Wagner v. Wagner

#23689-a-PER CURIAM

2006 SD 31

IN THE SUPREME COURT

OF THE

STATE OF SOUTH DAKOTA

* * * *

AMY WAGNER
n/k/a AMY LYNGSTAD, Plaintiff and Appellee,

v.

MICHAEL WAGNER, Defendant and Appellant.

* * * *

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

* * * *

HONORABLE LEE D. ANDERSON
Judge

* * * *

AMY LYNGSTAD
Yankton, South Dakota Pro se plaintiff and
appellee.

MICHAEL WAGNER
Yankton, South Dakota Pro se defendant and
appellant.

* * * *
CONSIDERED ON BRIEFS
ON FEBRUARY 13, 2006

OPINION FILED 03/29/06
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PER CURIAM

[¶1.] Michael Wagner (Wagner) appeals the modification of his child support

obligation. We affirm.

Facts and Procedural History

[¶2.] Wagner and Amy Lyngstad Wagner (Lyngstad) were married on May

12, 1990. They were divorced on March 16, 1999. Lyngstad was awarded sole

custody of the couple’s two children, and Wagner was ordered to pay child support.

Since that order, Wagner and Lyngstad have continued to litigate child support.

Nine petitions for modification of child support have been filed, the most recent

being March 11, 2005.

[¶3.] A hearing on the latest petition was held before a referee. The referee

filed findings and an order recommending a child support obligation of $597 per

month. Wagner objects to three of the referee’s findings. The relevant parts of

those findings are:

(3) [Lyngstad] … earns $9.00 per hour and works 40 hours a
week. From January 1, 2005, through April 9, 2005, she earned
bonuses … in average of $191 a month.

(4) [Wagner] failed to submit any information regarding his income
and he refused to answer any questions regarding his income.
Department of Labor records reflect that … Wagner was paid the sum of
$8,084 from October 1, 2004, through December 31, 2004, which is an
average of $2,695 per month....

(7) Neither party requested deviation from the child support schedule.

(Emphasis added.)

[¶4.] Wagner’s specific objections are that: a) the referee committed perjury

relating to finding 3 (Lyngstad’s hours of work) and finding 7 (request for a

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deviation), and Lyngstad committed perjury on her financial statement; b) a writ of

mandamus should have been issued for the arrest of the referee and Lyngstad for

the alleged perjury; c) Lyngstad had federal felony convictions, and therefore, her

petition should have been denied; and d), with respect to finding 4, it was improper

for the referee to independently obtain evidence of Wagner’s income from

Department of Labor records. The circuit court held a hearing on these objections

and issued an order affirming the referee’s report in all material respects.1 Wagner

appeals.

Decision

[¶5.] It is well settled that we 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 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.

Mathis v. Mathis, 2000 SD 59, ¶7, 609 NW2d 773, 774 (internal citations,

alterations, and quotation marks omitted).

a) Alleged Perjury

[¶6.] Wagner makes three allegations of perjury: one against Lyngstad and

two against the referee. Wagner claims that Lyngstad committed perjury on a

financial statement that was attached to her petition for child support modification.

1. The circuit court did, however, correct one conceded mistake with respect to a
health insurance deduction. With the correction, Wagner’s final child
support obligation was $562 per month.

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On the financial statement, the following question concerning health insurance was

asked: “Do you have health insurance available for dependents through your

employer”? Wagner alleges that Lyngstad committed perjury in answering “no” to

this question.

[¶7.] However, a review of the hearing transcript reflects that Lyngstad was

simply confused in answering this question:

Referee: And then I see that you have medical and dental
insurance deductions from your pay?
Lyngstad: That’s correct.
Referee: Do those insurance plans [referring to Lyngstad’s
employment plan] cover the children?
Lyngstad: No, they do not cover the children, because at this time I
did not elect to do that because they have insurance
through their father.

(Emphasis added.) This testimony, and a further exchange between the referee and

Lyngstad, reveal that Lyngstad answered “no” on her financial statement only

because the children were covered by Wagner’s plan, and therefore, there was no

elective coverage available for the children under her plan at the time she completed

her financial statement. Considering the entire record, there is no evidence of a

knowing and intentional misstatement of material fact. See SDCL 22-29-1.

[¶8.] Wagner next claims that the referee committed perjury by entering

finding of facts 3 and 7. In finding 3 the referee found that Lyngstad worked forty

hours a week. Wagner alleges perjury because there is documentary evidence (pay

stubs) reflecting that on two occasions Lyngstad worked less than forty hours.

However, when asked how many hours she normally worked each week, Lyngstad

testified: “I am normally supposed to get forty hours. The last couple weeks it has

been a little bit slower. They’re renegotiating a contract … [n]ormally forty, yes,

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that is correct.” Thus, Wagner’s allegation of perjury on this finding is totally

without merit.

[¶9.] In finding 7 the referee found that neither party requested a deviation

from the basic support schedule. With respect to this finding, Wagner correctly

points out that Lyngstad requested a deviation on her petition, but the referee

found that “no party requested deviation.” However, in reviewing this issue we note

that SDCL 25-7-6.102 only allows a referee to address deviations when one has been

“raised” by a party and only upon the entry of specific findings following the

hearing. In this case, the record reflects that although Lyngstad requested a

deviation on her written application, she did not preserve the issue at the hearing

by producing evidence or making a request for a deviation. Therefore, finding 7

simply explains why the referee did not address deviations. In essence, Lyngstad’s

initial request was withdrawn because she failed to preserve it at the hearing.

Under these circumstances, the referee’s finding was correct.

b) Writ of Mandamus

[¶10.] “[A] writ of mandamus is an extraordinary remedy that will issue only

when the duty to act is clear[.]” Baker v. Atkinson, 2001 SD 49, ¶16, 625 NW2d

265, 271. “To prevail in seeking a Writ of Mandamus, the petitioner must have a

clear legal right to performance of the specific duty sought to be compelled and the

respondent must have a definite legal obligation to perform that duty.” Id.

2. SDCL 25-7-6.10 provides in part: “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[.]”

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(emphasis in original) (citing Sorrels v. Queen of Peace Hosp., 1998 SD 12, ¶6, 575

NW2d 240, 242). However, “[a] private citizen lacks a judicially cognizable interest

in the prosecution or nonprosecution of another.” Linda R. S. v. Richard D. and

Texas, 410 US 614, 619, 93 SCt 1146, 1149, 35 LEd2d 536 (1973). Therefore,

Wagner, as a “citizen[,] lacks standing to contest the policies of the prosecuting

authority when he himself is neither prosecuted nor threatened with prosecution.”

Id. For that reason, Wagner had no legal right to the issuance of a writ of

mandamus from the circuit court. He also had no right to a writ of mandamus

because his claims of perjury are meritless.

c) Federal Felony convictions

[¶11.] Wagner alleges that Lyngstad has federal felony convictions, and

therefore, her request for modification should be denied. However, a child support

proceeding only determines the amount of money necessary to support a child, and

the support amount is not based on the character of the parents. Furthermore,

there was no factual dispute in the hearing that was resolved on Lyngstad’s

credibility. Therefore, absent an issue of credibility, Lyngstad’s criminal

convictions, if any, were not material in this child support proceeding. Wagner’s

argument is without merit.

d) Wagner’s Wages

[¶12.] In his last issue, Wagner argues that the referee erred in

independently obtaining evidence of Wagner’s wages from a source outside the

hearing. In the referee’s defense, the record reveals that Wagner was completely

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uncooperative and in fact obstructive in determining his employment and wages at

the hearing, as is demonstrated by the following exchange:

Referee: State your full name.
Wagner: Mike Wagner.
Referee: Where do you live?
Wagner: I’ll plead the fifth.
Referee: Well, Mr. Wagner, you can’t plead the fifth on your
address. There are no criminal proceedings pending in
this court, so you’re not incriminated in any way by
stating your address. So, what’s your address?
Wagner: None.
Referee: You’re not living at 809 Burgess Road, Yankton, South
Dakota?
Wagner: At times, but not always.
Referee: Well, okay, for purposes of this hearing it suffices that
that’s where you’re living, and you’re single, correct?
Wagner: Yeah.
Referee: And you’re employed, right?
Wagner: I’m not answering it.
Referee: Well, isn’t it true that you’re employed by a company
called Kohlberg Pioneer, Incorporated?
Wagner: Not answering it.
Referee: Okay, well, you don’t have to answer it. I know that
that’s the case, Mr. Wagner.
Wagner: How do you know that?
Referee: Because I checked.
Wagner: Why did you check? You’re the Referee.
Referee: Because I figured you might be uncooperative. And are
you willing to tell what your rate of pay is?
Wagner: She’s been convicted of identity theft. She’s taken out
credit cards in my name before. I’m not giving you
identity information so she can do it again.
Referee: Okay. So would you – or then can I interpret that as
meaning you’re not going to tell me your wages from over
at Pioneer?
Wagner: Nope.
Referee: Okay. For the record, according to the Department of
Labor records from the period of –
Wagner: I object to this.
Referee: Well, your objection is noted, but it’s overruled. The
record reflects that from the period of October through
December of 2004, Mr. Wagner was paid $8084 from
Kohlberg Pioneer, Incorporated, which amounts to
monthly gross income average of $2695.

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Thus, because Wagner refused to disclose his wage information, the only

information available to the referee was what the referee had obtained from the

Department of Labor records. Those records indicated that Wagner’s wages

averaged $2695 per month.3

[¶13.] Additionally, while Wagner obstructed all efforts to determine his

wage information and whether he was employed, he simultaneously sought a

deduction for his contributions to his employer’s 401(k) plan. But, in pursuing that

deduction, he did not submit verifying pay stubs apparently because they would

have revealed his wages.

[¶14.] However, in the subsequent appeal to the circuit court, Wagner was

granted his request to submit a pay stub to verify his 401(k) contributions. And, on

this occasion, Wagner again attempted to hide his wages, this time by submitting a

pay stub on which his wage information was “whited out.” Nevertheless, upon

receiving the pay stub, the circuit court viewed it closely and observed that

notwithstanding the attempt to obliterate the wage information, the wages were

readable through the white out. That pay stub also confirmed the referee’s finding.

Once the court circuit disclosed that it could verify Wagner’s earnings through his

own exhibit, Wagner then attempted to withdraw the exhibit, informing the court

that it could not receive any new evidence at the hearing. Thus, the circuit court, in

its memorandum decision, correctly observed what Wagner was attempting to do:

3. The referee verbally provided the information. There was no evidence
describing how the information was obtained.

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Clearly, Mr. Wagner wants to have it both ways. On the
one hand he would like to have some consideration for his
retirement contributions, but he doesn’t feel the court should
have the readily available payroll information in his possession
to verify his gross income. Mr. Wagner has proceeded in an
uncredible manner. Once Mr. Wagner became aware that the
court could verify that his gross earnings were in fact in the
amount that the [r]eferee determined from the Department of
Labor records, he has determined that he should withdraw the
evidence which he offered to the court as part of his objections
and he continues to do his best to hinder the [r]eferee and the
court from obtaining the truth.

The circuit court ultimately affirmed the referee’s finding on wages.

[¶15.] Now on appeal, Wagner claims that the circuit court’s child support

order was erroneously based upon information that the referee had obtained from

the Department of Labor outside of the hearing process. We do not, however, reach

this issue because Wagner has failed to demonstrate prejudice. “The party alleging

error on appeal must show … error affirmatively by the record and not only must

the error be demonstrated but it must also be shown to be prejudicial error.”

Tovsland v. Reub, 2004 SD 93, ¶15, 686 NW2d 392, 398 (citing City of Sioux Falls v.

Kelley, 513 NW2d 97, 104 (SD 1994)). “Error is prejudicial when, in all probability

… [i]t produced some effect upon the final result and affected rights of the party

assigning it.” Novak v. McEldowney, 2002 SD 162 ¶7, 655 NW2d 909, 912

(emphasis added) (internal citations and quotation marks omitted).

[¶16.] Here, Wagner failed to demonstrate prejudice because even if the

referee erred in the procedural manner by which he obtained the wage information,

Wagner agreed that the referee’s substantive wage information was correct.

Wagner’s agreement occurred when he requested the referee to give him the

deduction for his 401(k) retirement plan contributions. When informed that the

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referee would need to know Wagner’s income from employment before the referee

could calculate the deduction, Wagner stated “[y]ou just stated my income from my

job.” The referee then explained “I know what your income as reported in 2004 by

the Department of Labor, and that’s the only information I have. I’m giving you an

opportunity to give me further information. If you don’t want to, then I won’t take

it.” Wagner then replied “[i]t’s five percent off of what it says there [referring to the

Department of Labor wage information].” Thus, Wagner agreed that the

Department of Labor information was correct. And, because Wagner agreed that

the substantive wage information was correct, the referee’s procedural method of

obtaining it had no effect on the final result. Therefore, Wagner was not prejudiced

by the procedure utilized by the referee.4

Motion for costs and damages

[¶17.] Wagner filed an appellate motion for “costs” and “damages.” SDCL 15-

30-65 sets forth the “costs” that may be allowed to the prevailing party on an appeal

to this Court. Because Wagner has failed to prevail on any issue, he is not entitled

to costs. Furthermore, his alleged “damages” are not recoverable under SDCL 15-

30-6. His motion is denied.

[¶18.] Affirmed.

4. We express no opinion on the propriety of this procedure.

5. SDCL 15-30-6 provides in part:

Costs on appeal to the Supreme Court shall be allowed to the prevailing party
in civil actions and special proceedings, provided, however, that the cost of
printing or reproducing briefs as set out in … and the cost of transcripts …
(continued . . .)

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

and MEIERHENRY, Justices, participating.

________________________
(. . . continued)
are recoverable only if the required proof of such costs is filed with the clerk
of the Supreme Court prior to entry of the court’s decision. …

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