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Kelly v. Missouri Dep't of Soc. Servs.

Court of Appeals of Missouri, Western District, First Division

March 10, 2015

JOHN M. KELLY, Appellant,
v.
MISSOURI DEPARTMENT OF SOCIAL SERVICES, FAMILY SUPPORT DIVISION, Respondent

Page 108

[Copyrighted Material Omitted]

Page 109

Appeal from the Circuit Court of Caldwell County, Missouri. The Honorable R. Brent Elliott, Judge.

John M. Kelly, Appellant, Pro se, Braymer, MO.

For Respondent: Chris Koster, Attorney General, Jefferson City, MO; Nicolas Taulbee, Assistant Attorney General, Kansas City, MO.

Mark D. Pfeiffer, Judge. Cynthia L. Martin, Presiding Judge, and Gary D. Witt, Judge, concur.

OPINION

Page 110

Mark D. Pfeiffer, Judge

John M. Kelly (" Kelly" ) appeals, pro se, from the judgment of the Circuit Court of Caldwell County, Missouri (" circuit court" ), affirming an administrative ruling suspending Kelly's driver's license for his failure to pay child support and spousal support.

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 affirm the judgment of the circuit court. 2

Factual and Procedural Background[1]

On December 30, 2003, the Monroe County, New York, Supreme Court granted Marianne Trecaso (" Trecaso" ) a Judgment of Absolute Divorce (" New York Judgment" ), dissolving her marriage to Kelly. Trecaso was awarded sole custody of the parties' three minor children. Kelly was ordered to pay $1613.34 bi-monthly to Trecaso as child support and also ordered to pay $3000 per month as spousal maintenance to Trecaso. The amount of child support decreased as the children reached ages of emancipation, the youngest of which reached the age of emancipation on May 7, 2012. Kelly did not pay the child or spousal support as ordered by the New York Judgment.

The State of New York filed a Request to Register a Foreign Support Order with the circuit court. On August 30, 2012, after a hearing in which Kelly contested the foreign support order registration, the circuit court entered a Confirmation of Registered Order, which confirmed the Foreign Support Order issued by the State of New York and confirmed Kelly's arrearage amount of $369,543.16 as of May 7, 2012. Kelly did not appeal from the circuit court's Registration of Foreign Support Order.

On September 29, 2013, Kelly was served with a Notice of the Family Support Division's (" Division" ) intent to suspend his driver's license, alleging that according to Division records, as of August 20, 2013, Kelly owed $414,543.16 in past due support. Kelly requested an administrative hearing, which was held December 4, 2013, with Trecaso, Kelly, and a Child Support Enforcement Specialist participating.

The Specialist testified that the parties' youngest child is now emancipated and that Kelly's child support obligation ended as of May 7, 2012; however, his spousal support continues to accrue at $3000 per month. As of September 29, 2013, the record reflected that Kelly owed $417,543.16 in past due support.

Page 111

Kelly admitted that he was the person that was ordered to pay child support by the New York court. Kelly also admitted that he did not make any direct payments to Trecaso for which he had not been given credit and that the children did not ever live with him for an extended period of time without returning to Trecaso's care. Kelly testified as to why he believed he did not owe the support and why he believed the Division did not have the legal authority to suspend his driver's license.

Trecaso testified that she agreed with the amounts of child and spousal support owed by Kelly as stated by the Specialist and that Kelly still owes the full amount of child and spousal support.

The hearing officer issued the Director of the Missouri Department of Social Services' (" Director" ) Decision on February 20, 2014, finding a total combined child support and maintenance arrearage as of September 29, 2013, of $417,543.16. The hearing officer affirmed the Division's action, concluding that the Division had the statutory authority to suspend Kelly's license as a person who owes a child support arrearage greater than or equal to three months support or $2500, whichever is less, pursuant to sections 454.1003.1(1) and 454.1005.4(2).

Kelly filed a petition for review of the Decision with the circuit court. The circuit court affirmed the Decision.

Kelly timely appeals.

Standard of Review

Article V, section 18 of the Missouri Constitution authorizes judicial review of agency decisions to determine whether the decision is " supported by competent and substantial evidence upon the whole record." " An appellate court reviews the decision of the agency rather than the decision of the circuit court." Stone v. Mo. Dep't of Health & Senior Servs., 350 S.W.3d 14, 19 (Mo. banc 2011). The appellate court reviews 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 ...

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