Section 11.16 FSD Mistakes and Award of Attorney Fees

• Library: Family Law Deskbook and 2014 Supp

C. (§11.16) FSD Mistakes and Award of Attorney Fees

With the increased computer automation of IV-D functions, and the reduction of attorney field office guidance for the FSD, the potential for case-management error has increased. While state sovereign immunity will preclude many lawsuits against the agency, the FSD may be liable for attorney fees under certain circumstances. The MoAPA (Missouri’s Administrative Procedure and Review Act), Chapter 536, RSMo, contains a version of the federal Equal Access to Justice Act, Pub. L. No. 96-481, 94 Stat. 2325, which permits a court to award attorney fees to a prevailing party in an administrative proceeding when the agency’s action is not “substantially justified.” Sections 536.085 and 536.087, RSMo 2000. See McMahan v. Missouri Department of Social Services, Division of Child Support Enforcement, 980 S.W.2d 120 (Mo. App. E.D. 1998), for a workable example of how these provisions are applied.

Fees may only be awarded when the agency is represented by counsel, § 536.085(1), but Missouri’s appellate courts have interpreted this statutory requirement fairly loosely. In State, Division of Child Support Enforcement v. Grimes, 998 S.W.2d 807 (Mo. App. E.D. 1999), the court awarded a child support obligee attorney fees because the DCSE (Division of Child Support Enforcement) did not include a credit for two children in the mother’s custody when calculating Form 14 child support for her other three children. The court noted that DCSE was aware of the other two children, yet still...