*1 353, Ballard, 68 N.W.2d 243 Minn. Tate v. liability 261, is that (general JOHNSON, rule Plaintiff Sharon contract, matter of for interest is purely Appellant, it); promise pay to 47 C.J.S.
requiring a v. Usury, Consumer Credit Interest & (1982). Appellants po- elevate their cannot JOHNSON, Defendant Darrell testimony. their own Klatt v. sition above Appellee. Co., 409 Insurance N.W.2d Continental (S.D.1987); Landers, 366, v. Romey No. 17425. 415, (S.D.1986); v. Swee Supreme Court of South Dakota. Inc., Paving, 283 N.W.2d
Myrl Roy’s & 570, (S.D.1979). Sept. on Briefs 1991. Considered the interest issue Trial court decided Nov. Decided wrong Seymour reason. v. right for the Technical In Western Vocational (S.D.1988);
stitute,
419 N.W.2d
201 N.W.2d
City
Beresford,
Owens v.
of
890, 893,
8, 15,
interest, academic affront to the law of is an place came on this until new Justices the law took respectfully suggest I that the dissenter interest. up 21-1-11. carved Beka and SDCL Court which prejudg- My thesis is not that is not confused. Justices, oncoming and the of the new With the granted; my thesis is that ment interest never be decisions, Legislature enacted SDCL the State new practice, parties testify past that in be- when the statute, that it would As I read over 21-1-13.1. appear accounts, parties, that in- tween the on different Legislature took a conservative that the charged, that a court of law has no terest not be pre- imposition approach and the to interest contrary imposing to their ex- business interest Legislature appeared judgment to be interest. The contract, dealings. press to make a Who are we disappointed of the new decisions with the advent interest, parties, contrary dealings of the on interest, brought by about a new which were on testimony? by and the as reflected the exhibits agree the new composition Court. here; rather, no "contracted interest” There was apply When the new dawn here. statute does bargaining there would be no "inter- was that phase of interest in on the third historical arises est;” therefore, "prejudgment be interest” cannot Dakota, a new case arises under said imposed court. There was a the will of the sun, case, shining brightly, Legislative state, something. day, in this when Beka meant “Prejudgment application: interest ordained for been eroded a solid case. It has arising damages a contract shall be at the on from upon holdings author relies of this Court. The contract; rate, in the other- contract wise, if so awarded Clements, I dissented in handed down in 1991. awarded, prejudgment it shall if interest Hageman expressing had that Amert and Clements Category specified in B rate Section 54- be at the eight holding in Beka. I cited torn asunder limited, However, very Legislature has 3-16." my Clements on interest in this Court cases sharply, prejudgment interest for it "... [interest] case, note, Bldg. present in the that S.D. dissent. specified in the ver- on the date shall commence Auth., prejudgment inter- to, include, is cited for an award run dict or decision and shall est; espoused perhaps principle in said case Or, verdict, is no the verdict. if there date of authority prejudgment general dawn, on can be used judgment is entered.” Come the date the Dakota; however, prejudg- statute, no up interest in South under the new when the cases come interest, willy-nilly, awarded in that case. In S.D. imposition ment interest was shall almost Auth., citing reality, Bldg. specially to the old disappear concurred and that under the sunshine concurrence, Beka, special again, sprin- grand-daddy I referred shine case. In said shall Beka old kling certainty, Hageman. particles rather than my special As I have the air concurrence out, pay uncertainty. repeatedly pointed one should have to
SABERS, Justice.
ACTION (Mother) filed this dis- Johnson
Sharon circuit court order cretionary appeal of a request it decline to exer- denying her this child dis- jurisdiction cise over pute. HISTORY
FACTS/PROCEDURAL (Father) Mother and Darrell Johnson Dakota circuit divorced a South were January 1987. Moth- court Aberdeen couple’s custody of the two er received children, (now years) Terri and youngest (now years). Father received children, Kristi custody of the two elder (now years). (now years) Tamara in Aberdeen. Father continues to reside Mother, Terri and Carrie have lived years.1 approximately two Minnesota for filed a motion August Father circuit court Ab- the South Dakota erdeen, custody change for requesting a requesting responded by Mother Carrie. court decline Dakota circuit that the South Child Custo- jurisdiction under the Uniform (UCCJA). Act The UCCJA dy Jurisdiction (SDCL 26-5A- South Dakota is law both 26) (Minn.Stat. Minnesota through 518A.25). parties through Both 518A.01 § affidavits and memo- submitted substantial respec- support of their randum of law circuit positions. The South Dakota tive jurisdiction. This chose to exercise court granted petition Mother’s for discre- Court court’s tionary appeal of the circuit ruling. dictional DECISION custody disputes, In child more than over the one state Rutkin, Family parties. generally, See Bantz, Gosch, Crem- Wager A. Ronald and Practice Law § 32.03[4][a][hereinafter Aberdeen, Oliver, er, plain- Peterson & multiple jurisdiction re This “Rutkin”]. appellant. tiff and shopping, abduction of chil sulted forum Ewinger dren, L. Tucek of Rice & Law and conflict between state courts Vicki Aberdeen, ap- The UCCJA was Offices, jurisdiction. for defendant and Id. over problems by set- designed to alleviate these pellee. object tunity. Apparently, allegations improp- Father did not that Mother 1. There are no Thus, to Minnesota. there are no erly relocation removed the children from South concerning snatching. job oppor- pursue issues child She moved to Minnesota to modify appears unless it ting procedures to decide that decree standards jurisdiction. what state exercise to the court of this state that court should Rutkin, gave UCCJA Comment. See also which decree does not now have supra, To prerequi- jurisdictional §§ 32.03[4][c] [d]. *3 goals, provides, the UCCJA achieve these substantially sites in accordance with pertinent part, that a state court has chapter this or has declined to assume jurisdiction custody make a child deter- to modify and jurisdiction to the decree the if by initial or modification decree mination jurisdiction. of has court this state it: words, In other the South Dakota ...; (1) home state of the child or is the custody originally court which decided (2) interest of the child that is in the best continuing jurisdiction children the has jurisdic- state assume a court of this provides over matter. The UCCJA par- the child and his tion because continuing jurisdiction parents so cannot ents, child and at least one or the simply move another state and have an contestant, significant a connec- have ruling custody unfavorable relit- child state, and with this there is avail- tion Chapter at igated. McCahey, supra, p. in this state substantial evidence able parents state, 5-1. When move to a new present fu- concerning the child’s or continuing the new state must defer to care, protection, training, and ture originally de jurisdiction the state relationships; personal custody, original cided state unless the no McCahey, SDCL 26-5A-3. See also longer jurisdiction has or has declined to Gafner, Kaufman, Kraut, Silverman jurisdiction. 5.03[2]; at assume Id. Zett, Custody & Child Visitation: Law Rutkin, supra, at § 32.03[5]. p. Practice. 3-19 § 3.01[4][a] [herein- case, In this Mother asked South short, “McCahey”]. goal after jurisdiction because Dakota court to decline jurisdictional con- the UCCJA is to avoid forum. The “incon- it is an inconvenient flicts states and assure that the between forum” of the UCCJA venient section particular state to handle a suited best 518A.07), (SDCL and Minn.Stat. 26-5A-7 ultimately up exercising controversy ends states, pertinent part: jurisdiction.2 jurisdiction under A court which has example of This case is an how two chapter an initial or modifi- this to make may simultaneously have states exercise may decline to its cation decree custody dispute. over a child Minnesota making jurisdiction any time before a has as Carrie’s “home state.” if it it is an inconven- decree finds that 26-5A-3(l). South has SDCL Dakota custody determina- ient forum to make a have a diction because Carrie Father case tion the circumstances significant with connection South is state a and that court of another and there is substantial evidence concern- forum. appropriate more care, ing present protec- or future Carrie’s tion, training, and personal relationships [******] A- 26-5 available SDCL determining if it is an inconvenient 3(2). forum, if it is consider court shall (SDCL 14 of the UCCJA 26-5A- Section child that another the interest of the 14) provides: pur- this jurisdiction. For state assume pose it into account follow-
If state made a take of another has a court factors, including: decree, ing a court of this shall state family” that "[t]here which means previously noted: child 2. This Court than minimum con- must be maximum rather It remembered that the child's inter- must be paramount mere con- tact with the state.” to the interest or est Moses, feuding parties in a determi- venience of Winkelman v. custody. (S.D.1979) "The of the nation of child interest quoting Act § Model Commission- opti- when the Note, child is best served forum p. ers' mum access to relevant evidence about MILLER, (concurring spe- recently Chief Justice is or (1) state If another state; cially). home the child’s pro- agreement I am full has a closer con- (2) state If another majority holding of the nouncements and family his or the child and nection with however, to compelled, opinion. I do feel or more of the child and one with the by the be- my frustration created express contestants; opinion that this court’s will lief evidence concern- If substantial parties meaningful, realistic value care, present or future ing the child’s solely has academic value appeal. personal rela- training, and protection, litigation involved in similar parties readily more available tionships is *4 the future. state; another legal subject the of this The child who is agreed an- parties have on If the Thus, April dispute on was born appropri- is no less forum which other sever- eighteen years old within she will be ate. opinion. At issuing the of this al weeks of 26-5A-7. SDCL adult, she, time, emancipated an that de- parents judge, or the will and not her Thus, has discretion in trial court the or in Minnesota cide whether she lives jur- to exercise deciding to decline whether South See, e.g., 26-5A-7. isdiction under SDCL remembered, too, Breneman, these 284 N.W.2d that It must be Breneman v. by (1979); Den- commenced father be- Mich.App. proceedings 336 Dennis v. were 92 him. (N.D.1986). girl to live with nis, also cause the wanted See N.W.2d daughter’s her Winkelman, conceded that was N.W.2d 903 Mother litiga- in persisted still this J., preference, but (Henderson, dissenting.) tion. argu The trial court reviewed custody of older children awarding In the nature of counsel and considered ments preference. the child’s may consider courts Dakota and available of evidence (In fact, appointing a 30-27-19. SDCL grew up in South Dako Minnesota. Carrie over, the or guardian for a child fourteen years of her first fourteen ta and evidence pref- child’s generally bound court is Minnesota is now life is available here. 30-27-20.) Admittedly, the erence. SDCL the last evidence about her home state and permissive custody preference is child’s life is available there. years of her two Isaak, 278 mandatory. Isaak v. and not expressed her desire to move to (S.D.1979); Jasper Jasper, v. her father. The to live with South Dakota (S.D.1984); Shoop v. 351 N.W.2d its dis trial court exercised South Dakota (S.D.1990). How- Shoop, 460 N.W.2d accept jurisdiction. and chose to cretion ever, custody litigation to be embroiled in very their nature Discretionary acts of a specific, stated wishes contra to every perhaps not choices. While volve appears to me to be ab- seventeen-year-old have chosen of this Court would member surd. the trial court’s decision accept jurisdiction, HENDERSON, (concurring spe- contrary reason. There is no Justice mind, in judicial cially). if “a abuse of discretion circumstances, could of the law view i.e., rigidity, rigidity in the viper A reached that conclusion.” reasonably have Custody application of the Uniform Child Rose, 324 N.W.2d v.
State
Act,
v.
hatched Winkelman
Jurisdiction
(S.D.1982). Affirmed.
(S.D.1979),
Moses,
ap-
now
pears, Winkelman, In I dissent- minious death. JJ„ AMUNDSON, concur. WUEST Court, ed, deploring the decision thereof, HENDERSON, J., explicit lan- MILLER, C.J., indicating at 902 26-5-22; specifically, most guage of SDCL specially. concur and a I misconception.” word “extreme view called attention to the this writer agree. goes on to “may” said statute —which its may decline to exercise say . Winkelman, we noted that South Da- making decree if any time before a diction is divested home state kota forum to
it finds that it is an inconvenient after a the state. six months child leaves under make a determination then, impact, decision have What does this that a court circumstances of case and absolutely obvi- upon Winkelman? fo- appropriate is a of another state more deciding that were we now this case ous emphasized strongly the word rum.” pronouncement, that under Winkelman’s “may.” here, For, we would reverse case. gone has been from South Carrie Johnson sang song placing Essentially, years. for two and half trial of this state. discretion courts majority opinion, As noted dissent, majority I noted “The my 26-5A-7, choose trial court SDCL concern with the opinion does not itself incon- to decline based on the case.” I mentioned that humanities of the wholeheartedly venient forum doctrine. age (Winkelman) was of a sufficient Karen *5 adopt adoption by applaud the this Court intelligent Chief preference. to form an having re- discretionary And test. did not on the Justice Miller serve Winkel- affidavit), did (by viewed evidence strongly al- Mr. man court. Chief Justice court, was no the trial conclude that there year old preference of this 17 ludes discretion. abuse girl. only years Karen Winkelman was expressed preference. age, when she her Hereby, I endorse the comments of also, Winkelman, are, make pointed that the Decisions At 903 out Justice. Chief why common sense. cannot fathom some prevail best interests of child should girl in con- mother would embroil this inter- and that Karen Winkelman’s “best Supreme troversy to Court legalism.” ests have been forsaken appears ego Frankly, it state. here, I have the best Again, would not the best interests of Carrie altered over subverted interests of Johnson Johnson. “legalism.” There is express: wish to conclusion analy- attempting good at a arrive home doubt that Minnesota is Carrie’s cases, sis, futuro, in other for the benefit Custody under the Uniform Child state but child, I interests of com- of the best Act, the that the child’s Jurisdiction fact IN- to the reader an article dubbed mend eliminate changed, does not home state CUSTODY: INITIAL JURIS- TERSTATE Dakota’s herein. AND CONTINUING JURISDIC- DICTION UCCJA, Bri- THE Dr. UNDER TION Bodenheimer, Family
gitte M. found XIV, Quarterly, Volume Number Law Winter, particu- pp. 203-227. More by her to the larly, reference is made continuing month “myth of a six limit on it an jurisdiction.” Dr. Bodenheimer terms