State ex rel. Mo. Dep't of Soc. Servs., Family Support Div. v. Campbell

Decision Date27 November 2012
Docket NumberNo. WD 75408.,WD 75408.
Citation386 S.W.3d 229
PartiesSTATE ex rel. STATE of Missouri, DEPARTMENT OF SOCIAL SERVICES, FAMILY SUPPORT DIVISION, Relator, v. The Honorable Patrick W. CAMPBELL, Respondent.
CourtMissouri Court of Appeals

OPINION TEXT STARTS HERE

Jo–Ellen Horn and Nicolas Taulbee, Kansas City, MO, for relator.

Donald H. Loudon, Jr., Independence, MO, for respondent.

Before Writ Division: CYNTHIA L. MARTIN, Presiding Judge, VICTOR C. HOWARD, Judge and THOMAS H. NEWTON, Judge.

CYNTHIA L. MARTIN, Judge.

State ex rel. State of Missouri, Department of Social Services, Family Support Division (“FSD,” “State,” or “Relator”) seeks a permanent writ of prohibition to prevent enforcement of an order issued by the Honorable Patrick W. Campbell (Respondent) directing the State to advance the cost of genetic paternity testing in an action seeking to set aside a judgment of paternity pursuant to section 210.854. We issued a preliminary writ of prohibition. Our preliminary writ of prohibition is made absolute.

Factual and Procedural Summary

On December 9, 2011, Gregory Alan Fields (“Fields”) filed a Petition to Set Aside Judgment of Paternity and Support pursuant to section 210.8541 (“Petition”). Fields sought to set aside judgments entered in the Circuit Court of Jackson County, Missouri on August 6, 1997, and May 20, 2000, which (according to Fields) 2 declared Fields to be the father of two children: RAF–C (born July 26, 1996), and CML, Jr. (born October 4, 1997). The Petition named the two minor children, the mother of the children, a man alleged by Fields to be the father of the children, and FSD 3 as defendants.”

On July 12, 2012, Respondent entered an order requiring the minor children identified in the Petition to present for genetic paternity testing at Paternity Testing Corporation, a qualified paternity testing facility (Order”). The Order directed that Petitioner State of Missouri, shall advance the cost of said testing for the minor children ... Final responsibility for payment of such costs shall be determined at a later hearing.” Though the Order called the State the petitioner,” the case caption of the Order identifies Fields as the petitioner and all of the defendants named by Fields in the Petition (including FSD) as respondents.”

FSD filed a Petition for Writ of Prohibition in this court on September 7, 2012. FSD argued that section 210.854.3 requires Fields to pay the cost of genetic paternity testing ordered pursuant to section 210.854. Pending receipt of suggestions in opposition, we stayed enforcement of the Order with the exception that Respondent remained free to modify the Order to require Fields to advance the cost of genetic paternity testing. Respondent did not modify the Order.

On August 8, 2012, we issued a Preliminary Writ of Prohibition prohibiting Respondent from enforcing his Order insofar as it required the State to advance the cost of genetic paternity testing. The Preliminary Writ permitted Respondent to modify the Order to require Fields to advance the cost of genetic paternity testing. Respondent has not modified the Order.

Analysis

Section 210.854 was enacted in 2009. It creates a right to seek to set aside an otherwise final, non-appealable judgment determining paternity and to unwind the financial and criminal ramifications of non-support resulting from the judgment. A petition seeking relief under section 210.854 was required to be filed prior to December 31, 2011, and thereafter could only be filed within two years of the entry of a judgment of paternity. Section 210.854.1. A petition seeking relief under section 210.854 is to be filed “in the county which entered the judgment or judgments of paternity and support.” Id. Fields's Petition was filed December 9, 2011.

Section 210.854.2 requires the petition to “include an affidavit executed by the petitioner alleging that evidence exists which was not considered before entry of judgment,” and either that a DNA test conducted within ninety days of the petition excludes the petitioner as the father, or [a] request to the court for an order of genetic paternity testing using DNA methodology.”If DNA testing is requested, Section 210.854.3 requires the court to conduct an evidentiary hearing to determine whether “probable cause [exists] to believe said testing may result in a determination of nonpaternity,” in which case the court shall order the relevant parties to submit to genetic paternity testing.” (Emphasis added). Section 210.854.3 then provides that [t]he genetic paternity testing costs shall be paid by the petitioner. Id. (emphasis added).

Fields's Petition requested an order of genetic paternity testing pursuant to section 210.854.2. Respondent thus entered his Order pursuant to section 210.854.3 requiring the minor children identified in the Petition to present for genetic paternity testing. As noted, however, the Order did not require Fields, as the petitioner, to pay for the genetic paternity testing. Instead, the Order required the State “to advance the cost of said testing,” and noted that [f]inal responsibility for payment of such costs shall be determined at a later hearing.”

Respondent did not have the authority or the discretion to impose the obligation to pay for section 210.854.3 genetic paternity testing on the State, temporarily or otherwise. The plain language of section 210.854.3 provides that Fields, the petitioner who initiated the section 210.854 action, shall pay the cost of genetic paternity testing. There is nothing ambiguous about this directive. “If the provisions of a statute are express and unambiguous, the court is not at liberty to construe the language ... because the court functions to enforce the law as it is written.” State ex rel. Igoe v. Bradford, 611 S.W.2d 343, 349 (Mo.App.1980).

Respondent argues 4 that notwithstanding the clarity of section 210.854.3, he allowed Fields to pursue his section 210.854 case in forma pauperis, and that Fields is thus guaranteed access to “all necessary process and proceedings as in other cases without fees, tax, or charge.” Section 514.040.1. Respondent argues the cost of genetic paternity testing ordered under section 210.854.3 is a fee, tax, or charge within the scope of section 514.040.1, and that Fields cannot be compelled to pay said cost.

Respondent's argument is irrelevant to the issue before us. It is immaterial whether Fields has been permitted to pursue his section 210.854 action in forma pauperis,5 or whether the cost of genetic paternity testing is a fee, tax, or charge within the scope of section 510.040.1 Even if we accept, arguendo, both premises as true, Respondent fails to identify the source of his authority to shift Fields's statutory obligation to pay for section 210.854.3 genetic paternity testing to the State.

“Absent statutory authority, costs cannot be recovered in state courts from the state of Missouri or its agencies or officials.” Richardson v. State Highway & Transp. Com'n, 863 S.W.2d 876, 882 (Mo. banc 1993) (citations omitted). “When the General Assembly waives [sovereign] immunity regarding costs, it does so explicitly.” Id.6 Referring expressly to Chapter 514 RSMo., the Supreme Court in Richardson held that [t]he legislature has enacted several laws about costs in civil cases, none of which authorize awarding costs against the sovereign.Chap. 514 RSMo. Id. (emphasis added). Thus, even assuming Fields's status as an indigent under section 514.040, and even assuming genetic paternity testing costs are “costs” under section 514.040, the obligation to pay costs which would otherwise be Fields's responsibility cannot be shifted to the State.

Though not raised by Respondent,7 we are aware that separate and apart from section 210.854.3, section 210.834.1 provides a second means by which a court can order parties in a paternity proceeding to submit to blood tests. Section 210.834.1 provides in pertinent part that:

The court may, and upon request of any party shall require the child, mother, alleged father, any presumed father who is a party to the action, and any male witness who testifies or shall testify about his sexual relations with the mother at the possible time of conception, to submit to blood tests.

(Emphasis added.) Section 210.834 is a part of the Uniform Parentage Act, sections 210.817 to 210.852, enacted in 1987. “The action” referred to in section 210.834.1 is an action pursuant to section 210.826.1 or .2 to determine “the existence of the father and child relationship” in the first instance.

In connection with blood tests ordered in a section 210.826 action to determine paternity, section 210.834.4 provides:

Whenever the court finds that the results of the blood tests show that a person presumed or alleged to be the father of the child is not the father of such child, such evidence shall be conclusive of nonpaternity and the court shall dismiss the action as to that party, and the cost of such blood tests shall be assessed against the party instituting the action unless the division of child support enforcement, through a prosecuting attorney or circuit attorney or other attorney under contract with such division, is a party to such action, in which case the cost of such blood testsshall be assessed against the state. The court shall order the state to pay reasonable attorney's fees for counsel and the costs of any blood tests where such blood tests show that the person presumed or alleged to be the father of the child is not the father of the child and the state proceeds further in an action pursuant to sections 210.817 to 210.852 to attempt to establish that such person is the father of the child.

(Emphasis added.) This provision, by its terms, does not address section 210.854 proceedings, and does not address circumstances where a person has already been determined by a judgment of paternity to be the father, and is seeking to set that judgment aside.

Section 210.842, titled “Costs,” provides:

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6 cases
  • Truong v. Truong
    • United States
    • Missouri Court of Appeals
    • 27 November 2018
    ...and to unwind the financial and criminal ramifications of non-support resulting from the judgment." State ex rel. Mo. v. Campbell, 386 S.W.3d 229, 230 (Mo. App. W.D. 2012). The petition must be filed within two years of the judgment, and must be served upon the biological mother. Section 21......
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    ...the court functions to enforce the law as it is written.” State ex rel. State, Dept. of Social Services, Family Support Div. v. Campbell, 386 S.W.3d 229, 231 (Mo.App.W.D.2012) (quoting State ex rel. Igoe v. Bradford, 611 S.W.2d 343, 349 (Mo.App.W.D.1980) ). Furthermore, “we are not guided o......
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    • 15 December 2015
    ...seek to set aside an otherwise final, non-appealable judgment determining paternity." State ex rel. State Dept. of Social Servs., Family Support Div. v. Campbell, 386 S.W.3d 229, 230 (Mo.App.W.D.2012). The statute provides that a legal father may file a petition to set aside the paternity j......
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3 books & journal articles
  • Section 13.13 Acting in Excess of Jurisdiction or Authority (New Title)
    • United States
    • The Missouri Bar Appellate Court Practice Deskbook (2015 edition) Chapter 13 Writs of Mandamus and Prohibition
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    • The Missouri Bar Family Law (2014 Supp) Chapter 21 Use of Experts
    • Invalid date
    ...sections 210.818 through 210.852 shall apply. In State ex rel. State, Department of Social Services, Family Support Division v. Campbell, 386 S.W.3d 229 (Mo. App. W.D. 2012), the court discussed § 210.854, now RSMo Supp. 2013, enacted in 2009. The court held that, under the plain language o......
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    • United States
    • The Missouri Bar Family Law Deskbook Chapter 21 Use of Experts
    • Invalid date
    ...sections 210.818 through 210.852 shall apply. In State ex rel. State, Department of Social Services, Family Support Division v. Campbell, 386 S.W.3d 229 (Mo. App. W.D. 2012), the court discussed § 210.854, now RSMo 2016, enacted in 2009. The court held that, under the plain language of § 21......

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