*1 provide notice of ary checkpoints advance motorists, approaching presence to
their “option to avoid the
giving them the ... v.
checkpoints.” United States Martinez-
Fuerte, 543, 558, 96 S.Ct. 428 U.S. (1976); Michigan L.Ed.2d v. -, 2481, 2486,
Sitz, 496 U.S. S.Ct. (1990).
Certainly the officer was within his Thill
rights away to follow after he turned roadblock, he
from the but since never did any illegal or unusual
observe even behav- Thill, he continued to have no articu-
ior suspicion Thill
lable or reasonable was
doing anything wrong. majority opinion suggest strains to Saying
otherwise. that the officer had a suspicion”
“reasonable does not make it so.
The officer must be able to articulate some-
thing about a defendant’s behavior before
making stop reasonably which leads suspect specific
the officer to crime Nothing committed. been of the sort
happened here. Thill’s unreasonably vehicle was seized Const,
violation of U.S. amend. IV and Const, VI, South Dakota art. 11. There-
fore, I respectfully dissent. HAWKINS, Appellant,
Kenneth H. PETERSON, Appellee.
Jeanine
No. 17312.
Supreme Court South Dakota.
Considered on Briefs March
Decided
GORS, Judge. (father) Kenneth Hawkins appeals from a trial court order modifying his monthly support obligation. child We affirm in part, part reverse and remand.
FACTS Father and (mother) Jeanine Peterson were never married. Father’s paternity of 26, 1983, a minor child born was estab- judgment lished in 1984 which also es- tablished father’s obligation per April 30, 1990, at month. $150 On petition father filed a for modification of obligation. The circuit court referred the matter to a referee for a hearing entry report and of a containing findings of fact and conclusions of law. hearing
The referee conducted a on fa- petition ther’s for modification and filed report her on June The report modifying recommended father’s monthly support obligation per month $126 and requiring recommended father to per proportion- additional month as his ate provided by share health insurance bringing mother father’s total per timely objec- month. Father filed report. Following tions 25, 1990, on June circuit court entered approving adopting its order and the ref- 8, 1990, report August fixing eree’s support obligation father’s child at $181 appeals. month.
STANDARD OF REVIEW reviewing of child findings of fact are they not to disturbed be unless findings may A erroneous. not unless, upon be overturned review all evidence, is left court with a mistake definite conviction that a has been Hopewell, Falls, appel- Richard Sioux 15-6-53(e)(2); made. Janke v. lant. Janke, Peterson, pro Jeanine se. freely The referee’s conclusions of law are objections 1. Father’s filed were on June 7A-22. days within the ten allowed SDCL 25- appeal rule. The will be decided on the overturned whenev-
reviewable Janke, supra. merits. they er are incorrect. Mother, appellee, did who is ISSUE ONE contains file a SDCL 15-26A-80 brief. *3 WHETHER THE CIRCUIT COURT following: the HELD AN APPROPRIATE HEARING file his brief with- appellant If fails to an FATHER’S OBJECTIONS TO THE ON 15-26A-75 or provided in the time REFEREE’S REPORT. extended, appellee an within the time as transcript hearing There is no of the appeal. dismissal of the may move for If hearing the referee3 or of the before timely brief, appellee to file fails objections the circuit court4 on father’s to argument at oral he will not be heard report. referee’s SDCL 25-7A-22 contains The the except by permission Court. of following relating provisions judicial the to any may accept filing for brief clerk not of referee decisions: review filing, (empha- timely not submitted added).
sis report The referee shall file his with the copies court and cause thereof to be appellant to file a failure of an brief While by mailing parties served to the and the fatal, may be Keierleber v. Star Prairie secretary. Any party ten shall have 12, 117 80 S.D. School Dist. No. days from the date of of the service (1962), appellee file a 491 failure of the to report objections in which to file to the automatically not translate to brief does filed, report. objection If no cir- the victory appellant. Appellant for the still thereafter, cuit court and without showing that the find has the burden of notice, further enter its order. If ings of fact are erroneous or that objection filed, the circuit court shall are incorrect. In the conclusions of law report, hearing a date on the fix case, throughout pro this mother was se hearing solely such to be on the record proceedings. the Her modest income2 has referee, (empha- established the before attorney appel little room for fees for an added). sis request late brief. She did not the modifi cation, object transcript by failing to the referee’s recommended Father a to waived appeal solely order or to this court. This case order it.5 Since review is on the argument. was submitted without oral record established before the the penalized beyond place Mother should review which can take without a 6—53(e)(1), 2. The referee found that Mother’s income was under the contract between 15 — $1,101.36 per month. System, the referee and the Unified Judicial obligated tape referee is not to transcribe the tape recording 3. The referee made a of the hear- recording hearing requested. of the unless Nei ing. appeared person Father and mother supreme ther the circuit court nor the court appeared by telephone. parties appeared Both required tapes should be to listen to audio to pro hearing se at the before the referee. Stavig determine the state of evidence. appeared pro Patrol, Highway 4. Father and mother se at the South Dakota 371 N.W.2d hearing objections in circuit court on (S.D.1985). father's parties n. must order a report. transcript having prospect or face the of objections testimony resolved without the taken provision 5. SDCL 15-26A-49 contains a that hearing. party ordering at the the tran transcript failure to order a within the time script obligated for its cost. Under the ref right transcript appeal limit waives the to a contract, may charge person eree’s the referee City Rapid to this court. In Kleinsasser v. requesting transcript charged by the same fees (S.D. 1989), City, 440 N.W.2d 738 n. 5 this reporter a court under SDCL Due to 15-15-7. transcript court held that failure to order a ninety day the abbreviated turnaround time days provided within the ten in SDCL 1-26-32.2 completion proceedings, of referee the tran right transcript. was a waiver of the to have a script days pro must be ordered within the ten principle applies transcription The same of a filing objec hearing upon vided in SDCL 25-7A-22 for the filing before a referee of ob jections report. hearing transcript to a referee’s tions. Failure to order the within the be solely fore the day right transcript. circuit court is on the record ten waives the limit to a Contrary established before the referee. transcript portion is a of that of the review one of the children for whom record which was before the circuit court.6 was set was disabled cyst on the brain. Because of the child’s disability, received $299 objections circuit court on his to the month from security Supplemen- was not in accord with Security tal Disability (SSID), Income Nel- process. SDCL 25-7A-22 or due son, supra at 534. This court held: proceedings presumed court regu to be Security regulations, Social [UJnder showing lar absent an affirmative to the SSID parent’s are based on the Pearson, contrary. Pearson v. support payments, and are raised or low- transcript Without a *4 by ered the amount of parent’s the sup- the hearing, impossible circuit court it is port. These paid pro- are determine how the was conducted. supplemental vide income to cover a dis- We find no merit to father’s contention. ability, not as a sup- substitute for child Father also that the deci port.
sions of the referee and the circuit court Nelson, supra at 536-37. In contrast with are a manifest abuse of discretion. Fa Nelson, mother in this case will receive general complaint ther’s supported is not monthly security dependent benefits by the record and we will not reverse in the on behalf of the child because father is showing absence of a clear of an abuse of disabled. Gross, 4, discretion. Gross v. 355 N.W.2d security dependent benefits Social (S.D.1984). However, specific father’s paid are on behalf of a child of a disabled claims of error will be addressed. parent recognition in parent’s of the re duced resulting income from total disabili
ISSUE TWO Lebert, ty. 715, Folds v. 420 So.2d (La.App.1982). rule,7 majority Under the WHETHER SOCIAL SECURITY DE- support may child offset social secur PENDENT PAID BENEFITS TO ity dependent during period benefits the MOTHER ON BEHALF OF A CHILD which the benefits received. Newman BECAUSE OF FATHER’S DISABILITY Newman, (Iowa SHOULD BE CREDITED AGAINST 1990). inapplicable Since Nelson is FATHER’S CHILD SUPPORT OBLI- agree rule, since majority we with the the GATION. referee erred as a matter of law The record contains a copy of Adminis- allowing security pay credit for the social Judge Virgil trative Law April E. Vail’s against ments father’s child support obli 1990, decision that father is disabled as gation. We reverse and remand for a de Act, defined in the Security Social due to termination of the amount and bilateral carpal syndrome. tunnel The ref- of the support credit to father’s child obli eree found that “the minor child will re- gation. ceive approximately per month in $117.00 Security disability payments Social because ISSUE THREE disability.” of father’s The referee then WHETHER THE REFEREE CALCU-
concluded as a matter of law that the social LATED THE CHILD SUPPORT OBLI- security payment to the child should not GATION CORRECTLY. diminish support obligation, father’s child citing Nelson v. 454 N.W.2d 533 The sup- referee calculated the total port obligation parties of the as follows: 6. The record consists of concerning the circuit court security file tion his award of social establishing petition paternity Father’s together benefits with mother’s financial state- modification, return, his 1989 tax ment, a recent stub and her 1989tax return. statement, payroll his financial information employer, compensa- from his former worker’s 7. See 77 A.L.R.3d 1328-36. records, tion claim and medical and documenta- (3) monthly the federal income tax de- a combined net Whether parties $1,587.11. pendent deduction for such minor child that sum
income of 42% Petitioner, sup- is allocated to the benefit of the of the non- the net income port obligor parent; or parent; of that sum is the custodial custodial Applying Respondent. net income of $ n n »fc % % provisions of Support Child Guideline (5) custody The effect of and visitation 25-7-6.2, the total obli- provisions including whether children per gation indicated is month. $300.00 share substantial amounts of time with Petitioner, support obligation for parent; each deviation, absent consideration in the amount of $126.00 would be month. (9) obligation parent pro- of either reverse and remand for a recalcula- We vide for natural children or tion.8 The total However, stepchildren. existing determined parties is to be order not be modified category closest to the on the schedule reason; solely for this .... monthly par- net income for the combined *5 Father raised other deviation factors at the category may slightly
ties. The closest be hearing before the referee but these were parties’ than the actual combined lower not briefed and are deemed abandoned. slightly or it monthly net income 15-26A-60(6); Matheson, Corbly SDCL v. higher.9 category The nearest scheduled (S.D.1983). parties’ monthly to the net in- combined $1,600. $1,587 come of is The indicated regard to With deviation under support obligation for one child is 25-7-6.10(2), SDCL the referee considered The referee's calculation of $291. $300 depleted father’s statement that he had was incorrect. Father’s of the sched- savings and had no other income than his $122, uled child is security disability payments. by as calculated the referee. found referee that there was no basis for transcript deviation. Since there is no ISSUE FOUR only we can before portions review the other of the record.10 WHETHER THE REFEREE nothing We find in the record to indicate SHOULD HAVE DEVIATED FROM (1) that the referee’s THE errone SCHEDULE ON ACCOUNT OF CONDITION, ous. FATHER’S FINANCIAL (2) THE INCOME TAX DEDUCTION regard With to deviation under CHILD, (3) THE FOR THE EFFECTS 25-7-6.10(3), SDCL the referee considered OF CUSTODYAND VISITATION AND that mother is entitled to claim child (4) FATHER’S SUPPORT OF HIS OTH- dependent purposes. for income tax ER CHILDREN. referee found that there was no basis for requires 25-7-6.10 the ref SDCL pay deviation. Father will not income tax eree to consider deviation from the sched security disability payments. on his social by party ule if raised either and sets forth Therefore, Internal Revenue Code ten factors. Father claims error because consequences deviation for tax would be
the referee did not deviate from the sched inappropriate as a matter in this of law respect following ule with to the factors: case. (2) Any par financial condition either
ent
regard
which would make
With
deviation under
inequitable;
25-7-6.10(5),
the schedule
SDCL
father
this is-
briefed
See,
Johnson,
figures
e.g.,
8. Referees
should round all
to whole
Johnson v.
sence of a is the fa ther’s financial statement and tax father’s MILLER, C.J., and WUEST and return. Father claimed no for the SABERS, JJ., concur.
subsequent
petition
child on the
fi
or his
HENDERSON, J.,
part
concurs in
and
nancial statement and did not claim the
in
part.
concurs
result in
child on his 1989 income tax return. There
nothing in
the record to indicate that the
GORS,
Judge,
AMUNDSON,
erroneous.
J., disqualified.
HENDERSON,
(concurring
Justice
in
ISSUE FIVE
part; concurring
part).
in
result
THE
WHETHER
REFEREE COR-
review,
I
concur
standard of
Issues
RECTLY CALCULATED FATHER’S
One, Two and Three. All of these three
SHARE OF THE HEALTH INSUR-
However,
issues
the trial
reverse
court.
ANCE
THE
PREMIUM FOR
CHILD.
Three,
with reference to Issue
provides
Mother
health insurance for the
complicated
formula is so
that we
child. The referee recommended that
forsaken,
outwardly,
at
least
provide
mother continue to
health insur-
abuse of discretion test.
It has not been
ance and that father
of the health
42%
opinion.
suggesting
mentioned in this
I am
premium
insurance
in the amount of $55
recognized
that this test should be
rather
per month in addition to his scheduled child
by implication.
than abolished
I have nev-
support obligation. SDCL 25-7-6.16.
fully
er
abandoned such a rule. Neither
that the referee calcu- has this Court.
Nelson v.
(S.D.1990);
lated his share of the insurance cost incor- N.W.2d 533
Peterson v. Peter-
rectly.
multiplied
son,
(S.D.1989);
The referee
Qfi Four, up by particularly Washington, dreamed bureaucrats in regards and
As Issue D.C., say, effect, accept under SDCL 25-7- who “You requested deviation these 6.10(2), give father to lose this or guidelines you money the record causes we no for aid i.e., depleted savings he had point, dependent to children.” security disability pay only had social and Although generally I agree with Issue being resource. As this case is ments as a Five, the reverse after and remand on all of grounds, equity three on the first reversed issues, court, opinion, the trial in my permitted to es demand that he be would judicial might not be able be a account- totally, financially strapped if he is tablish premium he must divide ant which only disability payments pur and has people into the number of to determine the chase the necessities of life. He is receiv proportionate share. A mechanis- ing approximately per month so it approach might not tic be feasible when the superficially appear that he can af would issues, support, on child other resolved support. question ford some child be judges or resolved. Circuit are con- Heretofore, is: How much? fore house stitutional officers and should not be teth- been, be, my position and continues to has support picket. to child ered Animals are parent that if a financial condition of either picketed. ineq of the schedule makes the uitable, that the schedule be followed remarks, my
blindly. To the extent of I My on Issue Four. concur
concur result in result is restricted
rence
25-7-6.10(2) 25-7-6.10(9). Perhaps and saves, constitutionally,
footnote 11 this years
statement: “Since the older son [17 child, subsequent is not a no deviation old] Dependency In the Matter of the and appropriate him under SDCL 25-7- N.S., Neglect Concerning 6.10(9).” my opinion, children are chil J.S., His Mother. dren, children, they previous No. 17307. children, children of a first or second mar riage, illegitimate See, or an child. Felt *7 Supreme Court of South Dakota. Feltman, man 22, April Submitted the Briefs 1991. (S.D.1989) (Henderson, J., dissenting).1 They equal protection are entitled to Aug. Decided 1991. expressed my writing, they As I law.2 hungry are no less or naked without the
support of their I questioned father. weep
follows: “Should we for children of marriage
the second at their birth rather their
than at death?” Feltman at 593. All they
children are God’s children and
not children of a They lesser God. come hy-
into the world without benefit of some
pertechnical statutory guideline, originally added, Legisla- Independence. 1. This section was the State Article United States Consti- ture, becoming My effective dis- tution: "No state shall make or enforce law published sent in Feltman was which reflected abridge privileges which shall or immunities January that Feltman was decided on (If citizens of United States" I’m a ... vanity This is not but could be a rather safe 1st, 2nd, marriage, child of a or 3rd I have a conclusion: This section was added due to the right say “you’re my daddy” “you should — verbiage my my dissent or the substance of me”). feed Same Article 14 states: “... Nor constitutional concerns. deny any person jurisdiction within its equal protection of the laws.” Powerful medi-
2. "We hold these truths to be self-evident: that cine, my legal brothers. equal all men are created ...” Declaration of