Susan J. HOUSER, Plaintiff and Appellee, v. Robert J. HOUSER, Defendant and Appellant. Robert J. HOUSER, Appellant, v. STATE of South Dakota, DEPARTMENT OF SOCIAL SERVICES; and Susan J. Houser, a/k/a Susan J. Fordice, Appellees.
Nos. 18961, 19002.
Supreme Court of South Dakota.
Considered on Briefs May 23, 1995. Decided Aug. 16, 1995.
882
Alvin R. Pahlke, Tripp County State‘s Atty., Winner, for appellee, State.
J.M. Grossenburg Winner, for appellant.
SABERS, Justice.
Custodial parent (mother) seeking modification of child support and payment of arrearages obtained favorable rulings from the administrative law judge. Father appealed. The circuit court allowed an abatement of child support under
FACTS
Bob and Susan Houser were divorced on May 17, 1984. They have three children: Dana, born November 13, 1969; Kim, born June 6, 1974; and Laura, born August 23, 1978. At the time, it was anticipated that the children would spend summers with Bob and the school year with Susan. The parties entered into a stipulation which provided that the parties shall have joint custody of the children. Primary custody went to Susan for nine months and Bob for three months. Liberal visitation privileges were granted. The Decree further stated:
[T]he Defendant shall pay as child support for and on behalf of the minor children of the parties the sum of $400.00 Dollars per month ... until said children shall attain the age of majority or until further order of the Court. The aforesaid support payments shall be paid into the office [of] the Clerk of Courts in and for the County of Brookings, State of South Dakota.
Bob and Susan sometimes lived together after the divorce. The children lived with Bob for various lengths of time, up to one year. When the children stayed with Bob, he would reduce the amount of child support he paid to Susan by approximately one-third, or $135, for each child. Bob claims he and Susan agreed to interpret the Decree in this manner and that she agreed that any of Bob‘s child support obligations would be offset by any of Bob‘s expenditures on behalf of the children, especially transportation costs during visitations. Susan denies any such agreement.
In the summer of 1993, Susan entered the Illinois Office of Child Support Services to seek a “Modification of Support” and was advised that obtaining a modification and collecting past due child support were one process. The South Dakota Department of Social Services (DSS) notified Bob on October 30, 1993 that he owed $33,050.00 in arrearages. DSS intended to restrict Bob‘s ability to renew his driver‘s license and his hospital administrator‘s license. Bob is a hospital administrator with an annual salary of $80,808, plus additional incentives. On November 9, 1993, Bob requested an administrative review. The administrative law judge found Bob owed $31,909.00 for child support from June, 1984 to December, 1993. Bob appealed to the circuit court of Tripp County. Bob also filed, in Brookings County, a Motion to Vacate (abate) child support, for a new support order for the remaining minor child and to change venue to Tripp County. The court consolidated the two trials and changed venue to Tripp County.
- Whether the 1984 Divorce Decree provides for a lump sum or a pro rata distribution for child support?
Bob claims the parties interpreted the Decree to provide approximately $135 per child. As each child reached majority, Bob claims his support obligation would be reduced by $135. He also claims child support is reduced by approximately $135 per child per month if any child lived with him that month. His support payments reflect his interpretation. Susan claims she never agreed to this interpretation.
Bob claims “the construction given by the parties themselves to the contract as shown by their acts, if reasonable, will be accorded great weight and usually will be adopted by the Court[,]” quoting Malcolm v. Malcolm, 365 N.W.2d 863, 865 (S.D.1985). He claims:
The parties did not agree to ignore or change the Decree of Divorce without court order. They agreed on how to interpret it and they put their interpretation into practice.
Bob claims since the parties could “determine exact times of primary custody,” they should be allowed to prorate the $400.00 per month in child support.
Contractual stipulations in divorce proceedings are governed by the law of contracts. The interpretation of a contract is a matter of law for a court to decide. Estate of Thomas v. Sheffield, 511 N.W.2d 841, 843 (S.D.1994) (quoting Seablom v. Seablom, 348 N.W.2d 920, 924 (N.D.1984)). Because the interpretation of the Decree is a question of law, we give no deference. Id.
The administrative law judge found the Decree was not ambiguous and provided $400.00 per month in child support until all the children reached majority. The circuit court found this to be clearly erroneous. However, the court did not enter any specific finding on the interpretation of the Decree. Bob claims the court treated the Decree as providing $133 per month per child when the court calculated abatement.
In Radigan v. Radigan, 465 N.W.2d 483, 485 (S.D.1991), the divorce decree provided child support of “$750 per month for the support of the minor children[.]” (Emphasis added). We held the obligation was not reduced when one of the two children reached majority. Id. We noted child support under
Here, the 1984 Decree provides that child support shall be $400.00 per month “for and on behalf of the minor children” and continues until “said children shall attain the age of majority or until further order of the Court.” It makes no provision for a pro rata distribution of the obligation. We hold that child support under the Decree was to remain at $400.00 until “said children attain the age of majority[.]” (Emphasis added). Because the 1984 Decree provided $400.00 per month in child support, any deviation from this amount was a modification of the decree, not a mutual “interpretation” of the decree by the parties, as claimed by Bob.
Bob did not seek court approval for reducing his child support by a “pro rata one third” or $135.00. In fact, Bob did not follow the Decree and make his child support checks payable to the Brookings County Clerk of Courts. After one month under the Decree, he made payments directly to Susan. The informal modification was not approved by the court. In Vander Woude v. Vander Woude, 501 N.W.2d 361, 363 (S.D.1993),
- Whether abatement under
SDCL 25-7-6.14 was properly granted and calculated?
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.
Susan claims
Bob had a duty to pay $400.00 per month for child support. Any unpaid support became a judgment against him as a matter of law, not subject to retroactive modification.
In Whalen, 490 N.W.2d at 282, we stated that satisfying the 29-day visitation of
The Commission Report states:
[T]he Commission is recommending the Court be allowed to grant a reduction during those extended periods of visitation. The Commission could not agree on any particular recommended amount for the reduction. The proposed language provides an after-the-fact abatement to avoid the situation where a parent does not actually exercise extended visitation yet receives a reduction in child support.
* * * * * *
For example, if a parent exercises visitation in June for the entire month, he or she
would be entitled to the abatement in the July child support. If a 50 percent abatement were allowed, the July payment would be reduced by 50 percent.
Report of the South Dakota Commission on Child Support, December 1988, at 15 and 15 n. 9.
The Commission‘s example contemplates an abatement of a future obligation, not an abatement of an existing obligation. Id. Abatement essentially gives credit on future payments for extended visitations which have already occurred. See Sjolund v. Carlson, 511 N.W.2d 818, 822 (S.D.1994) (modifying Whalen by allowing a court to order a “forward-reaching abatement” if “expressly contingent on the obligor parent‘s actual exercise of an extended visitation or custody period in excess of 29 consecutive days[.]“); see id. at 823 (Sabers, J. dissenting on other grounds). This is “harmonious and workable” with
Any past due support payments are not subject to modification by a court or administrative entity of this state[.]
The court has in effect modified retroactively Bob‘s child support obligation by calling it an “abatement.” We reverse the court‘s abatement of Bob‘s past due child support.
- Whether Bob is entitled to a set-off for payment of transportation costs and other expenses?
Bob claims he and Susan agreed to off-set child support payments by the amount Bob spent on transportation costs for visitation and other expenses for the children. As noted above, the Decree did not provide this right of set-off or any other “interpretation” Bob claims should be given. The Decree states the parties shall share the transportation costs equally. In Taylor v. Ellenbecker, 471 N.W.2d 587, 588 (S.D.1991), father paid child support directly to mother instead of the Clerk of Courts. Father claimed a right of set-off on his child support arrearages for the value of his services furnished to mother and for the value of mother receiving the dependency exemption for her income tax. Id. at 587-88. We held:
[N]either [DSS] nor the circuit court in this case had authority to modify the child support provisions of the parties’ divorce decree by eliminating father‘s past due support obligations through recognition of his request for a set-off.
Here, the Decree did not provide for this set-off nor does
We have reviewed Bob‘s other arguments and issues and consider them to be without merit and contrary to the letter and spirit of these cases: Leonard v. Leonard, 529 N.W.2d 208 (S.D.1995); Bess v. Bess, 534 N.W.2d 346 (S.D.1995); Whalen, 490 N.W.2d 276; Vander Woude, 501 N.W.2d 361; Radigan, 465 N.W.2d 483; Vellinga v. Vellinga, 442 N.W.2d 472 (S.D.1989); Sharp v. Sharp, 422 N.W.2d 443 (S.D.1988). We reverse in favor of Susan and award her appellate attorney fees of $2,000.00. See Jopling v. Jopling, 526 N.W.2d 712 (S.D.1995).
KONENKAMP and GILBERTSON, JJ., concur.
MILLER, C.J., and AMUNDSON, J., dissent.
MILLER, Chief Justice (dissenting).
I dissent.
What started as a simple administrative request for a modification in child support has become a $32,000 windfall for Susan Houser. When Susan first contacted the Illinois Office of Child Support Services, she merely sought an increase in her current child support income of $135 per month. Susan only pursued the claimed arrearages after that office informed her that modifications and past-due collections were one process. Under the majority view, as a result of this bureaucratic intervention, she will now receive child support for periods when her
- Whether the 1984 Divorce Decree provides for a lump sum or a pro rata distribution for child support?
According to the majority, the 1984 divorce decree is unambiguous and clearly provides for a monthly support award of $400 until all the children reach majority. The majority argues that our decision in Radigan v. Radigan, 465 N.W.2d 483 (S.D.1991), mandates this result. I disagree. Contrary to the majority‘s statement, the language of the divorce decree in Radigan is not similar to the language in this case. In Radigan, the decree ordered the father to pay $750 per month in child support “until both children reach the age of majority or until further Order of the Court.” Id. at 485 (emphasis added).* Since the decree specifically required that “both children” reach majority, it is not surprising that this Court required father to pay $750 per month until his youngest child turned eighteen. In contrast, the divorce decree here does not include any explicit statement that Bob pay the $400 per month until all children reach majority. There lies the ambiguity. The decree simply provides:
[Bob] shall pay as child support for and on behalf of the minor children of the parties the sum of $400.00 Dollars per month ... until said children shall attain the age of majority or until further order of the court.
It is unclear whether the support award is intended to remain at $400 until all children reach majority or whether support was intended to decrease by a one-third share as each child turned eighteen.
Because the agreement included in the divorce decree is ambiguous, the parties’ actions following the divorce are significant. We have written:
Another test to be applied in determining the meaning of a contract is the construction actually placed on the contract by the parties as evidenced by their subsequent behavior.
If the intention of the parties is not clear from the writing, then it is necessary and proper for the court to consider all the circumstances surrounding the execution of the writing and the subsequent acts of the parties. The construction given by the parties themselves to the contract as shown by their acts, if reasonable, will be accorded great weight and usually will be adopted by the court.
Malcolm v. Malcolm, 365 N.W.2d 863, 865 (S.D.1985) (citations omitted).
In this case, the actions of Bob and Susan after the divorce show that they intended to reduce support payments as the older children reached majority. Bob paid no support for his two older children after they turned eighteen years old on November 13, 1987, and June 6, 1992, respectively. Bob had previously reduced his support payments by roughly two-thirds, from $400 per month to $135 per month for his remaining minor child who resided with Susan. Susan accepted reduced payments for years without seeking an enforcement order. Therefore, the decree should be interpreted to coincide with the parties’ demonstrated intention to reduce child support payments as their older children reached age eighteen.
Pursuant to
- Whether abatement under
SDCL 25-7-6.14 was properly granted and calculated?
The majority accepts Susan‘s claim that Bob should not be allowed an abatement of
The majority further argues that abatement should only be permitted to reduce future obligations. According to the majority, applying abatement to past obligations amounts to retroactive modification. The majority relies on a footnote in the 1988 Report of the South Dakota Commission on Child Support:
For example, if a parent exercises visitation in June for the entire month, he or she would be entitled to the abatement in the July child support. If a 50 percent abatement were allowed, the July payment would be reduced by 50 percent.
Whalen v. Whalen, 490 N.W.2d 276, 282 (S.D.1992) (citing Report of the South Dakota Commission on Child Support at 15 n. 9 (1988)). However, the Commission‘s example simply demonstrates that a parent is not entitled to abatement until the child has spent more than 29 consecutive days with the parent. Rather than imposing a requirement that all abatement come from future payments, the Commission simply illustrated the importance of after-the-fact proof of visitation. Furthermore, abatement is appropriate where the obligation has simply accrued; the obligation need not have been paid in full. See Whalen, 490 N.W.2d at 282 (“Use of the abatement language [in
Neither Susan nor the majority dispute the extended periods of time during which one or more of the children resided with Bob. Giving
I would affirm the trial court on Issues 1 and 2.
I am authorized to state that AMUNDSON, J., joins in this dissent.
RICHARD W. SABERS
JUSTICE, SUPREME COURT OF SOUTH DAKOTA