*1 jury that the would have able doubt returned guilty even without

a verdict error of VOELKER, Linda K. Plaintiff admitting the irrelevant statement. Appellee, Orelup also asserts it was an abuse of discretion for the trial court to allow the VOELKER, Paul W. Defendant reopen State to its case to admit evidence of Appellant. jurisdiction. purpose proving venue for the No. 18123. considering light After this issue in of statu law, tory and settled case we find his claim to Supreme Court of South Dakota. totally lacking in merit. 23A-24-2 SDCL court, empowers a trial furtherance Considered on Briefs on Nov. 1993. justice, reopen party a case and allow a Reassigned March 1994. present through evidence which was omitted Larkin, oversight. See also State v. 87 S.D. Aug. Decided (1972) (“The 61, 69, may, a criminal action in its discre tion, reopen a case to receive further evi

dence.”); Beek, 598, 604, State v. Van 87 S.D. (1973) (holding 662-23 it not an abuse of discretion for trial court reopen

to allow State to its case and intro case). during

duce evidence defendant’s

The trial court found that the state’s

failure to introduce evidence venue was an Further,

oversight. the evidence was intro began

duced before presenting the defense case, timing obviously

its which was less

disruptive than the situation in Van Beek.

We find no abuse of discretion allowing reopen

court in the State to its case

and admit the evidence out of turn.

The trial court did not abuse its discretion admitting testimony of Marcia Cain exception,

under the excited utterance SDCL in admitting

19-16-6. The error J.L.’s irrel-

evant statement to Nurse Larson was harm-

less error. We affirm.

WUEST, HENDERSON, SABERS and

AMUNDSON, JJ., concur. reason, provides part: good justice

5. SDCL 23A-24-2 in relevant in furtherance of or to sworn, oversight, permits jury impaneled correct an evident them to After a has been case[.j proceed following upon original trial must in the order: offer evidence (4) then, parties may respectively, offer court, rebutting only, evidence unless *2 Falls, plaintiff Langner, B.

Shari Sioux appellee. Piersol, Catherine V. Piersol Rose Falls, appellant. Sioux defendant (on AMUNDSON, reassignment). Justice (Father Husband) ap- or Paul W. Voelker peals judgment from a and decree of divorce daughters awarding parties’ Wife). (Mother Linda K. Voelker or We part. part affirm in and reverse in

FACTS and Father were married on Janu- Mother Danielle, ary daughters, pres- 1983. Two Christina, age ently age eight, presently five, marriage. born to the Father is a were Hospital at McKennan and has a technician $40,- gross approximately annual income of 000, $6,000 prop- from farm is rent erty par- from his father. The he inherited stipulated income from her ties that Mother’s $18,200 job year. catering per was from Husband in Wife filed for divorce hearing, September, After a temporary custody of the court awarded her Father, children, exemptions income tax subject the federal for the to visitation support in the marital home. children. Father’s share of child her to remain allowed separation, per Mother renewed was set at month. Mother After this $884.00 boyfriend; thirty-five relationship high percent school awarded of the farm land *3 portion now her husband. inherited Father and a of her this man is attorney’s appeals. fees. Father 1992, January, a motion to In Father filed possession of custody of the obtain ISSUES residence, alleging that Mother’s the marital endangering chil- of alcohol was abuse I. WHETHER THE TRIAL COURT asserting boyfriend that Mother’s dren ABUSED IN ITS DISCRETION having negative a living in the house and was PHYSICAL AWARDING CUSTODY impact on the children. The court denied OF THE CHILDREN TO MOTH- girls in motion and left the Mother’s Father’s ER? care, man in the but ordered no unrelated II. THE TRIAL WHETHER COURT p.m. 10:00 home between 8:00 marital ABUSED ITS DISCRETION IN dis- a.m. Evidence at trial showed Mother AWARDING WIFE THIRTY-FIVE remained in obeyed this order and the man PERCENT OF THE FARM LAND the home. INHERITED? HUSBAND continuing problems with Mother has had THE TRIAL III. WHETHER COURT anxiety depression, and alcohol abuse. After IN ABUSED ITS DISCRETION working steadily for the Presentation Health WIFE A PORTION AWARDING years, System twenty-two for she lost four HER OF ATTORNEY FEES? jobs March and November of 1992. between THE TRIAL IV. WHETHER COURT in-patient in hospitalized was 1990 for She ABUSED ITS DISCRETION Shortly fil- depression. of before treatment BOTH FEDERAL IN- AWARDING 1991, attempted in sui- ing for divorce she TAX COME DEPENDENT EXEMP- thirty days in-patient cide. She obtained TIONS TO MOTHER? for alcohol abuse March treatment EITHER PARTY V. WHETHER 1992.1 BE SHOULD AWARDED ATTOR- may problem alco- Father also have a FOR APPEAL? NEY FEES THIS routinely con- hol use. Evidence showed he ERR IN DID THE TRIAL COURT VI. night during mar- five drinks a sumed AWIFE DIVORCE ON GRANTING riage. professional A alcohol assessment EXTREME THE GROUNDS OF enough Father found there was not informa- MENTAL CRUELTY? dependence rec- diagnose tion to alcohol but counseling ommended he seek for his difficul- DECISION professional ex- ties. Another assessment TRIAL drinking I. THE COURT pressed concern over his and de- DISCRETION IN manipulative. The trial court ABUSED ITS scribed him as CUSTODY voluntarily cut out visita- AWARDING PHYSICAL found that Father Sunday THE CHILDREN TO MOTHER? Friday evenings and after- OF tion on sporting he could watch events. noons so paramount consideration deciding of child trial court in the issue September, granted In court temporal, and moral custody is the mental grounds on of extreme Mother divorce Peterson, v. of the child. Peterson cruelty. Physical welfare mental (S.D.1989); Lindley Mother, who also received was awarded divorce, completed in-patient appeal proceeding. After Mother 1. Two months after the while treatment, passed pending, granted out on Mother was found her motion again the floor of her home. She was once parte order. We do not consider vacate the ex inpatient facility for alcohol abuse admitted to an reviewing the trial court's divorce these events in granted Father The trial court then treatment. decree. parte temporary custody an ex of the children in trial court termed him “an individu- Lindley, abusive presented al.” at trial that broad discretion Evidence was The trial court exercises during will be Husband was uncommunicative awarding custody and its decision showing marriage point routinely sat only upon a clear of an to the he reversed Jones, 423 downstairs front of the TV and drank abuse of that discretion. Jones try problems. than to talk out Anderson alcohol rather Anderson, unsupportive Wife testified that he was depression urged an determining there has been her treatment her whether discretion, taking anti-depres- prescribed this court does not decide to cease abuse of ruling, go sant medication. He refused to to marital whether it would have made the same judicial counseling. physi- if a mind could Wife testified that he had but must determine *4 cally in shoved her. a similar decision view have made particular that case’s circumstances. law and trial court received evidence (S.D. Johnson, 468 N.W.2d 648 Johnson independent experts from two who inter 1991). parents viewed the and the children. Dr. parties put This is another case where the par Renae Battista-Turbak found that both denigrating one another more effort into deeply ents love and care for their children determining was in best than into what the girls equally and that the have bonded put This interests of their children. Mother and Father. She stated that both position determining in court the of preference had communicated a to live parent least Williams v. was “the worst.” Although controlling, with their Mother. Williams, may parental consider the child’s Larson, Henle v. 466 N.W.2d 846 Peterson, preference. at

The record shows that Mother has a seri- par- Dr. Battista-Turbak found that the problem depression ous and al- with mental attempting manipulate ents were the chil- hospitalized dren, cohol has been abuse. Mother questioning par- them about the other suicide, depression attempted ent, and and belittling parent in the other front of taking pre- the record indicates she is still the Dr. children. Battista-Turbak was attempt scribed medication in an to control doubtful Mother had been truthful about her first, depression. boyfriend living her At Mother denied in the house. also found She alcohol; abusing subsequently passive-aggressive she received Father exhibited a in-patient manipulative personality. treatment for alcohol abuse. Evi- Dr. Battista-Tur- parents’ dence showed that she stashed bottles of bak voiced consump- concern about whiskey hiding spots in in the house and car. tion of alcohol but believed Father was better Testimony presented that the children able to handle his alcohol use. She did how- ever, passed “strongly suggest found her out on the floor on more that he refrain from they any than one occasion. Once called a friend use him in while the children are with or they to ask what to do when were unable to his care.” Dr. Battista-Turbak recom- experienced physical custody awaken her. Mother has also mended that Father have of difficulty steady job. holding a the children because of her concerns about ability Mother’s to meet the children’s needs. paragon

Father has not been a of virtue in proceedings; Psychologist these he has been described Elwin R. Unruh interviewed psychologists “manipulative.” parents two This is as both and the children. He too found children; ques- parents borne out manipulating evidence of his excessive were tioning concerning parents engrossed of the children their “both are so with their Mother, discussing neigh- becoming ‘ping his Wife with the wars that the children are bors, staking pong polarization.” out the marital home to take balls’ the midst of their photographs, searching garbage opinion, In dealing and re- his Mother was with her cruiting estranged problems process interpersonal members of fam- “in Mother’s ily supporters position. growth” tendency as for his He re- while Father “showed a daughters deny adjustment per- duced visitation with his so he minimize or social sporting could attend problems.” Although weekend events. The sonal Mr. Unruh found However, litigation. thought type courts in this there more self-assured Father evidence, stability reviewing if all of the we cannot were after be more would Father, “any inhibiting clearly say not find that the trial court’s decision was he did Therefore, being primary parent against and the evidence. features of either reason ongoing ther- He recommended trial court did not abuse its discretion in caretaker.” parents. the children and apy awarding custody for both to Mother. evidence, considering this After II. THE TRIAL COURT custody physical court awarded Mother ABUSED ITS DISCRETION girls. AWARDING WIFE THIRTY-FIVE Indeed, trial court in the instant had the PERCENT OF THE FARM LAND concluded, upon its observation case based INHERITED? HUSBAND as well as of the demeanor of who testified

that of the other witnesses Husband inherited one-hundred- proceeding, sixty that should in March acres of farm land of 1991. [Mother], we would be hard- awarded to Probate of the estate was finalized March repre- say that decision pressed to some six months after Wife had filed dividing proper of discretion. Based marital sented a clear abuse for divorce. *5 was, however, upon ty, thirty-five the court’s first- as it the trial court awarded Wife gauge credibility property. opportunity percent hand the of the inherited farm stability parties as emotional of the Husband claims the trial court abused its and by testimony by awarding any reflected and demeanor discretion wife of the inher trial, trial court’s during lengthy property. the the ited farm given appropriate the decision must be in mak A trial court has broad discretion scope of mandated under our deference property this court ing a division of and will appellate review ... modify it there is a not or set aside unless Saintr-Pierre, 357 N.W.2d Saint-Pierre Prentice v. Pren clear abuse of discretion. (S.D.1984).2 250, the trial court 255 “Where tice, 880, Clem 322 N.W.2d 882 witnesses, opportunity the had the to observe (S.D. Clement, ent v. 292 N.W.2d 801 give regard superior posi- to its will due we 1980). to include in The decision whether Guardianship judging credibility.” tion prop property part as of the marital herited (citations (S.D.1994) Rich, 520 67 N.W.2d discretion of erty to be divided is within the omitted). has The trial court found Mother Laird, trial court. Laird v. 322 N.W.2d the children primary the- caretaker of the been “Although the trial 256 it in the children’s best interests and was that the defen judge should consider the fact finding presumed stay with Mother. This is property, certain he is dant inherited will not seek reasons correct and this court it for the defendant and bound to set aside Pearson, to reverse. Pearson v. property may part it of the to be consider as 34 Clement, 292 N.W.2d at 801. divided.” dividing property obviously to be considered parties faults which factors Both have (2) (1) marriage, the value are the duration of awarding a difficult decision. made (3) parties, the property of the owned commonly by our trial This is encountered girl’s clothing bought and following findings all the the C.Linda 2. The trial court entered haircuts, custody: arranged doctor visits and other on for appointments. primary the 7. Linda Voelker has been Voelker and Christine caretaker Danielle they were bom: During pendency since ac- of the divorce parent primarily re- Linda has been the tion, A. things gave he Linda a list of the Paul children, taking sponsible care of the trade her the wanted and said he would needs, feeding, bathing seeing to their property. clothing the children. school func- B. Linda has attended problems with alco- had some 17. Linda has tions, to the doctor when neces- taken them past has dealt with hol abuse in given sary, their medication when them successfully. problems these prescribed. so (4) parties, health of the reverse and remand the division of marital ages parties, of the (5) competency parties living, to earn a property proceedings of the for further consistent (6) party of each to the opinion. the contribution with this (7) property, and the income- accumulation of Due to our of the of mari- reversal division producing capacity of the assets owned property, support tal child should be recon- Johnson, parties. Johnson upon sidered remand. (S.D.1991); Ryken Ryk N.W.2d Clement, en, 122, 123 (S.D.1990); III. THE TRIAL COURT at 801. ABUSED ITS DISCRETION During nine-year marriage, this both of WIFE A PORTION AWARDING parties worked and contributed to the OF HER ATTORNEY FEES? family property finances. Aside from the attorney The allowance of fees inherited, only Husband substantial mari- rests in the sound discretion of the trial home, tal asset accumulated was the court. We will not disturb a trial court’s parties was awarded to Wife. Both are in attorney award of fees in a action divorce health, good except their mid-thirties and in unless there was an abuse of discretion. for Wife’s alcohol abuse. Both have 128; Gamos, Ryken, 461 N.W.2d at ability living support earn them- N.W.2d at 574. selves. following A trial court should consider the growing up, helped heWhen was Husband determining elements in property. farm whether to award his father Wife had no (1) attorney fees: The amount and value of nothing involvement with the land. She did (2) involved, property prop intricacy to contribute to the accumulation of the (3) Garnos, erty. importance litigation, Garnos v. the labor and Cf. *6 (S.D.1985) (4) involved, (reversing required 573 time abuse of discre the skill to draw property pleadings cause, tion for failure to drawing consider inherited and the of the (5) during 15-year marriage (6) utilized, where wife discovery procedures contrib teaching marriage uted her entire income to complicated legal whether there existed performed duties); Prentice, (7) and problems, domestic required try the time to (reversing (8) 322 at property cause, N.W.2d 882-83 whether written briefs were prop award for failure to consider Peterson, inherited required. Peterson v. 449 N.W.2d erty where wife’s work on the ranch in 835, (S.D.1989); Garnos, 840 at 376 N.W.2d inheritance); creased the size and value of making 574-75. the determination of Laird, (noting 322 at N.W.2d 257 wife’s in awarded, whether fees should be duties, along come and domestic with hus property by court should consider the owned inheritance, band’s acquisition contributed to incomes, parties, each of their relative property). of marital property liquid whether the is in or fixed assets, party and whether the actions of a completed Probate of the estate was some unreasonably spent increased the time on the separated six months after the Voelkers Garnos, case. 376 at 575. N.W.2d they four months before were divorced. None the income from the land ever applied The trial court factors in above commingled with marital monies. None of $1,500 ordering pay Husband to of Wife’s purchase the income was used to marital $6,757.00 attorney in fees. The actions of property. None of the income from the in- both resulted in considerable time property pay herited was used to marital spent by attorneys on this action— debts. Wife had no involvement with the hearings, day three a two and one-half trial. property acquir- and made no in contribution by Part of this was necessitated Husband’s ing the land. delayed custody. decision to contest The factors, Considering the above responsi- the award trial court found that Husband was thirty-five to percent bringing Wife of hearings inherited ble for two of the before clearly farm was Additionally, excessive and an the final trial. abuse divorce Hus- by discretion larger salary the trial court. We therefore band has both the and the

909 Senger, Senger factors in v. 308 N.W.2d The trial from the farm land. income rental 395, (S.D.1981), $1,500 party neither 398 we award pay order for husband court’s party pay attorney fees and direct that each not an abuse of attorney fees was Wife’s expenses appeal. their own for this discretion. other issue We decline to address the THE TRIAL COURT IV. as we deem it to be raised Husband ITS DISCRETION ABUSED McFarland, McFarland v. without merit. FEDERAL IN- BOTH AWARDING The case is EX- TAX DEPENDENT COME proceedings with remanded for consistent EMPTIONS TO MOTHER? opinion. Mother, trial court ruled that SABERS, JJ., concur. WUEST federal parent, could claim the the custodial Fa exemptions for the children. income tax MILLER, C.J., in result without concurs an abuse of discretion ther claims this was writing. least have been awarded at and he should HENDERSON, J., part concurs exemptions. one of the part. dissents prece settled This issue is controlled HENDERSON, Earley Earley, (concurring in Dakota. Justice dent in South — (S.D.1992) denied, part). cert. part dissenting -, 121 L.Ed.2d 200 113 S.Ct. U.S. property division I concur on a reversal Larsen, (1992); Brandriet v. attorney fees. Be- and the award of trial Dathe, (S.D.1989); Sarver properly not take cause the trial court did Dryden ex rel. State 551-52 Mother’s unfitness as a into consideration n. 2 Dryden, 409 N.W.2d awarding respectfully parent, I dissent authority Trial courts do not have and, two unto her of these in dependency exemptions for federal award therefore, awarding agree cannot that, tax law mandates come taxes.3 Federal exemptions to dependant tax federal income here, exceptions applicable absent three mother. parent. exemption goes to the custodial trial court abused its appears It (1993). 152(e)(1) § 26 U.S.C. temporal, mental and because the discretion *7 authority to the trial court had no Where they placed be required that moral welfare exemptions to the non-custodial allocate tax Inter environment. In a stable and secure it parent, it did not abuse its discretion when (S.D.1987). A.D., 416 268 est N.W.2d of belonged to custo- exemptions the ruled both put, the mother They Simply not. were parent.4 dial envi provide a stable and secure could not in and out of been Id. She has ronment. PARTY EITHER V. WHETHER continued programs, but her alcohol abuse ATTOR- BE AWARDED SHOULD has failed. abuse shows treatment alcohol THIS APPEAL? NEY FEES FOR moth also failed to consider The trial court attempted suicide. depression and appel- motions for er’s Both submitted and brother volun fees, own mother attorney supported by itemized Mother’s late that the children unto the trial court performed. teered of costs and services statements father. Due Malcolm, “better off” with the 866 would be v. 365 N.W.2d Malcolm instability, mother had (S.D.1985). alcohol abuse and upon application our of to Based 25-7-6.10(3), from modify if deviation authority 4. Under SDCL the to the 3. Trial courts have exemptions by party, dependency requested which of is either distribution SDCL 25-7-6.2 pre-1985 by qualified instru- findings, allocated a upon entry specific were the trial court Earley, Earley 484 125 See v. N.W.2d ment. possesses parent the federal shall consider Larsen, (S.D.1992); v. 442 N.W.2d 455 Brandriet dependency exemption in determin- income tax Dathe, (S.D.1989); N.W.2d 548 Sarver v. 439 support ing from the child whether to deviate Dryden, Dryden N.W.2d 648 v. 409 guidelines. order, her custody Broth the two automobile accidents. witnessed three different mother, father, passed was the on the floor of their home. She testified that not out er facility also testified primary again in-patient caretaker. Brother admitted to a was Eve of was intoxicated on ca- mother Christmas for alcohol abuse and lost her treatment 1991; night, oath, she and when she drove tering job. Under she denied alcohol having endangered girls by them in the abuse, however, speaks con- this evidence mother was witness, automobile her. When A trary her denial. Michele to apparently primary custody, she Christensen, awarded testified the children would call Furthermore, unemployed. a Home was “could supper they because her and ask Study court under ordered Mommy up.” of a not wake Past actions (S.D. Williams, Williams promises louder than do parent speak 1988), father have recommended that S.D., 402 improve in the future. Matter of rejected. custody, study was physical but said permitted boyfriend to live Mother her Mommy passed was out from con alcohol girls, thus house with her and the two Mommy gets sumption. custody! These impressionable daughters exposing the two subjected type children should to this highly improper Although or- conduct. and abuse. Father met the bur conduct from hav- dered court to refrain demonstrating con den of that the mother’s an ing “unrelated man to be in the mother’s harmful effect on duct had a the children p.m. 8:00 between the hours of home (S.D. Isaak, under Isaak 278 N.W.2d 445 a.m., present,” are 10:00 when the children 1979). being an There abuse of discretion male lover admitted that he had aban- statute, under the best interests of the child his own residence and had been resid- doned 30-27-19, namely I would SDCL reverse. ing with the mother and minor children Lindley, Lindley v. beginning May, up until since (S.D.1987). Sympathy for a cannot be a base including the time of trial. He was judgment. correct civil Justice should be a drawing unemployment time of at the and, us, truth search for the before truth was personally trial and that he had testified ignored. charges. convicted of been two DUI Despite backdrop, this factual mother was custody girls. Expos

awarded of these two

ing relationship these con

trary spe to their “moral In this welfare.” opinion,

cial writer’s this award of

constitutes clear abuse discretion. (S.D. Anderson,

Anderson 1991). Matter of the ESTATE OF Jack employed steadily Father has been in the CHILTON, Parker Deceased. *8 job Battista-Turbak, years. for 14 same Dr. No. 18488. performed Study, recom- who Home custody that the physical mended father have Supreme Court of South Dakota. expert of the children. This indicated same Argued boy- April mother was untruthful about her 1994. living in friend the house. The Aug. Decided ignored the of Dr. El- also recommendation performed Unruh who psychological win ex-

aminations children.

Notwithstanding weighty evidence problem

that mother has a serious with alco- generally parent, unfit

hol abuse is an trial court physical awarded her girls. Some two months after said