(concurring in part, dissenting in part).
The briefs in this case pose three issues: (1) did the trial court properly determine that there had been a substantial and material change in circumstances since the decree of divorce; (2) whether the trial court properly found a change in custody to be in the best interests of the child; and (3) if the trial court properly refused to award attorney’s fees unto the appellant-mother. I join the majority decision in affirming the trial court on a modification of the decree and reversing the trial court for failure to allow the appellant-mother reasonable attorney’s fees. This case was ably tried in a contested child custody modification hearing and pertained to facts subsequent to the decree of divorce. Twenty-three findings of fact and seven conclusions of law were entered by the trial court all pertaining to facts subsequent to the decree of divorce. The burden of proof in the two-prong test set forth in Sneesby and Engels, cited in this decision, was met by the appellee-fa-ther. Appellee-father proved both elements by a preponderance of the evidence. Huckfeldt v. Huckfeldt, 82 S.D. 344, 146 N.W.2d 57 (1966). 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). Reviewing this record, I am absolutely convinced that there was a sound and substantial evidentiary basis for the trial court’s decision. Thus, there is no clear abuse of discretion.
Appellee-father is far more financially equipped to defray attorney’s fees than appellant-mother. She is entitled to defend an action that removes the parties’ son from her custody. She was young, immature, and unwise (married at sixteen, divorced at twenty, and now a mother of an illegitimate child), but she is entitled to her day in court. I likewise would reverse the trial court on a total denial of attorney’s fees.
I refuse to be bound by the Kolb citation in this opinion. All of the evidence in this case and the issues briefed relate to facts subsequent to the decree. Such a citation is totally inappropriate because there are absolutely no facts prior to this decree which were tried. It is using dicta in one opinion to put dicta in another. 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). This Court should not indulge in holdings or make reference to other decisions which are not germane to the issues posed at the trial court level or briefs. Therefore, I dissent to the extraneous references to Kolb and an attempt to interweave it into the fabric of the decisional law of South Dakota. See Kolb v. Kolb, 324 N.W.2d 279 (S.D.1982) (Henderson, Justice, concurring in part, dissenting in part).