Opinion
No. ED 82682
December 2, 2003
Appeal from the Circuit Court of St. Louis County, Honorable John R. Essner.
Donald Placke, St. Louis, Missouri, Appellant acting pro se.
Kathryn P. Taylor, St. Louis, Missouri, for respondent State of Missouri.
Simone A. Haberstock, St. Louis, Missouri, for respondent Sheetz.
Before Glenn A. Norton, P.J., Kathianne Knaup Crane, J. and Mary K. Hoff, J.
MEMORANDUM SUPPLEMENTING ORDER AFFIRMING JUDGMENT UNDER RULE 84.16(b)
This memorandum is for the information of the parties and sets forth the reasons for the order affirming 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 TRANSFER TO THE SUPREME COURT, A COPY OF THIS MEMORANDUM SHALL BE ATTACHED TO ANY SUCH MOTION.
The parties are familiar with the evidence, and we will not recite it here.
Placke's brief fails to comply with Rule 84.04 in that it does not "state concisely" the legal reasons for his alleged claims of error and does not "explain in summary fashion" why his reasons support the claims of reversible error. See Rule 84.04(d)(2). Arguments in the brief that are not fairly encompassed in the points relied on or issues raised in the points that are not properly supported are not preserved for review, and we will not review them. See Rule 84.04(e); see Mello v. Giliberto, 73 S.W.3d 669, 672 (Mo. App. E.D. 2002).
On appeal from an administrative agency decision in a contested case, we review the findings and decision of the agency and not those of the circuit court. Hanford v. City of Arnold, 49 S.W.3d 707, 710 (Mo. App. E.D. 2001). In reviewing an administrative agency decision, the evidence is viewed in its entirety together with all legitimate inferences therefrom, in a light most favorable to the agency. Id. Judicial review of the decisions of an administrative agency is governed by sections 536.100 to 536.140 RSMo 2000. A. Standing
All further statutory references are to RSMo 2000.
In his first point on appeal, Placke claims that the administrative hearing decision is erroneous because it determined that the exact amount of Placke's arrearage was not an issue over which the hearing officer had jurisdiction. In his second point on appeal, Placke claims that the administrative hearing decision was incorrect in determining that Placke's daughter was not emancipated. Placke does not have standing to appeal these issues.
The issue for determination in the administrative proceeding was whether the Division had the statutory authority to enter an income withholding order on November 6, 2001 and whether the amounts ordered to be withheld were correct. The hearing officer found that as of November 6, 2001, Placke "owed no current child support" and that Placke's daughter was not emancipated. The hearing officer further determined that the Missouri statutes did not authorize the income withholding order because Placke's daughter had not complied with the notification requirements of section 452.340.5.
Only a person who is "aggrieved" by a final decision in a contested case has a right, or standing, to judicial review. Section 536.100. "A party is aggrieved when the judgment operates prejudicially and directly upon his personal or property rights or interests." St. Joseph's Hill Infirmary, Inc. v. Mandl, 682 S.W.2d 821, 824 (Mo. App. E.D. 1984). "Such operation must be immediate and not merely a possible remote consequence." Id. Here, Placke was successful in his challenge to the income withholding order. He cited no relevant authority for the proposition that the hearing officer was required to determine the exact amount of Placke's arrearages when the primary issue before the officer was whether the income withholding order was valid. Moreover, the hearing officer determined that the daughter's failure to comply with the notification requirements would not, by itself, render her forever ineligible for support, but only temporarily so. See In re Marriage of Kohring, 999 S.W.2d 228, 234 (Mo. banc 1999). That finding is not a judgment that operates immediately upon Placke and currently only has a possible remote consequence — the possibility that Placke's daughter may once again qualify for support does not make Placke an aggrieved party. See St. Joseph's Hill Infirmary, 682 S.W.2d at 824; see also generally Stockman v. Safe-Skin, Corp., 36 S.W.3d 447, 449 (Mo. App. E.D. 2001). Because the hearing officer's findings do not operate prejudicially upon Placke's property rights or interests, Placke is not an aggrieved party and he does not have standing to appeal those issues.
Points I and II are denied.
B. Due Process
In his third point on appeal, Placke claims that the Division deprived him of his due process rights by removing relevant testimony from the audio tape of the hearing and by not including that testimony in the written transcript provided to the circuit court. Placke claims that the testimony removed would have shown that he attempted to cross-examine a Division witness, but was precluded from doing so by the hearing officer. There has been no due process violation.
Due process is provided by affording parties to an administrative proceeding the opportunity to be heard at a meaningful time and in a meaningful manner. Graves v. City of Joplin, 48 S.W.3d 121, 124 (Mo. App. S.D. 2001). It requires that a litigant have knowledge of the claims of his or her opponent, have a full opportunity to be heard, to defend, to enforce and to protect his or her rights. Id. The hearing officer, however, has wide discretion to control the scope of cross-examination. See Heinen v. Police Personnel Board of Jefferson City, 976 S.W.2d 534, 542 (Mo. App. W.D. 1998).
Here, even if the hearing officer precluded Placke from examining the Division's witness — a fact disputed by the Division — Placke's due process rights were not violated. He was allowed to present evidence, cross-examine his ex-wife and argue at closing. At the end of the hearing, the hearing officer asked Placke if he had anything else to present and Placke responded no. Placke had a full opportunity to be heard and to defend, enforce and protect his rights. See Graves, 48 S.W.3d at 124. Furthermore, Placke's due process rights were not violated because he has failed to demonstrate any prejudice that was caused by the alleged exclusion of the testimony. See Kaufman v. St. Charles County, 30 S.W.3d 242, 247 (Mo. App. E.D. 2000).
Point III is denied.
The judgment is affirmed.