*1 276 Thompson, did I root out which SDCL 19-16-38 and
Eleven authorities
State v.
expert
295,
(S.D.1985)
stamp
approval
relating
of
of
379
decries a
testimony
credibility. McCafferty.
reliability
respectful-
of statements.
I
596, pointed
I
out that
McCafferty,
ly suggest
In
that these out of court state-
permit
some courts refuse to
behavioral ments are not
thereunder. E.U.
admissible
opinions on credi-
experts
science
to offer
See,
not a
witness.
was
reliable
State v.
bility
sexually abused children as a
(S.D.1984)
McCafferty,
testified at trial that had never abused allegations against her. Her these two boys men included that three had to hold her raped. down when she was There was no corroboration of this horrible revelation. counseling Ventralla,
A expert, one Mark psychological testified that based interviewing examination and his with her WHALEN, Appellant, Michael J. gаve frequent that she contradictory an- testified, questions. swers to He at this WHALEN, Appellee. Dianne M. trial, gave thought that she no to the con- sequences she, from time to what Nos. 17645. says. Supreme Court of South Dakota. Faced credibility factor of E.U.’s testimony, position State shifted its to es- April Considered on Briefs 1992. alleged “expert tablish the crimes with tes- Aug. Decided 1992. timony.” sought State to bolster her sto- Rehearing Sept. Denied all, ries. alleged After it faced victim’s retractions, details, lack of and inconsisten-
cies. preceding’ the context of the para- graрhs, the reader’s attention is directed to
Whalen, pro
Michael'J. se. Burd, Falls, appellee.
Lee R. Sioux WUEST, Justice. (Husband) appeals
Michael Whalen from affirming the circuit court’s Order the ref- eree’s and Recommendation which dismissed Husband’s Petition Modifica- Support. tion of Husband raises the Child following three issues: IA. the extended visitation of Whether support obligor’s a child children contemplated in the divorce decree change in constitutes a circum- sufficient to a mod- stances ification of the child obli- gation. obligor
IB. Whether a child must of circum- show stances in order to his child support obligation by reason of payments pursuant made to the di- vorce decree.
II. Whether the referee and the circuit discretion im- court abused their posing transcript costs Hus- band. review, (Wife)
By Dianne notice of Whalen argues the referee and circuit court should her have awarded fees. circuit III. Whether the referee and the court abused their discretion failing to consider all factors before denying attor- wife’s motion for summer and SDCL 5-7-6.14 allowed ney’s months; fees. an abatement those
FACTS (B) Payment month $600.00 alimo- ny parties approximately was income to and a were married Wife deduc- tion to years divorcing. They fourteen had Husband SDCL 25-7- before 25-7-6.7(6). 6.6 and three minor children. On March granted the circuit court divorce to Wife. petition hearing From the the referee 4, 1990, May circuit On court entered a specifically found monthly supplemental stipulation decree based on a gross $2,991.17 and, income was after al- Husband, prepared by attorney, (not including lowable deductions a deduc- *4 custody awarded of the children to Wife alimony), tion for his net monthly income with reasonable and liberal visitation to $2,200.97. The referee further deter- rights Husband. Visitation included an average presumed mined Wife’s net month- eight-week period during summer visitation (exclusive ly income alimony) July. provided June also Husband parties stipulated The $631.53. Husband pay in the amount “of $800.00 had the minor children for more than twen- per minority par- month the ty-nine days. consecutive The referee con- ties’ children as set forth at SDCL 25-5- cluded she jurisdiction did not have to mod- Support 18.1 and the Child Guidelines of ify support obligation Husband’s child be- supple- the State of South Dakota.” The cause there changes were no in circum- required mental pay decree Husband to all stancеs supplemental since the decree was expenses for medical and dental care for entered. The referee denied Wife’s re- addition, the children. pro- the decree quest for attorney fees but awarded Wife pay vided for per Husband to $600.00 preparing the cost of hearing the tran- spousal support month as years. for seven script. Finally, required Husband was pay to The referee entered her and Rec- payments month on the auto- $250.00 ommendation. Pursuant 25-7A- mobile Wife was awarded. When the auto- 22, the circuit court held a on Hus- for, рaid payments
mobile was the were to objections. object band’s Husband did not years continue for the balance of the seven referee, to the facts found but ob- “alimony.” jected to her conclusions of law. He ob- supplemental jected
Under the decree the particularly Hus- to the referee’s conclu- (50%) band was awarded jurisdiction his interest sion that she was without office, debt; subject law parties’ modify obligation because home, debt; subject vehicles, “change to the and his no of circumstances” had been subject to the debt. Husband hаd a small specifically, argued shown. More Husband amount of furniture. by failing interpret Wife received the the referee erred parties’ goods, bulk of the Support household fur- “Child Guidelines of the State of furniture, nishings, and her 1988 automo- South Dakota” as used the supplemental bile, coat, mink jewelry, and one-half of decree to include the abatement statute Husband’s IRA. No debt adjustment alimony paid. was allocated to and an income for remaining Wife. Husband assumed the Finally, challenged authority Husband balance of Wife’s educational loans and referee to assess the costs kept membership his hunting hearing transcript against club. him. hearing, argued: At the Husband further PROCEDURAL FACTS (1) impliedly The abatement statute confers Modification, Petition dat- jurisdiction; support provi- the child 1, 1990, ed June change claimed a of cir- supplemental vague. sion decree was following cumstances on the basis: The circuit court affirmed the referee’s (A) The living jurisdiction minor children would conclusion that she did not have obligation
with him for modify two months of each to the child un- “change der the of circumstances” ratio-
nale. The circuit court denied Wife’s re- (6) Payments made on other quest attorney’s fees. and maintenance orders. points Husband out the last two statutes application
This case involves require do not of circumstances. interpretation of Dakota’s re South argues Husband last statutes, including two statutes are vised child contradictory of circum- power modify of the court and referee interprets stance statute and them to mean 25-7A-22 and divorce decree under SDCL - no 26-7-6.6, -6.7, circumstances is the effects of SDCL supplemental divorce decree. of a statute is a 6.14. constructiоn argues only way He to reconcile the question Meyerink of law. v. Northwest statutes is interpreting the latter two Co., ern Public Service containing statutes as “per their own se” 183 n. 5 In re Petition Fa changes in circumstances. Brands, disagree. We Inc., mous (S.D.1984). The referee’s conclusions of suggests, As Husband we must fully appeal. law reviewable Janke according intent, construe statutes to their Janke, and intent must be determined from the authority This case also involves the *5 whole, statutes as a well as as enactments impose propriety referees to costs and the relating subject. to same Border awarding attorney’s fees. These mat Revenue, Paving Dept. States v. 437 ters are clear reviewed a abuse of dis 872, (S.D.1989); Appeal N.W.2d 874 A.T. Shoop cretion. Shoop, See v. 460 N.W.2d 24, Systems, & T. 405 N.W.2d 27 Info. 721, (S.D.1990). 726 (S.D.1987); 183; 391 Meyerink, N.W.2d at Tobin, 757,
Simpson v. 367 N.W.2d 763 (S.D.1985). Moreover, I. CHANGE OF CIRCUMSTANCES the intent of a stat REQUIREMENT language ute must be derived from its by giving language plain, ordinary its 25-7A-22 SDCL furnishes the rules for popular meaning. Matter Estate modifying support obligation. a child 243, (S.D.1990); Pejsa, 459 N.W.2d 246 provides in pertinent part: 123, Ventling, 452 State v. N.W.2d 125 support] obligor, obligee child or [A (S.D.1990). This rule holds true unless the assignee may file a ... to legislation ambiguous is or its literаl mean support or increase decrease child based ing Brands, is unreasonable. Famous 347 change on a The circumstances. ... 885; T., Appeal at N.W.2d A.T. & 405 matter shall be set for before a 27-28; Christopherson N.W.2d at v. court, appointed by pur- referee ... 642, Reeves, 634, 1015, 44 S.D. 184 N.W. statute, suant to and after due notice to (1992). 1017 2-14-1 See also SDCL parties.... all The referee shall make conflict, Finally, appear where statutes court, recommending his responsibility give it is our reasonable monthly support the amount of the obli- both, possible, give construction to and if gation parent or for health insur- consideration, provisions effect to all coverage. (Emphasis ance supplied). construing together them to make them provide SDCL 25-7-6.1 thru -6.17 child Meyerink, “harmonious and workable.” support guidelines which are used to estab- 184; Janklow, 391 N.W.2d at Karlen v. support obligations. lish child SDCL 25-7- 322, (S.D.1983); Hartpence 339 N.W.2d 323 provides, 6.14 “An portion abatement of a 292, Forestry Camp, v. Youth support may of the child be ordered if a (S.D.1982). 295 spends child more than twenty-nine consec- days parent.” utive with the noncustodial consistently required We have a provides part: SDCL 25-7-6.7 pаrty seeking sup modification of a child monthly gross port Deductions from change income order to demonstrate a in cir occurring original shall be allowed as follows: cumstances since the
281
guidelines
setting
child
was entered. Johnson
schedule and
order
648,
(S.D.
Johnson,
650
obligations.
v.
1986 S.D. Laws ch.
685,
1991);
Hoy,
218,
25-7-7,
Hoy
existed,
v.
N.W.2d
11. SDCL
as it then
§
(S.D.1986);
Larsgaard
ex rel.
v.
proviso
State
included a
orders for
“[a]ll
381,
(S.D.
Larsgaard, 298 N.W.2d
prior
entered and
to July
effect
1980).1
though
origi-
true even
This is
may be modified in accordance
1.
nal
order
based on a
guidelines
requiring
with
without
stipulation
par-
into
between
showing
in circumstаnces
Brunick, 405
ties.
N.W.2d
Brunick
from the entry
(Empha-
of the order.” Id.
v. Jameson
Jameson
added).
proviso clearly
sis
This
indicated
(Jameson
(S.D.
II),
legislature’s
familiarity
1981);
Blare, 302
Blare v.
change in
requirement
circumstances
con-
court.
strued
SDCL 25-7-7 was
repealed
Laws,
in 1989. 1989 S.D.
ch.
change in
circumstances re
proviso
19. A very
currently
similar
is
§
quirement
adopted prior
enact
codified at SDCL 25-7-6.13 which was en-
ment of
25-7A-22 in 1986. SDCL
SDCL
contemporaneously
acted
with
25-7-
SDCL
provides:
25-4-45
6.6, -6.7,
Laws,
6.14.3
S.D.
ch.
may,
an action for divorce the court
Indeed,
most of what is now codified
judgment,
such
give
before or after
di-
25-7-6.1,
formerly
аt
-6.17 was
care,
custody,
rection for
and edu-
Thus,
contained within SDCL 25-7-7.
we
marriage
cation of the children of the
presume
must
when the
reen-
may
proper,
seem
acted the
guidelines,
new child
vacate or
the same.
intended to retain the
in circum-
statute,
required
Under this
this court has
requirement
stances
for modification. See
justify
of circumstances
a child
Chamberlain,
Campbell City
78 S.D.
*6
See,
e.g.,
modification.
Jameson
245,
(1960); Stormo,
100
707
N.W.2d
75
II, 306
at 242.
N.W.2d
This statute sur-
588,
834;
70 N.W.2d at
S.D.
v.
Cabalan
legislature’s
vived the
revision of
extensive
531,
Terry,
(1951).
73 S.D.
and
in
SDCL ch. 25-7
ch. 25-7A
1989.
statute,
Where a
which has been construed
A. Abatement.
court,
substantially
this
is reenacted in
terms,
legislature
pre-
the same
is
indicates,
As the
above
discussion
judi-
sumed to
been
have
familiar with
fully
“change
aware of
adopted
cial construction and to have
it as
requirement
in circumstances”
when
re-
City
of the law. Stormo v.
Dell
support guidelines
enacted the child
in
582, 588,
831,
Rapids, 75 S.D.
Nonetheless,
provision
1989.
it included a
834,
(1955).2
can obtain a
of an
tax
experts
modification.
vice
stipulation
order
obtain a reduction of his child into a harsh divorce
which left
obligation,
required
little for
Husband
himself.
Id.
S.D. at
changed
There,
show
had
circumstances
the N.W.2d at 7.
we refused to con-
entry
supplemental
between
subsequent
strue
husband’s
realization
judgment
petition
and his
for
he could
carry
modification.
that
out the terms of the
stipulation as
change justifying
a modifi-
Here, Husband,
attorney,
volun
support.
here,
cation
Id. Likewise
tarily negotiated for and entered into an
say
cannot
we
there has been a
agreement regarding
support.
circumstances
to support
sufficient
a modi-
very
agreement
same
contained
alimo
fication.
was incumbent Husband to
payments
schedule,
ny
and the visitation
protect himself at the' time he entered into
(which
including the
visitation
extended
stipulation.
himself).
portion
was drafted
Husband
Husband testified
cross-examina
argues part
Husband further
tion,
factors,
statutory
“as a result of
stipulation
(Hus
which reads “Plaintiff
I
I
considered when
entered into
band)
(Wife)
pay
will
sup
defendant
that,
agreement,
fact
yes,
that
and the
I’ve
port
the minor children ... $800
my obligation,
met
I’m
entitled to a mоnth ... as set forth at SDCL 25-5-18.1
testified,
further
modification.” Husband
Support
and the Child
Guidelines
“I had looked at
before
the law
that.
I State
South Dakota"
should be inter
understand that I
be entitled
would
to an preted to include
reductions
accordance
why I’m
and that’s
here to
abatement
(definition
gross
with
25-7-6.6
...
I
day.
took into consideration the law income)
25-7-6.7(6) (deductions
& SDCL
time,
right
in existence at
to an
orders)
for other
and maintenance
right
and the
to a
abatement
decrease as a
(abatement
and SDCL
25-7-6.14
ex
alimony payments
result
...
made.”
visitation).
tended
A
for modifica
*8
There is no
income
proper
achieving
indication the
level of
tion is not a
method of
party
changed
entry
interpretation
has
since
either
of the
least absent
—at
provides:
expenses,
5. SDCL 25-7-6.6
to which household
automobile ex-
penses,
par-
related items
deductible or
business, profession,
Gross income from a
tially
purposes.
tax
deductible for income
In
estates,
rentals,
farming,
royalties,
trusts or oth-
depreciation, may
the event a court
it
disallows
sources,
gain,
profits
er
are the net
or
or net
expenditures
capital
consider
any
losses shown on
schedules
or all
filed as
parent’s
enhance the
income for
current
parents’
part of the
federal income tax returns
support purposes.
any
asor
federal income tax returns for
provides
pertinent part:
SDCL
in
associated,
25-7-6.7
except
business with which he is
monthly gross
Deductions
income
from
shall
may
court
allow disallow
or
deductions
be allowed as
purposes
follows:
for federal income taxation
which do
cash,
require
expenditure
including,
to,
(6) Payments
depreciation
depletion
other
but not limited
made оn
allowances,
may
consider the
further
extent
maintenance orders.
showing
in circumstances. The referee and
of a clear abuse of that discretion.
refusing
Shoop,
the circuit court were correct in
(S.D.1991);
Sambeek,
Pribbenow v. Van
(S.D.1988).
II. PROPRIETY OP AWARDING
discretion,
exercising
In
its
a court must
TRANSCRIPT COSTS
First,
step procedure.
follow a two
The third issue raised Husband
court must determine what constitutes a
may properly
is whether a referee
tax the
Second,
attorney
reasonable
fee.
producing hearing transcript
cost
pоrtion
court must determine
what
party.
imposed
The referee
the cost of the
paid by
opposing
that fee should be
transcript
argues
on Husband. Husband
party.
step requires
The second
a con-
authority
the referee is without such
based
worth,
parties’
sideration of ‘the
relative
on the fact
15-17-5 authorizes
SDCL
income, liquidity,
par-
and whether either
costs,
impose
courts to
such
but does not
ty unreasonably
spent
increased the time
However,
specifically indicate referees.
on the case.
given
specific language
set out
Shoop,
(citing
As appellate attorney Wife allow fees. The motion is ance of accompanied by fees domestic relations an itemized statement of cases rests in the legal sound discretion of the costs incurred and services rendered Malcolm, court and will not be reversed required by absent a Malcolm *9 circumstances, spous- any change 6. It is doubtful the intended a demonstrate we support al order contained within the de- same need reach this issue. Nor do we address not support designated crеe as the child order be an alimony payments the issue of whether consti- "other and maintenance order[ ]" with- gross meaning tute income within the of SDCL However, meaning in the of SDCL 25-7-6.7. 25-7-6.6. holding because of our that Husband failed to totally ignored. Monthly N.W.2d same was child analysis two-part applies adjusted. as set forth should have been In South Da- Strickland, 840; kota, at above. the obligor’s children’s needs and the Johnson, ability N.W.2d Based on pay, at 652. must be considered deter- $1,500.00 factors, mining these we award Wife reasonable amount sup- of child appellate port. fees. Bruning Jeffries, v. (S.D.1988). Further, SDCL 25-7-6.6 de- hereby We affirm case # the cir- “gross fines income” include “... cuit affirming court’s order the referee’s profits net gains, or net losses shown on report dismissing peti- and the husband’s any or all schedules filed support.
tion for modification child We parents’ financial income tax returns...” reverse and remand ease # the deni- (emphasis mine). supplied attorney’s al of wife’s fees for modifi- hearing cation and the before the circuit court on husband’s objections III.
referee’s recommendation. This case be should reversed and re However, manded to the circuit court. I MILLER, C.J., and SABERS affirm would the circuit award court’s JJ., AMUNDSON, concur. transcript costs has because Referee HENDERSON, J., dissents. authority to payment recommend the same to the circuit court. Such an amount HENDERSON, (dissenting). Justice great jeopardize is so as to Michael 15-6-53(a) (1992 security. Whalen’s I. Supp.). Further, concerning an award of Child could not be established at attorney’s level, at the fees trial court I set “$800.00 ... as forth ... at the Guide- would affirm a denial thereof based guidelines lines” because established greater net income of the than wife per $680.00 month without husband proсeeding. after the divorce Un benefit of of alimony consideration Pochop Pochop, der payments by appears Michael Whalen. (S.D.1975), there no abuse of discre that, law, original as a matter of tion, light particularly liquidity amount of $800.00 entered error. parties’ Regarding appel assets. Janke, Under Janke attorney’s award, lant fees under the theo (S.D.1991), Court should ry appellee (see, that appeal loses this objected consider Michael Whalen Hulm, (S.D. Hulm v. Law; that, Conclusion Referee’s 1992) J., (Henderson, dissenting)), no award therefore, exists patent there error of (1) because should law. payment entered the trial court was (inceptually) clearly alimony error II. payments should have been into con taken Disallowing alimony deduction is an sideration, above, as referred to and were Accordingly, error of law. falls it not. legal Janke, supra. thesis Such an Whalen, interpretation restricts Michael fa-
ther, ap- and the three children live on proximately month ex- $533.00 visitation; thus, father,
tended it hurts eco- nomically, year. balance of the 25-7-6.6, See, SDCL 25-7-6.7 and Internal 215(a). Alimony paid Revenue Code § Michael should Whalen have created a de-
duction did rulings but it not under the Rather, Judge. the Referee and Circuit