McGee v. McGee

WUEST, Chief Justice.

In this divorce action the trial court’s original decree of divorce granted the former wife (Judy) custody of the children and required the former husband (Keith) to pay child support. Judy appeals from an order that modified the original decree by awarding Keith custody of the two children and terminating his support obligation. We affirm.

FACTS

The parties’ first settlement agreement, which gave Judy custody of their children and required Keith to pay child support, was incorporated into a divorce decree entered in 1980. The property settlement, alimony and support provisions of this decree were vacated by the circuit court in August 1981 pursuant to SDCL 15-6-60(b). The order vacating the original decree made no determination of custody or child support.

In October 1981 the parties finally executed a second property settlement agreement. This agreement, among other things, continued custody of the two children in Judy and required Keith to pay $225 per child per month in child support. The terms of the agreement required Keith to pay child support “irrespective of visitation, or change of custody, or location of the children ...” This second agreement was incorporated into an order entered by the circuit court on April 23, 1982.

Actual physical custody of the children changed in March 1986 when Judy left them with Keith after a dispute about their care. In June 1986 Keith made a motion to have the court formally award custody of the children to him, to eliminate his child support payments, and to determine what child support Judy should be required to pay. After a hearing, the trial court entered an order awarding custody of the children to Keith and terminating his support obligation. The court concluded that joint custody was inappropriate because of the inability of the parties to communicate. Judy was not required to provide any child support although the trial court’s order required her to provide the children with meals when they visited her. She was simply granted “liberal visitation.” Judy appeals from this order.

Since Keith has had custody of the children, the frequency of their visitations with their mother has been left entirely to the children. Occasionally, they stayed overnight with their mother. The testimony of the parties conflicted over how often the children visited their mother and how often she fed them. Judy claimed that the children visited her daily. Although she testified that she fed them evening meals, her testimony is not entirely clear about whether she fed them on every visit. She claimed that because Keith and his present wife worked such late hours at their business, the children either had to eat after 8:00 p.m. or fix their own meals in Keith’s home. Without any elaboration Keith simply testified that the children’s evening meals were eaten “at my place.”

Excluding the costs for the children’s meals, Judy had annual expenses of approximately $9,600; her annual income was approximately $6,000. None of her claimed expenses appeared unreasonable or unnecessary. She claimed her limited income made it a hardship for her to meet her own expenses and also feed the children when they visited her.

Keith made no claim that he was unable to provide any limited support for the purpose of feeding the children evening meals at Judy’s home. He made all of his previous child support payments until custody changed.

JUDY’S CLAIM

The only issue raised by Judy is that the trial court abused its discretion in terminating Keith’s child support because there was no change in circumstances and because the parties’ agreement specifically provided that he would continue to pay support even if custody of the children changed. Judy does not contest the custody award.

1. MODIFICATION OF CHILD SUPPORT

We have held that trial courts clearly have “continuing jurisdiction in a divorce action to modify the judgment concerning the support and maintenance of the children.” Jameson v. Jameson, 306 N.W.2d 240, 242 (S.D.1981), citing SDCL 25-4-45; see also Hood v. Hood, 335 N.W.2d 349 (S.D.1983). The parties’ agreement cannot deprive the courts of their power to modify support obligations. In discussing the effect of a settlement agreement regarding alimony this court said:

[T]he court in the first instance is not controlled by the contract or agreement between the parties, and may adopt or reject it as seems consistent and proper. The decree for allowance for support, under our statute, does not rest upon the agreement, but the agreement may be considered the same as other evidence in aiding the court to determine the proper allowance to be made.

The allowance finally determined and fixed in the decree is the result of judicial investigation, and not the result of an agreement between the parties. It is no doubt true that the agreement of the parties concerning support is in the majority of cases adopted by the court, but this does not alter or change the legal principle upon which the decree is based. Under our statute the court has jurisdiction to make this allowance for support, and to modify the allowance from time to time. To hold that because the court in the first instance had fixed the amount as agreed upon by the parties, the decree was, therefore, not subject to modification, would deprive the court of a considerable part of this jurisdiction especially provided for by statute.

Shoop v. Shoop, 58 S.D. 593, 600, 237 N.W. 904, 907 (1931). This view of the effect of a settlement agreement on the court’s power to determine and modify alimony is equally applicable to the child support provisions, which are modifiable under SDCL 25-4-45. To allow the agreement of the parties to be enforced like other contracts and permit it to determine the support provided to the children would ignore the needs of the children.¹ See J. Oldham, Divorce, Separation and the Distribution of Property, § 4.11 (1987). Therefore, the trial court retained the power to modify child support even though the agreement attempted to limit this power.

2. CHANGE OF CIRCUMSTANCES

Judy further argues that the trial court abused its discretion in determining that conditions had changed because, she claims, the agreement clearly contemplated that a change in custody would not be one of the circumstances affecting Keith’s child support obligation. We have said, however, “[Cjhild support payments can be adjusted, even though they were originally based upon a stipulation, [cites omitted] when the trial court in its discretion determines that conditions have Changed....” Jameson, supra. Just as the parties’ agreement could not prevent the trial court from modifying child support, the agreement could not deprive the court of the power to determine whether circumstances had changed as a basis for modifying the support obligation. In this ease, modification of Keith’s support obligation was warranted by the change in custody from Judy to Keith, despite the parties agreement. Brunick v. Brunick, 405 N.W.2d 633 (S.D.1987). The trial court did not abuse its discretion in determining that circumstances had changed.

3. TERMINATION OF KEITH’S CHILD SUPPORT OBLIGATION

Having determined that the trial court had the power to modify Keith’s child support obligation, we must finally decide whether the court abused its discretion in completely eliminating his support obligation when he was awarded custody. Even though Judy had limited resources and a hardship may have been imposed on her to provide meals to the children when they visited her, the trial court did not abuse its discretion by terminating Keith’s support obligation. This court will not disturb a trial court’s award of child support unless there has been an abuse of discretion. Straub v. Straub, 381 N.W.2d 260 (S.D.1986); Hoy v. Hoy, 391 N.W.2d 685 (S.D.1986). The trial court’s order is affirmed.

Judy’s request for attorney’s fees on appeal is denied.

MORGAN, J., concurs. HENDERSON, J., concurs specially. SABERS, J., concurs in part and dissents in part. MILLER, J., disqualified.

1 . It is true that some contract principles may apply to settlement agreements entered into in the course of divorce proceedings. See Forester v. Weber, 298 N.W.2d 96 (S.D.1980) (contract principles are applied to interpret property settlement agreements incorporated into divorce decree); Flynn v. Flynn, 338 N.W.2d 295 (S.D.1983) (agreement for determination of attorney’s fees in divorce was not ambiguous and parol evidence should not have been admitted). See generally, Oldham, supra, ch. 4.