Kelly v. Mo. Dep't of Soc. Servs.
| Decision Date | 10 March 2015 |
| Docket Number | WD 77544 |
| Citation | 456 S.W.3d 107 |
| Parties | John M. Kelly, Appellant, v. Missouri Department of Social Services, Family Support Division, Respondent. |
| Court | Missouri Court of Appeals |
John M. Kelly, Braymer, MO, for Appellant, pro se.
Chris Koster, Attorney General, Jefferson City, MO, Nicolas Taulbee, Assistant Attorney General, Kansas City, MO, Attorneys for Respondent.
Before Division I: Cynthia L. Martin, Presiding Judge, and Mark D. Pfeiffer and Gary D. Witt, Judges.
John M. Kelly (“Kelly”) appeals, pro se, from the judgment of the Circuit Court of Caldwell County, Missouri (“circuit court”), affirming an administrative ruling suspending Kelly's driver's license for his failure to pay child support and spousal support.
On appeal, we review the administrative agency's decision rather than the judgment of the circuit court; however, we affirm or reverse the circuit court's judgment based upon our review of the administrative decision. Schumer v. Lee, 404 S.W.3d 443, 445 (Mo.App.W.D.2013). We affirm the judgment of the circuit court.
On December 30, 2003, the Monroe County, New York, Supreme Court granted Marianne Trecaso (“Trecaso”) a Judgment of Absolute Divorce (“New York Judgment”), dissolving her marriage to Kelly. Trecaso was awarded sole custody of the parties' three minor children. Kelly was ordered to pay $1613.34 bi-monthly to Trecaso as child support and also ordered to pay $3000 per month as spousal maintenance to Trecaso. The amount of child support decreased as the children reached ages of emancipation, the youngest of which reached the age of emancipation on May 7, 2012. Kelly did not pay the child or spousal support as ordered by the New York Judgment.
The State of New York filed a Request to Register a Foreign Support Order with the circuit court. On August 30, 2012, after a hearing in which Kelly contested the foreign support order registration, the circuit court entered a Confirmation of Registered Order, which confirmed the Foreign Support Order issued by the State of New York and confirmed Kelly's arrearage amount of $369,543.16 as of May 7, 2012. Kelly did not appeal from the circuit court's Registration of Foreign Support Order.
On September 29, 2013, Kelly was served with a Notice of the Family Support Division's (“Division”) intent to suspend his driver's license, alleging that according to Division records, as of August 20, 2013, Kelly owed $414,543.16 in past due support. Kelly requested an administrative hearing, which was held December 4, 2013, with Trecaso, Kelly, and a Child Support Enforcement Specialist participating.
The Specialist testified that the parties' youngest child is now emancipated and that Kelly's child support obligation ended as of May 7, 2012; however, his spousal support continues to accrue at $3000 per month. As of September 29, 2013, the record reflected that Kelly owed $417,543.16 in past due support.
Kelly admitted that he was the person that was ordered to pay child support by the New York court. Kelly also admitted that he did not make any direct payments to Trecaso for which he had not been given credit and that the children did not ever live with him for an extended period of time without returning to Trecaso's care. Kelly testified as to why he believed he did not owe the support and why he believed the Division did not have the legal authority to suspend his driver's license.
Trecaso testified that she agreed with the amounts of child and spousal support owed by Kelly as stated by the Specialist and that Kelly still owes the full amount of child and spousal support.
The hearing officer issued the Director of the Missouri Department of Social Services' (“Director”) Decision on February 20, 2014, finding a total combined child support and maintenance arrearage as of September 29, 2013, of $417,543.16. The hearing officer affirmed the Division's action, concluding that the Division had the statutory authority to suspend Kelly's license as a person who owes a child support arrearage greater than or equal to three months support or $2500, whichever is less, pursuant to sections 454.1003.1(1) and 454.1005.4(2).
Kelly filed a petition for review of the Decision with the circuit court. The circuit court affirmed the Decision.
Kelly timely appeals.
Article V, section 18 of the Missouri Constitution authorizes judicial review of agency decisions to determine whether the decision is “supported by competent and substantial evidence upon the whole record.” “An appellate court reviews the decision of the agency rather than the decision of the circuit court.” Stone v. Mo. Dep't of Health & Senior Servs., 350 S.W.3d 14, 19 (Mo. banc 2011). The appellate court reviews whether the agency's decision:
We defer to the administrative hearing officer's credibility determinations and the weight given to evidence. Stone, 350 S.W.3d at 20 (citing § 536.140.3). We will not substitute our judgment for that of the administrative hearing officer on factual matters. Id. When the agency's decision involves a question of law, we review the question de novo. Id. (citing § 536.140.3).
In the first of six points raised on appeal, Kelly alleges that the trial court applied an improper standard when it reviewed the Director's Decision. “Where, such as here, a party seeks review of an agency decision, both the circuit court and this court review the agency's decision.” Rice v. State, Dep't of Soc. Servs., 971 S.W.2d 840, 842 (Mo.App.E.D.1998). Because we review the decision of the agency and not the judgment of the circuit court, it is inappropriate for the point relied on to allege circuit court error instead of agency error. Id. at 842. As such, Kelly's first point must be dismissed. Id.2
Point I is dismissed.
In his second point, Kelly contends that the Division erred in enforcing the support orders from the New York Judgment. In essence, Kelly is contending that the New York court erred in entering the child support and spousal support orders in violation of 15 U.S.C. §§ 1671 –1673, though he apparently has not sought or received a ruling from a New York appellate court establishing error in the New York Judgment. He then characterizes the New York Judgment and/or Foreign Support Order as a “garnishment order” and attempts to litigate the validity of the New York rulings in this Missouri appeal from an administrative suspension of his driver's license in the state of Missouri. Kelly argues that because the New York court ordered in excess of 60% of his wages garnished, and 15 U.S.C. § 1673 prohibits the garnishment of more than 60% of an individual's aggregate disposable earnings for a workweek, the Division had no authority to rely upon a final judgment from the state of New York or the Registration of Foreign Support Order (which had previously been confirmed by the circuit court and thus registered in the state of Missouri, without appeal therefrom) by suspending his driver's license.
There is no dispute that the Foreign Support Order was registered in Missouri. The registered order “is enforceable in the same manner and is subject to the same procedures as an order issued by a tribunal of this state.” § 454.953(b). The Confirmation of Registered Order confirmed both the order of support issued by the State of New York and arrearages in the amount of $369,543.16 as of May 7, 2012. Suspending an obligor's license when the obligor is not making child support payments in accordance with a support order and owes an arrearage in an amount greater than or equal to three months support payments or $2500, whichever is less, as of the date of service of a notice of intent to suspend such license is one of the expressly authorized means of enforcement. § 454.1003.1(1). Clearly, the confirmed arrearage exceeds the statutory minimum. Accordingly, the Division was statutorily authorized to suspend Kelly's driver's license.
Further, the Division's enforcement action in suspending Kelly's driver's license is not a garnishment action and 15 U.S.C. §§ 1671 –1673 are inapplicable to it. “The term ‘garnishment’ means any legal or equitable procedure through which the earnings of any individual are required to be withheld for payment of any debt.” 15 U.S.C. § 1672(c). Kelly's earnings have not been “garnished” by the subject administrative ruling. Simply put, this is not a garnishment action and Kelly's citation to federal statutory garnishment law is inapplicable.
Still further, Kelly relies on 15 U.S.C. § 1673 in his collateral attack on the New York Judgment. However, that statute is a restriction on garnishment and expressly provides that the maximum allowable garnishment restrictions contained in subsection (a) of the statute “do not apply in the case of any order for the support of any person issued by a court of competent jurisdiction or in accordance with an administrative procedure, which is established by State law, which affords substantial due process, and which is subject to judicial review.” 15 U.S.C. § 1673(b)(1)(A) (emphasis added). Hence, 15 U.S.C. § 1673 is inapplicable to the New York Judgment or corresponding Foreign Support Order.
Finally, Kelly's attempt to challenge the validity of the New York Judgment in this case constitutes an impermissible collateral attack. “A collateral attack is an attempt to impeach a judgment in a proceeding not instituted for the express purpose of aning the judgment.” Lyons v. Sloop, 40 S.W.3d 1, 9 n.4 (Mo.App.W.D.2001) (internal quotation...
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