Gisi v. Gisi

#24145-aff in pt, rev in pt & rem-PER CURIAM

2007 SD 39

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

* * * *

LYNETTE D. GISI, Plaintiff and Respondent,

v.

MICHAEL S. GISI, Defendant, Petitioner and Appellant.

* * * *

APPEAL FROM THE CIRCUIT COURT OF
THE FIFTH JUDICIAL CIRCUIT
EDMUNDS COUNTY, SOUTH DAKOTA

* * * *

HONORABLE JACK R. VON WALD
Judge

* * * *

MICHAEL S. GISI Pro se defendant, petitioner
Bushnell, Florida and appellant.

* * * *

CONSIDERED ON BRIEFS
ON FEBRUARY 13, 2007

OPINION FILED 04/11/07
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PER CURIAM

[¶1.] Michael S. Gisi appeals pro se a circuit court order dismissing his

petition for modification of child support. We affirm in part, reverse in part and

remand.

BACKGROUND

[¶2.] Michael and Lynette D. Gisi were married on August 21, 1993, and

divorced February 6, 2001. Michael was incarcerated in the Florida State

Penitentiary at the time of the divorce. The court awarded Lynette full physical

and legal custody of the couple’s only minor child and ordered Michael to pay $190

per month for child support. During the divorce proceeding, Michael requested a

deviation from the child support statutory guidelines due to his incarceration and

lack of earning capacity, but the court denied his request. The court determined

that Michael’s incarceration was a voluntary termination of his employment, thus

no deviation was warranted. The court imputed a minimum wage income to

Michael for calculation of his child support obligation.

[¶3.] On December 27, 2005, Michael filed a pro se petition for modification

of child support. 1 He again requested a deviation based on his incarceration and

complete lack of income. A hearing on the petition was held before a court-

appointed referee. The referee concluded that Michael’s incarceration was a result

of his voluntary actions and that his prior income was imputed to him based on this

1. Because the order for support was entered prior to July 1, 2005, a showing of
a change in circumstances was not required prior to modification. SDCL 25-
7-6.13.

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fact. Therefore, the referee recommended that the court dismiss Michael’s petition

for modification upon the merits and with prejudice.

[¶4.] Michael objected to the referee’s report, claiming a deviation from the

statutory guidelines was warranted pursuant to SDCL 25-7-6.10. He also

submitted that a reduction from $190 per month to $100 per month was necessary

given the fact that his imputed monthly net income of minimum wage fell within

the $0-$800 range in the statutory guidelines. And, only a $100 per month child

support obligation is required for this range. The court held a hearing on Michael’s

objections to the referee’s report and ultimately dismissed the petition for

modification of child support upon the merits and with prejudice based upon the

recommendation of the referee.

[¶5.] Michael appeals pro se, raising two issues: 2

1. Whether the circuit court erred in dismissing Michael’s
petition for modification of child support.

2. Whether Michael was denied due process or access to the
courts when he was unable to obtain South Dakota law
materials concerning modification of child support while
incarcerated in a foreign jurisdiction.

STANDARD OF REVIEW

[¶6.] Our standard of review in child support modification cases is well

settled:

[W]e review a child support referee’s findings of fact under the
clearly erroneous standard and questions of law are fully
reviewable. Mixed questions of law and fact are classified as
questions of law and are reviewable de novo. In addition, when
the circuit court has adopted a child support referee’s findings

2. Lynette did not file an appellee’s brief.

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and conclusions, we apply the clearly erroneous standard of
review to the findings and give no deference to conclusions of
law. Further, in applying this standard, we will not reverse
findings of fact unless we are left with a definite and firm
conviction a mistake has been made.

Wagner v. Wagner, 2006 SD 31, ¶5, 712 NW2d 653, 656 (citing Mathis v. Mathis,

2000 SD 59, ¶7, 609 NW2d 773, 774). Also, “[t]his [C]ourt’s standard of review in

child support cases is whether the trial court abused its discretion in setting the

support.” Sjolund v. Carlson, 511 NW2d 818, 820 (SD 1994) (citation omitted).

ANALYSIS AND DECISION

1. Whether the circuit court erred in dismissing Michael’s
petition for modification of child support.

[¶7.] “SDCL 25-7-6.2 sets forth mandatory guidelines which courts must

follow in setting child support.” Schwab v. Schwab, 505 NW2d 752, 756 (SD 1993)

(citation omitted). That statute provides that “[t]he child support obligation shall

be established in accordance with the following schedule subject to such revisions or

deviations as may be permitted pursuant to §§ 25-7-6.1 to 25-7-6.18, inclusive.”

SDCL 25-7-6.2 (emphasis added).

[¶8.] According to the support obligation schedule in SDCL 25-7-6.2, the

minimum monthly child support order for one child is $100. This obligation is

imposed for a noncustodial parent with a monthly net income between $0-$800.

SDCL 25-7-6.2 (emphasis added). Because the court imputed a minimum wage

income to Michael, his monthly gross income is $893. However, “[t]he trial court is

required to calculate the parents’ monthly net income, which is equal to gross

income less allowable deductions, as codified at SDCL 25-7-6.3 and 25-7-6.7.”

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Midzak v. Midzak, 2005 SD 58, ¶30, 697 NW2d 733, 740-41. Thus, the obligation is

determined by the obligor’s monthly net income, not his gross income.

[¶9.] SDCL 25-7-6.7 provides in relevant part:

Deductions from monthly gross income shall be allowed as
follows:
(1) Income taxes payable based on the applicable tax rate for a
single taxpayer with one withholding allowance and a monthly
payroll period rather than the actual tax rate;
(2) Social security and medicare taxes based on the applicable
tax rate for an employee or a self-employed taxpayer.

According to the child support obligation worksheet supplied by the Department of

Social Services, the amount of income tax deducted for a single taxpayer is $40 and

the amount of Social Security and Medicare tax deducted is $68. 3 Thus, Michael’s

monthly net income falls below $800 after tax deductions. Therefore, his support

obligation should be $100 under the mandatory guidelines.

[¶10.] This amount is also within the emboldened area of the schedule. 4

SDCL 25-7-6.2. Thus, the court shall compare $100 to Michael’s proportionate

3. These figures are based on the 2007 tax table; however, the child support
obligation worksheet used by the court in formulating its initial award also
computed a monthly net income of less than $800.

4. The emboldened area of the schedule was enacted in order to address the
high obligations imposed upon low-income obligors when both parents’
incomes are used to compute the obligation. Report of the South Dakota
Comm’n on Child Support, Dec. 2000, at 10-11. It was found that including
the custodial parent’s income in the calculation when there is a low-income
obligor has the effect of reducing the noncustodial parent’s net income below
a level sufficient for self-support. Id. Thus, when there is a low-income
obligor, a calculation is made under the guidelines using both parents’ net
incomes. Id. Then, this amount is compared to the emboldened area within
the guidelines using only the obligor’s net income. Id. The lesser of these two
amounts establishes the child support obligation. Id. This result insures
(continued . . .)

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share using both parents’ monthly net incomes. Id. “The lesser amount establishes

the noncustodial parent’s child support order.” Id. Michael’s proportionate share is

$190 according to the child support obligation worksheet used by the court in

establishing Michael’s initial support obligation. Because $100 is less than $190,

Michael’s child support obligation should be $100.

[¶11.] However, SDCL 25-7-6.2 does provide for deviations from the schedule.

But, “[t]here may be no deviation from the guidelines unless there is an entry of

specific findings concerning factors for deviation listed in SDCL 25-7-6.10.”

Schwab, 505 NW2d at 756. Also, “[d]eviations from the support obligation schedule

at SDCL 25-7-6.2 are possible, but must be raised by the parties in order to be

considered by the trial court.” Midzak, 2005 SD 58, ¶30, 697 NW2d at 741 (citing

SDCL 25-7-6.10). Although Michael argued for a deviation from the schedule due to

his incarceration, there was no argument made on behalf of Lynette for a deviation

exceeding the schedule.

[¶12.] Here, Michael’s support obligation under the schedule is $100, but the

referee and court imposed an obligation of $190. However, neither the child support

referee nor the circuit court entered findings supporting a deviation exceeding the

schedule, and Lynette did not argue for such a deviation. The referee merely

_______________________
(. . . continued)
that realistic and attainable child support obligations are established for low-
income obligors. Id.

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imputed Michael’s prior income to him and concluded that there was no factual

basis to reduce his $190 child support obligation. 5

[¶13.] Thus, the circuit court erred by failing to follow the mandatory

provisions of the South Dakota child support statutory scheme and by dismissing

Michael’s petition for modification of child support. Therefore, we reverse and

remand this issue for the trial court to recalculate the child support award in

accordance with the mandatory support obligation schedule in SDCL 25-7-6.2.

[¶14.] As discussed above, Michael did request a deviation from the schedule

based upon his incarceration, but the circuit court denied a deviation. The circuit

court concluded that Michael’s incarceration was a voluntary act that reduced his

income, so no deviation was warranted. Michael argues that the circuit court

should have deviated from the child support schedule pursuant to SDCL 25-7-

6.10(2). SDCL 25-7-6.10 provides in entirety:

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:
(1) The income of a subsequent spouse or contribution of a third
party to the income or expenses of that parent but only if the
application of the schedule works a financial hardship on either
parent;
(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 shall be presumed that the

5. It appears that the referee only addressed Michael’s argument that his
incarceration required a deviation from his support obligation; however, “all
aspects of child support [are] opened for examination” upon a petition for
modification of prior trial court orders concerning the mutual child support
obligations of the parties. Grunewaldt v. Bisson, 494 NW2d 193, 195 (SD
1992) (citation omitted).

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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;
(3) Any necessary education or health care special needs of the
child;
(4) The effect of agreements between the parents regarding
extra forms of support for the direct benefit of the child;
(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; or
(6) The voluntary act of either parent which reduces that
parent’s income.

[¶15.] Whether incarceration warrants or requires deviation of a child

support obligation under SDCL 25-7-6.10 has not been addressed by any published

South Dakota decision. In one case, however, this Court held that a circuit court

order stating that a parent “did not have to make child support payments because of

his incarceration” foreclosed the operation of the automatic child support statute

enacted after the order was entered. Huth v. Hoffman, 464 NW2d 637, 639 (SD

1991). Thus, this Court has allowed an order permitting a deviation due to

incarceration.

[¶16.] On the other hand, this Court did not find an abuse of discretion when

a circuit court refused a deviation from the schedule for a noncustodial parent who

was attending school full-time. Kost v. Kost, 515 NW2d 209, 215 (SD 1994). In

Kost, we reasoned that the noncustodial parent had voluntarily chosen to return to

school and forego employment. Id. “Therefore, she ha[d] no basis upon which to

request a deviation from her child support obligation.” Id. This Court also

addressed a request for a deviation under SDCL 25-7-6.10(2) in Hawkins v.

Peterson, 474 NW2d 90, 94 (SD 1991). In Hawkins, “the referee considered father’s

statement that he had depleted his savings and had no other income than his social
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security disability payments. The referee found that there was no basis for

deviation.” Id. On appeal, this Court found nothing in the record to indicate that

the referee’s finding was clearly erroneous. Id.

[¶17.] Furthermore, we affirmed a court’s deviation exceeding the schedule in

Woehl v. Woehl, when the noncustodial parent was terminated from employment

due to his voluntary actions. 2002 SD 6, ¶15, 639 NW2d 188, 192. We stated in

Woehl:

Donald’s primary, paramount obligation is the support of his
four children. Instead of doing everything in his power to
maintain his employment, Donald’s deliberate, violent acts led
to his firing. His firing was neither fortuitous nor beyond his
control. Now he seeks to hoist the significant economic
ramifications of that on his four children. This cannot be
condoned. His actions were voluntary. There was no abuse of
discretion in deviating from the child support schedule by using
his former income to calculate his current child support
obligation.

Id. (citations omitted).

[¶18.] Like in Woehl, Michael’s actions leading to his incarceration were

voluntary. He voluntarily pursued the illegal activities that led to his incarceration.

Thus, our precedent suggests that there was no abuse of discretion in denying

Michael a deviation below the child support schedule. Although there is a

presumption that the obligation imposes a financial hardship on Michael because

his obligation exceeds fifty percent of his monthly net income, 6 See SDCL 25-7-

6. Michael’s monthly net income is $0. Thus, his obligation of $100 exceeds fifty
percent of his monthly net income.

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6.10(2), this presumption is rebutted by the voluntary act of Michael that reduced

his income. See id.; SDCL 25-7-6.10(6).

[¶19.] Other state courts are divided over the effect of incarceration upon a

person’s child support obligations. See In re R.H., 686 NW2d 107, 108 (ND 2004)

(citing Frank J. Wozniak, Loss of Income Due to Incarceration as Affecting Child

Support Obligation, 27 ALR 5th 540 (1995)). For instance, “[s]ome courts have

determined that incarceration does not justify reduction or suspension of child

support payments regardless of whether an incarcerated parent has other available

assets.” Oberg v. Oberg, 869 SW2d 235, 236 (MoApp 1993) (citing Cole v. Cole, 590

NE2d 862 (OhioApp 1990) (per curiam) (additional citations omitted). See also,

Davis v. Vance, 574 NE2d 330, 331 (IndApp 1991) (child support need not terminate

during incarceration); State v. Nelson, 587 So2d 176, 178 (LaApp 1991); Mooney v.

Brennan, 848 P2d 1020, 1023 (Mont 1993) (criminal conduct of any nature cannot

excuse the obligation to pay support); Parker v. Parker, 447 NW2d 64, 65 (WisApp

1989) (obligor need not be excused of his child support because of a willful act that

resulted in his imprisonment).

[¶20.] On the other hand, “some courts . . . have adopted the rule that, where

a noncustodial parent is imprisoned for a crime other than nonsupport, the parent

is not liable for child support payments while incarcerated unless it is affirmatively

shown that he or she has income or assets to make such payments.” Oberg, 869

SW2d at 237 (citing Nab v. Nab, 757 P2d 1231, 1238 (IdahoApp 1988); People ex rel.

Meyer v. Nein, 568 NE2d 436, 437 (IllApp 1991); Pierce v. Pierce, 412 NW2d 291,

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292 (MichApp 1987); Johnson v. O’Neill, 461 NW2d 507, 508 (MinnApp 1990))

(additional citations omitted).

[¶21.] This Court’s precedent suggests that a deviation or reduction of child

support below the mandated minimum amount within SDCL 25-7-6.2 is not

required because of incarceration. Our holdings in Kost and Woehl are aligned with

those states denying a complete suspension of child support payments based on

incarceration. For example, the North Dakota Supreme Court reasoned as follows:

[I]f . . . an obligor chooses to buy a ‘toy,’ gamble his livelihood
away, or fraudulently transfer his assets rather than meet his
obligations, one would not seriously expect the courts to ignore,
much less reward, such self-inflicted harm. The result is no
different when an obligor enters prison by voluntarily violating
the law. To be sure, any of these situations might make it
difficult or even impossible to satisfy a child support obligation.
Nonetheless, an obligor’s errors do not justify punishing the
obligor’s innocent children. Our conclusion balances the
interests of the child with the current, temporary inability to
pay that ‘recognizes the reduced income of the obligor as a result
of incarceration but does not totally relieve the obligor of child
support payments as a result of that incarceration.’ Nor does
the conclusion result in the obligor released from prison with an
arrearage in child support so large that it is inconceivable the
obligor will be able to earn enough to pay it.

A.M.S. ex rel. Farthing v. Stoppleworth, 694 NW2d 8, 12 (ND 2005) (internal

citations and quotations omitted).

[¶22.] This result appears to be an equitable one, i.e., it recognizes the

reduced income of the obligor as a result of incarceration by imputing a minimum

wage income instead of the obligor’s prior income, but it does not totally relieve the

obligor of child support payments as a result of that incarceration. Thus, we

conclude that the trial court did not abuse its discretion in denying Michael a

deviation based upon his incarceration.

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2. Whether Michael was denied due process or access to
the courts when he was unable to obtain South Dakota
law materials concerning modification of child
support while incarcerated in a foreign jurisdiction.

[¶23.] Michael also argues that he was denied due process and meaningful

access to the courts when he was unable to obtain South Dakota law while

incarcerated in the Florida State Penitentiary. Michael claims he only had access

to Florida and Federal case law in the law library at the Florida State Penitentiary,

and he was denied access to non-Florida cases, statutes and court rules unless they

were necessary to challenge judgments, sentences or prison conditions. Thus,

Michael submits that the circuit court erred in dismissing his pro se petition for

modification of child support due to his inability to access South Dakota law

essential to his cause. He requests a remand for the circuit court to re-entertain his

petition and allow him access to a South Dakota law library.

[¶24.] The United States Supreme Court established in Bounds v. Smith that

“the fundamental constitutional right of access to the courts requires prison

authorities to assist inmates in the preparation and filing of meaningful legal

papers by providing prisoners with adequate law libraries or adequate assistance

from persons trained in the law.” 430 US 817, 828, 97 SCt 1491, 1498, 52 LEd2d 72

(1977). However, Bounds does not guarantee inmates the wherewithal to file any

and every type of legal claim, but requires only that they be provided with the tools

necessary to attack their sentences, directly or collaterally, and to challenge the

conditions of their confinement. Lewis v. Casey, 518 US 343, 355, 116 SCt 2174,

2182, 135 LEd2d 606 (1996). “Impairment of any other litigating capacity is simply

one of the incidental (and perfectly constitutional) consequences of conviction and

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incarceration.” Id. (emphasis in original). Thus, “Lewis limits the scope of the right

of access to the courts to the filing of an action attacking a sentence or challenging

conditions of confinement.” Cody v. Weber, 256 F3d 764, 770 (8thCir 2001).

[¶25.] Also, “the plaintiff must show the lack of a library . . . hindered the

plaintiff’s efforts to proceed with a legal claim in a criminal appeal, postconviction

matter, or civil rights action seeking to vindicate basic constitutional rights.”

Sabers v. Delano, 100 F3d 82, 84 (8thCir 1996) (per curiam) (citing Lewis, 518 US at

351, 116 SCt at 2180, 135 LEd2d 606). For example, a prisoner might show “that a

complaint he prepared was dismissed for failure to satisfy some technical

requirement which, because of deficiencies in the prison’s legal assistance facilities,

he could not have known. Or that he had suffered arguably actionable harm that he

wished to bring before the courts, but was so stymied by inadequacies of the law

library that he was unable even to file a complaint.” Lewis, 518 US at 351, 116 SCt

at 2180, 135 LEd2d 606.

[¶26.] Michael’s request for a remand is flawed in two respects. First,

Michael has not demonstrated that the lack of South Dakota law actually hindered

his efforts in pursuing his petition for modification of child support. He timely filed

his petition and the referee and court reviewed his claims. Second, Michael’s claim

concerning a lack of access to the courts is limited, because he is not filing an action

attacking a sentence or challenging conditions of his confinement. Instead, he is

filing a general civil claim concerning child support.

[¶27.] In conclusion, the circuit court order dismissing Michael’s petition for

modification of child support on the merits and with prejudice is reversed and

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remanded for the court to set a support order in congruence with the mandatory

statutory schedule. However, Michael’s remaining claims concerning deviation due

to incarceration and due process were properly dismissed.

[¶28.] Affirmed in part, reversed in part and remanded.

[¶29.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, ZINTER

and MEIERHENRY, Justices, participating.

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