*1 brings City right jury by us tо v. The of trial shall Gate remain Gustafsón 432, 430, Co-op 80 S.D. and shall extend to all Creamery, inviolate cases at 121, (1964), regard without to the and we consider law amount (Eastern vernacular) controversy, Legislature may but the mice “soda” bottle provide jury for a of less thаn (Western twelve “pop” mice in a bottle Plains court not of any a court record and vernacular). “impurities.” We think of It by decision of the civil cases three- written, N.W.2d at 122 thereof: of jury fourths the court. “[A]lso, negligence that an inference presence impurities arises from the mere provision preserves right the jury to a impurities, foreign in food when such in those trial causes that were triable to matter, ordinarily appear would not with Larson, jury common Grigsby at law. v. negligence the out manufacturer.” 628, (1910). 24 S.D. N.W. juryA proceedings Evidence in these must be should be held herein. favorably nonmoving viewed most here).
party (plaintiff Trapp, 390 N.W.2d physi-
at Plaintiffs evidence indicates trauma, injury, just such
cal not emotional (a) taste, (b) (c) regurgitating,
as: bitter
diarrhea, (d) wrenching. stomach If his physical injury
claims are all mental
aberrations,
really
not
symptoms
he
apparent
from
liquid,
suffered
foul
it is
REGYNSKI, Appellee,
Robert
jury,
judge,
say:
not a trial
who should
“ ‘tisn’t so!” In Wallace v. Cocar-Cola
Inc.,
Bottling Plants,
(Me.
Inter the Maine Court held: foreign object was of such a loath-
some nature reasonably it was foreseea- presence
ble its would cause nausea and upon being
mental distress discovered by it was a consumer was who process drinking bottle. The mental distress mani- vomiting.
fested
Wallace, 269 at 121-22 (emphasis A.2d
original). Here, upon opening capped
bottle, plaintiff allegedly similarly suffered it appears to be corroborated employee.
least one on-the-scene vigilant
Ever so and mindful we should Constitution, VI, of South Dakota art. рrovides: which
§
warding address. On the advice of coun- sel, support pay- reduced his husband child per get ment month “until we $25 1981, straightened out.” In June visitation again stipulated per parties to $75 support specific periods month child and August, for That visitation husband. hus- in court. The сourt ordered band was back wife to allow husband to exercise his visita- materialized, rights. tion Visitation never however, because wife moved.
In the fall of 1981 the notified husband that he Social Services arrearages. support owed in child He $250 arrearagе in paid the full. Husband testi- telephone received a fied that he also secretary in Social Services No- 1981, requesting vember wife’s address. Because he did not know where wife was know, did not hus- and Social Services also secretary him to band testified that tоld discontinue current child no to forward them since there was paying discontinued the cur- to. Husband affidavit, however, an support. By rent Support official from the Office of Child did not Enforcement stated that the Office Larson, Woonsocket, ap- for Jeffrey D. current advise husband to discontinue pellee. port payments; it advised husband Gen., Roger Tellinghuisen, Atty. and Jan- not be involved the that the Office would Pierre, Godtland, Gen., Atty. ice Asst. support. collection of current appellant. 1984, Aid July applied wife to In (ADC) Dependent in Arizona. Children MILLER, Justice. indicated that husband application she appeals of Arizona The State parent assigned “absent” and was an support arrearages forgiving all child order rights Arizona. In Octo- support to (husband). Regynski G. owed Robert a notice frоm husband received ber We reverse. of a tax inter- the Internal Revenue Service $3,095 by the (wife) against him for cept filed Regynski Donna Husband and immediately of Arizona. Husband January 1979. The State were divorced custody seeking of son “Separation, went to court incorporated parties’ court arrearages.1 forgiveness Agreement” Custody Property had dispute no that husband agreed that There was parties divorce decree. had, not, made child nine-year-old and Arizona custody of wife would payments. (son), tо husband’s visita- subject Richard Husband, previ- who had privileges.
tion
had
that husband
The trial court found
son, agreed
pay
ously adopted
$50
wife’s
telephone
support upon the
paid no child
year and
support for one
per month child
It found
of Social Serviсes.
advice
per month thereafter.
$75
alleging
in Arizona
applied for ADC
wife
she, in
missing
when
his
that husband
was not
to exercise
Husband
able
It further
fact,
he lived.
son
knew where
privileges
wife and
visitation
because
ig-
beginning,
“from the
leaving
for-
found that wife
constantly moved withоut
proceedings.
appellate
point
attorney began
ing
represent-
1. Husband’s
him at this
deliberately disobeyed
rights goes
every
beyond
nored or
visitation
URESA
[visi-
say
order of this Court.” The court
cases.
is
This not
that a noncusto-
tation]
findings
parent
apply
original
concluded that these
“constitute
dial
cannot
to the
significant change of
circumstances”
court
relief under such circum-
arrearage.
set
aside
stances. The children’s best interest re-
quires
they
supported.
Chil-
appeal
issue on
the trial
whether
may
dren
not be denied
or in
by retroactively
court
its
*3
abused
discretion
way punished
the sins
the
of
modifying
judgment
support.
its
of child
parent.
custodial
This court does not
authority
The trial court has the
approve
personal
to
of
modifications
modify
to
support payments originally
child
divorce decrees absent court amend-
upon
stipulation
based
a
the par
between
binding
ment
a
agreement; only a
ties if the
trial court
its discretion deter
may retroactively
trial court
modify
“changed
mines that
conditions” warrant
support payments
on the
based
Jameson,
such a modification. Jameson v.
payor’s
situation
and the
financial
(S.D.1981).
306
240
N.W.2d
The discretion
Barrett,
children’s
Barrett v.
welfare.
allotted to the trial court under SDCL 25-
(S.D.1981). (Emphasis
In foun- 369 132 Stach N.W.2d forgiving dation for the arrearages, and we summarized recent case on law by doing its abused discretion so. topic: the case, very Pochop, recent Todd v. Because the amount of thе tax intercept (S.D.1985), adopted N.W.2d we may be in excess of the amount of the child wording Appellate of a Minnesota support arrearage, we reverse and remand Court decision: to the trial court with instructions to deter- accepted prinсipal is an that the mine delinquent the amount of sup-
“[I]t misconduct the mother does not af- port for which husband is liable. duty fect the father’s to support his WUEST, C.J., and MORGAN and Indeed, duty nigh
child.
is well
SABERS, JJ., concur.
absolute,
and a
order must
ordinarily
complied
if
even
HENDERSON, J., concurs in result.
actions of the wife
con-
HENDERSON,
(concurring
Justice
in re-
tempt of court.”
sult).
Todd,
citing
N.W.2d
State Obviously,
counsel,
advice
his own
Chamberland,
Wis. ex rel. Southwell v.
father
not
should
have reduced his child
(Minn.App.1984).
per
$25.00
month. This
ais
deci-
Reciprocal
While Todd was a Uniform
judge
sion for the
lawyer.
to make—not a
(URESA)
Support
Enforcement of
Act
action,
25-9A,
sup-
ruling
visitation;
SDCL
Ex-wife here refused all
fa-
port obligations
independent
are
from ther could not see his son. And he did not
land)
by majority courts of the
his son were
where a
and
the ex-wife
know where
responding
change
existence.
court can
the obli-
nomadic
living. She lived a
support?
gations
support.
sup-
This statement is
expected to send
could he be
How
25-9A-32, 25-9A-2,
made his
ported
it? Ex-wife
SDCL
would he send
Where
§§
impossibility.
(1984).
At
obligation
support an
31 A.L.R.4th
I am
Support En-
time,
suggesting
of Child
modifications of child
one
the Office
not be
him that it would
conceivably
port,
forcement advised
which could
include retro-
Father was sac-
agent
relief,
collection.1
by many jurisdic-
are favored
active
belliger-
uncertainty,
tions,
on an altаr of
rificed
so
when
facts
warrant.
ex-wife,
lifestyle,
nomadic
by his
ence
includes domestic cases where
state
officials.
non-cooperation
ADC,
of state
government
involved via
becomes
say:
etc. Our courts cannot/should not
Larsgaard, cited
This author wrote
(or mother), you
pay
you
did not
father
Forgiveness
opinion, in 1980.
majority
given
absolutely
pay,
must
whatever the
Larsgaard
was based
of child
*4
rationalizing
of the
circumstances
case—
economic condition
upon the deteriorated
it
thаt a court order is a court order—and
approved
there
of retroac-
the father. We
like the Rock of Gibraltar—
shall remain
pay-
modification of
tive
thought is
impenetrable. Such
Larsgaard also
applies
ments.2
steadfast —
abominable tо
reason;
i.e., let us not har-
However, ar-
rights assigned to the state.
precedent
tightly
in
ness ourselves
so
upon a sub-
rearages
only
can
be modified
rigidly
are
fixed to
one conclusion.
we
change of circum-
and material
stantial
Larsgaard,
tained is far too broad. Under the
rule, judge case could be
sustained, long but we have abandoned it. dissertation of former
See Chief Justice Pochop,
Fosheim in
Thus, reluctantly join I the majority hold-
ing, alignment veering with abso-
lutism, yet believing that a mother who has,
literally a son hides father
effect, against committed an act nature. naturam,
Factum contra contra deum (an against against
est act nature an act
God). *5 Clark, Mission, appellant
Krista for Fa- thеr, L.C. PEOPLE State South Dako Godtland, Atty. Gen., Pierre, Janice Asst. K.C., ta In the Interest of a Minor State; appellee, Meierhenry, Mark V. Child, Concerning V.M., L.C., Gen., Atty. on the brief. Department Services, of Social Re
spondents. WUEST, (on reassignment). Chief Justice
No. 15456. appeal by (Father) is an L.C. follow- ing parental rights termination оf his Supreme Court of South Dakota. child, minor K.C. We affirm. Argued Feb. (Mother) July, Father married V.M. couple 1978. The in February, divorced Decided Oct. 1979. A gave Montana divorce decree Mother custody their ten-month-old K.C., daughter, Father allowed reason- rights. able visitation Fаther made support payments for two months but provide thereafter failed to further At point, K.C. Father ended essen- tially all contact his child. Following divorce, Mother moved to Lemmon, South Dakota. (Department) Social began Services re- ceiving in September, referrals K.C. Reports alleged neglect and inci- physical dents of abuse Mother. De- partment parental counseling initiated Mother.