Christensen v. Christensen, No. 22763.

• Court: Supreme Court of South Dakota
• Writing for the Court: ZINTER, Justice.
• Citation: 2003 SD 137,672 N.W.2d 466
• Decision Date: 25 November 2003
• Docket Number: No. 22763.
• Parties: Daniel J. CHRISTENSEN, Plaintiff and Appellant, v. Deanna L. CHRISTENSEN, Defendant and Appellee.

672 N.W.2d 466
2003 SD 137

Daniel J. CHRISTENSEN, Plaintiff and Appellant,
v.
Deanna L. CHRISTENSEN, Defendant and Appellee

No. 22763.

Supreme Court of South Dakota.

Considered on Briefs October 6, 2003.

Decided November 25, 2003.

672 N.W.2d 467

Douglas R. Kettering, Yankton, Attorney for plaintiff and appellant

Michael D. Stevens of Blackburn & Stevens Yankton, Attorney for defendant and appellee.

ZINTER, Justice.

[¶ 1.] Deanna Christensen moved to compel her ex-husband, Daniel Christensen, to pay delinquent child support. After trial, judgment was entered in favor of Deanna for the amount required by a prior court order although Deanna had requested a modification for a lesser amount. Daniel appeals, arguing that the trial court erred in failing to retroactively reduce arrearages to the modified amount requested by Deanna. He also argues that some of the support payments were forgiven by a private agreement between the parties. We affirm the trial court's award for the full amount of the prior court order for those arrearages accruing prior to Deanna's motion for modification (September

672 N.W.2d 468

2000 through October 2001). We reverse the trial court's award for the full amount of the prior court order for those arrearages accruing after Deanna's motion (November 2001 through October 2002). We remand for entry of the modified amount requested in Deanna's motion, and we remand for the re-calculation of pre-judgment interest

FACTS AND PROCEDURAL HISTORY

[¶ 2.] Daniel and Deanna Christensen were divorced in December 1997. Pursuant to the divorce decree, Daniel and Deanna were granted joint legal custody of their two sons. Deanna was granted physical custody, subject to visitation by Daniel. The visitation included two months of extended summer visitation each June and July.

[¶ 3.] During his two months of extended summer visitation, Daniel's court-ordered child support obligation was reduced in half. For the rest of the year, Daniel was ordered to pay $722.64 per month if he provided health insurance for the boys, and $798.04 if he did not. Daniel was also ordered to pay alimony in the amount of $250.00 per month for five years.

[¶ 4.] Soon after the divorce, Deanna moved to Rapid City with the boys. After living in Rapid City for almost two years, she and Daniel started talking about reconciliation. Deanna asked Daniel to move to Rapid City, but Daniel declined. Instead, Deanna agreed to move back to Yankton. Deanna quit her job in Rapid City in August 2000, but could not move until October when her lease expired.

[¶ 5.] Although Deanna agreed to move, both parties wanted to avoid a situation where the boys would start school in Rapid City and then have to move to Yankton after the school year began. Therefore, Deanna and Daniel decided that the boys should stay with Daniel after his extended summer visitation and start school in Yankton that fall. Consequently, in addition to his summer visitation in June and July, the boys lived with Daniel during August and September of 2000. During that time, Deanna lived in Rapid City and drove to Yankton every weekend to see the boys. When Deanna's lease ended in October, she moved to Yankton and rented her own apartment. After the move, Deanna and Daniel shared physical custody equally, each exercising alternating weeks of custody.

[¶ 6.] In a further attempt at reconciliation, they also entered into a loose, informal "agreement" regarding child support. Deanna testified that in October 2000, the month she moved back to Yankton, she:

[T]old [Daniel] to hold off for now [on making child support payments] because we were trying to reconcile. I thought, my belief was we were going to be together as a family so just to hold off for now. But I had asked for the alimony to continue.

As a result, Daniel stopped making his child support payments. However, Daniel also stopped paying alimony and his share of the children's health insurance.

[¶ 7.] Consequently, Deanna's attorney sent Daniel a letter on December 22, 2000. The letter requested Daniel to become current on his alimony, child support and health insurance obligations. However, with respect to child support, the letter indicated that "Deanna is willing to forgo child support for the months of September, October, November, and December [2000] even though she does not have to since there is no Order stopping these payments." (Emphasis added.) The letter summarized the following delinquent payments requested for calendar year 2000:

$ 649.00 July: $250.00 Alimony + $399.00 (1/2 child support)

672 N.W.2d 469

$ 649.00 Aug: $250.00 Alimony + $399.00 (1/2 child support)¹ $ 330.00 Sept: $250.00 Alimony + $ 80.00 Insurance $ 330.00 Oct: $250.00 Alimony + $ 80.00 Insurance $ 330.00 Nov: $250.00 Alimony + $ 80.00 Insurance $ 330.00 Dec: $250.00 Alimony + $ 80.00 Insurance ======== $2,618.00

Daniel paid Deanna the $2,618.00 in response to the letter. He also assumed that he was no longer responsible for the child support that had accrued in September, October, November, and December 2000.

[¶ 8.] In a continuing attempt to reconcile, Daniel and Deanna went to marriage counseling and church for a brief period. However, by April 2001, Deanna determined that she and Daniel would not be able to reconcile. She felt that reconciliation was no longer a priority of Daniel's, and that he had drifted back into behaviors that had caused the parties to divorce.

[¶ 9.] Daniel also failed to pay child support in 2001. Consequently, on October 18, 2001, Deanna filed a motion and notice of hearing on a number of child custody and child support matters, including requests: (1) that she and Daniel share physical custody of the boys; (2) that the court grant her a judgment against Daniel for $5,568.03 in child support arrearages for October 2000 through and including October 2001 ($428.31² × 13 months); (3) that future child support be modified to $428.31 per month; and (4) that Daniel pay his 71% of the children's health insurance.

[¶ 10.] For reasons not reflected in the record, Deanna's motions were not heard until October 10, 2002.³ After the October 2002 trial, Daniel was ordered to pay: (1) $3,192.16 in delinquent child support for the months of September, October, November, and December of 2000 ($798.04 × 4 months = $3,192.16); (2) $9,576.48 in delinquent child support for the year 2001 ($798.04 × 12 months = $9,576.48); and, (3) $7,980.40 in delinquent child support for the months of January through October, 2002 ($798.04 × 10 months = $7,980.40). The court also found that Deanna was entitled to pre-judgment and post-judgment interest, plus attorney fees, tax and costs.

[¶ 11.] Daniel appeals, and we review the following issues:

I. Whether the trial court erred in awarding Deanna $3,192.16 in child support for the months of September, October, November, and December 2000, the months she allegedly forgave Daniel's obligation.

II. Whether the trial court erred in awarding Deanna delinquent child support in the full amount of the prior court order for the year 2001, and for the months of January through October 2002, even though Deanna had filed a

672 N.W.2d 470

motion for modification requesting a lesser amount.

III. Whether the trial court erred in awarding Deanna prejudgment interest.

IV. Whether Deanna is entitled to attorney fees on appeal.

STANDARD OF REVIEW

[¶ 12.] The interpretation and application of our child support statutes are questions of law. Whalen v. Whalen, 490 N.W.2d 276, 280 (S.D.1992). "Questions of law are reviewed de novo." Roberts v. Roberts, 2003 SD 75, ¶ 8, 666 N.W.2d 477, 480 (citing Hendricksen v. Harris, 1999 SD 130, ¶ 7, 600 N.W.2d 180, 181). Daniel's arguments that waiver and equitable estoppel preclude the court's award present a mixed question of law and fact. "Mixed questions of law and fact that require the reviewing court to apply a legal standard are reviewable de novo." Bennett v. Peterson, 2003 SD 16, ¶ 13, 657 N.W.2d 698, 701 (citing Phipps Brothers, Inc. v. Nelson's Oil & Gas, Inc., 508 N.W.2d 885, 888 (S.D.1993); Crouse v. Crouse, 1996 SD 95, ¶ 6, 552 N.W.2d 413, 415).

ANALYSIS AND DECISION

I. Whether the trial court erred in awarding Deanna $3,192.16 in child support for the months of September, October, November, and December 2000, the months she allegedly forgave Daniel's obligation.

[¶ 13.] Daniel points out that on December 22, 2000, Deanna sent the letter offering to "forgo" child support payments for these months if Daniel would pay her $2,618.00. That figure appears to have represented Daniel's past-due alimony, insurance obligation, summer reduced child support, and one month of child support after the boys began living with Daniel. Daniel argues that the letter led him to believe that if he paid the $2,618.00, Deanna would forgive his remaining 2000 child support arrearages.

[¶ 14.] However, Deanna did not agree to "forgive" her right to the child support arrearages. Deanna first told Daniel that he could "hold off for now" because she believed that they were going to be a family again. She later indicated in the letter that there was no court order upon which an elimination could be based, see supra ¶ 7, so she offered to "forgo" the arrearages. Furthermore, this "agreement" to "forgo" was based upon the expected reconciliation of the parties and Daniel making his other payments. Therefore, as fairly read, the "agreement" was only an offer to forgo arrearages, and that offer was premised both on Daniel's payments and upon reconciliation. However, neither premise occurred: Daniel did not stay current on his payments, and the parties did not reconcile.

[¶ 15.] More importantly, Daniel's reliance on this type of agreement is misplaced as a matter of law. "Parents are obligated to provide support for their children. This obligation is not only a matter of public policy, but is also statutory." Vander Woude v. Vander Woude, 501 N.W.2d 361, 363...