Linard v. Hershey, s. 18418
| Decision Date | 15 February 1994 |
| Docket Number | 18437,Nos. 18418,s. 18418 |
| Citation | 516 N.W.2d 304 |
| Parties | Patricia LINARD, Plaintiff and Appellee, v. Brooke HERSHEY, Defendant and Appellant. . Considered on Briefs |
| Court | South Dakota Supreme Court |
Jerry C. Rachetto, Mattson & Rachetto, Deadwood, for plaintiff and appellee.
Robert A. Haivala, Morman, Smit, Hughes, Strain, Molstad and Haivala, Sturgis, for defendant and appellant.
Subsequent to this court's decision in Linard v. Hershey, 489 N.W.2d 599 (S.D.1992), Patricia Linard (Linard) filed a Motion to Modify Child Support Payments Based Upon Current Earnings. Following an evidentiary hearing, the circuit court entered an Order Setting Child Support increasing Brooke Hershey's (Hershey) child support payments from $116.60 per month to $490.00 per month. Hershey's Motion for New Trial was denied. Hershey appeals.
SDCL 15-6-52(a) provides in part:
In all actions tried upon the facts without a jury or with an advisory jury, the court shall unless waived as provided in Sec. 15-6-52(b) find the facts specially and state separately its conclusions of law thereon[.]
....
If an opinion or memorandum of decision is filed, the facts and legal conclusions stated therein need not be restated but may be included in the findings of fact and conclusions of law by reference.
Hershey argues that the circuit court committed error by failing to enter findings of fact and conclusions of law. Hershey makes this argument even though he did not propose findings of fact and conclusions of law himself. While the circuit court did file a Memorandum Opinion, "[i]t is settled law that we do not review the trial court's memorandum opinion unless the same is expressly incorporated in the trial court's findings of fact and conclusions of law." Olson v. Olson, 438 N.W.2d 544, 547 (S.D.1989) (citations omitted).
Jones v. Jones, 334 N.W.2d 492, 494 (S.D.1983) (quoting Connelly v. Sherwood, 268 N.W.2d 140, 142 (S.D.1978)).
Linard argues that findings of fact and conclusions of law are not necessary on court decisions relating to motions and that if the court did commit error, it was incumbent upon Hershey to call the error to the attention of the court by proposing findings of fact and conclusions of law, which he did not do. In support, Linard cites SDCL 15-6-52(a) which further provides in part that "[f]indings of fact and conclusions of law are unnecessary on decisions of motions under Sec. 15-6-12 or Sec. 15-6-56 or any other motion except as provided in Sec. 15-6-41(b)."
Linard overlooks the fact that this motion resulted in an order modifying support (Order Setting Child Support). This so-called "motion hearing" included 83 pages of testimony by Hershey and Linard and 15 exhibits. Certainly, it was closer to an action "tried upon the facts without a jury," than a motion hearing. Compare In re the Application of SDDS, Inc., 472 N.W.2d 502, 509 (S.D.1991) ( ).
In Grunewaldt v. Bisson, this court stated that when the father moved for a modification of child support, the trial court was required:
to enter findings of fact and conclusions of law on: each party's net monthly income; the parties' combined net monthly income; the percentage contribution of each party to their combined net monthly income; and, each party's child support obligation calculated according to the applicable figure in the guidelines and each party's percentage contribution to their combined net monthly income.
494 N.W.2d 193, 195 (S.D.1992) (citations omitted). Because the trial court in Grunewaldt failed to enter the necessary findings of fact and conclusions of law, we held that it was "impossible for this court to make the appropriate calculations and render a meaningful review to this case and we remand[ed] the matter for entry of the necessary findings of fact and conclusions of law." Id. It is incumbent on the appellant to be able to show where the court specifically erred.
The circuit court failed to enter the necessary findings of fact and conclusions of law. Therefore, it is impossible for us to render a meaningful review. Id. We are unable to review the court's memorandum opinion absent incorporation of the memorandum opinion in the findings of fact and conclusions of law. SDCL 15-6-52(a). We dismiss these appeals and remand to the circuit court for entry of findings of fact and conclusions of law. Grunewaldt, 494 N.W.2d at 196. See also Kierbow v. Young, 21 S.D. 180, 181, 110 N.W. 116 (S.D.1906) (citing Gull River Lumber Company v. School District No. 39, 1 N.D. 500, 48 N.W. 427) ("Having failed to find any of the ultimate facts material to the issues presented for determination, there is nothing upon which to base a judgment, and the fact that there was no request for express findings in no manner obviates the necessity of complying with the above positive and explicit requirement."). Because of our determination of this issue, we are unable to reach the issues raised by Hershey. We decline to award attorney's fees to either party. *
In my opinion, where Hershey failed to propose findings of fact and conclusions of law, the circuit court did not commit reversible error in failing to enter them.
SDCL 15-6-52(a) provides in part:
Findings of fact and conclusions of law are unnecessary on decisions of motions under Sec. 15-6-12 or Sec. 15-6-56 or any other motion except as provided in Sec. 15-6-41(b).
The majority relies on Grunewaldt v. Bisson, 494 N.W.2d 193 (S.D.1992), to support its determination that because Linard's motion to modify child support "was closer to a hearing or a trial, than a motion," the trial court was required to enter findings of fact and conclusions of law. However, the majority's reliance is misplaced.
In Grunewaldt, this court held that, as a matter of settled law, there can be no deviation from the child support schedule unless there is an entry of specific findings regarding the limited statutory factors allowing deviation. Id., 494 N.W.2d at 195. Our holding in Grunewaldt was based on a long line of cases requiring that trial courts enter specific findings of fact and conclusions of law when deviating from the mandatory statutory guidelines for child support. Kansas ex rel. Adams v. Adams, 455 N.W.2d 227, 231 (S.D.1990); Johnson v. Johnson, 451 N.W.2d 293, 296 (S.D.1990); Schmidt v. Schmidt, 444 N.W.2d 367, 371 (S.D.1989); Donohue v. Getman, 432 N.W.2d 281, 283 (S.D.1988); Bruning v. Jeffries, 422 N.W.2d 579, 582 (S.D.1988).
The majority's expansion of the requirement of specific findings of fact, where a trial court is not deviating from the mandatory guidelines, places an unwarranted burden on the trial judges of this state and goes beyond what is required by SDCL 15-6-52(a). The trial court's failure to enter findings of fact and conclusions of law on Linard's motion to modify child support was not reversible error. Therefore, I dissent.
In Grunewaldt v. Bisson, 494 N.W.2d 193 (S.D.1992), this Court also reviewed a denial of modification of child support. We held that "the trial court did abuse its discretion in determining mother should be freed of any child support ..." Id. at 195 (emphasis added). I concurred in this rationale. Why did the trial court abuse its discretion? Because "there can be no deviation from the [mandatory child support] guidelines unless there is an entry of specific findings regarding the factors allowing deviation." Id. Deviation from the guidelines is not at issue here; hence, the trial court did not abuse its discretion by not issuing findings of fact and conclusions of law in this motion hearing. See SDCL 15-6-52(a).
The gravamen of the error in the majority opinion is its failure to recognize that the case before us was not a court trial. It was a decision on a motion. Under SDCL chap. 15-6, South Dakota's civil procedure establishes the conduct of trials which is broken down into jury trials (SDCL 15-6-38(a)) and trials to the court (SDCL 15-6-52(a)). If you look at the civil procedure which has been developed by this state, over a period of one century, it becomes obvious from the history of court trials that such must result in the court entering Findings of Fact and Conclusions of Law. Of course, same may be waived. SDCL 15-6-52(b). There are dozens of cases collected and annotated under trials to the court, via SDCL 15-6-52(a). Not one of these cases address Findings of Fact and Conclusions of Law pertaining to ordinary motions. Rather, they all address "actions tried upon the facts without a jury."
This Court has never required formal Findings of Fact and Conclusions of Law on ordinary motions concerning the modification of child support. As the Chief Justice has pointed out, because of specific legislative direction, this Court began to require the specific entry of Findings of Fact and Conclusions of Law when the trial courts deviated from the statutory guidelines for child support.
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