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6808833 | Tyler Neil ERICKSON, Petitioner, v. Austin Richard EARLEY, Respondent and Appellant | Erickson v. Earley | 2016-04-20 | No. 27590 | 631 | 635 | 878 N.W.2d 631 | 878 | North Western Reporter 2d | South Dakota Supreme Court | South Dakota | 2021-08-10T17:20:21.136678+00:00 | CAP | ' [¶ 20.] GILBERTSON, Chief Justice, and ZINTER, SEVERSON, and KERN, Justices, concur. | Tyler Neil ERICKSON, Petitioner, v. Austin Richard EARLEY, Respondent and Appellant. | 2016 S.D. 37
Tyler Neil ERICKSON, Petitioner, v. Austin Richard EARLEY, Respondent and Appellant.
No. 27590.
Supreme Court of South Dakota.
Considered on Briefs March 21, 2016.
Decided April 20, 2016.
Tyler Neil Erickson, Pro se petitioner.
Reed T. Mahlke of Helsper, McCarty, Mahlke & Kleinjan, P.C., Brookings, South Dakota, Attorneys for respondent and appellant. | 1847 | 11541 | WILBUR, Justice.
[¶ 1.] Austin Earley appeals from a circuit court order granting Tyler Erickson a permanent order of protection. Earley contends that the circuit court abused its discretion by granting the protection order and that the protection order violates his First Amendment right to free speech. We affirm.
Facts and Procedural History
[¶ 2.] Earley and Erickson are both hunters. The dispute between the two, which ultimately resulted in this protection order, is' primarily over hunting land. Both men are in their mid-thirties.
[¶ 3.] Erickson secured permission from Jim and David Grommersch to hunt on their property. In February of 2015, Erickson went to the Grómmersches’ property to check one of his trad cameras. On his way to the property, Erickson observed Earley’s vehicle traveling in the opposite direction. When Erickson arrived on the property he parked his vehicle, but before he got out, he saw Earley’s vehicle approaching him through a field at a high rate of speed.. Earley pulled along side of Eiickson’s vehicle and began shouting obscenities at Erickson. Among other things, Earley told Erickson, “We are coming for you. You don’t have permission to be on this property.” Earley eventually told Erickson to “get all your shit and get out.” Erickson was afraid to get out of his vehicle. However, when Earley backed his vehicle away approximately 50 yards, Erickson exited his vehicle and removed his trail camera. . Earley watched from his vehicle. Earley followed Erickson to his second trail camera and watched as Erickson removed the second trail camera. Earley followed Erickson off the Grommersches’ property for a little over one mile and then turned around.
[¶4.] Immediately following the incident, Erickson contacted the. Grommersch-es. The Grommersches told Erickson that they did not know Earley and that Earley did not have permission to be on the Grommersches’ land. At the Grom-merschqs’ request, Erickson contacted law enforcement about the incident. .. .
[¶ 5.] A similar incident happened in July of 2015. Erickson parked on a public gravel road approximately one mile west of the Grommersches’ property “to look over the land” for deer with his binoculars. Once again, Earley pulled alongside of Erickson’s vehicle and began yelling obscenities at Erickson. Among other things, Earley told Erickson, “We are coming for you. You better watch your ass this fall. There is [sic] five of us coming for you.” Earley “squealed his tires and pulled away, yelling and screaming'and cursing.” Erickson did not report the incident.
[¶ 6.] A month later, in August of 2015, the Grommersches directed the sheriff to serve a no trespass order on Earley regarding théir land. On the same day he was served, Earley called Erickson and said, “Get your shit out of Gas ‘N’ Mor, and you have one week and don’t ever step foot in there again.” Before hanging up the phone, Earley stated, “There are six of us, and we are coming for you.” Erickson contacted law enforcement about the three incidents and filed a petition for a protection order. •
[¶ 7.] At the hearing for the protection order, Erickson testified about the three incidents. In addition, Erickson was concerned that Earley had somehow learned of other hunting áreas Erickson used and that Earley contacted those landowners and “bad-mouthed” Erickson. David Grommersch testified that he did not know Earley, that Earley did not have permission to hunt on his land, and that he had Earley served with a no trespass order because Earley placed hay bales, mineral blocks, antler traps, and other items on the Grommersches’ property. Earley testified on his own behalf. Earley admitted that he told Erickson, on multiple occasions, “[t]here is [sic] four or' five of us coming for you,” but denied that these were threats. - Earley framed the incidents as “two grówn men having a politically incorrect debate.” The circuit court found Erickson’s version of events credible and determined that Earley’s actions constituted stalking. The circuit court entered findings of fact and conclusions of law, and a protection order against Earley. This appeal followed.
Standard of Review
[¶ 8.] The standard of review for the grant of a .protection order is a two-step process. First, the Court reviews the circuit court’s. findings of fact under the clearly erroneous standard. Shroyer v. Fanning, 2010 S.D. 22, ¶6, 780 N.W.2d 467, 469. The circuit court’s findings of fact will not be set aside unless “we are left with a ‘definite and firm conviction that a mistake has been made.’ ” Id. (quoting White v. Bain, 2008 S.D. 52, ¶ 8, 752 N.W.2d 203, 206). After review of the circuit court’s findings of fact, the Court determines whether the circuit court “abused its discretion in granting or denying the protection order.” Id. “An abuse of discretion ‘is a fundamental error of judgment, a choice outside the range of permissible choices, a decision, which, on full consideration, is arbitrary and unreasonable.’” Blair-Arch v. Arch, 2014 S.D. 94, ¶10, 857 N.W.2d 874, 877 (quoting Gartner v. Temple, 2014 S.D. 74, ¶ 7, 855 N.W.2d 846, 850).
Analysis
[¶9,] 1. Whether the circuit court abused its discretion by granting the protection order.
[¶ 10.] A court may enter a protection order if it “finds by a preponderance of the evidence that stalking has taken place[.]” SDCL 22-19A-11. Stalking occurs when a person “(1) [w]illfully, maliciously, and repeatedly follow[s] or harasses] another person; (2) [m]ake[s] a credible threat to another person with the intent to place that person in reasonable fear of death or great bodily injury; or (3) [w]illfully, maliciously, and repeatedly harasses] another person by means of any verbal, electronic, digital media, mechanical, telegraphic, or written communication.” SDCL 22-19A-1. The circuit court found that Earley both harassed and made credible threats to Erickson.
[¶ 11.] Earley contends that his behavior did not rise to the level of harassment because the three incidents did not constitute a “course of conduct” and because his behavior was not “malicious.” “[H]arasses means a knowing and willful course of conduct directed at a specific person which seriously alarms, annoys, or harasses the person, and which serves no legitimate purpose.” SDCL 22-19A-4. A “course of conduct” is “a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose.” SDCL 22-19A-5. “Maliciously” means “a wish to intentionally vex, annoy, or injure another person[.]” SDCL 22-l-2(l)(a).
[¶ 12.] Initially, Earley argues that there were only two incidents because Earley had a legitimate purpose to contact Erickson the last time — to tell Erickson to remove his possessions from the Gas ‘N’ Mor. However, during this conversation, Earley also told Erickson, “There are six of us, and we are coming for you.” This statement did not serve a legitimate purpose. Accordingly, there were three incidents. This Court has previously determined that three incidents constitute a “course of conduct.” See Schaefer ex rel. S.S. v. Liechti, 2006 S.D. 19, ¶ 14, 711 N.W.2d 257, 262.
[¶ 13.] As to whether Earley acted maliciously, the circuit court could reasonably infer from the circumstances that Earley intended to “vex, annoy, or injure” Erickson. See Huether v. Mihm Transp. Co., 2014 S.D. 93, ¶ 15, 857 N.W.2d 854, 860 (providing the Court “accept[s] all evidence favorable to the verdict, and reasonable inferences therefrom, without weighing credibility or resolving conflicts,”). During each incident Earley sought Erickson out, either by pulling alongside his parked vehicle or calling him at his place of business. When Earley made contact with Erickson he shouted a string of profanities at him. Each time, Earley also insinuated that a group of people were “coming for” Erickson. It cannot be said that the circuit court’s inference that Ear-ley acted maliciously was unreasonable. See Schaefer, 2006 S.D. 19, ¶17, 711 N.W.2d at 263 (circuit court could have found malicious intent based on respondent’s behavior).
[¶ 14.] Earley also maintains that the threats he made to Erickson were not credible. Because the circuit court did not abuse its discretion by granting the protection order on the grounds of harassment, this -issue is moot. See State v. Pollman, 1997 S.D. 36, n. 1, 662 N.W.2d 105 (“In 1993, the Legislature amended SDCL 22-19A-1 substituting the word ‘or’ for ‘and’ between the ‘harasses’ and the ‘credible threat’ clauses, thus-making the elements of the offense disjunctive.”).
[¶ 15.] 2. Whether the protection order violated Earley’s First Amendment right to free speech.
[¶16.] Earley maintains that the protection order violates his First Amendment right to free, speech because his speech was not tantamount to “true threats” or “fighting words.” While Ear-ley correctly identifies that the Supreme Court of the United States has determined that “true threats” and “fighting words” are unprotected speech, he fails to recognize that this'Court has “previously stated freedom of expression does not include threatening or harassing conduct[.]” State v. Asmussen, 2003 S.D. 102, ¶ 9, 668 N.W.2d 725, 731; see also State v. Springer-Ertl, 2000 S.D. 56, ¶ 17, 610 N.W.2d 768, 773 (“Freedom of expression ... is not absolute.”) (citing Frohwerk v. United States, 249 U.S. 204, 206, 39 S.Ct. 249, 250, 63 L.Ed. 561, 564 (1919) (freedom of expression “was never meant ‘to give immunity for every possible use of language’ ”); State v. Hauge, 1996 S.D. 48, ¶ 10, 547 N.W.2d 173, 176 (“One is not free ... to send threatening or harassing letters.”); State v. Crelly, 313 N.W.2d 455, 457 (S.D.1981) (No one has “the right to make obscene telephone calls.”)).
[¶ 17.] “The legislature has recognized that stalking is a serious -concern of society.” Asmussen, 2003 S.D. 102, ¶9, 668 N.W.2d at 731. “The legislature, therefore, has a legitimate interest in protecting those who are harassed and placed in serious fear for their safety.” Id. SDCL 22-19A-1 prohibits stalking. A court may enter a protection order if it “finds by a preponderance of the evidence that stalking has taken placet.]” SDCL 22-19A-11. In this case, the circuit court concluded that Earley’s actions constituted stalking— more specifically the circuit court correctly concluded that Earley’s actions, including his speech, was harassment. As this Court has previously held, “freedom of expression does not include threatening or harassing conduct[.]” Asmussen, 2003 S.D. 102, ¶ 9, 668 N.W.2d at 731.
Conclusion
[¶ 18.] The circuit court did not abuse its discretion by granting the' protection order because Earley’s actions constituted harassment. The protection order does not violate Earley’s First Amendment right to free speech because “freedom of expression does not include threatening or harassing conduct[.]” Id.
[¶ 19.] Affirmed.
' [¶ 20.] GILBERTSON, Chief Justice, and ZINTER, SEVERSON, and KERN, Justices, concur.
. Gas 'N' Mor is a local gas station owned by . Earley’s father. Erickson owns a taxidermy business and had mounts, flyers, and business cards displayed in the gas station. |
10673161 | The PEOPLE of the State of South Dakota, In the Interest of S.L.H., a Minor Child and Concerning F.H.O. and P.H. | People ex rel. S.L.H. | 1983-12-21 | No. 14095 | 672 | 681 | 342 N.W.2d 672 | 342 | North Western Reporter 2d | South Dakota Supreme Court | South Dakota | 2021-08-10T17:19:40.649466+00:00 | CAP | FOSHEIM, C.J., and MORGAN, J., concur. | The PEOPLE of the State of South Dakota, In the Interest of S.L.H., a Minor Child and Concerning F.H.O. and P.H. | The PEOPLE of the State of South Dakota, In the Interest of S.L.H., a Minor Child and Concerning F.H.O. and P.H.
No. 14095.
Supreme Court of South Dakota.
Argued Sept. 14, 1983.
Decided Dec. 21, 1983.
Rehearing Denied Jan. 31, 1984.
Roberta Jean Earley, Spearfish, for appellant F.H.O.
William E. Anderson, Belle Fourche, for appellee S.L.H.
Thomas E. Brady, Spearfish, for appellee P.H.
Janice Godtland, Asst. Atty. Gen., Pierre, for appellee Dept, of Social Services; Mark V. Meierhenry, Atty. Gen., Pierre, on the brief. | 5221 | 31975 | WOLLMAN, Justice
This is an appeal from an order of adjudication of dependency and neglect and a decree of disposition terminating appellant-mother’s parental rights. The circuit court entered the order and decree subsequent to our remanding the case with instructions to conform to the “clear and convincing” evi-dentiary standard required by Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). See In re S.H., 323 N.W.2d 851 (S.D.1982). We affirm in part and reverse and remand in part.
S.L.H. was born September 14, 1976. F.O., his mother, and P.H., his father, were separated prior to S.L.H.’s birth and divorced in 1977. Prior to the commencement of the dependency and neglect action in 1980, P.H. had seen S.L.H. about four times and had never provided financial support for the child.
In February of 1978, Department of Social Services (Department) received information that S.L.H.’s mother had left S.L.H., then seventeen months old, alone in their apartment. The social worker who conducted the investigation found that the mother had made arrangements for a babysitter who had turned out to be unreliable and that S.L.H. was alone and within reach of an oil stove that had an open flame. Department had contact with S.L.H. and his mother later that month when the mother had been evicted from her apartment and was out of money, food stamps, and diapers for S.L.H. S.L.H. was without socks, was dirty, and had impetigo. A doctor later diagnosed S.L.H. as being developmentally delayed and also referred S.L.H. to an ophthalmologist. Department helped the mother find another apartment and the mother agreed to place S.L.H. in foster care. In approximately ten days, S.L.H. was returned to his mother after she had cleaned her apartment and their clothes and had agreed to allow Department to be protective payee for ADC credit.
In March of 1978, Department received an anonymous and unverified report that S.L.H. was left alone. Upon investigating the situation, the social worker found S.L. H.’s mother in the apartment and apparently immobile because of an infected cut on her foot. The social worker also found that the mother was out of food stamps and that the apartment was dirty and disorganized. The mother informed the social worker that she was unable to put up S.L. H.’s crib and that she had been making a bed for him in the bathtub.
The mother had to be hospitalized for her foot infection and again agreed to place S.L.H. in foster care. This foster care placement lasted for six to eight months. For part of this time the mother was also placed in the foster home so as to acquire some advice on parenting. Subsequent to her leaving the foster home and prior to S.L.H. being returned to her, the mother had given birth to a child, which she gave up for adoption.
At the time S.L.H. was returned from foster care, the mother had remarried and was living with her husband, an employee at the Homestake Mine, and his two children. The social worker felt that the home situation was improving, and for approximately one year after S.L.H.’s return there were no problems requiring Department intervention beyond occasional home visits by the social worker.
In October of 1979, Department investigated S.L.H.’s home situation after being informed of an accident in which S.L.H.’s eleven-year-old stepsister had shot herself in the chest with a loaded gun that was kept in the parents’ bedroom. The parents were not at home and the stepsister was babysitting S.L.H. and his stepbrother at the time of the shooting incident. The gun, which was loaded with buckshot, was kept in a holster about three feet from the floor, and the social worker thought it was conceivable that S.L.H. could have reached the weapon. In December of 1979, the social worker investigated the home after being informed of bruises on S.L.H.’s face. The social worker found that the mother was not home at the time S.L.H. was injured, and that S.L.H. had fallen down the basement stairs while he was being taken care of by the eleven-year-old stepsister. Prior to this fall, the stepfather had installed an additional rail for S.L.H. to use on the stairs and family members had supervised his going down the stairs. The social worker requested that the mother get a gate for the basement doorway, which she did.
In May of 1980, Department took custody of S.L.H. and placed him in a foster home. The primary reason for removing the child from the home was the mother’s alleged refusal to allow a computerized axial tomography (CAT) scan examination of S.L.H. Other reasons given for the removal included reports of improper supervision in the home, observations that S.L.H. was dirty and wearing inappropriate clothing, and a psychiatric social worker’s report stating the relationship between S.L.H. and his mother was “more competitive than nurturing.”
When questioned about the supervision in the home, the social worker who had initiated the dependency and neglect proceedings conceded that S.L.H. had not been left alone but had been left with his stepsister, who in the social worker’s opinion was not incapable of babysitting. Although he was unable to cite specific examples, the social worker felt, however, that the step sister was babysitting S.L.H. too often and for too long. The social worker also conceded that with the exception of his hands and face, S.L.H. was not unclean and that it was possible that S.L.H. had simply gotten dirty from playing. The concern regarding inappropriate clothing stemmed from observations by the social worker and S.L.H.’s teacher that S.L.H.’s clothes were too large. The teacher was also concerned that S.L.H. often did not wear socks and that a pair of cowboy boots which he sometimes wore and was apparently quite fond of were too long. Both the teacher and social worker considered S.L.H. to have been properly fed.
S.L.H.’s mother refused to consent to a CAT scan for S.L.H. when a pediatrician from Rapid City requested that this test be performed. The mother refused because she thought that the test would involve sticking pins and needles in S.L.H.’s head and running electricity through his head and that such a test would not be healthy for the child. The mother informed the social worker that she wanted a second opinion regarding the CAT scan and that she had made an appointment at the Home-stake Clinic to obtain the second opinion. S.L.H. was taken from the home prior to the time set for the appointment.
S.L.H. has apparently always had several problems. He suffers from intermittent exotropia, a condition in which one eye deviates outward intermittently. He also has a stiff heel tendon. S.L.H. has consistently been diagnosed as being developmentally delayed. At the age of four his level of intellectual function was tested and found to be within the mild mental retardation range. His special education teacher reported that S.L.H. fell down frequently, had bruises, and had problems in speech and other areas.
Department presented evidence by which it attempted to link S.L.H.’s developmental retardation with his environment. On August 15, 1978, the diagnosis of the Rapid City pediatrician was “developmental retardation, etiology uncertain, but most probably secondary to maternal deprivation.” The doctor testified that at that time S.L.H. had been in foster care for three to four months and had made unbelievable progress since being with his new parents. The doctor also testified that he was unaware that the mother had been in the foster home. A psychologist’s report stated that “while all of [S.L.H.’s] difficulties cannot be related to environmental causes, it seems to have significantly contributed to his lack of development.”
Psychological evaluations of S.L.H.’s mother were also presented in these proceedings. One psychologist described the mother as manifesting symptoms of a severe personality disorder and as exhibiting narcissistic and borderline personality traits. This same psychologist also concluded that the mother exhibits a chronic history of poor adjustment and poor judgment and that her maternal capacity appears extremely limited.
A psychiatric social worker who had examined the mother as early as 1978 and had earlier described the relationship between S.L.H. and his mother as more competitive than nurturing, examined the mother again in 1981 and concluded that her capacity for judgment had improved since 1978 and that she clearly exhibited a capacity for change. When asked for an opinion regarding the mother’s maternal capacities, this psychiatric social worker responded, “Subjectively I would not want her raising my children, but most of the people I know I would not want raising my children.” Another psychiatric social worker testified that his testing of the mother indicated no serious emotional or psychotic illness.
There was considerable testimony concerning the sexual conduct of S.L.H.’s mother and stepfather. They had participated in “swinging,” the exchange of sexual partners, on five or six occasions in 1979 and 1980. This “swinging” did not occur in S.L.H.’s presence.
Subsequent to S.L.H.’s removal from the home, there was an incident in which the stepfather hit S.L.H.’s mother. The social worker filed an affidavit of dependency and neglect concerning S.L.H.’s stepbrother and stepsister, and the stepsister has left the home. The stepsister was allegedly sexually abused by the stepfather. The stepbrother remains in the home, and the record does not reflect why the affidavit of dependency and neglect concerning him was filed.
The original decree of disposition as well as the one entered after remand terminated the mother’s parental rights and granted legal custody of S.L.H. to Department. The decree further ordered that S.L.H. be placed with his father, P.H., and his wife, J.H., through the Interstate Compact for Juveniles, SDCL ch. 26-12, for supervision by the state of Minnesota, where P.H. and J.H. were then living. P.H. and J.H. have had a history of financial, marital, chemical dependency and other problems.
Since the time S.L.H. was placed in P.H. and J.H.’s home, J.H. has left P.H. because he abused her and her two oldest children. S.L.H. remained with P.H. until the Department of Social Services removed S.L.H. from the home after receiving numerous reports concerning P.H.’s failure to properly feed and bathe S.L.H. as well as reports alleging physical abuse of S.L.H. We were advised at oral argument that a hearing had been set on Department’s dependency and neglect petition with respect to P.H.’s treatment of S.L.H. On November 8, 1983, we were furnished with copies of the trial court’s findings of fact, conclusions of law, and decree of disposition entered on October 26, 1983. The decree of disposition terminated P.H.’s parental rights in S.H. pursuant to P.H.’s voluntary relinquishment of his parental rights and his request that the trial court enter an order terminating those rights.
ADJUDICATORY FINDINGS
Appellant contends that the adjudication of the child as dependent and neglected was not supported by clear and convincing evidence. We do not agree.
In Santosky v. Kramer, supra, the United States Supreme Court held that due process requires proof by clear and convincing evidence in a parental rights termination proceeding. See also In re S.H., supra; SDCL 26-8-22.10. In defining clear and convincing evidence, we have stated that
[1]ts technical meaning has been expressed as “the witnesses must be found to be credible, that the facts to which they have testified are distinctly remembered and the details thereof narrated exactly and in due order, and that their testimony is so clear, direct and weighty and convincing as to enable either a judge or jury to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue.”
In re L.A., 334 N.W.2d 62, 65 (S.D.1983) (citing Cromwell v. Hosbrook, 81 S.D. 324, 329, 134 N.W.2d 777, 780 (1965)) (citations omitted). See also In re S.H., 337 N.W.2d 179 (S.D.1983); In re J.W.W., 334 N.W.2d 513 (S.D.1983). It should be noted, of course, that the evidence need not be voluminous or undisputed to satisfy this measure of proof. Brown v. Warner, 78 S.D. 647, 107 N.W.2d 1 (1961).
A neglected or dependent child is one “[w]ho lacks proper parental care through the actions or omissions of the parent, guardian, or custodian.” SDCL 26-8-6(2). The trial court found that S.L.H.’s developmental retardation resulted at least in part from environmental deprivation and that there were instances where the mother provided poor care for the child, including failure to arrange for reliable babysitters and proper supervision for the child. After reviewing the entire record, we cannot say that these findings are clearly erroneous. SDCL 15-6-52(a); In re Estate of Hobelsberger, 85 S.D. 282, 181 N.W.2d 455 (1970). Especially is this true in the light of S.L.H.’s special needs stemming from his physical and mental condition. We therefore conclude that the trial court did not err in adjudicating S.L.H. as dependent and neglected within the meaning of SDCL 26-8-6(2).
DISPOSITIONAL ORDER
The mother also contends that the trial court erred in terminating her parental rights. We agree.
Natural parents have a fundamental liberty interest in the care, custody, and management of their children. Santosky, supra; see also Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). As the United States Supreme Court has explained:
The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State. Even when blood relationships are strained, parents retain a vital interest in preventing the irretrievable destruction of their family life.
Santosky, 455 U.S. at 753, 102 S.Ct. at 1394, 71 L.Ed.2d at 606. This fundamental right, however, is neither absolute nor unconditional. In re N.J.W., 273 N.W.2d 134 (S.D.1978); In re K.D.K, 87 S.D. 501, 210 N.W.2d 907 (1973).
In determining whether to terminate parental rights, the paramount consideration is the best interest of the, child. SDCL 26-8-36; In re M.S.M., 320 N.W.2d 795 (S.D.1982). It is hazardous, however, to assume that removing a child from an imperfect home invariably will benefit the child. Santosky, 455 U.S. at 765, 102 S.Ct. at 1400, 71 L.Ed.2d at 614, n. 15. Although parents and their children do not have identical interests, “the parental interest in the companionship, care and custody of the children is a strong one and is reciprocated by the child’s equally weighty interest in the nurture, love and instruction of the parents.” Lehman v. Lycoming County Children’s Services, 648 F.2d 135, 152 (3rd Cir.1981), aff'd, — U.S. -, 102 S.Ct. 3231, 73 L.Ed.2d 928 (1982). The trial court at a dispositional hearing should balance the rights of the parent with the best interests of the child and the public. In re P.M., 299 N.W.2d 803 (S.D.1980).
In a dispositional hearing, the trial court must apply the least restrictive alternative. In re N.J.W., supra. See also In re S.H., supra, 337 N.W.2d 179; In re L.A., supra. If, however, efforts to assist the parent through the use of social services proves unavailing, the trial court is justified in terminating parental rights. In re S.S., 334 N.W.2d 59 (S.D.1983).
The trial court found that since 1977 the Department of Social Services has “made every effort to assist Respondent mother in learning to care for her child and that Respondent mother fails and refuses to accept guidance and supervision.” We conclude that this finding is not supported by clear and convincing evidence.
The following testimony was given at the dispositional hearing:
Q. If you recall, what was the level of cooperation you received from the mother [in 1978]?
[social worker]
A. Well, at that time she was in such a destitute, desperate type of situation, both for herself and the child, that she seemed to really, you know, reach out for help.
Q. She was cooperative.
[social worker]
A. Yes.
At the adjudicatory hearing, the social worker testified as follows regarding the problems in 1978 and the resolution of those problems:
Q. Okay. And so at that time you think the problem was more one of education, would you say, and maybe background?
A. Yes, that was part of the problem.
Q. Okay. When you say “That was part of the problem,” what would be the other part? The child’s personality, or—
A. Well, I think it’s more than just the education. I think that the child was in need of protection.
Q. Okay. But basically as far as those things that you talked about in those reports, as far as you know they have been remedied, is that correct?
A. The situation as it existed back then in ’78 has been remedied through the foster care placement and then returning S.L.H. to the home.
Q. Okay. And whenever [the mother] has had any occasion to need help do you feel she has sought it out?
A. Yes.
When the social worker was asked whether the mother’s actions with regard to the CAT scan was the first occasion she had ever resisted any suggestions or referrals made by him, the social worker responded, “That was the first obvious resistance to me, to my efforts, yeah.” The social worker then conceded that between February of 1978 and May of 1980, the mother had cooperated with him.
Department frequently made doctor appointments for S.L.H. and often provided transportation for these visits since the mother at that time did not have a car or driver’s license. The social worker conceded that the mother made sure that the appointments were kept. He also agreed that the doctor who requested the CAT scan was the only doctor who had encountered resistance by the mother. The social worker felt, however, that the mother should have provided the transportation.
While the mother has expressed resentment regarding the type and extent of Department’s intervention in her home, we will not equate this resentment with a refusal to cooperate with Department. We also note that any conflicts between the mother and social worker have not been one-sided. The social worker admitted at the dispositional hearing that he had made statements that he was perhaps too prejudiced to be involved in the case and that perhaps he could not be objective in his recommendation regarding the mother’s parental rights.
The mother also initiated action for the benefit of S.L.H. She had, on her own initiative, joined a single parents group which the social worker felt was beneficial. She made appointments with doctors and contacted the county nurse several times for information regarding S.L.H. When S.L.H. was three years old, the mother on her own initiative enrolled him in a special education program because he was developmentally delayed. S.L.H. improved in this program. The special education teacher testified that the mother had initiated telephone conferences with her regarding S.L. H.’s progress and that she had no knowledge that the mother had not followed her recommendations.
The mother characterized a program S.L.H. was involved in at the Rapid City Rehabilitation Hospital as “just something else to play with besides his own toys” and did not comply with a suggestion made by the therapists in the program that she build a sandbox for S.L.H. While her perceptions and reactions to this program and the recommendation for a CAT scan may be less than intelligent and mature, we have held that “we will not countenance a termination of ... parental rights merely due to [a] lack of intelligence and understanding of some suggestions....” Matter of R.H., 300 N.W.2d 271, 274 (S.D.1981).
The trial court placed much emphasis on the child’s special needs. We can appreciate this concern. See Matter of J.M.A., 286 N.W.2d 324 (S.D.1979). While the mother may very well be inept at articulating the nature of S.L.H.’s problems, we are convinced after reviewing the entire record, however, that she is neither unaware of nor unconcerned about these problems. In addition to evidence regarding the mother’s cooperation and capacity to change, the psychiatric social worker who has worked with the mother and her family testified that he believed that the mother was sincere in her concern for the child and that services were available in the community and that a plan could be developed that would be beneficial to S.L.H. and his mother if he were returned to his mother. We therefore conclude that less restrictive alternatives exist and that the evidence in support of termination was not sufficiently “clear, direct and weighty and convincing” to justify terminating the mother’s parental rights.
Our holding with respect to the disposi-tional order renders moot certain of appellant’s remaining contentions. Those that are not moot we find to be without merit, except that we assume that upon remand the trial court will make a suitable award of attorney fees to appellant’s counsel.
The order of adjudication is affirmed. The decree of disposition is reversed, and the case is remanded for further proceedings consistent with this opinion.
FOSHEIM, C.J., and MORGAN, J., concur.
DUNN and HENDERSON, JJ., concur in part, dissent in part.
. The mother testified that she would plug up the faucet to the bathtub, place the crib mattress in the tub, and cover it with bedding. She testified that both she and S.L.H. had been satisfied with this arrangement.
.The mother testified that she had learned from the foster care placement, but that a conflict existed between the foster parents and herself because they wanted to adopt S.L.H. and wanted her out of their home. The social worker was aware of the problem and discussed it with both the mother and the foster parents. The social worker testified, "And so I guess [the mother] wasn’t willing to try to work those [problems] out and so she left.”
.The CAT scan was performed and the results were negative.
. We have recently recommended that the trial courts explicitly set forth this balancing process. In re S.H., supra, 337 N.W.2d at 181.
. She now has both a car and a driver’s license. |
10593978 | Barbara WHITSON and Jim Oliff, Plaintiffs and Appellees, v. Dale G. LENDE and Cheryl A. Lende, Defendants and Appellants | Whitson v. Lende | 1989-06-28 | Nos. 16436, 16455 | 267 | 271 | 442 N.W.2d 267 | 442 | North Western Reporter 2d | South Dakota Supreme Court | South Dakota | 2021-08-10T17:25:14.515411+00:00 | CAP | All the Justices concur. | Barbara WHITSON and Jim Oliff, Plaintiffs and Appellees, v. Dale G. LENDE and Cheryl A. Lende, Defendants and Appellants. | Barbara WHITSON and Jim Oliff, Plaintiffs and Appellees, v. Dale G. LENDE and Cheryl A. Lende, Defendants and Appellants.
Nos. 16436, 16455.
Supreme Court of South Dakota.
Considered on Briefs April 27, 1989.
Decided June 28, 1989.
Thomas E. Brady of Richards, Hood & Brady, Spearfish, for plaintiffs and appel-lees.
Harlan A. Schmidt, Spearfish, for defendants and appellants. | 2047 | 12546 | MILLER, Justice.
This is a contract rescission action in which we generally uphold the trial court’s monetary award of restitution, but remand to have the court additionally ascertain the reasonable rental value of the property involved.
FACTS
Appellants Dale and Cheryl Lende (Lendes) appeal from a circuit court judgment entered in favor of appellees Barbara Whitson and Jim Oliff (Whitson and Oliff) awarding them rescission of a contract entered into with Lendes together with monetary relief under the theories of quantum meruit and unjust enrichment. Lendes appeal, contending that the trial court erred (1) in denying them a jury trial on the theories of rescission, quantum meruit and unjust enrichment and (2) then awarding damages rather than restitution as compensation. By notice of review, Whitson and Oliff argue that they were entitled to additional restitution for rent paid, deposit and advance rent, together with interest thereon.
In 1985, a real estate broker had listed a Deadwood gas station, car wash and duplex for sale. Whitson and Oliff, as well as Lendes, made an offer on the property. Lendes’ offer was ultimately accepted. Lendes then desired to lease the newly purchased property rather than operate it themselves. The broker contacted Whitson and Oliff and advised them that the property was for rent. In June 1985, the parties discussed the possible lease of the property. Lendes advised Whitson and Oliff that if they would lease the property, which was in poor condition, Lendes would make substantial improvements worth approximately $20,000, including the installation of car wash equipment and renovation of the car wash bays.
The parties orally agreed that Whitson and Oliff would lease the premises for two years at $650 per month, and would have the option to purchase the property. Lendes agreed to make the aforementioned improvements and also agreed to provide Whitson and Oliff with a $1,000 allowance for improvements on the property.
Upon their arrival in early July 1985, Whitson and Oliff began cleaning and refurbishing the premises, including hiring contractors to make improvements to the property. By July 15, the date agreed upon for the installation of the car wash equipment, Lendes had made no capital improvements on the property and the car wash equipment had not arrived. Whitson and Oliff contacted Lendes concerning the whereabouts of the equipment and the improvements that Lendes were to make. Lendes informed them that the promised improvements would be undertaken shortly. On August 5, a pallet containing car wash equipment arrived together with a freight bill, which Whitson and Oliff paid. Nothing happened thereafter, so Whitson and Oliff again contacted Lendes to inquire as to when the equipment would be installed.
Later that month, Lendes promised that the car wash equipment would be installed and fully operable by August 21. No action was taken by that date and they again contacted Lendes. On August 23, the car wash installers arrived and proceeded to install the equipment. The next day, however, it was determined that the equipment was not compatible to the car wash bays and could not be installed. Whitson and Oliff asked Lendes when they were going to complete their obligation of renovating the premises and installing the equipment. Lendes then advised Whitson and Oliff that they were not obligated to do so and, in fact, would not do so.
Based upon this refusal, Whitson and Oliff advised Lendes that they were terminating their relationship and would be liquidating the inventory which they had previously purchased: Whitson and Oliff stated that they would be off the premises by September 1.
During the course of their tenancy, Whit-son and Oliff provided materials and labor to improve the premises, acquired a beer license and purchased inventory. They also paid rent to Lendes in the amount of $2,250 ($300 for the last half of July, $650 for August and two months’ advance rent). They left the ending inventory of fuel and merchandise on the premises.
Whitson and Oliff filed an action with the circuit court in January 1986, alleging the termination of their agreement together with a demand for the return of everything of value received from them by Lendes. Lendes filed an answer and counterclaim denying any liability and seeking enforcement of the remaining rental payments under the two-year lease. Whitson and Oliff replied to the counterclaim seeking rescission. Later, Whitson and Oliff elected to pursue their remedy for rescission and restitution under the theories of quantum meruit and unjust enrichment for rent, labor, materials, and expenses incurred by them for cleaning and improving the premises and for the inventory left thereon and the acquisition of the beer license. The case was tried to the court. Judgment was entered for Whitson and Oliff, granting them rescission and $7,244.71 in restitution.
DECISION
I
WHETHER THE TRIAL COURT ERRED IN AWARDING “DAMAGES” TO WHITSON AND OLIFF.
It appears from the briefs that the issue actually presented to us, although unclear, concerns the amount of restitution awarded to Whitson and Oliff. Lendes contend it was too much; Whitson and Oliff contend it was too little.
The trial court awarded restitution to Whitson and Oliff in the following amounts:
12% Int. 9-1-85
Item Amount to 5-18-88 Total
Materials $1,339.33 $ 486.18 $1,825.51
Contract Labor 939.03 340.87 1,279.90
Personal Labor 7-9 thru 7-24 10 hrs/day/person = 300 hours 300 x $5.00/hr = 1,500.00 544.50 2,044.50
Beer License 400.00 145.20 545.20
Ending Inventory 700.00 254.10 954.10
Ending Fuel Inventory 279.65 101.51 381.16
Freight Bill 162.40 51.94 214.34
$5,320.41 $1,924.30 $7,244.71
Lendes assert that the trial court awarded “damages” rather than a monetary judgment for restitution. They base their argument upon the fact that the court awarded certain out-of-pocket expenses which, under Lendes’ theory, would not be recoverable because such expenses should be characterized as damages rather than restitution.
SDCL 53-11-5 provides:
The party rescinding a contract must restore to the other party everything of value which he has received from him under the contract, or must offer to restore the same, upon condition that such party shall do likewise, unless the latter is unable or positively refuses to do so.
In Dusek v. Reese, 80 S.D. 96, 119 N.W.2d 656 (1963), this court stated:
When a court of equity has taken jurisdiction of a suit for rescission or cancellation, and the facts proven would justify the grant of the relief asked, but a decree for rescission cannot be made because the restoration of the parties to their former situation has become im practicable or legally impossible, it will ascertain and award damages by way of compensation[.]
Id., 80 S.D. at 103, 119 N.W.2d at 660 (citation omitted). It is clear that this is primarily an action in equity.
Lendes’ argument that the compensation awarded constituted damages rather than restitution is simply unfounded. The trial court in its findings of fact and conclusions of law and judgment nowhere referred to the monetary compensation awarded to Whitson and Oliff as “damages.” (“Damages” however was used by the trial court in its memorandum opinion which was incorporated into the court’s findings and conclusions.) Even if the court improperly denominated the award, the amount of compensation granted clearly indicates an award for restitution. We will not resort to semantic quibbling as a basis for reversal.
While it is clear that Whitson and Oliff are entitled to restitution, it is unclear whether they should be allowed to receive (1) the value of the labor and materials that went into the improvements they made or (2) that amount which equals the increase in the value of the property as a result of their improvements. Much is written in this area concerning the amount to be recovered for improvements by a purchaser who rescinds due to a breach by a vendor; however, such is not true where a commercial lease is rescinded due to a breach by the landlord. Regardless, we find the authority presented in the vendor/purchaser scenario to be persuasive.
Generally, when a party seeks restitution for improvements made in performance of a contract, the normal measure of recovery is the reasonable market value of the work done, not limited to the enhanced value of the property if such would be less. As against the party in default (here Lendes), we find it preferable to allow Whitson and Oliff to recover the fair market value of their work even though such would most likely exceed the increase in the value of the property. See Palmer, Law of Restitution § 4.18 (1978). See also Fischer v. Kennedy, 106 Conn. 484, 138 A. 503 (1927); McMahon v. Cooper, 70 Idaho 139, 212 P.2d 657 (1949); Passmore v. Woodard, 37 N.C.App. 535, 246 S.E.2d 795 (1978); and Skinner v. Scholes, 59 N.D. 181, 229 N.W. 114 (1930). Accord, Corbin, Contracts § 1107 (1964).
Reviewing the award of restitution set forth by the trial court, and mindful that the concept of restitution is to return to a plaintiff that to which the plaintiff is entitled, we believe that the court erred in awarding Whitson and Oliff a judgment for only $7,244.71. It is clear from the record that these are the expenses which were borne by Whitson and Oliff in their attempt to renovate the premises. These amounts are consistent with the evidence presented. However, the trial court refused to award restitution to Whitson and Oliff in the amount of $2,250 for rent paid on the premises. Of this amount, $1,300 constituted advance rent and Whitson and Oliff’s deposit on the premises. As such, it too should have been returned to Whitson and Oliff so as not to unjustly enrich Lendes. Further, Whitson and Oliff need only to have paid for the reasonable rental value of the premises in its unimproved condition. While the trial court found that the premises had little if any commercial value, it is not clear from the record that the trial court determined its reasonable rental value in its rundown state. The agreement entered into by the parties stipulates a rent of $650 per month would be reasonable after extensive repairs were completed on the property. Any rent paid in excess of the reasonable rental value of the property in its dilapidated condition should also be returned with interest to Whitson and Oliff. We remand this issue to the trial court to determine the reasonable rental value of the unimproved property, and interest thereon, and to modify its judgment accordingly.
Affirmed in part, reversed and remanded in part.
All the Justices concur.
. A written lease agreement was later presented to Whitson and Oliff, who refused to sign it because it omitted Lendes’ obligation to make the agreed-upon improvements.
. On the first page of their brief, Lendes’ Statement of Legal Issues phrases the issue as "Whether the court can deny defendants a jury trial on theories of rescission, quantum meruit and unjust enrichment and then award damages rather than restitution as compensation to plaintiffs?"
Then in the Argument section of their brief, they assert the issue as “THE COURT ERRED BY AWARDING DAMAGES TO PLAINTIFFS WHO HAD ELECTED TO RESCIND THE CONTRACT RATHER THAN AFFIRM THE CONTRACT AND SUE FOR DAMAGES.” Their argument is principally in support of this assertion.
Lendes’ assertion that the trial court erred in denying them a jury is clearly misplaced because this is primarily an equitable action which is not cognizable by a jury. Skoglund v. Staab, 312 N.W.2d 29 (S.D.1981). It was asserted in appellees' brief that this issue had been waived via a letter from Lendes’ counsel. However, that letter is not included in the settled record and we therefore cannot consider that argument.
. Rescission is equitable if the complaint asks the court to order rescission of a contract. Sko-glund, supra note 1. Such is the case here. Lendes attempt to argue that the issues raised in their counterclaim should have been tried to a jury. We find this contention to be specious and do not hesitate in holding that this was primarily an action in equity. Id. |
10611494 | STATE of South Dakota, ex rel. V.K.H., Mother, and M.J.H., a Minor Child, Plaintiff and Appellant, v. S.W., Defendant and Appellee | State ex rel. V.K.H. v. S.W. | 1989-06-28 | No. 16065 | 920 | 926 | 442 N.W.2d 920 | 442 | North Western Reporter 2d | South Dakota Supreme Court | South Dakota | 2021-08-10T17:25:14.515411+00:00 | CAP | MORGAN, J., concurs. | STATE of South Dakota, ex rel. V.K.H., Mother, and M.J.H., a Minor Child, Plaintiff and Appellant, v. S.W., Defendant and Appellee. | STATE of South Dakota, ex rel. V.K.H., Mother, and M.J.H., a Minor Child, Plaintiff and Appellant, v. S.W., Defendant and Appellee.
No. 16065.
Supreme Court of South Dakota.
Considered on Briefs Oct. 14, 1988.
Decided June 28, 1989.
Lloyd J. Mahan of Mahan Law Offices, Parkston, for plaintiff and appellant; Keith Goehring of Mahan Law Offices, Parkston, on brief.
Wayne W. Christensen of Beck, Christensen, Gubbrud & Haugland, Worthing, for defendant and appellee. | 2996 | 18242 | HENDERSON, Justice.
PARTIES/PROCEDURAL HISTORY
Defendant/father S.W. (father) was determined by a jury to be the father of M.J.H. (son) in a paternity action, initiated in the circuit court for Hutchinson County by V.K.H. (mother). The trial court issued its judgment on July 8, 1986, ordering father to pay, by September 1, 1986, mother’s confinement and medical expenses aggregating $1,642. Father was also ordered to pay $1,800 in child support arrearages. Earlier, the trial court established father’s monthly child support obligation at $135 in an order dated May 27, 1986. This support amount was repeated in the July 8 judgment.
Father met none of his financial obligations. On March 23, 1987, he submitted a motion to the circuit court seeking reduction of his monthly child support and ar-rearages in an amount commensurate with his income. Mother, thereupon, filed a motion seeking an increase in monthly child support and dismissal of father’s motion. Father was ordered to show cause why he should not (1) be held in contempt for failure to comply with its orders, (2) be required to pay the sums ordered, plus interest, and (3) have his child support payments increased.
LOWER COURT’S RULING
After two hearings, the circuit court (1) declined to raise or lower father’s monthly child support obligation, (2) ordered father to pay his arrearages for confinement expenses, medical expenses, and child support at a rate of $20 per month, and (3) adjudged father in contempt, ordering him to be incarcerated for thirty days. However, father was permitted to purge himself of this contempt by paying his monthly obligations of $135 in child support and $20 for his various arrearages for a six-month period.
ISSUES/APPELLATE HOLDING
Mother appeals, alleging that the trial court erred in three regards:
(1) Failing to raise or lower father’s monthly child support obligation;
(2) Allowing father to pay arrearages at a rate of $20 per month; and
(3) Denying her request for attorney fees.
We affirm the circuit court on issues (1) and (2), but remand to the circuit court for reconsideration of an award of attorney fees. We also award mother $750 for attorney fees on appeal.
FACTS
Father and mother were never married to each other. Mother gave birth to son on May 26, 1983. Father’s paternity was determined by a jury in January 1986. In October 1983, father married a woman who subsequently gave birth to another child.
At the time of adjudication of paternity, father was unemployed, although he had earned a bachelor’s degree in commercial economics. In July 1986, the United States Postal Service (USPS) hired father on a part-time basis, guaranteeing him a minimum of 20 hours work per week. He occasionally worked 40 hours per week. Father’s USPS payroll records from August 1986 through April 1987 indicate that he worked an average of 26.6 hours per week. He earned an average $1,063 per month, which, after deductions for taxes, insurance and retirement, yielded a monthly take-home pay averaging $951. Although father claimed that his usual monthly pay was much lower, and was inflated due to unusual periods of increased work hours, such fluctuations appear to typify his job. His USPS pay was his sole regular source of income. As he did not earn enough to meet his new family’s monthly expenses, his relatives gave him whatever additional money he needed to pay bills. His wife, who does not work, testified on cross-examination that they received interest on $1,300 in insurance proceeds, received as a reimbursement for certain medical costs. These medical costs were initially paid with funds borrowed from relatives. By the time of hearing, these insurance proceeds had been used to pay expenses. Father was further obligated to pay $65 per month for school loans.
Father and his wife own little property. This consists of two old cars, a wrecked motorcycle, and miscellaneous household items, all valued at less than $2,000. After the initial support order, father and his brother sold a boat they owned. Father received about $1,000 from this sale. None of this money, or any other funds, were used to meet father’s obligation to support son or to satisfy mother’s award for confinement and medical expenses. Only two checks, totalling $35, payable to son, were ever sent. These were signed by father’s wife and his father-in-law. The checks were returned by mother’s attorney with letters requesting the full amounts of support due. Father attempted to use these letters as an excuse to avoid his responsibilities to mother and son.
DECISION
I Failure to Increase Child Support
Mother argues that the trial court abused its discretion by not increasing child support because father’s financial situation has improved. She asserts that child support must be raised pursuant to the guidelines of SDCL 25-7-7. We disagree.
Settled case law, predating creation of the guidelines, provides that child support awards must be based on the reasonable financial needs of the child and the financial means of the parents. Bruning v. Jeffries, 422 N.W.2d 579, 581 (S.D.1988). The guidelines do not abolish this settled case law. Bruning, id. The guidelines are not to be blindly applied. Id.
Here, the trial court’s findings of fact and conclusions of law addressed the financial situation of both parents, father’s school debts, the expenses of father, son, and mother, and father’s limited assets. We perceive no abuse of the trial court’s discretion on this issue. To avoid grave injustice and inequities, a trial court must adjudicate on the realities of the situation at hand. State ex rel. Larsgaard v. Larsgaard, 298 N.W.2d 381, 384 (S.D.1980).
We note that father’s average monthly take-home pay, $951, less his school loan obligations of $65 per month, yield a net which is below $900. Under the SDCL 25-7-7 guidelines, this would correspond to a child support level between $128 and $144. Father’s $135 monthly obligation is within that range. The trial court, however, did not base its decision on such a mechanical rationale. Instead, the court adjudicated on the basis of the financial needs of all concerned. Father’s school loan obligations were specifically considered; failure to do so would have, itself, been an abuse of discretion. Bruning, at 581.
Mother’s arguments that father’s situation improved, in that he is now employed, and that her situation deteriorated due to a claimed seven percent increase in son’s expenses, are unpersuasive. The changes in circumstances did not, on this record, justify modification. As Bruning indicated, with citations to Johansen v. Johansen, 365 N.W.2d 859 (S.D.1985), and Gross v. Gross, 355 N.W.2d 4 (S.D.1984), child support awards must be based on the financial situation of parents and child, guidelines notwithstanding. See Bruning, at 581. We affirm the trial court on this issue.
II Payment of Arrearages in $20 Monthly Installments
Mother next maintains that the trial court could not, as a matter of law, order father to repay his arrearages in installments of $20 per month, as they are judgments and res judicata. Again, we disagree.
The arrearages in question were $1,642.55 in confinement and medical expenses, $1,800 in unpaid child support accumulated prior to May, 1986, and $135 monthly payments due after May, 1986. Mother argues that these unpaid obligations are unmodifiable under SDCL 25-7-7.3, which provides:
Any past due support payments are not subject to modification by a court or administrative entity of this state, except those accruing in any period in which there is pending a petition for modification of the support obligation, but only from the date that notice of hearing of the petition has been given to the obli-gee, the obligor, and any other parties having an interest in such matter.
Mother also relies on SDCL 25-7-7.-4, which directs that any unpaid support payment, under an order for support, “as defined by § 25-7A-1,” is a judgment by operation of law. Both statutory sections were enacted during the 1987 legislative session as Chapters 190 and 191, § 1, respectively. However, SDCL 25-7A-l(13) defines an “order for support” as any order providing for periodic payment of funds for support of a child or maintenance of a spouse. These sections have no application to the payments for accrued child support and confinement and medical expenses which the trial court originally ordered Father to pay in the paternity action, as the unpaid sums were not payments to be made on a periodic basis, per SDCL 25-7A-1(13). The trial court’s order regarding unpaid monthly installments is also correct, for different reasons, however.
SDCL 25-8-7 provides authority for courts to award a money judgment for, inter alia, child support and pregnancy or confinement expenses in the course of paternity proceedings. Until amended in 1988, this statute provided, in part:
Upon determining paternity of a child, the court shall give judgment declaring the paternity of the father to the child. The court may award a money judgment to the appropriate party for the recovery of the reasonable expenses of the mother’s pregnancy and confinement, for the education, support or funeral expenses for the child, or for any other expenses with respect to the child as the court deems reasonable.
The court shall enter an order for the support and custody of the child. The order for support shall be for annual amounts, equal or varying, and the payments shall be made as the court directs .... The court may modify or vacate any order issued pursuant to this section at any time. (Emphasis supplied.)
Given the broad authority to “modify or vacate any order” stemming from paternity proceedings, granted in this specific statute, the general provisions of Chapter 25-7 regarding modifiability, which Mother relies upon, simply do not control here. A specific statute, i.e., SDCL 25-8-7, prevails over the general statute. In re D.H., 354 N.W.2d 185, 192 (S.D.1984); Hartpence v. Youth Forestry Camp, 325 N.W.2d 292, 295 (S.D.1981).
Further, we also do not consider the trial court’s $20 per month repayment order to constitute a modification, as no ar-rearage has, in fact, been forgiven. See, Uphus v. Uphus, 221 Mont. 347, 720 P.2d 231 (1986) (Held, 720 P.2d at p. 233: $25 per month payments towards arrearages provision was a mechanism by which ex-husband could purge himself of contempt, and was not a retroactive modification of such arrearages). The trial court, in spreading out father’s payment of arrear-ages, has only recognized the realities of this unfortunate situation. See State ex rel Larsgaard v. Larsgaard, 298 N.W.2d 381, 384 (S.D.1980). As indicated in our analysis of mother’s first claimed error, father’s property and income are inadequate for him to pay the arrearages all at once. We find no legislative mandate for reversal on this issue. SDCL 25-7A-31, which concerns orders for withholding for support, directs that such orders shall direct payors to withhold “[a]n additional amount not less than ten percent of the order for [monthly] support, until payment in full of any delinquency....” Payment of arrearages in small increments is, therefore, consistent with the intent of the legislature. We affirm the trial court on this issue.
Ill Attorney Fees
Mother’s request for attorney fees was denied by the trial court on the grounds that no statutory authority exists for such an award. Mother asserts that SDCL 15-17-7, which authorizes assessment of attorney fees in “determination of paternity,” applies in this situation, a contention with which we agree. This proceeding, which pertains to obligations arising from a paternity action, is analogous to proceedings for modification or enforcement of child support arising after divorce, found in Gross v. Gross, 355 N.W.2d 4 (S.D.1984), Jameson v. Jameson, 90 S.D. 179, 239 N.W.2d 5 (S.D.1976), and a myriad of other cases.
In Pribbenow v. Van Sambeek, 418 N.W.2d 626 (S.D.1988), this Court held that an award of attorney fees in a proceeding for a change in custody, after custody was granted in a paternity action, was a matter of the trial court’s discretion. Similarly, the present case relates to a paternity action.
We remand this case to the trial court for consideration of attorney fees as provided for in Pribbenow, 418 N.W.2d at 630:
We have held in the past that the trial court’s duties with regards to attorney fees is two-part. First, it must consider what constitutes reasonable attorney fees and, secondly, it must then make a decision of what portion of such fee, if any, should be allowed as costs and paid by the opposing party in the action. This decision is to be based upon the consideration of the property owned by each par ty, the relative income of the parties, whether the property of the parties is in liquid or fixed assets, and whether the actions of either party increased unreasonably the time spent on the ease. Prentice v. Prentice, 322 N.W.2d 880 (S.D.1982); Lien v. Lien, 278 N.W.2d 436 (S.D.1979).
Mother also requests appellate attorney fees. She has submitted a separate motion with an itemized and verified schedule of expenses she incurred. This conforms with the requirements enumerated in Tesch v. Tesch, 399 N.W.2d 880, 885 (S.D.1987), and Malcolm v. Malcolm, 365 N.W.2d 863, 866 (S.D.1985). Having reviewed the record and assessed the financial situation of both parties, we award her $750 in attorney fees on appeal.
Affirmed in part, reversed in part.
MORGAN, J., concurs.
GILBERTSON, Circuit Judge, concurs with a writing.
SABERS and MILLER, JJ., concur in part and dissent in part.
GILBERTSON, Circuit Judge, sitting for WUEST, C.J., disqualified.
The 1988 amendment, in pertinent part, deleted the reference to payments being made "as the court directs" but left the court’s authority to *modify or vacate any order issued pursuant to this section” intact.
. The ¾20 per month repayment order is modifiable as financial circumstances change in the future. |
10593698 | STATE of South Dakota, Plaintiff and Appellee, v. Alvin H. GOODROAD, Defendant and Appellant | State v. Goodroad | 1989-06-21 | No. 16372 | 246 | 252 | 442 N.W.2d 246 | 442 | North Western Reporter 2d | South Dakota Supreme Court | South Dakota | 2021-08-10T17:25:14.515411+00:00 | CAP | MORGAN and HENDERSON, JJ., concur. | STATE of South Dakota, Plaintiff and Appellee, v. Alvin H. GOODROAD, Defendant and Appellant. | STATE of South Dakota, Plaintiff and Appellee, v. Alvin H. GOODROAD, Defendant and Appellant.
No. 16372.
Supreme Court of South Dakota.
Considered on Briefs April 27, 1989.
Decided June 21, 1989.
Frank E. Geaghan, Asst. Atty. Gen., Pierre, for plaintiff and appellee; Roger A. Tellinghuisen, Atty. Gen., Pierre, on the brief.
Sidney B. Strange of Strange & Palmer, P.C., Sioux Falls, for defendant and appellant. | 2580 | 16201 | WUEST, Chief Justice.
Defendant, Alvin H. Goodroad, was found guilty of possessing one-half pound or more of marijuana, in violation of SDCL 22-42-6. He was sentenced to two years imprisonment in the South Dakota State Penitentiary. We affirm defendant’s conviction.
In February, 1988, a South Dakota Division of Criminal Investigation (DCI) agent was notified that James Feeney (Feeney) had purchased a quantity of marijuana from an individual in the Black Hills area. A warrant to search Feeney’s house was obtained and a subsequent search uncovered the marijuana. Thereafter, Feeney entered a plea bargain, agreeing to plead guilty to felonious possession of marijuana and to cooperate with law enforcement officers in naming persons who previously had trafficked narcotics.
Pursuant to this agreement, Feeney identified defendant as his major supplier of marijuana in Sioux Falls, South Dakota. Feeney indicated he had an ongoing relationship with defendant regarding narcotics transactions. Under this relationship, defendant typically sold Feeney one-half pound of marijuana approximately every six to eight weeks. The transactions were frequently conducted on a credit basis. On March 11, 1988, Feeney, acting under the supervision of the DCI, telephoned defendant and inquired as to whether he had any marijuana for sale. Defendant indicated he had none, but he expressed an interest in purchasing from Feeney marijuana that he previously sold to him. Feeney agreed to sell defendant one-half pound of marijuana for $600. Arrangements were made for a friend of Feeney to contact defendant and deliver the marijuana at a later date.
Phil Niedringhaus (Niedringhaus), a DCI agent, contacted defendant on March 18, 1988. Niedringhaus, posing as Feeney’s friend, told defendant he had a “package” to deliver. Defendant indicated he would pay Feeney at a later date and arrangements were made to meet at a local restaurant parking lot to complete the transaction.
On March 19, 1988, defendant met Nied-ringhaus as previously arranged. Niedrin-ghaus brought with him two packages of marijuana which he previously had offered to defendant. Each package weighed slightly more than one-half pound. Defendant selected only one package. After taking the marijuana into his possession, defendant left Niedringhaus’ automobile and started to walk across the parking lot to his vehicle. It was at that point that he was called back to the undercover vehicle and placed under arrest.
Defendant waived a jury trial and was found guilty after a court trial. He now appeals his conviction, raising three issues. He first contends that the conduct of the law enforcement officers resulted in his entrapment as a matter of law. He next claims that the trial court erred in allowing the state to introduce evidence of his previous marijuana dealings with Feeney. Finally, defendant argues that the evidence introduced at trial was insufficient to warrant a finding that he was guilty of possessing one-half pound or more of marijuana, in violation of SDCL 22-42-6.
In his first contention, defendant asserts that he was induced to engage in the unlawful possession of marijuana by the conduct of law enforcement officers. The law on entrapment is well-settled in South Dakota. This court previously has defined entrapment as “the inducement of one to commit a crime not contemplated by him for the mere purpose of instituting criminal proceedings against him.” State v. Moeller (Moeller I), 388 N.W.2d 872, 874 (S.D.1986), affd on rehearing, 396 N.W.2d 320 (S.D.1986), (quoting State v. Williams, 84 S.D. 547, 551, 173 N.W.2d 889, 891 (1970)). To determine the validity of an entrapment defense, South Dakota applies the subjective, origin of the intent test. This test seeks to establish whether the intent to commit the crime originated with the accused or with the state. Under the test, entrapment exists if the evidence reveals that the accused was not predisposed to commit the crime, but instead was “an innocent person lured into committing a crime.” Moeller I, 388 N.W.2d at 874 (iquoting State v. Nelsen, 89 S.D. 1, 8, 228 N.W.2d 143, 147 (1975)). Entrapment, as a matter of law, is not established when there is substantial evidence from which it may be inferred that the criminal intent originated in the defendant’s mind. Moeller I, 388 N.W.2d at 874; Williams, 84 S.D. at 553, 173 N.W.2d at 892. See also State v. Moeller (Moeller II), 396 N.W.2d 320 (S.D.1986). “On appeal, we consider the evidence bearing on the entrapment issue in the light most favorable to upholding the conviction.” Id. at 321.
There are two components to successfully establishing entrapment as a defense. “The defendant must show police inducement to commit the crime and that he was not predisposed to commit the specific criminal act.” Moeller I, 388 N.W.2d at 874-75 (quoting State v. Iverson, 364 N.W.2d 518, 528 (S.D.1985)). In addition, it is said that there are four principal inducements which may locate the intent in the government rather than the accused. These inducements are friendship, sympathy, offers of excessive amounts of money, and appeals to a narcotic’s habit. Moeller I, 388 N.W.2d at 875; State v. Nagel, 279 N.W.2d 911, 916 (S.D.1979). We previously have stated that the defendant, in addition to showing such inducement, must also show that “ ‘undue, prolonged or persistent pressures were exerted against him, ... that this inducement was dangled in front of him’[,] ... or that he was ‘played upon’....” Moeller I, 388 N.W.2d at 875 (iquoting Nelsen, 89 S.D. at 10-11, 228 N.W.2d at 148). In determining whether a defendant was predisposed to commit the specific criminal act, the facts surrounding the transaction are relevant. Moeller I, 388 N.W.2d at 875. Also relevant are several definite criteria such as whether the defendant suggested the crime and his readiness to commit the crime and familiarity with the criminal activity. Id.
Applying the foregoing rules to the present case, we hold that the defense of entrapment was not established as a matter of law. An examination of the facts surrounding the marijuana transaction shows that defendant was not an innocent person lured into committing a crime. None of the principal inducements which indicate that the criminal intent originated in the law enforcement officers can be found. There were no appeals to friendship, sympathy, or a narcotic’s need. No big sacks of money were offered to defendant. In addition, defendant was not relentlessly pressured into entering or completing the transaction. He merely was presented with an opportunity to disobey the law.
Furthermore, defendant has failed to prove he was not predisposed to commit the offense with which he was charged. His ready response to Feeney’s offer to sell, coupled with his obvious familiarity with dealing in marijuana, is indicative of his preexisting intent. The people working on behalf of the DCI, namely, Feeney and Niedringhaus, did nothing more than present an opportunity for defendant to carry his intent through to fruition.
In his second contention, defendant argues that the trial court abused its discretion in admitting evidence of his prior dealings with Feeney. During the trial, Feeney was allowed to testify that a continuing sales relationship existed between him and defendant. This relationship extended as far back as 1984 and included at least twenty separate occasions on which Feeney purchased marijuana from defendant. The marijuana typically was purchased in quantities of approximately one-half pound. Defendant contends that this evidence was highly prejudicial and should not have been admitted.
We recognize that a defendant’s previously committing similar crimes, reputation of being engaged in the commission of such crimes, or being suspected by the police of criminal activities is not admissible on the issue of entrapment. Nelsen, 89 S.D. at 9, 228 N.W.2d at 148. The entrapment defense, however, may not be used as a shield to prevent the admission of such evidence if it is admissible upon independent grounds. Id., 228 N.W.2d at 148.
In State v. Lowther, 434 N.W.2d 747, 752 (S.D.1989), we stated that “evidence of other crimes, wrongs or acts is inadmissible in a criminal prosecution to establish the impermissible inference that since the defendant committed a similar offense on another occasion, he has a propensity to commit the crime charged.” SDCL 19-12-5, however, allows the admission of such evidence if it is relevant to a material issue, such as “motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.” Before “other acts” evidence can be admitted, the trial court must determine that the evidence is relevant and that its probative value substantially outweighs its prejudicial effect. Lowther, 434 N.W.2d at 752; State v. Kerkhove, 423 N.W.2d 160, 162 (S.D.1988).
With regard to the relevancy determination, this court has repeatedly stated that “[a]ny fact that tends to connect an accused with the commission of a crime is relevant and has probative value.” State v. Sieler, 397 N.W.2d 89, 92 (S.D.1986); State v. Iron Shell, 336 N.W.2d 372, 374 (S.D.1983). Other acts evidence has a prejudicial effect if it has the capacity to persuade by illegitimate means which result in the state’s having an unfair advantage. Such evidence is not prejudicial merely because its legitimate probative force damages the defendant’s case. Lowther, 434 N.W.2d at 753; Kerkhove, 423 N.W.2d at 163. The process of balancing the probative value against the prejudicial effect is within the sound discretion of the trial court. Lowther, 434 N.W.2d at 753; Kerkhove, 423 N.W.2d at 163; State v. Champagne, 422 N.W.2d 840, 842 (S.D.1988). We will not disturb the trial court’s decision absent a clear abuse of discretion. Lowther, 434 N.W.2d at 753; Champagne, 422 N.W.2d at 842.
We cannot find that the trial court abused its discretion in admitting evidence of defendant’s prior dealings with Feeney. The constituent elements of the crime with which defendant was charged are knowledge and possession. See SDCL 22-42-6. At the very least, the evidence of which now defendant complains was relevant to establish knowledge. See People v. Swindlehurst, 120 Mich.App. 606, 328 N.W.2d 92 (1982). In addition, said other acts evidence shows a common scheme or plan embracing previous dealings so related to each other that proof of such acts tends to establish the present charge. See State v. Starnes, 396 N.W.2d 676 (Minn.App.1986). The record indicates that the trial court not only properly determined the relevancy of the other acts evidence, but also correctly decided that its probative value substantially exceeded the prejudicial effect.
Defendant, in his third contention, claims that the evidence introduced at the trial was insufficient to warrant his being convicted of felonious possession of marijuana. He argues that he did not have possession of the marijuana after receiving it from Niedringhaus because he lacked the requisite amount of control to satisfy the possession requirement. Defendant also submits that based on previous transactions, his intent, if any, was to possess slightly less than one-half pound of marijuana. Accordingly, he contends that his motion to reduce the initial charge to attempted possession of marijuana should have been granted by the trial court.
In State v. Jenner, 434 N.W.2d 76, 81 (S.D.1988), we stated:
Sufficiency of trial evidence rests on whether the evidence, if believed by the [finder of fact], is sufficient to find guilt beyond a reasonable doubt. In making such a determination, this court will accept evidence and the most favorable inferences that can be fairly drawn from that evidence will support the guilty verdict.
If the evidence supports a rational theory of guilty, we will not set aside a verdict. Id.; State v. Ashker, 412 N.W.2d 97, 105 (S.D.1987).
The term “possession” is not statutorily defined in South Dakota. We believe that possession signifies dominion or right of control over a controlled substance or marijuana with knowledge of its presence and character. See State v. Wellner, 318 N.W.2d 324 (S.D.1982) (citing State v. Kietzke, 85 S.D. 502, 186 N.W.2d 551 (1971)); People v. Maliskey, 77 Mich.App. 444, 258 N.W.2d 512 (1977); State v. Reeves, 209 N.W.2d 18 (Iowa 1973). Possession can be either actual or constructive (State v. Morris, 331 N.W.2d 48, 53 (N.D.1983)) and need not be exclusive. Wellner, 318 N.W.2d at 332. “An individual has actual possession of a controlled substance [or marijuana] if, for example, it is found on his person.” Morris, 331 N.W.2d at 53; When a person has dominion or control over either the narcotics or the premises upon which the narcotics were found, constructive possession is shown. See State v. Garcia, 216 Neb. 769, 345 N.W.2d 826 (1984); State v. Foster, 196 Neb. 332, 242 N.W.2d 876 (1976).
The record in the present case indicates that defendant had actual, physical possession of the marijuana and that he exercised dominion and control over it when he removed it and himself from Niedringhaus’ automobile and advanced toward his vehicle. It matters little, if any, that defendant’s possession was brief since it appears to have been complete.
Finally, we find little merit in defendant’s argument that there was no evidence from which it could be inferred that he knew the marijuana which he possessed weighed more than one-half pound. A reading of SDCL 22-42-6 indicates that knowledge of the weight of marijuana is not an essential element of the crime of possession. The statute provides, in pertinent part:
No person may knowingly possess marijuana.
* * Jjt * sfc sH
It is a Class 6 felony to possess one-half pound but less than one pound of marijuana. ...
The gravamen of the offense with which defendant was charged is knowing possession. Defendant does not, nor could he, argue that he unknowingly possessed the marijuana in the present case. Therefore, we believe that sum of the evidence adequately supports a rational theory of guilt.
The decision of the trial court is affirmed.
MORGAN and HENDERSON, JJ., concur.
SABERS and MILLER, JJ., specially concur.
In the present case, it is important to note that the case was tried to the court without á jury. There is a presumption that the court, in reaching its final decision, considered only evidence that was competent and relevant. State v. Brown, 285 N.W.2d 843, 845 (S.D. 1979). |
10593470 | In the Matter of the Termination of the Franchise Agreement Between GROSETH INTERNATIONAL, INC., and International Harvester | In re the Termination of the Franchise Agreement between Groseth International, Inc. | 1989-06-14 | Nos. 15944, 15962 | 229 | 233 | 442 N.W.2d 229 | 442 | North Western Reporter 2d | South Dakota Supreme Court | South Dakota | 2021-08-10T17:25:14.515411+00:00 | CAP | MORGAN, HENDERSON, and, MILLER, JJ., concur. | In the Matter of the Termination of the Franchise Agreement Between GROSETH INTERNATIONAL, INC., and International Harvester. | In the Matter of the Termination of the Franchise Agreement Between GROSETH INTERNATIONAL, INC., and International Harvester.
Nos. 15944, 15962.
Supreme Court of South Dakota.
Considered on Briefs March 20, 1989.
Decided June 14, 1989.
Celia Miner of Brady, Reade & Johnson, Yankton, for appellant, Groseth Intern., Inc.
Robert B. Anderson of May, Adam, Gerdes & Thompson, Pierre, for appellee, Intern. Harvester. | 2736 | 16797 | WUEST, Chief Justice.
Groseth International, Inc. (Groseth), a South Dakota corporation, appeals a circuit court order granting the petition of International Harvester (IH) which sought the termination of a franchise agreement between it and Groseth. We affirm the circuit court’s decision.
Until 1985, Groseth was a franchised dealer of IH farm equipment located in Yankton, South Dakota. In addition to handling IH’s line of farm equipment, Gro-seth was also a franchised dealer of IH trucks under a separate agreement. This “Dealer Sales/Service Agreement” was entered by the parties on October 21, 1976.
In 1984, Tenneco, Inc. (Tenneco) and its subsidiary, J.I. Case Company (Case), negotiated the purchase of IH’s farm equipment division. IH became Navistar International and continued to manufacture and market medium- and heavy-duty trucks. Because Groseth was located in a “conflict area” in which both Case and IH dealerships existed, its farm equipment franchise was terminated. Groseth then brought suit against Tenneco and Case, claiming damages associated with losing the franchise. See Groseth Intern., Inc. v. Tenneco, Inc., 440 N.W.2d 276 (S.D.1989); Groseth Intern., Inc. v. Tenneco, Inc., 410 N.W.2d 159 (S.D.1987). The legal issues raised in the previous action are not related to this appeal.
This appeal stems from IH’s seeking to terminate its truck franchise agreement with Groseth. IH sought termination of the franchise agreement because Groseth refused to comply with IH’s requirements for a computerized communication system referred to as the “Dealer Communication Network” (DCN). The DCN was designed, in part, to eliminate manual processing of information and to provide more economical and efficient methods of communication between IH and its dealers and between the dealers themselves. Implementation of the DCN partially arose at the request of IH franchisees.' As a part of the DCN, each dealer was required to obtain a computer terminal, a display screen and the necessary software. The computer hardware could be purchased through a company designated by IH or through any other private vendor offering equipment which was compatible with the DCN.
On September 19, 1983, IH sent to its dealers, including Groseth, a memorandum which described the requirements for the DCN. All dealers were expected to sign a DCN agreement and be ready to participate in the system within six months of a “roll out meeting.” A representative of Groseth attended such a meeting in Sioux Falls, South Dakota on October 10, 1984. Although Groseth initially signed an agreement to become a part of the DCN, it subsequently failed to do so. As a result, IH notified Groseth on May 17, 1985, of its intent to terminate Groseth’s franchise. IH cited as its reason for terminating the franchise Groseth’s inability to communicate electronically with IH due to Groseth’s failing to procure the necessary computer hardware and software. IH contended that Groseth’s failure to do so breached certain provisions of the franchise agreement. Groseth had refused to comply with the DCN requirements because of the expense of the system and because of its pending litigation with Tenneco and Case regarding the farm equipment franchise.
IH initially notified Groseth that it would seek termination of the truck franchise if Groseth did not comply with the DCN requirements by October 8, 1985. This deadline was later extended to March 10, 1986. Written application to proceed with the termination of Groseth’s truck franchise was made by IH to the South Dakota Department of Commerce and Regulation, Division of Highway Patrol, Office of Dealer Licensing (Department) on January 23, 1986. In its application to the Department, IH requested a hearing to determine whether Groseth’s franchise could be terminated under the provisions of SDCL ch. 32-6A. Such a hearing was held on March 11, 1986. A second hearing was held on July 8, 1986, because the recording apparatus used to make the record at the first hearing failed. Representing Groseth at this hearing were Clifford and Carol Gro-seth. They appeared without the assistance of legal counsel.
At the time of the second hearing, 727 of IH’s 734 dealers had complied with the DCN requirements. Of the seven dealers who had not complied, three were new dealers who were taking steps toward meeting the requirements and three were dealers who were involved in bankruptcy proceedings. The seventh dealer, of course, was Groseth. The record further shows that the only function of which the DCN was capable at the time of the hearing was parts ordering. This task also could have been accomplished by telephonic or written orders. The other services for which the DCN was designed, such as truck ordering, warranty submissions, customer complaints and general communication between IH and the dealers as well as among the dealers themselves, were still in the developmental stages. This developmental process was expected to take an additional fifteen months.
The Department determined that Groseth had not breached the Dealer Sales/Service Agreement. Consequently, the Department dismissed IH’s petition seeking to terminate Groseth’s franchise, concluding that IH failed to show good cause for termination. IH appealed the Department’s decision to the circuit court. Thereafter, Groseth filed a motion to dismiss IH’s appeal, claiming that the circuit court lacked jurisdiction in the matter. Groseth con tended that the circuit court never acquired jurisdiction to hear IH’s appeal because service of the notice of appeal upon Gro-seth was defective. The circuit court denied Groseth’s motion to dismiss. It also reversed the Department’s decision, holding that Groseth, by refusing to become a part of the DCN, failed to substantially comply with the requirements imposed by the franchise agreement. The circuit court further held that the DCN requirements were both essential and reasonable. It concluded that Groseth’s failure to comply with these requirements constituted an independent basis upon which good cause for termination had been shown.
Groseth now appeals the circuit court’s decision to this court. It contends that the circuit court erred in refusing to dismiss IH’s appeal for lack of jurisdiction. Gro-seth also claims that the circuit court erred in holding that IH had shown good cause to terminate Groseth’s truck franchise. IH, having complied with the notice of review requirements contained in SDCL 15-26A-22, asks this court to review that portion of the circuit court’s decision which held that IH waived the issue of anticipatory breach of the franchise agreement.
We disagree with Groseth’s contention that the circuit court erred in refusing to dismiss IH’s appeal. Groseth asserts that notice of appeal in this matter was improperly served. It claims that the requirements of SDCL 1-26-31 which regard serving of a notice of appeal are satisfied only by personal service or service by registered or certified mail. Although Groseth actually received within the statutorily prescribed time period IH’s notice of appeal, it argues nonetheless that notice was served improperly because it arrived via ordinary, first class mail.
The statute upon which Groseth principally relies, SDCL 1-26-31, reads as follows:
An appeal shall be taken by serving a notice of appeal upon the adverse party and upon the agency which rendered the decision, and by filing the same, or a certified copy, with proof of such service in the office of the clerk of courts of the county in which the venue of the appeal is set, within thirty days after the agency served notice of the final decision or, if a rehearing is authorized by law and is requested, within thirty days after notice has been served of the decision thereon. Service required by this section may be performed by registered or certified mail and is complete when the material to be served is deposited with the United States postal service.
We note that only the last sentence of this statute pertains to serving a notice of appeal. The operative verb in said sentence is “may be performed.” Ordinarily, the word “may” in a statute is given a permissive or discretionary meaning. It is not obligatory or mandatory as is the word “shall.” See Person v. Peterson, 296 N.W.2d 537 (S.D.1980); Tubbs v. Linn, 75 S.D. 566, 70 N.W.2d 372 (1955); 2A Sutherland Stat. Const. § 57.03 at 643-44 (4th ed. 1984); Sutton, Use of “Shall” in Statutes, 4 J. MARSHALL L.Q. 204 (1938), reprinted in 1A Sutherland Stat Const. 691 (4th ed. 1985). The clear language of SDCL 1-26-31 therefore indicates that proper service of a notice of appeal from an administrative proceeding is not limited to service by registered or certified mail. We believe that service of such notices of appeal also may be accomplished in the same manner by which a summons and complaint, as well as other pleadings, are served, i.e., personal service or service by ordinary, first class mail. See SDCL 15-6-5(b). Accordingly, we hold that the circuit court did not lack jurisdiction in this matter and that said court did not err in refusing to dismiss IH’s appeal.
In its second issue on appeal, Gro-seth claims that the record does not support the circuit court’s determination that the franchise agreement was breached by Groseth or that IH had good cause to terminate Groseth’s franchise. We, like Gro-seth, view this issue as a mixed question of law and facts. Because this matter arose from an agency decision, we apply the standard of review which was clearly set out by this court in Permann v. Dept. of Labor, Unemp. Ins. D., 411 N.W.2d 113 (S.D.1987). In Permann, we held that a mixed question of law and facts is treated in the same manner as question of law. Such questions are of the type which we may freely review. Id. at 119.
A franchisor seeking to terminate a franchise under the provisions of SDCL ch. 32-6A must show that it has good cause for termination. SDCL 32-6A-5. The only statutory guidance as to what constitutes good cause is found in SDCL 32-6A-6, which provides:
In determining whether good cause has been established for terminating or not continuing a franchise, the department of commerce and regulation shall take into consideration the existing circumstances, including, but not limited to:
(1) Failure by the franchisee to substantially comply with those requirements imposed upon him by the franchise, which requirements are both essential and reasonable.
(2) Use of bad faith by the franchisee in carrying out the terms of the franchise.
IH, in a letter notifying Groseth of its intent to seek termination of Groseth’s franchise, accused Groseth of breaching paragraphs “9, 16(a)(l)(iv), 16(b)(4), 16(b)(5), 16(c)(2), 16(c)(5), 16(c)(7), 16(c)(9), 18, and 25” of the franchise agreement. The Department found that no breach of the franchise agreement had occurred. We note that the DCN capabilities which related to the provisions in paragraphs 9, 16(a)(l)(iv), 16(b)(4), 16(c)(2), 16(c)(5), 16(c)(7), 16(c)(9), 18, and 25 were still in the developmental stages at the time of the hearing. Therefore, the Department’s determination as to these sections was not erroneous.
We, however, do not reach the same conclusion in regard to paragraph 16(b)(5) of the franchise agreement. This section required Groseth “[t]o cooperate with the Company by placing orders for goods in accordance with advance ordering programs announced by the Company.” Although the DCN was not specifically mentioned in the franchise agreement,, we believe that Groseth’s refusing to utilize the system for the one function of which it was then capable, namely, parts ordering, constituted not only a breach of the franchise agreement but also good cause for terminating its franchise. The record shows that at the time of the hearing, Groseth still did not possess the required computer hardware and software which would enable it to order parts via the DCN. Futher-more, it had taken no steps toward meeting the DCN requirements. Our review of the record indicates that the DCN, even with its limited capabilities at the time of the hearing, was an essential and reasonable requirement to impose upon Groseth and the other dealers. Implementation of the DCN was viewed as a necessary step in the effort to reorganize IH so it could compete in the marketplace and remain a viable business. The use of the DCN by IH dealers allowed IH to trim its payroll of employees who previously had been needed to manually process orders and conduct business with dealers. In addition, Groseth was the only IH dealer who refused to participate in the DCN. Unrefuted testimony at the hearing indicated that its refusing to do so presented a hardship to IH.
In light of the foregoing, we hold that IH established good cause for terminating Groseth’s truck franchise and affirm the decision of the circuit court. We deem the issue which IH raises by notice of review to be moot and need not address it.
MORGAN, HENDERSON, and, MILLER, JJ., concur.
SABERS, J., concurs in part and concurs specially in part.
. We note that the South Dakota Legislature repealed SDCL ch. 32-6A shortly after IH applied to the Department, seeking termination of Groseth’s truck franchise. See 1986 S.D.Laws ch. 250, § 63. The statutory provisions regulating vehicle dealers are now contained in SDCL ch. 32-6B.
. Because Groseth was not represented by legal counsel at the hearing, IH sent the notice of appeal to the person appearing on Groseth’s behalf, namely, Clifford Groseth.
. We note that in certain instances, the word "may” has the effect of "must.” See State ex rel. South Dakota Game & Fish Comm’n v. O’Neill, 62 S.D. 522, 254 N.W. 265 (1934). Although the form of verb used in a statute, i.e., whether it says something "may,” "shall” or "must” be done, is the single most important textual consideration determining whether a statute is mandatory or directory, it is not the sole determinant. Other considerations, such as legislative intent, can overcome the meaning which such verbs ordinarily connote. 2A Sutherland Stat. Const. § 57.03 at 643-44 (4th ed. 1984). In our search to ascertain the legislature's intended meaning of statutory language, we look to the words, context, subject matter, effects and consequences as well as the spirit and purpose of the statute. See Tubbs, 75 S.D. at 571, 70 N.W.2d at 375. We believe that the legislative intent in the present case is nearly as clear as the language of SDCL 1-26-31, itself. The legislature’s use of the word “shall” in the statute’s first sentence in regard to notice of appeal and filing and the use of the word "may” in the last sentence in regard to service of said notice of appeal indicate to us that the change in verbs was intentional. Furthermore, the purpose of SDCL 1-26-31, i.e., conferring jurisdiction over the parties, can be accomplished by serving a notice of appeal in a manner which differs from that specified in the statute.
. Under SDCL 32-6A-5, the franchisor also must show that "upon termination ..., another franchise in the same line-make will become effective in the same community, without diminution of the motor vehicle service formerly provided, or that the community cannot be reasonably expected to support such a dealership.” The Department, in its findings of fact, determined that the Yankton community could not support a new IH truck franchise if Groseth’s franchise was terminated. Groseth did not appeal this finding to the circuit court. Consequently, the only remaining issue before this court is whether IH had good cause to terminate Groseth’s franchise. |
10598089 | Gary NIELSEN and Diana M. Nielsen, d/b/a Noah's Critters, Plaintiffs and Appellants, v. Terrence W. McCABE and Cynthia M. McCabe, d/b/a Noah's Critters of Watertown, South Dakota, and Oscar Nygaard, Defendants and Appellees | Nielsen v. McCabe | 1989-06-28 | No. 16318 | 477 | 482 | 442 N.W.2d 477 | 442 | North Western Reporter 2d | South Dakota Supreme Court | South Dakota | 2021-08-10T17:25:14.515411+00:00 | CAP | Gary NIELSEN and Diana M. Nielsen, d/b/a Noah’s Critters, Plaintiffs and Appellants, v. Terrence W. McCABE and Cynthia M. McCabe, d/b/a Noah’s Critters of Watertown, South Dakota, and Oscar Nygaard, Defendants and Appellees. | Gary NIELSEN and Diana M. Nielsen, d/b/a Noah’s Critters, Plaintiffs and Appellants, v. Terrence W. McCABE and Cynthia M. McCabe, d/b/a Noah’s Critters of Watertown, South Dakota, and Oscar Nygaard, Defendants and Appellees.
No. 16318.
Supreme Court of South Dakota.
Argued March 21, 1989.
Decided June 28, 1989.
Daniel R. Fritz of Maloney, Kolker, Fritz, Hogan & Johnson, Aberdeen, for plaintiffs and appellants.
Paul I. Hinderaker of Austin, Hinderaker, Hackett & Hopper, Watertown, for defendants and appellees, Terrence W. McCabe and Cynthia M. McCabe.
James C. Roby of Green, Schulz, Roby & Ford, Watertown, for defendant and appel-lee, Oscar Nygaard. | 2252 | 14051 | MORGAN, Justice.
Gary and Diana Nielsen (Nielsen) appeal from a judgment entered against them in their unlawful detainer action against Terrence and Cynthia McCabe (McCabe) and from a declaratory judgment holding that their lease agreement with Oscar Nygaard (Nygaard) was null and void. We affirm in part, reverse in part, and reverse and remand in part.
In September 1978, Nielsen opened a pet store in Watertown in a premises leased from Helen Paulis. The store was a complete pet shop with a full line of inventory, furniture, fixtures and equipment, all of which were owned by Nielsen. The store was run by a manager as Nielsens also operated pet shops in Aberdeen and Huron. Nielsen’s line of stores were all named “Noah’s Critters,” but the name was not registered in accordance with the franchising statutes, SDCL ch. 37-5A.
A friendship developed between Nielsen and McCabe and on April 27, 1979, the parties signed an agreement wherein McCabe leased from Nielsen the real property and “premises” of Noah’s Critters located in Watertown. Pursuant to this agreement, McCabe sublet the Paulis building, purchased Nielsen’s inventory of pets and supplies, leased fixtures and was permitted to use the name “Noah’s Critters” for a term of five years. McCabe was to make three payments of $1,000 each, plus a percentage based upon gross income from the business.
McCabe took over the store, paid rent, utilities, telephone, and advertising, purchased insurance, and acquired a sales tax license. In March 1981, the Paulis building burned. McCabe negotiated a lease with Nygaard but a written document was never signed. McCabe operated the pet store at the Nygaard property through April of 1984.
The Nielsen/McCabe agreement expired on April 27, 1984. McCabe notified Nielsen that he did not intend to renew the agreement. Nielsen then contacted Nygaard and signed a written lease for the store building. Subsequently, Nielsen commenced an action to evict McCabe from the Nygaard property. Nygaard was joined as an indispensable party and sought a determination that the Nielsen/Nygaard ’ease was null and void. McCabe tendered a return of Nielsen’s fixtures and counterclaimed, seeking rescission of the 1979 agreement, plus actual and punitive damages.
The trial court held that the Nielsen/Ny-gaard lease was null and void because of fraud, mistake and lack of mutual consent. Further, that the Nielsen/McCabe agreement was a franchise agreement that McCabe was entitled to rescind because Nielsen had failed to register the franchise pursuant to SDCL 37-5A-6, and because Nielsen breached the franchise agreement. Having concluded that the agreement was a franchise and McCabe was entitled to rescind, the trial court determined damages. McCabe was allowed to recover from Nielsen all payments made under the franchise agreement, attorney fees incurred in defending the action, and prejudgment interest. Nielsen was awarded possession and return of the fixtures and equipment located in the store, together with fair rental value for their use, certain remodeling expenses incurred by Nielsen, plus prejudgment interest.
On appeal, Nielsen raises the following issues:
(1) Whether the Nielsen/Nygaard lease was a binding contract entitling Nielsen to possession of the real property.
(2) Whether the Nielsen/McCabe agreement is a lease, not a franchise.
(3) Whether McCabe is entitled to rescission of the Nielsen/McCabe agreement when he failed to raise the issue until after the agreement terminated by its own terms.
(4) Whether the damage award and the judgment granting McCabe attorney fees and costs are supported by the evidence
(5) Whether the trial court erred in . awarding McCabe prejudgment interest.
We first set out our standard of review. A trial court’s finding of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. SDCL 15-6-52(a). “In applying this standard, this court will not overturn the trial court’s decision unless, after reviewing all the evidence, we are left with a definite and firm conviction that a mistake has been made.” Smith v. Sponheim, 399 N.W.2d 899, 901 (S.D.1987); Wiggins v. Shewmake, 374 N.W.2d 111, 114 (S.D.1985).
As his first issue, Nielsen contends that the lease agreement with Nygaard was a binding contract entitling him to the possession of the real property. He cites no authority for his position. Failure to cite supporting authority is a violation of SDCL 15-26A-60(6). Therefore, this issue is deemed waived. Kanaly v. State ex rel. Janklow, 403 N.W.2d 33 (S.D.1987); Kostel Funeral Home, Inc. v. Duke Tufty Co., 393 N.W.2d 449 (S.D.1986). We affirm the trial court as to this issue.
As his second issue, Nielsen contends that the trial court erred in holding that the Nielsen/McCabe agreement was a franchise. He argues that by its terms the agreement is a lease and not a franchise. Further, that SDCL 37-5A-2 provides that a business operated on leased premises is not a franchise. We disagree.
SDCL 37-5A-2 provides:
As used in this chapter, the term ‘franchise’ does not include any business which is operated under a lease on the premises of the lessor as long as such business is incidental to the business conducted by the lessor on such premises, including, without limitation, leased departments and concessions. (Emphasis added.)
Nielsen fails to explain how this provision is relevant in this case. At the inception of the contract between the parties, Nielsen had a leasehold interest in the Pau-lis property, he did not have an interest in fee in the premises. Further, Nielsen had a number of pet stores in neighboring communities. McCabe leased one of his pet stores, and pursuant to the agreement, continued to conduct business under Nielsen’s name, “Noah’s Critters.” We find SDCL 37-5A-2 inapplicable to these facts.
Next, we must determine whether the agreement was a franchise, as a matter of law. In doing so, we look at the substance of the agreement rather than its form. SDCL 37-5A-1 provides:
As used in this chapter, unless the context clearly requires otherwise, ‘franchise’ means contract or agreement, either express or implied, whether oral or written, for a definite or indefinite period, between two or more persons:
(1) By which a franchisee is granted the right to engage in the business of offering or distributing goods or services using the franchisor’s trade name, trade-mark, service mark, logotype, advertising, or other commercial symbol of related characteristics;
(2) In which the franchisor and franchisee have a community of interest in the marketing of goods or services at wholesale, retail, by lease, agreement or otherwise; and
(3) For which the franchisee is required to pay, directly or indirectly, a franchise fee.
SDCL 37-5A-3 provides:
As used in this chapter, unless the context clearly requires otherwise, ‘franchise fee’ means any fee or charge that a franchisee or sub-franchisor is required to pay or agrees to pay for the right to enter into a business or to continue a business under a franchise agreement, including, but not limited to, the payment either in lump sum or by installments of an initial capital investment fee, any fee or charges based upon a percentage of gross or net sales whether or not referred to as royalty fees, any payment for goods or services, or any training fees or training school fees or charges.
While the Nielsen/McCabe agreement does not contain the word “franchise,” it is clear that it is a franchise agreement pursuant to SDCL 37-5A-1. In paragraph one of the agreement, McCabe was granted the right to use Nielsen’s trade name, and insignia as well as his advertising and merchandizing methods. SDCL 37-5A-l(l). Both Nielsen and McCabe invested their time and money into the business. In paragraph nine, McCabe agreed to furnish statements, reports and other documents pertaining to the operation of the business. In paragraph ten, Nielsen reserved the right to inspect merchandise, inventory and services rendered. Clearly, both had a community of interest in the marketing of pets. SDCL 37-5A-l(2). Furthermore, the agreement provided for a “fee” to be paid in three installments, “as a fee for the use of the ‘NOAH’S CRITTERS’ name, the fixtures, gondolas, tanks, cages, and grooming equipment, furnished ... and all of the commercial advantages created herein and related thereto, and, thereafter, a fee of five percent (5%) of the total gross sales of ‘NOAH’S CRITTERS’ made by [McCabe] on a monthly basis.” SDCL 37-5A-l(3) and SDCL 37-5A-3. It is our opinion that the Nielsen/McCabe agreement was a franchise agreement as a matter of law and we affirm the trial court on this issue.
Having concluded that this is a franchise as a matter of law, we now turn to the issue of whether McCabe was entitled to rescind the agreement. The trial court held that the agreement was void because Nielsen failed to register the franchise and voidable because Nielsen breached the agreement. Nielsen contends that the trial court erred in hoding that a violation of franchise statutes automatically allows rescission. Further, that McCabe is not entitled to rescission having failed to comply with established rules of rescission (SDCL 53-11-4), since they did not raise rescission until the agreement between the parties expired by its own terms.
In support of his proposition that violation of franchise statutes does not automatically allow rescission, Nielsen cites Martschinske v. Olympic Styles, Inc., 628 F.Supp. 231 (D.S.D.1984) (affirmed 774 F.2d 1172 (8th Cir.1985); Northwest Realty Co. v. Carter, 338 N.W.2d 669 (S.D.1983); Bagel Enterprises, Inc. v. Baskin & Sears, 56 Md.App. 184, 467 A.2d 533 (1983); Kemp v. Weber, 180 Md. 362, 24 A.2d 779 (1942); Clapp v. Peterson, 327 N.W.2d 585 (Minn.1982); and Fedorenko v. Rudman, 71 N.W.2d 332 (N.D.1955). A comparative analysis of these cases persuades us that McCabe must comply with established rules of rescission and he is not automatically entitled to rescission upon violation of franchise filing statutes. “[T]he Legislature did not intend franchise agreements to be void in their inception because the franchisor failed to register the offer.” Martschinske, 628 F.Supp. at 237. “More significantly, this court is also persuaded that ‘the rescission remedy provided by the franchise investment law is the ordinary remedy of rescission.’ ” Id. (citing Fargo Biltmore Motor Hotel Corp. v. Best Western International, Inc., 563 F.Supp. 1022, (D.N.D.1983) (affirmed 742 F.2d 459 (8th Cir.1984))).
We must now determine whether McCabe has waived his right to rescind the agreement by his failure to comply with the established rules of rescission. SDCL 53-11-4 provides:
The party rescinding a contract must rescind promptly, upon discovering the facts which entitle him to rescind, if he is free from duress, undue influence, or disability, and is aware of his right to rescind.
Whether the rescinding party acted with due promptness is a question of law. Saunders v. Farmers’ & Merchants’ Nat. Bank of Milbank, 61 S.D. 261, 248 N.W. 250 (1933). “A party to a contract who, after discovery or knowledge of facts which would entitle him to rescind, treats the contract as a subsisting obligation and leads the other party to believe that the contract is still in effect waives his right to rescind.” Kane v. Schnitzler, 376 N.W.2d 337, 340 (S.D.1985) (quoting 17 Am.Jur.2d Contracts § 489 (1964)).
In this case, McCabe testified that he was aware of his rights under the contract prior to signing the agreement. He specifically discussed the agreement with an attorney hired for the purpose of advising him as to the interpretation and binding effect of the agreement. McCabe freely entered into the agreement and received all the benefits of the contract. It was not until five years later, when the agreement had expired on its own terms, that McCabe raises this issue. On these facts, as in Kane, McCabe has waived his right to rescission through his conduct. His lack of promptness, in effect, affirmed the contract between the parties. We reverse as to this issue.
Finally, we examine Nielsen’s issues on damages, attorney fees and prejudgment interest. Because we reverse the decision on rescission, we must consequently reverse the damage awards so far as they restore the sums paid by McCabe for franchise fees, fixed rental on the personal property used by McCabe, and such other awards as arise directly from the rescission determination. We note that even though McCabe waived his right to the relief of rescission, he may nevertheless sue for damages caused by Nielsen’s failure to comply with the franchise laws. SDCL 37-5A-83. SDCL 37-5A-85 authorizes the trial court to award “actual” damages together with costs and disbursements plus reasonable attorney fees. At the trial court’s discretion, treble damages may also be awarded.
We therefore reverse the awards of damages to Nielsen and McCabe, attorney fees and prejudgment interest, and remand the case to the trial court for reconsideration of those issues in light of our decision on the rescission determination. We affirm the trial court on the issue of the Nielsen/Nygaard lease and the costs taxed.
We affirm in part, reverse in part, and reverse and remand in part.
All the Justices concur. | |
10598017 | John Mark VELLINGA, Plaintiff and Appellant. v. Delores Ann VELLINGA, Defendant and Appellee | Vellinga v. Vellinga | 1989-06-21 | No. 16139 | 472 | 477 | 442 N.W.2d 472 | 442 | North Western Reporter 2d | South Dakota Supreme Court | South Dakota | 2021-08-10T17:25:14.515411+00:00 | CAP | MORGAN, SABERS and MILLER, JJ., concur. | John Mark VELLINGA, Plaintiff and Appellant. v. Delores Ann VELLINGA, Defendant and Appellee. | John Mark VELLINGA, Plaintiff and Appellant. v. Delores Ann VELLINGA, Defendant and Appellee.
No. 16139.
Supreme Court of South Dakota.
Considered on Briefs Jan. 9, 1989.
Decided June 21, 1989.
Gary J. Pashby and Michael S. McKnight of Boyce, Murphy, McDowell & Greenfield, Sioux Falls, for plaintiff and appellant.
Lee R. Burd, Sioux Falls, Judy Garnos, Legal Intern, on the brief, for defendant and appellee. | 3290 | 20594 | McMURCHIE, Circuit Judge.
Husband appeals the trial court’s denial of his request for retroactive modification of his child support obligation and claims the trial court erred in interpreting the terms of his obligation and in calculating arrearages.
FACTS
John (husband) and Delores (wife) Vellin-ga were divorced in 1981. At the divorce hearing, husband and his attorney offered a stipulation and agreement (stipulation) which was accepted by the trial court and incorporated by reference in the divorce decree.
Under the terms of the stipulation, wife was granted custody of the couple’s one child and husband agreed to pay child support. Husband was employed as a real estate salesman at the time of the divorce and has continued to be so employed. The stipulation required him to pay 15% of his gross earnings as child support. Husband was to make the support payments on or about the fifth day of each month following receipt of his commission check.
Husband fell behind in his support payments. He made no payments in 1986. When this pattern of non-payment continued until September 1987, wife filed an order to show cause, seeking arrearages. Wife requested that arrearages be based upon 15% of husband’s gross earnings from real estate commissions.
The hearing was held on October 26, 1987. Three days prior to the hearing husband filed a petition urging the trial court to either: 1) interpret the terms of the stipulation to mean that his support obligation was based upon his total income as reported in his income tax return, or 2) retroactively modify and recalculate his support obligation based upon either his income as taken from his tax returns or upon his commission income after subtracting his business expenses. Husband urged the trial court to adopt one of these alternative theories rather than base his support obligation on his gross income from real estate commissions.
The trial court ruled that husband’s support obligation was to be based upon his gross earnings from real estate commissions. The trial court found that husband’s gross earnings from real estate commissions totaled $226,939.25 for the period of time from 1981 through October 23, 1987. The trial court further found, by applying the 15% formula, that husband was obligated to pay $34,040.89 for the same period of time. From this amount the trial court subtracted the amount of child support that husband had paid, $11,202.50, to arrive at a finding of arrearages in the amount of $22,838.39. Judgment was entered accordingly.
ISSUE I
DID THE TRIAL COURT ERR IN DENYING HUSBAND’S REQUEST FOR MODIFICATION OF HIS PAST DUE SUPPORT PAYMENTS?
Husband contends that the trial court had the authority to retroactively modify his support obligation. Specifically, he claims that SDCL 25-7-7.3 only applies to payments which accrue after the effective date of the statute. He contends that the trial court erred in denying his request for retroactive modification of the payments which accrued prior to July 1, 1987.
Wife urges that the trial court properly denied husband’s request for retroactive modification. She asserts that SDCL 25-7-7.3 prohibits modification of arrearages which accrued prior to the time that the trial court was petitioned for modification.
Prior to passage of SDCL 25-7-7.3, this court held that a trial court had authority to retroactively modify child support payments. State ex rel. Larsgaard v. Larsgaard, 298 N.W.2d 381 (S.D.1980). Retroactive modification was permitted under the discretion provided by SDCL 25-4-41 and SDCL 25-4-45. Id. Modification was allowable even where the original judgment was based upon a stipulation between the parties. Connolly v. Connolly, 270 N.W.2d 44 (S.D.1978).
In 1987, however, the South Dakota Legislature addressed the issue of retroactive modification of past due support payments with the enactment of SDCL 25-7-7.3. That statute provides:
Any past due support payments are not subject to modification by a court or administrative entity of this state, except those accruing in any period in which there is pending a petition for modification of the support obligation, but only from the date that notice of hearing of the petition has been given to the obli-gee, the obligor, and any other parties having an interest in such matters.
The question of whether SDCL 25-7-7.3 is to be given retroactive application is an issue of first impression for this court. The construction of a statute is a question of law. Nash Finch Co. v. South Dakota Dept. of Rev., 312 N.W.2d 470 (S.D.1981). Rules regarding the construction of statutes have, however, been set forth by the South Dakota Legislature. Statutes are not to be construed as retroactive unless such intention plainly appears. SDCL 2-14-21. Words are to be under stood in their ordinary sense. SDCL 2-14-1.
The express language of SDCL 25-7-7.3 divides past due support payments into two groups: 1) payments which accrue subsequent to the petitioning for modification, and 2) payments which accrued prior to the petitioning for modification. Payments which accrue while a petition for modification is pending may be modified, but only from the date that notice of hearing has been given to the obligee and any other interested parties. Payments which accrued prior to the filing of a petition to modify may not be modified.
The legislature’s intent to prohibit modification in all but very limited circumstances plainly appears on the face of the statute. A narrow window is provided for modification of past due payments which accrue after notice of hearing is given to the obligee. Any other past due support payments are not subject to modification. The use of the term any, understood in its ordinary sense, clearly encompasses both past due support payments which accrued after the effective date of the statute and those which accrued prior to July 1, 1987.
In applying the rules of statutory construction to SDCL 25-7-7.3, we conclude that legislature’s intention that this statute be given retroactive application plainly appears on the face of the statute. We further note that in 1987 the legislature enacted several additional statutes that address child support obligations. See SDCL 25-7-7.1 through SDCL 25-7-7.5. For the most part, the purpose of these statutes appears to be to clarify and generally tighten the liability of the obligor. This comprehensive effort by the legislature further persuades the court that SDCL 25-7-7.3 was intended to be given retroactive application. Each statute must be construed according to its manifest intent as derived from the statute as a whole, as well as other enactments relating to the same subject. Meyerink v. Northwestern Public Service Co., 391 N.W.2d 180 (S.D.1986). For these reasons, we specifically hold that SDCL 25-7-7.3 is to be applied retroactively.
Husband did not petition the court for modification of past due support until October 23, 1987, three days before the hearing was held. The payments which he sought modification of accrued prior to the filing of his petition. SDCL 25-7-7.3 prohibits modification of payments which accrued prior to the filing of a petition for modification. The trial court properly refused to modify husband’s past due support obligation. We affirm the trial court on this issue.
ISSUE II
IN INTERPRETING THE TERMS OF HUSBAND’S SUPPORT OBLIGATION AND IN CALCULATING ARREARAG-ES, DID THE TRIAL COURT ERR IN REFUSING TO CONSTRUE GROSS EARNINGS TO MEAN TOTAL INCOME AS TAKEN FROM HIS INCOME TAX RETURNS?
The stipulation that the parties entered into at the time of the divorce, provides that:
7. a. The parties acknowledge that Plaintiff’s [husband’s] earnings are derived from real estate commission sales, and because of the unpredictability of his earnings, the parties agree that Plaintiff shall pay to Defendant as child support, 15% of his gross earnings which are to be paid on or about the 5th day of each month following receipt of his commission check, if any.
Husband argues that the term gross earnings was intended to mean the total income shown by his income tax returns. In the alternative, husband argues that gross earnings should be construed to mean his net income from his real estate commissions. Under this alternative theory gross earnings would be arrived at by subtracting his business expenses from his gross income from real estate commissions. In support of this alternative theory, husband argues that at the time of the divorce his business expenses were paid by the broker with whom he was associated. After the divorce, commencing sometime in 1981, he was required to pay his own expenses. Husband claims that the trial court erred in not interpreting gross earnings according to one of his theories.
Husband’s alternative theories of interpretation were presented for the trial court’s consideration. The trial court was unpersuaded. The trial court noted from the bench that husband had “made his own deal” and that determining the amount he owed is “just a matter of running a calculator.”
The trial court specifically found that husband proposed the stipulation and knew and understood its meaning. The court further found that the stipulation required husband to pay 15% of his total gross earnings from his real estate commissions each month as child support. Specific findings were entered regarding the amount of husband’s gross earnings from real estate commissions, the amount of child support paid since the divorce, and the amount of back support due to wife. The trial court concluded that wife was entitled to these arrearages as a matter of law and entered judgment accordingly.
The trial court did not find the terms of the stipulation which imposed the support obligation to be ambiguous. Neither do we. Interpreting gross earnings to mean the gross income from husband’s real estate commissions is no more than a literal reading of the express language of the agreement. The trial court did not err in interpreting the terms of the stipulation.
' The trial court is affirmed on the merits of this issue as well. Only the recalculation of the amount of arrearages is remanded to the circuit court in order that the addition error, as explained in footnote 2, may be corrected.
MORGAN, SABERS and MILLER, JJ., concur.
HENDERSON, J., dissents.
McMURCHIE, Circuit Judge, for WUEST, C.J., disqualified.
. Neither party is represented by the attorney that represented him or her in the original divorce proceedings.
. Upon review this court notes that there appears to be an error in the addition of the support payments actually made. The amounts of paid support listed on page 4 of wife's brief and on page 18 of the settled record total $12,-202.50 rather than $11,202.50. If the amount of support payments actually made is in error, the amount of arrearages due will be in error by the same amount. |
6914225 | Frank ASHLEY, Petitioner, v. Darin YOUNG, Warden of the South Dakota State Penitentiary, Respondent | Ashley v. Young | 2014-09-17 | No. 27085 | 347 | 352 | 854 N.W.2d 347 | 854 | North Western Reporter 2d | South Dakota Supreme Court | South Dakota | 2021-08-10T17:28:38.712524+00:00 | CAP | 11 13.] GILBERTSON, Chief Justice, and KONENKAMP, SEVERSON, and WILBUR, Justices, concur. | Frank ASHLEY, Petitioner, v. Darin YOUNG, Warden of the South Dakota State Penitentiary, Respondent. | 2014 S.D. 66
Frank ASHLEY, Petitioner, v. Darin YOUNG, Warden of the South Dakota State Penitentiary, Respondent.
No. 27085.
Supreme Court of South Dakota.
Considered on Briefs Aug. 14, 2014.
Decided Sept. 17, 2014.
John R. Murphy, Murphy Law Office, PC, Rapid City, South Dakota, Attorneys for petitioner.
Marty J. Jaekley, Attorney General, Pierre, South Dakota, Mark A. Vargo, Pennington County State’s Attorney, Patrick M. Grode, Pennington County Deputy State’s Attorney, Rapid City, South Dakota, Attorneys for respondent. | 2342 | 14494 | ZINTER, Justice.
[¶ 1.] Frank Ashley moved this Court for a certificate of probable cause (CPC) to appeal the circuit court’s denial of his petition for habeas corpus. In denying the motion, we clarify the standard of review and showing necessary for applicants to obtain CPCs from this Court.
Facts and Procedural History
[¶ 2.] In 2009, Frank Ashley was found guilty of three counts of third-degree rape of a victim less than sixteen years of age; one count of fourth-degree rape of a victim between thirteen and sixteen years of age; four counts of sexual contact with a child under sixteen years of age; and one count of aggravated incest. He was sentenced to fifteen years imprisonment on each conviction, to be served consecutively, for a total of 135 years. This Court summarily affirmed the conviction on direct appeal (# 25346).
[¶ 3.] Ashley submitted his first application for writ of habeas corpus in 2011. The circuit court dismissed the application and denied the issuance of a CPC. Pursuant to SDCL 21-27-18.1, Ashley moved this Court for a CPC to permit an appeal of the denial of his application. In 2012, this Court reversed the habeas court’s dismissal and remanded the matter for an evidentiary hearing on Ashley’s claims.
[¶ 4.] After a continuance requested by Ashley, the habeas court held an evidentia-ry hearing in November 2013. The court received evidence, including testimony from Ashley, Ashley’s trial counsel Ellery Grey, and the State’s expert witness, attorney Robert Van Norman. The court entered findings of fact, conclusions of law, and an order denying Ashley’s application. The court also denied Ashley’s motion for a CPC.
[¶5.] Ashley now seeks to appeal the habeas court’s final order denying relief. A final order entered in habeas corpus proceedings “may not be reviewed by the Supreme Court ... on appeal unless the circuit judge who renders the judgment or a justice of the Supreme Court issues a certificate of probable cause that an ap-pealable issue exists.” SDCL 21-27-18.1. Because the habeas court denied Ashley’s motion for a CPC, he has filed a motion for a CPC with this Court.
Decision
[¶ 6.] At its core, the CPC procedure is designed for this Court to conduct “discretionary appellate review of ha-beas petitions.” See Lange v. Weber, 1999 S.D. 138, ¶10, 602 N.W.2d 273, 275-76 (citing Lynch v. Blodgett, 999 F.2d 401, 403 (9th Cir.1993)). Discretionary appellate review is “[t]he primary means of separating meritorious from frivolous appeals,” see id. (quoting Barefoot v. Estelle, 463 U.S. 880, 892-93, 103 S.Ct. 3383, 3394, 77 L.Ed.2d 1090 (1983)) (internal quotation marks omitted), an essential procedure given the “increasing burden of frivolous appeals in post-conviction proceedings,” see id. ¶ 12, 602 N.W.2d at 276.
[¶ 7.] Before Lange, there was limited authority — a single statute, SDCL 21-27-18.1, and little state case law — on which to rely in reviewing CPC motions. Recognizing that the purpose of our CPC procedure was similar to the federal courts’ certificate of appealability, the Lange Court adopted the federal certificate of appealability standards relating to the content of a CPC granted by a circuit court. See 1999 S.D. 138, ¶¶ 11-12, 602 N.W.2d at 276. This Court limited its adoption of the federal standards to the requirements of the CPC itself. Doing so addressed the limited controversy before us in Lange: it resolved a habeas court’s dismissal of a habeas application as merit-less and its contradictory issuance of a certificate indicating that there was probable cause to appeal. See id. ¶ IB, 602 N.W.2d at 276. Although Lange provided instruction on how habeas courts were to issue CPCs, this Court has yet to provide similar guidance on the standard of review and the showing an applicant must make to obtain a CPC.
[¶ 8.] SDCL 21-27-18.1 provides that a CPC certifies there is “probable cause that an appealable issue exists.” Lange added the requirement that a habeas court’s CPC must indicate “a substantial showing of the denial of a constitutional right.” Lange, 1999 S.D. 138, ¶ 12, 602 N.W.2d at 276 (quoting 28 U.S.C. § 2258(c)(2)). By adopting the federal standard, Lange interpreted SDCL 21-27-18.1’s “probable cause” language to require a substantial showing of the denial of a constitutional right. Although this showing concerned the certificate itself, it also necessarily describes an applicant’s required showing to obtain a CPC. See Lange, 1999 S.D. 138, ¶ 9, 602 N.W.2d at 275 (“[A] certificate may only issue if the applicant ‘has made a substantial showing of the denial of a constitutional right.’ ” (quoting 28 U.S.C. § 2253(c)(2))).
[¶ 9.] The “substantial showing” requirement is imposed because a motion for a CPC is not an appeal of the underlying habeas matter, or a proxy thereof. It is an intermediate procedure affording this Court “discretionary appellate review of habeas petitions.” See Lange, 1999 S.D. 138, ¶ 10, 602 N.W.2d at 275-76. SDCL 21-27-18.1 and the federal certificate of appealability statute share this purpose of providing intermediate, discretionary review. Under the similar federal procedure, the appropriate standard of review does not permit a reviewing court to give “full consideration [to] the factual and legal bases adduced in support of the claims.” See Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 1039, 154 L.Ed.2d 931 (2003) (referring to 28 U.S.C. § 2253). We agree with that proposition under SDCL 21-27-18.1. To consider the full merits of the factual and legal claims in a petitioner’s CPC motion, this Court would need the complete record. Moreover, such a procedure would circumvent the intermediate, discretionary review jurisdiction the Legislature provided in SDCL 21-27-18.1. Cf Miller-El, 537 U.S. at 336-37, 123 S.Ct. at 1039 (concluding, with regard to 28 U.S.C. § 2253, “[w]hen a court of appeals sidesteps the preliminary appealability process by first deciding the merits of an appeal and then justifying its denial of a [certificate] based on its adjudication of the actual merits, it is in essence deciding an appeal without jurisdiction”).
[¶ 10.] Given the similarities between SDCL 21-27-18.1 and 28 U.S.C. § 2253, and considering our decision in Lange, federal case law provides further guidance on the standard that applies in reviewing whether a substantial showing of the denial of a constitutional right has been made under SDCL 21-27-18.1. A “substantial showing” is “a showing that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were ‘adequate to deserve encouragement to proceed further.’ ” Slack v. McDaniel, 529 U.S. 473, 483-84,120 S.Ct. 1595, 1603-04, 146 L.Ed.2d 542 (2000) (quoting Barefoot, 463 U.S. at 893 n. 4,103 S.Ct. at 3394 n. 4). The applicant bears the burden of proof, and ultimately “must demonstrate that reasonable jurists would find the [ha-beas] court’s assessment of the constitutional claims debatable or wrong.” Miller-El, 537 U.S. at 338, 123 S.Ct. at 1040 (quoting Slack, 529 U.S. at 484, 120 S.Ct. at 1604).
[¶ 11.] Ashley’s showing does not address the habeas court’s assessment. His application consists of a motion, in brief format. The brief contains a summary of Ashley’s claims. Within his arguments, Ashley references selected eviden-tiary hearing testimony and authorities. But his motion/brief essentially repeats the arguments he made to the habeas court at the habeas hearing. Such a showing is insufficient to enable us to conduct discretionary review because Ashley fails to address the habeas court’s post-hearing assessment. In other words, Ashley fails to address how the habeas court’s findings of fact and conclusions of law were debatable or wrong. Because Ashley failed to address the habeas court’s findings of fact and conclusions of law, he failed to “demonstrate that reasonable jurists would find the [habeas] court’s assessment of the constitutional claims debatable or wrong.” See id, 587 U.S. at 388, 123 S.Ct. at 1040 (emphasis added) (quoting Slack, 529 U.S. at 484, 120 S.Ct. at 1604). Instead, Ashley effectively asks this Court, on a limited record, to undertake a similar review that the habeas court undertook. But the ha-beas court’s review was informed by the observation of live testimony and a review of the entire record. Future applicants appealing the denial of habeas relief on the evidence must cite the habeas court’s findings of fact, conclusions of law, and analysis; and then, present an argument demonstrating why they lacked such merit that the habeas court’s assessment of the constitutional claims was debatable or wrong. Future showings that do not address the habeas court’s findings of fact and conclusions of law will no longer be deemed adequate to warrant this Court’s discretionary review of an application for a CPC.
[¶ 12.] Nevertheless, because this is the first time we have articulated these requirements, we exercise our discretion to review Ashley’s showing. Discretionary review begins with “an overview of the claims in the habeas petition and a general assessment of their merits.” See Miller-El, 537 U.S. at 336, 123 S.Ct. at 1039. This is a case where, regardless of Ashley’s lack of argument regarding the habeas court’s assessment, the facts and law are clear. An overview of Ashley’s claims and our assessment of their merits reveals that the habeas court’s assessment was not debatable or wrong. Because Ashley failed to make a substantial showing of the denial of a constitutional right, he failed to establish probable cause that an appealable issue exists for appellate review. Ashley’s motion for issuance of a CPC is denied.
11 13.] GILBERTSON, Chief Justice, and KONENKAMP, SEVERSON, and WILBUR, Justices, concur.
. This Court's order was based on the then-recent holding in Steiner v. Weber, 2011 S.D. 40, 815 N.W.2d 549. Steiner reinforced the requirement that where assertions in a habeas application meet the "minimum threshold of plausibility,” and where those assertions require an evidentiary hearing before they can support a claim for relief, the habeas court must hold an evidentiary hearing before it can dismiss an application. See id. ¶ 11, 815 N.W.2d at 553.
. Only two cases prior to Lange construed our CPC procedure. See Wayrynen v. Class, 1998 S.D. 111, ¶¶ 14-16, 586 N.W.2d 499, 501 (holding that a failure to file a CPC motion before the deadline because of court clerk clerical error did not make it untimely); Singletary v. State, 88 S.D. 655, 658, 227 N.W.2d 424, 425 (1975) (noting, as Lange concluded later, that it was inconsistent for a habeas court to both summarily dismiss an application for habeas relief and issue a CPC).
.Lange requires;
[I]f the trial court denies an application in a habeas claim, it must either issue a certificate of probable cause or state why a certificate should not issue. A specific showing of probable cause must be articulated on the certificate in order to confer jurisdiction upon this Court to review the denial of a habeas corpus petition. The certificate must make "a substantial showing of the denial of a constitutional right.” 28 U.S.C. 2253(c)(2). In addition, the certificate must indicate which specific issue or issues satisfy the showing of the denial of a constitutional right.
Id. ¶ 12, 602 N.W.2d at 276.
. In a more detailed description, the Supreme Court explained:
A prisoner seeking a [certificate] must prove “ ‘something more than the absence of frivolity’ ” or the existence of mere "good faith” on his or her part. Barefoot, supra, U.S. at 893, 103 S.Ct. 3383. We do not require petitioner to prove, before the issuance of a [certificate], that some jurists would grant the petition for habeas corpus. Indeed, a claim can be debatable even though every jurist of reason might agree, after the [certificate] has been granted and the case has received full consideration, that petitioner will not prevail. As we stated in Slack, “[w]here a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.” 529 U.S., at 484, 120 S.Ct. 1595.
Miller-El, 537 U.S. at 338, 123 S.Ct. at 1040 (fourth alteration in original). In Barefoot, the Supreme Court described the "more than the absence of frivolity” and the "more than good faith” thresholds as being "a higher one than the ‘good faith' requirement of [28 U.S.C. § ] 1915.” 463 U.S. at 893, 103 S.Ct. at 3394 (citing Blackmun, Allowance of In Forma Pauperis Appeals in § 2255 and Habeas Corpus Cases, 43 F.R.D. 343, 352 (8th Cir.1967)).
. Our consideration of a CPC following a summary dismissal of the habeas application on its claims is governed by the standard reiterated in Steiner. See 2011 S.D. 40, ¶ 5, 815 N.W.2d at 551 (quoting Jenner v. Dooley, 1999 S.D. 20, ¶ 13, 590 N.W.2d 463, 469).
. Ashley argues there is probable cause that appealable issues exist on his claims of: (1) ineffective assistance of trial counsel, (2) improper admission of other acts evidence, (3) failure to comply with requests for a bill of particulars, (4) trial court bias, (5) cruel and unusual punishment, and (6) increasing his sentence because he chose not to participate in a psychosexual evaluation. But the habeas court's unrefuted, fact-based rationale is supported by the record and the court’s law-based rationale rests on well-settled interpretations of law. See Graham v, State, 328 N.W.2d 254, 256 (S.D.1982) (quoting State v. Hartley, 326 N.W.2d 226, 228 (S.D.1982)) (alteration in original) ("It is not our function to make findings or conclusions ...; rather, it is our province to determine if the findings are supported by evidence and if the conclusions are warranted by findings.”). |
9372597 | Melanie REGALADO, Plaintiff and Appellee, v. Ardith Jean Ferguson MATHIESON, Defendant and Appellant | Regalado v. Mathieson | 2004-06-30 | No. 23026 | 67 | 74 | 684 N.W.2d 67 | 684 | North Western Reporter 2d | South Dakota Supreme Court | South Dakota | 2021-08-10T17:25:00.977575+00:00 | CAP | [¶ 21.] SABERS, KONENKAMP, ZINTER, and MEIERHENRY, Justices, concur. | Melanie REGALADO, Plaintiff and Appellee, v. Ardith Jean Ferguson MATHIESON, Defendant and Appellant. | 2004 SD 87
Melanie REGALADO, Plaintiff and Appellee, v. Ardith Jean Ferguson MATHIESON, Defendant and Appellant.
No. 23026.
Supreme Court of South Dakota.
Considered on Briefs June 1, 2004.
Decided June 30, 2004.
Stanley E. Whiting, Winner, South Dakota, Attorney for plaintiff and appellee.
Neil Carsrud, Dakota Plains Legal Services, Mission, South Dakota, Attorney for defendant and appellant.
Sandy J. Steffen of Johnson, Eklund, Nicholson, Peterson & Fox, Gregory, South Dakota, Attorneys for appellees Minor Children. | 3222 | 20180 | GILBERTSON, Chief Justice.
[¶ 1.] Mother appeals from a trial court’s dismissal of an action initiated by Grandmother pursuant to SDCL 25-5-29 et seq. seeking custody of Mother’s two children, T.H.M and M.M.M. On appeal, Mother argues the trial court abused its discretion when it dismissed the action based on its finding South Dakota was an inconvenient forum. Mother also contends the trial court committed reversible error when it declined to communicate with a California court in which Grandmother had commenced a separate guardianship proceeding. Finally, Mother renews her' previous argument that SDCL 25-5-29 et seq. is not the proper statutory scheme under which a non-parent may initiate a custody proceeding based upon allegations of abuse and neglect. For the reasons articulated herein, we affirm the trial court’s order dismissing the action.
FACTS AND PROCEDURE
[¶ 2.] This appeal marks the third time these parties have been before this Court. In Matter of the Guardianship and Conservatorship for T.H.M. and M.M-M., 2002 SD 13, 640 N.W.2d 68 (T.H.M.I), we reversed a trial court’s termination of Mother’s custodial rights based upon its determination that the children were abused and neglected. In the opinion, a three-justice majority held that Grandmother could not use the South Dakota Guardianship and Conservatorship Act, set forth in SDCL ch. 29A-5, to gain custody of the children based upon allegations of abuse and neglect. Id. ¶¶ 9-10, 640 N.W.2d 68. Rather, the majority believed that SDCL ch. 26-7A and 26-8A were the proper statutes under which to adjudicate custody based on allegations of abuse and neglect. Id. ¶ 10, 640 N.W.2d 68. We remanded the case and directed the trial court to:
[Ojrder DSS to intervene in this action pursuant to its statutory duty under SDCL 26-8A-9, pending an adjudication of the abuse and neglect proceedings.
Id. ¶ 16, 640 N.W.2d 68.
[¶ 3.] On remand, DSS failed to conduct an abuse and neglect investigation as to T.H.M and M.M.M., and, as a result, the state’s attorney stated that she had no basis for filing an abuse and neglect proceeding. The trial court took the matter under consideration. In the meantime, Grandmother initiated the action underlying the present appeal seeking custody of the children under SDCL 25-5-29 and 25-5-30, statutes enacted after this Court’s decision in T.H.M I, which permit a non-parent to pursue custody under certain circumstances. The trial court then dismissed the original guardianship proceedings and allowed Grandmother to proceed under SDCL 25-5-29 et seq. We summarily affirmed .the trial court’s dismissal of the original guardianship proceedings in Matter of. the Guardianship and Conservatorship for T.H.M. and M.M.M., 683 N.W.2d 423 (Table) (2004) (T.H.M.II).
[¶ 4.] Although she initiated the second action, Grandmother subsequently moved for a dismissal under SDCL 26-5A-7 on the grounds South Dakota was an inconvenient forum to make a custody determination. After conducting a hearing, the trial court dismissed the action and yielded jurisdiction to California under the Uniform Child Custody Jurisdiction Act (UC- CJA), codified by South Dakota at SDCL ch. 26-5A. Mother now appeals raising three issues for our review:
1. Whether the trial court abused its discretion in dismissing the action based upon its finding South Dakota was an inconvenient forum pursuant to SDCL 26-5A-7.
2. Whether the trial court committed reversible error when it declined to communicate with the California court.
3. Whether Grandmother may seek custody of the children under SDCL 25-5-29 based upon allegations of abuse and neglect.
STANDARD OF REVIEW
[¶ 5.] We employ the abuse of discretion standard when reviewing a trial court’s decision to decline jurisdiction as an inconvenient forum under the UCCJA. Ford v. Ford, 2002 SD 147, ¶7, 655 N.W.2d 85, 86; Fuerstenberg v. Fuerstenberg, 1999 SD 35, ¶ 16, 591 N.W.2d 798, 804 (citation omitted). Questions of law, such as statutory construction, are reviewed de novo with no deference afforded the trial court’s decision. T.H.M. I, 2002 SD 13, ¶ 7, 640 N.W.2d at 70-71 (citation omitted). Findings of fact, however, will not be overturned unless they are clearly erroneous. City of Deadwood v. Summit, Inc., 2000 SD 29, ¶ 9, 607 N.W.2d 22, 25. “Clear error is shown only when, after a review of all the evidence, ‘we are left with a definite and firm conviction that a mistake has been made.’ ” Id.
ANALYSIS AND DECISION
[¶ 6.] 1. Whether the trial court abused its discretion in dismissing the action based upon its finding South Dakota was an inconvenient forum pursuant to SDCL 26-5A-7.
[¶ 7.] After conducting a hearing with the attorneys for Mother, Grandmother, and the children, the trial court granted Grandmother’s motion to dismiss this guardianship action based upon its finding that South Dakota was an inconvenient forum in which to make a custody determination. Mother believes the trial court abused its discretion in making this determination, and she urges this Court to reverse the trial court and reinstate the custody proceedings in South Dakota. Following a careful review of the lengthy proceedings underlying this appeal, however, we believe the trial court reasonably exercised its discretion in determining South Dakota to be an inconvenient forum for purposes of the UCCJA under the particular facts of this case.
[¶ 8.] Under both the UCCJA and the Parental Kidnapping Prevention Act (PKPA), “the state granting the original custody decree maintains exclusive continuing jurisdiction to modify custody decrees so long as the child or one of the contestants remains in that state.” Fuerstenberg, 1999 SD 35, ¶ 19, 591 N.W.2d at 805; SDCL 26-5A-14; 28 USC § 1738A(d). Here, a South Dakota court made the initial custody determination, and Mother continues to reside in this state; therefore, the trial court clearly had jurisdiction to entertain Grandmother’s action to seek custody of the children. Under South Dakota’s codified version of the UCCJA, however, a court may decline to exercise jurisdiction “if it finds that it is an inconvenient forum to make a custody determination under the circumstances of the case and that a court of another state is a more appropriate forum.” SDCL 26-5A-7. In making this decision, a trial may consider the following nonexclusive factors:
(1) If another state is or recently was the child’s home state;
(2) If another state has a closer connection with the child and his family or with the child and one or more of the contestants;
(3) If substantial evidence concerning the child’s present or future care, protection, training, and personal relationships is more readily available in another state;
(4) If the parties have agreed on another forum which is no less appropriate.
Id. “Ultimately, the question comes down to whether ‘it is in the interest of the child that another state assume jurisdiction.’” Fuerstenberg, 1999 SD 35, ¶ 20, 591 N.W.2d at 805 (quoting SDCL 26-5A-7).
[¶ 9.] Here, the trial court determined the factors set out in SDCL 26-5A-7 militated against South Dakota exercising jurisdiction. First, the court noted the children have been living with Grandmother in California for over four years. The trial court further determined the children had closer connections with California and that evidence concerning the children’s current or future well-being was more readily available in that state. Central to the court’s analysis were the findings of fact and conclusions of law entered after the initial custody proceedings. These findings detailed the children’s involvement in numerous activities in California including basketball, soccer, and dance, along with their participation in church, youth groups and Sunday school. Additionally, the court found the children were involved in both individual and group counseling in California. Perhaps most importantly, the court found that the children had only received proper dental and medical care since their relocation to California, a significant finding given the necessity of T.H.M/s seeing a cardiac specialist for a heart valve problem. These findings were based to a great extent upon the observation of numerous witnesses who appeared in person or by deposition at the initial custody proceedings.
[¶ 10.] Under the particular circumstances of this case, the trial court’s findings of fact appear to be supported by the record and all reasonable inferences drawn therefrom. In light of these find^ ings, the trial court determined a California court would be better suited to make a custody determination concerning T.H.M. and M.M.M. We afford the trial court wide latitude in making such determinations, whether it chooses to exercise or decline jurisdiction. See Ford, 2002 SD 147, ¶ 11, 655 N.W.2d at 87; Fuerstenberg, 1999 SD 35, ¶ 21, 591 N.W.2d at 806. Our review of the record before us strongly suggests the trial court did not abuse its discretion in deferring to the California court’s jurisdiction. Current evidence concerning the children’s care, protection, training, and personal relationships will be more readily available in that jurisdiction where the children have resided for well over four years. While we acknowledge Mother may experience some hardship in defending a custody proceeding in California, the interests of T.H.M. and M.M.M. must be considered paramount. Accordingly, we find no abuse of discretion in this case.
[¶ 11.] 2. Whether the trial court committed reversible error when it declined to communicate with the California court.
[¶ 12.] For her second point of error, Mother argues that the trial court committed reversible error when it declined to directly communicate with the California court wherein Grandmother had commenced a separate custody proceeding. At a hearing on Grandmother’s motion to dismiss, the trial court stated, “It seems to me that [talking to the California court] would be a futile gesture at this time.” The court made this statement after deter mining South Dakota to be an inconvenient forum for the custody proceedings. Mother believes the trial court’s decision runs counter to language in SDCL 26-5A-6 stating that “[i]f the court is informed that a proceeding was commenced in another state after it assumed jurisdiction, it shall likewise inform the other court in order that the issues may be litigated in the more appropriate forum.”
[¶ 13.] Given the context of the trial court’s decision, we do not believe the trial court committed reversible error when it failed to communicate with the California court. As we explained In The Matter of the Termination of the Parental Rights Over M.C.S., “[o]nce it is determined that jurisdiction exists ... the court must determine whether jurisdiction should be exercised in view of SDCL 26-5A-6 (simultaneous proceedings in other states) [and] 26-5A-7 (inconvenient forum)[.]” 504 N.W.2d 322, 326 (S.D.1993). Here, because the trial court entered the initial custody determination underlying these proceedings and considering Mother still resides in South Dakota, it clearly had continuing jurisdiction under the UCCJ. Fuerstenberg, 1999 SD 35, ¶ 19, 591 N.W.2d at 805; SDCL 26-5A-14; see 28 USC § 1738A(d) (continuing jurisdiction under the PKPA). The trial court, however, ultimately declined to exercise jurisdiction given its inconvenient forum analysis pursuant to SDCL 26-5A-7 and dismissed Grandmother’s action. Thus, under these circumstances, informing the California court would seem • to have accomplished little and no real prejudice is shown. Mother’s argument under this issue fails.
[¶ 14.] 3. Whether Grandmother may seek custody of the children under SDCL 25-5-29 based upon allegations of abuse and neglect.
[¶ 15.] Mother renews an argument she presented to this Court in her last appeal, T.H.M. II, asserting that Grandmother may not seek custody of the children under SDCL 25-5-29 based upon allegations of abuse and neglect. Instead, Mother submits ■ that such a proceeding must be commenced under SDCL ch. 26-7A and 26-8A involving abuse and neglect proceedings conducted by the state. Mother grounds her argument in this Court’s analysis in T.H.M. I finding that the South Dakota Guardianship Act, found at SDCL ch. 29A-5, was “not the proper means of transferring custody from a parent to a non-parent without a prior determination of a parent’s unfitness.” 2002 SD 13, ¶ 9, 640 N.W.2d at 71. The opinion concluded that custody determinations based upon allegations of abuse and neglect must be conducted pursuant to SDCL 26A-7A and 26A-8A with the accompanying “constitutional safeguards embedded within [these] chapters” that were not included in the general Guardianship Act. Id. ¶ 10, 640 N.W.2d 68.
[¶ 16.] Subsequent to. our decisions in T.H.M. I and the well-publicized case of Meldrum v. Novotny, 2002 SD 15, 640 N.W.2d 460, the Legislature enacted SDCL 25-5-29 through 25-5-34. This statutory scheme permits a non-parent to pursue custody in certain situations:
Except for proceedings under chapter 26-7A, 26-8A, 26-8B, or 26-8C, the court may allow any person other than the parent of a child to intervene or petition a court of competent jurisdiction for custody or visitation of any child with whom he or she has served as a primary caretaker, has closely bonded as a parental figure, or has otherwise formed a significant and substantial relationship. It is presumed to be in the best interest of a child to be in the care, custody, and control of the child’s parent, and the parent shall be afforded the constitutional protections as determined by the United States Supreme Court and the South Dakota Supreme Court. A parent’s presumptive right to custody of his or her child may be rebutted by proof:
(1) That the parent has abandoned or persistently neglected the child;
(2) That the parent has forfeited or surrendered his or her parental rights over the child to any person other than the parent;
(3) That the parent has abdicated his or her parental rights and responsibilities; or
(4) That other extraordinary circumstances exist which, if custody is awarded to the parent, would result in serious detriment to the child.
SDCL 25-5-29. Circumstances suggesting serious detriment to a child are further defined in SDCL 25-5-30. Additionally, SDCL 25-5-32 allows custody to be transferred to a non-parent without terminating parental rights over a child.
[¶ 17.] Mother maintains Grandmother may not seek custody of the children under this statutory scheme based upon allegations of abuse and neglect.
While the argument’s basic premise may merit attention by this Court, it is a question that cannot be addressed on this particular appeal. First, as to Mother’s case, the issue is moot. We have already determined the trial court acted within its discretion to decline jurisdiction and dismiss the action. Thus, Grandmother will not be proceeding in a South Dakota court arguing the application of SDCL 25-5-29. “[P]rinciples of judicial restraint dictate that when an issue effectively disposes of the case, other issues that are presented should not be reached.” Thompson v. Summers, 1997 SD 103, ¶ 24, 567 N.W.2d 387, 395, n. 8 (Miller, C.J., concurring in result).
[¶ 18.] Moreover, the substance of Mother’s argument concerns SDCL 25-5-29’s assurance “the parent shall be afforded the constitutional protections as determined by the United States Supreme Court and the South Dakota Supreme Court.” As Mother posits in her appellate brief “[o]ne is left to wonder just what a trial court will say those rights are.” Although not specifically framed as such, Mother’s argument essentially raises a constitutional challenge to the statute itself. SDCL 15 — 6—24(c) provides:
When the constitutionality of an act -of the Legislature affecting the public interest is drawn in question in any action to which the state or an officer, agency or employee of the state is not a party, the party asserting the unconstitutionality of the act shall notify the attorney general thereof within such time as to afford him the opportunity to intervene,
(emphasis added). Here, Mother failed to provide notice to the Attorney General of her constitutional challenge to SDCL 25-5-29. Generally, this Court “will not rule on the constitutionality of a statute unless the Attorney General has been notified because when an adjudication of unconstitutionality may seriously affect the general public, it is proper for the Attorney General to appear on behalf of the Legislature and the people.” West Two Rivers Ranch v. Pennington County, 1996 SD 70, ¶ 15, 549 N.W.2d 683, 687 (citing Sharp v. Sharp, 422 N.W.2d 443, 446 (S.D.1988); Sioux Falls Argus Leader v. Young, 455 N.W.2d 864, 870 (S.D.1990)).
[¶ 19.] The, Legislature enacted SDCL 25-5-29 et seq. after this Court’s decisions in T.H.M. I, 2002 SD 13, 640 N.W.2d 68, and Novotny, 2002 SD 15, 640 N.W.2d 460, in order to allow a non-parent to seek custody under certain circumstances. We will not entertain a constitutional challenge to this statutory scheme without the benefit of argument by the Attorney General.
[¶ 20.] For the reasons set forth herein, the judgment of the trial court dismissing Grandmother’s action is affirmed.
[¶ 21.] SABERS, KONENKAMP, ZINTER, and MEIERHENRY, Justices, concur.
. SDCL 26-7A-43 provides in part, "[a] state's attorney may file with the clerk of courts a written petition alleging a child ... to be an abused or neglected child[.]” (emphasis added). The statute further provides that "[i]f the petition is signed by a party other than the state's attorney, the petition shall be verified.”
Based on the clear language of the statute, it was within the state’s attorney's discretion whether to file an abuse and neglect proceeding. Because the opinion in T.H.M. I contemplated the action proceeding under the abuse and neglect statutes, and considering the state's attorney did not commence such a proceeding, the trial court had no alternative but to dismiss the action.
. According to SDCL 25-5-30:
Serious detriment to a child may exist whenever there is proof of one or more of the following extraordinary circumstances:
(1) The likelihood of serious physical or emotional harm to the child if placed in the parent’s custody;
(2) The extended, unjustifiable absence of parental custody;
(3) The provision of the child’s physical, emotional, and other needs by persons other than the parent over a significant period of time;
(4) The existence of a bonded relationship between the child and the person other than the parent sufficient to cause significant emotional harm to the child in the event of a change in custody;
(5) The substantial enhancement of the child’s well-being while under the care of a person other than the parent;
(6) The extent of the parent’s delay in seeking to reacquire custody of the child;
(7) The demonstrated quality of the parent's commitment to raising the child;
(8) The likely degree of stability and security in the child’s future with the parent;
(9) The extent to which the child's right to an education would be impaired while in the custody of the parent; or
(10) Any other extraordinary circumstance that would substantially and adversely impact the welfare of the child.
. Arguably, as to this particular set of facts and parties, the issue is also res judicata. Mother raised the exact same argument during her most recent appeal, and we summarily affirmed the trial court despite this argument. See SDCL 15-26A-87.1(E) (allowing use of decisions rendered under the statute “when the decision establishes the law of the case, res judicata or collateral estoppel”). |
9372745 | Wallace ADRIAN, Plaintiff and Appellee, v. Rich McKINNIE and Lynn McKinnie, Defendants and Appellants, Citibank (South Dakota), NA, and Adrian Ranch, L.L.C., Defendants | Adrian v. McKinnie | 2004-06-30 | No. 22860 | 91 | 100 | 684 N.W.2d 91 | 684 | North Western Reporter 2d | South Dakota Supreme Court | South Dakota | 2021-08-10T17:25:00.977575+00:00 | CAP | [¶ 22.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, and ZINTER, Justices, concur. | Wallace ADRIAN, Plaintiff and Appellee, v. Rich McKINNIE and Lynn McKinnie, Defendants and Appellants, Citibank (South Dakota), NA, and Adrian Ranch, L.L.C., Defendants. | 2004 SD 84
Wallace ADRIAN, Plaintiff and Appellee, v. Rich McKINNIE and Lynn McKinnie, Defendants and Appellants, Citibank (South Dakota), NA, and Adrian Ranch, L.L.C., Defendants.
No. 22860.
Supreme Court of South Dakota.
Considered on Briefs April 26, 2004.
Decided June 30, 2004.
Michael A. Wilson of Barker, Wilson, Reynolds & Burke, Rapid City, South Dakota, Attorneys for plaintiff and appellee.
Kenneth R. Dewell of Pechota, Leach & Dewell, Rapid City, South Dakota, Attorneys for defendants and appellants. | 4347 | 26058 | MEIERHENRY, Justice.
[¶ 1.] This case is before us for the second time. In the first case, we de termined that the parties’ contractual agreement was an equitable mortgage and reversed and remanded for further proceedings. On remand, Wallace Adrian (Adrian) sought foreclosure of the equitable mortgage. The trial court granted judgment in favor of Adrian, including interest and attorney’s fees. Borrowers, Lynn and Rich McKinnie (McKinnies) dispute the amount of interest and attorney’s fees owed. McKin-nies appeal. We reverse.
FACTS
[¶ 2.] McKinnies originally appealed to this Court in Adrian v. McKinnie, 2002 SD 10, 639 N.W.2d 529 (Adrian I). Adrian had sued McKinnies to terminate a lease agreement and option to purchase; McKinnies had sued Adrian for specific performance of the option to purchase. The trial court found McKinnies in breach and entered judgment for Adrian. On appeal, this Court determined that the instrument in question, although entitled a lease agreement and option to purchase, was actually an equitable mortgage. Therefore, McKinnies owned the land, and, as lender, Adrian only possessed a security interest. Further, in Adrian I, we addressed McKinnies’ specific performance claim, stating:
Lastly, Adrian contends that the trial courts finding that the McKinnies acted with unclean hands disentitles them to equitable relief. When claimants seek equitable relief in an instance where they would ordinarily be permitted such relief, they will nonetheless be denied the relief if they acted improperly or unethically in relation to the relief they seek. Dobbs, Law of Remedies, § 2.4 (1973). Unrelated misconduct will not bar relief: ‘What is material is not that the plaintiffs hands are dirty, but that he dirties them in acquiring the right he now asserts.” Republic Molding Corp. v. B.W. Photo Utilities, 319 F.2d 347, 349 (9thCir.1963). No matter how wrong the McKinnies may have been in taking excess timber off the land, those acts have nothing to do with how the agreement here was formed. The trial court’s unclean-hands finding will not bar equitable relief.
Id. at 17, 639 N.W.2d 529. The case was reversed and remanded. On remand, Adrian filed an amended complaint for foreclosure, claiming McKinnies were in default. McKinnies failed to answer and a default judgment was entered. McKinnies filed a motion to set aside the default judgment and to be permitted to file an Answer. The trial court granted McKin-nies’ motion.
[¶ 3.] A court trial was held after which the trial court concluded that McKinnies waived their claim for specific performance. Additionally, the court found McKinnies in default and foreclosed the mortgage. The court determined that redemption included the following:
$122,327.38
Principal
Interest on principal (December 1, 1999 until date of judgment) $ 38,910.16
Attorney’s fees (original action and foreclosure action) $ 18,862.75
1999 Real estate taxes $ 748.38
Interest on taxes $ 207.87
2000 Real estate taxes 8 794.12
Interest on taxes $ 140.61
Total for Redemption $181,991.27
[¶ 4.] McKinnies claim that the court’s redemption amount is in error. McKin-nies claim they should not owe Adrian interest after May 10, 2000 or attorney’s fees. First, they claim that they tendered payment on May 10, 2002, which, under SDCL 20-5-18, stopped the interest running as of that date. Second, they claim that they should not be assessed attorney’s fees as to the first action to terminate the lease/option in Adrian I because the agreement of the parties did not provide for attorney’s fees nor are attorney’s fees for such an action authorized by statute. McKinnies further argue that their request for specific performance should have been granted eliminating Adrian’s entitlement to attorney’s fees under SDCL 15-17-38. McKinnies offer the following accounting:
Principal $122,327.38
Interest on principal (December 1999 to May 11, 2000) $ 5,428.62
1999 Real estate taxes $ 748.38
2000 Real estate taxes $ 794.12
Total $129,298.50
[¶ 5.] The difference between the court’s judgment of $181,991.27 and McKinnies’ accounting of $129,298.50 is the subject of this appeal. McKinnies paid and Adrian received $129,298.50. McKin-nies placed an additional $62,527.37 with the clerk of courts that has been deposited in an interest bearing account. McKinnies concede that if this Court denies their request for specific performance and concludes that Adrian was entitled to a decree of foreclosure, reasonable attorney’s fees, sales tax, and costs totaling $5,366.46 would be proper. However, they claim that under no theory should they be assessed attorney’s fees for the first action. McKinnies also contest interest on the taxes Adrian paid.
STANDARD OF REVIEW
[¶ 6.] A trial court’s findings of fact will not be set aside unless they are clearly erroneous. Estate of Fisher, 2002 SD 62, ¶ 10, 645 N.W.2d 841, 844 (citation omitted). A trial court’s conclusions of law are given no deference under a de novo review. Id. A trial court’s award of attorney’s fees is reviewed for abuse of discretion. Osgood v. Osgood, 2004 SD 22, ¶ 9, 676 N.W.2d 145, 148.
ISSUES
I. Whether McKinnies tendered payment to Adrian, which was refused, thereby obviating the payment of interest on the unpaid principal balance.
II. Whether the trial court erred in its determination of the time period interest was assessed.
III. Whether McKinnies were entitled to specific performance under the equitable mortgage so as to allow them to make payment and receive the warranty deed.
IV. Whether Adrian was entitled to attorney’s fees.
DECISION
Tender of Payment
[¶ 7.] Since both issues I and II involve the question of when McKinnies tendered payment, they will be discussed jointly. The issue whether payment was tendered during the 30 day period under the option to purchase is no longer relevant because of our ruling in Adrian I and, therefore, not before us. Rather, the issue is whether McKinnies tendered payment prior to foreclosure. McKinnies argue that once they received the title policy, May 9, 2000, they were ready, willing, and able to pay. SDCL 20-5-10.
[¶ 8.] The trial court, on remand, determined that McKinnies had not tendered payment. See SDCL 20-5 et seq. The trial court entered the following findings:
(1) “[t]hat despite claiming to have funds needed to purchase the property, McKinnies failed to tender payment or propose to close on the property by May 3,2000.” (FF12).
(2) “McKinnies never tendered payment of the appropriate amount payable under the contract before May 8, 2000.” (FF 28).
(3) “McKinnies never made a tender of payment which was unconditional. Money placed in Vander Heide’s trust account was not releasable to Adrian without condition.” (FF 52).
(4) “McKinnies never made a tender of payment for the full amount which included the sum of $122,327.38 plus prorated rental payments which were required to be paid under the contract.” (FF 53).
(5) “[t]he issue of tender was fully litigated between these same parties in the first trial and was decided.” (FF 54).
The trial court concluded that “McKinnies did not make sufficient tender, and the doctrine of the law of the case also supports that finding, and this Court finds that McKinnies never did make sufficient tender.”
[¶ 9.] The trial court’s Findings of Fact must be supported by the evidence and Conclusions of Law must in turn be supported by the Findings of Fact. The first finding of fact listed supra is based' on the 30 day time period in the Option to Purchase provision. As previously noted, whether payment was tendered under the option is no longer relevant. Therefore, the trial court’s finding is clearly erroneous. The second finding is also based on the option time period and is irrelevant for the same reason as finding (1). The third finding that the tender of payment was conditional is likewise in error. The evidence reveals that the title policy was issued May 9 and that funds were available at that time. SDCL 20-5-9. The fourth finding that McKinnies never tendered the full amount owed is also erroneous. McKinnies stated that the amount they owed was the balance due according to Schedule A of their agreement with Adrian plus accrued interest until closing. McKinnies never denied they owed interest nor did they characterize the Schedule A balance as payment in full. The evidence shows that at the time McKinnies gave notice of their intent to exercise the purchase option April 3, 2000, the December 1999 payment had been made. Schedule A of the parties’ agreement states:
Amount of option price if exercised on the following dates:
After 12-01-99 and before 06-01-00 $122,327.38
Therefore, $122,327.38 was the balance due as of the December 1, 1999 payment. Because McKinnies attempted to exercise their purchase option in April of 2000, they owed $122,327.38 plus interest at ten percent up to closing. Further, McKinnies’ complaint dated May 10, 2000 states that upon delivery of the warranty deed, they would pay $122,327.38 plus prorated rental payments. The parties agree that the prorated rental payments and the ten percent interest are the same. Finally, the trial court’s fifth finding that the issue of tender was fully litigated in Adrian I and was the law of the case is clearly erroneous. Again, the court focused only on the option time period. On remand, the court should have analyzed whether McKinnies had tendered payment under the foreclosure action rather than under the lease/purchase action litigated in Adrian I.
[¶ 10.] Based on the record, the facts show, McKinnies tendered payment prior to foreclosure. “The word ‘tender’ is generally defined as an unconditional offer of payment consisting in the actual production of a sum not less than the amount due on a specific debt or obligation.” 60 AM-JUR 2d Payment § 4 (2003). Correspondence between the parties’ attorneys indicated McKinnies made an unconditional offer to pay the amount due.
Offer of payment
[¶ 11.] On April 3, 2000, McKinnies’ attorney sent a letter to Adrian’s attorney communicating McKinnies’ intent to pay the amount due, it read:
April 3, 2000
This letter is to serve as formal notice of Mr. & Mrs. McKinnie’s intent to exercise their option pursuant to the agreement between the parties dated October 10, 1997 with a purchase amount of $122,327.38. I expect to have the funds in my office trust account by Monday, April 03, 2000, after which I will contact you and schedule a time to meet with you at your office. Please prepare a Warranty Deed and Certificate of Real Estate Value for Mr. Adrian’s signature and, since Mr. Adrian is a married man, I would ask that the Warranty Deed contain “homestead waiver” language thereby negating the necessity of his wife having to sign the documents.
On April 7, 2000, Adrian’s attorney responded alleging that McKinnies were in default and demanding payment within 30 days. The letter read:
This letter serves as notice of default of the terms and conditions of the Lease Agreement and Option to Purchase.... If the default is not cured within 30 days from the date of this notice, the Lease Agreement and Option to Purchase terminates by operation of the terms of the contract.... The contract provides that he must pay the sum of $122,327.38, plus pro rated rental payments within 30 days of the date of your letter. Anticipating that Mr. McKinnie will be making that payment, and thereby rendering the default moot, I have sent a deed to Mr. Adrian for his execution....
Adrian’s attorney wrote another letter April 24, 2000 stating that if the purchase was not closed on or before May 3, 2000, “the lease agreement and option to purchase will be terminated on May 7, pursuant to the terms of the contract and my Notice of Default dated April 7.” On May 1, 2000, McKinnies’ attorney responded that the loan payoff was delayed because of computer problems at the title company but that payoff would occur as soon as the title policy issued. The letter responded as follows:
This letter is to follow-up on our telephone discussion of last week wherein I indicated to you that we were prepared to close on the loan necessary in order to pay-off the amount owing to Mr. Adrian, however due to computer problems with Custer Title Company, we are unable to obtain a lender policy in time to close prior to May 3rd.... As I have indicated, the McKinnies have a lender who has escrowed the funds with attorney Tim Vander Heide and all parties are prepared to close the loan once the title policy has been issued.... It would appear very imprudent for Mr. Adrian to refuse in excess of $122,000.00 and gamble on a “default” that is thin at best and has a minimal chance of success on the merits.... I urge you to visit with your client and carefully weigh the economics of this situation and encourage him to agree to an extension in order to allow the loan to close and Mr. Adrian to receive the monies that are due to him....
On May 8, 2000, Adrian’s attorney wrote to McKinnies that Adrian was serving a Notice to Quit. It further stated that “Mr. Adrian will not allow Mr. McKinnie to exercise the option to purchase and will proceed to evict ...” It is clear that the sole basis for Adrian’s refusal to release the deed was that he was acting under his belief that the contract was a lease/purchase agreement rather than an equitable mortgage agreement and that McKinnies were required to pay the balance within the 30 days.
Availability of Amount Owed
[¶ 12.] In addition to McKinnies’ stated intent to pay the amount owed, they also had the money available. In an affidavit, dated July 24, 2000, Walker Witt of Bake-well, Vander Heide & Witt law firm, testified that the money was escrowed. His testimony was as follows:
(1) That prior to May 3, 2000, affiant’s law film received from the [McKinnies] monies sufficient to satisfy all monetary obligations necessary to complete the purchase of the real estate by the [McKinnies] from [Adrian] at closing.
(2) That the above-mentioned monies were placed in escrow to be released upon closing.
(3) That the monies remained in the escrow account and was [sic] available for closing on and after May 10, 2000, the date the title insurance policy was available, and said monies remain available for closing at any time.
In Adrian’s deposition dated July 31, 2000, the following exchange occurred :
Q. Okay. Go through this real quick here. Going back to this default situation here, you were assured by Mr. Porter that the money was in existence at Tim Vander Heide’s account in Custer, South Dakota for payment of the payoff on this contract. Were you advised of that?
A. Yes, I was advised that it was there, but I had no proof that it was there.
Q. What kind of proof did you want?
A....
And yes, I heard that somebody had put some money in there, but nobody offered to check, nobody said here’s a dollar to seal the contract, nobody did anything. I heard that it was there and that’s all.
Q. But you elected not to believe that?
A. Well, from past experience I figured no.
Q. Well, in past experience had attorneys ever represented to you that his attorneys had the money in their accounts?
A. Well, when they did, it was past due. He had 30 days to do it and it didn’t happen.
[¶ 13.] At the court trial in Adrian I on August 4, 2000, a few days after Adrian was deposed, he testified as follows:
Q. Okay. Okay. The money’s in escrow now. Why won’t you take it?
A. Because the contract is broken.
Q. That’s the only reason why?
A. Well, he defaulted on it. That’s what the contract says.
Q. Okay.
A. Says you can terminate it when the default is not cured and that’s what I did.
Q. Okay. And so the only reason that you have for not taking the money is that he just broke the contract and that’s it?
A. Yes, he broke the contract.
Q. Okay. But my question is, the reason you won’t take the money is just because he broke the contract and, therefore, is out of luck, right?
A. Yes, I—
Q. What’s the problem—
A. The whole agreement should be terminated because that’s what the — that’s what the agreement says.
At the hearing after the remand of Adrian I, Adrian persistently claimed that McKin-nies had breached the contract by cutting timber and had defaulted by not paying within 30 days from the notice of default. Adrian continued to refuse McKinnies’ offer of full payment.
Tender — Unconditional
[¶ 14.] Once the money was available to McKinnies, their offer was unconditional. For tender of payment under SDCL 20-5-18 to toll interest, “the tender must be unconditional.” Schmidt v. Iowa Beef Processors, Inc., 347 N.W.2d 897, 898 (S.D.1984). Once the title policy issued, the funds were available. Further, the availability of funds pending issuance of a title policy is not “conditional” as that term has been used in prior opinions. In Schmidt, the “offer to deposit ... carried with it the condition that IBP be released from any liability arising from the lawsuit.” Id. IBP was asking for something in addition to its agreement with Schmidt. In contrast, the McKinnies did not impose an additional requirement on Adrian; rather, they were merely engaging in a common process — acquiring title insurance^ — for closing on real property. See SDCL 20-5-9.
[¶ 15.] An unconditional tender must be sufficient to discharge the liability. Dougherty v. Beckman, 347 N.W.2d 587, 591 (S.D.1984). In Dougherty, the purchaser offered a lesser amount than the seller claimed was due. The parties disagreed to the amount due under their agreement. The purchaser offered a lesser amount as final payment. Id. The seller “articulated [its] objection to the tender and returned the money.” Id. We concluded that tendering a lesser amount as full payment was a conditional tender and was insufficient to toll the interest. Here, McKinnies offered to pay off the Schedule A balance of $122, 327.38 plus interest (pro-rated rental payments) as payment in full. In fact, they acknowledged in their May 10, 2000 complaint that they were willing, ready and capable of paying off the balance and pro-rated rental payments. Further, Adrian did not reject McKinnies’ tender because the amount was in dispute; Adrian rejected it because it was not tendered within the 30 day time period of the option to purchase and because Adrian wanted the land. SDCL 20-5-15.
[¶ 16.] Adrian’s deposition and trial testimony clearly indicate that he rejected McKinnies’ tender. The law does not require futile acts. Herron v. Fox, 67 S.D. 36, 288 N.W. 459 (1939). With regard to tender,
if the tenderee makes any declaration which amounts to a repudiation of the contract, or takes any position which would render a tender, as long as the position taken by him is maintained, a vain and idle ceremony, as where he expressly declares that he will not accept the tender if it is made, or where he makes clear that he will not perform ... or in any other way obstructs or prevents a tender, as by ... admitting that a tender would be fruitless, by denying the existence of a binding contract, [or] by declaring the contract to be at end [tender is waived].
86 CJS Tender § 6 (1997). Stanley v. Pilker, 40 S.D. 403, 167 N.W. 393 (1918) (party was “released [ ] from the useless act of making any further tender”); Warren v. M. Samuels & Co., 57 S.D. 105, 230 N.W. 807 (1930) (party stated that tender would not have been accepted therefore “the making of such tender would have been a wholly useless act”); McPherson v. Fargo, 10 S.D. 611, 74 N.W. 1057 (1898) (party did not have to tender because other party stated. that he was no longer bound to the contract). Adrian’s deposition and trial testimony clearly show he rejected McKinnies’ tender and that he would have continued rejecting it. See Pittman v. Pomeroy, 552 So.2d 983, 992 (La.App.1989) (party admitted that tender of purchase price would have been refused). His rejection was based solely on his belief that McKinnies had broken the contract and that he had no. obligation to accept the payoff and release the deed. Adrian did not object to the sufficiency of the tender. Objections to tender must be made at the time of tender or they are waived. SDCL 20-5-15; Am. Fed. Sav. and Loan Ass’n of Madison v. Mid-America Serv. Corp., 329 N.W.2d 124, 127 (S.D.1983); SDCL 20-5-14. McKinnies, through their counsel, attempted to pay .off their debt to Adrian; Adrian refused the tender.
Interest on Mortgage
-[¶ 17.] Based on the correspondence between the parties’ attorneys, Adrian’s own testimony that he refused to accept payment, and proof that $200,000 was in escrow, an amount more than adequate to pay off Adrian; we conclude that McKinnies tendered payment as of May 10, 2000. In a similar case we held “that upon tender of the full payment [tenderer] was entitled to a warranty deed free and clear of any claims or conditions.” Fisher, 2002 SD 62 at ¶ 28, 645 N.W.2d 841, 849. When McKinnies tendered payment on May 10, 2000, interest stopped running. Adrian chose to test the validity of McKin-nies’ right to pay off the balance; that choice, however, did not entitle him to receive interest after he rejected their offer of payment.
Interest on Property Taxes
[¶ 18.] The trial court assessed interest on the property taxes Adrian had paid. The court’s figure is the date paid to the day of judgment. When McKinnies tried to pay the 1999 taxes, they discovered that Adrian had already paid them. Adrian also paid the 2000 taxes. As part of the prior appeal, McKinnies posted a bond to cover the taxes. Adrian paid the taxes in anticipation of being awarded the land. Adrian I determined he did not own the land. By paying the taxes Adrian prevented McKinnies from doing so. McKinnies should not be required to pay interest on taxes that they were ready, willing and able to pay but prevented from paying. Adrian took the risk of paying the taxes. He had no obligation to pay the taxes. It was error for the trial court to award interest to Adrian.
Attorney’s Fees
[¶ 19.] Generally, “attorney fees may only be awarded by contract or when specifically authorized by statute.” O’Connor v. King, 479 N.W.2d 162, 166 (1991). Attorney’s fees are statutorily authorized in mortgage foreclosures. SDCL 15—17— 38. Adrian’s request for attorney’s fees was for the foreclosure action in the second trial. As part of the second trial, Adrian attempted to retry the issue of whether McKinnies had breached the contract by cutting timber. This Court disposed of that issue in the first appeal. Nevertheless, the trial court found “[t]he litigation conducted before Judge Fitzgerald concerned one dominating issue: whether McKinnies breached the agreement by taking timber.” (FF58). The trial court determined that since Adrian’s foreclosure complaint again alleged that McKinnies were in default for wrongfully taking lumber, “the evidence of breach presented at the first trial was relevant to prove breach in the second trial.” (FF59). Consequently, the trial court awarded attorney’s fees to Adrian in the amount of $18,862.75. Of that amount, $5,336.46 was attributable to the second trial, the rest were fees accrued as part of the first trial on issues improperly resubmitted in the second trial.
[¶ 20.] The trial court erred in its consideration of attorney’s fees. Because we have determined that McKinnies had tendered payment on May 10, 2002, any further action by Adrian was unnecessary. Had he accepted the payment as tendered, he would not have incurred additional attorney’s fees for the foreclosure. Despite this Court’s direction concerning the irrelevancy of the cut timber, Adrian continued to press the issue by filing a foreclosure action. He should not receive attorney’s fees for a foreclosure action created by his own refusal to accept tender.
[¶ 21.] Consistent with the resolution of the issues herein, the judgment of foreclosure is reversed and we remand to the trial court for proceedings consistent with this opinion.
[¶ 22.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, and ZINTER, Justices, concur.
. Judge Fitzgerald conducted the first trial. Due to his illness, Judge Tice was assigned the case and he conducted the second trial.
. SDCL 20-5-18 provides: "An offer of payment or other performance, duly made, though the title of the thing offered be not transferred to the creditor, stops the running of interest on the obligation, and has the same effect upon all its incidents as a performance thereof.”
. SDCL 15-17-38 provides in part: "Attorneys' fees may be taxed as disbursements on mortgage foreclosures either by action or by advertisement.”
. This finding is also stated in the Findings of Adrian I (finding 12).
. This finding is also stated in the Findings of Adrian I (finding 29).
.The option to purchase clause states in part that the Lessees may purchase the real property "for the purchase price as reflected on Schedule A.” Five lines later it states, "[i]n the event that the option is exercised, any rental payments shall be prorated to the date of closing.”
. The letter notes that it "follows my phone conversation with you on Thursday, April 6.”
. The letter notes that the "pro rated rent should be computed based on a daily rental of $61.85.” However, the parties agree that $61.85 is in error and that the correct amount is $33.51.
. The entire record of Adrian I was entered as substantive evidence in the foreclosure case.
. The parties' agreement was for a warranty deed.
. Tax notices were sent directly to Adrian. Adrian testified that he did not give the notices to McKinnies. |
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