(dissenting).
Are children of a second marriage “children of a lesser god”?
Are children of a second marriage lesser children under the United States Constitution?
Are children of a second marriage any less hungry or naked without the support of their father?
Should we weep for children of a second marriage at their birth, rather than at their death?
This decision is reduced to an old adage, “First come, first served.” In my judgment, all of God’s children, born of the first or second marriage, must be afforded the same consideration under law.
We have, before us, yet another case where the “guidelines chart” is literally supreme. It is further noted, by this minority writer, that the majority suggests, perhaps inferentially, that the priority of the child support for the first marriage results in “imperfect results.” Indeed, the law is not, perfect, but as we write it, we should strive for its perfection.
SDCL 25-7-7 is unconstitutional because it discriminates against children of a “non*594custodial parent s second family, denying them equal protection under the law. This statute classifies children by accident of time of birth; a classification that has no rational relationship to any legitimate governmental interest. Conceptually, this discrimination is as irrational, and hence unconstitutional, as discrimination against illegitimate children, decried in Weber v. Aetna Cas. & Sur. Co., 406 U.S. 164, 92 S.Ct. 1400, 31 L.Ed.2d 768 (1972), and Gomez v. Perez, 409 U.S. 535, 93 S.Ct. 872, 35 L.Ed.2d 56 (1973). Courts have a very special responsibility for the care and welfare of children. Houghton v. Houghton, 37 S.D. 184, 157 N.W. 316 (1916) (children are “wards of the court”). The care and welfare of Richard’s youngest children are not furthered by the rigid guidelines set out in SDCL 25-7-7, under the analysis in Donohue v. Getman, 432 N.W.2d 281, 283 (S.D.1988) (Henderson, J., specially concurring). This statute also violates the constitutional principle of separation of powers, as discussed in Sharp v. Sharp, 422 N.W.2d 443, 448-49 (S.D.1988) (Henderson, J., dissenting), and Bruning v. Jeffries, 422 N.W.2d 579, 582-84 (S.D.1988) (Henderson, J., concurring in result).
Even were this statute constitutional, which I do not concede, the needs of Richard’s later children were ignored below, requiring reversal for findings of fact and conclusions of law under the holding of the majority opinion in Bruning v. Jeffries, 422 N.W.2d at 581, where this Court remanded for “reconsideration and entry of findings regarding the totality of Father’s financial condition.” Dependent children must be a factor in such “financial condition.”
In concluding, reference is made to my minority writing in Peterson v. Peterson, 434 N.W.2d 732, 739 (S.D.1989) (Henderson, J., concurring in part and concurring in result in part), wherein I again, as in the past, portray SDCL 25-7-7 as eroding the constitutional power of trial judges in this state and placing their discretion within the rigidity of mathematical analysis of percentages. SDCL 25-7-7 is a legal abomination which, in attempting to achieve a result, shatters due process, the constitutional Doctrine of Separation of Powers and prioritizes children in an amount of support to be received from their father depending upon when, in point of time, they were birthed. This is an attempt to achieve a social result by prioritizing children of a second or third marriage into second- or third-class citizens. And it is an injustice of mammoth proportion.