Hershey v. Hershey, s. 17077

CourtSupreme Court of South Dakota
Citation467 N.W.2d 484
Docket NumberNos. 17077,17110,s. 17077
PartiesPatricia Eloise HERSHEY, Plaintiff and Appellant. v. Brooke Curtis HERSHEY, Defendant and Appellee.
Decision Date13 March 1991

Reed C. Richards, Deadwood, for plaintiff and appellant.

Gary G. Colbath of Banks, Johnson, Johnson, Colbath & Huffman, P.C., Rapid City, for defendant and appellee.

SABERS, Justice.

Mother appeals limitation on her recovery of back child support to six years. Father cross-appeals dismissal of his counterclaim against Mother for tortious interference with father-son relationship.


Patricia Hershey (Mother) and Brooke Hershey (Father) were divorced in South Dakota in 1968. The divorce decree awarded custody of their only child Paceon (Son) to Mother, and required Father to pay Mother $125 per month for Son's support and $25 per month into an education fund for Son's benefit.

From 1968 to 1971, Mother, Son and Mother's new husband lived first in Nebraska and then in Arizona. Father knew where they were living during this period, and there was protracted litigation over custody and visitation, culminating in the first Hershey v. Hershey, 85 S.D. 85, 177 N.W.2d 267 (1970). In 1971, in the midst of more litigation following the Supreme Court decision, Mother suddenly dismissed her attorney, who informed Father that Mother had taken Son and left Arizona. Father has not seen his Son since. Mother and Son eventually moved to Oregon, where Mother registered Son in school under the last name of a third husband whose name was unknown to Father.

From 1971 to 1985, Mother made no attempt to contact Father and Father had no knowledge of Son's whereabouts. Son graduated from high school in 1985.

During the period from the 1968 divorce to Son's attainment of majority in 1985, Father paid nothing to Mother in child support and established no education fund for Son's benefit. In 1988, Mother brought an order to show cause in South Dakota why Father should not be compelled to pay:

(1) $26,750 in back child support from 1968 to 1985;

(2) $5,100 in back education fund payments from 1968 to 1985; and

(3) $3,000 in reimbursement for orthodontic work done for Son in 1980.

In response and without starting a new action, Father counterclaimed for damages for Mother's tortious interference with his relationship with Son.

The trial court ruled that SDCL 15-2-13 bars Mother's claims which accrued more than six years before her 1988 action, i.e., earlier than 1982, but awarded Mother:

(1) $4,500 in back child support with interest for the period from 1982 to 1985; and

(2) $900 in back education fund payments with interest for the same period.

The court dismissed Father's tortious interference counterclaim on the basis that it failed to state a cause of action under South Dakota law.

On appeal, Mother seeks payment of all the money she claims Father owed her under the 1968 divorce decree from 1968 to 1985. Father cross-appeals the dismissal of his counterclaim and urges this court to recognize his cause of action.

1. Statute of Limitations
a. Child Support

The trial court held that Mother's suit was a civil action governed by SDCL 15-2-13 and that her recovery was limited to the six years before she brought suit. However, SDCL 15-2-13 does not apply in "special cases [where] a different limitation is prescribed by statute." SDCL 15-2-6 is such a statute because it provides in part: "[T]he following civil actions ... can be commenced only within twenty years after the cause of action shall have accrued: (1) An action upon a judgment or decree of any court of this state[.]"

It is well settled in this state that a divorce court has continuing jurisdiction over its decrees for alimony, separate maintenance, and custody and support of children. An application for modification or enforcement of such decree is a supplementary proceeding incidental to the original suit. It is not an independent proceeding or the commencement of a new action.

Eggers v. Eggers, 82 S.D. 675, 679, 153 N.W.2d 187, 189 (1967) (citations omitted). Therefore, actions to enforce the terms of divorce decrees are governed by SDCL 15-2-6, not SDCL 15-2-13, and the applicable statute of limitations is twenty years, not six years. Moreover, when the judgment provides for periodic payments rather than for a sum certain, the twenty years begins to run for each individual installment on the date when that installment becomes overdue. Simmons v. Simmons, 67 S.D. 145, 147, 290 N.W. 319, 320 (1940).

SDCL 25-7-7.4 provides that any support payment not made becomes a judgment by operation of law as of the date it is overdue. This statute was passed by the legislature in 1987, and the parties debate whether it has retroactive effect. We need not reach that question. Even without SDCL 25-7-7.4, Mother's order to show cause is valid to compel the payment of any periodic child support which became due during the twenty years before Mother commenced her action. The conclusion of the trial court that Mother's recovery of these periodic sums was limited to the six years prior to the commencement of her action is reversed.

b. Orthodontic Expenses

Actions which do not seek to enforce support provisions of a divorce decree, but which are based on the common law duty of parental support or on a breach of a contract claim, come under SDCL 15-2-13, and recovery is limited to six years. State ex rel. Stearns v. Blume, 333 N.W.2d 721, 724 (S.D.1983). Therefore, we affirm the trial court's holding that Mother's recovery of $3,000 for reimbursement for 1980 orthodontic expenses is barred, because payment of those expenses was not decreed by the 1968 judgment of divorce and the expenses were incurred more than six years before Mother commenced her action.

2. Estoppel
a. Child Support

Father argues that Mother is estopped from asserting her claim for child support and education fund payments because she concealed Son's whereabouts from 1971 until Son attained his majority.

The custodial parent's failure to comply with the visitation provisions of the divorce decree does not excuse the non-custodial parent's failure to comply with the child support provisions of the decree. Todd v. Pochop, 365 N.W.2d 559, 560 (S.D.1985). "[S]upport obligations are independent from visitation rights.... The children's best interest requires that they be supported. Children may not be denied support or in any way punished for the sins of the custodial parent." Stach v. Stach, 369 N.W.2d 132, 135-136 (S.D.1985). Even the custodial parent's disappearance with the child for a period of years does not eliminate the obligation of the non-custodial parent to pay court-ordered child support. "While wife's conduct in withholding contact with son for over seven years is abhorrent, husband's remedy lies elsewhere. Where child support is concerned, the child's interest is the primary consideration[.]" Regynski v. State of Arizona, 414 N.W.2d 612, 614 (S.D.1987) (emphasis original).

Despite wide acceptance of these principles, many jurisdictions have held that, under certain circumstances, a custodial parent may be estopped from seeking court-ordered child support from the non-custodial parent. The circumstances include the following:

(1) The custodial parent has concealed the whereabouts of the child from the non-custodial parent for an extended period of years.

(2) The child has attained majority, so that its best interests and need for ongoing support are no longer at issue.

(3) It is the custodial parent who is in court seeking support arrearages, not a state social services agency which cannot be estopped by the actions of the custodial parent.

See, e.g. State of Washington ex rel. Burton v. Leyser, 196 Cal.App.3d 451, 241 Cal.Rptr. 812 (Cal.App. 5th Dist.1987); Anthony v. Anthony, 204 N.W.2d 829 (Iowa 1973). The facts in Burton were similar to the present case and the California court reasoned that the husband's complete lack of information about where his ex-wife and children were living deprived him of all legal remedies for violation of his visitation rights. Therefore, the court held that the mother "intentionally" waived her known right to child support during the period of her and the children's concealment, and that she was estopped from seeking to enforce payments which were not made by the father during that period.

In this case, Father missed all periodic child support payments and education fund payments between 1968 and 1985, when Son attained his majority. Mother concealed herself and Son since 1971. Although the statute of limitations does not bar Mother's recovery of arrearages within the twenty years prior to the commencement of her 1988 action, based on the present record, we are inclined to believe that Mother's concealment of Son waived her right to receive the $125 monthly child support payments from 1971 on, but not from 1968 to 1971. 1 However, we defer these determinations to the trial court pending consideration of all the evidence on these issues, along with Father's claims, as discussed in section 3 infra.

b. Education Fund Payments

The $25 monthly education fund payment for Son's benefit stands on different footing. Mother's concealment of herself and Son did not affect Father's obligation to make the payment because the payment was not to be made directly to Mother nor for her benefit. The fund was for the benefit of Son, and Son is now an adult. It is for Son to decide whether to pursue the money Father owes for his education.

3. Father's Cause of Action Against Mother

The trial court concluded that "[d]efendant's counterclaim for tortious interference of a parent/child relationship fails to state a cause of action and shall be dismissed." Father argues that his counterclaim states a cause of action under South Dakota law under: (1) alienation of affections; (2) intentional infliction of emotional distress; or (3) tortious interference with...

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