APPEAL FROM THE CIRCUIT COURT OF THE THIRD JUDICIAL CIRCUIT CODINGTON COUNTY, SOUTH DAKOTA. HONORABLE RONALD K. ROEHR Judge.
The opinion of the court was delivered by: Sabers, Retired Justice
CONSIDERED ON BRIEFS ON NOVEMBER 3, 2008
[¶1.] Joe Trautner was awarded temporary custody of his two children on April 28, 2006, and his child support obligation to Christi Mack (f/k/a Christi Sturm) was terminated, effective April 30, 2006. On July 14, 2006, the circuit court awarded Joe legal and physical custody of his children. One year later in July 2007, Joe filed a petition to modify child support, requesting not only current and future child support from Christi, but also back child support for the period of May 2006 to July 2007. After the referee informed him that past child support would not be considered, Joe waited until December 5, 2007, to file his claim with the circuit court for back child support. The circuit court granted Joe's request and ordered Christi to pay $6,150 in back child support. Christi appeals, claiming the circuit court retroactively modified her child support obligation and that res judicata barred Joe's claim. We agree Joe's claim is barred by res judicata, and accordingly reverse and vacate the circuit court's judgment.
[¶2.] Joe and Christi were never married, but had two children together: a son born January 23, 1996, and a daughter born April 7, 1997. After their relationship ended in 1997, Christi was granted primary custody of the children, subject to Joe's rights of reasonable visitation, and Joe was ordered to pay $475 per month in child support. In July 2003, Joe's child support obligation was modified to $230 per month, effective September 1, 2003.
[¶3.] In July 2005, Joe filed a motion for physical custody of the children. A custody evaluation was ordered, and Bradley D. Woldt, Ph.D., was appointed to complete the evaluation. Over the next several months, Christi failed to cooperate with Dr. Woldt. On April 10, 2006, Dr. Woldt informed the parties that he refused to proceed with the evaluation due to Christi's noncompliance. On April 20, 2006, Joe filed a motion for Christi to be found in contempt of court, and he again moved for a change of custody. A hearing was held on April 28, 2006, before Circuit Court Judge Ronald K. Roehr. Judge Roehr found Christi in contempt of court and ordered her to jail until she purged herself of contempt by cooperating with the custody evaluator. Joe was awarded temporary custody of the children, and in an interim order dated May 17, 2006, Joe's monthly child support obligation of $230 per month was terminated, effective April 30, 2006.
[¶4.] On May 5, 2006, the court appointed Gabriel J. Mydland, Ph.D., to conduct the custody evaluation. Christi was again uncooperative. Dr. Mydland sent Judge Roehr a letter dated June 9, 2006, informing him of Christi's noncompliance.
[¶5.] On June 12, 2006, Joe filed another motion for contempt against Christi for failing to cooperate and complete the custody evaluation with the new evaluator. Joe also moved for permanent custody of the children. The motions were heard on July 7, 2006. Thereafter, the court entered an amended interim order dated July 14, 2006, which recognized that Christi was already in contempt of court, and further granted legal and physical custody of the children to Joe even though the custody evaluation had not yet been completed. At this time, Joe did not request nor did the circuit court establish a child support obligation for Christi.
The resulting order was never appealed.
[¶6.] One year later on July 14, 2007, Joe filed a petition to modify child support with the Office of Child Support Enforcement. A hearing was conducted on August 7, 2007. Joe requested both back child support from May 2006 to July 2007, as well as current and future child support. The referee informed Joe that she was only considering current and future child support, and that he would need to make his claim for past child support with the circuit court. The referee thereafter established Christi's child support obligation at $410 per month, effective August 1, 2007. Neither party appealed the recommendation, and it was accepted by the circuit court in its order dated August 31, 2007. Joe never appealed this order.
[¶7.] On October 25, 2007, the custody evaluation report was issued. In it, Dr. Mydland recommended that the amended interim order granting permanent custody to Joe be made permanent.
[¶8.] On December 5, 2007, Joe filed a motion with the circuit court to again establish child support for the May 2006 through July 2007 period. Two months later, Joe and Christi entered into a parenting stipulation which provided for joint legal custody between them, and vested primary physical custody and decision-making authority in Joe. Judge Roehr signed an order dated February 8, 2008, directing the parties to follow the parenting stipulation.
[¶9.] On February 12, 2008, the court considered the issue of back child support. Judge Roehr found that the May 17, 2006 interim order terminated Joe's child support obligation to Christi, but failed to establish a child support obligation for Christi for the May 2006 through July 2007 period. Christi argued that SDCL 25-7-7.3 prohibited retroactive modification of the May 17, 2006 order. Joe countered this argument by claiming that the court would not be modifying an order, as there was no order in place. He explained that his motion was to establish a child support obligation for Christi. Judge Roehr agreed with Joe and entered a judgment of $6,150*fn1 on February 21, 2008, against Christi for back child support. On February 27, 2008, Christi filed a motion to reconsider pursuant to SDCL 15-6-59(a), claiming this judgment was barred by res judicata. Her motion was denied on April 9, 2008. Christi appeals the judgment to this Court, asserting the ...