PIERRE, S.D. (KELO) — The state laws that the South Dakota Legislature has adopted regarding child support don’t address a special situation in Lincoln County, where the mother has primary custody of one child but both parents have joint custody of the second child.

That unusual circumstance led Tami Jo Burkard to appeal to the South Dakota Supreme Court in a dispute with her former husband Charles over how much he should pay each month.

They divorced in 2014 and agreed to share joint legal and physical custody of their daughter and son, with Charles paying $1,000 monthly. But in 2022, the daughter decided she wanted to live only with her mother, who then sought an increase in the amount of child support paid by the father.

They couldn’t agree, and a referee was appointed. Tami Jo wanted the new amount to be calculated using a state law where one parent has primary custody. But Charles wanted the amount to also reflect a state law where parents have joint custody. The referee rejected both suggestions, instead arriving at a “hybrid calculation” that Charles should pay $1,465.58 a month.

That amount — $1,465.58 — was accepted by Circuit Judge John Pekas, who also allowed oral and written testimony from lawyer and child-support referee Tom Keller on behalf of Charles. Judge Pekas acknowledged that Tami Jo’s lawyer was “absolutely right” that Keller’s testimony shouldn’t be allowed but said the information from Keller would be important if the case was reviewed “at a higher level.”

Tami Jo took the matter to that higher level and appealed to the South Dakota Supreme Court, arguing that Judge Pekas erred in allowing Keller’s testimony, and the state’s high court agreed. But Justice Janine Kern, who authored the Supreme Court’s decision that was publicly released on Thursday, said Tami Jo hadn’t shown that it was prejudicial to her because Judge Pekas adopted the referee’s compromise amount.

Tami Jo also challenged the decision by Judge Pekas to adopt that amount. But as Justice Kern noted in the decision, “Both parties have asserted, and this Court agrees, that the current
statutory scheme does not expressly address a child custody situation where one party has sole custody of at least one child and both parties share joint custody of one or more additional children.”

Justice Kern wrote that the referee “attempted to strike an equitable balance between these two alternative possibilities by averaging the statutory standard and cross-credit calculations for two children” at $1,465.68 rather than accepting the $1,254 that Charles had proposed or the $2,014 that Tami Jo wanted.

But the justice went on to say that the referee’s approach wouldn’t work in all situations, and she offered another formula that could be considered. “However, our role on appeal is not to create a specific child support formula to fill the statutory gap discussed above. That is for the Legislature,” she wrote. “Here, the child support statutes do not address the factual scenario presented and the circuit court had discretion to equitably determine an amount of child support that reflects, as closely as possible, the overarching Legislative intent behind our statutory scheme.”

Justice Kern noted discrepancies in some of the income amounts the referee used in arriving at the $1,465.68 and ordered that final amount be re-calculated.



Source link

By admin

Malcare WordPress Security