Linard v. Hershey, s. 17583

• Decision Date: 11 February 1992
• Docket Number: Nos. 17583,17591,17597 and 17611,s. 17583
• Citation: 489 N.W.2d 599
• Parties: Patricia LINARD, Plaintiff and Appellant, v. Brooke HERSHEY, Defendant and Appellee. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 599

489 N.W.2d 599

Patricia LINARD, Plaintiff and Appellant, v. Brooke HERSHEY, Defendant and Appellee.

Nos. 17583, 17591, 17597 and 17611.

Supreme Court of South Dakota.

Considered on Briefs Feb. 11, 1992.

Decided Aug. 5, 1992.

Jerry C. Rachetto, Deadwood, for plaintiff and appellant.

Robert A. Haivala, Morman, Smit, Hughes, Strain, Molstad & Haivala, Sturgis, for defendant and appellee.

HENDERSON, Justice.

PROCEDURAL HISTORY/ISSUES

On December 12, 1990, trial court heard testimony of the paternity claims of the parties. Trial court entered its memorandum opinion on April 3, 1991. On April 24, 1991, hearing was held on Linard's motion for prejudgment interest. Trial court entered its Order denying Linard prejudgment interest on May 29, 1991.

On April 24, 1991, Linard made a motion to set reasonable child support. On April 8, 1991, Linard moved for a new trial. On May 29, 1991, trial court entered its Order on these issues. On that same date, trial court heard and denied Linard's motion to adjust child support. This order was entered on June 21, 1991.

On June 19, 1991, trial court entered an order setting the amount of support arrearages and ordered Hershey to pay attorney fees.

On June 19, 21 and July 1, 1991, Linard filed a notice of appeal from these issues, with an affidavit of indigency.

On appeal, Linard raises the following issues:

I. Did trial court abuse its discretion in setting the amount of Hershey's support arrearages?

II. Did trial court abuse its discretion in compelling Linard to procure health care coverage for minor child out of the monthly child support payment?

III. Did trial court abuse its discretion in awarding Linard attorney's fees?

IV. Did trial court abuse its discretion in refusing to adjust the monthly child support payments?

V. Did trial court abuse its discretion in denying Linard prejudgment interest on child support arrearages?

VI. Did trial court abuse its discretion in denying Linard a new trial?

VII. Did trial court abuse its discretion in refusing to compel Hershey to provide health care coverage for minor child?

VIII. Did trial court abuse its discretion in fixing child support payments at the figure it did?

We combine Issues VII and VIII into our discussion of Issues II and IV, respectively because they are, essentially, the same issues.

FACTS

Linard filed a paternity action seeking support of the minor child, who was born out of wedlock between Linard and Hershey. At the time of commencement of the action, minor child was ten and a half years old. The parties arranged an informal agreement whereby Hershey agreed to pay child support in the amount of $125 per month. Support was infrequently paid. Child support payments totaled $5,513.50, from 1984 to the present.

Hershey initially denied paternity, but later admitted that he was father of the child after trial court ordered blood testing.

Both parties presented evidence of their financial situations at trial. Trial court found that Linard had a monthly gross income of $603.28. This was based upon Linard's part-time job and social security widow's benefit, in addition to contributions of Hershey. Trial court also found that Linard has few personal assets; that she owns no real estate and receives public rental assistance. Linard does have three years of college education. Trial court assumed Linard had a minimum wage capability of 40 hours per week.

Trial court found that Hershey has a monthly net income of $724.85. Hershey operates a ranching operation which is encumbered by substantial debt. The trial court also found that Hershey had no ability to borrow additional money for the purpose of making future support obligations. Linard strongly advocates that Hershey should have borrowed money. The facts reveal the banker would not go along with him. Hershey's present wife has regular employment which supplies her with an income of $18,000 per year. Hershey's wife has three dependent children by a prior marriage. Trial court ultimately concluded that Linard's and Hershey's combined, limited monthly net income totaled $1,328.13.

Based on the findings, trial court calculated the joint child support obligation at $212.00 per month. This was split proportionately; with Hershey owing 55% or $116.60, and Linard owing 45% or $95.40.

Trial court calculated the child support arrearages owed by Hershey. These arrearages were calculated to be $8,307.60, less the amounts previously paid, which left $2,794.10 owed by Hershey. Further, trial court ruled that Linard failed to show special needs of the minor child to warrant any deviation from the child support guidelines. Trial court ruled that any uncovered medical costs would be split using the 55%/45% ratio. Trial court placed upon Linard the onus of procuring health insurance for the child, with the stipulation that Hershey again pay 55% of the cost thereof. Finally, concluding that Hershey's actions caused unnecessary expense and considering the financial condition of the parties, trial court awarded attorney fees of $477, including tax, to Linard.

STANDARD OF REVIEW

The standard of review in an appeal from a child support determination is whether the trial court abused its discretion. Nelson v. Nelson, 454 N.W.2d 533, 534 (S.D.1990); Peterson v. Peterson, 434 N.W.2d 732, 734 (S.D.1989). We do not " 'determine whether [we] would have made an original like ruling, but whether we think a judicial mind, in view of the law and circumstances of the particular case, could reasonably have reached such a conclusion.' " Nelson, 454 N.W.2d at 534, (quoting Havens v. Henning, 418 N.W.2d 311, 312 (S.D.1988)).

Initially, it must be noted that the record before us does not contain a transcript from the trial court. Accordingly, the record on appeal is confined to those pleadings and papers transmitted from the circuit court. Reed v. Heath, 383 N.W.2d 873, 874 (S.D.1986); Pearson v. Adams, 279 N.W.2d 674, 676 (S.D.1979).

DECISION

ISSUE I

Linard asserts that trial court abused its discretion in setting the monthly amounts Hershey owed in child support arrearages. She asserts that the amounts allocated were not a reasonable share of the necessary support for the minor child. Linard argues that trial court should have set the amount of arrearages per month at the same level as Hershey's other children receiving support.

Pursuant to SDCL 25-8-5, trial court addressed delinquent support for the last six (6) years. Trial court found arrearages should be established at $8,307.60. It deducted $5,513.50 as a credit from previous payments. This left a balance of $2,794.10 owed by Hershey for past support.

Trial court broke down Hershey's arrearages by month and year. We do not believe that trial court abused its discretion in calculating Hershey's support arrearages for the past six years. These arrearages were determined under the provisions of SDCL 25-7-7 and SDCL 25-7-6.1. ¹ Trial court need not consider a separate child support obligation in determining the present support arrearage. See generally, SDCL 25-7-6.1; Johnson v. Johnson, 451 N.W.2d 293 (S.D.1990). Therefore, we find no abuse of discretion and affirm the trial court. Nelson, Peterson, supra.

ISSUES II and VII

We treat Issues II and VII together. Linard petitioned the trial court to compel Hershey to provide minor child with reasonable health care coverage. Trial court denied the motion and determined Hershey did not have to procure health insurance for the child but if Linard did so, Hershey would be obligated to pay a proportionate share. Hershey was to reimburse 55% of the cost of the premium, Linard's share was 45%. Trial court determined that Hershey's wife's insurance carrier would not allow the minor child under the group medical coverage.

Trial court apparently arrived at the determination of health care coverage by application of SDCL 25-7-6.16, which provides as follows:

The court may enter an order for health and dental insurance coverage. Medical insurance shall be provided for the benefit of the minor child wherever practical. The cost of the insurance attributable to the child shall be determined by dividing the out-of-pocket cost of the insurance to the parent by the number of individuals insured thereunder and shall be apportioned between the parents on the basis of income or income imputed as provided in Sec. 25-7-6.1 to 25-7-6.17, inclusive. If one parent pays the entire amount, he shall be reimbursed by the other parent for the other parents portion of the payment, or shall receive a credit against his support obligation, whichever is appropriate. Any costs not covered by insurance shall be apportioned between the parents in proportion to the support obligation of each parent.

It is within the court's discretion to determine whether or not to enter an order for health insurance under SDCL 25-7-6.16. Here, trial court correctly followed the statute. It proportioned the premium cost according to the proportion already determined in establishing each parties' support obligation, as we denoted above. We find no abuse by the trial court in this determination. Thereby, trial court is affirmed.

ISSUE III

Trial court awarded Linard attorney's fees of $450, plus tax and costs. Linard contends that such an award was insufficient considering the facts of the case and was an abuse of discretion.

Trial court has broad discretion in considering factors for an award of attorney's fees and we will reverse only if there is a clear abuse of discretion. Schmidt v. Schmidt, 444 N.W.2d 367, 370 (S.D.1989). In making its decision, the trial court must look at the property owned by the parties; whether the moving party's property is in fixed or liquid assets; and whether either party unreasonably increased the time spent on the case. Goehry v. Goehry, 354 N.W.2d 192, 195 (S.D.1984).

The court considered the financial conditions of the parties and the fact that Hershey's actions had caused unnecessary...