Miller v. Jacobsen, 23630.
| Citation | 2006 SD 33,714 N.W.2d 69 |
| Decision Date | 05 April 2006 |
| Docket Number | No. 23649.,No. 23630.,23630.,23649. |
| Parties | Kimberly Kay Spieker MILLER, f/k/a, Kimberly Kay Jacobsen, Plaintiff and Appellee, v. Todd Wayne JACOBSEN, Defendant and Appellant. |
| Court | Supreme Court of South Dakota |
Nancy L. Oviatt of Green, Roby, Oviatt, Cummings & Linngren, Watertown, South Dakota, Attorneys for plaintiff and appellee.
Rebecca L. Morlock Reeves of Wiles and Rylance, Watertown, South Dakota, Attorneys for defendant and appellant.
[¶ 1.] Kimberly Kay Spieker Miller (Kimberly) filed a motion seeking modification of a child support obligation order and divorce decree from Todd Wayne Jacobsen (Todd). The trial court found facts sufficient to warrant an increase in Todd's child support obligation but denied Kimberly's motion to modify the divorce decree. We affirm on Issues 1, 2, 3, and 5 and remand Issue 4 to the trial court for a determination of when an upward deviation from the basic child support obligation for transportation needs ends.
[¶ 2.] Kimberly and Todd were married on May 13, 1989. Their son, Andrew Kristian, was born on July 19, 1989. Andrew has been disabled since birth due to cerebral palsy and a seizure disorder. Kimberly and Todd divorced on May 10, 1993, at which time Kimberly was awarded full custody of Andrew under a stipulated agreement and subject to Todd's visitation rights.
[¶ 3.] The stipulated agreement called for Todd to continue paying child support per the terms specified as long as Andrew "is dependent or until further order of the court." It also required the parties to exchange income information annually and for Todd to provide proof of $200,000 in life insurance maintained for Andrew's benefit. In addition, the agreement called for Kimberly to claim Andrew as a dependant for income tax purposes in odd numbered years and Todd to claim him in even numbered years. Under the terms of the original stipulated agreement, Todd was required to pay $516 per month in basic child support per the support schedule in SDCL 25-7-6.2. An additional $155 per month in child support was included based on Andrew's special needs. The language of the agreement provided:
The parties further agree that in addition to the basic child support obligation which is set by the schedule found at SDCL 25-7-6.2, Todd will pay an additional $100 per month as support. Todd also agrees to pay an additional $55 per month in recognition of the special needs his son has for transportation. Said additional $55 per month payment shall continue to be made each month until the van in which Kim now transports Andrew is paid in full or October 28, 1997.
[¶ 4.] In 2001, Kimberly contacted Todd to inform him that due to changes in circumstances and Andrew's enrollment in a specialized school in Sioux Falls, South Dakota, with tuition paid by public funds, any dollar amount over $300 per month received by Kimberly would have to be forwarded to the State. Therefore, she proposed a reduction from the original $676 child support obligation to $300. In June 2001, the parties signed a modification to the child support agreement thereby incorporating the new amount.
[¶ 5.] Currently, Andrew is fifteen years old and weighs sixty-five pounds. His disability requires him to have extensive care and assistance with activities of daily living. Andrew must be fed, dressed and diapered daily, as well as requiring assistance with medications, bathing, and toileting twice a day. He takes medications three times per day for seizure control, drooling, and bowel elimination. Andrew must be turned at least once each night when he is sleeping. He also has a drug pump in his abdomen that delivers medication to his spinal column for relief of muscle tightness. Andrew spends the majority of his day in his wheelchair and requires physical assistance for transfers to and from his wheelchair.
[¶ 6.] Kimberly and Andrew have lived in Watertown, South Dakota, since 1993. Kimberly works as an occupational therapy assistant, and is remarried. Todd has lived in Longmont, Colorado, since before the divorce and is now remarried. He sees Andrew approximately once a year for a visit. Todd has not seen Andrew since 2003 and has made no recent contact with Andrew's school or caregivers.
[¶ 7.] Andrew attends school at Children's Care Hospital in Sioux Falls during the school year and during summer session. He remains in Sioux Falls at the school from Monday morning to Friday afternoon each week school is in session. Kimberly drives him to Sioux Falls each Monday morning that school is in session and returns on Friday afternoons to take him back to Watertown for the weekend. Andrew is home in Watertown every weekend from Friday night until Monday morning, during school holidays, and during summer break. Thus, Andrew lives with Kimberly slightly more than fifty percent of the year.
[¶ 8.] Kimberly has been for the last fifteen years, and continues to be, Andrew's primary caregiver at home. She attends to his medical needs, coordinates and arranges for his care when she is at work, and attends all his medical appointments. She often uses her vacation time from work to attend to Andrew's needs and, on occasion, has had to take leave without pay due to Andrew's medical needs. Kimberly and her husband have made numerous adaptations to their home to provide better care for Andrew. They recently installed a lift system and bathtub in Andrew's room and have built a wheelchair ramp outside their home.
[¶ 9.] Kimberly's parents have provided care for Andrew when he is home on school breaks and Kimberly is at work. Her parents have provided the care without charge. Due to their ages and her father's recent retirement, Kimberly anticipates having to hire caregivers in the near future to administer medication and meet Andrew's complex physical needs while he is home and she is at work. The cost of the care was estimated at $2,400 per year by Kimberly at the hearing.
[¶ 10.] Andrew's disability requires Kimberly to use a van equipped with a lift and lock-down system to transport him from Watertown to Sioux Falls each week for school, to medical appointments, and to recreational outings. The van is used exclusively for Andrew's transportation, not for Kimberly or her family's use. Kimberly has purchased two vans since the divorce. She replaced the original van with a used van with high mileage in January 2004, but it has been expensive to operate and must be replaced. Based on Kimberly's knowledge of Andrew's limitations and needs for his future growth, including additional headroom, at the time of the hearing Kimberly planned to trade in the current vehicle and purchase a new van in the near future. The total cost was estimated at approximately $35,654, but after trade in of the current vehicle and lift system and rebates, the sum of $30,075 needed to be borrowed to pay for the new van. Kimberly's monthly payment was scheduled to be $507.66.
[¶ 11.] On November 5, 2004, Kimberly initiated the current proceedings seeking a modification of Todd's child support obligation and a modification to the divorce decree to permit Kimberly to claim Andrew each year as a dependant for income tax purposes. Prior to filing her motion to modify the judgment of divorce, Kimberly requested Todd's compliance with the terms of the stipulated agreement with regard to proof of life insurance maintained for Andrew's benefit and proof of income. Todd failed to respond to the requests, and Kimberly filed a motion with the court to compel production. Todd failed to produce the required information until the morning of the hearing.
[¶ 12.] On December 15, 2004, a hearing on the matter was held. After testimony from both Kimberly and Todd, the trial court held that Todd's child support obligation per SDCL 25-7-6.2 was based on an annual income of $84,000, and a monthly net income of $4,159, which provides a monthly basic child support obligation of $690. The trial court found Andrew spent significant time outside Kimberly's home at school and, therefore, modified the child support obligation by deviating downward by fifty percent to $345 per month. The trial court found that Andrew required caregivers to attend to his complex physical needs and that due to Kimberly's parents' advancing age, paid caregivers would need to be hired at an annual cost of $2,400. Therefore, it ordered an additional upward deviation to Todd's basic child support obligation of $144 per month for caregivers to provide the necessary care for Andrew while he is in Kimberly's home and she is at work.
[¶ 13.] The trial court also found that Andrew's special health care needs required the purchase of a new van and lift system, and ordered an upward deviation of $380 per month for the cost of the new van and lift system. Based on Kimberly's documentation, the loan for the new van was scheduled to be paid in full on February 1, 2011. The trial court ordered Todd to make the $380 monthly payment through the life of the loan until it was paid in full on February 1, 2011.
[¶ 14.] Todd's total child support payment was set at $869 per month, which included $345 in basic child support plus the upward deviations of $144 for paid caregivers and $380 for the van payment. The trial court ordered that the $345 in basic child support and the $144 upward deviation for paid caregivers was effective December 1, 2004, and was to be paid to the Office of Child Support Enforcement "[b]eginning March 1 and on the 1st day of each month thereafter[.]" The trial court did not specify a time for the expiration of this portion of Todd's child support obligation, but noted with regard to the monthly $380 van payment "there has to be a mechanism for closing that off, if it is a four year [loan] I think it ought to be for four years even...
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