*1 legal, pursue appropriate dispose late for her to judgment claim back questions. against alleged Obviously, not factual defrauder. Bruntz have: writing believ- join I the Chief Justice’s his fraud against established claim it in author- is solid law with Rutherford, appealed de- from the shaking I am cited. not interested in ities thereof, nial up recent stare decisis. Black Hills Jewel- approval, been cited 15 times with ry has against his claim combined Ruther- Court, including 12 times in once ford for fraud with against his claim Eighth Appeals, Circuit Court of once Kathryn tracing proceeds for South the United States District Court into her fraud cabin the Black Dakota, Division, Central once Hills. Supreme Court of Montana. approach Either would have avoided the Lastly, judicata” “excessive use of res he, others, situation now find them- indeed, should, I guarded against. am selves in. Bruntz failed Since to establish by overemphasis the obvi- reminded claims, fraud or combine his this was mother, my sundry by ous who told me proper use” judicata. “defensive of res occasions, intentions, “son, good with all I am authorized to state that Justice your plane!” Squarely do the don’t miss MILLER, joins special writing. judicata within facts fit the dóctrine of res not believe that Justice and do the Chief plane.
missed SABERS, specially). continually guard against We must judicata, especially use of res excessive involving different when used bar claims parties, privity those not JOHNSON, Rhonda S. Plaintiff parties, denying proper for fear Appellee, wrongfully damaged. of those To claims deny “day would do so claimants their JOHNSON, Michael D. Defendant open court” direct violation of Appellant. provision of the South Dakota Con- courts VI, art. 20. stitution No. 16550. Contrary majority opinion, to the “wheth- Court of South Supreme Dakota. ought
er to be allowed trace [Bruntz] assets[,]” Kathryn’s such funds into on Briefs Nov. 1989. Considered added). litigated, previously (emphasis Decided Feb. had, If it there would be no judicata apply prevent a that res would Kathryn trial
second of the same issue. lawsuit, party was not complaint only and Bruntz’ that action to trace funds into “the assets (em- acquired were the debtor.” added). reasons, For phasis these two bankruptcy lawsuit cannot be considered to this case.
“identical” case, it In the circumstances of this expose Kathryn be unfair to her would alleged fraud of to a claim person when, passage another because of bankruptcy, time and it would be too *2 denying his
ure to and for a reduction in child and We affirm reverse remand.
FACTS (mother) S. Johnson and father
Rhonda in 1985. The trial court were divorced parties’ of the three chil- granted custody dren to mother and ordered in child per month $250 per month three months $200 first thereafter. divorce, father was
At the time of the earning as a about employed farm laborer per or June month. Glissendorf, Leland filed employer, regu- quit paying for Consequently, began father wage. lar presently farming on own. Father an additional 920 acres and farms rents Although fa- 1700 acres for Glissendorf. wages longer receives actual from ther no Glissendorf, employer compen- the former by giving father him the free use of sates machinery, buildings, and his farm electric- ity hogs. can that father raise so understanding has an with Glissendorf also will make one-half that Glissendorf payments any machinery purchased father.
Father failed
April
payments from June
Dur-
to mother.
$700
when
time,
kept telling mother
father
when the
that he would make
in,
do
always
came
crops
but
application
so.
mother filed
father
why
for
to show cause
held in
After
not be
found,
alia,
inter
that father
is in arrears
for child
$4,950,
that at various times
amount
Office,
Law
R. Steele of Steele
John
to pay
father
Plankinton,
appellee.
plaintiff
for
failed to
did
do
that father
Theeler, Cog-
Cogley Morgan,
F.
John
enable him to make
finances to
Mitchell,
Padrnos,
ley
for defendant and
&
father’s net
support payments,
appellant.
$1,000 per
on an an-
profit exceeds
month
findings,
Based on these
nualized basis.
WUEST,
Justice.
Chief
contempt
father in
court held
if
purged
(father)
that the
could
appeals from ruled
D.
Michael
Johnson
made
current child
fail-
finding him
an order
ied,
Although
old man.
father no
and all or a substantial
ments
wages,
receives
arrearages.
regular
The trial court allowed
he receives
plan showing
machinery,
how cur-
free use of
to submit a
Glissendorf’s
build-
ings,
electricity.
At the
payments and
time of the
rent
*3
expected
The
to reduce
a net
trial court refused
farm income
satisfied.
obligation,
year. During
child
but it en- of
the
father’s
staying
pend- prior
contempt hearing,
order
incarceration
tered an
father was
to
court.
ing appeal
this
able
down
$54,-
financing
purchase
of
the
at least
Despite
000 worth of farm machinery.
ISSUE
this,
attempt
father did
to
not
borrow
IN
DID THE TRIAL COURT ERR
pay
money
support obligations
to
his child
FATHER
THE
FINDING THAT
HAD
until one week
the
hear-
before
TO
THE
ABILITY
COMPLY WITH
ing. Finally, father admitted that he had
CHILD SUPPORT
COURT’S
ORDER?.
not
lucrative employment
more
mother
to show
Father
that
employment
even looked for
outside the
comply
child
ability
had the
to
with the
Lake
White
area.
alternative, father
support order.
In the
Findings of fact will not be
disturbed
inability
that
to
contends
he established his
appeal
they
unless
clearly
are
erroneous.
pay
child
since he
re-
no
15-6-52(a). In applying
clearly
SDCL
the
monetary wage
from his former
ceives
standard,
erroneous
court will over-
re-
employer and
his income tax
because
when,
findings only
turn the
after a review
turns show losses in both 1986 and 1987.
evidence,
of all the
the court
is left with
The four elements of
definite and firm conviction
a mistake
that
order; 2)
the
of an
knowl
are:
existence
Hilbrands,
has been made. Hilbrands v.
order; 3)
edge
ability
comply
to
with
(S.D.1988).
WAS concurring part). result DUCTION IN CHILD SUPPORT OBLI- I concur on Issues I and and concur in GATIONS? strenuously III. I have result on Issue specifically
The trial court denied majority opinion written in this for a reduction in his child Bruning. My spe- Court Donahue support obligations. doing writings particulars. cial are referred to for did not set the in the amount guidelines recommended in the at SDCL findings justifying nor did it enter guidelines.
a deviation from by failing that the trial court erred support guidelines. to address the child agree. We