O'Grady v. O'Grady

1998 SD 89, 582 N.W.2d 707, 1998 S.D. LEXIS 88

• Court: South Dakota Supreme Court
• Decided: August 5, 1998
• Docket: None
• Status: Published

Opinions

SABERS, Justice.

[¶ 1.] Vera B. O’Grady appeals from an order setting child support and arrearages. We reverse.

FACTS

[¶ 2.] Vera and James O’Grady were married in 1973. They had four children. Sean was born on April 15, 1975; Shelly on June 26, 1976; Thomas on January 15, 1979; and Robert on April 7,1980.

[¶ 3.] Vera and James divorced in 1985. The judgment and decree of divorce incorporated their stipulation regarding child custody and support. Vera received custody of the four children and James agreed to pay $100 “per child per month during the children’s minority as child support.”

[¶ 4.] In 1990, James filed a petition for modification of child support. The matter was referred to a court appointed referee who analyzed the case under the recently enacted child support guidelines of SDCL ch 25-7. The referee concluded that James’ obligation, which had been $400 per month, should now be $280 per month. The trial court adopted the report and entered an order amending the child support obligation.

[¶ 5.] Vera moved to modify James’ child support obligation to $633 per month in 1992. Following extensive discovery, the trial court ordered James to pay “child support in the amount of $469 per month beginning July 1, 1992[J” Then, in February 1993, the parties stipulated:

Child Support:

James O’Grady will pay Vera O’Grady the sum of $469.00 per month, as and for child support, said payments to commence on January 1, 1993, and payable on the 1st day of each and every month thereafter until the minor children reach the age of nineteen (19) or graduate from high school, whichever occurs first. Said payments shall be made to the Pennington County Clerk of Courts, P.O. Box 230, Rapid City, South Dakota 57709.

Child Support Arrears:

James M. O’Grady owes child support arrears as of December 31, 1992, in the amount of $7,776.29. In addition to the above-referenced monthly child support payments, James M. O’Grady will pay Vera B. O’Grady $50.00 per month toward said child support arrears, said payment being due and payable on the 1st day of each and every month until paid in full.

The trial court filed an order approving the stipulation on February 23,1993.

[¶ 6.] After this order was entered, James approached Vera on several occasions and asked her to agree to lower the child support. She advised him to notice the matter for hearing as he had done in the past, so that child support could be calculated according to their incomes. In 1994 she also had their case worker send James the appropriate forms for doing so. James apparently did not complete the forms or cause the matter to be set for hearing. Instead, from January 1993 through April 1994, James made the court approved monthly payments of $519 ($469 child support, $50 arrearages). From May 1994 through March 1995, he unilaterally reduced his payment to $284.50 and missed his February 1995 payment. From April 1995 through September 1996 he resumed making full monthly court approved payments of $519.

[¶ 7.] On August 29, 1996, James filed a motion to determine child support:

This Motion is made upon the grounds and for the reasons that the latest Stipulation and Order provided that child support be paid “until the minor children reach the age of 19 or graduated from high school, whichever occurs first”, and no recomputation has been done to change the child support as each child reached the age of 19 or graduated from high school. Shawn [sic] O’Grady toned 19 years of age on April 15, 1994. Shelley [sic] O’Grady was 18 years of age and had graduated from high school as of June 26, 1994. A recom-putation needs to be completed showing the child support due as each child reached the mandatory age and showing how the excess payments that have been made to the Plaintiff should be applied to arrearag-es.

[¶ 8.] The trial court concluded, in part,

The order setting child support for the defendant was self executing, and therefore, the defendant’s child support obligation beginning the first day of July, 1994 was $879 per month for two children. Absent unusual circumstances, Thomas O’Grady will be eighteen (18) years of age and will have graduated from high school by the 1st day of June, 1997. The Defendant’s child support obligation will then be reduced to Two Hundred Forty Five Dollars ($245) and absent unusual circumstances, Robert O’Grady will be eighteen (18) years of age and will have graduated from high school by the first day of June, 1998, following which Defendant will no longer have a current child support obligation.

The trial court also ordered that any amount of payment James made since July 1, 1994, which exceeded $379 should be applied to reduce arrearages.

Child Support

[¶ 9.] The parties’ 1993 court approved stipulation regarding child support provided that James was to pay $469 per month “until the minor children reach the age of (19) or graduate from high school, whichever occurs first.” Sean turned 19 on April 15, 1994. Shelly was 18 and a high school graduate as of June 26, 1994. James did not seek court approval for a modification of child support based upon these events until August 1996. From May 1994 through March 1995, however, he prorated the $469 to pay for only two children and paid $284.50 monthly ($117.50 per child plus $50 for ar-rearages).¹ After that he resumed payments based upon the 1993 stipulation ($469 child support; $50 arrearages).

[¶ 10.] James contends that the stipulation provided for an automatic reduction of child support when each child toned 19 or graduated from high school. Therefore, he contends that the trial court in 1996 merely recalculated the correct amount of child support that he should have owed since mid 1994. Vera contends that the stipulation provided a lump sum distribution of child support for all four children and that all children must reach 19 or graduate before there can be a modification. She does not disagree that' age 19 or graduation can be a basis for child support modification, but claims that James should have sought court approval, as he had in 1990, at each claimed triggering event for a reduction of future child support obligation.

[¶ 11.] We begin our analysis with SDCL 25-7-7.3 which provides:

Any past due support payments are not subject to modification by a court or administrative entity of this state, except those accruing in any period in which there is pending a petition for modification of the support obligation, but only from the date that notice of hearing of the petition has been given to the obligee, the obligor, and any other parties having an interest in such matter.

In Vellinga v. Vellinga, 442 N.W.2d 472, 474 (S.D.1989), we explained that this statute:

The express language of SDCL 25-7-7.3 divides past due support payments into two groups: 1) payments which accrue subsequent to the petitioning for modification, and 2) payments which accrue prior to the petitioning for modification. Payments which accrue while a petition for modification is pending may be modified, but only from the date that notice of hearing has been given to the obligee and any other interested parties. Payments which accrued prior to the filing of a petition to modify may not be modified.

The legislature’s intent to prohibit modification in all but very limited circumstances plainly appears on the face of the statute. A narrow window is provided for modification of past due payments which accrue after notice of hearing is given to the obligee. Any other past due support payments are not subject to modification. The use of the term any, understood in its ordinary sense, clearly encompasses both past due support payments which accrued after the effective date of the statute and those which accrued prior to July 1, 1987.

Consequently, the trial court only had the authority to modify the child support from August 29,1996, forward and erred by retroactively modifying it from July 1994.

[¶ 12.] James contends, however, that the 1998 stipulation provided for an automatic reduction in child support and that the trial court merely calculated this reduction. We have on two occasions interpreted language similar to that in the 1993 stipulation adopted by the trial court.

[¶ 13.] The Radigan family had two children. Radigan v. Radigan, 465 N.W.2d 483 (S.D.1991). Under the terms of their divorce decree, William was ordered to pay $750 in child support “until both children reach the age of majority or until further Order of the Court.” This Court noted that:

The court may not impose on William a duty to support his children beyond the age of eighteen, or nineteen if they are still in high school. SDCL 25-5-18.1; Birchfield v. Birchfield, 417 N.W.2d 891, 895 (S.D.1988). William argues that “in effect” the court ordered him to pay child support for his son up to the age of twenty-two because the amount of child support continues undiminished until daughter reaches eighteen. However, the judgment does not allocate child support between son and daughter. The judgment simply awards $750 per month for the support of the minor children, and thus there is no violation of SDCL 25-5-18.1.

465 N.W.2d at 485 (emphasis added). This Court held that William’s remedy was to seek modification at the time the older child reached the age of majority.

[¶ 14.] In Houser v. Houser, 535 N.W.2d 882 (S.D.1995) father prorated his child support and reduced it accordingly when each child reached the age of majority. The decree, however, provided that child support shall be $400 per child “for and on behalf of the minor children” and continue until “said children shall attain the age of majority or until further order of the Court.” This Court interpreted the decree:

It makes no provision for a pro rata distribution of the obligation. We hold that child support under the Decree was to remain at $400.00 until “said children attain the age of majority[.]” (Emphasis added). Because the 1984 Decree provided $400.00 per month in child support, any deviation from this amount was a modification of the decree, not a mutual “interpretation” of the decree by the parties, as claimed by Bob.

535 N.W.2d at 884.

[¶ 15.] As in Radigan and Houser, the court approved stipulation regarding child support, by its terms, terminated only when all of the children turned 19 or graduated. There was no provision for a pro rata distribution of the obligation or an automatic reduction of support (consistent in amount with the guidelines) upon the occurrence of either event as each child attained it. James’ remedy was to seek a modification when a child turned 19 or graduated. Radigan, 465 N.W.2d at 485; Houser, 535 N.W.2d at 884. He did not do so and under the terms of the decree, the full support continued to inure to the benefit of the remaining children².

[¶ 16.] While this Court has encouraged trial courts to enter specific findings on the interpretation of decrees, Houser, 535 N.W.2d at 884, it has also said that because the interpretation of a decree is a question of law, this Court gives no deference. Id. When James finally asked the court to modify the payments, the court considered Vera and James’ incomes and the child support guidelines before reducing the payments. The court found and concluded that the order was “self-executing” to reduce child support upon each child’s attainment of 19 or graduation. The terms of the order did not so provide, however, as there was no provision for the remaining child support as each child turned 19 or graduated. Additionally, the 1993 order was not “self-executing” because a self-executing order does not need intervening court action, Black’s Law Dictionary 1360 (6th ed 1990), and the court considered current circumstances before rendering its decision.³

[¶ 17.] The trial court erred by retroactively decreasing James’ child support obligation back to July 1994 since only payments which accrue while a petition for modification is pending may be modified and only from the date that notice of hearing on the petition has been given to interested parties. Notice in this case was given on August 27, 1996. Modification, if any, was only appropriate from that date forward. Earley v. Earley, 484 N.W.2d 125 (S.D.1992).

Attorney’s Fees

[¶ 18.] Each party requested trial court attorney’s fees. The trial court found that the parties were substantially in the same position and, accordingly, responsible for their own fees.

[¶ 19.] An award of attorney’s fees lies within the sound discretion of the trial court. Clarke v. Clarke, 478 N.W.2d 834 (S.D.1991). The factors that a trial court should consider in awarding attorney’s fees are “the parties relative worth, income, liquidity, and whether either party unreasonably increased the time spent on the case.” Fox v. Fox, 467 N.W.2d 762, 768 (S.D.1991). The schedules attached to the findings of fact, conclusions of law, and order indicate that the trial court considered these factors. In addition, the trial court had been dealing with these parties on a regular basis since 1985 and was very aware of their circumstances. There was no abuse of discretion in ordering that each was responsible for their own attorney’s fees.

[¶ 20.] Vera filed a motion for an award of $1,817.90 in appellate attorney’s fees. This motion is accompanied by an itemized statement of costs and legal services. Malcolm v. Malcolm, 365 N.W.2d 863 (S.D.1985). We deny the motion for the same reasons as expressed by the trial court.

[¶ 21.] The ease is reversed and remanded for proceedings consistent with this opinion.

[¶ 22.] KONENKAMP, J., concurs. [¶ 23.] GILBERTSON, J., concurs with writing. [¶ 24.] MILLER, C.J., and AMUNDSON, J., dissent.

1 . This Court does not look favorably upon personal modifications of child support that have not received trial court approval. Vander Woude v. Vander Woude, 501 N.W.2d 361, 364 (S.D.1993).

2 . Despite the dissent’s assertion, James is not being forced to pay support to his children beyond the age of nineteen. Rather, the amount that he agreed to pay for support now benefits the children who have not graduated from high school or reached the age of nineteen.

3 . Additionally, I also agree with the reasoning in Justice Gilbertson's concurring opinion.