(concurring in part, dissenting in part).
I concur with that aspect of the majority decision which addresses the case on appeal. I dissent to all of the dicta therein contained creating new law in this state which shall, with its sweeping language, open the door wide to relitigation on the merits of child custody as to facts existing prior to the entry of a decree of divorce.
THE CASE
As any reader will note, the decision is principally addressed to changing the deci-sional law of this state. Each party to this appeal briefed three identical issues. This Court, sua sponte, creates new law on an issue not briefed nor argued and which has a profound impact on the settled law of child custody in this state.
Essentially, the issues on appeal relate to the Findings of Fact and Conclusions of Law entered by the trial court and as to whether they are supported by the evidence; and lastly, whether there was a material and substantial change of circumstances, as well as the best interests of the children considered, which required a modification of the divorce decree. Any decision by this Court beyond these issues is, pure and simple, dicta. But the dicta is powerful and engulfs the holding of the case on the issues.
Under the two-fold test set forth in Sneesby v. Davis and Engels v. Engels, cited in the majority, the trial court rightfully placed the twin daughters with the father. Thirteen findings of fact and six conclusions of law were entered after both parties presented testimony, affidavits, and oral argument. A fair reading of the record and formal decision of the trial court reflects that the trial court hinged its decision on the irresponsibility of the mother and her failure to maintain a stable home for the twins. The father’s environment and employment record were more stable; the mother was employed when the divorce decree was entered but unemployed when these proceedings occurred and was being supported by a male friend with whom she was living. Evidence was introduced that a child neglect report had been made to the South Dakota Department of Social Services for failure of the mother to pick up the twins from a babysitter. Thereupon, said Department took the twins to St. Luke’s Hospital in Aberdeen as one child was running a fever and developed an ear infection. The trial court indicated that the physical facilities of the father in Aberdeen and the presence of two grandmothers in Aberdeen provided a more suitable situation for the twins than to have them living in a small trailer in construction camps. A material and substantive change of circumstances was found. Equating options for the twins’ best interests, the trial court opted for custody in the father. In my specially concurring opinion in Spaulding v. Spaulding, 278 N.W.2d 639, 642 (S.D. 1979), I expressed that the “[fjather and mother must be compared as to who could provide the better educational, moral, physical, emotional, temporal, and mental benefits.” It is my opinion that the trial court was compelled to use a comparison when it reposed custody in the father of the two contending parents, for Conclusion of Law II declares: “That both the Plaintiff and Defendant are fit and proper persons for the custody of the two minor children of this marriage.”
We can, in this case, use settled law and oft-approved principles in this state to decide this case. Instead, by dicta, we reverse previous law and certainly modify well-established cases. Lest this case be washed ashore in a tidal wave of dicta, I wish to express my legal reasons as to why I would affirm the trial court.
First of all, I stand behind the two-prong test set forth in Sneesby and Engels. These are very recent pronouncements from this Court. I believed in them in 1980 and 1981 and I believe in them now. Secondly, it appears that the father, who sought the modification, met the burden of proving the two requirements set forth in Sneesby and Engels. And this he did by a preponderance of the evidence. Warder v. Warder, 87 S.D. 133, 203 N.W.2d 531 (1973); Huckfeldt v. Huckfeldt, 82 S.D. 344, 146 N.W.2d *28557 (1966). Third, a trial court has broad discretion in awarding custody of minor children and this Court will not interfere with that discretion absent a clear case of abuse. Holforty v. Holforty, 272 N.W.2d 810 (S.D. 1978). In exercising this discretion, the trial court must be supported by a sound and substantial basis in the record. Haskell v. Haskell, 279 N.W.2d 903 (S.D. 1979). As demonstrated by the present circumstances of the father and mother, it appears that the trial court did have a sound and substantial basis for its decision in the record. We have honored this discretion principle based upon the trial court’s opportunity to observe the demeanor of the parties and witnesses and judge their credibility. Yet, this Court has not hesitated in its appellate duty to conscientiously review the record to determine if, indeed, a trial judge was not supportable in his conclusions based upon the submitted evidence. Hines v. Hines, 78 S.D. 464, 104 N.W.2d 375 (1960). As I expressed in my dissent in Herrboldt v. Herrboldt, 303 N.W.2d 571 (S.D. 1981), “Were appellate review treated superficially or the decisions of trial courts simply rubber-stamped, great divergencies in practice and variations in results would arise between these courts of first impression, which would effectively nullify the concept of ‘equal justice for all.’ ” Id. at 573. This Court filed an opinion as recent as August 18, 1982, reversing a child custody award in Haak v. Haak, 323 N.W.2d 128 (S.D.1982), based upon an abuse of discretion. Given the precedent of this Court and state of the record, I join in the majority opinion for there was no clear abuse of discretion.
THE DICTA
If the majority opinion’s theoretical stance (all by way of dicta) was sound, this case is not the proper vehicle to embark upon a new judicial journey. The facts in this case which involve modification of a divorce decree entered on December 11, 1979, do not in any way pertain to facts prior to the decree. Rather, the evidence submitted to the trial court all pertained to facts subsequent to the decree. Counsel for both parties restricted their evidentiary showing to circumstances of the parties after the decree was entered. Based upon this evidence, the trial court entered findings of fact and conclusions of law determining there was a substantial and material change of circumstances after the divorce decree was entered. This Court’s review is limited to the trial court’s findings of fact and conclusions of law. O’Connor v. O’Connor, 307 N.W.2d 132 (S.D. 1981); Connelly v. Sherwood, 268 N.W.2d 140 (S.D. 1978). It is the findings of fact which are to be considered on appeal. Wall v. Wall, 260 N.W.2d 644 (S.D. 1977). I repeat: the three briefed issues pertain to findings of fact, conclusions of law, and evidence. Consequently, this Court should not indulge in holdings which do not address issues posed at the trial court level or in the briefs.
Addressing the merits of a sweeping deci-sional law change (all dicta), I see no reason for expressing a departure from our past decisions when one reviews the history of this case. If facts, issues, and briefs are presented which fairly and fully raise the issue created in the dicta, this Court could, meritoriously and with judicial analysis, adjudicate thereupon. There are absolutely no “special conditions” in this case as quoted in Anderson in the majority. Not once does the trial court or the briefs touch upon evidence or findings or issues pertaining to “special conditions.” In Anderson, findings of fact and conclusions of law were waived. In the case at bar, the case came on for trial on November 19, 1979, both parties being represented by counsel and personally present. Thereupon, in open court, evidence was adduced and a property settlement agreement was dictated in the record. The trial judge, based upon the proceedings and the stipulation, entered findings of fact and conclusions of law on December 11, 1979. They were extensive, well drafted, thorough, well thought out, and dealt in great detail with the custody of the children, the visitation thereof, child support, and fitness of the parties. What great danger, then, in this Kolb case, are we guarding against? Would we destroy the art of advocacy with a new holding? Are not *286parties to a lawsuit entitled to make decisions as to whom shall be their lawyers and to repose confidence in them? Do not trial judges have education, experience, and wisdom to draw upon? Are not parties entitled to some discretion (and particularly here, where it was thoughtfully done) as to whom shall have custody? Gentlemen of the Bar and Bench, this Kolb case was tried, determined, and litigated. Thus, the language in Wright, cited in the majority opinion, is inapposite. Hence, to superimpose a new rule in this state, like a bolt out of the blue, is improper. Furthermore, the New-some case cited in the majority is inapplicable here. Here, there is no evidence that “facts pertinent to the custody issue were not disclosed.” I agree with the majority’s statement “While the above noted authorities involve facts unlike those before us * * It is at this point that the majority opinion begins a flawed leap in analysis. The point is: that the facts were before the trial court when this decree was entered. There is, therefore, no “synthetic mooring.”
Let us, for sake of academics, disregard this Kolb case and continue our stroll through the world of dicta and follow it through to its decisional impact. Do we, with this new rule, improve our lot in these child modification cases? I think not, for the language in the majority opinion is too broad, too all encompassing. Certainly, I would not favor a relitigation on the merits of child custody based upon stress, animosities, and economic exigencies. (Ordinarily, these conditions produce a divorce in the first instance.) As regards conditions which were or could have and should have been brought to the attention of any trial court at the previous custody hearing or trial, I would not allow these to be urged or relied upon as a material change in circumstances to obtain modification. See Brim v. Struthers, 44 Wash.2d 833, 271 P.2d 441 (1954). Counsel and litigants owe a duty to come forward. One bite of the apple is enough. Litigants should not be permitted to sleep on the facts. Courts have their doors open to litigate on divorce and custody matters. They should not permit reliti-gation at the whim of litigants. Litigation must have some repose. But if fraud were perpetrated on the trial court or duress used upon one of the parties in a child custody agreement, I would sanction going behind the decree of divorce. I also approve of the rule that the decree would preclude consideration of prior misconduct. See Swindle v. Swindle, 242 Ark. 790, 415 S.W.2d 564 (1967); Merrill v. Merrill, 167 Cal.App.2d 423, 334 P.2d 583 (1959); Carney v. Franklin, 207 Ga. 39, 59 S.E.2d 909 (1950); Baker v. Baker, 119 Utah 37, 224 P.2d 192 (1950).
I do not wish to see the trial courts in this state inundated with contested child custody modification hearings springing from this opinion. An agreement of the parties is not always shallow, synthetic, meaningless, fraudulent, made under duress, or “un-litigated.” More often than not, these child custody agreements are prepared within the confines of a superb adversarial system and scrutinized carefully by an able trial judge. In closing, I am fearful we are adopting a rule which will foster litigation in an already overburdened judicial system and a rule which has a lesser value than the rule announced in Hershey v. Hershey,* cited in the majority opinion, and Application of Heintz, 78 S.D. 188, 99 N.W.2d 794 (1959). With too wide a brush, does the majority paint. Robert Ruark once wrote a great *287novel called “Something of Value.” His theme came from a proverb of the Basuto African Tribe: “If a man does away with his traditional way of living and throws away his good customs, he had better first make certain he has something of value to replace them.” When we cast aside precedent, this is a pretty good yardstick.
In Hershey, 85 S.D. at 90, 177 N.W.2d at 270, citing five previous South Dakota Supreme Court cases, we expressly stated:
It has long been the rule in this jurisdiction that the doctrine of res judicata applies to that part of a divorce decree giving direction for the custody and care of the children of the marriage and that the jurisdiction of the court cannot be invoked to inquire into the same or other facts existing at the time or prior to the former decree.
We further recognized “that in some jurisdictions a court’s determination based upon an agreement as to custody is not res judicata and the rule of changed conditions does not apply” and renounced that line of authority. Id. Accord, Anderson v. Anderson, 118 N.E.2d 214 (Ohio App. 1954).