In the
Missouri Court of Appeals
Western District
THE FAMILY SUPPORT DIVISION - )
CHILD SUPPORT ENFORCEMENT, )
) WD76997
Respondent, )
) OPINION FILED: October 14, 2014
JOEI NORTH, )
)
Respondent, )
)
v. )
)
ANDREW HOWARD NORTH, )
)
Appellant. )
Appeal from the Circuit Court of Clay County, Missouri
The Honorable K. Elizabeth Davis, Judge
Before Division Three: Gary D. Witt, Presiding Judge, Joseph M. Ellis, Judge and
Thomas H. Newton, Judge
Andrew Howard North ("Father") challenges a judgment modifying his child
support obligations on three grounds. In his first two points, Father argues that the trial
court erred in classifying him as the "movant" for purposes of line 2c of the Form 14. In
his third point, Father argues that the judgment grants relief that was not requested by the
pleading of Respondent Joei North ("Mother"). Neither Mother nor Respondent Missouri
Division of Family Services - Child Support Enforcement ("DFS") filed briefs in this
court or appeared at argument. The judgment is reversed in part and affirmed in part.
FACTUAL AND PROCEDURAL HISTORY1
On August 15, 2005, the judgment dissolving the marriage between Mother and
Father was entered in the Circuit Court of Clay County. In that judgment, Mother and
Father were awarded joint legal custody of their two minor children, with Mother
receiving sole physical custody. Father was ordered to pay Mother $966 per month in
child support.
On or about June 5, 2008, the circuit court modified that judgment and reduced
Father's support obligation to $569 per month. On February 2, 2012, the circuit court
again modified the judgment, ordering Father to make certain monthly payments toward
his child support arrearage to the Bankruptcy Trustee in addition to his monthly ordered
payments.
On October 18, 2012, DFS filed a motion to modify on behalf of Father,
requesting a decrease in Father's child support payments. In that motion, DFS alleged
that there were "continuing and substantial changes and conditions" with regard to child
support in the following two respects: (1) that upon application of Rule 88,2 Form 14,
Father's child support obligation would decrease by twenty percent or more, and (2) the
parties have had substantial changes in their earning capacities.
1
In a court-tried case, including one pertaining to modification of child support, "the evidence, with all of
the inferences flowing therefrom, is viewed in the light most favorable to the judgment." Cross v. Cross, 318
S.W.3d 187, 190 (Mo. App. W.D. 2010) (citation omitted).
2
All rule references are to Missouri Supreme Court Rules (2014).
2
Mother answered the petition through counsel. She also filed a "counter-motion
for contempt" in which she alleged that Father disobeyed earlier judgments pertaining to,
inter alia, support, attorney fees, and insurance. In that motion, Mother asked "for an
Order of this Court directing that Respondent appear and show cause why he should not
be held in contempt, that he be held in contempt for his failure to abide by the terms and
condition of the Judgment and for such other and further relief as this court deems just
and proper." Through private counsel, Father filed an answer to the "counter-motion for
contempt."
On March 1, 2013 a hearing was held and the docket sheet entry for that day
indicates that Father was "granted leave to file Amended pleadings without objection"
and that DFS "was granted leave to withdraw without objection" as Father was now
represented by private counsel. Father's child support was reduced temporarily to $300 a
month until further order of the court.
A trial was held. Prior to evidence, the following exchange was held on the
record:
THE COURT: . . . This is North and North. Let's just make sure
everyone is on the same page with regard to the status of the pleadings. It
was actually initiated by a motion for modification filed by the State of
Missouri through the Child Support Division, but once both parties were
represented by counsel, the State was allowed to withdraw. We're just
going to proceed on the parties' private pleadings starting with in December
of 2012 a counter-motion, which at that time was in counter to the State's
motion to modify, a motion for contempt filed by [Mother].
FATHER'S COUNSEL: Your Honor, that's the only two pleadings --
THE COURT: That's it?
3
FATHER'S COUNSEL: That's the only two pleadings that it involves.
THE COURT: So your client is not requesting affirmative relief, but
responding to the motion for contempt, and then both parties wish to
present evidence which was initiated by the State's motion to modify
support, is that right?
MOTHER'S COUNSEL: Judge, I would assume that he --
FATHER'S COUNSEL: I would take the role of the movant because he
requested the State to modify the support.
THE COURT: If that's what you want to do, that's perfectly fine. You
want to step into the shoes basically of the State to pursue its motion for
modification of support, is that right?
MOTHER'S COUNSEL: If it was our role, I'd ask to dismiss it.
THE COURT: And then are you presenting evidence then with
respect to the contempt?
MOTHER'S COUNSEL: The contempt and our answer to the motion to
modify.
...
THE COURT: Then, [Father's counsel], we'll go ahead and proceed
with the evidence.
(Emphases added.)
Evidence was presented regarding Mother's and Father's changed earnings. Father
testified, inter alia, that he had recently relocated to Utah and started a new job selling
Ford vehicles. The issues raised in the contempt motions were resolved by the parties
and are not a part of this proceeding. Both parties submitted proposed Form 14s.
Mother submitted a Form 14 that "determined that that there's a presumed child
support amount of $743 per month" and that she was "asking for it to be retroactive to the
4
date of this action being initiated." Father did not object to that request, but Mother never
moved to amend the pleadings.
The Commissioner issued its findings and recommendations, upon which
judgment was entered by the circuit court. The court prepared its own Form 14 and
determined Father's presumed child support obligation to be $707 a month, which it did
not find to be unjust or inappropriate and adopted. Additionally, in its judgment, the trial
court stated:
[Father] is not entitled to claim a deduction on line 2c for his
additional younger children as he is the original movant for reduction of
child support, by requesting the State of Missouri to file a Motion to
Modify on his behalf (which it did), seeking reduction of his child support
obligation. Despite the fact that the State of Missouri was allowed to
withdraw in its capacity of representing [Father's] interests in conjunction
with his request for reduction of child support, [Father's] counsel clearly
stated on the record, prior to the evidence at trial, that his client wished to
pursue [the] relief he had requested (i.e. reduction of child support) in the
State's Motion to Modify. In other words, [Father] and his counsel 'stepped
into the shoes' of the State to pursue the child support reduction. Although
the State was granted leave to withdraw, its pleading (i.e. the Motion to
Modify) was not dismissed, and was still pending before the Court, and
[Father] continued to seek relief under the allegations and prayers contained
in that motion.
Father appeals. Further facts are set forth below as necessary.
FATHER IS JUDICIALLY ESTOPPED FROM RAISING HIS FIRST TWO
POINTS
Father's first and second points on appeal concern who was the "movant" in the
motion to modify. In his first point, Father argues that the trial court erred in its Form 14
calculation because "it was an abuse of discretion to deny [Father] a line [2c] income
adjustment in that the Court's finding that [Father] was the 'original movant for reduction
5
of child support' and therefore was not entitled to an income adjustment for his other
natural children living with him was not supported by substantial evidence or was against
the weight of the evidence."3 In his second point, Father argues that the trial court erred
in its Form 14 calculations of presumed child support "because contrary to the law of
Supreme Court Rule 88.01 and [accompanying directions], [Father] was denied a line
[2c] income adjustment in that although [Father] was not a 'moving parent in an action to
increase or decrease' child support, the Circuit Court nevertheless judged [Father] was not
entitled to an income adjustment for his other natural children living with him."
Discussion
The doctrine of judicial estoppel prevents litigants from "taking a position in one
judicial proceeding, thereby obtaining benefits from that position in that instance, and
later, in a second proceeding, taking a contrary position in order to obtain benefits from
such a contrary position at that time." Mo. Land Dev. I, LLC v. Raleigh Dev., LLC, 407
S.W.3d 676, 690 (Mo. App. E.D. 2013). Judicial estoppel can prevent a party from
taking contrary positions in front of the trial court and then before an appellate court.
Owens v. ContiGroup Cos., 344 S.W.3d 717, 727 (Mo. App. W.D. 2011) (citing State v.
Dillon, 41 S.W.3d 479, 486 Mo. App. E.D. 2000) ("A party may not conduct himself
throughout the trial so as to leave the adversary with the understanding that a fact is
uncontroverted and then take the position that it has not been proved")). "The doctrine of
3
Father's first point relied on is multifarious. At very least, he challenges the trial court's judgment on two
legal grounds, contesting both whether there was substantial evidence to support it and whether it was against the
weight of the evidence. These challenges "must appear in separate points relied on in the appellant's brief to be
preserved for appellate review." Ivie v. Smith, No. 93872, 2014 WL 3107448, at *14 n.11 (Mo. banc July 8, 2014)
(citing Rule 84.04). We gratuitously address the merits of Father's claim while cautioning appellate counsel to
follow Rule 84.04(d).
6
judicial estoppel has been established in Missouri, and is 'designed to preserve the dignity
of the courts and insure order in judicial proceedings.'" Jeffries v. Jeffries, 840 S.W.2d
291, 294 (Mo. App. E.D. 1992) (quoting Edwards v. Durham, 346 S.W.2d 90, 101 (Mo.
1961) (additional citations omitted).
While judicial estoppel cannot be reduced to a precise formula, Missouri courts
have followed U. S. Supreme Court precedent indicating that whether judicial estoppel
applies requires the consideration of three factors:
First, a party's later position must be clearly inconsistent with its earlier
position. Second, courts regularly inquire whether the party has succeeded
in persuading a court to accept that party's earlier position. . . . A third
consideration is whether the party seeking to assert an inconsistent position
would derive an unfair advantage or impose an unfair detriment on the
opposing party if not estopped.
Vinson v. Vinson, 243 S.W.3d 418, 422 (Mo. App. E.D. 2007) (quoting Zedner v. U.S.,
547 U.S. 489 (2006) (additional citation omitted). However, "a court should apply
judicial estoppel if the party did not act 'inadvertently.'" Strable v. Union Pac. R. Co.,
396 S.W.3d 417, 422 (Mo. App. E.D. 2013) (citation omitted).
In this case, Father concedes that the driving reason for his first two points on
appeal is that if he was rightly considered the "moving parent," he would have been
rightly denied an adjustment on Line 2c. See Cross v. Cross, 318 S.W.3d 187, 196 (Mo.
App. W.D. 2010) (analyzing the Line 2c caveat). 4 Father's representation to the trial
court that he "would take the role of movant" was unambiguous. And Father states in his
4
The Directions, Comments For Use and Examples for Completion of Form No. 14 regarding the Line 2c
adjustment were amended after judgment was entered in this case, and Father concedes that the amendment does not
affect the action at bar. Father also acknowledged at oral argument that the amendments would not assist him in this
matter if they were applicable.
7
brief on appeal that he "intentionally and purposefully avoided making his own motion so
as to be entitled to the line [2c] adjustment which he included in his own Form 14."
Father's actions of not filing his own motion to modify but in stepping into the shoes of
the State were both intentional actions. We accordingly discern no inadvertent moves on
Father's part.
In applying the three-factor test, then, we find first that Father's position on appeal
that he was not the movant is inconsistent with his earlier statement that he "would take
the role of the movant because [Father] requested the State to modify the support."
Father's position on appeal additionally fails because the trial proceeded only after the
court affirmed Father's position that Father wanted "to step into the shoes basically of the
State to pursue its motion for modification of support." Finally, were we to allow Father
to proceed with his new theory, Father would derive an unfair advantage over and impose
an unfair disadvantage on Mother, who accepted Father's position at trial that Father was
proceeding as the movant. Mother, in fact, stated on the record that if she were asked to
take the role of movant, she would "ask to dismiss [the motion to modify]."
"The doctrine of judicial estoppel exists to prevent parties from playing fast and
loose with the court." In re Contest of Primary Election Candidacy of Fletcher, 337
S.W.3d 137, 143 (Mo. App. W.D. 2011) (citation omitted). While we understand that not
all inconsistent positions in litigation constitute "clearly inconsistent" positions justifying
the application of judicial estoppel, we cannot condone Father's clearly inconsistent
positions in this case. After a review of the record, we hold that trial court did not err in
making findings and conclusions consistent with Father's statements on the record that he
8
"would take the role of the movant because [he] requested the State to modify the
support" and also because he allowed the trial to proceed under the notion that he wanted
"to step into the shoes basically of the State to pursue its motion for modification of
support." We further see no policy reasons why a movant should be allowed to claim the
adjustment when the State brings an action to modify support on his/her behalf, but not
allow the adjustment when the action is brought personally. We see no error in the trial
court's findings as they are consistent with Father's representations on the record and his
actions at trial.
Points I and II are denied.
THE JUDGMENT EXCEEDED THE SCOPE OF THE PLEADINGS
In his third point, Father contests the trial court's determination that increased the
amount of his child support obligation. He argues that "[t]he trial court erred in its
Judgment increasing [Father's] monthly child support obligation because it was contrary
to law in that the trial court's judgment increased child support contrary to the State's
specifically prayed for relief that [Father's] child support paid to [Mother] be decreased."
Discussion
"The relief awarded in a judgment is limited to that sought by the pleadings."
Norman v. Wright, 100 S.W.3d 783, 786 (Mo. banc 2003) (citations omitted). "To the
extent that a judgment goes beyond the pleadings, it is void." Patz v. Patz, 412 S.W.3d
352, 357 (Mo. App. E.D. 2013) (citation omitted).5
5
The Supreme Court noted that although prior cases have used the term "void" in relation to the effect of a
judgment exceeding the scope of the pleadings, the actual effect is that such trial court judgment is not "void as a
jurisdictional matter but instead simply voidable because the judgment was based on issues that were not properly
9
Rule 55.33(b) provides that issues not raised by the pleadings but tried by express
or implied consent "shall be treated in all respects as if they had been raised in the
pleadings" and that "failure to so amend does not affect the result of the trial of these
issues." In this case, Father did not expressly consent to try the issue of whether Mother's
child support should be increased. The issue is thus whether Father impliedly consented
to trial of that matter.
"With respect to trial by implied consent, Rule 55.33(b) gives direction to the trial
court both in situations where no objection is made to evidence of unpleaded facts or
claims and in situations where objection is made." Heritage Roofing, LLC v. Fischer,
164 S.W.3d 128, 132 (Mo. App. E.D. 2005) (citing Rombach v. Rombach, 867 S.W.2d
500, 503 (Mo. banc 1993)). See also Thurman v. St. Andrews Mgmt. Servs., Inc., 268
S.W.3d 434, 445 (Mo. App. E.D. 2008). "If there is an objection, then the trial court has
substantial discretion in determining whether to allow the pleadings to be amended."
Heritage Roofing, 164 S.W.3d at 132-33 (citation omitted). But where, as here, there is
no request to amend the pleadings, the trial court's discretion is limited to determining
whether the issue was tried by implied consent of the parties. Id. "If so, the pleadings
'shall' be treated as if the issues had been properly raised." Id. (citation omitted).
"[I]t is well settled that evidence will give rise to an amendment of pleadings by
implied consent only when it bears solely on the proposed new issue and is not relevant
to some other issue already in the case." Lester v. Sayles, 850 S.W.2d 858, 869 (Mo.
pleaded or otherwise interjected into the case." Smith v. City of St. Louis, 395 S.W.3d 20, 24 (Mo. banc 2013)
(citing J.C.W. ex rel. Webb v. Wyciskalla, 275 S.W.3d 249 (Mo. banc 2009)).
10
banc 1993). Stated another way, "if evidence that raises issues beyond the scope of the
pleadings is relevant to another issue already before the trial court, then failure to object
to its admission does not constitute implied consent to amend the pleadings to conform to
the new issue." Heritage Roofing, 164 S.W.3d at 132. "It is the burden of the party
contending that an issue was tried by implied consent to demonstrate implied consent."
Smith v. City of St. Louis, 395 S.W.3d 20, 25 (Mo. banc 2013).
Mother did not ask for an increase in child support in her motion for contempt or
in any other pleading and she never moved to amend the pleadings to include such a
request. The only matters the trial court had pending before it were 1) whether Father
was entitled to a decrease in child support6 and 2) whether Father should be held in
contempt for failure to make payments, and that second issue "dissipated" through the
course of the proceedings according to Mother.
"In calculating child support, the trial court is required to determine and find for
the record the presumed child support amount (PCSA) pursuant to Rule 88.01, using
Civil Procedure Form No. 14." Hoffman v. Hoffman, 423 S.W.3d 869, 876 (Mo. App.
E.D. 2014). "A Form 14 calculation of the PCSA begins with a determination of each
parent's gross monthly income." Id.
The pleading that initiated the action thus required evidence of both Father's and
Mother's earnings. Evidence of earnings is also the evidence Mother needed in order to
succeed in an action to increase Father's child support. Put another way, the evidence
6
The pleading did not request that appropriate child support be determined pursuant to Rule 88.01, but
specifically requested a "reduction" in Father's child support obligation.
11
Mother admitted in support of her argument raised during trial that she was entitled to an
increase in support did not relate solely to whether she was entitled to an increase, the
matter she failed to plead. Rather, that evidence was also relevant to whether Father was
entitled to a decrease in his support obligation, which was the matter properly before the
trial court. Although Mother requested an increase in child support during the trial, she
never requested to amend the pleadings; all of the evidence she would need in order to
succeed on her theory also bore on a matter squarely contained within the initial
pleadings. In short, Mother, who did not file a brief with this court, failed to meet her
burden of establishing that Father impliedly consented to try the issue of whether Mother
was entitled to an increase in child support.
In sum, no party offered a substantive pleading that properly raised the issue of
whether Mother was entitled to an increase in child support. No party requested to
amend the pleadings. Because all of the evidence needed to support Mother's contention
that she was entitled to an increase in child support also was relevant to Father's
contention that he was entitled to a decrease in child support, Mother's contention was not
tried by implied consent of the parties. Therefore, the judgment went beyond the scope
of the pleadings and is voidable to the extent that it awarded Mother an increase in child
support. See Smith, 395 S.W.3d at 26. Additionally, apart from the scope of the
pleadings, Father makes no argument that the trial court's judgment denying him a
decrease in support obligation was not supported by substantial evidence or was against
the weight of the evidence. Father failed to prove that he was entitled to the relief he
requested. For these reasons, the portion of the judgment adjusting Father's child support
12
obligation is reversed, and the previous judgment establishing the amount of child
support remains in effect.
CONCLUSION
The judgment is reversed to the extent that it increased Father's child support
obligation because of Mother's failure to plead the matter. In all other respects, the
judgment is affirmed.
__________________________________
Gary D. Witt, Judge
All concur
13