June 5, 1985

Mr. Michael J. Whalen 
Special Deputy State's Attorney 
Post Office Box 127 
Lake Andes, South Dakota 57356-0127

OFFICIAL OPINION NO. 85-26

Duty of state's attorney to represent ex-spouse to enforce payments of spousal support under SDCL Ch. 25-9A

Dear Mr. Whalen:

You have requested an official opinion from this Office in regard to the following factual situation:

FACTS: 

As a Special Deputy State's Attorney charged with support enforcement pursuant to SDCL 25-9A, you have received a case referral from a local attorney for prosecution under Chapter 25-9A, the Revised Uniform Reciprocal Enforcement of Support Act.  The complaining party is the ex-spouse of a person who, after divorce in Charles Mix County, South Dakota, left the State and currently resides in Illinois.  There were no children as a result of the marriage and the ex-spouse's sole claim for prosecution is back-due and on-going spousal support (also known as alimony).  The definitions and provision of SDCL Ch. 25-9A do not differentiate between child support and spousal support.

Based upon these facts, you have asked the following question:

QUESTION: 

Does South Dakota's Revised Uniform Reciprocal Enforcement of Support Act, SDCL Ch. 25-9A, include the enforcement of court-ordered alimony or spousal support as a 'duty of support' enforceable pursuant to SDCL 25-9A-1(2)?

IN RE QUESTION:

The answer to your question requires a construction or interpretation of  SDCL 25-9A-1(2).  It does not appear that the South Dakota Supreme Court has answered the question of whether this statute's 'duty of support' includes spousal support or alimony. SDCL 25-9A-43, however, provides as follows: 

This chapter shall be so construed as to effectuate its general purpose to make uniform the law of those states which enact it.

Given this provision, it is my obligation to give credence to those cases that have interpreted the duty of support pursuant to substantially similar laws of other states.  As you indicated in your request, such cases may be found in the annotations of 9A Uniform Laws Annotated, note 2 at 658 (1979). My research indicates several states hold that the duty of support under this statute includes the duty of supporting a spouse (or former spouse) as well as children.  Virgin Islands v. Lorillard, 358 F.2d 172, 175 (3d Cir. 1966); Ex Parte O'Neill, 420 So.2d 264 (Ala. 1982); Mehrstein v. Mehrstein, 245 Cal.App.2d 646, 54 Cal.Rptr. 65 (1966); Quigley v. Quigley, 463 So.2d 224 (Fla. 1985); Henry v. Henry, 115 Ga.App. 211, 154 S.E.2d 298 (1967); Commonwealth v. Shaffer, 175 Pa.Super. 100, 103 A.2d 430 (1954); Alig v. Alig, 220 Va. 80, 255 S.E.2d 494 (1979); Davidson v. Davidson, 66 Wash.2d 780, 405 P.2d 261 (1965).  Dicta to the contrary are contained in Parker v. Parker, 593 S.W.2d 857 (Tex. Civ. App. 1980) and Adams v. Adams, 441 S.W.2d 917 (Tex. Civ. App. 1969).

It would appear that some of these cases were decided prior to the advent of the Revised Reciprocal Enforcement of Support Act.  A comparison of the provisions of the former Uniform Reciprocal Enforcement of Support Act, and the present Revised Act, however, fails to indicate any substantial difference between the definitions of 'duty of support.'  Therefore, I conclude that all obligations of the State's Attorney relating to enforcement of child support under SDCL Ch. 25-9A also are imposed in the enforcement of spousal support.

It would appear that, under the facts you give, the person absent from the State at this time is the spouse who owes the duty of support.  This State would thus be an initiating state.  Your obligations as the Special Deputy State's Attorney for support enforcement are thus set forth in SDCL 25-9A- 11.  As to the nature of those duties, I would refer you to my Official Opinion No. 84-49, dated December 12, 1984, which discussed such duties.

Respectfully submitted,

Mark V. Meierhenry
Attorney General