Tovsland v. Reub, 23017
| Decision Date | 18 August 2004 |
| Docket Number | No. 23017,23017 |
| Citation | 2004 SD 93,686 NW 2d 392 |
| Parties | TOR TOVSLAND, Plaintiff and Appellee, v. TARA L. REUB, Defendant and Appellant. |
| Court | South Dakota Supreme Court |
GEORGE J. NELSON, Rapid City, South Dakota, Attorney for plaintiff and appellee.
MICHAEL J. WHALEN, Rapid City, South Dakota, Attorney for defendant and appellant.
[¶ 1.] Mother, Tara Reub, appeals the circuit court's award of child support and arrearages for the child born to her and Father, Tor Tovsland. We affirm in part, reverse in part, and remand.
[¶ 2.] Tor and Tara met in a bar in Rapid City in September of 1993. They began a sexual relationship which lasted until November 1993. The affair resulted in a pregnancy, but at the time the child was conceived, Tara was living with Randy Miller, and she initially assumed he was the child's father. The child was born when Tara was only 23 to 24 weeks pregnant. The child had severe and life threatening medical conditions which resulted in hospitalization for most of its first year. Total medical expenses were approximately $615,000.
[¶ 3.] At the time they met, Tor was a student at South Dakota School of Mines and Technology. He came to Rapid City from his home in Norway. After their relationship ended in November of 1993, Tor and Tara did not meet again until April of 1994 when they happened to see each other in a Denver bar. Tara was in Denver because the child was in the neo-natal intensive care unit at a Denver hospital. Tara alleged that when she saw Tor, they spoke and that she informed him that he could possibly be the child's father. Tor denies that he was informed of his potential paternity, though he admits he went with Tara to the hospital to see the child.
[¶ 4.] Tara did not attempt to contact Tor again until December 1994. She finally located him in January of 1995, but by that time he was married and had returned to Norway. Tara contends that she made attempts to locate him at his former home in Rapid City and periodically did phone and internet searches for him. Despite these efforts, the parties did not see one another again until August of 2000 in another chance encounter at the Sturgis Motorcycle Rally. When they saw each other, they were both with friends at a concert at the Buffalo Chip Campground. Neither Tara nor Tor mentioned the child at this meeting, but Tara did learn that Tor had returned to live in Rapid City.
[¶ 5.] Approximately 10 months later, in June 2001, Tara phoned Tor's home to set up a meeting. The parties met at a bookstore and Tara requested that Tor take a paternity test. He declined, insisting that Miller take a test. In October, Miller took a paternity test that ruled him out as a potential father. It was at this time Tara contacted the Office of Child Support Enforcement. In June 2002, a paternity test revealed a 99.99% probability that Tor was the child's father.
[¶ 6.] After a hearing in August 2002, the child support referee entered findings of fact and conclusions of law. The referee found that 1) Tara notified Tor of the possibility of paternity in April 1994; 2) any delay in bringing the child support action was reasonable; and 3) Tor was not prejudiced. At the time the referee made his recommendations, Tor was unemployed. The referee recommended child support of $268 per month and arrearages in the amount of $33,698. Tor appealed to the circuit court.
[¶ 7.] The circuit court set aside all of the referee's findings and conclusions and held a court trial. The court found that Tor had proven his laches defense and that Tara was not entitled to recovery of any arrearages prior to the June 2001 meeting at the bookstore. The circuit court also dismissed Tara's barratry action, in which she alleged that Tor's action for non-paternity was frivolous. In determining the amount of child support owing by Tor, the circuit court took into account the amounts Tara was entitled to receive from the fathers of Tara's other children. Ultimately, Tara was awarded $7,610.78 in arrearages and $775 per month in child support.1
Tara raises eight issues on appeal:
[¶ 8.] We will not disturb an award of child support unless the circuit court clearly abused its discretion. Watson-Wojewski v. Wojewski, 2000 SD 132, ¶14, 617 NW2d 666, 670 (citing Steffens v. Peterson, 503 NW2d 254, 257 (SD 1993)). We also review an award or denial of attorney fees for abuse of discretion. Linard v. Hershey, 489 NW2d 599, 603 (SD 1992) (citing Schmidt v. Schmidt, 444 NW2d 367, 370 (SD 1989)). Application of the doctrine of laches in a child support case is an issue of law which we review de novo. Bennett v. Peterson, 2003 SD 16, ¶13, 657 NW2d 698, 701. Whether equitable estoppel applies to deny past child support is a mixed question of law and fact which we review de novo. Id.
[¶ 9.] 1. WHETHER THE CIRCUIT COURT EXCEEDED ITS AUTHORITY IN SETTING ASIDE THE REFEREE'S FINDINGS AND HOLDING A DE NOVO HEARING ON CHILD SUPPORT.
[¶ 10.] Procedurally, there were two files consolidated by the circuit court in this matter. Notice of Support Debt was dated July 11, 2002. Notice of the hearing before the child support referee was dated July 31, 2002. The hearing before the referee took place on August 14, 2002. Prior to that hearing, Tor filed a complaint on August 5, 2002, captioned "Petition Contesting Paternity." Tara counterclaimed raising issues of paternity, child support, medical expenses, barratry, punitive damages and attorney fees on August 13, 2002. In spite of the matter already pending in the circuit court, the child support referee proceeded to determine child support and arrearages. Tor filed objections to the referee's recommendations with the circuit court. The record is not entirely clear as to the course the circuit court intended to take with regard to the separate files. However, it appears that the court consolidated the hearing on Tor's objections to the recommendations with the paternity petition and Tara's counterclaims. HT, Nov. 12, 2002, p 17.
[¶ 11.] When the parties appeared before the court on Tor's paternity complaint and his objections to the referee's report, the circuit court decided to hold a de novo hearing on all of the issues between the parties, including paternity, child support and arrearages, Tor's claims of laches and estoppel, and Tara's claims of medical expenses, barratry, punitive damages and attorney fees. Tara contends that this decision to hold a de novo hearing was an abuse of the circuit court's discretion.
[¶ 12.] SDCL 25-7A-6 provides in part:
SDCL 25-7A-6 (emphasis supplied). Tara argues that the circuit court did not have the option to reject the referee's findings of fact and hold a de novo trial under this statute and our previously stated standards of review for child support recommendations. She asserts that the circuit court was bound to determine child support and arrearage issues "solely on the record established before the referee." In Janke v. Janke, 467 NW2d 494, 497 (SD 1991), we held:
[A] circuit court may not overturn a referee's findings unless the record reflects that, based upon its own review of all the evidence, the court is left with a definite and firm conviction that a mistake has been made. The referee's conclusions of law, however, are freely reviewable and may be overturned whenever they are thought to be incorrect.
[¶ 13.] At the initial hearing on the objections to the referee's report, the court stated:
Fundamentally, I want an expanded hearing on some issues. I don't think the referee's forum is the appropriate one in which to resolve some of them because of the time constraints, [] that attend[] that proceeding and the relative informal nature of it, and, frankly, the limited ability to conduct meaningful discovery, meaningful cross-examination[.]
After pointing out various issues to be determined at the hearing, the court stated, The parties and court then scheduled a hearing. Before the hearing closed, Tara's counsel inquired:
[] Am I correct in understanding that the court has applied the standard...
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