Opinion
No. 22228
September 29, 1998
APPEAL FROM CIRCUIT COURT OF REYNOLDS COUNTY, HON. WILLIAM CAMM SEAY.
AFFIRMED.
James M. McCoy, for appellant.
Crow and Parrish, JJ., concur.
The Division of Child Support Enforcement issued an order seeking to modify a child support award of the Circuit Court of Reynolds County. After it was filed with the Circuit Clerk of Reynolds County, no judicial action was taken on it until after Respondent moved to strike it. Thereafter, the trial court entered "Judgment and Order," which determined "that the agency decision be set aside as not being judicially approved." As we view this matter, it turns on whether the decision in Chastain v. Chastain , 932 S.W.2d 396 (Mo. banc 1996), applies to nullify the order. Chastain was decided on October 22, 1996. The order modifying the child support order was dated December 6, 1995, and filed with the circuit clerk on January 26, 1996.
Chastain held unconstitutional the portion of Section 454.496.6, RSMo 1994, providing that the court in which the order was filed shall be deemed to have made a written finding and approved the administrative order "if no action is taken by the court within forty-five days of the filing of the administrative order with the court, and no petition for judicial review has been filed." Chastain states that as the statute made judicial review mandatory, "it cannot also erect a default procedure that assumes judicial review by the mere passage of time." 932 S.W.2d at 400. This provision was held to be in violation of Article V, Section 18 of the Missouri Constitution. The Court summarized its holding thusly: "[T]he constitution does not permit the General Assembly to require, then pretermit, judicial review of an administrative modification of a child support order if a court fails to approve the administrative order within forty-five days." 932 S.W.2d at 397.
For us to determine that Chastain does not apply and that the agency order is effective would be determining that the order was valid, or at least voidable but not void, because Respondent did not seek judicial review of the administrative decision. Here, we have an administrative attempt to modify a judicial order by a procedure that violates the Missouri Constitution. In our view, that makes the administrative attempt at modification void. If it is necessary to determine the retroactivity of Chastain , we determine that it applies to attempts at modification prior to its date.
At one time it was the law in this state that an unconstitutional statute had no effect from the date of its enactment. State ex rel. Cardinal Glennon Mem. Hosp. for Children, Relator, v. Gaertner , 583 S.W.2d 107, 118 (Mo. banc 1979). Now this absolute rule is rejected "to the extent that it causes injustice to persons who have acted in good faith and reasonable reliance upon a statute later held unconstitutional." Id. Where a decision could produce substantially inequitable results if applied retroactively, it is applied only prospectively. In re Extension of Boundaries of Glaze Creek Sewer District , 574 S.W.2d 357, 364-65 (Mo. banc 1978). See also Sumners v. Sumners , 701 S.W.2d 720, 722-24 (Mo. banc 1985) (discussion of general elements "to the retroactive/prospective issue").
Here, we believe that anyone trained in the law who studied the issue would have a reasonable suspicion as to the validity of the procedure held unconstitutional in Chastain. Any reliance placed on such a provision should have been with the knowledge that it could be nullified. Parties do not meet the threshold for prospective only application unless they reasonably and in good faith rely upon an unconstitutional statute. Akin v. Missouri Gaming Comm'n , 956 S.W.2d 261, 265 (Mo. banc 1997).
The judgment is affirmed.