Fossum v. Fossum, s. 14799

• Decision Date: 04 September 1985
• Docket Number: Nos. 14799,14815,s. 14799
• Citation: 374 N.W.2d 100
• Parties: Douglas Paul FOSSUM, Plaintiff and Appellant, v. Cindy FOSSUM, Defendant and Appellee.
• Court: South Dakota Supreme Court

Page 100

374 N.W.2d 100

Douglas Paul FOSSUM, Plaintiff and Appellant, v. Cindy FOSSUM, Defendant and Appellee.

Nos. 14799, 14815.

Supreme Court of South Dakota.

Submitted on Briefs May 22, 1985.

Decided Sept. 4, 1985.

Steven J. Bucher of Miller & Bucher, Plankinton, for plaintiff and appellant.

Thomas J. Farrell of Pruitt, Matthews & Muilenburg, Sioux Falls, for defendant and appellee.

WOLLMAN, Justice.

This is an appeal from a judgment and decree of divorce and from an order denying a motion for modification of child support obligations. We reverse and remand.

Appellant, Douglas Paul Fossum (husband), commenced an action for divorce against appellee, Cindy Fossum (wife), in early January of 1984. The case was brought on for trial on July 10, 1984. The court tentatively ruled from the bench that it would award child support payments to wife in the amount of $225.00 for the two children that had been born to the marriage. The trial court indicated that before making the award final it wished to have information regarding the effect the award would have upon wife's aid to dependent children payments. Counsel for the parties stipulated that a letter would be obtained explaining the effect of such an award on those payments. The parties waived the entry of findings of fact and conclusions of law. Pursuant to their stipulation, the parties submitted to the court a letter regarding the effect of the child support award upon the monthly ADC payments. Counsel for wife also submitted to the court, although the record does not reveal that a copy was submitted to husband's counsel, a letter indicating that wife had obtained employment in Sioux Falls subsequent to the trial.

The trial court signed the judgment and decree of divorce on September 29, 1984. Notice of entry was given to husband on October 13, 1984. The judgment provided that husband pay child support to wife in the amount of $125.00 per child for each of the two children. The judgment also provided that on April 1, 1985, the child support payments would be increased to $200.00 per month per child.

On November 2, 1984, husband served what he denominated as a motion for new trial seeking, inter alia, relief from the judgment under SDCL 15-6-60(b), contending that he was not aware of the fact that wife had obtained employment until after the time for making a motion for new trial had expired.

The trial court treated the motion as one for modification of the child support provisions of the divorce decree and then entered an order denying the motion.

Husband contends that the trial court abused its discretion in awarding child support in the amount of $250.00 per month inasmuch as at time of trial husband's monthly net income totaled only $821.66, out of which he was required to support his...