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.