Whalen v. Whalen

490 N.W.2d 276, 1992 S.D. LEXIS 123, 1992 WL 200543
CourtSouth Dakota Supreme Court
DecidedAugust 19, 1992
Docket17637, 17645
StatusPublished
Cited by63 cases

This text of 490 N.W.2d 276 (Whalen v. Whalen) 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
Whalen v. Whalen, 490 N.W.2d 276, 1992 S.D. LEXIS 123, 1992 WL 200543 (S.D. 1992).

Opinions

WUEST, Justice.

Michael Whalen (Husband) appeals from the circuit court’s Order affirming the referee’s Report and Recommendation which dismissed Husband’s Petition for Modification of Child Support. Husband raises the following three issues:

IA. Whether the extended visitation of a child support obligor’s children contemplated in the divorce decree constitutes a change in circumstances sufficient to support a modification of the child support obligation.
IB. Whether a child support obligor must show a change of circumstances in order to modify his child support obligation by reason of payments made pursuant to the divorce decree.
II. Whether the referee and the circuit court abused their discretion by imposing transcript costs upon Husband.

By notice of review, Dianne Whalen (Wife) argues the referee and circuit court should have awarded her attorney fees.

III. Whether the referee and the circuit court abused their discretion by failing to consider all factors before [279]*279denying wife’s motion for attorney’s fees.

FACTS

The parties were married approximately fourteen years before divorcing. They had three minor children. On March 1, 1990, the circuit court granted a divorce to Wife. On May 4, 1990, the circuit court entered a supplemental decree based on a stipulation prepared by Husband, an attorney, which awarded custody of the children to Wife with reasonable and liberal visitation to Husband. Visitation rights included an eight-week summer visitation period during June and July. It also provided Husband pay child support in the amount “of $800.00 per month during the minority of the parties’ children as set forth at SDCL 25-5-18.1 and the Child Support Guidelines of the State of South Dakota.” The supplemental decree required Husband to pay all expenses for medical and dental care for the children. In addition, the decree provided for Husband to pay $600.00 per month as spousal support for seven years. Finally, Husband was required to pay $250.00 per month payments on the automobile Wife was awarded. When the automobile was paid for, the payments were to continue for the balance of the seven years as “alimony.”

Under the supplemental decree the Husband was awarded his interest (50%) in the law office, subject to the debt; the parties’ home, subject to the debt; and his vehicles, subject to the debt. Husband had a small amount of furniture. Wife received the bulk of the parties’ household goods, furnishings, and furniture, her 1988 automobile, mink coat, jewelry, and one-half of Husband’s IRA. No debt was allocated to Wife. Husband assumed the remaining balance of Wife’s educational loans and kept his membership in a hunting club.

PROCEDURAL FACTS

Husband’s Petition for Modification, dated June 1, 1990, claimed a change of circumstances on the following basis:

(A) The minor children would be living with him for two months of each summer and SDCL 5-7-6.14 allowed an abatement during those months; and
(B) Payment of $600.00 per month alimony was income to Wife and a deduction to Husband under SDCL 25-7-6.6 and 25-7-6.7(6).

From the petition hearing the referee specifically found Husband’s monthly gross income was $2,991.17 and, after allowable deductions (not including a deduction for alimony), his net monthly income was $2,200.97. The referee further determined Wife’s average presumed net monthly income (exclusive of alimony) was $631.53. The parties stipulated Husband had the minor children for more than twenty-nine consecutive days. The referee concluded she did not have jurisdiction to modify Husband’s child support obligation because there were no changes in circumstances since the supplemental decree was entered. The referee denied Wife’s request for attorney fees but awarded Wife the cost of preparing the hearing transcript.

The referee entered her Report and Recommendation. Pursuant to SDCL 25-7A-22, the circuit court held a hearing on Husband’s objections. Husband did not object to the facts found by the referee, but objected to her conclusions of law. He objected particularly to the referee’s conclusion that she was without jurisdiction to modify the child support obligation because no “change of circumstances” had been shown. More specifically, Husband argued the referee erred by failing to interpret “Child Support Guidelines of the State of South Dakota” as used in the supplemental decree to include the abatement statute and an income adjustment for alimony paid. Finally, Husband challenged the authority of the referee to assess the costs of the hearing transcript against him.

At the hearing, Husband further argued: (1) The abatement statute impliedly confers jurisdiction; and (2) the child support provision of the supplemental decree was vague. The circuit court affirmed the referee’s conclusion that she did not have jurisdiction to modify the child support obligation un[280]*280der the “change of circumstances” rationale. The circuit court denied Wife’s request for attorney’s fees.

This case involves the application and interpretation of South Dakota’s revised child support statutes, including the power of the court and referee to modify a divorce decree under SDCL 25-7A-22 and the effects of SDCL 26-7-6.6, -6.7, and - 6.14. The construction of a statute is a question of law. Meyerink v. Northwestern Public Service Co., 391 N.W.2d 180, 183 n. 5 (S.D.1986); In re Petition of Famous Brands, Inc., 347 N.W.2d 882, 884 (S.D.1984). The referee’s conclusions of law are fully reviewable on appeal. Janke v. Janke, 467 N.W.2d 494, 497 (S.D.1991). This case also involves the authority of referees to impose costs and the propriety of awarding attorney’s fees. These matters are reviewed for a clear abuse of discretion. See Shoop v. Shoop, 460 N.W.2d 721, 726 (S.D.1990).

I. CHANGE OF CIRCUMSTANCES REQUIREMENT

SDCL 25-7A-22 furnishes the rules for modifying a child support obligation. It provides in pertinent part:

[A child support] obligor, an obligee or the assignee may file a petition ... to increase or decrease child support based on a change in circumstances. ... The matter shall be set for hearing before a referee ... appointed by the court, pursuant to statute, and after due notice to all parties....

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Bluebook (online)
490 N.W.2d 276, 1992 S.D. LEXIS 123, 1992 WL 200543, Counsel Stack Legal Research, https://law.counselstack.com/opinion/whalen-v-whalen-sd-1992.