APPEAL FROM THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT MCCOOK COUNTY, SOUTH DAKOTA THE HONORABLE TIMOTHY W. BJORKMAN Judge
The opinion of the court was delivered by: Konenkamp, Justice
CONSIDERED ON BRIEFS ON MAY 21, 2012
[¶1.] A father petitioned to modify his child support obligation, requesting that his future payments be reduced to account for overpayments he made after his two eldest sons graduated from high school and reached the age of majority. Concluding that this request would result in a retroactive modification of child support in violation of SDCL 25-7-7.3, the referee denied any reduction for amounts overpaid before the petition was filed. The circuit court adopted the referee's report.
[¶2.] Nicole and Douglas Heumiller divorced on April 8, 2010. Incorporated into their judgment and decree of divorce was a stipulation and agreement addressing, among other things, Douglas's duty to pay child support for their three children. They agreed that Douglas "will pay to [Nicole] for the support and maintenance of the parties [sic] minor children $1,238.36 per month payable on the first day of every month. . . ." The agreement further provided:
said support shall continue until such child dies, is adopted, is emancipated or reaches the age of majority, whichever shall occur first. The parties understand that pursuant to South Dakota law, a minor child shall reach the age of majority on his/her 18th birthday or on the day following his/her final day as a full-time secondary student, whichever shall occur later, except that in no even [sic] shall the child support obligation continue past the 19th birthday of the minor child.
[¶3.] On September 20, 2011, Douglas petitioned for a modification of his child support obligation because his two older children had reached the age of majority and finished their final days as full-time secondary students. The oldest child had graduated from high school and reached the age of majority in May 2010. The second child had graduated from high school in May 2011, at eighteen years old. Because his eldest child reached the age of majority over a year earlier, and Douglas continued to pay the full child support amount for all three children, Douglas requested that the court reduce his future child support obligation for his youngest child to account for his overpayments.
[¶4.] After a hearing, the child support referee reduced Douglas's future child support obligation to $699 per month. But the referee refused to further reduce Douglas's obligation to account for the child support Douglas overpaid from May 2010. The referee relied on SDCL 25-7-7.3, which provides that "[a]ny past due support payments are not subject to modification . . . , except those accruing in any period in which there is a pending petition for modification of the support obligation. . . ." The referee ruled that Douglas's request for a future reduction to account for past overpayments was in effect a retroactive modification of past due support payments.
[¶5.] On appeal to the circuit court, Douglas argued that SDCL 25-7-7.3 did not apply to him because he owed no "past due" support. The circuit court ruled "that SDCL 25-7-7.3 does not apply only to cases in which there is past due support owing. It applies to any past due support payments without regard to whether those payments were made." It adopted the referee's proposed findings of fact and conclusions of law.
[¶6.] Douglas now appeals, asserting that the circuit court should have modified his current support obligation to account for the overpayment of his past child support. Because the question in this case requires our interpretation of SDCL 25-7-7.3, our review is de novo. See Arneson v. Arneson, 2003 S.D. 125, ¶ 27, 670 N.W.2d 904, 914.
[¶7.] Douglas asserts that SDCL 25-7-7.3 does not foreclose the reduction of his current support obligation to account for his overpayment of child support from May 2010, because none of those payments were "past due." According to Douglas, "past due" means that the payment was unpaid. See SDCL 25-7-7.4 (an "unpaid" support payment becomes a judgment). He likens overpaid child support payments to overpaid child care expenses. See Juttelstad v. Juttelstad, 1998 S.D. 121, ¶ 17, 587 N.W.2d 447, 451. He also argues that the parties' stipulation created a binding contract requiring a reduction of his obligation "when the two children graduated at 18."
[¶8.] Although we have consistently held that past child support payments are not subject to modification "except those accruing in any period in which there is a pending petition for modification of the support obligation," we have not specifically addressed whether SDCL 25-7-7.3 encompasses both paid and unpaid support obligations. The plain language of SDCL 25-7-7.3, however, shows that whether the support is paid or unpaid is immaterial. Our inquiry is whether the obligation has accrued. To conclude otherwise would require us to isolate the phrase "past due support payments" from the rest of SDCL 25-7-7.3. See Faircloth v. ...