Kappenman v. Kappenman, 18435

• Citation: 522 N.W.2d 199
• Decision Date: 14 February 1994
• Docket Number: No. 18435,18435
• Parties: Darlene L. KAPPENMAN, Plaintiff and Appellee, v. Larry J. KAPPENMAN, Defendant and Appellant. . Considered on Briefs
• Court: Supreme Court of South Dakota

Page 199

522 N.W.2d 199

Darlene L. KAPPENMAN, Plaintiff and Appellee, v. Larry J. KAPPENMAN, Defendant and Appellant.

No. 18435.

Supreme Court of South Dakota.

Considered on Briefs Feb. 14, 1994.

Decided Sept. 21, 1994.

Richard A. Johnson of Strange, Farrell, Johnson & Casey, Sioux Falls, for plaintiff and appellee.

Doug Cummings, Sioux Falls, for defendant and appellant.

MOSES, Circuit Judge.

The final decree of divorce in this case was entered on June 29, 1990. Since the final decree of divorce, Larry Kappenman (Larry) has filed a considerable amount of litigation in both the trial court and this court, Kappenmann v. Kappenmann, 479 N.W.2d 520 (S.D.1992) ^*, questioning almost every decision made by the trial court. Based on the considerable amount of time spent in litigation resolving the various issues, Darlene L. Kappenman (Darlene) filed an application for $14,696.19 in costs and disbursements incurred from March 1, 1991 through January 13, 1993. Following hearings on the application and the various objections to the taxation of costs the trial court entered an order allowing Darlene $9,544.90 for attorney fees, $572.67 for sales tax, and $1,501.04 for costs and disbursements. Larry appeals.

FACTS

In focusing on the amount of litigation, it will assist the reader to have a procedural history of this matter even though we are aware that Darlene only asked for costs and disbursements from March 1, 1991 to January 13, 1993.

The final divorce decree was entered on June 29, 1990. On August 22, 1990, Larry made a motion to modify child custody and vacate a portion of the judgment. On August 31, 1990, Larry appealed the whole judgment except for that portion which granted the divorce. On September 4, 1990, Darlene responded to Larry's motion to modify custody.

The trial court wrote a March 8, 1991 letter to both counsel indicating that it did not have jurisdiction to modify custody once the matter had been appealed, unless the matter was remanded by the Supreme Court for that specific purpose. Larry then attempted to appeal from that memorandum opinion to the Supreme Court on May 1, 1991, based on the trial court's failure to decide his motion to modify child custody and vacate a portion of the judgment. That appeal was dismissed on May 29, 1991 since it was only from a memorandum opinion.

On July 11, 1991, Larry submitted a supplemental affidavit to his motion to modify custody and set summer visitation. On July 25, 1991 the trial court entered an order for the abatement of child support during the six weeks of summer visitation and Larry noticed a hearing on the modification of child custody.

On August 26, 1991, the trial court sustained Darlene's objection to Larry's motion to modify custody because the court lacked jurisdiction due to the pending appeal. On September 13, 1991, Larry asked for an order to show cause directing that he be allowed to enroll his son in a martial arts course. On November 27, 1991, based on the stipulation of the parties, the trial court entered an order on visitation.

On January 8, 1992, the Supreme Court entered its decision on the first appeal. Kappenmann, 479 N.W.2d at 520. There we affirmed the trial court on the issues of child custody, alimony and property division and partial award of attorney fees.

On March 11, 1992, Darlene asked for a continuance to examine an expert witness who had changed his mind from the time he made his opinion on custody at trial. Larry made a motion to set visitation schedule on May 22, 1992. The trial court ordered a trial on Larry's motion for a change of custody on June 25, 1992. The trial court entered an order on visitation on June 30, 1992. Darlene moved to hire an expert witness or counselor for the purposes of presenting evidence on June 30, 1992. The trial court denied this motion, denied the oral motion to reconsider its previous order directing that the matter be tried by deposition and affidavit, and also denied Larry's request for award of attorney fees and costs on July 23, 1992.

On August 12, 1992, Larry made a motion to compel production of records. On August 21, 1992, he made a motion to strike affidavits and notice of hearing. On September 3, 1992, the trial court issued a memorandum opinion denying the motion to modify custody.

On February 4, 1993, Larry made a motion to reconsider or in the alternative, motions for a new trial, and to amend visitation. On February 5, 1993, he made a motion for temporary custody order in lieu of the motion filed on February 4, 1993. On January 13, 1993, Darlene made an application for statement of costs and disbursements, and filed an affidavit and notice of taxation of costs in this matter.

The trial court entered and filed findings of fact and conclusions of law on February 11, 1993. On February 19, 1993, Larry filed his objection to application for taxation of costs. On March 9, 1993, the trial court entered the order modifying the visitation schedule of February 11, 1993. The trial court entered and filed an order on March 9, 1993 denying Larry's motion to reconsider and temporary custody order.

Darlene filed an application for and statement of costs and disbursements, and an affidavit of taxation of costs on March 22, 1993. Larry filed a motion in resistance to taxation of costs on May 19, 1993. The trial court held a hearing on the taxation of attorney fees and costs on June 7, 1993. The trial court entered and filed an order on taxation of attorney fees and costs on June 10, 1993 of $9,544.50, plus sales tax of $572.67 and costs and disbursements of $1,501.04.

STANDARD OF REVIEW

SDCL 15-17-38 permits the award of attorney fees in divorce actions. As we stated in Temple v. Temple, 365 N.W.2d 561 (S.D.1985), each case rests upon its own facts and a decision is within the court's discretion. This Court can consider the totality of the circumstances in reviewing such an award. Pribbenow v. Van Sambeek, 418 N.W.2d 626, 630 (S.D.1988). The award rests in the sound discretion of the trial court and will not be overturned on appeal absent an abuse of that discretion. Garnos v. Garnos, 376 N.W.2d 571 (S.D.1985). "The term, 'abuse of discretion' refers to a discretion exercised to an end or purpose, not justified by, and clearly against, reason and evidence." Hrachovec v. Kaarup, 516 N.W.2d 309 (S.D.1994) (quotation omitted); Gross v. Gross, 355 N.W.2d 4, 7 (S.D.1984).

ISSUE ONE

Was the order awarding the attorney fees and costs in this matter improper under SDCL 15-6-54(d) because the application was made beyond the thirty days allowed in the statute?

SDCL 15-6-54(d) allows an application of costs and disbursements to be made within thirty days of the entry of judgment or the attorney waives his right to such costs. SDCL 15-6-54(d) provides as follows:

Costs and disbursements shall be allowed as provided by statute. If a party wishes to have disbursements and costs of the action assessed, that party must file an application for taxation of costs, and a certificate of service, with the clerk of court. The application shall include a statement in detail of the costs and disbursements claimed and shall be verified by affidavit. The party preparing the application shall forthwith serve a true copy of the application and certificate of service upon all other parties.

A party who objects to any part of the application shall serve and file his objections with the clerk of court in writing within ten days of the service of the application on him or he will be deemed to have agreed to taxation of the costs and disbursements proposed. The written objections must be accompanied by a notice of hearing thereon and shall set forth in concise language the reasons why the costs should not be allowed. Upon receipt of such written objections and the notice of hearing, the clerk shall file the same and forward copies thereof, together with a copy of the application, to the court.

The decision rendered at the hearing shall be filed as a written order with the clerk directing that the approved amount of costs and disbursements inserted in the judgment and docketed.

If no written objection to the taxation of costs is filed within ten days of service, the clerk shall tax the costs and disbursements as set forth on the application, insert that amount in the judgment, and docket it.

Costs and disbursements under this section shall be waived if proper application is not made within thirty days of the entry of the judgment. For good cause shown, the court may extend the time.

The last paragraph of this statute was a 1990 amendment. 1991 S.D. Sess.L. ch. 427 (Supreme Court Rule 90-04).

The Rules of Civil Procedure are not applicable to divorce proceedings as set forth in the South Dakota Codified Laws. SDCL 15-6-1 states that the Rules of Civil Procedure generally apply to all suits that are civil in nature but there are exceptions. SDCL 15-6-1 provides:

This chapter governs the procedure in the circuit court of the state of South Dakota in all suits of a civil nature, with the exceptions stated in 15-6-81. It shall be construed to secure the just, speedy and inexpensive determination of every action.

SDCL 15-6-81(a) has the following language regarding the exceptions:

This chapter does not govern pleadings, practice and procedure in the statutory and other proceedings included in but not limited to those listed in Appendix A to this chapter insofar as they are inconsistent or in conflict with this chapter.

The South Dakota Legislature has excepted SDCL 25-4, the divorce section, from the Rules of Civil Procedure. SDCL 15-6-81(a); SDCL 15-6-Appendix A.

Larry argues that if application for taxation of costs or attorney fees is not filed within thirty days of judgment it is waived. We disagree.

Prior to 1992, SDCL 15-17-7 provided as follows:

The court may allow attorneys' fees as costs for or against any party to an action in the cases if it is specifically provided by statute, but nothing...