On behalf of The Marks Law Firm, L.L.C. posted in Child Support on Thursday June 20, 2013
Many people today paying or receiving child support rely on the Family Support Division (FSD), which controls the centralized payment system and also child support enforcement. For example, if a party is supposed to deposit a certain amount of child support every month into the payment system to disburse to the party receiving support, and the amount runs a deficit, that deficit could trigger an enforcement action, which could lead to a wage withholding or attachment to another asset.
But what if the ledger that the support system used was wrong? What if, in other words, FSD made a mistake?
Normally, the system imposes a burden of proof on the party paying support to bring any errors to the attention of FSD. But how can a party know when FSD makes a mistake until they bring an enforcement action? Technically, a party could go online and check every payment is recorded correctly, but that seems quite onerous. After all, should we not expect that FSD keep accurate records?
So, if FSD does make a mistake and files an enforcement action, at that point the party paying support will be on notice of a potential error; that party will go over his or her own payment records and see if the mistake can be identified. However, to prove all of this, the party paying support may have to retain an attorney and request an administrative hearing. Many people do not realize the time-sensitive nature of these proceedings and miss deadlines, making the enforcement order active and allowing a garnishment to begin. Also, some people may not take these orders seriously enough, or not have funds to retain an attorney.
As you may sense, this process seems a bit unfair. A recent case from the Western District, Kohrs v. FSD, shows how unfair this can become. In this case, the parties divorced, and the court ordered mother to pay support to father, who received custody of the parties’ child. Seven years later, the parties agreed that the child would now live with mother; however, mother did not return to court to request a modification. Instead, mother sought relief through an administrative request with FSD, which responded by entering an administrative order requiring father pay $212.00 per month to mother. Apparently, father never paid the support and an arrearage developed; eventually, in 2006, FSD filed an income withholding order with the Social Security Administration (SSA) to recover the support owed through father’s social security benefits. SSA went ahead and paid out all of the sums owed — $4,400 – to FSD, which turned these funds over to the mother.
But there was a problem – FSD never had authority to issue the original support order in 1999. A Missouri statute prohibits FSD from entering a new support order if an existing order – whether issued by a court or FSD – is in place. FSD did not do its homework and discover the other order. Hence, all of the support FSD claimed father owed mother was a giant mistake. Recognizing that, father hired an attorney and tried to get his money back – from FSD (mother apparently could not be located for service of process). Father filed an action for money had and received, a civil remedy similar to unjust enrichment. The trial court granted father the relief and ordered FSD pay him all of the money back, but the Western District reversed, finding that because FSD never received a benefit (was never unjustly enriched), it could not be responsible for paying the money back. The mother was the one who was unjustly enriched – even though the only reason she was unjustly enriched was because of the error by FSD.
So in the end, the father lost all of the social security benefits the FSD had no right to take and give to the mother, everyone admits that this happened because FSD made a huge mistake, father had to pay an attorney to do all of this work, and father gets…no money. How is this possible?
Father filed an action that requires the person who received the money improperly to have retained the money or secured some benefit from the retention, like interest on funds. In this case, FSD held the money for less than two days in an apparently non-interest bearing account.
Father of course can still attempt to recover the money from mother. But it seems wrong for FSD to get away with making a huge mistake without paying for it in some way. Since the court considered the FSD no more than a trustee of the money, father could have a remedy for breach of trust and fiduciary duty, assuming that FSD does not have immunity from suit.
It seems that the General Assembly should do something about this situation; at a minimum, it should amend the disbursement statute to require a check that competing administrative or court orders do not exist before releasing funds, and preferably, to requiring FSD confirm that no order of support exists prior to making its entry of a new order. We entrust FSD with an important task, one that seems simple administratively in terms of money in, money out – banks do it every day without incident – and if they make a mistake, they should be responsible for it, not the innocent parent paying support.
If you have questions about a child support payment issue, contact us – we can help.