Mathis v. Mathis

2000 SD 59, 609 N.W.2d 773, 2000 S.D. LEXIS 58
CourtSouth Dakota Supreme Court
DecidedMay 3, 2000
DocketNone
StatusPublished
Cited by10 cases

This text of 2000 SD 59 (Mathis v. Mathis) is published on Counsel Stack Legal Research, covering South Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mathis v. Mathis, 2000 SD 59, 609 N.W.2d 773, 2000 S.D. LEXIS 58 (S.D. 2000).

Opinions

AMUNDSON, Justice.

[¶ 1.] Allan Mathis (Allan) brought a petition for modification of his child support payments payable to his former spouse, Beth Mathis (Beth). The circuit court adopted the child support referee’s recommendation that Allan did not provide sufficient information establishing a change in income that would warrant a modification of his child support payments. We affirm.

FACTS

[¶ 2.] Allan and Beth Mathis were divorced on March 23, 1998. At the time of the divorce, Allan and Beth had six children; two children were over age eighteen and four were still minors. The couple entered a stipulation and agreement (agreement) which was incorporated by reference into the divorce decree. The agreement provided that Allan was obligated to pay $1,226 per month for the care and support of the couples’ then four minor children. Also under the agreement, Allan received certain shares of corporate stock. Beth was designated as the physical custodian of the minor children.

[¶ 3.] On March 2, 1999, Allan filed a petition for modification of child support. The basis for his petition was that his income was reduced and one of the children turned eighteen on August 29, 1998, and was graduating from high school. Beth responded to Allan’s petition by arguing no change of circumstances exists as it relates to Allan’s financial condition and if any reduction of income did exist, it was voluntary on the part of Allan.

[¶ 4.] The petition for modification was heard by Child Support Referee John Fee-han on March 24, 1999. The referee found that no sufficient information existed to establish any change in income which would warrant a change in the previous child support order. In calculating Allan’s monthly income, amount of $6,183.33.1 the referee found that Allan had sold various stock holdings beginning on July 9, 1998, and received $50,-756 in proceeds. The referee annualized the entire proceeds amount of $50,756 over a one-year period for a total of $4,229.67 per month and included this amount as part of Allan’s monthly income amount of The referee concluded that, based upon the combined assets and incomes of the parents, Allan’s child support obligation should be increased from $1,226 to $1,247 per month for the three remaining minor children.

[¶ 5.] Allan appealed the referee’s decision to the Circuit Court, Eighth Judicial Circuit, Lawrence County, South Dakota. After briefs were submitted and oral arguments held on May 25, 1999, the circuit court adopted the referee’s recommendation, including the referee’s calculations containing the annualization of the proceeds from Allan’s stock sale.

[¶ 6.] Allan appeals, raising the following issue:

Whether the trial court erred as a matter of law by adopting the referee’s child support order.

STANDARD OF REVIEW

[¶ 7.] It is well settled that we review a child support referee’s “findings of fact under the clearly erroneous standard and questions of law are fully reviewable.Mixed questions of law and fact are classified as questions of law and are reviewable de novo.” Hendricksen v. Harris, 1999 SD 130, ¶ 7, 600 N.W.2d 180, 181 (citing Permann v. Department of Labor, [775]*775Unemployment Ins. Div., 411 N.W.2d 113 (S.D.1987); Janke v. Janke, 467 N.W.2d 494 (S.D.1991)). In addition, “[w]hen the circuit court has adopted a child support referee’s findings and conclusions, we apply the clearly erroneous standard of review to the findings and give no deference to conclusions of law.” Matter of Loomis, 1998 SD 113, ¶ 6, 587 N.W.2d 427, 429 (citing Wolff v. Weber, 1997 SD 52, ¶ 7, 563 N.W.2d 136, 138 (citing Whalen v. Whalen, 490 N.W.2d 276, 280 (S.D.1992)); Janke, 467 N.W.2d at 497). Further, “[i]n applying this standard, we will not reverse findings of fact unless we are left with a definite and firm conviction a mistake has been made.” Id. (citing Janke, 467 N.W.2d at 497). We have often noted,

[t]he referee was the fact finder and had the advantage of hearing testimony of witnesses and could directly judge their credibility. As a reviewing court, neither the circuit court nor this [CJourt should attempt to assume such a role. Conclusions of law made by the referee are fully reviewable and may be overturned by a reviewing court whenever they are found to be incorrect.

Hendricksen, 1999 SD 130, ¶7, 600 N.W.2d at 181 (citing Janke, 467 N.W.2d at 494).

DECISION

[¶ 8.] Whether the trial court erred as a matter of law by adopting the referee’s child support order.

[¶ 9.] The determination of the monthly net income of each parent is addressed in SDCL 25-7-6.3. Under the statute,

[tjhe monthly net income of each parent shall be determined by his gross income less allowable deductions, as set forth herein. The monthly gross income of each parent includes amounts received from the following sources:
(1)Compensation paid to an employee for personal services, whether salary, wages, commissions, bonus or otherwise designated;
(2) Self-employment income including gain, profit or loss from a business, farm or profession;
(3) Periodic payments from pensions or retirement programs, including social security or veteran’s benefits, disability payments or insurance contracts;
(4) Interest, dividends, rentals, royalties or other gain derived from investment of capital assets;
(5) Gain or loss from the sale, trade or conversion of capital assets;
(6) Unemployment insurance benefits; and
(7) Worker’s compensation benefits.
If the income of the parents is derived from seasonal employment, or received in payments other than regular, recurring payments, such income shall be annualized to determine a monthly average income.

[¶ 10.] In the present case, the referee had a difficult time determining Allan’s present income level. This difficulty was based upon Allan’s failure to provide a specific income amount; instead, Allan provided several varying income figures. The referee made the following findings in regards to Allan’s monthly income:

a. In his petition for modification of child support [Allan] fails to complete the financial statement which requires an estimation of present income from all sources. No income is listed.
b. In his testimony [Allan] submits wages for himself of $1000 per month.
c. In.a financial statement [Allan] submitted to his lender dated [February 2, 1998,] [Allan] lists his income as $4975.00 per month. He lists assets of $836,295.00 and liabilities of $261,-413.81. (Note is made that the stock holdings that were liquidated were not specifically listed on this financial statement.)
d.

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Bluebook (online)
2000 SD 59, 609 N.W.2d 773, 2000 S.D. LEXIS 58, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mathis-v-mathis-sd-2000.