Grunewaldt v. Bisson
494 N.W.2d 193
S.D.
1992
Check Treatment

*1 val- testimony on the reasonable some actually provided.

ue the services (citations 825,

Stormo, omit-

ted) (emphasis remand on reverse and Is-

4.Since we Issue IV either. II, I reach

sue would GRUNEWALDT, Doris

Doris f/k/a

Bisson, Appellee. Plaintiff and BISSON, Appellant.

Dean Defendant

No. 17883.

Supreme Court South Dakota. Sept. 1992.

Considered on Briefs Dec. 1992.

Decided Tonner, & Tobin

Thomas M. Tobin Aberdeen, King, plaintiff appellee. *2 parties a Shaeffer, Flandreau, subsequently The entered into for defen- A. John agreed in which mother stipulation of facts appellant. and dant daughter relinquish custody of their to to AMUNDSON, Justice. provided: stipulation further father. The (father) a trial court appeals Dean Bisson present That the time each has support request for child denying a order receiving the sum of Two Hundred been (mother). We re- from Doris Grunewaldt Thirty-three ($233.00)per Dollars month and remand. verse support the and maintenance each Security minor child from Social FACTS [father], result. divorced in Father and mother were agreed permit to has to [Mother] [father] divorce, they At of the had 1985. the time checks, as receive each of those [father] son, 17; and, age two children: now minor custody will now have of both age 16. The and daughter, now children. custody awarded decree divorce subject father’s visita- to of both children to rights. pay Father ordered tion was facts, foregoing That based per $150 in the amount parties request to determine court per child. month required to whether or [mother] began in 1986 and Father disabled was to provide additional child [fa- receiving month child Social per per $233 provisions of SDCL 1967 under ther] parties Security Disability The Benefits. 25-7-6. in December 1986 stipulated to an order 9, 1992, court On March entered pertinent part, provided in that “[father] and its of fact conclusions law. pay as reasonable shall to [mother] that, “having The court held reviewed are enti- the children those benefits determines that pertinent facts [the court] to because of disabili-

tled receive [father’s] paid needs to be no additional for Social bene- ty eligibility and legal for this to No rationale [father].” and execute all documents neces- fits shall offered in the trial court’s conclusion was directly sary paid to have findings, opin- conclusions memorandum time, gave After this father [mother].” its order ion. The trial court entered directly checks children’s Social needed no additional child to be ceased all other child mother and by appeals. and paid mother father payments. 1990, custody In was awarded father parties’ change after in custo- of the son ISSUE time, began father

dy proceeding. At THE TRIAL COURT WHETHER keeping Security disability one of ABUSED DISCRETION IN HOLD- ITS every month the son’s checks NOT PAY ING THAT MOTHER NEED give the other he continued to TO FATHER? CHILD SUPPORT daughter’s sup- for their check mother port. This review child court’s standard of is whether the January pro-

In father instituted cases setting the parties’ sup- ceedings custody of the abused its discretion to obtain Nelson, application port. for the Nelson v. 454 N.W.2d 533 daughter. In his custo- review, (S.D.1990). In this we do not change, requested, “that dy father determine whether we would made proper court determine ruling, whether a pay original like but support that should [mother] [fa- mind, present judicial of the upon the and current view based ther] case, particular earnings parties, pay- that such circumstances reasonably such a directly could have reached to the clerk of ments be made conclusion. Id. beginning immediately.” courts income; and, monthly par- bined net Johnson, 468 N.W.2d Johnson ty’s obligation calculated ac- Here, applicable in view figure in the cording applicable court did abuse law, that the trial hold party’s percentage should and each con- determining mother discretion its *3 monthly obligation over to their net any child tribution combined free be See, 25-7-6.2, Security 25-7-6.3. income. SDCL and above by the children. received Benefits findings of fact and conclu- None of the law that matter of settled It is a entered of law mentioned above were sions forth, “mandatory guide sets 25-7-7 SDCL The trial court did find that in this case. setting in courts must follow lines” per mother had a net income $801 422 Bruning Jeffries, v. child findings concerning month. also 580 See monthly income do not reflect (S.D.1989) Studt, 443 N.W.2d 639 v. Studt Thus, income. it gross it is or net whether mandatory guide provides (SDCL 25-7-7 for this court to make the impossible long support so establishing child lines render a appropriate calculations and income does obligor’s monthly net an meaningful to this case and we re- review $1,500). can no devia There be not exceed necessary entry mand the matter unless there is guidelines tion from conclusions of law. findings of fact and the fac findings regarding entry specific Bruning, supra. allowing deviation. tors free of that she is submits Mother in repealed Although 25-7-7 was SDCL support obligation child because any 25-7-6.2, the SDCL replaced with 1989 Disability Benefits monthly Social remains the law. guidelines mandate of settled by the children. Under received (S.D. Johnson, 451 N.W.2d 293 v. Johnson against entitled to a credit father should 1990). child be “Current for the monthly support obligation his 25-7- guidelines at SDCL on the new based Hawkins v. Pe of those benefits. those 6.2; from any deviation terson, Howev 474 N.W.2d 90 factors listed on the must be based er, authority propo for the cites no (emphasis at 296 Id. 25-7-6.10.” to credit obligor is entitled sition that an added). obligation for Social against a child by a child be received benefits a modifica moved for When father obligee par disability of the cause of the concerning court orders prior tion Burns, A.2d 1204 570 Traylor ent. In v. support obligation of the mutual remarried (Me.1990), child’s mother a minor support were aspects of child all parties, father. divorcing child’s natural after examination. Brandriet opened for subsequently died stepfather The child’s (S.D.1989). The Larsen, 455 to collect Social child was able and the the child mandatory nature of depen Benefits as Security Dependent reopening of the issue this guidelines and The child’s natural stepfather. dent of her par modify the court to required the trial di to amend the brought a motion father in ac support obligation ties’ mutual of his child relieved vorce be guidelines even absent with the cordance to mother’s ar obligation. Similar place that took in circumstance change case, argued that present he gument in the Johnson, See, N.W.2d 648 468 in this case. the benefits credited with he should be July in effect (child orders before dependent of the as a by his child received with modified accordance may 1989 be held, High Court The Maine stepfather. even absent support schedules the child any juris authority from cites no circumstances). This changed showing “[father] he should proposition that diction for the findings of to enter required the by the credit for earned receive par on: each of law conclusions fact and benefits The District of his minor child. stepfather income; parties’ com monthly ty’s net mo denying err in did not income; Court percentage [father’s] monthly net bined judgment.” the divorce to amend tion their com- party findings regarding [appropri- of specific (emphasis A.2d add Traylor, Bruning, 422 N.W.2d at 580 factors.” ed). ate] (emphasis is the who that it The view is enti benefits earned necessity The against a child obli to credit tled support guidelines deviation from the this in Hawkins where reflected gation regarding argument also resolves mother’s that, dependent security held “Social might supported factors that of a child of a paid on behalf case. No such deviation this par parent recognition disabled thus, are no find there were entered total resulting reduced income ent’s is, if ings support a deviation rule, majority disability. Under the *4 fact, Finally, did. the trial court what security by may offset social be indicating nothing in record there is the during period the in dependent benefits any a mother raised factors that received.” Haw the benefits are which This court deviation before the trial court. (citations kins, and foot 474 N.W.2d at 93 deviation from will not consider issues over Here, added). omitted) (emphasis the note support guidelines raised for the child a obtained as result were Hawkins, appeal. supra. on first time recognition of his disability in of father’s analysis, Based the above resulting from disabili that reduced income obligated not order that mother is court’s Thus, father, mother, not hold that ty. we support is and the pay reversed the credit for those benefits is entitled to entry findings of matter is remanded of support obligation. against his reflecting a of law fact and conclusions however, observe, that the fac We party’s of each calculation sup allowing deviation from the tors according guidelines. obligation to the of a guidelines income port include: “[t]he Any guide- from the issues over deviation subsequent spouse a or contribution of by on remand may be raised mother lines expenses or of to the income party third findings any supportive and of deviation only application if the of parent but that at may by be entered the trial court made hardship financial on the schedule works a that time. (em 25-7-6.10(1) parent[.]" SDCL either Thus, receipt added). of father’s phasis MILLER, C.J., and WUEST and Benefits on the Social SABERS, JJ., concur. may appropriately of the children be behalf by into the trial court taken consideration J., HENDERSON, in part concurs guide from the a for deviation as factor part. dissents however, deviation, must Any lines. such HENDERSON, (concurring Justice entry necessary findings of based on be part, part). dissenting showing the fact and conclusions of law of finding inequity an which a of basis holds This Court that See, hardship on mother. a financial works determining that its discretion abused Bruning, supra. pay mother need re- Whereupon, the issue was father. argues parties that Mother also findings entry of versed and remanded for Security benefits agreed that the Social to determine of fact and conclusions of law parties' payment would serve parent of child obligation and that mutual child expressed For therein owes. the rationale operated agreement. they under holding, point I concur. on that of law Thus, agreement she contends that do, however, exception I take one notable her child controlling and eliminates following paragraph: spe- obligation. there no such observe, however, Moreover, that the factors We agreement the record. cific allowing from the child from the deviation may “there be no deviation [child a income of entry an include: guidelines unless there is support] “[t]he 197 Here, majority opinion is substitut- spouse subsequent expenses ing findings the trial court en- to the income or its third before if only application any. may This Court not substitute parent but ters hardship questions its factual works financial for that the schedule 25-7-6.10(1) unless the fact parent[.]” on either the trial court Thus, receipt Cutler, clearly are 488 (emphasis erroneous. Mash v. Security Disability Benefits (S.D.1992); 645 N.W.2d Northern may appropri- children on Supply, Sprecher, Farm Inc. v. behalf by the into consideration ately taken be free to We are not as a factor for deviation court’s it disturb the lower unless deviation, Any such how- guidelines. they contrary clear satisfied that to a entry of the ever, based on must be preponderance evidence. Mash findings of fact and conclu- necessary 646; Clinic, Cunningham Yankton showing for a the basis sions of P.A., inequity works finding of fact, conclusory One of which we do See, hardship on mother. financial know, pro in the determined initial divorce Bruning, supra. ceeding, support: is the formula for child words, seemingly direct these Via plus moth Father’s Social checks *5 on and decide the case to focus court Until trial court er’s contribution.* 25-7-6.10(1). Certainly this subsec- findings supplies the of fact and conclu not applicable, but I do be- tion could be Court, to this we should not sions single out this subsection lieve it is wise to (different are to dictate which laws be used through could 25-7-6.17 when 25-7-6.1 may require application of different facts All aspects of also be determinative. laws). Certainly, the trial court of its own to examination. Bran open 25-7-6.10(1). If may utilize SDCL accord (S.D.1989). Larson, 442 N.W.2d 455 driet v. today, yet supply we the father find for Remember, time record at this the settled give one paragraph, essentially we to this con of fact and does not contain hand and take from other. now, For settled rec of law. clusions I have Essentially, paragraph, this court’s evidence ord is the sole above, conceptually oxymoronic is isolated Adams, 279 proceedings. Pearson v. opinion. entirety para- Said cross Let us not N.W.2d 674 holding. It foists graph skews our be bridge of third contributions to what its decision is be. it. fore come to court, Rather, right, a trial he has the this not held that Court will We have equities parties. consider tamper unless with modification decisions Pierre, a swami Perched in we cannot be has in a manner acted circuit Aberdeen. discretion; to an abuse of which amounts pur- Therefore, end or “a exercised I must dissent to the use discretion by, clearly against, pose justified paragraph. the above State, Fall River reason and evidence.” 648, 651

County Dryden, N.W.2d Herndon,

(S.D.1987); Herndon v. including By Court, above, paragraph this blocked

tampering with a modification before made. been of fact * children, sup- totally custody exonerated had both mother be the mother When angling port? appears came to me mother It solely Bene- nothing from his Social That to child contribute Logic that the contributed dictates given fits. precisely why should be the trial court remaining support whether it be financial rope equitable a decision. make some simply over their heads. Should the roof