Alexander v. Hamilton, 18407
| Decision Date | 25 April 1994 |
| Docket Number | No. 18407,18407 |
| Citation | 525 N.W.2d 41 |
| Parties | Shane M. ALEXANDER, Plaintiff and Appellant, v. Callie A. HAMILTON, Defendant and Appellee. . Considered on Briefs |
| Court | South Dakota Supreme Court |
Linda Lea M. Viken of Viken, Viken, Pechota, Leach & Dewell, Rapid City, for plaintiff and appellant.
Catherine E. Mattson, Rapid City, for defendant and appellee.
Shane M. Alexander (Father) appeals from provisions of a judgment in a paternity action respecting child support, awarding a federal income tax exemption, dividing personal property, awarding certain attorney fees, and assigning a specific day care provider.
Father and Callie Hamilton (Mother) cohabited, without being married, from June 1989, to November 1992. Their relationship produced Elissa Marie Hamilton-Alexander (Elissa) on February 8, 1991.
Father earned $7.97 per hour as a laborer. His work schedule varied each week on a set schedule. He worked thirty-six hours one week and forty-eight hours the next week. He received sixteen hours of overtime every month with time-and-a-half compensation in addition to $1.00 per hour incentive pay. Mother earned $4.50 per hour as a receptionist and worked thirty to forty hours per week.
As the relationship soured, the parties lived apart briefly and finally separated on November 12, 1992. One day later, Father stated that Mother threatened to kill both Father and Elissa to prevent Father from having Elissa's custody. Father reported the threats to the authorities, completed the necessary forms and procedures, and had Mother placed temporarily in the psychiatric ward at the Rapid City Regional Hospital from November 13 to November 14 by way of a petition for emergency commitment. Thereafter a complicated skein of procedure wound around the question of Elissa's custodians.
On November 16, 1992, Mother commenced a proceeding for a protection order under SDCL 25-10. Judge Roland Grosshans granted a temporary protection order to Mother and awarded her custody of Elissa.
At that hearing, Mother's counsel told Father's counsel that Mother left personal effects at Father's house. Father's counsel said she would make arrangements for the return of such property after Mother provided her with a list.
On January 4, 1993, Mother filed two motions under the caption of the protection order case asking for custody of Elissa.
In another procedural permutation, on November 20, 1992, Judge John Konenkamp heard an abuse and neglect proceeding under a juvenile court file number involving the Department of Social Services of the State of South Dakota (Department), the parties and Elissa. Judge Konenkamp concluded that the issue was custody rather than abuse or neglect and awarded joint custody of Elissa to the parties with Mother having her for four days and Father for three days a week. Judge Konenkamp overrode the protection order in respect to visitation, ordered the custody arrangement for thirty days and advised the parties to seek a civil remedy. Following the Department's recommendations, Judge Konenkamp ordered the parties to use Candace Johnson as the day care provider. He asked both parties if they objected to Candace Johnson; neither party objected.
On December 11, 1992, at the final hearing on the protection order proceeding, Judge Grosshans took notice of the dependency and neglect file, Judge Konenkamp's order, and the Department's reports. Judge Grosshans agreed with the Department's reports and Judge Konenkamp's order, granted a mutual restraining order and continued Judge Konenkamp's order.
On January 11, 1993, Father sued Mother under SDCL 25-8-7 requesting the court: (1) to declare him to be the father of Elissa; (2) to grant him custody of Elissa but to allow Mother reasonable visitation rights; (3) to order Mother to pay support pursuant to the statutory guidelines; (4) to recover his attorney's fees and costs of the action; and (5) to receive "such other and further relief as the Court deems just and equitable."
Mother answered and counterclaimed requesting, inter alia, the court to grant custody with support and "such other and further relief as the Court deems just and equitable on the premises." No reply to the counterclaim appears in the record.
On January 27, 1993, Judge Grosshans ordered, during the pendency of the case, that the parties have joint legal custody of Elissa, with primary physical custody to Father pursuant to the parties' agreement. The parties established a visitation schedule for Mother. Visitation was to occur every other weekend from 5:00 p.m. on Friday until 7:00 p.m. on Sunday. Mother also was to have Elissa overnight one night each week and Mother was to be allowed to visit Elissa between 5:00 p.m. and 7:00 p.m. one night during the week. In addition, the parties agreed to certain holidays visitation on an alternating schedule. Judge Grosshans also ordered a custody evaluation; however, that order lapsed because the parties agreed by written stipulation to Elissa's custody and parental visitation.
The parties' stipulation closely followed their previous agreement with an addition of six weeks summer visitation by Mother, with the terms to be settled at trial. The stipulation also included a provision assigning parental responsibility to take the child to and from day care on certain days.
On January 27, 1993, Judge Grosshans signed an order closing the protection order file and merging its records into this case.
The parties tried the remaining issues of support and the summer visitation before Judge Grosshans on May 12, 1993. Some disputes over ownership of certain items of personalty remained between the parties. Mother requested that the court hear and resolve those issues over objection of Father.
The trial judge ruled on several issues, including the personal property issues, and made written findings of fact and conclusions of law. On May 24, 1993, the trial judge signed a "Judgment of Paternity, Custody, Visitation, Child Support, Medical Bills, Insurance, Attorney Fees, IRS Deduction, Day Care Bills and Provider."
Father has appealed, claims five errors, and seeks attorney fees on appeal.
DECISION
A trial judge must generally base an award of child support upon the schedules in SDCL 25-7-6.2. Bloom v. Bloom, 498 N.W.2d 213, 217 (S.D.1993). Deviations must be based on the factors enumerated in SDCL 25-7-6.10. Id.
In the present matter, the trial judge specifically found that the parties would have almost equal time with Elissa and, therefore, did not award child support pursuant to SDCL 25-7-6.10(5). Under that statute, the trial judge may allow a deviation from the schedule based upon custody and visitation provisions when "children share substantial amounts of time with each parent...." SDCL 25-7-6.10(5).
Father states the court's finding relative equality of time is incorrect. Father alleges that he will have physical custody of Elissa 67% of the time and Mother but 33% of the time. On the other hand, Mother states that she will, in a two week period, have physical custody of Elissa 3- 1/2 days one week and 2- 1/2 days the next week. Mother also notes the vagaries of time when the child must be taken to and from the day care provider.
To prevail Father must show that the trial judge abused his discretion in deviating from the child support schedules. Nelson v. Nelson, 454 N.W.2d 533, 534 (S.D.1990). This court will not "determine whether (we) would have made an original like ruling, but whether we think a judicial mind, in view of the law and circumstances of the particular case, could reasonably have reached such a conclusion." Id. (citing Havens v. Henning, 418 N.W.2d 311, 312 (S.D.1988)).
Both parties live in the same area and have worked out a rather complex visitation schedule. Since the statute does not require an equal split, but only "substantial" periods of time with each parent, to deviate from the guidelines, we conclude that the trial judge did not abuse his discretion.
In addition the trial judge stated in Conclusion of Law VI "That child support will be paid by the parties in the form of day care services." SDCL 25-7-6.10(6) permits a trial judge to deviate from the schedule for "(c)hild care expenses for the child for whom the support is being set...." Regardless of its name, Mother is ordered to make cash payments based upon her income in the amount of 30% of the child care payments. Thus, Mother is contributing to the support of Elissa and the deviation was not in error.
Finding no error or abuse of discretion, we affirm on this issue.
Father relies on 26 U.S.C. 152(e) and South Dakota cases asserting that the trial judge should not have alternated the income tax exemptions between the parties. The federal statute in summary declares that, absent an agreement, the tax exemption in a divorce case should go to the custodial parent. See 26 U.S.C. § 152(e). We have followed this law in recent cases on the subject. See Voelker v. Voelker, 520 N.W.2d 903 (S.D.1994); Earley v. Earley, 484 N.W.2d 125 (S.D.1992) cert. denied 506 U.S. 895, 113 S.Ct. 272, 121 L.Ed.2d 200 (1992); Brandriet v. Larsen, 442 N.W.2d 455 (S.D.1989); Sarver v. Dathe, 439 N.W.2d 548 (S.D.1989); State, Fall River County v. Dryden, 409 N.W.2d 648 (S.D.1987).
Father's argument, however, overlooks an important point; the parents were never married. 26 U.S.C. § 152(e) only applies to divorces and legal separations, not to a case such as we see here. The Court of Appeals of Oregon addressed a similar contention in Gleason v. Michlitsch, 728 P.2d 965 (Or.App.1986), and...
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Jacobson v. Jacobson, 21088.
...§ 152(e).4 Accordingly, trial courts have no authority to award dependent exemptions for federal income tax purposes. Alexander v. Hamilton, 525 N.W.2d 41, 45 (S.D.1994); Voelker v. Voelker, 520 N.W.2d 903, 909 (S.D.1994); Earley v. Earley, 484 N.W.2d 125, 128 (S.D.1992),cert. denied 506 U.......