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App.

Supreme Court of Missouri


en banc
SC97335
WD81013
September Session, 2018
Michael McKinzy,
Appellant,
vs. (TRANSFER)
Carletha Gaston (McKinzy),
Respondent.
Now at this day, on consideration of the Appel-
lant’s application to transfer the above-entitled cause
from the Missouri Court of Appeals, Western District,
it is ordered that the said application be, and the same
is hereby denied.
STATE OF MISSOURI-Sct.
I, Betsy AuBuchon, Clerk of the Supreme Court of
the State of Missouri, certify that the foregoing is a
full, true and complete transcript of the judgment of
said Supreme Court, entered of record at the Septem-
ber Session, 2018, and on the 25th day of September,
2018, in the above-entitled cause.
App. 2

[SEAL] IN TESTIMONY WHEREOF, I have


hereunto set my hand and the seal of said
Court, at my office in the City of Jefferson,
this 25th day of September, 2018.
/s/ Betsy AuBuchon , Clerk

/s/ [Illegible] , Deputy Clerk


App. 3

[SEAL]
In the Missouri Court of Appeals
Western District

MICHAEL McKINZY, )
Appellant, )
)
v. ) WD81013
CARLETHA GASTON )
(McKINZY), )
)
Respondent. ) FILED: June 26, 2018

APPEAL FROM THE CIRCUIT COURT


OF JACKSON COUNTY
THE HONORABLE PATRICK WILLIAM CAMPBELL, JUDGE

BEFORE DIVISION ONE: LISA WHITE HARDWICK,


PRESIDING JUDGE, THOMAS H. NEWTON AND
EDWARD R. ARDINI, JR., JUDGES
ORDER
PER CURIAM
Michael McKinzy (“Father”) appeals from the cir-
cuit court’s judgment ordering him to pay a combined
arrearage of child support and maintenance to his for-
mer wife, Carletha McKinzy (“Mother”). Father con-
tends the court erred in denying his request to set
aside the original administrative order for his child
support obligation as void due to lack of proper service
App. 4

of process in the administrative proceeding. For rea-


sons explained herein, we affirm.
AFFIRMED. Rule 84.16(b)

[SEAL]
In the Missouri Court of Appeals
Western District

MICHAEL McKINZY, )
Appellant, )
)
v. ) WD81013
CARLETHA GASTON )
(McKINZY), )
)
Respondent. ) FILED: June 26, 2018

MEMORANDUM SUPPLEMENTING ORDER


AFFIRMING JUDGMENT PURSUANT TO
RULE 84.16(b) or 30.25(b)
This memorandum is for the information of the
parties and sets forth the reasons for the order affirm-
ing the judgment.

THIS STATEMENT DOES NOT CONSTITUTE A


FORMAL OPINION OF THIS COURT. IT IS NOT
UNIFORMLY AVAILABLE. IT SHALL NOT BE
REPORTED, CITED OR OTHERWISE USED IN
UNRELATED CASES BEFORE THIS COURT
OR ANY OTHER COURT. IN THE EVENT OF
THE FILING OF A MOTION TO REHEAR OR
App. 5

TRANSFER TO THE SUPREME COURT, A


COPY OF THIS MEMORANDUM SHALL BE AT-
TACHED TO ANY SUCH MOTION.

Michael McKinzy (“Father”) appeals from the cir-


cuit court’s judgment ordering, among other things,
that he pay $76,232.52, which represents his combined
child support and maintenance arrearage plus inter-
est, to his former wife, Carletha McKinzy (“Mother”).
Father contends the court erred in denying his request
to set aside the original administrative order for his
child support obligation as void due to lack of proper
service of process in the administrative proceeding. For
reasons explained herein, we affirm.

FACTUAL AND PROCEDURAL HISTORY1


Mother and Father were married on December 4,
1988, and had four children. They separated in Janu-
ary 2002. In July 2002, Mother and Father consented
to the entry of an administrative child support order
directing Father to pay $1165 per month in child sup-
port. In November 2002, the court entered its judg-
ment dissolving the parties’ marriage and ordering
Father to pay child support and maintenance. In its
judgment, the court found that the monthly child sup-
port amount in the administrative order was the
correct child support amount and ordered that the
1
The procedural history of this case includes extensive liti-
gation between the parties in both state and federal court on var-
ious issues. We include only those proceedings that are necessary
to the disposition of Father’s point on appeal.
App. 6

administrative order remain in full force and effect un-


til further order of the court.
In July 2007, an administrative hearing was held
to determine the emancipation of the parties’ three old-
est children. Following the hearing, the hearing officer
entered an order finding that the three oldest children
were emancipated and modifying Father’s monthly
child support obligation for the remaining unemanci-
pated child to $599, retroactive to February 15, 2007.
The circuit court affirmed the administrative decision
and, in February 2008, entered a formal judgment of
modification. On February 11, 2011, Mother and Fa-
ther’s youngest child was legally emancipated.
On September 2, 2015, Father filed a motion to
modify and for declaratory judgment. In his motion, he
asked the court to modify the maintenance award. He
also asked the court to declare that each of his children
were actually emancipated as of their 18th birthdays
instead of the dates found in the prior orders; that he
does not owe any past-due child support or mainte-
nance; and that any overpayment of child support
should be credited against his maintenance obligation.
Mother filed an answer and counter-motion to
modify in which she requested, among other things,
that the court assess and determine the amount of Fa-
ther’s child support and maintenance arrearage, plus
interest, and enter a judgment against him for that
amount. Mother also requested that the court estab-
lish a payment schedule to facilitate Father’s payment
of the arrearage.
App. 7

On the morning of trial in January 2017, Father


filed a motion for summary judgment in which he con-
tended that the July 2002 administrative child support
order was void. Specifically, he asserted that the Divi-
sion of Child Support Enforcement failed to send him
a copy of the notice of financial responsibility and the
administrative child support order by certified mail at
his last known mailing address. After hearing argu-
ments and testimony from Father, the court denied Fa-
ther’s summary judgment motion and proceeded with
the trial.
Following the trial, the court entered its judgment
in August 2017 granting Father’s request to terminate
his maintenance obligation retroactive to February 1,
2017, and dismissing or denying all of Father’s re-
quests for declaratory relief. The court found that Fa-
ther owed a combined child support and maintenance
arrearage, plus interest, in the amount of $76,232.56,
and the court ordered him to repay that amount at a
rate of $600 per month until paid in full. Father ap-
peals.

ANALYSIS
In his sole point on appeal, Father contends the
court erred in denying his summary judgment motion,
in which he requested that the court set aside the July
2002 administrative order as void. Father argues that
he was not properly served with process in the admin-
istrative proceeding.
App. 8

In denying Father’s summary judgment motion,


the court first found that the motion was deficient be-
cause Father requested summary judgment on an is-
sue that was not pending before the court, as Father
had not asserted this issue in his pending motion to
modify and for declaratory judgment. Rule 74.04(a) al-
lows a party to seek summary judgment only on “pend-
ing issues.” The court also found that Father’s motion
failed to meet virtually all of Rule 74.04(c)(1)’s require-
ments for summary judgment motions.2 We agree with
the circuit court that Father’s noncompliance with
Rule 74.04 alone warranted denial of his summary
judgment motion. See Hanna v. Darr, 154 S.W.3d 2, 5
(Mo. App. 2004).
Additionally, the circuit court found that the rec-
ord conclusively refuted Father’s claim that he was not
properly served. On June 28, 2002, Father signed an

2
In particular, the court found that Father failed to:
[S]ummarily state the legal basis for the motion; attach
a statement of uncontroverted material facts stating
with particularity in separately numbered paragraphs
each material fact as to which movant claims there is
no genuine issue; specifically reference the pleadings,
discovery, exhibits, or affidavits that demonstrate the
lack of a genuine issue as to such facts; provide
[Mother] with an electronic copy of the statement of
uncontroverted material facts in a commonly used me-
dium, such as a diskette, CD-ROM or e-mail attach-
ment, in a format that can be read by most commonly
used word processing programs, such as Word for Win-
dows or WordPerfect 5.x or higher; and, to file a sepa-
rate legal memorandum explaining why summary
judgment should be granted.
App. 9

entry of appearance in the administrative proceeding,


stating: “I, MICHAEL EUGENE MCKINZY, RE-
SPONDENT herein, acknowledge receipt of the
NOTICE & FINDING OF FINANCIAL [RESPONSI-
BILITY] issued by the Division of Child Support En-
forcement on June 28, 2002, and hereby enter my
appearance in the above-entitled action.”
Moreover, the administrative order noted that Father
and Mother were personally served with the Notice
and Finding of Financial Responsibility. The order fur-
ther provided: “THIS ORDER IS MADE BY CON-
SENT. By my signature below, I agree to this order and
acknowledge service of a true copy of the Notice and
Finding of Financial Responsibility.” Father signed the
consent order under oath on June 28, 2002. The record
conclusively refutes Father’s claim that he was not
properly served with process in the administrative pro-
ceeding.3 The court did not err in denying his motion
for summary judgment. Point denied.

CONCLUSION
The judgment is affirmed.

3
Father’s signature on the consent order also conclusively
refutes his claim, which he raises only in his argument and not in
his point relied on in violation of Rule 84.04(e), that he did not
receive notice of the order because the order was mailed to an al-
legedly incorrect address (his parents’ address) instead of his last
known mailing address.
App. 10

IN THE CIRCUIT COURT OF


JACKSON COUNTY, MISSOURI
AT KANSAS CITY
Family Court Division

MICHAEL MCKINZY, )
Petitioner, )
) Case No. 02-FC200809-04
vs. ) Division: 43
CARLETHA GASTON )
(MCKINZY), )
)
Respondent. )

FINDINGS AND RECOMMENDATIONS


FOR JUDGMENT GRANTING THE
PETITIONER’S MOTION TO MODIFY AS
TO MAINTENANCE AND DENYING HIS
COORDINATING REQUESTS FOR RELIEF
AND
FINDINGS AND RECOMMENDATIONS
FOR JUDGMENT GRANTING THE
RESPONDENT’S COUNTER MOTION TO
DETERMINE ARREARAGES AND HER
COORDINATING REQUESTS FOR RELIEF
On the 19th day of May 2016, the 9th day of Jan-
uary 2017, and the 15th day of March 2017, this Court
conducted hearings and received evidence regarding
the pleadings, motions, and other requests for relief
filed by the parties herein.
App. 11

On the 19th day of May 2016 and on the 9th day


of January 2017, the Petitioner, Michael McKinzy, Sr.,
appeared in person, and the Respondent, Carletha
Gaston (McKinzy), appeared in person and with coun-
sel, Sandra Grant Hessenflow.
On the 15th day of March 2017, the Petitioner,
Michael McKinzy, Sr., failed to appear, and, the Re-
spondent, Carletha Gaston (McKinzy), appeared in
person and with counsel, Sandra Grant Hessenflow.
During trial, the Respondent asked to this Court
to both consider the overall procedural and documen-
tary history in this case when adjudicating the parties’
competing requests for relief and to take judicial notice
of the entire Court Record and Court file(s) from the
underlying, collateral, and current proceedings in this
consolidated matter pursuant to RSMo. Section
491.130 and pursuant to this Court’s inherent ability
to take judicial notice of their own records and files
from other proceedings. See e.g., Chandler v.
Hemeyer, 49 S.W.3d 786 (Mo. App. S.D. 2001).
The Petitioner did not object to the Respondent’s
request for the incorporation of this Court’s File(s) and
the Court Record(s) from the underlying and collateral
proceedings.
This Court granted the Respondent’s judicial no-
tice request; this Court considered the overall proce-
dural and documentary history between the parties
when adjudicating the issues presented in the current
proceedings.
App. 12

On June 27, 2017, this Court issued its Findings


and Recommendations for Judgment Sealing the
Court Record and Case Files and for Other Coordinat-
ing Protective Relief.
This Court’s June 27, 2017 Protective Judgment is
incorporated herein by reference as if set forth in its
entirety.
All findings of fact, conclusions of law, and judg-
ments set forth in the June 27, 2017 Protective Judg-
ment are integral to this Judgment and are considered
to be additional findings, conclusions, and judgments
supporting the factual and legal determinations
herein.
During trial, this Court made determinations re-
garding the credibility of the witnesses and the appro-
priate weight to be given to both the testamentary and
the documentary evidence presented; this Court’s
Findings of the Fact, Recommendations, and Conclu-
sions of Law are consistent with this Court’s determi-
nations as to the credibility and appropriate weight to
be given to each witness and to the documentary and
other evidence presented.
Whereupon, after having: heard and received the
parties’ testimonial and documentary evidence and ex-
hibits; reviewed this Court’s files and the overall case
records and procedural case history; considered the
parties’ pleadings, motions; and proposed judgments;
and, after having taken this matter under advisement
for due consideration, the Court makes the following
App. 13

Findings of Fact, Recommendations, and Conclusions


of Law.

Jurisdiction
This Court has continuing subject-matter jurisdic-
tion over all administrative and judicial matters con-
cerning child support pursuant to its July 10, 2002
paternity, child support, and medical support Judg-
ment in case number 02-MC201872, as well as all
modification, enforcement, and other proceedings and
sub-cases subsequently adjudicated by this Court
based thereon.
This Court has continuing subject-matter jurisdic-
tion over all child support, maintenance, emancipation,
enforcement, attorney fee, and other corresponding is-
sues pursuant to its November 8, 2002 Judgment of
Dissolution in case number 02-FC200809, as well as all
modification, enforcement, and other proceedings and
sub-cases subsequently adjudicated by this Court
based thereon.
All four of the parties’ children are over the age of
18 and have already been legally emancipated, such
that this Court no longer has, nor has either party re-
quested this Court to exercise, jurisdiction over the
parties and/or their adult children for custody, visita-
tion, or any other parenting-related purposes.
Neither party has knowledge of any other pending
proceedings regarding the issues presently before this
Court, and neither party is participating in any other
App. 14

litigation concerning the issues of emancipation, child


support, enforcement, maintenance, attorney fees, or
any of the other issues presently before this Court.
This Court has continuing and exclusive subject-
matter jurisdiction over all issues presented herein.
The Petitioner filed his Motion to Modify on Sep-
tember 2, 2015, thereby subjecting himself to the con-
tinuing personal jurisdiction of this Court.
On September 2, 2015, the Respondent resided in
Kansas City, Jackson County, Missouri; she resided in
Missouri for more than 180 days immediately preced-
ing the filing of the Petitioner’s Motion to Modify; and,
the Respondent continued to reside in Missouri at all
times since the entry of this Court’s original Paternity
and Dissolution Judgments in 2002.
Respondent was formally served on May 18, 2016,
and she filed her Answer and Cross-Motions on June
20, 2016.
More than thirty (30) days have elapsed since the
filing and service of the Petitioner’s initial pleadings,
and the Respondent filed her responsive pleadings
more than thirty (30) days ago.
Neither Petitioner nor Respondent is a member of
the armed forces of the United States of America or its
allies on active or reserve duty.
This Court has personal jurisdiction over the par-
ties herein, and venue is properly situated in Jackson
County, Missouri.
App. 15

Pending Issues
Although several of the matters presented had
been resolved or partially-resolved during the first ev-
identiary hearing on the record on 5/19/2016, as of the
dates of the evidentiary hearing on 1/9/2017 and the
review hearing on March 15, 2017, both parties still
had unresolved issues, pleadings, motions, and other
requests for relief pending before this Court.
The Petitioner’s pleadings generally requested the
following relief: that each of the parties’ four children
be retroactively emancipated as of their 18th birth-
days; that the Petitioner’s child support obligations
terminate retroactively on each child’s 18th birthday;
for a declaration that Petitioner has satisfied his child
support obligations and owes no past due child sup-
port; termination of the Petitioner’s maintenance obli-
gations to the Respondent retroactive to the date of
service; a declaration that Petitioner has satisfied all
maintenance obligations owed; termination of the ex-
isting Income Withholding Order for maintenance and
child support; that any resulting overpayment(s) of
child support be credited against Petitioner’s ongoing
maintenance obligations; for certain discovery sanc-
tions and coordinating relief; and, that summary judg-
ment issue in his favor because two documents from
the original administrative/paternity matter were not
properly served on him in 2002.
The Respondent’s pending pleadings generally re-
quested the following relief: that the Petitioner’s plead-
ings be dismissed for failure to state a claim; for
App. 16

dismissal of certain of the Petitioner’s claims and re-


quests for relief based upon the doctrines of res judi-
cata and/or collateral estoppel; to deny the Petitioner’s
request to terminate his maintenance obligations,
and/or in the alternative, to reduce her prospective
maintenance obligations to $1.00 per month; to con-
strue, determine, and issue a Judgment certain for all
child-support and maintenance arrears owed; to con-
strue, determine, and enter a Judgment for all statu-
tory interest accumulated on the Respondent’s
delinquent support obligations; to establish a payment
schedule to facilitate Respondent’s satisfaction of all
support-related arrearages and the statutory interest
accumulated thereon; for the entry of protective orders
regarding the parties’ discovery documents; to seal the
Court’s Record(s) and File(s) herein; for the entry of
protective orders to otherwise prohibit and remedy the
Petitioner’s current and any subsequent disclosures of
sensitive information concerning the parties, their
children, their private family matters, or their per-
sonal financial and other confidential information;
and, for the entry of a Judgment in favor of the Re-
spondent for her attorney fees and costs incurred
herein.
This Court resolved all of the Respondent’s re-
quests for protective relief by virtue of its June 27,
2017 Judgment Sealing the Court Record and Case
Files and for Other Coordinating Protective Relief.
This Judgment addresses all other issues, plead-
ings, motions, and other matters pending between the
parties, except for the Respondent’s request for the
App. 17

entry of a Judgment in her favor for her attorney fees


and costs incurred herein – which remains under ad-
visement until further Judgment of this Court for the
reasons set forth below in the section of this Judgment
addressing the Respondent’s fee-related requests.

Respondent’s Motion In Limine


On the 25th day of May 2016, this Court issued its
written Scheduling Order, which specified that the
Court was setting aside its prior sanctions and other
discovery Orders, and setting forth its own schedule
pursuant to Missouri Supreme Court Rule 56.01, (in
order to ensure that both parties would have the in-
formation they required to adequately prepare for
trial).
Based thereon, the Respondent propounded new
discovery requests to the Petitioner, including the Re-
spondent’s Modification Request for Production of Doc-
uments and Things from Petitioner, which sought:
“1. Complete copies of your individual, joint, and
all other federal and state income tax returns for the
last three calendar years (tax years 2015, 2014, and
2013), including all schedules, W-2’s, 1099’s, K-1’s and
all other attachments thereto, and if said tax returns
are not filed timely by April 15th, for each such year,
provide copies of all documents necessary to prepare
said returns, and Form 4868 (Application for Exten-
sion).”
App. 18

The Petitioner failed to provide the tax returns


and other financial documents requested in the Re-
spondent’s Modification Request for Production of Doc-
uments and Things from Petitioner, so on January 3,
2017, the Respondent filed her Motion In Limine for
Failure to Produce Requested Tax Returns and Incor-
porated Suggestions in Support Thereof.
Prior to commencing the trial, this Court heard
arguments regarding the Respondent’s Motion In
Limine.
The Respondent asked this Court to: prohibit the
Petitioner from testifying regarding or offering evi-
dence concerning his income and/or the other financial
matters and documents the Respondent requested (but
did not receive) during discovery; and, to rely on the
documents the Petitioner did provide during discovery
(such as his pay stubs) as evidence of the Petitioner’s
current income and financial circumstances.
Missouri Supreme Court Rule 61.01(d) (Fail-
ure to Produce Documents, and Things or to Permit In-
spection), provides:
“If a party fails to respond that inspection will be
permitted as requested, fails to permit inspection, or
fails to produce documents and tangible things as re-
quested under Rule 58.01, or timely serves objections
thereto that are thereafter overruled and the docu-
ments and things are not timely produced or inspec-
tion thereafter is not timely permitted, the court may,
upon motion and reasonable notice to other parties,
App. 19

take such action in regard to the failure as are just and


among others the following:
(1) Enter an order refusing to allow the disobedi-
ent party to support or oppose designated claims or
defenses or prohibit the disobedient party from intro-
ducing designated matters in evidence;”
This Court granted the Respondent’s Motion In
Limine and prohibited the Petitioner from testifying
regarding or offering evidence concerning his income
and/or the other financial matters and documents the
Respondent requested (but did not receive) during dis-
covery.
This Court also granted the Respondent’s Motion
In Limine as to relying on the documents the Peti-
tioner did provide during discovery (such as his pay
stubs) as evidence of the Petitioner’s current income
and financial circumstances.

Discovery Admissions Sanctions


Between September 2, 2015 and January 25, 2016,
the Petitioner was represented by counsel; once he be-
came pro se, the Petitioner began propounding pro se
discovery requests to the Respondent.
On or about March 14, 2016, the Petitioner served
his First Request for Admissions.
All but one of the (5) questions posed in the Peti-
tioner’s First Request for Admissions inquired about
the parties’ (4) adult children (each of whom had
App. 20

already been legally-emancipated pursuant to prior


Court Judgments, most notably during the 2007 – 2008
emancipation and modification cases); despite this, Pe-
titioner asked Respondent to agree that each child was
instead emancipated as of their respective 18th birth-
days.
Less than 30 days later, on or about April 13, 2016,
the Petitioner sent the Respondent a “golden rule let-
ter”, and he filed his Motion to Compel Discovery
and/or for Sanctions Pursuant to Rule 61.01(d) of the
Missouri Rules of Civil Procedure.
On or about April 20, 2016, this Court granted the
Petitioner’s Motion to Compel and Ordered the Re-
spondent to respond to all discovery propounded to her
by May 1, 2016.
On or about April 22, 2016, the Respondent served
her pro se answers to the Petitioner’s First Request for
Admissions; the Respondent’s pro se Admissions Re-
sponses were insufficient and incomplete.
On April 26, 2016, Sandra Grant Hessenflow filed
her Limited Scope Entry of Appearance for Respond-
ent.
On or about May 2, 2016, Petitioner filed his Mo-
tion to Have Admissions Deemed Admitted.
Also on May 2, 2016, the Respondent filed her Ap-
plication for a Continuance and Coordinating Requests
and Respondent’s Incorporated Suggestions in Sup-
port Thereof.
App. 21

Among her coordinating requests for relief, the Re-


spondent sought a discovery protective order pursuant
to Rule 56.01(c), and she asked this Court to seal the
Court File(s) and Court Record in this matter and to
issue the other protective orders necessary to address
the Petitioner’s disclosure of confidential information
and to protect the private and sensitive demographic
and financial information of the parties and their chil-
dren.
On May 3, 2016, Mr. McKinzy filed his Petitioner’s
Reply to Respondent’s Motion for Continuance and Co-
ordinating Requests.
On May 10, 2016, Mr. McKinzy filed his Peti-
tioner’s Suggestions in Opposition to Respondent’s Re-
quest for a Protective Order as Pled on May 2, 2016.
On or about May 18, 2016, the Respondent served
her Amended Admission Responses; and although
all but one of the Petitioner’s requests dealt with
previously-adjudicated issues, the Respondent fully
responded to each of the Petitioner’s admissions re-
quests.
On May 19, 2016, this Court conducted a hearing
regarding the parties’ multiple discovery motions,
discovery issues, and discovery scheduling requests;
the Petitioner, Michael McKinzy, Sr., appeared in per-
son, and the Respondent, Carletha Gaston (McKinzy),
appeared in person and with counsel, Sandra Grant
Hessenflow.
App. 22

On May 26, 2016, this Court issued its new Sched-


uling Order, which included extensive provisions and
new deadlines concerning the current and prospective
exchange of discovery requests and other pleadings.
On or about June 10, 2016, Respondent filed her
Answer to the Petitioner’s Motion to Have Admissions
Deemed Admitted.
The Respondent’s Answer set forth her procedural
and factual responses; including: that the Petitioner
did not mail his Request for Admissions to the Re-
spondent on March 12, 2016; and, that the Petitioner’s
Request for Admissions was not in the proper format,
and as such, it did not constitute an appropriate Re-
quest for Admissions requiring a response.
The Respondent’s Answer also relied upon this
Court’s determination that the Respondent’s discovery-
related and other privacy concerns were justified,
thereby excusing her failure to respond to all of the Pe-
titioner’s discovery requests prior to the May 19, 2016
discovery scheduling hearing.
The Respondent’s Answer also correctly specified
that on or about May 26, 2016, when this Court issued
its new Scheduling Order, it granted the Respondent
an extension (until June 20, 2016) for responding to all
of the Petitioner’s pending discovery requests, motions,
and pleadings.
Lastly, the Respondent’s Answer properly con-
cluded that when (on May 18, 2016) the Respondent
served her Amended Responses to the Petitioner’s
App. 23

Request for Admissions (which contained full and com-


plete responses to each of the Petitioner’s admission
requests), the Respondent satisfied her obligations to
the Petitioner regarding his admissions requests in ac-
cordance with the exchange schedule and provisions
set forth in this Court’s Scheduling Order of May 26,
2016.
On or about June 20, 2016, Petitioner filed his
Reply to the Respondent’s Answer and Suggestions
in Opposition to Motion to Have Admissions Deemed
Admitted.
On January 9, 2017, this Court conducted a Hear-
ing on the parties’ primary motions and on all other
pleadings and other motions still pending as of that
date.
During the January 9, 2017 trial, the Petitioner
did not argue, offer evidence regarding, or even men-
tion his still-pending Motion to Have Admissions
Deemed Admitted; and as such, the Petitioner aban-
doned his Motion to Have Admissions Deemed Admit-
ted and all requests thereunder.
Even if this Court did not deem the Petitioner’s
Admissions Motion abandoned, a review of the parties’
respective pleadings and of the record herein clearly
illustrates that the Petitioner is not entitled to any re-
lief thereunder.
The Petitioner’s Motion to Have Admissions
Deemed Admitted is Denied.
App. 24

Motion for a Default Judgment


Between September 2, 2015 and January 25, 2016,
the Petitioner was represented by counsel; once he be-
came pro se, the Petitioner began propounding pro se
discovery requests to the Respondent.
On or about March 14, 2016, the Petitioner served
his: First Interrogatories; First Request for Production
of Documents (the Petitioner actually served two sep-
arate Production Requests, each of which sought
slightly different documentation); and, his First Re-
quest for Admissions.
The Petitioner’s Interrogatories sought extensive
financial and employment information from the Re-
spondent and from October 15, 2002 forward – even
though October 15, 2002 predates this Court’s 2008
Modification Judgment.
The first of the Petitioner’s two Requests for Pro-
duction of Documents sought the Respondent’s federal
tax returns and IRS account transcripts for all tax
years since 2001.
His second Request for Production of Documents
sought copies of 14 years’ worth bank statements, can-
celed checks, deposit slips, and all other financial rec-
ords held by the Respondent in any bank or other
financial institution, as well as copies of the Respond-
ent’s state tax returns for the past 14 years.
Less than 30 days later, on or about April 13, 2016,
the Petitioner sent the Respondent a “golden rule let-
ter”, and he filed his Motion to Compel Discovery
App. 25

and/or for Sanctions Pursuant to Rule 61.01(d) of the


Missouri Rules of Civil Procedure.
On or about April 20, 2016, this Court granted the
Petitioner’s Motion to Compel and Ordered the Re-
spondent to respond to all discovery propounded to her
by May 1, 2016.
On April 26, 2016, Sandra Grant Hessenflow filed
her Limited Scope Entry of Appearance for Respond-
ent.
On May 2, 2016, the Respondent filed her Applica-
tion for a Continuance and Coordinating Requests and
Respondent’s Incorporated Suggestions in Support
Thereof.
Among her coordinating requests for relief, the Re-
spondent sought a discovery protective order pursuant
to Rule 56.01(c), and she asked this Court to seal the
Court File(s) and Court Record in this matter and to
issue the other protective orders necessary to address
the Petitioner’s disclosure of confidential information
and to protect the private and sensitive demographic
and financial information of the parties and their chil-
dren.
On May 3, 2016, Petitioner filed his Petitioner’s
Reply to Respondent’s Motion for Continuance and
Coordinating Requests.
On May 10, 2016, Mr. McKinzy filed his Peti-
tioner’s Suggestions in Opposition to Respondent’s Re-
quest for a Protective Order as Pled on May 2, 2016.
App. 26

On or about May 17, 2016, Petitioner filed his Mo-


tion and Order for Entry of Default Judgment Pursu-
ant to Missouri Supreme Court Rule 61.01(b)(2).
On May 19, 2016, this Court conducted a hearing
regarding the parties’ multiple discovery motions,
discovery issues, and discovery scheduling requests;
the Petitioner, Michael McKinzy, Sr., appeared in per-
son, and the Respondent, Carletha Gaston (McKinzy),
appeared in person and with counsel, Sandra Grant
Hessenflow.
The May 19, 2016 hearing did not address the Pe-
titioner’s Motion and Order for Entry of Default Judg-
ment Pursuant to Missouri Supreme Court Rule
61.01(b)(2), because it had only been filed 2 days ear-
lier.
On May 26, 2016, this Court issued its new Sched-
uling Order, which included extensive provisions and
new deadlines concerning the current and prospective
exchange of discovery requests and other pleadings.
On or about June 10, 2016, Respondent filed her
Answer and Incorporated Suggestions in Opposition to
the Petitioner’s Motion and Order for Entry of Default
Judgment Pursuant to Missouri Supreme Court Rule
61.01(b)(2).
The Respondent’s Answer set forth her procedural
and factual responses; including: that the Petitioner
did not mail his multiple discovery requests to the Re-
spondent on March 12, 2016; and, that the Petitioner’s
multiple discovery requests were not in the proper
App. 27

format, and as such, they did not constitute appropri-


ate discovery requests or require a response.
The Respondent’s Answer also relied upon this
Court’s determination that the Respondent’s discov-
ery-related and other privacy concerns were justified,
thereby excusing her failure to respond to all of the Pe-
titioner’s discovery requests prior to the May 19, 2016
discovery scheduling hearing.
The Respondent’s Answer also correctly specified
that on or about May 26, 2016, when this Court issued
its new Scheduling Order, it granted the Respondent
an extension (until June 20, 2016) for responding to all
of the Petitioner’s pending discovery requests, motions,
and pleadings.
On or about June 19, 2016, the Respondent
served her: Modification Asset and Debt Statement,
(4) alternative Income and Expense Statements; her
Responses to the Petitioner’s Interrogatories; her Re-
sponses to the Petitioner’s First Production of Docu-
ments Request, and her Responses to the Petitioner’s
additional Production of Documents Request.
Although Respondent objected to the Petitioner’s
Interrogatories on several grounds, including that the
Petitioner sought more than 14 years’ worth of employ-
ment and financial information from the Respondent
(including information predating the January 31, 2008
Modification Judgment), the Respondent provided
complete and detailed responses to each of the Peti-
tioner’s Interrogatory Requests.
App. 28

Despite her numerous objections to the Peti-


tioner’s two Requests for Production of Documents, the
Respondent fully complied with the Petitioner’s re-
quests; she produced several years of state and federal
income tax records, bank records, her retirement state-
ments, etc.
Further, since the Petitioner requested 14 years’
worth of the Respondent’s cumulative financial rec-
ords, many of which the Respondent neither possessed
nor even had access to, the Respondent provided the
Petitioner with written Authorizations, such that he
could obtain her older financial records directly from
her bank, the IRS, etc.
Accordingly, when (on June 19, 2016) the Respond-
ent served her multiple, amended, full, and complete
Responses to the Petitioner’s discovery requests (as set
forth above), the Respondent satisfied her obligations
to the Petitioner regarding his multiple discovery re-
quests in accordance with the exchange schedule and
provisions set forth in this Court’s Scheduling Order of
May 26, 2016.
On or about June 20, 2016, Petitioner filed his Re-
ply to the Respondent’s Answer to his Motion for a De-
fault Judgment.
On January 9, 2017, this Court conducted a Hear-
ing on the parties’ primary motions and on all other
pleadings and other motions still pending as of that
date.
App. 29

During the January 9, 2017 trial, the Petitioner


did not argue, offer evidence regarding, or even men-
tion his still-pending Motion for Entry of a Default
Judgment Pursuant to Missouri Supreme Court Rule
61.01(b)(2); and as such, the Petitioner abandoned his
Motion for Entry of a Default Judgment and all re-
quests thereunder.
Even if this Court did not deem the Petitioner’s
Discovery Default Judgment Motion abandoned, a re-
view of the parties’ respective pleadings and of the rec-
ord herein clearly illustrates that the Petitioner is not
entitled to any relief thereunder.
The Petitioner’s Motion for Entry of a Default
Judgment Pursuant to Missouri Supreme Court Rule
61.01(b)(2) is Denied.

Summary Judgment
On April 18, 2016, Mr. McKinzy filed his: Affidavit;
Motion for Summary Judgment; Suggestions in Sup-
port of Summary Judgment; and, his Statement of Un-
controverted Material Facts.
These constituted the Petitioner’s first set of Sum-
mary Judgment pleadings in this matter, and they
were limited to his pending retroactive emancipation
issues.
On May 4, 2016, Mr. McKinzy withdrew his Mo-
tion for Summary Judgment and corresponding plead-
ings
App. 30

On Saturday, January 7, 2017, less than 48 hours


before the trial scheduled on Monday morning, Mr.
McKinzy emailed (to Respondent’s attorney) a copy of
his Second Motion for Summary Judgment (specifi-
cally, his Motion for Summary Judgment Regarding
Void Administrative Child Support Order Entered in
Title IV-D 40087059 on July 2, 2002).
On January 9, 2017, on the morning of trial, Mr.
McKinzy formally-filed his Motion for Summary Judg-
ment Regarding Void Administrative Child Support
Order Entered in Title IV-D 40087059 on July 2, 2002.
Respondent’s attorney both anticipated and tried
to prevent the Petitioner from filing additional plead-
ings on the eve of trial; in fact, during the scheduling
hearing on May 19, 2016, the Respondent asked this
Court to include pleading deadlines in its scheduling
orders.
Accordingly, this Court’s May 26, 2016 Scheduling
Order included the following:
“(B)oth in past cases and in the presently-pending
matter, in addition to filing a primary pleading,
petition or motion for relief, the Petitioner has reg-
ularly filed motions and other pleadings less than
30 days prior to a scheduled trial date, which could
necessitate additional trial continuances (in order
to allow the Respondent adequate time to respond
to and to prepare to defend against such newly-
filed motions).
(I)n order to accommodate the current July 14,
2016 trial date, the Respondent asked this Court
App. 31

to set forth a schedule regarding the filing and re-


sponses to any additional requests for relief either
party wishes this Court to address during trial;
good cause exists to do so.
(O)n or before May 31, 2016, the Petitioner must
file any and all additional motions, pleadings, re-
quests for relief, etc. he wishes this Court to con-
sider.
(T)he Petitioner will be prohibited from filing ad-
ditional pleadings, motions, affidavits, documents,
and other requests for relief after May 31, 2016 . . .
(T)he above schedule and deadlines will also en-
sure that both parties will have sufficient time to
adequately prepare to proceed to trial without ne-
cessitating any further continuances in order to
file and/or to respond to any untimely motions or
other pleadings.”
Even if the Petitioner’s second set of Summary
Judgment Pleadings didn’t violate the filing deadlines
set forth in this Court’s May 26, 2016 Scheduling Or-
der, pursuant to Missouri Supreme Court Rule
74.04(c)(2), the Respondent was still entitled to (30)
days to respond thereto.
However, rather than seeking a continuance to re-
spond to the Petitioner’s new Summary Judgment Mo-
tion, the Respondent’s attorney announced that she
was prepared to address them on their merits on the
morning of January 9, 2017.
Accordingly, prior to starting the evidentiary
hearing, this Court heard arguments regarding the
App. 32

Petitioner’s Motion for Summary Judgment Regarding


Void Administrative Child Support Order Entered in
Title IV-D 40087059 on July 2, 2002.
In addition to requesting that the Petitioner’s Mo-
tion for Summary Judgment Regarding Void Adminis-
trative Child Support Order Entered in Title IV-D
40087059 on July 2, 2002 be denied as untimely based
on this Court’s May 26, 2016 Scheduling Order, the Re-
spondent also asked this Court to deny the Petitioner’s
new Motion because it asked for summary relief as to
new issues – rather than regarding any of the pending
issues properly before this Court pursuant to the par-
ties’ pleadings and motions.
The Petitioner’s January 9, 2017 Motion sought
summary judgment in his favor because two docu-
ments from the original administrative/paternity mat-
ter were not properly served on him in 2002.
Mo. Sup Ct. Rule 74.04(a) provides:
“At any time after the expiration of thirty days
from the commencement of the action or after service
of a motion for summary judgment by the adverse
party, a party seeking to recover upon a claim, counter-
claim, or cross-claim or to obtain a declaratory judg-
ment may move with or without supporting affidavits
for a summary judgment upon all or any part of the
pending issues.”
Nothing in the Petitioner’s pending Motion to
Modify and Motion for Declaratory Judgment, nor in
any of his other then-pending pleadings, sought relief
App. 33

or otherwise relied upon defective certified mail service


during the initial administrative paternity and child
support proceedings in 2002.
This Court cannot grant summary judgment as to
a non-pending matter.
Even if the Petitioner’s Summary Judgment Mo-
tion was not time-barred and it was based upon a re-
quest for relief set forth in the Petitioner’s pending
pleadings, the Petitioner’s new Summary Judgment
Motion was substantively insufficient on its face.
For example, the Petitioner’s new Summary Judg-
ment Motion failed, pursuant to Mo. Sup. Ct. Rule
74.04(c)(1), to: summarily state the legal basis for the
motion; attach a statement of uncontroverted material
facts stating with particularity in separately num-
bered paragraphs each material fact as to which mo-
vant claims there is no genuine issue; specifically
reference the pleadings, discovery, exhibits or affida-
vits that demonstrate the lack of a genuine issue as to
such facts; provide the Respondent with an electronic
copy of the statement of uncontroverted material facts
in a commonly used medium, such as a diskette, CD-
ROM or e-mail attachment, in a format that can be
read by most commonly used word processing pro-
grams, such as Word for Windows or WordPerfect 5.x
or higher; and, to file a separate legal memorandum
explaining why summary judgment should be granted.
Lastly, even if none of the impediments set forth
immediately above precluded granting the Petitioner’s
new Motion for Summary Judgment, his own attached
App. 34

and incorporated “exhibits” disprove (rather than sup-


port) the Petitioner’s Motion.
Specifically, in the Petitioner’s Statement of Un-
controverted Material Facts, he asserts the DCSE
failed to serve him (via certified mail) with copies of
their “Notice of Financial Responsibility” and their
“Administrative Child Support Order.”
However, in Petitioner’s “Exhibit E”, on the third
page, directly above where Mr. McKinzy signs the doc-
ument under oath on June 28, 2002, it states: “THIS
ORDER IS MADE BY CONSENT. By my signature be-
low, I agree to this order and acknowledge service of a
true copy of the Notice and Finding of Financial Re-
sponsibility.”
Further, in Petitioner’s “Exhibit 4”, directly above
where Mr. McKinzy signs the document under oath on
June 28, 2002, it states: “I, MICHAEL EUGENE
MCKINZY, RESPONDENT herein, acknowledge re-
ceipt of the NOTICE & FINDING OF FINANCIAL
RESPONSIBILITY issued by the Division of Child
Support Enforcement on JUNE 28, 2002, and hereby
enter my appearance in the above-entitled action.”
The Petitioner’s Motion for Summary Judgment
Regarding Void Administrative Child Support Order
Entered in Title IV-D 40087059 on July 2, 2002 is De-
nied.
App. 35

Declaratory Judgment
On September 2, 2015, the Petitioner filed his Mo-
tion to Modify and Motion for Declaratory Judgment.
The Petitioner’s pleadings requested the following
relief via declaratory judgment: that each of the par-
ties’ four children be retroactively emancipated as of
their 18th birthdays; that the Petitioner’s child sup-
port obligations terminate retroactively on each child’s
18th birthday; for a declaration that Petitioner has sat-
isfied his child support obligations and owes no past
due child support; a declaration that Petitioner has
satisfied all maintenance obligations owed; termina-
tion of the existing Income Withholding Order for
maintenance and child support; and, that any result-
ing overpayment(s) of child support be credited against
Petitioner’s ongoing maintenance obligations.
The Petitioner’s modification request was limited
to seeking a modification of the parties’ Dissolution
Judgment by terminating his monthly maintenance
obligations to the Respondent retroactive to the date of
service (Petitioner’s relief request number 6).
The Respondent filed her Answer thereto, and in
her paragraph 13, she asked that most of the Peti-
tioner’s pleading be dismissed for failure to state a
claim; specifically:
“All of the requests for affirmative relief set forth
in the Petitioner’s Motion to Modify and Motion
for Declaratory Judgment (with the exception of
requests 6 and 9), should be dismissed because
the Petitioner’s pleading is legally-insufficient to
App. 36

establish a claim for declaratory judgment in that:


there is no current emancipation controversy ripe
for judicial determination; and, the Petitioner not
only had an adequate remedy at law to address the
emancipation of his children, he availed himself
thereof in the 2007 and 2008 administrative, judi-
cial, and appellate proceedings.”
This Court finds that the Petitioner’s pleadings
are legally-insufficient to support or to establish a ba-
sis for the declaratory relief sought by the Petitioner in
his requests for relief 1, 2, 3, 4, 5, 7, and 8.
To state an adequate claim for declaratory relief,
the Petitioner’s Motion for Declaratory Judgment
needed to (for each of the 7 matters he listed for declar-
atory relief consideration) set forth facts demonstrat-
ing:
“(1) a justiciable controversy that presents a real,
substantial, presently-existing controversy admit-
ting of specific relief, as distinguished from an ad-
visory decree upon a purely hypothetical situation;
(2) a plaintiff with a legally protectable interest at
stake, consisting of a pecuniary or personal inter-
est directly at issue and subject to immediate or
prospective consequential relief; (3) a controversy
ripe for judicial determination; and (4) an inade-
quate remedy at law.” Gerke v. Kansas City, 493
S.W.3d 433, 437 (Mo. App. 2016), citing, Tup-
per v. City of St. Louis, 468 S.W.3d 360, 368
(Mo. banc 2015) (citation omitted).
A dismissal for failure to state a cause of action is
solely a test of the adequacy of the pleadings, not a pre-
liminary determination on the merits or even an
App. 37

inquiry as to whether a party might be entitled to some


sort of relief. Gerke at 437.
Missouri is a fact-pleading state, so petitions and
motions must plead ultimate facts demonstrating an
entitlement to the declaratory relief sought. Id. at 436.
This Court finds that the Petitioner’s pleadings
are factually (and therefore legally) insufficient to sup-
port or to establish a basis for the declaratory relief
sought by the Petitioner in his requests for relief 1, 2,
3, 4, 5, 7, and 8, in that they fail to allege facts sufficient
to evidence a justiciable controversy that presents a
real, substantial, presently-existing controversy ad-
mitting of specific relief, as distinguished from an ad-
visory decree upon a purely hypothetical situation.
This Court finds that the Petitioner’s pleadings
are factually (and therefore legally) insufficient to sup-
port or to establish a basis for the declaratory relief
sought by the Petitioner in his requests for relief 1, 2,
3, 4, 5, 7, and 8, in that they also fail to allege facts
sufficient to evidence that he has a legally protectable
interest at stake, consisting of a pecuniary or personal
interest directly at issue and subject to immediate or
prospective consequential relief.
This Court finds that the Petitioner’s pleadings
are factually (and therefore legally) insufficient to sup-
port or to establish a basis for the declaratory relief
sought by the Petitioner in his requests for relief 1, 2,
3, 4, 5, 7, and 8, in that they also fail to allege facts
sufficient to evidence a controversy ripe for judicial de-
termination.
App. 38

This Court finds that the Petitioner’s pleadings


are factually (and therefore legally) insufficient to sup-
port or to establish a basis for the declaratory relief
sought by the Petitioner in his requests for relief 1, 2,
3, 4, 5, 7, and 8, in that they also fail to allege facts
sufficient to evidence that he has no adequate remedy
at law.
The Petitioner’s pleadings consist largely of his
own conclusory assertions – many of which are factu-
ally and legally incorrect.
A pleading that asserts only conclusions is insuffi-
cient, and this Court must disregard any conclusions
that are not supported by facts when considering a re-
quest to dismiss for failure to property [sic] plead a
cause of action. Id.
The Respondent’s request to dismiss the Peti-
tioner’s requests for declaratory relief 1,2,3,4,5,7, and
8 for failure to properly plead and set forth a cause of
action is granted.

Res Judicata and Collateral Estoppel


On September 2, 2015, the Petitioner filed his Mo-
tion to Modify and Motion for Declaratory Judgment.
The Petitioner asks this Court, in paragraphs 1
and 2 of his prayer for relief, to retroactively re-
emancipate each of his four children as of their respec-
tive 18th birthdays (occurring in 2003, 2006 [sic], 2006,
and 2007), and to retroactively terminate his support
App. 39

obligations commensurate with each child’s re-


emancipation.
On June 20, 2016, the Respondent filed her An-
swer to the Petitioner’s Motion and her three Cross
Motions for relief, including the “Respondent’s Cross-
Motion and Incorporated Suggestions in Support of
Her Motion to Dismiss All Requests for Affirmative Re-
lief Set Forth in the Petitioner’s Motion to Modify and
Motion for Declaratory Judgment because the Peti-
tioner’s cause of action is barred by the doctrines of Res
Judicata and Collateral Estoppel.”
The Respondent’s Cross Motion requested dismis-
sal of certain of the Petitioner’s claims and requests for
relief based upon the doctrines of res judicata and/or
collateral estoppel.

Previous Emancipation Proceedings Regarding


the Parties’ Three Oldest Children
When the parties’ initial paternity, dissolution,
and child support matters concluded, both the admin-
istrative child support Order of July 10, 2002 (Re-
spondent’s Exhibit 32), and the Dissolution Judgment
of November 8, 2002 (Respondent’s Exhibit 1), estab-
lished a single child support obligation for the support
of the parties’ four children in the gross amount of
$1,165 per month, commencing on 7/15/2002.
In 2005, the Respondent asked the Family Sup-
port Division to revisit Mr. McKinzy’s support obliga-
tions; she did so, in part, because some of her older
App. 40

children had or would soon turn 18 and/or graduate


from High School.
On August 3, 2006, the Family Support Division,
having completed its review, issued its Motion for Mod-
ification of Child Support Order On August 17, 2006.
Mr. McKinzy requested an Administrative Hear-
ing regarding the Division’s proposed modifications;
Among the 25 grounds listed in his Administrative
Hearing Request, Mr. McKinzy asked for the retroac-
tive emancipation of each of his three oldest children
(as of their 18th birthdays), and he asked that his child
support obligations for each terminate commensurate
with their emancipations.
The Administrative Hearing took place via tele-
phone on July 16, 2007; the Petitioner participated
during said hearing.
During the telephone hearing, the Petitioner tes-
tified that Deron and Deon turned 19 on June 18, 2007
(they both graduated from High School the previous
May); he also testified that neither of them planned to
attend college and that they should be emancipated.
Petitioner also testified that Barbara turned 21 on
January 6, 2007 and was emancipated.
Petitioner also acknowledged that his youngest
child, Michael, was already 18, but he was still in High
School (Michael was expected to graduate in May of
2008).
App. 41

The Hearing Officer agreed with the Petitioner


that his three oldest children should be emancipated.
After the Administrative Telephone Hearing, the
Hearing Officer issued his Proposed Modification Deci-
sion and Order Nunc Pro Tunc (Respondent’s Exhibit
22), which included the following findings:
“Father no longer owes a duty of current support
for the children Deron McKinzy, Deon McKinzy,
and Barbara McKinzy (Respective Dates of Birth:
June 18, 1988 [Deron & Deon] and January 6,
1986).
It is also determined that Father’s current support
obligation ceasing for three of the four children of
this order constitutes a continuing and substan-
tial change in circumstances which justifies a
modification of the existing order.
After considering all relevant factors, Father’s pre-
sumed child support amount of $599.00 per month
is considered just and appropriate.
. . . this decision was calculated considering only
Father’s support obligation for the child Michael.
This is based on the age of that child (17 years)
and Father’s testimony that Michael is still at-
tending high school.
Beginning on February 15, 2007, and continuing
on the same date each month thereafter, Michael
McKinzy, Father, shall pay current child support
in the amount of $599.00 per month for the
support of Michael McKinzy, Jr. (Date of Birth:
October 16, 1989) to Carletha McKinzy, Mother,
App. 42

through the Family Support Payment Center, PO


Box 109002, Jefferson City, MO 651 10-9002.
The above-referenced child support order entered
by the Circuit Court of Jackson County, Missouri
(Case Number: 02FC-200809) on November 8,
2002 is modified.
Except as modified herein, the above-referenced
child support order entered by the Circuit Court of
Jackson County, Missouri (Case Number: 02FC-
200809) on November 8, 2002, remains in full force
and effect.”
On September 10, 2007, Mr. McKinzy filed a timely
Petition for Judicial Review; he also filed a Motion to
Dismiss the continuing administrative proceedings
and the corresponding request for judicial approval
thereof.
Mr. McKinzy’s Petition for Judicial Review as-
serted, in part, that his three oldest children should
each have been emancipated retroactive to their re-
spective 18th birthdays (not jointly emancipated retro-
active to February 15, 2007).
This Court denied Mr. McKinzy’s Motion to Dis-
miss on October 12, 2007.
On October 12, 2007, Mr. McKinzy applied to the
Western District Court of Appeals for a Writ of Prohi-
bition; he wanted the Western District to compel Com-
missioner Campbell to dismiss the Division’s pending
Modification Pleadings.
App. 43

On October 15, 2007, the Hon. Harold L. Low-


enstein denied the Petitioner’s request for a Writ of
Prohibition.
On October 17, 2007, Mr. McKinzy applied to the
Missouri Supreme Court for the same Writ of Prohibi-
tion relief previously denied by the Western District.
On October 17, 2007, the Division filed: a Motion
to Dismiss Petitioner’s Petition for Judicial Review; a
Motion to Approve the Administrative Order; an An-
swer to the Petitioner’s Petition for Judicial Review.
On November 2, 2007, Mr. McKinzy filed an
Amended Petition for Judicial Review, which simply
reiterated the grounds initially set forth in his Petition
for Judicial Review.
On November 20, 2007, the Supreme Court denied
Mr. McKinzy’s request for a Writ of Prohibition.
On December 12, 2007, the Family Support Divi-
sion filed their Proposed Modification Decision and Or-
der Nunc Pro Tunc with the Circuit Court.
On December 17, 2007, Mr. McKinzy filed his Sec-
ond Amended Petition for Judicial Review, which again
reiterated the grounds initially set forth in his Petition
for Judicial Review and in his Amended Petition for
Judicial Review.
On December 21, 2007, the Division filed its: Mo-
tion to Dismiss Petitioner’s Second Amended Petition
for Judicial Review; Answer to Petitioner’s Second
App. 44

Amended Petition for Judicial Review; and, its Answer


to the Respondent’s Motion of April 19, 2007.
On January 14, 2008, Commissioner (now Judge)
Campbell, issued his Findings and Recommendations
approving the Division’s Proposed Modification Deci-
sion and Order Nunc Pro Tunc, thereby affirming the
Division’s administrative retroactive emancipation of
the Petitioner’s three oldest children (as of February
15, 2007) and establishing Mr. McKinzy’s prospective
child support obligation for the parties’ youngest child
at $599 per month, also commencing retroactive to
February 15, 2007.
On January 18, 2008, the Hon. Robert M. Schieber
issued his Judgment adopting the Commissioner’s
Findings and Recommendations (Respondent’s Ex-
hibit 23).
On or about January 18, 2008, the Honorable
Robert Schieber issued his “Judgment and Order
Adopting Commissioner’s Findings and Recommenda-
tions”, which transformed the Honorable Patrick W.
Campbell’s “Findings and Recommendations Judg-
ment Affirming Administrative Decision” into a judg-
ment of this Court.
Said “Judgment Affirming Administrative Deci-
sion” found “that pursuant to R.S.Mo. Section 536.140,
the agency’s decision should be affirmed.”
On February 5, 2008, the Hon. Robert M. Schieber
issued a formal Judgment of Modification.
App. 45

On February 6, 2008, Mr. McKinzy filed a Motion


for Re-Hearing of his Second Amended Petition for Ju-
dicial Review.
On February 13, 2008, Mr. McKinzy filed his No-
tice of Waiver of Right to Rehearing regarding the
Commissioner’s Findings and Recommendations and
subsequent Judgment of January 18, 2008.
On February 14, 2008, the Hon. Sandra Midkiff
denied the Petitioner’s Motion for a Re-Hearing of his
Second Amended Petition for Judicial Review.
April 6, 2008, Mr. McKinzy filed another Motion
for Re-Hearing of his Second Amended Petition for Ju-
dicial Review.
On November 4, 2008, after the conclusion of the
administrative, Circuit Court, and the appellate pro-
ceedings in Missouri, Mr. McKinzy filed a federal civil
rights suit against the “Missouri Division of Child Sup-
port” and seven other state agencies and individually
named defendants; he filed this suit in the US District
Court for the District of Kansas, and the matter was
designated with case number 2008CV02553.
Mr. McKinzy’s 2008 federal suit in the Kansas Dis-
trict Court was unsuccessful.
On April 22, 2009, Mr. McKinzy appealed the de-
nial of his federal civil rights suit against the “Missouri
Division of Child Support” and the seven other state
agencies and individually named defendants; he filed
his appeal with the United States Court of Appeals for
App. 46

the Eighth Circuit, and it was designated with case


number 09–1900.
On appeal, Mr. McKinzy raised the same issues
and requests for relief that had previously been denied
numerous times; as such, the Eighth Circuit Court of
Appeals denied all relief requested and did not find
that any wrongdoing or any violations of Mr.
McKinzy’s civil rights occurred during any of the un-
derlying administrative, Circuit Court, Federal Court,
or Missouri Appellate and Supreme Court proceedings.
After losing in the Western District, the Missouri
Supreme Court, the District of Kansas, and the 8th
Circuit, on January 12, 2010, Mr. McKinzy filed a sec-
ond case in the United States District Court for the
District of Kansas; said case was designated with case
number 10–2015–JWL.
This lawsuit alleged a conspiracy in violation of
Mr. McKinzy’s constitutional rights stemming from his
continued dissatisfaction with his Missouri child sup-
port obligations and with the outcomes of his prior law-
suits related thereto; he sued various state officials,
three Jackson County Circuit Court judges, two gov-
ernmental agencies, and both Federal Judges who
ruled against him in his previous Federal cases.
On June 1, 2010, the Kansas District Court dis-
missed Mr. McKinzy’s pleadings without granting him
any relief thereunder.
App. 47

Previous Proceedings Regarding the


Emancipation of the Parties’ Youngest Child
Between July 26, 2007 (the date the Hearing Of-
ficer issued his Proposed Modification Decision and
Order Nunc Pro Tunc (Respondent’s Exhibit 22)) and
January 14, 2008 (the date Commissioner (now Judge)
Campbell issued his Findings and Recommendations
approving the Division’s Proposed Modification Deci-
sion and Order Nunc Pro Tunc (Respondent’s Exhibit
23)), the parties’ youngest child, Michael, turned 18 on
October 16, 2007 (Respondent’s Exhibit 27).
Shortly after Michael’s 18th birthday, Mr.
McKinzy sent a letter to then Governor Matt Blunt, in-
quiring as to why Michal [sic] was not emancipated
(among other issues).
On March 6, 2008, the Director of the Family Sup-
port Division sent Mr. McKinzy a letter responding to
his inquiry and notifying him that he needed to file for
an emancipation in the judicial case in order to termi-
nate his child support obligations for Michael (Re-
spondent’s Exhibit 27).
Michaël was still a Junior in high school when he
turned 18; and when he graduated from high school in
May of 2009, he was 19.
As such, Respondent notified the DCSE that
Michael was no longer in school, and the Division be-
gan administrative emancipation proceedings based
thereon.
App. 48

Unfortunately, the DCSE Technician who received


the Respondent’s Affidavit of Termination was appar-
ently unaware that the administrative/paternity (02-
MC201872) and dissolution (02-FC200809) cases were
consolidated on December 5, 2007; and further, that all
future pleadings, proceedings, and other case activity
was to be filed in and processed under the 02-FC
200809 heading and any appropriate sub-cases
thereto.
Initially, the DCSE mistakenly tried to emanci-
pate Michael in the old administrative case, but when
the Petitioner brought this mistake to their attention
via several letters to the DCSE and other state offi-
cials, the Division eventually processed the Respond-
ent’s Affidavit of Termination in the proper case.
However, Michael’s administrative emancipation
from the January 14, 2008 judicial Modification Judg-
ment (in case number 02-FC200809) was not finalized
until February 11, 2011.
Michael’s first emancipation (on February 11,
2011) was pursuant to the provisions of RSMo. Sec-
tion 452.340.12(2), which provides, in pertinent part:
“12. The obligation of a parent to make child sup-
port payments may be terminated as follows:
(2) The obligation shall be deemed termi-
nated without further judicial or administra-
tive process when the parent receiving child
support furnishes a sworn statement or affi-
davit notifying the obligor parent of the child’s
App. 49

emancipation in accordance with the require-


ments of subsection 4 of section 452.370, and
a copy of such sworn statement or affidavit is
filed with the court which entered the order
establishing the child support obligation, or
the family support division for an order en-
tered under section 454.470.”
Apparently still unaware that Michael has al-
ready been emancipated in both the administrative
and judicial cases over four years earlier, on June 11,
2015, Mr. McKinzy attempted to emancipate Michael a
second time (also pursuant to the provisions of RSMo.
Section 452.340.12(2)); he did so by filing an Affidavit
of Termination of Child Support (Respondent’s Exhibit
54).
This Affidavit did not seek Michael’s emancipation
retroactive to his 18th birthday; instead, Petitioner
merely asserted that Michaël was now self-supporting.
Further, Mr. McKinzy mistakenly filed his Affida-
vit for Termination of Child Support in the old admin-
istrative case (02MC201872).
On September 2, 2015, before the Respondent
had been served with his Affidavit for Termination of
Child Support of June 11, 2015, the Petitioner filed his
“Motion to Modify and Motion for Declaratory Judg-
ment,” which was designated as sub-case number
02-FC200809-04.
On September 22, 2015, Respondent was served
with the pro se Affidavit for Termination of Child
App. 50

Support Mr. McKinzy filed on June 11, 2015 (in case


02MC201872).
On December 7, 2015, when Ms. Gaston attempted
to file her Answer to Mr. McKinzy’s Affidavit of Termi-
nation of Child Support of June 11, 2015, she learned
that Mr. McKinzy had filed it in the wrong case.
The next day, on December 8, 2015, Respondent
filed her Answer (Respondent’s Exhibit 79) to Mr.
McKinzy’s Affidavit of Termination of Child Support of
June 11, 2015, wherein she agreed that the parties’
youngest child was emancipated – and she filed it in
the correct case (02-FC200809-04).
In addition to her Answer, on December 8, 2015,
Respondent also filed her own Affidavit for Termina-
tion of Child Support pursuant to RSMo. Section
452.340.12(2) in the judicial case (Respondent’s Ex-
hibit 79).
Further, on December 8, 2015, Ms. Gaston also
filed a pro se pleading in which she stated that around
October 1, 2009, she sent the Division an Affidavit ask-
ing them to emancipate Michael; her pro se pleading
also asked this Court to credit Mr. McKinzy for any
child support showing owed from June 1, 2009 forward
(in the total amount of $10,772.00) (Respondent’s Ex-
hibit 79).
On March 11, 2016, Ms. Gaston’s $10,772.00 Affi-
davit of Credit was processed and applied to Mr.
McKinzy’s Child Support Payment History (Respond-
ent’s Exhibit 13).
App. 51

Because Michael was already legally emancipated


(on February 11, 2011), neither this Court, nor the FSD
re-emancipated Michaël based on the parties’ 2015
emancipation Affidavits and other requests pursuant
to RSMo. Section 452.340.12(2).
However, due to Ms. Gaston’s $10,772.00 Affidavit
of Credit, all child support showing owed between
Michael’s “factual” date of majority and his February
11, 2011 legal emancipation was off-set, such that the
resulting amount of child support owed for Michael ac-
tually reflected the amount owed as of June 1, 2009
(the first day of the month immediately after Michael
graduated from high school), rather than the date of
his legal emancipation (February 11, 2011).

Conclusions of Law – Res Judicata


The doctrine of res judicata operates to bar any
claim previously litigated between the same parties.
In re Marriage of Evans, 155 S.W.3d 90, 96 (Mo.
App. 2004).
This doctrine is designed to prevent multiple law-
suits. Inc. v. Crestwood Commons Redevelopment
Corp., 998 S.W.2d 32, 42 (Mo. banc 1999); King
Gen. Contractors, Inc. v. Reorganized Church of
Jesus Christ of Latter Day Saints, 821 S.W.2d 495,
501 (Mo. banc 1991).
Res judicata is applicable when the following four
elements are present: (1) identity of the thing sued for;
(2) identity of the cause of action; (3) identity of the
App. 52

persons or parties to the action; and, (4) identity of the


quality or status of the person for or against whom the
claim is made. Romeo v. Jones, 86 S.W.3d 428, 432
(Mo. App. 2002).
Res judicata, or claim preclusion, prohibits a party
from bringing any previously-litigated claim and any
claim that, with the exercise of reasonable diligence,
should have been brought in the prior suit. Kesler v.
Curators, WD79703 slip op. at page 7 (4/18/17), cit-
ing, Kesterson v. State Farm Fire & Cas. Co., 242
S.W.3d 712, 715 (Mo. banc 2008).
This claim preclusion includes all rights of the
plaintiff to remedies or any other relief against the de-
fendant with respect to all or any part of the factual
events or transactions out of which the first cause of
action arose. Kesler at page 9.
For a subsequent claim on the same factual events
or transaction to be considered separate, there must be
new ultimate facts, as opposed to merely evidentiary
details, supporting any new claim for relief. Kesler at
page 9; Kesterson, 242 S.W.3d at 716.
To constitute “new ultimate facts”, the facts must
be unknown to parties or yet-to-occur at the time of the
first action. Kesler at page 9.
For res judicata to bar subsequent claims, it is not
necessary that all currently-pending claims or factual
allegations were actually litigated or even addressed
during the prior case. Kesler at page 9.
App. 53

Further, the concept of a “cause of action” does not


refer to the title of the pleadings or the individual stat-
ute or legal basis underlying the pleadings or support-
ing the relief requested. Barkley v. Carter Cnty.
State Bank, 791 S.W.2d 906, 912 (Mo. App. S.D.
1990).
It is not necessary that the prior and current legal
causes of action be identical; instead, the claims need
only to have arisen out of the same act, contract, or
transaction. Chesterfield Village, Inc. v. City of
Chesterfield, 64 S.W.3d 315, 318-19 (Mo. banc
2002); Jordan v. Kansas City, 929 S.W.2d 882, 886
(Mo. App. W.D. 1996).
Elements (3) and (4) arc present in the McKinzy
matter because the Petitioner and the Respondent in
the present case were also the Petitioner and Respond-
ent in 2007-08 administrative emancipation / modifi-
cation case; and, as in the 2007-08 administrative
emancipation case, the Petitioner was the party seek-
ing to emancipate the parties’ children and to termi-
nate his child support obligations.
Element (1) is present because in the current and
prior cases, the Petitioner asked this Court to retroac-
tively emancipate all four of his children and to termi-
nate his child support obligations for each child
commensurate with their emancipation dates. See,
e.g., Palmore v. City of Pacific, 393 S.W.3d 657, 666
(Mo. App. E.D. 2013), (wherein a second garnishment
action was barred after the initial garnishment was
unsuccessful ((even though the second case specified a
App. 54

different legal basis)), because both actions sought to


garnish proceeds to satisfy the same underlying tort
judgment and the thing sued for in both garnishment
actions was monetary damages arising out of the same
set of facts).
Element (2) is also present because the “identity
of a cause of action” is defined as “the underlying facts
combined with the law, giving a party a right to a rem-
edy of one form or another based thereon.” Williams
v. Fin. Plaza, Inc., 78 S.W.3d 175, 183 (Mo. App.
W.D. 2002).
Both the 2008 emancipation / modification case
and the Petitioner’s pending-pleadings address the
retroactive emancipation of the parties’ three older
children and the retroactive termination / modification
of the Petitioner’s child support obligations based
thereon.
Because the body of facts necessary to adjudicate
the Petitioner’s current and prior emancipation and
child support termination requests regarding the par-
ties’ three older children are the same, element (2) is
satisfied.
Both the 2015 emancipation by affidavit / child
support termination matter and the Petitioner’s pend-
ing-pleadings address the retroactive emancipation of
the parties’ youngest child and the retroactive termi-
nation of the Petitioner’s child support obligations
based thereon.
App. 55

Because the body of facts necessary to adjudicate


the Petitioner’s current and prior emancipation and
child support termination requests regarding the par-
ties’ youngest child are the same, element (2) is satis-
fied.

Conclusions of Law – Collateral Estoppel


Collateral estoppel, or issue preclusion, bars re-
litigation of issues that were necessarily decided in a
prior proceeding. Taylor v. Compere, 230 S.W.3d 606,
611 (Mo. App. 2007).
Unlike res judicata, collateral estoppel applies to
issues that are being re-litigated, even when the prior
lawsuit raised a different cause of action. Shores v.
Express Lending, 998 S.W.2d 122, 126 (Mo. App.
1999).
Collateral estoppel: does not require the identity of
claims; may even be asserted by strangers to the orig-
inal action (Stine v. Warford, 18 S.W.3d 601, 606
(Mo. App. 2000)); and, it prevents a party from litigat-
ing issues that were either argued or decided directly
or indirectly as part of a prior case. Shores, 998
S.W.2d at 126.
In determining whether collateral estoppel ap-
plies, this Court must consider whether: (1) an issue
decided in the prior case is presented in the present
action; (2) the prior suit resulted in a final judgment
on the merits; (3) the party against whom the doctrine
is asserted participated as a party to the prior
App. 56

adjudication; and (4) the party against whom collateral


estoppel is asserted had a full and fair opportunity to
litigate the issue. State v. Polley, 2 S.W.3d 887, 893-
94 (Mo. App. 1999).
Factors (1) and (3) are essentially the same as
their corresponding counterparts in a res judicata
analysis, so the Respondent incorporates the above cor-
responding res judicata arguments herein; and as is
set forth above in more detail, the parties are the same
in both matters, and the Petitioner seeks the retroac-
tive re-emancipation of his children and the termina-
tion of his commensurate child support obligations in
both cases.
As to factor (4), the Petitioner had a full and fair
opportunity to litigate any and all of the emancipation
and modification / termination-related requests in the
underlying 2007-08 modification matter in that: he is
the one who requested the administrative emancipa-
tion of his three older children and retroactive termi-
nation of his child support obligations based thereon;
he participated throughout the administrative pro-
ceedings and during the administrative hearing; he
filed and this Court considered the Petitioner’s numer-
ous judicial review and other trial court level plead-
ings; and, the Petitioner sought appellate review of the
2007-08 case-related issues when he presented them
to the Western District Court of Appeals, the Missouri
Supreme Court (twice), and four other Federal District
and Appellate Courts.
App. 57

Lastly, factor (2) is satisfied in that the 2007-08


administrative emancipation, child support termina-
tion and modification case ultimately resulted in a fi-
nal judgment on the merits and withstood appellate
review.
The Petitioner’s request to re-emancipate of his
four children retroactive to each child’s 18th birthday
is Denied.
The Petitioner’s request to retroactively terminate
his child support obligations for each child commensu-
rate with their re-emancipations is Denied.
The Respondent’s request to dismiss those por-
tions of the Petitioner’s Motion to Modify and Motion
for Declaratory Judgment relating to the Petitioner’s
first and second requests for relief because they are
barred by the doctrines of Res Judicata and Collateral
Estoppel is Granted.

Petitioner’s Motion to Terminate Maintenance


The November 14, 2002 Dissolution Judgment es-
tablished a modifiable maintenance obligation in favor
of the Respondent in the amount of $200.00 per month,
beginning on October 15, 2002.
On September 2, 2015, the Petitioner filed his Mo-
tion to Modify and Motion for Declaratory Judgment,
which in paragraph 6 of his prayer for relief, asked this
Court to terminate the Petitioner’s maintenance obli-
gations to the Respondent – retroactive to the date of
service.
App. 58

On May 18, 2016, Respondent filed her Waiver of


Personal Service as to the Petitioner’s Motion to Mod-
ify of September 2, 2015.
On June 20, 2016, the Respondent filed her An-
swer to the Petitioner’s Motion and her three Cross-
Motions for relief, wherein she asked this Court to
deny the Petitioner’s request to terminate his mainte-
nance obligations, and/or in the alternative, to reduce
her prospective maintenance obligations to $1.00 per
month.
An award of maintenance “may be modified only
upon a showing of changed circumstances so substan-
tial and continuing as to make the terms unreasona-
ble.” RSMo. Section 452.370.1.
The party requesting a modification of mainte-
nance bears the burden of establishing the terms of the
prior decree have subsequently become unreasonable.
Rustemeyer v. Rustemeyer, 148 S.W.3d 867, 870
(Mo. App. E.D. 2004).

Petitioner’s Ability to Continue to Pay


Maintenance of $200.00 per Month
The Petitioner’s Motion to Modify alleged three
substantial and continuing changes of circumstances
warranting modification, including that the Peti-
tioner’s earning capacity shows that he does not have
the present ability to pay maintenance.
Pursuant to the provisions of RSMo Section
452.335.2, particularly sub factor (8), in order to be
App. 59

successful on this basis, the Petitioner had to adduce


evidence sufficient to prove that he is presently unable
to both provide for his own reasonable needs and to
continue to pay $200.00 per month in maintenance to
the Respondent. See, Barden v. Barden, 463 S.W.3d
799, 804 (Mo. App. E.D. 2015).
During trial, the Petitioner failed to introduce any
evidence regarding his current necessary monthly ex-
penses; however, the Respondent provided said evi-
dence via the Modification Income and Expense
Statement of Petitioner (Respondent’s Exhibit 60).
During cross-examination, the Petitioner testified
extensively about both the typewritten and hand-writ-
ten monthly expense-related entries on Respondent’s
Exhibit 60.
Based on the testimonial and documentary evi-
dence adduced, this Court finds that the Petitioner’s
current reasonable expenses average between $2,030.00
and $2,500.00 per month.
The Petitioner also testified extensively about
both the typewritten and hand-written income-related
entries on Respondent’s Exhibit 60; and as further ev-
idence of the Petitioner’s current monthly income, the
Respondent offered: the Petitioner’s year-to-date pay
stubs (Respondent’s Exhibit 42); a copy of the Peti-
tioner’s 2015 year end pay summary with correspond-
ing handwritten calculations (Respondent’s Exhibit
53); and, the Petitioner’s pay statement showing all in-
come earned during the first half of calendar year 2016
App. 60

with corresponding handwritten calculations (Re-


spondent’s Exhibit 58).
Based on the testimonial and documentary evi-
dence adduced; this Court finds that the Petitioner’s
current gross income averages about $5,000.00 per
month, and his take-home pay averages about
$2,750.00 per month.
In addition, the Petitioner testified that the
monthly expenses set forth on Respondent’s Exhibit 60
reflect not only his personal monthly expenses, but ra-
ther, the total household expenses both he and his cur-
rent wife incur – including expenses exclusively
related to his current wife’s automobile, cell phone, etc.
The Petitioner’s current wife also testified, and she
confirmed that she presently works and she brings ad-
ditional income into the Petitioner’s household each
month; and, pursuant [sic] Respondent’s Exhibit 60,
the Petitioner even acknowledges that his current wife
earns at least $800.00 per month.
The Petitioner’s average monthly take-home pay
exceeds his average monthly expenses, such that even
after the Petitioner provides for his own needs and he
satisfies his $200.00 maintenance obligation to the Re-
spondent, he still has money left over every month –
even without accounting for the additional income pro-
vided each month by the Petitioner’s current wife.
Further, the Petitioner has several financial assets
aside from his monthly income, including: three auto-
mobiles, a life insurance policy with a present cash
App. 61

value of $200,000.00, several businesses and other


business ventures, and two homes in Jackson County
Missouri; these assets were evidenced by the the [sic]
Petitioner’s own testimony, by his own Modification
Statement of Assets and Debts of Petitioner (Respon-
dent’s Exhibit 6), and pursuant to the Petitioner’s
Jackson County Property Account Summaries (Re-
spondent’s Exhibit 43).

Respondent’s Current Reasonable Monthly Needs


and
The Respondent’s Current Property and Assets
Next, the Petitioner alleged that the Respondent
has sufficient property to provide for her reasonable
needs; and as such, she no longer needs $200.00 per
month in maintenance.
Necessarily, prior to directly addressing the suffi-
ciency of the Respondent’s current property holdings
and financial assets, the Petitioner had to adduce evi-
dence sufficient to establish the Respondent’s current
monthly expenditures and the reasonableness thereof.
Respondent provided evidence via the multiple
Modification Income and Expense Statements she in-
troduced into evidence, including her: Combined
Monthly Average – Full Year Income and Expense
Statement (Respondent’s Exhibit 46), Average During
Summer School Income and Expense Statement (Re-
spondent’s Exhibit 48), Average During the School Va-
cations Income and Expense Statement (Respondent’s
Exhibit 47), and her Average During Full-Time. School
App. 62

Year Income and Expense Statement (Respondent’s


Exhibit 49).
On each of the Respondent’s (4) Income and Ex-
pense Statements, the sections outlining her average
monthly expenses are identical; i.e. $2,987.00 monthly.
The Respondent testified extensively about the
nature, amounts, necessity, and reasonableness of the
various monthly expenses set forth on her Income and
Expense Statements, and there was no challenge to the
reasonableness of these monthly expenses.
Next, the Petitioner had to adduce evidence prov-
ing both the existence, nature and value of the Re-
spondent’s current financial assets, and that the
Respondent’s current properly and other assets are
sufficient to provide for her present reasonable
monthly needs.
During trial, the Petitioner offered the Modifica-
tion Statement of Assets of Respondent (Petitioner’s
Exhibit 163).
Rather than supporting the Petitioner’s position,
Petitioner’s Exhibit 163 is detrimental to the Peti-
tioner’s case; specifically, Petitioner’s Exhibit illus-
trates: that the Respondent has less than $2000 in
total assets; that she owns no real estate; that she has
no retirement benefits; and, that she doesn’t even own
a car.
In fact, the Respondent’s only substantial asset
appears to be the delinquent child support and
App. 63

maintenance she hopes to eventually recover from the


Petitioner.
Petitioner’s Exhibit 163 also shows that the Re-
spondent’s debts substantially exceed her assets.
The Petitioner also offered two of the Respondent’s
UMB Bank statements from the first part of 2016 (Pe-
titioner’s Exhibits 164 and 165).
These two individual bank statements showed
that the Respondent had surplus funds in her checking
account in two different months.
The Petitioner argued that the Respondent could
utilize those extra funds to support herself; and as
such, she longer required maintenance from the Peti-
tioner.
However, when the Petitioner questioned the Re-
spondent regarding these surplus funds, she testified
that although those two particular bank statements
showed a surplus, she infrequently has excess funds
(in her bank account or otherwise) at the end of any
given month.
Respondent also testified that the additional
Funds evidenced by Petitioner’s Exhibits 164 and 165
have long since been utilized.
When the Petitioner asked the Respondent what
she used that money for, she testified that she provided
assistance to the parties’ adult daughter and her chil-
dren (the parties’ grandchildren).
App. 64

The Respondent testified that the excess funds in


her account were only there because during the
months covered by the two bank statements, and for
several months prior thereto, the Respondent received
an extra $1,025 per month by virtue of the child sup-
port arrearage Income Withholding Order then in ef-
fect against the Petitioner’s wages (Respondent’s
Exhibit 52).

Respondent’s Current Employment and Earnings


Lastly, the Petitioner alleged that the Respondent
is presently able to support herself through appropri-
ate employment; and as such, she no longer needs
$200.00 per month in maintenance.
To prevail on this basis, the Petitioner had to:
(1) adduce evidence regarding the Respondent’s cur-
rent employment situation and her earnings there-
from; and, (2) prove that the Respondent’s current
earnings are sufficient to provide for her current rea-
sonable monthly expenses.
The Petitioner’s evidence regarding the first prong
focused exclusively on the fact that the Respondent’s
income increased between 2002 and 2015.
The Petitioner relied upon page 4 of Respondent’s
Exhibit 46, wherein the Respondent specifies that at
the time of the entry of the Dissolution Judgment in
2002, her gross monthly income was $1,627.00.
The Petitioner also relied upon the Respondent’s
2015 W-2 (Petitioner’s Exhibit 166), which shows that
App. 65

the Respondent’s 2015 gross income was $33,510.22


(which equates to an average gross monthly income of
$2,792.52).
Also pursuant to Petitioner’s Exhibit 166, after de-
ducting the $8,068.36 withheld for state, federal, local,
Social Security, and Medicare taxes, the Respondent’s
2015 take-home pay was $25,441.64 (which equates to
an average monthly net income of $2,120.15).
The Petitioner argued that because the Respond-
ent’s average gross monthly income increased from
$1,627 in 2002 to $2,792 in 2015, his maintenance ob-
ligation should be terminated, because the amount of
the increase in the Respondent’s wages exceeds
$200.00 per month.
The Respondent was employed as a bus driver
when the parties divorced in 2002, and she is still em-
ployed as a bus driver.
Between 2002 and 2015, a period of 13 years, the
Respondent’s average monthly income only increased
by approximately $90 each year (which equates to an
average increase of $0.51 per hour, per year).
Annual raises, cost-of-living increases, promo-
tions, etc. frequently result in incremental increases in
gross income; such increases are not only anticipated,
but expected.
The Court is mindful that to warrant modification
of a maintenance provision, the change in the recipi-
ent’s’ [sic] earnings or other financial circumstances
must have been unknown and unforeseeable at the
App. 66

time of the dissolution. Swartz v. Johnson, 192


S.W.3d 752, 755 (Mo. App. W.D. 2006) (quoting
Rustemeyer v. Rustemeyer, 148 S.W.3d 867, 870-71
(Mo. App. E.D. 2004)).
In addition to the Petitioner’s documentary and
testimonial evidence regarding the Respondent’s 2015
wages, the Respondent offered documentary and testi-
monial evidence regarding her more recent earnings.
Respondent’s Exhibit 46 (her Combined Monthly
Average – Full Year Income and Expense Statement)
outlines, in detail, her monthly gross wages, payroll de-
ductions, and her monthly take-home pay (updated
thru the first half of 2016).
According to Respondent’s Exhibit 46 and the Re-
spondent’s direct testimony, during the [sic] 2016, her
gross monthly wages dropped to approximately $2,300
per month; correspondingly, her net take-home pay per
pay period dropped to approximately $407 per week
(an average of $1,764 per month).
During cross-examination, the Petitioner asked
the Respondent why her average take-home pay
dropped from approximately $2,120 per month in 2015
to approximately $1,764 per month during 2016.
The Respondent testified that she [sic] been diag-
nosed with cancer in early 2016, and that she’d under-
gone extensive surgery and treatment; she also
testified that her extended illness impeded her ability
to work as many hours as she did in 2015.
App. 67

It is uncontroverted that the Respondent’s income


increased by more than $200 per month between 2002
and 2015; however, an increase in the income of an
obligee spouse does not independently justify modify-
ing or terminating maintenance. Winchester v. Win-
chester, 163 S.W.3d 57, 60 (Mo. App. S.D. 2005).
It is true that when an obligee spouse’s income has
increased but she still cannot meet her monthly needs,
no change in circumstances making the original award
unreasonable has occurred. Eaton v. Bell, 127 S.W.3d
690, 696 (Mo. App. W.D. 2004). However, in this case,
Respondent’s testimony is directly contrary to the
math as outlined above, when it comes to net pay and
monthly living expenses.
Respondent testified that her daughter and two (2)
grandchildren have resided with her for the past year
and a half, that her daughter is unemployed and does
not pay rent or assist in her own support or the support
of her two (2) children. Further, Respondent testified
that she was the sole provider for her daughter and
two (2) grandchildren. In addition, during the time pe-
riod of March 2016 to August 2016, Respondent also
supported her eldest son who had a health condition.
Lastly, Respondent testified that she sends her
mother money for her subsistance, approximating
$200.00 to $400.00 monthly and has been doing so for
the past three (3) years.
There is no question that the Respondent is hard
working and makes the most of her net income as she
supports herself and others.
App. 68

The Court finds that Respondent can meet her


reasonable monthly expenses without the continued
Court ordered maintenance from Petitioner.
In addition, as outlined hereinbelow Petitioner
will continue to owe Respondent a substantial arrear-
age including interest.
The Petitioner’s request to terminate his $200.00
per month maintenance obligation to the Respondent
is sustained retroactive to February 1, 2017.

Child Support and Maintenance Arrearages


Interest Owed Thereon
and
Payment Provisions
On June 20, 2016, the Respondent filed her Cross-
Motion and Incorporated Suggestions in Support of her
Request for This Court to Determine the Amount of
Child Support and Maintenance Arrears Owed by
the Respondent, to Assess and Enter a Judgment for
All Statutory Interest Accumulated Thereon, and to
Establish a Payment Schedule to Facilitate the Peti-
tioner’s-Satisfaction of All Arrears and the Statutory
Interest Accumulated Thereon.

Arrearages
RSMo. Section 454.520.5 provides that when a
child support and/or maintenance obligor disputes the
amount of arrearages owed or the payment history (as
set forth in the obligee’s payment history computation
App. 69

and/or as set forth on the Circuit Clerk’s detailed pay-


ment history report, this Court should hold a hearing
and decide the correct amount of child support and/or
maintenance arrearages owed, if any.
A dispute as to the existence and/or amount of
child support and/or maintenance arrearages owed by
the Petitioner to the Respondent existed in this case,
in that the Petitioner asserts that he owes no child sup-
port and/or maintenance arrearages, while the Re-
spondent’s payment history calculations and the
Family Support Division’s Detailed Payment History
Reports both show that the Petitioner owes substantial
child support and maintenance arrearages.
As such, the Respondent asked this Court to con-
duct a hearing, and based upon the evidence presented,
to enter a Judgment establishing the total amount of
child support and/or maintenance arrearages owed to
the Respondent by the Petitioner as of the date of trial.
On May 19, 2016, this Court conducted a hearing
regarding, in part, the status of the Interim Wage
Withholding Order and the approximate amount of
support arrearages owed by the Petitioner.
During this hearing, this Court received: Respond-
ent’s Exhibit 30 (a certified copy of this Court’s Pay-
ment Detailed History Report outlining all child
support and maintenance owed and/or paid in the ad-
ministrative 02MC201872 case between the order ef-
fective date of 7/15/2002 and 12/05/07 – when the
administrative case was consolidated into the dissolu-
tion case; Respondent’s Exhibit 15 (a certified copy of
App. 70

this Court’s Payment Detailed History Report outlin-


ing all child support and maintenance owed and/or
paid in the 02FC200809 dissolution case between
12/05/07 and 4/11/16); Respondent’s Exhibit 29 (a pay-
ment history outlining the $94,032.58 in child support
and maintenance payments paid or credited by or
on behalf of of [sic] the Petitioner in both the adminis-
trative and dissolution cases between 7/15/02 and
4/11/16); and, Respondent’s Exhibit 26, (a statement
and calculation which accurately delineates all child
support and maintenance payments owed in the ad-
ministrative and the dissolution cases between 7/15/02
and 4/13/16, accurately credits the Petitioner for all
payments against that amount).
During the January 9, 2017 trial, the Respondent
asked this Court to consider and rely upon the evi-
dence, testimony, and exhibits received in evidence
during the first hearing on May 19, 2016; this Court
granted the Respondent’s request.
As such, during the January trial, rather than re-
addressing and/or reintroducing the child support,
maintenance, payment and arrearage exhibits re-
ceived in evidence during the May hearing, the Re-
spondent simply updated her previously-admitted
exhibits in order to reflect all additional amounts owed
and/or paid between 4/13/16 and 1/3/17.
Accordingly, this Court received Respondent’s Ex-
hibit 77 (a statement and calculation which: accurately
delineates all additional current maintenance pay-
ments owed in the dissolution case between 4/13/16
App. 71

and 1/03/17, accurately credits the Petitioner for all ad-


ditional payments and credits made between 4/13/16
and 1/03/17, and which calculates the Petitioner’s re-
maining arrearages as of 1/3/17).
Pursuant to Respondent’s Exhibit 77, as of 1/9/17,
the Petitioner’s combined delinquent child support and
maintenance arrearages totaled $24,002.10.

Interest
Once this Court established the total amount of
child support and/or maintenance arrearages owed by
the Petitioner, the Respondent also asked this Court to
determine the total amount of interest owed on said
arrearages pursuant to RSMo. Section 454.520.3,
which provides, “(A)ll delinquent child support and
maintenance payments which accrue based upon judg-
ments of courts of this state entered on or after Sep-
tember 1, 1982, shall draw interest at the rate of one
percent per month.”
When a statute provides that interest must be
paid or received, this Court has no discretion to refuse
to award interest as directed by the statute. Bohac v.
Akbani, 29 S.W.3d 407 (Mo. App. E.D. 2000).
Respondent’s Exhibits 26 and 77 accurately set
forth the statutory interest accumulated on the Peti-
tioner’s maintenance and child support arrears at the
rate of 1% per month, per annum.
App. 72

As of 1/9/17, statutory interest in the total amount


of $52,230.46 had accumulated on the Petitioner’s de-
linquent child support and maintenance obligations.

Judgment and Payment Provisions


Accordingly, as of 1/9/17, the remaining principal
amount of maintenance and child support arrearages
($24,002.10), plus the statutory interest accumulated
thereon ($52,230.46), totaled $76,232.56.
A combined child support and maintenance ar-
rearage and interest Judgment is entered herein in fa-
vor of the Respondent, Carletha Gaston, and against
the Petitioner, Michael Eugene McKinzy Sr., in the
amount of $76,232.56.
It is this Court’s intention that this Judgment be
in the nature of the support of a minor child and that
it be considered non-dischargeable and denominated
as a domestic support obligation under Sections
523(a)(5) and (15) of the Bankruptcy Code, as
amended, and pursuant to RSMo. Section 314.430.
That the Petitioner shall pay the $76,232.56 Judg-
ment at the rate of $600.00 per month, until the
$76,232.56 Judgment has been paid in full.
In order to facilitate the timely payment of the
Petitioner’s arrearage Judgment payments in the
amount of $600.00 per month, the Petitioner shall ex-
ecute a voluntary income assignment with his present
employer within ten days of the date of this Judgment,
and in the event he changes employers, he must
App. 73

execute a voluntary income assignment in the total


amount of $600.00 per month within ten days of begin-
ning any new employment.
As long as Father makes his $600.00 per month
payments on time each month, this Court stays the ac-
cumulation of additional statutory interest.
Accordingly, this Court is not only giving the Peti-
tioner an opportunity to satisfy the arrearage Judg-
ment via reasonable monthly payments, but this Court
is also giving him the opportunity to do so without the
accumulation of any additional interest thereon.
However, the Petitioner is placed on notice that if
he fails to make a single one of his current mainte-
nance payments or his $600.00 per month arrearage
payments on time each and every month until the [sic]
paid in full, not only will the Respondent be able to re-
turn to this Court and ask that Petitioner be held in
contempt for his failure to comply with this Court’s
Judgment, but she will also be able to ask that any ad-
ditional statutory interest that would otherwise have
accumulated be assessed against the Petitioner.
WHEREFORE, IT IS HEREBY ORDERED,
ADJUDGED AND DECREED that this Court has
continuing and exclusive subject-matter jurisdiction
over the issues presented herein; personal jurisdiction
over the parties hereto; and, Jackson County is the ap-
propriate venue.
IT IS FURTHER ORDERED, ADJUDGED
AND DECREED that given the extensive prior and
App. 74

ongoing litigation between the parties, and the sub-


stantial amount of resulting documentation therefrom
maintained in this Court’s corresponding Case Rec-
ord(s) and Case File(s), this Court takes judicial notice
of, incorporates herein, and relies upon the Circuit
Court of Jackson County’s entire procedural and docu-
mentary Court Record(s) and Case File(s) regarding
these parties.
IT IS FURTHER ORDERED, ADJUDGED
AND DECREED that this Court’s June 27, 2017 Pro-
tective Judgment is incorporated herein by reference
as if set forth in its entirety.
IT IS FURTHER ORDERED, ADJUDGED
AND DECREED that all findings of fact, conclusions
of law, and judgments set forth in the June 27, 2017
Protective Judgment are integral to this Judgment
and are considered to be additional findings, conclu-
sions, and judgments supporting the factual and legal
determinations herein.
IT IS FURTHER ORDERED, ADJUDGED
AND DECREED that the Petitioner’s pleadings are
legally-insufficient to support or to establish a basis for
the declaratory relief sought by the Petitioner in his
requests for relief 1, 2, 3, 4, 5, 7, and 8.
IT IS FURTHER ORDERED, ADJUDGED
AND DECREED that the Respondent’s request to
dismiss the Petitioner’s requests for declaratory relief
1,2,3,4,5,7, and 8 for failure to properly plead and set
forth a cause of action is granted.
App. 75

IT IS FURTHER ORDERED, ADJUDGED


AND DECREED that the Petitioner’s Motion to Have
Admissions Deemed Admitted is Denied.
IT IS FURTHER ORDERED, ADJUDGED
AND DECREED that the Petitioner’s Motion for En-
try of a Default Judgment Pursuant to Missouri Su-
preme Court Rule 61.01(b)(2) is Denied.
IT IS FURTHER ORDERED, ADJUDGED
AND DECREED that the Petitioner’s Motion for
Summary Judgment Regarding Void Administrative
Child Support Order Entered in Title IV-D 40087059
on July 2, 2002 is Denied.
IT IS FURTHER ORDERED, ADJUDGED
AND DECREED that the Petitioner’s request for re-
emancipation of his children retroactive to each child’s
18th birthday is Denied
IT IS FURTHER ORDERED, ADJUDGED
AND DECREED that the Petitioner’s request to ret-
roactively terminate his child support obligations for
each child commensurate with their re-emancipations
is Denied.
IT IS FURTHER ORDERED, ADJUDGED
AND DECREED that the Respondent’s request to
dismiss those portions of the Petitioner’s Motion to
Modify and Motion for Declaratory Judgment relating
to the Petitioner’s first and second requests for relief
because they are barred by the doctrines of Res Judi-
cata and Collateral Estoppel is Granted.
App. 76

IT IS FURTHER ORDERED, ADJUDGED


AND DECREED that the Petitioner’s request to ter-
minate his $200.00 per month maintenance obligation
to the Respondent is Granted retroactive to February
1, 2017.
IT IS FURTHER ORDERED, ADJUDGED
AND DECREED that a combined child support and
maintenance arrearage and interest Judgment is en-
tered herein in favor of the Respondent, Carletha
Gaston, and against the Petitioner, Michael Eugene
McKinzy Sr., in the amount of $76,232.56, through
January 9, 2017.
IT IS FURTHER ORDERED, ADJUDGED
AND DECREED that this Judgment be in the nature
of the support of a minor child and that it be considered
non-dischargeable and denominated as a domestic
support obligation under Sections 523(a)(5) and (15)
of the Bankruptcy Code, as amended, and pursuant
to RSMo. Section 314.430.
IT IS FURTHER ORDERED, ADJUDGED
AND DECREED that commencing on September 15,
2017, and on the 15th day of the month each month
thereafter, the Petitioner shall pay the $76,232.56
Judgment at the rate of $600.00 per month, until the
$76,232.56 Judgment has been paid in full.
IT IS FURTHER ORDERED, ADJUDGED
AND DECREED that in order to facilitate the timely
payment of the Petitioner’s arrearage Judgment pay-
ments in the amount of $600.00 per month, the Peti-
tioner shall execute a voluntary income assignment
App. 77

with his present employer within ten days of the date


of this Judgment, and in the event he changes employ-
ers, he must execute a voluntary income assignment in
the total amount of $800.00 per month within ten days
of beginning any new employment.
IT IS FURTHER ORDERED, ADJUDGED
AND DECREED that as long as Father makes his
$600.00 per month payments on time each month, this
Court stays the accumulation of additional statutory
interest.
IT IS FURTHER ORDERED, ADJUDGED
AND DECREED that the Petitioner is placed on no-
tice that if he fails to make a single one of his current
maintenance payments or his $600.00 per month ar-
rearage payments on time each and every month until
the [sic] paid in full, not only will the Respondent be
able to return to this Court and ask that Petitioner be
held in contempt for his failure to comply with this
Court’s Judgment, but she will also be able to ask that
any additional statutory interest that would otherwise
have accumulated be assessed against the Petitioner.
IT IS FURTHER ORDERED, ADJUDGED
AND DECREED that each party shall pay their re-
spective attorney fees incurred herein.
IT IS FURTHER ORDERED, ADJUDGED
AND DECREED that all previous Judgments entered
or adopted by this Court are hereby modified to con-
form with the Findings, Judgments and Orders con-
tained herein; any provisions inconsistent with this
App. 78

Judgment are superseded; and, any provisions not ad-


dressed by this Judgment remain in effect.
SO ORDERED on this 11th day of August 2017.
/s/ David P. Kimminau
HON. DAVID P. KIMMINAU,
COMMISSIONER

The parties are hereby notified that the foregoing


Findings and Recommendations have been entered
this date by the Commissioner and all papers relative
to the proceedings or case, together with the Finding
and Recommendations shall become the judgment of
the Court upon adoption by Order of the Judge. The
parties are further notified that a motion for re-hear-
ing may be filed within fifteen days after the mailing
of the Notice of Filing of Judgment. If a motion for re-
hearing is not ruled on within forty-five days after said
motion is filed, the motion is overruled for all purposes.

JUDGMENT AND ORDER ADOPTING


COMMISSIONER’S FINDINGS
AND RECOMMENDATIONS
It is hereby ordered that the Findings and Recom-
mendations entered herein are adopted as a Judgment
of this Court.
8-11-2017 /s/ Patrick W. Campbell
Date JUDGE

[Notice Of Filing Of Judgment Omitted]