(specially concurring in part; dissenting in part).
The circuit court’s shift of two dependency exemptions from James to Judy Struck was a modification of the divorce decree. State ex rel. Dryden v. Dryden, 409 N.W.2d 648, 651 (S.D.1987). "There can be no modification of a divorce decree unless a change of circumstances can be shown to have affected one or both of the parties.” Id. (citations omitted). In this case, the circuit court’s Order did not encompass a change of circumstances. In any event, I agree with the majority opinion that the circuit court erred in interpreting the current revenue laws. In addition to the authorities cited in the majority opinion, a succinct analysis of the present state of the
law is contained in Dryden, 409 N.W.2d at 652 n. 2.
Regarding this Court’s award of $350.00 for attorney’s fees, while I question the wisdom of awarding attorney’s fees to a nonprevailing party on appeal, past cases indicate that we have wide discretion in awarding these fees. See, e.g., Storm v. Storm, 400 N.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); Johnson v. Johnson, 300 N.W.2d 865 (S.D.1980); Lien v. Lien, 278 N.W.2d 436 (S.D.1979). This Court’s language in these decisions speaks in terms of the equity of a situation rather than to awarding attorney’s fees based upon whether a party won or lost on appeal. There is no “warranted” basis for attorney’s fees based on this record, in my opinion. Thus, appellee would receive no attorney’s fees under my writing.
However, I disagree that costs should be awarded to a totally unsuccessful party on appeal. SDCL 15-30-6 is captioned “Costs allowed to prevailing party on appeal.” Under SDCL 15-30-7, appeal costs are left to this Court’s discretion when a new trial is ordered or when a judgment is affirmed in part and reversed in part. Therefore, costs awarded to a totally unsuccessful party on appeal are, at the very least, impliedly prohibited by statute. Perusing the 1985 South Dakota Session Laws, Chapter 406, Rule 85-1, I note how unminced the words are of the statute.* Consequently, I dissent from the majority opinion which awards costs to Judy Struck, a completely unsuccessful party on appeal.
Costs on appeal to the Supreme Court shall be allowed to the prevailing party in civil actions and special proceedings as follows: ....