*1 BRUNING, Petitioner Carla Appellee, v. JEFFRIES, Respondent
James Appellant. Colwill, Gen., Pierre, Atty. Gary Asst. Services; Dept, Roger A. Tel- for of Social
No. 15840. Gen., Atty. linghuisen, on brief. Supreme of South Court Flandreau, Ellingson, peti- William J. Feb. 1988. on Briefs Considered appellee. tioner and April 1988. Decided Norman, Rapid City, Van for re- Robert appellant. spondent and MILLER, Justice. appeal judgment
This is an from a upholding circuit court a decision of the Secretary (Secretary) of the Dakota South (DSS),which Department of Social Services previously increased Father’s court-ordered obligation using 25-7-7). (SDCL We reverse the case be remanded with directions that findings regarding and enter to consider in- parents, of both the financial condition cluding spouse. Mother’s FACTS (Mother) Bruning and James Jef- Carla (Father) Corey Ray parents of fries are 27,May born on Bruning (Corey), who was have never been Mother and Father Initially, Father to each other. married vary- support payments voluntary made 28, 1979, circuit ing amounts. On June voluntary adopted a approved and court signed had that Father support agreement obligated to which he was with DSS under on behalf of per to Mother pay month $100 20, 1981, the circuit February Corey. On Mother agreement of (pursuant to obligation to Father) $75 modified the college attended per month while attending month while and $100 college. petition filed a August, Mother
In
support.
for modification
with DSS
25-7A-22,
ad-
an
In
with SDCL
accordance
by a DSS
hearing
held
ministrative
both
examiner,
time
at which
testified, and
appeared,
Mother and Father
*2
agency
hearing
lines for the administrative
and
The
documents.
various
submitted
or-
setting
decision and
proposed
support.
to follow when
child
issued a
courts
officer
adopted on November
was
paragraph
der which
in the statute
No one section or
set Fa-
Secretary.1 This order
It
con-
be read in isolation.
must be
can
per month
obligation at $220
support
ther’s
as a
The amount of child
sidered
whole.
in SDCL
guideline table
by applying
considering, among other
support
is set
Further,
required to
Father
25-7-7.
factors,
obligor’s
net income and the
coverage for Co-
insurance
furnish medical
specifical-
The statute
number of children.
rey.
pertinent part:
ly provides, in
appeal from Sec-
notice of
filed a
Father
shall guidelines
used
set-
These
The
to circuit court.
retary’s decision
ting
support. Deviation from the
affirming Secre-
judgment
entered
only upon the
guidelines may be made
support but
of child
the amount
tary as to
findings
upon the
entry
specific
of
based
requiring Fa-
Secretary’s order
reversed
following factors:
coverage.
insurance
provide medical
ther to
par-
condition
(1)
Financial
of
denied Fa-
the circuit court
Subsequently,
to,
ents, including, but not
limited
reconsider, which motion
motion to
ther’s
spouse or contribu-
income
a new
court to consider
of
asked the
specifically
party
to the income or
tion
third
spouse
or third-
Mother’s
income of
parent;
expenses
that
child’s household
party contributions
“deviations”
under
as set
forth
child;
(2)
living of the
The standard of
appeal followed.
This
SDCL 25-7-7.
(8)
age
The
needs of the
presently to an osteo-
married
Mother is
child;
(Dr. Bruning) practicing in
pathic physician
(4)
relating to
provisions
The effect of
Flandreau,
works as a
She
South Dakota.
visitation;
custody
or
Bruning’s clin-
bookkeeper at Dr.
part-time
added.)3
(5)
(Emphasis
care.
Child
attorney for
deputy
is a
state’s
ic. Father
'
portion
above-quoted
of SDCL
As the
Pennington County, South
indicates,
may
deviation
there
be no
25-7-7
ISSUE
entry
there is an
from the
unless
findings regarding the five list-
specific
ERRED IN
SECRETARY
WHETHER
question becomes whether
ed factors. The
FATHER’S CHILD
SETTING
examiner)
(and
con-
Secretary
hearing
must
SUPPORT OBLIGATION.
every
case he hears.
these factors
sider
argues
Secretary abused his
conclude,
reading of this statute
from a
We
guide-
deviating
in not
from the
discretion
legislature
entirety,
intended
in its
that the
Secretary did not
Father claims
line table.
in each
factors be considered
these
(1) Father’s finan-
into consideration
take
proceeding.
(2)
spouse’s in-
condition and Mother’s
cial
come, arguing
either consideration
Secretary
in this case that
It seems clear
downward deviation
justified
could have
examiner)
(and
chose not to consid-
hearing
guideline
from the
table.
deviations,
there is no
since
er
sup-
and the
specific finding of deviation
detailed,
lengthy,
25-7-7 is a
SDCL
guideline
the initial
port was set within
which, among
complicated statute2
guide-
table.
things,
mandatory
sets forth
com-
adds to the
ch. 25-7A which
hearing
in a
2. See SDCL
examiner's decision
1.Because
support.
plexities
collection of
involved in
proceeding
decision
becomes the
contested
(SDCL
final
25-7A-6),
it is not
25-7A-22—see also
analysis
exceptional
salient issues
For an
Secretary
why
how or
became
clear to us
under
concerning
enumerated
the deviations
properly
appeal.
it is not
involved in this
Since
Pierce,
statute,
"Do the Permitted
see L.
us,
procedural
not address the
before
we do
Consistency or Confusion?
Create
Deviations
seq.
aspects.
et
See
25-7A-5
1986).
(Nov.-Dee.
Barrister, V. 113
South Dakota
Financial Condition
riage
responsible
and is
as a parent
A. Father’s
education
suitable to
his financial condition
Father claims
circumstances,
responsibility
his
but such
satisfy
reasonably
such that he cannot
adoptive
shall not absolve the natural or
obligations
needs and
with
his own
parents of
from any
the children
obli-
(and
by Secretary
set at
level ordered
gation
support.
examiner)
affirmed
the trial
*3
support
clear
using
It is
that the
regard
award
court. Father submitted evidence
guideline
the
table is not based
the
debts,
personal
including
ing his
a substan
parents. However,
of both
income
it is not
obligation. Father claims
tial student
loan
what was
regarding
spe
clear
intended
the
(student
payments
if
loan
these loan
support obligation
the
cific
noncustodial
considered,
debt)
income
are
his
and
Yet,
law,
parent.4
prior
case
settled
to the
support
substantially
for
is
less.
available
guidelines, provides
support
that child
obligations are
claims these loan
must be
the
awards
based on
reasonable
guide
reasons
deviation from the
viable
for
and the finan
needs
financial
they directly impact
“financial
lines as
his
v.
Johansen
parents.
cial means
the
Thus, we must determine
condition.”
Johansen,
(S.D. 1985);
ry- result of this Although I concur decision, different I would reverse for a appropriate ad guidance As reason. courts, the circuit officer and ministrative uphold a deviation hold that in order to we on the factors guidelines based
from the (including parent
relating to the custodial fi parent’s spouse), the custodial
any new substantially condition must
nancial par of the noncustodial
greater than that significant in order to warrant
ent deviation, sug By we are not
deviation. *4 non support required of the
gesting that eliminated; rather, all parent be
custodial con 25-7-7 must be
factors thereon, in
sidered, findings entered with meaningful appellate re provide
order to all levels.
view at questions which have
The constitutional by strongly asserted Justice
been so
Henderson, special writing, have in his opin- intentionally disregarded in this
been appellant, in his to this
ion brief because
court, any consti- specifically abandoned challenges to
tutional
scheme. and remanded.
Reversed J.,
WUEST, C.J., SABERS,
concur. HENDERSON, JJ.,
MORGAN and in result.
concur result).
MORGAN, (concurring in Justice
I in the result for all the reasons concur opinion. This case majority in the
stated in a problems inherent
demonstrates gives to an administrative de-
statute that judicial
partment jurisdiction perform to
functions, though precise a direction even attempt to educate given.
is Rather than I judges, officers to be submit our appropriate more to remind
it would be judges, to these administrative
trial whom they appealed, that need
decisions are first
blindly approve
decisions.
those
legal
"mini-judges”
not have a
need
judicial
cer. These
Legislatively
cannot
created
officers
judge's
usurp
deci-
or
a
overrule
circuit
education.
sion,
judge being
offi-
a constitutional
a circuit
government.
federal
Legislature
wrongful
was not mandated
It is a
The State
government
judges
to create
dejudicialization
federal
by
judiciary.
usurp judicial functions.
to
in South Dakota
responsibility
The
of the office held
Legislature
confer
The State
cannot
special
far
this
writer
transcends the re-
granted
agency power
is
unto
which
sponsibility of the brief
mat-
writer. When
In
courts
the state constitution.
great import
ters of
reach this Court which
effect,
Legislature attempted to
the State
vitally
superstructure
affect the
of state
a new
grant jurisdiction of child
government,
duty
Although
calls.
judges
this state.
If this
group
writer
subject
brief
desired
abandon the
law,
then an amendment
sustainable
dissent,
of this
I
close my eyes
cannot
empow
further
Legislature could
the State
of his
because
decision. His decision be-
custody.
to determine
er the DSS
him,
longs, uniquely,
belongs
mine
constitution,
Through
state
state statu
Therefore,
uniquely to
special
me.
for this
Court,
tes,2
judi
of this
and decisions
issue,
present
writer
raise
guardi
to be
ciary has been entrusted
Bar,
Bench,
and students of the law
protect
of children and
welfare.
ans
188,
state,
in this
is not an
tenet
Houghton, 37 S.D.
individual
Houghton v.
(1916)
(calling
N.W.
children
Nay,
fashioned instanter.3
Bayer
court).
courts have
Johnson,
(S.D.
“wards” of the
Our
1984),
(1803), seminal case review, where John judicial
doctrine of the framers wrote
Marshall contemplated in
(federal) Constitution courts, by which the as as a rule
strument governed. be legislature, would
well as the at 450. This Court has
Bayer, sponte” recognize the “sua
continued Jones, 406 N.W.2d
concept in v. State (“[T]his has held it (S.D.1987)
368 question sua
may a constitutional decide Bonrud, 393 N.W. v.
sponte.”), and State 1986) (S.D. (“Although appel
2d constitutionality challenge the
lant does not se, may per we raise constitu
of the search Therefore, our sponte”).
tional issues sua Legislature simply cannot do what
State gov constitution
chooses to do because the law-mak rule-making conduct and
erns its
ing power. wrote, recently Wuest
As Chief Justice opinion special concurrence to an au- writer, are a by this “[w]e thored
government checks and balances with among separation powers the execu-
tive, legislative, judiciary.” Roden (S.D. 1987).
Solem, N.W.2d
Now, are be- the constitutional boundaries
coming blurred. One branch should
permitted encroach on the other and encroachment, negation blurring of this
I abide. BALTZER, Plaintiff
Donald R. Appellant, BALTZER, Defendant
Joan C. Appellee.
No. 15641.
Supreme Court of South 8, 1987.
Considered on Briefs Oct. April
Decided