Miller v. Miller

• Court: Missouri Court of Appeals
• Writing for the Court: Edwin H. Smith
• Citation: Miller v. Miller, 210 S.W.3d 439 (Mo. App. 2007)
• Decision Date: 02 January 2007
• Docket Number: No. WD 66131.,WD 66131.
• Parties: David E. MILLER II, Appellant, v. Andrea N. MILLER, Respondent.

210 S.W.3d 439

David E. MILLER II, Appellant, v. Andrea N. MILLER, Respondent.

No. WD 66131.

Missouri Court of Appeals, Western District.

January 2, 2007.

COPYRIGHT MATERIAL OMITTED

Brent L. Winterberg, Kansas City, MO, for Appellant.

Andrea N. Miller, Raytown, MO, pro se.

Before SMART, P.J., and EDWIN H. SMITH and HARDWICK, JJ.

EDWIN H. SMITH, Judge.

David Miller appeals from the judgment of the Circuit Court of Jackson County dismissing his four-count "Motion to Modify Prior Judgment as to Support and Parenting Plan" for his failure to post a $10,000 bond as ordered by the court, pursuant to Section 452.455.4.¹ In Count I of his motion, the appellant sought a modification of his child support obligation to the respondent, Andrea Miller. In Count II, he sought various modifications of the court-approved parenting plan concerning legal custody of and visitation with the parties' unemancipated minor children. In Count III, he sought a judgment against the respondent for reimbursement of uncovered medical expenses, in accordance with the parties' court-approved parenting plan. In Count IV, he sought an award of attorney's fees, as provided in the parenting plan, with respect to his attempt in Count III to recover unreimbursed-uncovered medical expenses.

The appellant raises two points on appeal. In Point I, he claims that the trial court erred in dismissing his motion to modify the court's child support decree and court-approved parenting plan for failure to file a $10,000 bond, as ordered by the court pursuant to Section 452.455.4, because the trial court erroneously declared and applied the law with respect to Section 452.455.4, since by its express terms, that section only applies to motions to modify "child custody decree(s) . . . filed pursuant to Section 452.410 or sections 452.440 to 452.450," and his motion was not filed pursuant to "Section 452.410 or sections 452.440 to 452.450" and did not seek to modify the trial court's prior custody decree. In Point II, he claims that the trial court erred in dismissing his motion for failure to file a $10,000 bond, as ordered by the court pursuant to Section 452.455.4, because that section "violates Appellant and his minor children's constitutional guarantees of equal protection and due process."

We affirm, in part, and reverse and remand, in part.

Facts

The parties were married on June 29, 1991, in Raytown, Jackson County, Missouri, and separated on or about May 10, 2002. Two children were born of the marriage: Nachelle Heritage Miller, d.o.b. March 1, 1995; and Conlan Delaney Miller, d.o.b. September 8, 1998.

The appellant filed a petition for dissolution of marriage in the Circuit Court of Jackson County, which was taken up and heard on January 8, 2003. The trial court entered its judgment dissolving the parties' marriage on January 21, 2003. The parties were awarded joint legal custody of the parties' two children, with the respondent being awarded sole physical custody and the appellant being awarded specific parenting time or visitation. The appellant was ordered to pay the respondent $891 per month in child support.

On June 13, 2003, the appellant filed a motion to modify custody and support, which he voluntarily dismissed in January of 2004. On April 5, 2004, the appellant filed another motion to modify, and on August 9, 2004, a "Judgment Modifying Parenting Plan and Child Support" was entered. Pursuant to that judgment, the trial court's prior support decree was amended, reducing the appellant's child support obligation from $891 to $559 per month. In addition, the court amended the parties' court-approved parenting plan; however, the amendments only made minor changes to the visitation awarded to the appellant.

On May 10, 2005, the appellant filed his four-count "Motion to Modify Prior Judgment as to Support and Parenting Plan," seeking to modify the trial court's August 9, 2004 judgment. In response to the appellant's motion, the respondent, on July 25, 2005, filed "Respondent's Motion to Dismiss Pleadings of Petitioner and Suggestions in Support Thereof, and In The Alternative Answer to Motion to Modify Prior Judgment as to Support and Parenting Plan and Respondent's Request for Affirmative Relief." In her motion, the respondent alleged that, inter alia, the appellant owed her $20,074.44 in past-due child support, and hence:

pursuant to Missouri Revised Statute 452.455, [the appellant] should be required to post a bond of $20,074.44 prior to proceeding forward with this action. Missouri Revised Statute 452.455.4 specifically states that a person filing a petition for modification under Chapter 452, and the party filing the petition owes past due child support in excess of $10,000.00, the party shall post a bond in the amount of the past due child support.

On September 2, 2005, the respondent's motion to dismiss was taken up and heard. The trial court did not sustain the motion, but rather, finding that the appellant was in arrears in child support in excess of $10,000 and that Section 452.455.4 applied, ordered the appellant,² in accordance with Section 452.455.4, to post a bond of $10,000 within thirty days of the judgment or have his motion to modify dismissed.³ The appellant did not post the bond as ordered, and on October 7, 2005, the trial court granted the respondent's motion to dismiss.

This appeal follows.

I.

In Point I, the appellant claims that the trial court erred in dismissing his motion to modify the court's child support decree and court-approved parenting plan for failure to file a $10,000 bond, as ordered by the court pursuant to Section 452.455.4, because the trial court erroneously declared and applied the law with respect to Section 452.455.4, since by its express terms, that section only applies to motions to modify "child custody decree(s) . . . filed pursuant to Section 452.410 or sections 452.440 to 452.450," and his motion was not filed pursuant to "Section 452.410 or sections 452.440 to 452.450" and did not seek to modify the trial court's prior custody decree. Specifically, he claims that Section 452.455.4 only applies to motions seeking to modify child custody decrees, "filed pursuant to Section 452.410 or sections 452.440 to 452.450," and did not apply to his motion in that his motion only sought to modify child support, pursuant to Section 452.370; visitation, pursuant to Section 452.400.2; and the parties' court-approved parenting plan, pursuant to Section 452.310.7.

In her motion to dismiss the appellant's motion to modify, the respondent alleged that, inter alia, because the appellant owed her $20,074.44 in child support arrearages, "pursuant to Missouri Revised Statute 452.455, [he] should be required to post a bond of $20,074.44 prior to proceeding forward with this action." Essentially, what the respondent alleged in her motion was that the trial court, absent the filing of a bond by the appellant, as required by Section 452.455.4, lacked personal jurisdiction or authority to proceed against her on the appellant's motion to modify because it sought to modify the court's prior custody decree concerning the parties' unemancipated minor children. In other words, she was alleging, in effect, that the filing of a bond, pursuant to Section 452.455.4, was a condition precedent to the trial court's acquiring personal jurisdiction over her as to the appellant's motion. The trial court dismissed the appellant's motion to modify on October 7, 2005.

The appellant's claim, that Section 452.455.4 was erroneously applied to his motion, is predicated on his contentions that: (1) Section 452.455.4, by its terms, only applies to motions to modify child custody decrees under Section 452.410, which would not include motions to modify child support, as provided in Section 452.370; motions to modify visitation, as provided in Section 452.400.2; and motions to modify court-approved parenting plans; and (2) none of the four counts of his motion sought a modification of the trial court's prior custody decree, pursuant to Section 452.410. We will deal with each of these contentions in turn.

A. Interpretation of Section 452.455.4

In resolving the appellant's first contention in support of his claim in this point, we are required to interpret Section 452.455.4, which has not been previously interpreted by our appellate courts. The interpretation of a statute and whether it applies to a given set of facts are questions of law, which we review de novo. Boggs ex rel. Boggs v. Lay, 164 S.W.3d 4, 23 (Mo. App.2005). In interpreting statutes, we are to ascertain the intent of the legislature and give effect to that intent, if possible. In re Boland, 155 S.W.3d 65, 67 (Mo.banc 2005). In ascertaining legislative intent, we are to give the language used its plain and ordinary meaning. Id. "If the intent of the legislature is clear and unambiguous, giving the language used its plain and ordinary meaning, then we do not resort to statutory construction. In determining legislative intent, we are to read the statute as a whole and in pari materia with related sections." Scruggs v. Scruggs, 161 S.W.3d 383, 390 (Mo.App. 2005) (citations omitted).

Section 452.455.4 reads:

When a person filing a petition for modification of a child custody decree owes past due child support to a custodial parent in an amount in excess of ten thousand dollars, such person shall post a bond in the amount of past due child support owed as ascertained by the division of child support enforcement or reasonable legal fees of the custodial parent, whichever is greater, before the filing of the petition. The court shall hold the bond in escrow until the modification proceedings pursuant to this section have been concluded wherein such bond shall be transmitted to the division of child support enforcement for disbursement to the custodial parent.

(Emphasis added.) Giving the language of the statute its plain and ordinary meaning, it is clear that the posting...