Houser v. Houser, s. 18961

• Decision Date: 23 May 1995
• Docket Number: 19002,Nos. 18961,s. 18961
• Citation: 535 N.W.2d 882
• Parties: Susan J. HOUSER, Plaintiff and Appellee, v. Robert J. HOUSER, Defendant and Appellant. Robert J. HOUSER, Appellant, v. STATE of South Dakota, DEPARTMENT OF SOCIAL SERVICES; and Susan J. Houser, a/k/a Susan J. Fordice, Appellees. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 882

535 N.W.2d 882

Susan J. HOUSER, Plaintiff and Appellee, v. Robert J. HOUSER, Defendant and Appellant.

Robert J. HOUSER, Appellant, v. STATE of South Dakota, DEPARTMENT OF SOCIAL SERVICES; and Susan J. Houser, a/k/a Susan J. Fordice, Appellees.

Nos. 18961, 19002.

Supreme Court of South Dakota.

Considered on Briefs May 23, 1995.

Decided Aug. 16, 1995.

Lewayne M. Erickson, P.C., Brookings, for appellee Susan Houser.

Alvin R. Pahlke, Tripp County State's Atty., Winner, for appellee, State.

J.M. Grossenburg Winner, for appellant.

SABERS, Justice.

Custodial parent (mother) seeking modification of child support and payment of arrearages obtained favorable rulings from the administrative law judge. Father appealed. The circuit court allowed an abatement of child support under SDCL 25-7-6.14 for the minor children's extended visits with father. The court modified future support for the remaining minor child. Father appeals and mother cross appeals and we reverse in favor of mother.

FACTS

Bob and Susan Houser were divorced on May 17, 1984. They have three children: Dana, born November 13, 1969; Kim, born June 6, 1974; and Laura, born August 23, 1978. At the time, it was anticipated that the children would spend summers with Bob and the school year with Susan. The parties entered into a stipulation which provided that the parties shall have joint custody of the children. Primary custody went to Susan for nine months and Bob for three months. Liberal visitation privileges were granted. The Decree further stated:

[T]he Defendant shall pay as child support for and on behalf of the minor children of the parties the sum of $400.00 Dollars per month ... until said children shall attain the age of majority or until further order of the Court. The aforesaid support payments shall be paid into the office [of] the Clerk of Courts in and for the County of Brookings, State of South Dakota.

Bob and Susan sometimes lived together after the divorce. The children lived with Bob for various lengths of time, up to one year. When the children stayed with Bob, he would reduce the amount of child support he paid to Susan by approximately one-third, or $135, for each child. Bob claims he and Susan agreed to interpret the Decree in this manner and that she agreed that any of Bob's child support obligations would be off-set by any of Bob's expenditures on behalf of the children, especially transportation costs during visitations. Susan denies any such agreement.

In the summer of 1993, Susan entered the Illinois Office of Child Support Services to seek a "Modification of Support" and was advised that obtaining a modification and collecting past due child support were one process. The South Dakota Department of Social Services (DSS) notified Bob on October 30, 1993 that he owed $33,050.00 in arrearages. DSS intended to restrict Bob's ability to renew his driver's license and his hospital administrator's license. Bob is a hospital administrator with an annual salary of $80,808, plus additional incentives. On November 9, 1993, Bob requested an administrative review. The administrative law judge found Bob owed $31,909.00 for child support from June, 1984 to December, 1993. Bob appealed to the circuit court of Tripp County. Bob also filed, in Brookings County, a Motion to Vacate (abate) child support, for a new support order for the remaining minor child and to change venue to Tripp County. The court consolidated the two trials and changed venue to Tripp County.

The court determined that the finding of $31,909.00 in arrearages was clearly erroneous. The court determined the 1984 Decree provided the child support obligation should be reduced by a pro rata one-third when each child reached 18, or 19 if enrolled as a full-time student in secondary school. The court concluded that abatement was not recognized until July 1, 1989 when SDCL 25-7-6.14 became effective and that the statute was not intended to be retroactive. The court also concluded child support may be abated when a child spends more than 29 consecutive days with the noncustodial parent. The court abated $4,256.00. The court also determined that $16,215.00 was due for child support and that Bob would owe $679 per month for Laura, the remaining minor child. Bob appeals and Susan cross appeals. We reverse in favor of Susan.

1. Whether the 1984 Divorce Decree provides for a lump sum or a pro rata distribution for child support?

Bob claims the parties interpreted the Decree to provide approximately $135 per child. As each child reached majority, Bob claims his support obligation would be reduced by $135. He also claims child support is reduced by approximately $135 per child per month if any child lived with him that month. His support payments reflect his interpretation. Susan claims she never agreed to this interpretation.

Bob claims "the construction given by the parties themselves to the contract as shown by their acts, if reasonable, will be accorded great weight and usually will be adopted by the Court[,]" quoting Malcolm v. Malcolm, 365 N.W.2d 863, 865 (S.D.1985). He claims:

The parties did not agree to ignore or change the Decree of Divorce without court order. They agreed on how to interpret it and they put their interpretation into practice.

Bob claims since the parties could "determine exact times of primary custody," they should be allowed to prorate the $400.00 per month in child support.

Contractual stipulations in divorce proceedings are governed by the law of contracts. The interpretation of a contract is a matter of law for a court to decide.

Estate of Thomas v. Sheffield, 511 N.W.2d 841, 843 (S.D.1994) (quoting Seablom v. Seablom, 348 N.W.2d 920, 924 (N.D.1984)). Because the interpretation of the Decree is a question of law, we give no deference. Id.

The administrative law judge found the Decree was not ambiguous and provided $400.00 per month in child support until all the children reached majority. The circuit court found this to be clearly erroneous. However, the court did not enter any specific finding on the interpretation of the Decree. Bob claims the court treated the Decree as providing $133 per month per child when the court calculated abatement.

In Radigan v. Radigan, 465 N.W.2d 483, 485 (S.D.1991), the divorce decree provided child support of "$750 per month for the support of the minor children[.]" (Emphasis added). We held the obligation was not reduced when one of the two children reached majority. Id. We noted child support under SDCL 25-7-6.2 would have been much greater had the statute been in effect in 1989. Father's remedy once the older child reached majority was to seek modification with the court. Id.

Here, the 1984 Decree provides that child support shall be $400.00 per month "for and on behalf of the minor children" and continues until "said children shall attain the age of majority or until further order of the Court." It makes no provision for a pro rata distribution of the obligation. We hold that child support under the Decree was to remain at $400.00 until "said children attain the age of majority[.]" (Emphasis added). Because the 1984 Decree provided $400.00 per month in child support, any deviation from this amount was a modification of the decree, not a mutual "interpretation" of the decree by the parties, as claimed by Bob.

Bob did not seek court approval for reducing his child support by a "pro rata one third" or $135.00. In fact, Bob did not follow the Decree and make his child support checks payable to the Brookings County Clerk of Courts. After one month under the Decree, he made payments directly to Susan. The informal modification was not approved by the court. In Vander Woude v.Vander Woude, 501 N.W.2d 361, 363 (S.D.1993), mother informally forgave past child support for other consideration. The agreement was not court approved. We held the parties were without authority to modify or forgive father's child support arrearages without court approval. Id. at 364. Therefore, we must reverse the circuit court and affirm the administrative law judge's finding that the Decree provides $400.00 in support until "all children attain the age of majority."

2. Whether abatement under SDCL 25-7-6.14 was properly granted and calculated?

SDCL 25-7-6.14 provides:

An abatement of a portion of the child support may be ordered if a child spends more than twenty-nine consecutive days with the noncustodial parent.

SDCL 25-7-6.14 became effective July 1, 1989. 1989 S.D.Session Laws, ch. 220, § 14. The court properly concluded abatement was not recognized until 1989 and that no retroactive intent appears from the statute. SDCL 2-14-21. The court reduced Bob's child support by $133.00 for each month one of the children stayed with him for more than 29 consecutive days. ¹

Susan claims SDCL 25-7-7.3, 25-7-7.4 and 25-7A-17 "prohibit retroactive modification of child support obligations, and based on this court's consistent opinions enforcing these statutory provisions, Bob cannot try to use the abatement statute to do what the above statutes and cases prohibit." She claims a "reasonable interpretation" of SDCL 25-7-6.14, based on Whalen v. Whalen, 490 N.W.2d 276 (S.D.1992), "requires the obligor first pay his full child support obligation before seeking an abatement, and then seek the abatement only during the time his obligation remains in effect for that particular child(ren) so that his future support obligation for that particular child(ren) may be abated."

Bob had a duty to pay $400.00 per month for child support. Any unpaid support became a judgment against him as a matter of law, not subject to retroactive modification. SDCL 25-7-7.3, 25-7-7.4, Kier v. Kier, 454 N.W.2d 544 (S.D.1990). As we stated in Whalen, 490 N.W.2d at 280, "it is our responsibility to give reasonable construction to both [statutes], and if possible, to give effect to all provisions under consideration, construing them together to make them ...