Vellinga v. Vellinga

442 N.W.2d 472, 1989 S.D. LEXIS 102, 1989 WL 67531
CourtSouth Dakota Supreme Court
DecidedJune 21, 1989
Docket16139
StatusPublished
Cited by49 cases

This text of 442 N.W.2d 472 (Vellinga v. Vellinga) 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
Vellinga v. Vellinga, 442 N.W.2d 472, 1989 S.D. LEXIS 102, 1989 WL 67531 (S.D. 1989).

Opinions

McMURCHIE, Circuit Judge.

Husband appeals the trial court’s denial of his request for retroactive modification of his child support obligation and claims the trial court erred in interpreting the terms of his obligation and in calculating arrearages.

FACTS

John (husband) and Delores (wife) Vellin-ga were divorced in 1981. At the divorce hearing, husband and his attorney1 offered a stipulation and agreement (stipulation) which was accepted by the trial court and incorporated by reference in the divorce decree.

Under the terms of the stipulation, wife was granted custody of the couple’s one child and husband agreed to pay child support. Husband was employed as a real estate salesman at the time of the divorce and has continued to be so employed. The stipulation required him to pay 15% of his gross earnings as child support. Husband was to make the support payments on or about the fifth day of each month following receipt of his commission check.

Husband fell behind in his support payments. He made no payments in 1986. When this pattern of non-payment continued until September 1987, wife filed an order to show cause, seeking arrearages. Wife requested that arrearages be based [473]*473upon 15% of husband’s gross earnings from real estate commissions.

The hearing was held on October 26, 1987. Three days prior to the hearing husband filed a petition urging the trial court to either: 1) interpret the terms of the stipulation to mean that his support obligation was based upon his total income as reported in his income tax return, or 2) retroactively modify and recalculate his support obligation based upon either his income as taken from his tax returns or upon his commission income after subtracting his business expenses. Husband urged the trial court to adopt one of these alternative theories rather than base his support obligation on his gross income from real estate commissions.

The trial court ruled that husband’s support obligation was to be based upon his gross earnings from real estate commissions. The trial court found that husband’s gross earnings from real estate commissions totaled $226,939.25 for the period of time from 1981 through October 23, 1987. The trial court further found, by applying the 15% formula, that husband was obligated to pay $34,040.89 for the same period of time. From this amount the trial court subtracted the amount of child support that husband had paid, $11,202.50,2 to arrive at a finding of arrearages in the amount of $22,838.39. Judgment was entered accordingly.

ISSUE I

DID THE TRIAL COURT ERR IN DENYING HUSBAND’S REQUEST FOR MODIFICATION OF HIS PAST DUE SUPPORT PAYMENTS?

Husband contends that the trial court had the authority to retroactively modify his support obligation. Specifically, he claims that SDCL 25-7-7.3 only applies to payments which accrue after the effective date of the statute. He contends that the trial court erred in denying his request for retroactive modification of the payments which accrued prior to July 1, 1987.

Wife urges that the trial court properly denied husband’s request for retroactive modification. She asserts that SDCL 25-7-7.3 prohibits modification of arrearages which accrued prior to the time that the trial court was petitioned for modification.

Prior to passage of SDCL 25-7-7.3, this court held that a trial court had authority to retroactively modify child support payments. State ex rel. Larsgaard v. Larsgaard, 298 N.W.2d 381 (S.D.1980). Retroactive modification was permitted under the discretion provided by SDCL 25-4-41 and SDCL 25-4-45. Id. Modification was allowable even where the original judgment was based upon a stipulation between the parties. Connolly v. Connolly, 270 N.W.2d 44 (S.D.1978).

In 1987, however, the South Dakota Legislature addressed the issue of retroactive modification of past due support payments with the enactment of SDCL 25-7-7.3. That statute 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 obli-gee, the obligor, and any other parties having an interest in such matters.

The question of whether SDCL 25-7-7.3 is to be given retroactive application is an issue of first impression for this court. The construction of a statute is a question of law. Nash Finch Co. v. South Dakota Dept. of Rev., 312 N.W.2d 470 (S.D.1981). Rules regarding the construction of statutes have, however, been set forth by the South Dakota Legislature. Statutes are not to be construed as retroactive unless such intention plainly appears. SDCL 2-14-21. Words are to be under[474]*474stood in their ordinary sense. SDCL 2-14-1.

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 accrued 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.

In applying the rules of statutory construction to SDCL 25-7-7.3

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Wiseman v. Wiseman
2015 SD 23 (South Dakota Supreme Court, 2015)
Heumiller v. Heumiller
2012 S.D. 68 (South Dakota Supreme Court, 2012)
Diesel MacHinery, Inc. v. Manitowoc Crane Group
777 F. Supp. 2d 1198 (D. South Dakota, 2011)
Culhane v. Michels
2000 SD 101 (South Dakota Supreme Court, 2000)
Jacobson v. Jacobson
2000 SD 60 (South Dakota Supreme Court, 2000)
In Re the Conditional Use Permit Granted to Van Zanten
1999 SD 79 (South Dakota Supreme Court, 1999)
Matter of Van Zanten
1999 SD 79 (South Dakota Supreme Court, 1999)
O'Grady v. O'Grady
1998 SD 89 (South Dakota Supreme Court, 1998)
First Dakota Title, Ltd. Partnership v. Codington County
1996 SD 125 (South Dakota Supreme Court, 1996)
In Re the Estate of Nelson
1996 SD 27 (South Dakota Supreme Court, 1996)
Houser v. Houser
535 N.W.2d 882 (South Dakota Supreme Court, 1995)
Bess v. Bess
534 N.W.2d 346 (South Dakota Supreme Court, 1995)
Ellis v. City of Yankton
526 N.W.2d 124 (South Dakota Supreme Court, 1995)
Cordell v. Codington County
526 N.W.2d 115 (South Dakota Supreme Court, 1994)
National Farmers Union Property & Casualty Co. v. Bang
516 N.W.2d 313 (South Dakota Supreme Court, 1994)
Stover v. Critchfield
510 N.W.2d 681 (South Dakota Supreme Court, 1994)
State v. French
509 N.W.2d 693 (South Dakota Supreme Court, 1993)
Steffens v. Peterson
503 N.W.2d 254 (South Dakota Supreme Court, 1993)
King v. John Hancock Mutual Life Insurance Co.
500 N.W.2d 619 (South Dakota Supreme Court, 1993)
Farmland Insurance Companies of Des Moines v. Heitmann
498 N.W.2d 620 (South Dakota Supreme Court, 1993)

Cite This Page — Counsel Stack

Bluebook (online)
442 N.W.2d 472, 1989 S.D. LEXIS 102, 1989 WL 67531, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vellinga-v-vellinga-sd-1989.