(concurring in result).
Reference is made to Moe v. Moe, 496 N.W.2d 593 (S.D.1993) with particular emphasis on the four factors set forth therein, citing Staab v. Cameron, 351 N.W.2d 463, 465 (S.D.1984) and Raschke v. DeGraff, 81 *212S.D. 291, 134 N.W.2d 294 (1965), all concerning res judicata. For purposes of this appeal, the parties are identical, as we have the same parties involved in the change of custody proceedings as in the guardianship file.
However, we have a different wrinkle to consider in this case which deserves our legal attention. Nowhere in the August 1991 custody proceeding did Judge Tucker consider SDCL 30-27-20 which provides:
If the minor is under the age of fourteen years, the court may nominate and appoint his guardian. If he is fourteen years of age or over, he may, except as provided in § 30-27-24, nominate his own guardian who, if approved by the judge, must be appointed accordingly.
Appropriately, there was no reason for him to address the issue because it had not been raised. The following November, Andrew turned fourteen and asserted a right granted unto him through legislative grace. A new issue, not tried before any court, now existed. Therefore, the issue of a fourteen year old child exerting his SDCL 30-27-20 right to nominate his own guardian is not res judicata.
Furthermore, res judicata cannot be said to apply simply because a custody hearing between the same parties was already held. As the circuit courts retain the right to modify custody provisions, child support, and alimony provisions, we cannot say that these facts have rendered a final judgment. SDCL 25-4-41, 25-7A-22. Additionally, under SDCL 26-5A-12 of the Uniform Child Custody Jurisdiction Act, “... the custody decree is conclusive as to all issues of law and fact decided and as to the custody determination made unless and until that determination is modified pursuant to law[.]” (Emphasis added.) It is a consistent position with this Court that we are to construe statutes to their plain and ordinary meaning. Aman v. Edmunds Central Sch. Dist., 494 N.W.2d 198, 199 (S.D.1992); Cimarron Ins. Co. v. Croyle, 479 N.W.2d 881, 886 (S.D.1992). Because Andrew turned fourteen, our Legislature has plainly stated that he has a legal right to seek modification of his own custody. See Petition of Famous Brands, Inc., 347 N.W.2d 882, 885 (S.D.1984).
Ironically, the majority replies, “The mere passage of time causing a minor to reach the age of fourteen is not a change in circumstances substantial enough to warrant a change in custody.” I remind this Court that a “mere passage of time” provides “circumstances substantial enough” to warrant many other changes: The right to vote, the right to drink intoxicants, and the right to stay out past curfew, to name a few. Furthermore, when the initial custody decision was handed down in September of 1991, Andrew was not old enough to drive. However, with the mere passage of two months, Andrew became eligible for a driving permit on his fourteenth birthday. SDCL 32-12-12. Andrew has a right that was not an issue at the August 1991 proceeding.
Nonetheless, Judge Tucker made the proper decision at the May 3, 1992 hearing wherein he stated:
At the time we had our last trial in August or September of 1991, the court considered the wishes of the child. The court made a specific finding that the child did wish to reside with his father. The court recognized at that time the child’s age and gave great weight to the child’s desires, but the court still determined that it was in the best interests of the child to reside with his mother for the reasons listed in the Findings of Fact and Conclusions of Law.
The fact that the child has reached age fourteen, that happened two months after the court’s decision, does not change the court’s ultimate decision as to the custody issue. Counsel presented this issue to the court based solely on the question once the child reaches age fourteen can’t he select his guardian, and can’t he select his custodial parent, and on that the court’s answer is no. That it’s still the court’s decision in the best interests of the child, and the court relies upon the Findings of Fact and Conclusions of Law entered in the September decision and will deny the motion for change of custody in this proceeding.
*213Because no evidence other than Andrew’s change in age was presented to support a change in custody, the trial court noted that nothing existed to warrant changing the recent prior decision which was rendered in the best interests of the child. As SDCL 30-27-20 requires judicial approval, the trial court must still determine the best interests of Andrew even though he has a right to request a change in custody. SDCL 30-27-19; People in Interest of S.M.M., 349 N.W.2d 63 (S.D.1984). As quoted above, Judge Tucker reaffirmed this required analysis. For this reason alone, I concur.