Judy K. STRUCK, Plaintiff and Appellee v. James L. STRUCK, Defendant and Appellant.
No. 15583.
Supreme Court of South Dakota.
Considered on Briefs May 21, 1987. Decided Dec. 23, 1987.
417 N.W.2d 382
David R. Gienapp of Arneson, Issenhuth and Gienapp, Madison, for defendant and appellant.
WUEST, Chief Justice.
This is an appeal from an order entered by the trial court concerning post-divorce matters. We reverse.
The original divorce action incorporated a property settlement and child custody agreement. The original judgment and decree was entered on December 7, 1984. Thereafter, Judy Struck (Appellee and custodial parent) brought an order to show cause to increase child support pursuant to
A hearing was held and the court entered an order on October 3, 1986, which increased child support from $350.00 to $525.00 per month. When reminded by appellee‘s counsel he had not ruled on the exemption issue, Judge Heege wrote a letter saying: “[I]n accordance with the philosophy of the current revenue laws, I believe the custodial parent should be entitled to claim the dependency exemption for children and I will enter an order to that effect ...” The order was entered October 8, 1986. Appellant challenges that order.
As the trial court correctly noted, generally, the dependency exemption for children of divorced taxpayers will go to the parent having custody of the child for the greater part of the calendar year.
We believe the trial court erred in relying on the general rule as to dependency exemptions. Therefore, we reverse the order reallocating the exemptions.
Judy has filed a separate motion for attorney fees and costs. It is verified and itemized as required by Malcolm v. Malcolm, 365 N.W.2d 863 (S.D.1985). In determining whether one party should be required to pay the other, in this type of case, we consider the property owned by each party, the relative incomes, the liquidity of the assets and whether either party unreasonably increased the time spent on the case. Storm v. Storm, 400 N.W.2d 457 (S.D.1987). Considering those factors, we award Judy $474.80 in suit money which consists of $350.00 attorney fees, $45.00 for sales tax on fees, and $79.80 for copying appellee‘s briefs and affidavit in support of suit money.
MORGAN, J., concurs specially.
HENDERSON, J., specially concurs in part and dissents in part.
MILLER, J., concurs in result in part and dissents in part.
SABERS, J., dissents.
MORGAN, Justice (concurring specially).
I concur in the disposition of the issue on appeal and I concur specially in the allowance of appellate attorney fees and costs in the guise of “suit money” to the unsuccessful party.
First, I note the language of
Nor am I unmindful of the provisions of
In Johnson, supra and in Lien, supra, we relied on
It would therefore appear that there is precedential language for the allowance of the “suit money” in this case except that I have been unable to find any case where this court has, in fact, allowed attorneys’ fees against a successful appellant and in favor of an unsuccessful appellee. In a number of cases, we have allowed fees to successful appellees. Storm v. Storm, 400 N.W.2d 457 (S.D.1987); Barrett v. Barrett, 308 N.W.2d 884 (S.D.1981); Senger v. Senger, 308 N.W.2d 395 (S.D.1981). In Johnson, supra, as in Holforty, supra, we remanded to the trial court for a determination of a reasonable amount for attorney fees and expenses for resisting the appeal. In both Holforty and Johnson, the wife was again the prevailing party.
Before an award of attorney fees and expenses is allowable, however, I believe that the court should be satisfied from the record and the application that the allowance is warranted, using the wording of the statute. The simple filing of a motion per Malcolm v. Malcolm*, should not be sufficient. In this case, I agree with the majority that the allowance as made is warranted.
I would further distinguish this case from the decision in McGee v. McGee, 415 N.W.2d 812 (S.D.1987), wherein the question was allowance to an unsuccessful appellant. In that case, a very strong case should be required to “warrant” an allowance, otherwise we would be encouraging frivolous appeals. It would be like betting against the house with the house‘s money.
HENDERSON, Justice (specially concurring in part; dissenting in part).
The circuit court‘s shift of two dependency exemptions from James to Judy Struck was a modification of the divorce decree. State ex rel. Dryden v. Dryden, 409 N.W.2d 648, 651 (S.D.1987). “There can be no modification of a divorce decree unless a change of circumstances can be shown to have affected one or both of the parties.” Id. (citations omitted). In this case, the circuit court‘s Order did not encompass a change of circumstances. In any event, I agree with the majority opinion that the circuit court erred in interpreting the current revenue laws. In addition to the authorities cited in the majority opinion, a succinct analysis of the present state of the law is contained in Dryden, 409 N.W.2d at 652 n. 2.
Regarding this Court‘s award of $350.00 for attorney‘s fees, while I question the wisdom of awarding attorney‘s fees to a nonprevailing party on appeal, past cases indicate that we have wide discretion in awarding these fees. See, e.g., Storm v. Storm, 400 N.W.2d 457 (S.D.1987); Barrett v. Barrett, 308 N.W.2d 884 (S.D.1981); Senger v. Senger, 308 N.W.2d 395 (S.D.1981); Johnson v. Johnson, 300 N.W.2d 865 (S.D.1980); Lien v. Lien, 278 N.W.2d 436 (S.D.1979). This Court‘s language in these decisions speaks in terms of the equity of a situation rather than to awarding attorney‘s fees based upon whether a party won or lost on appeal. There is no “warranted” basis for attorney‘s fees based on this record, in my opinion. Thus, appellee would receive no attorney‘s fees under my writing.
However, I disagree that costs should be awarded to a totally unsuccessful party on appeal.
MILLER, Justice (concurring in result in part and dissenting in part).
Because I believe that the majority misses the crucial point and reverses the trial court for the wrong reason, I can only concur in the result.
I agree with Justice Henderson that the award of attorney fees and costs is inappropriate in this case.
SABERS, Justice (dissenting).
The trial court held that there was a sufficient change of circumstances to:
- increase monthly child support from $375 to $525, and
- allow wife to claim the minor children as exemptions for Federal income tax purposes.
Husband did not appeal from (1), and thus, the change of circumstance argument is final. Therefore, Husband must establish that the trial court abused its discretion. Husband did not and can not meet this burden. Therefore, we should affirm the trial court.
Judy should have prevailed and she should have been awarded attorney‘s fees, tax, and costs under