Nelson v. Nelson

• Decision Date: 10 January 1990
• Docket Number: No. 16650,16650
• Citation: 454 N.W.2d 533
• Parties: Connie Kay NELSON, Plaintiff and Appellee, v. Jerome Scott NELSON, Defendant and Appellant. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 533

454 N.W.2d 533

Connie Kay NELSON, Plaintiff and Appellee, v. Jerome Scott NELSON, Defendant and Appellant.

No. 16650.

Supreme Court of South Dakota.

Considered on Briefs Jan. 10, 1990.

Decided April 11, 1990.

Jay M. Leibel of Ericsson, Ericsson & Leibel, Madison, for plaintiff and appellee.

Thomas L. Fiegen and T.F. Martin of McCann, Martin & McCann, Brookings, for defendant and appellant.

MORGAN, Justice.

Jerome Scott Nelson (Jerome) appeals from a judgment and decree of divorce entered on January 20, 1989, granting such divorce to Jerome and Connie Kay Nelson (Connie). We affirm.

Jerome and Connie were married on August 23, 1975. Three children were born during the marriage: Laura (dob Nov. 29, 1977); Adam (dob Jan. 19, 1981); and Aaron (dob June 2, 1982). Adam has a serious ongoing medical problem (a cyst on the brain) which requires constant medication, observation, and intermittent hospitalization. Because of this disability, Adam receives $299 per month from the Social Security Administration as a Supplemental Security Income Disability (SSID) payment.

By stipulation between the parties, a divorce was granted on the grounds of irreconcilable differences. Both parties agreed that Connie would have custody of the minor children, with reasonable visitation rights given to Jerome.

Jerome, who is thirty-two years of age, was employed by his father on his father's farm. He was paid a net monthly wage of $591.92, plus the use of his father's equipment for use on his own farming operation. Jerome testified that his father only took a portion of the social security tax out of his monthly wage. He did not offer a figure of what the proper tax deduction should have been.

Jerome's farming operation consisted of four hundred acres on a crop/share basis. In 1988, he changed from a crop/share basis to a cash/rent basis, making it difficult to predict his future income.

By Jerome's figures, he made $13,500 in 1988. Additionally, he received a $5,604 ASCS payment. The trial court also found that Jerome padded his business expenses and personal deductions to compute the $13,500 income figure. Further, the trial court found that he sold grain in other people's names to avoid declaring it as income. After reviewing all this evidence, the trial court determined that Jerome made at least $1,578 per month. Connie is employed as a licensed practical nurse, with a net monthly income of $652.90.

The trial court determined that Jerome possessed property worth $8,317.71 and Connie possessed property worth $3,554.11. Further, Connie incurred a debt of $1,145.88 in supporting the minor children during the separation. The trial court ordered Jerome to pay Connie $2,964.74. This sum represents half the value of the property Jerome was allowed to retain and half the amount of the debt incurred by Connie in supporting the minor children. The trial court set Jerome's child support payments at $578 per month. The $299 SSID payment received by Adam was not credited to either party's income.

On appeal, Jerome raises three issues:

(1) Whether the trial court abused its discretion in determining the amount of Jerome's income for child support purposes.

(2) Whether the trial court abused its discretion in determining that Jerome's child support should not be reduced because of Adam's SSID payments.

(3) Whether the trial court abused its discretion in dividing the marital property.

We will address each issue separately.

DETERMINATION OF INCOME FOR CHILD SUPPORT

Before Jerome may prevail on this issue, he must show that the trial court abused its discretion in setting his child support. 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." Havens v. Henning, 418 N.W.2d 311, 312 (S.D.1988).

Under SDCL 25-7-7 (repealed March 1989) as it then existed, the trial court, pursuant to the statutory guideline, set Jerome's child support at $578 per month because his net income was at least $1,500 per month. Jerome argues that the trial court abused its discretion in arriving at his income figure to set child support. He claims three errors in arriving at the figure: (1) the trial court should have averaged his income for the last five years to arrive at an income figure; (2) the trial court improperly credited an ASCS payment to his income that he was required to repay; and (3) the trial court improperly credited income to him because of a loaner agreement for farm equipment with his father. We address them in that order.

First, Jerome's attempt to read Studt v. Studt, 443 N.W.2d 639 (S.D.1989), to require five-year income averaging when a farmer is involved is not well taken. While it is true that the trial court in Studt used a five-year averaging method, there is nothing within the opinion that mandates it. More critically, there is nothing within SDCL 25-7-7 that requires income averaging. The statute as it then existed provided:

For an obligor with net income above one thousand five hundred dollars, the child support obligation shall be established at an appropriate level. However, in no case may the amount of support ordered be less than the amount as provided at the one thousand five hundred dollar net income range.

On a practical level, income averaging would have been an inaccurate means under these facts to arrive at an income figure. The trial court found that Jerome had padded his tax returns and sold grain under other people's names to avoid declaring it as income. Additionally, the loaner agreement on equipment disguised income that he should have received. It would have merely compounded the difficulty the trial court had in arriving at an income figure by using Jerome's inaccurate figures from the previous five years.

Second, Jerome claims the trial court erred in including a $5,604 ASCS payment he received for grain, since he was forced to repay the majority of this money. The only evidence at trial that Jerome had to repay this money was Jerome's hearsay testimony. The judge chose not to believe his testimony. Since the trial judge had the opportunity to judge Jerome's credibility and weigh his testimony, we will not disturb his finding on the ASCS payment unless it is clearly erroneous. Hanks v. Hanks, 296 N.W.2d 523 (S.D.1980); Spaulding v. Spaulding, 278 N.W.2d 639 (S.D.1979); Isaak v. Isaak, 278 N.W.2d 445 (S.D.1979); Holforty v. Holforty, 272 N.W.2d 810 (S.D.1978). There is plentiful evidence, supplied through Jerome's own admissions on the witness stand, that he was less than truthful in supplying accurate data about his income. We do not find the trial court's finding that he received $5,604 as an ASCS payment was clearly erroneous. Hanks, supra; Spaulding, supra; Isaak, supra; Holforty, supra.

Third, Jerome claims the trial court overstated his income for child support purposes because it imputed income to him based upon the loaner agreement he had with his father. At trial, no specific dollar value was placed on the use of the machinery. There is no proof that the trial court imputed this income. Jerome now claims that any amount of increase in income he would receive from the use of this income would be offset by the amount it would cost him to rent this same equipment.

Even without "imputing" income because of this loaner agreement, the record justifies the trial court's determination of Jerome's income. By Jerome's figures, he shows an income of $13,500. ¹ He admitted in the past that he had sold grain under another person's name and received $750.83. The trial court also found that Jerome had padded his business expenses with personal items. Taking Jerome's admitted income of $13,500 and adding the $5,604 ASCS payment, which the trial court legitimately did with the evidence in front of it, Jerome's income was at least $19,159. This set his monthly income at $1,578. The trial court set Jerome's child support at $578, which was a conservative figure. Since his income exceeded $1,500 per month, the trial court could have set it at a higher figure under the then existing SDCL 25-7-7. We do not find that the trial court abused its discretion in determining Jerome's income and setting appropriate child support. Peterson, supra.

SOCIAL SECURITY BENEFITS

Jerome next contends that the trial court should have considered the social security payments received by Adam as third-party income received by Connie and the family because the $299 Adam receives is deposited into the family checking account. Connie argues that the social security benefits are intended as a supplement for Adam's medical expenses, not a substitute for child support. We agree.

Before we may reverse the trial court on this issue, Jerome must show that the trial court abused its discretion in making its award of child support. Peterson, supra.

Jerome predicates his argument solely on SDCL 25-7-6.10:

Deviation from the schedule in Sec. 25-7-6.2 shall be considered if raised by either party and made only upon the entry of specific findings based upon any of the following factors:

(1) The income of a subsequent spouse or contribution of a third party to the income or expenses of that parent but only if the application of the schedule works a financial hardship on either parent[.]

The trial court found that Adam has a serious ongoing medical condition that requires constant medication, observation, and intermittent hospitalization, and that $299 per month paid by Social Security was for Adam's benefit and should not be used to lower either parent's child support obligation.

Without any precedent to support his position, Jerome argues that the trial court abused its discretion because Connie puts Adam's Social Security payment into her checking account from which she pays bills. This ignores the obvious...