Bruning v. Jeffries

422 N.W.2d 579, 1988 S.D. LEXIS 44, 1988 WL 32924

• Court: South Dakota Supreme Court
• Decided: April 13, 1988
• Docket: 15840
• Status: Published

Opinions

MILLER, Justice.

This is an appeal from a judgment of the circuit court upholding a decision of the Secretary (Secretary) of the South Dakota Department of Social Services (DSS), which increased Father’s previously court-ordered child support obligation using the statutory guidelines (SDCL 25-7-7). We reverse with directions that the case be remanded to consider and enter findings regarding the financial condition of both parents, including Mother’s spouse.

FACTS

Carla Bruning (Mother) and James Jef-fries (Father) are parents of Corey Ray Bruning (Corey), who was born on May 27, 1977. Mother and Father have never been married to each other. Initially, Father made voluntary support payments in varying amounts. On June 28, 1979, a circuit court approved and adopted a voluntary support agreement that Father had signed with DSS under which he was obligated to pay $100 per month to Mother on behalf of Corey. On February 20, 1981, the circuit court (pursuant to agreement of Mother and Father) modified the obligation to $75 per month while Father attended college and $100 per month while not attending college.

In August, 1986, Mother filed a petition with DSS for modification of child support. In accordance with SDCL 25-7A-22, an administrative hearing was held by a DSS hearing examiner, at which time both Mother and Father appeared, testified, and submitted various documents. The hearing officer issued a proposed decision and order which was adopted on November 4, 1986, by Secretary.¹ This order set Father’s support obligation at $220 per month by applying the guideline table in SDCL 25-7-7. Further, Father was required to furnish medical insurance coverage for Corey.

Father filed a notice of appeal from Secretary’s decision to circuit court. The court entered judgment affirming Secretary as to the amount of child support but reversed Secretary’s order requiring Father to provide medical insurance coverage. Subsequently, the circuit court denied Father’s motion to reconsider, which motion specifically asked the court to consider the income of Mother’s new spouse or third-party contributions to the child’s household as set forth under the “deviations” in SDCL 25-7-7. This appeal followed.

Mother is married presently to an osteopathic physician (Dr. Bruning) practicing in Flandreau, South Dakota. She works as a part-time bookkeeper at Dr. Bruning’s clinic. Father is a deputy state’s attorney for Pennington County, South Dakota. '

ISSUE

WHETHER SECRETARY ERRED IN SETTING FATHER’S CHILD SUPPORT OBLIGATION.

Father argues that Secretary abused his discretion in not deviating from the guideline table. Father claims Secretary did not take into consideration (1) Father’s financial condition and (2) Mother’s spouse’s income, arguing that either consideration could have justified a downward deviation from the guideline table.

SDCL 25-7-7 is a lengthy, detailed, and complicated statute² which, among other things, sets forth mandatory guidelines for the administrative agency and courts to follow when setting child support. No one section or paragraph in the statute can be read in isolation. It must be considered as a whole. The amount of child support is set by considering, among other factors, the obligor’s net income and the number of children. The statute specifically provides, in pertinent part:

These guidelines shall be used in setting child support. Deviation from the guidelines may be made only upon the entry of specific findings based upon the following factors:

(1) Financial condition of the parents, including, but not limited to, income of a new spouse or contribution of a third party to the income or expenses of that parent;

(2) The standard of living of the child; (8) The age and special needs of the child;

(4) The effect of provisions relating to custody and visitation; or

(5) Child care. (Emphasis added.)³

As the above-quoted portion of SDCL 25-7-7 indicates, there may be no deviation from the guidelines unless there is an entry of specific findings regarding the five listed factors. The question becomes whether Secretary (and hearing examiner) must consider these factors in every case he hears. We conclude, from a reading of this statute in its entirety, that the legislature intended that these factors be considered in each proceeding.

It seems clear in this case that Secretary (and hearing examiner) chose not to consider any of the deviations, since there is no specific finding of deviation and the support was set within the initial guideline table.

A. Father’s Financial Condition

Father claims his financial condition is such that he cannot reasonably satisfy his own needs and obligations with support set at the level ordered by Secretary (and hearing examiner) and affirmed by the trial court. Father submitted evidence regarding his personal debts, including a substantial student loan obligation. Father claims that if these loan payments (student loan and other debt) are considered, his income available for support is substantially less. Father claims these loan obligations are viable reasons for deviation from the guidelines as they directly impact his “financial condition.” Thus, we must determine whether Secretary (and hearing examiner) abused his discretion in not utilizing this factor as a basis for deviation.

First, we note that no findings were made, either by the hearing examiner, Secretary, or the trial court, regarding Father’s “financial condition” other than determining his net income.

After reviewing the evidence, we conclude that Secretary (and hearing examiner) did abuse his discretion in not considering a deviation from the guidelines due to a large student loan and other debts which affect Father’s “financial condition.” Although SDCL 25-7-7 does not specifically require a deviation or deduction for school loan debt, it does not necessarily mean that such should not be considered. We therefore direct that this issue be remanded to the administrative agency for reconsideration and entry of findings regarding the totality of Father's financial condition.

B. Mother's Financial Condition

SDCL 25-7-7 makes both parents “jointly and severally obligated” for the support of the children. We must not overlook SDCL 25-7-8, which provides:

A stepparent shall maintain his spouse’s children born prior to their marriage and is responsible as a parent for their support and education suitable to his circumstances, but such responsibility shall not absolve the natural or adoptive parents of the children from any obligation of support.

It is clear that the support award using the guideline table is not based upon the income of both parents. However, it is not clear what was intended regarding the specific support obligation of the noncustodial parent.⁴ Yet, settled case law, prior to the new guidelines, provides that child support awards must be based on the reasonable financial needs of the child and the financial means of the parents. Johansen v. Johansen, 365 N.W.2d 859 (S.D. 1985); Gross v. Gross, 355 N.W.2d 4 (S.D. 1984). We believe that the enumerated deviations of SDCL 25-7-7 were adopted giving consideration to and with no intent to abolish this settled case law. Thus, under SDCL 25-7-7, we question how the appropriate administrative officer can decide whether to deviate from the guidelines in setting support if he does not consider the statutory factors for deviation.

As stated earlier, the administrative officer must in each case consider the five statutory factors to determine whether deviation is warranted. Certainly, if the financial condition of the custodial parent and/or the new spouse is such that it would not be equitable to blindly apply the guideline table to the noncustodial parent, deviation is necessary and appropriate. (Irrespective of the distinction between our statute and Minnesota’s, we adopt the logic of their general holdings in Bredeson v. Bredeson, 380 N.W.2d 575 (Minn.App. 1986); Giencke v. Haglund, 364 N.W.2d 433 (Minn.App.1985); Derence v. Derence, 363 N.W.2d 86 (Minn.App. 1985).) For example, if a noncustodial parent has a net income of $500 per month, it could be improper to strictly follow the guideline table and require him/her to pay monthly support payments of $65-$78 to the custodial parent married to a millionaire, living in luxury-

As guidance to the appropriate administrative officer and the circuit courts, we hold that in order to uphold a deviation from the guidelines based on the factors relating to the custodial parent (including any new spouse), the custodial parent’s financial condition must be substantially greater than that of the noncustodial parent in order to warrant any significant deviation. By deviation, we are not suggesting that support required of the noncustodial parent be eliminated; rather, all factors under SDCL 25-7-7 must be considered, with findings entered thereon, in order to provide meaningful appellate review at all levels.

The constitutional questions which have been so strongly asserted by Justice Henderson, in his special writing, have been intentionally disregarded in this opinion because appellant, in his brief to this court, specifically abandoned any constitutional challenges to the statutory scheme.

Reversed and remanded.

WUEST, C.J., and SABERS, J., concur. MORGAN and HENDERSON, JJ., concur in result.

1 .Because the hearing examiner's decision in a contested proceeding becomes the final decision (SDCL 25-7A-22 — see also 25-7A-6), it is not clear to us how or why the Secretary became involved in this appeal. Since it is not properly before us, we do not address the procedural aspects. See SDCL 25-7A-5 et seq.

2 . See SDCL ch. 25-7A which adds to the complexities involved in collection of child support.

3 . For an exceptional analysis of salient issues concerning the deviations enumerated under this statute, see L. Pierce, "Do the Permitted Deviations Create Consistency or Confusion? South Dakota Barrister, V. 113 (Nov.-Dee. 1986).

4 . One paragraph of SDCL 25-7-7 provides:

It is presumed that the custodial parent is making a substantial contribution to the child’s basic care and needs by paying all expenses of raising the child above those met by the child support payments of the obligor parent. It is further presumed that the custodial parent provides a life style consistent with the custodial parent's resources, and the child receives custodial care and attention which has economic value.

1 . Legislatively created judicial officers cannot usurp or overrule a circuit court judge's decision, a circuit judge being a constitutional officer. These "mini-judges” need not have a legal education.