CHRISTOPHER R. KENCK, Plaintiff and Appellant,
STATE OF MONTANA, CHILD SUPPORT ENFORCEMENT DIVISION and LORI FLEMING, an individual, and JOHN DOES 1-5, Defendants and Appellees.
Submitted on Briefs: November 5, 2013
District Court of the Thirteenth Judicial District, In and For the County of Yellowstone, Cause No. DV 11-0650 Honorable Gregory R. Todd, Presiding Judge
For Appellant: J. Gregory Tomicich; Tomicich Law Office; Billings, Montana
For Appellees: Timothy C. Fox, Montana Attorney General; Thomas G. Bowe, Assistant Attorney General; Helena, Montana
Patricia Cotter Justice
¶1 Christopher Kenck appeals the Order of the Thirteenth Judicial District Court dismissing his action against the State of Montana, Child Support Enforcement Division (CSED). We affirm and remand for further proceedings.
¶2 After years of complying with his monthly child support obligation, Kenck, who was serving in the U.S. military, agreed via counsel to an increase in his monthly support obligation. The increase was applied retroactively to the date the request for an increase was filed by the child's mother, creating an administrative arrearage of several months in Kenck's account. Kenck arranged to pay off the arrearage with increased deductions from his military pay. Nonetheless, CSED reported the arrearage to the national consumer credit reporting agencies.
¶3 Upon completing active duty with the U.S. Air Force (USAF), Kenck was provisionally hired by U.S. Department of Homeland Security but the offer of employment was withdrawn when TSA discovered the credit report indicating that Kenck's child support was delinquent. After other prospective law enforcement employers cited the same reason for rejecting him as an otherwise qualified candidate, Kenck filed this action against CSED and Lori Fleming, regional manager for the Billings CSED office, for its erroneous report to the credit agencies. The District Court dismissed all claims against CSED and Fleming under M. R. Civ. P. 12(b)(6) (Rule 12(b)(6)). Kenck appeals.
¶4 A restatement of the dispositive issue on appeal is:
¶5 Did the District Court err in dismissing Kenck's claims against CSED and Fleming?
FACTUAL AND PROCEDURAL BACKGROUND
¶6 Christopher Kenck is the biological father of a child born in May 2003. Shortly after the child's birth, Kenck joined the United States Air Force and regularly sent money to the child's mother for support. In June 2004, the couple split and in September 2004, CSED established a child support account for Kenck and ordered him to pay $186/month in child support. Kenck agreed and provided CSED with the necessary information to allow the military to withhold child support payments from his military wages. This State-calculated monthly support amount was slightly higher than the amount Kenck had been paying; therefore, the retroactive application of the new amount caused an administrative arrearage that Kenck paid. Kenck also put the child on his military medical insurance plan. There is nothing in the record to suggest Kenck was ever late with his payments. To the contrary, he has consistently provided monthly support for his child—even at times when he was not under a State order.
¶7 In March 2008, the child's mother petitioned the State for a child support increase. Kenck, who was serving in Iraq at the time, was not notified of the requested increase in support until a later date. However, in August 2008 when Kenck was stateside on leave, he went to the Billings CSED office and, without objection, accepted service of the modification request. Following an October 2008 administrative hearing in which Kenck was represented by counsel, CSED raised Kenck's monthly child support obligation from $186/month to $458/month. The State retroactively applied the increased obligation which resulted in an administrative arrearage of approximately $1, 200 in Kenck's child support account. Again Kenck paid the increased monthly payments directly from his military wages. He also agreed to pay off the administrative arrearage in accordance with State law by paying 1/24 of the debt per month. There was no discussion at the administrative hearing of CSED notifying the national credit reporting agencies of the arrearage. However, CSED subsequently reported the arrearage in his account to the consumer credit reporting agencies, listing it as a bad debt and delinquent child support. Kenck acknowledges that around this time, he received a notice letter from CSED that he did not fully understand, but he did not follow up with the agency.
¶8 Kenck completed his active duty service on July 7, 2009, and moved to Washington, where he joined the Washington Air National Guard. Shortly thereafter he obtained a copy of his credit report and discovered the entry of the child support delinquency. Kenck contacted CSED and verbally contested the accuracy of the delinquency reporting. Subsequently, and with the assistance of his counsel, he obtained a letter from CSED's Legal Services Bureau Chief dated August 3, 2009. In this letter, CSED's attorney explained that Kenck's arrearage "arose by reason of law" and that Kenck had "faithfully" paid his child support obligation. The letter further stated that the arrearage "was not caused by any failure of Mr. Kenck to pay his ordered child support obligation, " and that Kenck was "retiring" the arrearage by monthly payments of 1/24th of the total "in accordance with Montana law." CSED's legal counsel also agreed to take steps in an effort to have the delinquency removed from the consumer reporting agencies' records. Either no such steps were taken or they were unsuccessful.
¶9 Subsequently, believing the matter was resolved, Kenck sought employment with U.S. Department of Homeland Security as a TSA agent in Washington. After passing the necessary tests and being provisionally hired, TSA withdrew its offer of employment based upon a credit report indicating that Kenck's child support was in arrears. He was also told by recruiters from the Seattle Police Department and other local agencies that delinquent child support was an automatic disqualification for employment. Kenck subsequently filed this action against CSED and CSED's Billings' office regional manager, Lori Fleming.
¶10 Kenck asserted both federal and state claims against CSED and Fleming. He argued that the agency's reporting to the credit agencies of an arrearage that arose through no fault of his own and resulted in the denial of employment opportunities with governmental law enforcement agencies was a violation of his federal rights under 42 U.S.C. § 1983. He also claimed CSED violated certain mandatory provisions of the Servicemembers Civil Relief Act (SCRA), 50 U.S.C. app. §§ 501-597.
¶11 Kenck further alleged under common law that CSED defamed him, acted with malice, invaded his privacy by placing his child support payment history in a false light, and intentionally and negligently inflicted emotional distress upon him. He also claimed CSED violated his ...