David Merrill Scates, Petitioner/Respondent, v. State of Missouri, Department of Social Services, Division of Child Support Enforcement, and Donna Faye Barton, Respondents/Appellants.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Southern District Case Style: David Merrill Scates, Petitioner/Respondent, v. State of Missouri, Department of Social Services, Division of Child Support Enforcement, and Donna Faye Barton, Respondents/Appellants. Case Number: 22395 Handdown Date: 10/28/1998 Appeal From: Circuit Court of Iron County, Hon. William Camm Seay Counsel for Appellant: James M. McCoy Counsel for Respondent: Opinion Summary: None Citation: Opinion Author: James K. Prewitt, Presiding Judge Opinion Vote: REVERSED AND REMANDED WITH DIRECTIONS. Crow and Barney, JJ., concur. Opinion: The Division of Child Support Enforcement attempted to modify a judicial child support order, pursuant to Section 454.496, RSMo 1994. Following a purported modification, Respondent David Merrill Scates sought judicial review. The trial court entered judgment in his favor, finding that the modification "was not judicially approved by this or any other Court and no judicial order has been entered finding that there were facts to justify said modification decision and order of the Division." Respondents in the trial court appeal, contending that the circuit court erred in not reviewing and approving the modification order.(FN1) We deem this matter to be controlled by Chastain v. Chastain, 932 S.W.2d 396 (Mo.banc 1996). There, the forty-five day automatic approval provision of that statute was held unconstitutional, but even though the order was not approved, the Court did not dismiss the action but remanded it to the trial court "for a determination of the merits of the remaining issues raised in the father's petition for judicial review and the conformity of the Division's modification order to

Rule 88.01." We conclude that this matter should likewise be remanded. The judgment is reversed and the cause remanded for the trial court to make a determination on the merits of the issues in Respondent's petition for judicial review and the conformity of the Division's modification order to Rule 88.01. Footnote: FN1.Respondent has filed no brief. While there is no penalty for that omission, we must adjudicate Appellants' claim of error without the benefit of whatever argument, if any, Respondent could have made in response to it. Sherrod v. Director of Revenue, 937 S.W.2d 751, 752 (Mo.App. 1997). Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.