Gross v. Gross, No. 14233

• Court: South Dakota Supreme Court
• Writing for the Court: MORGAN; DUNN; WUEST
• Citation: 355 N.W.2d 4
• Parties: Sherwin G. GROSS, Plaintiff and Appellee, v. Edwin E. GROSS, Defendant and Appellant.
• Docket Number: No. 14233
• Decision Date: 12 September 1984

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355 N.W.2d 4 Sherwin G. GROSS, Plaintiff and Appellee,
v.
Edwin E. GROSS, Defendant and Appellant. No. 14233. Supreme Court of South Dakota. Sept. 12, 1984.

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David M. Axtmann, Highmore, for plaintiff and appellee.

Scott N. Heidepriem of Heidepriem & Widmayer, Miller, for defendant and appellant.

MORGAN, Justice.

This appeal arises from a modification of the child support provisions of a divorce decree. The original divorce decree, entered on January 30, 1974, in Hand County, South Dakota, gave Sherwin Gross (mother) custody of Ervin James Gross (child) and required Edwin Gross (father) to pay child support. On March 16, 1983, the same trial court modified its original divorce decree. Father's child support payments were increased from $100.00 per month to $250.00 per month and a provision for the child's health care was added. The modified order made mother responsible for the first $250.00 of the child's medical bills in any calendar year plus twenty percent of the child's medical bills in excess of $250.00 per year. Father was ordered to pay the remaining eighty percent in excess of the first $250.00 per year. The trial court also directed mother to sign a written agreement that allowed father to declare the child as a dependent on his income tax returns for years after 1983. Mother was awarded $300.00 for attorney fees incurred in bringing the action for modification. Father appeals only the increase in his child

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support payments and the award of attorney fees. We affirm.

Mother applied for modification of the divorce decree on September 9, 1982. She claimed that circumstances had changed substantially since the date of the original decree, and specifically alleged (1) the loss of her fingers and legs, ^* (2) the fact that her employment would terminate at the end of the summer, (3) the child's need for ordinary and extraordinary medical, dental, optometric and orthodontic care as a result of the child's advancing age and new medical developments, and (4) her move to the Tacoma, Washington metropolitan area and the inflated cost of living there. Mother also alleged that the child support paid under the divorce decree order was totally inadequate to properly care for the child and that father's financial condition enabled him to pay additional child support without undue hardship.

The trial court that heard the application for modification of child support found that since the time of the divorce decree circumstances had changed substantially. The trial court specifically pointed to (1) the advancing age of the child, (2) the change in his medical condition, (3) the change in mother's medical condition, (4) a change in mother's ability to support herself through employment as a result of her medical condition, (5) the increased cost of living since the time of the divorce, and (6) the change in father's financial condition since the time of the divorce. In his memorandum decision, incorporated by reference into the Findings of Fact and Conclusions of Law dated February 21, 1983, the trial court noted that it had reviewed the parties' financial status at the time of their divorce and at the time of the modification hearing, including their incomes, social security benefits, net worths, occupations and abilities to earn.

Father appealed from the trial court's modification of the original child support order and raised the following issues: (1) whether the trial court abused its discretion when it based the modification on changed circumstances which were not pleaded, i.e., father's financial condition and mother's health and ability to work, (2) whether the trial court abused its discretion when it failed to consider mother's increased income as a changed circumstance, (3) whether the trial court abused its discretion when it found the child's increasing age and unincurred medical expenses to be changed circumstances, (4) whether the trial court abused its discretion when it found mother's health and ability to work to be changed circumstances, (5) whether the trial court abused its discretion when it found the increased cost of living to be a changed circumstance, and (6) whether the trial court abused its discretion when it awarded mother attorney fees.

Trial courts have continuing jurisdiction to review and modify child support payments when there is a change in conditions or circumstances. SDCL 25-4-45; Herndon v. Herndon, 305 N.W.2d...