#26215-a-JKK

2012 S.D. 68

                         IN THE SUPREME COURT
                                 OF THE
                        STATE OF SOUTH DAKOTA

                                ****
NICOLE HEUMILLER
n/k/a SNYDERS,                           Plaintiff and Appellee,

     v.

DOUGLAS HEUMILLER,                       Defendant and Appellant.


                                ****

                 APPEAL FROM THE CIRCUIT COURT OF
                    THE FIRST JUDICIAL CIRCUIT
                   MCCOOK COUNTY, SOUTH DAKOTA

                                ****

                THE HONORABLE TIMOTHY W. BJORKMAN
                              Judge

                                ****

SHERLYN J. KOLETZKY
Yankton, South Dakota                    Attorney for plaintiff
                                         and appellee.


MICHAEL E. UNKE
Salem, South Dakota                      Attorney for defendant
                                         and appellant.


                                ****

                                         CONSIDERED ON BRIEFS
                                         ON MAY 21, 2012

                                         OPINION FILED 10/03/12
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KONENKAMP, Justice

[¶1.]        A father petitioned to modify his child support obligation, requesting

that his future payments be reduced to account for overpayments he made after his

two eldest sons graduated from high school and reached the age of majority.

Concluding that this request would result in a retroactive modification of child

support in violation of SDCL 25-7-7.3, the referee denied any reduction for amounts

overpaid before the petition was filed. The circuit court adopted the referee’s report.

                                    Background

[¶2.]        Nicole and Douglas Heumiller divorced on April 8, 2010. Incorporated

into their judgment and decree of divorce was a stipulation and agreement

addressing, among other things, Douglas’s duty to pay child support for their three

children. They agreed that Douglas “will pay to [Nicole] for the support and

maintenance of the parties [sic] minor children $1,238.36 per month payable on the

first day of every month. . . .” The agreement further provided:

             said support shall continue until such child dies, is adopted, is
             emancipated or reaches the age of majority, whichever shall
             occur first. The parties understand that pursuant to South
             Dakota law, a minor child shall reach the age of majority on
             his/her 18th birthday or on the day following his/her final day as
             a full-time secondary student, whichever shall occur later,
             except that in no even [sic] shall the child support obligation
             continue past the 19th birthday of the minor child.

[¶3.]        On September 20, 2011, Douglas petitioned for a modification of his

child support obligation because his two older children had reached the age of

majority and finished their final days as full-time secondary students. The oldest

child had graduated from high school and reached the age of majority in May 2010.

The second child had graduated from high school in May 2011, at eighteen years

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old. Because his eldest child reached the age of majority over a year earlier, and

Douglas continued to pay the full child support amount for all three children,

Douglas requested that the court reduce his future child support obligation for his

youngest child to account for his overpayments.

[¶4.]        After a hearing, the child support referee reduced Douglas’s future

child support obligation to $699 per month. But the referee refused to further

reduce Douglas’s obligation to account for the child support Douglas overpaid from

May 2010. The referee relied on SDCL 25-7-7.3, which provides that “[a]ny past

due support payments are not subject to modification . . . , except those accruing in

any period in which there is a pending petition for modification of the support

obligation. . . .” The referee ruled that Douglas’s request for a future reduction to

account for past overpayments was in effect a retroactive modification of past due

support payments.

[¶5.]        On appeal to the circuit court, Douglas argued that SDCL 25-7-7.3 did

not apply to him because he owed no “past due” support. The circuit court ruled

“that SDCL 25-7-7.3 does not apply only to cases in which there is past due support

owing. It applies to any past due support payments without regard to whether

those payments were made.” It adopted the referee’s proposed findings of fact and

conclusions of law.

[¶6.]        Douglas now appeals, asserting that the circuit court should have

modified his current support obligation to account for the overpayment of his past

child support. Because the question in this case requires our interpretation of




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SDCL 25-7-7.3, our review is de novo. See Arneson v. Arneson, 2003 S.D. 125, ¶ 27,

670 N.W.2d 904, 914.

                              Analysis and Decision

[¶7.]        Douglas asserts that SDCL 25-7-7.3 does not foreclose the reduction of

his current support obligation to account for his overpayment of child support from

May 2010, because none of those payments were “past due.” According to Douglas,

“past due” means that the payment was unpaid. See SDCL 25-7-7.4 (an “unpaid”

support payment becomes a judgment). He likens overpaid child support payments

to overpaid child care expenses. See Juttelstad v. Juttelstad, 1998 S.D. 121, ¶ 17,

587 N.W.2d 447, 451. He also argues that the parties’ stipulation created a binding

contract requiring a reduction of his obligation “when the two children graduated at

18.”

[¶8.]        Although we have consistently held that past child support payments

are not subject to modification “except those accruing in any period in which there is

a pending petition for modification of the support obligation,” we have not

specifically addressed whether SDCL 25-7-7.3 encompasses both paid and unpaid

support obligations. The plain language of SDCL 25-7-7.3, however, shows that

whether the support is paid or unpaid is immaterial. Our inquiry is whether the

obligation has accrued. To conclude otherwise would require us to isolate the

phrase “past due support payments” from the rest of SDCL 25-7-7.3. See Faircloth

v. Raven Indus., Inc., 2000 S.D. 158, ¶¶ 6-7, 620 N.W.2d 198, 201 (we interpret the

words of the whole statute rather than phrases or words in isolation).




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[¶9.]        SDCL 25-7-7.3 provides that “past due support payments are” not

subject to modification “except those accruing in any period in which there is

pending a petition for modification of the support obligation[.]” (Emphasis added.)

Standing alone, “past due support payments” does not lend itself to the conclusion

that only unpaid support obligations were contemplated by the Legislature. Indeed,

if we, like the special concurrence, isolate the phrase “past due support payments”

from the rest of the statute the result would be illogical. First, a “past due support

payment” is a “payment,” which is logically something that has been paid. But how

can a “past due support payment” be “past due” if it is paid? Second, the use of the

word “accruing,” albeit in an exception, indicates that the Legislature was focused

on accrual. Had the payment status of the obligation been the focus, the

Legislature could have easily said “except those (past due support payments) made

in any period” a modification petition is pending.

[¶10.]       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. See Bertelsen v. Allstate Ins. Co., 2009 S.D. 21, ¶ 15, 764

N.W.2d 495, 500. When the language is clear, this Court does not review legislative

history. Id. The Legislature used the word “accruing,” and used that word in

reference to “past due support payments.” Further, if we interpret “past due

support payments” to mean only unpaid support obligations, then only those same

(unpaid) obligations are available for retroactive modification when a petition for

modification is pending. Paid support obligations, on the other hand, would be




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excluded under SDCL 25-7-7.3, even if made while a petition for modification was

pending.

[¶11.]       Focusing on the accrual date of the support obligation, rather than its

paid or unpaid status, gives meaning to the statute as a whole. Under the plain

meaning of the statute, past due support payments (paid or unpaid) cannot be

retroactively modified unless that past due support payment (paid or unpaid)

accrued prior to a pending modification petition. That the Legislature intended

SDCL 25-7-7.3 to encompass unpaid and paid support obligations is evident in the

Legislature’s use of the word “unpaid” in SDCL 25-7-7.4 and SDCL 25-7-7.5,

“arrearages” in SDCL 25-7-6.19, and accrued “past due support payments” in SDCL

25-7-7.3. In SDCL 25-7-7.4, the Legislature declared that “[a]ny payment or

installment of support . . . which is unpaid after the date it is due, is a judgment by

operation of law.” (Emphasis added.) See also SDCL 25-7-7.5. Then in SDCL 25-7-

7.6, the Legislature used the phrase “unpaid child support arrearages.” Certainly,

“past due support payments” means something different than “unpaid child support

arrearages.” See special concurrence ¶ 23 (using the phrase “unpaid child support

arrearages”). SDCL 25-7-7.3, however, does not limit itself to only “unpaid”

obligations or arrearages.

[¶12.]       Our past cases, while not on point, further buttress the notion that the

accrual date of the support obligation is controlling. See Vellinga v. Vellinga, 442

N.W.2d 472, 474 (S.D. 1989); see also Houser v. Houser, 535 N.W.2d 882, 886 (S.D.

1995); Earley v. Earley, 484 N.W.2d 125, 129 (S.D. 1992) (retroactive increase of an

accrued support obligation prohibited). In Vellinga, we identified two types of past


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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. 1 442

N.W.2d at 474. 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. (emphasis added).

[¶13.]         Similarly, in O’Grady v. O’Grady, we focused on the accrual date of the

past support payments, not whether they were paid or unpaid, in holding that past

due support payments could not be retroactively modified. See 1998 S.D. 89, ¶ 17,

582 N.W.2d 707, 711. While O’Grady addressed retroactive modification of past

paid support obligations, the case is not on point because the father also owed

arrearages for past unpaid support, and we did not distinguish between the paid

and unpaid obligations. 2 Nonetheless, in concluding that the circuit court erred, we



1.       Although Vellinga dealt with whether SDCL 25-7-7.3 could be applied
         retroactively, the Court did not bar only the retroactive modification of
         support obligations that accrued before the passage of the statute, but also
         those that accrued between July and September 1987, the time the statute
         was in effect, but before a petition for modification was pending.

2.       In 1993, the father was ordered to pay $519 for the support of his four
         children:
               From January 1993 until April 1994, he paid the full obligation.
               From May 1994 until March 1995, he unilaterally reduced his
               obligation to $284.50, and thus incurred arrearages.
               From April 1995 until September 1996, he paid the full
               obligation, $519 monthly.
               In August 1996, the father petitioned the court for modification of his
               support obligation because two of his four children reached the age of
               majority and had graduated from high school (one in April 1994 and
                                                                    (continued . . .)
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held that SDCL 25-7-7.3 only allows modification of payments that accrue after the

date of the petition.

[¶14.]       In this case, Douglas did not petition for modification of his support

obligation until September 9, 2011. Therefore, the payments he made before the

date he gave notice of his petition fell squarely under the purview of SDCL 25-7-7.3:

they accrued in a period during which there was no pending petition for a

modification. Further, the fact that he was under no duty to support his children

beyond the age of eighteen, or nineteen if still in high school, does not mean

Douglas is entitled to a credit or offset for amounts paid after his children turned

eighteen or nineteen. Indeed, nothing in SDCL 25-5-18.1 mandates automatic

reduction of a support order. Compare SDCL 25-5-18.1 with La. Rev. Stat. §

9:315.22(B) (ordering automatic cessation of support obligation when youngest child

attains age of majority). Rather, Douglas, as the support payor, had the duty to

seek modification each time one of his children reached the age of majority. See,

e.g., Vanderbosch v. Vanderbosch, 950 N.E.2d 32 (Ind. Ct. App. 2011) (table) (no

credit given when father overpaid by $13,000, after he neglected to request

termination of an automatic withdraw for arrearages); Anderson v. Anderson, 2012

WL 1759423 (Conn. Super. Ct. 2012) (unpublished). The circuit court did not err


__________________
(. . . continued)
               the other in July 1994). He further requested that the amounts he
               overpaid after his children reached majority be applied to reduce his
               arrearages. The court modified Father’s obligation, and further
               reduced his arrearages to account for the amounts he overpaid after
               July 1994.

O’Grady, 1998 S.D. 89, ¶¶ 5-8, 582 N.W.2d at 708-09.

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when it interpreted SDCL 25-7-7.3 to prohibit retroactive reduction of Douglas’s

future support obligation to account for his overpayments.

[¶15.]       Moreover, in the parties’ stipulation, there was no agreement for any

credit or offset. Nothing in the stipulation identifies a set rate of child support for

each child. Thus any payments made before the date Douglas gave notice to the

interested parties of his petition for a modification “inure[d] to the benefit of the

remaining children.” See O’Grady, 1998 S.D. 89, ¶ 15, 582 N.W.2d at 710. Finally,

child support payments cannot be equated with child care expenses. “Child care

expenses are not a part of the basic child support obligation, but only a factor for

deviation from the schedule.” Juttelstad, 1998 S.D. 121, ¶ 17, 587 N.W.2d at 451.

[¶16.]       Nicole and Douglas both requested appellate attorney’s fees. In

determining whether either side should be required to pay the other’s attorney’s

fees, we consider “the property owned by each party, their relative incomes, the

liquidity of the assets and whether either party unreasonably increased the time

spent on the case.” Barnes v. Matzner, 2003 S.D. 42, ¶ 24, 661 N.W.2d 372, 379

(citation omitted). Considering these factors, we deny Douglas’s request and grant

Nicole’s in the amount of $2,833.38.

[¶17.]       Affirmed.

[¶18.]       GILBERTSON, Chief Justice, and SEVERSON and WILBUR,

Justices, concur.

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




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ZINTER, Justice (concurring in result).

[¶20.]       I respectfully disagree with the Court’s reasoning. There is a

substantial difference between accrued obligations and past due payments; and

SDCL 25-7-7.3 only prohibits retroactive modification of “past due support

payments.” (Emphasis added.) The Court, however, reasons that it is “immaterial”

that Douglas fully paid his support payments when due; i.e. that he had no past due

support payments. Supra ¶ 8. In the Court’s view, the only relevant question is

whether any support obligation “accrued.” Supra ¶ 8.

[¶21.]       “[W]ords in a statute are to be understood in their ordinary sense,” In

re W. River Elec. Ass’n, Inc., 2004 S.D. 11, ¶ 21, 675 N.W.2d 222, 228 (citing SDCL

2-14-1), but the Court’s interpretation disregards the ordinary meaning of the words

“past due payments.” It is illogical for the Court 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.”

[¶22.]       The plain, ordinary, and everyday meaning of the words “past due

payments” is that the payments were not fully paid when due, such that there are

arrearages. Douglas had no arrearages because he paid every support payment in

full and on time. Therefore, he had no unmodifiable “past due support payments”

within the meaning of SDCL 25-7-7.3. Because he had no past due support

payments, the statute did not categorically bar consideration of Douglas’s claim that


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Nicole was unjustly enriched by retaining more child support than the divorce

decree required.

[¶23.]       The legislative history of SDCL 25-7-7.3 confirms this understanding

of “past due support payments.” Prior to the enactment of SDCL 25-7-7.3, this

Court repeatedly held that child support arrearages were modifiable. See, e.g.,

Hanson v. Hanson, 397 N.W.2d 656 (S.D. 1986); Hoy v. Hoy, 391 N.W.2d 685 (S.D.

1986); Forkel v. Forkel, 387 N.W.2d 52 (S.D. 1986); Stach v. Stach, 369 N.W.2d 132

(S.D. 1985); State ex rel. Larsgaard v. Larsgaard, 298 N.W.2d 381 (S.D. 1980).

“Arrearage[s]” were defined as “the total amount of unpaid support obligations[.]”

SDCL 25-7A-1(2). In apparent reaction to these cases culminating with Hanson in

1986, the 1987 Legislature enacted SDCL 25-7.7.3, “[a]n Act to prohibit retroactive

modification of support arrearages.” 1987 S.D. Sess. Laws ch. 190 (emphasis

added). Chapter 190 reflects that the new prohibition on modification of “past due

support payments” in SDCL 25-7-7.3 was intended to prohibit modification of

unpaid child support arrearages rather than fully paid or overpaid child support

obligations. The statute was not intended to bar consideration of a claim where the

obligor had no past due support payments and the obligor was claiming unjust

enrichment because he or she had overpaid the obligation that was due.

[¶24.]       To arrive at the opposite conclusion, the Court replaces the statutory

words “past due support payments” with the words “accrued obligations.” See supra

¶ 8. But the text does not prohibit modification of “accrued obligations.”

[¶25.]       Further, the majority’s sole focus on “accrued” obligations is rejected by

the words that the Legislature did use. Accrual is an “accounting method that


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records entries of debits and credits when the revenue or liability arises, rather

than when the income is received or an expense is paid.” Black’s Law Dictionary 22

(9th ed. 2009). But SDCL 25-7-7.3 rejects the Court’s inquiry that focuses solely on

“accrued” obligations because the statute makes no reference to when the liability

arose. The statute’s language focuses only on whether the obligation was paid; i.e.,

whether there are “past due” support “payments.” By using the words “past due,”

the Legislature required courts to consider whether there are unpaid support

arrearages rather than whether any obligation for support had arisen. Ultimately,

the majority writes the words “past due payments” out of the statute. But “[w]e

presume the Legislature does not insert surplusage into its enactments. . . . [T]his

[C]ourt will not construe a statute in a way that renders parts to be . . . surplusage.”

Nielson v. AT & T Corp., 1999 S.D. 99, ¶ 16, 597 N.W.2d 434, 439.

[¶26.]       The Court asserts that the words “accrued obligations” may be

substituted for the words “past due payments” because the word “accruing” is found

in the statute and all portions of the statute should be read together. See supra ¶¶

8-11. The statute, however, only uses the word “accruing” in an exception to the

rule against retroactive modification. The statute prohibits retroactive modification

of “past due support payments . . . except those accruing in any period in which

there is a pending petition for modification.” SDCL 25-7-7.3 (emphasis added).

Because “past due support payments” is the antecedent of the pronoun phrase

“those accruing,” the words “those accruing” are a mere reference to “past due

payments.” This reference in the exception does not purport to modify the meaning

of “past due support payments” in the general prohibition on modifications. The


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reference in the exception certainly does not suggest that the Legislature intended

the retroactive modification inquiry to focus on whether the obligor had “accrued

obligations” rather than “past due support payments.”

[¶27.]       The Court suggests that if “past due support payments” only

encompass support obligations that are past due, then paid support obligations

would be unmodifiable “even if made while a petition for modification was pending.”

See supra ¶ 9. However, as we noted in Vellinga v. Vellinga, a circuit court has

broad discretionary authority to retroactively modify all child support payments

except those “past due support payments” governed by SDCL 25-7-7.3. 442 N.W.2d

472, 473 (S.D. 1989) (citing Larsgaard, 298 N.W.2d 381). Because SDCL 25-7-7.3

only prohibits modification of “past due” support payments, a circuit court retains

authority to modify paid support obligations.

[¶28.]       Today’s case presents a question of first impression involving the

interpretation of unambiguous language. The majority’s cases do not support its

interpretation. The language taken from this Court’s past cases is dicta that should

not be used to rewrite the plain meaning of the statutory language.

[¶29.]       The concept of accrual originated in Vellinga, 442 N.W.2d 472. In that

case, the obligor sought retroactive modification of his child support obligation after

falling behind in his payments. Although SDCL 25-7-7.3 was enacted to prohibit

certain retroactive modifications, the statute did not go into effect until after the

obligor was already delinquent. Therefore, in disputing the total amount of his

arrearages, the obligor argued that the Legislature did not intend for the statute to




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apply retroactively to support that had “accrued” before the effective date of the new

statute. Vellinga, 442 N.W.2d at 474.

[¶30.]         In dealing with the issue of the statute’s retroactivity, “accrual” was

used by this Court to respond to the obligor’s argument. Using the obligor’s

language, this Court held the Legislature intended that the statute would apply to

“past due support payments which accrued” both before and after the statute’s

effective date. Id.

[¶31.]         This Court then applied the statute. Id. In doing so, this Court

continued its use of accrual language, but it did so sua sponte. No party had argued

that the new statute prohibited retroactive modification of “accrued obligations”

rather than “past due payments.” The meaning of “past due payments” was not at

issue. Therefore, the majority’s language from Vellinga is dictum that does not

support today’s Court’s substitution of the words “accrued obligation” for the words

“past due payments.” Vellinga and its progeny 3 cannot be used to change the

meaning of such clear statutory language.

[¶32.]         It should also be noted that changing the plain meaning of “past due

support payments” in SDCL 25-7-7.3 is not necessary to protect the obligee and the

obligee’s children. The claim here is for the equitable remedy of unjust enrichment.

Douglas would not be entitled to restitution for overpayments of support if




3.       The majority’s other authorities simply repeated Vellinga’s dictum without
         analysis in cases where the meaning of “past due support payments” was not
         at issue. See O’Grady v. O’Grady, 1998 S.D. 89, 582 N.W.2d 707; Houser v.
         Houser, 535 N.W.2d 882 (S.D. 1995); Earley v. Earley, 484 N.W.2d 125 (S.D.
         1992).

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restitution would be inequitable or if restitution were subject to an equitable

defense. For example, Douglas would not be entitled to restitution to the extent the

obligee and children detrimentally relied upon the support provided. See generally

Restatement (Third) of Restitution & Unjust Enrichment § 65 (2011).

Further, even if recovery of some overpayment were equitable, the circuit court

would be required to fashion an equitable remedy other than reducing future

payments that were needed for ongoing support of the children.

[¶33.]        Although the Court improperly changes the clear and unambiguous

meaning of “past due support payments,” the Court reaches the correct result for

two reasons. First, Douglas’s divorce agreement and decree contained no “provision

for a pro rata distribution of the obligation or an automatic reduction of support

(consistent in amount with the guidelines) upon the occurrence of either event as

each child attained it.” See O’Grady, 1998 S.D. 89, ¶ 15, 582 N.W.2d at 710.

Without such a provision, “the full support continued to inure to the benefit of the

remaining children.” Id. See also Radigan v. Radigan, 465 N.W.2d 483, 485 (S.D.

1991) (concluding that no pro rata reduction was warranted under language that

required support “until both children reach the age of majority”); Houser, 535

N.W.2d at 884 (concluding that no pro rata reduction was warranted under

language that required support “until said children shall attain the age of

majority”).

[¶34.]        Douglas was also not entitled to relief because he introduced no

evidence regarding the income of the parties at the time each child turned eighteen

or graduated from high school. Without such a showing of factual entitlement to a


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lesser obligation under the applicable guidelines, Douglas was not entitled to a

reduction of his previously ordered obligation. See O’Grady, 1998 S.D. 89, ¶ 31, 582

N.W.2d at 712 (Gilbertson, J., concurring) (noting that as “children either reach[]

nineteen or graduate[] from high school, all other variables [are] not frozen in time,”

and to re-calculate child support, the court must, at a minimum, have evidence of

income of the parties on the date the child is no longer entitled to support).

[¶35.]       For the foregoing reasons, I concur in result.




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