STATE EX REL., WILCOX v. Strand , 1989 S.D. LEXIS 106 ( 1989 )

HENDERSON, Justice

(concurring).

In concurring, I note, with agreement, the majority’s reference to Bruning v. Jeffries, 422 N.W.2d 579, 581 (S.D.1988), wherein this Court held that the passage of SDCL 25-7-7 did not abolish settled case law under which child support awards must be based upon the reasonable financial needs of the child and financial means of the parents. Guidelines must be just that, guidelines. They are not to be rigidly or blindly applied. Tesch v. Tesch, 399 N.W.2d 880, 884 (S.D.1987). Here, as in Tesch, the trial court did not abuse its discretion in fashioning its child support award.

The child support guidelines of SDCL 25-7-7, if interpreted inflexibly, result in unconstitutional “dejudicialization of the judiciary”. See Peterson v. Peterson, 434 N.W.2d 732, 739-41 (S.D.1989) (Henderson, J., concurring in part, concurring in result in part). The trial judges of this state are not to be reduced to schedule-automatons, i.e., read a schedule, plug in some facts, out comes the answer. See Peterson, id., at 740, Donohue v. Getman, 432 N.W.2d 281, 283-5 (S.D.1988) (Henderson, J., specially concurring). Rigid application of SDCL 25-7-7, whereby child support could be reduced to a process of moving a finger on a chart provided by the legislature, would shatter the constitutional doctrine of separation of powers, enshrined in S.D. Constitution, Art. II. Such a result was avoided here, through reference to past precedent. To avoid grave injustices and inequities, a trial court must adjudicate on the realities of the domestic situation before it. State ex rel. Larsgaard v. Larsgaard, 298 N.W.2d 381, 384 (S.D.1980).

Recognizing that this is not the occasion to knead the wrinkles out of the statutory cloth woven during the 1989 legislative session, I observe the extensive revision of SDCL Ch. 25-7 contained in 1989 S.D.Sess. L. Ch. 220, effective July 1, 1989 (H.B. 1081). Section 10 of that act provides that deviation from the child support guidelines, if raised by either party, may be made upon entry of specific findings based upon, inter alia, “[a]ny financial condition of either parent which would make application of the schedule inequitable.” (emphasis supplied). This statutory language appears to indicate that the legislature has recognized the necessity for equity in these cases, in derogation of the lockstep mentality disapproved in both the majority’s and this author’s writings in Bruning.

On the basis that the trial court reached an equitable result by exercising its discretion, I concur.