## In the



# Missouri Court of Appeals Western District

KATHY (KELLER) KAY ,

Respondent , v. JOHN B. KELLER II ,

Appellant .            WD 78235 OPINION FILED: JUNE 2, 2015

Appeal from the Circuit Court of Cole County, Missouri The Honorable Patricia S. Joyce , Judge Before Division Three: Mark D. Pfeiffer, PJ., Gary D. Witt, Anthony Rex Gabbert, JJ John B. Keller, II (“Father”) appe als the circuit court‟s grant of summary judgment in favor of Kathy Kay (“Mother”) on Father‟s motion to modify child support . Father raises four points on appeal. First, Father contends that Mother was not entitled to judgment as a matter of law because Father is not required to ask t he court for continued support p rior to S on reaching the age of eighteen . Second, Father argues that the circuit court erred in granting Mother‟s motion for summary judgment because there were disputed mat erial facts as to S on‟s incapacity and ability to support himself. Third, Father argues that the circuit court erred in finding S on emanicipated because there was overwhelming evidence that S on was unmarried, mentally incapacitated, and insolvent. Fourth, Father argues that the circuit court erred in fi nding S on2

emancipated because Mother failed to meet her burden of proving emancipation. We reverse and remand

. Factual Background Father and Mother were divorced on February 5, 1999. There were two children born of the marriage: John Keller, III (“Son”) , born September 29, 1992, and Kathianne Keller (“Daughter”) , born January 2, 1995

. Father and Mother were awarded joint legal custody. The original judgment was modified by stipulation on or about November 1, 2000, setting the c hild support obligatio n payable by Father to Mother at the amount of $1,600 per month. In 2010, Father filed a motion to modify the 2000 judgment. In April, 2011, the parties executed a stipulation transferring the physical custody of Son to Father and e st ablishing child support and other expenses. Under the stipulation, Father was to pay Mother $596 monthly in child support. This figure was reached after offsetting Father‟s $931 obligation for Daughter with Mother‟s $335 obligation for Son. On July 25 , 2013, Father filed a motion to modify , seeking termination of his child support obligation to Daughter based upon her emancipation. Both parties ultimately agreed that Daughter was emancipated due to having married. Additionally, Father sought to extend Mother‟s child support obligation for Son beyond his eighteenth birthday. Father alleged that Son had suffered throughout his life with autism, generalized anxiety disorder, obsessive compulsive disorder , and b ipolar mental illness. Father alleged tha t , due to Son‟s mental condition, he is under the full

- time care of both a psychologist and psychiatrist, takes a number of medications to control his condition, and is without the means or ability to be self

- supporting and self

- sufficient. Father all eged that Son attempted classes at Columbia College after graduation from high school, but was o nly partially successful and did not en roll in or attend3

courses thereafter . Father further alleged that , on or about November 21, 2012, Son was formally deter mined disabled by the Social Security Administration and that determination found
Son to be totally disabled with an inability to support himself through regular employment. Mother filed an answer to Father‟ s motion to modify. In response to Father‟s al legations regarding Son ‟s mental condition, d iagnoses, disabilities, and post

- secon dary education , Mother stated that she was “without sufficient information to either admit or deny the allegations” and she, therefore, denied the allegations. Mother denie d Father‟s allegation that the court should
extend Mother‟s parental support obligation past Son‟s eighteenth birthday because Son is mentally incapac itated, insolvent, unmarried , and unable to support himself

. On June 6, 2014, the parties appeared for a hearing . At the commencement of the hearing, Mother filed a motion for summary judgment. Mother‟s motion contended that Son was emancipated as of October 1, 2011, because he was not enrolled full

- time in a post

- secondary educational or vocational institu tion. Mother further alleged that Father made no allegations when the two entered into the 2011 child support stip ulation that Son was in need of an extension of child support past the age of majority and Father misled Mother and the cour t by not apprising anyone at that t ime that Son had filed an application seeking Supplemental Security Income (SSI) from the Social Security Administration

. The court granted Father thirty days to file s uggestions in opposition to Mother‟s motion. However, t he c ourt heard testimony from Father and Mother at the June 6, 2014, hearing. On November 26, 2014, the trial court entered a judgment granting Mother‟s motion for summary judgment . The court stated , in part : “The evidence is undisputed that the parties‟ s on graduated from high school in May, 2011 and failed to enroll full

- time in a post

- secondary4

educational institution on or before October 1, 2011.

. . . The Court finds that John B. Keller, III, was emancipated by operation of law in October, 2011.” Fat her appeals. Standard of Review We review the grant of a summary judgment de novo

. Brehm v. Bacon Tp. , 426 S.W.3d 1, 3 (Mo. banc 2014). We consider the record in the light most favorable to the party against whom judgment was entered and give the non

- mo ving party the benefit of all reasonable inferences. Id.
at 3

- 4. Summary judgment is appropriate where there is no genuine dispute of material fact and the movant is entitled to judgment as a matter of law. Allen v. Continental Western Ins. Co. , 436
S.W .3d 548, 551

- 552 (Mo. banc 2014). A material fact in the summary judgment context is one from which the right to judgment flows. Id. at 552. Analysis In Father‟s first point on appeal, Father contends that the court erred in granting summary judgment in favor of Mother because Mother was not entitled to jud gment as a matter of law in that Father is not required to ask the court for continued support prior to Son reaching the age of eighteen

. Father argues that , “[a]lthough it is unclear as to the trial court‟s legal reasoning behind its grant of summary judgment, it appears that the trial court‟s summary judgment is based upon the timing of Father‟s Motion to Modify.” Father argues that Mother‟s contention in support of her summary judgment m otion , that the custodial parent must bring the action for continued support pursuant to Section 452.340.4 1 before the child‟s eighteenth birthday , is not supported by law.

1 Statutory references are to the Revised Statutes of Missouri 2000, as updated through the 2011 Cumulative Supplement, unless otherwise noted.5

Mother responds that she never argued that Father had a duty to file a motion for extending parental support prior to Son‟s eighteenth birthday . She claim s that her argument was , and still is , that Father concealed or otherw ise did not inform the court that Son had appl ied for SSI benefits when Father was before the court in 2011 and, therefore, waived any claim to extension of child support

. We find this claim un supported by the record

. In reviewing the record, we find that Mother made various arguments in her Suggestions in Support of Petitioner‟s Motion for Summary Judgment and one of those arguments was that “[t]he problem presented by [Father‟s] motion to modify is that he did not file the motion until July, 2013, well past the child‟s eighteenth birthday.” Regardless, Mother‟s waiver claims have no support in the law. “„Child support payments are for the benefit of the child and the parties are not authorized to settle or compromise future payments without judicial modification of the decree.”‟
Mora v. Mo ra , 861 S.W.2d 226, 228 (Mo. App. 1993) ( quoting Foster v. Foster , 703 S.W.2d 952, 954 (Mo. App. 1986)). “The parties may enter into a binding agreement to settle past due support payments if supported by adequate consideration, but they may not enter int o agreements to reduce support which will accrue in the future.” Id. Father did not explicitly waive future support in the 2011 stipulation and could not have implicitly done so

. 2 Further, even if waiver were possible in this con text for the reasons all eged by mother , Father disagreed with Mother‟s allegations that he a ttempted to deceive the court. A lthough we are not convinced that Father‟s failure to advise the court that Son applied for SSI ha s a ny relevance to whether Son i s entitled to

2 Although Mother hints that Father committed fraud upon the court, she did not expressly allege fraud and never filed a motion pursuant to Rule 74.06(b) or an independent action in equity asking for relief from the 2011 stipulation based upon Father‟s alleged conduct.6

continued s upport from Mother pursuant to Section 452.340.4, if it does , it remains a disputed factual issue inappropriate for reaching a conclusion on in a summary judgment proceeding. Further , t he court sustained Mother‟s motion for summary judgment on the grounds pled by Mother

-- that Son failed to enroll full

- time in a post

- se condary educational institution and , therefore, Son was emancipated “by operation of law

. ” Father‟s motion to modify alleged that
Son was is in need of continued parental support due to in solvency and mental incapacity . The court did not address these allegations. Thus , t h e court‟s judgment of emancipation presumes that , when a child attend s a post

- secondary institution and receives continued support past the age of eighteen pursuant to S ection 452.340.5 , courts are precluded from thereafter considering the applicability of Sect ion 452.340.4

. This is a faulty presumption. When a child is attending a post

- secondary institution pursuant to Section 452.340.5, the parental support obligation ends when the child completes the program or reache s age twenty

one . Section 452.340.3 (6) , however, provides that the support obligation ends at age twenty

- one for a physically or mentally incapacitated child unless provisions of the child support order specifically ex tend parental support past the child‟s twenty

- first birthday pursuant to Section
452. 340.4. Section 452.340.4 is the genera l provision that authorizes the court to extend parental support for a child that is “ physically or mentally incapacitated from supporting himself and insolvent and unmarried .” There is no suggestion in the se statutes that application of o ne of the provis ion s precludes consideration of the othe r. 3

3 O ur courts have c onsidered both simultaneously. In Sullins v. Knierim , 308 S.W.3d 241, 249 (Mo. App. 2010) , a fter determining that Father‟s support obligation was extended while child was still enrolled in an institute of vocational or higher education due to child‟s learning disability, the court considered how long the extension was to last by examining if Section 452.340.3(6) applied regarding a mental or physical incapacity.7

Our Southern District in Bright v. Bright , 989 S.W.2d 1 96, 200 (Mo. App. 1999) state d : “H aving carefully examined § 452.340 in toto, this court holds the General Assembly intended that § 452.340.4 and § 452.340 .5 each exist separately and independently as exceptions to the general rule in § 452.340.3(5) that a divorced parent‟s obligation to pay child support terminates when the child reaches age eighteen.” Bright clarified that t he test for extended support pu rsuant to Section 452.340.4 is whether the child‟s physical or mental incapacity was present before the eighteenth birthday

. Id. If the incapacity appears after the child turns eighteen , Section 452.340.4 is inapplicable. Id. Our Supreme Court in Lueckenotte v. Lueckenotte considered whether a father was obligated to continue support for a son who had been diagnosed at age thirteen with a cognitive impairment that left him comple tely and permanently disabled. 34 S.W.3d 387, 396 (Mo. banc 2001). F ather paid child support t o Mother until the son turned twenty

- one , at which time he ceased support. Id. at 390. Mother did not request an extension of Father‟s support obligation until filing a motion to modify child support six years later. Id. at 398

. At the time mother filed her motion, the son lived in a residential facility and received SSI and Medicaid payments. Id. Our Supreme Court determined that Mother had proven son to be incapacitated under Section 452.340.4 and reversed the trial court‟s judgment denying Mother‟s motion to modify

. Id. The Court ordered the trial court to enter an order extending Father‟s obligation to pay child support.
Id. at 398. The on ly adverse a ffect Mother‟s delayed filing had was to preclude Mother from collecting support for the period in

- between the child reaching majority and when Mother filed her motion

. Id. The Court stated that “[b]ecause there had been no judicial determination that [son] was physically or mentally incapacitated, tri ggering a support obligation under section 452.340.4, Father‟s obligation under the order for child support in the decree of dissolution did8

not continue past [son‟s] age of majority.” Id. The Court indicated that Mother had the ability to file a motion to modify at the time son reached majority, but did not. Id. Consequently, the Court had no authority to modify child support retroactive to a date before the filing of the motion and service of summons. Id. 4 “„Emancipation is never presumed, and the burden is upon the party asserting it to show facts proving the emancipation.” Dowell v. Dowell , 73 S.W.3d 709, 712 (Mo. App. 2002) quoting Randolph v. Randolph , 8 S.W.3d 160, 164 (Mo. App. 1999). Thus, even if Mother submitted a prima facie case fo r emancipation on the grounds that Son was eighteen years old and not enrolled as a full

- time student in a post

- secondary educatio nal or vocational institution,
M other made no showing that she was entitled to judgment as a matter of law on Father‟s claim

t hat Son was in need of continued support due to So n‟s incapacity

. 5 Mother contends, nevertheless , that while she styled her motion as a Motion for Summary Judgment, she verbally advised the court when she filed the motion that it could be treated as a motion for directed verdict. She contends that, because the co urt heard evidence and Father had a full and fair opportunity to present all of his evidence, the motion should be

4 In Lueckenotte , the Court discussed Missouri‟s legislative history of parental support for incapacitated children and noted that, prior to 1988, the child had to bring a separate suit for support against the parent or intervene in the dissolution decree to give the trial court jurisdiction. 34 S.W.3d at 397. “In 1988, the Missouri legislature amended section 452.340 to provide a basis for extending a parent‟s support obligation past the age of presumed emancipation if the child was mentally and physically incapacitated to support himself, insolvent, and unmarried.” Id.

5 We note that, in Mother‟s “Affidavit for Termination of Child Support” that she filed in response to Father‟s motion to modify, Mother did not check the box indicating that “[t]he child is not physically or mentally incapacitated from supporting himself or herself, and the child‟s circumstances do not manifestly dictate that child support should continue.” Mother only alleged emancipation on the grounds that Son had attained age twenty

- one and failed to meet the requirements necessary for continued support for a child p ursuing po st

- secondary education.9

considered as a trial brief and we should conclude that the court , simply , agreed with Mother

. 6
We cannot reach this conclusion. Mother‟s request ignores that the court treated Mother‟s motion not as a motion for directed verdict or as a trial brief, but in the man ner it was styled

-- as a motion for summary judgment. 7
Further , as th e hearing must be considered a summary judgment proceeding in light of the court‟s judgment , if the court did make credibility determinations and resolve factual issues based on that hearing , it erred in doing so. Nokes v. HMS Host USA, LLC , 353 S.W. 3d 6, 1 1 (Mo. App. 2011). A trial court is not entitled to judge the credibility of witnesses for purposes of ruling on a motion for summary judgment. Care and Treatment of Schottel v. State , 159 S.W.3d 836, 844 (Mo. banc 2005). W hen considering the appropriateness of summary judgment , we view the record in the light most favorable to the party against whom judgment was entered

. Brehm , 426 S.W.3d at 3

- 4. T ypically, the record for review consists solely of th e written record and the pl eadings, discovery, exhibits, and affidavits that are contained therein that demonstrate the lack of a genuine issue. Public School Retirement System of Missouri v. Taveau , 316 S.W.3d 338, 345 (Mo. Ap p. 2010). Here, however, the court heard evidence and cited that evidence in its Fi ndings o f Fact . Mother‟s asks us to now view that evidence , not under a summary judgment standard, but in the light most favorable to her . We cannot. First, w e are not c onfident that the evidence presented at the June 6, 2014, hearing is even relevant to our consideration of whether Mother was entitled to judgment as a matter of law

6 Mother makes this argument in response to Father‟s second point on appeal which alleges that material facts remain in dispute.

7 We note that the record reflects that on August 28, 2014, the court issued an order stat ing, “[Mother]‟s motion for summary judgment is sustained. [Mother] is to prepare formal order and judgment.” While it is unknown if Mother actually pre pared the judgment, Mother made no request for the judgment to be amended after it was issued.10

pursuant to Rule 74.04 (c). We addressed this issue with this same circuit court in Public School Retirement System of Missouri v. Taveau , 316 S.W.3d 338 (Mo. App. 2010). Therein , we discussed that Rule 74.04(c)(1) contemplates tha t a summary judgment motion rely only on facts based in the record. Id. at 344. We discussed that our Eastern Di strict has permitted trial courts to hear oral testimony on a motion for summary judgment based on Rule 55.28, but expressed our reluctance to agree that Rule 55.28 is applicable to such motions because Rule 55.28 conditions the trial court‟s use of oral t estimony on deciding motions that are “based on facts not appearing of record .” Id. ; see also Landoll ex rel. Landoll v. Dovell , 779 S.W.2d 621, 628 (Mo. App. 1989 ). “Thus, for a trial court to take oral testimony on a motion, the motion must be a
motion that relies on facts outside of the record .” Id. Second , eve n if Rule 55.28 allows for oral testimony in summary judgment motions , because a trial court may not judge the credibility of witnesses for purposes of ruling on a motion fo r summary judgment , the hearing testimony can , at most , only be considered for purposes of determi ning whether there is a triable issue of fact. Here, i f w e consider Mother and Father ‟s hearing testimony, it amplifies what is already ev ident on the face of the record ; genuine dispute s of material fact remain

. 8
T he parties agreed in their 2011 stipulation that Son was not yet emancipated even though he was already eighteen at the time of the stipulation . Son was still in high school at that time and Father was planning to enroll him in college. The issue of disability was not mentioned in the 2011 stipulation, but the June 6, 2014, hearing testimony reflects that both par ties were

8 W hile we need not rely on this hearing testimony to conclude that, from the face of the record, disputes of material fact remain, as Mother relies on this hearing evidence to support her claims, we address it herein to show that it amplifies the existence o f factual issues in dispute and does not unequivocally support her claims

.11

well aware of Son‟s limitations at the time of that stipulation. Mother testified that , until September of 2010, Son had l ived with her his entire life. S on moved in with Father ten da ys prior to turning eighteen

. Mother does not disagree that Son is disabled. She testified that Son could not have lived on his own at the time he left her home

. She testified that Son has autism and is in need of assistance wi th independent living skills. She could not say that Son‟s obsessive compulsive disor der, bipolar disorder, and generalized anxiety disorder would no t prevent Son from working full

- time. She testified that Son received treatment and services through Johnson County Board of Services when he lived with her

. She testified that , although she has made attempts, she has not spoken to or seen Son since he le ft her home and has no firsthand knowledge of Son‟s present capabilities

. Mother doe s not dispute that Son is eligible for SSI, but testified that she would have objected to him applying had she been notified. Her reasoning wa s “[b] ecause in essence that says that you‟re just giving up. And I don‟t believe that that‟s the case. I think he‟s got a lot more capability. I was planning on him going to college. That‟s what I expected; that it would take longer, but that he would go to college. ” Father testified that he never intended to dec eive Mother or the court by not advising the court in 2011 that Son had applied for SSI . He testified that the SSI was pursued for the best interest of Son and Father had no idea at the time Son applied if Son would actually receive SSI or how long it would take for a n eligibility determination to be made. Thus, the hearing testimony reflects that , even Mother recognized at the time of the 2011 stipulation that , even if Son attended college, his mental condition would continue to present a limitation

. T his discredits Mother‟s contention that she was duped by Father into believing that Son‟s pursuit of college meant that Son would not require additional support if or when that venture ended

. Further, Mother‟ s admitted knowledge of the limitations Son exhibited whe n he12

lived with her, as well as her concession that Son ‟s condition likel y qualifies him for SSI, deflates Mother‟s claim that Father somehow egregio usly deceived her and the court when he notified no one in 2011 that Son had applied for SSI

. Moreover, the hearing testimony amplifies the existence of disputed facts and the imp ropriety of the court granting summary judgment in this matter

. We conclude, therefore, that the circuit court erred in granting Mother‟s motion for summary judgment on the grounds that Son was emancipated “by operation of law” as of October 1, 2011 , due to Son‟s graduation from high school and failure to enroll full

- time in a post

- secondary educational institution on or before October 1, 2011. Father‟s motion to modify alleged that Son is in need of continued support due to being insolvent, unmarrie d, and having a mental incapacity that renders him unable to support himself. Mother denied that allegation and those factual issues remain to be resolved. W e reverse the circuit court‟s judgment and remand
this matter for a determination regarding all m atters still in dispute. 9

Anthony Rex Gabbert, Judge

All concur.

9 We grant Father‟s first point alleging that he was not required to ask the court for continued support prior to son reaching the age of eighteen, and grant Father‟s second point alleging the existence of disputed material facts. As Father‟s first and second points on appeal are dispositive, we need not address his third and fourth points.