(concurring in part and dissenting in part).
I concur on Issue 1. I dissent on Issue 2.
Trial court ordered Larry Kappenman to pay 100% of attorney’s fees and costs incurred by Darlene Kappenman from March 1, 1991 through January 13, 1993.
Darlene Kappenman has an annual income in excess of $30,000, one-half of which is nontaxable income, and additionally was awarded assets valued at $226,000. Of said $226,000, $76,000 was in liquid assets. In my opinion, it is simply not fair for Larry Kappenman to bear all of the litigation expenses and that is what this decision amounts to. Here, the trial court should have considered the property owned by each party and it did not; it owed a duty to consider the respective incomes of each party and it failed to consider her $30,000 annual income, one-half of which was non-taxable; it failed to consider the liquid assets of approximately $76,000 which she possessed. These factors, cited in Lien v. Lien, 278 N.W.2d 436 (S.D.1979), were simply cast aside. Darlene Kappenman had the ability to pay her own fees in this matter. She is set up in life, extremely well. Simply because Larry Kappenman sought to assert his rights in a court of law, should not be a reason to punish him. . In my opinion, this man is being punished, by an economic award against him, which is a clear abuse of discretion. Herndon v. Herndon, 305 N.W.2d 917 (S.D.1981). The factors which I have set forth above, and not heeded, were repeated in Kanta v. Kanta, 479 N.W.2d 505 (S.D.1991); Cole v. Cole, 384 N.W.2d 312 (S.D.1986); Senger v. Senger, 308 N.W.2d 395 (S.D.1981).
This Court today adopts a “loser pays all” philosophy. We are adjudicating this case in a Court of Equity. Hence, I dissent to such a philosophy.