State ex rel. State of Ill. v. Schaumann
| Decision Date | 26 March 1996 |
| Docket Number | No. 69993,69993 |
| Citation | 918 S.W.2d 393 |
| Parties | STATE of Missouri ex rel. STATE OF ILLINOIS and Sherry Lowery, et al., Relators, v. The Honorable Dennis SCHAUMANN, Division 14 Judge of the Circuit Court of the City of St. Louis, 22nd Judicial Circuit. |
| Court | Missouri Court of Appeals |
Appeal from Missouri Circuit Court, City of St. Louis County; Honorable Dennis Schaumann, Judge.
Michael Shelton, St. Louis, for relators.
Alan W. Cohen, St. Louis, for respondent.
The State of Illinois ("State"), acting on behalf of Sherry Lowery ("Mother"), brought an action against Jonathan Nelson ("Nelson") under the Uniform Reciprocal Enforcement of Support Act, §§ 454.010-.360 RSMo 1994 1, ("URESA"), alleging that Nelson was the father of Mother's minor child, J.N. ("Child") and seeking support for Child from Nelson. The action was transferred to Missouri, where Nelson resides, as responding state. Nelson filed a motion to dismiss alleging that Mother failed to comply with the pleading requirements of the Uniform Parentage Act, § 210.817-.852 ("UPA") and, specifically, that Mother had failed to join Child as a necessary party to the action as required by § 210.830. The trial judge ("Respondent") agreed with Nelson. Relators filed this original proceeding in prohibition seeking to prevent Respondent from ordering the addition of the minor child as a party to the underlying URESA action and from dismissing their petition should they fail to do so or otherwise fail to conform the petition to the requirements of the UPA which have been specifically incorporated into URESA. We order that our preliminary writ heretofore issued now be made permanent.
Section § 210.830 of the UPA requires that Child be made a party to a paternity action filed pursuant to the UPA. Relators contend that the trial court erred in finding § 210.830 applicable to the instant action when URESA itself contains no such requirement. They argue that such an incorporation contravenes the legislative intent behind URESA and is not warranted by either the plain meaning of the statute or relevant case law. We agree.
The purposes of URESA are to improve and extend the enforcement of the duties of child support and make the laws regarding this enforcement uniform. § 454.010. URESA allows a party to whom support is owed or any state agency providing public aid to those parties to bring an action to enforce an obligation of support against an out-of-state obligor. §§ 454.020(8), 454.080. The statute also provides that if the obligor raises the defense that he is not the father of the child in question, the court may then adjudicate the issue of paternity. § 454.200.
Prior to July 1, 1994, URESA was silent on what rules and procedures were to be applied in such an adjudication. In Michigan Dep't of Social Servs. ex rel. D.H. v. K.S., 875 S.W.2d 597, 600 (Mo.App.1994), this court held that the issue of paternity in an interstate URESA action shall be adjudicated according to the procedures set forth in the UPA as adopted by the Missouri legislature. The court noted that URESA contained no procedures for determining paternity while UPA established a comprehensive statutory scheme for doing so. Id. at 599. The court also noted that it was well established that the UPA was the exclusive means for determining paternity in Missouri and that to hold its provisions inapplicable in a paternity proceeding pursuant to a URESA action would frustrate the purpose of the UPA and deprive litigants of their rights thereunder. Id. at 600; P.L.K. v. D.R.K., 852 S.W.2d 366, 368 (Mo.App.1993).
Relators argue that continued adherence to Michigan DSS 2 would contradict the intent of the legislature as demonstrated by an amendment to § 454.200 of URESA which was passed but had not yet become effective when Michigan DSS was decided. This amendment added a new subsection to § 454.200 which provides:
4. In any proceeding under sections 454.010 to 454.360 (URESA) in which paternity is at issue, the provisions of sections 210.822 and 210.834 RSMo, shall apply.
Sections 210.822 and 210.834 are provisions of the UPA which inter alia establish relevant presumptions and burdens of proof in paternity actions. Additionally, they authorize and detail the blood testing procedures to be used to resolve paternity claims. Significantly, neither §§ 210.822 nor 210.834 contain any requirement that the child be made a party to the proceeding. Although § 210.830 does contain such a requirement for paternity actions brought pursuant to the UPA, that section was not specified in § 454.200.4 as one of the sections to be followed in determining paternity in a URESA action. Thus, the issue presented is whether the legislature intended to require that the child be made a party to URESA actions adjudicating the issue of paternity when it incorporated other procedural requirements of the UPA, but not that one, into URESA.
In construing laws, the primary rule is to ascertain the legislative intent from the words used, considering the words in their plain and ordinary meaning. Killion v. Bank Midwest, N.A., 886 S.W.2d 29, 32 (Mo.App.1994). In general, the express mention of one thing implies the exclusion of another. Harrison v. MFA Mutual Ins. Co., 607 S.W.2d 137, 146 (Mo. banc 1980). Here, the legislature chose to expressly mention §§ 210.882 and 210.834. This implies that the incorporation of § 210.830, with its requirement that the child be made a party, was considered and rejected. Had the legislature wished to adopt § 210.830 it could have expressly done so. Given that it did not, we can only conclude that it is the intent of the legislature that a child not be deemed a necessary party to an adjudication of paternity in a URESA action.
Further, wholly aside from the legislature's apparent intent based on the wording of § 454.200.4, there are substantial reasons why the legislature might not wish to require a child to be made a party to a URESA action. In many instances, as in the present case, the real party in interest in a URESA action is the state in which the child resides, which is expending or has expended public funds for support of a resident minor child due to the failure of the natural parent to satisfy support obligations. The plaintiff(s), which may or may not include the parent receiving support, is represented by the local prosecutor, who likely will have no occasion to meet the child or know anything about the child's circumstances other than the receipt of public assistance. Although non-paternity may be raised as a defense, the plaintiff's concern is really about money, not about obtaining a legally binding declaration of paternity in behalf of the child. If the child is made a party, the child could be bound by the determination of paternity even though the determination of paternity may not be the paramount concern of the prosecutor trying the case. Appointment of a guardian ad litem to protect the child's interests could frustrate the expeditious collection of child support that is an acknowledged purpose of URESA.
On the other hand, if the child is not made a party, the URESA proceeding cannot bind the child. Thus, there is no risk that an adverse determination as to the paternity of the child would foreclose reconsideration of the issue in a proper proceeding where the interests of the child are accorded full protection. The only risk of an incorrect adverse determination on the issue of paternity would be the plaintiff state's failure to recoup an expenditure of public funds. Because the interest at stake would be purely financial, streamlined or bulk procedures which typify URESA actions could not impinge upon the child's best interests. In contrast, UPA actions, which may entail custody issues as well as paternity and support issues, necessarily invoke consideration of the child's best interests thus providing the...
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