Rеspondent, Darcy Suzanne Scott (“Child”), filed an amended third-party motion for contempt against Appellant, Glen Walter Scott (“Father”), alleging Father’s failure to pay court-ordered child support while Child attended college. In his answer, Father set out that Child had failed to properly plead that she had complied with the requirement of supplying Fаther with certain “papers” showing proof of college attendance as required by section 452.340.5, RSMo 2000.
1
Accord
In its judgment, the circuit court determined that while Child had not timely sent Father the documentation required by statute, Father had neverthеless, “waived or [was] estopped” from asserting the lack of documentation defense by tardily asserting this defense. As more fully explained herein, the circuit court found Father in civil contempt for his failure to make child support payments as ordered in its prior judgment modifying the original dissolution of marriage decree, and ordered Father’s commitment to the county jail.
To simplify discussion of the matters involved in this appeal, the following time-line provides relevant dates as outlined by the record and the parties’ testimony:
August 18, 1978 — Child was born to Father and Cynthia Lynn Clanton (“Mother”).
September 17, 1981 — Father and Mother’s marriage was dissolved by the Circuit Court of Barry County. Mother was awarded principal care and custody of Child, and Father was ordered to pay $150 per month for child support.
May 1996 — Child graduated high school. August 18, 1996 — Child turned 18 years of age and, having graduated from high school, commenced college as a full-time student at LaBette Community College, where, as Child testified, she remained for two years. She then transferred to Pittsburg State University.
March 19,1997 — Mother moved to modify the deсree of dissolution of marriage, and requested additional child support to cover expenses related to Child’s college education and support.
February 13, 1998 — The Circuit Court of Barry County modified the original dissolution of marriage judgment and ordered child support payments to be made directly to Child. On May 28, 1998, the court further modified the judgment and orderеd Father, inter alia, to pay $650 per month child support, retroactive to December 10, 1997.
Father continued to pay $150 per month in child support.
September 2, 1998 — Father moved to modify the child support obligation, citing a change in income.
October 7, 1998 — Mother moved for an order of contempt for Father’s failure to pay the full amount of child support and attorney fees, as ordered by the modification judgment entered February 13, 1998.
October 22, 1998 — In his answer to Mother’s motion for contempt, Father admitted that he was ordered to pay$650 in child support and had not done so, but denied that he willfully failed and refused to do so or that he had the ability to pay the child support.
March 18, 2000 — Child provided Father with a transcript of grades.
August 12, 2000 — Child provided Father with a .transcript of grades from the Summer 2000 semester.
August 18, 2000 — Child turned 22 years of age.
July 2001 — Child graduated from college.
January 16, 2002 — Court allowed Child to enter case as a third-party movant.
January 18, 2002 — Child, acting as a third-party movant, filed an amended motion for . contempt alleging inter alia Father’s continuing failure to pay child support. Child requested $17,139 for unpaid child support.
January 25, .2002 — In his answer to Child’s amended motion for contempt, Father claimed that he hаd fully paid all support due Child and/or Mother. Father also asserted that Child had failed to “properly” plead her motion for contempt, in that Child failed to set out she had given Father notice of her college attendance in compliance with the statutory requirements forth in section 452.340.5.
February 5, 2002 — The Circuit Court of Lawrence County heard the motion for contempt. 2 At that time, the Circuit Court also dismissed, at his request, Father’s September 2,1998 motion to modify his child support obligation.
March 30, 2002 — The parties submitted briefs relating to their respective positions at trial.
In its judgment of May 9, 2002, the Circuit Court of Lawrence County found that Child had not provided Father with the documentation required by section 452.340.5 “until March or August 2000.” It further found there “was no еvidence that the Father furnished any monetary support [for Child] except for the $150.00 monthly support paid by [Father].” However, the circuit court also found that Father, as the party seeking the abatement of his child support obligation, had the burden of proof on that issue and must have properly pled the elements of that defense. The circuit сourt noted that Father had not raised his defense based on Child’s failure to provide documentation of college attendance until November 21, 2000, when he filed a stipulation of facts and arguments. The circuit court further determined that Father’s “action or inaction under the present facts do not entitle him to abatement” because of his failure to timely assert that Child had not provided the documentation required under section 452.340.5 and that Father had “waived or [was] estopped from now asserting this defense.”
As previously set out, the circuit court found Father in civil contempt and ordered him to pay to Child the sum of $17,139, together with interest, and ordered Father’s commitment to the county jail, but stayed Father’s сommitment to allow him opportunity to purge himself of the contempt. When the contempt was not purged by July 30, 2002, the circuit court subsequently issued a Warrant and Commitment Order. Father appealed raising two points of circuit court error.
In Point One, Father alleges circuit court error “when it found that [Child] had made a prima facie case for contempt,
In civil non-jury cases, we shall affirm the trial court’s decision unless that decision is not supported by substantial evidence, is against thе weight of the evidence, or erroneously declares or applies the law.
Murphy v. Carron,
In our review of Father’s first point, we first observe that “[t]he function of рleadings is to present, define, and isolate the issues in controversy in order to advise the trial court and the parties of the issues to be tried and to expedite the trial of a cause on its merits.”
Bank of America, N.A. v. Stevens,
Here, Child filed a third-party “amended motion for contempt,” seeking
inter alia
to compel Father’s obedience to a court order directing Father to pay $650 per month in child support. “A prima facie case for civil contempt is established when the party alleging contempt proves: (1) the contemnor’s obligation to pay a specific amount or perform an action as required by the decree; and (2) the con-temnor’s failure to meet the obligation.”
In re Marriage of Earls,
While Father correctly set out that Child must meet certain statutory criteria to remain eligible for continued support, he points to no authority that shows Child, as the party seeking relief, must first have asserted that she had complied with the reporting requirements set forth in section 452.340.5.
4
Case law teaches that Father,
Furthermore, by placing the burden of pleading this defense upon Father, we remain consistent with the well-established principle that a party, when pleading an action, is not required to anticipate and negate the defenses raised by a defendant: '
[T]he general rule, both under the commоn-law practice and under modern procedural statutes and rules of practice, is that: ‘The plaintiff is not bound in his declaration or complaint to anticipate defenses which the defendant may have to the cause of action asserted against him, and so draw his pleading as to negative their existence or avoid them. The plаintiff may not, and is not bound to, know what justification will be presented by the defendant, and a salutary rule of pleading requires that such matters be left to the answer.
The plaintiff is required to state only such facts as will constitute, prima facie, a cause of action.’
Personal Finance Co. v. Schwartz,
In his second point on appeal, Father premises circuit court error in finding him in contempt of court and incarcerating him for failure to pay child support, and by determining that Father “was estopped from asserting [Child’s] failure to comply with section 452.340.5.” Father argues that he timely raised the defense of Child’s failure to comply with the reporting requirements of section 452.340.5, when he first answered her third-party amended motion for contempt.
As previously set out, the circuit court correctly found that Father, as the party seeking abatement of his child support obligation, bore the burden of proof and was required to plead the defense that Child failed to comply with the notice requirements of section 452.340.5.
See Harris,
Here, Father, of course, was not the moving party, but rather was responding to Child’s third-party amended motion for contempt. While a separate motion for contempt had previously been filed by Mother, she does not appear to have played any immediate part as a party in the proceedings under review relating to Child’s third-party amended motion for contempt.
Child’s pleadings did not specifically refer to or incorporate Mother’s prior pleadings. Save for the inclusion of Mother’s name, the pleading otherwise appears to stand alone as a third-pаrty claim by Child for relief against Father. The record shows that upon the filing of Child’s new, amended pleading on January 18, 2002, Father promptly filed a new, amended answer that raised the defense of non-compliance with section 452.340.5.
Rule 55.33(a) provides for responses to amended pleadings. That provision allows a party to “plead in response to an amended pleading within the time remaining for response to the original pleading or within ten days after service of the amended pleading, whichever period may be the longer, unless the court otherwise orders.” Rule 55.33(a).
The record shows that Child filed her third-party amended motion for contempt on January 18, 2002. In response to that pleading, Father filed his answer on January 25, 2002. At that time he asserted he had no obligation for further support; that Child failed to properly plead her motion for contempt; and that Child failed to comply with the notice requirements set forth in section 452.340.5. Because Father’s response was filed within the ten day deadline imposed by Rule 55.33, he timely asserted the defense of Child’s fаilure to comply with the documentation requirements set forth in section 452.340.5, and he neither waived this defense nor was he estopped from raising it at the time he did.
We also observe that section 452.340.5 sets forth the requirements under which Child could remain eligible to receive continued child support after she reached the age of 18 and while enrolled аs a student at an institution of higher education. Failure to comply with the reporting provisions renders an otherwise eligible student ineligible for child support during the corresponding academic term.
See Kohring,
Here, the record shows that the only documentation provided by Child to Father consisted of a transcript of grades on March 18, 2000, and a copy of her summer 2000 transcript on August 12, 2000. At trial, Child admitted that she never sent Father a schedule or other information regarding her classes or grades. These actions fail to comply with the requirements set forth in section 452.340.5. As a result, we must find that
Given the circumstances of this case Father should not have been held in contempt fоr his purported failure to pay his court-ordered child support. In Father’s answer to Child’s amended third party motion for contempt, Father stated Child failed to provide transcripts and other documentation required under section 452.340.5 prior to each academic term. This evidence remained unrefuted. In fact, Child acknowledged she did not send any dоcumentation other than, the two transcripts. Point Two is well taken.
The judgment of the circuit court finding Father in civil contempt is reversed. The Order of Commitment and Warrant of Commitment relating to Father is vacated.
Notes
. This sub-section provides, in pertinent part that:
If the child is enrolled in an institution of vocational or higher education not later than October first following graduation from a secondaiy school ... and so long as the child enrolls for and completes at least twelve hours of credit each semester, ... the parental support obligation shall continue until the child completes his or her education, or until the child reaches the age of twenty-two, whichever first occurs. To remain eligible for such continued parental support, аt the beginning of each semester the child shall submit to each parent a transcript or similar official document provided by the institution of vocational or higher education which includes the courses the child is enrolled in and has completed for each term, the grades and credits received for each such course, and ... the courses which the child is enrolled in for thе upcoming term and the number of credits for each such course .... § 452.340.5. We observe that section 452.340.5 was enacted in 1997. "Section 452.340.5 was revised effective August 1998 to permit a child to send parents notice in the form of an official document other than a transcript, but required that the notice be sent at the beginning of the next semester.” Morton v. Myers, 21 S.W.3d 99 , 107 (Mo.App. 2000).
Unless otherwise set out, all statutory references are to RSMo 2000.
. This action originally was filed in the Circuit Court of Barry County, Missouri, but, by consent of the parties, all issues were heard in the Circuit Court of Lawrence County, Missouri, on February 5, 2002.
. Rule 55.05 states, in pertinent part, that:
A pleading that sets forth a claim for relief, whether an original claim, counterclaim, cross-claim, or third-party claim shall contain (1) a short and plain statement of the facts showing that the pleader is entitled to relief and (2) a demand for judgment for the relief to which the pleader claims to be entitled.
Rule references are to Missouri Court Rules (2002).
. In support of his position, Appellant cites to the sentinel case of
In re Marriage of Kohring,
. We need not consider Father's claim that Child failed to successfully complete twelve credit hours during the spring semester of 2000 because Child failed to provide the requisite documents at the beginning of that semester.