#27060-a-LSW

2015 S.D. 23

                             IN THE SUPREME COURT
                                     OF THE
                            STATE OF SOUTH DAKOTA

                                    ****
SARAH J. WISEMAN,                            Plaintiff and Appellant,

      v.

CHARLES D. WISEMAN,                          Defendant and Appellee.


                                    ****

                   APPEAL FROM THE CIRCUIT COURT OF
                      THE SECOND JUDICIAL CIRCUIT
                   MINNEHAHA COUNTY, SOUTH DAKOTA

                                    ****

                    THE HONORABLE SUSAN M. SABERS
                               Judge

                                    ****

RICHARD L. JOHNSON
Sioux Falls, South Dakota                    Attorney for plaintiff
                                             and appellant.


CHRIS MCCLURE of
Swier Law Firm, Prof. LLC
Sioux Falls, South Dakota

      and

KAREN L. CREW of
Crew & Crew, PC
Sioux Falls, South Dakota                    Attorneys for defendant
                                             and appellee.

                                    ****
                                             CONSIDERED ON BRIEFS
                                             ON JANUARY 12, 2015
                                             OPINION FILED 04/22/15
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WILBUR, Justice

[¶1.]        Sarah Wiseman appeals the circuit court’s ruling that Charles

Wiseman’s past due child support payments were not retroactively modifiable prior

to May 2012. The circuit court denied Sarah’s claim pursuant to SDCL 25-7-7.3,

which prohibits retroactive modification of past due child support. We affirm.

                            Facts and Procedural History

[¶2.]        On November 17, 2008, the circuit court entered an order for child

support wherein Charles would pay Sarah $2,140 per month for the benefit of the

parties’ three minor children. In July 2009, Charles petitioned the circuit court to

modify the amount because he claimed his income had changed. The child support

referee assigned to the case found that Charles earned $40,000 annually or

$3,333.33 per month from his company. In the referee’s proposed findings of fact

and conclusions of law filed on October 29, 2009, the referee stated, “No other

company earnings are attributed to [Charles] at this time.” The referee also said,

“In the event the 2009 year-end [company] numbers show profit, [child] support will

be recalculated at a future date to incorporate accurate 2009 figures, effective

October 1, 2009.” Finally, the referee’s proposed order provided, “[C]hild support in

this case may be modified retroactive to October 1, 2009, if future financial

information from Charles Wiseman indicates that his income for the year of 2009

exceeded $40,000.” The circuit court, the Honorable William J. Srstka, Jr.

presiding, adopted the referee’s order on January 4, 2010, which lowered Charles’s

child support obligation from $2,140 to $1,132 per month and incorporated the

referee’s findings of fact and conclusions of law, including the retroactivity

provision. The circuit court’s order pronounced, “This [o]rder shall amend and
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modify only the amount of the current child support obligation and shall not modify,

amend, or otherwise affect any other provision of any prior judgment or [o]rder

entered by any court or administrative agency.”

[¶3.]         On May 10, 2012, Sarah petitioned the circuit court, the Honorable

Susan M. Sabers presiding, for a modification of child support. The same child

support referee was assigned, and on December 17, 2012, the referee again filed

findings of fact and conclusions of law. The referee found that the circumstances of

the parties had changed due to changes in their incomes. The referee stated in her

findings, “The [2009] order in this case includes an opportunity to modify the child

support effective October 1, 2009. This was [Sarah’s] request, due to the

inaccuracies in [Charles’s] income testimony at [the] previous [2009] hearings.”

Sarah brought new information before the referee indicating that Charles had sold

a house in 2009 for $103,000 more than what he had testified to at the 2009

hearing. 1 Because Charles’s income was greater than the $40,000 he had testified

to in 2009 and the previous child support order contained a retroactivity provision,

the referee ordered Charles to pay $2,140 per month starting October 1, 2009.

Thus, the referee effectively ordered Charles to pay Sarah an additional $1,008 in

child support per month since October 2009.

[¶4.]         Charles filed an objection with the circuit court on the grounds that the

referee’s order constituted an impermissible retroactive child support modification

in violation of SDCL 25-7-7.3. The circuit court held a hearing on January 28, 2013.


1.      Charles disputed Sarah’s assertion that he made much more than $40,000.
        Charles’s accountant testified that Charles’s salary was only $33,415 and his
        income was $43,545 in 2009.

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The court remanded the case to the referee “with a request that [the referee] review

the extent of the retroactive modification, with supporting statutes and case law,

and reconsider the date upon which the modification can be effective.” On remand,

the referee again held that Charles’s child support was modifiable back to October

1, 2009, because the 2009 order contained a retroactivity provision. Charles again

objected, and the circuit court held another hearing on December 19, 2013. The

circuit court, per Judge Sabers, agreed with Charles and held the previous child

support obligation could not be retroactively modified all the way back to October

2009, but only to when the current petition for modification was filed in May 2012.

The circuit court’s order reversed the referee’s decision and provided, “The

[r]eferee’s opinion as to Charles’[s] arrearages since May 2012 in the amount of

$13,542.00 through December 2013 is affirmed. Any arrearages claimed prior to

May 2012 are hereby denied pursuant to SDCL 25-7-7.3 as there was no [p]etition

for child support modification pending prior to May 2012.” Sarah appeals.

[¶5.]        She raises one issue in this appeal:

             Whether the circuit court erred when it denied Sarah’s petition
             to retroactively modify Charles’s child support obligation
             pursuant to SDCL 25-7-7.3.

                                 Standard of Review

[¶6.]        Sarah asks this Court to examine the circuit court’s application and

interpretation of SDCL 25-7-7.3; we, therefore, review this case de novo. Heumiller

v. Heumiller, 2012 S.D. 68, ¶ 6, 821 N.W.2d 847, 850. We review the circuit court’s

findings of fact under the clearly erroneous standard of review. Brosnan v.

Brosnan, 2013 S.D. 81, ¶ 13, 840 N.W.2d 240, 246.


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                                Analysis and Decision

[¶7.]         Sarah argues on appeal that the circuit court erred when it held that

Charles’s past due child support obligation could not be modified pursuant to SDCL

25-7-7.3. Sarah argues the retroactive-modification provision in the 2009 order left

the child support payments “pending” (i.e., the payments had not yet accrued) until

it was proven that Charles’s income was $40,000 or more. Sarah also posits that if

a circuit court’s order explicitly provides for an opportunity to retroactively modify

child support payments, the circuit court is properly exercising its authority, and

SDCL 25-7-7.3 does not prohibit modification. Sarah reasons that it would be poor

public policy to allow a parent to misrepresent his or her income in order to pay less

child support, especially when the opposing party can prove that the parent

misrepresented his or her income.

[¶8.]         SDCL 25-7-7.3 prohibits retroactive modification of past due child

support. It provides:

              Any past due support payments are not subject to modification
              by a court or administrative entity of this state, except those
              accruing in any period in which there is pending a petition for
              modification of the support obligation, but only from the date
              that notice of hearing of the petition has been given to the
              obligee, the obligor, and any other parties having an interest in
              such matter.

SDCL 25-7-7.3 (2004). 2 The statute plainly prohibits the court from modifying child

support payments except for “past due payments which accrue after notice of


2.      In 2013, the Legislature amended SDCL 25-7-7.3 to substitute “past due
        support payments” with “previously ordered support payments that have
        become due, whether paid or unpaid[.]” 2013 S.D. Sess. Laws ch. 119, § 3.
        The period of time relevant to this appeal is from October 2009 through the
        end of April 2012, so the amended version of SDCL 25-7-7.3 is not pertinent.

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hearing is given to the obligee [and any other interested parties].” Vellinga v.

Vellinga, 442 N.W.2d 472, 474 (S.D. 1989). “Any other past due support payments

are not subject to modification.” Id.

[¶9.]          In Heumiller, we construed the phrase “past due support payments” in

the context of SDCL 25-7-7.3 and SDCL Title 25. 2012 S.D. 68, ¶¶ 7-16, 821

N.W.2d at 850-52. We said, “We cannot interpret the words ‘payments’ and ‘past

due’ apart from ‘accruing.’ And resorting to legislative history is unnecessary; the

words of the statute are unambiguous.” Id. ¶ 10, 821 N.W.2d at 850. We reaffirmed

our holding from Vellinga:

               In Vellinga, we identified two types of past due payments under
               SDCL 25-7-7.3: (1) payments that accrue after petitioning for
               modification, and (2) payments that accrue before petitioning for
               modification. Of these two types, only those payments that
               “accrue while a petition for modification is pending may be
               modified, but only from the date that notice of hearing has been
               given to the obligee and any other interested parties.”

Id. ¶ 12, 821 N.W.2d at 851 (quoting Vellinga, 442 N.W.2d at 474) (footnote omitted)

(citations omitted). 3 Sarah reasons that because the circuit court’s order left open

the possibility for modification (i.e., the child support remained pending), Charles’s

child support payments had not yet “accrued” within the meaning of SDCL 25-7-7.3.

We disagree.

[¶10.]         Child support payments accrue “when the revenue or liability arises[.]”

Heumiller, 2012 S.D. 68, ¶ 25, 821 N.W.2d at 853 (citing Black’s Law Dictionary 22

(9th ed. 2009)) (Zinter, J., concurring). The circuit court ordered Charles to pay


3.       We note that the 2013 amendment to SDCL 25-7-7.3, while not implicated in
         these proceedings, confirms our statutory interpretation in Heumiller and
         Vellinga. See 2013 S.D. Sess. Laws ch. 119, § 3.

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$1,132 in child support per month starting in October 2009. The payments ceased

to be pending when the circuit court signed and entered its order on January 4,

2010. The order became final on January 4, 2010, and any payments that accrued

following the order could not be retroactively modified. Charles had an obligation to

pay $1,132 per month in child support. Thus, Charles’s support payments had

“accrued” because his obligation to pay them had already arisen every month

following the final order. From October 2009 until May 2012, there was no notice of

hearing pending before the circuit court or the child support referee. It was not

until May 10, 2012, that Sarah petitioned the circuit court for a hearing to modify

child support and brought evidence alleging Charles made more than $40,000 in

2009. Therefore, it was only those payments that accrued after May 2012 that

could be modified by the court.

[¶11.]       While the referee and the circuit court may have meant for the

retroactivity provision to have prospective effect at the time it was made and then

relate back to past due support payments, such an order is inconsistent with SDCL

25-7-7.3. SDCL 25-7-7.3 expressly limits the court’s power to retroactively modify

child support. It may only retroactively modify child support payments that accrue

during the “period in which there is pending a petition for modification of the

support obligation[.]” Essentially, Sarah would have us carve out another exception

to SDCL 25-7-7.3 that allows retroactive modification when the circuit court

includes a retroactivity provision in its order or when a parent misrepresents his or

her income. While there may be sound policy reasons for making such an exception,

“[w]e are not lawmakers nor policy makers[;] [t]hat function is quite appropriately

reserved to the [L]egislature under our [C]onstitution.” Lather v. Huron College,
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413 N.W.2d 369, 372 (S.D. 1987) (citing S.D. Const. art. III, § 1). Courts are not at

liberty to legislate under the guise of exercising their powers of statutory

construction. McFarland v. Keenan, 77 S.D. 39, 47, 84 N.W.2d 884, 888 (1957). If

the Legislature wishes to create another exception to SDCL 25-7-7.3, it certainly

has the authority to do so. However, we will not create another exception without

clear legislative direction.

[¶12.]        We, therefore, affirm the circuit court’s ruling that Charles’s past due

payments are not retroactively modifiable prior to May 2012.

[¶13.]        GILBERTSON, Chief Justice, SEVERSON, Justice, and

KONENKAMP, Retired Justice, concur.

[¶14.]        ZINTER, Justice, concurs in result.

[¶15.]        KERN, Justice, not having been a member of the Court at the time this

action was assigned to the Court, did not participate.



ZINTER, Justice (concurring in result).

[¶16.]        Today’s Court relies on Heumiller’s interpretation of SDCL 25-7-7.3 as

it was in 2012, the statute prohibiting retroactive modification of “past due support

payments.” 2012 S.D. 68, ¶¶ 8-13, 821 N.W.2d 847, 850-52 (emphasis added). I

cannot join today’s opinion because Heumiller judicially substituted the words “past

due support payments” in SDCL 25-7-7.3 (2004) with the words “accrued

obligations.” See Heumiller, 2012 S.D. 68, ¶ 24, 821 N.W.2d at 853 (Zinter, J.,

concurring in result).

[¶17.]        SDCL 25-7-7.3 (2004) prohibited the retroactive modification of certain

“past due support payments.” The majority in Heumiller concluded that even if a
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support payment was fully paid when due, it was a “past due” payment, and

therefore it was not subject to modification because the obligation had “accrued.”

See id. ¶ 8, 821 N.W.2d at 850. However, that view was not supported by the

previous text of the statute.

               It is illogical . . . to interpret the statute such that an accrued
               obligation that is fully paid when due is a “past due payment”
               under SDCL 25-7-7.3. Not one of us would agree with the
               Court’s interpretation of “past due payments” in any other
               context. Imagine if another creditor, such as a bank or utility
               company, claimed that even though you had fully paid your
               monthly mortgage payment or utility bill when it was due, the
               “payment” was “past due.”

Id. ¶ 21, 821 N.W.2d at 853 (Zinter, J., concurring in result). “The plain, ordinary,

and everyday meaning of the words ‘past due payments’ is that the payments [are]

not fully paid when due, such that there are arrearages.” Id. ¶ 22. Thus, Heumiller

was wrongly decided. The Legislature’s need to enact the 2013 amendment

adopting the Heumiller majority’s change in the text of the statute demonstrates

the point. 4

[¶18.]         In this case, Charles had no “past due” support payments (arrearages)

in 2012. Therefore, SDCL 25-7-7.3 (2004) did not prohibit the retroactive

modification of Charles’s 2009–2012 monthly support payments to comply with the

terms of the 2009 order. But the referee and the circuit court were bound to follow

the majority opinion in Heumiller. Under that opinion, the relevant inquiry was not

whether Charles had “past due support payments,” the operative language in SDCL

4.       As today’s Court acknowledges, the 2013 Legislature amended SDCL 25-7-7.3
         to “substitute” the language “past due support payments” with new language
         prohibiting retroactive modification of “previously ordered support payments
         that have become due, whether paid or unpaid[.]” See supra n.2 (quoting
         2013 S.D. Sess. Laws ch. 119, § 3).

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25-7-7.3 (2004), but whether he had “accrued obligations.” And Charles’s

obligations had accrued. Therefore, under the controlling opinion in Heumiller, the

circuit court did not err in holding that Charles’s 2009–2012 “accrued obligations”

were not subject to retroactive modification.




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