                                         In the
                        Missouri Court of Appeals
                                 Western District
THE FAMILY SUPPORT DIVISION -                 )
CHILD SUPPORT ENFORCEMENT,                    )
                                              )   WD76997
               Respondent,                    )
                                              )   OPINION FILED: October 14, 2014
JOEI NORTH,                                   )
                                              )
               Respondent,                    )
                                              )
v.                                            )
                                              )
ANDREW HOWARD NORTH,                          )
                                              )
                Appellant.                    )

               Appeal from the Circuit Court of Clay County, Missouri
                       The Honorable K. Elizabeth Davis, Judge

     Before Division Three: Gary D. Witt, Presiding Judge, Joseph M. Ellis, Judge and
                               Thomas H. Newton, Judge


        Andrew Howard North ("Father") challenges a judgment modifying his child

support obligations on three grounds. In his first two points, Father argues that the trial

court erred in classifying him as the "movant" for purposes of line 2c of the Form 14. In

his third point, Father argues that the judgment grants relief that was not requested by the

pleading of Respondent Joei North ("Mother"). Neither Mother nor Respondent Missouri
Division of Family Services - Child Support Enforcement ("DFS") filed briefs in this

court or appeared at argument. The judgment is reversed in part and affirmed in part.

                           FACTUAL AND PROCEDURAL HISTORY1

         On August 15, 2005, the judgment dissolving the marriage between Mother and

Father was entered in the Circuit Court of Clay County. In that judgment, Mother and

Father were awarded joint legal custody of their two minor children, with Mother

receiving sole physical custody. Father was ordered to pay Mother $966 per month in

child support.

         On or about June 5, 2008, the circuit court modified that judgment and reduced

Father's support obligation to $569 per month. On February 2, 2012, the circuit court

again modified the judgment, ordering Father to make certain monthly payments toward

his child support arrearage to the Bankruptcy Trustee in addition to his monthly ordered

payments.

         On October 18, 2012, DFS filed a motion to modify on behalf of Father,

requesting a decrease in Father's child support payments. In that motion, DFS alleged

that there were "continuing and substantial changes and conditions" with regard to child

support in the following two respects: (1) that upon application of Rule 88,2 Form 14,

Father's child support obligation would decrease by twenty percent or more, and (2) the

parties have had substantial changes in their earning capacities.



         1
            In a court-tried case, including one pertaining to modification of child support, "the evidence, with all of
the inferences flowing therefrom, is viewed in the light most favorable to the judgment." Cross v. Cross, 318
S.W.3d 187, 190 (Mo. App. W.D. 2010) (citation omitted).
          2
            All rule references are to Missouri Supreme Court Rules (2014).

                                                            2
       Mother answered the petition through counsel. She also filed a "counter-motion

for contempt" in which she alleged that Father disobeyed earlier judgments pertaining to,

inter alia, support, attorney fees, and insurance. In that motion, Mother asked "for an

Order of this Court directing that Respondent appear and show cause why he should not

be held in contempt, that he be held in contempt for his failure to abide by the terms and

condition of the Judgment and for such other and further relief as this court deems just

and proper." Through private counsel, Father filed an answer to the "counter-motion for

contempt."

       On March 1, 2013 a hearing was held and the docket sheet entry for that day

indicates that Father was "granted leave to file Amended pleadings without objection"

and that DFS "was granted leave to withdraw without objection" as Father was now

represented by private counsel. Father's child support was reduced temporarily to $300 a

month until further order of the court.

       A trial was held. Prior to evidence, the following exchange was held on the

record:

       THE COURT:           . . . This is North and North. Let's just make sure
       everyone is on the same page with regard to the status of the pleadings. It
       was actually initiated by a motion for modification filed by the State of
       Missouri through the Child Support Division, but once both parties were
       represented by counsel, the State was allowed to withdraw. We're just
       going to proceed on the parties' private pleadings starting with in December
       of 2012 a counter-motion, which at that time was in counter to the State's
       motion to modify, a motion for contempt filed by [Mother].

       FATHER'S COUNSEL:           Your Honor, that's the only two pleadings --

       THE COURT:           That's it?


                                            3
      FATHER'S COUNSEL:            That's the only two pleadings that it involves.

      THE COURT:             So your client is not requesting affirmative relief, but
      responding to the motion for contempt, and then both parties wish to
      present evidence which was initiated by the State's motion to modify
      support, is that right?

      MOTHER'S COUNSEL: Judge, I would assume that he --

      FATHER'S COUNSEL: I would take the role of the movant because he
      requested the State to modify the support.

      THE COURT:          If that's what you want to do, that's perfectly fine. You
      want to step into the shoes basically of the State to pursue its motion for
      modification of support, is that right?

      MOTHER'S COUNSEL: If it was our role, I'd ask to dismiss it.

      THE COURT:           And then are you presenting evidence then with
      respect to the contempt?

      MOTHER'S COUNSEL: The contempt and our answer to the motion to
      modify.
...

      THE COURT:            Then, [Father's counsel], we'll go ahead and proceed
      with the evidence.

(Emphases added.)

      Evidence was presented regarding Mother's and Father's changed earnings. Father

testified, inter alia, that he had recently relocated to Utah and started a new job selling

Ford vehicles. The issues raised in the contempt motions were resolved by the parties

and are not a part of this proceeding. Both parties submitted proposed Form 14s.

      Mother submitted a Form 14 that "determined that that there's a presumed child

support amount of $743 per month" and that she was "asking for it to be retroactive to the



                                             4
date of this action being initiated." Father did not object to that request, but Mother never

moved to amend the pleadings.

       The Commissioner issued its findings and recommendations, upon which

judgment was entered by the circuit court. The court prepared its own Form 14 and

determined Father's presumed child support obligation to be $707 a month, which it did

not find to be unjust or inappropriate and adopted. Additionally, in its judgment, the trial

court stated:

               [Father] is not entitled to claim a deduction on line 2c for his
       additional younger children as he is the original movant for reduction of
       child support, by requesting the State of Missouri to file a Motion to
       Modify on his behalf (which it did), seeking reduction of his child support
       obligation. Despite the fact that the State of Missouri was allowed to
       withdraw in its capacity of representing [Father's] interests in conjunction
       with his request for reduction of child support, [Father's] counsel clearly
       stated on the record, prior to the evidence at trial, that his client wished to
       pursue [the] relief he had requested (i.e. reduction of child support) in the
       State's Motion to Modify. In other words, [Father] and his counsel 'stepped
       into the shoes' of the State to pursue the child support reduction. Although
       the State was granted leave to withdraw, its pleading (i.e. the Motion to
       Modify) was not dismissed, and was still pending before the Court, and
       [Father] continued to seek relief under the allegations and prayers contained
       in that motion.

       Father appeals. Further facts are set forth below as necessary.

   FATHER IS JUDICIALLY ESTOPPED FROM RAISING HIS FIRST TWO
                            POINTS

       Father's first and second points on appeal concern who was the "movant" in the

motion to modify. In his first point, Father argues that the trial court erred in its Form 14

calculation because "it was an abuse of discretion to deny [Father] a line [2c] income

adjustment in that the Court's finding that [Father] was the 'original movant for reduction


                                             5
of child support' and therefore was not entitled to an income adjustment for his other

natural children living with him was not supported by substantial evidence or was against

the weight of the evidence."3 In his second point, Father argues that the trial court erred

in its Form 14 calculations of presumed child support "because contrary to the law of

Supreme Court Rule 88.01 and [accompanying directions], [Father] was denied a line

[2c] income adjustment in that although [Father] was not a 'moving parent in an action to

increase or decrease' child support, the Circuit Court nevertheless judged [Father] was not

entitled to an income adjustment for his other natural children living with him."

                                                    Discussion

         The doctrine of judicial estoppel prevents litigants from "taking a position in one

judicial proceeding, thereby obtaining benefits from that position in that instance, and

later, in a second proceeding, taking a contrary position in order to obtain benefits from

such a contrary position at that time." Mo. Land Dev. I, LLC v. Raleigh Dev., LLC, 407

S.W.3d 676, 690 (Mo. App. E.D. 2013). Judicial estoppel can prevent a party from

taking contrary positions in front of the trial court and then before an appellate court.

Owens v. ContiGroup Cos., 344 S.W.3d 717, 727 (Mo. App. W.D. 2011) (citing State v.

Dillon, 41 S.W.3d 479, 486 Mo. App. E.D. 2000) ("A party may not conduct himself

throughout the trial so as to leave the adversary with the understanding that a fact is

uncontroverted and then take the position that it has not been proved")). "The doctrine of

         3
          Father's first point relied on is multifarious. At very least, he challenges the trial court's judgment on two
legal grounds, contesting both whether there was substantial evidence to support it and whether it was against the
weight of the evidence. These challenges "must appear in separate points relied on in the appellant's brief to be
preserved for appellate review." Ivie v. Smith, No. 93872, 2014 WL 3107448, at *14 n.11 (Mo. banc July 8, 2014)
(citing Rule 84.04). We gratuitously address the merits of Father's claim while cautioning appellate counsel to
follow Rule 84.04(d).

                                                           6
judicial estoppel has been established in Missouri, and is 'designed to preserve the dignity

of the courts and insure order in judicial proceedings.'" Jeffries v. Jeffries, 840 S.W.2d

291, 294 (Mo. App. E.D. 1992) (quoting Edwards v. Durham, 346 S.W.2d 90, 101 (Mo.

1961) (additional citations omitted).

        While judicial estoppel cannot be reduced to a precise formula, Missouri courts

have followed U. S. Supreme Court precedent indicating that whether judicial estoppel

applies requires the consideration of three factors:

        First, a party's later position must be clearly inconsistent with its earlier
        position. Second, courts regularly inquire whether the party has succeeded
        in persuading a court to accept that party's earlier position. . . . A third
        consideration is whether the party seeking to assert an inconsistent position
        would derive an unfair advantage or impose an unfair detriment on the
        opposing party if not estopped.

Vinson v. Vinson, 243 S.W.3d 418, 422 (Mo. App. E.D. 2007) (quoting Zedner v. U.S.,

547 U.S. 489 (2006) (additional citation omitted). However, "a court should apply

judicial estoppel if the party did not act 'inadvertently.'" Strable v. Union Pac. R. Co.,

396 S.W.3d 417, 422 (Mo. App. E.D. 2013) (citation omitted).

        In this case, Father concedes that the driving reason for his first two points on

appeal is that if he was rightly considered the "moving parent," he would have been

rightly denied an adjustment on Line 2c. See Cross v. Cross, 318 S.W.3d 187, 196 (Mo.

App. W.D. 2010) (analyzing the Line 2c caveat). 4 Father's representation to the trial

court that he "would take the role of movant" was unambiguous. And Father states in his


        4
           The Directions, Comments For Use and Examples for Completion of Form No. 14 regarding the Line 2c
adjustment were amended after judgment was entered in this case, and Father concedes that the amendment does not
affect the action at bar. Father also acknowledged at oral argument that the amendments would not assist him in this
matter if they were applicable.

                                                         7
brief on appeal that he "intentionally and purposefully avoided making his own motion so

as to be entitled to the line [2c] adjustment which he included in his own Form 14."

Father's actions of not filing his own motion to modify but in stepping into the shoes of

the State were both intentional actions. We accordingly discern no inadvertent moves on

Father's part.

       In applying the three-factor test, then, we find first that Father's position on appeal

that he was not the movant is inconsistent with his earlier statement that he "would take

the role of the movant because [Father] requested the State to modify the support."

Father's position on appeal additionally fails because the trial proceeded only after the

court affirmed Father's position that Father wanted "to step into the shoes basically of the

State to pursue its motion for modification of support." Finally, were we to allow Father

to proceed with his new theory, Father would derive an unfair advantage over and impose

an unfair disadvantage on Mother, who accepted Father's position at trial that Father was

proceeding as the movant. Mother, in fact, stated on the record that if she were asked to

take the role of movant, she would "ask to dismiss [the motion to modify]."

       "The doctrine of judicial estoppel exists to prevent parties from playing fast and

loose with the court." In re Contest of Primary Election Candidacy of Fletcher, 337

S.W.3d 137, 143 (Mo. App. W.D. 2011) (citation omitted). While we understand that not

all inconsistent positions in litigation constitute "clearly inconsistent" positions justifying

the application of judicial estoppel, we cannot condone Father's clearly inconsistent

positions in this case. After a review of the record, we hold that trial court did not err in

making findings and conclusions consistent with Father's statements on the record that he

                                              8
"would take the role of the movant because [he] requested the State to modify the

support" and also because he allowed the trial to proceed under the notion that he wanted

"to step into the shoes basically of the State to pursue its motion for modification of

support." We further see no policy reasons why a movant should be allowed to claim the

adjustment when the State brings an action to modify support on his/her behalf, but not

allow the adjustment when the action is brought personally. We see no error in the trial

court's findings as they are consistent with Father's representations on the record and his

actions at trial.

         Points I and II are denied.

             THE JUDGMENT EXCEEDED THE SCOPE OF THE PLEADINGS

         In his third point, Father contests the trial court's determination that increased the

amount of his child support obligation. He argues that "[t]he trial court erred in its

Judgment increasing [Father's] monthly child support obligation because it was contrary

to law in that the trial court's judgment increased child support contrary to the State's

specifically prayed for relief that [Father's] child support paid to [Mother] be decreased."

                                                    Discussion

         "The relief awarded in a judgment is limited to that sought by the pleadings."

Norman v. Wright, 100 S.W.3d 783, 786 (Mo. banc 2003) (citations omitted). "To the

extent that a judgment goes beyond the pleadings, it is void." Patz v. Patz, 412 S.W.3d

352, 357 (Mo. App. E.D. 2013) (citation omitted).5

         5
           The Supreme Court noted that although prior cases have used the term "void" in relation to the effect of a
judgment exceeding the scope of the pleadings, the actual effect is that such trial court judgment is not "void as a
jurisdictional matter but instead simply voidable because the judgment was based on issues that were not properly

                                                          9
        Rule 55.33(b) provides that issues not raised by the pleadings but tried by express

or implied consent "shall be treated in all respects as if they had been raised in the

pleadings" and that "failure to so amend does not affect the result of the trial of these

issues." In this case, Father did not expressly consent to try the issue of whether Mother's

child support should be increased. The issue is thus whether Father impliedly consented

to trial of that matter.

        "With respect to trial by implied consent, Rule 55.33(b) gives direction to the trial

court both in situations where no objection is made to evidence of unpleaded facts or

claims and in situations where objection is made." Heritage Roofing, LLC v. Fischer,

164 S.W.3d 128, 132 (Mo. App. E.D. 2005) (citing Rombach v. Rombach, 867 S.W.2d

500, 503 (Mo. banc 1993)). See also Thurman v. St. Andrews Mgmt. Servs., Inc., 268

S.W.3d 434, 445 (Mo. App. E.D. 2008). "If there is an objection, then the trial court has

substantial discretion in determining whether to allow the pleadings to be amended."

Heritage Roofing, 164 S.W.3d at 132-33 (citation omitted). But where, as here, there is

no request to amend the pleadings, the trial court's discretion is limited to determining

whether the issue was tried by implied consent of the parties. Id. "If so, the pleadings

'shall' be treated as if the issues had been properly raised." Id. (citation omitted).

        "[I]t is well settled that evidence will give rise to an amendment of pleadings by

implied consent only when it bears solely on the proposed new issue and is not relevant

to some other issue already in the case." Lester v. Sayles, 850 S.W.2d 858, 869 (Mo.



pleaded or otherwise interjected into the case." Smith v. City of St. Louis, 395 S.W.3d 20, 24 (Mo. banc 2013)
(citing J.C.W. ex rel. Webb v. Wyciskalla, 275 S.W.3d 249 (Mo. banc 2009)).

                                                        10
banc 1993). Stated another way, "if evidence that raises issues beyond the scope of the

pleadings is relevant to another issue already before the trial court, then failure to object

to its admission does not constitute implied consent to amend the pleadings to conform to

the new issue." Heritage Roofing, 164 S.W.3d at 132. "It is the burden of the party

contending that an issue was tried by implied consent to demonstrate implied consent."

Smith v. City of St. Louis, 395 S.W.3d 20, 25 (Mo. banc 2013).

        Mother did not ask for an increase in child support in her motion for contempt or

in any other pleading and she never moved to amend the pleadings to include such a

request. The only matters the trial court had pending before it were 1) whether Father

was entitled to a decrease in child support6 and 2) whether Father should be held in

contempt for failure to make payments, and that second issue "dissipated" through the

course of the proceedings according to Mother.

        "In calculating child support, the trial court is required to determine and find for

the record the presumed child support amount (PCSA) pursuant to Rule 88.01, using

Civil Procedure Form No. 14." Hoffman v. Hoffman, 423 S.W.3d 869, 876 (Mo. App.

E.D. 2014). "A Form 14 calculation of the PCSA begins with a determination of each

parent's gross monthly income." Id.

        The pleading that initiated the action thus required evidence of both Father's and

Mother's earnings. Evidence of earnings is also the evidence Mother needed in order to

succeed in an action to increase Father's child support. Put another way, the evidence


        6
          The pleading did not request that appropriate child support be determined pursuant to Rule 88.01, but
specifically requested a "reduction" in Father's child support obligation.

                                                        11
Mother admitted in support of her argument raised during trial that she was entitled to an

increase in support did not relate solely to whether she was entitled to an increase, the

matter she failed to plead. Rather, that evidence was also relevant to whether Father was

entitled to a decrease in his support obligation, which was the matter properly before the

trial court. Although Mother requested an increase in child support during the trial, she

never requested to amend the pleadings; all of the evidence she would need in order to

succeed on her theory also bore on a matter squarely contained within the initial

pleadings. In short, Mother, who did not file a brief with this court, failed to meet her

burden of establishing that Father impliedly consented to try the issue of whether Mother

was entitled to an increase in child support.

       In sum, no party offered a substantive pleading that properly raised the issue of

whether Mother was entitled to an increase in child support. No party requested to

amend the pleadings. Because all of the evidence needed to support Mother's contention

that she was entitled to an increase in child support also was relevant to Father's

contention that he was entitled to a decrease in child support, Mother's contention was not

tried by implied consent of the parties. Therefore, the judgment went beyond the scope

of the pleadings and is voidable to the extent that it awarded Mother an increase in child

support.   See Smith, 395 S.W.3d at 26.          Additionally, apart from the scope of the

pleadings, Father makes no argument that the trial court's judgment denying him a

decrease in support obligation was not supported by substantial evidence or was against

the weight of the evidence. Father failed to prove that he was entitled to the relief he

requested. For these reasons, the portion of the judgment adjusting Father's child support

                                                12
obligation is reversed, and the previous judgment establishing the amount of child

support remains in effect.

                                   CONCLUSION

       The judgment is reversed to the extent that it increased Father's child support

obligation because of Mother's failure to plead the matter. In all other respects, the

judgment is affirmed.



                                       __________________________________
                                       Gary D. Witt, Judge

All concur




                                          13
