03/05/97 DELORES MINX, v. STATE OF MISSOURI DEPART
BLUE BOOK CITATION FORM: 1997.MO.170 (http://www.versuslaw.com)
[Editor's note: footnotes (if any) trail the opinion]
[1] IN THE MISSOURI COURT OF APPEALS
[2] WESTERN DISTRICT
[3] DELORES MINX,
[4] Respondent,
v.
[5] STATE OF MISSOURI DEPARTMENT OF SOCIAL SERVICES, DIVISION OF
CHILD SUPPORT ENFORCEMENT,
[6] Appellant,
[7] JUSTIN MINX,
[8] Appellant.
[9] WD 52654
[10] (Consolidated with WD 52689)
[11] Opinion filed: March 4, 1997
[12] Appeal From the Circuit Court of Miller County, Missouri
[13] Honorable Gary Schmidt, Judge
[14] Before Hanna, P.J., Breckenridge and Ellis, JJ.
[15] On December 8, 1992, the circuit court of Miller County entered
a decree dissolving the marriage between Justin Minx ("Father") and
Delores Minx ("Mother"). The court awarded primary physical custody of
the couple's five children to Father, holding that "due to the special
economic circumstances of the parties, the amount of child support
calculated using Form 14 of Rule 88.01 is unjust and inappropriate and
the Court finds that . . . no child support should be ordered payable"
from Mother to Father.
[16] On August 30, 1994, Father applied for child support enforcement
services with the Division of Child Support Enforcement ("Division")
pursuant to Section(s) 454.425 *fn1 and requested a review and
modification of his child support order pursuant to Section(s)
454.400.2(13). After reviewing the adequacy of the child support order
in accordance with Section(s) 454.400(13) and finding that Mother should
pay $324 per month in child support, the Division administratively filed
a Motion for Modification of Child Support pursuant to Section(s)
454.496.1 and served that motion on Mother and Father. When neither
party objected to the motion or requested an administrative hearing
within thirty days, the director of the Division issued a default order
granting the relief sought in accordance with 454.496.2. This order was
then transferred to the clerk of the circuit court of Miller County for
filing.
[17] On March 14, 1995, Mother filed a "Motion to Set Aside
Administrative Order of Support of an Existing Court Order as Void Ab
Initio and Unconstitutional or in the Alternative for Judicial Review
and Trial De Novo" with the circuit court. The circuit court heard oral
argument on Mother's motion on February 16, 1996. During this hearing,
the circuit court questioned whether the default order was properly
filed without an attorney's signature. The Division argued that an
attorney's signature was unnecessary because Rule 55.03 did not apply to
the administrative order. On March 15, 1996, the circuit court held that
the administrative order was a "'paper,' if not a pleading, under
Supreme Court Rule 55.03." Because it was still not signed by an
attorney, the order was stricken for violating Rule 55.03. *fn2 On
appeal, the Division contends the circuit court erred in striking the
director's administrative order because Rule 55.03 does not apply to the
filing of an administrative order.
[18] Division first asserts that Rule 55.03 does not apply because,
pursuant to Rule 41, Rules 41 through 101 govern only "civil actions"
pending before a circuit court, court of appeals, or the Missouri
Supreme Court and that no "civil action" was commenced until Wife filed
her petition for review. A "civil action" is commenced upon the filing
of a petition with the court. Keys v. Nigro, 913 S.W.2d 947, 949 (Mo.
App. W.D. 1996); Rule 53.01. Division argues that the Director's order
was not a petition and that the filing of the order did not create a
"civil action." We do not agree.
[19] Under Section(s) 454.496.1, after a child support order has been
entered by a court, the parent paying support, the person to whom
support is owed, or the Division may administratively file a motion to
modify the existing child support order. Before such a motion is filed,
the director of the Division is required to review the existing order to
determine whether modification is appropriate under Rule 88.01
guidelines. Section(s) 454.400.2. If the director believes modification
is appropriate, a motion setting forth the reasons for the modification
must be administratively filed and served on all the parties. Section(s)
454.465.1. Once the motion is filed, opposing parties have thirty days
either to resolve the matter by stipulation, file written objections, or
request a hearing. Section(s) 454.496.1. If a hearing is requested, a
hearing officer designated by the Department of Social Services conducts
a hearing pursuant to Section(s) 454.475 and Chapter 536. Where neither
objections nor a request for hearing is timely filed, the director is
required to enter an order granting modification. 454.496.2.
[20] This order does not become effective, however, until it is filed
with and approved by the court that entered the original support order.
Section(s) 454.496.6. This provision makes judicial review of the
Division's orders a condition precedent to the Division's orders taking
effect. Chastain v. Chastain, Slip Op. No. 78611, p. 8 (Mo. banc 1996).
After an order is filed, if no petition for judicial review is filed
pursuant to Section(s) 536.100 to 536.140, the court must review the
administrative order and approve that order if it complies with the
provisions of Supreme Court Rule 88.01. Section(s) 454.496.6. If a
petition for judicial review is filed, the court must approve the order
if the petition for review lacks merit and the administrative order
complies with Rule 88.01. 454.496.7. If the court finds that the
administrative order should not be approved, the court must set the
matter for trial de novo. 454.496.7. *fn3
[21] Under these provisions, the filing of the Director's order
initiates judicial review of that order. Section(s) 454.496.6. The
issues to be determined by the circuit court are designated by statute.
Section(s) 454.496.6 and Section(s) 454.496.7. By filing the order with
the circuit court, the director is effectively petitioning the court to
review, adopt, and enforce the order. We find the filing of the
director's order with the circuit court institutes a "civil action"
under Rule 41.
[22] Division next argues that Rules 41 through 101 do not apply in
actions where the circuit court is conducting judicial review of an
administrative action. Division cites Daus v. Director of Revenue, 840
S.W.2d 892 (Mo. App. E.D. 1992), for the proposition that Rules 41
through 101 are wholly inapplicable to judicial review of administrative
actions. *fn4 The holding of Daus does not extend that far. See Woodard
v. Director of Revenue, 876 S.W.2d 810, 815 (Mo. App. S.D. 1994). Daus
addressed whether the Director of Revenue is required under Rule 55.25
*fn5 to file a responsive pleading after a motion for review of a
driver's license revocation is filed under Section(s) 577.041.4. Daus
relied on Rule 100.01 which provides that "the provisions of sections
536.100 through 536.150, RSMo, shall govern procedure in circuit courts
for the judicial review of actions of administrative agencies unless the
statute governing a particular agency contains different provisions for
such review." Because the statutory provisions of Section(s) 536.110 and
303.290.2 specifically set out the procedures for the review of the
Director of Revenue's decision, *fn6 which did not include the filing of
a responsive pleading, those provisions were deemed controlling and Rule
55.25 was rendered inapplicable. Daus, 840 S.W.2d at 893. *fn7 While
Daus and Rule 100.01 establish that Section(s) 536.100 through 536.150,
or the statute specifically governing a particular agency, take
precedence in judicial review of administrative agencies, such
proceedings are not immune from other statutes and rules to the extent
their provisions are not conflicting. Woodard, 876 S.W.2d at 815.
[23] Unlike the situation in Daus, there is no conflict between Rule
55.03 and the statutory provisions for the review of the Director's
order. Section 454.496.6 requires the Division to file the order with
the circuit court. Chastain, Slip Op. No. 78611 at 8. Nothing in the
language of Section(s) 454.496 or Section(s) 536.100 through 536.140
indicates that the Director should be exempt from normal filing
procedures, which include Rule 55.03. *fn8
[24] Division also makes some general assertions that there is no
specific requirement that the filing of an administrative order be
signed by an attorney and that no purpose would be served by such a
requirement. Rule 55.03(a) requires that "[e]very pleading, motion, and
other paper shall be signed by at least one attorney of record," and any
unsigned paper "shall be stricken unless omission of the signature is
corrected promptly after being called to the attention of the attorney
or party." Rule 55.03(a) (emphasis added). The reasons for this
requirement are spelled out in Rule 55.03(b) which provides: By
presenting or maintaining a claim, defense, demand, objection,
contention, or argument in a pleading, motion, or other paper filed with
or submitted to the court, an attorney is certifying that to the best of
the person's knowledge, information, and belief, formed after an inquiry
reasonable under the circumstances, that: (1) the claim, defense,
request, demand, objection, contention, or argument is not presented or
maintained for any improper purpose, such as to harass or to cause
unnecessary delay or needless increase in the cost of litigation; (2)
the claims, defenses, and other legal contentions therein are warranted
by existing law or by a nonfrivolous argument for the extension,
modification, or reversal of existing law or the establishment of new
law; (3) the allegations and other factual contentions have evidentiary
support, or, if specifically so identified, are likely to have
evidentiary support after a reasonable opportunity for further
investigation or discovery; and (4) the denials of factual contentions
are warranted on the evidence or, if specifically so identified, are
reasonably based on a lack of information or belief.
[25] Under the provisions of Section(s) 454.496, the Director is
allowed to: initiate the modification process only if there is a
material change in the factual circumstances that formed the basis for
the trial court's [support] order. The Division considers a claim that
circumstances have changed and that these new facts remove the current
level of child support from conformity with Rule 88.01. This is . . . an
initial assessment of the current compliance of the child support
payment levels with Rule 88.01.
[26] Chastain, Slip Op. No. 78611 at 7. These provisions call for the
Director to make legal conclusions that are then presented to the
circuit court for approval. We see no reason to exempt the Director's
order from the requirement that it be signed by an attorney. Through his
or her signature, an attorney certifies that the order is not presented
or maintained for any improper purpose, that the legal contentions
therein are warranted by existing law, and that the allegations and
other factual contentions have evidentiary support. Rule 55.03(b). The
requirement of an attorney's signature thereby serves the primary
objective of Rule 55.03, the elimination from the court system of
groundless actions. Mahoney v. Doerhoff Surgical Servs., Inc., 807
S.W.2d 503, 508 (Mo. banc 1991).
[27] For the foregoing reasons, we find the trial court did not err
in striking the director's order for violating Rule 55.03(a). The
judgment is affirmed.
[28] Joseph M. Ellis, Judge
[29] All concur.
***** BEGIN FOOTNOTE(S) HERE *****
[30] *fn1 All statutory references are to RSMo 1994 unless otherwise
noted.
[31] *fn2 Rule 55.03(a) requires that "[e]very pleading, motion, and
other paper shall be signed by at least one attorney of record," and any
unsigned paper "shall be stricken unless omission of the signature is
corrected promptly after being called to the attention of the attorney
or party." Rule 55.03(a) (emphasis added).
[32] *fn3 The procedure set out in Section(s) 454.496 has been held
to be constitutional by the Missouri Supreme Court. Chastain v.
Chastain, Slip Op. No. 78611, p. 8 (Mo. banc 1996).
[33] *fn4 Under Division's argument, an attorney's signature would
not be required on any document filed by any party in cases involving
the judicial review of administrative actions.
[34] *fn5 Rule 55.25 (a) provides that a "defendant shall file an
answer within thirty days after the service of the summons and
petition."
[35] *fn6 "Section Section(s) 303.290.2 requires (1) an interested
party filing a petition for review, (2) notice to parties, (3) the
prosecutor presenting the administrative record to the circuit court,
and (4) the hearing of additional evidence." Daus, 840 S.W.2d at 893-94.
[36] *fn7 Furthermore, responsive pleadings would have served no
purpose because the "issues are made up by the request for a hearing,
and the statute itself provides what the court is to determine." Nguyen
v. Director of Revenue, 900 S.W.2d 238, 239 (Mo. App. E.D. 1995) (citing
Gothard v. Spradling, 586 S.W.2d 443, 446 (Mo. App. S.D. en banc 1979)).
[37] *fn8 While Section(s) 536.130 requires only "proper
certification" when an administrative agency is merely supplying the
record for judicial review at the request of a party, that provision is
inapplicable where, as here, the order functions as a legal petition
which initiates review.
***** END FOOTNOTE(S) HERE *****
[Editor's note: Illustrations from the original opinion, if any, are
available in the print version]
Copyright 1997 VersusLaw, Inc., (206) 250-0142
http://www.versuslaw.com
19970305
1997.MO.170 This case has been republished on the DadsNow website with
the written pemission of VersusLaw