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Lewis v. Department of Social Services9/4/2001
Appeal From: Circuit Court of Jackson County, Hon. William F. Mauer
Opinion Vote: REVERSED AND REMANDED.
Spinden, P.J., and Howard, J., concur.
Opinion:
David Lewis appeals the judgment of the circuit court affirming the decision of the Division of Child Support Enforcement which increased his child support obligation from $25 per week to $506 per month, retroactive to January 14, 1996. On appeal, Mr. Lewis first challenges the authority of the Division to modify a circuit court's child support order, claiming that the Division's exercise of power violates the constitutional separation of powers. Specifically, Mr. Lewis alleges that the administrative procedure employed "renders every final order of the courts unfinal, usurps the judiciary's responsibility to determine the law of the case and to review independently the acts of administrative agencies, and creates an imbalance between the executive and judiciary due to the [Division's] trump card power as to the amount of child support due." Next, Mr. Lewis argues that the Division erred in increasing the amount of child support payments because it failed to consider all relevant factors in determining the correct amount of child support in violation of Rule 88.01(a) and section 452.340.1, RSMo Cum. Supp. 1997. Specifically, Mr. Lewis alleges that the Division failed to attribute a "very significant amount of money" available to the child for her support, including a "special needs" trust that, according to Mr. Lewis, is not being used for special needs but for everyday expenses.
Because the Division failed to make specific findings regarding Jennifer's employment income, the circuit court's judgment is reversed. The cause is remanded to the circuit court with directions to remand the case to the Division to make the appropriate findings on this issue.
Factual and Procedural Background
The marriage of David Lewis and Karen Lewis, now Cordell, was dissolved on or about August 14, 1978. In the decree of dissolution entered in the Circuit Court of Jackson County, Ms. Cordell was awarded custody of their child, Jennifer Kay Lewis, born December 28, 1976. Mr. Lewis was granted visitation rights and ordered to pay $25 per week in child support.
While Jennifer was a minor, she sustained a traumatic brain injury resulting from radiation therapy following resection of a brain tumor. On July 21, 1995, a medical malpractice settlement was reached in connection with that injury. As a result of this settlement, a trust was established to administer the proceeds of the settlement with Commerce Bank of Kansas City acting as trustee. At the time of the hearing in this action in April 1998, the corpus of the trust exceeded $80,000. Also at that time, monthly contributions of $3400 were being made to the trust and were to continue throughout Jennifer's lifetime. Monthly distributions from the trust to Jennifer averaged $320.67.
In addition to the trust distributions, Jennifer receives Supplemental Security Income (SSI) benefits. These benefits have ranged from approximately $337 to $482 per month, depending on the amount of income Jennifer earned through employment during the particular month. At the time of the hearing, Jennifer had been employed for five or six months at Southeast Enterprises doing piecework. Her income fluctuated from month to month, sometimes dropping below $100 per month, but her average income at the time of the hearing for the five or six months she worked at Southeast Enterprises was over $200 per month.
On December 21, 1995, the Division of Child Support Enforcement initiated an administrative child support modification
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