Hawkins v. Peterson

• Decision Date: 18 March 1991
• Docket Number: No. 17312,17312
• Parties: Kenneth H. HAWKINS, Appellant, v. Jeanine PETERSON, Appellee. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 90

474 N.W.2d 90

Kenneth H. HAWKINS, Appellant, v. Jeanine PETERSON, Appellee.

No. 17312.

Supreme Court of South Dakota.

Considered on Briefs March 18, 1991.

Decided July 17, 1991.

Richard Hopewell, Sioux Falls, for appellant.

Jeanine Peterson, pro se.

GORS, Circuit Judge.

Kenneth Hawkins (father) appeals from a trial court order modifying his monthly child support obligation. We affirm in part, reverse in part and remand.

FACTS

Father and Jeanine Peterson (mother) were never married. Father's paternity of a minor child born July 26, 1983, was established by judgment in 1984 which also established father's child support obligation at $150 per month. On April 30, 1990, father filed a petition for modification of his child support obligation. The circuit court referred the matter to a referee for a hearing and entry of a report containing findings of fact and conclusions of law.

The referee conducted a hearing on father's petition for modification and filed her report on June 7, 1990. The report recommended modifying father's monthly support obligation to $126 per month and recommended requiring father to pay an additional $55 per month as his proportionate share of health insurance provided by mother bringing father's total obligation to $181 per month. Father filed timely objections ¹ to the report. Following a hearing on June 25, 1990, the circuit court entered its order approving and adopting the referee's report on August 8, 1990, fixing father's child support obligation at $181 per month. Father appeals.

STANDARD OF REVIEW

In reviewing the report of a child support referee, the referee's findings of fact are not to be disturbed unless they are clearly erroneous. A referee's findings may not be overturned unless, upon a review of all of the evidence, the court is left with a definite conviction that a mistake has been made. SDCL 15-6-53(e)(2); Janke v. Janke, 467 N.W.2d 494, 497 (S.D.1991). The referee's conclusions of law are freely reviewable and may be overturned whenever they are incorrect. Janke, supra.

Mother, who is the appellee, did not file a brief. SDCL 15-26A-80 contains the following:

If an appellant fails to file his brief within the time provided by Sec. 15-26A-75 or within the time as extended, an appellee may move for dismissal of the appeal. If an appellee fails to timely file his brief, he will not be heard at oral argument except by permission of the Court. The clerk may not accept for filing any brief not timely submitted for filing. (emphasis added).

While failure of an appellant to file a brief may be fatal, Keierleber v. Star Prairie School Dist. No. 27, 80 S.D. 12, 117 N.W.2d 491 (1962), failure of the appellee to file a brief does not automatically translate to victory for the appellant. Appellant still has the burden of showing that the findings of fact are clearly erroneous or that the conclusions of law are incorrect. In this case, mother was pro se throughout the proceedings. Her modest income ² has little room for attorney fees for an appellate brief. She did not request the modification, object to the referee's recommended order or appeal to this court. This case was submitted without oral argument. Mother should not be penalized beyond the rule. The appeal will be decided on the merits.

ISSUE ONE

WHETHER THE CIRCUIT COURT HELD AN APPROPRIATE HEARING ON FATHER'S OBJECTIONS TO THE REFEREE'S REPORT.

There is no transcript of the hearing before the referee ³ or of the hearing in circuit court ⁴ on father's objections to the referee's report. SDCL 25-7A-22 contains the following provisions relating to judicial review of referee decisions:

The referee shall file his report with the court and cause copies thereof to be served by mailing to the parties and the secretary. Any party shall have ten days from the date of service of the report in which to file objections to the report. If no objection is filed, the circuit court may thereafter, and without further notice, enter its order. If any objection is filed, the circuit court shall fix a date for hearing on the report, such hearing to be solely on the record established before the referee. (emphasis added).

Father waived a transcript by failing to order it. ⁵ Since review is solely on the record established before the referee, the only review which can take place without a transcript is a review of that portion of the record which was before the circuit court. ⁶

Father complains that the hearing in circuit court on his objections to the referee's report was not in accord with SDCL 25-7A-22 or due process. Circuit court proceedings are presumed to be regular absent an affirmative showing to the contrary. Pearson v. Pearson, 312 N.W.2d 34, 36 (S.D.1981). Without a transcript of the circuit court hearing, it is impossible to determine how the hearing was conducted. We find no merit to father's contention.

Father also complains that the decisions of the referee and the circuit court are a manifest abuse of discretion. Father's general complaint is not supported by the record and we will not reverse in the absence of a clear showing of an abuse of discretion. Gross v. Gross, 355 N.W.2d 4, 7 (S.D.1984). However, father's specific claims of error will be addressed.

ISSUE TWO

WHETHER SOCIAL SECURITY DEPENDENT BENEFITS PAID TO MOTHER ON BEHALF OF A CHILD BECAUSE OF FATHER'S DISABILITY SHOULD BE CREDITED AGAINST FATHER'S CHILD SUPPORT OBLIGATION.

The record contains a copy of Administrative Law Judge Virgil E. Vail's April 24, 1990, decision that father is disabled as defined in the Social Security Act, due to bilateral carpal tunnel syndrome. The referee found that "the minor child will receive approximately $117.00 per month in Social Security disability payments because of father's disability." The referee then concluded as a matter of law that the social security payment to the child should not diminish father's child support obligation, citing Nelson v. Nelson, 454 N.W.2d 533 (S.D.1990).

In Nelson, one of the children for whom support was being set was disabled by a cyst on the brain. Because of the child's disability, the child received $299 per month from social security as Supplemental Security Income Disability (SSID), Nelson, supra at 534. This court held:

[U]nder Social Security regulations, SSID payments are based on the parent's support payments, and are raised or lowered by the amount of the parent's support. These payments are paid to provide supplemental income to cover a disability, not as a substitute for child support.

Nelson, supra at 536-37. In contrast with Nelson, mother in this case will receive monthly social security dependent benefits on behalf of the child because father is disabled.

Social security dependent benefits are paid on behalf of a child of a disabled parent in recognition of the parent's reduced income resulting from total disability. Folds v. Lebert, 420 So.2d 715, 716 (La.App.1982). Under the majority rule, ⁷ child support may be offset by social security dependent benefits during the period in which the benefits are received. Newman v. Newman, 451 N.W.2d 843, 844 (Iowa 1990). Since Nelson is inapplicable and since we agree with the majority rule, the referee erred as a matter of law in not allowing credit for the social security payments against father's child support obligation. We reverse and remand for a determination of the amount and application of the credit to father's child support obligation.

ISSUE THREE

WHETHER THE REFEREE CALCULATED THE CHILD SUPPORT OBLIGATION CORRECTLY.

The referee calculated the total child support obligation of the parties as follows The parties have a combined net monthly income of $1,587.11. 42% of that sum is the net income of the Petitioner, the non-custodial parent; 58% of that sum is the net income of Respondent. Applying the Child Support Guideline provisions of SDCL 25-7-6.2, the total support obligation indicated is $300.00 per month. The support obligation for the Petitioner, absent consideration of any deviation, would be in the amount of $126.00 per month.

We reverse and remand for a recalculation. ⁸ The total child support obligation of the parties is to be determined by finding the category on the schedule closest to the combined monthly net income for the parties. The closest category may be slightly lower than the parties' actual combined monthly net income or it may be slightly higher. ⁹ The nearest scheduled category to the parties' combined monthly net income of $1,587 is $1,600. The indicated child support obligation for one child is $291. The referee's calculation of $300 was incorrect. Father's 42% of the scheduled child support obligation is $122, not $126 as calculated by the referee.

ISSUE FOUR

WHETHER THE REFEREE SHOULD HAVE DEVIATED FROM THE SCHEDULE ON ACCOUNT OF (1) FATHER'S FINANCIAL CONDITION, (2) THE INCOME TAX DEDUCTION FOR THE CHILD, (3) THE EFFECTS OF CUSTODY AND VISITATION AND (4) FATHER'S SUPPORT OF HIS OTHER CHILDREN.

SDCL 25-7-6.10 requires the referee to consider deviation from the schedule if raised by either party and sets forth ten factors. Father claims error because the referee did not deviate from the schedule with respect to the following factors:

(2) Any financial condition of either parent which would make application of the schedule inequitable;

(3) Whether the federal income tax dependent deduction for such minor child is allocated to the benefit of the support obligor or the custodial parent;

* * * * * *

(5) The effect of custody and visitation provisions including whether children share substantial amounts of time with each parent;

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

Father raised other deviation factors at the hearing before the referee but these were not briefed and are deemed abandoned. SDCL 15-26A-60(6); ...