Tank v. Tank

• Decision Date: 28 December 1978
• Docket Number: Nos. 12277,12376,s. 12277
• Citation: 272 N.W.2d 831
• Parties: Harriet TANK, Plaintiff and Respondent, v. Russell O. TANK, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 831

272 N.W.2d 831

Harriet TANK, Plaintiff and Respondent, v. Russell O. TANK, Defendant and Appellant.

Nos. 12277, 12376.

Supreme Court of South Dakota.

Dec. 28, 1978.

Kent A. Moeckly, Britton, for plaintiff and respondent.

Philip W. Morgan, Britton, for defendant and appellant.

WOLLMAN, Chief Justice.

These appeals are from an order by the trial court that appellant pay respondent $428 for extraordinary medical expenses incurred by respondent on behalf of a minor child who was in respondent's custody as a result of an earlier divorce decree, and from an order directing appellant to pay respondent $300 attorneys' fees to defend the first appeal. We affirm both orders.

The parties were divorced in 1974. Custody of one child was granted to appellant. Custody of three other children was given to respondent. In addition, appellant was ordered to pay respondent $35,000 as a lump-sum property settlement and $200 a month child support, which was to be proportionately reduced as the children became emancipated. In September of 1976, one of the children in respondent's custody incurred a physical injury requiring hospitalization. Respondent paid $635 for this care. She then filed a claim with South Dakota Blue Shield Medical Service, Inc. under a family policy held by appellant that provided coverage for the children but not for respondent. Blue Shield issued a check in the amount of $428 to appellant, which he retained.

Respondent filed a motion for an order requiring appellant to show cause why he should not be required to reimburse to respondent the full $635 cost of the child's medical care. The trial court entered an order directing appellant to pay $428 to respondent. No attorneys' fees were allowed. Appellant duly commenced an appeal to this court. After the appeal was perfected, respondent moved the trial court for an order requiring appellant to show cause why he should not be required to pay $1,500 to respondent for attorneys' fees to defend against appellant's appeal in this court. The trial court entered an order directing appellant to pay $300 to respondent. An appeal was perfected by appellant from this order as well. It does not appear that respondent sought funds to defend against this subsequent appeal.

Appellant's primary argument is that this action was improperly brought on an order to show cause. It appears that respondent was not, in the first instance, seeking a remedy of contempt against appellant, and while the action might better have been styled a motion to amend the decree of divorce to provide for extraordinary medical expenses, the fact remains that respondent's method of proceeding had the effect of reopening the previous action and brought both parties within the jurisdiction of the trial court. In Houghton v. Houghton, 37 S.D. 184, 157 N.W. 316, plaintiff commenced a new action seeking provision for future maintenance, support, and education of the children. This court stated:

While we agree with the appellant that the matter should have been brought to the attention of the trial court by proceeding in the former action, we think it our duty to brush aside this technicality, and so for the purposes of this case we now consider the present action as a motion in the divorce action. As before pointed out, the parties were the same, the forum was the same, and the merits were considered precisely as though respondent had proceeded, in form, in the former action. The defendant appeared in this action and answered, thereby submitting himself to the jurisdiction of the court. This obviated any possible question of jurisdiction of the court over the person of the defendant. 37 S.D. at 189, 157 N.W. at 318.

See also Dougherty v. Dougherty, 76 S.D. 318, 77 N.W.2d 845.

Appellant's next contention is that because respondent did not show a substantial change in the conditions obtaining at the time the original decree was entered, the trial court abused its discretion when it required him to make the payment in question. In support of this contention appellant cites cases dealing primarily with modification of custody provisions contained in divorce decrees. See cases collected in Masek v. Masek, S.D., 237 N.W.2d 432. There is a distinct difference between child custody and child support. In modifying a custody provision the court must be guided by the...