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Judge Sommers on Swalve Child Support Case: Teaching Is a Full-Time Job

Teachers are full-time employees after all. So says Fifth Circuit Judge Richard A. Sommers in reversing a child support decision.

Recall that last summer, child support referee Forrest C. Allred reduced the child support payment that Holgate Middle School teacher/librarian Brandi Swalve receives from her ex-husband Brent Trapp. At the time, Swalve held two part-time jobs in addition to her teaching position. South Dakota law exempts second-job income from child support calculations if a parent holds a full-time job. The Aberdeen School District certainly considers Swalve full-time, but Allred calculated that Swalve’s teaching contract hours over nine months are a couple hundred hours shy of the 2,080 hour equivalent of working 40 hours a week for 52 weeks a year. He thus concluded that teaching is a part-time gig, that Swalve’s side jobs count toward child support, and that her ex need pay her less.

Judge Sommers rejects Allred’s purely mathematical approach:

There is no one definition of “full-time” in our statutes. On one hand, SDCL 2-14-2(12) provides that a full-time equivalent is equal to the number of days, Monday through Friday, in a fiscal year, multiplied by eight hours per day. On the other hand, SDCL 3-12-47(65) defines a permanent full-time employee as one who is customarily employed by a state employer for twenty hours or more a week and at least six months a year and that the employer shall decide if an employee is a permanent full-time employee and that decision is conclusive.

…In the instant case, the school district’s classification of full-time employment was based on SDCL 3-12-47(65). The employment contract only requires the teacher to work eight hours per day for 182 days each school year. That is a regular schedule for a teacher. However, this Court has no doubt that many more hours are spent by any teacher during the evening or on weekends thinking about and preparing for classes. No teacher simply turns off at the close of the school day. That is one of the reasons the employment contract is an annual contract with a minimum number of hours established [Judge Richard A. Sommers, ruling in Trapp v. Swalve DIV 02-711, 2016.11.30].

Judge Sommers recognizes that deeming all teachers part-time is a bad idea:

If this Court were to uphold the referee, no teacher would ever be considered a full-time employee. That would be an unjust result and one that is not practical under the law [Sommers, 2016.11.30].

The Governor’s Child Support Commission has taken public comment on Swalve’s case and, according to meeting notes from September 21, may propose an amendment to our child support statutes to more clearly define full-time employment for calculating separated parents’ financial obligations to their children. But as it stands now, Judge Sommers confirms what all of us in education understand: teaching is a full-time job.


  1. Rorschach 2016-12-05 07:54

    Teaching is a full-time job, there’s no doubt about that. But child support is for the kids – not the parents. It doesn’t matter whether teachers are receiving child support or paying child support for purposes of determining what parental income to include in the calculations. My thought is that while teachers should not be required to work summers if they choose to take a long vacation, when they do choose to work summer jobs that income ought to be included in the calculations.

  2. caheidelberger Post author | 2016-12-05 10:41

    Ror, I’m open to an argument against exempting any income from the child support calculations. As we discussed in July, one worker could make $40K at a full-time job plus $10K at a part-time job and pay child support only on the $40K, while another worker who cobbles together two or three part-time jobs to reach $50K would pay child support on the full $50K.

    The Child Support Commission appears to have discussed other deviations from “full time”, such as an employer who gives more vacation time. What about a house painter or concrete specialist who works like crazy during the warm sunny months and then takes the winter off? I’m eager to see what recommendation that committee offers.

  3. mike from iowa 2016-12-05 12:06

    The whole child support system needs to be scrapped and started over with fairness all around. It is biased towards the mothers, based on the best interests of the child bs some tool conjured up.

  4. Porter Lansing 2016-12-05 14:34

    Child support is for the parents, not for the child. The parent receiving support is under no general obligation to itemize how the money is spent.
    “Once a child support order is in place, the non-custodial parent must make regular payments on time and in the right amount. Some non-custodial parents may want reassurance that their child support payments are going towards their children’s needs, but custodial parents aren’t required to account for how support payments are used.”

  5. Mark Winegar 2016-12-06 04:58

    Teaching demands much more time than merely contact hours. There is the continuous research of one’s subject, preparing lessons, and assessing student work not to mention involvement in extracurricular activities. Perhaps the profession needs to raise awareness of how much work is actually involved.

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