Kenneth L. KUBLEY, Appellant/Cross-Respondent, v. Molly M. BROOKS, Respondent/Cross-Appellant, and Director of the Division of Child Support Enforcement, Department of Social Services, Cross-Appellant.
No. SC 85460.
Supreme Court of Missouri, En Banc.
June 8, 2004.
Rehearing Denied Aug. 3, 2004.
141 S.W.3d 21
LAURA DENVIR STITH, Judge.
Jeremiah W. (Jay) Nixon, Atty. Gen., Bart A. Matanic, Asst. Atty. Gen., Jefferson City, for Cross-Appellant.
Charles T. Rouse, Salem, for Respondent/Cross-Appellant.
LAURA DENVIR STITH, Judge.
Kenneth Kubley and the Division of Child Support Enforcement (DCSE) appeal the trial court‘s judgment directing them to reimburse Molly Brooks for $21,649 in child support. She was required to pay that amount to DCSE from 1994 to 1998 to reimburse it for sums it had paid to Mr. Kubley in Aid to Families with Dependent Children (AFDC) benefits. DCSE argues that it was entitled to collect these child support amounts pursuant to an administrative order because at the time it took administrative action there was no prior, existing court order under which Ms. Brooks’ child support obligation was set or determinable. It also argues the doctrine of sovereign immunity protected it from liability on Ms. Brooks’ money had and received claims and tort claims.
This Court holds that DCSE was without authority to issue an order directing Ms. Brooks to pay child support because her child support obligation was already “determinable” under her dissolution decree in that the decree directed that she pay no dollars in child support. This Court also holds that the doctrine of sovereign immunity in tort has no application to Ms. Brooks’ claim for money had and received, which sounds in contract. While the sovereign is immune from suit without its consent even for contract claims, herе
This Court does affirm the holding that the doctrine of sovereign immunity in tort precludes DCSE from being held liable to Ms. Brooks in tort for wrongfully collecting the improperly collected child support. This Court also affirms dismissal of Ms. Brooks’ claims against Mr. Kubley for actual and punitive damages in tort. Finally, because DCSE‘s payments to Mr. Kubley did not result from a passthrough of Ms. Brooks’ child support payments, but rather resulted from his successful application for AFDC benefits, this Court reverses that aspect of the judgment below holding that he is jointly and severally liable for the damages awarded to Ms. Brooks. The
I. FACTUAL AND PROCEDURAL BACKGROUND
On March 25, 1994, a decree dissolving the marriage of Molly Brooks and Kenneth Kubley was entered. The court awarded the parties joint legal custody of their children. The court nominally awarded Mr. Kubley primary physical custody, but the visitation ordered gave Ms. Brooks custody of the children fifty percent of the time. Because child support was an issue, the court also completed a Form 14. It showed that each parent had equal income and that each owed the other $258.50 in child support per month. Not finding it appropriate that each pay the other the identical amount indicated on Form 14, the court found the Form 14 amount to be unjust and inappropriate, rejected it, and ordered that “both parties be required to support the minor children.”
Unbeknownst to either Ms. Brooks or to the court, just a week later, on April 1, 1994, Mr. Kubley applied for AFDC benefits. The next week, on April 8, 1994, he sought an amendment to the decree to provide that primary legal custody was also in Mr. Kubley and to nominally give Ms. Brooks less visitation. Because Mr. Kubley stated that this modification was necessary for him to qualify for various educational grants, Ms. Brooks did not oppose the motion, and the court granted it on April 14. The court made no change in the language of the order addressing child support as Mr. Kubley promised that Ms. Brooks’ actual visitation time wоuld remain unchanged. Very shortly thereafter, Mr. Kubley assigned his child support collection rights as the custodial parent to DCSE in return for his AFDC benefits, see
As discussed infra, DCSE‘s authority to administratively order a parent to provide child support depends on whether a court order is already in place providing for a set or determinable amount of support. On August 23, 1994, DCSE determined that no such order was in place and that it was authorized, therefore, to enter an administrative order setting an amount of support to be paid by Ms. Brooks. After serving Ms. Brooks with a notice and finding of financial responsibility, DCSE issued an аdministrative default order on September 29, 1994, ordering her to pay $381 per month in child support and to enroll her children in a group insurance plan, if available.
One year later, the Phelps County assistant prosecutor filed a motion for contempt against Ms. Brooks for nonpayment of support. Ms. Brooks was unable to pay this amount because she entered a year-long registered nurse program in August 1994. A court date was set before a different judge than had heard the dissolution. Ms. Brooks was never served with notice of the hearing and failed to appear. A warrant was issued, and she was incarcerated for five days until the warrant was withdrawn and she agreed to pay the administratively-required child support to avoid further incarceration.
Mr. Kubley filed a motion to modify in the circuit court on November 27, 1996, to which Ms. Brooks filed cross-motions. While these motions were pending, DCSE issued another administrative default order raising Ms. Brooks’ child support obligation to $598 per month. On September 29, 1998, pursuant to a stipulation, the circuit court then entered an order modifying both custody and support, ordering Ms. Brooks to pay child support of $500
The circuit court found DCSE and Mr. Kubley jointly and severally liable to Ms. Brooks for the full $21,649, awarded her primary physical custody, and directed Mr. Kubley to pay Ms. Brooks monthly child support.2 DCSE and Mr. Kubley appeal the restitution order. After opinion by the
II. ANALYSIS
A. Standard of Review
The circuit court‘s judgment will be affirmed unless no substantial evidence exists 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).
B. The Circuit Court‘s Child Support Order Was for a “Determinable” Amount Under Section 454.460(2).
If a court order has not been previously entered, the director may issue a notice and finding of financial responsibility to a parent who owes a state debt or who is responsible for the support of a child on whose behalf the custodian of that child is receiving support enforcement services from the division under section 454.425.
The relevant statute defines “court order” as “any judgment, decree, or order of any court which orders payment of a set or determinable amount of support money.”
In its original and amended decree in 1994 in this case, the circuit court ordered that “both parties be required to support the minor children.” DCSE claims, and the dissenting opinion suggests, that this was not a “court order” as defined in
DCSE argues that to be determinable, the order must direct that a specific dollar amount of support be paid from one parent to the other. But, the term “determinable” has a broader reach. It means “capable of being determined, definitely ascertained, or decided upon.” WEBSTER‘S NEW COLLEGIATE DICTIONARY 310 (4th ed. 1976). Here, there is no doubt that each parent could determine from the court‘s order exactly what they were to pay to the other parent—nothing. There is no doubt that DCSE could and did determine from the order entered by the court exactly what Ms. Brooks was required to pay Mr. Kubley for support of their children—nothing. DCSE asks this Court to apply the statute as if it stated that DCSE has authority to issue an administrative order of support if the support order entered by the trial court did not direct that money be exchanged between the parents. But, that is not what the statute requires. It requires only that the trial court act on the issue of support by entering an order from which the amount payable is determinable. Here, it can be determined, and with certainty, to be zero.
In similar circumstances, Binns v. Missouri Division of Child Support Enforcement, 1 S.W.3d 544, 547 (Mo. App. E.D. 1999), held that the circuit court‘s order stating that “neither party is obligated to the other as аnd for child support” was a court order setting a determinable amount of child support. This holding correctly recognized that the issue is not whether a court has ordered money to change hands between the parents, but whether a court order has previously been entered governing child support. It does not matter that the order, once in place, directs the payment of no dollars in support between the parents rather than hundreds of dollars. It is the fact that a court order that has been entered that provides for a set or determinable amount of support money that is dispositive.3 This follows from the
Here, while the court did not use the phrase “neither party is obligated to the other as and for child support,” implicit in the order that both parties support the children is that each parent pays nothing to the other in child support so that the respective support awards are both $0.00. To rule in this circumstance that no court order had been previously entered determining support would put form over substance and would render superfluous the court‘s actions in regard to support and the specific rejection of Form 14. It would require a judge to direct a parent tо make a nominal payment to the other parent, or a payment of $0.00, if the judge wanted to retain authority over the issue of support, even where, as here, the court had specifically considered the support issue and specifically determined that a parent was not to pay any support.
The law does not require such action. Because there was an existing, effective order governing child support, DCSE had no authority under
For similar reasons, this Court also rejects DCSE‘s argument that Ms. Brooks is estopped from bringing her claims because she acquiesced in DCSE‘s order by paying the child support it ordered her to pay. While Ms. Brooks did not immediately appeal DCSE‘s child support orders, she refused to pay it until she was incarcerated for failure to do so.6 In Wampler v. Director of Revenue, 48 S.W.3d 32 (Mo. banc 2001), this Court held that the director of revenuе will not be held to have waived his right to appeal by acquiescing in a judgment when he complies with a court order that he restore a license to a driver. In so holding, this Court noted that “it would be an absurd result not intended by the legislature to require that the director risk being held in contempt of court in order to preserve the right to
So too, here, Ms. Brooks will not be held to have acquiesced in the child support order when she paid it under threat of further incarceration and contempt, and it would not further public policy to require her to refusе to support her children while her obligation to do so is being litigated.
In any event, the existence of a prior support order deprived DCSE of authority to issue a new support order by administrative action, and its order attempting to do so was void. State Tax Comm‘n v. Admin. Hearing Comm‘n, 641 S.W.2d 69, 72 (Mo. banc 1982) (administrative actions taken without subject matter jurisdiction, such as order purporting to give declaratory judgment, are void); Garcia-Huerta, 108 S.W.3d at 687. Except in unusual circumstances, see, e.g., State ex rel. York v. Daugherty, 969 S.W.2d 223, 224-25 (Mo. banc 1998) (where parties accept benefits of judgment of dissolution entered by commissioner rather than judge, they will be estopped from attacking it later), subject matter jurisdiction cannot be conferred by estoppel.7 Here, unlike in York, the decree to which estoppel effect is sought to be given by DCSE is not a prior judicial decree, but a void аdministrative action that DCSE is statutorily prohibited from taking if, as here, a prior court order of support has been entered. Estoppel is an equitable doctrine, and in circumstances of this case it is not applicable.
B. DCSE has Consented to Suit for Non-Tort Claims.
DCSE argues that, even if Ms. Brooks would otherwise have an action against it for money had and received to recover the $21,649 she paid in child support, DCSE is immune from liability under the doctrine of sovereign immunity as codified in
DCSE recognizes that Ms. Brooks is not suing in tort, but rather is suing in contract for money had and received and acknowlеdges that immunity from suit is waived when the State enters into an express contract. V.S. DiCarlo Construction Co., Inc. v. State, 485 S.W.2d 52, 54 (Mo. 1972). But, DCSE notes, suits for money had and received are not based on express contract, but rather on equitable principles permitting recovery of money from defendant that, in all justice and fairness, the evidence shows defendant should not keep. See, e.g., Palo v. Stangler, 943 S.W.2d 683, 685 (Mo. App. E.D. 1997).8 As such, it argues, the waiver applicable to cases involving express contracts should not apply here. It further cites to cases it says hold that a statutory provision that an agency
DCSE‘s position reflects a fundamental, but not uncommon, confusion of the doctrine of sovereign immunity from liability in tort with the separatе, but related, doctrine that the sovereign cannot be sued without its consent.
Such sovereign or governmental tort immunity as existed at common law in this state prior to September 12, 1977, except to the extent waived, abrogated or modified by statutes in effect prior to that date, shall remain in full force and effect, except that, the immunity of the public entity from liability and suit for compensatory damages for negligent acts or omissions is hereby expressly waived in the following circumstances:....
As is evident,
Abrogation of sovereign immunity in tort had been considered two years prior to Jones in a dissenting opinion in O‘Dell v. School District of Independence, 521 S.W.2d 403, 414-15 (Mo. banc 1975). It discussed in detail why the doctrine that the State, as sovereign, is immune from tort liability was a judge-made rule that could be changed and suggesting that there were six rationales for the doctrine and that none had any continuing validity. Id. at 414-18 (Finch, J., dissenting).10
Two years later, in Jones, this Court agreed. Jones considered all six rationales for the “continued validity of the doctrine and [found] them illogical and unconvincing and not compelled by constitutional mandate.” Jones, 557 S.W.2d at 230. Accordingly, it abrogated the State‘s sovereign immunity from tort in Missouri. Id. But, in so holding, Jones expressly stated, “Thus far we have been dealing with immunity from tort liability. There remains the matter of immunity frоm suit, usually stated in terms of the sovereign not being liable to be sued without its
to give the words “sue and be sued” any meaning other than the usual and ordinary one conveyed by the language used, which is that thе entity in question may sue and be sued, without restriction as to kind of liability sought to be imposed.
Id. While
As long ago as Bush v. State Highway Comm‘n of Mo., 329 Mo. 843, 46 S.W.2d 854 (1932), this Court stated that a provision that the highway commission “may sue and be sued” is a waiver of the State‘s immunity from suit, adding that were that entity “not liable to the discipline of the courts in proper cases it would be like the monster of whom we read in Mrs. Shelley‘s Frankenstein (1817). . . . The state of Missouri has not created such a monster.” Id. at 856. It distinguished suits in contract from suits in tort, quoting with apрroval New York‘s rule that the state‘s exemption “from liability for the torts of its officers and agents does not depend upon its immunity from action without its consent, but rests upon grounds of public policy that no obligation arises therefrom.” Id. at 857.
More recently, this Court held in 1972 in DiCarlo, 485 S.W.2d at 54, that, “when the State enters into a validly authorized contract, it lays aside whatever privilege of sovereign immunity it otherwise possesses and binds itself to performance, just as any private citizen would do by contracting.” Similarly, it held that the effect of “general enabling acts, conferring broad authority to those agencies to sue and be sued . . . [is to] provide a continuing waiver of sovereign immunity to those agencies.” Id. at 56.11
Kleban v. Morris, 363 Mo. 7, 247 S.W.2d 832 (1952), and Gas Service Co. v. Morris, 353 S.W.2d 645 (Mo. 1962), relied on by DCSE, are not to the contrary. In both cases, plaintiffs sоught a refund of taxes illegally collected by the State. The applicable tax statutes contained specific provisions as to how such suits may be brought.
Far more applicable is Palo, 943 S.W.2d at 683, cited by Ms. Brooks. Palo specifically held that the provision in section 454.400.2(1) that DCSE has the power to sue and be sued does not waive the agency‘s sovereign immunity in tort, but does constitute consent to suit in contract for money had and received. Karpierz v. Easley, 31 S.W.3d 505 (Mo. App. W.D. 2000), and Gavan v. Madison Mem‘l Hosp., 700 S.W.2d 124, 126 (Mo. App. E.D. 1985), are in accord. To the extent that State ex rel. Missouri State Highway Patrol v. Atwell, 119 S.W.3d 188 (Mo. App. W.D. 2003), holds to the contrary, it is no longer to be followed.
The principle that the State can consent to suit is directly applicable here. Because Ms. Brooks’ claim for money had and received sounds in contract rather than in tort, the doctrine of sovereign immunity in tort and the cases discussing it are simply irrelevant. The State has unambiguously waived its immunity from suit in
B. Mr. Kubley Is Not Jointly and Severally Liable.
DCSE and Ms. Brooks argue, and the trial court found, that having accepted AFDC benefits, Mr. Kubley can be found jointly and severally liable to Ms. Brooks for the money that DCSE wrongfully collected from her under equitable theories of restitution and unjust enrichment.
Mr. Kubley does not contest that he received $17,458 in AFDC benefits and that it was solely bеcause of those payments that DCSE required Ms. Brooks to pay the improper child support. Nonetheless, he counters, he cannot be held liable for restitution of any of that money because he had no control over DCSE‘s actions and had no reason to know its orders
If the amounts that DCSE wrongfully collected from her had been passed on to Mr. Kubley, then the trial court‘s determination to hold Mr. Kubley jointly and severally liable for the amount of child support wrongly collected from Ms. Brooks would have been correct. This is because an action “for money had and received is proper where the defendant received money from the plaintiff under circumstances that in equity and good conscience call for defendant to pay it to plaintiff.” Palo, 943 S.W.2d at 685. And, as noted in Petrie v. LeVan, 799 S.W.2d 632, 635 (Mo. App. W.D. 1990):
A person who confers a benefit upon another because of a mistake is entitled to restitution if the mistake caused the conferring of the benefit. Restatement of Restitution Sec. 9 (1937). . . . Thus, a person who has received money from another by mistake, money that in equity and good conscience the person ought not to keep, may be compelled to make restitution—even though the mistake was an honest one.
Here, however, Mr. Kubley did not receive money from Ms. Brooks or because of the payments wrongly collected from her. To the contrary, Mr. Kubley‘s collection of AFDC benefits depended on whether he met the requirements for their payment under
This does not mean that Mr. Kubley has no potential liability in regard to his receipt of AFDC benefits. For example, under
C. Ms. Brooks May Not Recover Additional Actual or Punitive Damages.
Ms. Brooks claims that the court erred in failing to award her aсtual damages against DCSE because a contract exists between the State and its citizens “whereby the State agrees with the parents and children to assure the financial support of the children in a fair and equitable manner and in return saves the State considerable expense for child care.” Despite her assertion to the contrary, Ms. Brooks’ claim here clearly sounds in tort. She seeks actual damages against DCSE for the injury caused by her incarceration and the loss of time with her children. These are not contract damages. As discussed in detail above, when seeking tort damages against the State, a plaintiff must overcome two hurdles. Under
Ms. Brooks next alleges that the court erred in rejecting her claim against Mr. Kubley for actual and punitive damages because Mr. Kubley wrongfully obtained the April 14, 1994, modification of their dissolution decree when he promised at the time that the original custodial arrangement would remain unchanged, but later denied her periods of custody and was indirectly responsible for her brief incarceration. But, Mr. Kubley merely applied for AFDC benefits and assigned his right to recover child support to DCSE as required by
IV. CONCLUSION
The judgment of the circuit court as to Mr. Kubley‘s joint and several liability is reversed; the judgment is modified to provide that Mr. Kubley is not liable to Ms. Brooks for the damages awarded to her; and as so modified, and in all other respects, the judgment is affirmed.
WOLFF, BENTON, PRICE and LIMBAUGH, JJ., concur.
WHITE, C.J., dissents in separate opinion filed; TEITELMAN, J., concurs in opinion of WHITE, C.J.
RONNIE L. WHITE, Chief Justice, dissenting.
I respectfully dissent. Respondent voluntarily acquiesced to a valid and lawful DCSE order for child support, and she is estopped from claiming that the order is void.
A “court order” is defined in
Contrary to the principal opinion‘s construction, the trial court‘s dissolution decree, as substantiated by its companion order, did not order a child support payment of a “set and determinable amount of support money.” The order stating that the parties “are required to support the minor children,” in conjunction with a blank form, does not provide any set or determinable amount of support money. Nor is there any indication in this order that would obligate the parties to contribute equally to the support of the children.
Finding no valid order for child support in the trial court‘s dissolution decree ordering payment of a set or determinable amount of support money, DCSE had authority to pursue child support from Respondent through an administrative action under
DCSE had the authority to administratively enter a child support order against Respondent. Consequently, I would reverse the trial court‘s judgment against Mr. Kubley and DCSE and find that no restitution is required.