Kay v. Keller

• Decision Date: 02 June 2015
• Docket Number: WD 78235
• Citation: Kay v. Keller, 462 S.W.3d 748 (Mo. App. 2015)
• Parties: Kathy (Keller) Kay, Respondent, v. John B. Keller II, Appellant.
• Court: Missouri Court of Appeals

462 S.W.3d 748

Kathy (Keller) Kay, Respondent

v.John B. Keller II, Appellant.

WD 78235

Missouri Court of Appeals, Western District.

OPINION FILED: JUNE 2, 2015

Sara Catherine Michael, Jefferson City, MO, Counsel for Respondent.

Carla Grace Holste, Jefferson City, MO, Counsel for Appellant.

Before Division Three: Mark D. Pfeiffer, P.J., Gary D. Witt, Anthony Rex Gabbert, JJ.

Opinion

Anthony Rex Gabbert, Judge

John B. Keller, II (“Father”) appeals the circuit court's grant of summary judgment in favor of Kathy Kay (“Mother”) on Father's motion to modify child support. Father raises four points on appeal. First, Father contends that Mother was not entitled to judgment as a matter of law because Father is not required to ask the court for continued support prior to Son reaching the age of eighteen. Second, Father argues that the circuit court erred in granting Mother's motion for summary judgment because there were disputed material facts as to Son's incapacity and ability to support himself. Third, Father argues that the circuit court erred in finding Son emancipates because there was overwhelming evidence that Son was unmarried, mentally incapacitated, and insolvent. Fourth, Father argues that the circuit court erred in finding Son emancipated because Mother failed to meet her burden of proving emancipation. We reverse and remand.

Factual Background

Father and Mother were divorced on February 5, 1999. There were two children born of the marriage: John Keller, III (“Son”), born September 29, 1992, and Kathianne Keller (“Daughter”), born January 2, 1995. Father and Mother were awarded joint legal custody. The original judgment was modified by stipulation on or about November 1, 2000, setting the child support obligation payable by Father to Mother at the amount of $1,600 per month. In 2010, Father filed a motion to modify the 2000 judgment. In April, 2011, the parties executed a stipulation transferring the physical custody of Son to Father and establishing child support and other expenses. Under the stipulation, Father was to pay Mother $596 monthly in child support. This figure was reached after offsetting Father's $931 obligation for Daughter with Mother's $335 obligation for Son.

On July 25, 2013, Father filed a motion to modify, seeking termination of his child support obligation to Daughter based upon her emancipation. Both parties ultimately agreed that Daughter was emancipated due to having married. Additionally, Father sought to extend Mother's child support obligation for Son beyond his eighteenth birthday. Father alleged that Son had suffered throughout his life with autism , generalized anxiety disorder, obsessive compulsive disorder, and bipolar mental illness. Father alleged that, due to Son's mental condition, he is under the full-time care of both a psychologist and psychiatrist, takes a number of medications to control his condition, and is without the means or ability to be self-supporting and self-sufficient. Father alleged that Son attempted classes at Columbia College after graduation from high school, but was only partially successful and did not enroll in or attend courses thereafter. Father further alleged that, on or about November 21, 2012, Son was formally determined disabled by the Social Security Administration and that determination found Son to be totally disabled with an inability to support himself through regular employment.

Mother filed an answer to Father's motion to modify. In response to Father's allegations regarding Son's mental condition, diagnoses, disabilities, and post-secondary education, Mother stated that she was “without sufficient information to either admit or deny the allegations” and she, therefore, denied the allegations. Mother denied Father's allegation that the court should extend Mother's parental support obligation past Son's eighteenth birthday because Son is mentally incapacitated, insolvent, unmarried, and unable to support himself.

On June 6, 2014, the parties appeared for a hearing. At the commencement of the hearing, Mother filed a motion for summary judgment. Mother's motion contended that Son was emancipated as of October 1, 2011, because he was not enrolled full-time in a post-secondary educational or vocational institution. Mother further alleged that Father made no allegations when the two entered into the 2011 child support stipulation that Son was in need of an extension of child support past the age of majority and Father misled Mother and the court by not apprising anyone at that time that Son had filed an application seeking Supplemental Security Income (SSI) from the Social Security Administration.

The court granted Father thirty days to file suggestions in opposition to Mother's motion. However, the court heard testimony from Father and Mother at the June 6, 2014, hearing.

On November 26, 2014, the trial court entered a judgment granting Mother's motion for summary judgment. The court stated, in part: “The evidence is undisputed that the parties' son graduated from high school in May, 2011 and failed to enroll full-time in a post-secondary educational institution on or before October 1, 2011.... The Court finds that John B. Keller, III, was emancipated by operation of law in October, 2011.” Father appeals.

Standard of Review

We review the grant of a summary judgment de novo. Brehm v. Bacon Tp., 426 S.W.3d 1, 3 (Mo. banc 2014). We consider the record in the light most favorable to the party against whom judgment was entered and give the non-moving party the benefit of all reasonable inferences. Id. at 3–4. Summary judgment is appropriate where there is no genuine dispute of material fact and the movant is entitled to judgment as a matter of law. Allen v. Continental Western Ins. Co., 436 S.W.3d 548, 551–552 (Mo. banc 2014). A material fact in the summary judgment context is one from which the right to judgment flows. Id. at 552.

Analysis

In Father's first point on appeal, Father contends that the court erred in granting summary judgment in favor of Mother because Mother was not entitled to judgment as a matter of law in that Father is not required to ask the court for continued support prior to Son reaching the age of eighteen. Father argues that, “[a]lthough it is unclear as to the trial court's legal reasoning behind its grant of summary judgment, it appears that the trial court's summary judgment is based upon the timing of Father's Motion to Modify.” Father argues that Mother's contention in support of her summary judgment motion, that the custodial parent must bring the action for continued support pursuant to Section 452.340.4¹ before the child's eighteenth birthday, is not supported by law.

Mother responds that she never argued that Father had a duty to file a motion for extending parental support prior to Son's eighteenth birthday. She claims that her argument was, and still is, that Father concealed or otherwise did not inform the court that Son had applied for SSI benefits when Father was before the court in 2011 and, therefore, waived any claim to extension of child support. We find this claim unsupported by the record. In reviewing the record, we find that Mother made various arguments in her Suggestions in Support of Petitioner's Motion for Summary Judgment and one of those arguments was that “[t]he problem presented by [Father's] motion to modify is that he did not file the motion until July, 2013, well past the child's eighteenth birthday.” Regardless, Mother's waiver claims have no support in the law.

“ ‘Child support payments are for the benefit of the child and the parties are not authorized to settle or compromise future payments without judicial modification of the decree.’ ” Mora v. Mora, 861 S.W.2d 226, 228 (Mo.App.1993) (quoting Foster v. Foster, 703 S.W.2d 952, 954 (Mo.App.1986) ). “The parties may enter into a binding agreement to settle past due support payments if supported by adequate consideration, but they may not enter into agreements to reduce support which will accrue in the future.” Id. Father did not explicitly waive future support in the 2011 stipulation and could not have implicitly done so.² Further, even if waiver were possible in this context for the reasons alleged by mother, Father disagreed with Mother's allegations that he attempted to deceive the court. Although we are not convinced that Father's failure to advise the court that Son applied for SSI has any relevance to whether Son is entitled to continued support from Mother pursuant to Section 452.340.4, if it does, it remains a disputed factual issue inappropriate for reaching a conclusion on in a summary judgment proceeding.

Further, the court sustained Mother's motion for summary judgment on the grounds pled by Mother—that Son failed to enroll full-time in a post-secondary educational institution and, therefore, Son was emancipated “by operation of law.” Father's motion to modify alleged that Son was is in need of continued parental support due to insolvency and mental incapacity. The court did not address these allegations. Thus, the court's judgment of emancipation presumes that, when a child attends a post-secondary institution and receives continued support past the age of eighteen pursuant to Section 452.340.5, courts are precluded from thereafter considering the applicability of Section 452.340.4. This is a faulty presumption.

When a child is attending a post-secondary institution pursuant to Section 452.340.5, the parental support obligation ends when the child completes the program or reaches age twenty-one. Section 452.340.3(6), however, provides that the support obligation ends at age twenty-one for a physically or mentally incapacitated child unless provisions of the child support order specifically extend parental support past the child's twenty-first birthday pursuant to Section 452.340.4. Section 452.340.4 is the general provision that authorizes the court to extend parental support for a child that is “physically or mentally incapacitated from...