*1 under the verdict rendered ambiguity Paulson, 583, 77 S.D.
case. Anderson (1959). When the intention inference, jury is a matter of surmise pur- a verdict is insufficient within Anderson, supra
view of SDCL 15-14-30. at 306. effect, jury, argue can
One damages plaintiffs zero for the com-
found
ing the verdict for the defendant back with However, issues. if the admis-
on all of the anything, legal liability means there
sion of
only to have been one verdict form needed jury, to the for the amount of
submitted allowed,
damages any, plaintiffs. if to the only
I reverse for a new trial on the would holding damages,
issue Legal Li-
that the defendant’s “Admission of liability
ability” has removed the issue from jury using only jury
consideration of the one plaintiffs. form for the
verdict remaining taxation
As to the issues on the review, and notice of I concur with costs majority. joins I
Justice SABERS in this dissent and authorized to so state.
have been OCHS, Appellee,
Kristi J. Plaintiff and NELSON,
Robert Jason Defendant Appellant.
No. 18935.
Supreme Court of South Dakota. May on Briefs 1995.
Considered
Reassigned Aug. 1995.
Decided Oct.
Rehearing Denied Nov. *2 Burd, Falls, pher’s R. for and “standard of has been dictated Lee Sioux by marginal earnings appellee. of his mother rath- earnings than the far more er substantial Falls, Burke, E. for defendant John Sioux his father.” The court found: appellant. in a [Kristi] minor live mod- (on KONENKAMP, reassignment). Justice apartment est with the child trans- ported presented in an older car. [Kristi] action, paternity In this Robert Nelson monthly budget expenses of minimal calculation and appeals the trial court’s budget which totalled Her Kristi support award of child Ochs provisions payment, include for a vehicle son, Christopher of their minor Ochs. benefit insurance, savings, good quality life cloth- We affirm. out, home, ing, eating a residential vaca- tions, enriching opportunities for the FACTS minor all items which desires [Kristi] January was born on for the child. married, Although parents were never acknowledged paternity Robert and declared contrast, quality Robert owns a home his intent to in his take active role son’s a fashionable area of Sioux Falls to which he By agreement Christopher’s custody life. improvements has made substantial Kristi, subject remained with to Robert’s lib- past years. few He owns a vacation cabin in frequent paid eral all visitation. Robert Hills, extensively the Black travels expenses medical associated with Christo- business, provides his financial assistance to birth, pher’s as well as Kristi’s lost income automobiles, parents, his owns late model pregnancy. from work due to He also insurance, supports substantial his paid day- for the child’s health insurance and currently former wife and two children who Shortly birth, began after the he care. send- Finding financially live with him. Robert ing per support, month later $400 support “able to increasing monthly payment On $600. minor child commensurate with his standard 9, 1992, July Kristi commenced an action to living,” per- the court considered Robert’s legally paternity sup- establish Robert’s imputed earnings sonal income and from port obligations. Wheels, on support Deals to set his child $1,456 per month. This calculation was employed by Robert is and owns a control- on based mathematical from ling eighty percent closely interest held support guidelines. the child SDCL 25-7- magazine publishing business known as additionally Wheels, Inc., obligated 6.9. Robert was corporation. Deals on a “C” paying per daycare. continue month for remaining twenty per- $288 His brother owns the Lastly, considering after the amounts he had years, cent. Over the three Robert’s paid voluntarily, income, court ordered Rob- average personal annual taken as $20,000 $62,345, pay ert to in retroactive child salary, was after deductions for fed- tax, dated from the commencement of this action. eral income Medicare and FICA. For corporation average yearly net in- appeal; Robert raises three issues on years come over the last three was following discuss the two: $93,524 imputed of which to Robert re- flecting eighty percent interest. The cor- I. MAY RETAINED EARNINGS poration paid dividends, however, choos- FROM A CLOSELY HELD CORPO- ing profits, instead to hold its so that BE RATION CONSIDERED IN DE- it had accumulated retained exceed- TERMINING CHILD SUPPORT ing one-half million dollars. A PARENT A WHEN OWNS CON- TROLLING EIGHTY PERCENT OF Systems Kristi works for Midwest Office THE CORPORATE STOCK? averaging year for the last two In its of fact and conclusions II. MAY A TRIAL EXCEED COURT recognized of law the trial court that Christo- THE CHILD SUPPORT GUIDE- “plain meaning.” Lage to their SPE- Chiolis LINES WITHOUT SHOWING (S.D. Co., THE Development NEEDS FOR CHILD? CIAL 1994). OF REVIEW STANDARD An testified that earn- accountant retained will not disturb We *3 ings equivalent will not translate into an clearly unless the trial court abused award company and amount of cash the needs these Peterson, 503 its discretion. Steffens earnings growth. company’s to maintain The 257 Whether debt, company banker verified that due to it is not a
would have made the same decision
agreed
had
not
to draw out its retained
is,
judi
question
a
The
could
consideration.
hand,
earnings. On the other
Robert bor-
mind,
and the circum
cial
in view of the law
$79,600
company,
rowed
from the
for which
case,
particular
reasonably
stances of the
repayment
had
in
there
been
made
over
Havens v.
have reached such a conclusion.
conflicting
three
These
matters were
Henning, 418 N.W.2d
312
factual issues for the trial court to unravel.
why
earnings
Robert fails to show
retained
ANALYSIS
closely
corporation
fall
from
held
do not
Earnings
Corporate
I.
Retained
juris-
within
of this
the ambit
statute. Other
similarly
dictions have
found it
only personal in
Robert contends
corporate
earnings
to consider
retained
as
come,
corporate
earnings,
not
retained
purposes
calculating
income for the
as income for child
should be considered
Merrill,
Nonetheless,
purposes.
support.
25-
SDCL
See Merrill v.
587 N.E.2d
undoubtedly
company’s
re
Dist.1992);
7-6.6
includes
(Ind.App.
Boudreau v.
earnings
defining
in
income:
tained
Benitz,
(Mo.App.1992);
II. Child —Needs Living There, adjustment upward proper because the children’s needs were not average in Adding Kristi’s annual $109,107 come of to Robert’s met. yearly total of annum resulted in a combined concerning expenses [Mother] testified monthly and a net total raising Specifically, her children. she joint number far exceeded the
This
income
supplement
testified that she must
her in-
maximum level listed on the schedule found
by using
come
vacation time because of the
parents’
SDCL 25-7-6.2. To arrive
money
family.
need for
to raise her
joint support obligation, the trial court
She
made
purely
from
mathematical
expensive
further
testified that
guidelines.2 See Bloom v.
sporting
attend the children’s out-of-town
*4
213,
(S.D.1993); Steffens,
217
503
N.W.2d
proof
events.
met her
of
[Mother]
burden
calculation,
N.W.2d at 258. Based on this
as to the needs of the children and their
support obligation
the court set Robert’s
($288),
plus daycare
less his
of
share
($11),
premium
the child’s health insurance
Id.
monthly support
for a total
amount of
only
aYet
child’s necessities are not the
$1,733.3
inquiry
consideration.
essential
“[T]he
re-
argues
support guidelines
Robert
child
mains the actual needs and standard of
any showing
cannot be exceeded “absent
of
of the children.”
Day Care 1,733 2,046 Support Total wedlock, out,” Christopher was born out of cause “eating payment,” “vehicle as a only part of mean he will receive necessi- “vacations,” all as should not “life insurance” child.” more. “A a father who can Kristi’s “desires ties from especially troublesome finds parents Robert and does What does not choose its support award exceeded that the court’s relationship. such rea- control their For not monthly budget. Kristi’s sons, today simply tolerable to treat it is not differently because of circumstances a child defining the issue involves The crux of suggesting Id. We are not living, which the of its birth.” Christopher’s standard dictated father has treated found was trial court lived parents clearly never earnings. These shows he inadequately. Kristi’s The record Christopher lived with has together, par- nor loving generous always been a a child’s Obviously, in divorce cases father. ent, though prefer he would bestow parents’ stan reflects standard Nonetheless, voluntarily. the tri- generosity they separated. Stan living before dard of adjust support court had the discretion al factor important living remains dard partake could some of so that has an interest “This state after a divorce. living while he is high standard of his father’s children which the welfare of its protecting misapplies If Kristi with his mother. living.” Feltman includes their standard expenditures unrelated to Feltman, living, Christopher’s needs and standard of *5 support, setting “[t]here in All often too fears, trial court maintains as Robert the to meet even simply too few dollars are modify its order as jurisdiction to living ... [and of modest standard most Cool, 25-8-7; v. necessary. State poverty upon apportion called judges] are question The here N.W.2d 829 misery....” ex State accompanying and its clearly abused its discre- the court whether S.W., 442 N.W.2d v. rel. V.K.H. present amount. We hold setting in tion (Gilbertson, (S.D.1989) Judge, concur Circuit award. and sustain the it did not parents’ must endure their ring). If children their they not also share poverty, should assign- other considered Robert’s We have recognized previously have affluence? We to lack suffi- and find them ments of error stan parent’s in a well-to-do child’s interest upon the Based merit for discussion. cient v. living. Saint- of Saint-Pierre dard factors, in Kristi we award applicable (S.D.1984), Pierre, 357 N.W.2d appeal. Malcolm attorney in this fees ability to earn “a demonstrated mother had Malcolm, 365 N.W.2d prac from her medical income children Affirmed. Although the Saint-Pierre tice.” permitted to continue young, they were were income living their mother’s
in a standard of MILLER, C.J., and SABERS parents lived when provided JJ., GILBERTSON, concur. Wallahan, (citing together. Id. Wallahan (S.D.1979)). AMUNDSON, J., part and concurs in Christopher ever lived with Whether part. dissents “Today, par- a child of father is immaterial. should receive who are not married ents AMUNDSON, (concurring in Justice courts from our impartial consideration same dissenting part). parents.” Matter a child of married of II, the court whether it is unclear On Issue (N.D.1985) Kary, 321-22 needs, or Christopher’s actual considered (standard illegitimate father of of of desires, making its wants and Mother’s in award of proper consideration findings of trial court’s determination.* Simply be- exceeding guidelines). monthly expenses which budget of minimal emphasized: fact of *The trial court's budget include Her totalled in a minor child live Plaintiff and the payment, life insur- provisions a vehicle for being trans- apartment with the child modest ported presented a car. Plaintiff in an older you run replete fact are with concerns for Mothers that —do about at that level all Christopher’s. of The crux of the time? needs instead Christopher’s living, of the issue' is standard Probably right A. around there. by which the trial court found to be dictated Q. you any It doesn’t show that have earnings. parties Mother’s These never something insurance but that that together, Christopher nor has lived lived you private would like. You have thought the trial court with his Father. Yet your insurance of own? guideline appropriate multiply it was No, just through A. Iwork have a small amount of 254%. $687 one. You would like to be able to Although agree that Fathers standard O’ your assume, I some life making must be considered insurance? determination, requires SDCL 25-7-6.9 <j level, “appropriate final award be set Yes. taking into account the actual needs and How old is the child now? O (Emphasis standard the child.” is two and a half. <3 explicit language goal you thought Have of the kinds of O is to statute meet needs things you would like to be able living, and standard of not Mother’s needs for him in the future? nor Father’s standard of Mother’s I would like to able be to take
testimony her reiterates own desires for a places just provide things that he commensurate with Fa- wanted, he needed. excerpt ther. An of her on her you Have considered musical lessons budget is as follows: <© any things of those kinds that he Q. you ... driving? What kind of car are might in the future need or want? *6 Dodge
A. ’85 Lancer. c Q. you preschool? Have considered Q. shape What kind of is that car in? right Maybe year A. Not now. or two got problems. A. It’s some ... [.] down the road Q. you Would like to be able to have a Both this and the trial court’s find- more rehable car? ings lacking of fact are statements of Chris- needs; A. Sure. topher’s they rather include “vehicle out,” payment,” “vacations,” “eating and “life Q. you get How do the kid to and from provide insurance” as Mother’s “desires to the sitter? for the child.” A. ... I drive him. agree We that these items are desirable Q. you I notice here However, have credit card amenities of life. Mother has not
payment that an outstanding they shows shown how are “needs” for two and one- eighteen Therefore, balance of year Christopher. about hundred. Is half old Moth- anee, savings, good quali[t]y clothing, eating present living 12. The child’s has out, home, vacations, enriching marginal earning a residential been dictated of his opportunities for the minor mother rather than the far more substantial all items father. which desires to for the child. quality 11. Defendant owns home in a fash- Falls, Dakota, ionable area of Sioux South 14. able to Defendant improvements support which he has made substantial the minor child with commensurate added.) living. (Emphasis over the last few He his standard owns a vacation Hills, cabin in the Black South Dakota. He extensively, provided addition, has traveled has financial accompanying the trial court's letter parents, assistance to his owns late model au- its of fact and conclusions of law stated: tomobiles, insurance, support obligation substantial life "Mr. Nelson’s calculated ability above, support his former wife and child is commensurate with stan- father’s who live living." (Emphasis with in this same fashion. dard of Therefore, proving age her burden of of five or six. I would re- er has not sustained mand for a determination of child are in this situation what the child’s “needs” arrearages consistent with the actual being neglected. they are or how Christopher. needs of accomplished the trial court What give the standard Christopher and Mother never lived
Father. explicitly The statute states
with Father. of the child” is to be
the “standard setting when “an lev-
considered This support. el” of See SDCL 25-7-6.9. Matters, Justin MATTERS and Mark guarantees that the child’s needs will be met. Appellants, Petitioners By using Father’s standard of as a determining Christopher’s sup- guidepost ignored the fact that
port, the trial court COUNTY, CUSTER a Political Subdivi- any prior family relationship Dakota, there was never sion of South and Custer Coun- ty Lintz, Christopher and Father. The stat- Commissioners: Jack Dan between Dooley, Oakley Hoy, in Their Offi- trial court fix ute allows the Capacity, Appellees. cial amount as meets needs, raising while not Mother’s standard of No. 19024. living through support. the vehicle of child Supreme Court of South Dakota. Effectively, the trial court in this case im- obligation posed an unauthorized on the May Considered on Briefs 1995. is, in of Father toward Mother. This award Reassigned Aug. essence, alimony/palimony windfall con- Decided Oct. support. in the rhetoric of tained result, circumstances should dictate the al-
lowing Christopher a standard of go
he never became accustomed to would
beyond the direction of 25-7-6.9. majority opinion Steffens, cites
N.W.2d at 498 N.W.2d at Jones,
Earley, 484 N.W.2d at uphold at
N.W.2d court’s
extrapolation. All can fac- these cases be
tually distinguished from the case at hand— parents in all of the above were married obligor. lived with the See child[ren] 256; Bloom,
Steffens,
N.W.2d Jones, at 783. any showing specific
Without need
articulation of how the child’s accustomed denied, this court $1,733.43 say
cannot month
“appropriate Following reasoning level.” majority, appears though
of the Christo-
pher probably would in line to receive a be ripe old
chauffeur-driven limousine