Covert v. Dir., Mo. Dep't of Soc. Servs.

• Decision Date: 15 November 2022
• Docket Number: ED109952
• Parties: CHARLES S. COVERT, Appellant, v. DIRECTOR, MISSOURI DEPARTMENT OF SOCIAL SERVICES, FAMILY SUPPORT DIVISION, Respondent.
• Court: Missouri Court of Appeals

CHARLES S. COVERT, Appellant, v. DIRECTOR, MISSOURI DEPARTMENT OF SOCIAL SERVICES, FAMILY SUPPORT DIVISION, Respondent.

No. ED109952

Court of Appeals of Missouri, Eastern District, Fourth Division

November 15, 2022

Appeal from the Circuit Court of Lincoln County 21L6-CC00030 Honorable James D. Beck

Kelly C. Broniec, P.J., Philip M. Hess, J., and James M. Dowd, J.

James M Dowd, Judge

Introduction

This administrative matter was brought by the Director of the Family Support Division ("the Division")^[1] under section 454.1005^[2] to suspend appellant Charles S. Covert's driver's license based on its assertion that Covert was in arrears on his child and spousal support obligations. Covert challenged the action and a hearing took place before an administrative hearing officer. In an April 2020 decision, the hearing officer ruled in Covert's favor that his license was not subject to suspension because the Division failed to prove he was in arrears above the minimum thresholds set forth in section 454.1005. Five months later, the Division requested that the hearing officer vacate the Aprii decision. The Division claimed that the hearing officer's failure to consider certain evidence the Division had submitted which it claimed proved Covert's arrearage met the threshold, resulted in the decision being issued "without affording the parties due process" as that concept is used in section 454.475.7(3). The hearing officer agreed and on February 18, 2021, vacated the April 2020 decision and issued a new decision on September 13, 2021 this time finding that Covert's child support arrearage was sufficient to warrant the suspension of his driver's license under section 454.1005.

Covert has challenged both the order to vacate and the new decision suspending his license, but it is only his petition for judicial review challenging the February 2021 order to vacate the original April 2020 decision that is at issue in this appeal,^[3] The Division moved to dismiss his petition alleging the trial court lacked the authority under section 536.100 to review the order to vacate because it was not a final decision in a contested case. The court agreed and dismissed without prejudice Covert's petition for judicial review of the February 2021 order to vacate.

While Covert brings four points on appeal, his fourth point is dispositive.^[4] That point raises the questions before us of (1) whether the February 2021 order vacating the April 2020 decision was void, (2) whether the court had the authority to review the order to vacate, and (3) whether the court erred in failing to do so when otherwise judicial review of the void order to vacate would be foreclosed.

We agree with Covert because the hearing officer's order to vacate the April 2020 decision was void ah initio in that the hearing officer (a) had no statutory authority under section 454.1005 to do so because the statutory provision the hearing officer relied on, section 454.475.7(3), is inapplicable to section 454.1005 license suspension proceedings, and (b) the April 2020 decision was final well before the Division filed its motion to vacate.

Therefore we reverse and remand with instructions to the circuit court to enter an order denying the Division's motion to dismiss and setting aside the hearing officer's February 18, 2021 order to vacate as void ab initio.

Background

Ever since a California state court in 1989 ordered Covert to pay child and spousal support, Covert has had several encounters with the Division regarding his child and spousal support obligations. The current dispute arose in June 2019, when the Division sent Covert a "Notice of Intent to Suspend License(s)" alleging he was behind on those payments. Covert timely requested a hearing which was held on November 1, 2019. The hearing officer heard testimony and evidence from both parties to determine whether Covert's license should be suspended because he had arrearages in excess of section 454.1005's threshold of at least three months of payments or $2,500, whichever is less. The testimony offered by the Division included specific references from a 2015 order issued by the Superior Court of Riverside County, California, which had purportedly recalculated Covert's arrearages including interest at $39,966.20 in child support and $250,868.34 in spousal support. The Division did not have a hard copy of the Riverside County order to give to the hearing officer, however. The hearing officer left the record open to allow the parties to submit additional materials which included a copy of that order which the Division submitted in mid-December 2019.

On April 29, 2020, the hearing officer issued the decision finding that the Division did not have the authority to suspend Covert's driver's license because it had not established that Covert's arrearages exceeded section 454.1005's threshold. The decision stated that Covert's obligation to pay for child support had ended in April 2006 when his son was emancipated, and he actually had a credit on his account. The decision incorrectly stated that the Division had failed to submit the copy of the Riverside County order.

The April 2020 decision included a "Rights to Judicial Review" notice that stated: "The law provides that any party who is adversely affected by this Decision has the right to file a petition for judicial review in the appropriate court within thirty days of the date of mailing the Decision." The Division failed to do so.

Five months later, on September 28, 2020, the Division moved pursuant to section 454.475.7(3) to vacate the April 2020 decision in light of the statement in the Decision that the Division had not submitted a copy of the Riverside County order, when in fact the Division had submitted that order. The Division claimed that the Riverside County order showed that Covert still owed arrearages above the minimum threshold to warrant suspension of his license, which warranted setting aside the April 2020 decision based on section 454.475.7(3)'s language that it was issued "without affording the parties due process." On February 18, 2021, a hearing officer agreed and vacated the April 2020 decision and ordered a new decision to be issued.^[5] The order to vacate also contained the "Rights to Judicial Review" notice which alerted Covert of his "right to file a petition for judicial review in the appropriate court within thirty days," Covert timely filed his petition for judicial review in the Circuit Court of Lincoln County. The Division moved to dismiss the petition, alleging that the court lacked the authority to review the order because it was not final judgment and because it was not an order in a contested case. After hearing the motion to dismiss on August 6, 2021, the court dismissed the petition without prejudice. This appeal follows.

Standard of Review

"Our standard of review when considering a trial court's grant of a motion to dismiss is de novo." Smith v. City of St. Louis, 573 S.W.3d 705, 713 (Mo. App. E.D. 2019). "In determining the appropriateness of the trial court's dismissal of a petition, an appellate court reviews the grounds raised in the defendant's motion to dismiss." Ferrill v. Yeung, 577 S.W.3d 818, 820 (Mo. App. E.D. 2019). We accept the plaintiff s allegations as true and view them in the light most favorable to the plaintiff. Smith, 573 S.W.3d at 713. Moreover, when the circuit court does not address specified reasons for dismissing a petition, this Court presumes the circuit court's judgment is based on one of the reasons stated in the motion to dismiss. Avery Contracting, LLC v. Niehaus, 492 S.W.3d 159, 162 (Mo.banc 2016). If the motion to dismiss cannot be supported by any grounds alleged in the motion, this Court will reverse the trial court decision. McDonald v. Chamber of Commerce of Independence, 581 S.W.3d 110, 114 (Mo, App. W.D. 2019). However, we review questions of law and questions of statutory interpretation de novo. Forbes v. Allison, 646 S.W.3d 733, 738 (Mo. App. S.D. 2022). Dickemann v. Costco Wholesale Corporation, 550 S.W.3d 65, 68 (Mo.banc 2018).

Discussion

I.

Inasmuch as the judgment appealed from in this case is a dismissal without prejudice, we must first address sua sponte whether we have jurisdiction to hear this appeal. Ford Motor Credit Co. v. Updegraff, 218 S.W.3d 617, 620 (Mo App. W.D. 2007). In general, a dismissal without prejudice is not a final, appealable judgment. Adem v. Des Peres Hospital, Inc., 515 S.W.3d 810, 814 (Mo. App. E.D. 2017). When a case is dismissed without prejudice, a plaintiff can typically "cure the dismissal by filing another suit in the same court. ..." Ampleman v. Schweiss, 969 S.W.2d 862, 863 (Mo. App. E.D. 1998) (quoting Vemor v. Missouri Bd. Of Probation and Parole, 934 S.W.2d 13, 14 (Mo. App. W.D. 1996)). However, a dismissal without prejudice may be appealable if it has the "practical effect of terminating the litigation in the form in which it is cast." Fitzpatrick v. Hannibal Regional Hosp., 922 S.W.2d 840, 842 (Mo. App. E.D. 1996).

These principles apply in administrative cases. City of Richmond v. Suddarth, 120 S.W.3d 212, 214-15 (Mo. App. W.D. 2003) (dismissal without prejudice is not normally a final judgment, but it is when as here a new petition for review would be "otherwise barred" by 536.110's requirement that a petition be filed within thirty days after final decision). A timely initial petition for review that is dismissed "without prejudice" did not cure the untimeliness of a second petition refiled more than a year after issuance of the agency decision. Rackley v. Firemen's Retirement Sys., 848 S.W.2d 26, 29 (Mo. App. E.D. 1993).

Guided by these principles, we find that the dismissal without prejudice entered here is a final, appealable...