(concurring in result).
Totally convinced that this Court has decided this case correctly on the merits, I concur. However, certain language in this opinion prevents me from voting for its entirety.
It is true that, SDCL 15-26A-60(5) does, indeed, put the burden upon all appellate counsel to reference the record with respect to material facts upon which they rely. When I came on this Court some 15 years ago, that statute was heeded by nearly every lawyer who wrote a brief. However, down through the years, many lawyers in our state have failed to abide by said statute. An erosion of compliance has developed. As the Chief Justice has pointed out, when lawyers fail to do this, we must, on this Court, engage in the work of appellate counsel. When the record is referenced to material facts, an appellate judge can mentally rivet on the testimony or exhibits. My mild objection, in the majority opinion, is to this sentence: “The courts of this state cannot be expected to search through settled records for support for litigant’s factual assertions.” It is the responsibility, in my opinion, of the Justices of this Court, and staff employed by this Court, and law clerks hired by the Justices to ease their burden, to examine the settled record so that a studied decision is ultimately handed down. My experience has been that the road to a successful decision is paved, with not only good intentions, but solid connections to the record. Lawyers must justify their brief; but trial judges and appellate judges must justify their decision by understanding the facts, choosing the correct legal precept, and employing the force of reasoning. The sentence, to which I have alluded, is just a little too expansive for my judicial tastes.
Lest there be any doubt, I agree that Attorney Rachetto has advocated his cause in a very loose manner and interjected facts without foundation. We decide cases by the settled record; we are bound to do so, in law. Zeal in advocacy can create a heady experience and fulfill a desire to “win the case” but does not comport, as an example with SDCL 16-18-19 which provides:
It is the duty of an attorney and counsel- or at law to employ, for the purpose of maintaining the causes confided to him, such means only as are consistent with truth, and never to seek to mislead the judges by any artifice or false statement of fact or law.
Expressed simply, it is an attorney’s duty to use truthful means in advocating his client’s cause. Misleading the court constitutes a violation of counsel’s oath on admission to practice law. Binegar v. Day, 80 S.D. 141, 120 N.W.2d 521 (1963). Perhaps it would be wise to remind the practicing attorneys in South Dakota of the oath which they took when they were admitted to practice. SDCL 16-16-18 provides:
I do solemnly swear, or affirm, that:
I will support the Constitution of the United States and the Constitution of the state of South Dakota;
I will maintain the respect due to courts of justice and judicial officers;
I will not counsel or maintain any suit or proceeding which shall appear to me to be unjust, nor any defense except such as I believe to be honestly debatable under the law of the land;
I will employ for the purpose of maintaining the causes confided to me such means only as are consistent with truth and honor, and will never seek to mislead the judge or jury by any artifice or false statement of fact or law;
I will maintain the confidence and preserve inviolate the secrets of my client, and will accept no compensation in connection with his business except from him or with his knowledge or approval;
*243I will abstain from all offensive personality, and advance no fact prejudicial to the honor or reputation of a party or witness, unless required by the justice of the cause with which I am charged;
I will never reject, from any consideration personal to myself, the cause of the defenseless or oppressed, or delay any man’s cause for lucre or malice. (Emphasis supplied mine).
Another aspect of this decision is troubling. This concerns the dissertation of a “default divorce stipulation.” Attorney Rachetto is rebuked for using this phrase. Perhaps the reference to the usage of this phrase should not spawn a study in etymology, i.e., a tracing in the history of this phrase or the word components thereof. Suffice it to say, the parties entered into a “Stipulation and Property Settlement Agreement” only ten (10) days after the divorce action was instituted. This agreement bears that heading or caption. This Court now condenses it into this phrase “Stipulated Agreement.” Attorney Ra-chetto dubbed it a “default divorce stipulation.” In over a quarter of a century of trial practice and acting as a trial judge— an uncontested divorce case was referred to as a “default divorce.” “Default divorces” were heard on a calendar on a certain day. Lawyers and trial judges used that language, over and over again, as a “default divorce.” The “default divorces” arose from a “stipulation.” Attorney Rachetto married these two phrases together and called it a “default divorce stipulation.” In my opinion, the majority is being unduly harsh to Mr. Rachetto on this specific criticism. It is extremely strained, in this specific instance, to infer or imply that such a reference by Mr. Rachetto could be, in the words of In re Wilmarth, 42 S.D. 76, 172 N.W. 921 (1919), “a deception.”
Finally, I wish to express that Kevin Klein exercised bad judgment in not being represented by counsel. His predicament stems from his other decisions which affixed his domestic responsibility. He wanted Cristen. He wanted a child. Then, he wanted a quickie divorce. He voluntarily signed an agreement for freedom. No fraud was perpetrated upon him. But here, the freedom was not free. As life goes on, he can petition if there is a change of circumstances.