McKittrick v. McKittrick

• Decision Date: 25 April 2007
• Docket Number: No. 24253.,24253.
• Citation: 732 N.W.2d 404,2007 SD 44
• Parties: Lonnie Ray McKITTRICK, Plaintiff and Appellant, v. Wanda Lynn McKITTRICK, Defendant and Appellee.
• Court: South Dakota Supreme Court

732 N.W.2d 404

2007 SD 44

Lonnie Ray McKITTRICK, Plaintiff and Appellant, v. Wanda Lynn McKITTRICK, Defendant and Appellee.

No. 24253.

Supreme Court of South Dakota.

Considered on Briefs on February 13, 2007.

Decided April 25, 2007.

Linda Lea M. Viken of Viken Law Firm, Rapid City, South Dakota, Attorney for plaintiff and appellant.

John R. Von Wald of Von Wald Law Offices, Selby, South Dakota, Attorney for defendant and appellee.

MEIERHENRY, Justice.

[¶ 1.] Lonnie McKittrick appeals a child support order recommended by a child support referee and affirmed by the circuit court. As part of a 2004 divorce settlement agreement, Lonnie and Wanda McKittrick set the terms of the custody and child support obligations of their minor child, Parker. Less than three years later, Wanda sought an increase in child support. The child support referee increased Lonnie's monthly support obligation and extrapolated above the child support schedule. The circuit court affirmed and we reverse.

FACTS

[¶ 2.] The parties stipulated in a divorce agreement to share joint legal custody of their minor child, Parker. Wanda had primary physical custody; Lonnie had liberal visitation. The parties agreed that Lonnie would pay $1,000.00 per month child support beginning January 1, 2004, maintain Parker's health insurance, pay 88% of Parker's uncovered health costs over $250.00, pay 88% of Parker's extracurricular activity expenses and establish a college fund for the child.¹

[¶ 3.] Disputes arose over the payment of expenses. The first dispute arose when Wanda asked Lonnie to pay for travel and lodging expenses for her and her sister when they attended one of Parker's out-of-town athletic events. Lonnie claimed that he was only responsible for Parker's extracurricular expenses not for Wanda's lodging. The second dispute involved expenses for a dog Lonnie purchased for Parker. Before purchasing the dog, Lonnie and Wanda agreed that the dog could live at Wanda's home if Lonnie paid for the dog's food, neutering, and shots. When other dog-related costs arose, Lonnie only agreed to pay a pro-rata share of 88%. Wanda wanted 100% reimbursement.

[¶ 4.] Subsequently, Wanda petitioned to modify child support on March 20, 2006. At the modification hearing, the child support referee determined that Wanda's net monthly income was $2,424.00 and Lonnie's net monthly income was $20,868.00 for a combined net monthly income of $23,292.00.² Since Lonnie and Wanda's combined net monthly income of $23,292.00 exceeded the child support schedule's top income level of $10,000.00, see SDCL 25-7-6.2, the referee set child support above the schedule. The referee determined that the parties' combined net monthly income exceeded the top level of the schedule by a multiple of 2.3, that is, their combined income of $23,292.00 was 2.3 times $10,000.00. The referee then multiplied 2.3 times the top level of child support for one child to arrive at $3,340.00 (2.3 X $1,452.00 = $3,340.00). Since Lonnie's income constituted 90% of the combined income, the referee set Lonnie's child support obligation at $3,006.00 (90% of $3,340.00).³ Lonnie objected to the referee's report. The circuit court affirmed and adopted the referee's findings of fact and conclusions of law. Lonnie appeals and raises the following issues:

ISSUES

1. Whether it was err to increase Lonnie's child support without a showing of a substantial change in circumstances.

2. Whether it was err to extrapolate upward from the child support schedule without a showing of the child's actual needs and standard of living.

STANDARD OF REVIEW

[¶ 5.] This Court reviews findings of fact under the clearly erroneous standard. Laird v. Laird, 2002 SD 99, ¶ 13, 650 N.W.2d 296, 299; Watson-Wojewski v. Wojewski, 2000 SD 132, ¶ 13, 617 N.W.2d 666, 669-70. To overturn a circuit court's findings, there must be a definite and firm conviction that a mistake has been made. Laird, 2002 SD 99, ¶ 13, 650 N.W.2d at 299. Questions of law are reviewed de novo. Id.

[¶ 6.] "An award of child support will not be disturbed unless the trial court clearly abused its discretion. An abuse of discretion is defined as `a discretion exercised to an end or purpose not justified by, and clearly against, reason and evidence.'" Laird, 2002 SD 99, ¶ 14, 650 N.W.2d at 299 (citing Billion v. Billion, 1996 SD 101, ¶ 13, 553 N.W.2d 226, 230).

ANALYSIS

1. SDCL 25-7-6.13 vs. SDCL 25-7A-22(1)

[¶ 7.] The threshold question is whether Wanda must show a substantial change in circumstances in order to obtain an increase in child support. Generally, a child support order may not be modified without a showing of substantial change in circumstances if the request is filed within three years from the date of the prior child support order. SDCL 25-7A-22 (1).⁴ The Legislature, however, waived the change of circumstances requirement when it revised the child support schedule, under SDCL 25-7-6.2, and provided as follows: "All orders for support entered and in effect prior to July 1, 2005, may be modified in accordance with this chapter without requiring a showing of a change in circumstances from the entry of the order."⁵ SDCL 25-7-6.13. Lonnie argues Wanda should be required to show a substantial change in circumstances. His rationale is that the 2005 changes to the child support schedule did not affect his child support obligation because no changes were made to the upper levels of the schedule. Specifically, the maximum income level of $10,000.00 along with the commensurate support obligation did not change. He argues that SDCL 25-7-6.13 only applies if, after applying the revised schedule, the amount of child support, owed by a parent, changes. Lonnie relies on comments in the Report of the South Dakota Commission on Child Support, which indicated that the purpose of SDCL 25-7-6.13 was to allow a parent affected by the revisions to seek modification without showing a change in circumstances.

[¶ 8.] Although Lonnie's argument seems reasonable, we are bound by the plain meaning of the statute which clearly directs that "all" prior support orders "may be modified . . . without a showing of a change in circumstances." SDCL 25-7-6.13; Reider v. Schmidt, 2000 SD 118, ¶ 9, 616 N.W.2d 476, 479 (stating that this Court may not resort to a report by the South Dakota Commission on Child Support unless the statute is found ambiguous and some interpretation is required). "When the language in a statute is clear, certain and unambiguous, there is no reason for construction, and the Court's only function is to declare the meaning of the statute as clearly expressed." Anderson v. City of Tea, 2006 SD 112, ¶ 5, 725 N.W.2d 595, 597 (additional quotations and citations omitted). Consequently, the referee did not err when he considered the child support modification without a showing of substantial change in circumstances.

2. Calculating Child Support Above the Schedule

[¶ 9.] Lonnie argues that the referee and circuit court erred by setting his child support obligation by extrapolating above the schedule without a showing of the child's actual needs and standard of living. We agree. Our analysis begins with a review of the changes to the upper levels of the schedule beginning in 1997.

[¶ 10.] Prior to 1997, the upper level of the schedule, under SDCL 25-7-6.2, topped at $4,000.00. In 1997, the Legislature increased the top level from $4,000.00 to $10,000.00. SD Sess. Laws 1997 ch. 154, § 6. In recommending the 1997 increase, the South Dakota Commission on Child Support (the Commission) reported that the increase would allow more uniformity since more families would fall within the guidelines.⁶ Report of the South Dakota Commission on Child Support 15 (1997). The Commission noted that there was "insufficient economic data available relating to child rearing expenditures above [the $10,000.00] income level." Id. Thus, the Commission recommended that "[a]bove the $10,000 income level, child support should continue to be based upon the actual needs and standard of living of the child." Id. The Commission concluded that "Policy Studies indicate that straight extrapolation is not appropriate. Economic studies indicate that the proportion of net income spent on children declines as income increases." Id. In adopting the Commission's recommendations, the Legislature left intact the requirement that child support above the schedule be based on the "actual needs and standard of living of the child." SDCL 25-7-6.9. The statute provides:

For a combined net income above the schedule in § 25-7-6.2, the child support obligation shall be established at an appropriate level, taking into account the actual needs and standard of living of the child.

Id. The Commission reviewed the schedule in 2000 and 2005 but recommended no change to the upper level of the schedule.

[¶ 11.] Notably, South Dakota's child support statutes have never recognized extrapolation as an appropriate method of calculating support above the schedule. SDCL 25-7-6.9 (enacted in 1989); Bloom v. Bloom, 498 N.W.2d 213, 217 (S.D.1993) (citing Earley v. Earley, 484 N.W.2d 125, 127-28 (S.D.1992) (stating that Earley yielded the rule that the trial court may calculate support obligations by mathematical extrapolation where proof exists of the actual needs and standard of living of the child)). In fact, straight extrapolation is at odds with the language of SDCL 25-7-6.9. Black's Law Dictionary defines extrapolate as "to estimate an unknown value or quantity on the basis of the known range, esp. by statistical methods." Black's Law Dictionary 607 (8th ed. 2004). Thus, to extrapolate above the child support schedule is to estimate a child support amount based on the known ranges or amounts in the schedule. The extrapolated estimate, however, may be skewed. As the Commission pointed out, current studies show that the needs of a child do not increase at the same rate that family income increases once the monthly net...