                                          In the
                         Missouri Court of Appeals
                                  Western District
 RANDALL GRAVES,                               )
                                               )
                 Appellant,                    )   WD83027
                                               )
 v.                                            )   OPINION FILED: March 31, 2020
                                               )
 MISSOURI DEPARTMENT OF                        )
 CORRECTIONS, THE DIVISION OF                  )
 PROBATION AND PAROLE,                         )
                                               )
                Respondent.                    )

               Appeal from the Circuit Court of Cole County, Missouri
                        The Honorable Daniel R. Green, Judge

 Before Division Two: Cynthia L. Martin, Presiding Judge, Thomas H. Newton, Judge
                             and Gary D. Witt, Judge


       Randall Graves ("Graves") appeals from the Circuit Court of Cole County's

dismissal of his Petition for Declaratory Judgment alleging the "antiattachment" provision

of 42 U.S.C. § 407(a) prohibits the Missouri Department of Corrections ("DOC") from

collecting probation intervention fees from Graves's Supplemental Security Income

("SSI"). The circuit court dismissed the action for failure to state a claim upon which relief

can be granted. Because the issues raised below and on appeal are not ripe for adjudication,
we affirm the dismissal but pursuant to Rule 84.14 we amend the judgment to a dismissal

without prejudice.

                                            Factual Background1

         Graves entered a plea of guilty to the class C felony of receiving stolen property in

the Circuit Court of Platte County, and on January 10, 2019, he was sentenced to six years

in DOC with execution of that sentence suspended and placed on supervised probation with

DOC's Division of Probation and Parole. As a condition of his probation, Graves was

ordered to comply with standard condition #10 which provides as follows:

         [Graves] shall pay a monthly intervention fee in an amount set by the [DOC]
         pursuant to RSMO 217.690. This payment shall be due and payable on the
         first day of the first month following placement on probation or acceptance
         of an Interstate case in the State of Missouri or on the first day of the fourth
         month following parole or conditional release . . . .

Graves alleged that his sole source of income is monthly SSI payments of $771.00. Graves

is required to pay a $30.00 intervention fee each month. On April 16, 2019, DOC sent a

letter to Graves that read in relevant part: "Our records show you have an overdue balance

of $60.00 on your current cycle." Graves was warned that "[f]ailure to [pay intervention

fees] may place you in violation status."2




         1
           On review of a motion to dismiss, "[a] plaintiff's averments are taken as true, and all reasonable inferences
therefrom are liberally construed in the plaintiff's favor." A.F. v. Hazelwood Sch. Dist., 491 S.W.3d 628, 631 (Mo.
App. E.D. 2016).
         2
           Sanctions for willful nonpayment of intervention fees include, but are not limited to, the following:
         A. Written reprimand from district administrator or parole board;
         B. Travel restriction;
         C. Community service;
         D. Increased level of supervision; and
         E. shock detention[.]
14 CSR 80-5.020(1)(I)(5).
                                                           2
       Graves filed his Petition for Declaratory Judgment in the circuit court of Cole

County on May 17, 2019, and DOC filed its Motion to Dismiss on June 19, 2019. The

circuit court entered judgment ordering "[DOC's] Motion to Dismiss is hereby granted with

prejudice." This appeal followed.

                                    Standard of Review

       We review a trial court's grant of a motion to dismiss de novo. Ward v. W. Cty.

Motor Co., 403 S.W.3d 82, 84 (Mo. banc 2013). "[T]he facts contained in the petition are

assumed true and construed in favor of the plaintiffs." Id. "If the petition sets forth any

set of facts that, if proven, would entitle the plaintiffs to relief, then the petition states a

claim." Id. Although, the circuit court did not provide a rationale for its dismissal, we

"presume[] it was for some reason stated in the dismissal motion and will affirm if dismissal

was appropriate on any ground stated therein." Eckel v. Eckel, 540 S.W.3d 476, 489 (Mo.

App. W.D. 2018) (quoting Costa v. Allen, 274 S.W.3d 461, 462 (Mo. banc 2008).

                                           Analysis

       In his only point relied on, Graves argues that the trial court erred in granting DOC's

motion to dismiss because requiring Graves to pay intervention fees as a condition of his

probation is an improper attempt to subject Appellant's social security benefits to "other

legal process" in violation of 42 U.S.C. § 407(a) (2018), which provides:

       The right of any person to any future [social security] payment under this
       subchapter shall not be transferable or assignable, at law or in equity, and
       none of the moneys paid or payable or rights existing under this subchapter
       shall be subject to execution, levy, attachment, garnishment, or other legal
       process, or to the operation of any bankruptcy or insolvency law.



                                               3
(emphasis added). "Missouri courts do not issue opinions that have no practical effect and

that are only advisory as to future, hypothetical situations." State ex rel. Mo. Parks Ass'n

v. Mo. Dep't of Nat. Res., 316 S.W.3d 375, 384 (Mo. App. W.D. 2010).

       In order to grant a declaratory judgment, a trial court must have a [justiciable]
       controversy before it. 'A [justiciable] controversy exists where the plaintiff
       has a legally protectable interest at stake, a substantial controversy exists
       between the parties with genuinely adverse interests, and that controversy is
       ripe for judicial determination.'

Id. at 384-85 (quoting River Fleets, Inc. v. Creech, 36 S.W.3d 809, 813 (Mo. App. W.D.

2001)).

       In Reeves v. Kander, 462 S.W.3d 853 (Mo. App. W.D. 2015), we reversed a circuit

court's judgment on the merits because the matter was not yet ripe. "A review for ripeness

is therefore appropriate even where, as here, '[n]either party has raised the [specific] issue

of ripeness' upon which we rely, on appeal." Id. at 857 (quoting Mo. Retired Teachers

Found. v. Estes, 323 S.W.3d 100, 104 n.8 (Mo. App. W.D. 2010). Specifically, the circuit

court determined that if a ballot initiative for a constitutional amendment were to pass, it

would violate the United States Constitution, and therefore, it could not appear on the

ballot. Id. at 856. Because we found that the circuit court entered judgment on the merits

before the challenge was ripe, we reversed and certified the initiative to the Secretary of

State. Id. at 859. Similarly, in the instant case neither party has challenged ripeness on

appeal, but because Graves's petition for declaratory judgment is premature, we reverse.

See Mo. Soybean Ass'n v. Mo. Clean Water Comm'n, 102 S.W.3d 10, 33 (Mo. banc 2003)

("[B]ecause the controversy is not ripe for review, the judgment of dismissal is modified

to one without prejudice.").

                                              4
       Graves and DOC both acknowledge that the sentencing court ordered Graves to pay

intervention fees as set by DOC and that DOC has set the fee at $30 per month. Graves

does not allege in his petition that the sentencing court or DOC lacked the authority to

order the fees to be assessed or that the amount of the fee is unauthorized. In fact, Graves

concedes "that simply imposing intervention fees does not necessarily implicate 'other legal

process' under 42 U.S.C. § 407 (a)." Graves argues that because "[DOC] is required to

violate Appellant when nonpayment occurs over a period of ninety consecutive days makes

resort to 'other legal process,' as a practical matter, a forgone conclusion." We disagree.

14 CSR 80-5.020(1)(I)(4) provides that "[w]hen willful nonpayment occurs over a period

of ninety (90) consecutive days, the supervising [parole] officer shall submit notice of

citation or violation report[.]" (emphasis added). Additionally, 14 CSR 80-5.020(1)(H)

provides that when "an offender is unable to pay because of having insufficient income,

fees may be waived in whole or in part."

       In Farm Bureau Town and Country Insurance Company of Missouri v. Angoff, 909

S.W.2d 348, 353 (Mo. banc 1995), the Court found that:

       Until an agency has made a final determination that finds facts, applies the
       law to those facts, and construes the applicable statutes, it is impossible to
       know if a subsisting justiciable controversy exists between the agency and
       the party seeking declaratory relief. Prior to the agency's decision, the
       controversy remains hypothetical and premature. Declaratory judgment
       actions should not be resorted to for the purpose of giving advisory opinions.

Graves merely alleges that DOC sent a letter to Graves that stated, "Failure to [pay

intervention fees] may place [Graves] in violation status."       (emphasis added).     The

regulation only makes "willful nonpayment" a violation. Graves makes no assertion on

appeal that DOC has made a final determination as to whether Graves's nonpayment is
                                             5
willful or not, a decision subject to judicial review by the sentencing court. To adequately

address the issue, we would have to assume that: (1) DOC would find Graves's nonpayment

to be willful; (2) DOC would file a violation report based on nonpayment; (3) Graves

would, at that time, have no other source of funds to pay the fees other than his SSI; and

(4) the sentencing court would agree with DOC's analysis.3 Graves's financial condition is

subject to change prior to any of these events occurring. Graves may obtain employment,

inherit assets, or experience any number of other unknown events, which would not require

the use of his SSI benefits to pay the supervision fees and therefore would not result in any

potential violation of the provisions of section 407(a). Thus, the controversy before us is

hypothetical, and any opinion rendered by this Court or the circuit court would be

premature and advisory.

                                                  Conclusion

         Rather than remanding the case to the trial court, pursuant to Rule 84.14, we "give

such judgment as the court ought to give." The judgment of dismissal is affirmed.

However, because the controversy is not ripe at this time but could become ripe at a future

time, the judgment of dismissal is modified to a dismissal without prejudice.



                                                      __________________________________
                                                      Gary D. Witt, Judge

All concur




         3
           Graves cites various cases in other Missouri trial courts where DOC has taken such action and the
relevant sentencing courts have violated parolees for nonpayment of intervention fees. Such cases are not properly
before us, and those instances are not indicative of how DOC or the sentencing court will proceed under these facts.
                                                         6
