Johansen v. Johansen, 14540

• Decision Date: 25 October 1984
• Docket Number: No. 14540,14540
• Citation: 365 N.W.2d 859
• Parties: Vernetta Jean JOHANSEN, Plaintiff and Appellee, v. Darrel Ray JOHANSEN, Defendant and Appellant. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 859

365 N.W.2d 859

Vernetta Jean JOHANSEN, Plaintiff and Appellee, v. Darrel Ray JOHANSEN, Defendant and Appellant.

No. 14540.

Supreme Court of South Dakota.

Considered on Briefs Oct. 25, 1984.

Decided April 3, 1985.

Vernetta Jean Johansen, pro se.

William J. Ellingson, Flandreau, for appellant.

MORGAN, Justice.

This appeal is from an order issued after a show cause hearing in which appellant Darrel Johansen (Darrel) sought amendment of the divorce decree and requested custody of the parties' two children and $100 per month per child for support from appellee, Vernetta Johansen (Vernetta). The order to show cause further requested that Vernetta show why she should not be adjudged in contempt for her failure to comply with the provisions of the property division which required her to sign certain joint income tax returns. The order amended the custody decree, denied Darrel's request for child support from Vernetta, and denied the contempt adjudication. Darrel appeals from the second and third holdings. We reverse and remand.

Darrel and Vernetta were married on August 24, 1973. Two children were born during the marriage; Randi, now age ten, and Jamie, now age seven. The parties were divorced on January 12, 1982. The divorce decree approved and incorporated by reference a separation, custody, and property settlement agreement. Under that agreement and the divorce decree, Vernetta was awarded sole custody of the children and Darrel was ordered to pay one-fourth of his monthly net earnings or a minimum of $50 per month in child support. The property settlement agreement equitably divided the parties' property and debts, with a specific provision regarding execution of certain income tax returns more fully discussed later. At the hearing on the order to show cause on December 30, 1983, Vernetta appeared and voluntarily consented to the change of custody. As a result of the hearing, the order of the court issued (1) changing custody of the children to Darrel; (2) denying child support from Vernetta; and (3) holding that Vernetta was not in contempt of court for failure to execute the income tax returns.

We first examine Darrel's assertion that the trial court erred in failing to require Vernetta to pay child support. The decision provided as follows:

The Court further finds that the defendant has supplied very little support for the minor children while they were in their mother's custody, and finds that the defendant, DARREL RAY JOHANSEN, has not made a showing that he can or cannot financially support the children if there is a change of custody; however, the Court can only assume that he will provide proper support as it was shown at the time of the divorce that he had the abilities to support his family if he should be so inclined. Therefore, until there is a showing otherwise, no support will be ordered of the plaintiff until a further order of the Court. The plaintiff has contributed almost all of the support for the past two years, and the defendant should assume a similar responsibility for at least a period of time.

Child support awards are made or denied on the basis of what is reasonable and suitable to the child's circumstances and situation in life and the parents' financial means and ability to pay. Rykhus v. Rykhus, 319 N.W.2d 167 (S.D.1982). In granting or denying child support, a trial court must consider the reasonable expenditures suitable to the child's circumstances and situation in life and the parents' financial means or ability to pay. Wallahan v. Wallahan, 284 N.W.2d 21 (S.D.1979).

The record does disclose that most of the time between the divorce and the hearing Darrel was unemployed, while Vernetta worked full-time throughout that period. This lends little credence to the trial court's assumption that Darrel has the same ability to support his family as he had at the time of divorce. Furthermore, the court's statement that "[Vernetta] has contributed almost all of the support for the past two years and [Darrel] should assume a similar responsiblity for at least a period of time" sounds as though the trial court were balancing the equitable rights between the parties. The trial judge decided to force Darrel to support the children by himself because Vernetta supported them for two years on her own as a result of Darrel's failure to pay child support. This type of balancing is not a proper basis for the grant or denial of child support. The children's interest must be the primary consideration.

This court does not sit as the trier of facts and will not disturb a child support award unless it appears that the trial court abused its discretion in entering its judgment. Barrett v. Barrett, 308 N.W.2d 884 (S.D.1981); Herndon v. Herndon, 305 N.W.2d 917 (S.D.1981). Only a "clear" abuse of discretion warrants reversal. Rykhus, supra. "The term 'abuse of discretion' refers to a discretion exercised to an end or purpose not justified by, and clearly against, reason and evidence." Gross v. Gross, 355 N.W.2d 4, 7 (S.D.1984). In this case, the trial court's denial of child support was aimed at an unjustifiable end or purpose, consequently we find that the trial court abused its discretion.

If Darrel failed to make a showing as to his and Vernetta's respective abilities to support the children the trial court had the authority to determine the needs of the children. The trial court could have continued the hearing and directed the parties to produce the evidence required. In consideration of the children's welfare, the trial court's primary concern, we suggest on remand that it do so.

We next examine Darrel's assertion that the trial court erred in not adjudging Vernetta in contempt for her refusal to sign joint income tax returns for the years 1978, 1979, and 1980, in compliance with...