               IN TH MIS
                   HE  SSOURI COUR OF A
                            I    RT   APPEAL
                                           LS
                      WESTER DIST
                      W     RN   TRICT

RANDA
    ALL TETZN
            NER,                                )
                                                )
                                Responden
                                        nt,     )
                                                )
v.                                              )    W
                                                     WD76875
                                                )
                                                )    OPPINION FIL
                                                                LED:
STATE OF MISSO
             OURI, DEPA
                      ARTMENT                   )    Ju 17, 2014
                                                      une      4
OF SOC
     CIAL SERV
             VICES, FAM
                      MILY                      )
SUPPOR DIVISIO
     RT       ON,                               )
                                                )
                                  Appellan
                                         nt.    )


                App from th Circuit Court of Jac kson Count Missouri
                  peal      he        C                     ty,    i
                       The Ho
                            onorable Pa
                                      atrick W. Ca
                                                 ampbell, Ju
                                                           udge

                Befo Division III: Thom H. Newto Presiding Judge, and
                   ore       n           mas         on,        g    d
                       Mark D. Pfeiffer and Cynthia L Martin, Jud
                                                    L.          dges

       This case illu
       T            ustrates the interface am
                                 i          mong Missou
                                                      uri’s statutor framewor with rega to
                                                                   ry       rk        ard

child sup
        pport collecti rights ac
                     ion       cquired by th relevant s
                                           he         state agency acting on behalf of the State

of Missouri.

       Randall Tetz
       R          zner (“Father”) petitione the Circu Court of Jackson C
                                          ed        uit                County, Mis
                                                                                 ssouri

(“Circuit Court”), fo judicial review of th Missouri Department of Social Services, Fa
        t           or                    he                  t                      amily

Support Division’s (“ Division”) August 7, 2007 orde to withhol (“withhol
        D           “the                7          er         ld        lding order”) and
                                                                                    ),

from the Division Director’s Decision affi
       e          D          D           irming that withholding order. Th Circuit C
                                                               g         he        Court
reversed the Division Director’s Decision and vacated the withholding order. The Division

timely appeals.1

        On appeal, we review the administrative agency’s decision rather than the judgment of

the circuit court; however, we affirm or reverse the circuit court’s judgment based upon our

review of the administrative decision. Schumer v. Lee, 404 S.W.3d 443, 445 (Mo. App. W.D.

2013). We reverse the judgment of the Circuit Court and order that the Division Director’s

Decision and the corresponding withholding order be reinstated.

                                      Facts and Procedural History2

        The Circuit Court entered a decree dissolving the marriage of Father and Cynthia Tetzner

(“Mother”) on March 5, 1984 (“Dissolution Decree”). Mother was awarded custody of the

parties’ child born March 27, 1982; Father was ordered to pay $150 per month child support to

Mother.     Without obtaining a modification of legal custody, Mother relinquished physical

custody of the child to Dorothy Tetzner, the child’s paternal grandmother (“Grandmother”).

Grandmother raised the child and drew AFDC (Aid to Families with Dependent Children)

financial assistance from the State of Missouri.

        On or about October 9, 1996, the Division sent a Notification to Circuit Clerk

(“Notification”). The Notification identified Father as an “absent parent,” the child as being

raised by a “NCPR [Non-Parent Caretaker Relative],” and state financial assistance in the form

of AFDC benefits. The Notification directed the Circuit Clerk to send child support payments to

the Division.




        1
          Father, as the party aggrieved by the agency decision, is the Rule 84.05(e) appellant.
        2
           In reviewing an administrative agency’s decision, we look to the whole record, not merely at that
evidence that supports the agency’s decision, and we no longer view the evidence in the light most favorable to the
agency’s decision. Lagud v. Kansas City Bd. of Police Comm’rs, 136 S.W.3d 786, 791 (Mo. banc 2004).


                                                        2
       On June 4, 1997, the Division issued an Administrative Order on an Existing Order

(“administrative order”). The administrative order indicated that as of May 30, 1997, Father

owed $8440.21 in child support arrearages.            On August 7, 2007, the Division issued a

withholding order to Father’s employer to enforce the administrative order, with Grandmother as

obligee.   Father requested an administrative hearing, which was held on July 2, 2009.

Thereafter, on August 11, 2009, the Division’s Director issued a Decision affirming the

withholding order.

       Father filed a petition for review of administrative decision in the Circuit Court on

September 22, 2009. The Circuit Court issued its judgment on June 19, 2013, reversing the

Division Director’s Decision and vacating the withholding order. The Division appeals.

                                       Standard of Review

       In an appeal following judicial review of an agency’s administrative action, this court

reviews the decision of the agency, not the circuit court. Lajeunesse v. State, Dep’t of Soc.

Servs., Dir., Family Support Div., 350 S.W.3d 842, 844 (Mo. App. W.D. 2011). Our scope of

review is limited to whether the agency’s decision:

       (1) Is in violation of constitutional provisions;

       (2) Is in excess of the statutory authority or jurisdiction of the agency;

       (3) Is unsupported by competent and substantial evidence upon the whole record;

       (4) Is, for any other reason, unauthorized by law;

       (5) Is made upon unlawful procedure or without a fair trial;

       (6) Is arbitrary, capricious or unreasonable;

       (7) Involves an abuse of discretion.




                                                  3
§ 536.140.2.3     While we defer to the agency’s findings of fact, we review the agency’s

interpretation, application, or conclusions of law de novo. Lajeunesse, 350 S.W.3d at 844 (citing

§ 536.140.3). Statutory interpretation is a question of law that we review de novo. Spradling v.

SSM Health Care St. Louis, 313 S.W.3d 683, 686 (Mo. banc 2010).

                                                Analysis

        Father raises four points on appeal challenging the Division’s authority to issue the

withholding order. Father challenges: (1) The Division’s jurisdiction to issue the withholding

order; (2) the Division’s lack of authority to enforce child support rights where Grandmother

never acquired such rights; (3) the Division’s lack of authority to assert rights it purportedly

acquired via an alleged assignment of rights from Grandmother; and (4) the Division’s lack of

authority to enforce child support rights barred by application of section 516.350.2.

                                                    I.

        In his first point on appeal, Father argues that the Division erred in issuing the August 7,

2007 withholding order because it was without subject matter jurisdiction to do so.

        “As a basic tenet of administrative law, an administrative agency has only such

jurisdiction as may be granted by the legislature.” St. Charles Cnty. Ambulance Dist., Inc. v. Mo.

Dep’t of Health & Senior Servs., 248 S.W.3d 52, 54 (Mo. App. W.D. 2008) (internal quotation

omitted). “If the agency lacks statutory authority to consider a matter, it is without subject

matter jurisdiction.” Id.

        The Division had subject matter jurisdiction over this matter because the legislature has

granted it statutory authority to enforce court orders of support. Section 454.505.1 provides that

“if a support order has been entered, the director shall issue an order directing any employer or


        3
         All statutory references are to the Revised Statutes of Missouri 2000, as updated through the 2013
Cumulative Supplement.


                                                    4
other payor of the parent to withhold and pay over to the division . . . money due.” The child

support obligor’s income is subject to such withholding on the date the obligor becomes one

month delinquent in child support payments. § 454.505.1.

        At the administrative hearing to contest the withholding order, “the certified copy of the

court order and the sworn or certified statement of arrearages shall constitute prima facie

evidence that the director’s order is valid and enforceable.” § 454.505.3. At the administrative

hearing in this case, the hearing officer admitted into evidence the Division’s hearing packet,

which included the Dissolution Decree that ordered Father to pay $150 per month in child

support, the Division’s child support arrearage calculation summary, and Circuit Court payment

records showing that Father paid $335.94 on March 17, 1999. Thus, the Division established its

prima facie case.

        “If a prima facie case is established, the obligor may only assert mistake of fact as a

defense.” Id. A “mistake of fact” is defined as “an error in the amount of the withholding or an

error as to the identity of the obligor.” Id. As obligor, Father had the burden of proof on these

issues. Id. Father did not present any factual evidence on these issues at the administrative

hearing. Thus, Father did not rebut the Division’s prima facie case.

        Father contends that the Division did not have jurisdiction because an existing court order

setting a determinable amount of child support precludes the Division from establishing new

support orders pursuant to section 454.470.                The Division did not, however, issue an

administrative order establishing child support or entering a “new” support order. Instead, the

Division’s order merely enforced the existing court order, as the Division is statutorily authorized

and directed to do pursuant to section 454.505.1.4


        4
        Father, currently a resident of Iowa, also cites to the Uniform Interstate Family Support Act (“UIFSA”),
which Missouri has adopted and codified in sections 454.850 to 454.997. The UIFSA does not aid Father’s


                                                       5
         Point I is denied.

                                                    II. and III.

         The issues in Father’s second and third points are whether Grandmother properly

acquired rights to be enforced by the Division and, if not, whether any purported assignment of

rights by Grandmother to the Division was a legal nullity. Father asserts that the Division acted

without authority in bringing an action in the name of the Grandmother because the Circuit Court

did not enter an order directing a change in the payee from Mother to Grandmother and the

Division had not acquired child support rights via valid assignment.

         The Circuit Court agreed with Father, explaining its judgment as follows:

         [Grandmother] is a caretaker relative that raised [the child]. Apparently, the
         custodial parent in the original divorce judgment, [Mother], relinquished custody
         to [Grandmother]. There is no evidence in the record to suggest this custodial
         transfer was done by Court order. Pursuant to R.S.Mo. § 454.455.3, “If an order
         for child support has been entered, no assignment of support has been made, and
         the legal custodian and obligee under the order relinquishes physical custody of
         the child to a caretaker relative without obtaining a modification of legal
         custody . . . the division may, thirty days after the transfer of custody and upon
         notice to the obligor and obligee, direct the obligor or other payor to change the
         payee to the caretaker relative or appropriate state agency.” The statute’s use of
         the term “direct” contemplates [an] order as the next sentence states, “An order
         changing the payee to a caretaker relative shall terminate when the caretaker
         relative no longer has physical custody of the child . . .” In the present case, no
         order was entered by the agency directing a change in payee from [Mother] to
         [Grandmother].

         ...

         The issue is not whether the Division had authority, the issue is whether the
         designated obligee, [Grandmother], ever properly acquired rights to be enforced
         by the Division. The Court finds that pursuant to § 454.455.3 she never properly


argument. By issuing the original child support order in the 1984 Dissolution Decree, Missouri established
continuing, exclusive subject matter jurisdiction over the order. State ex rel. Brantingham v. Grate, 205 S.W.3d
317, 320 (Mo. App. W.D. 2006). Missouri would lose its subject matter jurisdiction over the support order only if
certain criteria in section 454.867(a)(1) were met. Id. Father has not alleged, and there is no evidence in the record,
that any such statutory criteria have been met. Thus, there is nothing in the UIFSA preventing the Division from
enforcing the Missouri support order; instead, the UIFSA expressly authorizes the withholding order in question.
§ 454.932.


                                                          6
       acquired the rights of [Mother] to receive support as caretaker relative because
       there was no order changing the payee.

(Emphasis added.) Were this a situation in which Grandmother had never applied for and

received AFDC benefits from the State of Missouri, the Circuit Court’s reliance upon section

454.455.3 would be well taken. However, where, as here, the caretaker relative has applied for

and received AFDC benefits, section 454.455.1 provides the applicable statutory link for the

caretaker relative to acquire child support rights that are deemed to have been assigned to the

Division by operation of law, § 208.040.2(2). In other words, the Circuit Court improperly

concluded that “no assignment of support has been made,” which led to its improper reliance

upon section 454.455.3, instead of section 454.455.1.

       Section 454.455.1 presupposes both the relinquishment of physical custody by the child

support obligee to a non-parent caretaker relative and an assignment of support rights to the

Division by the caretaker relative in order to receive state assistance.       Section 454.455.1

provides, in pertinent part:

       In any case wherein an order for child support has been entered and the legal
       custodian and obligee pursuant to the order relinquishes physical custody of the
       child to a caretaker relative without obtaining a modification of legal custody, and
       the caretaker relative makes an assignment of support rights to the division of
       family services in order to receive aid to families with dependent children
       benefits, the relinquishment and the assignment, by operation of law, shall
       transfer the child support obligation pursuant to the order to the division in
       behalf of the state.

(Emphasis added.) Here, the undisputed facts reflect that both a relinquishment of custody and

an assignment of child support rights have occurred:

      Mother, as the legal custodian and child support obligee pursuant to the Dissolution

       Decree, relinquished physical custody of the child to Grandmother without obtaining a

       modification of legal custody;




                                                7
       Grandmother is a caretaker relative. § 208.040.1(2);

       Grandmother applied for and received AFDC benefits from the State of Missouri;

       Grandmother’s application for AFDC constituted an assignment of support rights from

        Mother to Grandmother to the Division, by operation of law.

        [E]ach applicant for or recipient of assistance: . . . [s]hall assign to the family
        support division in behalf of the state any rights to support from any other person
        such applicant may have in the applicant’s own behalf or in behalf of any other
        person for whom the applicant is applying for or receiving assistance. An
        application for benefits made under this section shall constitute an assignment of
        support rights which shall take effect, by operation of law, upon a determination
        that the applicant is eligible for assistance under this section.

§ 208.040.2(2) (emphasis added).

        Thus, pursuant to section 208.040.2(2) and section 454.455.1, Grandmother, as the

caretaker relative of the child via relinquishment of custody by Mother, was entitled to seek

AFDC benefits from the State of Missouri and, upon doing so, by operation of law, the Division

acquired the collection rights of the child support obligation set forth in the Dissolution Decree.

        Points II and III are denied.5

                                                       IV.

        For his fourth and final point, Father asserts that the Division’s claims are barred in

whole or in part because the underlying support order is deemed satisfied in whole or in part by

application of section 516.350. The Division responds that Father’s payment of child support in

March 1999 revived the child support judgment until March 2009; therefore, the presumption of

payment did not bar the Division’s withholding order issued in June 2007. We agree with the

Division.


        5
           The Division also argues that Father does not possess standing to challenge the validity of an assignment
of his child support obligations, citing State ex rel. Williams v. Williams, 647 S.W.2d 590 (Mo. App. W.D. 1983).
Given our ruling today, we need not and do not address the Division’s alternative argument in defense of the
propriety of the withholding order.


                                                         8
        Section 516.350.2 provides that periodic payments of child support “shall be presumed

paid and satisfied after the expiration of ten years from the date that periodic payment is due,

unless the [child support] judgment has been otherwise revived as set out in [section 516.350.1].”

In Ferguson v. Ferguson, 636 S.W.2d 323, 324 (Mo. banc 1982), the Missouri Supreme Court

held that the ten-year period of limitation starts to run separately for each periodic child support

payment when it is due.

        Therefore, pursuant to section 516.350.1, each time Father failed to make a monthly child

support payment after the entry of the Dissolution Decree in March 1984, a ten-year period of

limitation for that particular payment obligation commenced. The period of limitation for each

unpaid monthly child support obligation began to expire in March 1994. Further, the period of

limitation as to all of the periodic child support obligations expired as of March 27, 2010, ten

years after the final child support payment was due, when the child was emancipated6 when she

turned eighteen on March 27, 2000, unless the Dissolution Decree was revived pursuant to

section 516.350.1.

        The obligation to remit periodic child support payments ordered by a judgment, order, or

decree may be revived by the obligor’s payment on the judgment “duly entered upon the record

thereof.” § 516.350.1. “Thus, the ten year period of limitations for each unpaid periodic child

support obligation will begin anew if . . . revival occurs before the original ten year period of

limitations has expired.” Martin v. Martin, 334 S.W.3d 741, 744-45 (Mo. App. W.D. 2011). It

is not disputed that Father made a child support payment “duly entered upon the record” on

March 17, 1999. That payment operated to revive the Dissolution Decree for all arrearages


        6
           “Unless otherwise agreed in writing or expressly provided in the judgment, provisions for the support of a
child are terminated by emancipation of the child.” § 452.370.4. “Unless the circumstances of the child manifestly
dictate otherwise and the court specifically so provides, the obligation of a parent to make child support payments
shall terminate when the child: . . . [r]eaches age eighteen . . . .” § 452.340.3(5).


                                                         9
remainin due with the ten
       ng       hin     n-year perio preceding the paym
                                   od        g        ment.              Onl child su
                                                                           ly       upport

installme that accr
        ents      rued prior to March 1989 would be b
                              o          9          barred by se
                                                               ection 516.35
                                                                           50.

       Because Fath
       B          her’s last pay
                               yment was re
                                          ecorded on M
                                                     March 17, 1999, and ser
                                                                           rved to reviv the
                                                                                       ve

Dissoluti Decree, the conclusiv presumpt
        ion       t           ve       tion of paym
                                                  ment and satisfaction doe not preclu an
                                                                          es         ude

action fo recovery of the child support aw
        or                    d          warded unde the Dissolution Decre until afte the
                                                   er                    ee         er

expiration of ten yea from the date that periodic paym
                    ars      e           p           ment was du or Marc 17, 2009. See
                                                               ue,     ch

§ 516.350.2. Becaus the Divisio issued the withholdin order on J
                  se          on                    ng         June 4, 2007 it was time to
                                                                          7,          ely

capture th child support arrearag from Ma
         he                     ges     arch 1989 to March 1999
                                                              9.

       Point IV is de
                    enied.

                                          Conclusion

       The Circuit Court’s judg
       T           C          gment, rever
                                         rsing the Div
                                                     vision Direc
                                                                ctor’s Decis
                                                                           sion and vac
                                                                                      cating

the Divi
       ision’s withholding ord
                             der, is rever
                                         rsed.      The Division D
                                                                 Director’s D
                                                                            Decision and the
                                                                                       d

correspon
        nding withho
                   olding order shall be, an are, reinst
                              r            nd          tated.




                                            Mark D. Pfe
                                                     feiffer, Judge
                                                                  e

Thomas H. Newton, Presiding Ju
       H                     udge,
and Cynt L. Marti Judge, co
       thia      in,         oncur.




                                               10
