Opinion
No. WD 64812
February 7, 2006
DISSENTING OPINION
I disagree with the majority's characterization of the phrase "at the beginning of each semester" in section 452.340.5, as it relates to a college student's responsibility to provide timely school information in order to continue parental support. At the core of the majority's opinion is a desire to read flexibility into this phrase to address individual circumstances. Not only will this cast uncertainty over the legislature's directive, but it is also both unnecessary to satisfy the majority's desire and contrary to the intent of the legislature.
"It is the responsibility of the Court `to ascertain and effectuate the intent of the General Assembly, and in so doing, [the Court should] look first to the language of the statute and the plain and ordinary meaning of the words employed.'" State ex rel. Metro. St. Louis Sewer Dist. v. Sanders, 807 S.W.2d 87, 88 (Mo. banc 1991) (quoting Alexander v. State, 756 S.W.2d 539, 541 (Mo. banc 1988)); see also § 1.090 ("Words and phrases shall be taken in their plain or ordinary and usual sense[.]"). "That meaning is generally derived from the dictionary." Abrams v. Ohio Pac. Express, 819 S.W.2d 338, 340 (Mo. banc 1991). Courts may look beyond the plain and ordinary meaning of a statute when its meaning is ambiguous. Angoff v. M M Mgmt. Corp., 897 S.W.2d 649, 653 (Mo.App.W.D. 1995). "An ambiguity means `duplicity, indistinctness or uncertainty of meaning of an expression. . . .'" J.B. Vending Co. v. Dir. of Revenue, 54 S.W.3d 183, 188 (Mo. banc 2001) (quoting Lehr v. Collier, 909 S.W.2d 717, 721 (Mo.App.S.D. 1995)).
I consulted WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 198 (1993), and found the dictionary to be of limited use in this case because the definition of "beginning" is wide-ranging. The first entry is: "the point at which something begins to exist." Id. In the context of this case, one could conclude that this means the first day of class because that is when the semester begins to exist. However, the next entry, "the first part: initial section or division," is much less precise, as are a number of other entries. Id.
A reasonable and commonsense reading of the phrase "at the beginning of each semster" as used in section 452.340.5 is that it means the first day of class. However, the phrase could plausibly be interpreted in more than one way. When a statute's language is ambiguous, we consider extrinsic matters including, "a statute's history, surrounding circumstances and objectives to be accomplished through the statute." Riordan v. Clarke, 8 S.W.3d 182, 184 (Mo.App.W.D. 1999). The intent of the legislature is our "`ultimate guide.'" Long v. Interstate Ready-Mix, L.L.C., 83 S.W.3d 571, 577 (Mo.App.W.D. 2002) (quoting Lincoln Indus., Inc. v. Dir. of Revenue, 51 S.W.3d 462, 465 (Mo. banc 2001)). Applying these guidelines, it is apparent the legislature intended to convey certainty in its language used in section 452.340.5, not vagueness or flexibility.
I believe the legislature intended the phrase "at the beginning of each semester" to mean the first day of the semester as published by the school. This means that the student must submit the required documentation to each parent on or before the first day of class. Consequently, in this case, John should have submitted the documentation to his parents on or before August 23, 2003.
John did not provide the required documentation until he finally submitted it to Mr. Brittain's lawyer in response to a discovery request, which John concedes was after the first day of the semester. The majority points out that the documentation was submitted only one day late. But what if it was submitted seven days late or ten days late? I do not believe that the legislature intended for its directive to be subject to such a vague and discretionary interpretation resulting in confusion and, as the majority puts it, "further litigation over exactly what constitutes `the beginning of each semester.'" This "we know it when we see it" approach attaches no meaning to the phrase and offers litigants little more than a game of chance. The majority acknowledges that the phrase in question is ambiguous, but never attempts to define the phrase beyond saying it should be "applied with flexibility." Adopting such a nebulous concept offers perplexity rather than explanation. Side-stepping our responsibility to give meaning to the statutory language at issue creates the potential for many years of expensive litigation before any sort of useful guidance is provided to trial courts, attorneys, parents, and children.
The traditional tools of statutory construction receive light use by the majority. Instead, a fair measure of attention is given to "the world's great literature." The majority's citation to Marcel Proust and the highly quoted Sir Winston Churchill was interesting, but my curiosity regarding the intent of our legislature remained unsatisfied. Because Churchill once said "[i]t is a good thing for an uneducated man to read books of quotations," it is with some fear of making an admission that I note he also said "[t]he farther back you can look, the farther forward you are likely to see." Evaluating the past actions of our legislature helps us discern how it intended the phrase in question to be applied in the future.
The legislative history of section 452.340.5 reflects our legislature's ongoing efforts to tighten requirements and add certainty regarding the rights and responsibilities of parents and students. Initially, this section was much more broadly written. In 1988, our legislature enacted section 452.340.5 RSMo Cum. Supp. 1988, which read:
5. If the child is attending an institution of vocational or higher education, the parental support obligation shall continue until the child completes his education, or until the child reaches the age of twenty-two, whichever first occurs. If the child is attending such a school, the child or obligated parent may petition the court to amend the order to direct the obligated parent to make the payments directly to the child.
During the next ten years, a number of amendments added requirements that a student must meet for parental support to continue. Those amendments to section 452.340.5 include:
1989: The student must be enrolled in an institution of vocational or higher education not later than October first following graduation from a secondary school and must continue to attend such school. § 452.340.5, RSMo Cum. Supp. 1989.
1997: The student must "progress toward completion" of a secondary school program of instruction by enrolling in and completing" at least twelve hours of credit each term"; must achieve" grades sufficient to re-enroll"; and, "[t]o remain eligible for such continued parental support . . . shall submit to each parent" specific documentation showing courses enrolled in and completed, grades and credits received, and the courses and number of credits enrolled in for the upcoming term. § 452.340.5, RSMo Cum. Supp. 1997.
1998: The student must submit the required documentation to each parent "at the beginning of each semester." § 452.340.5, RSMo Cum. Supp. 1998.
"When the legislature amends a statute, it is presumed to have intended the amendment to have some effect." Wollard v. City of Kansas City, 831 S.W.2d 200, 203 (Mo. banc 1992). Prior to 1998, there was no statutory time frame or deadline within which the student was required to provide the required documentation to each parent. The 1998 addition of the phrase "at the beginning of each semester" was not added to increase flexibility, but, instead, to add certainty. If the language added flexibility, as the majority suggests, what was the meaning of the previous language? The progressive tightening of the requirements in section 452.340.5 reflects a clear intent to establish certainty for the student and parents in their responsibilities to each other. The majority's reading of the statute contradicts this legislative goal.
A major factor for the majority's desire to add a generous measure of flexibility to its interpretation of "at the beginning of each semester" seems to be a concern for the ability of courts to address "individual circumstances." While I do not intend to downplay such a concern, I think the majority's approach is unnecessary.
A solid pillar of law, both legislative and judicial, has been steadily constructed through the years to address individual circumstances without undercutting the legislature's desire for individual responsibility. In 1990, the legislature amended section 452.340.5 to state "[i]f the circumstances of the child manifestly dictate, the court may waive the October first deadline for enrollment." § 452.340.5, RSMo Cum. Supp. 1990. This concept of "manifest circumstances" has been fleshed out and defined in numerous appellate decisions. "Manifest circumstances include illness, physical disability, financial difficulty, or a parent's refusal to pay child support" or "`some other external factor that causes the child to be unable, as opposed to unwilling,' to complete the requirements of § 452.340.5." Pickens v. Brown, 147 S.W.3d 89, 92 (Mo.App.W.D. 2004) (quoting Harris v. Williams, 72 S.W.3d 621, 624 (Mo.App.E.D. 2002)). Applying a standard of manifest circumstances allows courts to separate out those students with real hardships from those who are attempting to flaunt the legislature's directives.
As directed by the 1990 amendment, the courts have applied the manifest circumstances analysis to late enrollments. However, since the early 1990's, courts have also extended the analysis to other areas of a student's noncompliance such as failure to comply with the requirement of continuous enrollment or failure to successfully complete the minimum credit hour requirement in a semester. This approach preserves a mandate for strict compliance while allowing for the consideration of individual injustice, i.e., certainty tempered with compassion. "[W]e are guided by the proposition that the General Assembly is presumed to be aware of existing declarations of law and the construction of existing statutes when it enacts a law on the same subject." State v. Haskins, 950 S.W.2d 613, 616 (Mo.App.S.D. 1997). Any disagreement with the expansion of the concept of manifest circumstances into other areas of section 452.340.5 undoubtedly would have been addressed by the legislature when it added "at the beginning of each semester" in 1998.
See, e.g., Harris, 72 S.W.3d at 624.
See, e.g., Pickens, 147 S.W.3d at 92-93; Mandel v. Eagleton, 90 S.W.3d 527, 531 (Mo.App.E.D. 2002).
There is yet another reason why the majority's position is contrary to legislative intent. It is clear from the language of section 452.340.5 that the legislature has placed the burden to do all things necessary to continue parental support not on parents, but on students, who are adults in the eyes of the law and, in many cases, are already in the workforce and directly receive the support payments. Section 452.340.5 makes it the student's responsibility to enroll on time, to continuously enroll in and complete a minimum number of credit hours a semester, and, at the beginning of each semester , to provide to each parent the required documentation detailed in the statute. The only way a parent can gain timely access to the documentation is for the student to provide it. The majority's approach would turn this responsibility on its head by placing the burden on parents to show prejudice due to a student's noncompliance with the documentation requirement. Introducing new concepts of prejudice or substantial compliance would result in the long and expensive development of a unique, stand-alone body of law addressing only the school documentation portion of the subsection. It is an unnecessary and counterproductive approach when the long-established consideration of manifest circumstances has worked well.
In stating that the phrase "at the beginning of each semester," which tells a student when to submit the information, is merely directory and not mandatory, the majority is removing timeliness as a reporting requirement of section 452.340.5, and is seriously undermining the ability of a parent to receive meaningful and useable information. This interpretation ignores the context and the clear intent of the language. It is also an abrupt departure from previous cases deciding the issue. See Winsdor v. Windsor, 166 S.W.3d 623, 633 (Mo.App.W.D. 2005) (transcript submitted in mid-September for the fall 2002 semester was untimely under section 452.340.5); Morton v. Myers, 21 S.W.3d 99, 107-08 (Mo.App.W.D. 2000) (documentation provided in December 1998 for the fall 1998 semester was not submitted at the beginning of the semester); Scott v. Clanton, 113 S.W.3d 207, 214 (Mo.App.S.D. 2003) (failure to provide documents "prior to each academic term" did not meet the time requirements of the statute).
It should also be noted that this is not an issue of emancipation under section 452.340.5, i.e., where a student fails to enroll by October first or fails to earn the required credit hours each semester, thereby forfeiting support forever. If a student fails to provide the necessary documentation for one semester, he or she may qualify for support again by complying with the statute the next semester. Ricklefs v. Ricklefs, 111 S.W.3d 541, 544 (Mo.App.W.D. 2003).
In summary, I believe the legislature intended to fix a definite and certain deadline for students to provide their parents with the documentation required by section 452.340.5. I interpret the phrase "at the beginning of each semester" in section 452.340.5 to mean on or before the first day of the semester as published by the school. This easily understood deadline would be balanced with the consideration of any manifest circumstances that would cause injustice in a particular situation.
John did not provide the required documentation "at the beginning" of the semester. Hence, I would reverse and remand to give Ms. Owsley the opportunity to have the trial court consider whether the documentation provided complied with the statute and whether manifest circumstances can explain why the information was provided late.
I concur with the rest of the majority's opinion.