Sjolund v. Carlson, 18129

• Decision Date: 07 October 1993
• Docket Number: No. 18129,18129
• Parties: Beth Ann SJOLUND f/k/a Beth Ann Carlson, Plaintiff and Appellee, v. Mitchel Allan CARLSON, Defendant and Appellant. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 818

511 N.W.2d 818

Beth Ann SJOLUND f/k/a Beth Ann Carlson, Plaintiff and Appellee, v. Mitchel Allan CARLSON, Defendant and Appellant.

No. 18129.

Supreme Court of South Dakota.

Considered on Briefs Oct. 7, 1993.

Decided Feb. 2, 1994.

Beth Ann Sjolund, pro se.

Linda Lea M. Viken of Viken, Viken, Pechota, Leach & Dewell, Rapid City, for defendant and appellant.

MILLER, Chief Justice.

Mitchel Allan Carlson (father) appeals the modification of Beth Ann Sjolund's (mother) child support obligation. We reverse and remand.

FACTS

Father and mother were divorced in 1983. At that time, they agreed to an alternating custody arrangement for their four-year-old son. In 1985, the parties filed cross-motions requesting modification of the custody arrangement. As a result, the circuit court entered an order on October 28, 1986 granting the parties joint legal custody of the child. Father was awarded actual physical custody during the school year and mother was awarded actual custody during summer vacations. Neither party was ordered to pay child support.

In 1989, South Dakota established new child support guidelines codified at SDCL ch 25-7. However, neither party requested any changes in child support at that time.

On January 10, 1992, father filed a motion for modification of the circuit court's previous child support orders (i.e., the order that neither party pay child support). Father contended that the child support laws had changed in a manner that would make a child support order appropriate. Father's motion was heard on March 18, 1992. The parties agreed to the income earned by each party and how the calculations should be made to determine their respective child support obligations. The circuit court entered its findings of fact and conclusions of law on September 30, 1992. According to the parties' agreement and the child support schedule at SDCL 25-7-6.2, the circuit court found that their mutual child support obligation is $394 per month. The circuit court further found father responsible for 70% of this amount and mother for 30%. Thus, the circuit court determined that father's child support obligation is $276 per month while mother's is $118 per month.

There was no dispute between the parties concerning the above calculations. However, in its findings and conclusions, the circuit court went on to determine that because father has custody during the school year and mother has custody during summer vacations, mother is responsible for her child support obligation only for the time the child actually resides with father (i.e., approximately nine months a year). The circuit court further determined that father is responsible for his child support obligation only for the time the child actually resides with mother (i.e., approximately three months a year). The circuit court totaled the parties' annual child support obligations finding that father would pay mother $782 for calendar year 1992 and that mother would pay father $1,060 over the same period of time. ¹ The circuit court subtracted father's $782 annual obligation to mother from mother's $1,060 annual obligation to father and found a difference of $278 a year that mother owes father. The circuit court divided the $278 by the nine months of the year father has custody of the child and directed that mother pay father $30.89 per month in child support for each of those nine months. Father appeals.

Although father presents his argument in three separate issues, the argument is repetitive and is more accurately reframed and addressed in the following single issue:

ISSUE

DID THE CIRCUIT COURT ABUSE ITS DISCRETION IN CALCULATING MOTHER'S CHILD SUPPORT OBLIGATION?

This Court's standard of review in child support modification cases is well settled:

This court's standard of review in child support cases is whether the trial court abused its discretion in setting the support. Nelson v. Nelson, 454 N.W.2d 533 (S.D.1990). In this review, we do not determine whether we would have made an original like ruling, but whether a judicial mind, in view of the law and circumstances of the particular case, could reasonably have reached such a conclusion. Id.

Johnson v. Johnson, 468 N.W.2d 648, 650 (S.D.1991). Moreover, we review the circuit court's modification order free of the change in circumstances standard normally applied in modification cases because the previous support order was in effect before July 1, 1989. See, Johnson, supra (child support orders in effect before July 1, 1989 may be modified in accordance with the child support schedules even absent a showing of changed circumstances).

Father argues that the circuit court abused its discretion in calculating mother's modified child support obligation by holding him responsible for "out of pocket" child support payments for the three months a year she has custody of the child and by totally abating her child support obligation during those three months. We agree.

We perceive two problems with the circuit court's modification order. First, the circuit court's offset of father's annual child support obligation against mother's treats him as though he were making his child support payments "out of pocket" during the three months a year she has custody of the child (i.e., as though he were writing a $276 check to mother three months a year). However, father is the primary custodial parent who has custody for nine months out of every year. SDCL 25-7-6.2 provides in pertinent part that, "The [child support] share of the custodial parent is presumed to be spent directly for the benefit of the child. The share of the noncustodial parent establishes the amount of the child support order." (emphasis added). Thus, father's $276 monthly share of child support is not paid out of pocket to mother but is presumed to be spent directly for the benefit of the child. It is mother's $118 monthly share of child support that establishes the amount of the child support order. ²

While at first glance, the above conclusion might appear to result in an inequity to mother during the three months a year she has custody, it recognizes that father has certain fixed costs such as housing and utilities which are not eliminated when mother has custody. Thus, father's need for at least a portion of mother's child support does not necessarily end merely because mother may be exercising her custody rights to the child. Moreover, any inequity to mother can be adjusted by an abatement of her child support obligation during her custody period.

This brings us to the second problem we perceive with the circuit court's modification order. SDCL 25-7-6.14, the abatement statute, provides that, "[a]n abatement of a portion of the child support may be ordered if a child spends more than twenty-nine consecutive days with the noncustodial parent." (emphasis added). Statutes are to be accorded their plain, ordinary and popular meaning. Whalen v. Whalen, 490 N.W.2d 276 (S.D.1992). The word "portion" is defined as a "part" or a "share." Webster's New World Dictionary of the American Language 465 (1975). Thus, SDCL 25-7-6.14 allows abatement of only a part of an obligor parent's child support obligation for any period of time that the child spends more than twenty-nine consecutive days with the obligor parent. Although the statute provides no particular percentage of child support that may be abated, some guidance on this question can be found in Whalen, supra. Whalen, quoted the following passage from the 1988 Report of the South Dakota Commission on Child Support (Commission Report) ³ with approval:

Courts throughout the state vary on their method of handling child support when a parent has the children for an extended time, such as an entire summer. Evidence revealed that the costs savings to the custodial parent when they do not have the children during substantial periods is approximately 30 to 50 percent. Therefore, the Commission is recommending the Court be allowed to grant a reduction during those extended periods of visitation. The Commission could not agree on any particular recommended amount for the reduction. The proposed language provides an after-the-fact abatement to avoid the situation where a parent does not actually exercise extended visitation yet receives a reduction in child support.

Whalen, 490 N.W.2d at 282 (emphasis original) (quoting Commission Report at 15) (footnote deleted). Based upon this provision of the Commission Report, it would appear that the legislature contemplated an abatement within a reasonable range of thirty to fifty percent of the obligor parent's child support obligation for periods of extended visitation or custody that exceed 29 consecutive days.

Here, the circuit court's order essentially grants mother a one hundred percent abatement of her child support obligation during the three months a year that she has custody of the child. This far exceeds the abatement of "a portion" of child support contemplated by SDCL 25-7-6.14. Based upon this erroneous total abatement of child support and further based upon the erroneous offsetting of the parties' mutual child support obligations, we hold that the circuit court's modification order constitutes an abuse of its discretion. Accordingly, we reverse the modification order and remand with instructions to the circuit court to set mother's child support obligation at the stipulated amount of $118 per month.

Based upon the economic equities of the situation, the circuit court may grant mother a partial abatement of her monthly child support obligation for the three months a year she has custody of the child. SDCL 25-7-6.14. An example of the form such an order must take is provided in Whalen, supra:

For example, if a parent exercises visitation in June for the entire month, he or she would be entitled to the abatement in the July child support. If a 50 percent abatement were allowed, the July payment would be reduced by 50 percent.

Whalen, 490 N.W.2d...