Todd v. Pochop
365 N.W.2d 559
S.D.
1985
Check Treatment

*1 TODD, Pochop Petitioner Marietta Appellant, Schmidt, Schroyer, Gary F. Colwill POCHOP, Respondent

Roger A Zinter, P.C., Gen., Sp. Atty. & Asst. Colwill Appelleе. Pierre, petitioner appellant. for No. 14578. Joseph Ellingson of E. Tobin Law Of- fices, P.C., Winner, respondent ap- Dakota. Supreme Court pellee. on Briefs Jan. Considered 20, FOSHEIM, Chief Justice.

This is our first encounter with the apрeal. issue raised whether pro failure or refusal to custodial vide a noncustodial rights may equitable dе be raised as Reciprocal Enforcement fense a Uniform (URESA) Support ch. action. SDCL 25-9A. The trial cоurt held that it was. We reverse. holding, do not deem a view our we particularly

full recitation of the facts rеle- say necessary. Suffice it to vant grievous parent engaged contemptuous times interference rights. appellee’s visitation ‍​‌​‌‌‌‌​​‌‌​‌​‌‌‌​​‌​​​‌​​‌‌‌​‌‌​‌‌‌‌‌​‌‌​​‌‌​‌‌‍interfer- of states hold that parent’s visitation ence with a noncustodial raised as a defense not be Ibach, See, e.g., Ibach v. action. (1979); Kline 123 Ariz. 600 P.2d 1370 Kline, Ark. 542 S.W.2d 499 Clearwater, (1976); Minnesota County of Pеtrash, P.2d 138 198 Colo. (1979); Washburn, 414 So.2d Washburn Vecellio, (Fla.App.1982); Vecellio (Fla.App.1975); People ex rel. 313 So.2d 61 Hendersоn, Ill.App.3d Argo v. Bene- Ill.Dec. (Iowa Beneventi, 185 N.W.2d 219 venti v. 1971); England, 337 N.W.2d England v. (Minn.1983); 31 N.C. Pifer, Pifer App. Kramer S.E.2d Pa.Super. Kelly, 265 Hoover, 271 S.C. Hoover v. ex rel. Hubbard v. State 683, 329 N.W.2d 202 10 Wis.2d supporting stated in ex ‍​‌​‌‌‌‌​​‌‌​‌​‌‌‌​​‌​​​‌​​‌‌‌​‌‌​‌‌‌‌‌​‌‌​​‌‌​‌‌‍rel. Hub- perhaps best State *2 § supra practice bаrd this N.W.2d stems 31 and 3 of 205: the are comparable which SDCL 25-9A-32 and SDCL 25-9A-2. very requires The of purpose the URESA it proeedurally substantively be and We recognize that few states allow of streamlined. Interstate enforcement custоdy collateral issues of and visitation support obligations impaired will be if be in raised a URESA e.g., action. Sеe visitation, custody, matters of or a custo- Hethcox, 430, Ga.App. Hethcox v. parent’s contempt by diаl are considered McLauchlin responding the court. The introduction McLauchlin, 275, 372 Mich. 125 N.W.2d of such collateral issues will burden the Morales, Jersey State New of Moreover, permit- URESA mechanism. App.2d 35 Ohio 299 N.E.2d 920 the ting family resolution of other mat- Daly, N.J.Super. Daly proceeding may ters a URESA deter (1956), 21 N.J. 123 A.2d 3 aff'd. persons invoking the URESA. compаre, but Brown v. Turn In State Wisconsin ex rel. bloom, Mich.App. 280 N.W.2d 473 of Chamberland, Southwell v. 349 N.W.2d (1979); McCoy McCoy, App.2d 53 Ohio (Minn.App.1984),the court stated (1977). We also note accepted “it principal is an that the Michigan expressly allowed these misconduct mother does affect of the where, ‍​‌​‌‌‌‌​​‌‌​‌​‌‌‌​​‌​​​‌​​‌‌‌​‌‌​‌‌‌‌‌​‌‌​​‌‌​‌‌‍issues to raised as the be case duty support the father’s In child. us, the state is also the deed, nigh absolute, duty is well See, state of Springs divorce. Watkins v. ordinаrily complied support order must be teen, Mich.App.. 301 N.W.2d 892 place with if the even the actions of wife (1981). Moreover, contempt her in of court.” in We have both majority considered the enacting legislature the could not minority views and conclude that prosecuting have intended that the state’s sound majority reasоns the attorney private into be transformed at extreme, allowing rule. Carried to an the representing tоrney the client a divorce visitation defense would mean that if the proceeding custody where visitatiоn and is visitation violations were Beneventi, sues are raised. Beneventi v. flagrant enough, constant and the child (Iowa 1979). 185 N.W.2d 219 par- would allowed to starve while the majority congruous The ents their continued battles. This we cаn- authority holding Dakota fa not countenance. may ther support pay not withhold child A defendant in a URESA аction “extrajudicial ments method ob of custody must raise visitation and matters taining privileges.” Otten Ob proceeding in a separate in the state of ten, (S.D.1976). 245 N.W.2d judgment divorce. The below is reversed supported statute, by аlso our 25- proceedings and remanded for further con 9A-24, provides, “The determination opinion. sistent with enfоrcement of a owed obligee by any to one unaffected inter is MORGAN, JJ., WOLLMAN and obligee rights ference anоther WUEST, Judge, Acting Circuit as a Su- custody granted by or visitation a court.” preme Justice, Court concur. Appellеe’s argument regarding the statuto ry “obligee” definition of is without merit. HENDERSON, J., specially concurs. majority recognizе also courts HENDERSON, (specially Justice concur- change ring). payments amount of support based True, ability the needs of the child and of the recog- of courts do not noncustodial custody See 31 A.L. nize frustration оf and visitation R.4th authority as a defense to a URESA action. recog- However, majority of courts also сhange responding court can

nize that the TEMPLE, L. Judith Plaintiff i.e., support, Appellee, payments, on the authority it. This present facts before provisions contained said to come from TEMPLE, Douglas L. Defendant 25-9A-2, *3 in SDCL 25-9A-32 Appellant. §§ comparable to 31 and 3 of are Nos. 14310. An respectively. excellent anno- very point tatiоn is contained in 31 on this Supreme ‍​‌​‌‌‌‌​​‌‌​‌​‌‌‌​​‌​​​‌​​‌‌‌​‌‌​‌‌‌‌‌​‌‌​​‌‌​‌‌‍Court of South Dakota. thereof, page on A.L.R.4th 347 it is stated: Considered on Briefs Mаrch Act, construing several taken the view that a court courts have

acting court in a URESA prevented enter-

proceeding is not

ing order different ordered, previously

that on that the basis prospectively

such an award is' effective

only, nullifying court and thus the is not prior superseding the order within provision.... In such

meaning of the

cases, pro- have the courts reasoned that novo, the Act de

ceedings under are court the author-

ity independent to make an determination

regarding on conditions, existing

presently the Act to

remedies under are addition any substitution for other

rеmedies, contemplates support may one order more than given outstanding any for the time (Footnоtes omitted.) obligation.

same I Hypothetically, suggesting ‍​‌​‌‌‌‌​​‌‌​‌​‌‌‌​​‌​​​‌​​‌‌‌​‌‌​‌‌‌‌‌​‌‌​​‌‌​‌‌‍am not Minnesota,can change

our sister State of of a terms decree issued New A in the State of York. trial

judge, acting right under has a practicality equity

breathe into the sit-

uation which confronts him in the court- hearing

room. A judge should be

permitted open keep mind in the

hearing; otherwise, ring there is no of real-

ity brought facts the economic right

him. and He has the to careful-

ly listen to and deliberate evidence Then, obligation

submitted to him. just support considering

to set

the needs of the children and the absent

parent’s ability See Olson Ol-

son, (Mo.App.1976). S.W.2d