Pilcher v. State, Dept. of Social Services, 18222

• Decision Date: 26 April 1983
• Docket Number: No. 18222,18222
• Citation: 663 P.2d 450
• Parties: Gary D. PILCHER, Plaintiff and Appellant, v. STATE of Utah, DEPARTMENT OF SOCIAL SERVICES, Defendant and Respondent.
• Court: Utah Supreme Court

Page 450

663 P.2d 450

Gary D. PILCHER, Plaintiff and Appellant, v. STATE of Utah, DEPARTMENT OF SOCIAL SERVICES, Defendant and Respondent.

No. 18222.

Supreme Court of Utah.

April 26, 1983.

Grant M. Prisbrey, Salt Lake City, for plaintiff and appellant.

David L. Wilkinson, Atty. Gen., Paul M. Tinker, Deputy Atty. Gen., Ted Cannon, County Atty., Randall L. Skeen, Salt Lake City, for defendant and respondent.

STEWART, Justice:

Plaintiff Gary D. Pilcher brought this action in district court for judicial review of an administrative proceeding conducted by the Department of Social Services. The district court affirmed an administrative judge's ruling that the Department was entitled to recover past due child support payments from plaintiff pursuant to U.C.A., 1953, § 78-45b-4. We affirm.

The plaintiff was formerly married to Donna V. Pilcher and was divorced from her in Utah in 1965. Pursuant to the divorce decree, Donna was awarded custody of their nine minor children and defendant was ordered to pay alimony and child support of $270 per month. However, plaintiff did not make all the support payments.

In 1968, while plaintiff was living in Texas, Donna sought to enforce the child support portion of the Utah divorce decree. Pursuant to the Uniform Reciprocal Enforcement of Support Act, a Texas district court ordered defendant to pay child support of $240 per month. Again plaintiff failed to make all the required support payments.

On January 3, 1978, the Department served on plaintiff a Notice of Support Debt. It notified plaintiff that Donna had received public assistance from the State of Utah for 108 months; that Donna had assigned to Social Services all her rights to support; and that pursuant to §§ 78-45b-4 and -5, the Department could assess plaintiff for the entire amount of support owed under the Utah divorce decree. In response plaintiff filed a motion to dismiss the Notice, which the Department administrative law judge granted without prejudice.

On October 20, 1978, the Department served on plaintiff a second Notice of Support Debt, which gave rise to this appeal. Based on the Texas court order, the Notice assessed $10,320 in unpaid child support payments. Plaintiff responded by filing an answer on January 26, 1979, which requested a hearing pursuant to § 78-45b-6, and a hearing was held February 22, 1979. After the hearing the Department was allowed to amend its Notice to include the Utah divorce decree as a second basis for the assessment. In March, the administrative law judge entered judgment against plaintiff, and this appeal followed.

On appeal, plaintiff asserts five errors in the administrative proceedings below. All plaintiff's contentions are without merit.

His first assertion of error is that the administrative hearing was not held within 30 days of the date on his answer, as he argues is required by § 78-45b-6. Plaintiff misreads this section. It requires only that support debt hearings be held within thirty days after the request for a hearing is filed, not after it is dated. ¹ Here, where the request was filed on January 26, 1979 and the hearing was held on February 22, 1979, that requirement was met, even though the request was dated November 15, 1978.

Plaintiff's second assertion of error is that the second Notice of Support Debt is barred by the "two dismissal" rule of Utah R.Civ.P. 41(a)(1), which reads in relevant part:

[N]otice of dismissal operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in any court of the United States or of any state an action based on or including the same claim.

Plaintiff contends that the first dismissal occurred when he caused the first Notice of Support Debt to be dismissed, and that the second dismissal occurred when a felony nonsupport complaint was later filed against him and subsequently dismissed. Neither the felony complaint nor the order dismissing that complaint is in the record.

While the mode of procedure before administrative bodies may conform to the Utah Rules of Civil Procedure, the rules governing civil procedure in the trial courts are not necessarily applicable to administrative proceedings. See, e.g., Silverman v. Commodity Futures Trading Commission, 549 F.2d 28 (7th Cir.1977) (Federal Rules of Civil Procedure for discovery do not apply); O'Mara v. California State Board of Pharmacy, 246 Cal.App.2d 8, 54 Cal.Rptr. 862 (1966) (California Civil Procedure Rule on motion for nonsuit does not apply). Thus, administrative proceedings are not subject to the Utah Rules of Civil Procedure unless the governing statute or regulations so provide.

Administrative proceedings are usually conducted with greater flexibility and informality than judicial proceedings. See 73 C.J.S. Public Administrative Bodies and Procedure, § 114 (1951). Rigid adherence to judicial procedures in administrative proceedings is generally inappropriate because it ignores basic differences between judicial and administrative procedures. See 3 K. Davis, Administrative Law Treatise § 14.1 at 3 (2d ed. 1980).

Even if we were to assume that the Utah Rules of Civil Procedure were applicable, plaintiff's reliance on Rule 41(a)(1) is misplaced. By its express terms, it applies only when the notice of dismissal is filed twice by the plaintiff in the action. See 9 C. Wright & A. Miller, Federal Practice and Procedure § 2368 (1971). Here, the first dismissal was not filed by the plaintiff in the administrative proceeding (i.e., the Department). Furthermore, plaintiff's reliance on documents not found in the record is improper. Matters not admitted in evidence before the trier of fact will not be considered here. In re Estate of Cluff, Utah, 587 P.2d 128 n. 1 (1978); Corbet v. Corbet, 24 Utah 2d 378, 381-82, 472 P.2d 430, 433 (1970).

Plaintiff's third assertion of error is that the amended Notice of Support Debt should not be considered because it introduces a new "cause of action." Generally, administrative pleadings are to be liberally construed and easily amended. Donovan v. Royal Logging Co., 645 F.2d 822 (9th Cir.1981); Southern Colorado Prestress Co. v. Occupational Safety and Health Review Commission, 586 F.2d 1342 (10th Cir.1978). In his Administrative Law Treatise, Professor Davis states: "Proof may depart from pleadings and pleadings may be amended to conform to proof if undue surprise is avoided." 3 K. Davis, supra, § 14.11 at 47.

The procedure for amending a Notice of Support Debt is controlled by rules promulgated pursuant to § 78-45b-3(7), which gives general authorization to the Department to adopt such rules and regulations as are necessary to carry out the provisions of Chapter 45b. ² The regulation which applies is Department of Social Services Regulation A32-01-17:2d(2), which reads:

At any time and upon such terms as it deems just, the administrative law judge may allow any process or proof of service thereof to be amended unless it clearly appears that material prejudice would result to the substantial rights of the party against whom the process is issued. (Emphasis added.)

"Process" refers to notices and motions served on defendants, which include the "Notice of Support Debt." See § 78-45b-4(1).

We perceive no "material prejudice" to plaintiff resulting from the amendment to the second Notice of Support Debt. Originally, the Notice apprised the plaintiff of the Department's intent to recover child support payments under the Texas court order. Plaintiff already knew that the Texas order was based on the Utah divorce decree and thus could not have been unduly surprised by the addition of that decree to the Notice. Rather than adding a new "cause of action," the amendment merely amplifies the claim for the support debt originally alleged. That addition was authorized by Regulation A32-01-17:2d(2).

Plaintiff's fourth and fifth assertions of error relate directly to Title 78, Chapter 45b of the Utah Code, the Public Support of Children Act, the express purpose of which is to augment "common-law and statutory remedies pertaining to family desertion and nonsupport of minor dependent children." § 78-45b-1.1. The Act does this by making the Department a trustee of causes of action for support where (1) the person in whose favor the cause of action lies has received assistance from the Department, or (2) the Department has contracted to collect support. § 78-45b-3(1). ³ Furthermore, the Department has an interest in a judgment for support money to the extent of its right of subrogation. § 78-45b-3(5). ⁴

The present case between plaintiff and the Department was initiated pursuant to § 78-45b-4 of the Act, which authorizes the Department to "issue a notice of a support debt accrued or accruing based upon any court order and shall include a demand for immediate payment of the support debt." Section 78-45b-5 is a related provision that authorizes a Notice of Support Debt without a court order.

Plaintiff's fourth assertion of error, which is unsupported by relevant authorities, is that the Texas court order does not provide a lawful basis for a proceeding before the Department. Plaintiff argues, in effect, that § 78-45b-4 should be construed to authorize only Notices of Support Debt based on court orders from Utah.

We see no reason to so limit the scope of § 78-45b-4. The only limitations on this section are those found in §§ 78-45b-3(1) and -3(5), which make the Department a trustee of causes of action for support, and grant it an interest in a judgment for support obligations. To the extent that these sections create a right of subrogation enforceable by § 78-45b-4, they limit the application of that section to court orders on behalf of persons who have received financial assistance from the Department, or who have contracted with the Department to collect their support payments. In the present case, Donna Pilcher and her children were receiving financial assistance from the Department at the time the...