                     In the Missouri Court of Appeals
                             Eastern District

                                        DIVISION FIVE


LAURIE H. ABERNATHY,                          )       No. ED100422
                                              )
       Petitioner/Respondent,                 )       Appeal from the Circuit Court of the
                                              )       St. Louis County
vs.                                           )
                                              )       Honorable Joseph L. Walsh
VINCENT T. ABERNATHY,                         )
                                              )
       Respondent/Appellant.                  )       Filed: October 14, 2014


                                      I. INTRODUCTION

       Vincent T. Abernathy (“Father”) appeals the judgment of the Circuit Court of St. Louis

County rejecting the Missouri Department of Social Services’ (“agency”) proposed order

modifying his agreement with Laurie H. Abernathy (“Mother”) regarding the support of the

parties’ minor child. In his first two points on appeal, Father argues that the trial court erred by

(1) failing to defer to the agency’s factual determinations, and (2) allocating the burden of proof

to Father during the court’s review of the agency’s action. In his third point, Father argues that

the agency correctly determined that the diminution of Mother’s child-care costs constitutes a

substantial and continuing change in circumstances sufficient to warrant modification of the

parties’ child support agreement. We reject the agency’s proposed order of modification and

affirm the trial court’s judgment.


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                                           II. FACTS

       Vincent Abernathy and Laurie Abernathy were divorced on June 29, 2005. The judgment

of dissolution incorporated an agreement by the parties that Father would pay $1200 per month

in child support and maintain medical insurance coverage for the child. The parties considered

the Form 14 presumed amount of child support payable by Father, however, they ultimately

rejected Form 14 and agreed that Father would pay a higher amount.

       On February 7, 2012, at the request of Father, the Missouri Department of Social

Services issued a proposed order of modification reducing Father’s child support payments to

$827 per month. Mother appealed the agency’s decision. After an administrative hearing, the

agency further reduced Father’s child support payments to $410 per month.

       Mother appealed the agency’s second decision to the Circuit Court of Saint Louis

County. After briefing by both parties, the court issued an order rejecting the agency’s proposed

modification and reinstating the parties’ original agreement. This appeal follows.

                                III. STANDARD OF REVIEW

       “On appeal from an administrative child support order, we review the decision of the

[agency] and not that of the circuit court.” Collor-Reed v. Ward, 149 S.W.3d 897, 899 (Mo. App.

E.D. 2004). “Our review is limited to a determination of whether the administrative decision was

constitutional, was supported by competent and substantial evidence upon the whole record, was

authorized by law, was made upon lawful procedure, was not arbitrary, capricious, or

unreasonable, or was not an abuse of discretion.” Id.; § 536.140, R.S.Mo. (Cum. Supp. 2007).

“We defer to the agency’s findings of fact but . . . [not to the] agency’s interpretation,




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application, or conclusions of law . . . .” Lajeunesse v. Dep’t of Soc. Servs., 350 S.W.3d 842, 844

(Mo. App. W.D. 2011).

                                             IV. DISCUSSION

        In his first and second points, Father argues that the trial court erred by: (1) failing to

defer to the agency’s factual determinations, and (2) allocating the burden of proof to Father

during the court’s review of the agency’s action. We address these points together because both

ignore the proper standard of review.

        As observed supra—and noted in Father’s own brief—we review the agency’s decision,

not the actions of the trial court. Collor-Reed, 149 S.W.3d at 899. Therefore, Father’s allegations

of trial court error necessarily fail to raise anything for this Court’s review. See id. Points I and II

are therefore denied.

        Father’s third point, on the other hand, addresses the agency’s decision, and is therefore

properly before this court for review. Father argues that the agency correctly determined that the

diminution of Mother’s child-care costs constitutes a substantial and continuing change in

circumstances sufficient to warrant modification of the parties’ prior child support agreement. In

response, Mother argues that, as a matter of law, agency erred in basing its finding on a change

in child-care costs. She contends that Father can only establish a substantial and continuing

change in circumstances by proving he is unable to afford the amount of child support he

previously agreed to pay.1




        1
           The awkwardness of Father—the purported appellant—arguing that the agency was correct, and
Mother—the purported respondent—arguing that the agency erred, is a result of the parties’ failure to comply with
Rule 84.05(e), which provides:
        If the circuit court reverses a decision of an administrative agency and the appellate court reviews
        the decision of the agency rather than of the circuit court, the party aggrieved by the agency
        decision shall file the appellant’s brief and reply brief . . . . The party aggrieved by the circuit court
        decision shall prepare the respondent's brief.

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        We agree with Mother that the agency erred as a matter of law by determining that a

reduction in her child support costs qualified as a substantial and continuing change in

circumstances. Cf. § 452.370.1, R.S.Mo. (2000) (“[T]he provisions of any judgment respecting

maintenance or support may be modified only upon a showing of changed circumstances so

substantial and continuing as to make the terms unreasonable.”). Because Father’s child support

obligations were based on an agreement between the parties that was incorporated into their

judgment of dissolution, Father actually had the “heavy burden of proving he is unable to support

his child[] in the manner contemplated at the time [of] the [parties’ prior] agreement.” Brown v.

Brown, 19 S.W.3d 717, 724 (Mo. App. W.D. 2000); In re Marriage of Wilson, 181 S.W.3d 575,

583 (Mo. App. W.D. 2005); Forhan v. Forhan, 693 S.W.2d 164, 165 (Mo. App. E.D. 1985). He

was therefore required to establish that he could no longer afford the $1200 per month in child

support that the parties agreed to in 2005.2 The agency erred as a matter of law by failing to

apply this standard, and instead basing its finding of a substantial and continuing change in

circumstances on a decrease in Mother’s child-care costs.

        The agency’s error in relying on the diminution of Mother’s child-care costs appears to

have been based on a mistaken interpretation of the “twenty-percent deviation rule” in section

452.370.1, which states:

        If the application of [Form 14] . . . to the financial circumstances of the parties
        would result in a change of child support from the existing amount by twenty
        percent or more, a prima facie showing has been made of a change of
        circumstances so substantial and continuing as to make the present terms
        unreasonable, if the existing amount was based upon the presumed amount
        pursuant to [Form 14].



Mother, who was aggrieved by the agency decision, was required to file the appellant’s brief. See Ringer v. Mo.
Dep’t of Health & Senior Servs., 306 S.W.3d 113, 115 (Mo. App. W.D. 2010). Father, who was aggrieved by the
trial court’s decision, was required to file the respondent’s brief. Id.
          2
            The agency found that Father’s current gross, monthly income is $10,765, which amounts to $129,180 per
year.

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In other words, section 452.370.1 provides that if Mother and Father previously used Form 14 to

calculate the amount of child support owed by Father, and the results of a new Form 14

calculation differed by twenty percent from the original, Father has made a prima facie showing

of a substantial and continuing change in circumstances sufficient to modify the parties’

agreement. The agency concluded that it was “convinced . . . Form 14 did in fact play a role in

the parties ultimate agreed upon support amount [of $1200 per month],” and performed a new

Form 14 calculation accounting for diminished child-care costs. The agency’s new calculation

yielded just $410 per month—a decrease of approximately sixty-six percent.

       Though we recognize, as the agency observed, that the parties and the court may have

considered Form 14 during the dissolution proceedings, the record shows that the parties

ultimately agreed that Father would pay a higher amount of child support than that presumed by

Form 14, and the judgment of dissolution incorporating the parties’ agreement shows that the

court specifically rejected Form 14 as “unjust and inappropriate.” Consequently, Father’s support

payments were not “based on the presumed amount pursuant to [Form 14].” § 452.370.1. Section

452.370.1’s provision that Father may make a prima facie showing of a substantial and

continuing change in circumstances based on a twenty-percent change in Form 14 calculations,

therefore, is inapplicable to this case. See Hueckel v. Wondel, 270 S.W.3d 450, 456 (Mo. App.

S.D. 2008); Brown, 19 S.W.3d at 724.

       In sum, because the amount of Father’s child support payments was not based on Form

14, and because the amount was established pursuant to an agreement between the parties, the

agency was required to predicate any finding of a substantial and continuing change in

circumstances on Father’s inability to pay. See Brown, 19 S.W.3d at 724. The agency erred as a

matter of law by failing to apply this standard, and instead basing its finding of a substantial and



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continuing change in circumstances on a decrease in Mother’s child-care costs. Point III is

denied.

                                       V. CONCLUSION

          For the foregoing reasons, we reject the agency’s proposed order of modification and

affirm the trial court’s judgment.


                                             _________________________________
                                             Lisa S. Van Amburg, Judge

Angela T. Quigless, C.J. and
Kurt S. Odenwald, J. concur.




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