#25900-a-SLZ

2011 S.D. 78

                           IN THE SUPREME COURT
                                   OF THE
                          STATE OF SOUTH DAKOTA

                                   * * * *

LINDA K. (MEYERINK) LINGE,                   Plaintiff and Appellant,

     v.

STEVEN J. MEYERINK,                          Defendant and Appellee.

                                   * * * *

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

                                   * * * *

                   HONORABLE WILLIAM J. SRSTKA, JR.
                               Judge

                                   * * * *


KENNETH M. TSCHETTER of
Tschetter & Adams Law Office, PC
Sioux Falls, South Dakota                    Attorneys for plaintiff
                                             and appellant.

ROBERT L. SPEARS
Watertown, South Dakota                      Attorney for defendant
                                             and appellee.


                                   * * * *

                                         CONSIDERED ON BRIEFS
                                         OCTOBER 3, 2011

                                         OPINION FILED 11/22/11
#25900

ZINTER, Justice

[¶1.]        Linda Linge appeals from an order reducing Steven Meyerink’s child

support obligation. Linge argues that the referee and circuit court abused their

discretion in allowing Meyerink a deviation from the child support guidelines based

on his financial condition. Linge acknowledges that Meyerink’s poor financial

condition was caused by his wife’s serious medical problems. But Linge argues that

Meyerink’s obligation to his children takes priority. Under the facts of this case, we

affirm.

                            Facts and Procedural History

[¶2.]        Linge and Meyerink married in 1989. When the parties divorced in

2000, Linge retained custody of their two children. Meyerink’s initial child support

obligation was $674.94 per month. His obligation was reduced to $515 in July 2001.

Meyerink’s obligation stayed at $515 since that time, and he remained current.

[¶3.]        Linge sought modification of Meyerink’s obligation in February 2010.

A child support referee heard testimony from the parties. Meyerink testified that

his wife suffers from a severe condition that affects her immune system. This

condition left her unable to work, and she currently receives Social Security

disability benefits. The unreimbursed medical bills associated with the condition

are substantial. They have caused Meyerink to incur a significant and continuing

accumulation of debt.

[¶4.]        Meyerink requested a deviation from the child support guidelines

because of his financial condition caused by his wife’s medical expenses. Meyerink’s

insurance covers most of the expenses. But the amount not covered by insurance

                                         -1-
#25900

has forced Meyerink to avoid foreclosure by consulting a debt consolidation

company, refinancing his house (interest-only mortgage) and pickup, obtaining

unsecured signature loans, and incurring more than $10,000 in credit card debt.

[¶5.]        Based on Meyerink’s financial condition, the referee allowed a $300 per

month downward deviation from the scheduled support obligation. (The worksheet

attached to the referee’s report shows that Meyerink’s obligation would have been

$748.55 without the $300 deviation.) See SDCL 25-7-6.2. The referee recommended

a new obligation of $449 per month, $66 less than his monthly obligation before

Linge petitioned for the modification. The referee’s recommendation was partially

based on a finding that Meyerink had accumulated $60,000 in credit card debt as a

result of the medical expenses.

[¶6.]        Linge objected to the referee’s report, and the circuit court heard the

objections. The court found that the referee had miscalculated the amount of

Meyerink’s credit card debt. The matter was remanded to the referee for further

consideration of Meyerink’s financial condition.

[¶7.]        On remand, Meyerink testified that although he did not have $60,000

in credit card debt, his total debt, accumulated since his wife began incurring

medical expenses, was roughly $60,000. The referee issued a report again

recommending a $300 per month deviation. The circuit court adopted the referee’s

recommendation.

                                      Decision

[¶8.]        This Court reviews the decision to grant or deny child support under

the abuse of discretion standard. Miller v. Jacobsen, 2006 S.D. 33, ¶ 18, 714 N.W.2d

                                         -2-
#25900

69, 76 (citing Midzak v. Midzak, 2005 S.D. 58, ¶ 17, 697 N.W.2d 733, 738

(additional citations omitted)). A child support referee’s findings of fact are

reviewed for clear error, while conclusions of law are reviewed de novo. Wagner v.

Wagner, 2006 S.D. 31, ¶ 5, 712 N.W.2d 653, 656 (citing Mathis v. Mathis, 2000 S.D.

59, ¶ 7, 609 N.W.2d 773, 774). “In addition, when the circuit court has adopted a

child support referee’s findings and conclusions, we apply the clearly erroneous

standard of review to the findings and give no deference to conclusions of law.” Id.

Findings of fact are not reversed for clear error “unless we are left with a definite

and firm conviction a mistake has been made.” Id.

[¶9.]        SDCL 25-7-6.10(2) allows a deviation from the child-support guidelines

based on “[a]ny financial condition of either parent which would make application of

the schedule inequitable.” Id. The referee ruled that Meyerink’s poor financial

condition justified application of this deviation.

[¶10.]       Linge sets forth her version of Meyerink’s monthly income and

expenses. Linge argues that when Meyerink’s income is combined with his wife’s

disability income, there is enough money left to pay the scheduled child support

obligation without a deviation. But Linge’s income calculations are based on

Meyerink’s gross income, giving no consideration to the deductions allowed by

SDCL 25-7-6.7 to determine the child support obligation. Linge’s view of

Meyerink’s financial condition also fails to consider all of his medical expenses.

Meyerink testified that treatment for his wife’s condition requires a great deal of

expense for out-of-town travel to California. Meyerink also testified that although

his monthly payment to the local hospital is only $50 per month, his wife incurs

                                           -3-
#25900

unreimbursed expenses at that hospital of roughly $500 per month. Thus, he is

accumulating an additional $450 in medical debt each month. Meyerink’s financial

condition is not that suggested by Linge.

[¶11.]       Linge, however, stresses that to this point Meyerink has not defaulted

on any debt, and he has been able to meet his child support and other financial

obligations. Linge argues that because Meyerink remains solvent, a deviation

should not be available. But SDCL 25-7-6.10(2) is not limited to obligors who are

insolvent. Meyerink has met his obligations, but only by using a debt consolidating

company, securing an interest-only mortgage on his home, refinancing his pickup

using its maximum value, obtaining unsecured loans, and negotiating to pay

medical providers a monthly amount that does not keep pace with the debt that is

accumulating. Meyerink’s deviation is supported by findings that are not clearly

erroneous.

[¶12.]       Linge also advances a number of arguments that application of the

deviation was an abuse of discretion. Linge argues that the presumption of

financial hardship found in SDCL 25-7-6.10(2) does not apply. That statutory

presumption provides:

             Deviation from the schedule in § 25-7-6.2 shall be considered if
             raised by either party and made only upon the entry of specific
             findings based upon any of the following factors: . . . (2) Any
             financial condition of either parent which would make
             application of the schedule inequitable. If the total amount of
             the child support obligation, including any adjustments for
             health insurance and child care costs, exceeds fifty percent of
             the obligor’s monthly net income, it is presumed that the
             amount of the obligation imposes a financial hardship on the
             obligor. This presumption may be rebutted based upon other
             factors set forth in this section[.]

                                            -4-
#25900

But neither the referee nor the circuit court applied that presumption in this case.

[¶13.]       Linge argues that a deviation lowering Meyerink’s pre-existing child

support obligation “defies logic” because Meyerink has been meeting his prior,

higher monthly obligation. Linge relies on Hollinsworth v. Hollinsworth, 2008 S.D.

102, ¶ 21, 757 N.W.2d 422, 429. But Hollinsworth concerned SDCL 25-7-6.10(6), a

statute involving “the voluntary and unreasonable act of a parent which causes the

parent to be unemployed or underemployed.” There is no contention that Meyerink

voluntarily and unreasonably became unemployed or underemployed. Hollinsworth

is inapposite.

[¶14.]       Linge argues that allowing the same deviation after the remand to

correct the credit card error was arbitrary and unreasonable. Although the amount

of Meyerink’s credit card debt changed, the total amount of debt did not

substantially change. The referee’s reevaluation of Meyerink’s financial condition

on remand was not arbitrary and unreasonable.

[¶15.]       Linge argues that the circuit court erred in failing to enter specific

findings and conclusions supporting the deviation. The circuit court, however,

adopted the referee’s findings and conclusions. A circuit court may adopt the

findings of the referee. Wagner, 2006 S.D. 31, 712 N.W.2d 653.

[¶16.]       Linge finally argues that a downward deviation violates public policy.

Linge relies on Donohue v. Getman, 432 N.W.2d 281 (S.D. 1988). In Donohue, this

Court analyzed SDCL 25-7-7 (1988), which authorized deviations only on specific,

enumerated factors, one of which was “the financial condition of the parents.” Id. at

282. That statute was repealed in 1989. SDCL 25-7-6.10 was the replacement

                                          -5-
#25900

statute, and subsection (2) of that statute now allows a deviation based on “[a]ny

financial condition of either parent which would make application of the schedule

inequitable.” Id. (emphasis added). This new language was specifically intended to

allow a deviation based on the “general financial condition of either parent.” South

Dakota Child Support Commission December 1988 Report, at 13. The Commission

acknowledged the broad general nature of the deviation and its application to

unspecified financial conditions not specifically enumerated.

               Although the Commission has concerns about the potential
               abuse of such language, the Commission believes that there may
               be other financial conditions which would make the application
               of the guideline schedule inequitable. The Commission
               anticipates that there will be a high burden on the party seeking
               to utilize this deviation and that the deviation will not be used
               indiscriminately so as to destroy the purpose of the guidelines.

Id.

[¶17.]         We acknowledge that we have often stated “a parent’s responsibility to

support his children is paramount[.]” Donohue, 432 N.W.2d at 283. This rule has

not changed since the repeal of SDCL 25-7-7. See, e.g., Kost v. Kost, 515 N.W.2d

209, 214 (S.D. 1994). 1 But Donohue and Linge’s other primary authorities involved

deviations due to the costs of supporting obligors’ stepchildren in second families.

The 1988 Child Support Commission indicated that in second family children cases

the child support obligor enters the new family or new marriage relationship

knowing of his or her prior child support obligation.


1.       Kost involved an obligor’s financial condition caused by a discretionary
         decision of the obligor to forego employment to attend a technical school. 515
         N.W.2d at 214. It has no application to this case involving a fully employed
         obligor who has encountered an involuntary change in financial condition.

                                           -6-
#25900

               Much time was consumed by the Commission in discussing the
               issue of step-children and second family children and how they
               should affect the guidelines. . . . The Commission could not find
               a simplified but workable process for dealing with this issue.
               The variables were so great that the Commission felt it was best
               addressed in a deviation. . . . The Commission was unanimous,
               however, in agreeing that under no conditions should this
               deviation be used for the purposes of reducing an existing
               award. A parent would certainly be aware of this obligation
               when entering into a new family or marriage relationship, and
               the children of the first marriage should not be adversely
               affected.

South Dakota Child Support Commission December 1988 Report, at 13. SDCL 25-

7-6.10(5) codified this concern. 2 But the concern of “knowingly” incurring additional

obligations does not apply to Meyerink. There is no evidence that Meyerink’s

current wife’s medical condition was known at the time of their marriage.

                                       Conclusion

[¶18.]         Meyerink pays a substantial portion of his income in fulfillment of his

responsibility to his children. It appears that the downward deviation was allowed

to provide Meyerink the financial ability to work and to continue to provide for his

children. The referee and circuit court found that without the requested deviation,

Meyerink could not meet his financial obligations. Although SDCL 25-7-6.10(2) is

to be applied cautiously and only in rare cases, the language of the statute

contemplates Meyerink’s situation. The referee and circuit court did not abuse their

2.       SDCL 25-7-6.10(5) provides:

               Deviation from the schedule in § 25-7-6.2 shall be considered if
               raised by either party and made only upon the entry of specific
               findings based upon any of the following factors: . . . (5) The
               obligation of either parent to provide for subsequent natural
               children, adopted children, or stepchildren. However, an
               existing support order may not be modified solely for this
               reason[.]
                                            -7-
#25900

discretion in granting Meyerink a downward deviation based on his financial

condition. The order of the circuit court affirming the referee’s recommendation is

affirmed. Meyerink’s motion for appellate attorney’s fees is denied.

[¶19.]       Affirmed.

[¶20.]       GILBERTSON, Chief Justice, and KONENKAMP, SEVERSON, and

WILBUR, Justices, concur.




                                         -8-
