(concurring in part; dissenting in part).
1. COLORADO LAW.
I concur on Issue 1 but join in the result only because of the citing of Rusch, a very recent unreported real estate contract case, *130which is obviously inserted to elevate the importance of the author’s writing in Rusch, a 3-2 decision. The majority opinion has an inapposite scope of review; application of Colorado law is a matter of explicit application of South Dakota statute and settled law in this jurisdiction. The Rusch cite does not fit the facts of this case. Rather, reliance may be placed upon a domestic relations case, Sharp v. Sharp, 422 N.W.2d 443, 447 (S.D.1988).
2.GUIDELINES.
On Issue 2, I agree that the trial court did not abuse its discretion in setting child support. A long dissertation on child support guidelines enters the arena of arithmetic and computerizes child support with total mathematical calculation. I have long held the belief that the child support guidelines are not totally obligatory and must not turn our trial judges into legal automatons, where their only duty is to punch the legislative button. Witness, SDCL 25-7-6.10(2), which expresses:
Deviation from the schedule in § 25-7-6.2 shall be considered if raised by either party and made only upon the entry of specific findings based upon any of the following factors:
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(2) Any financial condition of either parent which would make application of the schedule inequitable;
In South Dakota, a trial judge sits in both “at law” and “equity” cases. In a domestic relations case like this, our trial judges are sitting in “equity.” They are state constitutional officers and have the right and the duty to render equity. They do not have to be a legislative lackey. The politicians in our capítol get together and pass laws because of pressure groups. Our trial judges should not be mentally castrated. Nor equitably castrated. They are clothed with the power to decide cases in equity and not to have equity imposed in each case, as the politicians and pressure groups would have them do. After this author’s many writings on this subject, the Legislature responded to engraft a legislative power upon judges sitting in equity who were already clothed with the power the Legislature saw fit to graciously bestow upon them.
The standard of review on child support awards is whether, the trial court abused its discretion in setting such award. State of Kansas, ex rel. John W. Adams v. Donice Faye Adams, 455 N.W.2d 227 (S.D.1990); Guindon v. Guindon, 256 N.W.2d 894 (S.D.1977).
Regardless of the child support guidelines, SDCL 25-7-6.2, the reviewing court is to determine whether there is an abuse of discretion on the part of the trial court in setting child support obligations. The guidelines are not set in stone and an overall assessment should be made of the child support award.
Johnson v. Johnson, 468 N.W.2d 648, 653 (S.D.1991) (Henderson, J. dissenting). Authority which I rely upon in stating this proposition is Nelson v. Nelson, 454 N.W.2d 533, 534 (S.D.1990) and Peterson v. Peterson, 434 N.W.2d 732, 734 (S.D.1989). When a court is required to exercise discretion in setting a child support obligation, the court must consider the reasonable needs of the child and the obligor’s ability to pay. Havens v. Henning, 418 N.W.2d 311 (S.D.1988). Trial judges have had this power for decade upon decade; the judges and our courts should not have to be bounded by mathematical formulae. Mechanics? No. Architects? Yes. Schedules and guidelines erase the human factor and, often, good common sense.
3.INCOME TAX DEDUCTIONS.
I concur.
4.RETROACTIVE MODIFICATION.
I concur.
5.ATTORNEY’S FEES.
I dissent on the non-award of attorney’s fees. Counsel for appellee has submitted an itemized statement reflecting, under Malcolm v. Malcolm, 365 N.W.2d 863 (S.D.1985) a request for $2,856.70. Essentially, father wins this appeal and he is entitled to a reasonable award. Based upon my read*131ing of the verification of attorney’s fees and sales tax on services plus the fact that there are no novel legal questions herein and rather short briefs, I would award appellee’s counsel $1,500.00 in attorney’s fees, sales tax, plus all taxable costs of this appeal as determined by the Clerk of the Supreme Court. It is unconscionable to deny appellee a single penny for his lawyer’s work product, not to mention a good result.