Brown v. Brown, WD 74067.

Citation370 S.W.3d 684
Decision Date24 July 2012
Docket NumberNo. WD 74067.,WD 74067.
PartiesCalvin BROWN, Appellant, v. Debra BROWN, Respondent.
CourtCourt of Appeal of Missouri (US)

OPINION TEXT STARTS HERE

Howard L. Lotven, Kansas City, MO, for appellant.

Debra A. Brown, Respondent Pro Se, for respondent.

Before: JOSEPH M. ELLIS, P.J., and ALOK AHUJA and MARK D. PFEIFFER, JJ.

ALOK AHUJA, Judge.

Calvin Brown (Father) filed an affidavit for termination of his child-support obligation, claiming that his daughter Brittany Brown (Daughter) was more than eighteen years old, and that his child-support obligation was not extended by Daughter's enrollment at the University of Missouri–Kansas City (“UMKC”). The circuit court ruled that Father was obligated to pay Daughter support for three of the four college semesters at issue. Father appeals. Because we conclude that Father did not receive timely documentation of Daughter's grades for two of the challenged semesters, and because she failed to complete twelve credit hours of classes in the remaining semester, we reverse.

Factual Background

The marriage of Father and Debra Ann Brown (Mother) was dissolved on November 26, 1991. Mother was awarded custody of Daughter, who was born in March 1991; Father received visitation rights, and was ordered to pay $404.00 per month in child support. Father subsequently moved out of state; prior to the hearing in this case, he did not have contact with either Mother or Daughter for approximately fifteen years.

In 2009, Daughter graduated from high school, and enrolled as a full-time student at UMKC in the Fall. On August 11, 2009, Father requested documentation of Daughter's college enrollment from the Jackson County Prosecutor's Office (which then served as his point-of-contact for payment of child support); he ultimately received a copy of Daughter's student identification card and an unofficial schedule for the upcoming semester. On January 19, 2010, Father requested a transcript of Daughter's Fall 2009 grades and credits received, as well as a schedule for the Spring 2010 semester. On January 26, 2010 he received from the Clay County Prosecutor's Office (which had become Father's point-of-contact) a class schedule for the Spring 2010 semester. On July 1, 2010, Father received a copy of Daughter's Spring 2010 grades. The record contains no evidence that Father received any transcript of Daughter's grades for the Fall 2009 or Fall 2010 semesters, or a Spring 2011 class schedule, prior to the trial held on April 19, 2011; the trial court's judgment finds that he received that information only at trial.

On March 31, 2010, Father initiated the present proceedings by filing an affidavit for termination of his child support obligation. Mother filed an acknowledgment and answer to the affidavit, noting that Daughter was a full-time college student at UMKC, and that Father had been in contact with the Clay County Prosecutor's Office concerning Daughter's transcripts and grades.

The circuit court set the matter for hearing on October 19, 2010. The Post Office returned the notice of hearing mailed to Mother as undeliverable, prompting the court to continue the hearing until November 1. Although the notice for the November 1 hearing was also returned as undeliverable, the hearing was nonetheless held; Mother did not appear. On November 2, 2010, the circuit court entered an order terminating Father's child support obligations.

The circuit court thereafter granted Mother's motion to set aside the order based on her lack of notice of the November 1, 2010 hearing. A further hearing was held on April 19, 2011, at which Father, Mother, and Daughter testified, and various exhibits were admitted in evidence. In its Judgment entered on June 14, 2011, the circuit court found:

Father was obligated to pay support for the Fall 2009 semester (Daughter's first college semester) because he had received sufficient notice of Daughter's college enrollment in the form of a copy of her student identification card and unofficial Fall 2009 class schedule;

Father was obligated to pay support for Spring 2010 because he had received a Spring 2010 course schedule on January 26, 2010, at the beginning of the semester;

Father was not obligated to pay support for Fall 2010 because he had not received timely notice of the classes in which Daughter was enrolled for the Fall 2010 semester, or of her grades for courses taken in the Spring 2010 semester; and

Father was obligated to pay support for the Spring 2011 semester because he received Daughter's official transcript for all prior semesters, as well as her class schedule for the Spring 2011 semester, at trial on April 19, 2011.Father appeals the circuit court's judgment with respect to the three semesters for which he was held liable for child support.

Standard of Review

This court will review the judgment of the trial court under the standard of review applicable to any other court-tried case. The judgment will be affirmed unless it is not supported by substantial evidence, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

Peine v. Peine, 200 S.W.3d 567, 571 (Mo.App. W.D.2006) (other citation omitted).

Analysis1

Section 452.340.5 2 provides for the continuation of child support benefits past the age of eighteen if the child enrolls in an institution of vocational or higher education by the October following their graduation from high school and if certain attendance, academic and notice requirements are met.” Div. of Family Servs. ex rel. Lair v. Portincaso, 347 S.W.3d 596, 598 (Mo.App. S.D.2011) (citation and internal quotation marks omitted). Section 452.340 states in pertinent part:

If the child is enrolled in an institution of vocational or higher education not later than October first following graduation from a secondary school or completion of a graduation equivalence degree program and so long as the child enrolls for and completes at least twelve hours of credit each semester, not including the summer semester, at an institution of vocational or higher education and achieves grades sufficient to reenroll at such institution, the parental support obligation shall continue until the child completes his or her education, or until the child reaches the age of twenty-one, whichever first occurs. To remain eligible for such continued parental support, at the beginning of each semester the child shall submit to each parent a transcript or similar official document provided by the institution of vocational or higher education which includes the courses the child is enrolled in and has completed for each term, the grades and credits received for each such course, and an official document from the institution listing the courses which the child is enrolled in for the upcoming term and the number of credits for each such course.... When enrolled in at least twelve credit hours, if the child receives failing grades in half or more of his or her courseload in any one semester, payment of child support may be terminatedand shall not be eligible for reinstatement. Upon request for notification of the child's grades by the noncustodial parent, the child shall produce the required documents to the noncustodial parent within thirty days of receipt of grades from the education institution. If the child fails to produce the required documents, payment of child support may terminate without the accrual of any child support arrearage and shall not be eligible for reinstatement.... A child who is employed at least fifteen hours per week during the semester may take as few as nine credit hours per semester and remain eligible for child support so long as all other requirements of this subsection are complied with.

As Peine explains, under § 452.340.5,

during the first semester of college following graduation from high school, eligibility for continued child support may be established simply by proof of enrollment. In each subsequent semester, to remain eligible for child support, the student must provide both parents with a transcript or similar official document from the institution showing: (1) the courses enrolled in; (2) the courses completed for each semester; (3) the grades and credits received for each completed course; and (4) a transcript from the institution listing for the upcoming semester: (a) the courses enrolled in and (b) the number of credits for each course.

Peine v. Peine, 200 S.W.3d 567, 572 (Mo.App. W.D.2006) (citation and internal quotation marks omitted). In other words, for each semester after the first, the parent providing support must receive documentation showing the child's courses (enrolled and completed), grades and credits for the previous semester, as well as the courses in which the child is enrolled, and the credits for those courses, for the upcoming semester.

We liberally construe the provisions of section 452.340.5 to be consistent with the public policy of promoting the pursuit of higher education.” Portincaso, 347 S.W.3d at 599 (citations and quotation marks omitted). Father's claim that Child failed to comply with section 452.340.5 is ... an affirmative defense to the pleading.” Scott v. Clanton, 113 S.W.3d 207, 212 (Mo.App. S.D.2003). Case law teaches that Father, as the party seeking to abate his child support obligation, bears the burden of raising this defense. A party seeking abatement of his or her child support obligation based on § 452.340 provisions bears the burden of proof on that claim.” Id. at 211–12 (citation and internal quotation marks omitted); see also In re Marriage of Noland–Vance, 344 S.W.3d 233, 238 (Mo.App. S.D.2011); Wiest v. Wiest, 273 S.W.3d 545, 549 (Mo.App. S.D.2008).

“Prior case law had interpreted § 452.340.5 to mean that a failure to comply with the notification requirements merely abated the child support obligation for that semester.” Noland–Vance, 344 S.W.3d at 239. “In response to [these decisions], §...

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