State ex rel. Division of Family Services v. Summerford

75 S.W.3d 353, 2002 Mo. App. LEXIS 1064, 2002 WL 1012042
CourtMissouri Court of Appeals
DecidedMay 21, 2002
DocketNo. WD 59730
StatusPublished

This text of 75 S.W.3d 353 (State ex rel. Division of Family Services v. Summerford) 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
State ex rel. Division of Family Services v. Summerford, 75 S.W.3d 353, 2002 Mo. App. LEXIS 1064, 2002 WL 1012042 (Mo. Ct. App. 2002).

Opinion

JAMES M. SMART, JR., Judge.

The State of Missouri, ex rel, Division of Family Services, as assignee of Cynthia Summerford, appeals from the judgment of the Honorable Weldon C. Judah, of Buchanan County Circuit Court, in which the court refused to grant an order of child support against David Summerford for the support of the parties’ minor child, J.S.S.

Factual Background

The Missouri Department of Social Services, Division of Child Support Enforce-[355]*355merit (“DCSE”), through the Buchanan County Prosecuting Attorney, filed a petition seeking a declaration of paternity, order of child support, including medical support, and for reimbursement of necessaries provided with respect to the minor child, J.S.S., under the Missouri Uniform Parentage Act, §§ 210.817 — 210.852 RSMo (“UPA”). The Mother of the child, co-petitioner Cynthia Lynn Summerford (“Mother”), participated both individually and as next Mend of her child, J.S.S. The action was brought against the Father of the child, David Scott Summerford (“Father”). Father did not appear at trial.

Mother and Father resided together during the conception period of the child, J.S.S. The parties were not married at the time of J.S.S.’s birth, nor did Father sign the documents necessary to place his name on the child’s birth certificate. In May of 1995, after the birth of J.S.S., Father and Mother were married. Mother and Father separated in August of 1999 and, at the date of trial remained married but living apart.

At the time of trial, Mother was not capable of employment due to major medical problems and was receiving State assistance. Father was employed at ASAP Land Express, Inc. Father provided no support for J.S.S. from the time of separation in August 1999 to the date of trial on December 21, 2000. Because Mother was a recipient of Temporary Assistance to Needy Families and received Medicaid benefits for J.S.S., she assigned her right to receive child support on behalf of J.S.S. to the Division of Family Services (“DFS”).

At trial, the State presented its Form 14, which showed Father’s, presumed child support obligation for J.S.S. to be $291.00 per month. Mother requested that Father be ordered to pay child support and to provide medical support. The trial court entered an order declaring Father to be the father of J.S.S. but declined to grant a prospective child support or medical support order. The court did grant the State’s request for reimbursement of necessaries. In denying the appellants’ request for child support, the court made the following specific findings:

There is no question that the State may recoup the “state debt” under the authority of § 454.420 RSMo. and may “... make a motion to a court or administrative tribunal for modification of any court order creating a support obligation which has been assigned to ...” the state. [See Sec. 454.465.8 RSMo....] However, the court does not find that the assignment executed by Cynthia pursuant to Sec. 208.040.2(2), RSMo.... empowers the State, by virtue of § 454.465.6 RSMo. with any additional or greater rights to seek establishment of a support order in its favor than those of the assignor, Cynthia, [see Senn v. Manchester Bank of St. Louis, 583 S.W.2d 119, at 129 (Mo.1979)] Neither the State nor Cynthia has pleaded or proved a cause for Dissolution of Marriage, Legal Separation or Separate Maintenance pursuant to Sec 452.130, RSMo. [see Brokaw v. Brokaw, 492 S.W.2d 859 (Mo.App.E.D.1973) ].
Furthermore, where, as here, there is no prayer for an Order of child custody or visitation, the court has been unable to discover any authority, and the State has cited it to none, which causes the Court to find that it should exercise its discretion to enter an award of child support in favor of the State or Cynthia pursuant to Sec. 210.841.3(1) RSMo. Of course, Cynthia may avail herself of such relief by pursuing an action referenced within the preceding paragraph. Accordingly, under Count II of the PE[356]*356TITION, the court declines to establish an child support obligation in David.

At trial, the court questioned Mother about her desire to file for divorce. Although Mother and Father are separated, Mother testified that she was not interested in filing for dissolution of the marriage because she had no interest in marrying again.

Failure to Award Child Support

In its sole point on appeal, the appellant contends that the trial court erred in failing to award the presumed correct amount of child support because there was sufficient evidence on the record to support such an award and the court did not properly rebut nor explain why the presumed amount of child support was unjust or inappropriate, in that the presumed support amount was correctly calculated pursuant to Form 14 and Rule 88.01. Appellant contends that the State had standing to seek such an order and that the primary purpose of awarding child support is to provide for the child’s welfare not as leverage to compel parents of needy children who are married but separated to file pleadings not required by law.

Standard of Review

The award of child support, or the failure to award child support, will be affirmed unless “no substantial evidence exists to support it, it is against the weight of the evidence, or it erroneously declares or applies the law.” Ricklefs v. Rieklefs, 39 S.W.3d 865, 869 (Mo.App.2001).

Mother, even though married, had the right to pursue a child support order under the UPA:

In 1987, the Uniform Parentage Act was enacted, establishing a comprehensive procedure for determining paternity of, and compelling support for, children born in or out of wedlock. Babb v. Pfuehler, 944 S.W.2d 331, 334 (Mo.App.1997). It has been held that “the UPA is now the exclusive method for adjudicating paternity in Missouri.” Anderson v. Div. of Child Support Enforcement, Mo. Dep’t of Soc. Sens., 995 S.W.2d 546, 548 (Mo.App.1999). Section 210.818 of the UPA states the parent-child relationship established under the UPA is not dependent on marriage. In addition to the establishment of paternity, the UPA allows the court to enter orders with respect to duty of support and in any other matter in the best interest of the child. § 210.841.3.

The cases upon which the trial court relied for its position that Mother must petition for dissolution of marriage, legal separation, or separate maintenance and must seek a judgment on child custody and visitation matters before the court may “exercise its discretion to enter an award of child support” were all decided prior to Missouri’s 1987 enactment of the UPA. Here, pursuant to the UPA, Mother properly sought an adjudication of paternity and an order of support. Cases handed down since the enactment of the UPA in Missouri are consistent with the appellants’ position in this case. See, e.g., State v. Hall, 867 S.W.2d 251

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Related

Ricklefs v. Ricklefs
39 S.W.3d 865 (Missouri Court of Appeals, 2001)
Shadwick v. Byrd
867 S.W.2d 231 (Missouri Court of Appeals, 1993)
Dycus v. Cross
869 S.W.2d 745 (Supreme Court of Missouri, 1994)
Senn v. Manchester Bank of St. Louis
583 S.W.2d 119 (Supreme Court of Missouri, 1979)
Woolridge v. Woolridge
915 S.W.2d 372 (Missouri Court of Appeals, 1996)
Brokaw v. Brokaw
492 S.W.2d 859 (Missouri Court of Appeals, 1973)
K.R.W. ex rel. A.C.S v. D.B.W.
830 S.W.2d 38 (Missouri Court of Appeals, 1992)
State v. Hall
867 S.W.2d 251 (Missouri Court of Appeals, 1993)
Buxton v. Kaneer
904 S.W.2d 77 (Missouri Court of Appeals, 1995)
Babb v. Pfuehler
944 S.W.2d 331 (Missouri Court of Appeals, 1997)
Martin v. Obiakor
992 S.W.2d 201 (Missouri Court of Appeals, 1999)

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Bluebook (online)
75 S.W.3d 353, 2002 Mo. App. LEXIS 1064, 2002 WL 1012042, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-division-of-family-services-v-summerford-moctapp-2002.