State of Missouri, Respondent v. David Salazar, Appellant.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion

Case Style: State of Missouri, Respondent v. David Salazar, Appellant. Case Number: SC88438 Handdown Date: 10/30/2007 Appeal From: Circuit Court of Buchanan County, Hon. Keith B. Marquart Counsel for Appellant: Merle K. Turner Counsel for Respondent: Laura B. Donaldson Opinion Summary: This summary is not part of the opinion of the Court. It has been prepared by the Communications Counsel for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court and should not be quoted or cited. The opinion of the Court, which may be quoted, follows the summary. Overview: The issue in this case is whether a default administrative order issued by the Division of Child Support Enforcement constitutes a "legitimation by legal process" sufficient to support a man's conviction for criminal nonsupport when he failed to comply with the order. The trial court convicted him of criminal nonsupport on the basis of the division's default order, which declared the man to be the child's father, required him to pay child support and was docketed with the circuit court. It did so even though both the man and his wife denied that he is the father of the wife's child because of the father's failure to timely contest entry of the default order. By a 5-2 vote, the Supreme Court reverses the man's conviction. The Court holds the state failed to prove beyond a reasonable doubt that a "judgment" had been entered establishing that the child was legitimated by "legal process," as required by State ex rel. Sanders v. Sauer, 183 S.W.3d 238 (Mo. banc 2006). The Court notes that although, once docketed, the administrative order has the "force, effect and attributes" of a circuit court order and, therefore, is

enforceable, the order does not become a circuit court judgment absent judicial review, which did not occur here. The Court holds that, in the absence of such a final judgment, the man collaterally may attack the administrative order on which the prosecution was based. Special Judge Lawrence Mooney agrees the man's conviction should be reversed but believes Sauer incorrectly interprets the criminal nonsupport statute in a way that renders the statute unconstitutional, produces absurd results and does not give effect to the legislature's intent. Instead, he would interpret the statute to allow the prosecution to present prima facie proof of paternity through either biology or adoption, which still permits the defendant an opportunity to present his defense that he is not the child's actual father. Mooney is a judge on the Court of Appeals, Eastern District, who sat with the Supreme Court to fill the vacancy at the time this case was argued. Judge Limbaugh would affirm the man's conviction, finding the child was "legitimated by legal process" under the statute by the entry of the division's order establishing paternity. He notes the default judgment entered against the man establishing paternity in essence was no different than the default judgment entered against the putative (presumed) father in Sauer. Facts: David Salazar and Shannon McClure married in June 2000 and separated three months later. In November 2001, McClure gave birth to a child. Despite McClure's request that the birth certificate not list a father, the hospital listed Salazar as the child's father. The Division of Child Support Enforcement subsequently served Salazar with a notice and finding of financial responsibility, alleging he had a duty to support the child. McClure and Salazar both contacted the division and denied that Salazar was the father. When Salazar did not appear at the support hearing, the division entered a default order declaring Salazar to be the child's father and requiring him to pay child support. The default order was docketed with the circuit court and became effective, although the court held no hearing or gave any notice to Salazar. The state subsequently charged Salazar with nonsupport. The only two witnesses at his trial were McClure and Salazar, who testified that, although they legally were married when the child was born, they had not had sexual relations in the preceding 14 months, and that Salazar could not be the father. The court found Salazar guilty of criminal nonsupport under section 568.040, RSMo 2000, holding the child was Salazar's because the division's order constituted legitimization by legal process, and sentenced Salazar to 28 days in jail. He appeals. REVERSED AND REMANDED.

Court en banc holds: (1) The division's order finding Salazar financially responsible for the child is based on section 210.822.1, RSMo 2000, which provides that a man is presumed to be the father of a child born during the man's marriage to the child's mother. To sustain his conviction for criminal nonsupport, however, the state must prove beyond a reasonable doubt that a "judgment" was entered establishing that a child was legitimated by "legal process." State ex rel. Sanders v. Sauer, 183 S.W.3d 238 (Mo. banc 2006). Chapter 568 does not define "legal process." Because this involves a criminal statute, where a defendant's liberty is at stake, the rule of lenity requires it to be construed strictly against the state. Although section 454.490, RSMo 2000, gives a docketed administrative order the "force, effect and attributes" of a circuit court order, allowing the circuit court to enforce the order, it does not provide that, upon docketing, the order becomes a judgment of the circuit court. The order cannot become an actual circuit court judgment absent judicial review. State ex rel. Hilburn v. Staeden, 91 S.W.3d 607 (Mo. banc 2002). There was no judicial review of the order finding Salazar financially responsible for the child. Consequently, the docketed order is not a final judgment of the circuit court. To hold otherwise impermissibly would substitute an executive branch agency determination for the circuit court's independent power to render final judgments. (2) In contrast to the facts in Sauer, because there is no final judgment here, no "legal process" judicially determined Salazar's parentage. In the absence of such a judgment, Salazar collaterally may attack the administrative order used to establish his support obligation that, in turn, is the basis for the criminal prosecution. Because the state failed to prove beyond a reasonable doubt that the child had been legitimated by "legal process," Salazar's conviction is reversed. Opinion concurring in result by Special Judge Mooney: The author agrees Salazar's conviction should be reversed, noting the trial court made clear that the conviction rested solely on the default administrative order and that the court did not conclude Salazar was the child's biological father. The author believes, however, that previous court decisions, including Sauer, erred in interpreting section 568.040 to allow a prior legitimation or adjudication to establish paternity conclusively for purposes of a criminal nonsupport prosecution. First, he would find such a reading renders the statute unconstitutional by effectively preventing a defendant from presenting his defense of a lack of paternity, even though such collateral estoppel does not apply if the burden of proof is greater in a later proceeding. Second, the author would find that the Sauer interpretation of the section 568.040.2(1)

definition of "child" as establishing four distinct "types" of "childhood" produces absurd results. He explains this interpretation allows three disparate outcomes on the contested issue of paternity as to the same parent and the same child – a trial on the merits, conclusive proof of guilt or conclusive proof of innocence – depending on which "theory" of childhood the prosecutor advanced. Third, the author would find the legislature did not intend the criminal nonsupport statute to punish a defendant who was not a child's actual parent. Instead, the author would interpret the statute to allow the state to present prima facie proof of the parent-child relationship through either biological childhood or adoptive childhood. The author notes this facilitates proof of paternity for the prosecution but does not deny the defendant an opportunity to present his defense that he is not the actual father.

under section 568.040 by entry of the administrative order establishing paternity under section 454.490. He notes that neither the statute nor Sauer require entry of a formal judgment to establish that "legal process" has been used and would find the administrative order, which has all the force, effect and attributes of a court decree, is no less a legal process than a formal judgment. He further notes the default judgment entered against Salazar establishing paternity in essence was no different than the default judgment entered against the putative father in Sauer. Citation: Opinion Author: Richard B. Teitelman, Judge Opinion Vote: REVERSED AND REMANDED. Stith, C.J., Russell and Wolff, JJ., concur; Mooney, Sp.J., concurs in result in separate opinion filed; Limbaugh, J., dissents in separate opinion filed; Price. J., concurs in opinion of Limbaugh, J. Breckenridge, J., not participating. Opinion: This slip opinion is subject to modification until the Court has ruled on the parties' motions for rehearing, if any, and will become final only after the Court issues its mandate. To see when the Court issues its mandate, please check the docket entries for the case on Case.net. David Salazar appeals his conviction for criminal nonsupport under section 568.040.(FN1) The conviction was

premised upon a finding that Salazar failed to provide adequate support "for his child." Section 568.040.1 The term "child" includes "any child legitimated by legal process." Section 568.040.2(1). The circuit court held that a default administrative order issued by the division of child support enforcement (DCSE) and docketed with the circuit court constituted legitimization by legal process. The default administrative order does not constitute legitimatization by legal process. The judgment is reversed, and the case is remanded. FACTS Salazar married Shannon McClure on June 17, 2000. The couple separated in September 2000. On November 29, 2001, McClure gave birth to A.S. McClure requested that the birth certificate not list a father. Despite McClure's request, the hospital listed Salazar as the father. The DSCE served Salazar with a "Notice and Finding of Financial Responsibility" alleging that Salazar had a duty to support A.S. Salazar and McClure contacted the DSCE and denied that Salazar was the father. Salazar did not appear at the hearing to determine his financial responsibility for A.S. The DSCE entered a default order declaring Salazar to be A.S.'s father and requiring him to pay child support to McClure. The default order was docketed with the circuit court and became effective but no hearing was held or notice given to Salazar by the circuit court. Salazar was charged with nonsupport after McClure filed for public assistance. Salazar and McClure were the only witnesses to testify at the criminal trial. Both testified that although they were married when A.S. was born, they had no sexual relations in the preceding fourteen months. McClure maintained that Salazar could not be the father. The circuit court found Salazar guilty of criminal nonsupport under section 568.040.(FN2) The court did not find that Salazar was the biological parent of A.S. Instead, the court held that A.S. was Salazar's "child" because the DSCE order constituted legitimization by legal process. The court sentenced Salazar to twenty-eight days in jail. Salazar appeals. ANALYSIS The dispositive issue in this case is whether the default administrative order issued by the DCSE constitutes a "legal process" sufficient to support a conviction for criminal nonsupport under section 568.040. The phrase "legal process" is not defined in chapter 568. The primary rule of statutory interpretation is to give effect to legislative intent as

reflected in the plain language of the statute. State v. Grubb, 120 S.W.3d 737, 739 (Mo. banc 2003). However, when interpreting a criminal statute such as section 568.040, the rule of lenity requires the statute is to be strictly construed against the state. State v. Hobokin, 768 S.W.2d 76, 77 (Mo. banc 1989). Because a defendant's liberty is at stake, criminal statutes may not be extended by judicial interpretation so as to embrace persons and acts not specifically and unambiguously brought within their terms. State v. Lloyd, 7 S.W.2d 344, 346 (Mo. 1928). The DSCE order finding that Salazar was financially responsible for A.S. is based on section 210.822.1, which provides that a man is presumed to be the father of a child if the child is born during the man's marriage to the child's mother. Section 454.485.1 authorized the DSCE to issue the order because Salazar was "presumed to be the child's father pursuant to section 210.822...." The DSCE then docketed the default order with the circuit court pursuant to section 454.490, which provides that: Upon docketing, the order shall have all the force, effect and attributes of a docketed order or decree of the circuit court, including, but not limited to lien effect and enforceability by supplementary proceedings, contempt of court, execution and garnishment. The State asserts that the foregoing statutes establish a "legal process" sufficient to sustain Salazar's conviction under section 568.040. There is no dispute that the DSCE default order is enforceable by the circuit court in supplementary civil proceedings once it was docketed pursuant to section 454.490. However, the statute does not expressly provide that the docketed order can serve as a predicate for a criminal offense. That the order is subject to enforcement by the court does not definitively establish that the docketed default order constitutes "legal process" for purposes of sustaining a criminal conviction under section 568.040. In State ex rel. Sanders v. Sauer, 183 S.W.3d 238 (Mo. banc 2006), this court addressed the meaning of the phrase "legitimated by legal process." The issue in Sauer was whether a defendant charged with criminal nonsupport was entitled to DNA testing to disprove biological paternity. The defendant was subject to a default judgment of paternity in a case filed in the circuit court by the division of family services seeking a declaration of paternity pursuant to the uniform parentage act, sections 210.817, et seq. Id. at 239. The father signed an entry of appearance, waived service, and filed a

stipulation to take blood tests to determine paternity, but then failed to show up for four scheduled blood tests over an eight month period. As a result, a default judgment was entered against him. He chose not to appeal. Id. Section 210.841 of the UPA provides that a judgment of paternity under the UPA is conclusive as to the existence of the parent-child relationship for all purposes. Relying on this statutory provision, and the fact that the father was aware of the court proceedings but affirmatively chose not to take advantage of the opportunities to prove paternity therein provided, the Sauer court held that the child in that case had been "legitimated by legal process" within the meaning of Section 568.040.1(2). Id. at 240. "As such, the state need only prove beyond a reasonable doubt that a judgment was entered establishing that the child was 'legitimated by legal process;' whether the defendant truly is the biological father of the child is irrelevant." Id. The Sauer case establishes that the State's burden of proof in a criminal nonsupport case is to prove "beyond a reasonable doubt that a judgment was entered establishing that the child was 'legitimated by legal process.'" Salazar's conviction is not based upon a judgment of paternity entered by the circuit court, but is instead based upon docketed, default administrative order. Although section 454.490 gives a docketed administrative order the "force, effect and attributes" of a circuit court order, the statute does not provide that, upon docketing, the order becomes a judgment of the circuit court. State ex rel. Hilburn v. Staeden, 91 S.W.3d 607, 611 (Mo. banc 2002). The docketed order can be enforced by the circuit court, but it cannot become an actual judgment of the circuit court absent judicial review. Id. There was no judicial review of the order finding Salazar financially responsible for A.S. Consequently, the docketed order is not a final judgment of the circuit court. Holding otherwise would impermissibly substitute an executive branch agency determination for the independent power of the circuit court to render final judgments. Id. The State bore the burden of establishing that Salazar owes a duty of support to his "child," as that term is used in section 568.040. In contrast to Sauer, there is no final judgment and, thus, no "legal process" that judicially determined Salazar's parentage. In the absence of a circuit court judgment, Salazar is not prevented from collaterally attacking the administrative order used to establish his obligation of support that, in turn, serves as the basis for this criminal prosecution. Because the State failed to prove beyond a reasonable doubt that A.S. been legitimated by "legal process," the judgment is reversed, and the case is remanded. Footnotes:

FN1.All statutory offenses are to RSMo 2000. FN2.The offense is a class A misdemeanor. Separate Opinion: Opinion Concurring In Result by Judge Mooney: Because the trial judge made clear that David Salazar's conviction rested only on the default administrative order and that he did not conclude that David Salazar was the child's biological father, I concur in the reversal of his conviction for failing to support this child. The Missouri legislature has rightly enacted a law making it a crime for a parent to fail to provide adequate support for his or her child.(FN1) The legislature has provided that for purposes of the criminal nonsupport statute, a "child" means: ... any biological or adoptive child, or any child legitimated by legal process, or any child whose relationship to the defendant has been determined, by a court of law in a proceeding for dissolution or legal separation, to be that of child to parent. Section 568.040.2(1), RSMo 2000. Courts have held, I believe erroneously, that once the prosecution demonstrates a defendant's paternity in any one of these four forms, the actual paternity of the father is no longer in dispute. State ex rel. Sanders v. Sauer, 183 S.W.3d 238, 240 (Mo. banc 2006); see also, State ex rel. Dally v. Copeland, 986 S.W.2d 943 (Mo. App. 1999); State ex rel. State of Missouri v. Campbell, 936 S.W.2d 585 (Mo. App. 1996). Thus a court might hold that a prior legitimation or adjudication conclusively establishes paternity for purposes of a criminal nonsupport prosecution. For three reasons, I believe this interpretation is in error. First, this reading of the statute renders it unconstitutional. In effect, a defendant is collaterally estopped from presenting his defense of a lack of paternity. And the law holds that the doctrine of collateral estoppel does not apply if the burden of proof is greater in a later proceeding. Restatement (Second) of Judgments section 28 at 273 (1982); see also, State v. Yelli, 530 N.W.2d 250, 254-5 (Neb. 1995) (holding that previous judgments in civil paternity actions were not

binding under doctrine of collateral estoppel in a later criminal nonsupport prosecution). Making a "judgment in a civil action conclusive of an element in a criminal action denies a defendant due process because his guilt is not proved beyond a reasonable doubt, and because he is not allowed to present relevant evidence negating an element of the crime." State v. Hoy, 742 S.W.2d 206, 208 (Mo. App. 1987) (other holdings noted to be superseded by statute). Because this Court is to interpret statutes in a way that renders them constitutional, the Sauer court's interpretation is erroneous. Second, this interpretation of the statute produces absurd results. The Sauer court reads the "child" provision as establishing four distinct "types" of "childhood." Consider the ramifications of this for Mr. Salazar. David Salazar has not yet divorced his wife because of his financial straits. If he does so, a court of law might yet decree that he is not the biological father of the child because the dissolution court is not precluded from relitigating the issue of paternity by virtue of the administrative order. Smith v. Smith, 985 S.W.2d 829, 835 (Mo. App. 1998). If that were to occur and David Salazar would persist in failing to support the child, a prosecutor could charge him with criminal nonsupport, advancing any one of three theories. In the first instance, the prosecutor could claim that the child was David Salazar's biological child, in which case paternity would likely be litigated by way of testimony and blood tests. Or the prosecutor might charge David Salazar on the theory that the child was his due to legitimation by legal process, in which circumstance the State could conclusively prove paternity by the prior legitimation and David Salazar would be precluded from offering evidence of his lack of paternity or the dissolution court's judgment finding him not be the father. Note here that a defendant can be precluded by a prior legitimation and a contrary judgment of a court of law is not even admissible. Finally, the prosecutor might assert that the child was David Salazar's offspring by operation of the dissolution judgment, in which case David Salazar would be entitled to a directed verdict of acquittal based on the prior dissolution judgment finding him not to be the father. In sum, the Sauer court's interpretation allows for three wildly disparate outcomes on the contested issue of paternity—a trial on the merits, conclusive proof of guilt, or conclusive proof of innocence—as to the same parent and the same child depending on the "theory" of childhood the prosecutor advanced. But the existence of a parent-child relationship should not depend on the theory advanced by the prosecution. Rather it should be determined whether one is actually the parent of the child. Third and most critically, this is not what the legislature intended. I simply do not believe it was the legislature's intent to punish a defendant who was not the actual parent of the child. What then does the "child" provision mean? The Court obviously must give effect to the legislature's intent, but it must construe the statute in such a way as to render it constitutional and avoid absurd results. I propose an interpretation that, at this juncture in Missouri law, may seem

novel: the legislature intended to prosecute persons for failing to support their children when and only when they are actually the parents of the child, whether biological or adoptive. I do not believe that the legislature intended to establish two new species of childhood – childhood by legitimation and childhood by adjudication. In its opening clause, the statute identifies two alternative ultimate facts, which may prove the parent-child relationship – biological childhood or adoptive childhood. The statute then merely denominates two new avenues of proof of paternity, which are normally unavailable in criminal cases. But these new avenues of proof are not conclusive. They do not preclude a defendant from presenting his defense that he is not the actual father. Instead these legitimations or adjudications merely constitute prima facie proof of paternity, just like the presumption that exists for a child born in wedlock. Although this reading of the statute facilitates proof of paternity for the prosecution, it does not deny a defendant an opportunity to present his defense. Further, it avoids the absurd results that flow from the Sauer court's interpretation. Finally, I believe it carries out the legislature's intent: to provide children with the care and support they are due from their actual parents. Footnotes: FN1.The criminal nonsupport statute, section 568.040, provides in pertinent part, as follows:

1. ... a parent commits the crime of nonsupport if such parent knowingly fails to provide, without good cause,

adequate support which such parent is legally obligated to provide for his child or stepchild who is not otherwise emancipated by operation of law.

I would hold that the minor child was "legitimated by legal process" under section 568.040 by the entry of the administrative order establishing paternity under section 454.490. "Legal process," as the majority correctly notes, is not defined. But the statute does not purport to require a formal judgment in a suit filed in the circuit court as the exclusive means to establish that a "legal process" has been utilized, and contrary to the majority, State ex rel. Sanders v. Sauer, 183 S.W.3d 238 (Mo. banc 2006), did not so hold. "Legal process" is necessarily a broader term, and a formal judgment is merely a subset encompassed by that term. In my view, an administrative order under section 454.490, which has "all the force, effect, and attributes of a docketed order or decree of the circuit court . . . ," is no less a legal process than a formal judgment. Moreover, the administrative order is all the more a "legal process" because ample due process is afforded to defendants through notice of the proceedings, a hearing before the administrative agency, an entitlement to

de novo review before the circuit court, and an appeal thereafter. Dye v. Div. of Child Support Enforcement, 811 S.W.2d 355, 359 (Mo. banc 1991). In essence, this case is no different than Sauer: A default was taken against both putative fathers, but neither took advantage of the legal process available to them to refute the determination of paternity. For this reason, I would affirm the judgment of the trial court. This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.