State ex rel. Freeman v. Sadlier
| Decision Date | 17 September 1998 |
| Docket Number | No. 20301,20301 |
| Citation | 114 S.D. 1998,586 N.W.2d 171 |
| Parties | STATE of South Dakota ex rel. Sheree R. (Sadlier) FREEMAN, Plaintiff and Appellee, v. Don Glen SADLIER, Defendant and Appellant. . Considered on Briefs |
| Court | South Dakota Supreme Court |
Mark Barnett, Attorney General, A. Thomas Pokela, Special Assistant Attorney General, Sioux Falls, for plaintiff and appellee.
Margaret A. Vandemore, Minnehaha County Public Defender, Sioux Falls, for defendant and appellant.
¶1 Don Glen Sadlier appeals from a court order finding him in contempt for failure to pay child support.
¶2 Sheree Rae Freeman and Don Glen Sadlier were granted a divorce in South Dakota on April 24, 1992 with child support and custody issues reserved for determination by a Utah court. 1 A decree of divorce deciding the child support and custody issues was subsequently entered in Utah which Sadlier registered in South Dakota as a foreign judgment on September 29, 1993. In that decree, Freeman was awarded custody of the couple's minor child and child support was set in the amount of $219 per month. Two days after registering the decree in this state, Sadlier filed an action here to modify the Utah order and change custody. The order was modified somewhat as to visitation for a period during November 1993 but custody remained with Freeman at all times. Sadlier, a resident of Utah, availed himself of the South Dakota courts numerous times for various orders regarding his ex-wife and their minor child since registering the foreign judgment here.
¶3 In September 1996, Freeman petitioned a South Dakota court for an increase in child support to $350 per month, citing specific changes in the parties' and child's circumstances. Following a hearing, a referee recommended support be increased as requested. Sadlier received notice in Utah of the hearing but chose not to attend. Upon receiving the referee's recommendation, however, Sadlier filed objections and appeared at a hearing before the circuit court. Sadlier claimed the South Dakota court lacked jurisdiction to modify the order as the statutory requirements of SDCL ch 25-9B permitting modification of a foreign support order were not met. On December 26, 1996, an order was entered increasing the amount of child support to $350 per month. Sadlier did not directly appeal this order.
¶4 While the modification action was pending, an investigator with this state's Office of Child Support Enforcement provided an affidavit on December 10, 1996 that Sadlier had not been paying child support of $219 per month as originally ordered by the Utah court. The affidavit declared Sadlier was $9,184 in arrears for nonpayment from August 30, 1993 through December 31, 1996. Based on this information, an order to show cause was issued and a hearing scheduled for January 15, 1997. Prior to the hearing date, Sadlier denied the allegations by affidavit and filed a motion to dismiss for lack of jurisdiction. Sadlier did not attend the hearing and a warrant was issued for his arrest.
¶5 The warrant was served on Sadlier six months after it was issued and a second show cause hearing was held August 4, 1997. Sadlier appeared and denied the contempt charges. The circuit court found Sadlier was in arrears on his child support obligation and found him in contempt for willfully disobeying the court order. Sadlier was ordered to remain in jail until he paid an arrearage amount which he paid a few days after the contempt hearing, thereby purging himself of contempt. 2
¶6 Sadlier appeals the order of contempt raising the following issues:
1. Whether the circuit court erred in failing to apply SDCL 25-9B.
2. Whether the circuit court erred in finding Sadlier in contempt.
¶7 Whether the circuit court erred in failing to apply SDCL 25-9B.
¶8 Sadlier claims he did not pay $350 per month child support because the court ordering the modification failed to comply with the statutory requirements of SDCL ch 25-9B, South Dakota's Uniform Interstate Family Support Act, and therefore lacked jurisdiction to modify. This chapter was enacted in 1994, two years before Freeman filed her petition seeking an increase in child support. SDCL 25-9B-603(c) provides that "[e]xcept as otherwise provided in §§ 25-9B-601 to 25-9B-612, inclusive, a tribunal of this state shall recognize and enforce, but may not modify, a registered order if the issuing tribunal had jurisdiction." (emphasis added). SDCL 25-9B-610 provides "[a] tribunal of this state may enforce a child support order of another state registered for purposes of modification, in the same manner as if the order had been issued by a tribunal of this state, but the registered order may be modified only if the requirements of § 25-9B-611 have been met." (emphasis added). SDCL 25-9B-611 provides:
(a) After a child support order issued in another state has been registered in this state, the responding tribunal of this state may modify that order only if § 25-9B-613 does not apply 3 and, after notice and hearing, it finds that:
(1) The following requirements are met:
(i) The child, the individual obligee, and the obligor do not reside in the issuing state;
(ii) A petitioner who is a nonresident of this state seeks modification; and
(iii) The respondent is subject to the personal jurisdiction of the tribunal of this state; or
(2) An individual party or the child is subject to the personal jurisdiction of the tribunal and all of the individual parties have filed a written consent in the issuing tribunal providing that a tribunal of this state may modify the support order and assume continuing, exclusive jurisdiction over the order. However, if the issuing state is a foreign jurisdiction which has not enacted this chapter, the written consent of the individual party residing in this state is not required for the tribunal to assume jurisdiction to modify the child support order.
(b) Modification of a registered child support order is subject to the same requirements, procedures, and defenses that apply to the modification of an order issued by a tribunal of this state and the order may be enforced and satisfied in the same manner.
(c) A tribunal of this state may not modify any aspect of a child support order that may not be modified under the law of the issuing state. If two or more tribunals have issued child support orders for the same obligor and child, the order that is controlling and must be recognized under the provisions of § 25-9B-207 establishes the nonmodifiable aspects of the support order.
(d) On the issuance of an order modifying a child support order issued in another state, a tribunal of this state becomes the tribunal of continuing, exclusive jurisdiction.
(emphasis added).
¶9 Sadlier is correct in his claim that the requirements of SDCL 25-9B-611 were not met prior to modification of his child support obligation. The State concedes the same in its appellate brief. At the time of the modification hearing, Sadlier was, and is, a resident of Utah. The minor child and her mother, the petitioner, were both residents of this state. No written consent for modification was filed by the parties with the issuing court.
¶10 Personal jurisdiction over Sadlier is established through application of our long-arm statute, SDCL 15-7-2(7) and Sadlier's application to this state's courts for other orders involving his minor child. However, " '[s]ubject matter jurisdiction can neither be conferred on a court, nor denied to a court by the acts of the parties or the procedures they employ.' " Sage v. Sicangu Oyate Ho, Inc., 473 N.W.2d 480, 484 (S.D.1991) (quoting In re Application of Koch Exploration Co., 387 N.W.2d 530, 536 (S.D.1986)). Although Sadlier failed to appeal the modification order within the statutory time limits set under SDCL 15-26A-6, jurisdictional questions have no time limitation. In re M.A.C., 512 N.W.2d 152, 154 (S.D.1994). Because the circuit court ordering modification of child support lacked subject matter jurisdiction, that judgment is void. Id.
¶11 Whether the circuit court erred in finding Sadlier in contempt.
¶12 Four elements must be met to support a finding of contempt. The circuit court must find: 1) the existence of an order; 2) knowledge of the order; 3) ability to comply with the order; and 4) willful or contumacious disobedience of the order. Taecker v....
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...New Jersey had continuing, exclusive jurisdiction under FFCCSOA and UIFSA), and State ex rel. Freeman v. Sadlier, 1998 SD 114, ¶¶ 9–10, 586 N.W.2d 171 (concluding that modification order that was not timely appealed was nevertheless void for lack of subject matter jurisdiction because modif......
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Chalmers v. Burrough
...1138, 1140 (Ala. Civ. App. 2000) ; Stone v. Davis , 148 Cal. App. 4th 596, 602, 55 Cal. Rptr. 3d 833 (2007) ; State ex rel. Freeman v. Sadlier , 586 N.W.2d 171, 173-74 (S.D. 1998). Cases rejecting subject matter bars, typified by In re Schneider , 173 Wash. 2d at 360-62, 268 P.3d 215, do so......
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In re Garrett, 03-60327.
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Weekley v. Weekley, No. 20844
...jurisdiction to modify the child support order it entered.3 SDCL 25-9B-205(d). See also Freeman v. Sadlier, 1998 SD 114, ¶ 10, 586 N.W.2d 171, 173-74 (holding that the trial court's attempt at modification of a Utah child support order, which was registered in South Dakota, was nullified du......