Toft v. Toft, 23945.
| Citation | 2006 SD 91,723 N.W.2d 546 |
| Decision Date | 18 October 2006 |
| Docket Number | No. 23945.,23945. |
| Parties | Lisa Dawn TOFT, Plaintiff, v. Patrick Dale TOFT, Defendant and Appellee, and Elmer and Cornelia Stratmeyer, Intervenors and Appellants. |
| Court | Supreme Court of South Dakota |
Robert L. Spears, Spears Law Office, Watertown, South Dakota, Attorney for appellee.
Tamara D. Lee, Yankton, South Dakota, Attorney for appellants.
[¶ 1.] Elmer and Cornelia Stratmeyer, maternal grandparents, appeal the circuit court's award of attorney's fees1 in an ongoing dispute with the biological father over custody and visitation of the grandchildren. We affirm.
[¶ 2.] The Grandparents' custodial rights were terminated as a result of their misconduct detailed in In re Guardianship and Conservatorship of A.L.T. & S.J.T., 2006 SD 28, 712 N.W.2d 338. Only the facts relevant to the current dispute concerning attorney's fees are restated.
[¶ 3.] Lisa Dawn Toft (Mother) and Patrick Dale Toft (Father) were married on May 14, 1994. They are the biological parents of twins, A.L.T. and S.J.T, born October 22, 1994. Because of Mother's and Father's problems, the children lived with Grandparents from birth.
[¶ 4.] In 1999, Mother filed an action for divorce in Turner County. Grandparents subsequently filed a petition for temporary guardianship and conservatorship in Minnehaha County. Following a hearing, the Minnehaha County Circuit Court granted Grandparents temporary custody.
[¶ 5.] Father then moved to dismiss the temporary guardianship. However, before a hearing on Father's motion, the parties stipulated to a change of venue to Lincoln County. Following the hearing on Father's motion to dismiss the guardianship in Lincoln County, Judge Bogue ordered that Grandparents' temporary custody continue pending the outcome of the custody issue in the Turner County divorce.
[¶ 6.] Shortly thereafter, Judge McMurchie, who was presiding over the Turner County divorce, formally joined Grandparents as parties in the divorce. The order stated that "Cornelia and Elmer Stratmeyer shall be joined as interested parties in the above-entitled divorce action, pursuant to SDCL 26-5A-10, and shall be duly notified hereinafter of all proceedings in said action, in accordance with the Uniform Child Custody Jurisdiction Act."2
[¶ 7.] A final judgment and decree of divorce was entered in Turner County on June 6, 2002. The divorce decree awarded Grandparents custody of the children subject to Father's visitation rights. However, a number of disputes arose between Grandparents and Father over custody and visitation. See Guardianship of A.L.T. & S.J.T., 2006 SD 28, 712 N.W.2d 338. As a result, Father filed a number of motions to enforce visitation or to terminate Grandparents' custodial rights. Those motions underlie Father's request for attorney's fees.
[¶ 8.] In the course of litigating Father's motions, venue of the Turner County divorce was moved to Lincoln County. Ultimately, Judge Tiede presided over both the divorce and guardianship proceedings in Lincoln County. On August 18, 2004, he terminated the guardianship and granted joint custody to Mother and Father. Mother was given physical custody and Father was given visitation.
[¶ 9.] In litigating the subsequent custody and visitation issues with Grandparents, Father made four motions for reimbursement of his attorney's fees. All four motions were captioned in the divorce action. In an order dated April 29, 2003, Judge Tiede deferred a decision on Father's attorney's fees request until a final decision was made on custody.3 Following the final custody decision, Judge Tiede conducted a hearing and awarded Father $11,963.05, which was less than one-half of the attorney's fees requested. Grandparents appeal raising the following issues:
1) Whether the award of attorney's fees should be reversed because the circuit court failed to file findings of fact and conclusions of law.
2) Whether one of Father's motions was timely.
3) Whether the circuit court was authorized to award attorney's fees under SDCL 15-17-38.
4) Whether either party is entitled to appellate attorney's fees.
[¶ 10.] We generally review an award of attorney's fees under the abuse of discretion standard of review. Credit Collection Services, Inc. v. Pesicka, 2006 SD 81, ¶ 5, 721 N.W.2d 474, 476 (citing In re South Dakota Microsoft Antitrust Litigation, 2005 SD 113, ¶ 27, 707 N.W.2d 85, 97).) In this case, Grandparents do not challenge the reasonableness of the award. They only question whether attorney's fees are authorized under SDCL 15-17-38. This is a question of law that is reviewed de novo.
[¶ 11.] Grandparents first argue that the attorney's fees award should be reversed and remanded because the court failed to file findings of fact and conclusions of law on that issue. This Court has "stated that a circuit court is required to `enter findings of fact and conclusions of law when ruling on a request for attorney's fees.'" Wald, Inc. v. Stanley, 2005 SD 112, ¶ 10, 706 N.W.2d 626, 629 (quoting Hoffman v. Olsen, 2003 SD 26, ¶ 10, 658 N.W.2d 790, 793). Generally, the failure to file findings of fact and conclusions of law constitutes reversible error. Grode v. Grode, 1996 SD 15, ¶ 29, 543 N.W.2d 795, 803 (citations omitted). However, we have also noted that an appellate court may remand for findings, or, because findings are not jurisdictional, "an appellate court may decide the appeal without further findings if it feels it is in a position to do so." Hoffman, 2003 SD 26, ¶ 10, 658 N.W.2d at 793 (quoting Ridley v. Lawrence County Com'n, 2000 SD 143, ¶ 13, 619 N.W.2d 254, 259); see also Swanson & Youngdale, Inc. v. Seagrave Corp., 561 F.2d 171, 173 (8thCir.1977) ().
[¶ 12.] In order to determine whether we are in a position to review a ruling that is not supported by findings and conclusions, it is helpful to review their purpose.
The purpose of findings of fact is threefold: to aid the appellate court in reviewing the basis for the trial court's decision; to make it clear what the court decided should estoppel or res judicata be raised in later cases; and to help insure that the trial judge's process of adjudication is done carefully.
Heikkila v. Carver, 416 N.W.2d 591, 592 (S.D.1987) (citing J. Moore & J. Lucas, 5A Moore's Federal Practice, ¶ 52.06[1] (1987); C. Wright & A. Miller, 9A Federal Practice and Procedure, § 2571 (1971)). Considering these purposes, Swanson explained: "The appellate court may decide the appeal without further findings if `(1) the record itself sufficiently informs the court of the basis for the trial court's decision on the material issue, or (2) the contentions raised on appeal do not turn on findings of fact.'" Swanson, 561 F.2d at 173 (citation omitted).
[¶ 13.] We have also considered a third requirement. In Speck v. Anderson, 349 N.W.2d 49 (S.D.1984), a party challenged the circuit court's failure to enter findings of fact and conclusions of law under SDCL 15-6-52(a). In considering an alleged Rule 52(a) violation, this Court noted that the trial judge had "issued a lengthy memorandum decision explaining in detail [the judge's] reasoning process as well as reciting in detail the testimony, circumstances and inferences upon which [the judge] relied in reaching [the] decision. . . ." Id. at 51. This Court also noted that the memorandum opinion was filed with the clerk of courts, was attached to the subsequent order and was incorporated therein by reference. We ultimately concluded that the circuit court complied with SDCL 15-6-52(a)4 by incorporating the memorandum opinion by reference. Id.
[¶ 14.] In this case, the circuit court complied with SDCL 15-6-52(a), and we are in a position to decide the attorney's fees issue without formal findings and conclusions. First, the circuit court incorporated its memorandum opinion into its order by reference. Second, Grandparents have challenged the statutory authorization for, rather than the reasonableness of, the attorney's fees. Therefore, their contentions on appeal do not turn on findings of fact. Finally, the circuit court issued an extremely comprehensive memorandum opinion. That opinion details the facts of the case, the applicable law, and the application of the law to the facts. From that opinion, we can clearly ascertain the basis for the circuit court's decision. Considering the posture of this case, we find it unnecessary to remand for findings of fact and conclusions of law.
[¶ 15.] Grandparents argue that Father's July 31, 2003 motion for disbursements and attorney's fees was untimely. They point to the requirement in SDCL 15-6-54(d) that an application for the taxation of disbursements must be filed within thirty days of the entry of judgment. Because there was no judgment entered during the thirty-day period before Father's July 31, 2003 motion, Grandparents contend that the motion was untimely.
[¶ 16.] Grandparents misinterpret SDCL 15-6-54(d). That statute provides in relevant part: Thus, we read the statute simply as a deadline to file the motion. Because the July 31, 2003 motion was not filed after the deadline; i.e. more than thirty days after entry of the judgment awarding fees, the motion was timely.5
[¶ 17.] "South Dakota utilizes the American rule that each party bears the burden of the party's own attorney['s] fees." Microsoft Antitrust Litigation, 2005 SD 113, ¶ 29, ...
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