Mathis v. Mathis, No. 21092.

CourtSouth Dakota Supreme Court
Writing for the CourtAMUNDSON, Justice.
Citation609 N.W.2d 773,2000 SD 59
PartiesAllan D. MATHIS, Petitioner and Appellant, v. Beth C. MATHIS, Appellee.
Decision Date03 May 2000
Docket NumberNo. 21092.

609 N.W.2d 773
2000 SD 59

Allan D. MATHIS, Petitioner and Appellant,
v.
Beth C. MATHIS, Appellee

No. 21092.

Supreme Court of South Dakota.

Considered on Briefs February 14, 2000.

Decided May 3, 2000.


609 N.W.2d 774
Brad P. Gordon of Fuller, Tellinghuisen, Gordon & Percy, Spearfish, Attorneys for petitioner and appellant

Linda Lea M. Viken of Viken, Viken, Pechota, Leach & Dewell, Rapid City, Attorneys for appellee.

AMUNDSON, Justice.

[¶ 1.] Allan Mathis (Allan) brought a petition for modification of his child support payments payable to his former spouse, Beth Mathis (Beth). The circuit court adopted the child support referee's recommendation that Allan did not provide sufficient information establishing a change in income that would warrant a modification of his child support payments. We affirm.

FACTS

[¶ 2.] Allan and Beth Mathis were divorced on March 23, 1998. At the time of the divorce, Allan and Beth had six children; two children were over age eighteen and four were still minors. The couple entered a stipulation and agreement (agreement) which was incorporated by reference into the divorce decree. The agreement provided that Allan was obligated to pay $1,226 per month for the care and support of the couples' then four minor children. Also under the agreement, Allan received certain shares of corporate stock. Beth was designated as the physical custodian of the minor children.

[¶ 3.] On March 2, 1999, Allan filed a petition for modification of child support. The basis for his petition was that his income was reduced and one of the children turned eighteen on August 29, 1998, and was graduating from high school. Beth responded to Allan's petition by arguing no change of circumstances exists as it relates to Allan's financial condition and if any reduction of income did exist, it was voluntary on the part of Allan.

[¶ 4.] The petition for modification was heard by Child Support Referee John Feehan on March 24, 1999. The referee found that no sufficient information existed to establish any change in income which would warrant a change in the previous child support order. In calculating Allan's monthly income, the referee found that Allan had sold various stock holdings beginning on July 9, 1998, and received $50,756 in proceeds. The referee annualized the entire proceeds amount of $50,756 over a one-year period for a total of $4,229.67 per month and included this amount as part of Allan's monthly income amount of $6,183.33.1 The referee concluded that, based upon the combined assets and incomes of the parents, Allan's child support obligation should be increased from $1,226 to $1,247 per month for the three remaining minor children.

[¶ 5.] Allan appealed the referee's decision to the Circuit Court, Eighth Judicial Circuit, Lawrence County, South Dakota. After briefs were submitted and oral arguments held on May 25, 1999, the circuit court adopted the referee's recommendation, including the referee's calculations containing the annualization of the proceeds from Allan's stock sale.

[¶ 6.] Allan appeals, raising the following issue:

Whether the trial court erred as a matter of law by adopting the referee's child support order.

STANDARD OF REVIEW

[¶ 7.] It is well settled that we review a child support referee's "findings of fact under the clearly erroneous standard and questions of law are fully reviewable.Mixed questions of law and fact are classified as questions of law and are reviewable de novo." Hendricksen v. Harris, 1999 SD 130, ¶ 7, 600 N.W.2d 180, 181 (citing Permann v. Department of Labor,

609 N.W.2d 775
Unemployment Ins. Div., 411 N.W.2d 113 (S.D.1987); Janke v. Janke, 467 N.W.2d 494 (S.D.1991)). In addition, "[w]hen the circuit court has adopted a child support referee's findings and conclusions, we apply the clearly erroneous standard of review to the findings and give no deference to conclusions of law." Matter of Loomis, 1998 SD 113, ¶ 6, 587 N.W.2d 427, 429 (citing Wolff v. Weber, 1997 SD 52, ¶ 7, 563 N.W.2d 136, 138 (citing Whalen v. Whalen, 490 N.W.2d 276, 280 (S.D.1992)); Janke, 467 N.W.2d at 497). Further, "[i]n applying this standard, we will not reverse findings of fact unless we are left with a definite and firm conviction a mistake has been made." Id. (citing Janke, 467 N.W.2d at 497). We have often noted
[t]he referee was the fact finder and had the advantage of hearing testimony of witnesses and could directly judge their credibility. As a reviewing court, neither the circuit court nor this [C]ourt should attempt to assume such a role. Conclusions of law made by the referee are fully reviewable and may be overturned by a reviewing court whenever they are found to be incorrect.

Hendricksen, 1999 SD 130, ¶ 7, 600 N.W.2d at 181 (citing Janke, 467 N.W.2d at 494).

DECISION

[¶ 8.] Whether the trial court erred as a matter of law by adopting the referee's child support order.

[¶ 9.] The determination of the monthly net income of each parent is addressed in SDCL 25-7-6.3. Under the statute,

[t]he monthly net income of each parent shall be determined by his gross income less allowable deductions, as set forth herein. The monthly gross income of each parent includes amounts received from the following sources:

(1) Compensation paid to an employee for personal services, whether salary, wages, commissions, bonus or otherwise designated;

(2) Self-employment income including gain, profit or loss from a business, farm or profession;

(3) Periodic payments from pensions or retirement programs, including social security or veteran's benefits, disability payments or insurance contracts;

(4) Interest, dividends, rentals, royalties or other gain derived from investment of capital assets;

(5) Gain or loss from the sale, trade or conversion of capital assets;

(6) Unemployment insurance benefits; and
(7) Worker's compensation benefits.
If the income of the parents is derived from seasonal employment, or received in payments other than regular, recurring payments, such income shall be annualized to determine a monthly average income.

[¶ 10.] In the present case, the referee had a difficult time determining Allan's present income level. This difficulty was based upon Allan's failure to provide a specific income amount; instead, Allan provided several varying income figures. The referee made the following findings in regards to Allan's monthly income:

a. In his petition for modification of child support [Allan] fails to complete the financial statement which requires an estimation of present income from all sources. No income is listed.

b. In his testimony [Allan] submits wages for himself of $1000 per month.

c. In a financial statement [Allan] submitted to his lender dated [February 2, 1998,] [Allan] lists his income as $4975.00 per month. He lists assets of $836,295.00 and liabilities of $261,413.81. (Note is made that the stock holdings that were liquidated were not specifically listed on this financial statement.)

d. In his 1998 personal income tax return [Allan] lists income as follows:

609 N.W.2d 776
wages $13,200; interest income $411.00; dividend income $771.00; rental income $7096.00; and capital losses of ($1500.00) for a total income of $19,978. The tax return lists depreciation of $3466.00. Disallowing depreciation, [Allan's] income for his tax return is $23,444.00 or $1953.67 per month

[¶ 11.] A review of the record reveals that Allan was attempting to play "fast and loose" in his reporting of net income. On several different occasions, Allan would report his income at different amounts...

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7 practice notes
  • Kauth v. Bartlett, No. 24414.
    • United States
    • Supreme Court of South Dakota
    • 12 Marzo 2008
    ...error, while conclusions of law are reviewed de novo. Wagner v. Wagner, 2006 SD 31, ¶ 5, 712 N.W.2d 653, 656 (quoting Mathis v. Mathis, 2000 SD 59, ¶ 7, 609 N.W.2d 773, 774). Additionally, when the lower court adopts the child support referee's factual findings and legal conclusions, "we ap......
  • Davidson v. Horton Industries, Inc., No. 21970.
    • United States
    • South Dakota Supreme Court
    • 27 Febrero 2002
    ...of witnesses. See Schneider, 2001 SD 70 at ¶ 14, 628 N.W.2d at 728; Johnson, 2000 SD 47, ¶ 22, 610 N.W.2d 449, 453-54; Mathis v. Mathis, 2000 SD 59, ¶ 11, 609 N.W.2d 773, 776; Belhassen, 2000 SD 82 at ¶ 17, 613 N.W.2d at 536; Hendricksen v. Harris, 1999 SD 130, ¶ 7, 600 N.W.2d 180, 181; Kur......
  • Dakota, Minn. & Eastern R.R. Corp. v. Rounds, No. CIV 02-4083.
    • United States
    • United States District Courts. 8th Circuit. United States District Courts. 8th Circuit. District of South Dakota
    • 28 Marzo 2006
    ...Engineering, Inc., 632 N.W.2d 840, 843 (S.D.2001); Nickerson v. American States Ins., 616 N.W.2d 468, 470 (S.D.2000); Mathis v. Mathis, 609 N.W.2d 773, 778 (S.D.2000); South Dakota Subsequent Injury Fund v. Federated Mut. Ins., Inc., 605 N.W.2d 166, 169 (S.D.2000). It is also well recognize......
  • Gisi v. Gisi, No. 24145.
    • United States
    • Supreme Court of South Dakota
    • 11 Abril 2007
    ...a definite and firm conviction a mistake has been made. Wagner v. Wagner, 2006 SD 31, ¶ 5, 712 N.W.2d 653, 656 (citing Mathis v. Mathis, 2000 SD 59, ¶ 7, 609 N.W.2d 773, 774). Also, "[t]his [C]ourt's standard of review in child support cases is whether the trial court abused its discretion ......
  • Request a trial to view additional results
7 cases
  • Kauth v. Bartlett, No. 24414.
    • United States
    • Supreme Court of South Dakota
    • 12 Marzo 2008
    ...error, while conclusions of law are reviewed de novo. Wagner v. Wagner, 2006 SD 31, ¶ 5, 712 N.W.2d 653, 656 (quoting Mathis v. Mathis, 2000 SD 59, ¶ 7, 609 N.W.2d 773, 774). Additionally, when the lower court adopts the child support referee's factual findings and legal conclusions, "we ap......
  • Davidson v. Horton Industries, Inc., No. 21970.
    • United States
    • South Dakota Supreme Court
    • 27 Febrero 2002
    ...of witnesses. See Schneider, 2001 SD 70 at ¶ 14, 628 N.W.2d at 728; Johnson, 2000 SD 47, ¶ 22, 610 N.W.2d 449, 453-54; Mathis v. Mathis, 2000 SD 59, ¶ 11, 609 N.W.2d 773, 776; Belhassen, 2000 SD 82 at ¶ 17, 613 N.W.2d at 536; Hendricksen v. Harris, 1999 SD 130, ¶ 7, 600 N.W.2d 180, 181; Kur......
  • Dakota, Minn. & Eastern R.R. Corp. v. Rounds, No. CIV 02-4083.
    • United States
    • United States District Courts. 8th Circuit. United States District Courts. 8th Circuit. District of South Dakota
    • 28 Marzo 2006
    ...Engineering, Inc., 632 N.W.2d 840, 843 (S.D.2001); Nickerson v. American States Ins., 616 N.W.2d 468, 470 (S.D.2000); Mathis v. Mathis, 609 N.W.2d 773, 778 (S.D.2000); South Dakota Subsequent Injury Fund v. Federated Mut. Ins., Inc., 605 N.W.2d 166, 169 (S.D.2000). It is also well recognize......
  • Gisi v. Gisi, No. 24145.
    • United States
    • Supreme Court of South Dakota
    • 11 Abril 2007
    ...a definite and firm conviction a mistake has been made. Wagner v. Wagner, 2006 SD 31, ¶ 5, 712 N.W.2d 653, 656 (citing Mathis v. Mathis, 2000 SD 59, ¶ 7, 609 N.W.2d 773, 774). Also, "[t]his [C]ourt's standard of review in child support cases is whether the trial court abused its discretion ......
  • Request a trial to view additional results

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