Boland v. State Dept. of Social Services, Div. of Child Support Enforcement

• Court: Missouri Court of Appeals
• Writing for the Court: Before FENNER, C.J., P.J., BERREY, J. and TURNAGE; FENNER
• Citation: Boland v. State Dept. of Social Services, Div. of Child Support Enforcement, 910 S.W.2d 754 (Mo. App. 1995)
• Decision Date: 31 October 1995
• Docket Number: No. WD,WD
• Parties: Robert W. BOLAND, Jr., Respondent, v. STATE of Missouri, DEPARTMENT OF SOCIAL SERVICES, DIVISION OF CHILD SUPPORT ENFORCEMENT, et al., Appellant. 50543.

Page 754

910 S.W.2d 754

Robert W. BOLAND, Jr., Respondent, v. STATE of Missouri, DEPARTMENT OF SOCIAL SERVICES, DIVISION OF CHILD SUPPORT ENFORCEMENT, et al., Appellant.

No. WD 50543.

Missouri Court of Appeals Western District.

Oct. 31, 1995.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Dec. 5, 1995.

Roya R. Hough, Jefferson City, for appellant.

Lori J. Levine, Jefferson City, for respondent.

Before FENNER, C.J., P.J., BERREY, J. and TURNAGE, Senior Judge.

FENNER, Chief Judge.

The Department of Social Services, Division of Child Support Enforcement appeals from the trial court's reversal of its decision requiring Robert W. Boland, Jr., to pay $42,000 of past due child support. The judgment of the trial court is affirmed in part and reversed and remanded in part.

Robert Boland and Carolyn Daugherty were divorced on July 21, 1975. The divorce decree granted custody of the parties' two children to Ms. Daugherty and ordered Mr. Boland to pay child support of $175 per month per child.

In February 1975, Ms. Daugherty and the children moved to her parents' home in Cincinnati, Ohio. Mr. Boland visited the children twice after their move to Ohio. He saw them once during Christmas 1975 in Missouri. He also traveled to Cincinnati to visit the children in June 1976. In February 1979, Ms. Daugherty remarried, changed her name, and moved with the children from her parents' home. She did not inform Mr. Boland of her marriage, name change, or change of address. He has not seen the children since the June 1976 visit.

On January 23, 1992, the Missouri Division of Child Support Enforcement (Division) issued an Administrative Order on Existing Order finding that Mr. Boland owed $42,700 in past due child support and directing him to pay current support of $350 per month and an additional $175 per month towards the child support arrearage. The Division also issued an Order for Employer to Withhold and Pay Over to Mr. Boland's employer. Mr. Boland requested an administrative hearing and posted a $1,575 bond representing three months of child support which suspended the withholding order pending the outcome of the administrative hearing.

The hearing was held on May 26, 1992, by telephone conference to determine whether Mr. Boland owed child support arrearage and, if so, the amount of the arrearage. The Division submitted the divorce decree of the parties issued by the Circuit Court of Jackson County, Missouri, a Child Support Debt Computation Worksheet, and an Affidavit of Arrears signed by Ms. Daugherty.

Mr. Boland did not testify at the hearing. Instead, his testimony was contained in a brief which was stipulated to by the Division. Mr. Boland stated he was told by Ms. Daugherty that she did not want him to attempt to contact or visit the children again. He claimed that repeated requests for visitation with the children were denied by Ms. Daugherty. Additionally, he stated that he continued to mail his child support payments to the home of Ms. Daugherty's parents until April 1980 when his April and May checks were returned marked "unable to forward." In his brief, Mr. Boland argued waiver by acquiescence as a defense to the action for child support arrearages. He argued that he forfeited his relationship with his children in exchange for Mr. Daugherty's acquiescence to his nonpayment of support.

Ms. Daugherty testified at the hearing that Mr. Boland never requested visitation or attempted communication with the children and that she never refused it. She stated that Mr. Boland knew how to reach her and the children through her parents whose address had not changed. Furthermore, she testified that she did not receive any child support payments after April 1978.

In its findings of fact and conclusions of law, the hearing officer determined that competent and substantial evidence established that Mr. Boland had accrued a child support obligation of $42,000 from January 23, 1982, through January 23, 1992. ¹ It found that there was insufficient evidence to establish that visitation had been denied by Ms. Daugherty or that the parties agreed that Mr. Boland would forego visitation. The defense of waiver by acquiescence, therefore, did not apply in this case.

On June 29, 1992, Mr. Boland filed a Petition for Judicial Review and Application for Temporary Restraining Order in the Circuit Court of Cole County, Missouri. The trial court stayed the administrative order and wage garnishment on July 24, 1992, and the trial was held on October 23, 1994. During trial, Mr. Boland and Ms. Daugherty testified.

In addition to the evidence presented at the administrative hearing, Ms. Daugherty testified regarding the emancipation of one child. She testified that the child was enrolled in college in October 1991 but did not attend classes. Furthermore, she stated that the child was married in March 1993. She admitted that she continued to receive support checks from Mr. Boland for the child after she was emancipated.

Mr. Boland's testimony also reflected his testimony at the administrative hearing. In addition, he testified that he did nothing to secret himself from Ms. Daugherty and the children. He admitted that he made no further attempts to contact Ms. Daugherty or the children after April 1980. Mr. Boland also testified that he had not been informed that his daughter was no longer attending college and had married until he received Ms. Daugherty's answer to interrogatories in August 1994 before trial. He testified that he had paid $5,048.65 in child support for his daughter since she became emancipated.

In its Findings of Fact, the trial court adopted Mr. Boland's statement of the facts of the case. It found that Ms. Daugherty told Mr. Boland not to contact the children again and that she did not provide Mr. Boland a way to contact her or the children after her remarriage. It further found that Ms. Daugherty waited over twelve years to seek enforcement of Mr. Boland's child support obligation and that it would be unjust and inequitable enrichment to permit her to collect it now.

In its Conclusions of Law, the trial court accepted Mr. Boland's contention that the administrative hearing officer could not hear or consider the equitable defense of waiver by acquiescence. Instead, the trial court determined that the defense was properly before it and was applicable to bar recovery of past due child support in this case. In conclusion, the trial court found that Mr. Boland was not obligated to pay the past due support, but did have an obligation to continue to support his second child until she was emancipated. The court further determined that Ms. Daugherty must reimburse Mr. Boland for overpayment regarding the emancipated child. The Division appeals from this judgment.

I.

In its first point on appeal, the Division claims the trial court erred in finding that the Division had no authority to hear the equitable defense of waiver by acquiescence. Mr. Boland argues that section 454.476, RSMo 1994 ² limits the defenses that may be asserted at an administrative hearing to contest the Division's order and withholding, and that the hearing officer's determination regarding the equitable defense of waiver by acquiescence was beyond the scope of the Division's statutory authority.

Section 454.476.4 provides:

At such hearing, the certified copy of the court order and the sworn or certified statement of arrearages shall constitute prima facie evidence that the director's order is valid and enforceable. Once the prima facie case is established, the obligor may assert only mistake of fact as a defense. Mistake of fact shall mean an error in the amount of arrearages or an error as to the identity of the obligor. The obligor shall have the burden of proof as to these issues.

§ 454.476.4.

At the hearing, a certified copy of the divorce decree was produced along with a sworn statement of the alleged arrearages. These documents established the prima facie case against Mr. Boland pursuant to section 454.476.4. Mr. Boland contends that once the prima facie case was established, the only defense available to him was mistake of fact regarding the amount of arrearages or his identity. Additionally, he asserts that the defense regarding the amount of arrearages is limited only to question discrepancies in the amounts paid by the obligor.

Mr. Boland relies on Dye v. Division of Child Support Enforcement, Dep't of Social Services, 811 S.W.2d 355 (Mo. banc 1991), for his contention that the hearing officer did not have the authority to consider the equitable defense of waiver by acquiescence. In Dye, the constitutionality of the statutory procedure for an administrative hearing was contested. Id. at 359. In discussing whether the constitutional issue was properly raised below, the Missouri Supreme Court found that neither the division nor the hearing officer had the authority to resolve the constitutional issue. Id. at 357. The present case did not involve a constitutional question and is clearly distinguishable from Dye.

Waiver by acquiescence has often been raised as a defense to an action brought to recover past due child support at the administrative hearing level. See Siegfried v. Larue, 891 S.W.2d 556 (Mo.App.1995); Ogden v. Henry, 872 S.W.2d 608 (Mo.App.1994); Mora v. Mora, 861 S.W.2d 226 (Mo.App.1993); State ex rel. Bramlet v. Owsley, 834 S.W.2d 868 (Mo.App.1992). A parent claiming waiver by acquiescence is essentially claiming an error in the amount of arrearages. He is arguing that he owes less than judicially ordered or nothing by virtue of the other parent's acquiescence in his nonpayment. To hold that the equitable defense of waiver by acquiescence cannot be raised and decided at the agency hearing level would render the administrative procedure process inefficient and meaningless in many instances.

Furthermore, Mr. Boland raised the defense of waiver by acquiescence in his brief to the hearing officer, and she...