Wolff v. Weber, No. 19735

• Court: Supreme Court of South Dakota
• Writing for the Court: PER CURIAM
• Citation: 563 N.W.2d 136,1997 SD 52
• Decision Date: 16 January 1997
• Docket Number: No. 19735
• Parties: Gary G. WOLFF, Petitioner and Appellee, v. Cathy WEBER, Appellant. . Considered on Briefs

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563 N.W.2d 136 1997 SD 52 Gary G. WOLFF, Petitioner and Appellee,
v.
Cathy WEBER, Appellant. No. 19735. Supreme Court of South Dakota. Considered on Briefs Jan. 16, 1997.
Decided May 7, 1997.

Michael T. Hogan of Fritz, Hogan & Johnson, Aberdeen, for petitioner and appellee.

Gregg Magera of Siegel, Barnett & Schutz, Aberdeen, for appellant.

PER CURIAM.

¶1 Cathy Weber, formerly known as Cathy Wolff, appeals from an order correcting the judgment and decree of divorce nunc pro tunc due to a "clerical mistake." We reverse and remand with instructions.

FACTS

¶2 Cathy and Gary Wolff were married October 11, 1975 and divorced October 10, 1990. ¹ During their fifteen-year marriage, they had two children: Casey, born April 13, 1979; and Owen, born January 12, 1981. When the parties divorced, Gary was awarded custody of both children. The trial court found the parties' child support obligation to be $394 per month under the guidelines provided by SDCL 25-7-6.2 and ordered Cathy to pay 53 percent of that amount, or $208 per month, less health insurance premiums for the two children. Cathy was also provided a $25 per month deduction for travel expenses and was not held responsible for child support during the six weeks in the summer that she had visitation. She was current with this obligation at all times.

¶3 On March 11, 1996, five and one-half years after the original order of child support was entered, Gary petitioned for modification of child support based on changes in the parties' financial conditions. The petition was referred to a child support referee and a hearing date set. At the hearing, Gary discovered what he believed was an error made in the child support obligation set forth in the judgment and decree. Specifically, Gary alleged that based on the parties' combined net monthly income at that time, the guidelines indicated the amount of child support for two children was to be $613 per month and the $394 ordered by the court reflected support for one child only. Gary requested this error be corrected nunc pro tunc.

¶4 Following briefing by the parties, the referee concluded a clerical error had been made in preparing the judgment. The referee characterized the error as not pertaining to an exercise of judicial function but merely "a case of looking at the wrong column in the support schedule." The referee recommended

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correcting the judgment and decree nunc pro tunc to reflect that child support for the two children is $613 per month and that Cathy would be held responsible for 53 percent of that amount, or $325 per month. The referee recommended the correction be effective from the date of entry of the judgment and decree of divorce, October 10, 1990, to the date of any subsequent modification of the child support order. According to the referee's calculations, this would result in Cathy's owing $8,190 in back child support for the seventy months from the time of the parties' divorce until March 1996. ²

¶5 Cathy filed objections to the referee's report and a hearing date was set to hear those objections. Following this hearing, the circuit court accepted the referee's recommendations and entered orders modifying future child support payments based on the parties' changed financial conditions and correcting the original judgment nunc pro tunc. Cathy appeals.

DECISION

¶6 Does an error in the calculation of child support constitute a "clerical mistake" as defined by SDCL 15-6-60(a) which may be subject to correction nunc pro tunc?

¶7 We apply the clearly erroneous standard in reviewing the findings of the referee and circuit court, and give no deference to their conclusions of law. Whalen v. Whalen, 490 N.W.2d 276, 280 (S.D.1992).

¶8 SDCL 15-6-60(a) provides:

Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders. During the pendency of an appeal, such mistakes may be so corrected before the settled record is transmitted to the clerk of the Supreme Court and thereafter while the appeal is pending may be so corrected with leave of the Supreme Court.

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