Court of Appeals of Missouri, Western District, First Division
STATE OF MISSOURI EX REL. FAMILY SUPPORT DIVISION, Respondent,
STEAK'M TAKE'M LLC AND STEAK M & TAKE M LLC AND ERVIN ROSS, JR. INDIVIDUALLY, Appellants.
from the Circuit Court of Jackson County, Missouri The
Honorable Robert Michael Schieber, Judge.
Before: James Edward Welsh, P.J., Lisa White Hardwick, and
Gary D. Witt, JJ.
EDWARD WELSH, PRESIDING JUDGE.
Ross, Jr. and Steak M & Take M LLC
("Appellants") appeal the circuit court's
judgment, following a bench trial, in favor of the State of
Missouri's Family Support Division,
("Division") on its "Petition to Enforce Child
Support Withholding Orders" against the Appellants. We
1996, Ervin Ross Jr. ("Ross Jr.") and his sister,
Tressie Lyman ("Lyman"), began operating a
drive-through restaurant in Kansas City, Missouri. In 2007,
the restaurant was organized as a Missouri limited liability
company named Steak'm Take'm LLC ("Steak'm
LLC"). The articles of organization listed Lyman as the
organizer and registered agent.
2009, the restaurant hired Ross Jr.'s son, Ervin Ross III
("Ross III"). Ross III owes child support in three
different child support cases in Jackson County. In July
2009, the Division sent withholding orders to the restaurant
directing them to withhold child support from Ross III's
paycheck and to remit payments within seven working days of
his pay date to the Missouri Family Support Payment Center
orders informed the employer: "If you have any doubts
about the validity of the Order, contact the agency or person
listed below. If you fail to withhold income as the Order
directs, you are liable for both the accumulated amount you
should have withheld from the obligor's income and any
other penalties set by state law." The orders directed
the employer to notify the agency if the obligor has never
worked for or no longer works for the employer and to provide
the name and address of the new employer, if known. Despite
receiving all three income withholding orders, the restaurant
did not contact the Division about any of these matters but,
nevertheless, failed to withhold and pay any child support
from Ross III until December 2013, when payment to the
August 2009, a child support specialist with the Division
called the restaurant and spoke with Ross Jr. Ross Jr. stated
that he owned the restaurant and that he had received the
withholding orders and would start withholding from Ross III.
Ross Jr. now maintains, however, that Lyman owned the
restaurant between 2009 and December 2012 and that he had no
involvement with the payroll at that time. On July 24, 2012,
another Division specialist spoke with Nikki Lyman, who is
Ross Jr.'s niece and a manager at the restaurant. Nikki
Lyman expressed her belief that Ross III was paying the child
support himself. The specialist informed her that the
employer must honor the withholding orders.
September 2012, the restaurant still had not complied with
the withholding orders. On September 27, 2012, the specialist
noted that she would resend the withholding orders by
certified mail and "prep the file" for referral to
the Attorney General. Counsel for the Division later sent the
restaurant a letter warning about future litigation pursuant
the applicable statutes.
in January 2013, Lyman purportedly gave Ross Jr. the
restaurant for no consideration, and Ross Jr. simply
"took over" the restaurant's lease. On January
22, 2013, Ross Jr. formed Steak M & Take M LLC
("Steak M LLC"), but continued to operate the
restaurant at the same location and phone number with the
same sign, menu, customer base, and employees. Ross Jr. did
not notify the Division or any other governmental agency that
Ross III's employer had changed.
June 2013, the restaurant had paid nothing on the withholding
orders, so the Division filed a petition against Steak'm
Take'm restaurant to recover the amounts owed. In May
2014, defense counsel filed a general appearance on behalf of
Steak'm Take'm restaurant. The Division later amended
the petition to add the following potential owners of the
restaurant: Steak'm LLC, Steak M LLC, Ross Jr., Lyman,
and Tri-Star LLC. Defense counsel was granted leave to
withdraw his representation of Steak'm LLC and filed an
entry of appearance and answer on behalf of Steak M LLC and
Ross Jr. The Division voluntarily dismissed Lyman and
Tri-Star LLC as defendants after it was unable to obtain
service on them.
5, 2015, the circuit court held a bench trial on the
State's petition. Based on the evidence and testimony
presented, the court found, inter alia, that the
Division properly served Steak'm Take'm restaurant in
July 2009 with three orders to withhold child support from
Ross III and to remit the money to the Payment Center and
that Ross Jr. acknowledged receipt of the income withholding
orders in August 2009. The court noted that the restaurant
failed to contact the Division about the orders but,
nevertheless, failed to withhold or remit any child support
until December 2013. Pertinent to the points on appeal, the
court found that Steak M LLC, as a successor company, is
liable for Steak'm LLC's debts on the withholding
orders, and that Ross Jr. is personally liable for Steak M
LLC's debts on the withholding orders.
circuit court issued a default judgment against Steak'm
LLC after finding that it "was served on July 16,
2013" but "has failed to file an answer [or] to
appear at trial." The court issued a judgment against
Steak'm LLC, Steak M LLC, and Ross Jr., jointly and
severally, in the amount of $44, 373.74.
of Review and Statutory Framework
any court-tried case, we will affirm the circuit court's
judgment unless there is no substantial evidence to support
it, it is against the weight of the evidence, or it
erroneously declares or applies the law. Murphy v.
Carron, 536 S.W.2d 30, 32 (Mo. banc 1976). We review the
evidence and its reasonable inferences in the light most
favorable to the judgment and disregard all evidence and
inferences to the contrary. Roper Elec. Co. v. Quality
Castings, Inc., 60 S.W.3d 708, 710 (Mo. App. 2001). We
defer to the trial court's assessment of credibility,
recognizing that it is free to accept or reject all, part, or
none of the testimony presented. Id.
to the governing statute, when a support order has been
entered, the Director of the Division shall issue an order
directing any employer of a child support obligor to withhold
and remit to the Payment Center money due or to become due
the obligated parent in an amount not to exceed federal wage
garnishment limitations. § 454.505.1,
RSMo. Subsection .3 of the statute provides that
the orders shall be served on the employer by regular mail
and shall be binding two weeks after mailing. §
454.505.3. The employer shall withhold from the earnings or
other income of each obligor the amount specified in the
order and shall transmit the payments as directed within
seven business days of the date the earnings were payable to
the obligor. Id. The order shall be a continuing
order and shall remain in effect and be binding upon the
employer until further order of the Director. §
454.505.6. Section 454.505.8 provides that an employer who
fails to withhold or pay the amounts ordered shall be liable
for the amount that should have been withheld and paid over;
the Director is authorized to bring an action in circuit
court to determine the employer's liability; and a court
may enter judgment against the employer if it finds that a
violation has occurred. "[T]he employer's liability
is essentially strict." State Dep't of Soc.
Servs., Family Support Div. v. Swank, 502 S.W.3d 722,
725 (Mo. App. 2016).
LLC's Default Judgment
Point I, the Appellants contend that the circuit court erred
in granting a default judgment against Steak'm LLC
because that entity was never properly served, in that
"Tressie Lyman was never served with any petition."
noted, the circuit court issued a default judgment against
Steak'm LLC after finding that it "was served on
July 16, 2013 [but] failed to file an answer [or] to appear
at trial." We need not address this point in any detail.
The record shows that, in May 2014, defense counsel filed a
general entry of appearance on behalf of defendant,
Steak'm Take'm restaurant, without contesting service
of process or personal jurisdiction, thereby waiving this
objection. See Martin v. Martin, 196 S.W.3d 632,
634-35 (Mo. App. 2006) (an entry of general appearance
without objection to service of process or personal
jurisdiction waives objection to those matters on appeal).
Thus, the circuit court did not err in entering a default
judgment against Steak'm LLC.
is denied. 
M LLC's Successor Liability
Appellants argue in Point II that the trial court erred in
granting a judgment against Steak M LLC, because "the
evidence failed to support the State's argument that it
was a sham corporation, in that there were separate corporate
entities, officers and ...