*1 continuing jurisdic POSHEIM, Justice, trial court has tion in modify judg a divorce action to participating. ment concerning support and maintenance MILLER, J., of the children. SDCL 25-4-45. Blare v. member of the Court at the time this
Blare, (S.D.1981). N.W.2d Child action was submitted to the support payments adjusted can be even though they originally upon were based stipulation when the trial court in its dis
cretion determines that conditions have
changed. Jameson, Jameson (S.D.1981).*
We conclude that by reducing
abused its discretion the level support by seventy-five percent.
of child Certainly the return of Chad his father VOGT, Appellant, Plaintiff and is a relevant factor for the trial court’s must, however, consideration. It bal BILLION, John M.D. and needs, against anced John’s and husband P.C., ability and wife’s financial to meet those Appellees. Defendants and Hrdlicka, supra; needs. See Gross v. Gross, (S.D.1984); N.W.2d Barrett v. Barrett, (S.D.1981). Here, gross husband’s income is more than dou remarriage
ble that of wife. His pro has Sept. Considered on Briefs vided him with distinct financial benefits. spouse employed His new earning an amount in excess of that earned wife. income, living
Because of this expenses they evenly
are reduced since divide house expenses.
hold greater Husband has a far ability
financial to meet John’s needs than
does wife. He has the financial
capacity and pay means to an amount sub
stantially in per excess of month. In $50
deed, an examination of provides the record support
little evidence to a reduction of support
child to an amount less than $200
per month. requested attorney
Wife has fees in
her brief. Because she has not filed a
separate verified, motion and a itemized
statement of costs incurred or services ren request
dered is denied. Malcolm v.
Malcolm,
Reversed remanded.
All the Justices concur. * addition, support guidelines see the child schedule and be modified in accordance with the guidelines allowing and the factors deviation requiring showing change without 25-7-7, from the schedule in amended SDCL entry circumstances from the of the order.” July support effective 1986. “All orders for SDCL 25-7-7. prior July entered and in effect
636
Billion, MD and (appellees). P.C. We reverse and remand for a new trial.
It is unnecessary to set forth in detail the facts of this case other than to state it is a malpractice gave action. The trial court following instruction:
If physician brings patient care, a to his skill and knowledge, he is not liable to him damages resulting for from a bona- judgment may fide error of which he guilty. requires physician law any professional base decision he on study make skill and careful and con- sideration of the case. But when the depends decision judg- on an exercise of ment, requires law judgment be physician bonafide. A not an insurer of the correctness of his judgment, especially is in this true cases competent of doubt or where medical au- divided, thority is physician and the in question follows a course of treatment advocated a substantial number of competent physicians good standing in community. Appellant contends that given should not have this instruction nearly which is identical to the instruction given Behrens, in Shamburger v. (S.D.1986) in Magbuhat Kovarik, In 663, Shamburger, supra at this court stat- that, ed “... the use of such terms as ‘good judgment’ faith error in unduly con- negligence fuses the issues action.” Accord, Magbuhat, supra at each case this court held that such instructions given should no and remanded for a trial.
Appellee
contends that the
retroactively applied
decision should not be
court, however,
in this case. This
has al-
Jorgensen,
Falls,
L.
Steven
Sioux
ready
given
determined that it be
retroac-
plaintiff
appellant.
tive effect
Magbuhat.
as evidenced
Hoy
Carleton R.
and Rick W. Orr of
Davenport, Evans,
Smith,
Hurwitz &
Sioux
recognize
that “...
the Consti
Falls, for
appellees.
defendants and
prohibits
requires
tution neither
nor
retro
spective
Walker,
effect.” Linkletter v.
Judge.
1731, 1737,
381 U.S.
85 S.Ct.
Vogt (appellant),
601,
(1965);
seeks a new trial L.Ed.2d
State v. One 1966
defendants,
after a
Auto., Etc.,
favor of
(S.D.
verdict
John Pontiac
1978).
When retroactive
A. Yes.
ineq-
substantial
Appellant’s California counsel made no
results, justification exists
uitable
for hold- objection
at the time of the
At
ing the decision nonretroactive. Chevron
trial, appellant
to the admissibili-
Huson,
Oil Co. v.
U.S.
S.Ct.
ty of
objections,
these statements but the
(1971);
People o/S.H., 323 in Interest N.W.2d 851 ground unless the of the is might one which have been or obviated being Because this matter is remanded presented removed if at that time. ordinarily for a new trial we would not (B) irregularities Errors occurring and any address ap- further issues. Because at the oral examination in the manner pellant’s second contention involves the ad- taking deposition, of the in the of form missibility of certain evidence this court answers, questions the or in the oath will address it so that the trial court will affirmation, or inor the conduct of guidance have at retrial. parties, any and errors of kind which During discovery deposi- the course of obviated, removed, might be or cured Krissoff, tion was taken from Dr. William promptly presented, if are waived un- Truckee, orthopedic surgeon an from Cali- less seasonable thereto is deposition apparently fornia. After the made at the of the ended the off record comments were made. Appellees’ lawyer reopened depo- then given by The answer the doctor to sition question: and asked this appellees’ lawyer’s question was ob
Q. Krissoff, Dr. completed jectionable after we legal because it stated a conclu
deposition you made the statement expressed opinion sion and an which em you that —to the effect—and want by braces the ultimate issue to be decided say again? it Although the trier of fact. Rule 704 of the Federal Rules of Evidence allows injury A. I don’t think nerve though evidence even it embraces an ulti surgery by course of definition by mate issue to be decided the trier of malpractice. fact, Dakota has South never that Then there was further examination 19-15-4; Logue, rule. SDCL State appellant’s counsel as follows: (S.D.1985). However, objec no Q. Krissoff, you Dr. when made that tion made the time of was of statement, which was sort of said deposition as should have been done you at reporter the time the was (cid:127) 15-6-32(d)(3)(A) pursuant (B). to SDCL and putting away, you her machine suggesting general appellant’s It should also noted scope that in the surgery, damage of California that nerve is one counsel not failed to go along subsequent question of the risks that sur- but asked a with which gery? language alleged similar contained also Appellant objectionable. cannot now be complain. questions Uydene these heard to Both of Roger M. AMDAHL and D. Am dahl, and answers should be admissible as Guardians Ad Litem for Darin Amdahl, Minor, retrial this matter. Ap D. Plaintiffs and pellants, We reverse and remand. SARGES, Jennifer R. Defendant HENDERSON, JJ., and MORGAN Appellee. FOSHEIM, concur. WUEST, C.J., concurs part.
dissents Considered on Briefs Nov. Judge, sitting *4 J., SABERS, disqualified. MILLER, of the Court at the time this
member
action was submitted
WUEST, (concurring Chief Justice dissenting part). concur, except my appellant
I objection question her
did not waive
concerning malpractice because counsel
did not make the SDCL 15-6-32 sections
(d)(3)(A) (d)(3)(B) designed pre- laying trap by failing
vent counsel from opponent easily when his could objectionable
have corrected the matter raising
and then the matter at trial when opportunity to correct question
available. answer could been corrected
never have time of majority As the observes,
opinion correctly South Dakota
has not the ultimate issue rule. at trial.
would sustain