Miller v. JacobsenMiller v. Jacobsen
Lead Opinion
[¶ 1.] Kimbеrly Kay Spieker Miller (Kimberly) filed a motion seeking modification of a child support obligation order and divorce decree from Todd Wayne Ja-cobsen (Todd). The trial court found facts sufficient to warrant an increase in Todd’s child support obligation but denied Kimberly’s motion to modify the divorce decree. We affirm on Issues 1, 2, 3, and 5 and remand Issue 4 to the trial court for a determination of when an upward deviation from the basic child support obligation for transportation needs ends.
FACTS AND PROCEDURE
[¶ 2.] Kimberly and Todd were married on May 13,1989. Their son, Andrew Kris-tian, was born on July 19, 1989. Andrew has been disabled since birth due to cerebral palsy and a seizure disorder. Kimberly and Todd divorced on May 10, 1993, at which time Kimberly was awarded full custody of Andrew under a stipulated agreement and subject to Todd’s visitation rights.
[¶ 3.] The stipulated agreement called for Todd to continue paying child support per the terms specified as long as Andrew “is dependent or until further order of the court.” It also required the parties to exchange income information annually and for Todd to provide proof of $200,000 in life insurance maintained for Andrew’s benefit. In addition, the agreement called for Kimberly to claim Andrew as a depen-dant for income tax purposes in odd numbered years and Todd to claim him in even numbered years. Under the terms of the original stipulated agreement, Todd was required to pay $516 per month in basic child support per the support schedule in
The parties further agree that in addition to the basic child support obligation which is set by the schedule found atSDCL 25-7-6 .2, Todd will pay an additional $100 per month as support. Todd also agrees to pay an additional $55 per month in recognition of the special needs his son has for transportation. Said additional $55 per month payment shall continue to be made each month until the van in which Kim now transports Andrew is paid in full or October 28, 1997.
[¶ 4.] In 2001, Kimberly contacted Todd to inform him that due to changes in circumstances and Andrew’s enrollment in a specialized school in Sioux Falls, South Dakota, with tuition paid by public funds, any dollar amount over $300 per month received by Kimberly would have to be forwarded to the State. Therefore, she proposed a reduction from the original $676 child support obligation to $300. In June 2001, the parties signed a modification to the child support agreement thereby incorporating the new amount.
[¶ 5.] Currently, Andrew is fifteen years old and weighs sixty-five pounds. His disability requires him to have extensive care and assistance with activities of daily living. Andrew must be fed, dressed and diapered daily, as well as requiring
[¶ 6.] Kimberly and Andrew have lived in Watertown, South Dakota, since 1993. Kimberly works as an occupational therapy assistant, and is remarried. Todd has lived in Longmont, Colorado, since before the divorce and is now remarried. He sees Andrew approximately once a year for a visit. Todd has not seen Andrew since 2003 and has made no recent contact with Andrew’s school or caregivers.
[¶ 7.] Andrew attends school at Children’s Care Hospital in Sioux Falls during the school year and during summer session. He remains in Sioux Falls at the school from Monday morning to Friday afternoon each week school is in session. Kimberly drives him to Sioux Falls each Monday mоrning that school is in session and returns on Friday afternoons to take him back to Watertown for the weekend. Andrew is home in Watertown every weekend from Friday night until Monday morning, during school holidays, and during summer break. Thus, Andrew lives with Kimberly slightly more than fifty percent of the year.
[¶ 8.] Kimberly has been for the last fifteen years, and continues to be, Andrew’s primary caregiver at home. She attends to his medical needs, coordinates and arranges for his care when she is at work, and attends all his medical appointments. She often uses her vacation time from work to attend to Andrew’s needs and, on occasion, has had to take leave without pay due to Andrew’s medical needs. Kimberly and her husband have made numerous adaptations to their home to provide better care for Andrew. They recently installed a lift system and bathtub in Andrew’s room and have built a wheelchair ramp outside their home.
[¶ 9.] Kimberly’s parents have provided care for Andrew when he is home on school breaks and Kimberly is at work. Her parents have provided the care without charge. Due to their ages and her father’s recent retirement, Kimberly anticipates having to hire caregivers in the near future to administer medication and meet Andrew’s complex physical needs while he is home and she is at work. The cost of the care was estimated at $2,400 per year by Kimberly at the hearing.
[¶ 10.] Andrew’s disability requires Kimberly to use a van equipped with a lift and lock-down system to transport him from Watertown to Sioux Falls each week for school, tо medical appointments, and to recreational outings. The van is used exclusively for Andrew’s transportation, not for Kimberly or her family’s use. Kimberly has purchased two vans since the divorce. She replaced the original van with a used van with high mileage in January 2004, but it has been expensive to operate and must be replaced. Based on Kimberly’s knowledge of Andrew’s limitations and needs for his future growth, including additional headroom, at the time of the hearing Kimberly planned to trade in the current vehicle and purchase a new van in the near future. The total cost was estimated at approximately $35,654, but after trade in of the current vehicle and lift system and rebates, the sum of $30,075 needed to be borrowed to pay for the new van. Kimberly’s monthly payment was scheduled to be $507.66.
[¶ 12.] On December 15, 2004, a hearing on the matter wаs held. After testimony from both Kimberly and Todd, the trial court held that Todd’s child support obligation per
[¶ 13.] The trial court also found that Andrew’s special health care needs required the purchase of a new van and lift system, and ordered an upward deviation of $380 per month for the cost of the new van and lift system. Based on Kimberly’s documentation, the loan for the new van was scheduled to be paid in full on February 1, 2011. The trial court ordered Todd to make the $380 monthly payment through the life of the loan until it was paid in full on February 1, 2011.
[¶ 14.] Todd’s total child support payment was set at $869 per month, which included $345 in basic child support plus the upward deviations of $144 for paid caregivers and $380 for the van payment. The trial court ordered that the $345 in basic child support and the $144 upward deviation for paid caregivers was effective December 1, 2004, and was to be paid to the Office of Child Support Enforcement “[b]eginning March 1 and on the 1st day of each month thereafter!.]” Thé .trial court did not specify a time for the expiration of this portion of Todd’s child support obligation, but noted with regard to the monthly $380 van payment “there has to be a mechanism for closing that off, if it is a four year [loan] I think it ought to be for four years.even though the child is going to be 18 and probably the child support obligation will end, but the moral obligation.doesn’t end.” i
[¶ 15.] Finally, the trial court awarded Kimberly $750 of the $1;128 in attorney fees she incurred to bring the motion to modify the divorce decree. The trial court found a portion of Kimberly’s attorney fees were incurred due to Todd’s failure to timely comply with the requirement in the divorce decree to provide the income and insurance information after numerous requests.
[¶ 16.] Todd appeals the following issues:
1. Whether the trial court erred when it calculated Todd’s net monthly income.
*76 2. Whether the trial court erred in calculating Todd’s child support obligation when it included upward deviations for the purchase of a van and paid caregivers for Andrew.
3. Whether the trial court erred when it failed to provide Todd with a credit for overpayments in vehicle and medical payments previously made to Kimberly.
4. Whether the trial court erred when it failed to comply withSDCL 25-5-18 .1 and specify the termination date of Todd’s child support obligation.
5. Whether the trial court erred when it awarded Kimberly attorney fees.
[¶ 17.] Both parties request attorney fe§s for the appeal currently before this Court per the provisions of
STANDARD OF REVIEW
[¶ 18.] We review the trial court’s award or denial of child support under the abuse of discretion standard. Midzak v, Midzak,
[¶ 19.] We review the trial court’s findings of fact under the clearly erroneous standard. Johnson,
ANALYSIS AND DECISION
[¶20.] 1. Whether the trial court erred when it calculated Todd’s net monthly income.
[¶ 21.] A parent’s net monthly income for child support purposes is determined under
The monthly net income of each parent shall be determined by the parent’s gross income less allowable deductions, as set forth herein. The monthly gross income of each parent includes amounts received from the following sources:
(1) Compensation paid to an employee for personal services, whether sala*77 ry, wages, commissions, bonus, or otherwise designated!].]
[¶ 22.] Todd failed to provide Kimberly with his income information as required by the stipulated agreement. He did provide a copy of his 2003 W-2 on the morning of the hearing, which indicated his wages for 2003. During Todd’s direct examination, the following testimony was given:
Q. Todd, how are you employed?
A. I’m employed with Lockheed as a systems engineer.
Q. And is that — are you salaried or are you paid hourly?
A. I’m salary.
Q. What is your salary for this year?
A. I think it’s approximately $84,000.
Todd’s 2003 W-2 was then entered into evidence, which indicated his salary for 2003 was $75,785. During cross-examination, Todd was asked if his current salary was $84,000. Todd responded: “I’d have to look at the W-2 but it’s probably 83.” Todd also stated his annual salary increases were only a percentage or two at the most.
[¶ 23.] On appeal, Todd contends the trial court erred when it found his annual gross income to be $84,000 and his monthly gross income to be $7,000. He argues the amount should have been determined using his 2003 W-2, resulting in an annual gross income figure of $76,000 and a monthly gross income figure of $6,333.33. Without citing any authority, Todd contends the trial court erred when it failed to base Todd’s net monthly income on actual earned income received by Todd as evidenced by his 2003 W-2.
[¶ 24.] The trial court based its finding of fact as to Todd’s annual income on Todd’s testimony. The trial court was not required to base its finding of fact solely on wages as evidenced by the 2003 W-2 when competent evidence existed in the record to support a dеtermination of 2004 wages. Todd testified his 2004 salary was either. $84,000 or $83,000 and that his monthly salary might differ by one, to two percent due to shift differentials,/-Therefore, there was sufficient evidence in the record for the trial court to find Todd’s current salary was $84,000.
[¶ 25.] Todd next argues that the trial court erred when it failed to consider the higher cost of living in Colorado. Todd cites to Johnson, 468 N.W.2d at 651, for the proposition that the trial court should have considered the higher cost of living in Colorado as compared to South Dakota. Todd entered no evidence into the record at the hearing to support his claim. Rather, in the Defendant’s proposed findings of fact and conclusions of law, which were ultimately refused by the trial court, finding of fact number thirteen stated: “There is а cost-of-living difference between Wa-tertown, South Dakota[,] and Longmont, Colorado. One Hundred Thousand Dollars ($100,000) in Watertown, South Dakota!],] has been compared to One Hundred Eighteen Thousand Dollars ($118,000) in Longmont, Colorado.”
[¶ 26.] In Johnson, this Court stated:
As to father’s- contentions concerning the higher costs of-living in California, we note that these are mere conclusory assertions without evidentiary support in the record. However, while recognizing that father’s assertions may have merit, we note that father fails to mention that not only was an increase in costs of living occasioned by his move to California but so too was a $7,000 to $8,000 per year increase in his wages for similar work. Thus, while father might suffer the detriment of higher costs of living in California, he also gains the benefit of а higher wage scale to offset those costs.
[¶ 27.] The same reasoning applies in the instant case. There is no
[¶ 28.] 2. Whether the trial court erred in calculating Todd’s child support obligation when it included upward deviations for the purchase of a van and paid caregivers for Andrew.
[¶ 29.]
Van Purchase
[¶ 30.] Todd argues the trial court abused its discretion when it ordered an upward deviation of his child support obligation for the purchase of a van for Andrew. Todd contends the trial court sua sponte provided Kimberly with the deviation for the purchase of a new van. He attempts to characterize her testimony at the child support hearing as merely an expression of her concerns over the van. Todd then argues that Kimberly’s need for a vehicle is no different than any other parent’s need for a vehicle for family transportation, analogizing the need for a larger van to accommodate Andrew’s growth to that of “any other mother’s need to have a van so as to accommodate more of a child’s friends.” Todd then argues the trial court abused its discretion when it failed to consider that Kimberly’s decision to purchase a Chevrolet van, instead of a Volkswagen van, rendered obsolete the lift and lock-down system previously purchased by Todd’s family. Finally, Todd argues that a vehicle is not a necessary or special need within the meаning of
[¶ 31.] Kimberly instituted the proceedings for two purposes, first, to modify the child support obligation and second, to change the divorce decree to allow her to claim Andrew as a dependant in each tax year. At the hearing, Kimberly testified to the need for a new van for Andrew’s transportation due to the age of the current van, the travel to and from Andrew’s school in Sioux Falls, and Andrew’s physical growth. Todd’s claim that the trial court sua sponte provided Kimberly with the upward deviation for the van is without merit.
[¶ 32.] Todd’s arguments that a vehicle is not a special need within the meaning of
Paid Caregivers
[¶ 33.] The circuit court’s order included an upward deviation from the basic child obligation for paid caregivers for Andrew while he is in Kimberly’s home and she is at work. The circuit court found the annual cost of paid caregivers to be $2,400 and ordered Todd to pay $144 per month for the upward deviation.
[¶ 34.] Todd argues that Kimberly would be unjustly enriched by the upward deviation ordered by the trial court for the paid caregivers. Todd contends that Kimberly testified only that she may incur such expenses, that she offered no evidence as to the cost and number of hours of care required, and that he should not be required to pay these expenses until such time that they are incurred.
[¶ 35.] Todd again mischaracter-izes the record. Kimberly testified at length as to how the age of her parents and her father’s impending retirement would preclude them from caring for Andrew on- a regular basis as they have for the past fifteen years. Kimberly’s mother is sixty-five years old and is no longer physically able to lift Andrew by herself and transfer him to and from his wheelchair. Kimberly’s father is seventy years old and semi-retired. In addition, Kimberly testified that the hourly rate she would need to pay suitable caregivers would range from eight to ten dollars per hour and that she would be seeking a nursing student with some medical training and skills due to Andrew’s complicated medication regimen. She also testified the care would be requirеd during the six-week summer break and over the Christmas and holiday breaks when Kimberly was scheduled to work. Kimberly testified the annual cost of the care provider would be $2,400 given the rate and the number of hours of care needed.
[¶ 36.] Todd did not offer any evidence at the hearing to support his contention on appeal that Kimberly would be unjustly enriched by his payment for caregivers .until such time as the expenses are actually incurred. Nor does Todd offer any authority for his proposition that he should not have to pay the expenses until they are actually incurred. Todd cites to Juttel-stad,
[¶ 38.] The trial court did not abuse its discretion when it included an upward deviation in the child support obligation for the purchase of a van and for paid caregivers. There is ample evidence in the record to support the deviations, and deviations for both are permitted under the statutory scheme.
[¶ 39.] 3. Whether the trial court erred when it failed to provide Todd with a credit for alleged overpay-ments in vehicle and medical payments previously made to Kimberly.
[¶ 40.] Todd claims the trial court erred when it failed to ordеr a credit or reimbursement for his alleged overpay-ments of van payments for the original van and child medical expense payments. Todd ■ claims Kimberly had been unjustly enriched by his overpayments.
[¶ 41.] It is well settled in South Dakota that a modification cannot be made to past-due child support payments, except for those payments that accrue during the time of a pending modification petition. Juttelstad,
Van Overpayments
[¶ 42.] Todd argues he overpaid Kimberly $55 per month for the purchase of a
[¶ 43.] In the instant case, Kimberly testified at the hearing that she continued to accept the $55 per month after the first van was paid off and used the money toward the рurchase of the second van required for Andrew’s transportation and other transportation expenses such as repairs and maintenance for the van. Todd did not testify at the hearing to the issue of the $55 overpayment. Todd testified at the hearing in support for his contention that he should not have to provide additional funds toward the purchase of a new vehicle and that Kimberly was already reimbursed for repairs, maintenance, and wear and tear on the vehicle by the state, as she received mileage reimbursement for the weekly trips from Watertown to Sioux Falls. Todd included the credit or reimbursement for the alleged $2,420 overpayment in his proposed findings of fact and conclusions of law that were ultimately rejected by the trial court. Todd contends Kimberly was unjustly enriched by the $55 payment as she no longer had any vehicle expenses from October 1997 to June 2001.
[¶ 44.] The upward deviation of $55 for the van payment was not a part of the original child support obligation as determined by using the schedule in
[¶ 45.] However, in order to reсover, Todd must show that Kimberly was unjustly enriched by the overpay-ments. See Juttelstad,
[¶ 46.] For Todd to establish that Kimberly was unjustly enriched at his expense, he must show Kimberly received a benefit to which she was not entitled. He then must show that Kimberly was cognizant of the benefit and that her retention of the benefit without reimbursing Todd unjustly enriched her.
[¶ 48.] The trial court rejected Todd’s proposed findings of fact and conclusions of law wherein he addressed the issue of the overpayment. No specific finding of fact was entered by the trial court on this issue. However, the facts in the record indicate that Kimberly was not unjustly enriched by the retention of the $55 per month from October 1997 to June 2001, as she incurred substantial and legitimate expenses for Andrew’s transportation above and beyond the mileage reimbursement and the alleged $2,420 overpayment. The trial court did not abuse its discretion in refusing to order Kimberly to reimburse or credit Todd for the alleged overpayment.
Medical Overpayments
[¶ 49.] Todd contends he overpaid Kimberly $100 per month in medical care expenses from January 1996 to June 2001, for a total of $9,020. Todd argues the overpayment occurred when Andrew transitioned from Todd’s insurance to Medicaid in 1995. Todd argues at that time all of Andrew’s medical expenses began being covered by Medicaid, thus eliminating the need for the $100 per month upward deviation under the terms of the original stipulated agreement.
[¶ 50.] Todd mischaraeterizes the nature of the additional $100 above the basic child support amount in the original stipulated agreement. The language of the agreement provided Todd would pay an additional $100 as support due to Andrew’s special needs. The language did not limit the additional $100 to medical expenses not covered by insurance. That subject was specifically addressed in another portion of the stipulated agreement wherein Todd agreed to pay for seventy-six percent of any uncovered medical expenses and Kimberly agreed to pay for twenty-four percent of such expenses. More importantly, the additional $100 did not have an expiration date attached to it as did the upward deviation for the van payment. Therefore, Kimberly did not receive monies from Todd to which shе was not entitled under the terms of the stipulated agreement. Based on the evidence in the record, the trial court did not err when it failed to order Kimberly to reimburse or credit Todd with $9,020 in alleged overpayments.
[¶ 51.] 4. Whether the trial court erred when it failed to comply with
[¶ 52.]
The parents of any child are under a legal duty to support their child in accordance with the provisions of § 25-7-6.1, until the child attains the age of eighteen, or until the child attains the age of nineteen if the child is a full-time student in secondary school.
In Birchfield v. Birchfield,
[¶ 53.] Ordinarily, we do not address a question on appeal that was not before the trial court. State v. Hays,
[¶ 54.] In the instant case, the trial court did not impose an absolute duty upon Todd to support Andrew beyond the age specified in
[¶ 55.] The issue of whether the trial court could impose an obligation for child support beyond the age of eighteen as specified in
[¶ 56.] The trial court ordered Tоdd to pay the $380 monthly child support payment for the purchase of the van until the van was paid in full. The estimated payoff date for Kimberly’s loan is February 1, 2011. Given that Andrew was born on July 19, 1989, he will be eighteen years old on July 19, 2007. In effect, the trial court ordered Todd to pay this portion of the child support payment up until Andrew is twenty-two years of age.
[¶ 57.] Kimberly argues the language of the stipulated agreement entered into by the parties in 1993 controls this issue. It provides in relevant part: “that Defendant’s obligation for payment of child support shall continue as long as Andrew Kristian Jacobsen is dependent or until further Order of the Court.” Kimberly argues that the meaning of the word “dependent” is in reference to Andrew’s physical and mental disability, which will require continued care throughout his adult years, rather than his attainment of the age of majority.
[If 58.] We remand this issue to the trial court in order to fully develop the record and allow each party to present evidence and argument as to the termination date of the child support obligation. If the trial court holds that Todd’s child support obligation terminates per
[¶ 59.] 5. Whether the trial court erred when it awarded Kimberly attоrney fees.
In determining whether one party should be required to pay another par*84 ty’s attorney fees, we will consider the property owned by each party; their relative incomes; whether the requesting party’s property is in fixed or liquid assets; and whether either party unreasonably increased the time spent on the case.
Johnson,
[¶ 60.] Applying the factors above, and considering the facts of the case before us, we do not find that the trial court erred when it found that a portion of Kimberly’s attorney fees were the result of Todd’s unwillingness to comply with the requirement to produce proof of insurance and income after multiple requests. Providing Kimberly with the required information on the morning of the hearing did not eliminate the attorney hours and fеes she incurred to prepare the various requests and file the motion to compel.
Appellate Attorney Fees
[¶ 61.] Kimberly and Todd both filed separate motions for appellate attorney fees accompanied by itemized statements of expenses. In view of the above, we award Kimberly the full amount of appellate attorney fees she requested, $3,727.
[¶ 62.] We affirm on Issues 1, 2, 3, and 5 and remand Issue 4 to the trial court for a determination of the meaning of the word “dependent” in the original stipulated agreement and its effect on the termination of the upward deviation from the basic child support obligation for the van payment.
Notes
. Kimberly argues on appeal that Todd waived this issue, as his proposed findings оf fact and conclusions of law included an upward deviation for a van payment but at a lower dollar amount. Despite what appears at first glance as a waiver of this issue, Todd objected to the inclusion of any upward deviation for a van payment when he opposed its inclusion in Kimberly's proposed findings of fact and conclusion of law. Therefore, we address the issue of the upward deviation for the van.
.
. In Juttelstad, the child care expenses were labeled an upward deviation.
.
Deviation from the schedule in § 25-7-6.2 shall be considered if raised by either party and made only upon the entry of specific findings based upon any of the following factors:
(1) The income of a subsequent spouse or contribution of a third party to the income or expenses of that parent but only if the application of the schedule works a financial hardship on either parent;
(2) Any financial condition of either parent which would make application of the schedule inequitable. If the total amount of the child support obligation, including any adjustments for health insurance and child care costs, exceeds fifty percent of the obligor's monthly net income, it shall be presumed that the*81 amount of the obligation imposes a financial hardship on the obligor. This presumption may be rebutted based upon other factors set forth in this section;
(3) Any necessary education or health care special needs of the child;
(4) The effect of agreements between the parents regarding extra forms of support for the direct benefit of the child;
(5) The obligation of either parent to provide for subsequent natural children or stepchildren. However, an existing support order may not be modified solely for this reason; оr
(6) The voluntary act of either parent which reduces that parent’s income.
Concurrence Opinion
(concurring in part and dissenting in part).
[¶ 65.] I concur except as to Issue 4, where I dissent. Kimberly argues that the meaning of the word “dependent”, is in reference to Andrew’s physical and mental disability, which will require continued care throughout his adult years. I agree and it is a mistake to give Todd “a second bite of the apple.”
[¶ 66.] Unfortunately, Andrew’s physical and mental disability is permanent and he will always be “dependent” for life, family, medical and financial support. In this context, the stipulated agreement requiring Todd’s obligation for payment of child support, which shall continue “as long as Andrew[ ] is dependent or until further Order of the Court,” is clear. We should remand Issue 4 to be enforced, not to be interpreted.