*1
the type
insurers is not
“excess”
In return for paying premium, her Ameri-
can States has a contractual
pay her UIM benefits submission
Nickerson of a valid claim. Nickerson
paid premium her and submitted claim to coverage.
American States her UIM
Additionally, we have often stated that liability
“[w]here the the tort- insurance of limits,
feasor exceeds UIM there is no Farmland, recovery.”
UIM liability 625. The tort-feasor’s insur- $50,000 clearly
ance of does not exceed $100,000. policy
Nickerson’s UIM limits
Because the from the proceeds tortfeasor
do not policy exceed Nickerson’s UIM lim- recovery
its and from both the “excess” “primary” insurers does not constitute recovery stacking,
double Nickerson
should be entitled recover UIM benefits
under policy any with American for
damages that prove she can were sus-
tained over and above what has al- she
ready recovered. I
[¶ 33.] would reverse remand to
allow opportunity Nickerson the to recover
UIM by proving benefits from her insurer damages she sustained over and
above what already she has recovered
from the primary tortfeasor and the insur-
er. *2 KONENKAMP, Justice,
[¶ 2.] delivers majority opinion on Issue concern- ing the trial court’s modification of fa- ther’s visitation schedule. GILBERTSON, Justice.
FACTS (father) Brian Schmidt and Ro- (mother) chelle Schmidt were divorced in 1994 and granted joint custody were children, four-year-old their two a boy and two-year-old girl. a granted Mother was physical custody actual and father was granted liberal visitation privileges accord- to a ing stipulated incorporated schedule into the divorce decree. The schedule left many details open and visita- tion became an ongoing dispute between parties. Both parties interpreted the sponte schedule and made sua modifica- tions to it a manner most beneficial to result, them at particular a time. aAs judicial extensive involvement with visita- required. tion requested was Father mod- ification of the visitation schedule in 1994 and again in 1995. The trial court entered modification in May May orders 1995 and In June mother filed another request for modification of the visitation schedule. responded Father to the re- quest sought and also an abatement of his child support during his extended summer periods. hearing on the re- quest for commenced in June and, for reasons are not clear in Strange, Richard A. Johnson Farrell record, January was continued until Johnson, Falls, Dakota, & Sioux South The trial court issued memoran- plaintiff appellee. and January dum decision at the end of and fact, findings Dennis C. McFarland of McFarland & conclusions of law and a Weidenaar, Falls, Dakota, judgment May judg- Sioux final South June. The appellant. provided pertinent part: defendant and ment GILBERTSON, Justice, change delivers 2. That due to [mother’s] majority opinion regarding of the Court as to employ- circumstances concerning ment, the trial court’s cal- as well as refusal [father’s] Order, culation of the abatement of father’s Court [with] majority opinion hereby previ- child and the the Court now vacates the concerning mother’s motion for an ous visitation order now enters appellate attorney’s award of requires par- fees. visitation schedule that support only for those First Circuit Guide- ment of his ties to follow the lines, are attached actually spent which he with the children. copy [of] incorporat- statute, this reference argues hereto the abatement ed herein.1 25-7-6.14, not limit abatement does chil- actually spent shall divide the the time with the parties
3. That the *3 equally. dren, visitation percentage summer for a abate- provides but monthly support obligation of the full may choose whether ment 4. That [father] agree. to be for a con- if certain conditions are met. We he the visitation wants in two of time or divided period secutive provides: 25-7-6.14 [¶ 7.] SDCL guide- to the pursuant blocks of time parties agree the otherwise and Unless notify by must [mother] [Father] lines. court, by the approved the is year as to the summer May 1 of each may, if the court deemed arrangements. visitation circumstances, order an under the shall 5. weekend visitation [Father’s] than thirty-eight abatement less with desire to [mother’s] be coordinated of percent sixty-six percent nor more than together at the same have the children support child if: the step daughter present. time as is of be on an alter- Weekend visitation shall (1) spends days A ten or more in child at native weekend schedule the times set obligor; a month with the guidelines. forth with the (2) days The number of of visitation an 6. That shall receive [father] percentage and abatement support for 40% of his abatement child specified amount are in the court actually spent for time he order; and with the children. shall receive [Father] (3) actually The visitation is exer- of an abatement for the three weeks cised. June, July, August each of of month by abatement calculated 1998. This is The court shall allow the abatement taking support by the child divided in obligor the month which the month, multiplied number of exercised, visitation is unless otherwise days actually spent the number of ordered. [father], multiplied by 40%. recently This reiterated the [¶ 8.] Court 7. [Father] is allowed abatement primary statutory rules of construction in in the of for June of 1998 amount 105, Schaefers, Zoss v. 1999 SD $127.00, July 1998 in the amount of N.W.2d 550: $123.00, 1998, August and for of in the amount of for a total abatement $123.00 “Statutory interpretation presents of $373.00. question of law reviewable de novo.” similarly is entitled to a [Father] Elec- Satellite Cable Srvs. Northern ¶ calculated for the of tric, 67, 5, 478, abatement summer 1998 SD (footnote years, 1999 and all future add- ed). statutory of primary One rules of appeals. Father give ... construction is to words and phrases plain meaning their and ef- ISSUE fect. This court assumes that statutes Did the trial court err in calculat- [¶ 5.] they say mean and that legisla- what ing the abatement of father’s tors have said what meant. support? language When the statute is clear, unambiguous, certain and there contends the trial construction, court him no granting erred a 40% abate- occasion for tag guidelines. 1. The record no outlin- contains attachment centage monthly the court’s function is to declare according clearly meaning of the statute as plain language of the statute. There- statute. expressed fore, the abatement of father’s support obligation is reversed and ¶ remanded for Zoss, 105 at 1999 SD N.W.2d according recalculation plain lan- CRE, (quoting South Dakota SIF v. guage ¶ of SDCL 25-7-6.14. 209). 1999 SD plain language 9.] [¶ MILLER, Justice, Chief abating
25-7-6.14 makes no mention of SABERS, AMUNDSON and “pro-rated” portion of child based KONENKAMP, Justices, concur. actually upon days spent with children. Rather, the statute calls for abating a KONENKAMP, Justice writes *4 straight percentage support.” “of the child majority opinion on Issue 2. only support” contemplated by “child monthly eh 25-7 support SDCL is ISSUE according to par calculated monthly ties’ combined net income. See Did the trial court abuse its Thus, plain SDCL 25-7-6.2. under the lan modifying discretion in father’s visita- 25-7-6.14, if the guage of SDCL trial court tion schedule? going
was to abate father’s child support, it granted should have the abatement as a argues [¶ 14.] Father the trial court his percentage monthly support of obli modifying abused its discretion in his visi gation, percentage not as a of the obli tation schedule because the modification gation pro-rated according to actually imposed punishment was as for his failure spent with the children. While the trial to comply already with the visitation order approach court’s in does find place in change rather than as a in the in example report by used issued children’s best interests. We do not Dakota Sup South Commission on Child agree. port (Report of the Dakota South Commis (1997)), Support sion on Child resort [¶ 15.] Trial courts have the author may not be had reports to such unless a ity modify custody to and visitation orders ambiguous statute is found and some inter to curb the parents actions of who refuse pretation required. is See Petition Fa cooperate to in visitation. SDCL 25-4-45 Brands, Inc., mous 347 N.W.2d 885 (best guide interests of the child decisions (S.D.1984)(resort legislative history jus to custody custody). and modifications of legislation tified when ambiguous is Yarnall, In Yarnall v. 460 N.W.2d its literal meaning is absurd or unreason (S.D.1990), the mother had been cited able). Whitney also See v. AGSCO Dako contempt failing cooperate twice for to (S.D.1990)(courts ta, by court-ordered visitation the father. apply legislature must it law as enacted that We held the trial court did not abuse legislative by and must search for intent in granting its discretion the father’s re legislature what said rather than it what quest change of custody for a from said). might should have said or have mother to the father. In Nauman v. Nau man, (S.D.1989), ambiguity [¶ 10.] There is no we imposes 25-7-6.14. The conditions it also no found abuse discretion when abatement of apparent- changed were trial court from the moth custody ly met2 the trial court in failing erred er to the father after the mother refused grant to straight per- the abatement as a with the visitation order and statutory appeal. 2. The existence of the conditions allowing dispute abatement is not in in this alienated the children up
otherwise from then- 1:00 the afternoon and take them father. swimming goor a park or some similar activity. Father refused to allow her these Although both Yamall and visits and insisted wait until she 5:00 to expressly Nauman the trial court stated pick because, up the children he argued, that the custody change was for the best were involved summer activities involved, interests of the children that during those times and he did not want point by is well shown the facts of those any them to miss out on pro- those Here, well, cases. the record shows a grams. This also against went the court’s pattern of behavior the father sup- during declaration the April 1997 modifica- ports trial court’s decision and indi- hearing tion that the children are better cates that change the visitation was in the parent off with a than at daycare and that children’s best interests. The it would be better for the children spend deny did visitation, father reasonable time parent. with an available In light of it but set a schedule he manipu- could not statements, these it apparent that the late to the same extent as he had the trial court’s decision was that the father earlier one. was simply obstructing visitation and not The earlier visitation order called considering the best interests of his two for father to have the children three weeks children. *5 during June, the months of July, and Au- [¶ 19.] also showed disdain for gust, with mother to three-day have two beyond visitation schedule the summer per weekends during time, month that on own, months. On his he decided mother an alternating basis if possible. Mother days “owed him” with the children that she was also to entitled visit the children one had with them when school, there was no per evening during week time such parent-teacher days and Veterans were with their father. Rather than follow Day. He also felt she “owed him” for sev- schedule, this father admits he “dictated” days eral when he chose to leave the chil- terms that be advantageous would more to dren with her on days. his visitation himself. When mother asserted that this Rather than order, stick to the visitation was said, not what the visitation order father told mother he was making up those responded father that he inwas control of days during the children’s 1997 Christmas visitation, summer judge could vacation. “slap his making hands” for change.
[¶ 18.] Father told mother which week- [¶ 20.] The order was her, giving ends he arbitrarily was switch- parties’ based on the agreement, which the ing the visitation schedule. This resulted approved court inas the children’s best in mother’s weekends June falling interests. After hearing the facts and ob during weekends she had gradu- scheduled serving parties, the court made specific ate City classes in Rapid in reliance on the findings on father’s obstructive behavior previously schedule, set and meant she violation of the visitation order. The court could not with be the children. Father felt then ruled that the local guide “visitation this was “too adjust. bad” and refused to lines” should put be into effect. After The weekend changed schedule was to one recognizing that unwilling father was to four-day weekend and two-day one week- with an depended that end. He refused to allow mother her one on-mutual cooperation, the court had little week per month visitation. On several choice but to order a rigid more schedule Thursday during afternoons the summer that manipulate, father could not a sched weeks that the children were with their ule that would ensure visitation of the father, plan she tried to afternoon visits children both parents. Saint-Pierre v. with the Saint-Pierre, children (S.D. Sioux Falls. She 1984) (trial asked father if pick she could the children given court’s decision to be join it was on I deference as based Justice Konenkamp’s hold- parties). ing of the En- on Issue agree first hand observation and also with Justice opinion to eliminate strife and Gilbertson’s forcing visitation that trial court erred in calculating is in the best interests of the obstruction abate- ment of Certainly, allowing support. children. the father’s father’s child action continue unrestrained not in was The Report of the SD Com- their best interests. These children need mission on Support, Child which was relied stability, and that cannot exist when father upon by Legislature in revising many upon takes it himself to set his own rules of the child during year’s laws that visitation, everyone’s in- disregarding session, provides insight valuable on SDCL Remanding terests but his own. this case 25-7-6.14, the abatement statute. The obligingly so the trial court intone could Legislature adopted verbatim the Commis- the words “best interests of the children” proposal sion’s statute. unnecessary would be an and ill-advised report [¶ 30.] reveals that the Com- intrusion on the authority. trial court’s “It specifically mission reject- considered and duty is our to review the record as whole ed an abatement that upon was based to see sup- whether or not the evidence days actually number of spent with the the trial ports modify.” court’s decision to children, and opted instead for an abate- Wockenfuss, Jeschke ment monthly support of the obligation: (1995) (citations omitted). The facts A few states attempted have use the trial ruling, court’s and we sliding abatement scale based that it hold was not an abuse of discretion number of visitation allowed. modify the visitation schedule. However, approach relatively this is a concept new justi- and it lacks economic MILLER, Justice, Chief *6 SABERS, Justice, every fication case. It can also lead concur. parental disputes days over of visita- [¶ GILBERTSON and 22.] tion for financial In reasons alone. view AMUNDSON, Justices, dissent toas concerns, of these the Commission de- 2. daily termined not to recommend a GILBERTSON, Justice, [¶ 23.] writes the sliding approach. abatement or scale majority opinion as to mother’s mo- Report of the Sup- SD Comm’n Child appellate attorney’s tion for fees. (SD port Support), Comm’n on Child Jan. APPELLATE ATTORNEY’S FEES 1997, In report, at 20. another area of the [¶ Mother has filed a motion for an 24.] the Commission recommended that “the appellate attorney’s award of fees is amount of the abatement be limited to supported by an itemized statement of monthly between 38% and 66% of the sup- legal costs incurred and services rendered. port obligation.” (emphasis Id. at 8 add- Malcolm, 863, See Malcolm v. 365 N.W.2d ed). (S.D.1985). 866 The motion is denied. Despite appar- 31.] the [¶ Commission’s rejection daily ent of a abatement calcula- MILLER, Justice, Chief tion, it provided following then the illustra- AMUNDSON, Justice, concur. tion of the abatement calculation: KONENKAMP, SABERS and The appropriate pro abatement is a rata Justices, dissent and would award mother monthly obligation. share of the $1,000 in appellate attorney’s fees. example, For assume that the support (con- MILLER, Justice, month, [¶ per 27.] Chief is the court $100 curring with Justice Gilbertson as to has ordered 66% reduction for abate- Konenkamp ment, Issue 1 and with fif- Justice and visitation exercised for is 2). to Issue days teen in a obligor month. The 482 Hybertson, v. 1998 pay Hybertson in child tion.” SD required $67.00
would be
=
¶
83,
x
402,
x
66%
405. Accord
month
582 N.W.2d
support.
$33
[$100 ½
(S.D.
Weber,
Support due is
less Weber v.
529 N.W.2d
191
$100
abatement.
“
=
1995).
‘However,
obligation].
the trial court’s exer
abatement
$67.00
$33
cise of
is not uncontrolled and
discretion
omitted).
(footnote
Obviously,
21
Id. at
must have a sound and
basis
substantial
the
of
this illustration factors in
number
” Weber,
testimony.’
at
N.W.2d
exercised,
days
actually
of visitation
Williams,
(quoting
Williams
stark contradiction to the Commission’s
(S.D.1988)).
“The best
rejection
an abatement cal-
earlier
of such
govern
of the child are to
visita
interests
culation.
matters,
a trial court’s
will
tion
order
seemingly
Notwithstanding its
be set aside
an abuse of discre
unless
illustration,
contradictory
the Commission
Hybertson,
at
tion is shown.”
ders. 2. That change [mother’s] due to given regarding employ- [¶ 36.] “A trial court is broad dis- circumstances ment, considering cretion when matters of well as refusal to [father’s] visita- as disputes Order, on visitation as set settled law Court comply [with] the trial court’s Accordingly, previ- forth above. hereby vacates now the Court of the visitation schedule and now enters order visitation ous par- requires and the matter visi- schedule should be reversed visitation Guide- the First Circuit consider- to follow tation remanded ties attached are lines, which copy [of] in the children’s best ation of schedule incorporat- reference by and this hereto interests.3 ed herein. AMUNDSON, Justice, joins this divide the parties shall That the 3. to 2. dissent as equally. visitation summer may choose whether That [father]
4. a con- to be for the visitation
he wants in two of time or divided period
secutive
guide-
to the
pursuant
time
blocks of
visitation orders clearly This violates interests.
mother’s record, ignore trial and we and conclusions ably majority reviews 3. While the Here, the pronouncements). where father trial describing various instances oral court's rights, it mother’s single finding failed honor findings its conclusions fail court's conclusion *8 identifies not a establishing find- the trial court’s judgment. While the trial court’s consideration accurately might detail ings and conclusions regard best interests the children’s require- of certain father’s violation ments, that it is not the It fundamental visitation. com- contain the essential fail to through a cold to sift function of this court children’s best of the ponent of consideration support pick and choose evidence record Thus, re- should be this matter interests. party position or the other. ive of one may so that visitation and remanded versed Rather, findings court's we examine the trial chil- from the appropriately be considered they support its whether of fact to ascertain solely on the point and not of view dren’s judgment or of law and ultimate conclusions viola- Father’s the actions of father. basis of M.H., v. determination. See E.H. statutorily rights is tion of mother’s visitation (S.D. sup 1994)(findings of fact must 25-4A) (See ch. contempt punishable as judgment). See port of law and conclusions summarily with a met be and should not Peterson, 2000 SD also State ex rel. Steffen rights own visitation in his ¶ reduction (Supreme best interests. might the children’s findings not be in limited to written Court’s review is