REJA LYNN COOPER,                                 )
n/k/a REJA LYNN SPAENY,                           )
                                                  )
          Petitioner-Appellant,                   )
                                                  )
vs.                                               )       No. 32236
                                                  )
RONALD FRANCIS COOPER,                            )       Filed: March 14, 2014
                                                  )
          Respondent-Respondent.                  )

              APPEAL FROM THE CIRCUIT COURT OF CEDAR COUNTY

                   Honorable Dennis D. Reaves, Associate Circuit Judge

AFFIRMED

          Reja Lynn Cooper n/k/a Reja Lynn Spaeny ("Mother") appeals the

dismissal of her petition under Section 210.854.1 In that petition, Mother named

Ronald Francis Cooper ("Father") as defendant and sought a declaration of non-

paternity. On appeal, Mother argues the trial court misinterpreted Section

210.854 when it found a paternity judgment had not been entered against her

and dismissed the case. We disagree and affirm the trial court's judgment.

                                     Standard of Review

          "This Court reviews a trial court's grant of a motion to dismiss de novo."

Devitre v. Orthopedic Center of St. Louis, LLC, 349 S.W.3d 327, 331 (Mo.


1   All statutory references are to RSMo Cum. Supp. (2013).
banc 2011). The petition is reviewed "in an almost academic manner, to

determine if the facts alleged meet the elements of a recognized cause of action,

or of a cause that might be adopted in that case." Id. (quoting City of Lake

Saint Louis v. City of O'Fallon, 324 S.W.3d 756, 759 (Mo. banc 2010)).

                    Factual and Procedural Background

       In 1997, Mother filed a petition in Cedar County seeking dissolution of her

marriage to Father. The case was tried on April 30, 1998, and Mother failed to

appear at the hearing. At the hearing, Father testified there were three children

born of the marriage in 1992, 1994, and 1996. The trial court had some questions

for Father because the last names listed on the birth certificates of the two

youngest children were not the same as Father's. Father testified all three

children were born during the marriage, and he was the father of the children.

The trial court granted the dissolution, found all three children were the children

of Father and Mother, awarded custody of the children to Father, and ordered

Mother to pay child support.

       Mother filed a motion to set aside the judgment. That motion was later

amended, and one of the grounds alleged in the amended motion was that Father

was not the biological father of the two youngest children. The motion further

alleged a man named John Martin was the biological father of the two youngest

children. The amended motion to set aside the judgment was overruled after a

hearing and the presentation of evidence.

       Mother appealed. The judgment was affirmed in an unpublished

memorandum decision.



                                         2
           In 1999, Mother obtained DNA testing involving herself and the two oldest

children. The results stated that while the oldest child and the middle child were

not excluded as biological siblings, the likelihood that they did "not share the

same biological mother and father is 96.97%."

           In 2000, Mother filed a "Petition for the Determination of the Non-

Existence of Paternity" in Christian County. She again alleged John Martin was

the biological father of the two youngest children. That petition was dismissed on

the grounds that the issue was barred by the judgment in the Cedar County

dissolution action under the doctrine of res judicata.

           In 2003, Mother filed a petition in Greene County seeking paternity

testing. Once more, she alleged Father was not the biological father of the two

youngest children. This time, however, she alleged the youngest child's natural

father was Oscar Fittipaldi ("Fittipaldi") and the middle child's natural father was

Jimmy Townsley ("Townsley"). Father filed a motion to dismiss. After a

guardian ad litem was appointed, the trial court denied Father's motion to

dismiss and ordered paternity testing.2

           Father subsequently filed a motion to have the case consolidated with the

Cedar County dissolution case. After hearing argument on the issue, the trial

court granted the motion to consolidate the two cases. In the findings

accompanying the order, the trial court noted the children had been living with

Father for the past three years and that any judgment addressing the issues

Mother raised would conflict with the Cedar County dissolution decree. The case



2   The results of that paternity test do not appear in the legal file or the transcript.

                                                      3
was transferred to Cedar County. The case was subsequently dismissed for

failure to prosecute in 2006.

       The present action began on December 23, 2011, when Mother filed a

petition to set aside entry of judgment of paternity and support in Cedar County.

Mother cited Section 210.854 as authority for her cause of action. Mother again

alleged Father was not the biological father of the two youngest children. She

requested among other things that the trial court extinguish any child support

arrearages she owed with respect to those children. Father was permitted to file a

response out of time. Father later filed a motion to dismiss for failure to state a

claim, arguing (1) the claim was barred by the doctrine of res judicata, (2)

Mother had no standing, and (3) the claim was barred by the doctrine of laches.

       The trial court granted the motion to dismiss on June 20, 2012. In its

written judgment, the trial court specifically stated "the plain language of the

statute provides a remedy only to the person against whom a judgment of

paternity and child support has been entered and allows the court to set aside the

previous judgment 'only as to the child or children found not to be the biological

child or children of the petitioner.'" The trial court concluded Mother was "not

entitled to seek relief from her child support obligation under this statutory

provision."

       Mother appeals.

                                    Discussion

       In her sole point on appeal, Mother argues the trial court erred in

dismissing Mother's petition because its finding that a judgment of paternity had



                                          4
not been entered against Mother was incorrect.3 Mother claims the dissolution

judgment operated as a paternity judgment because it determined the paternity

of the children and awarded Father custody and child support. This argument

misses the mark. The essence of the trial court's decision was not based on the

nature of the judgment in the Cedar County dissolution case; rather, the essence

of the trial court's decision was based on the principle that Mother was unable to

proceed under Section 210.854 since she was not contesting the fact that she was

a biological parent of the children and that the remedies granted under the

statute simply did not apply to her.

        As Mother's claim is based on Section 210.854, resolution of her point on

appeal requires examination of the language of the statute. "We approach the

task of statutory interpretation mindful that it is the function of the courts to

construe and apply the law and not to make it." Renner v. Director of

Revenue, 288 S.W.3d 763, 765 (Mo. App. E.D. 2009) (quoting State v.

Meggs, 950 S.W.2d 608, 610 (Mo. App. S.D. 1997)). "In interpreting statutes

our primary goal is to determine and further the intent of the legislature." Id.

3
  Mother also argues that if the statute does not provide the remedy she seeks, it is
unconstitutional because it violates equal protection in that it provides a remedy to fathers but
not to mothers. This argument is not preserved because it was not raised at the earliest
opportunity. Generally speaking the Supreme Court of Missouri has exclusive jurisdiction of
claims challenging the constitutionality of a statute. Mo. Const. Art. 5, § 3. "However, their
jurisdiction will not be exercised unless the claim of unconstitutionality was raised at the earliest
opportunity, and properly preserved." Bauldin v. Barton County Mut. Ins. Co., 666 S.W.2d
948, 951 (Mo. App. S.D. 1984). See also Hollis v. Blevins, 926 S.W.2d 683, 684 (Mo. banc
1996). "To properly preserve a constitutional issue for appellate review, the issue must be raised
at the earliest opportunity and preserved at each step of the judicial process." S.A.S. v. B.P., 314
S.W.3d 348, 352 (Mo. App. E.D. 2010). Typically, when the constitutional claim is raised by the
petitioner, the earliest opportunity to raise a constitutional claim is in the petition. See, e.g.,
Bromwell v. Nixon, 361 S.W.3d 393, 400 (Mo. banc 2012); Willits v. Peabody Coal Co.,
LLC, 400 S.W.3d 442, 450 (Mo. App. E.D. 2013); Shipley v. Cates, 200 S.W.3d 529, 534 n.5
(Mo. banc 2006). In the present case, Mother did not raise her constitutional argument in her
petition. In fact, Mother did not raise the argument until her motion to reconsider, that is, after
the trial court had already made its initial determination to dismiss her petition. Mother's
constitutional argument was not raised at the earliest opportunity, so we decline to address it.

                                                 5
"We derive our interpretation from the plain and ordinary language of the

statute." Id. "If the provisions of a statute are express and unambiguous, the

court is not at liberty to construe the language . . . because the court functions to

enforce the law as it is written." State ex rel. State, Dept. of Social

Services, Family Support Div. v. Campbell, 386 S.W.3d 229, 231 (Mo.

App. W.D. 2012) (quoting State ex rel. Igoe v. Bradford, 611 S.W.2d 343,

349 W.D. 1980)). Furthermore, "we are not guided only by an isolated sentence,

but instead we look to the provisions of the whole law and its object and policy."

Renner, 288 S.W.3d at 766.

       With these principles in mind, we turn to the statutory language. Prior to

2009, no remedy existed to relieve a person from child support obligations where

that person (1) had been adjudicated to be the father of a child and (2) later found

out he was not the biological father of that child or wanted to contest his

paternity of the child. See, e.g., State ex rel. Sanders v. Sauer, 183 S.W.3d

238, 240 (Mo. banc 2006) (holding the trial court could not order DNA testing to

determine biological paternity in a criminal non-support case where a default

judgment of paternity was the basis for the underlying child support order);

Walker v. Walker, 280 S.W.3d 634, 637-38 (Mo. App. W.D. 2009) (affirming

the dismissal of a motion for declaration of non-paternity because the father's

allegation that the mother lied during the dissolution action was a claim of

intrinsic rather than extrinsic fraud); Miller v. Hubbert, 804 S.W.2d 819, 821

(Mo. App. E.D. 1991) (holding in the context of a motion to modify child support

that the father's claim the children were not his biological children was barred by

the doctrine of res judicata). In response, the legislature enacted Section

                                          6
210.854 in 2009. See Campbell, 386 S.W.3d at 230. Section 210.854 "creates a

right to set aside an otherwise final, non-appealable judgment determining

paternity and to unwind the financial and criminal ramifications of non-support

resulting from the judgment." Campbell, 386 S.W.3d at 230.

       The text of Section 210.854 provides in pertinent part that:

       1.     In the event of the entry of a judgment or judgments of
              paternity and support, whether entered in one judgment or
              separately, a person against whom such a judgment or
              judgments have been entered may file a petition requesting a
              circuit court with jurisdiction over the subject child or
              children to set aside said judgment or judgments in the
              interests of justice and upon the grounds set forth in this
              section.

       ...

       4.     Upon a finding that the genetic test referred to herein was
              properly conducted, accurate, and indicates that the person
              subject to the child support payment has been excluded as
              the child's father, the court shall, unless it makes written
              findings of fact and conclusions of law that it is in the best
              interest of the parties not to do so:

              (1)    Grant relief on the petition and enter judgment
                     setting aside the previous judgment or judgments of
                     paternity and support, or acknowledgement of
                     paternity under [S]ection 210.823 only as to the child
                     or children found not to be the biological child or
                     children of the petitioner;

              (2)    Extinguish any existing child support arrearage only
                     as to the child or children found not to be the
                     biological child or children of the petitioner; and

              (3)    Order the department of health and senior services to
                     modify the child's birth certificate accordingly.

§ 210.854 (emphasis added). Under the plain language of the statute, then, the

trial court may order relief only if the children are found not to be the biological

children of the petitioner.


                                          7
       In this case, Mother, the petitioner, did not allege the two youngest

children were not her biological children. Consequently, there is no authority in

the statute to grant the relief she requests. See Doss v. Brown, --- S.W.3d ----,

No. WD74782, Slip op. at 5 (Mo. App. W.D. Jan. 29, 2013) (noting the statute

provides a remedy for people "paying child support for children who are in fact

not their biological children, but who could not otherwise obtain a vacation of

child support orders or paternity judgments.") (emphasis added).

       Mother's sole point is denied.

                                  Attorney Fees

       One further matter requires our attention. Prior to submission of the case,

Father filed a motion for attorney fees associated with this appeal. With few

exceptions not applicable here, the general rule in Missouri is that each litigant

must pay his or her own attorney fees and expenses. Goines v. Missouri

Dept. of Social Services, Family Support and Children's Div., 364

S.W.3d 684, 687 (Mo. App. W.D. 2012). Father's motion is denied.

                                     Decision

       The trial court's judgment is affirmed.

MARY W. SHEFFIELD, J. - OPINION AUTHOR

JEFFREY W. BATES, P.J. - CONCURS

GARY W. LYNCH, J. - CONCURS




                                         8
