Bloom v. Bloom
| Decision Date | 08 October 1992 |
| Docket Number | No. 17852,17852 |
| Citation | 498 N.W.2d 213 |
| Parties | Allen R. BLOOM, Plaintiff and Appellee, v. Sylvia K. BLOOM, Defendant and Appellant. . Considered on Briefs |
| Court | South Dakota Supreme Court |
Leon J. Vander Linden of Delaney, Vander Linden & Delaney, Webster, for plaintiff and appellee.
Vicki L. Tucek, Aberdeen, for defendant and appellant.
Sylvia K. Bloom (mother) appeals a trial court order denying her motion for an increase in child support from Allen R. Bloom (father). We affirm.
Mother and father were married in 1971 and divorced in 1990. Three children were born during the marriage: two daughters, ages 16 and 13; and, a son, age 10. In a settlement agreement incorporated in the parties' divorce decree, father agreed that mother should have actual physical custody of the children and further agreed to pay child support in the amount of $1,000 per month for all three children. In addition, father agreed to maintain health insurance on the children and to "split" any medical bills not covered by insurance.
On October 23, 1991, mother filed a "Motion for Modification of Child Support." The hearing on the motion was conducted on November 13, 1991. Just before the hearing, father's counsel presented the trial court with father's affidavit in resistance to the motion. There is no record of any formal submission of the document, however, the affidavit is filed in the settled record.
During the modification hearing, mother's testimony was offered in support of her motion and mother also submitted two exhibits: an expense summary and a child support obligation worksheet. Father's counsel cross examined mother and, at the close of that phase, the following exchange took place:
(Off the record discussion.)
THE COURT: Having reviewed everything it's the Order of the Court that everything stays status quo except I'll obligate him to pay for this hearing up to $300.00 for attorney's fees. Court's in recess.
On December 24, 1991, mother's counsel filed "Objections to Plaintiff's Affidavit," in which she objected to the trial court's consideration of the affidavit father filed on the day of the modification hearing. Counsel also objected to the trial court's consideration of an insurance document entitled, "Blue Cross and Blue Shield Estimate of Aware Gold Coverage for 1992." Counsel alleged she received the document in the mail after the modification hearing with a notation by father's counsel that the information had been left with the judge. Counsel also filed a motion for reconsideration of the trial court's order denying modification, again challenging the trial court's consideration of father's affidavit and the Blue Cross coverage estimate. The trial court denied the motion for reconsideration in a decision entered December 24, 1991. On December 31, 1991, the trial court entered findings of fact, conclusions of law and an order denying mother's motion for modification of child support. Mother appeals.
Mother asserts that she is entitled to a new child support modification hearing or reconsideration of her motion for modification of child support because: the trial court improperly considered the Blue Cross coverage estimate informally submitted by father after the modification hearing; the trial court improperly considered father's affidavit which was untimely served on the day of the hearing; and, the trial court denied mother the opportunity to cross examine father on the information supplied in his affidavit.
We find no Blue Cross coverage estimate in the record appearing to constitute the document allegedly submitted to the trial court after the hearing. Nor do we find any findings of fact premised on such a document. Thus, even if the trial court did improperly receive such information from father's counsel after the hearing, mother can claim no prejudicial error in that action. See, Matter of R.S.S., 474 N.W.2d 743 (S.D.1991) (). See also, Koupal & Anton, Inc. v. Wieczorek, 375 N.W.2d 639 (S.D.1985) ().
Certain information in the trial court's findings does rely on father's affidavit. The findings note that, in addition to his $1,000 per month child support, father pays $700 per month for a college fund for the children that is funded by life insurance, $381 per month for the children's health insurance and $200 a month for disability insurance.
Generally, we have held that: Dixon v. Dixon, 423 N.W.2d 507, 510 (S.D.1988) (citations omitted). Nevertheless, we have left the ultimate determination of whether issues of fact should be resolved by affidavit in the sound discretion of the trial courts:
SDCL 15-6-43(e) provides that "[w]hen a motion is based on facts not appearing of record the court may hear the matter on affidavits presented by the respective parties, but the court may direct that the matter be heard wholly or partly on oral testimony or depositions." (Emphasis added.) Thus, admitting depositions or oral testimony, in addition to affidavits, rests within the trial court's discretion.
Every party, as a matter of right, is not entitled to oral testimony on every motion or on every issue of fact. Obviously, there are many cases where no oral testimony need be received and the trial court, in the exercise of sound discretion, may permit the trial of an issue of fact, involved in the motion, on non-oral testimony. However, the trial court in exercising this discretion must be cautious to prevent a circumvention of justice.
Dixon, 423 N.W.2d at 510 (citations omitted).
Dixon was an appeal of a judgment denying a request for a reduction of child support and increasing the obligor's child support obligation. No hearing was held in the matter and all issues were resolved on the basis of multiple affidavits filed in the record. As to the propriety of resolution of the child support issues on the basis of affidavits, we held:
As stated in [Saturnini v. Saturnini, 260 Minn. 494, 110 N.W.2d 480 (1961) ], modification of support issues, which generally involve a showing of change in need or ability to pay, may properly be heard by affidavit. See also SDCL 15-6-43(e)....
Here, the non-oral testimony supports the findings, conclusions, and order of the trial court regarding these issues. We do not find them to be clearly erroneous or an abuse of discretion.
Dixon, 423 N.W.2d at 512 (citations omitted).
Here, father's affidavit supports the trial court's findings of fact concerning his extra-support expenditures on behalf of the children and mother raises no contention that these findings are clearly erroneous. With regard to mother's lack of opportunity to cross-examine father on the affidavit, Dixon also provides in pertinent part:
Modification of support payments, on the other hand, generally requires only a showing of change in either need on the one side or ability to pay on the other. In most situations these determinations can fairly be made without taking oral testimony. Where the facts are complicated or the affidavits so conflicting as to render cross-examination essential, then the desirability of expeditious procedure must give way to a more formal hearing.
Dixon, 423 N.W.2d at 511 (quoting Saturnini, supra ) (emphasis added). In this instance, the facts are relatively uncomplicated and a responsive affidavit filed by mother raises no particular conflict with the facts asserted in father's affidavit concerning his monthly child support obligation and extra-support expenditures on behalf of the children. Thus, we find no prejudicial error in mother's lack of opportunity to cross-examine father on his affidavit, particularly in view of her failure to raise any objection on the issue during the hearing on this matter.
Finally, as to the service of father's affidavit on the day of the hearing, as stated in Schy v. Susquehanna Corporation, 419 F.2d 1112, 1116 (7th Cir.1970):
The plaintiff next complains that the district court erroneously considered affidavits and exhibits filed on the day of the hearing in violation of rule 6(d) *, Federal Rules of Civil Procedure. The plaintiff did not complain of untimeliness in the trial court, although he did urge the court not to consider the exhibits as evidence. Since the plaintiff did not complain about the late filing in the trial court, he cannot do so on appeal (footnote added).
Mother raised no objection to the timeliness of father's affidavit...
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