1988), makes it clear that a verified motion is sufficient. It is good practice to name the single document a “Motion and Affidavit” so that it is clear to the court and the opponent that counsel has met the statutory requirements. A sample pleading merging the motion and the affidavit into a single document is set out in §18.14 below.

In a request for temporary child support or maintenance, the pleading must specifically outline the amounts sought, as well as the factual basis for the relief requested. Section 452.315.1. Failure of the motion and affidavit to set forth the specific amounts requested does not divest the court of jurisdiction over the motion, but the defending party’s recourse is to request a more specific statement. Gillett, 762 S.W.2d at 528. The purpose of the requirement for the moving party to set forth the specific amounts requested is to permit the other party to prepare a defense, and therefore, the court can require the requesting party to provide a more specific statement in the motion and affidavit. Hoskins v. Hoskins, 833 S.W.2d 20 (Mo. App. E.D. 1992). While the dissolution petition may make a more general request for child support, such as “in conformance with Rule 88.01 and applicable guidelines,” in light of the above holdings, counsel would be wise to always set forth the specific amount, whether or not it is based on the Form 14 calculation.

The contents of a party’s verified income and expense statement and proposed Form 14 are significant in determining the amounts requested, and it is advisable to use the calculations achieved from these forms to demonstrate the need for the amounts requested. Many courts have local rules that mandate the filing of these documents before or at the time of the PDL (pendente lite) hearing, and the courts will consider these forms in determining a temporary support order, especially when the order is entered on the affidavit and without hearing as authorized by statute. In Dardick v. Dardick, 661 S.W.2d 538, 541 (Mo. App. E.D. 1983), for example, the appellate court noted that the wife’s verified income and...