Linard v. Hershey

SABERS, Justice.

Subsequent to this court’s decision in Linard v. Hershey, 489 N.W.2d 599 (S.D.1992), Patricia Linard (Linard) filed a Motion to Modify Child Support Payments Based Upon Current Earnings. Following an evidentiary hearing, the circuit court entered an Order Setting Child Support increasing Brooke Hershey’s (Hershey) child support payments from $116.60 per month to $490.00 per month. Hershey’s Motion for New Trial was denied. Hershey appeals.

SDCL 15-6-52(a) provides in part:

In all actions tried upon the facts without a jury or with an advisory jury, the court shall unless waived as provided in § 15-6~52(b) find the facts specially and state separately its conclusions of law thereon[.]
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If an opinion or memorandum of decision is filed, the facts and legal conclusions stated therein need not be restated but may be included in the findings of fact and conclusions of law by reference.

Hershey argues that the circuit court committed error by failing to enter findings of fact and conclusions of law. Hershey makes this argument even though he did not propose findings of fact and conclusions of law himself. While the circuit court did file a Memorandum Opinion, “[i]t is settled law that we do not review the trial court’s memorandum opinion unless the same is expressly incorporated in the trial court’s findings of fact and conclusions of law.” Olson v. Olson, 438 N.W.2d 544, 547 (S.D.1989) (citations omitted).

“As its name implies, a memorandum opinion is merely an expression of the trial court’s opinion of the facts and law. Christiansen v. Strand, 1966, 82 S.D. 416, 147 N.W.2d 415. Any expression of opinion or views by the trial judge extraneous to his decision in the manner and form contemplated by law is of no binding force and effect as a matter of law either upon the trial judge himself or anyone else. Western Bldg. Co. v. J.C. Penney Co., 1932, 60 S.D. 630, 245 N.W. 909. Because the memorandum opinion is not binding, our review is limited to the trial court’s findings of fact and conclusions of law.”

Jones v. Jones, 334 N.W.2d 492, 494 (S.D.1983) (quoting Connelly v. Sherwood, 268 N.W.2d 140, 142 (S.D.1978)).

Linard argues that findings of fact and conclusions of law are not necessary on court decisions relating to motions and that if the court did commit error, it was incumbent upon Hershey to call the error to the attention of the court by proposing findings of fact and conclusions of law, which he did not do. In support, Linard cites SDCL 15-6-52(a) which further provides in part that “[findings of fact and conclusions of law are unnecessary on decisions of motions under § 15-6-12 or § 15-6-56 or any other motion except as provided in § 15-6-41(b).”

*306Linard overlooks the fact that this motion resulted in an order modifying support (Order Setting Child Support). This so-called “motion hearing” included 83 pages of testimony by Hershey and Linard and 15 exhibits. Certainly, it was closer to an action “tried upon the facts without a jury,” than a motion hearing. Compare In re the Application of SDDS, Inc., 472 N.W.2d 502, 509 (S.D.1991) (“The necessity of making findings and conclusions when deciding civil motions is addressed in SDCL 15-6-52(a).... Findings of fact and conclusions of law are typically not required when deciding civil pretrial motions[J”).

In Grunewaldt v. Bisson, this court stated that when the father moved for a modification of child support, the trial court was required:

to enter findings of fact and conclusions of law on: each party’s net monthly income; the parties’ combined net monthly income; the percentage contribution of each party to their combined net monthly income; and, each party’s child support obligation calculated according to the applicable figure in the guidelines and each party’s percentage contribution to their combined net monthly income.

494 N.W.2d 193, 195 (S.D.1992) (citations omitted). Because the trial court in Grune-waldt failed to enter the necessary findings of fact and conclusions of law, we held that it was “impossible for this court to make the appropriate calculations and render a meaningful review to this case and we remand[ed] the matter for entry of the necessary findings of fact and conclusions of law.” Id. It is incumbent on the appellant to be able to show where the court specifically erred.

The circuit court failed to enter the necessary findings of fact and conclusions of law. Therefore, it is impossible for us to render a meaningful review. Id. We are unable to review the court’s memorandum opinion absent incorporation of the memorandum opinion in the findings of fact and conclusions of law. SDCL 15-6-52(a). We dismiss these appeals and remand to the circuit court for entry of findings of fact and conclusions of law. Grunewaldt, 494 N.W.2d at 196. See also Kierbow v. Young, 21 S.D. 180, 181, 110 N.W. 116 (S.D.1906) (citing Gull River Lumber Company v. School District No. 39, 1 N.D. 500, 48 N.W. 427) (“Having failed to find any of the ultimate facts material to the issues presented for determination, there is nothing upon which to base a judgment, and the fact that there was no request for express findings in no manner obviates the necessity of complying with the above positive and explicit requirement.”). Because of our determination of this issue, we are unable to reach the issues raised by Hershey. We decline to award attorney’s fees to either party.*

WUEST and AMUNDSON, JJ., concur. MILLER, C.J., and HENDERSON, J., dissent.

Chief Justice Miller argues in his dissent that Grunewaldt stands for the proposition "that trial courts enter specific findings of fact and conclusions of law when deviating from the mandatory statutory guidelines for child support." (Emphasis in original.) I agree. Grunewaldt, however, also states that "[t]he mandatory nature of the child support guidelines and this reopening of the issue required the trial court to modify the parties' mutual child support obligation in accordance with the guidelines even absent the change in circumstances that took place in this case. This required the trial court to enter findings of fact and conclusions of law[.]” 494 N.W.2d at 195. The holding in Grunewaldt called for the remanding "for entry of findings of fact and conclusions of law reflecting a calculation of each party's child support obligation according to the guidelines. Any issues over deviation from the guidelines may be raised by mother on remand and findings supportive of any deviation made may be entered by the trial court at that time." Id. at 196 (emphasis added). Clearly, regardless of whether mother raised any issues over deviation from the guidelines on remand, the trial court was instructed to enter findings of fact and conclusions of law.

Justice Henderson’s present writing is even more puzzling and inconsistent. In Grunewaldt, his separate writing did not object to remand for findings of fact and conclusions of law for either reason. His writing was concerned with only one paragraph. In fact, it stated: “Until the trial court supplies the findings of fact and conclusions of law to this Court, we should not dictate which laws are to be used (different facts may require application of different laws).” Id. at 197 (Henderson, J., dissenting). Therefore, his current laments about a "century of settled law,” stare decisis, and precedent, are baffling in view of his vote and writing in Grunewaldt.