STATE OF KAN., EX REL. ADAMS v. Adams
455 N.W.2d 227
S.D.
1990
Check Treatment

*1 Additionally auto he sold gas used. case, we rented. In that insurance cars although taxpayer

noted and held and not renting cars business insurance, intent of

selling gasoline and impose upon the legislature is to a tax Because

“gross receipts” of business. Townley in money was received business, gross

relation to his rental subject to tax.

receipts were distinguished Townley.

This case is receives

Here the consideration Sanborn totally provided to

for the service CEI as a provides services

unrelated to the company gross and the

telecommunication than

receipts received therefrom. Rather to the as was

selling public, these services Sanborn, ac- simply for Townley,

done against

counting charge makes a purposes, subsidiary proportionate

its own a book- expenses. reality, it is

share that such

keeping transfer. We conclude our-legis-

activity contemplated by was not ser- of the sales and

lature the creation tax.

vice I and af- reverse on issue

We therefore

firm on issue II. concur.

All the Justices KANSAS, ex W. OF rel. John

STATE

ADAMS, Appellee, Petitioner and (Gale Hendricks), Fay ADAMS

Donice Appellant.

Respondent and

No. 16661. Dakota.

Supreme Court Briefs 1990. Feb.

Considered April

Decided *2 did per

month to month. Gale $300 proceedings. receive notice of these petition to This was forwarded Attorney Moody County at Flan- State’s dreau, Dakota, 13, South about October 1987, begun processing where was thereon in Uniform accordance with the Revised Support Reciprocal Enforcement of Act (RURESA), 25-9A, and SDCL ch. that of- The fice secured a show cause order. ven- Brookings County, ue was transferred to Dakota, pursuant request to Gale’s change of venue. brought on for matter was not hear- 26,1988. time, ing September At that showing monthly filed an Gale affidavit per income to be month. She subse- $520 quently filed another affidavit October 4, 1988, stating that her current husband Contracting employed by was Dakota Cor- per poration, that he netted week $387.84 working and that due to construction industry, usually only employed he six eight Additionally, year. to months provided affidavit stated that she had Kratochvil, Deputy William Mark State’s ($500 daughter to oldest sent $600 Atty., Brookings, petitioner appel- daugh- given $100 sister cash to lee. ter) moving daughter assist the into Denholm, & Alan F. Glover Glover apartment. an also indicated that she Gale Britzman, respondent Brookings, for believed that had remarried John appellant. court also his wife worked. The trial had form before John’s affidavit of his MORGAN, Justice. original petition. It shows that he URESA Hendricks, formerly Fay Gale Donice 31, July per made month as of $800 (Gale), appeals an order Adams determin- place petition There is no on this to indicate $3,300 ing that she was arrears child whether John remarried or how much his support increasing an order her child might spouse make.

support per payment month. We The trial filed a court Memorandum part, reverse and remand. affirm 1988, 15, Opinion on indicating November (John) and (repealed

John Adams intent to apply W. Gale its SDCL 25-7-7 1989) granted of divorce the district child a decree March standards for County, Kansas, Further, Sedgwick court of on Jan- these facts. indi- uary 15, 1986. Under terms of this cated its from the intent to deviate stan- decree, required sup- to pay Gale was dard because and her new husband’s Gale couple’s $1,552 port for the four children net income month. to John proposed the amount of to set child $3,300 and ordered Gale July John filed action in the arrearages. pursuant Kansas district court to the Uni- Support subsequently petition Enforcement Gale filed a Reciprocal form re- (URESA), seeking open proceedings Act arrear- and the matter came $3,300 ages in- before the December in the amount and an hearing, 1988. At testified crease in child for this eighteen in No case or statutes are cited daughter turned had her oldest dependent. June, 1988, longer proposition. and was no dispute did she was Though she long party’s held that a support, ar- in arrears on child she provide precedent position failure for its *3 daugh- her gued supplied the $600 that appeal. Fer Massey waives issue on that help her out of John’s house ter to move Bice, guson Corp. v. 450 N.W.2d Credit against have been credited the ar- should (S.D.1990); Cave, 435 Schmidt v. Wildcat testified that her rearages. Gale further Inc., (S.D.1977). 261 N.W.2d Gale’s employment changed, had re- husband’s for provide failure case or statutes law quiring great of travel and time deal her asserted error waives the issue. away from home. As a result this new stop working development, planned she is then examine second We spend time with him. she could more so outset, sue. At the we note our standard Finally, objected to South Dakota child she setting The trial court’s of child review. applied to her support being tables when support the will not be disturbed unless ex-hus- she could cross-examine that the challenging demonstrates income, his current marital sta- band about its Peterson v. abused discretion. tus, supplied by his possible and income (S.D.1989); Peterson, 434 N.W.2d again once reiterated her be- spouse. She Guindon, Guindon v. and his that John was remarried that lief (S.D.1977). spouse worked. sub-issues, contending Gale raises three fact trial court filed its discretion in trial court abused its January 24,1989. and conclusions law (1) following particulars: it denied existing applied the tables under It not within process due John was because 25-7-7, including the allowance SDCL jurisdiction subject to cross-exami- computed Gale’s income was deviations. and mari- nation his current finances about per being month. $701 $800 between status; (2) failed to tal pay prospective The court ordered Gale special findings when five mandated support the amount child 25-7- the schedule in SDCL deviated from it found that she was Additionally, month. 7; unconstitutionally de- (3) she sup- $3,300 previous on his child arrears (increased support child prived property port payments and ordered VI, sec. of payments) in violation art. paid. until the sum was month the South Dakota Constitution. following two issues on raises sub-issue, lack to the first respect With appeal: we note process, of due first (1) the trial court abused its Whether deducting the $600 discretion held that a trial court apart- for an daughter given Gale’s prospectively could set RURESA action of her child ment from the amount than in greater amounts support arrearages. original from state. decree another court abused its Whether fact, of our portion the choice law sup- setting Gale’s child discretion requires application RURESA statute payments at port obligor if the resides in South Dakota 25-9A-6 states: this state. SDCL Though first issue. turn to Gale’s applicable under this Duties of decree did not that the divorce she admits under the chapter imposed those support pay- independent child provide obligor was any state where the laws of specially to her four children ments sup- during period which present for the payments all should provide that obligor presumed is office, port sought. is court’s she to the clerk of be made responding present in the the trial court claims nonetheless period for during the which state crediting in not its discretion abused otherwise shown. sought support arrearages. against child amount “obligor” legislature use of the sched- as defined mandated the Since Gale is 25-9A-l(8), statute, 25-7-7, together and resided SDCL ules found SDCL during period support is be- this state provisions for deviations therefrom. ing correctly applied sought, the trial We then examine Gale’s second sub-issue. law, including the un- South Dakota tables Here, in- the trial court received current 25-7-7, der were the law at formation as to Gale and her new hus- 25-9A-6; generally that time.1 SDCL see band’s finances. The court found that McDonald, 634 P.2d 1031 McDonald v. Gale’s net income was (under RURESA, (Colo.App.1981) law of spouse’s approximate- her new income was prospec- obligor applied the state of to set ly per month. The court then used support); Jolly, Miller v. tive this current information to deviate *4 (in 218, Pa.Supr. 500 A.2d 485 guidelines existing the found in the SDCL case, law of RURESA choice obli- impute 25-7-7 to to Gale an income of gor’s applied). is state between Thompson, we further determined hand, accept- On the other the trial court legislature, by that the enactment 1987, nearly year ed affidavit from a John’s 25-9A-2, intended 25-9A-32 and SDCL proceedings, and a half the as the before apply are authorized to that our courts despite basis for his income. This provide to RURESA so as argument that he had remarried and that regard for “independent or and without working. his wife was support judgments other or whether change in circum- there had been a the Dixon, in 423 And while Dixon v. ” parents. stances either the child or its 507, (S.D.1988), 512 acknowl N.W.2d we added.) Id, (Emphasis at 848. edged proceedings for modification of distinguish Thompson Gale seeks to “involv[ing] change a in issues ... parents in that case because both ability pay, may properly need or to be the Dakota at the within State affidavit,” proposi by general heard this process predicated time. Her claim is due an to tion cannot be used as excuse not being present so as on John State ability thoroughly investigate pay the to cross-examination, thereby subject to to be Getman, parents. v. both Donohue depriving process. her of due We do not 281, (S.D.1988) (trial court N.W.2d agree analysis. point We would totality parents’ must consider of both fi proceeding had notice of this out condition). affidavit as to nancial John’s by April hearings and no were held ability pay financial was stale and con September, gave That until late Gale, sidering allegations by po the made engage in counsel at least five months tentially misleading. inaccurate and Sa discovery necessary to such as would be Saturnini, 494, 110 turnini v. 260 Minn. disclose the information that could (1961) (when affidavits are disclosed cross-examination. conflict, desirability expeditious proceed way ing gives for need for more formal said, being All did not proceedings). judge The trial his abused duty the trial court of its of deter- relieve permitting discretion the use John’s mining support on the circumstanc- “based affidavit, especially stale when John was that court.” presently es before subject to (emphasis supplied). jurisdiction Fur- not within the N.W.2d at 848 ther, Thompson being decided called as a witness.2 before power through interrogatories; we said that "new or- it has the 1. In nullify, modify, supersede (John) or require obligee appear ders do not original support decree, provide but instead (Gale) obligor's attorney cost of the to travel to additional, supplementary reme- or cumulative obligee’s deposition. a State home state for (citation omitted). dy.” 366 N.W.2d at 847 Ramirez, N.M. ex rel. State Cal. v. al., (1982); Alimony, et P.2d 545 see 3 Melli potentially 2. When faced with stale or inaccu- Award, Support & Modifi- Child Counsel Fees— information, many op- rate the trial court has (1988). & We § 18.02[3] . cation Enforcement require supplied current answers tions: it could sub-issue, aware, points Finally, John’s counsel we look to Gale’s third We are deprivation to her claim of unconstitutional out, a that SDCL 25-9A-21 allows property. pointed As out we our discus- deposi- request a continuance seek issue, ample sion of first Gale had dispute as to obligor of the if there opportunity engage discovery, but Though that support owed. the amount of And, so. we failed to do since are remand- here, discretionary provi- not done issue, hearing new ing for a second of his does not relieve sion hold the constitutional issue to be moot. accurately duty determine both Donohue, parents’ supra. income. arrearages affirm the order and remand for a and reverse by the trial This error was exacerbated hearing prospective support on the new specific five judge’s failure to order. n Bruning mandated in that we when Jeffries, WUEST, C.J., and SABERS and the in- to deviate from chooses JJ., MILLER, concur. guidelines set out SDCL 25-7-7. come HENDERSON, J., concurs specific findings required are as fol- Those part. concurs result lows: *5 HENDERSON, (concurring in (1) parents, Justice condition Financial of concurring part). part; to in- result including, but limited spouse or contribu- come a new Believing opinion conceptual- that this third to the income aof oxymoronic, I and concur ly concur expenses parent; part. in result in child; (2) living The standard of of the aspect opinion with of the I concur (3) special of the age The and needs support arrearages affirms the child which child; has refused to which the mother at (4) relating to and a reduction thereof the rate of provisions effect visitation; ap brought has custody month. She highest peal to the court this State (5) Child care. hands, equity. suppli desiring She unclean (emphasis original). at effect, to, in cates the Court reduce discussed, previously As John’s payments now established pic prevented an accurate stale affidavit (formerly month par of the condition of both ture financial month). I reduced to would then Therefore, required for finding ents. entirety in its appeal dismiss inade woefully was financial conditions Finding by of Fact VI entered Further, failed quate. “That Petitioner trial court which states: living any findings as to standard of make Adams, grant Re has refused to John W. children, special needs of age of the Par spondent reasonable visitation This an abuse and child care. children Thus, parties children.” both ties’ Bruning, supra. discretion. ex hands. For recent court with unclean Court, involving on cases in this pression, Therefore, reverse and remand (but hoary good still as as this old doctrine to the trial court support order prospective Davison, County gold), v. see Müller hold a new with instructions Stack, (S.D.1990); Stack v. 452 N.W.2d hearing, it shall receive current where (S.D.1985). 369 N.W.2d parents’ income of both evidence accurate thesis, I my oxymoronic spouses. If the To understand any both income of digest my recent in- ask the reader to would then to deviate from chooses Nelson, v. result Nelson findings required concurrence guidelines, specific come (S.D.1990). Said concur- Bruning should be made. by event, used, be it must any if an affidavit is mandating options, but of these are not rather, possible In current and accurate. offering solutions. them fail writings not reverse this trial previous of would rence in result cites “mandatory emanating mine, to the pertaining all ure to follow rubrics Question: guidelines.” Washington, DC. the bureaucrats When, judges of this past, opinion heavily Thomp relies on majority “mandated” like robots or (S.D. State have been v. son schedule, how do to follow a automatons 1985) for this Court written writer. * Conceptually they exercise a discretion? Indeed, extremely apposite to Thompson is Surely. oxymoronic? a case of first this case. We relied therein impression on RURESA. expect men and women who We cannot Ross, 41 N.C. County Stanislaus to use their intelli- sit on the trial bench 518, 522, App. 255 S.E.2d experience by exercising a sound gence and language identical now em which contains discretion, mentally tied and and then be cited ployed opinion. Thompson in this them, say to in effect: do what bound and proposition for the that child three cases oxymoronic. And guidelines say. It’s support payments must be “... based why pointed I out in Nelson v. that is namely before that print, presently that the fine SDCL the circumstances Nelson 25-7-6.10, amendment, changed via a 1989 court.” “(2) including Any finan- game by the ball point This takes me to a final which is parent would cial condition of either my opinion, court decided this: application ineq- the schedule on a the financial circumstances based uitable.” “cir- upon affidavit. It was not based stale brewing. long case has time This presently cumstances before that court.” long. It started in the summer of 1987 Too reason, join I in the reversal and For that In the fall of 1987 there was Kansas. law, only. As I read the for that reason *6 processing in Dakota but not some 15-6-43(e), particularly the trial genu- the fall of was there some judge can now hear this case on affidavits activity. fall of legal ine In late wholly partly testimony depo- on oral opinion filed. Not until memorandum of the net. sitions. The ball is on his side 24, 1989, fact

January and Saturnini, 110 N.W.2d at 511. “Where entered, formally obvi- conclusions of law complicated or the affidavits the' facts in effect ously, a 1989 amendment was not conflicting as to render cross-examina- so case under judge and the trial decided this essential, desirability expe- then the guide- “mandatory the old give way more procedure ditious must to a reversing him be- lines.” This Court Saturnini, hearing.” formal (1) stale affidavit which he took cause of a Quoted approval in at at 483. Dixon he did not follow into consideration My writings consist- guideline rubrics. be, ently judges should reflect are, power constitutional imbued with setting includes

to decide cases which judg- good their accordance with Therefore, following

ment and discretion. rationale, I have ex-

that consistent great length, I

pounded past, on in the * obliged strictly go Henning, judge under According did not feel to Havens v. judge must exercise his guidelines, a circuit our decision in One Havens. setting the child obli- "discretion may assume that he thus did not articulate monthly obligor’s gation net income when the put a deviation. To it anoth- various criteria .for Here, $1,500.” under Conclusion of exceeds might way, judge acted well have er IV, found the combined Law Havens, theory expressly which is under the spouse and her new to be income of the mother approximately when income the "abuse of discretion” test Inasmuch $1,500. exceeds $1,500, perhaps the trial this amount was over