SARAH J. WISEMAN, Plaintiff and Appellant,
CHARLES D. WISEMAN, Defendant and Appellee
Considered on Briefs: January 12, 2015.
As Amended April 27, 2015.
APPEAL FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT MINNEHAHA COUNTY, SOUTH DAKOTA. THE HONORABLE SUSAN M. SABERS, Judge.
RICHARD L. JOHNSON, Sioux Falls, South Dakota, Attorney for plaintiff and appellant.
CHRIS MCCLURE of Swier Law Firm, Prof. LLC, Sioux Falls, South Dakota and KAREN L. CREW of Crew & Crew, PC, Sioux Falls, South Dakota, Attorneys for defendant and appellee.
WILBUR, Justice. GILBERTSON, Chief Justice, SEVERSON, Justice, and KONENKAMP, Retired Justice, concur. ZINTER, Justice, concurs in result. KERN, Justice, not having been a member of the Court at the time this action was assigned to the Court, did not participate.
[¶1] Sarah Wiseman appeals the circuit court's ruling that Charles Wiseman's past due child support payments were not retroactively modifiable prior to May 2012. The circuit court denied Sarah's claim pursuant to SDCL 25-7-7.3, which prohibits retroactive modification of past due child support. We affirm.
Facts and Procedural History
[¶2] On November 17, 2008, the circuit court entered an order for child support wherein Charles would pay Sarah $2,140 per month for the benefit of the parties' three minor children. In July 2009, Charles petitioned the circuit court to modify the amount because he claimed his income had changed. The child support referee assigned to the case found
that Charles earned $40,000 annually or $3,333.33 per month from his company. In the referee's proposed findings of fact and conclusions of law filed on October 29, 2009, the referee stated, " No other company earnings are attributed to [Charles] at this time." The referee also said, " In the event the 2009 year-end [company] numbers show profit, [child] support will be recalculated at a future date to incorporate accurate 2009 figures, effective October 1, 2009." Finally, the referee's proposed order provided, " [C]hild support in this case may be modified retroactive to October 1, 2009, if future financial information from Charles Wiseman indicates that his income for the year of 2009 exceeded $40,000." The circuit court, the Honorable William J. Srstka, Jr. presiding, adopted the referee's order on January 4, 2010, which lowered Charles's child support obligation from $2,140 to $1,132 per month and incorporated the referee's findings of fact and conclusions of law, including the retroactivity provision. The circuit court's order pronounced, " This [o]rder shall amend and modify only the amount of the current child support obligation and shall not modify, amend, or otherwise affect any other provision of any prior judgment or [o]rder entered by any court or administrative agency."
[¶3] On May 10, 2012, Sarah petitioned the circuit court, the Honorable Susan M. Sabers presiding, for a modification of child support. The same child support referee was assigned, and on December 17, 2012, the referee again filed findings of fact and conclusions of law. The referee found that the circumstances of the parties had changed due to changes in their incomes. The referee stated in her findings, " The  order in this case includes an opportunity to modify the child support effective October 1, 2009. This was [Sarah's] request, due to the inaccuracies in [Charles's] income testimony at [the] previous  hearings." Sarah brought new information before the referee indicating that Charles had sold a house in 2009 for $103,000 more than what he had testified to at the 2009 hearing. Because Charles's income was greater than the $40,000 he had testified to in 2009 and the previous child support order contained a retroactivity provision, the referee ordered Charles to pay $2,140 per month starting October 1, 2009. Thus, the referee effectively ordered Charles to pay Sarah an additional $1,008 in child support per month since October 2009.
[¶4] Charles filed an objection with the circuit court on the grounds that the referee's order constituted an impermissible retroactive child support modification in violation of SDCL 25-7-7.3. The circuit court held a hearing on January 28, 2013. The court remanded the case to the referee " with a request that [the referee] review the extent of the retroactive modification, with supporting statutes and case law, and reconsider the date upon which the modification can be effective." On remand, the referee again held that Charles's child support was modifiable back to October 1, 2009, because the 2009 order contained a retroactivity provision. Charles again objected, and the circuit court held another hearing on December 19, 2013. The circuit court, per Judge Sabers, agreed with Charles and held the previous child ...