Faulk v. Faulk, No. 21927.
| Court | Supreme Court of South Dakota |
| Writing for the Court | SABERS, Justice. |
| Citation | 2002 SD 51,644 N.W.2d 632 |
| Parties | Lori A. FAULK, Plaintiff and Appellant, v. Scott FAULK, Defendant and Appellee. |
| Decision Date | 01 May 2002 |
| Docket Number | No. 21927. |
644 N.W.2d 632
2002 SD 51
v.
Scott FAULK, Defendant and Appellee
No. 21927.
Supreme Court of South Dakota.
Considered on Briefs on March 25, 2002.
Decided May 1, 2002.
Scott Armstrong, Rapid City, South Dakota, Attorney for plaintiff and appellant.
SABERS, Justice.
[¶ 1.] Lori Faulk appeals from a judgment precluding her from seeking any child support arrearages from her ex-husband, Scott Faulk, for the years of 1982-1994. Lori appeals, arguing that she is not barred from seeking child support arrearages, especially for the years of 1990-1994. We reverse and remand for a determination of child support arrearages with interest, less payments and credits.
FACTS
[¶ 2.] Lori and Scott Faulk were divorced on August 17, 1982. Lori was given custody of the parties' two minor children, Milissa and Michael. Child support was set at $100 per month, per child. The order provided that all child support payments were to be paid to the Pennington County Clerk of Court's Office in Rapid City, South Dakota. This order was never changed, but the amount was modified to $150 per month, per child. Following the divorce, Scott moved to Wyoming and, in 1984, to Alaska. Shortly after the divorce, Scott became delinquent in his child support payments. As of 1986, child support records indicated that Scott was delinquent in his support obligation in the principal amount of $6,925.
[¶ 3.] In 1982, Lori applied for and received Aid to Dependent Children (ADC) from the state of South Dakota. She received ADC for a period of time in 1982 and then again from February 23, 1984 through August 28, 1990. Under SDCL 28-7-6.3, Lori assigned all of her support rights to the state for the periods during which she received ADC.1
[¶ 4.] On November 10, 1994, Scott moved to modify custody and visitation with respect to the two minor children. Lori agreed to the change in custody and on January 13, 1995, the trial court entered an order changing custody. Lori further agreed to pay support in the amount of $386 per month for both children, but she later became delinquent in her support obligation.
[¶ 5.] Lori obtained an administrative judgment on November 21, 1994, for child support arrearages in the amount of $15,966; $6,925 as principal and $9,041 as interest from January 1984 to December 1988. Scott contested the validity of this judgment and filed an appeal with this Court. This Court dismissed the appeal because it was an appeal from an administrative judgment that had not been signed by a circuit judge. The case was remanded to the circuit court. The amount of this obligation should have been determined and reduced to judgment.
[¶ 6.] On April 16, 1996, Scott moved to set aside the November 21, 1994 award. An evidentiary hearing concerning Scott's child support payment history, specifically for the period from January 1984 to December 1988, was held on June 10, 1996. On September 17, 1996, the trial court entered an order setting aside the administrative judgment. In its findings of fact and conclusions of law, the trial court defined the ultimate issue as whether Lori had a "right to seek a judgment [for] any alleged arrearages in child support during the time that she was on Aid to Dependent Children and received that funding from
[¶ 7.] On December 7, 2000, Lori filed a motion for order to show cause, alleging that Scott owed $39,300 in delinquent child support for the years of October 1983 to October 1994. This amount excluded the time during which Lori was receiving ADC payments from the state. An order to show cause was filed and Scott opposed the motion. He admitted that he had paid Lori child support for only one child from 1990-1994, but did so because one or more of the children were living with him during this time.
[¶ 8.] On January 16, 2001, a hearing was held and the trial court judge denied Lori's claim for support arrearages prior to 1995 based on the doctrines of laches and res judicata. The trial court determined that "the matter of [Scott's] arrearages to [Lori] was previously considered by this court and resolved on September 17, 1996 by the [c]ourt's Findings of Fact, Conclusions of Law and Order Setting Aside Judgment." The trial court concluded that no child support arrearages were due from Scott to Lori. On March 1, 2001, the trial court entered an order dissolving the order to show cause and reinstated garnishment proceedings to satisfy Lori's delinquent support obligation. Lori appeals, seeking delinquent support from Scott for the period of August 28, 1990, when she stopped receiving ADC, to November 10, 1994, when the agreed change of custody was filed.
STANDARD OF REVIEW
[¶ 9.] All of the evidence presented in this case was received through documentary evidence and deposition testimony. This Court formerly reviewed depositions and documentary evidence under the de novo standard. However,
SDCL 15-6-52(a), recently amended, provides that "[f]indings of fact, whether based on oral or documentary evidence, may not be set aside unless clearly erroneous[.]" Under this standard, "[c]lear error exists only when, upon a review of all the evidence in the record, we are left with a definite and firm conviction a mistake has been made."
Estate of Catron, 2001 SD 57, ¶ 11, 627 N.W.2d 175, 177 (citing Even v. City of Parker, 1999 SD 72, ¶ 9, 597 N.W.2d 670, 674).
[¶ 10.] 1. WHETHER THE TRIAL COURT ERRED IN RETROACTIVELY MODIFYING SCOTT'S SUPPORT OBLIGATION FOR THE PERIOD OF AUGUST 1990 TO NOVEMBER 1994.
[¶ 11.] In its September 17, 1996 and March 1, 2001 rulings, the trial court retroactively modified child support arrearages owed by Scott to Lori. Both judgments determined that "no money was due and owing from [Scott] to [Lori]." Scott argues that the trial court was correct in this determination. He claims he was not obligated to pay full child support during the years of 1990-1994 because one or more of the children were living with him. Both children spent extended periods of time with Scott beginning in 1990. Milissa began living full-time with Scott in June 1992 and Michael began living with him in June 1994. During these times, Scott did not pay child support in full.
[¶ 12.] It is well established that: "Any unpaid support bec[omes] an unpaid...
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