Webb v. Webb , 2012 S.D. LEXIS 69 ( 2012 )

#26198-a-PER CURIAM
2012 S.D. 41IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
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KATHY L. WEBB, Plaintiff and Appellee,
v.
ANTHONY E. WEBB, Defendant and Appellant.
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APPEAL FROM THE CIRCUIT COURT
FOURTH JUDICIAL CIRCUIT
BUTTE COUNTY, SOUTH DAKOTA
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HONORABLE JOHN W. BASTIAN
Judge
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ANTHONY E. WEBB
Pierre, South Dakota Pro Se Appellant.
BRIAN L. UTZMAN
Smoot & Utzman, P.C.
Rapid City, South Dakota Attorneys for Appellee.
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CONSIDERED ON BRIEFS
ON APRIL 17, 2012
OPINION FILED 05/23/12
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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
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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
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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.
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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
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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.
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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.
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[¶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.
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