(concurring specially).
I concur in the disposition of the issue on appeal and I concur specially in the allowance of appellate attorney fees and costs in the guise of “suit money” to the unsuccessful party.
First, I note the language of SDCL 15-17-7, which states, in pertinent part: “[NJothing herein abridges the power of the court to order payment of attorneys’ fees in all eases of divorce ... if the allowance of the same before or after judgment is warranted.” Secondly, I find the language in our case, Holforty v. Holforty, 272 N.W.2d 810, 812 (S.D.1978), to be instructive, wherein we stated: “[T]his court and the circuit court have concurrent jurisdiction to require the husband in a divorce action to pay an allowance to enable the wife to present her side of an appeal.” (Emphasis added.) See also Johnson v. Johnson, 291 N.W.2d 776 (S.D.1980); Lien v. Lien, 278 N.W.2d 436 (S.D.1979).
Nor am I unmindful of the provisions of SDCL 15-30-6 which provide that certain costs shall be awarded to the prevailing party on appeal. That is not a new statute. It has been on the books since the 1939 Code. There have been some modifications of the descriptions of the costs covered and the amounts allowable in relation thereto, but the thrust thereof, costs shall be allowed to the prevailing party, has been an essential element throughout.
In Johnson, supra and in Lien, supra, we relied on SDCL 15-17-7. That statute has never been repealed, therefore, I find the cases previously cited to be good authority.
It would therefore appear that there is precedential language for the allowance of the “suit money” in this case except that I have been unable to find any case where this court has, in fact, allowed attorneys’ fees against a successful appellant and in favor of an unsuccessful appellee. In a number of cases, we have allowed fees to successful appellees. Storm v. Storm, 400 *384N.W.2d 457 (S.D.1987); Barrett v. Barrett, 308 N.W.2d 884 (S.D.1981); Senger v. Senger, 308 N.W.2d 395 (S.D.1981). In Johnson, supra, as in Holforty, supra, we remanded to the trial court for a determination of a reasonable amount for attorney fees and expenses for resisting the appeal. In both Holforty and Johnson, the wife was again the prevailing party.
Before an award of attorney fees and expenses is allowable, however, I believe that the court should be satisfied from the record and the application that the allowance is warranted, using the wording of the statute. The simple filing of a motion per Malcolm v. Malcolm* should not be sufficient. In this case, I agree with the majority that the allowance as made is warranted.
I .would further distinguish this case from the decision in McGee v. McGee, 415 N.W.2d 812 (S.D.1987), wherein the question was allowance to an unsuccessful appellant. In that case, a very strong ease should be required to “warrant” an allowance, otherwise we would be encouraging frivolous appeals. It would be like betting against the house with the house’s money.
365 N.W.2d 863 (S.D.1985).