Brandriet v. Larsen , 1989 S.D. LEXIS 104 ( 1989 )

HENDERSON, Justice

(concurring in result).

We adjudicated upon allocation of dependent federal income tax exemptions in Fall River County ex rel. Dryden v. Dryden, 409 N.W.2d 648 (S.D.1987). Our decision was not obiter dicta. A footnote is a holding or statement of a Court. Four Justices, including the author of the majority opinion, agreed to the allocation of the exemption of the federal income tax exemption. To write that the “impact was confined to a footnote” appears unnecessarily limiting.

Attention is called to Sarver v. Dathe, 439 N.W.2d 548 (S.D.1989), wherein there were two solid concurrences by Chief Justice Wuest and Justice Miller. Sarver adjudicated upon the subject now at hand. The majority opinion fails to make reference to it. I do not doubt that there should be a vibrant growth of the law which overrules ill-conceived, moribund, or obsolete precedents. However, for precedential vitality I respectfully suggest that cases handed down in this Court as recently as two months ago on this very subject control, and should not suffer any contemporary erosion.