CONSIDERED ON BRIEFS ON AUGUST 28, 2017
FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT
PENNINGTON COUNTY, SOUTH DAKOTA THE HONORABLE MATTHEW M.
PATRICIA A. MEYERS Attorney for plaintiff and appellant.
J. GALBRAITH of Nooney & Solay, LLP Attorneys for
defendant and appellee.
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
and Procedural History
On May 31, 2011, Theresa and Arron Sigler divorced. The
parties had three children 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.
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.
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.
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.
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 ...