In re the Matter of Andrea K. Sanders

• Decision Date: 24 May 2011
• Docket Number: No. WD 72771.,WD 72771.
• Citation: 341 S.W.3d 762
• Parties: In re the Matter of Andrea K. SANDERS; State of Missouri, Department of Social Services, Family Support Division, Appellant,v.Delmar HATCHER, Jr., Respondent.
• Court: Missouri Court of Appeals

341 S.W.3d 762

In re the Matter of Andrea K. SANDERS; State of Missouri, Department of Social Services, Family Support Division, Appellant,

v.Delmar HATCHER, Jr., Respondent.

No. WD 72771.

Missouri Court of Appeals, Western District.

May 24, 2011.

Nicolas Taulbee, Kansas City, MO Counsel for Appellant.Delmar Hatcher, Kansas City, MO Respondent Acting Pro Se.Before GARY D. WITT, P.J., JAMES EDWARD WELSH, and ALOK AHUJA, JJ.JAMES EDWARD WELSH, Judge.

The State of Missouri, Department of Social Services, Family Support Division (Division) appeals the circuit court's judgment awarding attorney's fees and filing fees to Delmar Hatcher, Jr., in an action involving an administrative child support order issued pursuant to section 454.470, RSMo Cum.Supp.2010. The Division contends that the circuit court erred in awarding attorney's fees to Hatcher because Hatcher was not a prevailing party and because the Division was substantially justified when it ordered Hatcher to pay child support and provide health insurance for the child. The Division further contends that, even if attorney's fees were appropriate, the circuit court acted in excess of its statutory authority because the court awarded attorney's fees at a rate of $150 per hour rather than the statutorily prescribed rate of $75 per hour. Finally, the Division contends that the circuit court erred in awarding Hatcher $137 for filing fees because no statutory authority exists to justify the award of filing fees in this action. We affirm in part, reverse in part, and remand in part.

Pursuant to section 454.470, the Division began establishing a child support order for the minor child at the request of the mother. On September 11, 2007, the Division issued a Notice and Finding of Financial Responsibility, which alleged that Hatcher should pay monthly child support in the amount of $207 and provide health insurance coverage for the minor child if he had an insurance plan available on a group basis or through an employer or union. The Division calculated the presumed child support amount using the Form 14 pursuant to Supreme Court Rule 88.01. The Division listed Hatcher's monthly gross income at $1,127 based upon Missouri's minimum wage and gave Hatcher a $25 adjustment on line 2a of the Form 14 for other court or administratively ordered child support being paid. The Division served Hatcher with the Notice and Finding of Financial Responsibility on March 11, 2008. Hatcher requested an administrative hearing because he disagreed with the alleged obligation for child support and medical support.

On July 28, 2008, the Division held an administrative hearing. During the hearing, Hatcher's attorney stated that “we don't dispute any of the figures that the technician already had in for income and credits. The only reason we requested a hearing is because Mr. Hatcher has some additional credits that [the technician] simply didn't know existed and has since confirmed.” Hatcher presented evidence that he was entitled to a credit for the additional child in his home and a credit for other child support being paid. Hatcher also said that he did not have medical insurance available for the child. Mother also testified at the hearing, and she said that she had medical insurance available to her through her work for the child and that the child was enrolled in that insurance. After the hearing, the hearing officer left the record open until August 15, 2008, for mother to provide proof of medical insurance covering the minor child and the cost of that insurance. The hearing officer never received documentation regarding the cost of health insurance for the child.

On December 17, 2008, the hearing officer mailed her Decision and Order to the parties. The decision imputed a gross monthly income of $1,153 based upon the Missouri minimum wage and ordered Hatcher to pay child support in the amount of $153 per month beginning March 15, 2008. The Division calculated the child support amount using the Form 14, giving Father a $134 credit for the additional child in his home and a $259 credit for other child support being paid. The Division based the credit for other child support being paid on both the agency evidence and Hatcher's testimony that he was paying $259 per month. The decision also ordered Hatcher to “name and maintain the minor child as a covered dependent on any health insurance policy available on a group basis or through Father's employer or union[.]”

Hatcher filed a motion for judicial review with the circuit court on January 16, 2009. In the motion, Hatcher disputed the Division's decision to impute income to him by Missouri's minimum wage, disputed the amount of credit given for other child support being paid, disputed the credit given for another child in his home, disputed the lack of credit given for visitation with the minor child, and, disputed the order to provide health insurance for the minor child. The matter was submitted to the court upon the parties' pleadings and the record of the Division's administrative proceeding. On June 12, 2009, the circuit court entered a judgment affirming the administrative order in part and modifying the administrative order in part. The court affirmed the decision relating to the child support amount. The court, however, modified the decision regarding health insurance and, instead, ordered mother to provide the health insurance coverage. In regard to the health insurance, the circuit court's judgment said:

That Missouri Revised Statutes, section 454.603 provides that a court or agency has discretion in determining which parent shall be responsible for providing a health benefit plan on behalf of the minor child in circumstances where both parents have health benefit plans available and in circumstances where neither parent has a health benefit plan available for the minor child.

In the present case [mother] has a health plan available for the minor child and [Hatcher] does not have a health plan available for the minor child. Missouri Revised Statutes, section 454.602 directs that, “a requirement shall be imposed whenever a health benefit plan is available at reasonable cost through a parent's employer or union or in any IV–D case.” [Mother] testified that she had a health benefit plan available through her employer and currently provided coverage for the minor child.

The fact that [mother] failed to provide evidence of the cost of her health benefit plan results in her costs not being included in child support calculations.... Therefore the portion of the Hearing Officer's Decision and Order directing [Hatcher] to name and maintain the minor child as a covered dependent on any health benefit plan shall be modified to direct that [mother] shall name and maintain the minor child as a covered dependent on any health benefit plan.

After the circuit court's judgment, Hatcher filed a petition for attorney's fees and costs pursuant to section 536.087, RSMo 2000, on July 2, 2009. Hatcher asserted that because he was a prevailing party on at least one issue of significance and because the Division was unjustified in its position, he was entitled to attorney's fees and costs. On March 12, 2010, the circuit court held a hearing on the petition for attorney's fees. On June 2, 2010, the court entered its judgment awarding attorney's fees at a rate of $150 per hour totaling $2,237. The circuit court found that Hatcher was a prevailing party in his administrative hearing before the Division's hearing officer in that the hearing officer ordered that child support be set at $153 per month and not the $207 determined by the Division in its Notice and Finding of Financial Responsibility. The circuit court also found that Hatcher was a prevailing party in his petition for judicial review in regard to the issue of health insurance. Further, the circuit court found that the Division was unjustified in maintaining its position and in proceeding with this matter. The court said:

That in this case, not only was the [Division] nor [sic] careful when it filed its cause of action and sought the wrong amount of child support and health insurance from [Hatcher], but it continued to maintain that position after [Hatcher] pointed out the [Division's] error, and further, the [Division] failed to settle this case or to respond to [Hatcher's] offers to negotiate settlement of this matter so as to minimize the attorney fees incurred by [Hatcher] in this matter.

On June 17, 2010, the Division filed a motion for rehearing on the issue of the attorney's fees. On July 19, 2010, the circuit court denied the Division's motion. The Division appeals.

“We may modify, reverse, or reverse and remand a trial court's determination of attorney's fees under Section 536.087 if the award, or the calculation of the amount of the award, was arbitrary and capricious, was unreasonable, was unsupported by competent and substantial evidence, was made contrary to law, or was made in excess of the court's jurisdiction.” Hutchings ex rel. Hutchings v. Roling, 193 S.W.3d 334, 346 (Mo.App.2006); § 536.087.7; RSMo 2000. Our determination is made solely upon the record made before the agency or the circuit court. § 536.087.7. When considering questions of law, our review is de novo. Hutchings, 193 S.W.3d at 346.

In its first point on appeal, the Division asserts that the circuit court erred in granting Hatcher's petition for attorney's fees because Hatcher was not a prevailing party. Section 536.087.1 states:

A party who prevails in an agency proceeding or civil action arising therefrom, brought by or against the state, shall be awarded those reasonable fees and expenses incurred by that party in the civil action or agency proceeding, unless the court or agency finds that the position of the state was substantially justified or that special circumstances make an award unjust.

“The intent of the statute is ‘to require agencies to carefully scrutinize agency and cour...