Regynski v. State Ex Rel. Regynski

MILLER, Justice.

The State of Arizona appeals from an order forgiving all child support arrearages owed by Robert G. Regynski (husband). We reverse.

Husband and Donna Regynski (wife) were divorced on January 3, 1979. The court incorporated the parties’ “Separation, Custody and Property Agreement” in the divorce decree. The parties agreed that wife would have custody of nine-year-old Richard (son), subject to husband’s visitation privileges. Husband, who had previously adopted wife’s son, agreed to pay $50 per month child support for one year and $75 per month thereafter.

Husband was not able to exercise his visitation privileges because wife and son constantly moved without leaving a forwarding address. On the advice of counsel, husband reduced his child support payment by $25 per month “until we get the visitation straightened out.” In June 1981, the parties again stipulated to $75 per month child support and specific periods of visitation for husband. That August, husband was back in court. The court ordered wife to allow husband to exercise his visitation rights. Visitation never materialized, however, because wife moved.

In the fall of 1981 the Department of Social Services notified husband that he owed $250 in child support arrearages. He paid the arrearage in full. Husband testified that he also received a telephone call from a secretary in Social Services in November 1981, requesting wife’s address. Because he did not know where wife was and Social Services also did not know, husband testified that the secretary told him to discontinue current child support payments since there was no place to forward them to. Husband discontinued paying the current support. By affidavit, however, an official from the Office of Child Support Enforcement stated that the Office did not advise husband to discontinue current support payments; it only advised husband that the Office would not be involved in the collection of current child support.

In July 1984, wife applied for Aid to Dependent Children (ADC) in Arizona. In her application she indicated that husband was an “absent” parent and assigned her child support rights to Arizona. In October 1985, husband received a notice from the Internal Revenue Service of a tax intercept filed against him for $3,095 by the State of Arizona. Husband immediately went to court seeking custody of son and forgiveness of child support arrearages.1 There was no dispute that husband had not, and Arizona had, made child support payments.

The trial court found that husband had paid no child support upon the telephone advice of Social Services. It found that wife applied for ADC in Arizona alleging that husband was missing when she, in fact, knew where he lived. It further found that wife “from the beginning, ig*614nored or deliberately disobeyed every [visitation] order of this Court.” The court concluded that these findings “constitute a significant change of circumstances” and set aside the arrearage.

The issue on appeal is whether the trial court abused its discretion by retroactively modifying its judgment of child support.

The trial court has the authority to modify child support payments originally based upon a stipulation between the parties if the trial court in its discretion determines that “changed conditions” warrant such a modification. Jameson v. Jameson, 306 N.W.2d 240 (S.D.1981). The discretion allotted to the trial court under SDCL 25-4-41 and SDCL 25-4-45 also gives the trial court, sitting and acting in equity, the power to retroactively modify child support ar-rearages due the state through assignment. Larsgaard v. Larsgaard, 298 N.W. 2d 381 (S.D.1980).

The state of Arizona argues that wife’s failure to allow visitation and the telephone call directing husband to cease current child support payments do not constitute a sufficient change of circumstances to warrant forgiveness of arrearages. We agree.

In Stach v. Stach, 369 N.W.2d 132 (S.D.1985), we summarized recent case law on the topic:

In a very recent case, Todd v. Pochop, 365 N.W.2d 559 (S.D.1985), we adopted the wording of a Minnesota Appellate Court decision:
“[I]t is an accepted principal that the misconduct of the mother does not affect the father’s duty to support his child. Indeed, this duty is well nigh absolute, and a support order must ordinarily be complied with even if the actions of the wife place her in contempt of court.”
Todd, 365 N.W.2d at 560, citing State of Wis. ex rel. Southwell v. Chamberland, 349 N.W.2d 309 (Minn.App.1984).
While Todd was a Uniform Reciprocal Enforcement of Support Act (URESA) action, SDCL 25-9A, the ruling that support obligations are independent from visitation rights goes beyond URESA cases. This is not to say that a noncustodial parent cannot apply to the original trial court for relief under such circumstances. The children’s best interest requires that they be supported. Children may not be denied support or in any way punished for the sins of the custodial parent. This court does not approve of personal modifications to divorce decrees absent court amendment or a binding agreement; only a trial court may retroactively modify child support payments based on the payor’s financial situation and the children’s welfare. Barrett v. Barrett, 308 N.W.2d 884 (S.D.1981). (Emphasis supplied).

While wife’s conduct in withholding contact with son for over seven years is abhorrent, husband’s remedy lies elsewhere. Where child support is concerned, the child’s interest is the primary consideration, not an undefined notion of the “equitable” adjustment of rights between the parents. Hanson v. Hanson, 397 N.W.2d 656 (S.D.1986). In this case, there was absolutely no indication that husband’s financial situation had deteriorated or that son’s need for support lessened. Consequently, the trial court did not have a foundation for forgiving the arrearages, and abused its discretion by doing so.

Because the amount of the tax intercept may be in excess of the amount of the child support arrearage, we reverse and remand to the trial court with instructions to determine the amount of delinquent child support for which husband is liable.

WUEST, C.J., and MORGAN and SABERS, JJ., concur. HENDERSON, J., concurs in result.

. Husband’s appellate attorney began representing him at this point in the proceedings.