Johnson v. Johnson

HENDERSON, Justice

(dissenting).

I respectfully dissent. South Dakota case law mandates that there may be no deviation from the child support guidelines unless there is an entry of specific findings regarding the factors in SDCL 25-7-6.10. “[A]ny deviation [from the child support guidelines] must be based on the factors listed in SDCL 25-7-6.10.” Johnson v. Johnson, 451 N.W.2d 293, 296 (S.D.1990). “[T]here may be no deviation from the guidelines unless there is an entry of specific findings regarding the .;. listed factors.” Bruning v. Jeffries, 422 N.W.2d 579, 580 (S.D.1988). In the present case, the trial court did, in fact, deviate from the child support guidelines in setting father’s support obligation. The parties stipulated that, under the guidelines, father’s support obligation should be $593 per month. However, the trial court set his monthly support at $516.

Although the majority opinion acknowledges the current status of our law concerning deviation from child support guidelines, it concludes that the trial court’s failure to enter specific findings is not grounds for reversal. It reasons that this error does not provide grounds for reversal to a party who was favorably affected by this deviation, in the present case Father/Appellant.

This type of analysis overlooks the fact that the trial court’s lack of specificity provides this Court with no assistance in determining what grounds the trial court used for its entire decision. In fact, we simply do not know, as a reviewing court, which of the father’s arguments the trial court accepted in support of the deviation it made and which arguments it rejected. We are left in the posture of being precluded from giving meaningful review. This troubles me because we seem to be bypassing precedent, established by this Court, in the two cases I have cited above. A failure to enter special findings does not just impact the trial court’s initial deviation, but also, its refusal to deviate further. Therefore, I *653would remand this matter so that the trial court would enter specific findings in support of its deviation thereby embracing recent stare decisis. Under my rationale, attorney’s fees would not be reached at this time.

Lastly, guidelines or no guidelines, we should not ultimately judge a case upon the guidelines per se. Father is entitled to prevail if he can establish that the trial court abused its discretion in setting the child support. Nelson v. Nelson, 454 N.W.2d 533, 534 (S.D.1990). Accord: Peterson v. Peterson, 434 N.W.2d 732, 734 (S.D.1989). My point is the guidelines are not set in stone and an overall assessment should be made of the child support award. It appears to me that this Court has failed to express the ultimate conclusion on whether there was an abuse of discretion or not; rather, it has arrived at a decision by arithmetic and has used the clearly erroneous rule, instead of the abuse of discretion standard again failing to embrace recent and old stare decisis.