#26198-a-PER CURIAM

2012 S.D. 41

                            IN THE SUPREME COURT
                                    OF THE
                           STATE OF SOUTH DAKOTA

                                   ****

KATHY L. WEBB,                                     Plaintiff and Appellee,

      v.

ANTHONY E. WEBB,                                   Defendant and Appellant.

                                   ****

                       APPEAL FROM THE CIRCUIT COURT
                          FOURTH JUDICIAL CIRCUIT
                        BUTTE COUNTY, SOUTH DAKOTA

                                   ****

                        HONORABLE JOHN W. BASTIAN
                                 Judge

                                   ****


ANTHONY E. WEBB
Pierre, South Dakota                        Pro Se Appellant.

BRIAN L. UTZMAN
Smoot & Utzman, P.C.
Rapid City, South Dakota                    Attorneys for Appellee.


                                   ****
                                            CONSIDERED ON BRIEFS
                                            ON APRIL 17, 2012

                                            OPINION FILED 05/23/12
#26198

PER CURIAM

[¶1.]        Anthony Webb (Anthony) appeals an order reducing child support

arrearages to a written judgment in favor of his ex-wife, Kathy Webb (Kathy). The

Butte County Circuit Court awarded Kathy a judgment of $71,805.19. Anthony

argues that he paid the child support as it came due and that the passage of time

should prevent Kathy from recovering.

                     FACTS AND PROCEDURAL HISTORY

[¶2.]        Anthony and Kathy married in 1981 in California. One child was born

to the marriage. The Butte County Circuit Court entered a Judgment and Decree of

Divorce in 1985. That order required Anthony to pay $250 per month in child

support. Initially, the child support was collected through the Department of Social

Services – Office of Child Support Enforcement. When that office received

payments from Anthony, it would first apply the money toward any amount Kathy

received through the State’s TANF (Temporary Assistance to Needy Families)

program. Before 1991, Anthony paid the entirety of an accumulated TANF

arrearage. In 1991, Kathy requested that the Office of Child Support Enforcement

no longer enforce Anthony’s obligation. DSS sent Anthony a letter to this effect.

This letter indicated that, in accord with the divorce decree, Anthony was still

required to make all payments through the Butte County Clerk of Courts. The

Butte County Clerk of Courts’ records indicate that Anthony made three $150

payments in 1991, then no further payments. As of the 18th birthday of the parties’

child, Anthony’s child support arrearages were $36,917.56, as calculated by DSS.

[¶3.]        The circuit court conducted a hearing on Kathy’s motion to reduce

Anthony’s child support arrearage to a money judgment on July 6, 2011. At the
                                         -1-
#26198

hearing, Kathy called a DSS worker and the Butte County Clerk of Courts. These

witnesses testified regarding their offices’ records of child support paid by Anthony.

Kathy also testified at the hearing. She testified that she received only a small

amount of child support from Anthony since 1991. Anthony, who acted pro se and

appeared telephonically, did not testify. He claimed that he did not want to testify

because he had not been subpoenaed.

[¶4.]        The circuit court found that Anthony had not paid his child support

obligation in the amount of $36,917.56. When pre-judgment interest was added, the

total amount of the judgment came to over $71,000.

                           ANALYSIS AND DECISION

[¶5.]        As his first issue, Anthony asserts that the circuit court improperly

shifted the burden to Anthony to prove that he did not owe child support. Kathy

brought her claim to reduce back child-support under SDCL 25-7-7.4. This section

states:

             Any payment or installment of support under an order for
             support, as defined by § 25-7A-1, whether entered by a court or
             an administrative entity of this state or of any other state or
             jurisdiction, which is unpaid after the date it is due, is a
             judgment by operation of law, with the full force, effect and
             attributes of a judgment of this state, including enforceability,
             and is entitled, as a judgment, to full faith and credit in this
             state.

Kathy submitted evidence establishing the existence of the child support order – the

judgment of divorce. She also presented evidence that the obligation was not

fulfilled.

[¶6.]        The judgment of divorce required that all payments were to be made

through the Butte County Clerk of Courts. Kathy called the clerk to provide


                                          -2-
#26198

testimony authenticating a document maintained by the clerk’s office showing that,

although Anthony had made some payments through that office, no payments were

made after 1991. Further, Kathy testified that she had not received the payments

when due. In short, Kathy provided sufficient evidence establishing the existence of

the obligation and that the obligation had gone unpaid.

[¶7.]        Throughout his brief, Anthony maintains that he made the payments

when due directly to Kathy. But Anthony’s testimony in this regard is not in the

record. When given the opportunity to testify at the hearing, Anthony refused. The

circuit court very clearly explained that Anthony was a party, and therefore didn’t

need to be under subpoena to testify on his own behalf. But Anthony still chose not

to testify. His assertion that he paid Kathy directly is not supported by any of the

evidence received at the hearing. The circuit court did not improperly shift the

burden to Anthony. The evidence Kathy submitted established the obligation and

established the amount of the obligation that had not been paid when due.

[¶8.]        Anthony next argues that Kathy’s bankruptcy filing in 1992 should

prevent her from reducing the unpaid child support obligation to a judgment

because Kathy did not list the child support obligation as an asset. Anthony argues

that the doctrine of judicial estoppel should apply to prevent Kathy from now

claiming the unpaid obligation as an asset.

             Judicial estoppel cannot be reduced to an equation, but courts
             will generally consider the following elements in deciding
             whether to apply the doctrine: the later position must be clearly
             inconsistent with the earlier one; the earlier position was
             judicially accepted, creating the risk of inconsistent legal
             determinations; and the party taking the inconsistent position
             would derive an unfair advantage or impose an unfair detriment
             to the opponent if not estopped.


                                         -3-
#26198

Canyon Lake Park, L.L.C. v. Loftus Dental, P.C., 2005 S.D. 82, ¶ 34, 700 N.W.2d

729, 737-38 (citations omitted). Here, the “later position” is the claim of an unpaid

support obligation. The earlier position would be the bankruptcy, where Kathy did

not claim the unpaid obligation as an asset. But the present facts do not fit the

elements of judicial estoppel. Even assuming that the two positions are

inconsistent, Anthony will not suffer an unfair detriment should Kathy’s claim of

unpaid support be allowed. Any detriment suffered by Anthony is the result of his

failure to pay the required support obligation rather than an unfair detriment

imposed due to Kathy’s previous inconsistent position.

[¶9.]        Anthony argues that Kathy’s omission of the unpaid obligation as an

asset in the bankruptcy negatively impacts her credibility. The circuit court

observed Kathy testify and was aware of Anthony’s position that she should have

included the asset in the bankruptcy. Given the decision in this matter, the circuit

court obviously found Kathy’s testimony credible. “The credibility of the witnesses,

the weight to be accorded their testimony, and the weight of the evidence must be

determined by the [trial] court, and we give due regard to the [trial] court’s

opportunity to observe the witnesses and the evidence.” Stockwell v. Stockwell,

2010 S.D. 79, ¶ 24, 790 N.W.2d 52, 61 (internal quotation marks omitted).

[¶10.]       Anthony next asserts that Kathy’s delay in bringing this action

subjects her claim to the doctrine of laches. “We review de novo a court’s ruling on

the applicability of the doctrine of laches.” Wehrkamp v. Wehrkamp, 2009 S.D. 84, ¶

11, 773 N.W.2d 212, 216.

             To prove laches, [Anthony] must show that: (1) [Kathy] had full
             knowledge of the facts upon which the action is based, (2)
             regardless of this knowledge, she engaged in an unreasonable
                                          -4-
#26198

               delay before commencing the suit, and (3) that allowing her to
               maintain the action would prejudice [Anthony].

Culhane v. Michels, 2000 S.D. 101, ¶ 15, 615 N.W.2d 580, 585 (quotations omitted).

Anthony presented no evidence regarding any potential prejudice he suffered as a

result of Kathy’s delay. “Prejudice will not be inferred from the mere passage of

time.” Id. (citation omitted). Anthony cannot establish prejudice as required to

satisfy the doctrine of laches. Therefore, Anthony cannot establish the elements

necessary to prove laches.

[¶11.]         Furthermore, this is an action to reduce unpaid child support

obligations to a money judgment. The circuit court enforced the 20-year statute of

limitations in this action, barring any recovery for amounts due more than 20 years

before Kathy commenced this action. SDCL 15-2-6(1). By statute, child support

obligations become a judgment when they are due but not paid. SDCL 25-7-7.4. As

in Culhane, the doctrine of laches does not apply to the delay in seeking to reduce

Kathy’s support obligation.* “Logically, enforcing a valid judgment would rarely

invoke the application of laches.” Culhane, 2000 S.D. 101, ¶ 15, 615 N.W.2d at 586.

[¶12.]         Finally, Anthony argues that the circuit court improperly denied his

motion for a new trial. After the circuit court entered its memorandum decision,

Anthony moved for a new trial. Anthony claimed a new trial was appropriate under

SDCL 15-6-59(a)(1) and (6), which provide:

               A new trial may be granted to all or any of the parties and on all
               or part of the issues for any of the following causes: (1)
               Irregularity in the proceedings of the court, jury, or adverse


*        The support obligation at issue in Culhane was alimony, but this Court
         discussed the similarities between alimony and child support in that case.
         “At the time SDCL 25–7–7.3 and 7.4 were enacted, the Legislature evidently
         intended the statutes to cover both child support and alimony.” Id. ¶ 13.
                                            -5-
#26198

             party or any order of the court or abuse of discretion by which
             either party was prevented from having a fair trial; . . . [or] (6)
             Insufficiency of the evidence to justify the verdict or other
             decision or that it is against law[.]

The circuit court denied Anthony’s motion for a new trial. This Court reviews a

circuit court’s denial of a motion for a new trial for an abuse of discretion. Harmon

v. Washburn, 2008 S.D. 42, ¶ 10, 751 N.W.2d 297, 300.

[¶13.]       Anthony claims his pro se status prevented him from presenting

evidence. This is the claimed “irregularity in the proceedings” of which Anthony

complains. “The expression ‘irregularity in the proceedings’ . . . relates generally to

departures by the court, during the trial of a case, from the due and orderly method

of disposition of a case.” Fechner v. Case, 2003 S.D. 37, ¶ 12, 660 N.W.2d 631, 635

(internal quotation marks and citations omitted).

[¶14.]       Throughout these proceedings, the circuit court gave Anthony as much

latitude as possible due to his pro se status. The circuit court also told Anthony

that his pro se status would not be held against him, but that proceeding pro se

could not be used as an excuse for ignorance of court rules. At the hearing, the

circuit court very carefully advised Anthony that in order for his side of the story to

be considered, he would need to testify on his own behalf. But Anthony refused.

Now Anthony claims he should be given a new trial because the circuit court did not

consider Anthony’s version of the facts. Essentially, Anthony asks for a second bite

at the apple due to his failure to understand the applicable procedure. An

unrepresented party “can claim no advantage from his [pro se] status.” Ferebee v.

Hobart, 2009 S.D. 102, ¶ 27, 776 N.W.2d 58, 65 (citation omitted). Anthony’s status

as a pro se litigant does not entitle him to a new trial.


                                           -6-
#26198

[¶15.]       In support of his motion for a new trial regarding insufficiency of the

evidence, Anthony again asserts that Kathy did not provide sufficient evidence to

prove the unpaid support obligation. But as set forth above, Kathy established the

obligation and provided evidence that the obligation had not been satisfied.

Anthony also argues that, if given the chance, he would present evidence that would

establish that he paid his obligation directly to Kathy. As discussed above, Anthony

had every opportunity to present his evidence, but chose not to do so. The circuit

court did not abuse its discretion in denying Anthony’s motion for a new trial on

either statutory ground argued by Anthony.

                                    CONCLUSION

[¶16.]       Despite several opportunities to do so, Anthony presented no testimony

at trial. For that reason, the uncontroverted evidence before the circuit court

established the existence and amount of the unpaid child support obligation. The

circuit court did not err by refusing to apply the doctrine of judicial estoppel or

laches to Kathy’s claim, nor did it abuse its discretion in denying Anthony’s motion

for new trial. The judgment is affirmed.

[¶17.]       GILBERTSON, Chief Justice, and KONENKAMP, ZINTER,

SEVERSON, and WILBUR, Justices, participating.




                                           -7-
