Nickles v. Nickles ( 2015 )

#27179-aff in pt, rev in pt & rem-SLZ
2015 S.D. 40
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
****
PATRICK NICKLES, Plaintiff and Appellant,
v.
KACIE JO MARTA NICKLES, Defendant and Appellee.
****
APPEAL FROM THE CIRCUIT COURT OF
THE FOURTH JUDICIAL CIRCUIT
LAWRENCE COUNTY, SOUTH DAKOTA
****
THE HONORABLE WARREN G. JOHNSON
Retired Judge
****
PATRICIA A. MEYERS
Rapid City, South Dakota
and
CASSIDY M. STALLEY of
Banks, Johnson, Kappelman &
Becker, PLLC
Rapid City, South Dakota Attorneys for plaintiff
and appellant.
DEBRA D. WATSON
Rapid City, South Dakota Attorney for defendant
and appellee.
****
CONSIDERED ON BRIEFS
ON MARCH 23, 2015
OPINION FILED 06/03/15
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ZINTER, Justice
[¶1.] Patrick and Kacie Nickles divorced. Patrick appeals the circuit court’s
decisions on child custody, child support, rehabilitative alimony, property division,
and attorney’s fees. We affirm the circuit court’s decision on child custody. On all
other issues, we reverse and remand for the entry of findings sufficient to permit
appellate review.
Facts and Procedural History
[¶2.] Kacie and Patrick met through an online dating service in November
2003. At the time, Patrick was living in Oklahoma with his son M.N. Kacie and
her son J.N. moved to Oklahoma to live with Patrick. Kacie and Patrick married in
August 2004. During the marriage they had two additional children, B.N. and C.N.
Kacie and Patrick also adopted each other’s children.
[¶3.] Prior to the marriage, Patrick was employed by Nickles Machine
Corporation. He later inherited a share of the business. The business was sold in
2001, and Patrick’s share of the proceeds was approximately five million dollars.
He used the sale proceeds to begin a career as an investor. Two of his investments
involved interests in Podo Technology and Fast Fusion. Patrick formed ROIC LCC,
a holding company, to manage his investments. The remainder of the sale proceeds
was set aside for personal use and living expenses. This financial arrangement
allowed Kacie to stay at home and raise the children.
[¶4.] Patrick and Kacie initially lived an extravagant lifestyle. In 2007,
however, the parties’ financial condition changed. Patrick’s investments were not
doing well, and the family moved to Atlanta to salvage the situation. Kacie began
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abusing alcohol. In 2010, Kacie was arrested and convicted of driving under the
influence of alcohol. Both parties were unfaithful during their marriage.
[¶5.] In February 2012, Patrick decided to do something about his family’s
financial situation and moved to Spearfish where Kacie’s parent’s lived. He
attempted to start a business in the oil fields in North Dakota. Kacie and the
children remained in Atlanta to finish the school year. In May, Patrick moved the
children to Spearfish. Kacie remained in Atlanta, traveled to California with
friends, and eventually rejoined her family in Spearfish. During the summer of
2012, Kacie returned to Atlanta where she worked until December 2012, when she
moved back to Spearfish.
[¶6.] On April 11, 2013, Patrick filed for divorce. The parties continued to
live together until an incident on April 27, 2013, when Kacie, in an intoxicated
state, was arrested for assaulting her father, her sister, and Patrick. Kacie was
indicted on three counts of simple assault/domestic violence. She pleaded guilty to
disorderly conduct. Patrick obtained a one-year protection order against Kacie.
Patrick also took custody of all four children. On May 3, 2013, Kacie began
residential alcohol treatment in California. Kacie returned to Spearfish after she
completed treatment. Alcohol was not an issue for Kacie at the time of trial.
[¶7.] Dr. Bill Moss, a licensed psychologist, was appointed by the court to
conduct a custody evaluation. Dr. Moss reported that Patrick was stable and
dedicated to the children. However, Dr. Moss found that Patrick did not have a
strong emotional connection with the children. Dr. Moss found that Kacie struggled
with insecurity and had traits of emotional dependency. At the time of trial, she
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was making strides toward financial stability although her income was
unpredictable. She had also successfully maintained sobriety. In making a child
custody recommendation, Dr. Moss considered Patrick’s and Kacie’s parental
fitness, stability, harmful parental misconduct, primary caretaker status, and the
children’s preferences. Dr. Moss ultimately recommended that Kacie have primary
physical custody of the parties’ minor children because “she ha[d] the better
emotional bond with the children and ha[d] established this relationship through
constant effort.”
[¶8.] Cheryl Wales, a licensed counselor, had counseled M.N. and J.N. and
also worked with Kacie and Patrick through couples counseling. Wales testified
that M.N. had experienced problems while in Patrick’s care, but Patrick
appropriately handled the problems. She also mentioned that M.N.’s grades had
dropped while in Patrick’s care. According to Wales, all four children were aware of
the April 27, 2013 incident involving Kacie. Wales disagreed with Dr. Moss’s
conclusion. Wales believed Dr. Moss’s recommendation was based solely on Kacie’s
emotional availability. While not discounting Kacie’s emotional availability for the
children, Wales found that Patrick’s structure, routine, and stability made him the
better parent to serve the children’s best interests. Wales also testified that M.N.
wanted to live with his father and that he would run away if he was required to live
with Kacie.
[¶9.] At the end of the trial, the court interviewed M.N. in camera. After
returning home from a weekend visitation, M.N. told Patrick that Kacie had
questioned him about his in camera visit with the court. Because of this incident,
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M.N. refused to attend another visitation with Kacie, and Patrick moved to suspend
visitation between M.N. and Kacie. Wales advised Patrick to not comply with the
court-ordered visitation, and Patrick acted on that advice. Dr. Moss disagreed with
this course of action and thought Patrick should have done more to reunite M.N.
with his mother. Patrick’s motion to suspend visitation was denied.
[¶10.] Patrick and Kacie’s 2012 joint income tax return reported income of
$722,197. It appears this amount was “paper income” (retained earnings) from
different entities—primarily Fast Fusion. Patrick did not receive the money. The
2012 tax return also reported $10,394 in wages, $3,409 in taxable interest, and
$76,651 in ordinary dividends. The 2012 tax return showed a loss of $1,193,992 as
a result of past investment failures.
[¶11.] Patrick submitted a list of deposits reflecting 2013 income of $159,161.
The funds were Fast Fusion distributions for the payment of Patrick’s individual
tax liability. The court found that these funds were available for personal use.
Patrick was also receiving $4,000 per month for the repayment of a loan he made to
Podo Technologies. At the time of trial, the loan payments were expected for the
next forty-eight months. No further income was anticipated from Podo Technology.
Patrick was also receiving $682 per month in Social Security benefits for M.N.
[¶12.] Both Patrick and Kacie have college degrees. After reentering the
labor market, Kacie became employed as a receptionist working thirty hours a week
earning $12 per hour. Kacie also worked as a freelance photographer and was
working toward a master’s degree in fine arts, which was expected to be completed
in one year. The court calculated Kacie’s monthly income for child support purposes
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at $1,548. The court did not calculate Patrick’s monthly income for child support.
The court noted that his current income was “not easily determined.”
[¶13.] The court accepted the custody findings and recommendations of Dr.
Moss. The court ordered joint legal custody with primary physical custody awarded
to Kacie subject to liberal parenting time for Patrick. The court awarded $3,800 in
monthly child support. The court also awarded Kacie rehabilitative alimony of
$1,000 per month for a period of twelve months, and the court ordered Patrick to
pay $7,500 in attorney’s fees and costs. In dividing the parties’ property, the court
awarded Kacie $43,000 from Patrick’s Wells Fargo ROIC LCC savings account and
$304 from Patrick’s Wells Fargo ROIC LCC checking account. Patrick appeals each
of these decisions.
Decision
Child Custody
[¶14.] Patrick argues that the court clearly erred in its child custody findings
relating to harmful parental misconduct by Kacie, her parental fitness and stability,
and M.N.’s stated preference. Patrick further argues that the court erred in failing
to make an express determination whether Kacie rebutted a purported presumption
against her having custody because she had been “convict[ed] of domestic abuse.”
[¶15.] “The best interest of the child standard is [applied] when parents seek
an initial judicial determination of the custody of their children.” Kreps v. Kreps,
2010 S.D. 12, ¶ 26, 778 N.W.2d 835, 843. “The best interests of the child are
determined by considering the child’s temporal, mental, and moral welfare.”
Pietrzak v. Schroeder, 2009 S.D. 1, ¶ 39, 759 N.W.2d 734, 744. There are several
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factors that the court should consider: parental fitness, stability, primary caretaker,
child’s preference, harmful parental misconduct, and separating siblings.
Fuerstenberg v. Fuerstenberg, 1999 S.D. 35, ¶¶ 24-34, 591 N.W.2d 798, 807-10. In
evaluating parental fitness, the circuit court should consider:
(1) mental and physical health; (2) capacity and disposition to
provide the child with protection, food, clothing, medical care,
and other basic needs; (3) ability to give the child love, affection,
guidance, education and to impart the family’s religion or creed;
(4) willingness to maturely encourage and provide frequent and
meaningful contact between the child and the other parent; (5)
commitment to prepare the child for responsible adulthood, as
well as to insure that the child experiences a fulfilling childhood;
and (6) exemplary modeling so that the child witnesses
firsthand what it means to be a good parent, a loving spouse,
and a responsible citizen.
Id. ¶ 24, 591 N.W.2d at 807 (citations omitted). In evaluating parental stability, the
circuit court should consider:
(1) the relationship and interaction of the child with the parents,
step-parents, siblings and extended families; (2) the child’s
adjustment to home, school and community; (3) the parent with
whom the child has formed a closer attachment, as attachment
between parent and child is an important developmental
phenomena and breaking a healthy attachment can cause
detriment; and (4) continuity, because when a child has been in
one custodial setting for a long time pursuant to court order or
by agreement, a court ought to be reluctant to make a change if
only a theoretical or slight advantage for the child might be
gained.
Id. ¶ 26, 591 N.W.2d at 808 (citations omitted). With respect to harmful parental
misconduct, “[t]he harmful effect is self-evident when parental misconduct is
committed in the presence of a child old enough to perceive the misconduct.” Price
v. Price, 2000 S.D. 64, ¶ 42, 611 N.W.2d 425, 435 (quoting Fuerstenberg, 1999 S.D.
35, ¶ 31, 591 N.W.2d at 809).
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[¶16.] “‘We encourage trial courts to take a balanced and systematic approach
when applying the factors relevant to a child custody proceeding.’” Roth v. Haag,
2013 S.D. 48, ¶ 13, 834 N.W.2d 337, 340 (quoting Schieffer v. Schieffer, 2013 S.D.
11, ¶ 18, 826 N.W.2d 627, 634). “However, ‘a court is not bound to make a specific
finding in each category; indeed, certain elements may have no application in some
cases, and for other cases there may be additional relevant considerations. In the
end, our brightest beacon remains the best interests of the [children].’” Id. (quoting
Beaulieu v. Birdsbill, 2012 S.D. 45, ¶ 10, 815 N.W.2d 569, 572). This Court will
only disturb the circuit court’s determination on child custody if there was an abuse
of discretion. Pietrzak, 2009 S.D. 1, ¶ 37, 759 N.W.2d at 743. “‘An abuse of
discretion can simply be an error of law or . . . discretion exercised to an unjustified
purpose, against reason and evidence.’” Goeden v. Daum, 2003 S.D. 91, ¶ 7, 668
N.W.2d 108, 111 (quoting Sjomeling v. Stuber, 2000 S.D. 103, ¶ 11, 615 N.W.2d 613,
616.)
[¶17.] Instead of making its own written findings on the Fuerstenberg factors,
the court adopted Dr. Moss’s findings and recommendations. In his analysis, Dr.
Moss addressed each Fuerstenberg factor in detail. Dr. Moss addressed all six areas
considered when analyzing parental fitness. Dr. Moss found that Patrick had the
advantage in mental and physical health due to Kacie working to maintain her
sobriety. Dr. Moss found that Patrick would be better to provide basic needs as he
had a steadier source of income. Kacie, however, was found better able to address
the children’s emotional needs. Dr. Moss did not believe co-parenting was an
option, and he found that both parents were equal when it came to their
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commitment to teach the children what it meant to be a responsible adult and a
model parent, spouse, and citizen.
[¶18.] In considering stability, Dr. Moss found that Kacie had provided a
steadier presence in the children’s lives. While both parents were dedicated to their
children’s welfare, Dr. Moss found that Kacie had been more involved in the
children’s activities and had been the primary caretaker. Dr. Moss also found that
the children had a better emotional bond with Kacie. Contrary to Patrick’s
assertion, Dr. Moss did consider Kacie’s actions in front of the children the night of
her arrest. Finally, Dr. Moss felt that it would be best not to separate the four
siblings as they all shared a strong emotional bond with each other. Although there
was no mention of M.N.’s preference in either the court’s or Dr. Moss’s findings, the
court was aware of his wishes. The circuit court does not need to make findings on
each factor. See Roth, 2013 S.D. 48, ¶ 13, 834 N.W.2d at 340. Considering the
totality of this factual analysis adopted by the court, we find no abuse of discretion
in awarding Kacie physical custody.
[¶19.] We also find no error in the court’s failure to make an explicit finding
that Kacie “rebutted the presumption” against her having custody because of her
“conviction of domestic abuse.” A “conviction or history of domestic abuse creates a
rebuttable presumption that awarding custody to the abusive parent is not in the
best interest of the minor.” SDCL 25-4-45.5. The presumption arises under one of
three situations:
(1) A conviction of domestic abuse as defined in subdivision 25-
10-1(1); or
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(2) A conviction of assault against a person as defined in
subdivision 25-10-1(2), except against any person related by
consanguinity, but not living in the same household; or
(3) A history of domestic abuse.
. . . . A history of domestic abuse may only be proven by greater
convincing force of the evidence.
Id.
[¶20.] Kacie was convicted of disorderly conduct. Although Patrick
characterizes Kacie’s underlying actions as “domestic violence,” Kacie was not
“convicted” of domestic abuse within the meaning of SDCL 25-4-45.5(1) or assault
within the meaning of SDCL 25-4-45.5(2). Therefore, for the presumption to have
arisen, Patrick must have proven a “history of domestic abuse” within the meaning
of SDCL 25-4-45.5(3). Patrick did not meet his initial burden of establishing such a
history. Although Patrick relies on the April 27, 2013 incident and other claimed
instances of abuse, Dr. Moss reviewed Patrick’s claims and determined that they
did not rise to the level of documented domestic abuse. Because Patrick did not
establish a history of domestic abuse, the presumption did not arise. And because
the presumption did not arise, the circuit court was not required to enter a finding
whether Kacie rebutted the presumption.
Child Support
[¶21.] Patrick argues that the circuit court’s findings do not support a $3,800
child support obligation. Patrick also argues that his income was “pass-through”
corporate income that should not have been considered to calculate child support.
[¶22.] “The court is required to set a child support obligation based on an
income schedule established by the Legislature.” Hill v. Hill, 2009 S.D. 18, ¶ 6, 763
N.W.2d 818, 822. In this case, Kacie requested $3,804 in child support—the highest
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scheduled support for four children. Patrick did not submit any child support
calculations. The circuit court awarded $3,800. To warrant that level of support,
the court must have found that the parents’ joint monthly income was
approximately $20,000. See SDCL 25-7-6.2 (indicating that joint monthly income
must be $19,950 for a support order of $3,795 and $20,000 for a support order of
$3,804).
[¶23.] The court found that Kacie’s monthly income was $1,548. The court
did not, however, make an income finding for Patrick. Instead, the court noted:
Patrick currently receives $4,000 per month from Podo
Technologies as repayment on a loan of $1,000,000, payable over
the next 48 months. The parties’ 2012 joint income tax return
shows income of [$722,197]. According to Exhibit 17, Patrick
deposited to his account in 2013, a total of [$159,161], which was
available for personal use. Patrick testified that he had zero
earnings in 2013. Patrick’s present earnings are not easily
determined as he has been less than helpful in providing current
financial information.
The failure to enter findings on Patrick’s income is problematic because Patrick
argues that, with the exception of the loan repayment, the remaining amounts are
pass-through income that should not be considered in calculating child support.
Kacie does not respond to this argument. She merely provides a calculation that
uses the alleged pass-through income of $722,197.
[¶24.] Under our statutory scheme, “pass-through corporate income . . .
included on [a parent’s] federal income tax return should not [be] included in
calculating . . . gross income for child support purposes when [the parent] did not
actually receive the corporate income and had no control over its distribution.”
Roberts v. Roberts, 2003 S.D. 75, ¶ 24, 666 N.W.2d 477, 484. However, money
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actually received by a parent from a corporation to meet the parent’s tax liability on
pass-through income should be included in the calculation of that parent’s gross
income for child support purposes. Id. ¶ 26.
[¶25.] According to Patrick, the $722,197 shown on his 2012 tax return was
pass-through income from Fast Fusion and his trust—money over which he had no
control and was not available to him. The court made no finding on this issue.
With respect to the $159,161 of 2013 income, the court found that the sum was
available for personal use. This sum appears to be money received for Patrick to
meet his tax liability on pass-through income. Therefore it may have been
considered for child support purposes. See id. However, the circuit court did not
make any finding of Patrick’s net monthly income for purposes of calculating
support under SDCL 25-7-6.2. Therefore, we cannot determine if the circuit court’s
award was based on 2013 income that was available for child support calculations
($159,161) or based on older 2012 income that may not be representative of the
parties’ current situation.
[¶26.] Furthermore, even if we assume the circuit court used $159,161 in
calculating Patrick’s monthly income, that amount does not meet the monthly
threshold required. Using that figure, Patrick’s average monthly income was
$13,262.58 in 2013 ($159,161/12 months = $13,262.58). Assuming that Patrick’s
$4,000 per month loan repayment is additional countable income, his monthly
income equaled $17,262.58 ($13,260.58 + $4000). Adding Kacie’s monthly income
($1,548), the parties’ joint gross income was $18,810.58, which is less than the
income required for a $3,800 support obligation under SDCL 25-7-6.2. Further, the
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circuit court did not enter any findings indicating that there was a need to set child
support above the scheduled maximum.
[¶27.] Because of the lack of findings, we are unable to determine whether
the circuit court considered appropriate income and whether the appropriate income
supports the support obligation ordered. Thus, we cannot review the circuit court’s
child support decision. See Hill, 2009 S.D. 18, ¶ 8, 763 N.W.2d at 822 (“We have
consistently required adequate findings of fact regarding the child’s needs and
standard of living when a court sets support above the schedule’s maximum.”). “It
is well-settled law that it is the trial court’s duty to make required findings of fact,
and the failure to do so constitutes reversible error. The absence of findings . . .
makes meaningful review impossible.” Grode v. Grode, 1996 S.D. 15, ¶ 29, 543
N.W.2d 795, 803 (citations omitted). We reverse and remand for the circuit court to
make findings on Patrick’s actual or imputed monthly income for child support
purposes. Because of the difficulties in ascertaining Patrick’s income at the time of
trial, the circuit court may consider additional evidence on remand. Additionally, as
we advised in Roberts, “[o]n remand, . . . the circuit court should decide whether the
tax distribution would be an allowable deduction under SDCL 25-7-6.7 or would
provide the basis for a deviation under SDCL 25-7-6.10.” 2003 S.D. 75, ¶ 26, 666
N.W.2d at 484.
Alimony
[¶28.] Patrick argues that the circuit court’s findings were insufficient to
award $1,000 in rehabilitative alimony for twelve months. Generally, “[i]n deciding
whether alimony is warranted, the court should consider: (1) the length of the
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marriage; (2) each party’s earning capacity; (3) their financial conditions after the
property division; (4) each party’s age, health, and physical condition; (5) their
station in life or social standing; and (6) the relative fault in the termination of the
marriage.” Lovejoy v. Lovejoy, 2010 S.D. 39, ¶ 7, 782 N.W.2d 669, 672.
“Rehabilitative alimony is awarded to enable a former spouse to refresh or enhance
the job skills . . . she needs to earn a living.” Wilson v. Wilson, 434 N.W.2d 742, 744
(S.D. 1989) (emphasis omitted). “The purpose of rehabilitative alimony is to put a
spouse in a position to upgrade his or her economic marketability.” Id. “Additional
factors must be taken into consideration in awarding rehabilitative alimony[.]” Id.
at 745. A circuit “court must consider (1) the supporting spouse’s contributions, (2)
the forgone opportunities to enhance or improve marketable skills, and (3) the
duration of the marriage following completion of the non-supporting spouse’s
education.” Zepeda v. Zepeda, 2001 S.D. 101, ¶ 25, 632 N.W.2d 48, 56. “An
essential prerequisite to recovering rehabilitative alimony is [also] proof of an
educational need and a plan to meet that need.” Id.
[¶29.] In this case, there are insufficient findings to support Kacie’s award of
rehabilitative alimony. The court only made one conclusory finding: “Kacie has a
need for rehabilitative alimony for the ensuing 12 months until she can get
stabilized financially. Patrick has the ability to pay spousal support.” The court
made no findings on Patrick’s earning capacity and Kacie’s educational need and
plan to meet that need.* Further, there are no findings identifying the parties’
* The circuit court only noted that “Kacie has a Bachelor of Science degree in
Art and History and is currently working online towards a master’s degree in
(continued . . .)
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financial condition after the property division; their station in life or social standing;
their relative fault in the termination of the marriage; the supporting spouse’s
contributions; and if applicable, the forgone opportunities to enhance or improve
marketable skills and the duration of the marriage following completion of the non-
supporting spouse’s education. Consequently, the court’s findings are insufficient to
permit appellate review. See id. “We afford considerable weight to a circuit court’s
exercise of discretion, but we can only evaluate that discretion by reviewing the
court’s detailed findings.” Lovejoy, 2010 S.D. 39, ¶ 11, 782 N.W.2d at 673. We
reverse and remand for the entry of detailed findings supporting an award of
rehabilitative alimony.
Property Division
[¶30.] Patrick argues that the circuit court abused its discretion in awarding
Kacie $43,000 (half of the balance in the ROIC savings account) and $304 (half of
the balance in the ROIC checking account). Patrick contends that this inherited
money was non-marital property that should not have been divided. The circuit
court’s property division is reviewed under the abuse of discretion standard.
Schieffer, 2013 S.D. 11, ¶ 13, 826 N.W.2d at 633.
[¶31.] “When a divorce is granted, the courts may make an equitable division
of the property belonging to either or both, whether the title to such property is in
the name of the husband or the wife. In making such division of the property, the
court shall have regard for equity and the circumstances of the parties.” SDCL 25-
________________________
(. . . continued)
fine arts from the University of San Francisco, a degree she expects to earn
next year.”
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4-44. The factors to consider are “(1) the duration of the marriage; (2) the value of
the property owned by the parties; (3) the ages of the parties; (4) the health of the
parties; (5) the competency of the parties to earn a living; (6) the contribution of
each party to the accumulation of the property; and (7) the income-producing
capacity of the parties’ assets.” Novak v. Novak, 2006 S.D. 34, ¶ 4, 713 N.W.2d 551,
552.
[¶32.] “South Dakota is an ‘all property state,’ meaning all property of the
‘divorcing parties is subject to equitable division by the circuit court, regardless of
title or origin.’” Halbersma v. Halbersma, 2009 S.D. 98, ¶ 9, 775 N.W.2d 210, 214
(quoting Endres v. Endres, 532 N.W.2d 65, 68 (S.D. 1995)). “In arriving at an
equitable division of property, a circuit court must classify property as ‘marital’ or
‘non-marital.’ A circuit court has broad discretion in determining whether property
is marital or non-marital.” Id. ¶ 10, 775 N.W.2d at 215 (citation omitted).
“Only where one spouse has made no or de minimis contributions to the acquisition
or maintenance of an item of property and has no need for support, should a court
set it aside as ‘non-marital’ property.” Novak, 2006 S.D. 34, ¶ 5, 713 N.W.2d at 552-
53. “Consequently, inherited property ‘is not ipso facto excluded from consideration
in the overall division of property.’” Id. ¶ 5, 713 N.W.2d at 553 (quoting Billion v.
Billion, 1996 S.D. 101, ¶ 20, 553 N.W.2d 226, 232).
[¶33.] In this case the circuit court’s only findings supporting its property
division are that: “The parties have no interest in land. The Court accepts the
property division proposed on [Kacie’s] Exhibit . . . as an equitable division of the
property and debts.” The court made no findings on the factors necessary to review
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the property division. “It is well-settled law that it is the trial court’s duty to make
required findings of fact [for the division of property in a divorce action], and the
failure to do so constitutes reversible error. The absence of findings on these issues
makes meaningful review impossible.” Grode, 1996 S.D. 15, ¶ 29, 543 N.W.2d at
803 (citations omitted). We reverse and remand for entry of the relevant findings
necessary to support the court’s property division.
Attorney’s Fees
[¶34.] Patrick argues that the circuit court did not perform the required
analysis in awarding attorney’s fees. “Generally, trial courts may award attorney
fees in cases involving divorce, support, or alimony.” Huffaker v. Huffaker, 2012
S.D. 81, ¶ 32, 823 N.W.2d 787, 794 (citing SDCL 15-17-38). A two-step analysis is
typically used.
First, the court must determine what constitutes a reasonable
attorney’s fee. This requires consideration of (1) the amount and
value of the property involved, (2) the intricacy and importance
of the litigation, (3) the labor and time involved, (4) the skill
required to draw the pleadings and try the case, (5) the
discovery utilized, (6) whether there were complicated legal
problems, (7) the time required for the trial, and (8) whether
briefs were required. Second, it must determine the necessity
for such fee. That is, what portion of that fee, if any, should be
allowed as costs to be paid by the opposing party. This requires
consideration of the parties’ relative worth, income, liquidity,
and whether either party unreasonably increased the time spent
on the case.
Id. (quoting Urbaniak v. Urbaniak, 2011 S.D. 83, ¶ 31, 807 N.W.2d 621, 628). The
circuit court’s allowance or disallowance of attorney’s fees is reviewed for abuse of
discretion. Terca v. Terca, 2008 S.D. 99, ¶ 18, 757 N.W.2d 319, 324.
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[¶35.] In this case, Kacie requested attorney’s fees in the amount of
$31,828.73. The circuit court stated that it considered the first eight factors for
attorney’s fees plus “whether either party unreasonably prolonged the divorce.” The
court then ordered that Patrick pay Kacie $7,500 in attorney’s fees. Although the
court stated that it “considered” the relevant factors, it made no specific findings on
those factors. “This Court has consistently required trial courts to enter findings of
fact and conclusions of law when ruling on a request for attorney fees. Without
findings of facts and conclusions of law there is nothing to review.” Crisman v.
Determan Chiropractic, Inc., 2004 S.D. 103, ¶ 30, 687 N.W.2d 507, 514 (citation
omitted). “The trial court is required to make specific findings based upon the
factors.” Smetana v. Smetana, 2007 S.D. 5, ¶ 20, 726 N.W.2d 887, 895 (quoting
Crisman, 2004 S.D. 103, ¶ 30, 687 N.W.2d at 514) (internal quotation marks
omitted). “In light of this Court’s decision to reverse and remand on other issues, on
remand the trial court should reconsider the award of attorney fees under the two-
step analysis set forth by this Court.” See Huffaker, 2012 S.D. 81, ¶ 33, 823 N.W.2d
at 795.
[¶36.] We affirm the circuit court’s decision on child custody. We reverse and
remand for the entry of findings of fact on all remaining issues. The judge who
presided at trial has retired. If he is unavailable to preside over the remand
proceedings, the next judge may hear new evidence on all remanded issues. Kacie’s
motion for appellate attorney’s fees is denied.
[¶37.] GILBERTSON, Chief Justice, SEVERSON, WILBUR, and KERN,
Justices, concur.
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