Opinion
Nos. 24829, 24836 24840
June 19, 2003
Appeal from Circuit Court of Phelps County, Hon. Ralph J. Haslag.
Stephen W. Daniels, for Appellant.
Charles T. Rouse, for Respondent.
Kenneth L. Kubley (Father) appeals from a $21,649 judgment in favor of Molly M. Brooks (Mother) entered against him and Director of the Division of Child Support Enforcement, Department of Social Services, (DCSE), jointly and severally. DCSE cross-appeals. Mother also cross-appeals. We reverse in part.
Our review is governed by the oft-cited Murphy v. Carron , 536 S.W.2d 30 (Mo.banc 1976). The trial court's judgment will be sustained unless there is no substantial evidence to support it, unless it is against the weight of the evidence, unless it erroneously declares the law, or unless it erroneously applies the law. Earls v. Majestic Pointe, Ltd. , 949 S.W.2d 239, 246 (Mo.App. 1997). The trial court can believe all, part, or none of the testimony of any witness. Id.
Viewed in a light most favorable to the verdict, Mueller v. Simmons , 634 S.W.2d 533, 535 (Mo.App. 1982), the following facts were adduced. Mother and Father's marriage was dissolved in March of 1994. There were three children born of the marriage: Kenneth, born May 21, 1989, and twin boys, Jesse and Brady, born September 5, 1990. The March 1994 decree awarded joint legal custody of the minor children with Father having primary care and custody. At the time, Mother and Father lived about a mile apart and equally shared parenting responsibilities.
In April of 1994, Father requested that Mother give him primary legal and physical custody so that he would qualify for educational grants. He had recently been laid off and was planning on attending vocational school. He assured her that their visitation schedule would only change on paper and that she would still be able to see their sons half the time. Mother agreed to the modification, and their dissolution decree was modified in April of 1994 awarding Father primary legal and physical custody. The record is clear that the trial court believed that Father had ulterior motives in persuading Mother to give up joint custody. Both the original and modified decrees stated with regard to child support: "IT IS FURTHER ORDERED by the Court that both parties be required to support the minor children."
In April of 1994, Father applied for and received Aid to Families with Dependent Children (AFDC). As a condition of receiving AFDC, Father assigned his rights to collect child support to the Department of Social Services. DCSE then sought to collect child support from Mother. In August of 1994, Mother was served with a Notice and Finding of Financial Responsibility by DCSE. In its finding, DCSE alleged Mother owed $381 per month in child support, and it stated that an administrative order would be entered if she did not respond within twenty days. On September 29, 1994, no response having been received by Mother, DCSE issued an Administrative Default Order ordering Mother to pay $381 per month in child support and directing her to enroll the children in a group insurance plan, if available.
AFDC is now known as Temporary Assistance to Needy Families (TANF).
A second Administrative Default Order was obtained on December 12, 1996, modifying the child support order from $381 per month to $598 per month. Mother attended nursing school from August of 1994 to July of 1995. During that time she testified that she did not work. Between April of 1995 and October of 1996 several contempt orders were issued based on her non-payment of support. Mother was arrested and jailed for five days even though she failed to receive notice of a contempt hearing for non-payment. In September of 1998, the Phelps County Circuit Court issued an order modifying the child support to $500 per month. From September 29, 1994, through September 1, 1998, DCSE collected a total of $21,649 in child support payments from Mother.
Mother filed an action containing eight counts against Father and DCSE in April of 1998. Two counts against Father sought to modify custody, visitation, and child support. The remaining counts alleged various claims against Father and DCSE, including counts for fraud and for money had and received. Later, DCSE filed motions to dismiss based on jurisdiction, failure to state a claim, and that Mother was estopped from attacking the allegedly void child support orders.
After a bench trial, the trial court concluded that there was no court order for Mother to pay child support. It further concluded that the Administrative Default Order entered on September 29, 1994, was invalid because only a judge can enter a judgment. It held that under Palo v. Stangler , 943 S.W.2d 683 (Mo.App. 1997), Mother was entitled to recover the child support payments collected by DCSE. The trial court awarded Mother $21,649 against DCSE and Father, jointly and severally. The court rejected the remainder of her damage claims. All parties filed appeals.
Father's sole point on appeal alleges the trial court erred in holding him jointly and severally liable with DCSE because he had no control over the actions of DCSE. Mother's two points on appeal allege the trial court erred in not awarding her actual and punitive damages. DCSE raises three points on appeal. Its first point is dispositive as to its remaining points and Father's point on appeal. DCSE contends the trial court erred in entering judgment against it and holding that its "administrative modifications" were invalid because it had administrative authority to modify the decree under section 454.470.1. This statute, according to DCSE, allows administrative modifications in view of the trial court's finding that there was no order for Mother to pay child support in the Amended Decree of Dissolution of Marriage entered in 1994. We agree.
All statutory references are to RSMo 2000, unless otherwise indicated.
There are three statutory mechanisms from which DCSE may obtain or modify child support obligations from a non-custodial parent. First, section 454.470 provides the procedure to establish a support obligation where no support order has previously been entered. Second, section 454.496 sets forth the procedure to modify child support where a judicial support order exists. Section 454.496.5 places the burden on the moving party to prove that a modification is appropriate under the provision of section 452.370. Section 452.370 requires that "any judgment respecting . . . support may be modified only upon a showing of changed circumstances so substantial and continuing as to make the terms unreasonable." Third, section 454.500 provides the procedure to modify a support obligation where an administrative support order has been entered pursuant to sections 454.470 and 454.475.
Here, DCSE brought its action under sections 454.470 and 454.475 seeking to establish a support obligation on the basis that no prior "court order" had been entered regarding Mother's obligation to support their children. A "court order" is defined in section 454.460(2) as "any judgment, decree, or order of any court which orders payment of a set or determinable amount of support money."
The amended dissolution decree entered in April of 1994 simply stated: "IT IS FURTHER ORDERED by the Court that both parties be required to support the minor children." This order did not order a payment of a "set and determinable amount of support money." Thus, it did not qualify as a "court order" under the definition provided in section 454.460(2). The trial court correctly concluded that "[t]here was no order for [Mother] to pay child support in the amended Decree of Dissolution of Marriage entered in 1994."
Mother incorrectly argues that a court order regarding child support did exist and, therefore, DCSE was wrong in obtaining an Administrative Default Order via section 454.470. She maintains that because there was a court order, DCSE was obligated to follow the statutory mechanism set forth in section 454.496, which requires that a support order may be modified only upon a showing of changed circumstances.
In support of her argument, she relies on Binns v. Missouri Div. Of Child Support Enforcement , 1 S.W.3d 544, 547 (Mo.App. 1999). In Binns , mother filed an appeal when the trial court reversed DCSE's decision, which ordered father to pay child support. On appeal, mother argued that there was no court order of support under Missouri law because the trial court found that "neither party is obligated to the other as and for child support." The Binns court stated that "'the award of no child support constitutes a set and determinable amount' for the purposes of determining whether there was a previous 'court order.'" Id. (quoting Shockley v. Div. Of Child Support Enforcement , 980 S.W.2d 173, 175 (Mo.App. 1998). Thus, the Binns court found that a "court order" existed, and DCSE had no jurisdiction to enter a new administrative support order pursuant to section 454.470.
Mother's reliance on Binns is misplaced because in Binns and Shockley the non-custodial parents were ordered to pay nothing. Here, the trial court's dissolution decree ordered Mother and Father to support the children but failed to establish a set and determinable amount of child support money. Thus, Mother and Father's dissolution decree was not a "court order" as the term is used in section 454.470. The issue of child support remains open to administrative action under section 454.470 when the trial court fails to fix "an amount of money for [child] support." Dye v. Div. of Child Support Enforcement , 811 S.W.2d 355, 360 (Mo.banc 1991).
In addition to Binns , Mother also relies on Garcia-Huerta v. Garcia and DCSE , 2003 WL 271366 (Mo.App.W.D. 2003). As of the writing of this opinion, no mandate has been issued in Garcia . However, that case is factually unlike the instant case assuming a mandate is later issued in Garcia . There, a child support order against father was entered for $267 when custody of the couple's son was awarded to mother in the dissolution of marriage action. Later, the son, at age 15, left mother's home and moved in with his sister who subsequently received aid from the Department of Social Services on the son's behalf. After an administrative hearing, the Division ordered mother to pay child support pursuant to section 454.470. The Western District of this Court reversed, holding that section 454.470.1 bars DCSE from establishing an administrative support order when a prior child support order exists regardless of whether the prior court order was against a custodial or non-custodial parent. In the instant case, no prior court order fixed any amount of child support money against either parent. Therefore, Garcia is not controlling in this case.
The trial court further concluded that the Administrative Default Order entered on September 29, 1994, was void because the order was not entered by a judge. The Supreme Court of Missouri addressed the issue of whether child support orders entered by an administrative hearing officer of DCSE are constitutionally valid in State ex rel Hilburn v. Staeden , 91 S.W.3d 607 (Mo.banc 2002). In Hilburn , the attorney general appealed as an intervenor after a circuit court held that section 454.490's provision allowing administrative orders to be entered with "'all the force, effect, and attributes of a docketed order or decree of the circuit court'" was unconstitutional because such orders are not signed by a judge. Id. at 608. In reversing, the Hilburn Court found that "chapter 454 provides numerous safeguards on administratively entered support orders that guarantee the right to have child support matters ultimately determined by a court of competent jurisdiction." Id. at 609-10. Hilburn held that "the administrative order derives the qualities of a circuit court judgment, but it does so only to the extent necessary to permit its enforcement by the court." Id. at 610. Because section 454.490 merely allows a court to enforce an administrative decision, it does not place the exclusive powers of the judiciary, that is, the ability to render judgments and conduct judicial review, in the hands of the executive. Id. at 612. Thus, section 454.490's "provision allowing administrative orders to be entered with 'all the force, effect, and attributes of a docketed order or decree of the circuit court' is not unconstitutional." Id. Thus, Hilburn teaches that an administratively entered support order, such as here, does not require a judge's signature.
The trial court did not have the benefit of this decision when it entered its judgment.
Because there was no "court order" ordering payment of a set or determinable amount of support money, DCSE had authority to pursue child support from Mother through an administrative action under sections 454.470 and 454.475. Further, DCSE had the authority to administratively enter a child support order against Mother and collect money from Mother in accordance with that order even though not signed by a judge.
In awarding Mother a judgment of $21,649 against Father and DCSE, the trial court relied on Palo v. Stangler , 943 S.W.2d 683 (Mo.App. 1997), for the proposition that it was inequitable for Mother to pay child support under what it determined to be a void order. In Palo , the DCSE appealed when the trial court awarded father the sum of $2,755 for reimbursement of court-ordered child support collected by the DCSE. The DCSE had obtained an order withholding monies for child support from father's paycheck, and it had collected more money than father allegedly owed. Father sought reimbursement through an action for money had and received. "An action for money had and received is proper where the defendant received money from the plaintiff under circumstances that in equity and good conscience call for defendant to pay it to plaintiff." Palo , 943 S.W.2d at 685. Based on this theory, the trial court awarded father a sum of money that exceeded the amount he allegedly owed in child support.
We believe the trial court's reliance on Palo was incorrect. Certainly, "[a] parent 'has a common law duty to support his child' and 'has no fundamental right to avoid that duty.'" State ex rel. Div. of Family Services v. Summerford , 75 S.W.3d 353, 358 (Mo.App. 2002) (quoting Dycus v. Cross , 869 S.W.2d 745, 750 (Mo.banc 1994). Here, DCSE obtained a valid support order against Mother. Mother made no allegation that DCSE had collected more money than she owed in child support. Rather, Mother incorrectly maintained that she owed no support because the support order was illegally obtained. Because the support order against Mother was legally obtained, the trial court erred in finding she owed no child support. DCSE's first point on appeal is meritorious. Therefore, we need not address DCSE's other points.
In view of our decision that DCSE was authorized to enter a child support order against Mother, we hold that Father's point is well taken. As noted, Father had primary legal and physical custody of the children, which entitled him to seek support from Mother. Under these circumstances, her child support payments only discharged her parental duty set by a legally obtained administrative support order.
Mother raises two points on appeal. We first observe that Mother's argument following both points on appeal violates Rule 84.04(e). This rule requires that the argument shall contain "a concise statement of the applicable standard of review for each claim of error." We find no statement of the applicable standard of review for any of Mother's claims of error. "Violations of the rules of appellate procedure constitute grounds for dismissal of an appeal." Jones v. Wolff , 887 S.W.2d 806, 808 (Mo.App. 1994).
Rule references are to Missouri Court Rules (2003).
Her two points on appeal read: I. The trial court committed error by not awarding actual and punitive damages to [Mother] against [Father] because it found that he fraudulently obtained a modification of their dissolution decree and as a result of that fraud, [Mother] was required to pay child support wrongfully, lost the society of her children that she reasonably expected, and was the subject of judicial action which subjected her to humiliation and placed her in circumstances which would be emotionally stressful for any reasonable person, but the court did not award her any damages, evidently because it believed recovery was barred by a concept it called 'intervening factors,' which concept is inapplicable in this case, and so erroneously applied the law. II. The court erred in applying what it called the "case law as to intervening factors" to prevent recovery by [Mother] against DCSE for the breach of its contractual obligation to correctly use its statutory framework which breach not only allows return of money had and received, but also other foreseeable damages, because the court found the actions of DCSE to be unlawful, found that the money taken wrongfully should be returned to [Mother] and described in its judgment much of the damage done to [Mother] and thus had found all the elements necessary for recovery but did not award damages because of its erroneous belief.
Mother's argument under her points relied on fails to cite appropriate legal authority or explain the reasons for her failure to do so. "'Failure to cite relevant authority supporting the point or to explain the failure to do so preserves nothing for review.'" Patterson v. Waterman , 96 S.W.3d 177, 179 (Mo.App. 2003) (quoting Kent v. Charlie Chicken, II, Inc. , 972 S.W.2d 513, 516 (Mo.App. 1998)). Under Point I, Mother cites cases holding fraud is actionable in Missouri. However, she cites no supporting authority for her assertion that her recovery was not barred by "intervening factors." Further, an appellant must develop the argument part of his or her brief. An argument is not properly before an appellate court if it merely makes bald assertions of general principles of law and never develops how such principles mandate reversal in the factual context of the particular case. State v. Kitson , 817 S.W.2d 594, 597 (Mo.App. 1991). Mother's argument never develops the allegation of error raised in her point relied on. "The failure to develop a point relied on in the argument portion of a brief renders that point abandoned." Jansen v. Westrich , 95 S.W.3d 214, 218 (Mo.App. 2003).
Under Point II, Mother does cite three cases concerning recovery of actual damages from breach of contract. But again she fails to cite any authority supporting her allegation that the trial court erred in finding that "intervening factors" prevented her from recovering from DCSE. Further, Mother cites no authority that DCSE had a "contractual obligation to correctly use its statutory framework" to obtain a support order against Mother. Mother's failure to cite any relevant legal authority in her argument section of her brief or explain her failure to do so is in violation of Rule 84.04(d). As noted above, Mother's three citations to breach of contract cases do not address the issue raised in her point relied on. "Under such circumstances, an appellate court is justified in considering the argument abandoned." Tapley v. Shelter Ins. Co. , 91 S.W.3d 755, 764 (Mo.App. 2002). For these reasons, we dismiss Mother's appeal.
In summary, DCSE had the authority to administratively enter a child support order against Mother and collect money from Mother in accordance with that order. The judgment against Father and DCSE is reversed. The judgment is affirmed in all other respects.
REVERSED IN PART, AFFIRMED IN PART.
Garrison, J., and Barney, J., concur.