In Re The Discipline Of Ortner

699 N.W. 2d 865 (S.D. 2005)

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Nature of the Case

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Facts

H and W lived on David's family ranch where he worked. For twenty years D helped the family with branding. When H initiated divorce proceedings in 1999, he retained D to represent him. W did not have a lawyer. D was aware that W's mother and stepfather were South Dakota lawyers and he assumed that they were assisting her. D prepared a stipulation regarding child custody, child support, alimony, and property division which H and W signed. H received custody of the children and relieved W of any child support obligation. W waived alimony. The Judge refused to grant the divorce due to the omission of any provision for child support. D advised H that he could simply tear up any checks he received for child support. H discussed the proposal with W who, according to W, definitely wanted something in writing. D revised the stipulation to include a provision for child support. D was required to pay child support for the minor children in the total amount of $250.00 per month, except during those summer months when she has the children for visitation. During those summer months, H was to pay $250.00 per month for support of the minor children. D also drafted these documents he also drafted a 'Private Contractual Agreement Between Parties' which provided that H agreed not to seek to collect the child support ordered to be paid by W. H and W signed both documents and the Judge signed the judgment decreeing dissolution of marriage which incorporated the revised stipulation. D did not advise the Judge of the private contractual agreement. In May 2002 W moved for a change in custody and sought child support. The new judge learned of the existence of the private contractual agreement. He denied the motion for a change of custody and advised H that he was free to seek child support from W. H initiated a child support action against W. The child support referee's recommendations that W pay current child support, and arrearages were adopted by the circuit court. W moved to set aside the interim order of support and eliminate the arrearages. D filed an affidavit admitting the facts of the incident. The judge vacated the agreement for fraud on the court.