Janke v. Janke, No. 17040

• Court: Supreme Court of South Dakota
• Writing for the Court: PER CURIAM; MILLER, C.J., and WUEST, HENDERSON, SABERS, JJ., and MORGAN; AMUNDSON
• Citation: 467 N.W.2d 494
• Parties: Lillian Paige JANKE, Plaintiff and Appellee, v. James Allen JANKE, Defendant and Appellant. . Considered on Briefs
• Decision Date: 21 September 1990
• Docket Number: No. 17040

Page 494

467 N.W.2d 494 Lillian Paige JANKE, Plaintiff and Appellee,
v.
James Allen JANKE, Defendant and Appellant. No. 17040. Supreme Court of South Dakota. Considered on Briefs Sept. 21, 1990.
Decided March 20, 1991.

David R. Gienapp of Arneson, Issenhuth & Gienapp, Madison, for plaintiff and appellee.

James A. Janke, Madison, pro se.

PER CURIAM.

James A. Janke (father) appeals from a trial court order modifying his monthly child support obligation. We affirm.

FACTS

Father and Lillian Paige Janke (mother) were divorced in 1986. Physical custody of their two minor children was awarded to mother. Father was required to pay child support for both children in the amount of $500.00 per month which amount was later reduced to $400 per month. In September 1989, mother filed a petition for modification of father's 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 mother's petition and filed his report on November 7, 1989. The report recommended increasing father's monthly support obligation to $475.00 for both children. The referee's conclusion of law relating to the support obligation provided, "[father's] monthly child support obligation is determined to be $475.00 per month; which sum

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allows credit for $68.00 for health insurance which is paid by [father]." Neither party filed any objection to the report or this conclusion of law within the ten days provided by law (SDCL 25-7A-22). However, the circuit court delayed ruling on the report due to an unsuccessful action by father for a change in the children's custody.

Approximately forty days after entry of the referee's report, father's counsel wrote a letter to the circuit court. In the letter, counsel requested a remand of the child support issue to the referee in the event the court intended to alter the referee's recommendation. ¹ Counsel also advised the court that negotiations between the parties over child custody had increased the time the children were spending with father. Therefore, counsel indicated it was father's position that the increased visitation should be a consideration in setting his final support obligation.

The circuit court announced its decision in a letter opinion dated January 2, 1990. The court advised the parties that the referee erred in calculating father's support obligation. The error related to the credit the referee allowed father for the health insurance he was maintaining on the children. The referee allowed father credit for the entire amount he was paying for the insurance. The circuit court observed that under SDCL 25-7-6.16 ² father should only have been given credit for mother's share of the responsibility for maintenance of the insurance. The court concluded that this error had the effect of increasing father's monthly support obligation for both children to $529.40, approximately $54.00 more per month than the amount recommended by the referee. The circuit court also denied father's request to remand the matter to the referee for further consideration. Finally, the court denied any reduction in father's support obligation due to increased visitation by the children because the visitation was not so extensive as to warrant a reduction.

Also on January 2, 1990, the circuit court entered its order approving and adopting the referee's report. However, consistent with its letter opinion, the court's order fixed father's child support obligation at $529.40 per month. Father appeals.

STANDARD OF REVIEW

Prior to reaching the merits of father's first issue, we note that this is a case of first impression involving the child support referee system enacted during the 1989 legislative session. See 1989 S.D.Sess.L. ch. 175. Thus, this appeal necessarily raises new issues concerning the standards to be applied in reviewing the findings of fact and conclusions of law in the reports of child support referees.

Permann v. Dept. of Labor, Unemp. Ins. D., 411 N.W.2d 113 (S.D.1987) is the seminal decision of this court in the area of standards of review. In Permann, we thoroughly discussed the various standards previously utilized in reviewing the decisions of administrative agencies. Ultimately we concluded:

[c]ommon sense dictates which standards apply to the different matters reviewed. The agency, after holding a hearing and listening to witnesses, is in a much better position to find facts than are we on appeal. On questions of law, however, it is well within our province to interpret statutes without any assistance from the administrative agency. It is well settled that conclusions of law made by a trial court are given no deference by this court on appeal, and lacking special circumstances,

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we see no reason to give deference to agency conclusions of law.

Permann, 411 N.W.2d at 117 (footnote omitted). We went on to hold in Permann that the appropriate standard to be applied in reviewing agency decisions is whether the findings of fact are clearly erroneous in light of the entire evidence in the record. We also held, however, that agency conclusions of law are to be given no deference by a reviewing court and are freely reviewable. Permann, supra.

Permann was decided in the context of reviewing decisions of administrative agencies. The child support referees, however, are not part of an administrative agency. Nevertheless, the underlying rationale of Permann is no less applicable to the referees' reports. A referee, after holding a hearing and listening to witnesses, is in a much better position to find facts than a reviewing court. See, In re Schmidt, 70 S.D. 161, 16 N.W.2d 41 (1944) (referee's findings entitled to careful consideration by reviewing court because referee saw and heard witnesses with all advantages gained from such personal contact). See also, Wood v. Saginaw Gold Min. & Mill. Co., 20 S.D. 161, 105 N.W. 101 (1905) (referee better able to judge weight to be given to evidence of witnesses than reviewing court). On questions of law, however, a reviewing court is as...