Whalen v. Whalen, s. 17637

CourtSupreme Court of South Dakota
Citation490 N.W.2d 276
Docket Number17645,Nos. 17637,s. 17637
PartiesMichael J. WHALEN, Appellant, v. Dianne M. WHALEN, Appellee. . Considered on Briefs
Decision Date22 April 1992

Michael J. Whalen, pro se.

Lee R. Burd, Sioux Falls, for appellee.

WUEST, Justice.

Michael Whalen (Husband) appeals from the circuit court's Order affirming the referee's Report and Recommendation which dismissed Husband's Petition for Modification of Child Support. Husband raises the following three issues:

1A. Whether the extended visitation of a child support obligor's children contemplated in the divorce decree constitutes a change in circumstances sufficient to support a modification of the child support obligation.

1B. Whether a child support obligor must show a change of circumstances in order to modify his child support obligation by reason of payments made pursuant to the divorce decree.

II. Whether the referee and the circuit court abused their discretion by imposing transcript costs upon Husband.

By notice of review, Dianne Whalen (Wife) argues the referee and circuit court should have awarded her attorney fees.

III. Whether the referee and the circuit court abused their discretion by failing to consider all factors before denying wife's motion for attorney's fees.


The parties were married approximately fourteen years before divorcing. They had three minor children. On March 1, 1990, the circuit court granted a divorce to Wife. On May 4, 1990, the circuit court entered a supplemental decree based on a stipulation prepared by Husband, an attorney, which awarded custody of the children to Wife with reasonable and liberal visitation to Husband. Visitation rights included an eight-week summer visitation period during June and July. It also provided Husband pay child support in the amount "of $800.00 per month during the minority of the parties' children as set forth at SDCL 25-5-18.1 and the Child Support Guidelines of the State of South Dakota." The supplemental decree required Husband to pay all expenses for medical and dental care for the children. In addition, the decree provided for Husband to pay $600.00 per month as spousal support for seven years. Finally, Husband was required to pay $250.00 per month payments on the automobile Wife was awarded. When the automobile was paid for, the payments were to continue for the balance of the seven years as "alimony."

Under the supplemental decree the Husband was awarded his interest (50%) in the law office, subject to the debt; the parties' home, subject to the debt; and his vehicles, subject to the debt. Husband had a small amount of furniture. Wife received the bulk of the parties' household goods, furnishings, and furniture, her 1988 automobile, mink coat, jewelry, and one-half of Husband's IRA. No debt was allocated to Wife. Husband assumed the remaining balance of Wife's educational loans and kept his membership in a hunting club.


Husband's Petition for Modification, dated June 1, 1990, claimed a change of circumstances on the following basis:

(A) The minor children would be living with him for two months of each summer and SDCL 5-7-6.14 allowed an abatement during those months; and

(B) Payment of $600.00 per month alimony was income to Wife and a deduction to Husband under SDCL 25-7-6.6 and 25-7-6.7(6).

From the petition hearing the referee specifically found Husband's monthly gross income was $2,991.17 and, after allowable deductions (not including a deduction for alimony), his net monthly income was $2,200.97. The referee further determined Wife's average presumed net monthly income (exclusive of alimony) was $631.53. The parties stipulated Husband had the minor children for more than twenty-nine consecutive days. The referee concluded she did not have jurisdiction to modify Husband's child support obligation because there were no changes in circumstances since the supplemental decree was entered. The referee denied Wife's request for attorney fees but awarded Wife the cost of preparing the hearing transcript.

The referee entered her Report and Recommendation. Pursuant to SDCL 25-7A-22, the circuit court held a hearing on Husband's objections. Husband did not object to the facts found by the referee, but objected to her conclusions of law. He objected particularly to the referee's conclusion that she was without jurisdiction to modify the child support obligation because no "change of circumstances" had been shown. More specifically, Husband argued the referee erred by failing to interpret "Child Support Guidelines of the State of South Dakota" as used in the supplemental decree to include the abatement statute and an income adjustment for alimony paid. Finally, Husband challenged the authority of the referee to assess the costs of the hearing transcript against him.

At the hearing, Husband further argued: (1) The abatement statute impliedly confers jurisdiction; and (2) the child support provision of the supplemental decree was vague. The circuit court affirmed the referee's conclusion that she did not have jurisdiction to modify the child support obligation under the "change of circumstances" rationale. The circuit court denied Wife's request for attorney's fees.

This case involves the application and interpretation of South Dakota's revised child support statutes, including the power of the court and referee to modify a divorce decree under SDCL 25-7A-22 and the effects of SDCL 25-7-6.6, -6.7, and -6.14. The construction of a statute is a question of law. Meyerink v. Northwestern Public Service Co., 391 N.W.2d 180, 183 n. 5 (S.D.1986); In re Petition of Famous Brands, Inc., 347 N.W.2d 882, 884 (S.D.1984). The referee's conclusions of law are fully reviewable on appeal. Janke v. Janke, 467 N.W.2d 494, 497 (S.D.1991). This case also involves the authority of referees to impose costs and the propriety of awarding attorney's fees. These matters are reviewed for a clear abuse of discretion. See Shoop v. Shoop, 460 N.W.2d 721, 726 (S.D.1990).


SDCL 25-7A-22 furnishes the rules for modifying a child support obligation. It provides in pertinent part:

[A child support] obligor, an obligee or the assignee may file a petition ... to increase or decrease child support based on a change in circumstances. ... The matter shall be set for hearing before a referee ... appointed by the court, pursuant to statute, and after due notice to all parties.... The referee shall make his report to the court, recommending the amount of the monthly support obligation of the parent or for health insurance coverage. (Emphasis supplied).

SDCL 25-7-6.1 thru -6.17 provide the child support guidelines which are used to establish child support obligations. SDCL 25-7-6.14 provides, "An abatement of a portion of the child support may be ordered if a child spends more than twenty-nine consecutive days with the noncustodial parent." SDCL 25-7-6.7 provides in part:

Deductions from monthly gross income shall be allowed as follows:


(6) Payments made on other support and maintenance orders.

Husband points out the last two statutes do not require a change of circumstances. Husband argues the last two statutes are contradictory to the change of circumstance statute and interprets them to mean no change of circumstances is necessary to modify the supplemental divorce decree. He argues the only way to reconcile the statutes is by interpreting the latter two statutes as containing their own "per se" changes in circumstances. We disagree.

As Husband suggests, we must construe statutes according to their intent, and intent must be determined from the statutes as a whole, as well as enactments relating to the same subject. Border States Paving v. Dept. of Revenue, 437 N.W.2d 872, 874 (S.D.1989); Appeal of A.T. & T. Info. Systems, 405 N.W.2d 24, 27 (S.D.1987); Meyerink, 391 N.W.2d at 183; Simpson v. Tobin, 367 N.W.2d 757, 763 (S.D.1985). Moreover, the intent of a statute must be derived from its language and by giving the language its plain, ordinary and popular meaning. Matter of Estate of Pejsa, 459 N.W.2d 243, 246 (S.D.1990); State v. Ventling, 452 N.W.2d 123, 125 (S.D.1990). This rule holds true unless the legislation is ambiguous or its literal meaning is unreasonable. Famous Brands, 347 N.W.2d at 885; Appeal of A.T. & T., 405 N.W.2d at 27-28; Christopherson v. Reeves, 44 S.D. 634, 642, 184 N.W. 1015, 1017 (1921). See also SDCL 2-14-1 (1992). Finally, where statutes appear to conflict, it is our responsibility to give reasonable construction to both, and if possible, to give effect to all provisions under consideration, construing them together to make them "harmonious and workable." Meyerink, 391 N.W.2d at 184; Karlen v. Janklow, 339 N.W.2d 322, 323 (S.D.1983); Hartpence v. Youth Forestry Camp, 325 N.W.2d 292, 295 (S.D.1982).

We have consistently required a party seeking modification of a child support order to demonstrate a change in circumstances occurring since the original child support order was entered. Johnson v. Johnson, 468 N.W.2d 648, 650 (S.D.1991); Hoy v. Hoy, 391 N.W.2d 685, 689 (S.D.1986); State ex rel. Larsgaard v. Larsgaard, 298 N.W.2d 381, 384 (S.D.1980). 1 This is true even though the original child support order was based on a stipulation entered into between the parties. Brunick v. Brunick, 405 N.W.2d 633, 635 (S.D.1987); Jameson v. Jameson (Jameson II), 306 N.W.2d 240, 242 (S.D.1981); Blare v. Blare, 302 N.W.2d 787, 791 (S.D.1981).

The change in circumstances requirement was adopted prior to the enactment of SDCL 25-7A-22 in 1986. SDCL 25-4-45 (1984) provides:

In an action for divorce the court may, before or after judgment, give such direction for the custody, care, and education of the children of the marriage as may seem necessary or proper, and may at any time vacate or modify the same.

Under this statute, this court has required a change...

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