Kubley v. Brooks

• Decision Date: 08 June 2004
• Docket Number: No. SC 85460.,SC 85460.
• Citation: 141 S.W.3d 21
• Parties: Kenneth L. KUBLEY, Appellant/Cross-Respondent, v. Molly M. BROOKS, Respondent/Cross-Appellant, and Director of the Division of Child Support Enforcement, Department of Social Services, Cross-Appellant.
• Court: Missouri Supreme Court

141 S.W.3d 21

Kenneth L. KUBLEY, Appellant/Cross-Respondent, v. Molly M. BROOKS, Respondent/Cross-Appellant, and Director of the Division of Child Support Enforcement, Department of Social Services, Cross-Appellant.

No. SC 85460.

Supreme Court of Missouri, En Banc.

June 8, 2004.

Rehearing Denied August 3, 2004.

Appeal from the Circuit Court, Phelps County, Ralph J. Haslag, J Stephen W. Daniels, Rolla, for Appellant/Cross-Respondent.

Jeremiah W. (Jay) Nixon, Atty. Gen., Bart A. Matanic, Asst. Atty. Gen., Jefferson City, for Cross-Appellant.

Charles T. Rouse, Salem, for Respondent/Cross-Appellant.

LAURA DENVIR STITH, Judge.

Kenneth Kubley and the Division of Child Support Enforcement (DCSE) appeal the trial court's judgment directing them to reimburse Molly Brooks for $21,649 in child support. She was required to pay that amount to DCSE from 1994 to 1998 to reimburse it for sums it had paid to Mr. Kubley in Aid to Families with Dependent Children (AFDC) benefits. DCSE argues that it was entitled to collect these child support amounts pursuant to an administrative order because at the time it took administrative action there was no prior, existing court order under which Ms. Brooks' child support obligation was set or determinable. It also argues the doctrine of sovereign immunity protected it from liability on Ms. Brooks' money had and received claims and tort claims.

This Court holds that DCSE was without authority to issue an order directing Ms. Brooks to pay child support because her child support obligation was already "determinable" under her dissolution decree in that the decree directed that she pay no dollars in child support. This Court also holds that the doctrine of sovereign immunity in tort has no application to Ms. Brooks' claim for money had and received, which sounds in contract. While the sovereign is immune from suit without its consent even for contract claims, here section 454.400.2(1)¹ provides such consent, stating that DCSE can sue and be sued. Although this language is insufficient to waive sovereign immunity in tort, it is well-settled that it is sufficient to constitute consent to suit in contract.

This Court does affirm the holding that the doctrine of sovereign immunity in tort precludes DCSE from being held liable to Ms. Brooks in tort for wrongfully collecting the improperly collected child support. This Court also affirms dismissal of Ms. Brooks' claims against Mr. Kubley for actual and punitive damages in tort. Finally, because DCSE's payments to Mr. Kubley did not result from a passthrough of Ms. Brooks' child support payments, but rather resulted from his successful application for AFDC benefits, this Court reverses that aspect of the judgment below holding that he is jointly and severally liable for the damages awarded to Ms. Brooks. The judgment is reversed in part and affirmed, as modified, in part.

I. FACTUAL AND PROCEDURAL BACKGROUND

On March 25, 1994, a decree dissolving the marriage of Molly Brooks and Kenneth Kubley was entered. The court awarded the parties joint legal custody of their children. The court nominally awarded Mr. Kubley primary physical custody, but the visitation ordered gave Ms. Brooks custody of the children fifty percent of the time. Because child support was an issue, the court also completed a Form 14. It showed that each parent had equal income and that each owed the other $258.50 in child support per month. Not finding it appropriate that each pay the other the identical amount indicated on Form 14, the court found the Form 14 amount to be unjust and inappropriate, rejected it, and ordered that "both parties be required to support the minor children."

Unbeknownst to either Ms. Brooks or to the court, just a week later, on April 1, 1994, Mr. Kubley applied for AFDC benefits. The next week, on April 8, 1994, he sought an amendment to the decree to provide that primary legal custody was also in Mr. Kubley and to nominally give Ms. Brooks less visitation. Because Mr. Kubley stated that this modification was necessary for him to qualify for various educational grants, Ms. Brooks did not oppose the motion, and the court granted it on April 14. The court made no change in the language of the order addressing child support as Mr. Kubley promised that Ms. Brooks' actual visitation time would remain unchanged. Very shortly thereafter, Mr. Kubley assigned his child support collection rights as the custodial parent to DCSE in return for his AFDC benefits, see sec. 208.040.2(2). Beginning about three months after modification, Mr. Kubley started to limit Ms. Brooks' visitation time, citing concerns over their eldest son's schooling.

As discussed infra, DCSE's authority to administratively order a parent to provide child support depends on whether a court order is already in place providing for a set or determinable amount of support. On August 23, 1994, DCSE determined that no such order was in place and that it was authorized, therefore, to enter an administrative order setting an amount of support to be paid by Ms. Brooks. After serving Ms. Brooks with a notice and finding of financial responsibility, DCSE issued an administrative default order on September 29, 1994, ordering her to pay $381 per month in child support and to enroll her children in a group insurance plan, if available.

One year later, the Phelps County assistant prosecutor filed a motion for contempt against Ms. Brooks for nonpayment of support. Ms. Brooks was unable to pay this amount because she entered a year-long registered nurse program in August 1994. A court date was set before a different judge than had heard the dissolution. Ms. Brooks was never served with notice of the hearing and failed to appear. A warrant was issued, and she was incarcerated for five days until the warrant was withdrawn and she agreed to pay the administratively-required child support to avoid further incarceration.

Mr. Kubley filed a motion to modify in the circuit court on November 27, 1996, to which Ms. Brooks filed cross-motions. While these motions were pending, DCSE issued another administrative default order raising Ms. Brooks' child support obligation to $598 per month. On September 29, 1998, pursuant to a stipulation, the circuit court then entered an order modifying both custody and support, ordering Ms. Brooks' to pay child support of $500 per month. Despite this new court order, DCSE filed an administrative notice of intent to increase Ms. Brooks' monthly child support payments to $732 in February 2000. Once Ms. Brooks sought administrative review of this proposal, DCSE refigured her proposed support obligation as $543 per month, but failed to seek or obtain court approval of this administratively modified support order. Ms. Brooks then filed the instant motion for injunctive relief to prevent DCSE from increasing her obligation beyond that ordered by the court and sought reimbursement from DCSE and Mr. Kubley of the $21,649 in child support payments she had paid DCSE between September 29, 1994, and the court's September 1, 1998, modification order. She also sought actual and punitive damages from DCSE and Mr. Kubley and primary custody of her children.

The circuit court found DCSE and Mr. Kubley jointly and severally liable to Ms. Brooks for the full $21,649, awarded her primary physical custody, and directed Mr. Kubley to pay Ms. Brooks monthly child support.² DCSE and Mr. Kubley appeal the restitution order. After opinion by the Missouri Court of Appeals, Southern District, this Court granted transfer. Mo. Const. art. V, sec. 10.

II. ANALYSIS

A. Standard of Review

The circuit court's judgment will be affirmed unless no substantial evidence exists to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

B. The Circuit Court's Child Support Order Was for a "Determinable" Amount Under Section 454.460(2).

Section 454.470.1 provides:

If a court order has not been previously entered, the director may issue a notice and finding of financial responsibility to a parent who owes a state debt or who is responsible for the support of a child on whose behalf the custodian of that child is receiving support enforcement services from the division under section 454.425.

Sec. 454.470.1 (emphasis added). If, however, a "court order" has been previously issued, then section 454.496 requires DCSE to move to modify that order in the trial court that entered it in order to change the court-ordered support. Sec. 454.496.1, 6.

The relevant statute defines "court order" as "any judgment, decree, or order of any court which orders payment of a set or determinable amount of support money." Sec. 454.460(2). Such an order will be found where the circuit court undertakes to act upon the issue of support money. Dye v. Div. of Child Support Enforcement, 811 S.W.2d 355, 360 (Mo. banc 1991).

In its original and amended decree in 1994 in this case, the circuit court ordered that "both parties be required to support the minor children." DCSE claims, and the dissenting opinion suggests, that this was not a "court order" as defined in section 454.460(2) because it did not provide for a set and determinable amount of child support; therefore, DCSE had jurisdiction to enter a support award under section 454.470.1. Ms. Brooks argues that this was a "court order" as defined in section 454.460(2), noting that only a set or determinable amount of support must be ordered and that here the amount of child support was determinable.

This Court concludes that the circuit court's 1994 decree did constitute a court order as that term is used in section 454.460(2). While that order did not set out a specific numerical amount of support to be paid by one parent to the other, it is undisputed that the court specifically considered the issue of support, prepared a Form 14, found it showed each party had equal means and...