In the 

Missouri Court of Appeals 

Western District

THE FAMILY SUPPORT DIVISION -

CHILD SUPPORT ENFORCEMENT,

Respondent,

JOEI NORTH,

 Respondent,

v.

ANDREW HOWARD NORTH,

Appellant.

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WD76997

OPINION FILED: October 14, 2014

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 
2

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 88,2Form 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). 

2All rule references are to Missouri Supreme Court Rules (2014).
3

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?
4

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 
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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 
6

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).
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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 

 

4The 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. 
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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 
9

"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

 

 

5The 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 
10

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)). 
11

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 support6and 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 

 

6The 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. 
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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 
13

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