Morfin v. Werdehausen

• Decision Date: 12 November 2014
• Docket Number: WD 77242
• Citation: 448 S.W.3d 343
• Court: Missouri Court of Appeals
• Parties: Francisco Morfin, Appellant, v. Angel Werdehausen and Family Support Division, Respondents.

448 S.W.3d 343

Francisco Morfin, Appellant

v.Angel Werdehausen and Family Support Division, Respondents.

WD 77242

Missouri Court of Appeals, Western District.

OPINION FILED: November 12, 2014

Mary Jane Browning, Jefferson City, MO, for appellant.

John R. Suermann, Jr., Kansas City, MO, for respondents.

Before Division Three: Karen King Mitchell, Presiding Judge, Cynthia L. Martin, Judge and Gary D. Witt, Judge.

Opinion

Cynthia L. Martin, Judge

Appellant Francisco Morfin (“Father”) appeals a Decision and Order (“Order”) from the Family Support Division (“FSD”) of the Missouri Department of Social Services in which Father received an abatement of child support in an amount that was less than he requested. Father argues that (1) he is entitled to a rehearing because he did not receive a full and fair hearing due to a language barrier in violation of his right to due process, and (2) he is entitled to the full abatement he requested because the Order is not supported by substantial evidence. Because Father did not preserve his first point for review, and because there was substantial evidence to support the Order, we affirm.

Factual and Procedural History

Father and Angel Werdehausen (“Mother”) were married in Las Vegas, Nevada, in July 1991. They had three children and eventually moved to Missouri. On May 17, 2001, the Division of Child Support Enforcement (“DCSE”) entered an order requiring Father to pay $528 a month in child support for his three children.¹ The order had an effective date of April 15, 2001, and was to continue until further order of DCSE or a court.

On July 6, 2001, Mother requested that enforcement of the DCSE child support order be closed. On January 2, 2009, Mother requested that enforcement of the DCSE child support order be re-opened. Up to that point, Father had not made any of the ordered payments.

Father and Mother separated in August 2009. Father first made a partial payment pursuant to his obligation under the DCSE child support order in December 2009. Payments in varied amounts were made each month thereafter through November 2012.

Dissolution proceedings were initiated at some point after the parties separated, and a decree of dissolution of marriage was entered on September 29, 2011. The dissolution decree acknowledged the emancipation of one of the three children born of the marriage, and awarded no child support going forward for the other two children because the parenting plan envisioned that both Mother and Father would spend substantial time with the children.² The dissolution decree did not refer to the DCSE child support order, or to the arrearage owed by Father pursuant to that order. However, consistent with the terms of the order, Father's monthly child support obligation ceased accruing after the dissolution decree was entered.

On October 24, 2012, Father requested an abatement of the full amount of unpaid child support due and owing under the DCSE child support order, claiming he had been living with Mother and directly supporting the children from January 1, 2001 to August 1, 2009 when the parties separated.³ Pursuant to section 454.475,⁴ a hearing was scheduled on Father's request on December 20, 2012, before the Administrative Hearings Unit of the Missouri Department of Social Services.

Father, Mother, and an FSD technician were present at the hearing, which was conducted in part by telephone.⁵ FSD provided an interpreter for the proceeding of its own initiative.⁶

The interpreter's credentials were not established on the record, and the interpreter was not sworn. The interpreter's translation of the hearing for Father was sporadic. Sometimes the interpreter was asked to translate the comments of a party immediately after that party spoke, while at other times extended discussion would take place before the interpreter would be asked to translate what had transpired. Some portions of the proceeding were not translated at all.⁷ Father registered no objections during the hearing regarding use of the interpreter, or about the failure to establish the interpreter's credentials or to swear the interpreter as a witness. Father, through the interpreter, did express confusion about why Mother was insisting upon enforcement of the DCSE child support order, and about why FSD accrued his child support obligation during the period when enforcement of the child support order had been closed at Mother's request. However, Father gave no indication that he did not understand what was being said or asked of him during the proceedings. In fact, Father appears from the record to understand English, as his hearing testimony, which was tape recorded and transcribed, reflects that he responded to some questions from the hearing officer that were not first translated by the interpreter from English to Spanish.

During the hearing, Father argued that he resided with Mother and the children at all times between January 1, 2001 and August 1, 2009, and was only away from the marital home for a few days at a time. Father submitted joint tax returns from 2000–2007 and two notarized letters from relatives stating Father and Mother lived together with their children during the time period in question.

Mother disputed Father's testimony and said that the children primarily resided with her alone from January 1, 2001, to August 1, 2009. Mother acknowledged that Father resided with her and the children for six to eight months in late 2002 and early 2003 after she became ill and that Father provided direct financial assistance on other occasions. Mother testified that Father primarily resided with his sister after March 2003.

The FSD submitted a Child Support Debt Computation Worksheet which alleged that from April 15, 2001 (the effective date of the DCSE child support order) to December 3, 2012 (just prior to the hearing), the total support due from Father after crediting all payments made was $55,803.49. The FSD technician explained that when enforcement of a child support order is closed and re-opened, all support accumulated during the interim period becomes due and payable.

The hearing officer entered his Order finding both Mother and Father's testimony to be “unreliable.” The hearing officer found the FSD technician's testimony that Mother had closed enforcement of the DCSE child support order between July 6, 2001 and January 1, 2009 to be credible. The hearing officer inferred that Mother was receiving direct support in some amount from Father during that time. The hearing officer thus awarded Father an abatement of $23,760, “half of the total amount due from July 6, 2001 until January 1, 2009.” According to the Order, this amount was “meant to fairly represent the portion of support Father provided from July 6, 2001 until January 1, 2009, when he was in and out of the home, as well as, recognize that Mother was the primary caregiver of the children during this time period.” No abatement was awarded for the period between April 15, 2001 and July 6, 2001, or for the period after January 1, 2009 until October 2011 when Father's child support obligation ceased pursuant to the dissolution decree.

With the benefit of counsel, Father timely filed a petition for judicial review of the Order to the Circuit Court of Cole County. Father argued that the amount of the awarded abatement was in error, and that Father was entitled to the full abatement he had requested. The petition for judicial review made no claim of error related to the use of an interpreter during the administrative hearing. In pre-trial briefing before the Circuit Court, Father raised for the first time the argument that the “hearing officer [did not] verify the interpreter's name or credentials,” and that “nothing in the transcript or audio recording of the administrative hearing ... indicates the interpreter has an interpretation certification.”

Father's brief did not raise a concern that the interpreter had not been sworn or address the sporadic use of the interpreter at the administrative hearing. At trial, the Circuit Court confirmed that “the record did not support a finding that there was a certified interpreter.” At no point during trial was there any discussion about whether the interpreter had been sworn. Father's counsel did argue that the interpreter had not been used consistently throughout the hearing to translate the proceedings. Pressed by the trial court to identify how or whether issues involving the interpreter prejudiced Father, Father only generally argued that Father had not been given a full and fair opportunity to present his arguments for abatement. Father did not identify, however, any errors in translation made by the interpreter or any discussion during the administrative hearing that Father failed to understand.

The trial court affirmed the Order, noting that Father failed to establish that he did not obtain a fair trial without the services of a “certified interpreter,” and that the abatement calculated by the administrative hearing officer was supported by competent and substantial evidence on the record as a whole.

Father timely appeals to this Court.

Standard of Review

“On appeal from the circuit court's review of an agency decision, this Court reviews the action of the agency, not the action of the circuit court.” State Bd. of Registration for the Healing Arts v. Trueblood, 368 S.W.3d 259, 261 (Mo.App.W.D.2012). “[W]e presume that the agency's decision is correct, and the burden to show otherwise is placed on the party challenging the decision.” Ringer v. Missouri Dept. of Health & Senior Services, 306 S.W.3d 113, 114 (Mo.App.W.D.2010).

We examine the decision to determine “ ‘whether, considering the whole record, there is sufficient competent and substantial evidence to support [it]. This standard would not be met in the rare case where the [decision] is contrary to the overwhelming weight of the evidence.’ ” Albanna v. State Bd. of Registration for Healing Arts, 293 S.W.3d 423, 428 (Mo. banc 2009) (quoting Lagud v. Kansas...