(concurring specially).
When I was in trial practice, and later as a trial judge, some of the old war horse trial judges (many passed on now) made determinations concerning child support from receipts in old shoe boxes, while heated exchanges that “I paid” and “No, you didn’t,” rang out in fury. These judicial gentlemen, to whom we owe so much, and who parted many litigious wildcats, decided that child support payments had to be paid at the county clerk’s office. Obvious was the reason for the innovation: to have a record the parties and the trial court could reasonably rely on. This system worked in South Dakota for three decades and it is still working today. It has served our state well and has kept control of child support payments under one roof, namely the judicial roof.
Here, father is back to the shoe box argument; further, he would end run, like a scurrying tailback, the court order, effectively modifying same, by an extra-judicial agreement — and a purported agreement at that. To retrogress to the shoe box era, would extinguish a 30 year practice — born of necessity — again creating confusion, unreliability, and a waste of judicial resources.
Father, in this case, does not dispute the $11,100 arrearage. Yet, he attempts to evade the decree by “set-off” notwithstanding the decree providing: “... said payments to be made through the office of the Clerk of Courts for Minnehaha County, South Dakota;” and, also, notwithstanding that he did not comply with the latter directive. Therefore, there is no reliable record of child support, a fact totally antithetical to the old-timer’s innovation and the decree, itself.
These divorced parents are not empowered to change a judge’s order. State, Fall River County v. Dryden, 409 N.W.2d 648 (S.D.1987). Taylor owed a responsibility to petition the court for a modification, to cast his bread on judicial waters, to then see if the trial judge would modify the decree.
As reflected by the facts, Taylor was not regularly paying child support; nor did he pay it to the Clerk of Court’s office when he did pay some child support. His brief, at page 6, makes this admission.
Mother, the caretaker, was supporting the child. Oral agreement or not, it appears she was entitled to the income tax deduction and she took it. The IRS recognized it. Can he take advantage of the provision in the decree granting him the exemption of the minor child of the parties, when he does not support the child or makes a token effort towards supporting the child? See, Sarver v. Dathe, 439 N.W.2d 548 (S.D.1989). Remember, he admits he is $11,100 in arrears. It is highly questionable, given this protracted history of non-payment, that in a civil action, in futuro, he can advocate an equitable posture “for her appropriation of the dependency exemption of the child.” It is difficult to turn back the clock of time — to undo that which is done. (Apparently, he wants an exemption for the child even though he did not support the child!) Sabers, J., writer of the majority opinion, cites this Court’s holding in Hershey v. Hershey. Hershey was a plurality holding with only one Justice joining the opinion in its entirety.* Justice Wuest reflected in Hershey that this Court “should refrain from addressing hypothetical cases or issues which may arise in the future.” He concluded that: “If and when the father brings a separate action, we may then address the issue.” I agreed with Justice Wuest’s rationale.
On the income tax exemption, there appears to be a strong equity for the mother. A statute of limitations, both federal and state, may well come into play if an action is instituted. Though it appears questionable, if it is pleaded below, the trial tribunal will necessarily be required to rule thereupon, with proper motions and relief. Our appellate review on a possible civil action must await another day.
*591As to the quantum meruit independent action against the mother by Taylor, in the future, it is noted that over a course of years, Taylor added a bedroom, reroofed the house, built a garage, poured footings and cement under the porch, changed numerous windows and doors, and added a remodeled kitchen to mother’s home. Ostensibly, this was to serve as an “offset” to the virtual non-existent child support payments. A hearing officer found that the value of these improvements was, essentially, correct; however, the hearings officer determined that this extensive labor was all “gratuitous.” Was it? We cannot decide this now; it would call upon us for an anticipatory ruling; it is not a justiciable issue ripe for appellate review.
Hershey's facts involved a denial of rights of visitation and a grievous concealment of a child by a parent. No such allegation appears here.