Hendricksen v. Harris, No. 20480

• Court: Supreme Court of South Dakota
• Writing for the Court: SEVERSON, Circuit.
• Citation: 1999 SD 130,600 N.W.2d 180
• Parties: Peter B. HENDRICKSEN, Plaintiff and Appellant, v. Laurie HARRIS, Defendant and Appellee.
• Decision Date: 29 September 1999
• Docket Number: No. 20480, No. 20494.

600 N.W.2d 180
1999 SD 130

Peter B. HENDRICKSEN, Plaintiff and Appellant,
v.
Laurie HARRIS, Defendant and Appellee

Nos. 20480, 20494.

Supreme Court of South Dakota.

Considered on Briefs February 23, 1999.

Decided September 29, 1999.

John J. Delaney of Delaney & Sumner, L.L.P., Rapid City, South Dakota, Attorneys for plaintiff and appellant.

Mary McCusker, Santa Fe, New Mexico, Attorney for defendant and appellee.

600 N.W.2d 181

SEVERSON, Circuit Judge

[¶ 1.] Peter B. Hendricksen (Peter) appeals the circuit court's child support modification order. We affirm in part and reverse in part.

FACTS

[¶ 2.] On January 11, 1990, Peter and Laurie Harris (Laurie) were granted a decree of divorce by the circuit court of Pennington County. They have continued to battle through several hearings involving child support.

[¶ 3.] Following a trial on a modification request, the circuit court entered amended findings of fact and conclusions of law and an amended order on August 24, 1996. Peter filed a notice of appeal on October 7, 1996. However, on December 23, 1997, on motion from Peter, we remanded to the circuit court to consider changes in circumstances. In the order of remand, we stated, "this remand is dispositive of the appeal before this court" and "subsequent to further proceedings on remand, either party, if feeling aggrieved, may file an appeal, provided however, that such appeal must be timely taken from an order or judgment appealable of right."

[¶ 4.] Following the remand, in February 1997, Peter filed another motion for review of child support, which the circuit court referred to a child support referee. The parties were heard by the referee, who entered his report on May 9, 1997. Objections to the report and findings were timely filed by Laurie, and no objections were filed by Peter.

[¶ 5.] Laurie presented her objections to the referee's report at a hearing before the circuit court on September 2, 1997. The circuit court found an error in the referee's child support calculations, as Peter's net income was erroneously considered as gross income. This decision was not appealed.

[¶ 6.] The referee found as a fact that the oldest child, Heidi, had turned eighteen and was living with her father while completing high school. Based on this finding, the referee's finding and report concluded support to Laurie for Heidi should be terminated and that Laurie should pay Peter support until Heidi graduated from high school. The circuit court modified the referee's report in its order concluding support should continue to be paid to Laurie, since no court order changed custody for Heidi. The circuit court further reversed the referee on another issue, finding both parents' income should be averaged over three years to determine their average income for purposes of child support. Peter appealed from this order and from the 1996 order, which had previously been appealed and remanded.

STANDARD OF REVIEW

[¶ 7.] We first note our standards of review for the issues presented in this case. It is settled law in this state that a reviewing court reviews 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. Permann v. Dept. of Labor Unemp. Ins. D., 411 N.W.2d 113 (S.D.1987). A child support referee's report is reviewed under the same standard. Janke v. Janke, 467 N.W.2d 494 (S.D.1991). Under this standard, a reviewing court will not overturn findings of fact unless left with a definite and firm conviction that a mistake has been made. Parsons v. Parsons, 490 N.W.2d 733, 736 (S.D.1992), (citing Hilbrands v. Hilbrands, 429 N.W.2d 750 (S.D.1988)). In this case, the referee was the fact finder and had the advantage of hearing testimony of witnesses and could directly judge their credibility. As a reviewing court, neither the circuit court nor this court should attempt to assume such a role. Conclusions of law made by the referee are fully reviewable and may be overturned by a reviewing court whenever they are found to be incorrect. Janke, 467 N.W.2d at 494.

600 N.W.2d 182

ANALYSIS AND DECISION

[¶ 8.] Whether the circuit court erred in not basing support for an adult child still in school on the child's actual residence.

[¶ 9.] The referee found that Heidi was an adult, was still in school, that she was under the age of nineteen, and she was actually living with her father. Therefore, the referee concluded that no support was due Laurie and support was due Peter until the end of the school year. The circuit court found that there was no formal change in custody for Heidi.¹ Based on this finding, the circuit court did not accept the referee's legal conclusion and provided for support calculated with each parent having Heidi for equal periods.

[¶ 10.] We have stated that a parent seeking a change in child support should not seek a retroactive abatement, but should move the trial court for modification or abatement or for a change in custody. Agee v. Agee, 551 N.W.2d 804 (S.D.1996). However, Heidi reached eighteen in November 1997. Peter is not seeking retroactive abatement. Neither party objected to the date set by the referee and the circuit court, April 1, 1998, as the effective date for child support modification. At all times relevant to the modification request, Heidi was an adult and her custody was not subject to the judgment and decree of divorce. SDCL 26-1-1; Earley v. Earley, 484 N.W.2d 125 (S.D. 1992). She could choose with whom she wished to live. The legislature has provided for payment of support until a child reaches nineteen if the child is a student, but this does not confer authority to determine custody.² The referee made a determination of the facts as to where Heidi was living based on the actual circumstances of the parties. We conclude as a matter of law that after a modification petition was filed, support for Heidi after...