State ex rel. Bennett v. Peterson, 22330.

• Court: Supreme Court of South Dakota
• Citation: 2003 SD 16,657 N.W.2d 698
• Docket Number: No. 22330.,22330.
• Parties: STATE of South Dakota, ex rel., Megan J. BENNETT, Plaintiff and Appellee, v. Thomas G. PETERSON, Defendant and Appellant.
• Decision Date: 12 February 2003

657 N.W.2d 698
2003 SD 16

STATE of South Dakota, ex rel., Megan J. BENNETT, Plaintiff and Appellee,
v.
Thomas G. PETERSON, Defendant and Appellant

No. 22330.

Supreme Court of South Dakota.

Considered on Briefs on October 8, 2002.

Decided February 12, 2003.

657 N.W.2d 699

Lawrence E. Long, Attorney General, Michelle K. Percy, Special Assistant Attorney General, Lead, South Dakota, Attorneys for plaintiff and appellee

Lee C. "Kit" McCahren, Olinger, Lovald, Robbennolt, McCahren & Reimers, Pierre, South Dakota, Attorneys for defendant and appellant.

FLEMMER, Circuit Judge.

[¶ 1.] Thomas Peterson (Peterson) appeals a decision by the circuit court determining he must pay child support and arrearages to Megan Bennett (Bennett) pursuant to SDCL 25-8-5. We affirm.

FACTS AND PROCEDURAL HISTORY

[¶ 2.] In February 1987 Bennett and Peterson met at the Dark Horse Saloon in Belle Fourche, South Dakota and engaged in sexual relations. As a result of this encounter, Bennett became pregnant and on November 7, 1987, gave birth to a boy, J.M.B.

657 N.W.2d 700

[¶ 3.] At the time Bennett engaged in sexual relations with Peterson, she was dating another man, Paul Boucher. Bennett believed that Boucher was the father of J.M.B. In 1988 a blood test indicated that Boucher was not the father of J.M.B. At this point, Bennett believed J.M.B.'s father was Peterson

[¶ 4.] In early 1992 Bennett retained an attorney to pursue the adoption of J.M.B. by her husband at the time, Tim Rosencranz. In March 1992 a meeting was held with Bennett, her attorney, and Peterson for the intended purpose of informing him that J.M.B. was his son and attempting to gain his consent to the step-parent adoption.

[¶ 5.] At the meeting, Bennett told Peterson J.M.B. was his son. After that meeting concluded, the two went to a restaurant and discussed J.M.B. At that time, Peterson acknowledged a resemblance between himself and J.M.B.

[¶ 6.] Shortly thereafter, Bennett began to have second thoughts about the adoption and decided to put the matter on hold. Nevertheless, Bennett's attorney, Brad Schreiber, advised Peterson's attorney that a blood test should be done in the event Bennett desired to pursue the adoption in the future. However, Peterson's attorney, Randy Connelly, advised Bennett that Peterson "was not interested in taking a blood test anymore due to the fact that he does not want to know if he is the father or not," and that Peterson would not challenge the adoption in any way.

[¶ 7.] The adoption never occurred and no documents were sent to Peterson concerning the adoption proceedings or asking him to consent to the adoption. Bennett had no further contact with Peterson until service of the summons and complaint in this action in February 2000. Bennett testified she did not attempt to contact Peterson after 1992 because the "ball was in his [Peterson's] court" and she did not want to disrupt any personal relationships that Peterson may have been engaged in.

[¶ 8.] In her complaint for paternity Bennett requested child support and arrearages. Testing in November of 2000 established a 99.99 percent probability Peterson was the father of J.M.B. On October 4, 2001, the circuit court entered a judgment determining that Peterson was J.M.B's father and ordering him to pay interim child support.

[¶ 9.] A subsequent hearing was set for December 3, 2001. It was scheduled for the purpose of establishing permanent monthly child support and determining the total amount of arrearages. Neither Peterson nor his counsel appeared. Nonetheless, the State proceeded and submitted a sworn statement indicating Peterson's known earnings. Accordingly, the court entered judgment requiring Peterson to pay $478 in child support per month and $47,244 in arrearages.¹

657 N.W.2d 701

[¶ 10.] Peterson filed a motion for reconsideration of that judgment, which the circuit court denied. However, Bennett agreed to reduce the monthly payments to $125 per month and the arrearages to $29,850. Peterson appeals

ISSUE

[¶ 11.] Whether the trial court erred when it ruled Bennett was entitled to child support arrearages pursuant to SDCL 25-8-5 and that the request for arrearages was not barred based on laches, equitable estoppel, or waiver.

[¶ 12.] We hold the trial court did not err.

STANDARD OF REVIEW

[¶ 13.] Mixed questions of law and fact that require the reviewing court to apply a legal standard are reviewable de novo. Phipps Brothers, Inc. v. Nelson's Oil & Gas, Inc., 508 N.W.2d 885, 888 (S.D. 1993); Crouse v. Crouse, 1996 SD 95, ¶ 6, 552 N.W.2d 413, 415. The question of whether laches is an available defense in a child support case is an issue of law. In re Loomis, 1998 SD 113, ¶ 7, 587 N.W.2d 427, 429; Fisco v. Department of Human Services, 659 A.2d 274, 275 (Me.1995). Whether equitable estoppel will deny Bennett the right to bring an action for past due child support is fully reviewable as a mixed question of law and fact. Crouse, 1996 SD 95, ¶ 14, 552 N.W.2d at 417.

ANALYSIS AND DECISION

[¶ 14.] Bennett claims she is entitled to child support arrearages for a period of six years. The statutory basis she uses to support her claim is contained in SDCL 250-8-5. That statute provides:

The mother may recover from the father a reasonable share of the necessary support of a child born out of wedlock. In the absence of a previous demand in writing served personally or by registered or certified letter addressed to the father at his last known residence, not more than six years support furnished before bringing an action may be recovered from the father.

[¶ 15.] This statute operates to limit the time when the father of a child born out of wedlock can be required to pay child support. In this case, based upon the above statute, Bennett is requesting support six years prior to March 20, 2000, the date Peterson was personally served with the order to show cause, summons and complaint for paternity.

[¶ 16.] Peterson mistakenly relies on this Court's decision In re Loomis, 1998 SD 113, 587 N.W.2d 427, as support for his position on appeal....