Laird v. Laird

GILBERTSON, Chief Justice

(dissenting).

[¶ 47.] As her third issue, Emma contends that the trial court committed reversible error when it failed to extrapolate beyond the child support guidelines. She claims that the trial court understated the children’s pre-divorce standard of living. She also argues, in the alternative, that even if their pre-divorce standard of living has been maintained, a lack of increase in the support payment precludes the children from enjoying their father’s post-divorce success. Thus, this case is not about maintaining the children’s pre-divorce lifestyle; it is about increasing their lifestyle commensurate with the non-custodial parent’s post-divorce success. Because there is no basis in South Dakota law to support such a holding, I dissent.

[¶ 48.] The circuit court made several findings on this issue. The court found that although the parties’ income is disparate, they both are millionaires in their own right. (Findings of Fact 18, 21). The parties’ combined monthly income exceeds the guidelines in SDCL 25-7-6.2. (Finding of Fact 35). Emma has the burden of proving the children’s actual needs and their standard of living, as she is the one seeking modification. (Finding of Fact 36). Emma failed to meet her burden of proof because she did not submit a monthly budget for the boys, nor did she differentiate between items solely for the benefit of the children and those items exclusively for her enjoyment. (Findings of Fact 54, 55).2

[¶ 49.] Jonathan and Robert enjoy a healthy and comfortable standard of living. The boys live in a $100,000 home. They each have their own bedroom. They each have a computer, stereo, color TV and VCR. Emma owns a 1999 Dodge Durango, free of any liens, to transport the boys. Both boys have college accounts, Jonathan’s totaling $150,000 and Robert’s total*304ing $100,000. Thomas maintains life insurance naming the boys as beneficiaries. There is no dispute that the boys are adequately clothed and fed. The children continue to travel, attend camps, and participate in activities such as basketball, swimming, and drama.

[¶ 50.] The circuit court, in issuing new support obligations, calculated Thomas’ child support at $1800 per month.3 Thomas also has the burden of maintaining health and dental insurance on both boys through their graduation from high school at a cost of $650 per month. Since Thomas’ employer pays for this insurance, he does not receive a credit for it. Thomas is responsible for eighty-seven percent of all medical bills not covered by insurance until the boys graduate from high school. This cost is estimated at $8,045 per year ($3,500 times eighty-seven percent). As previously mentioned, Thomas also maintains a $200,000 life insurance policy on himself, in which the boys are named as joint beneficiaries, at a cost of $200 per month. Thomas is responsible for eighty-seven percent of all car-related costs for Robert. Thomas is'required to take the boys on a seven-day vacation each year until they graduate from high school. This cost is estimated at $3,000 per year. Thomas must also furnish transportation for the boys to Minneapolis for as many weekends as they want, taking them to whatever sporting and cultural events they desire. This cost is estimated ■ at $2,000 per year. Thomas must also continue to manage the boys’ college accounts free of charge.

[¶ 51.] The circuit court has the obligation to establish child support, “at an appropriate level, taking into account the actual needs and standard of living of the child.” SDCL 25-7-6.9. It is the custodial parent’s burden to prove “his or her claimed-expenses reflect the child’s needs and standard of living.” Watson, 2000 SD 132 at ¶ 20, 617 N.W.2d at 671 (emphasis original) (citing Ochs, 538 N.W.2d at 530). There is, however, no provision for increasing a child’s standard of living to keep up with the non-custodial parent’s post-divorce success. Moreover, when the combined monthly income of both parents exceeds the child support guidelines, “extrapolation beyond the maximum guideline level is permissible, but not obligatory!)]” Ochs, 538 N.W.2d at 530. '

[¶ 52.] This Court’s reallocation of parental assets amounts to nothing more than de facto alimony. SDCL 25-7-6.9 cannot act as “an alimony/palimony ■windfall contained in the rhetoric of child support.” Id. at 533 (Amundson, J., concurring in part and dissenting in part). In Billion, this Court held the fact that a custodial parent may indirectly benefit does not justify denial of child support to children whose actual needs and standard of living are not being met. Billion, 1996 SD 101 at ¶ 44, 553 N.W.2d at 236. But Emma was unable to demonstrate that her sons’ standard of living was not being maintained. While it is permissible' for children to enjoy some of their father’s high standard of living, the law does not mandate that they enjoy all of it. Evans v. Evans, 1997 SD 16, ¶ 16, 559 N.W.2d 240, 244.

[¶ 53.] Emma’s evidence failed to reflect the needs of the children. She failed *305to make a monthly budget depicting the children’s expenses. She also failed to distinguish between the needs of the children and her needs. See Watson, 2000 SD 132 at ¶ 22, 617 N.W.2d at 671. The circuit court made detailed findings regarding the children’s pre-divorce and current standard of living. The circuit court further made detailed findings in computing Thomas’ child support obligation. It is clear from these findings that the children’s pre-divorce standard of living will be maintained, if not exceeded, and the children will share in many of the fruits of Thomas’ labor. Since Emma failed to meet her burden of proof and the children’s actual needs and standard of living are being adequately met, the trial court did not abuse its discretion in refusing to extrapolate beyond the child support guidelines. Accordingly, I dissent from the majority opinion on this issue.

. Emma did introduce a list of things the children wanted, including: (1) replacement of a $100,000 home with a $300,000 home; (2) new furniture for the kids; (3) a reserve for computers, cars and sports equipment; (4) a curio for family heirlooms; (5) a new stereo; (6) a new camcorder; and (7) recurring monthly expenses in the amount of *304$2,370 above and beyond expenses of food, clothing or shelter. The circuit court determined that these items were not actual needs of the children and were not necessary to maintain their standard of living.

. This was calculated by taking the top of the chart amount under SDCL 25-7-6.2 for two children, $2,049.00, multiplying it by eighty-seven percent, which is Emma's percentage recommendation, and rounding up to $1800.