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State, Department of Social Services Family Support Division v. Schauer

Court of Appeals of Missouri, Western District, First Division

October 25, 2016

STATE OF MISSOURI, DEPARTMENT OF SOCIAL SERVICES FAMILY SUPPORT DIVISION, ET. AL., Respondent,
v.
KENNETH SCHAUER, Appellant.

         APPEAL FROM THE CIRCUIT COURT OF NODAWAY COUNTY, MISSOURI THE HONORABLE W. DOUGLAS THOMSON, ASSOCIATE JUDGE

          Before: Thomas H. Newton, Presiding Judge, Cynthia L. Martin, Judge and Edward R. Ardini, Jr., Judge

          EDWARD R. ARDINI, JR., JUDGE

         Kenneth M. Schauer ("Schauer"), proceeding pro se, appeals the circuit court's denial of his Motion to Vacate Judgment of Modification of March 25, 2011, for Lack of Jurisdiction. The motion came nearly four years after the issuance of the judgment it sought to vacate which itself was modifying a child support order issued nine years earlier. After a careful review of the record, we determine that, because Schauer's appeal is not taken from a final judgment, his appeal must be dismissed.

         Factual and Procedural Background

         On April 18, 2002, the Nodaway County Circuit Court entered a judgment dissolving the marriage of Kenneth Schauer and Lisa Schauer. Pursuant to that dissolution, the circuit court ordered Mr. Schauer to pay $400.00 per month in child support. Sometime later, and at the request of Ms. Schauer, the Family Support Division ("the Division") began the child support modification procedures outlined in sections 454.496 and 452.370, [1] which resulted in an administrative hearing on September 28, 2010. The hearing officer determined that the "substantial and continuing change" requirement of section 452.370 had been satisfied on at least two independent grounds, and determined a new presumed child support amount of $714.00 per month. Schauer failed to seek judicial review of the hearing officer's decision.

         Shortly after the administrative hearing, and based on the hearing officer's finding of a substantial and continuing change, the Division filed with the circuit court a Motion to Review and Approve its proposed modification. On March 25, 2011, the circuit court entered judgment modifying the original dissolution of marriage decree by adopting the presumed child support amount determined by the hearing officer. Again, Schauer did not appeal. Nearly a year later, on March 19, 2012, Schauer filed a Motion for Relief from Judgment pursuant to Rule 74.06(b)[2]claiming that the Division had perpetrated a fraud upon the court. The circuit court took up the motion and denied the same on September 4, 2013. On December 18, 2015, Schauer filed a motion titled Motion to Vacate Judgment of Modification of March 25, 2011, for Lack of Jurisdiction ("Motion to Vacate"), which is the subject of this appeal. That motion was denied by order of the circuit court on January 28, 2016. Schauer now appeals that denial.

         Points Raised on Appeal

         Schauer raises two points on appeal. First, he asserts that the circuit court erred in modifying the original child support order because the circuit court lacked the jurisdiction to do so. Second, Schauer argues that the circuit court erred in "assisting" the Division who, he claims, brought its 2011 proposed modification to the circuit court with unclean hands.

         Discussion

         While not clearly delineated as such, we properly understand the Motion to Vacate, which is the subject of this appeal, to have been brought pursuant to Rule 74.06(b). Rule 74.06(b) allows for a party to seek relief from a judgment on one of five distinct grounds:

(1) mistake, inadvertence, surprise, or excusable neglect; (2) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (3) the judgment is irregular; (4) the judgment is void; or (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment remain in force.

         With regard to subsection (4) in particular, the Missouri Supreme Court has stated that "[a] judgment is void under Rule 74.06(b)(4) if the trial court: (1) lacked subject matter jurisdiction, (2) lacked personal jurisdiction, or (3) entered the judgment in a manner that violated due process." Bate v. Greenwich Insurance Company, 464 S.W.3d 515, 517 (Mo. banc 2015).

         Upon review of the Motion to Vacate, it appears that Schauer's argument, albeit far from precise, is that the circuit court lacked the subject matter jurisdiction needed to modify its previous child support order thereby rendering the 2011 modification judgment void. As a result, this court ...


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