BelizeBreeze
Senior Member
IN THE CIRCUIT COURT OF ________COUNTY
STATE OF MISSOURI
[HIM]
Plaintiff,
VS.
[YOU],
Defendant.
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CASE #(your case number)
MOTION TO DISMISS AND SUPPORTING SUGGESTIONS
Defendant [your name] moves this Court to dismiss this matter as plaintiff [his name] has failed to state a claim upon which relief can be granted. Missouri Rule of Civil Procedure 55.27(a)(6). In support of their motion, Defendants offer the following:
Argument
Plaintiff filed his action against Defendant asserting the court, in the previous hearing during which joint custody was awarded to defendant, failed to make factual findings as to the issue of relocation. (Attachment 1)[this is your copy of the latest hearing where custody was changed].
The court is not required under Missouri Rule of Civil Procedure to dispose of an issue which is disposed of by statute. The issue of relocation is clearly disposed of under RSMO 452.377. (1-13)
Plaintiff further asserts against jurisdiction of the Court pursuant to 452.410 to modify a prior custody order without a proper finding of a change of circumstances of the child or his custodian. In fact, RSMO 452.410 specifically notes;
"Except as provided in subsection 2 of this section, the court shall not modify a prior custody decree unless it has jurisdiction under the provisions of section 452.450 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 his custodian and that the modification is necessary to serve the best interests of the child. "
Plaintiff makes no assertion as to fact(s) not in evidence before the court in the previous hearing nor a specific change in circumstances significant to interest the court.
Plaintiff further asserts the court failed to make specific finding(s) of fact regarding the previous modification of custody. Such finding(s) are disposed of by statute (RSMO 452.375 (4 & 5)). The statutory requirement that the court include a written finding of fact in such a determination, is relevant only in cases in which the court finds against joint custody. In the present motion, the Plaintiff argues against a decision to award Joint Custody or when the court has rejected a proposed custodial arrangement - flying in the face of the present statute.
RSMO 452.275 (6). If the parties have not agreed to a custodial arrangement, or the court determines such arrangement is not in the best interest of the child, the court shall include a written finding in the judgment or order based on the public policy in subsection 4 of this section and each of the factors listed in subdivisions (1) to (8) of subsection 2 of this section detailing the specific relevant factors that made a particular arrangement in the best interest of the child. If a proposed custodial arrangement is rejected by the court, the court shall include a written finding in the judgment or order detailing the specific relevant factors resulting in the rejection of such arrangement.
Plaintiff further asserts that defendant moved closer to Plaintiff and the minor child, where she moved in with and became pregnant by a man who had a pending assault charge.
Defendant agrees as to the facts, however, Defendant also asserts that said assault charge has been dismissed, a fact known to the Plaintiff, and finds no statutory requirement denying Defendant the right of relocation nor any statutory or prohibition placed upon her by the court, whereby she is limited as to with whom she resides.
Plaintiff further asserts that pursuant to RSMO 452.375 (3), the mere charge of assult of a party residing with Defendant, is not grounds to deny custodial rights nor does such charge fall within the discretion of the court in a custody proceeding under section 566.030, 566.032, 566.040, 566.060, 566.062, 566.064, 566.067, 566.068, 566.070, 566.083, 566.090, 566.100, 566.111, 566.151, 566.203, 566.206, 566.209, 566.212, or 566.215, 568.020, 568.060, 568.065, 568.080, 568.090, or 568.175RSMo.
Plaintiff further asserts Defendant has 'continued to visit Internet bulletin boards catering to adults, expressed an interest in bondage and posted pictures on the internet.' Plaintiff makes no assertion, nor was such presented to the court at the time of the previous hearing, that Defendant conducted such activities in the presence of the minor child, exposed such minor child to such activities nor any other substantitive claim as to such practice and its affect upon the minor child.
Plaintiff further fails to offer proof by which posting photos on the internet, expressing and "Interest" in a subject or visiting internet bulletin boards catering to 'adults' is in somehow harmful to the minor child, the nature of such activities or any substantative foundation that such was denied Defendant by the previous order of the court.
Defendant asserts Plaintiff is attempting, by motion, to resolve an issue which is a matter for the appeals court.
STATE OF MISSOURI
[HIM]
Plaintiff,
VS.
[YOU],
Defendant.
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)
)
)
)
)
CASE #(your case number)
MOTION TO DISMISS AND SUPPORTING SUGGESTIONS
Defendant [your name] moves this Court to dismiss this matter as plaintiff [his name] has failed to state a claim upon which relief can be granted. Missouri Rule of Civil Procedure 55.27(a)(6). In support of their motion, Defendants offer the following:
Argument
Plaintiff filed his action against Defendant asserting the court, in the previous hearing during which joint custody was awarded to defendant, failed to make factual findings as to the issue of relocation. (Attachment 1)[this is your copy of the latest hearing where custody was changed].
The court is not required under Missouri Rule of Civil Procedure to dispose of an issue which is disposed of by statute. The issue of relocation is clearly disposed of under RSMO 452.377. (1-13)
Plaintiff further asserts against jurisdiction of the Court pursuant to 452.410 to modify a prior custody order without a proper finding of a change of circumstances of the child or his custodian. In fact, RSMO 452.410 specifically notes;
"Except as provided in subsection 2 of this section, the court shall not modify a prior custody decree unless it has jurisdiction under the provisions of section 452.450 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 his custodian and that the modification is necessary to serve the best interests of the child. "
Plaintiff makes no assertion as to fact(s) not in evidence before the court in the previous hearing nor a specific change in circumstances significant to interest the court.
Plaintiff further asserts the court failed to make specific finding(s) of fact regarding the previous modification of custody. Such finding(s) are disposed of by statute (RSMO 452.375 (4 & 5)). The statutory requirement that the court include a written finding of fact in such a determination, is relevant only in cases in which the court finds against joint custody. In the present motion, the Plaintiff argues against a decision to award Joint Custody or when the court has rejected a proposed custodial arrangement - flying in the face of the present statute.
RSMO 452.275 (6). If the parties have not agreed to a custodial arrangement, or the court determines such arrangement is not in the best interest of the child, the court shall include a written finding in the judgment or order based on the public policy in subsection 4 of this section and each of the factors listed in subdivisions (1) to (8) of subsection 2 of this section detailing the specific relevant factors that made a particular arrangement in the best interest of the child. If a proposed custodial arrangement is rejected by the court, the court shall include a written finding in the judgment or order detailing the specific relevant factors resulting in the rejection of such arrangement.
Plaintiff further asserts that defendant moved closer to Plaintiff and the minor child, where she moved in with and became pregnant by a man who had a pending assault charge.
Defendant agrees as to the facts, however, Defendant also asserts that said assault charge has been dismissed, a fact known to the Plaintiff, and finds no statutory requirement denying Defendant the right of relocation nor any statutory or prohibition placed upon her by the court, whereby she is limited as to with whom she resides.
Plaintiff further asserts that pursuant to RSMO 452.375 (3), the mere charge of assult of a party residing with Defendant, is not grounds to deny custodial rights nor does such charge fall within the discretion of the court in a custody proceeding under section 566.030, 566.032, 566.040, 566.060, 566.062, 566.064, 566.067, 566.068, 566.070, 566.083, 566.090, 566.100, 566.111, 566.151, 566.203, 566.206, 566.209, 566.212, or 566.215, 568.020, 568.060, 568.065, 568.080, 568.090, or 568.175RSMo.
Plaintiff further asserts Defendant has 'continued to visit Internet bulletin boards catering to adults, expressed an interest in bondage and posted pictures on the internet.' Plaintiff makes no assertion, nor was such presented to the court at the time of the previous hearing, that Defendant conducted such activities in the presence of the minor child, exposed such minor child to such activities nor any other substantitive claim as to such practice and its affect upon the minor child.
Plaintiff further fails to offer proof by which posting photos on the internet, expressing and "Interest" in a subject or visiting internet bulletin boards catering to 'adults' is in somehow harmful to the minor child, the nature of such activities or any substantative foundation that such was denied Defendant by the previous order of the court.
Defendant asserts Plaintiff is attempting, by motion, to resolve an issue which is a matter for the appeals court.
Standard for Motion to Dismiss
A matter should be dismissed for failure to state a claim upon which relief can be granted when a plaintiff's petition cannot establish any grounds for relief. Prenger V. Baumhoer 914 S.W.2d 413, 415 (Mo.App.W.D. 1996). A petition is "reviewed in an almost academic manner, to determine if the facts alleged meet the elements of an alleged cause of action..." Nazeri v. Missouri Valley College, 860 S.W.2d 303, 306 (Mo.banc 1993). If all allegations in plaintiff's petition are deemed true, and still there is no legally cognizable claim, a mafler shall be dismissed.
A person cannot maintain a claim for that which, under the Revised Statutes of Missouri, they have no basis to maintain.
Plaintiff's petition, while difficult to understand, basically requests a retrial on matters already heard by the court and ruled upon, an action barred by res Judica.
Plaintiff's requests can be placed in two categories: (1) Civil liberties available to all citizens of the United States; and (2) Matters not controllable by the court. Even if Plaintiff's allegations are deemed true for purposes of this motion, he has not stated any basis for relief.
Therefore, the only thing this Court can do is dismiss Plaintiff's petition as he has failed to state a claim upon which relief can be granted.
WHEREFORE, Defendants respectlully request this Court to dismiss this matter as Plaintiff has failed to state a claim upon which relief can be granted.
[YOUR NAME]
[YOUR ADDRESS]
pro se
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing was mailed, postage prepaid, this day of [date], to:
[HIS NAME]
[HIS ADDRESS]
[sig of person serving motion]
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