Schmidt v. Schmidt

¶1(concurring specially).

¶2I specifically concur with the majority on issues (1), and (3). I merely concur in the result on issue (2) because I feel that the trial court should have specifically articulated the factors it considered in denying attorney fees.

¶3(concurring in part, concurring in result in part, dissenting in part).

¶4I. CHILD CUSTODY

¶5On the change of custody issue, I concur in result. The Kolb decision is one that I have never agreed with and have so stated in writing. See, e.g., Mayer v. Mayer, 397 N.W.2d 638, 645-46 (S.D.1986) (Henderson, J., specially concurring); Kolb, 324 N.W.2d 279, 284-87 (Henderson, J., concurring in part, dissenting in part). There is little need to burden the reader with my previous rationale.

¶6*372II. ATTORNEY’S FEES

¶7I concur.

¶8III. CHILD SUPPORT

¶9As one peruses and ponders upon the majority’s child support dissertation, one fancies a trip with Alice through Wonderland. Wonderland is the world of child support, resulting from this State’s charting a course, thrusting rigidity upon trial courts, in an effort to follow the United States Congress, which required no such mandated rigidity.1 The rigidity of the guidelines turns logic on its head.

¶10In the past I have sought, through numerous writings, to academically advance that judges cannot decide child support by formulas and tables. When tables are used, judgment flees. As I have written in the past, judges are not “schedule-automatons.” Peterson v. Peterson, 434 N.W.2d 732, 739-741 (S.D.1989) (Henderson, J., concurring in part, concurring in result in part). In my previous writings, I have argued that the abuse of discretion test is not only the primary but solid scope of review test — not whether the guidelines have or have not been followed in the particular set of facts before the trial judge.2 We are substituting, with these guidelines and decisions thereunder, at least to date, something of inferior value. If we in the law are substituting a new concept, it should be something of greater value.3 We should continue to consider the needs of the child, the ability to pay by the parent, and, essentially, the trial judge’s abuse or non-abuse of his discretion in setting child support. In doing so, we, in the judiciary, retain our independence; we also vault a known, Equity, forged through the centuries in jurisprudence, over an unknown substitute of legislative dogmatism. The hypothesis, posed in the majority’s footnote 3, proves the fallacy of rigid guidelines and establishes the validity of various expressions on this subject, collected below, in which I have intended to draw this issue to the attention of this Court, the Bench and Bar, the people of this State, and, perhaps more importantly, the people of this Nation.

¶11BIBLIOGRAPHY

Studt v. Studt, 443 N.W.2d 639, 645-46, handed down July 5,1989 (Henderson, J., specially concurring in part, dissenting in part) (abuse of discretion is proper standard for child support awards).

Vellinga v. Vellinga, 442 N.W.2d 472, 475-77, (Henderson, J., dissenting) (chancery/equity power of courts is not subject to legislative encroachment; autocratic rule by legislative arm is dangerous to constitutional government, quoting Appeal of Nelson, 83 S.D. 611, 617, 163 N.W.2d 533, 536 (1967)).

State ex rel. Wilcox v. Strand, 442 N.W.2d 256, 259, (Henderson, J., concurring) (1989 Legislative revisions of SDCL ch. 25-7 reject, in part, “lockstep mentality” fostered by rigid guidelines). Compare the disparagement of “mechanical jurisprudence” by Roscoe Pound in his treatise on Mechanical Jurisprudence.” 8 Col.L.Rev. 605, 605-08, 613, 620-21 (1908).

Peterson v. Peterson, 434 N.W.2d 732, 739-41 (S.D.1989) (Henderson, J., concurring in part, concurring in result in part) (judicial discretion, springing from experience, is necessary to decide human fate, not sterile guidelines).

*373Feltman v. Feltman, 434 N.W.2d 590, 593-94 (S.D.1989) (Henderson, J., dissenting) (Should we weep for children of a second marriage at their birth, not at their death? Held: Children of a second marriage are not on an equal par with children of a first marriage.).

Donohue v. Getman, 432 N.W.2d 281, 283-85 (S.D.1988) (Henderson, J., specially concurring) (federal dollars inspired these guidelines, yet federal law does not call for elimination of judicial discretion). Sharp v. Sharp, 422 N.W.2d 443, 448-49 (S.D.1988) (Henderson, J., dissenting) (separation of powers denies administrative “mini-judges” legitimacy — legislature created unconstitutional jurisdictional maze, as demonstrated in Sarver v. Dathe, 439 N.W.2d 548 (S.D.1989) (majority opinion) — Note: “Mini-judge” statutes have since been repealed by 1989 Legislature).

Bruning v. Jeffries, 422 N.W.2d 579, 582-84 (S.D.1988) (Henderson, J., concurring in result) (“mini-judges” represent dejudicialization of the judiciary).

¶12Presently, the states are in fear so the guidelines are born. In time, this mechanical jurisprudence shall disappear because of its despisement by those who are called upon to administer them. A bond, now established to create these guidelines, is created by a chain of governmental obligation. Fear is the cement which holds the chain unbroken. Unquestionably, many prisoners of this chain will be held captive until reason and courage overcome fear and fad.

¶13As this author noted in Donohue, at 284-5, the federal Child Support Enforcement Amendments of 1984 (Pub.L. No. 98-378) required States to establish guidelines, but Congress provided that the guidelines “need not be binding upon such judges or other officials.” 42 U.S.C. § 667(b). On October 13, 1988, Congress changed its mandate by deleting the quoted wording and substituted the following:

There shall be a rebuttable presumption, in any judicial or administrative proceeding for the award of child support, that the amount of the award which would result from the guidelines is the correct amount of child support to be awarded. A written finding or specific finding on the record that the application of the guidelines would be unjust or inappropriate in a particular case as determined under criteria established by the State, shall be sufficient to rebut the presumption in that case.

¶14Pub.L. 100-485, Title I, Subtitle A, § 103, 102 Stat. 2346 (1988) (effective October 13, 1989). Deviation from the guidelines, where their application is unjust, is apt, as trial courts in these cases are sitting in equity. See, e.g., Vellinga, supra(Henderson, J., dissenting). Do we see some sunshine of common sense beginning to evolve?

¶15The 1989 State Legislature, in extensively revising SDCL ch. 25-7, has now provided, effective July 1, 1989, that deviation from that chapter’s guidelines may be made, inter alia, for “any financial condition of either parent which would make application of the schedule inequitable.” See 1989 Sess.L. ch. 220 (HB 1081), now SDCL 25-7-6.10. The way appears open, under the new law, for any trial court of this State to return to adjudication of child support issues based “on the realities of the domestic situation before it” as in State ex. rel. Larsgaard v. Larsgaard, 298 N.W.2d 381, 384 (S.D.1980). May the sunshine illuminate the Lady of Equity.

¶16Under the rules of equity, I would affirm the trial court’s award of child support on the ground that there was no abuse of discretion. See, e.g., Herndon v. Herndon, 305 N.W.2d 917 (S.D.1981). The majority opinion, while reversing the trial court’s award for failure to strictly follow guidelines, simultaneously instructs the trial court to sift through the record seeking an excuse to deviate from the guidelines noting, at footnote 3, the absurdity of such guidelines.