Section 26.7 Hearing and Burden of Proof

• Library: Family Law Deskbook and 2014 Supp

4. (§26.7) Hearing and Burden of Proof

Modifications are heard in the same manner as original proceedings, requiring presentation of evidence to the court without a jury. Proper notice of the hearing must be given. The party who filed the modification has the burden of proof and goes first with the evidence. Sifers v. Sifers, 544 S.W.2d 269 (Mo. App. W.D. 1976).

In noncustody modifications, such as child support and maintenance matters, the movant must convince the court by a preponderance of the credible evidence that a change of circumstances has occurred so substantial and continuing as to make the terms of the original decree unreasonable. Weber v. Weber, 804 S.W.2d 756 (Mo. App. E.D. 1990); King v. King, 865 S.W.2d 403 (Mo. App. E.D. 1993).

In custody matters, § 452.410, RSMo 2000, speaks to a change of circumstances and states that the court shall not modify a prior custody decree unless it has jurisdiction and it finds, upon the basis of facts that have arisen since the prior decree or that were unknown to the court at the time of the prior decree, that a change has occurred in the circumstances of the child or the child’s custodian and the modification is necessary to serve the best interests of the child. Id. This is different than the burden in noncustody modifications. Smith v. Smith, 435 S.W.2d 684 (Mo. App. E.D. 1968). Counsel should understand that the court is going to focus on the best interest of the child and not the best interest of the parents. For example, a judge can rule that a moving party has demonstrated significant changes in circumstances to justify modification of custody but refuse to order modification because the judge believes that transfer of custody is not in the child’s best interest.

In Margolin v. Margolin, 796 S.W.2d 38, 43 (Mo. App. W.D. 1990), the court noted:

To advance the legislative policy, where only a short time elapsed between the motion to modify and the decree or prior modification of the decree, a court will require both allegation and proof “of some extraordinary change in circumstance,” a change that is more than an “expected and predictable” sequel of the conditions that prompted the recent order or modification.

In areas excluding custody, a stipulation to modify may be executed by the parties, often avoiding the need for a hearing. It is imperative that the stipulation allege the specific facts giving rise to the modification. The order should also set forth appropriate findings. Typically, most...