Caster v. State

• Decision Date: 29 June 2000
• Citation: 20 S.W.3d 603
• Parties: (Mo.App. S.D. 2000) Kathy Castor, Appellant, v. State of Missouri, Department of Social Services, Division of Child Support Enforcement and Robert Castor, Respondents. 22881 0
• Court: Missouri Court of Appeals

20 S.W.3d 603 (Mo.App. S.D. 2000)

Kathy Castor, Appellant, v. State of Missouri, Department of Social Services, Division of Child Support Enforcement and Robert Castor, Respondents.

22881

Missouri Court of Appeals Southern District

06/29/2000

Appeal From: Circuit Court of Butler County, Hon. William J. Clarkson

Counsel for Appellant: John M. Albright

Counsel for Respondent: Richard Whiffen and Bradley S. Hinkle

Opinion Summary: None

Crow, P.J., and Shrum, J., concur.

John E. Parrish, Judge

Kathy Castor (mother) appeals a modification judgment ordering her to pay Robert Castor (father) child support in the amount of $490 per month. This court affirms.

The parties' marriage was dissolved May 25, 1993. Father was awarded primary physical custody of their three children whose dates of birth were July 23, 1973, October 6, 1976, and April 2, 1980. Mother had visitation rights "at all reasonable and proper times." The parties had joint legal custody. The dissolution judgment awarded no child support.Father's Motion to Modify

Father filed the motion to modify that is the subject of this appeal August 7, 1997. He sought child support for the parties' youngest child, Jami Lynn Castor, who remained in his custody. He alleged that increases in the respective parties' incomes constituted a continuing and substantial change of circumstance so that failure to provide child support, as theretofore ordered, was unreasonable and failed to comply with child support guidelines. The modification judgment was entered February 17, 1999. The trial court found there had been "a continuing and substantial change of circumstance, making the terms of all prior Order [sic] effecting [sic] payment of child support unreasonable."¹The Administrative Review

On July 10, 1998, the Missouri Division of Child Support Enforcement ("the division") entered an administrative order modifying child support effective June 1, 1998. It ordered mother to pay child support in the amount of $378 per month. The division sought approval of its order by the Circuit Court of Butler County as required by section 454.496.1, .6 and .7.²

Mother sought judicial review of the order as permitted by section 454.496.6 by filing a petition for review pursuant to section 536.110.1, RSMo 1994. On October 27, 1998, the trial court entered judgment affirming the division's order and approving its modification of child support. See section 536.140.5, RSMo 1994, and section 454.496.6.The Appeal

Mother filed a notice of appeal February 24, 1999. The form mother used directed that a copy of the judgment appealed be attached to it. The copy of the judgment that is attached to the notice of appeal is a copy of the February 17, 1999, Judgment and Decree of Modification. The judgment recites that a decree of dissolution was entered May 25, 1993; that it was amended September 17, 1993, "and further modified by an Administrative Order, effective June 1, 1998." It recites that the order that became effective June 1, 1998, required mother to pay child support in the amount of $378 per month. The judgment modifies the child support by increasing it to $490 per month.

Mother presents four points on appeal. The first three points are directed to the trial court's judgment affirming the division's administrative order. The remaining point is directed to the modification judgment.

The division filed a motion to dismiss mother's appeal of the judgment that affirmed its administrative order. The motion asserts that mother did not timely file a notice of appeal with respect to that judgment. The motion was taken with the case. For the reasons that follow, the motion is granted.

Mother argues that the notice of appeal she filed February 24, 1999, after the modification judgment was entered, gives this court jurisdiction to review the judgment that affirmed the division's administrative order. She contends this is so "because an appeal may not be filed until all the issues among all the parties have been disposed and, [she] filed [her] Notice of Appeal after the last of the pending motions was decided and prior to the expiration for the time of the appeal."

Mother's argument fails to recognize that a motion to modify is an independent civil action. See Hayes v. Hayes, 363 Mo. 583, 252 S.W.2d 323, 327 (1952); James v. James, 853 S.W.2d 425, 431 (Mo.App. 1993); Smith v. Smith, 435 S.W.2d 684, 688 (Mo.App. 1968). It is not a mere adjunct to the dissolution proceeding. Id. at 688. Nor is it part of an administrative review that is pursued as prescribed by section 454.496.

Mother's action for review of the division's administrative order was governed by sections 536.100 to 536.140, RSMo 1994. Judgment was rendered, pursuant to section 536.140.6, RSMo 1994, affirming the division's administrative order. It was appealable "as in other civil cases." Section 536.140.6, RSMo 1994. Mother could have appealed the judgment by filing a notice of appeal within ten days after the judgment became final. Rule 81.04(a).

The judgment affirming the division's administrative order was entered October 27, 1998. Rule 74.01(a). It became final November 27, 1998, upon expiration of 30 days after its entry. Rule 81.05(a)(1). In order to appeal, a notice of appeal would have had to be filed not later than December 7, 1998. The only notice of appeal...