Family Support Division—child Support Enforcement v. North, WD 76997.

Citation444 S.W.3d 905
Decision Date14 October 2014
Docket NumberNo. WD 76997.,WD 76997.
PartiesThe FAMILY SUPPORT DIVISION—CHILD SUPPORT ENFORCEMENT, Respondent, Joei North, Respondent, v. Andrew Howard NORTH, Appellant.
CourtCourt of Appeal of Missouri (US)

444 S.W.3d 905

The FAMILY SUPPORT DIVISION—CHILD SUPPORT ENFORCEMENT, Respondent,
Joei North, Respondent,
v.
Andrew Howard NORTH, Appellant.

No. WD 76997.

Missouri Court of Appeals, Western District.

Oct. 14, 2014


Affirmed in part and reversed in part.

[444 S.W.3d 906]

Shelly L. Hinson, Independence, MO, for respondent Family Support Division.

William J. Hudnall, Kansas City, MO, for appellant.


Before Division Three: GARY D. WITT, Presiding Judge, JOSEPH M. ELLIS, Judge and THOMAS H. NEWTON, Judge. GARY D. WITT, Judge.

Andrew Howard North (“Father”) challenges a judgment modifying his child support obligations on three grounds. In his first two points, Father argues that the trial court erred in classifying him as the “movant” for purposes of line 2c of the Form 14. In his third point, Father argues that the judgment grants relief that was not requested by the pleading of Respondent Joei North (“Mother”). Neither Mother nor Respondent Missouri Division of Family Services—Child Support Enforcement (“DFS”) filed briefs in this court

[444 S.W.3d 907]

or appeared at argument. The judgment is reversed in part and affirmed in part.

FACTUAL AND PROCEDURAL HISTORY 1

On August 15, 2005, the judgment dissolving the marriage between Mother and Father was entered in the Circuit Court of Clay County. In that judgment, Mother and Father were awarded joint legal custody of their two minor children, with Mother receiving sole physical custody. Father was ordered to pay Mother $966 per month in child support.

On or about June 5, 2008, the circuit court modified that judgment and reduced Father's support obligation to $569 per month. On February 2, 2012, the circuit court again modified the judgment, ordering Father to make certain monthly payments toward his child support arrearage to the Bankruptcy Trustee in addition to his monthly ordered payments.

On October 18, 2012, DFS filed a motion to modify on behalf of Father, requesting a decrease in Father's child support payments. In that motion, DFS alleged that there were “continuing and substantial changes and conditions” with regard to child support in the following two respects: (1) that upon application of Rule 88,2 Form 14, Father's child support obligation would decrease by twenty percent or more, and (2) the parties have had substantial changes in their earning capacities.

Mother answered the petition through counsel. She also filed a “counter-motion for contempt” in which she alleged that Father disobeyed earlier judgments pertaining to, inter alia, support, attorney fees, and insurance. In that motion, Mother asked “for an Order of this Court directing that Respondent appear and show cause why he should not be held in contempt, that he be held in contempt for his failure to abide by the terms and condition of the Judgment and for such other and further relief as this court deems just and proper.” Through private counsel, Father filed an answer to the “counter-motion for contempt.”

On March 1, 2013 a hearing was held and the docket sheet entry for that day indicates that Father was “granted leave to file Amended pleadings without objection” and that DFS “was granted leave to withdraw without objection” as Father was now represented by private counsel. Father's child support was reduced temporarily to $300 a month until further order of the court.

A trial was held. Prior to evidence, the following exchange was held on the record:

THE COURT: ... This is North and North. Let's just make sure everyone is on the same page with regard to the status of the pleadings. It was actually initiated by a motion for modification filed by the State of Missouri through the Child Support Division, but once both parties were represented by counsel, the State was allowed to withdraw. We're just going to proceed on the parties' private pleadings starting with in December of 2012 a counter-motion, which at that time was in counter to the State's motion to modify, a motion for contempt filed by [Mother].

FATHER'S COUNSEL: Your Honor, that's the only two pleadings—

THE COURT: That's it?

[444 S.W.3d 908]

FATHER'S COUNSEL: That's the only two pleadings that it involves.

THE COURT: So your client is not requesting affirmative relief, but responding to the motion for contempt, and then both parties wish to present evidence which was initiated by the State's motion to modify support, is that right?

MOTHER'S COUNSEL: Judge, I would assume that he—

FATHER'S COUNSEL: I would take the role of the movant because he requested the State to modify the support.

THE COURT: If that's what you want to do, that's perfectly fine. You want to step into the shoes basically of the State to pursue its motion for modification of support, is that right?

MOTHER'S COUNSEL: If it was our role, I'd ask to dismiss it.

THE COURT: And then are you presenting evidence then with respect to the contempt?

MOTHER'S COUNSEL: The contempt and our answer to the motion to modify.

...

THE COURT: Then, [Father's counsel], we'll go ahead and proceed with the evidence.

(Emphases added.)

Evidence was presented regarding Mother's and Father's changed earnings. Father testified, inter alia, that he had recently relocated to Utah and started a new job selling Ford vehicles. The issues raised in the contempt motions were resolved by the parties and are not a part of this proceeding. Both parties submitted proposed Form 14s.

Mother submitted a Form 14 that “determined that that there's a presumed child support amount of $743 per month” and that she was “asking for it to be retroactive to the date of this action being initiated.” Father did not object to that request, but Mother never moved to amend the pleadings.

The Commissioner issued its findings and recommendations, upon which judgment was entered by the circuit court. The court prepared its own Form 14 and determined Father's presumed child support obligation to be $707 a month, which it did not find to be unjust or inappropriate and adopted. Additionally, in its judgment, the trial court stated:

[Father] is not entitled to claim a deduction on line 2c for his additional younger children as he is the original movant for reduction of child support, by requesting the State of Missouri to file a Motion to Modify on his behalf (which it did), seeking reduction of his child support obligation. Despite the fact that the State of Missouri was allowed to withdraw in its capacity of representing [Father's] interests in conjunction with his request for reduction of child support, [Father's] counsel clearly stated on the record, prior to the evidence at trial, that his client wished to pursue [the] relief he had requested (i.e. reduction of child support) in the State's Motion to Modify. In other words, [Father] and his counsel ‘stepped into the shoes' of the State to pursue the child support reduction. Although the State was granted leave to withdraw, its pleading (i.e. the Motion to Modify) was not dismissed, and was still pending before the Court, and [Father] continued to seek relief under the allegations and prayers contained in that motion.

Father appeals. Further facts are set forth below as necessary.

FATHER IS JUDICIALLY ESTOPPED FROM RAISING HIS FIRST TWO POINTS

Father's first and second points on appeal concern who was the “movant” in the

[444 S.W.3d 909]

motion to modify. In his first point, Father argues that the trial court erred in its Form 14 calculation because “it was an abuse of discretion to deny [Father] a line [2c] income adjustment in that the Court's finding that [Father] was the ‘original movant for reduction of child support’ and therefore was not entitled to an income adjustment for his other natural children living with him was not supported by substantial evidence or was against the weight of the evidence.” 3 In his second point, Father argues that the trial court erred in its Form 14 calculations of presumed child support “because contrary to the law of Supreme Court Rule 88.01 and [accompanying directions], [Father] was denied a line [2c] income adjustment in that although [Father] was not a ‘moving parent in an action to increase or decrease’ child support, the Circuit Court nevertheless judged [Father] was not entitled to an income adjustment for his other natural children living with him.”

Discussion

The doctrine of judicial estoppel prevents litigants from “taking a position in one judicial proceeding, thereby obtaining benefits from that position in that instance, and later, in a second proceeding, taking a contrary position in order to...

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