Incarcerated appellant gets chance to participate in support hearing

A procedural argument failed to convince the Missouri Court of Appeals, Western District, that an incarcerated man didn't deserve his day in court in a child support matter.

The court determined that Hayes is entitled to a new child support hearing.

Back in February 2004, the Family Support Division notified Hayes that genetic testing proved him to be the father of Valerie Pettigrew's child, and he must pay $117 in child support and medical insurance, if available.

Hayes asked for an administrative hearing, and that meeting was scheduled for March 10, 2004. Since Hayes was incarcerated at the Tipton Correctional Center on that date - and he had notified the division of his location - he missed the hearing. The hearing officer went on without him and later issued a decision and order in default against Hayes. Hayes filed a petition for modification or review and was denied. Not to be deterred, Hayes then filed a petition with Randolph County Circuit Court Judge Ralph H. Jaynes.

The trial court heard evidence from both the division and Hayes and determined the division's actions amounted to an abuse of discretion since Hayes wasn't heard.

The division appealed claiming the circuit court lacked jurisdiction since Hayes failed to exhaust all of his administrative remedies as prescribed by statute.

The state relied on Doody vs. State of Missouri, Dep't of Soc. Servs., Div. of Child Support Enforcement to argue that the Western District has previously ruled that the circuit court lacked jurisdiction when a dad failed to show up at the administrative hearing.

The court acknowledged that the exhaustion of remedies doctrine is an important cog in the judicial wheel; however, the appellate court distinguished the instant case from Doody.

Allowing a party to file a petition for judicial review based on a default judgment after failing to follow through with the administrative process would allow the party to bypass administrative review by the proper agency, effectively making agency review incomplete or meaningless, Judge Victor C. Howard wrote for the unanimous court.

However, the facts in the present case are different than those presented in Doody. Doody intentionally, or through neglect, failed to follow through with his administrative remedies. Also, the hearing officer made a reasonable effort to reach Doody by phone so he could participate. Here, Hayes properly pursued his administrative remedies up to the time of the hearing - a hearing he obviously could not attend in person. Hayes informed the Division of his desire to participate in the hearing and of his exact location. However, the Division's hearing officer did not make any effort to contact Hayes so he could participate telephonically, which, apparently, is a common way the hearings are conducted. The Division would have easy access to the phone number because Hayes was incarcerated at one of the State's own facilities. There may be other obstacles to giving someone in Hayes's position a full and fair hearing, as required by the statute, but the Division does not illustrate any in this appeal. Of course, a hearing officer is not required to ensure the participation of every party but is only required to make a reasonable effort under the circumstances of the case.

Howard, along with Judges Ron R. Holliger and Paul M. Spinden, reversed the division's order and remanded the case. John Fougere, spokesperson for the Missouri attorney general, said they are still considering their next move on this case. Hayes represented himself pro se.

Valerie R. Pettigrew, plaintiff, State of Missouri, Department of Social Services, Family Support Division, appellant, vs. Craig A. Hayes, respondent; No. WD64773; handed down Dec. 27.

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