Peterson v. Peterson, 20979.

• Citation: 2000 SD 58,610 N.W.2d 69
• Decision Date: 03 May 2000
• Docket Number: No. 20979.,20979.
• Parties: Gayle R. PETERSON, Plaintiff and Appellee, v. David W. PETERSON, Defendant and Appellant.
• Court: Supreme Court of South Dakota

610 N.W.2d 69

2000 SD 58

Gayle R. PETERSON, Plaintiff and Appellee, v. David W. PETERSON, Defendant and Appellant.

No. 20979.

Supreme Court of South Dakota.

Considered on Briefs November 29, 1999.

Reassigned March 6, 2000.

Decided May 3, 2000.

Wanda Howey-Fox of Harmelink & Fox Law Office, Yankton, for plaintiff and appellee.

Craig A. Kennedy of Doyle & Kennedy, Yankton, for defendant and appellant. SABERS, Justice (on reassignment).

[¶ 1.] In this divorce case, the trial court ordered David to pay $600 monthly alimony to Gayle. David appeals and we affirm. Additionally, the referee determined that alimony was not to be deducted from the income of payor Father nor included in the income of the payee Mother for the purpose of determining child support. The trial court affirmed. We reverse and remand and hold that, for the purpose of determining child support, alimony payments are deducted from the payor's income and included in the payee's income.

FACTS

[¶ 2.] David and Gayle Peterson were married in 1979 in Pierre where they lived and worked most of their marriage. The year before the break-up of the marriage, David was working for the Department of Human Services earning approximately $34,259 per year and Gayle was working for the Department of Revenue earning approximately $22,107 per year.

[¶ 3.] In 1996, David's position was moved to Yankton and he was required to move to keep his job. Gayle quit her own job to move to Yankton with David. After the move, the parties began to experience problems in their marriage. Gayle was unable to obtain new employment at a salary level commensurate with her prior earnings. David became withdrawn and threatening. He would pace or sit in the dark all night in a recliner in the living room. He also purchased a handgun and at some point told Gayle that the medication he was taking could make him homicidal. In addition, he began to drink in Gayle's presence, despite her past alcohol problems and nine years of sobriety. Tensions were exacerbated with Gayle's discovery that David kept secret post office boxes in Pierre and Yankton for the receipt of pornographic materials that she found repulsive.

[¶ 4.] As a result of David's erratic behavior, Gayle eventually moved to a separate bedroom in the basement of the marital residence where she claimed to lie awake at night in fear of some aggressive act by David. David, who was in counseling at this point, abruptly announced that the marriage was over and that he wanted to start a new life. Gayle filed for divorce in May of 1997. After commencement of the divorce action, the parties sold their marital home and Gayle moved to an apartment in Yankton. David moved into a duplex along with the parties' sixteen-year-old daughter.

[¶ 5.] The trial was held in September of 1998. The trial court granted Gayle a divorce on the grounds of extreme mental cruelty and awarded her permanent alimony from David in the amount of $600 per month. It awarded custody of the parties' minor child to David subject to Gayle's visitation rights and ordered Gayle to pay child support to David in the amount of $297 per month, which includes $70 per month for Gayle's share of the child's medical insurance. David appeals raising two issues.

[¶ 6.] 1. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN AWARDING ALIMONY.

[¶ 7.] "A trial court is vested with discretion in awarding alimony and its decision will not be disturbed unless it clearly appears the trial court abused its discretion." Evans v. Evans, 1997 SD 16, ¶ 31, 559 N.W.2d 240, 247 (citation omitted).

[¶ 8.] David argues the trial court abused its discretion in awarding alimony because it merely recited the factors considered in awarding alimony without explaining how its findings were related to Gayle's need for alimony, the duration, or the amount of the alimony awarded.

[¶ 9.] In awarding permanent alimony, the trial court must consider six factors:

(1) the length of the marriage;

(2) the respective earning capacity of the parties;

(3) their respective financial condition after the property division;

(4) their respective age, health and physical condition;

(5) their station in life or social standing; and

(6) the relative fault in the termination of the marriage.

Jones v. Jones, 1996 SD 2, ¶ 21, 542 N.W.2d 119, 124 (citations omitted).

[¶ 10.] The parties were married for 18 years. David, who has a college degree, earns over $30,000 per year while Gayle, who has a high school education, earns $16,000 per year. The marital property was divided equally with neither party receiving substantial income-producing assets except their retirement accounts. Gayle is 48 years old and David is 46. Gayle suffers from high blood pressure and had a complete hysterectomy due to cervical cancer. While they enjoyed an upper-middle class lifestyle in Pierre, they live a much more constrained lifestyle in Yankton. Gayle lives in low-income housing and is barely able to keep up with her obligations. David was at fault for the dissolution of the marriage.

[¶ 11.] Based on all the facts and circumstances, there is no showing that the trial court abused its discretion in awarding permanent alimony to Gayle of $600 per month. We affirm.

[¶ 12.] 2. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN DETERMINING THE CHILD SUPPORT OBLIGATION.

[¶ 13.] In reviewing the trial court's determination of child support, we ascertain "whether the trial court abused its discretion in setting the support." Grode v. Grode, 1996 SD 15, ¶ 7, 543 N.W.2d 795, 800 (citation omitted). David argues that the trial court abused its discretion in determining the amount of support because it:

(1) Failed to grant him a deduction from income for the amount of the alimony payments to Gayle; and

(2) Failed to include the alimony payments to Gayle as part of her monthly income.

[¶ 14.] 1. Alimony payments are deducted from the payor's income for child support purposes.

[¶ 15.] South Dakota uses an "income shares method" to establish child support.

Under the income shares method[,] a child support figure is established by adding together the [net monthly] income of both parents and [by] using [a statutory] chart to determine what the proper amount of support is for that income level. The child support is then allocated between ... both parents in proportion to their relative [net monthly] incomes, with the payment being made by the non-custodial parent to the custodial parent.

Report of the South Dakota Commission on Child Support 8 (1988). See also SDCL 25-7-6.2 (support obligation schedule).

[¶ 16.] The deductions allowed from gross monthly income to arrive at each parent's net monthly income for purposes of calculating child support are listed in SDCL 25-7-6.7. Among the allowable deductions are "[p]ayments made on other support and maintenance orders." SDCL 25-7-6.7(6) (emphasis added). Since alimony is a payment for the support and maintenance of a dependent spouse, it is deducted from the payor's gross monthly income as another support and maintenance order. See In re Marriage of Russell, 511 N.W.2d 890, 891-92 (Iowa Ct.App. 1993)

(holding it was an abuse of discretion to fail to deduct the amount of alimony paid by father to mother when calculating child support). Because the trial court did not allow David a deduction for alimony here, it abused its discretion in setting the child support.

[¶ 17.] (2) Alimony payments are included as income to the payee for child support purposes.

[¶ 18.] "Income" is not specifically defined within SDCL ch. 25-7. However, it is defined under SDCL 25-7A-1(8) as "any form of payment to a person, regardless of source ...."

[¶ 19.] SDCL 25-7-6.3 lists several types of payments and benefits that have been determined to be included as "gross income" for purposes of calculating child support. Under this statute, disability payments, worker's compensation benefits, social security payments, veteran benefits and payments received under a retirement or pension program are considered income. Monies "derived from investment of capital assets" are also considered as income. Id.

[¶ 20.] SDCL 25-7-6.3 was enacted in 1989. Its predecessor, SDCL 25-7-7, contained nearly identical language.¹ Both statutes set forth a list of income to be included when calculating child support. Under SDCL 25-7-7, the relevant sentence provided: "[t]he monthly gross income of the obligor includes amounts received from the following sources ...." Under the current statute, SDCL 25-7-6.3, the sentence provides: "[t]he monthly gross income of each parent includes amounts received from the following sources ...." Obviously, only a minor stylistic change was made. Therefore, our prior analysis of this portion of SDCL 25-7-7 is still relevant.

[¶ 21.] In 1988, we included, in income, non-garnishable military pay allowances when calculating child support and alimony. Hautala v. Hautala, 417 N.W.2d 879, 881 (S.D.1988). We determined that "nothing in this section of the statute indicates that the listing of general categories of income is exclusive. The use of the word `include' suggests a legislative intent to encompass other, unlisted sources of income." Id.See also Gross v. Gross, 355 N.W.2d 4, 9 (S.D.1984)

(determining that a pending inheritance award was included in the calculation of child support).²

[¶ 22.] In enacting the current statute, SDCL 25-7-6.3, the 1989 legislature did not expressly include non-garnishable military pay allowances or inheritance awards as a "source of income." In fact, the list of "sources of income" did not substantially change at all. This would imply that the results in Hautala or Gross were not legislatively affected because the list was not intended to be exhaustive. The language of SDCL 25-7-6.6 does not make the list exhaustive nor does it include language which would alter our decisions in Hautala or Gross. The legislature could have made the list exhaustive, but it chose not to. Con...