*1 69 rаised on issues the other not address SD 33 the trial court remand to and we appeal, Kimberly Kay Spieker MILLER, f/k/a, accordingly. be entered judgment Jacobsen, Kimberly Kay Plaintiff Appellee, Justice, GILBERTSON, Chief ZINTER, and KONENKAMP JACOBSEN, Wayne Defendant Justices, concur. Appellant. SABERS, Justice, concurs 23630, 23649. Nos. specially. Dakota. Supreme Court South
SABERS, (concurring specially). Justice on Jan. Considered on Briefs April Decided specially point out I concur [¶27.] that, ignored my the trial opinion, that rose from principles
two time honored
these facts. facts are that Hoaas The basic
[¶28.] $68,850 from the misappropriated
stole or they with-
corporation and Griffiths This con- loss.
held to offset the understandable, especially con-
duct was “possession is
sidering principle Why to a law.” deliver
nine tenths money claim you misappropriator
thief or Accordingly, grant you?
he owes by the trial court was
summary judgment jury if should wrong.
premature, instructions proper under
have determined amount proper to offset the
whether was
taken. princi- honored The second time from profit cannot
ple “person that a Gors, wrong.” Dacy v. own
[one’s] (S.D.1991) (Sabers, J„ 576, 581 principle supports our
dissenting). This should not re- today that Hoaas
decision punitive damages, or judgment,
cover
costs. *4 $200,000 in provide proof Todd to insurance maintained for Andrew’s
life addition, agreement called benefit. depen- to claim Andrew as a tax in odd num- purposes dant income in to claim him years bered and Todd even Oviatt, Green, Roby, Nancy L. Oviatt of years. numbered the terms Under Watertown, South Linngren, Cummings & stipulated agreement, Todd was Dakota, Attorneys plaintiff appel- pay per month basic required to lee. support per schedule L. Reeves Wiles Rebecca Morlock An 25-7-6.2. additional $155 Dakota, Watertown, Rylance, South was included based month Attorneys appellant. for defendant language needs. The special on Andrew’s provided: agreement GILBERTSON, Justice. Chief parties agree that addi- further *5 Kay Spieker Miller Kimberly support obligation to tion the basic child seeking filed motion modifi- (Kimberly) by a schedule found at which is set order supрort obligation 25-7-6.2, of a child pay cation Todd will an addi- Wayne Ja- decree from Todd as per support. and divorce tional month Todd $100 (Todd). facts trial court found The to an agrees pay per cobsen also additional $55 in to warrant increase recognition special sufficient month in needs but denied Kim- obligation ad- transportation. child his son has for Said modify divorce de- berly’s motion to per month shall ditional $55 3, and 5 affirm on Issues cree. We to be made each month until continue for a 4 to trial court Kim transports and remand Issue van in which now 28, an upward of when devia- full or paid determination in October Andrew is support obligation child from the basic tion needs ends. transportation 2001, Kimberly contacted In 4.] [¶ changes in to him that due to inform AND PROCEDURE
FACTS in and Andrew’s enrollment circumstances Falls, were married Kimberly and Todd 2.] school in Sioux South specialized [¶ a 13,1989. son, funds, Kris- May Dakota, by Their Andrew public on with tuition 19, tian, July per on 1989. Andrew was born amount over month any $300 dollar due cere- since birth have to be Kimberly has been disabled would received Therefore, Kim- and a disorder. she palsy seizure to the bral State. forwarded May on from the berly and divorced reduction proposed full Kimberly awarded obligation time was at which $300. child stipulated custody parties signed Andrew under a modifica- June subject agreement to Todd’s visitation and there- agreement tion incorporating new amount. rights. fifteen Currently, Andrew is 5.] called agreement stipulated pounds. sixty-five weighs years оld paying continue Todd to exten- requires him to have disability as His specified long Andrew the terms per with activities care and assistance sive further order of dependent until “is fed, must dressed Andrew parties daily living. required the It also court.” requiring as well as diapered daily, annually information and and exchange income medications, and, occasion, with on has bathing, assistance had take leave day. twice toileting He takes medi- medical pay without due Andrew’s per day cations three times for seizure Kimberly needs. and her have husband control, drooling, and elimination. bowel adaptations made numerous to their home must Andrew be turned at least once each provide They better care Andrew. night sleeping. he is Hе has a when also recently system lift installed a and bathtub drug in pump his abdomen that delivers room and built Andrew’s have a wheel- spinal medication his column for relief ramp chair their home. outside tightness. spends of muscle Andrew Kimberly’s parents provid- have majority day of his his wheelchair and ed care for Andrew when he is home on requires physical assistance transfers school breaks and is at work. to and his from wheelchair. parents Her with- provided have care Andrew have lived charge. ages out toDue their and her Watertown, Dakota, South since 1993. retirement, father’s recent Kimberly antic- Kimberly works an occupational thera- having ipates caregivers to hire near assistant, py remarried. Todd has future to administer medication and meet Colorado, Longmont, lived in since before complex physical needs while he the divorce and is now remarried. He is home and she is work. The cost of year sees Andrew approximately once a year the care estimated at was for a visit. Todd has seen Andrew by Kimberly hearing. at the since 2003 and has made no recent contact *6 caregivers. with Andrew’s school or disability requires 10.] Andrew’s [¶ 7.] Andrew attends school at Chil- Kimberly to use a equipped van with lift Hospital dren’s Care in during Sioux Falls system and lock-down him transport year the school and during summer ses- from Sioux Watertown to Falls each week sion. He remains Sioux Falls at the school, to appointments, for medical and to Monday schoоl from morning Friday outings. recreational The van is ex- used each afternoon is in week school session. clusively for transportation, Kimberly him drives to Sioux each Falls Kimberly or family’s her use. Kimber- Monday morning that school is in session ly purchased has two vans since di- on Friday and returns afternoons to take replaced vorce. She van with him back to Watertown for the weekend. high a used van with mileage January Andrew is home in every Watertown week- 2004, expensive but has been to operate Friday end from night Monday until morn- replaced. and must be on Based Kimber- ing, during holidays, during school and ly’s knowledge of Andrew’s limitations and Thus, summer break. Andrew lives with growth, needs for his including future ad- Kimberly slightly fifty more than percent headroom, ditional at the time of the hear- year. of the ing Kimberly planned to trade in cur- rent vehicle and a new van in Kimberly has been the last near years, be, fifteen future. The total was and An- cost estimated continues $35,654, primary caregiver approximately drew’s at at home. She but after trade needs, in of attends to his medical the current system coordinates vehicle and lift rebates, and arranges for his care and of when she sum needed to work, and attends all his appoint- pay medical be borrowed to for the new van. Kim- ments. She often uses berly’s monthly her vacation time payment was scheduled to from work to attend to Andrew’s needs be $507.66. of new 5, 2004, month for the Kimberly per cost $380 November 11.] On system. Kimberly’s on seeking a van and lift Based proceedings the currеnt
initiated documentation, obli- loan for the new van support of Todd’s modification on paid to the divorce was to be in full Febru- a modification scheduled gation An- ary to claim The trial court ordered Todd permit decree monthly payment for income year dependant as a to make each $380 drew filing motion to until Prior to her the life of the loan it was purposes. through tax divorce, 'Kimberly paid February in full on modify judgment with the compliance requested support pay- Todd’s total child with stipulated agreement of the terms month, ment set at which was $869 main- of life insurance proof regard support plus included basic child $345 proof of tained Andrew’s benefit paid deviations of $144 to the respond failed to inсome. Todd caregivers payment. for the van $380 with Kimberly filed requests, and motion The court ordered that the trial $345 compel production. Todd the court basic child and the $144 information produce failed paid caregivers deviation for was effective morning hearing. until to be and was December 15, 2004, a hear- On December Support Enforcement Office Child held. After testi- ing on the matter was day 1 and March on the 1st “[b]eginning Todd, mony from both each month Thé .trial court thereafter!.]” court held that Todd’s child specify expiration did a time for the 25-7-6.2 based obligation per SDCL was this of Todd’s child obli- portion $84,000, and a an annual income of on regard to the gation, but noted with $4,159, pro- monthly income of which net “there has to monthly monthly obli- vides basic off, if it is closing be a mechanism for trial court found gation $690. ought I to be for year a four think it [loan] significant time outside spent Andrew *7 though going child years.even four therefore, and, Kimberly’s at home school child probably support to be 18 obligation by the child modified end, obligation will but obli- moral by fifty to deviating percent downward gation.doesn’t end.” i trial found per month. The court $345 court awarded Finally, the trial caregivers to at- that Andrew $1;128 attorney $750 complex physical to needs tend his to bring the motion fees she incurred Kimberly’s parents’ advanc- that due to court The trial modify the divorce decree. would need to ing age, paid caregivers Kimberly’s attorney fees portion found $2,400. cost hired at an annual failure incurred due Todd’s were Therefore, up- it an ordered additional in the comply requirement timely with sup- basic child ward deviation Todd’s provide the income divorce decree per month for port obligation, re- information after numerous insurance necessary provide the care caregivers to quests. Kimberly’s is in while he for Andrew following is- appeals Todd [¶ is at work. 16.] home and she sues: The trial court also found 13.] [¶ when trial court erred needs re- Whether special health care monthly in- net calculated Todd’s a new and lift it purchase of
quired the come. deviation system, and ordered 76
2. Whether the trial erred cal- have reached such a conclusion.” Johnson (S.D. Johnson, child
culating
648,
obli- v.
468 N.W.2d
650
gation
1991)
Nelson,
when it included
devi-
(citing Nelson v.
454 N.W.2d
(S.D.1990)).
ations for the
of van and 533
The exercise of discretion
paid caregivers for Andrew.
“trial
court must have a sound basis
presented.”
the evidence
Linard v.
3. Whether the trial court erred when
(S.D.
599,
Hershey, 489 N.W.2d
603-04
provide
it failed
awith cred-
1992)
Masek,
62,
(citing Masek v.
89 S.D.
overpayments
it for
in vehicle and
(1975)).
77
bonus,
a
commissions,
determination
or
record
ry, wages,
salary
2004
wages.
2004
Todd testified his
designated!].]
otherwise
$84,000
$83,000
was
or
and that his
either.
provide Kimberly
Todd failed to
one,
salary
by
to two
monthly
might differ
his income information
with
differentials,/-There-
percent due
shift
agreement.
provide
He did
stipulated
fore,
in
there was sufficient evidence
morning of
2003
on the
copy
of his
W-2
the trial
to find Todd’s
record for
court
wages for
indicated his
hearing,
which
$84,000.
salary
current
was
examination,
During
direct
argues
Todd
that
trial
next
given:
following testimony was
court
it failed to consider the
erred when
Todd,
employed?
Q.
you
how are
in
higher
living
cost of
Todd
Colorado.
as a
employed
A.
I’m
with Lockheed
Johnson,
cites
at
systеms engineer.
proposition
that
should
you salaried or are
Q. And is that —are
in
higher
living
have
cost of
considered
you
hourly?
Dakota.
compared
Colorado as
to South
salary.
A.
I’m
Todd
entered no evidence into
record
hearing
his claim. Rath-
salary
year?
Q.
your
What is
this
er,
findings
proposed
the Defendant’s
$84,000.
A.
I
it’s approximately
think
law,
fact and conclusions
which were
then entered into
Todd’s 2003 W-2 was
court,
ultimately
by the trial
find-
refused
evidence,
salary for
which indicated his
ing of fact number thirteen stated: “There
$75,785. During
was
cross-examina-
a cost-of-living
difference between Wa-
tion,
salary
if his current
Todd was asked
Dakota[,]
tertown,
Longmont,
South
$84,000.
“I’d
responded:
have
was
Hundred Thousand Dol-
Colorado. One
it’s probably
the W-2
83.”
to look аt
but
Watertown,
($100,000)
Dako-
lars
South
salary
stated his annual
increas-
Todd also
ta!],]
Hundred
compared
has been
to One
at the
only
percentage
were
two
es
($118,000) in
Eighteen
Dollars
Thousand
most.
Longmont, Colorado.”
appeal, Todd contends the
23.] On
Johnson,
stated:
this Court
trial court erred when
found his annual
concerning the
As to father’s-contentions
$84,000
income to be
and his month-
gross
California,
of-living in
we
higher costs
$7,000.
argues
He
ly gross income
conclusory
are
as-
note that these
mere
have been determined
the amount should
evidentiary support
sertions without
W-2, resulting in an annual
using his 2003
However,
recognizing
record.
while
$76,000 and a
figure
income
gross
merit,
have
may
father’s assertions
that
$6,333.33.
monthly
figure
income
gross
that father
to mention
we nоte
fails
citing any authority, Todd con-
Without
only
an increase
costs
was
failed
trial court erred when it
tends the
by his move to
living occasioned
Califor-
monthly income on actual
Todd’s net
base
$8,000
so
nia but
too was
income
evi-
earned
received
year
wages
in his
similar
increase
*9
by his 2003 W-2.
denced
Thus,
might suffer
work.
while father
in
living
of
higher costs
the detriment of
court based its
[¶
The trial
24.]
California,
a
benefit of
gains
also
the
he
annual income
finding of fact as to Todd’s
to
those costs.
wage scale
offset
higher
The trial court was
testimony.
on Todd’s
at
651.
finding
its
of fact
base
reasoning ap
solely wages
by
27.]
on
the 2003
The same
[¶
as evidenced
e
no
There is
in th
instant case.
plies
in
competent evidence existed
W-2 when
in
compеtent
the
to sup
attempts
testimony
evidence
record
to characterize her
port Todd’s bare
conclusory
and
assertion
support hearing
merely
the child
an
as
living
the cost
in
of
South Dakota
expression of her concerns over the van.
any
versus Colorado. Nor is there
men
then
that
argues
Kimberly’s
need for
salary
tion
the
of
differential Todd was
any
a vehicle is no different than
other
obtain by securing employment
able to
in
a
parent’s
family
need for
vehicle
in
Colorado rather
than
South Dakota.
transportation, analogizing the need for a
The trial court did not err when it did not
van
larger
to accommodate Andrew’s
cost-of-living
the
consider
differential be
growth
“any
to that of
other mother’s need
Dakota and
tween South
Colorado.
to have a van so as to accommodate more
argues
of a child’s friends.” Todd then
the
2.
the
Whether
trial court
abused its
when it
discretion
calculating
erred
Todd’s
Kimberly’s
failed
consider that
decision
support obligation when it included
van,
purchase
a
instead of
Chevrolet
upward
purchase
deviations
the
Volkswagen van, rendered
the
obsolete
lift
paid caregivers
a van
system previously
and lock-down
pur-
Andrew.
family. Finally,
chased
Todd’s
[¶ 29.] SDCL 25-7-6.10 provides
argues
necessary
that a vehicle is not a
or
part:
relevant
“Deviation from the
special need within the
meaning
SDCL
§in
schedule
25-7-6.2 shall be considered
25-7-6.10,
therefore,
upward
an
devia-
if
party
only
raised
еither
and made
tion
support obligation
from
basic child
upon
entry
specific
findings based
may
imposed
purchase
(3)
upon
following
factors:
...
Any
van.
necessary
special
education
health care
31.]
the pro-
[¶
instituted
needs of
Child
expenses
child[.]”
care
ceedings
first,
for two
purposes,
modify
may also be considered as a factor for
second,
child support obligation
additional
above the basic amount
change the divorce decree to allow her to
25-7-6.2,
the schedule in
they
dependant
claim Andrew
aas
in each tax
are not included within the basic child
year. At
hearing, Kimberly
testified
support obligation.
Juttelstad v. Juttel-
to the need for
new van
for Andrew’s
¶
stad,
1998 SD
transportation
age
due
of the cur-
van,
rent
travel
and from Falls,
school
physi-
Sioux
and Andrew’s
Van Purchase1
growth.
cal
Todd’s claim that
the trial
30.] Todd argues
the trial court
sponte
court sua
provided Kimberly with
abused its discretion when it ordered an
deviation for the van is without
upward deviation of his child support obli-
merit.
gation for
of a van for An-
drew. Todd contends the trial court sua
arguments
that a
sponte provided Kimberly with
devia-
special
vehicle is not a
need within the
tion for the purchase of a new van.
meaning
He
of SDCL 25-7-6.10
argues
appeal
objected
on
that Todd
any
to the
inclusion of
devia-
issue,
proposed
waived this
findings
as his
payment
opposed
tion for
when he
its
fact and
of law
up-
conclusions
Kimberly's proposed
included
findings
inclusiоn in
ward
Therefore,
deviation for a van
at a
but
fact and conclusion of law.
we
*10
Despite
lower dollar
appears
amount.
what
upward
address the issue
the
deviation for
issue,
glance
at first
as a waiver of this
Todd
the van.
impending
for Kimber-
and her
father’s
retirement
transportation
is one for
need
from
Kimberly
preclude
caring
them
for An-
would
-without merit.
ly
equally
are
regular
they
on-a
basis as
have for
the
for drew
hearing that
need
at the
testified
past
years. Kimberly’s
fifteen
mother
con-
the
Andrew as he
for
additional headroom
sixty-five years
longer
old and is no
of the deci-
to
was the basis
grow
tinues
lift
by
to
Andrew
physically able
herself
rather
purchase a
van
Chevrolet
sion
and transfer him to and from his wheel-
Volkswagen van that could
than another
seventy
Kimberly’s
years
chair.
father is
lift and lock-
the current
accommodate
addition,
In
old and semi-retired.
Kimber-
addition,
system.
Kimberly
testi-
down
ly
hourly
testified that the
rate she would
had
Society
Easter
that
the
Seals
fied
caregivers
suitable
pay
need
would
to-
contribution
already approved
$500
range
per
from
to ten
hour
eight
dollars
$1,000 ramp
the
and lock-
the
ward
cost
be
seeking
nursing
and that she would
the
van. Further-
system for
new
down
training
with some medical
student
more,
testimony at the
Todd offered no
complicated
due to Andrew’s
medi-
skills
the
of a Volks-
hearing
purchase
as to how
regimen.
also
care
cation
She
testified the
An-
accommodate
wagen van would better
be
required during
would
six-wеek
The trial court en-
physical
drew’s
needs.
over
summer break and
the Christmas and
specific
regarding
of fact
findings
tered
holiday
Kimberly
breaks when
was sched-
limita-
disability
physical
Kimberly
uled work.
testified
annu-
trans-
tions and how his need for reliable
provider
cost of
care
al
would be
for
visits
to school and
medical
portation
$2,400 given
rate
number
spe-
new
made
hours
care needed.
meaning
25-
cial need within
any
not
36.] Todd did
offer
evidence
7-6.10.
hearing
his contention on
at
Caregivers
Paid
Kimberly
unjustly
that
would be
appeal
by
caregivers
his
for
enriched
includ-
The circuit court’s order
expenses
as the
are actual-
.until such time
deviation from the basic
upward
ed
any
Nor
Todd offer
ly incurred.
does
caregivers for An-
obligation
authority
proposition
that he should
his
Kimberly’s
home and
drew while he is
expenses
they
have to
until
are
pay
is at
The circuit
found
she
work.
cites to
actually incurred. Todd
Juttel-
paid caregivers
annual cost of
be
stad,
121, ¶20,
at
SD
month
pay
and ordered Todd
451-52,
Kimberly
that
proposition
for the
for the
deviation.
she
unjustly
be
enriched as
would
would
argues
that
34.] Todd
than the
support payments
receive more
unjustly
be
enriched
would
However, in
actually incurred.
expense
the trial court for
deviation ordered
holding concerned a
case the Court’s
that
Kim-
Todd contends that
paid caregivers.
knowingly ac-
admitted she
mother who
only
may incur
berly
that she
testified
reimbursements
cepted more in
care
no evi-
expensеs,
she offered
such
incurred.
Id.
expenses
the actual
she
than
cost
number of hours
as to the
dence
¶21.
holding
Juttelstad does
and that he should not
required,
of care
case, Kimberly
has
to the instant
apply
such
pay
expenses
these
until
any
caregivers
payments
to receive
yet
they are incurred.
time that
facts
indi-
there are no
from Todd and
money
more
from
again mischaracter-
she will receive
cate
expense
will incur
than the
she
testified
izes
record.
services.
age
parents
of her
length
to how the
*11
obligation
provide
The
spe-
alleged overpay-
[¶ 37.]
reimbursement
for his
van payments
ments of
for
caregivers
belongs
cialized
Andrew
payments.
and child
expense
medical
Todd,
Kimberly
Kimbеrly’s par-
not to
n
Todd claims
had
unjustly
been
suggested by
See
ents
Todd.
SDCL
overpayments.
enriched
his
25-7-6.18.2 There is evidence
the rec-
support
ord to
the need for such care and
It
is
well settled
expense
amount of the
that will
be South Dakota
a
that modification cannot
specific
incurred. The trial court entered
be
to past-due
pay
made
child support
findings
as to
paid
of fact
the need for
ments,
payments
for those
except
that ac
trial court
caregivers. The
then allocated
during
crue
pending
the time of a
modifi
seventy-two percent
expense
of the
Juttelstad,
121,
cation petition.
1998 SD
twenty-nine
percent
¶
the ex-
17,
underlying
587 N.W.2d at
pense
gross
based on their
past-due
rationale for the
is
rule
that a
figures.
income
or child
installment be
judgment by
comes a final
law and cannot
The trial court
not
did
abuse its
be retroactively modified.
Id.
(citing
upward
when it included an
discretion
de-
25-7-7.4;
85,
Agee Agee,
1996 SD
support obligation
viation
the child
¶
806).
However,
van and
purchase
caregiv-
of a
prohibition on retroactive modifications
ample
ers. There is
evidence
record
apply
parent
does
a
when
current
is
on
deviations,
and deviations
all support obligations
parent
and that
permitted
statutory
both are
under the
a
seeking
correction for overpayment of
scheme.
expenses.3
child care
Id.
have
We
opportunity
had the
appli
consider the
39.] 3.
the trial
Whether
cability
holding
оf the
in Juttelstad to up
provide
erred when it failed to
ward deviations
to the basic child
alleged overpay-
a credit for
with
obligation codified in SDCL 25-7-6.10.4
pay-
ments in vehicle and medical
previously
Kimberly.
ments
made to
Overpayments
Van
[¶ 40.] Todd claims the trial court
Todd argues
he
Kim-
overpaid
when it
a
erred
failed to order
credit
berly
or
month for
of a
provides
part:
2. SDCL
§
25-7-6.18
in relevant
Deviation from the schedule in
25-7-6.2
may
be
allocating
party
"The court
an
shall
considered if raised
either
enter
order
only upon
entry
specific
child,
made
expenses
reasonable child care
for the
findings
upon any
based
following
of the
employment
are
par-
which
due to
of either
factors:
ent, job
parent,
either
search of
or the train-
(1)
subsequent spouse
The income of
or
ing
parent necessary
or education of either
party
contribution of
third
to the in-
job
earning potential."
obtain a
or enhance
expenses
parent
come
of that
but
only
application
if the
of the schedule
Juttelstad,
expenses
the child care
were
hardship
works
financial
on either
labeled
deviation. 1998 SD
parent;
¶ 17,
However,
81 as original original support obligation the child de- Andrew. The transport vehicle required Todd agreement by using the schedule SDCL termined 28, 1997, until October payment make Rather, the 25-7-6.2. it is more akin addi- paid in full. Todd vehicle was or until the expenses tional for child care from Octo- making payment the continued Thus, the case in Juttelstad. was and contends he until June 2001 ber 1997 against rule retroactive modifications does $2,420. Kimberly by Kimberly overpaid $2,420 alleged overpay- to the apply not Todd’s error his attention bring did ment Todd is currеnt on all his child during time. that support obligations, both the basic amount case, Kimberly In the instant all per 25-7-6.2 and devia- that continued hearing at the she testified tions, or seeking and is a correction credit month after the first accept $55 an overpayment of deviation money off and used the was van theory unjust of enrichment. under a purchase of the second toward the transportation required for Andrew’s However, in order to such as re- transportation expenses other recover, Kimberly show that must maintenance for the van. Todd pairs and unjustly overpay- enriched was at the issue testify hearing did Juttelstad, ments. See 1998 SD overpayment. Todd testified of $55 ¶ 19, “Unjust enrich 587 N.W.2d at hearing for his contention a party ment a confers occurs ‘when ben to provide he not have addi- that should accepts party efit another who or upon of new tional funds toward acquiesces inequi in that benefit and already Kimberly re- vehicle and that was pay table to receive that benefit without maintenance, repairs, imbursed ” ing.’ (quoting Sporleder Id. Van Li state, on the vehicle wear and tear ¶ ere, 569 12 1997 SD mileage reimbursement for as she received Architects, Stanley Inc. (quoting Randall to Sioux weekly trips from Watertown Community Corp., v. All SD Saints or reim- Falls. Todd included the credit ¶ 805)). 138, 20, 555 N.W.2d $2,420 overpay- alleged for the bursement fact findings of proposed ment in his that Kim- For to establish ultimately of law that were conclusions expense, at his berly unjustly enriched was rejected by the court. Todd contends Kimberly show received benefit he must by the Kimberly unjustly was enriched $55 He then to which she was not entitled. any longer she had vehicle payment as no cognizant that was of must show expenses from October 1997 to June 2001. her the benefit retention unjustly reimbursing Todd benefit without upward deviation of 44.] The her. part was not a enriched for the van (5) obligation parent pro- of either obligation imposes a The fi- amount hardship obligor. subsequent children or on the This natural nancial vide may However, based presumption existing rebutted stepchildren. in this upon other set forth sec- factors may support order not be modified sole- tion; reason; ly for this (3) Any necessary education or health care (6) voluntary parent which aсt of either The child; special needs parent’s income. reduces that (4) agreements between the The effect of regarding sup- parents extra forms child; port for the benefit of direct did not concede she basic child [¶47.] amount received a benefit as result stipulated agreement. language *13 overpayment, she as used the monies for agreement provided the Todd pay would expenses transpor- incurred for Andrew’s an additional as due to An- $100 beyond expense tation and above the of special language drew’s needs. The did purchasing original Kimberly the van. not limit the additional to medical $100 $6,000 testified her paid she and husband by not expenses covered insurance. That for the van purchased second for Andrew subject specifically was an- addressed in 2004, repairs aswell and maintenance portion stipulated agreement other work on the van. second agreed pay seventy- Todd wherein Todd unjust offered no evidence of enrich- percent any six of uncovered ex- medical hearing only ment at the and offered bare penses Kimberly agreed to pay allegations in proposed findings his of fact twenty-four percent of such expenses. of conclusions law. importantly, More additional the did $100 rejected trial court an expiration
[¶ 48.] The Todd’s not have date it attached to proposed findings of fact and conclusions as did the deviation for the of law wherein he Therefore, addressed the issue of payment. Kimberly did re- the overpayment. specific finding No ceive monies from Todd to which she was fact by was the on entered trial court this not entitled under the terms of the stipu- However, issue. the facts in the record agreement. lated on Based the evidence Kimberly indicate that unjustly was not record, in the the trial court err did not enriched per the retention of the $55 it when failed to order to reim- 2001, month from October 1997 to June $9,020 or burse credit Todd with in alleged she legitimate incurred substantial and ex- overpayments.
penses for transportation above beyond mileage the 4. reimbursement the Whether trial court
and the alleged overpayment. comply The erred when it failed to with triаl court did not abuse its discretion specify SDCL 25-5-18.1 and the ter- refusing to order to reimburse sup- mination date of Todd’s child or credit Todd for the alleged overpay- port obligation. ment. provides 52.] SDCL 25-5-18.1
Medical Overpayments part: relevant [¶ 49.] Todd contends Kim- overpaid he parents The of any child are under berly per month in medical care ex- $100 duty legal their ac- child in penses January 2001, from 1996 to June with provisions § cordance 25-7- $9,020. for a argues total of Todd 6.1, until the child attains the age overpayment occurred when Andrew tran- eighteen, or until the child attains sitioned from Todd’s insurance to Medicaid age nineteen if the child is a full-time in 1995. argues at that time all of in secondary student school. expenses Andrew’s medical began being In Birchfield, Birchfield Medicaid, covered eliminating thus 891, (S.D.1988), 895 this Court made need for per month devia- $100 unequivocally parent’s clear that a statuto- tion under the terms of original stipu- ry duty to support or her his child termi- agreement. lated provisions nates of SDCL 25-5- 18.1, no mischaraeterizes later than nineteen. age A trial nature of the additional may above the court impose duty $100
83 trial court ordered Todd age eighteen, beyond the child monthly pay pay- is still enrolled if of nineteen age for the of the van until the ment Radigan v. Radi- high school. full-time (S.D.1991) payoff in full. The estimated (citing van was 465 485 gan, N.W.2d Kimberly’s February loan is date 25-5-18.1; Birchfield, Given that Andrew was born on 895). However, are free parties years July eighteen he will be old beyond age providе support agree to effect, July on Birchfield, 417 N.W.2d at nineteen. *14 the pay portion ordered Todd to this of Wame, 510 360
(citing Wame v. N.W.2d until is support payment up child Andrew (S.D.1984)). twenty-two years age. of not Ordinarily, we do 53.] [¶ argues language the [¶ 57.] on that appeal was question address into stipulated agreement of the entered v. 1999 Hays, the court. trial State before in this by parties the 1993 controls issue. 200, 16, (citing 89, 203 f 598 N.W.2d SD “that provides part: It in relevant Defen- ¶7, 13, 542 Henjum, v. 1996 SD State obligation payment sup- for of dant’s child 763). 760, trial court must “The N.W.2d port long shall continue as as Andrew any to correct given opportunity an be dependent Kristian Jacobsen is or until it on will review claimed error before we further Order of the Court.” 7, (quoting Henjum, 1996 SD appeal.” Id. that the argues mеaning the word “de- ¶ v. 13, (quoting 542 N.W.2d 763 State pendent” is in phys- reference to Andrew’s (S.D.1994))). 397, 513 401 Heftel, N.W.2d re- disability, ical and mental which will case, the In instant the care quire throughout continued his adult duty impose an absolute trial court did not years, his the rather than attainment of the beyond upon support Todd to Andrew majority. age The in 25-5-18.1. age specified SDCL to remand this issue the tri- 58.] We [If ending is as an trial court’s order silent develop rec- fully al court order the up support and date for the basic child party present and allow each evi- ord paid caregivers. for ward deviation as to the termination argument dence and Therefore, the issue of whether the support obligation. the If the child date obligation for basic impose court сould that child trial court holds the deviation for upward and 25-5-18.1 obligation terminates caregivers properly is before birthday, eighteenth we di- upon Andrew’s Thus, por do this we not address Court. court reconsider rect the trial by of the as raised Todd. tion issue If monthly amount. the trial of whether [¶ issue 55.] meaning of the term determines obligation impose an for trial court could support agree- in the child “dependent” age eighteen support beyond the for parties into called ment entered has been specified in SDCL 25-5-18.1 life, the vehicle Andrew pertains it to the preserved as properly may stand as termination date payment inclu objected to the payment. van originally ordered. deviation sion trial court 59.] Whether оbjected he entirety in its when Kimberly at- erred it awarded when devi Kimberly’s inclusion of torney fees. and findings fact proposed ation her Therefore, determining party whether one address of law. we
conclusions par- pay another should be portion of only this the issue. 84
ty’s attorney fees, SABERS, we (concurring will consider the in part Justice each property party; owned their dissenting part). and incomes; request- relative whether the I except concur Issue liquid is in ing party’s property fixed or I Kimberly argues where dissent. assets; party and whether either unrea- meaning of the word “dependent”, is sonably on spent increased time physical reference Andrew’s mental case. disability, will require which continued Johnson, 468 at 652 (quoting N.W.2d Studt throughout care his I years. agree adult Studt, (S.D.1989) v. 644 give is a mistake to “a second Senger Senger, (quoting of the apple.” bite (S.D.1981))). Unfortunately, physi- Applying factors disability cal and mental permanent above, considering facts life, will always “dependent” he *15 us, case before we do not find that the trial family, support. medical and financial court portion erred when it found that a context, stipulated this agreement re- Kimberly’s attorney fees were the result of quiring obligation Todd’s unwillingness comply with the support, which shall continue long “as requirement produce proof of insurance dependent until Andrew[ ] further multiple income after Pro requests. Court,” Order is clear. We should viding Kimberly with the infor enforced, remand Issue 4 not to be morning hearing matiоn on the of the did interpreted. attorney not eliminate the hours and fees she prepare incurred to the various re
quests and file the to compel. motion
Appellate Attorney Fees and Todd both
filed
separate
appellate
motions
attor
ney
accompanied by
fees
itemized state
word original stipu- in the lated agreement and its effect on the ter- No. 23773. mination of the deviation from the Supreme Court South Dakota. support obligation basic child for the payment. Considered on Briefs March KONENKAMP, ZINTER and April Decided MEIERHENRY, Justices, concur. SABERS, Justice, concurs
part and dissents in part.