Ogden v. Henry, WD

• Decision Date: 22 March 1994
• Docket Number: No. WD,WD
• Citation: 872 S.W.2d 608
• Parties: Teddy B. OGDEN, Appellant, v. Michael HENRY, Director, Division of Child Support Enforcement, Respondent. 47236.
• Court: Missouri Court of Appeals

Page 608

872 S.W.2d 608

Teddy B. OGDEN, Appellant, v. Michael HENRY, Director, Division of Child Support Enforcement, Respondent.

No. WD 47236.

Missouri Court of Appeals Western District.

March 22, 1994.

John E. Downs, Pope, Nichols & Hicks, St. Joseph, for appellant.

Don L. Cowan, Mo. Dept. of Social Services, Div. of Child Support Enforcement, Kansas City, for respondent.

Before BERREY, P.J., and BRECKENRIDGE and SMART, JJ.

BRECKENRIDGE, Judge.

Teddy B. Ogden appeals the judgment of the trial court affirming the decision of the hearing officer of the Department of Social Services, Division of Child Support Enforcement, who found that Mr. Ogden owed a child support arrearage in the sum of $20,380. Mr. Ogden raises three points on appeal, contending that the trial court erred in affirming the hearing officer's decision (1) because Brenda K. Ogden O'Brien acquiesced in receiving support payments of $20.00 per week per child; (2) because there was no evidence presented in the form of a sworn statement by Ms. O'Brien or a statement from the court certifying the amount of arrearage as required by § 454.475, RSMo 1986 ¹; and (3) because the Division of Child Support Enforcement did not follow its own rules. The judgment of the trial court sustaining the decision of the hearing officer is affirmed.

The marriage of Teddy B. Ogden and Brenda K. Ogden O'Brien was dissolved by the Circuit Court of Buchanan County, Missouri, on February 27, 1974. Pursuant to the provisions of the dissolution decree, Ms. O'Brien was granted custody of the four children of the marriage: Stacy, born April 30, 1964; Robert, born January 29, 1966; Teddy Joe (Jody), born October 13, 1968; and Candace, born August 3, 1970. The trial court ordered Mr. Ogden to pay to Ms. O'Brien "the sum of Eighty Dollars ($80.00) per week as and for support and maintenance for said children" commencing with the date of the decree. The decree directed that the weekly payments continue "until the further order of this Court."

On February 3, 1975, Ms. O'Brien filed in the Circuit Court of Buchanan County a verified petition for support under the Uniform Reciprocal Enforcement of Support Act (URESA). ² In her petition, Ms. O'Brien stated that "Plaintiff, to properly support dependents ..., will require the sum of $20.00 per week for each of said dependents named for support until said dependent reaches majority." ³ The petition made no reference to the original decree of dissolution and, in fact, attested that the marriage between Mr. Ogden and Ms. O'Brien "ha[d] not resulted in a divorce."

The URESA petition, an affidavit and a certificate of the judge were forwarded to the District Court of Gray County, Texas, the county of Mr. Ogden's residence. Sometime after the filing of the petition and before the hearing on the petition, Ms. O'Brien filed a motion for support in the proceeding in the Texas court. In the motion, Ms. O'Brien asked the court to grant her support of $125 per month for each child. Mr. Ogden noted in his brief on appeal that this motion was not taken up, sustained, or denied by the court.

A hearing was held on Ms. O'Brien's URESA petition on March 28, 1975, in the Gray County District Court. Ms. O'Brien appeared not in person, but by the Gray County attorney. Mr. Ogden appeared in person. The Texas court noted that "[t]he parties announced that all matters of controversy had been settled and the Court finds that said settlement is in all things fair and equitable." The Texas court found that Mr. Ogden's child support arrearage amounted to $1,200. ⁴ The court found further that the sum of "$20.00 per week per child" was a reasonable amount of support for Mr. Ogden to pay and made the following order:

IT IS FURTHER ORDERED that [t]he Defendant pay through the Clerk of this Court the sum of $20.00 per week per child with the first payment being due and payable on Tuesday, April 1, 1975, and a like amount on or before each Tuesday thereafter until further order of this Court, or until the child for whom payment is being made dies, marries or becomes 18 years of age.

Mr. Ogden reduced the amount of child support he was paying by $20.00 per week when Stacy married on or about February 23, 1980. After he notified the Texas court of the date that Robert would reach the age of eighteen, Mr. Ogden received a letter from the district clerk of Grey County, Texas. The letter stated that, "You owe child support on the child who reaches 18 for the full month of February, 1984, thereafter your support will reduce $20.00 per week." When Robert graduated from high school and reached the age of eighteen, Mr. Ogden reduced his child support payment by another $20.00 per week. When Teddy Joe reached the age of eighteen, Mr. Ogden again reduced the amount of child support he paid by $20.00 per week.

Ms. O'Brien applied to the Missouri Department of Social Services for aid in collecting child support from Mr. Ogden in March of 1988. As a part of her application, Ms. O'Brien completed a referral form in which she stated that she was owed $80 per week child support but that "as the kids got older [Mr. Ogden] took $20 off." On April 14, 1988, the Buchanan County prosecutor's office notified Mr. Ogden by letter that he was $14,650 behind on his child support payments for his daughter, Candace. The letter stated Mr. Ogden was required by the original dissolution decree to pay $80 per week in child support "regardless of the number of children still living in the home."

On April 17, 1990, the Missouri Child Support Enforcement Agency issued an administrative order wherein Mr. Ogden was found to be $22,610 in arrears in his child support payments. The administrative order directed Mr. Ogden to pay $80 per week for the current support of Candace and $20 per week on the arrearage.

Mr. Ogden contested the child support enforcement agency's order and requested a hearing, which was held before an administrative hearing officer on February 20, 1991. At the hearing, Mr. Ogden argued that Ms. O'Brien had acquiesced in the reduction of child support upon the emancipation of the children. Ms. O'Brien, however, testified that she was unaware that her URESA petition had been heard by a court in Texas and that when Mr. Ogden began reducing the amount of child support upon Stacy's marriage, she "had asked the Courts about why he was dropping this." The hearing officer concluded that Mr. Ogden failed to prove by a preponderance of the evidence that Ms. O'Brien had waived her right to collect the past due child support. The hearing officer ordered the agency to amend its order to change the amount of past due support owed by Mr. Ogden to $22,380 to reflect the arrearage found by the officer. Finding that Mr. Ogden's obligation to support Candace ended as of December 31, 1989, the officer directed the child support enforcement agency to delete from its order any requirement that Mr. Ogden pay current support.

Mr. Ogden timely filed a petition for review of the administrative decision in the Buchanan County Circuit Court. After a hearing, the circuit court affirmed the decision of the hearing officer. Mr. Ogden's subsequent motion to amend the judgment was denied by the circuit court. Mr. Ogden now appeals the judgment of the circuit court affirming the hearing officer's decision.

When reviewing an administrative action, this court examines the decision of the administrative agency, not the judgment of the circuit court. French v. French, 782 S.W.2d 449, 451 (Mo.App.1990). This court's function on review is limited to determining whether the action of the agency is in excess of jurisdiction, unsupported by competent and substantial evidence, or is arbitrary, capricious, or unreasonable. Id. The evidence and all reasonable inferences from the evidence will be considered in the light most favorable to the administrative agency's findings, Curtis v. Board of Police Com'rs, 841 S.W.2d 259, 261 (Mo.App.1992), and deference will be given to the hearing officer's assessment of credibility. Kansas City Club v. LIRC, 840 S.W.2d 273, 274 (Mo.App.1992).

I.

Mr. Ogden claims as his first point on appeal that the trial court erred in affirming the hearing officer's ruling that Ms. O'Brien had not acquiesced in receiving support payments of $20 per week per child and had not waived her right to receive $80 per week. As proof of Ms. O'Brien's acquiescence, Mr. Ogden contends that:

[Ms. O'Brien] advised the Gray County court in the URESL action that she required $20.00 per week per child, she agreed through her attorney in the Gray County Texas Court proceeding that she should receive $20.00 per week per child, the Gray County Texas court ruled that she was entitled to $20.00 per week per child, and she accepted ... $20.00 per week per child for many years without objection.

Before addressing Mr. Ogden's argument, it is necessary to note several precepts that govern the issues surrounding his argument. When a court awards child support for more than one child as a "lump sum," the obligor owes that amount until all the children are emancipated and cannot reduce the amount owed pro rata as the children reach majority without the prior approval of the court. Sutton v. Schwartz, 808 S.W.2d 15, 21 (Mo.App.1991). Furthermore, as Mr. Ogden recognizes, the granting of an amount of child support in a URESA action that is different from the amount ordered paid by a prior decree of dissolution does not, by itself, constitute a modification of the support provisions of the prior decree. State ex rel. Howell v. Howell, 818 S.W.2d 704, 706 (Mo.App.1991); Morton v. Morton, 798 S.W.2d 521, 523 (Mo.App.1990).

Mr. Ogden contends not that the Texas URESA order in and by itself modified the support terms of the original dissolution decree, but that Ms. O'Brien acquiesced both in the change of the support payments from "lump sum" to "per child" and in the Texas court's order that Mr. Ogden could cease...