Kier v. Kier, 16645
| Decision Date | 29 November 1989 |
| Docket Number | No. 16645,16645 |
| Citation | 454 N.W.2d 544,60 Ed.LawRep. 194 |
| Parties | 60 Ed. Law Rep. 194 Charlotte KIER, Plaintiff and Appellee, v. Gordon Allen KIER, Defendant and Appellant. . Considered on Briefs |
| Court | South Dakota Supreme Court |
Glenn A. Fingerson of Fingerson, Severson & Nelson, Huron, for plaintiff and appellee.
Thomas M. Frankman of Davenport, Evans, Hurwitz & Smith, Sioux Falls, for defendant and appellant.
Gordon Kier appeals an award of child support arrearages, interest and attorney's fees. We affirm in part, reverse in part and remand.
Charlotte and Gordon Kier divorced in 1973. Custody of their only child, Tracy, was granted to Charlotte subject to Gordon's rights of reasonable visitation. Pursuant to the parties' agreement, the circuit court amended their original divorce decree in 1982. Gordon's monthly child support obligation was increased to $375 and he also agreed to pay certain college expenses for Tracy.
On September 9, 1988, Charlotte initiated a show cause/contempt proceeding seeking an award of child support arrearages and an interpretation of the parties' agreement regarding payment of Tracy's college expenses. Gordon responded on September 13, 1988, with a motion to dismiss alleging that all required child support payments had been made. However, on November 15, 1988, Gordon filed an affidavit admitting that he had not made certain child support payments. He defended his nonpayment by alleging that he had been relieved of his support obligation through an agreement with Charlotte.
A hearing took place on November 21, 1988. Evidence was received consisting of the affidavits of the parties, the affidavit of Connie Kier (Gordon's wife) and the affidavit and oral testimony of Tracy. The trial court found that Charlotte had returned Gordon's June 1984 child support payment and that he did not make or tender ten subsequent monthly payments. The trial court also found that there was no agreement between the parties relieving Gordon of his obligation to make these payments. Additionally, the trial court found that Tracy was in her senior year of college and that Gordon had paid her expenses for room, board, tuition and books, but that he had paid no other costs incurred by Tracy in obtaining her college education.
Based upon these findings, the trial court held that Gordon owed ten child support payments of $375 each plus interest but that he did not owe the payment returned by Charlotte in June 1984. The trial court also held that Gordon was not obligated by the amended divorce decree to pay for Tracy's college expenses other than her room, board, tuition and books. Finally, Gordon was required to pay the portion of Charlotte's attorney's fees related to the collection of support arrearages.
Gordon attacks the trial court's finding that the parties did not have an agreement terminating his child support obligation. Our review of the trial court's finding is made under the clearly erroneous standard. SDCL 15-6-52(a). In applying this standard, we review all the evidence and overturn a finding only if we are left with a definite and firm conviction that a mistake has been made. Hilbrands v. Hilbrands, 429 N.W.2d 750 (S.D.1988).
The trial court was faced with testimony from Gordon that he had made all required child support payments and that he did not make the ten payments following the return of his June 1984 check because Charlotte told him, "keep the check, you're not seeing Tracy." Gordon also testified that his relationship with Tracy was strained and that he had made attempts to see Tracy, but, "most of the time," was refused visitation by Charlotte. Finally, Gordon testified that he did not visit Tracy during the period of missed payments, "except for a very few times."
On the other hand, Charlotte represented that she returned the June 1984 support check because she had heard that Gordon needed the money for a tax obligation. She also denied that there was any agreement relieving Gordon of his support obligation in exchange for his relinquishment of visitation rights. Tracy supported her mother's version of the facts. Despite Gordon's contention that he had not needed the support money, Tracy testified that she informed Charlotte that Gordon needed the money in June of 1984. Both Tracy and Charlotte claimed that Gordon exercised his visitation rights in 1984 and 1985.
Based upon our review of the foregoing facts and specifically noting Gordon's inconsistent and equivocal statements, we conclude that the trial court's finding that there was no agreement between the parties relieving Gordon of his support obligation is not clearly erroneous.
Gordon also attacks the award of support arrearages by contending that laches, waiver and estoppel prevented such an award. These affirmative defenses were not set forth in affidavits responding to Charlotte's motion. Gordon first raised these defenses in his proposed findings of fact and conclusions of law and they were rejected by the trial court.
Laches, waiver and estoppel are affirmative defenses which may not be relied upon at trial unless they are affirmatively pled in response to a preceding pleading. SDCL 15-6-8(c). In Otten v. Otten, 245 N.W.2d 506 (S.D.1976), we clearly established that the duty to plead affirmative defenses applies to affidavits made in response to orders to show cause for failure to pay court ordered child support. "Under South Dakota practice the affidavit upon which an order to show cause is issued in a contempt action is treated as the complaint and the affidavit of the defendant as the answer...." Id. at 508. By failing to affirmatively plead these defenses in his responsive affidavit, Gordon waived them. Oesterling v. Oesterling, 354 N.W.2d 735 (S.D.1984). Therefore, the trial court correctly refused to consider them.
Charlotte, by notice of review, contends that the trial court erred in relieving Gordon of his June 1984 support obligation. We agree.
In 1987, the South Dakota legislature restricted the authority of trial courts to retroactively modify past due child support obligations. SDCL 25-7-7.3; SDCL 25-7-7.4. Only those payments which accrue while a petition for modification is pending may now be modified, but only from the date that notice of hearing on the petition has been given to the interested parties. Id. In Vellinga v. Vellinga, 442 N.W.2d 472 (S.D.1989), we determined that the legislature intended that these restrictions be given retroactive application. Therefore, under the circumstances of this case, we conclude that the trial court exceeded its authority in refusing to include Gordon's June 1984 support obligation in its award of arrearages.
An award of interest on support arrearages is a matter of judicial discretion. See SDCL 25-7A-14. See also, Sarver v. Dathe, 439 N.W.2d 548 (S.D.1989). Gordon asserts that the trial court abused its discretion by awarding interest on the arrearages. He claims that he quit paying support because Charlotte led him to believe that his obligation had terminated. He cites Myhre v. Myhre, 296 N.W.2d 905 (S.D.1980) in support of his position. In Myhre we held that, "[w]hen circumstances exist which support a good faith termination of alimony payments, equity refuses to allow the recipient to collect any interest on the past due support installments." Id. at 909. We agree that this principle applies equally in appropriate cases involving child support arrearages.
Myhre, however, is distinguishable from the case before us. The parties in Myhre stipulated at the time of their divorce that alimony would terminate upon remarriage of the obligee. After the divorce, the obligee moved in with a Mr. Quint, representing to others that she and Mr. Quint were married. As a result, the obligor gave his ex-wife written notice that he would no longer pay alimony due to her "remarriage."
In the present case, the parties had no agreement relating to termination of child support. There were no representations made by Charlotte of facts which, if true, would have supported a conclusion by Gordon that he need not make further payments. The only fact from which such an inference could have been drawn was Charlotte's return of the June 1984 support check. This did not provide a strong basis in fact or reason for Gordon's inference that his support obligation had ended. It does not rise to the level of yielding a "good faith" belief on Gordon's part that his support obligation was terminated. We find no abuse of discretion in the trial court's award of interest.
Also by notice of review, Charlotte assigns error to the trial court's interpretation of the parties agreement obligating Gordon to pay certain college expenses for Tracy. The trial...
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