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Sigler v. Sigler

Supreme Court of South Dakota

December 13, 2017

THERESA SIGLER, Plaintiff and Appellant,
v.
ARRON SIGLER, Defendant and Appellee.

          CONSIDERED ON BRIEFS ON AUGUST 28, 2017

         APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY, SOUTH DAKOTA THE HONORABLE MATTHEW M. BROWN Judge

          PATRICIA A. MEYERS Attorney for plaintiff and appellant.

          ROBERT J. GALBRAITH of Nooney & Solay, LLP Attorneys for defendant and appellee.

          KERN, JUSTICE

         [¶1.] At the time of their divorce in May 2011, Arron and Theresa Sigler stipulated that Theresa would have primary physical custody of their child T.S. In March 2016, Arron filed a motion for joint custody of T.S., a visitation schedule, and a shared parenting child support cross-credit under SDCL 25-7-6.27. The circuit court granted Arron joint custody and the cross-credit because T.S. resided with Arron seven out of every fourteen days. In making this decision, the court found that application of the cross-credit would not have a "substantial negative effect" on T.S.'s standard of living and that Theresa's budget showed she lived beyond her means. The circuit court reduced Arron's net monthly child support payment from $442 per month to $25 per month. Theresa appeals, arguing the circuit court made erroneous findings of fact and abused its discretion by granting the cross-credit. We reverse and remand for further proceedings.

         Facts and Procedural History

         [¶2.] On May 31, 2011, Theresa and Arron Sigler divorced. The parties had three children[1] and agreed by stipulation that primary physical custody of J.S. (born October 1, 1999) would go to Arron and Theresa would take primary physical custody of T.S. (born March 5, 2004). The court ordered Arron pay $361 per month in child support to Theresa.

         [¶3.] Following the divorce, Theresa had another child, J.F. J.F.'s father is obligated to pay $630 in child support payments per month but is more than $11, 000 in arrears. On January 23, 2015, Theresa filed a petition to modify child support, and on February 27, 2015, the parties appeared telephonically before the court-appointed referee Lee Ann Pierce (Referee) for hearing on the petition. Theresa sought an upward deviation due to costs associated with raising J.F., who was then seventeen months old. In response, Arron requested a downward deviation of his child support obligation, citing the fact that T.S. now resided with him approximately 50% of the time.

         [¶4.] The Referee determined that "[c]ircumstances [had] changed substantially since the entry of the previous order in that the parties' incomes [had] changed." In analyzing whether to deviate downward from that number, the Referee examined the gross incomes and respective financial conditions of the parties. Arron earned approximately $83, 911 per year with an adjusted monthly gross income of $4, 600 and contributed $490 per month toward his retirement accounts. Theresa earned approximately $25, 980 per year with an adjusted monthly gross income of $1, 789, and she made no contributions toward retirement. The Referee found that the parties' combined adjusted gross income totaled $6, 389, with Theresa contributing 28% and Arron contributing 72%. The Referee identified that two children were to be supported and that the child support obligation of the parties for each child was $1, 068.

         [¶5.] The Referee then calculated that Theresa should pay $299 per month in child support for J.S. based on her 28% share and that Arron should pay $769 per month in child support for T.S. based on his 72% share. The Referee declined to deviate upward despite Theresa having another child, J.F., in her care. Likewise, the Referee declined to deviate downward even though T.S. spent approximately seven out of every fourteen nights with Arron. The Referee also considered the parties' disparate incomes. Pursuant to SDCL 25-7-6.16, the Referee credited Arron with $28 of Theresa's pro rata share of the cost of the children's health insurance, leaving Arron with an obligation of $442 per month. Arron appealed the Referee's decision to the circuit court. On June 8, 2015, the circuit court affirmed, adopting the Referee's findings of fact and conclusions of law.

         [¶6.] On March 27, 2016, Arron filed a motion for change of child custody, support, and visitation. Arron sought to formalize the parties' arrangement because at the time of the motion, T.S. divided her time equally between her parents. Arron requested that the circuit court order a shared-parenting custody arrangement and apply a shared parenting child support cross-credit under SDCL 25-7-6.27, which provides in part:

If a custody order by the court, contains a detailed shared parenting plan which provides that the child will reside no less than one hundred eighty nights per calendar year in each parent's home, and that the parents will share the duties and responsibilities of parenting the child and the expenses of the child in proportion to their incomes, the court may, if deemed appropriate under the circumstances, grant a cross credit on the ...

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