O'Grady v. O'Grady

MILLER, Chief Justice

(dissenting),

[¶ 34.] For the reasons set forth below, I would affirm the decision of the trial court. Therefore, I respectfully dissent.

[¶ 35.] First, the majority once again misinterprets our holding in Radigan. See Houser, 535 N.W.2d at 886-87 (Miller, C.J., dissenting). In Radigan, the decree specifically ordered that the father pay $750 per month in child support “until both children reach the age of majority or until further Order of-the Court.” 465 N.W.2d at 485 (emphasis added) (internal quotations omitted). In contrast, the parties in the present case stipulated, and the trial court ordered that:

James O’Grady will pay Vera O’Grady the sum of $469.00 per month, as and for child support, said payments to commence on January 1, 1993, and payable on the 1st day of each and every month thereafter until the minor children reach the age of nineteen (19) or graduate from high school, whichever occurs first[.]

[¶ 36.] In this case, as in Houser, a critical distinction can be made from the decree we considered in Radigan. The present order does not state that payments will continue until “both” or “all” the children reach the age of majority. Thus, despite what the majority states, it is unclear whether or not the order intended for support to continue until all the children reached the age of majority. We must therefore look at the circumstances surrounding the order. Houser, 535 N.W.2d at 887 (Miller, C.J., dissenting) (citing Malcolm v. Malcolm, 365 N.W.2d 863, 865 (S.D.1985)).

[¶ 37.] It is important to note that the parties have, from the very beginning, considered child support to be dependent on the number of minor children. At the time of their divorce, James and Vera stipulated that James would pay “One Hundred Dollars ($100) per child per month during the children’s minority as child support.” (Emphasis added.) In 1990, when the trial court later modified the child support obligation from $400 to $280 based on the child support guidelines found in SDCL 25-7, the court specifically stated: “[T]his order shall amend and modify only the amount of the current child support obligation ... and shall not modify, amend or otherwise affect any other provision or- any other prior Judgment or Order entered by the Court or any other administrative agency in this case.” (Emphasis added.)

[¶ 38.] In 1992, when Vera made a motion to modify child support, seeking $633 per month, she moved that the divorce decree should be amended to order James to “pay child support for each child -until he/she *714reaches the age of 18 or graduates from high school, whichever is last.” (Emphasis added.) The only difference between this proposed order by Vera and the original requirement was now she wished to have James pay support for a child until that child finished high school, rather than stopping payment when a child reached the age of majority. The trial court subsequently modified the child support so James would pay $469 per month, but did nothing to change the original agreement in the divorce decree as to when payments would stop.

[¶ 39.] Then in 1993, the parties entered into the stipulation which is the subject of this case. The entire stipulation was in lieu of a trial on several issues including alimony arrears, payment of child support arrears, and child custody. The stipulation covered these areas, and also restated that James would pay $469 per month in child support, but then added the language “until the minor children reach the age of nineteen (19) or graduate from high school[.]”

[¶ 40.] From the outset the parties understood that child support was to be paid based on the number of minor children. Nothing ever changed that. While the child support guidelines were used to modify the amount of child support that was to be paid, such modifications did not affect the original agreement between the parties that support payments were to be paid “per child.” See Evans v. Evans, 1997 SD 16, ¶ 14, 559 N.W.2d 240, 243 (holding that “SDCL 25-7-6.2 provides guidelines that trial courts must follow in setting child support amounts.”) (Emphasis added.) The schedule set up for child support obligations, found at SDCL 25-7-6.2, bases the amount owed on the number of minor children in the family. The guidelines were followed in this case, as James was ordered to pay $469 per month in support based on his income and the fact that there were four minor children at the time the stipulation was entered. The trial court had the authority to modify the amount owed to support those four children, but it did not have the authority to use the guidelines to change the agreement of the parties that the support payments were to be reduced as each child reached the age of majority.

[¶ 41.] Further support for the proposition that the parties have always understood child support was to be paid “per child” and not as one lump sum can be seen from the conduct of the parties after the 1993 stipulation was entered. After the order in question was in effect, and two of the children were no longer minors, for some time James prorated the original amount so that he was only paying support for the remaining minor children. Vera also apparently accepted this reduced amount without questioning the practice or seeking an enforcement order.

[¶ 42.] Second, it is also significant to this casé that the trial court held the current support order was self-executing and, therefore, held that the amount owed should be reduced as each child reached the age of eighteen. The majority states that “because the interpretation of a decree is a question of law, this Court gives no deference.” ¶ 16 (citing Houser, 535 N.W.2d at 884). While this may generally be true, I disagree as to the present situation. Here, the trial court was interpreting a decree that it had originally ordered. Surely some deference must be given to the trial court in interpreting its own order. See Sec. and Exch. Comm’n v. Sloan, 535 F.2d 679, 681 (2d Cir.1976), cert. denied, 430 U.S. 966, 97 S.Ct. 1646, 52 L.Ed.2d 357 (1977) (holding: “We see no basis for substituting our judgment for that of the district judge in interpreting his own order.”). While interpretation of a decree is normally a question of law for which we need not give deference to the trial court, how can such a standard of review be applied when the trial court was interpreting its own order? Clearly the trial court was in the best position to know what it originally meant. We should give deference, especially when the language is not clear.

[¶ 43.] Third, and of great significance, is that what the majority is requiring the trial court to do on remand is simply beyond that court’s authority. SDCL 25-5-18.1 provides, in relevant part: “The parents of any child are under a legal duty to support their child ... until the child attains the age of eighteen, or until the child attains the age of nineteen if he is a full-time student in a secondary school.” We have specifically held that this “statute simply does not provide the trial court with the authority or discretion to extend the application of the statute beyond *715the age of nineteen.” Birchfield v. Birchfield, 417 N.W.2d 891, 895 (S.D.1988). We further held in Birchfield that “where the parties do not otherwise agree ... the trial court may not impose a duty to support beyond nineteen.” Id. (citing Warne v. Warne, 360 N.W.2d 510 (S.D.1984); Jameson v. Jameson, 306 N.W.2d 240 (S.D.1981)).

[¶44.] Therefore, and in summary, it is apparent the trial court did not have the authority to require James to support his children beyond the age of nineteen. The majority, in ordering the trial court to force James to pay support to his children beyond the age of nineteen is, in essence, requiring the trial court to act beyond its jurisdiction. Further, James, the trial court, and arguably Vera, understood the original order to be self-executing and that it provided for a pro rata reduction as each child reached the age of majority. Also, it is significant that the original order was entered by this same trial court. Lastly, the majority in this case distorts our holding in Radigan even more than was done in Houser. The language in the child support order is not clear and we are in no position to second guess the trial court in interpreting its own order.

[¶ 45.] I am authorized to state that Justice AMUNDSON joins in this dissent.