Wagner v. Wagner, 23689.

• Decision Date: 29 March 2006
• Docket Number: No. 23689.,23689.
• Citation: 2006 SD 31,712 N.W.2d 653
• Parties: Amy WAGNER n/k/a Amy Lyngstad, Plaintiff and Appellee, v. Michael WAGNER, Defendant and Appellant.
• Court: South Dakota Supreme Court

712 N.W.2d 653

2006 SD 31

Amy WAGNER n/k/a Amy Lyngstad, Plaintiff and Appellee, v. Michael WAGNER, Defendant and Appellant.

No. 23689.

Supreme Court of South Dakota.

Considered on Briefs February 13, 2006.

Decided March 29, 2006.

Rehearing Denied May 1, 2006.

COPYRIGHT MATERIAL OMITTED

Amy Lyngstad, Yankton, SD, pro se plaintiff and appellee.

Michael Wagner, Yankton, SD, pro se defendant and appellant.

PER CURIAM.

[¶ 1.] Michael Wagner (Wagner) appeals the modification of his child support obligation. We affirm.

Facts and Procedural History

[¶ 2.] Wagner and Amy Lyngstad Wagner (Lyngstad) were married on May 12, 1990. They were divorced on March 16, 1999. Lyngstad was awarded sole custody of the couple's two children, and Wagner was ordered to pay child support. Since that order, Wagner and Lyngstad have continued to litigate child support. Nine petitions for modification of child support have been filed, the most recent being March 11, 2005.

[¶ 3.] A hearing on the latest petition was held before a referee. The referee filed findings and an order recommending a child support obligation of $597 per month. Wagner objects to three of the referee's findings. The relevant parts of those findings are:

(3) [Lyngstad] . . . earns $9.00 per hour and works 40 hours a week. From January 1, 2005, through April 9, 2005, she earned bonuses . . . in average of $191 a month.

(4) [Wagner] failed to submit any information regarding his income and he refused to answer any questions regarding his income. Department of Labor records reflect that . . . Wagner was paid the sum of $8,084 from October 1, 2004, through December 31, 2004, which is an average of $2,695 per month. . . .

(7) Neither party requested deviation from the child support schedule.

(Emphasis added.)

[¶ 4.] Wagner's specific objections are that: a) the referee committed perjury relating to finding 3 (Lyngstad's hours of work) and finding 7 (request for a deviation), and Lyngstad committed perjury on her financial statement; b) a writ of mandamus should have been issued for the arrest of the referee and Lyngstad for the alleged perjury; c) Lyngstad had federal felony convictions, and therefore, her petition should have been denied; and d), with respect to finding 4, it was improper for the referee to independently obtain evidence of Wagner's income from Department of Labor records. The circuit court held a hearing on these objections and issued an order affirming the referee's report in all material respects.¹ Wagner appeals.

Decision

[¶ 5.] It is well settled that we review a child support referee's findings of fact under the clearly erroneous standard and questions of law are fully reviewable. Mixed questions of law and fact are classified as questions of law and are reviewable de novo. In addition, when the circuit court has adopted a child support referee's findings and conclusions, we apply the clearly erroneous standard of review to the findings and give no deference to conclusions of law. Further, in applying this standard, we will not reverse findings of fact unless we are left with a definite and firm conviction a mistake has been made.

Mathis v. Mathis, 2000 SD 59, ¶ 7, 609 N.W.2d 773, 774 (internal citations, alterations, and quotation marks omitted).

a) Alleged Perjury

[¶ 6.] Wagner makes three allegations of perjury: one against Lyngstad and two against the referee. Wagner claims that Lyngstad committed perjury on a financial statement that was attached to her petition for child support modification. On the financial statement, the following question concerning health insurance was asked: "Do you have health insurance available for dependents through your employer"? Wagner alleges that Lyngstad committed perjury in answering "no" to this question.

[¶ 7.] However, a review of the hearing transcript reflects that Lyngstad was simply confused in answering this question:

Referee: And then I see that you have medical and dental insurance deductions from your pay?

Lyngstad: That's correct.

Referee: Do those insurance plans [referring to Lyngstad's employment plan] cover the children?

Lyngstad: No, they do not cover the children, because at this time I did not elect to do that because they have insurance through their father.

(Emphasis added.) This testimony, and a further exchange between the referee and Lyngstad, reveal that Lyngstad answered "no" on her financial statement only because the children were covered by Wagner's plan, and therefore, there was no elective coverage available for the children under her plan at the time she completed her financial statement. Considering the entire record, there is no evidence of a knowing and intentional misstatement of material fact. See SDCL 22-29-1.

[¶ 8.] Wagner next claims that the referee committed perjury by entering finding of facts 3 and 7. In finding 3 the referee found that Lyngstad worked forty hours a week. Wagner alleges perjury because there is documentary evidence (pay stubs) reflecting that on two occasions Lyngstad worked less than forty hours. However, when asked how many hours she normally worked each week, Lyngstad testified "I am normally supposed to get forty hours. The last couple weeks it has been a little bit slower. They're renegotiating a contract . . . [n]ormally forty, yes, that is correct." Thus, Wagner's allegation of perjury on this finding is totally without merit.

[¶ 9.] In finding 7 the referee found that neither party requested a deviation from the basic support schedule. With respect to this finding, Wagner correctly points out that Lyngstad requested a deviation on her petition, but the referee found that "no party requested deviation." However, in reviewing this issue we note that SDCL 25-7-6.10² only allows a referee to address deviations when one has been "raised" by a party and only upon the entry of specific findings following the hearing. In this case, the record reflects that although Lyngstad requested a deviation on her written application, she did not preserve the issue at the hearing by producing evidence or making a request for a deviation. Therefore, finding 7 simply explains why the referee did not address deviations. In essence, Lyngstad's initial request was withdrawn because she failed to preserve it at the hearing. Under these circumstances, the referee's finding was correct.

b) Writ of Mandamus

[¶ 10.] "[A] writ of mandamus is an extraordinary remedy that will issue only when the duty to act is clear[.]" Baker v. Atkinson, 2001 SD 49, ¶ 16, 625 N.W.2d 265, 271. "To prevail in seeking a Writ of Mandamus, the petitioner must have a clear legal right to performance of the specific duty sought to be compelled and the respondent must have a definite legal obligation to perform that duty." Id. (emphasis in original) (citing Sorrels v. Queen of Peace Hosp., 1998 SD 12, ¶ 6, 575 N.W.2d 240, 242). However, "[a] private citizen lacks a judicially cognizable interest in the prosecution or nonprosecution of another." Linda R.S. v. Richard D. and Texas, 410 U.S. 614, 619, 93 S.Ct. 1146, 1149, 35 L.Ed.2d 536 (1973). Therefore, Wagner, as a "citizen[,] lacks standing to contest the policies of the prosecuting authority when he himself is neither prosecuted nor threatened with prosecution." Id. For that reason, Wagner had no legal right to the issuance of a writ of mandamus from the circuit court. He also had no right to a writ of mandamus because his claims of perjury are meritless.

c) Federal Felony convictions

[¶ 11.] Wagner alleges that Lyngstad has federal felony convictions, and therefore, her request for modification should be denied. However, a child support proceeding only determines the amount of money necessary to support a child, and the support amount is not based on the character of the parents. Furthermore, there was no factual dispute in the hearing that was resolved on Lyngstad's credibility. Therefore, absent an issue of credibility, Lyngstad's criminal convictions, if any, were not material in this child support proceeding. Wagner's argument is without merit.

d) Wagner's Wages

[¶ 12.] In his last issue, Wagner argues that the referee erred in independently obtaining evidence of Wagner's wages from a source outside the hearing. In the referee's defense, the record reveals that Wagner was completely uncooperative and in fact obstructive in determining his employment and wages at the hearing, as is demonstrated by the following exchange:

Referee: State your full name.

Wagner: Mike Wagner.

Referee: Where do you live?

Wagner: I'll plead the fifth.

Referee: Well, Mr. Wagner, you can't plead the fifth on your address. There are no criminal proceedings pending in this court, so you're not incriminated in any way by stating your address. So, what's your address?

Wagner: None.

Referee: You're not living at 809 Burgess Road, Yankton, South Dakota?

Wagner: At times, but not always.

Referee: Well, okay, for purposes of this hearing it suffices that that's where you're living, and you're single, correct?

Wagner: Yeah.

Referee: And you're employed, right?

Wagner: I'm not answering it.

Referee: Well, isn't it true that you're employed by a company called Kohlberg Pioneer, Incorporated?

Wagner: Not answering it.

Referee: Okay, well, you don't have to answer it. I know that that's the case, Mr. Wagner.

Wagner: How do you know that?

Referee: Because I checked.

Wagner: Why did you check? You're the Referee.

Referee: Because I figured you might be uncooperative. And are you willing to tell what your rate of pay is?

Wagner: She's been convicted of identity theft. She's taken out credit cards in my name before. I'm not giving you identity information so she can do it again.

Referee: Okay. So would you — or then can I interpret that as meaning you're not going to tell me your wages from over at Pioneer?

Wagner: Nope.

Referee: Okay. For the record, according to the Department of Labor records from the period of —

Wagner:...