Boyer v. State ex rel. Stuerke

851 S.W.2d 802, 1993 Mo. App. LEXIS 638, 1993 WL 137511
CourtMissouri Court of Appeals
DecidedMay 4, 1993
DocketNo. WD 46551
StatusPublished
Cited by1 cases

This text of 851 S.W.2d 802 (Boyer v. State ex rel. Stuerke) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Boyer v. State ex rel. Stuerke, 851 S.W.2d 802, 1993 Mo. App. LEXIS 638, 1993 WL 137511 (Mo. Ct. App. 1993).

Opinion

PER CURIAM.

Karl Boyer appeals from a judgment of the circuit court affirming the decision of a hearing officer of the Division of Child Support Enforcement which held that Karl owes an arrearage of $14,096.44 in child support and that he must pay to the court trustee $450 per month — $150 toward the arrearage and $300 for current support. He also appeals the affirmance by the circuit court of an order issued by the Division of Child Support Enforcement to Karl’s employer instructing the employer to withhold and pay over to the state $450 or 50% of Karl’s monthly disposable income, whichever is less. Affirmed.

The marriage of Karl and Sherry Boyer was dissolved on December 27, 1976 in Jackson County, Missouri. Sherry was given custody of the couple’s two children. Karl was ordered to pay $150 per month per child in support. Sherry assigned her right to support to the Missouri Department of Social Services in 1979, 1983 and 1984.

Sherry and the children moved to California, where Sherry filed a petition for support under the Uniform Reciprocal Enforcement of Support Act (URESA)1 on December 19, 1978. On February 22, 1979, a consent judgment was entered in the URESA action in the Circuit Court of Jackson County, Missouri. The judgment ordered Karl to pay $60 per month per child for support to the court trustee of Jackson County.

An affidavit of arrearage was filed on May 20, 1985 in which a deputy court administrator for Jackson County stated that Karl owed $16,785 in support to the court. No action was taken by either party on that affidavit. On February 3, 1986 a second deputy court administrator filed an affidavit of arrearage stating that Karl owed $2,600 in child support. On June 6, 1986 Karl paid $2,725 to the Department of Civil Records.

On December 18, 1989 the Director of the Division of Child Support Enforcement of the Department of Social Services entered an Administrative Order on an Existing Order pursuant to section 454.4762. The Department found that Karl was required to pay $150 per child per month under an existing support order, and that he was $17,096.44 in arrears. Karl was ordered to pay $450 per month to the state — $300 for current support and $150 toward the arrearage.

Karl requested and received a hearing before a hearing officer of the Division of Child Support Enforcement. The hearing officer found that the state’s records were incomplete and inaccurate as to the amount of payments made by Karl. Karl’s records were found to be the most accurate, complete and reliable, and the hearing officer used them in determining Karl’s actual ar-[804]*804rearage to be $14,096.44. The portion of the order requiring Karl to pay $450 per month to the state was upheld. Karl appealed to the circuit court, which affirmed the decision of the hearing officer. Karl then undertook this appeal.

Karl makes four arguments on appeal. First, he argues that the court erred in affirming the finding that Karl’s payment of $2,725 in response to a show cause order based on the affidavit of arrearage filed February 3, 1986 did not bring his account current. Karl claims he has made regular payments since that time, making any finding of arrearage arbitrary and capricious.

Karl fails to provide any authority for his position that the state is bound by the 1986 affidavit of arrearage. He also fails to explain why the state would be bound by one affidavit and not an earlier affidavit, which stated that Karl owed $16,785 in back support. Furthermore, it was apparent from Karl’s own records, which he offered at the hearing before the hearing officer, that the 1986 affidavit of arrearage was grossly inaccurate.

Karl next claims that the court erred in finding that the consent judgment of February 22, 1979 did not modify the support order. The consent judgment was entered in the URESA action commenced by Sherry while she lived in California. Missouri was the responding state in this action.

Section 454.280 provides “[n]o order of support issued by a court of this state when acting as a responding state shall supersede any other order of support.” The decision of the Division of Child Support Enforcement held that this statute contemplated separate and independent support duties under separate and independent orders, citing Olson v. Olson, 534 S.W.2d 526 (Mo.App.1976).

This case is controlled by Morton v. Morton, 798 S.W.2d 521 (Mo.App.1990), in which the court held that an award of child support in a URESA proceeding which differed from the amount in the original decree was not a modification of the original award. In Morton, the trial court denied the wife’s motion to modify the original decree, stating that she had failed to prove changed circumstances from the date of a URESA judgment, which had ordered the husband to pay less child support than that contained in the decree. The court of appeals reversed, stating that participation in a URESA action did not confer upon the URESA court power to modify the decree. Morton, 798 S.W.2d at 523.

In re Stigall, 756 S.W.2d 184 (Mo. App.1988), cited by Karl as support for his position, is distinguishable from the case before us. There is no indication that Karl made a specific plea for modification at the URESA hearing. There is no evidence that Sherry had agreed to a modification of Karl’s support obligation. Sherry was not personally present when the consent judgment was ordered. The fact that the prosecuting attorney was present is not enough to attribute acquiescence to a permanent modification to Sherry.

Karl’s next point alleges that the court erred in rejecting Karl’s contention that the state could not seek any payments due prior to December, 1979, because they were barred by section 516.350.

The hearing officer held that the payment on the court administrator’s record on November 4, 1985 in case DR76-5216A, revived all payments owing for ten years previous to that payment. This position is supported by Spangler v. Spangler, 831 S.W.2d 256 (Mo.App.1992). The parties in Spangler were divorced in 1972 and the husband was ordered to pay child support. After the prosecuting attorney began an action to collect back support in 1980, the husband entered into a voluntary pay agreement and began to make payments to the court trustee that year.

The husband filed a motion to modify in 1989, and claimed that the payments due from 1972 through 1980 were presumed paid under section 516.350. The court of appeals disagreed, holding that the voluntary payments made to the court in 1980 revived all amounts due for ten years prior to that date. The court stated,

[805]*805In circumstances involving the recordation of child support payments, an ongoing process which occurs post-judgment, the “record” would not be limited to the court proceeding, but would include any recordation by the clerk of the court for payments made on the judgment. This is further evident by § 452.345.3 (Supp.

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174 S.W.3d 640 (Missouri Court of Appeals, 2005)

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Bluebook (online)
851 S.W.2d 802, 1993 Mo. App. LEXIS 638, 1993 WL 137511, Counsel Stack Legal Research, https://law.counselstack.com/opinion/boyer-v-state-ex-rel-stuerke-moctapp-1993.