#24632-a-RWS 2008 SD 33

IN THE SUPREME COURT

OF THE STATE OF SOUTH DAKOTA

* * * *

STATE OF SOUTH DAKOTA EX REL. LORAINA WHITE, Plaintiff and Appellee,

v. JEFFREY B. BRANDT A/K/A JEFFREY BRIAN BRANDT, Defendant and Appellant.

* * * * APPEAL FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT MINNEHAHA COUNTY, SOUTH DAKOTA

* * * *

HONORABLE KATHLEEN K. CALDWELL Judge

* * * * LAWRENCE E. LONG Attorney General

DAVID L. BRAUN Special Assistant Attorney General Pierre, South Dakota Attorneys for plaintiff and appellee. MICHAEL B. CREW of Crew and Crew Sioux Falls, South Dakota Attorneys for defendant And appellant.

* * * * ARGUED FEBRUARY 13, 2007

OPINION FILED 

### 04/16/08-1- #24632 SABERS, Justice [¶1.] In 1995, the State of South Dakota ex rel Loraina White obtained a default judgment against Jeffrey B. Brandt for child support arrearages. In 2007,

Brandt submitted a motion to set aside the default judgment under SDCL 15-6- 60(b)(4). The circuit court denied the motion. Brandt appeals. We affirm. FACTS [¶2.] Brandt and White met in Sioux Falls, South Dakota, where they both resided. They began an intimate relation ship but never married. They had a child, C.B., in March of 1992. In February 1993, White applied for benefits from the South Dakota Department of Social Servic es (DSS) and assigned her right to child support payments to the State. [¶3.] On August 30, 1993, Brandt was personally served with a summons and complaint alleging that he was the fa ther of the child and owed $284 in child support per month. The complaint also re quested child support arrearages from the

time of the child’s birth. [¶4.] Brandt contacted the Office of Child Support Enforcement (OCSE) and met with the OCSE officer assigned to hi s case. He said he had been making support payments to White and requested a DNA test. He also spoke with the legal assistant to an attorney with OCSE and again requested DNA testing. Before DNA testing could be conducted, White left th e state. Brandt received a letter from OCSE dated September 3, 1993, informing hi m that his case was being closed since#24632

-2- White had left the state. 1 It also informed him that if White returned to South Dakota and received assistance, the St ate would again seek reimbursement. [¶5.] In July of 1994, Brandt moved to Tempe, Arizona. On December 21, 1994, Brandt was personally served at hi s residence in Arizona with a second summons and complaint. This complaint alleged that Brandt owed $368 per month in child support, plus arrearages. [¶6.] Brandt did not respond to this complaint and a default judgment was entered on February 21, 1995. The default judgment declared Brandt the biological father of C.B., set his ch ild support at $368 a month, and set the arrearages at $12,572. 2 Instead of mailing the notice of entr y of the default judgment to Brandt’s Tempe, Arizona residence, it was mailed to 301 South Willow Street in Sioux Falls, South Dakota, his parent’s residence. Br andt learned of this judgment, however,

because he referenced the order of defaul t judgment in his March 13, 1995, letter to the OCSE, in which he again requested DN A testing. OCSE informed Brandt that it required a court order for DNA testing because a judgment had been issued. Furthermore, Brandt was advised to contact an attorney and that collection of his support obligation would continue. [¶7.] At some point Brandt moved to Merida, Mexico. One day, Brandt received a phone call from a Federal Bu reau of Investigation (FBI) agent who informed him there was a federal felony wa rrant for his arrest for failure to pay

1. In Brandt’s deposition, he testified that, when she left the state, White told him that he was not C.B.’s father. 2. This amount represented past child support arrearages ($12,512) plus the State’s recoverable costs and disbursements ($60).#24632

-3- child support. Brandt moved to Sioux Fall s, South Dakota in August or September of 2003. Upon his return, he voluntarily turned himself in to the FBI. [¶8.] On September 12, 2003, Brandt pleaded guilty to violating 18 USC § 228 for failure to pay lawful child support. He was sentenced in November of 2003 to five years of supervised probation. He was also ordered to pay restitution of $49,123.25 for back child support, in payments of no t less than $106 a month. [¶9.] On September 23, 2003, Brandt peti tioned for modification of his child support. In his petition, he noted that he was the parent of C.B. After a hearing in front of a child support referee, his support obligation was reduced to $320 a month. [¶10.] Brandt filed a motion for relief from the default judgment on March 26, 2007. At the hearing, he argued that th e default judgment was void under SDCL 15-6-60(b)(4). He alleged the judgment wa s void because the State did not give him notice of its application for a default judgme nt. He argued that he was entitled to notice because he made an appearance in the proceeding by requesting a DNA test from the OCSE officer and the legal assistan t to the attorney fo r OCSE. The circuit

court denied his motion. Brandt a ppeals. STANDARD OF REVIEW [¶11.] “The decision to grant or deny relief from a default judgment rests with

the sound discretion of the trial court an d we will not disturb the trial court’s

decision absent an abuse of that discreti on.” Roso v. Henning, 1997 SD 82, ¶5, 566 NW2d 136, 139 (quoting First Fed. Sav. & Loan Ass’n v. Strub, 427 NW2d 836, 838 (SD 1988). “An abuse of discre tion occurs when ‘discretio n [is] exercised to an end or purpose not justified by, and clearl y against, reason and evidence.’” In re L.M.G.,#24632

-4- 2007 SD 83, ¶6, 738 NW2d 71, 73-74 (quoting Miller v. Jacobsen, 2006 SD 33, ¶18, 714 NW2d 69, 76). The test for an abuse of discretion is not whether we would reach the same result, but rather, “whether we believe a judicial mind, in view of the law and the circumstances, could reason ably have reached that conclusion.” State v. Crawford, 2007 SD 20, ¶13, 729 NW2d 346, 349 (quoting Huber v. Dep’t of Pub. Safety, 2006 SD 96, ¶22, 724 NW2d 175, 180). [¶12.] Whether the default judgment is void because the State did not give Brandt notice of its application for a default judgment as provided in SDCL 15-6-55(b)(1). [¶13.] Brandt claims he made an “appea rance” in this action by requesting DNA testing after service of the first su mmons and complaint. According to him, that means the State was obligated to give him notice of its application for a default judgment as required by SDCL 15-6-55(b)(1 ). Since the State did not provide the requisite notice, Brandt argues the default judgment is void. [¶14.] SDCL 15-6-55(b)(1) provides in relevant part that “[i]f the party against whom judgment by default is sought has appeared in the action, he (or, if appearing by representative, his representati ve) shall be served with written notice of the application for judgment at least three days prior to the hearing on such application.” The specific issue in this case is whether Brandt “appeared” in the

action. [¶15.] Traditionally, in order to “appear” before a court, a party was required to file documents or actually appear be fore the court. “Courts now take an expansive view toward the defi nition of ‘appearance[.]’” Roso , 1997 SD 82, ¶7, 566 NW2d at 139 (additional citations omitted). Instead of actually appearing or filing#24632

-5- documents, one must demonstrate to the opposing party a clear intent to defend against the lawsuit. See id . “Not every exchange between parties constitutes an appearance.” Nat’l Sur. Corp. v. Sh oemaker, 86 SD 302, 311, 195 NW2d 134, 139 (1972). [¶16.] In 1993, after receiving the first summons and complaint, Brandt requested DNA testing from the OCSE. He did not go beyond the request and never completed the testing while the action was pending, nor did he re-request the DNA test. However, the term “appearance” is construed liberally. See Roso , 1997 SD 82, ¶7, 566 NW2d at 139 (additional citations om itted). In South Dakota, this request put the State on notice that Brandt inte nded to defend against the lawsuit. Therefore, this DNA request constitute d an appearance in the action. [¶17.] On the other hand, when Bran dt received the second summons and complaint in December of 1994, he did not request testing or even contact OCSE in any manner. Brandt argues that the pr oper service of a second summons and complaint did not start a new action. Ho wever, SDCL 15-2-30 provides that “[a]n

action is commenced . . . when the summo ns is served on him[.]” The second

summons was served on Bran dt in December of 1994. Th e summons explained that Brandt had thirty days to answer the comp laint and that failure to do so could result in a default judgment as requeste d in the complaint. No requests or “appearances” were made by Brandt afte r receipt of the second summons and complaint in December of 1994. [¶18.] Furthermore, the second complaint asked for different relief than the first complaint. The first complaint as ked for $284 per month in child support,#24632

-6- while the second complaint asked for $368 pe r month in child support. The default judgment represented arrearages calcul ated using the $368 per month figure, not the $284 per month, and set the monthly ch ild support obligation at $368. The proper service of the second summons and co mplaint constituted a second action. In view of the fact that Brandt did not make an appearance in the second action, no notice was necessary before the St ate applied for a default judgment. 3 [¶19.] Given that the motion for relief is not based on a void judgment, the only other avenue for relief from the judg ment would be under SDCL 15-6-60(b)(6), “[a]ny other reason justifying relief from the operation of the judgment.” However,

this motion must be made within a reasonable time. Id. ; Anderson v. Somers, 455 NW2d 219, 221 (SD 1990). Waiting twelve ye ars after a default judgment does not

3. Even if we considered the sepa rate summons and complaints as one continuous action, we need not set asid e the judgment for lack of notice. While an appearance requires notice of intent to take a default judgment to be given to the defendant, it does not make the judgment void under South Dakota law. Our case law su ggests that the judgment is voidable

. See Brockel v. Brockel, 80 SD 547, 549, 128 NW2d 558, 559 (1964) (noting that the failure to give the required notice was “an irregularity and default judgment entered without such notice was voidable.”); Peterson v. McMillan, 70 SD 56, 58, 14 NW2d 97, 98 (1944) (not ing that “[t]he judgment having been issued without such notice was irregular and voidable.”); see also Effect of failure to give due notice, 46 AmJur2d Judgments §288 n6 (updated Nov 2007) (citing Brockel v. Brockel, 80 SD 547, 128 NW2d 558 (1964)); R.D. Hursh, Effect, under Rule 55(b)(2) of th e Federal Rules of Civil Procedure and similar state statutes and rules, of fa ilure, prior to taking default judgment against party who has appeared, to serv e 3-day written notice of application for judgment

, 51 ALR2d 837, §3[a], §3[b] (1957). Additionally, contrary to a void judgment, which can be attacked collaterally, Missouri ex rel Stormfeltz v. Title Guar. & Sur. Co. , 72 F2d 595, 598 (8thCir 1937), a voidable judgment cannot be attacked collaterally, but must be challenged upon appeal. Id. ; see also Voidable Judgments, 47 AmJur2d Judgments §751 (updated Nov 2007). In this case, the judgment is voidable, not void, and Brandt must demonstrate some reason other than SDCL 15-6-60(b)(4) to receive relief from the judgment in this collateral proceeding.#24632

-7- constitute “within a reasonable time,” an d Brandt cannot obtain relief under this portion of the statute. [¶20.] Finally, Brandt cannot demonstrate the circuit court abused its discretion in refusing to grant relief beca use the doctrines of laches and judicial estoppel prevent him from obtaining relief. For laches to apply, the State has the burden of proving: “1) [Brandt] had fu ll knowledge of the facts upon which the action was based, 2) regardless of [his] knowledge, [he] engaged in unreasonable delay in commencing suit, and 3) allowing [him] to maintain the action would prejudice other parties.” Tovsland v. Reub, 2004 SD 93, ¶28, 686 NW2d 392, 402 (additional citations omitted). Judicial es toppel applies when a party “who by their words or conduct take positions inconsiste nt with their rights, unfairly misleading

others into detrimental reliance.” A-G- E Corp. v. State, 2006 SD 66, ¶32, 719 NW2d 780, 789 (additional citations omitted) . Generally, “the later position must be clearly inconsistent with the earlier one; the earlier posi tion was judicially accepted, creating the risk of inconsis tent legal determinations; and the party taking the inconsistent position would derive an unfair advantage or impose an unfair detriment to the opponent if not estopped.” Canyon Lake Park, L.L.C. v. Loftus Dental, P.C., 2005 SD 82, ¶34, 700 NW2d 729, 737 (quoting Watertown Concrete Products, Inc. v. Foster, 2001 SD 79, ¶12, 630 NW2d 108, 112-13 (citing New Hampshire v. Maine, 532 US 742, 750, 121 SCt 1808, 1814-15, 149 LEd2d 968, 977 (2001))) (additional citations omitted). [¶21.] Here, Brandt knew there was a possibility he was not the father as early as 1993 and did not contest the pate rnity. Then, in 2007, Brandt filed a#24632

-8- motion for relief, twelve years after the de fault judgment, alleging that private DNA testing excluded him as the father. 4 Instead of timely contesting the default, Brandt reaffirmed his paternity in two sepa rate legal proceedings – once when he pleaded guilty in federal court to failure to pay child support and again when he requested modification of his obligation. The position that Brandt was C.B.’s father was judicially accepted in both proceedings . Also, the State would suffer an unfair detriment if Brandt was not estopped. As it argued at oral argument, it may be nearly impossible to find the alleged actual fa ther fifteen years afte r C.B.’s birth. In addition, the State is precluded from seek ing all of the back support even if the alleged actual father is located. Pr ior to 2005, SDCL 25-8-5 provided that The mother may recover from the father a reasonable share of the necessary support of a child born out of wedlock. In the absence of a previous demand in writing served personally or by registered or certified letter addressed to the father at his last known residence, not more than six years’ support furnished before bringing an action may be recovered from the father. Therefore, if the alleged actual father is located, back child support could only be awarded for the previous six years. Bran dt cannot obtain relief from the default judgment due to laches and judicial estoppel. [¶22.] A similar result was reached in the North Dakota case, Throndset v. L.L.S ., 485 NW2d 775 (ND 1992). In that case, the North Dakota Supreme Court held that the father could not get relief from a paternity judgment where he did not

4. As the circuit court noted, the test and its results were unsubstantiated in that there was no evidence the mate rials tested came from the alleged individuals. Moreover, there is noth ing in the record regarding the test results other than a mention of it in Brandt’s affidavit accompanying his motion for relief from the default judgment.#24632

-9- appear at the hearing nor respond to the summary judgment motion. Id. at 780. Nine years later, the father attempted to ob tain relief from the judgment. In the interim, the father participated in several court proceedings to enforce his child support, but did not raise the issue. Findin g his request untimely, the court held he was estopped from denying paternity and fr om claiming a defect in the original proceeding. Id. [¶23.] In summary, Brandt’s request for DNA testing constituted an appearance requiring notice of the applicat ion for default under SDCL 15-6-55(b)(1). However, the proper service of a second summons and complaint started a second action and Brandt failed to make an appear ance in that action. Therefore, he cannot obtain relief for lack of notice. Additionally, Brandt did not submit this

motion for relief within a reasonable time as required for relief from a default judgment under SDCL 15-6-60(b)(6). Fi nally, Brandt was barred from relitigating paternity by the doctrines of laches and judicial estoppel. Brandt has not

demonstrated that the circuit court abused it s discretion when it denied his motion for relief from the default judgment. [¶24.] Affirmed. [¶25.] GILBERTSON, Chief Justic e, and KONENKAMP, ZINTER, and MEIERHENRY, Justices, concur.