Child Support Referee Rules SD Teachers Not Full-Time Employees

I generally resist blogging about anyone’s divorce, child custody, or child support issues. Writing about such family disagreements usually brings nothing but trouble.

However, a fellow teacher brings to my attention a ruling on her child support case that could have serious implications for teachers across the state. Apparently South Dakota’s 9,000 teachers are not full-time employees in the eyes of the law.

Brandi Swalve teaches and manages the library at Holgate Middle School here in Aberdeen. She has two kids from a previous marriage. In 2010, child support referee Forrest C. Allred looked at Swalve’s and her former husband Brent Trapp’s income and ordered that Brent pay $730 a month in child support. In calculating that amount in 2010, Allred counted Swalve’s Aberdeen Central School District income but not her income from part-time jobs at Mavericks and Northern State. Under SDCL 25-7-6.22, if a parent is working a full-time job, the state does not count second-job income toward that parent’s child support obligation.

Six years later, Allred changed his calculations. Swalve and Trapp have similar income situations as in 2010. However this time, Allred added up Swalve’s contract hours and ruled they don’t meet the statutory definition of “full-time.” Allred thus added Swalve’s approximately $9,200 in part-time income to his child support obligation calculations and cut her former husband’s child support payment by 23% to $565 a month. (The older child has turned 18 and graduated, so now Trapp’s child support payment is $346, about a hundred less than it would have been under Allred’s 2010 interpretation.)

Here’s Allred’s legal reasoning from his March 28 decision:

[Swalve’s] contract requires her to be on-site 180 days per year from 7:45 a.m. to 3:40 p.m. (7.92 hours per day). This alone would constitute 1,425.60 hours per year. She also works up to three afternoons or evenings per week, for up to three hours at a time. Using the maximum in each case, this would be nine hours per week during the 49-week school year, making another 441 hours per year. In total, she spends at most 1,866.6 hours per year working pursuant to her contract with the school district. SDCL §25-7-6.22 creates a rebuttable presumption that second-job income is not included in calculating child support obligations; however, the presumption arises only “[i]f a parent is employed full-time….” SDCL §2-14-2 defines full-time to be “that amount of work which equals Monday through Friday at eight hours per day.” This is 2,080 hours per year. SDCL §2-14-4 provides that any term, once defined anywhere in the Code, has the same meaning everywhere in the code unless a contrary intent appears. Therefore the presumption never arises at to Brandi [sic] and all of her earnings are included [Forrest C. Allred, Report of Referee, Brent Trapp vs. Brandi Swalve, Brown Co. Div. 02-711, 2016.03.28, pp. 2–3].

Swalve has challenged Allred’s ruling, providing a letter from Superintendent Becky Guffin stating that Swalve is a full-time employee in the eyes of the school district and of the South Dakota Retirement System. In a June 29 Report on Remand, Allred rejected Swalve’s challenge, saying that no employer can rewrite statute.

The Legislature has rewritten the statutory definition of “full-time” to protect some teachers. SDCL 2-14-2 does define nine-month teaching positions as full-time, but only at Regental institutions. K-12 school teachers should receive the same exemption. Teachers don’t get to collect unemployment when school is not in session; they are viewed in that legal field as full-time employees. Without that exemption, divorced K-12 teachers with custody of their children could face a serious cut in the child support they receive from former spouses.

Of course, we might also debate the wisdom of statute exempting second-job income for full-time employees. I can perhaps see the logic of saying that if parents are meeting a basic obligation to support their children by drawing a full-time income, they should be allowed to keep the extra money they make at a second job. But let’s compare two hypothetical parents, Ruth and Rick. Ruth and Rick both net $5,000 per month. Per the state’s child support obligation schedule (SDCL 25-7-6.2), $5,000 net monthly income obligates a parent to provide $1,354 to support two children. But suppose Ruth makes that $5,000 at one full-time job, while Rick makes $3,000 at a full-time job and $2,000 at a cushy consulting job on the side. If the state looks only at Rick’s full-time job and ignores his consulting income, Rick need only support his two kids with $1,056 per month. Ruth and Rick have the same means to support their kids; can we justify requiring Ruth to pay nearly $300 more in child support than Rick?

If this second-job exemption makes sense for full-time workers, then it should apply to all full-time workers. If the Legislature is right in applying the exemption to university teachers, then we should apply the exemption to K-12 teachers. If Allred’s legal interpretation stands (and Swalve is challenging Allred’s ruling in circuit court), the Legislature will need to amend SDCL 2-14-2 for consistency.

Related: The Governor’s Commission on Child Support is gathering information and public comment as part of its four-year review of state child support guidelines. The commission will issue recommendations for changes to rules and statutes by the end of the year. Aberdeen folks can jump on the DDN line to participate in a public meeting next week Wednesday:

In the Pierre area, members of the public can attend the hearing on Wednesday, July 20, 2016, from 6 to 8 p.m. CDT in Conference Room 3, located on the first floor of the Kneip Building at 700 Governors Drive. Members of the public from the Aberdeen area are invited to take part in this hearing by going to the Dakota Digital Network (DDN) Studio at Northern State University, in Room 117 of the Library Building at 1200 S. Jay St.

Public hearings will also be held on Wednesday, August 24, 2016, from 6 to 8 p.m. CDT in the Palisades rooms 2 & 3 at the Holiday Inn City Centre, 100 W. 8th St., Sioux Falls and Wednesday, Sept. 21, 2016, from 6 to 8 p.m. MDT in the Washington Room at the Ramkota Hotel, 2111 N. LaCrosse St., Rapid City.

Discussions during the public hearings will be limited to potential changes to the child support guidelines and statutes. The hearings are not intended for specific comments or to address complaints involving individual child support cases or visitation. Written comments or suggestions may also be submitted for consideration by the full commission by mailing them to the Department of Social Services, Attn: Child Support Commission, 700 Governors Drive, Pierre, S.D. 57501-2291 or by emailing DCS@state.sd.us. The deadline for public comments is Sept. 1, 2016 [emphasis mine; South Dakota Department of Social Services, press release, 2016.07.13].

Wednesday sounds like the perfect time for interested parties to raise the question of K-12 teachers’ full-time status.


10 Responses to Child Support Referee Rules SD Teachers Not Full-Time Employees

  1. I’m sure that most referees don’t add up hours like Mr. Allred did. His determination seems to be supported by the law as it currently exists though. Looks like a bill for the legislature may be in order, and the commission on child support is the place to start that process.

    As to second jobs, it makes a difference whether the person had a second job when the couple was together. Taking Cory’s example, if when the couple was together Rick was working only 1 job and making $3,000 then that is the income the kids are used to being supported on. Rick’s second job – taken after he has to maintain a separate household on one income, and which has never been used to support the kids should not factor into the equation.

    On the other hand, if Rick was pulling double duty while the couple was together, then his entire $5,000 income from the two positions will likely be included in the calculation.

  2. Roger Elgersma

    If the courts would look at all the ways that they and the counselors and mothers and etc. show the kids that Dad does not count and wreck the Dad child relationship, and how much that is wrong for the kids, then the money would seem insignificant. Courts are just plain capable of being demonically ignorant of their own mistakes. I will never have any respect for that horrible system ever again.

  3. Apparently that 9 months pro-ration, or perhaps 9/12 = .75 work time means that our teachers are paid on average $48,000 / 0.75 or the equivalent of $64,000 a year. Highest of all our neighboring states, despite the whining that continues to ring in everybody’s ears. Take back that half-penny, Mr. Nelson. Take back that half-penny.

  4. Ror, that’s interesting: why after the divorce do the kids not get to enjoy some fair share of whatever new wealth their parents get? Does that thinking work the other way, too: if Mom made $5K per month pre-divorce, then decides to simplify her life post-divorce and takes a job that only pays $3K per month, are the kids really entitled to keep getting child support based on $5K/month? If two parents stay married but experience changes in career that lower their income, are they legally obliged to keep buying the kids as much stuff as before?

  5. Grudz, why only apply that formula to SD teachers? Far as I know, none of our neighboring states have year round school. Minnesota for example has an average of $56,000 as listed in the Blue Ribbon task force documents. According to your math, a teacher in Minnesota would make the equivalent of $74,666/year.

  6. In the child support guidelines there are exceptions to most rules. Generally after a separation kids do get to enjoy a fair share of increased income their parents get. But it’s based on one full time job. If a parent decides to work an extra 20 hours a week in a part time job then that second job isn’t going to get added into the monthly support.

    Perhaps it has something to do with whom the money gets paid to. Should your ex-spouse/significant other be able to siphon off part of the money for a part time job you take in addition to your full time job? It’s ostensibly for the kids, but the money goes to the ex who can use it for whatever. Most people would say no, if you want to use that to add value for the kids you can do that without going through the middle man/woman. The ex should keep his/her hands off of it.

  7. Interesting, Ror. Given that more people are patching together jobs instead of working one full-time job, wouldn’t it make more sense to simply impose a 40-hour/week cap? Current statute says the gal who works 35 hours a week as a teacher and 15 hours a week in a second job has to pay child support based on 50 hours of work, while the full-timer doing one 40-hour/week job pays based just on those 40 hours. Why not assess the multi-job worker’s obligation based 35 hours of teaching plus 5 hours of part-time work and leave the other 10 hours she works alone?

  8. Curt Jopling

    It would be nice if the courts ruled by statue instead of emotion. Judge Caldwell ruled, despite objections pointing out the statute, a support formula that completely ignored alimony. One month later a child support referee corrected it, per statute, without question.

  9. I’d like to know why the state can’t enforce child support period! My grandson’s “father” has been able to consistently avoid paying for years! We know he’s got income from as many as three sources. But he is getting two sources under the table from family and a third from providing a service where it’s easy to get paid in cash! Anybody know a way to force him to pay or get the state to actually check on it?

  10. clcjm, is there a role for the IRS here? If the guy is living beyond the means he claims on paper, the IRS ought to be able to audit him and have his hide. The state should be filing papers with the IRS to ensure that any refund he gets is sent first to the state for child support.