Gisi v. Gisi, 24145.

• Decision Date: 11 April 2007
• Docket Number: No. 24145.,24145.
• Citation: 2007 SD 39,731 N.W.2d 223
• Parties: Lynette D. GISI, Plaintiff and Respondent, v. Michael S. GISI, Defendant, Petitioner and Appellant.
• Court: South Dakota Supreme Court

731 N.W.2d 223

2007 SD 39

Lynette D. GISI, Plaintiff and Respondent, v. Michael S. GISI, Defendant, Petitioner and Appellant.

No. 24145.

Supreme Court of South Dakota.

Considered on Briefs on February 13, 2007.

Decided April 11, 2007.

Michael S. Gisi, Bushnell, Florida, Pro se, defendant, petitioner and appellant.

PER CURIAM.

[¶ 1.] Michael S. Gisi appeals pro se a circuit court order dismissing his petition for modification of child support. We affirm in part, reverse in part and remand.

BACKGROUND

[¶ 2.] Michael and Lynette D. Gisi were married on August 21, 1993, and divorced February 6, 2001. Michael was incarcerated in the Florida State Penitentiary at the time of the divorce. The court awarded Lynette full physical and legal custody of the couple's only minor child and ordered Michael to pay $190 per month for child support. During the divorce proceeding, Michael requested a deviation from the child support statutory guidelines due to his incarceration and lack of earning capacity, but the court denied his request. The court determined that Michael's incarceration was a voluntary termination of his employment, thus no deviation was warranted. The court imputed a minimum wage income to Michael for calculation of his child support obligation.

[¶ 3.] On December 27, 2005, Michael filed a pro se petition for modification of child support.¹ He again requested a deviation based on his incarceration and complete lack of income. A hearing on the petition was held before a court-appointed referee. The referee concluded that Michael's incarceration was a result of his voluntary actions and that his prior income was imputed to him based on this fact. Therefore, the referee recommended that the court dismiss Michael's petition for modification upon the merits and with prejudice.

[¶ 4.] Michael objected to the referee's report, claiming a deviation from the statutory guidelines was warranted pursuant to SDCL 25-7-6.10. He also submitted that a reduction from $190 per month to $100 per month was necessary given the fact that his imputed monthly net income of minimum wage fell within the $0-$800 range in the statutory guidelines. And, only a $100 per month child support obligation is required for this range. The court held a hearing on Michael's objections to the referee's report and ultimately dismissed the petition for modification of child support upon the merits and with prejudice based upon the recommendation of the referee.

[¶ 5.] Michael appeals pro se, raising two issues:²

1. Whether the circuit court erred in dismissing Michael's petition for modification of child support.

2. Whether Michael was denied due process or access to the courts when he was unable to obtain South Dakota law materials concerning modification of child support while incarcerated in a foreign jurisdiction.

STANDARD OF REVIEW

[¶ 6.] Our standard of review in child support modification cases is well settled:

[W]e review a child support referee's findings of fact under the clearly erroneous standard and questions of law are fully reviewable. Mixed questions of law and fact are classified as questions of law and are reviewable de novo. In addition, when the circuit court has adopted a child support referee's findings and conclusions, we apply the clearly erroneous standard of review to the findings and give no deference to conclusions of law. Further, in applying this standard, we will not reverse findings of fact unless we are left with a definite and firm conviction a mistake has been made.

Wagner v. Wagner, 2006 SD 31, ¶ 5, 712 N.W.2d 653, 656 (citing Mathis v. Mathis, 2000 SD 59, ¶ 7, 609 N.W.2d 773, 774). Also, "[t]his [C]ourt's standard of review in child support cases is whether the trial court abused its discretion in setting the support." Sjolund v. Carlson, 511 N.W.2d 818, 820 (S.D.1994) (citation omitted).

ANALYSIS AND DECISION

1. Whether the circuit court erred in dismissing Michael's petition for modification of child support.

[¶ 7.] "SDCL 25-7-6.2 sets forth mandatory guidelines which courts must follow in setting child support." Schwab v. Schwab, 505 N.W.2d 752, 756 (S.D.1993) (citation omitted). That statute provides that "[t]he child support obligation shall be established in accordance with the following schedule subject to such revisions or deviations as may be permitted pursuant to §§ 25-7-6.1 to 25-7-6.18, inclusive." SDCL 25-7-6.2 (emphasis added).

[¶ 8.] According to the support obligation schedule in SDCL 25-7-6.2, the minimum monthly child support order for one child is $100. This obligation is imposed for a noncustodial parent with a monthly net income between $0-$800. SDCL 25-7-6.2 (emphasis added). Because the court imputed a minimum wage income to Michael, his monthly gross income is $893. However, "[t]he trial court is required to calculate the parents' monthly net income, which is equal to gross income less allowable deductions, as codified at SDCL 25-7-6.3 and 25-7-6.7." Midzak v. Midzak, 2005 SD 58, ¶ 30, 697 N.W.2d 733, 740-41. Thus, the obligation is determined by the obligor's monthly net income, not his gross income.

[¶ 9.] SDCL 25-7-6.7 provides in relevant part:

Deductions from monthly gross income shall be allowed as follows:

(1) Income taxes payable based on the applicable tax rate for a single taxpayer with one withholding allowance and a monthly payroll period rather than the actual tax rate;

(2) Social security and medicare taxes based on the applicable tax rate for an employee or a self-employed taxpayer.

According to the child support obligation worksheet supplied by the Department of Social Services, the amount of income tax deducted for a single taxpayer is $40 and the amount of Social Security and Medicare tax deducted is $68.³ Thus, Michael's monthly net income falls below $800 after tax deductions. Therefore, his support obligation should be $100 under the mandatory guidelines.

[¶ 10.] This amount is also within the emboldened area of the schedule.⁴ SDCL 25-7-6.2. Thus, the court shall compare $100 to Michael's proportionate share using both parents' monthly net incomes. Id. "The lesser amount establishes the noncustodial parent's child support order." Id. Michael's proportionate share is $190 according to the child support obligation worksheet used by the court in establishing Michael's initial support obligation. Because $100 is less than $190, Michael's child support obligation should be $100.

[¶ 11.] However, SDCL 25-7-6.2 does provide for deviations from the schedule. But, "[t]here may be no deviation from the guidelines unless there is an entry of specific findings concerning factors for deviation listed in SDCL 25-7-6.10." Schwab, 505 N.W.2d at 756. Also, "[d]eviations from the support obligation schedule at SDCL 25-7-6.2 are possible, but must be raised by the parties in order to be considered by the trial court." Midzak, 2005 SD 58, ¶ 30, 697 N.W.2d at 741 (citing SDCL 25-7-6.10). Although Michael argued for a deviation from the schedule due to his incarceration, there was no argument made on behalf of Lynette for a deviation exceeding the schedule.

[¶ 12.] Here, Michael's support obligation under the schedule is $100, but the referee and court imposed an obligation of $190. However, neither the child support referee nor the circuit court entered findings supporting a deviation exceeding the schedule, and Lynette did not argue for such a deviation. The referee merely imputed Michael's prior income to him and concluded that there was no factual basis to reduce his $190 child support obligation.⁵

[¶ 13.] Thus, the circuit court erred by failing to follow the mandatory provisions of the South Dakota child support statutory scheme and by dismissing Michael's petition for modification of child support. Therefore, we reverse and remand this issue for the trial court to recalculate the child support award in accordance with the mandatory support obligation schedule in SDCL 25-7-6.2.

[¶ 14.] As discussed above, Michael did request a deviation from the schedule based upon his incarceration, but the circuit court denied a deviation. The circuit court concluded that Michael's incarceration was a voluntary act that reduced his income, so no deviation was warranted. Michael argues that the circuit court should have deviated from the child support schedule pursuant to SDCL 25-7-6.10(2). SDCL 25-7-6.10 provides in entirety:

Deviation from the schedule in § 25-7-6.2 shall be considered if raised by either party and made only upon the entry of specific findings based upon any of the following factors:

(1) The income of a subsequent spouse or contribution of a third party to the income or expenses of that parent but only if the application of the schedule works a financial hardship on either parent;

(2) Any financial condition of either parent which would make application of the schedule inequitable. If the total amount of the child support obligation, including any adjustments for health insurance and child care costs, exceeds fifty percent of the obligor's monthly net income, it shall be presumed that the amount of the obligation imposes a financial hardship on the obligor. This presumption may be rebutted based upon other factors set forth in this section;

(3) Any necessary education or health care special needs of the child;

(4) The effect of agreements between the parents regarding extra forms of support for the direct benefit of the child;

(5) The obligation of either parent to provide for subsequent natural children, adopted children, or stepchildren. However, an existing support order may not be modified solely for this reason; or

(6) The voluntary act of either parent which reduces that parent's income.

[¶ 15.] Whether incarceration warrants or requires deviation of a child support obligation under SDCL 25-7-6.10 has not been addressed by any published South Dakota decision. In one case, however, this Court held that a circuit court order stating that...