Warkenthien v. Family Support Division, 082719 MOCAW, WD82427

Docket Nº:WD82427
Opinion Judge:Cynthia L. Martin, Judge
Party Name:JOHN F. WARKENTHIEN, Appellant, v. FAMILY SUPPORT DIVISION, DEPARTMENT OF SOCIAL SERVICES, STATE OF MISSOURI, Respondent.
Judge Panel:Before: Cynthia L. Martin, Presiding Judge, Victor C. Howard, Judge and Alok Ahuja, Judge
Case Date:August 27, 2019
Court:Court of Appeals of Missouri
 
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JOHN F. WARKENTHIEN, Appellant,

v.

FAMILY SUPPORT DIVISION, DEPARTMENT OF SOCIAL SERVICES, STATE OF MISSOURI, Respondent.

No. WD82427

Court of Appeals of Missouri, Western District, First Division

August 27, 2019

Appeal from the Circuit Court of Cole County, Missouri The Honorable Jon E. Beetem, Judge

Before: Cynthia L. Martin, Presiding Judge, Victor C. Howard, Judge and Alok Ahuja, Judge

Cynthia L. Martin, Judge

John F. Warkenthien ("Father") appeals from a determination entered by the Director ("Director") of the Family Support Division ("FSD") of the Missouri Department of Social Services that affirmed the FSD's certification to the United States Department of State ("Department of State") that Father owed an arrearage of child support in an amount exceeding $2, 500. Finding no error, we affirm.

Factual and Procedural Background

Father and Kimberly A. Warkenthien ("Mother") were married in 1982. Three children were born of the marriage. In 2007, the marriage between Father and Mother was dissolved. At that time, a judgment was entered ordering Father to pay child support in the amount of $1, 000.00 per month, health insurance, and spousal maintenance to Mother. The original dissolution judgment also ordered Father to pay 75% of each child's college expenses as defined by Missouri statute. In 2014, a modification judgment ("Modification Judgment") was entered finding that Father owed $59, 807 in unpaid spousal maintenance; $2, 000 in unpaid monthly child support; and $9, 750 for Father's share of post-secondary educational expenses for the children, all of whom were by then emancipated.

On January 16, 2015, the FSD certified to the Department of State that Father owed an arrearage of child support in excess of $2, 500. On October 11, 2017, Father was informed that his application to renew his passport had been denied because he owed an arrearage of child support exceeding $2, 500. On November 7, 2017, Father requested a hearing to challenge the FSD's certification to the Department of State.1 On December 14, 2017, a hearing was held pursuant to sections 454.5112 and 454.475. On January 18, 2018, the Director of the FSD affirmed the agency's determination.

On February 15, 2018, Father timely requested judicial review as provided under section 536.100. On December 26, 2018, the Cole County Circuit Court affirmed the Director's determination.

Father timely appeals.

Standard of Review

"In an appeal following judicial review of an agency's administrative action, this court reviews the decision of the agency, not the circuit court." Tetzner v. State, Dept. of Social Services, Family Support Div., 446 S.W.3d 689, 691 (Mo. App. W.D. 2014). "Our scope of review is limited to whether the agency's decision: (1) Is in violation of constitutional provisions;

(2) Is in excess of the statutory authority or jurisdiction of the agency;

(3) Is unsupported by competent and substantial evidence upon the whole record;

(4) Is, for any other reason, unauthorized by law;

(5) Is made upon unlawful procedure or without a fair trial;

(6) Is arbitrary, capricious or unreasonable;

(7) Involves an abuse of discretion."

Id. (citing section 536.140.2). While we defer to the agency's findings of fact, we review the agency's interpretation, application, or conclusions of law de novo. Section 536.140.3; Tetzner, 446 S.W.3d at 691.

Analysis

Father raises a single point on appeal. Father asserts that the Director "incorrectly and improperly concluded" that an arrearage owed by Father under the Modification Judgment for "college expenses and maintenance" was child support for purposes of certification of unpaid child support to the Department of State.3 Because the Director's determination that Father owed in excess of $2, 500 in child support was lawful considering only Father's unpaid college expenses, we address that issue first, and need not address Father's additional argument that unpaid maintenance cannot be considered in calculating a child support arrearage.4

Title IV, Part D of the Social Security Act establishes enforcement and collection procedures for support obligations owed by noncustodial parents to their children and former spouses. See 42 U.S.C. section 651. Included among the enforcement procedures is a certification process which permits the Secretary of State to deny or restrict an obligor's passport. 42 U.S.C section 652(k) provides that: (1) If the Secretary [of the United States Department of Health and Human Services] receives a certification by a State agency . . . that an individual owes arrearages of child support in an amount exceeding $2, 500, the Secretary shall...

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