*1 concern, cross-examination, complains a sur- deal of that Satter now ett, secured Agent Peter- strategy performance from DCI of Hackett’s prising admission that Petersen believed years to the effect sen some thirteen after trial and the truth. Fur- to be Satter’s statement died. Memories have after Hackett has ther, his testified that statement Satter concerning faded the actual occurrence Thus, since Petersen was the truth. events which culminated Satter’s convic- contended Satter’s Satter had both and Hackett is not here to defend his tion truth, and since there statement was the performance. Trying to establish whether testimony had failed a no that Satter was as- Hackett’s actions constituted ineffective concerning his polygraph examination death, greatly sistance is hindered statement, jury that the could deduce leaving nothing record us with but a cold fact true. This is the statement was in testimony (including and the of others Sat- proposition that converse of Satter's himself, ter who has a vested interest poly- relative to a portion of his statement tarnishing performance) by Hackett’s to the graph examination would indicate legitimacy to determine the of his which poly- another jury that Satter had failed earlier, given tactics. As stated the state testimony on that graph due to the lack exists, I of the record as it am convinced noted: subject. The habeas court performance that Hackett’s did not fall be- to do [Wjhat Attorney Hackett was able required low that which was of him as an to have one of the State’s effect was attorney Any at law. assertion to the con- witnesses, Delbert Petersen DCI chief trary simply supported by is not the record. Agent, veracity of Exhib- corroborate I affirm the circuit court. would my opin- it 21 It is statement]. [Satter’s regarding ion that Hackett’s actions Sat- I am authorized to state that Chief statements were of a
ter’s written joins WUEST in this dissent. Justice legitimate trial tactic. allega- Satter’s tions are not sufficient to overcome the
strong presumption that counsel’s con- range
duct of rea- falls within wide assistance, in oth- professional
sonable words,
er does not constitute action might not be considered solid trial added.)
strategy. (Emphasis It should also be noted that an interest- PETERSON, Plaintiff Hackett, ing attorney colloquy between Appellant, place in Satter and the court took chambers original trial. the close Satter’s participated asked if had When Satter PETERSON, Gregory A. Defendant the trial of his case in connection with Appellee. picking replied jury, Satter “Yes.” No. 16070. Further, approved jury as it Satter selected, having and admitted to been con- Supreme Dakota. Court South throughout concerning sulted the trial May 1988. Considered on Briefs questions and decisions that were made. he felt When asked whether Jan. Decided your attorney “that has done a tremendous replied job you,” for Satter “Yes do.”
Finally, it should be noted that at the original attorney
time of the trial Hackett having highly respected lawyer,
was a trial
practiced thirty years. He was known tenacious advocate with wealth observe, experience. great
trial with a
733 Hagen Wilka, Karen E. Schreier of & Falls, plaintiff P.C. Sioux for appellant. and Gary Pashby Boyce, Murphy, McDo- Greenfield, Falls, well & Sioux for defend- appellee. ant and BRADSHAW, Judge. Circuit Janey (Janey) appeals Peterson judgment terminating right to receive Gregory (Grego- from A. Peterson ry), increasing $500 $665 support Gregory obligat- amount of child addition, pay month. In Janey ed each petitioned attorney has this court for fees appeal. We affirm the trial court and deny Janey’s request attorney fees. FACTS/PROCEDURAL HISTORY Janey Gregory on Au- were married 12, gust Megan, 14 who is now old, old, years Ryan, years now marriage. marriage were to this The born until, lasted for seventeen because of misfeasance, Gregory’s Janey instituted an action for divorce. 2, 1985, May Janey granted
On
judgment
divorce. The
and decree of di-
gave custody Megan
Ryan
vorce
Janey, decreeing
Gregory pay
month,
child,
per
for the
of the
children.
trial court concluded further
should receive one-half of the
property
during
marriage
amassed
through
joint
parties,
efforts of the
property
cent of the
had
been
and the circumstances
particular
Gregory by
donated to
his father.
reasonably
could
have reached such a
”
received,
property
also
conclusion.’ Havens v. Henning, 418
award, $115,063 in cash. She
ob-
thus
(S.D.1988)
(quoting Davis
award,
tained a total
after deduct-
Kressly,
78 S.D.
(Gregory)
cree.
It is
in this state
well settled
that
$1,000 per
alimony the sum
month
alimony
support money
allowances of
starting
seven-year period
a
the
with
marriage
for the wife
children of a
are
entry
judgment
first
after the
month
subject to revision and amendment when
herein,
seven-year period,
After said
...
See,
change.
e.g.,
conditions
Matthews v.
(Janey)
(Gregory)
pay
shall
Matthews,
115, 22
71 S.D.
27
month,
for an additional 10
(1946). However,
rule does not apply
this
10-year
during
period
this last
unless
property rights
parties
insofar as
of the
are
remarries, at
dies or
which time
(Janey)
Holt,
cease,
671,
84
concerned.
Holt v.
S.D.
See
alimony
portion
this
of the
shall
(1970). Consequently,
mony issue
extraordinary
is that
circum
require
stances exist which
the continua
In addressing
issue, Janey
asserts
alimony payments.
tion of her
Janey ar
that the
wrongly
trial court
refused
in-
gues
profited
that since she has not
eco
Gregory’s
clude in
monthly gross income
nomically
marriage,
from her second
she
certain items listed as income on Gregory’s
needs the
style
to live in the
return,
1986 federal income tax
and that
prior
which she had become accustomed
the trial court abused its discretion when it
Gregory.
divorce from
In one of her
established the child
obligation for
affidavits, Janey says
marry
that “I did
Gregory,
obligor
with a net monthly
Timothy
August 1, 1987;
W. Johnson
exceeding
income
Janey complains
however,
income, together
my
with
that the
increase
the amount of monthly
support,
child
provide
not sufficient to
insufficient;
child
was
Gregory
my
for me and
two minor children.” The
claims that the increase was unwarranted.
Malcom,
decree,
see Malcom v.
We rule that 25-7-7, Ronning that it acted interpreted Enterprises. Grego- SDCL it its discretion when contrast, urged within bounds ry, by the trial court to monthly Gregory’s increased monthly gross delete from his income the obligation. Worthington property funds from the Ronning Enterprises, thereby reducing his the lower Janey argues $8,213.16. first, monthly not consider- net income to The low- by, its discretion abused (but actually re- money Gregory never ing earned er court determined that had a ceived) put back into by Gregory income, gross excluding monthly the two second, business, and, by award- family receives, money ap- sums of he never mathematically at a lower ing a sum that is $5,029.00, monthly or a net proximately given income than that percentage of net $3,212.00. Thus, judge, the trial the statute. income brackets under other though cognizant Gregory’s unreceived income, monthly gross in- refused to include it when he com- defines SDCL 25-7-7 include, pertinent part, Gregory’s monthly gross amounts puted come to income. following sources: received from the whole, Reading 25-7-7 as a as we SDCL (1) paid employee to an Compensation (see Bruning Jeffries, services, called personal whether (S.D.1988)), we are unable to hold that commissions, or salary, wages, bonus interpreting judge the trial erred designations; other terms, 25- statute. Pursuant to its SDCL (2) or profit business Gain obligor’s monthly gross in an 7-7 includes included, farming usually profession, only income those amounts received income; self-employment called Here, obligor. Gregory did not receive the Interest, dividends, rentals, (4) royalties income, rental or interest he was without gain from invest- or other derived guide disposition of this in power to *6 capital ment of assets .... come, expenditure the of the income and Furthermore, 25-7-7 states that SDCL these did not inure to his benefit. With rentals, “[g]ross royalties, from income ... foundation, a we hold that the trial facts as sources, profits are the net or other of his discre judge acted within the bounds filed as gain any on or all schedules shown tion when he refused to include within income tax obligor’s federal Gregory’s monthly gross income rental and he is any returns for business with which Gregory’s income listed on federal interest goes The statute on to associated ...”. tax return. income may disal- provide that the court allow or Janey remonstrates that Additionally, obligor’s monthly deductions from an low his when judge the trial misused discretion which, although on the gross income listed support to at an of child he arrived amount return, not obligor’s income tax do federal monthly net paid by Gregory, who has a be of cash. require the disbursement disagree. exceeding income We present Gregory’s 1986 In the obligor with a confronted with an When lists, among return oth federal income tax $1,500, greater than monthly net income items, rental income from a truck er net Minnesota, judge trial use a discretion which Worthington, and inter stop requirement Ac that it have tempered by income from a contract for deed. est evidence, Gregory never re cording to the evidence. a sound basis in the available monies; instead, they these were ceived 311 Henning, 418 N.W.2d Havens v. See in reason keep stop the truck utilized is to include an This discretion repair. Consequently, Grego state of able needs of the chil- appraisal of the realistic avers, nothing funds added to his ry these ability satisfy obligor’s dren and the income. court must requisites. these Id. The trial par- condition of both consider the financial below, Janey implored proceedings In the ents, including spouse. the mother’s new Gregory’s court to determine net the trial $4,514.66, Bruning, supra. in- monthly income to be which 738 requires possessed sufficient specifically 25-7-7 evidence
SDCL that, discern, law, monthly if income exceeds he could as a matter of net $1,500 level, support child the amount of Gregory’s support obligation should level, no appropriate be at an shall to the be elevated level established less may support amount of be Hence, instance trial court. we find no abuse of $1,500 level. The required than that discretion, judge’s and the trial determina- support payments of be requires statute tion shall stand. for the of two tween $462 $495 $1,500 level. lower children at III ISSUE month,4 support of $665 court ordered required JANEY, the amount at the which exceeds AP- IS AN UNSUCCESSFUL $1,500 This is all that SDCL 25-7-7 PELLANT, level. ENTITLED TO ATTORNEY require a requires. The statute does not FEES ON APPEAL? analysis percentages but
mathematical
ap
requires
be at an
rather
DECISION
level,
propriate
less than that
be
authority
accords us
SDCL 15-17-7
The trial
required at
level.
attorney
to' award
fees in divorce cases on
mere
court must do more than a
mathemat
Hersrud,
appeal.
also Hersrud v.
346
See
extrapolation
ical
from the table
SDCL
(S.D.1984). Attorney
may
N.W.2d 753
fees
Havens, supra.
25-7-7.
regardless
granted
appeal,
be
judge had access to the affida-
The trial
them,
party requesting
success of the
un
Gregory
Janey,
as do we. Ja-
vits of
faith,
party
proceeded
less that
has
in bad
an enumeration of
ney’s affidavit contains
brought
unjustified
or has
a frivolous or
Likewise,
monthly expenses.
the children’s
Peshek,
action.
Peshek v.
See
affidavit,
Gregory, in his
outlines his cur-
(S.D.1980);
Foss,
323
Foss v.
83 S.D.
situation,
including
rent
financial
(1968).
Since we are con
N.W.2d
present monthly gross and net
incomes.
appellant,
cerned here with an unsuccessful
The conclusion of the trial court that the
strong
case must exist to warrant an
support of the children should be raised to
assignment
attorney
fees. See Struck
adequately supported by
month is
Struck,
(S.D.1987)
contention that
record.
J.,
(Morgan,
concurring specially).
“provide
is not sufficient to
for me
must,
deciding
We
whether we have
my
misguided.
minor children” is
two
*7
case,
presented
such a
“consider
been
with
parent,
custodial
The
is
for the
by
party,
owned
each
the rela
children,
and it should
it is for
be
incomes,
liquidity
tive
of the assets and
pay
family expenses ap-
sufficient
party unreasonably
either
in
whether
Also,
portioned to the children.
the remar-
spent
creased the time
on the case.”6
Janey
riage
Janey
of
and the income of
Struck,
383;
supra at
Hautala v. Hauta
factor to
her husband5
a deviation
be
'
(S.D.1988).
la,
This
allied with the
income,
employment,
rental
in-
trust
finding
judge’s general
Gregory
trial
come, and investment income. Her hus-
enough
Janey
each have
income and
monthly
Megan band also receives
income of
adequately provide
resources to
for
$1,666,
Ryan,
judge
plus
employment
some
convinces us that the trial
benefits.
4.
Gregory
pays
following
also
for the
items for
6.These
factors differ from those we examine
premiums
reviewing
judge’s
the benefit of the children: insurance
when
a trial
decision whether
month,
skiing
camp expenses,
of
expenses,
See,
Cole,
$148.00
attorney
e.g.,
to allow
fees.
Cole v.
expenses.
and airline
present
gross
and her
husband earn a
$3,332.00,
monthly
plus
some em-
(rent
utilities).
ployment benefits
Janey’s reliance
monthly
exception
income of-hand
on the
in
gross
Their combined
$3,332. Janey’s
Voyles Voyles,
the case of
specific rationale. affecting a woman sions the lives of children and might support man, fathers, well obtain from one mothers and by rigidity of analysis but should not in mathematical nor, obtain from two of percentages; man, equivalent the same time. need he decide the One one fate of human beings by woman, sterile, a support. Clearly, extrapolation one mathematical of ta upon should bles foisted him swing be terminated and the trial court so a new mood in II, Namely, pursuit held. In America. participate, Lien I did not as I golden goose disqualified myself funding, of federal parties Legis our because two lature Dakota, shattered the were from constitutional Doctrine Western South where Separation Donohue, my judicial exists, Powers.* district and knew the Here, 284-85. parties trial court did not err in many years. disqualified my- raising the child II, because the chil believing self Lien my mind was dren grown had older and their needs had state, not in the free open due to some increased. The judge recognized trial personal knowledge of the factual back- appellee was the Director of Job Service ground, precluding totally thus objective for the State of South Dakota and found review.
that he had a (undisputed sizeable income monthly gross $5,029per month). CHILD SUPPORT At support, month child this con matter, In this I concur in result. stitutes approximately of the net in 16% Support, state, Child in this has under- come of the father. He has business inter gone radical, a philosophical dramatic ests. Not many ago, too moons this Court change with the advent of newly re- held that a decision of the trial court would vamped SDCL analysis by 25-7-7. For an be if reversed the trial court acted a rigid guidelines author of the new and manner which amounts to an abuse of dis “ a violation of the principle constitutional cretion defining ‘a discretion exercised to separation powers, Sharp Sharp, see v. purpose end or justified by, and ” 443, 422 (S.D.1988) N.W.2d 448-49 clearly against, reason and evidence.’ (Henderson, J., dissenting); Bruning v. State, Fall River County Dryden, Jeffries, 579, (S.D.1988) N.W.2d 582-84 (S.D.1987)(citations omit (Henderson, J., result); concurring in ted). This is state, well-settled law in our Getman, Donohue v. 283 going back to Herndon, Herndon v. (S.D.1988) (Henderson, J., concurring spe- N.W.2d 917 I would limit the cially). holding on child to be that the trial court did not abuse its discretion without deigning Not change to our judges trial alluding any interpretation correct into (read schedule, schedule-automatons SDCL 25-7-7. When discretion is divested plug facts, push button, some out judge, trial sup and a schedule of answer), comes the choosing but rather port is substituted therefor which he judicial imbue them with discretionary pow- abide, theoretically how can a trial springing er experience, clothed with judge discretion, abuse his within a table of power, constitutional and blood cells stimu- support, which has already stripped him of lating brain, I join in affirming the his discretion? Fall River County, 409 However, increase in support. it is N.W.2d at 651. Thinking poem, of an old upon this basis: His Honor did not abuse learned as a struggling student who feast discretionary power. His Honor be- ed on the likes of Khayyam, Omar Robert longs judiciary to the right and has the Service, Edgar Poe, Allan I muse: a full participant be in the Doctrine of *9 law, Separation Make not, keep of new but Powers. He some old. need be- Legislature says so, cause the silver, make deci- Those are gold. these are * above, my minority writings Since Circuit, in the I take Paul Kean of the Second Judicial Piatt judicial (fully appreciating Shelton, notice 79-643, that this Court No. County, Div. Minnehaha thereby) Dakota, is not being bound of SDCL 25-7-7 South day via Order dated the 28th of by October, Presiding Judge held unconstitutional Gene In this the trial court found that wine, laws, like new New made gross monthly the defendant’s income was and refine. Age will mellow $5,029 approximately per month and that test, the that have stood Doctrines monthly he had additional Time, change, surely are best. and $1,301.50 Worthington, from the Minnesota fade, go gray, Though memory hair stop Ronning Enterprises truck and a law, decay. good never knows Some project which the court refused to consider. original Joseph Parry, author of Credit to per The court awarded month as the $665 Friends,” lyr- poem “New Friends and Old support. total child This award was unrea- Or, as ics from have borrowed. whence sonable the defendant’s net month- because put it: “The old that is J.R.R. Tolkien ly income in this case is at least the twice wither, Deep roots are not strong does not monthly amount of the net income of the Tolkien, frost.” The Fel- reached the yet support father in and the child Havens (2d 1965). ed. lowship Ring, of award is month less. $3.00 speak, the abuse of principles those do Of failing The also erred in to address court Separa- of test and the Doctrine discretion financial needs of the minor the current preserve I would both tion Powers. disregarding the income of children judges, keeping discretion with our trial $1,301.50 Worthington and Ron- from eye upon thereby casting jaundiced estab- ning Enterprises projects. majority through the lishing support by child approves the trial court’s omission opinion Equity rigidity analysis. mathematical “Gregory did not on the claimed basis ex- springy employ to mathematical is too income, rental or interest he receive the trapolation of tables. power guide disposition was without income, expenditure of this and the ATTORNEY FEES income did not inure to his benefit.” None con- fully I concur with the statements any real in of these statements have basis opinion. majority tained in the proof in the record to fact and there is no support positions. Gregory did re- these SABERS, (dissenting in Justice the rental or interest income and he ceive concurring part). in in result disposition power guide had of this support income, expenditure the child award I dissent because and the of the income inadequate under the evidence wholly inured to his benefit. this record. 25-7-7 does not exclude these SDCL 25-7-7, obligor’s items, when
Under SDCL it includes them. As indicated $1,500 the cir- monthly income exceeds majority opinion net SDCL 25-7-7 defines include, its discretion gross perti- court must exercise monthly cuit income to obligation. This setting support child part, received from the fol- nent “amounts unfettered, (2) must have profit but lowing discretion is sources: Gain or (4) Interest, Havens v. in the evidence. profession, a sound basis div- business (S.D.1988). In idends, rentals, Henning, royalties gain or other de- petitioned assets; Havens, parent capital the custodial rived from investment child opin- increase the father’s majority court to As stated in the ...” further remaining minor chil- obligation ion, goes provide for two that the the statute on to may The circuit court found that the fa- allow or dren. disallow deductions monthly obligor’s income ther’s net monthly gross obligation income, which, although increased the listed on the obli- gor’s month or total per child return, federal income tax do not challenged require The award was award $668. disbursement of cash. Even if the increased net upheld because of these funds were keep utilized to the truck divorce, since the stop income the father in a reasonable repair, state of he living, increased cost of and the increased income, received the guided he the disposi- raising they get cost of children as older. income, tion of this expenditure and the *10 Clearly to his benefit. income inured (Anderson) WILSON, qualify as a under the
does not deduction Karon J. obligor and an should not be able to statute Appellee. Plaintiff and simply obligations by uti- avoid his lawful lizing repairs. the funds to make (Bill) WILSON, William Defendant 3, Exhibit the 1986 individ- United States Appellant. father, tax return is ual income even No. 16148. startling. more Line 17 of D Schedule $335,070. long-term gain net shows Supreme Court of South Dakota. forty percent ($134,028) Only figure of this appears is to tax and line 13 as subject on on Briefs 1988. Considered Oct. capital gain. This, other in- “taxable” Decided Jan. $207,068which, an IRA come totaled after $2,000 $12,000 deduction for alimo-
ny adjust- in a resulted “taxable” income $193,068. gross
ed In other
words, the may taxable income have been $200,000,
under but the real income for $400,000.
1986 was almost
For court to limit the child $332.50
award month child is seem, Strange may
incredible. as it poverty
amount near the line for one
person. It is even more incredible when
one considers father’s real income for
1986 was I would reverse and to the trial properly
remand court to recon-
sider with accordance
South Dakota guidelines law and the set join
forth in SDCL 25-7-7. I also Justice
Morgan part in that of his concurrence in part regarding
result in termination ali-
mony. addition,
In I grant petition would attorney’s fees in the sum of Malcolm,
accordance with Malcolm v.
MILLER, part, (dissenting Justice con- part). in result in
curring join Morgan Justice of his
special writing that result concurs in the dealing with of alimo- issue termination
ny. join Justice Sabers’ on the child dissent
support award issue.