Sharp v. Sharp

Decision Date02 June 1988
Docket NumberNo. 15758,15758
Citation422 N.W.2d 443
PartiesDennis SHARP, Appellant, v. Verna SHARP, Appellee.
CourtSouth Dakota Supreme Court

Timothy M. Engel of May, Adam, Gerdes & Thompson, Pierre, for appellant.

Darla Pollman Rogers of Meyer & Rogers, Onida, for appellee.

WUEST, Chief Justice.

Appellant, Dennis Sharp (Sharp) appeals a Department of Social Services (Department) order increasing his monthly child support. We affirm.

Dennis and Verna Sharp were divorced on August 15, 1978. Prior to the divorce, the state made AFDC payments to Verna Sharp for the benefit of the two children. Sharp later reimbursed the state.

Under the judgment and decree of divorce, Sharp was ordered to pay $110 per month per child. He made all such payments. Verna Sharp petitioned the Department for an increase in child support on July 22, 1986. After a hearing, the hearing examiner entered his proposed findings of fact and conclusions of law and proposed an order increasing child support to $520 per month. 1 The Secretary of the Department accepted the decision of the hearing examiner. 2 Sharp appealed the Department's decision to the circuit court, which affirmed the decision of the Department.

Appellant argues the Department lacked subject matter jurisdiction to modify child support. He claims by vesting the Department with the power to modify child support, SDCL Secs. 25-7A-5, 25-7A-6, and 25-7A-7 are unconstitutional because they confer a judicial power upon an administrative agency.

SDCL Secs. 25-7A-5, 25-7A-6 and 25-7A-7 apply in instances where an obligor owes the obligee for arrearages on unpaid support obligations, where he accrues a support debt to the state for past-due child support that the obligee has assigned to the state, or where he accrues a support debt to the state for public assistance money paid by the state. The Department may determine the accrued support obligation that is due an obligee or the support debt that is owed to the state and establish a monthly payment schedule for those amounts accrued or accruing to the parent. See SDCL Secs. 25-7A-6, 25-7A-7, 25-7A-11, 25-7A-21. The final orders of the hearing examiner under SDCL 25-7A-6 and the Secretary under SDCL 25-7A-7 have the force and effect of orders or decrees of the circuit court. SDCL 25-7A-10.

In this case, the state made AFDC payments, but appellant reimbursed the state for those amounts. Also, appellant was current with his child support. Thus, these three enforcement statutes did not apply to appellant. Appellant brings his constitutional argument against the wrong provisions, because SDCL Secs. 25-7A-5, 25-7A-6 and 25-7A-7 do not grant the administrative power to modify original child support orders. The statute which empowers the Department to modify child support is SDCL 25-7A-22, which states:

If both parties reside in this state, or if jurisdiction has been assumed by the state, and the support order was entered in this state, an obligor, an obligee or the assignee may file a petition, on forms prescribed by the department, to increase or decrease child support based on a change in circumstances. A petition to change the support awarded in an order entered prior to July 1, 1986, need not show a change in circumstances from the entry of the order. If a petition is filed, the secretary of social services shall appoint a hearing examiner to hear the matter as soon as practicable after due notice to all parties, at an office of the department nearest the residence of the responding party, and the hearing examiner shall issue a final order granting or denying the request. The hearing examiner may not determine any issue relating to paternity, custody, or visitation rights. However, if a court of this state has entered an order for support after a contested trial thereon, the hearing examiner shall have the authority to modify said order only upon written permission of both parties. Absent such consent, the matter shall be heard by the court having jurisdiction thereof. However, if an objection to the jurisdiction of the department is not filed at least five work days prior to the date set for the hearing, the parties shall be deemed to have consented to the jurisdiction of the department. An obligor, and obligee, or the secretary may file an action in the circuit court of the county where the hearing was held to enforce an order of the hearing examiner.

SDCL 25-7A-22 grants the Department the power to choose a hearing officer who may enter a final order for modification of child support. This is notable for several reasons. Unlike hearing examiners under SDCL 1-26-18.1, the hearing examiner's decision is apparently not a "proposed" decision but a final order. Unlike the child support hearing officer in many other states, the hearing examiner under 25-7A-22 is not chosen by a judge and there is no judicial ratification requirement. See Rubin, Policy Issues with Quasi-Judicial Hearing Officers in Child Support Proceedings, 11 State Court Journal (Fall 1987).

The courts have continuing jurisdiction in child support matters under SDCL 25-4-45, but now they apparently share concurrent jurisdiction with an agency on petitions for modification of child support except in cases where there has been a contested court trial on child support. See SDCL 25-7A-22. At the same time, however, the Department may still petition the appropriate court for modification of a court order and may maintain any support action as a party in interest. SDCL Secs. 25-7A-2, 25-7A-3.

This grant of power to an agency to modify child support seems to be unique to South Dakota. Yet, whatever practical problems exist under this legislative system, in cases challenging constitutionality of statutes we do not sit as judges of the merits of the controversy. Courts are not concerned with the overall merits or wisdom of statutes. The courts become judicially concerned when the statute's constitutionality is questioned.

We refuse to consider the constitutional question at this time. The issue was not brought before the trial court but is raised for the first time on appeal. Moreover, the attorney general was not notified of the pendency of the action as required by statute.

We have consistently held that the constitutionality of a statute cannot be raised for the first time on appeal. Carr v. Core Industries, 392 N.W.2d 829 (S.D.1986); Bayer v. Johnson, 349 N.W.2d 447 (S.D.1984); Mayrose v. Fendrich, 347 N.W.2d 585 (S.D.1984). For an appellate court to consider an issue and make a decision on an incomplete record on questions raised before it for the first time would, in many instances, result in injustice, and for that reason courts ordinarily decline to review questions raised for the first time in the appellate court.

We must, however, emphasize this is merely a rule of procedure and not a matter of jurisdiction. This court has discretion to disregard this general rule of administration and rule on such constitutional issues when faced with a compelling case. Under a well recognized exception to the general rule, a court may in its discretion decide to consider a constitutional issue raised for the first time on appeal because the question is a matter of considerable importance to the public policy of the state. This is particularly true when the question raised for the first time is one of substantive law which is not affected by any factual dispute, for under such circumstances the parties may present the issue as thoroughly in the appellate court as it could have been presented below. See In Interest of Baby Girl K., 113 Wis.2d 429, 335 N.W.2d 846 (1983); Town of South Tuscon v. Board of Sup'rs. 52 Ariz. 575, 84 P.2d 581 (1938); 4 C.J.S. Appeal & Error, Sec. 4 (1980).

Unfortunately, the issue in this case was not thoroughly presented in the briefs submitted to this court, and this difficulty is compounded by the fact that there was no notice given to the attorney general. 3 The person challenging the constitutionality of a statute must give notice to the attorney general of the pendency of the action. SDCL 15-6-24(c). Ordinarily, this court will not rule on the constitutionality of a statute unless the attorney general has been notified, because when an adjudication of unconstitutionality may seriously affect the general public, it is proper for the attorney general to appear on behalf of the legislature and the people.

Although an appellate court will ordinarily decline to rule on the constitutionality of a statute unless the attorney general has been notified, since the failure to give such notice does not deprive the court of jurisdiction, it may determine the question when it is a matter of considerable public importance which should be promptly resolved. 16 C.J.S., Constitutional Law Sec. 86 (1984). While this is an issue of substantial importance, this is not a matter of existing emergency. Given the situation as it is presented on appeal, we do not reach the issue. The people have a right to present their arguments, and that opportunity is waiting.

Appellant's next argument is that the hearing officer erred in not allowing him a deduction from gross income for expenses incurred in traveling to and from work and for his expenses in supporting his stepson. We disagree.

SDCL 25-7-7 provides there are seven specific deductions from monthly gross income. Deduction six is for "actual business expenses of an employee, incurred for the benefit of his employer, not reimbursed." Deduction seven is for "payments made on other support and maintenance orders." Sharp entered $302.40 under deduction six. He entered no amount under deduction seven, but he made a comment on his financial statement that he provides help for his stepson whenever possible.

Appellant's claimed deduction under deduction six stems from his work related expenses for transportation and meals. He commutes daily and must take...

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