Weekley v. Weekley

1999 SD 162, 604 N.W.2d 19, 1999 S.D. LEXIS 184

• Court: South Dakota Supreme Court
• Decided: December 29, 1999
• Docket: None
• Status: Published

Opinions

SABERS, Justice.

[¶ 1.] Tristina Weekley made a motion to modify child support and eliminate alimony. In response, Todd Weekley filed a motion to dismiss. The trial court granted Todd’s motion to dismiss the proposed modification of- child support, but denied Todd’s motion to dismiss the proposed modification of alimony. Tristina appealed and Todd filed a notice of review. We affirm.

FACTS

[¶ 2.] Tristina and Todd Weekley were married April 6, 1985 in Rapid City, South Dakota. In August, they moved to California where they resided for the next nine years. They had one child, Taylor A. Weekley, who was born November 25, 1990.

[¶ 3.] On June 16, 1994, while still residing in Contra Costa County, California, the parties entered into a “Marital Settlement Agreement.” This agreement divided the community property, addressed custody and visitation, child support, alimony and attorney’s fees. Pursuant to those terms, Tristina received primary physical custody of Taylor and relocated to Rapid City, South Dakota. In exchange, she obligated herself to pay: (1) $570 per month in spousal support to Todd, (2) $330 per month in child support to Todd, (3) 75% of travel costs incurred for Taylor to go to California for visitation, (4) the medical insurance premium for both Taylor and Todd, as long as he is eligible to be covered under her plan, plus 75% of all uncovered medical expenses for Taylor, and (5) 100% of her own child care expenses as well as 50% of child care expenses incurred by Todd.¹ The spousal support was to continue until the “death of either party, remarriage of husband, or further order of Court, whichever occurs first.” Tristina further agreed that Todd would be reimbursed for his attorney fees from their 1994 income tax refund.

[¶ 4.] The Agreement also set forth:

H. Dissolution of Marriage Action:

In the event that either party, at any time in the future, elects to file a dissolution of marriage action, this Marital Settlement Agreement entered into herein shall be incorporated and made a part of said Judgment of Dissolution of Marriage. The terms and conditions of this Marital Settlement Agreement in all aspects shall apply to that dissolution of marriage of [sic] action, and the provisions of this Marital Settlement Agreement shall be adopted and become a part of any Judgment of Dissolution of Marriage so filed.

F. Jurisdiction.

The parties hereby agree and consent to California being the State having jurisdiction over issues regarding the minor child. The parties expressly waive the right to petition in any jurisdiction other than California regarding issues of the minor child. In the event that a party shall file a petition and/or legal action in a State other than California regarding issues of the minor child, said party hereby agrees to pay the costs incurred by the other party for attorney’s fees and transportation costs in traveling to that jurisdiction to litigate any such action that has been filed. This provision does not apply to any legal action filed in California regarding the minor child.

[¶ 5.] On October 17, 1994, the parties received a Judgment of Legal Separation from the Contra Costa County, California. The terms of the Marital Settlement Agreement were incorporated into the Judgment of Legal Separation.

[¶ 6.] Tristina moved back to Rapid City with her daughter, Taylor. She is employed with Regional West Center for Behavioral Health as a Registered Nurse and Clinical Education Coordinator. Even though she earns $50,872 per year, Tristi-na and Taylor live with Tristina’s parents due to her financial obligations to Todd.

[¶ 7.] Todd has been domiciled in California since the legal separation was entered into. He has not worked since December 1989. He was involved in an automobile accident in August 1992 and claims that his inability to work stems from the accident. Tristina is unaware of any medical report which supports Todd’s claim of inability to work. Therefore, she alleges that he is “voluntarily unemployed.” Apparently, his only income is the alimony and child support payments from Tristina.

[¶ 8.] On January 16, 1996, Tristina filed for a divorce in Rapid City, South Dakota. Todd was personally served at his mother’s home in Rapid City while he was visiting from California. In his answer, Todd denied that the court had jurisdiction over child support or custody issues and asserted that the doctrine of res judicata controlled all issues.

[¶ 9.] After some negotiations, Todd and Tristina signed a Stipulation and Agreement in January of 1997. This Stipulation, drafted by Tristina’s present lawyer, recognized the parties’ Marital Settlement Agreement:

The parties acknowledge that they entered into a ‘Marital Settlement Agreement’ on June 16, 1994 and that subsequent to that agreement on October 25, 1994 a Judgment and Decree of Legal Separation was issued by the Superior Court of California, County of Contra Costa. The Agreement was based upon facts and circumstances then existing and contained provisions relating to custody, support, property and debt division.

The purpose of the Stipulation was to secure a divorce in South Dakota and to allow Tristina to litigate whether the jurisdiction clause, Section F, of the Marital Settlement Agreement was binding:

The parties stipulate and agree that Plaintiff herein, Tristina Weekly, [sic] will be allowed to argue to the Court that the Jurisdiction provision should not be incorporated in the final agreement, notwithstanding the other terms of the Marital Settlement Agreement. Defendant herein, Todd Weekley, will be allowed to argue that whether or not the jurisdiction remains in California, he is entitled to the benefits of the provision relating to attorney’s fees. The parties will present argument to the Court and agree to be bound by the Court’s decision on that provision. All other provisions of the Marital Settlement Agreement shall be incorporated and become a Judgment of this Court as a part of the final Judgment and Decree of Divorce. Neither party waives any rights they may have to seek a subsequent modification, appropriate under the law, of any of the terms of the agreement as incorporated into the Judgment and Decree of Divorce.

(emphasis added).

[¶ 10.] After the parties submitted briefs and gave oral arguments, the trial court held that Section F did not violate public policy and was binding. On December 16, 1997, a Judgment and Decree of Divorce was entered granting the parties a divorce on the grounds of irreconcilable differences. The divorce decree incorporated the Stipulation, which partially incorporated the Marital Settlement Agreement, and specially incorporated Section F. This order was not appealed.

[¶ 11.] On August 24, 1998, Tristina filed a “Verified Motion to Modify Child Support and to Eliminate Alimony.” Todd was personally served on August 26, 1998 again at his mother’s home in Rapid City while he was visiting from California. In response, Todd filed a motion to dismiss on September 10,1998.

[¶ 12.] On September 23, 1998, the trial court granted Todd’s motion to dismiss the modification of child support, but denied his motion to dismiss Tristina’s motion to eliminate alimony. Tristina appeals raising one issue:

Whether the trial court erred in granting Todd’s motion to dismiss the proposed modification of child support.

Todd filed a notice of review pursuant to SDCL 15-26A-22 and raises one issue:

Whether the trial court erred when it denied his motion to dismiss Tristina’s proposed modification of alimony.

Tristina also made a timely motion for an award of appellate attorney fees in the amount of $4,864.62.

STANDARD OF REVIEW

A motion to dismiss under SDCL 15-6-12(b) tests the legal sufficiency of the pleading, not the facts which support it. For purposes of the pleading, the court must treat as true all facts properly pled in the complaint and resolve all doubts in favor of the pleader. ‘Our standard of review of a trial court’s grant or denial of a motion to dismiss is the same as our review of a motion for summary judgment - is the pleader entitled to judgment as a matter of law?’

Steiner v. County of Marshall, 1997 SD 109, ¶ 16, 568 N.W.2d 627, 631 (quoting Stumes v. Bloomberg, 1996 SD 93, ¶ 6, 551 N.W.2d 590, 592) (internal citations omitted). Furthermore, “[contractual stipulations in divorce proceedings are governed by the law of contracts. The interpretation of a contract is a matter of law for a court to decide.” Beermann v. Beermann, 526 N.W.2d 127, 129 (S.D.1995) (quoting Estate of Thomas v. Sheffield, 511 N.W.2d 841, 843 (S.D.1994) (quoting Seablom v. Seablom, 348 N.W.2d 920, 924 (N.D.1984))).

[¶ 13.] 1. WHETHER THE TRIAL COURT ERRED IN GRANTING TODD’S MOTION TO DISMISS THE PROPOSED MODIFICATION OF CHILD SUPPORT.

[¶ 14.] Tristina strenuously argues that South Dakota, not California, has jurisdiction to modify the child support order. She claims that when Todd signed the Stipulation, he agreed to allow South Dakota to enter child support and alimony orders. She further argues that the Uniform Interstate Family Support Act (UIF-SA) does not apply to this ease for three reasons: (1) Todd did not object to the South Dakota trial court entering a support order; (2) neither the Stipulation nor the Marital Settlement Agreement reserves the question of child support to California courts; and (3) the California child support order was terminated when the Decree of Legal Separation was entered. Alternatively, she argues that if UIFSA did apply, South Dakota still has jurisdiction because Todd consented and waived California’s continuing, exclusive jurisdiction.

[¶ 15.] Todd argues that Section F of the Marital Separation Agreement is binding, as determined by the trial court when the divorce was granted. Furthermore, the California court is the issuing tribunal because it entered a child support order which was incorporated into the Judgment of Legal Separation. He also asserts that he did not consent to a change in jurisdiction for the child support order. Thus, UIFSA applies and California has continuing, exclusive jurisdiction over child support.

[¶ 16.] UIFSA has been adopted in both California and South Dakota. See Cal. Fam.Code' 4900-4976; SDCL ch. 25-9B. Under UIFSA, the state issuing a child support order retains continuing, exclusive jurisdiction:

(1) As long as [the state issuing the order] remains the residence of the obligor, the individual obligee, or the child for whose benefit the support order is issued; or

(2) Until [each party has] filed written consent[ ] with the tribunal of this state for a tribunal of another state to modify the order and assume continuing, exclusive jurisdiction.

Cal. Fam.Code 4909; SDCL 25-9B-205. An application of the facts to the law leads to only one conclusion - UIFSA applies to this case.

[¶ 17.] California was the only tribunal to enter a child support order in this case. The Marital Separation Agreement was signed by both parties and ordered Tristi-na to pay Todd $330 per month in child support. The California court entered a Judgment of Legal Separation which incorporated the terms of the Marital Separation Agreement. The South Dakota trial court did not enter its own child support order, as Tristina argues. To the contrary, it found that child support was an “issue regarding the minor child” and, therefore, fell under Section F of the Marital Settlement Agreement which reserved such issues to the jurisdiction of California courts.² Thus, California is the issuing tribunal and Ml faith and credit is to be afforded to its orders.

[¶ 18.] Todd is still domiciled in California and he did not consent to South Dakota entering a child support order. Upon signing the Stipulation, Todd agreed to allow Tristina to litigate whether Section F was a violation of public policy; he did not expressly or implicitly consent to waive California’s continuing, exclusive jurisdiction over child support:

The parties stipulate and agree that that Plaintiff herein, Tristina Weekly, [sic] will be allowed to argue to the court that the Jurisdiction provision should not be incorporated in the agreement.... The parties will present argument to the Court and agree to be bound by the Court’s decision on that provision.

The trial court found Section F to be binding and specifically incorporated it into the divorce decree. Thus, in accordance with their own Stipulation, the parties bound themselves to the trial court’s determination that California has jurisdiction over the child support issue. Furthermore, written consent to change jurisdiction over child support must be filed with the tribunal of the state that issued the original child support order, which is California in this case. Cal. Fam.Code 4909(a)(2); SDCL 25-9B-205(a)(2). That was not done. Therefore, pursuant to Section F of the Marital Separation Agreement, the Stipulation and UIFSA, California has continuing, exclusive jurisdiction to modify the child support order it entered.³ SDCL 25-9B-205(d). See also Freeman v. Sadlier, 1998 SD 114, ¶ 10, 586 N.W.2d 171, 173-74 (holding that the trial court’s attempt at modification of a Utah child support order, which was registered in South Dakota, was nullified due to lack of subject matter jurisdiction pursuant to UIFSA).

[¶ 19.] We recognize that Tristina may have entered into a “bad bargain” when she signed the Marital Settlement Agreement. However, “it is not the role of courts in modification proceedings to relieve a party of his or her bad bargain.” Jameson v. Jameson, 1999 SD 129, ¶20, 600 N.W.2d 577 (citing Olson v. Olson, 1996 SD 90, ¶11, 552 N.W.2d 396, 399; Whalen v. Whalen, 490 N.W.2d 276, 283 (S.D.1992); Jameson v. Jameson, 90 S.D. 179, 239 N.W.2d 5, 7 (S.D.1976) (Jameson I)).

[¶ 20.] 2. WHETHER THE TRIAL COURT ERRED WHEN IT DENIED TODD’S MOTION TO DISMISS TRISTINA’S PROPOSED MODIFICATION OF ALIMONY.

[¶ 21.] The California Judgment of Legal Separation incorporated the parties’ Marital Separation Agreement which obligated Tristina to pay Todd $570 per month in alimony. This agreement was subsequently incorporated into the South Dakota divorce decree. Todd argues UIFSA also governs this alimony order that was entered in California. UIFSA states: “ ‘[sjpousal-support order’ means a support order for a spouse or former spouse of the obligor.” Cal. FamUode 4901(18);. SDCL 25-9B-101(22). It further states:

A tribunal of this state issuing a support order consistent with the law of this state has continuing, exclusive jurisdiction over a spousal support order throughout the existence of the support obligation. A tribunal of this state may not modify a spousal support order issued by a tribunal of another state having continuing, exclusive jurisdiction over that order under the law of that state.

Cal. FamUode 4909(f); SDCL 25-9B-205(f). Todd claims that South Dakota never rendered its own alimony order, instead, it recognized the California order by incorporating it in the divorce decree. Therefore, he concludes that California retains continuing, exclusive jurisdiction over the alimony order.

[¶ 22.] Tristina argues that the California court lost its jurisdiction by the agreement of the parties and the subsequent entry of the divorce decree. She explains that once South Dakota entered the divorce decree, California’s legal separation was superseded and no longer valid.

[¶ 23.] Todd is partially correct in arguing that UIFSA applies to spousal support orders. However, it does not apply in this instance.

[¶ 24.] It is undisputed that Tristina agreed, in the California legal separation documents, to pay $570 each month to Todd for support “continuing until the death of either party, remarriage of Husband, or further order of Court, whichever occurs first.” It is also undisputed that the parties voluntarily read and signed the Stipulation. This document provided: “All other provisions [excepting Section F] of the Marital Settlement Agreement shall be incorporated and become a Judgment of this Court as a part of the final Judgment and Decree of Divorce.” (emphasis added). Therefore, Todd consented to South Dakota’s assumption of jurisdiction over all issues except those “issues regarding the minor child.” In contrast to child support, consent waiving jurisdiction over spousal support does not need to be provided to the issuing tribunal. See Cal. FamUode 4909; SDCL 25-9B-205.

[¶ 25.] By incorporating the alimony provisions into the divorce decree, the alimony merged into and became a judgment of a South Dakota court, just as the parties expressly intended. See generally Beermann, 526 N.W.2d at 129 (recognizing “a divorce decree which incorporates a property settlement agreement is a final and conclusive adjudication ... ”); Larsgaard v. Larsgaard, 298 N.W.2d 381, 383 (S.D.1980) (stating that “[m]odification of support agreements can be ordered even though the original judgment was based upon a stipulation between the parties”); Jameson I, 239 N.W.2d at 7 (approving of the incorporation of a stipulation and agreement into the divorce decree). Thus, the Marital Separation Agreement is extinguished and the divorce decree is the final dispositive order regarding alimony. Todd did not appeal the incorporation of the California legal separation into the South Dakota divorce decree; in fact, he consented to it when he signed the Stipulation. Therefore, alimony is modifiable only in South Dakota:

It is well settled in this state that a divorce court has continuing jurisdiction over its decrees for alimony, separate maintenance, and custody and support of children. An application for modification or enforcement of such decree is a supplementary proceeding incidental to the original suit. It is not an independent proceeding or the commencement of a new action.

Hershey v. Hershey, 467 N.W.2d 484, 486 (S.D.1991) (quoting Eggers v. Eggers, 82 S.D. 675, 679, 153 N.W.2d 187, 189 (1967) (citations omitted)).

[¶ 26.] We affirm both Issues 1 and 2.

[¶ 27.] Tristina also made a motion for an award of appellate attorney fees. She submitted an affidavit and itemized statements reflecting her attorney fees and costs incurred to be $4,864.62. See Malcolm v. Malcolm, 365 N.W.2d 863, 866 (S.D.1985). In deciding whether a party is entitled to appellate attorney fees, we consider the “property owned by each party, their relative incomes, the liquidity of the assets, and whether either party unreasonably increased the time spent on the case.” Abrams v. Abrams, 516 N.W.2d 348, 352 (S.D.1994) (quoting Caughron v. Caughron, 418 N.W.2d 791, 794 (S.D.1988) (citation omitted)). Considering these factors in this case, Todd shall pay $2,000 to Tristina for attorney fees.

[¶ 28.] KONENKAMP and GILBERTSON, Justices, concur. [¶ 29.] MILLER, Chief Justice, and AMUNDSON, Justice, concurs in part and dissents in part.

1 . Todd’s attorney drafted the Marital Settlement Agreement. Tristina was not represented.

2 . The South Dakota trial court also held, in 1997, that Section F was binding and did not violate public policy. Tristina did not appeal that decision.

3 . The dissent improperly claims that two child support decrees have been entered in this case. Two child support orders could not have been entered in this case. The trial court unequivocally stated that, pursuant to Section F of the Marital Settlement Agreement, it did not have jurisdiction over the issue of child support; instead, California had continuing, exclusive jurisdiction. The trial court did not request to see financial documents of the parties nor were there discussions of applying the child support guidelines. If the trial court did enter an order, why would Tristina, the custodial parent who was paying child support to the non-custodial parent and who was residing with her parents, wait nine months before asking for a modification? The answer is simple - she waited because the trial court did not enter an order that she could modify.

Assuming, for the sake of the dissent's argument, the trial court did enter a second child support order, it would have violated UIFSA. Therefore, pursuant to South Dakota law, it would have been declared void. See Freeman v. Sadlier, 1998 SD 114, ¶¶ 9-10, 586 N.W.2d 171, 173-74 (holding that the requirements under UIFSA were not met; therefore, a South Dakota judgment modifying a Utah child support order was declared void). Either way, California has continuing, exclusive jurisdiction over this child support order. A South Dakota court is prohibited from modifying the child support order of a court that maintains continuing, exclusive jurisdiction. Full Faith and Credit for Child Support Orders Act, 28 USC § 1738B (West Supp.1999).