Peterson v. Peterson

AMUNDSON, Justice

(concurring in part and dissenting in part).

[¶ 30.] I concur with the majority’s holding that the trial court did not abuse its discretion in its award of alimony to Gayle. I also concur with the majority’s holding that, in calculating child support, the trial court abused its discretion in failing to allow David a deduction from his gross monthly income for the amount of his monthly alimony payments. However, I dissent from the majority’s holding that, in calculating child support, Gayle must in-*74elude the monthly alimony payments she receives in her gross monthly income.

[¶ 31.] SDCL 25-7-6.3 lists what should ' be included in gross monthly income to calculate child support. The statute provides:

The monthly net income of each parent shall be determined by his gross income less allowable deductions, as set forth herein. The monthly gross income of each parent includes amounts received from the following sources:
(1) Compensation paid to an employee for personal services, whether salary, wages, commissions, .bonus or otherwise designated;
(2) Self-employment income .including gain, profit or loss from a business, farm or profession; .
(3) Periodic payments from pensions or retirement programs, including social security or veteran’s benefits, disability payments, or insurance contracts;
, (4) Interest, dividends, rentals, royalties or other gain derived from investment of capital assets;
(5) Gain or loss from the sale, trade or conversion of capital assets;
(6) Unemployment insurance benefits; and
(7) Worker’s compensation benefits.
If the income of the parents is derived from seasonal employment, or received in payments other than regular, recurring payments, such income shall be annualized to determine a monthly average income.

Notable by its absence from this list is alimony. Thus, alimony should not be included in gross monthly income in calculating child support. See Engelhart v. Kramer, 1997 SD 124, ¶ 18, 570 N.W.2d 550, 554 (it is a general rule of statutory construction that the expression of one thing is the exclusion of another).

[¶ 32.] The majority relies upon a general definition of “income” in SDCL 25-7A-1(8) in order to include alimony in gross monthly income. However, we are not here concerned with the collection of child support which is the purpose of SDCL ch 25-7A and its definitions. See SDCL 25-7A-1 (terms used in “this chapter” mean ....) The issue here is the calculation of child support. SD.CL 25-7-6.3 lists what should be. included in gross monthly income for this specific purpose. See Hartpence v. Youth Forestry Camp, 325 N.W.2d 292, 295 (S.D.1982)(specifie statute controls a general statute).

[¶ 33.] The majority submits our holdings in Hautala v. Hautala, 417 N.W.2d 879 (S.D.1988) and Gross v. Gross, 355 N.W.2d 4 (S.D.1984) expanded the sources of income for calculating child support beyond' those listed in SDCL 25-7-6.3. Therefore, a 'review of Hautala and Gross is appropriate.' As the majority states, in Hautala, we considered whether certain military pay allowances constituted income in calculating child support. We held that they did. However, the majority incorrectly submits that we reached that conclusion on the basis that SDCL 25-7-7 (the predecessor to current SDCL 25-7-6.3) provided a non-exclusive list of sources of income. That is not accurate. In reality, we looked to the sources of income that wére listed' in the statute and concluded that the military pay allowances fell under the category of, “‘(1) Compensation paid to an employee for personal services, whether called salary, wages, commissions, bonus or other designations’ Hautala, 417 N.W.2d at 881 (emphasis origi-nalXquoting SDCL 25-7-7). It is true that the author of Hautala mentioned in the decision that, “[t]he use of the word ‘include’ [in SDCL 25-7-7] suggests a legislative intent to encompass other, unlisted sources of income.” Hautala, 417 N.W.2d at 881. However, it must be noted that this gratuitous observation was offered without benefit of analysis, citation or reasoning and that it formed no part of the substantive rationale for our decision. As such, it was nothing more than dicta on which the current majority now rests its holding.

*75[¶ 34.] The majority’s reliance on Gross is also troubling. The majority suggests we held in Gross that an inheritance award should be included as income in calculating child support. See opinion at p. 72. In fact, we reached no such holding. Gross actually predates the enactment of any statutory guidelines for calculating child support and was decided at a time when child support was based upon, “the reasonable needs of the child ... and the payor’s financial situation, i.e., ability to pay.” Gross, 355 N.W.2d at 7. Our real holding in Gross was that an inheritance award constituted a substantial change in circumstances warranting modification of a previous child support award. There is nothing whatsoever in the decision to support the view that the sources of income for calculating child support under the current guidelines may be expanded beyond those listed in SDCL 25-7-6.3.

[¶ 35.] The majority also submits that SDCL 25-7-6.6 supports the determination that alimony is income for purposes of calculating child support. Without quoting the statute, the majority conclusively asserts, “[ujunder SDCL 25-7-6.6, any source of income that must be reported on a federal income tax return is considered to be ‘gross income.’ ” See opinion at p. 72. A simple reading of the statute makes clear it says no such thing. SDCL 25-7-6.6 provides:

Gross income from a business, profession, farming, rentals, royalties, estates, trusts or other sources, are the net profits or gain, or net losses shown on any or all schedules filed as part of the parents’ federal income tax returns or as part of any federal income tax returns for any business with which he is associated, except that the court may allow or disallow deductions for federal income taxation purposes which do not require the expenditure of cash, including, but not limited to, depreciation or depletion allowances, and may further consider the extent to which household expenses, automobile expenses, and related items are deductible or partially deductible for income tax purposes. In the event a court disallows depreciation, it may consider necessary capital expenditures which enhance the parent’s current income for child support purposes, (emphasis added).

[¶ 36.] Nothing in this language defines “gross income” as, “any source of income that must be reported on a federal tax return .” The plain language of the statute defines “gross income” as, “net profits or gain, or net losses shown on any or all schedules-” SDCL 25-7-6.6. Certainly, alimony is not a “profit” or “loss” nor is it reported on a schedule. Thus, in no manner does SDCL 25-7-6.6 include alimony in gross monthly income for purposes of calculating child support.

[¶ 37.] Finally, the majority concludes that, “[i]f Gayle were permitted to exclude the permanent alimony payments from the child support calculations, it would improperly place available income beyond the reach of her child’s needs.” See supra at 73. While the majority’s concern with the needs of the child is laudable, it ignores that, even before calculating child support, the trial court considered the financial situation of the parties and their earning capacity and determined that Gayle needed $600 per month alimony for her own support and maintenance. By law, this sum can be used for no purpose other than her support. See Urban v. Urban, 1998 SD 29, ¶ 7, 576 N.W.2d 873, 875 (alimony is an allowance for support and maintenance with its sole object the provision of food, clothing, habitation and other necessaries for the support of a spouse). Including the alimony in Gayle’s gross monthly income increases her child support obligation and indirectly results in her use of funds deemed necessary for her own support for child support. In short, Gayle will be making her child support payments to David out of the spousal support payments that she receives from him. This not only defies logic and common sense but violates *76the requirement that alimony be used only for the support of the recipient spouse.

[¶ 38.] The exclusion of alimony as a factor in setting child support by allowing the obligor to deduct the payments from gross monthly income and by not requiring the obligee to include them in gross monthly income would avoid the above result. Moreover, it would meet the needs of the parties and the child as determined by the trial court. In this case, Gayle would receive the $600 per month alimony the trial.court has deemed necessary for her own support and child support would be calculated according to the remaining funds the trial court knew would be available for that purpose. The majority’s decision funnels funds deemed necessary for Gayle’s support back to David in the form of child support, a trading of payments fairly characterized as “robbing Peter to pay Paul.”3 Our obligation is to interpret the law in a manner avoiding rather than creating such absurdities. See City of Sioux Falls v. Ewoldt, 1997 SD 106, ¶ 17, 568 N.W.2d 764, 768 (statutes to be construed in manner avoiding strained, impractical or absurd result.) For that reason, I dissent.

[¶ 39.] I am authorized to state that Justice KONENKAMP joins in this concurrence in part and dissent in part.

. In fact, since alimony is calculated according to the earning capacity and financial condition of each party (Jones v. Jones, 1996 SD 2, ¶ 21, 542 N.W.2d 119, 124) and since Gayle will now be in a worse financial condition as a. result of her increased child support obli- ■ gallon, the majority • should reverse and remand the alimony award for recalculation in light of her increased financial burden.