*1
Carmen Colette Appellant,
Plaintiff and
v. SCHIEFFER,
Kevin Victor Defendant Appellee.
No. 26101.
Supreme Court of South Dakota.
Argued Oct. 2012.
Decided Jan. 2013.
Rehearing Denied March *4 Viken, Kylie Riggins Lea M. M.
Linda Firm, Rapid City, of Viken Law South Dakota, Attorneys appel- plaintiff lant. Welk,
Thomas J. Jason R. Sutton of Greenfield, Welk, Boyce, LLP, Pashby & Falls, Dakota, Attorneys Sioux South appellee. defendant GILBERTSON, Chief Justice. 12, 2011, July On granted Kevin and Carmen Schieffer Schieffer a divorce on of irrecon- grounds In judgment cilable differences. its ther Kevin nor Carmen has worked out- divorce, decree of the trial court denied side of the home since that time. request Carmen’s to relocate to New York In the parties learned Car- children, City granted with the minor Kev- men pregnant. Kevin and Carmen joint
in and legal physical then September married on 2007.1 children, custody of minor implement- (AC-AS) The parties’ daughter was born schedule, custody aed ordered Kevin to on March 2008. AC-AS was born with pay support, Carmen child resolved the syndrome. addition, Down AC-AS was issues, disputed property and denied Car- born with a heart required defect that her request attorney men’s fees. Carmen to have surgery New York City shortly appeals aspects various of the trial court’s after her birth. aAs Carmen and decision. affirm. We AC-AS lived in New York City for approx-
imately the first five months of AC-AS’s FACTS life. Carmen and AC-AS then moved to *5 Sioux Falls to live with Kevin. Kevin and met in [¶ 2.] Carmen 1999. 2007,
From 1999 to Kevin and Carmen [¶ 5.] AC-AS has received various ser- were again, again,” involved an “on off therapies vices and to help treat the symp- long distance relationship, pri- with Kevin syndrome toms of her Down since her Falls, marily residing in Sioux South Da- birth. These services physical include kota, and places Carmen various therapy, occupational therapy, speech including City, New York New York. therapy, therapy, music etc. Some of While in City, New York Carmen was these services provided by are the State of employed president as a vice of an interna- However, South Dakota.2 Kevin and Car- tional insurance and company. investment continuously men have supplemented these Dakota, Kevin worked as the CEO of “private services with pay” therapy ser- (DM Minnesota, and Eastern Railroad & Typically, vices. participates AC-AS in at E) in Sioux Falls. Kevin was a also share- least hours of therapist-led therapy ses- holder of DM & E. each Additionally, sions week. Carmen pursued has alternative treatments Kevin amassed a [¶ 3.] considerable example, AC-AS. For spe- AC-AS is on a career, amount of throughout wealth his cial diet and takes various vitamins and acquiring much of his wealth as a result of supplements daily. the sale of DM & E in October 2007. Kevin was required working 15, 2009, to continue On October Carmen for- during for DM & E a period mally of transition notified Kevin that she intended to However, part of the sale. after com- relocate from Sioux Falls to New York pleting 2008, the transition in October City because she believed facilities in New Kevin ceased working for DM & E. Nei- City York could AC-AS with bet- signed 1. Kevin and prenuptial upon Carmen a determined based recommendations agreement prior marriage. to their Accord- Family from AC-AS’s Individualized Service prenuptial agreement, to the Carmen was three, (IFSP). age pro- Plan At the services payment $5 entitled to a of million if she did vided to her AC-AS under IFSP terminated. spousal support not seek in the event of a The Sioux Falls School District then evaluat- divorce, pursue $1 and million if she did ed AC-AS and determined the new level of spousal support. State-provided therapy she should be award- (IEP) ed. An Individual Education Plan was three, age 2. therapy From birth to ser- created for AC-AS based on this evaluation. vices to AC-AS the State were February op- hearing sented at both and educational therapy services ter time, and November 2010 trial. At portunities. (AE-VS). reconsidera- parties son both moved for parties’ with the pregnant relocation. proposed Kevin resisted tion/clarification/amendment a on complaint filed The addressed findings. As a trial court court’s sought May in which she at a on hearing December these motions held maintenance, custody, 12, 2011, trial court separate July On relocate, attorney port, permission to parties’ an order on the motions entered objected to the response, reconsideration, fees. In judgment and decree and counterclaimed relocation proposed divorce, findings of fact and amended on the declaratory judgment based of law. conclusions agreement. parties’ prenuptial find- The trial court’s amended hearing held a of law consist- ings of fact and conclusions 11-12, 2010, February to address the in- ed of and 47 conclusions that visitation, support, terim issues incorporated reference into the attorney hearing, After the fees. judgment and decree of divorce. This trial court entered a memorandum decision only portions of the Court addresses those rights and interim order to establish the judgment and decree of divorce obligations parties until judgment appeal. relevant to this its trial, originally of a which was occurrence divorce, and decree of *6 2010, July was later moved to set for but irrec- granted upon Kevin a divorce based 2010. Kevin and Carmen’s son November oncilable differences denied Carmen’s and 4, 2010. May was born on AE-VS City. request to relocate to New York The pay trial court ordered Kevin to Carmen 11, 2010, On Kevin October [¶ 8.] $8,971,973.90 satisfy to the million total counterclaim, $5 his and amended answer prenuptial she was entitled under the seeking a divorce from Carmen on the addition, agreement. In of Pri- grounds irreconcilable differences. joint legal Kevin trial, awarded and Carmen and Kevin
or to their divorce and Carmen physical custody of AE-VS. AC-AS and enforceability their stipulated of The also adopted modified agreement. parties’ prenuptial The di- custody proposed 15-19, version of schedule was vorce trial held on November (Kevin’s trial, Price expert). Dr. disput- At and Carmen sig- ed various issues. Some of more regard With to AC-AS’s thera- [¶ 11.] issues New nificant included: whether the State- py, the trial court ordered that City could better York services provided therapy granted to AC-AS under Falls; than AC-AS Sioux whether AC-AS amount her IEP would be minimum of of participated appropriate an amount would receive. therapy AC-AS type quanti- and therapy; whether and court also ordered that the recommenda- ty supplements taking of was AC-AS (Dr. Blake) tions doctor of AC-AS’s would of appropriate. Over the course parties control matters which the disa- prior hearings, parties and more and of greed about the healthcare needs experts testimony than 15 re- children, including disputes about addition- these garding and other issues. Further, therapy al for AC-AS. 4, 2011, permitted On court that Kevin be March ordered [¶ 9.] appropriate entered of fact con- take part extensive law services Car- pre- clusions of based on the evidence financial terms certain
633 to partici- attorney wanted AC-AS costs and fees is also specifically men reviewed in, assuming Dr. Blake found these pate Court under the abuse of discretion Terca, be appropriate. services to of review.” Terca v. 2008 ¶99, 18, 319, S.D. 757 N.W.2d (citing 324 Additionally, the trial court re- Eccleston v. State Farm Mut. Auto. Ins. jected for child request support Carmen’s ¶ Co., 20, 116, 580, 1998 S.D. 587 N.W.2d $25,000 of month. In Car- per more than 583). 423, brief reply men’s and Exhibit $9,200 approximately of the clarifies “An abuse of discretion $25,000 total attributable costs associ- is ‘a discretion exercised to an end or actual ated with children’s needs purpose justified by, clearly (“base” support), standard of ” Hill, against, reason and evidence.’ 2009 $15,800 of remaining while the costs ¶ 18, 5, S.D. 763 N.W.2d at (citing 822 special attributable AC-AS’s needs. ¶ Laird, 99, 13, v. Laird S.D. 2002 650 rejecting request, Carmen’s child 299). 296, N.W.2d In the context re the trial court instead ordered Kevin to decisions, custody viewing “[a]n abuse $2,815 pay “base” discretion when occurs ... the trial court’s per The trial also month. ordered review the bearing traditional factors pay Kevin to for health insurance for the the best interests child is scant or children, percent therapy 95 of AC-AS’s incomplete.” Kreps Kreps, v. S.D. 2010 costs, supplemental of the percent 95 costs ¶ 25, (quoting needs, special associated AC-AS’s ¶ Schroeder, 1, 37, v. Pietrzak percent children’s uncovered medi- 743). 759 N.W.2d percent cal ex- expenses, nanny penses until pre- incurred AC-AS entered appeal, findings On school, percent private school clearly fact are reviewed errone under *7 (if applicable). Finally, tuition the trial ous standard of review. Id. As a request court denied Carmen’s for attor- this “will overturn the Court trial court’s $370,000. ney fees of more than appeal of fact findings only when a appeals several of the trial court’s determi- complete review evidence leaves nations. con Court with a definite and firm [this] viction that a mistake has been Id. made.”
STANDARD OF REVIEW Further, gives this due regard Court to 13.] [¶ “[This Court] review[s] opportunity judge the trial court’s “to custody child under abuse decisions credibility of and to their weigh witnesses discretion standard of review.” Simunek Walker, testimony[.]” v. Walker 2006 S.D. ¶ Auwerter, 56, 8, v. 2011 S.D. 803 N.W.2d ¶ 11, 67, 68, (quoting 720 N.W.2d 70-71 835, (citing Fuerstenberg 837 v. Fuersten ¶ Midzak, 58, 14, v. S.D. Midzak 2005 697 ¶35, 798, 22, berg, 1999 S.D. 591 N.W.2d 738). 733, N.W.2d 807). addition, court’s deci regarding
sions child and the divi AND ANALYSIS DECISION sion of for an property reviewed abuse Hill, 18, v. discretion. Hill 2009 S.D. Whether trial court’s ¶ 5, 818, (citing regarding 763 N.W.2d 822 v. amended of fact Billion ¶ Billion, 14, custody 101, S.D. 1996 553 determination factors N.W.2d 230). 226, Further, erroneous, clearly causing circuit rul “[a] court’s joint legal ing physical and on the allowance or disallowance trial court’s 634 ment, parent
custody be an as attachment between and abuse award important developmental phe- an child is discretion. healthy breaking nomena and a attach- cus When (4) detriment; ment can cause and conti- guided by be consid tody, “the court shall when has been in nuity, because a child to be for the best appears of what eration long a setting one custodial time respect interests of child agree- pursuant to court order or temporal mental and moral child’s and ment, ought reluctant a court to be SDCL 25-4-45. “The trial welfare.” if theoretical change only make a or to, may, required but consider might slight advantage the child [Fuerstenberg in de following ] factors gained. and termining the best interests welfare ¶ 27, Price, 64, Price v. S.D. fitness, stability, parental the child: 425, 432. N.W.2d caretaker, preference, child’s primary “ misconduct, parental separating harmful encourage ‘We change and of circum siblings, substantial systematic to take a balanced and courts ¶ Simunek, 56, 9, 2011 S.D. stances.” approach’ the factors rele applying when Kreps, (quoting at 837 2010 S.D. custody proceeding.” N.W.2d vant to a child Si 843). ¶56, 12, 1126, munek, 9, at In evaluat 2011 S.D. 803 N.W.2d at fitness, may parental con 837 ing (quoting Fuerstenberg, ¶ 807). at also following Kreps, sider the subfactors: 591 N.W.2d See ¶ 28-29, at 844 S.D. 778 N.W.2d (1) (2) health; mental ca- physical and (reiterating that courts utilize a bal should disposition provide and pacity analyz systematic anced approach and food, protection, clothing, child applicable the various factors child care, (3) needs; other basic medical clarifying custody proceedings, and love, affection, give ability primary has never Court held and to guidance, impart education over prevail caretaker factor should all (4) creed; religion family’s willing- or court). other factors considered encourage maturely ness to frequent meaningful contact be- argues that sev the other parent; tween child and eral amended findings court’s (5) prepare commitment to erroneous, clearly fact are *8 adulthood, responsible as well to in- as joint legal physical custody and award was experiences fulfill- sure a an abuse of discretion as a result. Howev (6) childhood; ing exemplary and model- er, claims of error are without Carmen’s that witnesses ing so the child firsthand merit the the supports because record trial good parent, what it to be a a means fact. For findings court’s amended of ex loving spouse, responsible and a citizen. ample, Amended challenges Carmen Find ¶ 26, 778 at Kreps, ing of Fact which deals with “fitness” Subfactors examined when con 843-44. the trial argues subfactor 5. Carmen court stability sidering include: finding committed clear error in that Kev (1) pre in relationship capable the and interaction of was more than Carmen pare with parents, step-parents, responsible the child the the children adulthood (2) families; siblings simultaneously ensuring they and the while that extended home, adjustment fulfilling school and of a child’s had the benefit childhood. (3) community; “fully appreciates She that she parent argues with whom socialization, importance playtime, child has a closer attach- of and formed
635 Overall, family and worked hard to not [¶ 22.] for children Carmen has shown all, findings that trial court’s amended of along them with the thera- incorporate clearly fact were erroneous. As noted py requires.” AC-AS above, it is within the prerogative of the However, a review of record evidence, trial court to resolve conflicts of heavily demonstrates that Carmen favored credibility witnesses, judge of and with therapy playtime over and time fami- weigh testimony of witnesses. The ly. over example, spent For AC-AS that disagrees fact Carmen with therapy turning hours sessions before does findings they court’s not mean two, age yet spent with she no time other clearly erroneous. Because Further, prevented children. Carmen findings court’s amended of fact were socializing AC-AS from with children record, ported by Carmen has not family, only began in Kevin’s and allowing established the trial that court’s amended children AC-AS to interact other af- findings clearly of fact were erroneous. February hearing. ter the At one Furthermore, review a of the record estab- point during February 2010 hearing, lishes that engaged of systematic Carmen was asked for the names AC- balanced and review of each of Fuerstenberg factors playmates. replied AS’s Carmen and subfactors AC- Therefore, finding that the best interests AC-AS AS had playmates. no Amend- and AE-VS supported awarding not Finding clearly ed of Fact 74 was joint legal physical custody. erroneous. Specifically, court devoted example, As an additional Car- Finding through Amended of Facts 69 argues Finding men Amended Fact (approximately 8 of the pages its clearly erroneous. chal- amended of fact and conclusions lenges finding the trial court’s that she law) providing detailed evaluations of family indicated she does not think is as each these factors and subfactors. As a important therapy. as once the trial did not abuse its again, supports the record finding. in awarding discretion Kevin and Carmen respond When Carmen was asked to to joint legal custody of the chil- physical Kevin’s concern about from fami- being far dren. ly if she the children relocated New Whether City, family
York Carmen stated that was adopting abused discretion in its very important, but that not think she did custody modified version family important was the therapy as schedule Dr. Price recommended opportunities (Kevin’s AC-AS would have New expert)3 adopt- instead testimony York. This custody demonstrates that proposed schedule (Carmen’s Finding Amended Fact 81 ex- Dr. Ackerman *9 pert).4 clearly erroneous. AC-AS, months, months, months),
3. As to the modified version of Dr. 14-16 and 16-18 changes is a Price's schedule two-week schedule that and at 18 AE-VS's months schedule essentially gives equal Kevin and Carmen so that the same as AC-AS. he is on schedule AE-VS, time with AC-AS. As to modified proposed Dr. a two-week custody version of Dr. Price’s Ackerman also schedule allows schedule, day overnight Kevin various and time with schedule for AC-AS. Under this basis, weekly gener- overnights AE-VS Kevin AC-AS and on a with Carmen had five with ally receiving overnights more time with AE-VS. The Carmen had nine with AC-AS over (12-14 age schedule varies based on AE-VS's the course of two weeks. The schedule Dr. witnesses, AE- with all in the interests AC-AS and “As best fact to decide wheth It discre- on the trier of VS. was within trial court’s it falls all, none an ex part, or er to believe Dr. opinions tion to weigh competing v. H & W. Bank pert’s testimony.” Great one Price Dr. Ackerman and to select and ¶38, Enters., 10, LLP, S.D. E The custody of the schedules. proposed 207, (citing Tiffany Sauer v. N.W.2d implement to a modified trial court chose Cleaners, 24, 2001 S.D. Laundry Dry& custody proposed version of Dr. Price’s 745). ¶ 741, 14, As a 622 N.W.2d proposed Dr. Ackerman’s schedule over court’s discretion is within the “[i]t [trial] custody because it schedule conflicting experts.” choose to between to equal opportunity children with an ¶ 16, Simunek, 803 N.W.2d spend parents with both and to devel- time v. Brooks (citing at 838 Constr. Wise op parents. attachments both secure ¶ Servs., 80, 33, 721 S.D. was trial court found that this case 472-73). Furthermore, SDCL 25-5-7.1 unique both Kevin because and Carmen authority gives a trial court the to order had assets which ei- substantial eliminated custody. joint legal physical and order of the party’s ther need to work outside custody, the court ing joint physical home, both and giving thus Kevin Carmen proportions “in may award it such as ability devote time to substantial child, in the best interests of notwith AC-AS and AE-VS. of either standing objection parent.” Furthermore, 25-5-7.1. [¶ SDCL 27.] implement chose to modified version trial, At both Kevin and as proposed custody Dr. schedule Price’s testimony custody presented from Carmen opposed Dr. cus- proposed Ackerman’s custody and experts proposed schedules tody de- schedule because the trial court testimony. argues on based Dr. opinions termined that Price’s in fail the trial court abused its discretion research, more consistent modern adopt custody schedule proposed sense, public pol- scholarship, common For by Dr. Ackerman for several reasons. icy. Additionally, the trial concluded Dr. example, argues she Ackerman was schedule proposed Dr. Ackerman’s qualified more than Dr. Price in both lim- unreasonably unnecessarily would training and experience.5 ability it the to attach to Kevin. children’s case, [¶ In this 26.] mentioned, previously As finding discretion in did abuse its vested with the discretion a modified court was adoption version custody opinions experts Dr. Price’s was proposed weigh schedule proposed overnight AE-VS more with AE- Ackerman also varied allowed Kevin visits (0-18 months, got VS as AE-VS older. age based AE-VS’s 18-24 months, months, months), at 24-30 30-36 argument regarding 5. As custo an additional participated 36 months AE-VS in the same schedules, dy/visitation argues the in months, Ack- schedule AC-AS. Until 36 Dr. plan implemented after the terim visitation proposed gave erman's schedule Carmen AE- 11-12, hearing improper February majority According VS the time. to Dr. multiple reasons. is settled "[i]t schedule, custody proposed Ackerman's custody temporary law State that a in this *10 generally given AE- was three hour visits with longer subject effect to order no in is not week, per few VS a times he received A.M.L., 371 review.” In re (S.D. 1985). alternating overnights some with AE-VS on Therefore, we address decline to proposed weeks. Dr. Ackerman's schedule argument appeal. on proposed custody parties may any the schedule it how agree, select such respon- to with the found be most consistent best sibility shall be divided. Overall, AE-VS.
interests AC-AS and awarding In Kevin and Carmen joint legal trial supports the record the courts find- custody, the gave Carmen the ings supports adopt its decision specific authority to continue non- proposed version of Price’s modified Dr. (such speech oral therapies motor as Talk- custody plan. Therefore, the trial court PROMPT) Tools and that AC-AS pre had in adopting did not abuse its discretion viously received, provided that Dr. Blake custody plan pro- modified version of the therapies did not find these to be harmful by Dr. posed Price. to AC-AS.7 The trial court gave also Car 3. Whether court men the decide authority to whether or not allowing its in abused discretion Special to utilize a participate determining in Education Kevin to Itinerant (SEIT) financial Teacher terms certain ser- to assist AC-AS when vices AC-AS.6 However, AC-AS entered school. the trial court ordered that Kevin have the authori provides: [¶ 30.] SDCL 25-5-7.1 ty to participate determining appro ordering joint custody, In legal court priate financial terms for these services. consider the may expressed desires of SEIT, With regard to the Kevin was also parents may grant party to one allowed to participate setting the rea responsibility specific the ultimate over terms, duties, sonable and conditions of welfare or aspects may child’s employment relationship, and was al aspects those the parties divide between participate lowed to in interviewing based the best interest of the order, may or hiring [T]he child.... the SEIT.8 argues Carmen 23, 2011, Instead, May hearing power permanently therapy. 6.At Carmen cut sought clarification of the court's order the trial court determined that AC-AS's cur- regarding who would determine what thera- therapies rent continue would until the IEP pies participate Specifical- AC-AS would in. plan point, parties At that finalized. ly, Carmen was about whether concerned arrangements would supplemental make supplemental therapies AC-AS received in ad- therapies parties disagreed If the AC-AS. therapies participated to the dition she supplemental therapies, about the Dr. Blake throughout her under IFSP would continue disputes. would be consulted resolve the preschool Thus, before AC-AS entered summer give did not Kevin unilat- three, because AC-AS had turned her IEP authority permanently eral cut AC-AS’s complete, evaluation was not and Carmen supplemental therapy. it stated would take at three least months to get appointment an with Dr. Blake to resolve Finding 7. In Amended of Fact 121 the trial disputes supplemental therapy about AC-AS's specifical- Dr. Blake stated that "unless requested supple- needs. ly against therapy being advises in- such therapies mental AC-AS under her had IFSP interests, consistent with best [AC-AS]’s parties until continue could meet with Dr. Court is of the view Carmen should be Blake after IEP In AC-AS's evaluation. addi- allowed to involve Sara Rosenthal-Johnson’s regarding arguments tion to Carmen’s Kevin’s methods, therapy specifically oral-motor Talk- involvement terms of cer- PROMPT, therapy Tools and within [AC-AS]'s AC-AS, tain services also regimen.” argues giving the trial court erred in Kevin authority immediately cut all of AC- full, Finding pro- In Amended of Fact 123 supplemental therapy AS’s after AC-AS's IEP vides: evaluation. Carmen mischaracter- addition, parties agree, izes the court’s decision on this issue. if the cannot give authority court did then have The trial unilateral Carmen shall to choose *11 ability to allowing only person Kev the block in the with its discretion court abused the finan establishing receipt in the non-oral motor in AC-AS’s of participate to services, claiming that these cial terms of is Dr. therapies and SEIT services Blake.9 essentially gave authority of grant Further, there that the is no indication receipt to power block AC-AS’s Kevin meant Kevin to use his trial court to allow Kevin that of these services. She asserts blocking authority as means of AC-AS’s be ob require the services might insisting receipt upon of these services proves unaccept a rate that to be tained at unacceptable terms financial that were to therapists, making impossible it to the able therapists. understanding an Such therapists to to these services find inconsistent with the entirely would to AC-AS. specific authority court’s of to grant However, argument Carmen’s regard with to the continuation of partici- allowing merit. Kevin lacks these services. pate determining financial terms for Instead, reviewing the judg- therapies and non-oral motor AC-AS’s entirety, and decree divorce its ment of services, give the trial court did not SEIT authority trial court’s of division bal- receipt power block AC-AS’s Kevin and anced the interests of both Kevin Car- altogether. On the con- these services fact, men. In its amended authority the full trary, Carmen retained found spending that Carmen’s assuming these Dr. continue services Further, irresponsible excessive. not find them to be inconsistent Blake did Therefore, non-speech oral with best interests. it found motor AC-AS’s understanding Finding incorporate or not to the services of Amended of Fact whether [AC-AS], authority a SEIT for with the limita- 123 is that Dr. Blake has the but disputes regarding that if die to utilize a SEIT is all SEIT tion made, decision resolve services fully participate only Kevin shall if for AC-AS. even Dr. Blake process equally authority disputes regarding in the had to resolve duties, terms, during reasonable and conditions of provision of SEIT services AC-AS’s interviewing employment relationship, camps, summer the trial court SEIT, hiring setting the reason- dispute an additional method of resolution. compensation to the able to be offered Finding provides Amended of Fact 124 that: may a SEIT or simi- [AC-AS] SEIT. utilize issues, any co-parenting Resolution other camps at the Excel lar services summer above, expressly defined shall be sub- parties parties agree. if the If the School parties mitted for resolution with the agreement regarding cannot reach an mediator, by Parenting of a assistance or hiring or duties of the SEIT or similar ser- agreeable parties. Only Coordinator to the camps, vices for the summer then [AC-AS] exhausted, attempts when such have been provided a shall be SEIT or similar services brought shall unresolved conflicts be before Blake a SEIT or if Dr. determines that Court, exigent unless circumstances camps services for the is in similar summer bypass directly judicial pro- warrant to the best interest. [AC-AS]'s cess. Therefore, agree parties even if the cannot services, regard 9. With to the it is un- SEIT the terms and of SEIT conditions services for Finding from Amended of Fact 123 clear AC-AS, ability have the does not disputes Blake is all whether Dr. to resolve receipt AC-AS's services block of SEIT alto- services, only regarding SEIT or those dis- Instead, gether. Parenting or a mediator provision putes related to the SEIT services any disputes (keep- will Coordinator resolve during camps. Given that AC-AS’s summer specifically mind that the trial gave Dr. Blake the ultimate gave authority make the authority regard initial to all of the children's needs, including not to provision determination whether or utilize healthcare AC-AS, AC-AS). appropriate therapies for the most SEIT services *12 therapies expensive proportionately par- were and controver- divided between the sial, and that it was unclear whether or not upon ents based their net in- respective actually AC-AS’s the services caused Currently, comes.” 25-7-6.2. SDCL the However, improve. the trial speech to provides support obligation schedule child passionate court that Carmen was found calculations up monthly to combined net receipt about AC-AS’s of these services $20,000. income of Id. co-parent with ability
and that Carmen’s
to
impacted
be negatively
Kevin would
if
In situations where
By
these
were terminated.
giving
services
parents’
monthly
the
combined net
income
ability
Kevin the
to
in deter-
participate
$20,000, “the
exceeds
child
obli
financial
of these
mining the
terms
ser-
gation
appropri
shall be established at an
vices, the
court balanced
trial
Carmen’s
level,
ate
into
taking
account the actual
continuing
therapy
interest in
services needs
of living
and standard
of the child.”
imperative
she strongly believed were
to
Further,
SDCL 25-7-6.9.
“the trial
with Kevin’s inter-
improvement
AC-AS’s
may
by
calculate
ex
support mathematical
ensuring
est in
that these
services
trapolation, but it is not
obligated
do
provided at costs that were not unneces-
inquiry
so....
[T]he essential
remains
Therefore,
sary or
although
excessive.
actual
needs and standard of
ability
give input,
Kevin has the
he does
Bloom,
children.” Bloom v.
498 N.W.2d
authority
not have the
to block AC-AS’s
(S.D.1993)
213, 217
(citing
v. Ear
Earley
receipt
non-speech
of the
oral motor thera-
(S.D.1992)).
125,
ley, 484 N.W.2d
127-28
result,
pies and SEIT services. As
addition,
party requesting
sup
trial court did not abuse
discretion in
its
port
excess of
schedule “has the
giving
authority
participate
Kevin
expenses
burden of proving [the] claimed
determining the financial terms of AC-
reflect the children’s needs and standard
non-speech
therapies
AS’s
oral motor
Evans,
16,
living.”
v.
S.D.
Evans
SEIT services.10
¶ 20,
240,
Billion,
245 (citing
N.W.2d
4. Whether
¶
235).
1996 S.D.
at
ordering
abused its discretion
However,
required
court is not
“[a]
pay
Kevin to
“base” child
accept
expenses.”
either party’s claimed
$2,815 per
month.
Id.
required
“The court is
to set a
court determined that
[¶ 36.] The trial
support obligation
based
an in-
impu-
Kevin’s
(including
annual income
Legisla-
come schedule established
$2,115,080;
¶ 6,
wage)
tation of minimum
was
Hill,
ture.”
763 N.W.2d
(includ-
whereas
annual
monthly
at
Carmen’s
income
combined
net in-
“[T]he
wage)
parents
imputation
be
minimum
was
comes of both
shall
used in
$105,080.
shall
on these
obligation
figures,
which
Based
coordinator,
court)
argues
10. Carmen
incident in-
resolve
also
an
or the
would
issue,
volving the SEIT
which occurred after
parties’
dispute about selection
judgment
the trial court entered its
and de-
recognize
SEIT.
Carmen fails to
divorce, supports
cree
claim
her
that the
complication
arose
need for
from the
authority granted him
Kevin allows
disputes
would
clarification of who
resolve
receipt
block AC-AS's
of SEIT services. The
SEIT,
about
than from
selection of
rather
incident referenced
Carmen is that AC-AS
authority
participate
had to
set-
preschool
to start
unable
because the
ting the
the SEIT. As a
Car-
terms for
parties disagreed
SEIT
about who the
would
argument
men’s
fails.
be,
(Dr. Blake,
parties' parenting
and who
*13
typical expenditures
the
month-
for the children’s
such
that
combined
concluded
food,
the
and hous-
parties
clothing, transportation,
exceeded
as
ly income of
Next,
$20,000
provided by
ing.
regard
the child
with
the children’s
maximum
living,
specifical-
of
the trial court
support obligation schedule.
standard
that
no
that
ultimately
ly
trial court
that a child
found
is
evidence
“[t]here
concluded
sup-
support
supposition
the child
that
support award
excess of
would
obligation
living
opulent
will
an
exces-
port
schedule was unwarranted
children
or
lifestyle
To the
in this case.
sive
in Kevin’s home.
contrary,
suggests
that Kevin
evidence
Instead,
[¶ 37.]
”
addition,
discipline....
values fiscal
In
$2,963,
calculated “base” child
at
support
that
current
court found
“Kevin’s
top
support
of
which was the
the child
considerably
home is
less
than
expensive
obligation
for
The
schedule
two children.
residence[,]”
the current marital
and that
parties
trial court ordered that the
bear
Carmen,
it
“the evidence shows that
is
expense
upon
this
the ratio of their
based
Kevin,
than
that would
driv-
rather
be the
income, meaning
levels of
Kevin was
that
ing
setting
force
of liv-
behind
standard
responsible
paying
percent
of
that is
guidelines
inconsistent
amount,
responsible
and Carmen was
amounts.”
paying 5
of
The
percent
this amount.
Further,
the trial court found
[¶ 39.]
result
these calculations was that Kevin
only
that
unusual costs associated
“[t]he
responsible
making monthly
child
living
with the standard of
for the children
$2,815.
support payments of
In addition
forth
are the
as set
herein
costs of [AC-
payments,
to these
“base”
trial court
SEIT,
therapy,
potential
her
nutri-
AS]’s
pay
percent
ordered
of several
supplements,
possible private
tional
of the
other expenses.
children’s
costs,
Beyond
school tuition.”
those
argues
abused its discretion
trial court found that “Carmen has failed
support, claiming
child
she
calculating
that
prove
actual
additional deviation from
established the
needs and standard
support guidelines
necessary
child
required
AC-AS
AE-VS
support
approxi
“base”
serve
children’s actual needs and stan-
child
award
$9,200
mately
per month.11
dard of
has failed to es-
living.” Carmen
that
findings
clearly
tablish
these
erro-
appropriate
In
neous.
award,
support
child
the trial court consid-
ered the
liv-
special
actual needs and standard of
Because of
AC-AS’s
needs,
ing of both
The trial
concerning
AC-AS
AE-VS.
most of the evidence
that “base”
support
expenses
found
additional
associated with the
$2,963 per
properly
month
accounted for
exclusively
children
her. How-
related
AC-AS’s and
findings
AE-VS’s actual needs and
ever
detail of the trial court’s
living.
The
support
trial court made
on the overall
issue
show
several
of fact to
ratio-
support its
the trial court considered the needs of
awarding
nale for
“base”
support
exclusively
each child
focus on
and did
$2,963. First,
needs,
years
as to the children’s
two
If AE-
AC-AS. AE-VS is
old.
$2,963
the trial court found that
ages,
expect-
accounted
needs
he
change
VS’s
as is
noted,
previously
although
living.
11. As
Carmen re-
children's actual needs
standard of
$25,000
$15,800
$25,000
quested
per
remaining
over
month in child
total is
$9,200
port, only
of that
attributable
with AC-AS's
total constitutes
to costs associated
special
“base” child
used to
for the
needs.
ed, the trial court will have discretion to that these items constitute actual needs of
children”).
correspondingly
raise the
obli-
needs,
gation
those
to meet
addition,
Carmen did not
Carmen can establish a “substantial
any
present
evidence to suggest that the
*14
change in circumstances.”
SDCL 25-
See
of living
children’s standard
would dramat-
7A-22.
ically
following
decrease
parties’
the
di-
vorce if Carmen was not
her
awarded
re-
Additionally, in rejecting Car-
quested
fact,
of
amount
child
In
support.
support
men’s
for “base” child
of
request
appeal
Carmen has not alleged that the
$9,200
month,
per
the
approximately
are
children’s needs
not
met
being
by the
court
that
proposed
concluded
Carmen’s
award,
support
current child
nor has she
inflated,
expenses
speculative,
were
and
alleged that the children’s standard of liv-
unreliable. A review of the record
ing is now inconsistent with the standard
ports the trial court’s determinations. For
living they
of
had
parties’
before the
di-
example,
when
was asked about
Nelson,
vorce.
In
v.
Ochs
experience $9,200 of Kevin living at homes the ac- mately per month reflected standards above, although noted As and Carmen. living needs standard of of each tual greater and a higher income Kevin has a Thus, the children. the trial court did Carmen, is more net worth than abuse its discretion in financially than Carmen. conservative actual needs and Kevin and Therefore, that both appears it by Kevin children would be equiva- reasonably maintain Carmen will “base” child paying Carmen living. The fact that lent standards $2,815 per month. re- expressed Ochs concerns this Court Finally, evaluating *15 involving parents with garding situations award, that support important it is to note living do not disproportionate standards of abate- give the trial court did not Kevin an support provides in further exist this case support or on his ment cross-credit child that a for the court’s determination the would obligation though even children in excess of the child support child award percent 50 of the be with Kevin schedule was unneces- support obligation time.13 This the obli- significant because if at some sary Additionally, in case. this child gations support set forth in the obli- standards of point Kevin’s and Carmen’s typically applied gation schedule disproportionate, this dis- living become parent primary one pur- situations where has proportionality may be considered child(ren) support physical custody of child of the poses of modification Further, pursuant to SDCL or- parent award 25-7A-22 visitation. only other has the children’s standard of der maintain will important it is also to note that Kevin living.12 $2,815 substantially more paying be than each month other to cover costs associated Overall, Carmen has failed children.14 addition to establish that court’s amended $2,815, monthly of payments “base” regarding of fact its determination pay trial court Kevin to for health ordered support of the child award appropriate children, percent for the insurance 95 clearly erroneous. As a costs, therapy percent 95 of the AC-AS’s concluding not err that did prov- supplemental meet her costs with AC- Carmen did not burden associated conclusion, reaching residing 12. we would be with Kevin of the time half unilaterally party is note that neither able to have Kev- each month. This would lowered living, control the children's obligation by support in's child between 38 Spe- consequently support the child award. percent percent nights 66 expendi- cifically, cannot Carmen dictate Further, stayed children with Kevin. SDCL support wealth ture Kevin's for child provides 25-7-6.27 the trial court with discre- money Similarly, spending excessively. Kev- grant parties tion cross-credit on deny child cannot his children the support obligation child when certain condi- overly they by being to which are entitled tions are on the mathematical met. Based finances, prevent- conservative with his thus 25-7-6.27, formula in SDCL if the receiving his children from the benefit of cross-credit, given Kevin a his had Instead, the decision his wealth. ultimate as support obligation ap- child would have been obligation appropriate to the $2,000 $2,815. proximately opposed rests of the trial within sound discretion court. acknowledge payment 14.We Kevin’s go expenses does towards these additional current SDCL 25-7- Under the version of 6.14, grant the maintenance of children’s standard court had discretion given living. Kevin an that the children abatement needs, Hanson, (S.D.1977)). percent chil- special AS’s of the case, expenses, per- parties’ uncovered medical In this prenuptial agree- dren’s nanny expenses until ment generally property cent incurred controlled the di- trial, preschool, percent paid AC-AS entered and 95 vision. Prior to Kevin (if private applicable). school tuition million of the total $1 million he owed $5 her the prenuptial agreement. under According to esti- Carmen’s own Therefore, at the time of trial Kevin still mates, expenses the additional associated trial, owed Carmen million. At $4 total special with AC-AS’s needs alone parties disputed whether Kevin was enti- $15,800 approximately per (making month tled to receive certain for payments offsets expenses approxi- Kevin’s share of these Kevin he be believed should reimbursed $15,010). mately Consequently, when tak- Ultimately, for. the trial court found ing into sup- account both “base” child an was entitled to offset of $2,815 payment of and the port additional $28,026.16 for expenses agreed $15,010, Kevin will payment paying responsible she paying. The trial $17,825 per more than month in court rejected requests Kevin’s for other port. *16 $300,000. totaling offsets more than case, In failed [¶ 48.] this Carmen has trial at sup- Additionally, 51.] to establish that the court’s child trial Car [¶ $6,000. justified award “not men port by, requested was credit for Car clearly against, $6,000 reason and See men evidence.” claimed she wrote a check on ¶ Hill, 5, 18, joint account, 2009 S.D. 822. the parties’ N.W.2d at but then at court Accordingly, the trial did not abuse to tempted stop payment on the check rejecting its discretion in re- Carmen’s after requested Kevin that she no longer quest support for “base” child of approxi- joint Believing use their account. that her $9,200 mately month or- per and instead attempt stop to was check unsuccess dering monthly Kevin pay to “base” child ful, $6,000 paid Carmen claimed she Kevin $2,815. support of As dis- previously personal from to her account cover the cussed, if the actual needs of either AC- check. Carmen claims that future, change AS or AE-VS $6,000 when later requested she court continuing jurisdiction trial has to payment be returned because of the check modify the pursuant order to stopped, had been Kevin refused. The 25-7A-22 in order chil- SDCL to meet the request court denied Carmen’s for a dren’s actual needs. $6,000 this appeals ruling. credit. Carmen 5. court
[¶ 49.] Whether A review of record estab- dividing abused its discretion the trial lishes that court did abuse its property by rejecting re- Carmen’s dividing discretion in property under $6,000 quest for reimbursement prenuptial agreement. The record paid she claimed she Kevin. shows the trial considered the dividing party When evidence with re- property, presented [¶50.] each “a trial by any gard disputed court ‘is not bound mathe to the and then property, so, matical shall property. doing formula but make such award divided the In having requests from the material factors before court denied most of Kevin’s [it] offsets, regard equity due for and the circum and gave prop- Carmen various Grode, Overall, parties.’” erty stances of the despite objections. Grade v. Kevin’s 15, 795, 119, 800 the that the distribu- record demonstrates (alteration in original) (quoting property equitable. v. tion of was Hanson Further, party. re- paid opposing court found This the trial parties’ consideration of the rela- quires insufficient evidence
that there was worth, income, a credit of and wheth- request liquidity, tive port Carmen’s finding. unreasonably $6,000. supports party record this either increased The er at trial First, spent was asked the time on the case. when Carmen Kevin, paid allegedly the cash she about Edinger, 2006 (quoting Edinger Id. v. S.D. amount was initially indicated the Carmen ¶ 858). 724 N.W.2d $6,000. $5,000, later it was but stated case, requested In this Carmen $6,000 Next, unclear it was whether to pay the trial court order Kevin her paid from she Kevin came Carmen claimed $370,000. However, attorney fees over account, it or whether personal her own request denied money. Finally, Kevin’s parties their own attor- pay ordered evidence, any such failed to ney denying request fees. Carmen’s statements, her testi- account fees, attorney the trial court considered Therefore, did not the trial court mony. appropriate specifically factors and was insufficient finding err in evidence party that each had sufficient assets found claim. As a support Carmen’s her fees. attorney his or own pay did not abuse its discretion assets liquid fact that has more than dividing property when it denied that Kevin does not mean is re- $6,000. request for a credit of Carmen’s pay attorney quired Carmen’s fees. Whether Further, the trial court found that Carmen denying *17 abused its discretion by litigation increased her own costs call- request attorney fees for Carmen’s experts, including ing numerous some that $370,000. than of more Fi- unpersuasive. were cumulative and/or nally, the trial court that Kevin found did Generally, trial courts 55.] [¶ in increased engage not conduct that Car- attorney involving may award fees in cases findings costs. were sup- men’s These divorce, alimony. or 15- support, SDCL Therefore, the ported by the record. by two-step analysis A is used 17-38. in deny- court did abuse its discretion courts in whether to award attorney request Carmen’s for fees. Urbaniak, attorney fees. Urbaniak v. ¶83, 31, 621, 628. 807 N.W.2d parties Additionally, 57.] both sub- [¶ First, attorney the court must determine what appellate mitted motions for fees attorney’s appellate constitutes a reasonable fee. requests in this case. Kevin at- (1) $11,030.05. requires torney This consideration of fees and costs of Car- value in property requests attorney amount and of the and appellate men fees (2) volved, $29,910.78. the intricacy importance and Upon consideration of costs (3) litigation, above, and time of the the labor we the factors described conclude (4) involved, required skill draw party that neither is entitled to an award (5) case, result, and pleadings try appellate attorney As a fees. utilized, (6) discovery attorney whether there parties’ appellate motions for fees (7) the complicated legal problems, were are denied. (8) trial, for and required
time CONCLUSION Second, briefs required. whether were necessity it must determine the for such The court’s extensive is, fee, findings That what and portion fee. if amended of fact conclusions to be law demonstrate that any, should allowed as costs 25-7-6.2, § thoroughly reviewed the evidence and the child support obligation shall be established at an weighed accordingly. appropriate it amended lev- el, by taking account supported of fact are rec- into the actual needs and clearly and are not erroneous. Fur- ord child.” added). thermore, (emphasis the trial court’s resolution of the SDCL 25-7-6.9 What measure, then, parties supported disputed issues should be used to deter- “appropriate As a the trial mine the level” of evidence. custody, sup- port parents earning as to extraordinarily court’s decisions division, high property attorney incomes? port, fees not an abuse of discretion. Affirmed. case, Certainly, type it would be unsuitable to child support order WILBUR, [¶ 59.] SEVERSON purely by calculated linear upward extrap- Justices, concur. olation from the and support income amounts in the guidelines. listed Such an ZINTER, KONENKAMP and arbitrary method would have no necessary Justices, part concur in and dissent relationship to children’s needs or part. living, might standard of well infringe KONENKAMP, (concurring Justice in upon parents’ right shared make dissenting part). part lifestyle choices their children. When case, In this earnings schedule, the father earns a the guideline exceed $176,000. therefore, monthly income of better than Legislature left the courts Yet court limited his child setting the work of the “appropriate” child guideline par- to the amount for payment support, likely most because such awards earning monthly defy ents a combined income mathematical On formulas. the other $20,000. sentence, single hand, aWith limiting the award to the ceiling rejected budget: the mother’s entire amount the base schedule ig- expenses “The court discredits her as in- nores the legislative command that *18 flated, speculative, and unreliable.” No higher level support income “child obli- how, were in the given details court’s gation shall be at an appropri- established view, all expenses objec- the mother’s considering ate level” in needs context tionable. under Acting the misbelief that of living. (emphasis with standard See id. added). tables in child support high-income schedule set Since families live levels, gauging living, the limit for standard of both well above subsistence needs court found that mother “would be the living and standard of must be considered driving force setting behind a standard of parents’ in the distinctive circumstances. living guide- concerned, that is inconsistent with the high Where wealth is necessi- law, line an amounts.” This was error of ties and luxuries are relative. well an of as abuse discretion. In affirming support the child award, schedule, Our support proclaims 62.] child that
[¶ Court family on average expenditures, required go based is courts are not above the only a for starting point high-income guidelines, considering earn- without No presumption ers. exists in South Da- view of law court’s erroneous and the support high significant presents. kota the correct child for variance this case ceiling is earners amount set out in the can guidance gleaned Little from the Bloom, contrary, schedule tables. On the “For a In the pay- cases Court cites. $4,000 ing parent combined net above in over something income the schedule earned a 646 Billion, Dako- 217; Report the South resources. See of
month, at N.W.2d 498 (Decem- ¶ 101, 39, on Child Support ta Commission month, S.D. 553 $7,000 a 2008). Evans, job $25,000 ber And the of the is 235; a at N.W.2d ¶ between the critical tension 16, 18, reconcile at month, S.D. appro- competing parents ascertain is not here father’s income 244. But living. of priate standard earn- dwarfs the off charts —it simply parent cases. This in those other ings jurisdictions In where these income, extraordinary beyond far an earns frequently, more courts questions arise guidelines. in the contemplated anything recognition have “the embraced capped Yet a child living for appropriate standard parents amount for guideline at the port matching that parents affluent is affluence the father earns a of what earning fraction Morgan, parents....” Laura W. circumstances, appel- In closer here. such Interpretation Guidelines & Support Child merely is than incant- required late review 8.07, § Application Deviating from about discretion. language formulaic (2013). parent cannot Guidelines One weight no to the certainly And it lends living. control the children’s standard it declares that the decision that Court’s Id. we had to exam Seldom have occasion “equivalent.” is living parents’ standard extremely high-in ine child holdings sixty has million here, The father come such as but cases earners $176,000 month; a dollars and earns over where the income was well above the less five something mother than has generally espoused we have a guidelines, $8,756 Ochs, a month. How million earns at 531 similar view. See 538 N.W.2d (child compute equal to an standard of does that of his “partake can some father’s living? high living he is with standard of while his Evans, 16, ¶ 17,
mother”); Living (child 1. Standard N.W.2d at children). lifestyle” for the “luxurious share in their Children should 65.] [¶ always matter of bal- living. measuring It is parents’ standard of ance, course, setting an support pur- between living care high- test not whether the amount that will children’s poses, the enjoy permit live a life- actual them to payer frugal income needs chooses commensurate with style, suggest; as the Court here seems standard of they parents is to the standard of what would have had if the the test determine *19 have This does not living enjoyed would had had not been divorced. children Billion, supported mean children at it not been for the divorce. See that must ¶ 101, 41, highest living 553 at 235 the standard of attainable 531). Ochs, Overreaching income.15 in (citing parents’ N.W.2d at That 538 parents’ benefitting the name of the children incorporates measure both values. Indeed, notion guidelines discouraged, our but the support child should be parent receiving support should on the belief that children are child premised stan- expenditures level of not benefit at all the children’s entitled to same living simply dard When they parents would have received had the unrealistic. living in the together combined their financial children share lived Patterson, 522, Pony Kan.App.2d Marriage 22 15. This is sometimes called "Three child, wealthy 450, (1996). Rule.” No no matter how 920 P.2d 455 ponies. parents, needs than three In re more
647 parents, support may SEIT, both child appropri- potential nutritional supplements, ately improve living standard of of the and possible private Also, school tuition. in order to receiving parent improve the the father pays costs, uncovered medical lives of the children.16 and the children’s health insurance. None goes these amounts toward the chil- noted, As other courts have
[¶ 68.] dren’s living. standard of This Court also support provide child should the receiving emphasizes parents custody share parent adequate resources to support of the children. Yet the father did not the children in lifestyle parents a request any cross-credit, abatement or if they together. would have had remained the circuit specifically found that Mulle, 803, See v. Nash 846 S.W.2d 805 “[abatement or shared parenting cross- (one (Tenn.1993) primary of the goals of credit are discretionary and are not war- guidelines is to allow children of wealthy ranted under the facts of this case.” parents to in very high share standard of living); see Bagley Bagley, also v. 98 Md. Considering [¶ 70.] the father’s income (1993) (children 18, 229, App. 632 A.2d 238 $176,000 of over parents’ month and the of affluent parents noncustodial are enti $185,000 month, combined income of per tled to benefits affluent standard of $2,815 child award of for two living). Reasonable needs of affluent chil children was inadequate may dren include items would be friv their needs and living. standard of This olous for children of parents. less-well-off matter should be reversed and remanded Nimmo, Marriage In re 891 P.2d for a new “appropriate” determination of (Colo.1995) (children 1007 entitled to based on the record and fortune”). of one parent’s good “fruits arguments of counsel.18 Where courts fail to account for a high earner’s standard of in setting child ZINTER, Justice (concurring part support, an abuse of discretion occurs.17 and dissenting part). ' I concur on all except issues 2. Additional Amounts issue, support. matter of child On that I makes much Court join Justice Konenkamp’s dissent. fact that the father pay, must in addition to child support, ninety-five percent of the I write to explain expenses. children’s But most of these in calculating court’s error the base payments go parents’ special- toward the support. analysis, In its the court first daughter. needs These costs include disparity parties’ noted incomes. plemental expenses, such as therapy, her Because of that disparity, the court indi- Cheriton, (1988) (trial Marriage 16. In Cal.App.4th re 92 by awarding court erred less 269, 294-95, (2001); Cal.Rptr.2d discretionary guideline than one-half Strahan, N.J.Super. Strahan v. supporting parent's gross amount where the (2008); A.2d 1225-26 Nordstrom v. $43,000); monthly income exceeded *20 In re Nordstrom, (Tex.Ct. 965 S.W.2d 579-80 Catalano, Marriage Cal.App.3d 204 of 1997). App. 552-53, (1988) (error Cal.Rptr. 251 370 to $1,110 supporting award a month where the Herman, McGinley 17. Cal.App.4th See v. 50 $32,000). parent's gross monthly income was 936, 944-46, (1996) (re- Cal.Rptr.2d 57 921 $2,150 versing an award of a month where appellate attorney's 18.Reasonable fees supporting parent’s monthly the income ex- should awarded to the mother in connec- $116,000); Hubner, Marriage ceeded In re of tion with this issue. 660, 667-69, Cal.App.3d Cal.Rptr. 205 252 $20,000. of obligation joint monthly with income See support base cated that the Nevertheless, being re- the court with Kevin SDCL 25-7-6.2. prorated, would be The that amount ninety-five top believed the scheduled percent. sponsible for it es- support appropriate “accurately that because court indicated the base also “the the of on both timates actual needs obligation would be based the the Amended living living for minor children.” actual needs and standard of The Finding Finding of Fact 142. court believed minor Amended of children[.]” top 141. scheduled amount included Fact “typical” How- needs of children. Id. a matter But the erred as ever, living and standard of needs obli- of law in then the base $185,000 earning per with parents children to The determined gation prorate.19 typical; top month are and the sched- not that “in to for the children’s order actual uled amount is not based on the living,” the actual and standard of needs needs and standard of children top sched- obligation base should be the income. parents having with Schieffers’ sup- two in the uled amount for children Finding obligations in the port obligation table. Amended The base Al- re guidelines Fact also 25-7-6.2. are based on economic data 142. See SDCL joint cost of chil though flecting raising the Schieffers’ income was different month, $185,000 approximately per top monthly dren in as incomes households $20,000.20 only up applied parents guidelines scheduled amount to increase to The notes, paying Sup- majority 19. As the South Dakota Commission on Child in addition (Dec.2008). obligation, port his of the base Kevin was share pay pro ordered his rata share of the cost focusing age special majority 20. The with the errs associated needs his (AE-VS daughter. required The court also Kevin to the children at the time of divorce old) pay pro being years postulating his med- rata share both children’s two and then insurance, expenses, change ical uninsured ages, medical as AE-VS's needs he as is ”[i]f support and child care. This additional is expected, the court will discretion have incorrectly majority con- substantial. But the correspondingly support raise the obli justifies support cludes that this additional needsfj” gation Majority those meet support trial court’s determination of the base ¶ (allow Opinion (citing SDCL 25-7A-22 obligation. ing support for modification of based on circumstances)). change in See substantial support obligation The base child is calculat- ¶ "change also The circumstances" Sup- ed in accordance SDCL 25-7-6.2. prerequisite modifying support "survived port special needs is awardable under legislature's” support adoption of child Medical SDCL 25-7-6.10. and child care Whalen, guidelines in 1989. Whalen v. port is awardable under 25-7-6.16 and SDCL (S.D. 1992). SDCL See also support 6.18. The awardable under the latter aging gener 25-7A-22. But the of children is support three statutes is in addition ally change not a in circumstances authoriz support base awardable under SDCL 25-7- support. majority modification correctly 6.2. The trial court awarded the that, recognize guidelines’ since fails support. But additional the award of addi- inception, support has the "av base included specific tional for the addressed costs raising age erage annual cost of the child to 6.16, 25-7-6.10, in SDCL does and 6.18 Report the South Dakota Commis 18.” cure a court's erroneous determination (Dec.1985). Support There sion on Child of the base under SDCL 25-7-6.2. fore, needs, raising increased cost of a child special is That because costs of ages change insurance, generally the child not a medical medical ex- unreimbursed $250, already it is penses circumstances because factored in excess of child care *21 case, guidelines. not re- into the In this factored into scheduled amounts quired Report support obligation paid support. for base a base from selected any economic data reflect do not consider raising cost of children in house
ing the top incomes above the sched
holds with $20,000. Therefore,
uled amount of as a
court erred matter law determin top scheduled amount re actual needs and
flected the
living of Schieffers’ children. The greater
Schieffers’ income was nine times
than the income the top used determine stated, Simply top
scheduled amount. purport
scheduled amount does not to re necessary obligation pro
flect the base
vide for needs and standard of parents whose have
children a combined $185,000per
income of month.21
In the Matter of the OF PREVENTION
SIGNIFICANT DETERIORATION
(PSD) QUALITY AIR AP PERMIT OF HYPERION ENERGY
PLICATION Hyperion Refining,
C ENTER— #
LLC — Permit 28.0701 — PSD.
Nos. 26293. of South
Supreme Court Dakota.
Argued Oct. 2012.
Decided Jan. 2013. increasing necessary support guidelines the table included the cost of is to serve raising they age. majority children as The children’s actual and standard liv- needs wrong assuming ing.” Finding has Amended of Fact 156. Devia- periodically gov- discretion increase base tions from the scheduled amount are support obligation solely based in erned SDCL 25-7-6.10. Carmen did creasing they age. needs of children as seek a deviation from the schedule under sought larger statute. Carmen base child divorcing parties court also erred as a matter of award for whose finding law in that "Carmen failed has combined income was not covered prove that additional deviation from schedule.