Vander Woude v. Vander Woude, 17927

• Court: Supreme Court of South Dakota
• Writing for the Court: AMUNDSON; MILLER, C.J., and WUEST; SABERS; HENDERSON; SABERS
• Citation: 501 N.W.2d 361
• Parties: Donna VANDER WOUDE, n/k/a Donna Jones, Plaintiff and Appellee, v. Robert VANDER WOUDE, Defendant and Appellant.
• Docket Number: No. 17927,17927
• Decision Date: 02 June 1993

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501 N.W.2d 361 Donna VANDER WOUDE, n/k/a Donna Jones, Plaintiff and
Appellee,
v.
Robert VANDER WOUDE, Defendant and Appellant. No. 17927. Supreme Court of South Dakota. Argued Jan. 13, 1993.
Decided June 2, 1993.

Mary Ann Galland, Gary W. Conklin of Galland Legal Clinic, Sioux Falls, for plaintiff and appellee.

Timothy J. Langley of Nasser Law Offices, Sioux Falls, for defendant and appellant.

AMUNDSON, Justice.

Robert Vander Woude (Robert) appeals from an order of the circuit court ordering him to pay child support arrearages of $5,227.50, plus prejudgment interest. We affirm.

FACTS

Robert and Donna J. Vander Woude, n/k/a Donna J. Jones (Donna), were divorced on February 11, 1974. Donna received physical custody of the parties' two minor children, Michelle and Deonne, and Robert was ordered to pay $42.50 per week per child as child support.

Thirteen years after the divorce, between May 1987 and December 1988, Robert was off from his job at Morrell's due to a labor dispute and claimed to be unable to make his child support payments. During this time, the parties' oldest child, Michelle, reached the age of majority. Robert did not make the required weekly child support payments of $85 between May 1, 1987, and Michelle's eighteenth birthday on February 16, 1988, nor did he make weekly $42.50 support payments between February 16, 1988, and December 3, 1988. The missed child support payments during this period totaled $5,227.50.

After December 3, 1988, Robert returned to work and resumed his weekly child support payments of $42.50. However, Robert missed a significant number of $42.50 payments between his return to work and August, 1990, when the parties' youngest

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daughter, Deonne, attained majority. Robert's missed weekly payments for this period of time totaled $1,572.50.

In October, 1990, Donna wrote Robert informing him that he was in arrears on his child support in the amount of $1,572.50 for the period following his return to work until Deonne's eighteenth birthday. When Robert did not reply, Donna wrote a second letter on November 11, 1990, threatening legal action if Robert did not pay the $1,572.50 by December 1, 1990. In the letter, Donna stated: "No more support after that! I know that has got to be a thorn out of your side."

On December 23, 1990, Robert sent a letter and a check for $1,572.50 to Donna. Robert wrote the words "paid in full" on the memo portion of the check.

Donna cashed the check and wrote Robert a letter taking exception to portions of his letter that had accompanied the check. Donna stated that while she had thought of letting the earlier child support arrearages of $5,227.50 pass, she now regretted that decision.

Donna subsequently filed a motion for an order to show cause seeking a judgment against Robert for the $5,227.50 in child support arrearages. After a hearing on the matter, the circuit court issued a memorandum opinion awarding Donna $5,227.50, plus prejudgment and post-judgment interest. Robert appeals.

ISSUES

1. Whether an agreement between divorced parents modifying child support arrearages is enforceable?

2. Whether an accord and satisfaction settling child support arrearages existed?

3. Whether the trial court erred in awarding prejudgment interest on each installment of child support not paid?

ANALYSIS

1. Modification of Child Support Arrearages by Agreement

Parents are obligated to provide support for their children. This obligation is not only a matter of public policy, but is also statutory. SDCL 25-5-18.1; SDCL 25-7-6.1. This court has stated that a parent's duty to support his children is paramount and other debts of the parent are secondary. Donohue v. Getman, 432 N.W.2d 281, 283 (S.D.1988); Brunick v. Brunick, 405 N.W.2d 633, 634 (S.D.1987). "The children's best interest requires that they be supported." Stach v. Stach, 369 N.W.2d 132, 136 (S.D.1985).

Statutorily, courts and administrative entities may not retroactively modify past due child support obligations except for the period in which there is a pending petition for modification. SDCL 25-7-7.3. Robert asserts that while SDCL 25-7-7.3 limits retroactive modification by a court or administrative agency, it does not prohibit retroactive modification of child support arrearages by parents themselves. Justice Morgan in his special writing in Kier v. Kier, 454 N.W.2d 544 (S.D.1990), asserted that SDCL 25-7-7.3 does not expressly prohibit an obligee parent from modifying a payment. Id. at 548 (Morgan, J., concurring in part and dissenting in part).

However, while SDCL 25-7-7.3 does not directly address retroactive modification of a support obligation by a parent, SDCL 25-7A-17 requires that any agreement relieving a party of its support obligations be in writing and have the approval of the court.

An agreement between parents or other responsible persons relieving a party of any duty of support or responsibility or purporting to settle past, present or future support obligations as settlement or prepayment may not act to reduce or terminate any rights of the department of social services or any support obligee to recover from parents or other responsible persons for support provided, unless the department or any support obligee has consented to the agreement in writing and the agreement has been approved by a court of competent jurisdiction. (Emphasis supplied.)

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SDCL 25-7A-17. "It is clear the statute is designed to restrict a party's ability to contract away a duty of support." Sharp v. Sharp, 422 N.W.2d 443, 447 (S.D.1988). Robert and Donna's alleged agreement to forgive Robert's $5,227.50 in child support arrearages was primarily an oral agreement, although it was also alluded to in several letters between the parties. Nonetheless, the agreement was never approved by a court, and thus it is not enforceable.

Furthermore, this court does not look favorably upon agreements...