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Morfin v. Werdehausen

Court of Appeals of Missouri, Western District, Third Division

November 12, 2014

FRANCISCO MORFIN, Appellant,
v.
ANGEL WERDEHAUSEN AND FAMILY SUPPORT DIVISION, Respondents

Page 344

Appeal from the Circuit Court of Cole County, Missouri. The Honorable Jon E. Beetem, Judge.

Mary Jane Browning, Jefferson City, MO, for appellant.

John R. Suermann, Jr., Kansas City, MO, for respondents.

Before Division Three: Karen King Mitchell, Presiding Judge, Cynthia L. Martin, Judge and Gary D. Witt, Judge. All concur.

OPINION

Cynthia L. Martin, Judge.

Page 345

Appellant Francisco Morfin (" Father" ) appeals a Decision and Order (" Order" ) from the Family Support Division (" FSD" ) of the Missouri Department of Social Services in which Father received an abatement of child support in an amount that was less than he requested. Father argues that (1) he is entitled to a rehearing because he did not receive a full and fair hearing due to a language barrier in violation of his right to due process, and (2) he is entitled to the full abatement he requested because the Order is not supported by substantial evidence. Because Father did not preserve his first point for review, and because there was substantial evidence to support the Order, we affirm.

Factual and Procedural History

Father and Angel Werdehausen (" Mother" ) were married in Las Vegas, Nevada, in July 1991. They had three children and eventually moved to Missouri. On May 17, 2001, the Division of Child Support Enforcement (" DCSE" ) entered an order requiring Father to pay $528 a month in child support for his three children.[1] The order had an effective date of April 15, 2001, and was to continue until further order of DCSE or a court.

Page 346

On July 6, 2001, Mother requested that enforcement of the DCSE child support order be closed. On January 2, 2009, Mother requested that enforcement of the DCSE child support order be re-opened. Up to that point, Father had not made any of the ordered payments.

Father and Mother separated in August 2009. Father first made a partial payment pursuant to his obligation under the DCSE child support order in December 2009. Payments in varied amounts were made each month thereafter through November 2012.

Dissolution proceedings were initiated at some point after the parties separated, and a decree of dissolution of marriage was entered on September 29, 2011. The dissolution decree acknowledged the emancipation of one of the three children born of the marriage, and awarded no child support going forward for the other two children because the parenting plan envisioned that both Mother and Father would spend substantial time with the children.[2] The dissolution decree did not refer to the DCSE child support order, or to the arrearage owed by Father pursuant to that order. However, consistent with the terms of the order, Father's monthly child support obligation ceased accruing after the dissolution decree was entered.

On October 24, 2012, Father requested an abatement of the full amount of unpaid child support due and owing under the DCSE child support order, claiming he had been living with Mother and directly supporting the children from January 1, 2001 to August 1, 2009 when the parties separated.[3] Pursuant to section 454.475,[4] a hearing was scheduled on Father's request on December 20, 2012, before the Administrative Hearings Unit of the Missouri Department of Social Services.

Father, Mother, and an FSD technician were present at the hearing, which was conducted in part by telephone.[5] FSD provided an interpreter for the proceeding of its own initiative.[6]

The interpreter's credentials were not established on the record, and the interpreter was not sworn. The interpreter's translation of the hearing for Father was sporadic. Sometimes the interpreter was asked to translate the comments of a party immediately after that party spoke, while at other times extended discussion would take place before the interpreter would be asked to translate what had transpired. Some portions of the proceeding were not translated at all.[7] Father registered no objections during the hearing regarding use of the interpreter, or ...


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