(concurring in part, dissenting in part).
PREFACE
We have, before us, an appeal in an equitable action. We should be governed, as should the trial court, by the age old principle of equality in the law; and we should not favor the mother, simply because she is the mother. Sexism, contrary to the views of those people caught up in current movements, does not exist only against women. It exists against men, too. And we have a vivid example of it before us. This State no longer observes the “tender years doctrine”, which provided, inter alia, all things being equal, that the mother was entitled to the custody of a child of tender years. Rights of men to have custody of children was implicitly recognized by our State Legislature, when it abrogated a custodial preference based solely upon gender. Prentice v. Prentice, 322 N.W.2d 880 (S.D.1982). Note that effective July 1, 1979, SDCL 30-27-19(2) was amended to eliminate the concept that only the female gender could raise a child of tender years and went forward with an equal step to elevate the rights of men to raise a child or children. It reads: “As between parents adversely claiming the custody or guardianship, neither parent shall be given preference over the other in determining custody”. It is obvious, when comparing the parental values of these two parties, that the trial judge forsook the equality of men when it refused to consider the reality of the domestic situation confronting the court. An abuse of discretion *841did occur. A clear abuse of discretion must be established here. Engels v. Engels, 297 N.W.2d 489 (S.D.1980).
Issue 1
Husband did not preserve this issue. Under Weaver v. Boortz, 801 N.W.2d 673 (S.D.1981), having not preserved this point of law at trial court level, he cannot, for the first time, urge it on appeal.
Issue 2
On awarding the child to the mother, in my opinion, it was not “a close call”, as characterized by the majority opinion. Father has been crucified on the cross of Motherhood and father clearly should have been awarded custody of this little girl. It is as simple as this: he lived a good life and was a stable, hard working man, who was extremely devoted to his daughter; wife lived a life of infidelity and instability, culminating in attempted suicide.
The little girl became emotionally upset at seeing her mother in bed with someone other than her father; she was emotionally upset with being required to go to a movie with her mother and this same man; the little girl was likewise distraught with watching this man hold her mother’s hand as if the father did not exist at all. Mother simply did not want to live with father any longer and was no longer happy in the marriage because, of all things, her husband worked too hard (this appears to be the strongest proof against him). Mother’s guilt created depression; depression created an attempt to commit suicide. Surely, the trial court abused its discretion by awarding custody of the minor child to the defendant. An excellent comparison as to the inconsistency of this Court’s position may be found by reading Haak v. Haak, 323 N.W.2d 128 (S.D.1982).
Mother admitted to having a “relationship” with another man, but still denied having sexual intercourse with this man. At one time, the mother left the little girl in a vehicle alone, unattended, for an extended period of time. Tired of this, the little girl went to the residence where the mother was, then and there to find her mother in a compromising position as she was in bed with this same individual with whom she had admitted to having a “relationship”. This emotional encounter was so impactual that she told Doctor Frank Dame, a clinical psychologist. To leave this little girl outside in a vehicle, for an extended period of time, while she remained in a home, in bed with another man, is nothing less than conduct demonstrating her to be an unfit mother to raise this little girl. The trial court entered no findings of fact as to this improper conduct, other than to characterize it as a “friendship with Todd Laube during the time when this marriage was deteriorating”, see, finding of fact fourteen. Finding of fact eleven reflects that mother “... had a depressive episode, and made an apparent attempt at suicide at that time, which in reality was a cry for help”. The mother sought professional help from a Doctor Nelson for medication. Counseling was provided by Doctor Dame. In reading through the nineteen findings of fact, I am unable to find one derogatory comment or statement about the husband and father in this case. Finding of fact five reflects “Strong emotional ties exist between Christa in each of her parents.” Finding of fact ten reflects: “Both parties are mentally and physically fit to have custody of Christa”. Finding of fact thirteen is a conclusion in that it considers “... Doctor Dame’s testimony that plaintiff be given the custody of Christa due to the ‘vulnerability’ of Defendant to stress and find that unpersuasive”. Remember that Doctor Dame testified to all of the emotional disturbances of this child resulting from her mothers’ conduct with this other man, which she actually witnessed. For this trial court to hold that this testimony is unpersuasive, is to make a mockery of the fact finding process. Furthermore, it is a mockery of that which is right or wrong in a civilized society. Another disturbing element to me is the fact that the mother tried to teach her little girl, eight years old, to lie. If I can believe the trial transcript, the mother expressly informed the child to not inform her father of an incident wherein she was sexually abused by a male child on a playground. *842How could the trial court have disregarded this testimony? However, it did. This little girl told her father of the incident and the father contacted Social Services; then, the parents of the male child were brought in for interview. This resulted in the child, who performed the sexual abuse, to be brought in for counseling. This little girl will only know right from wrong if she is taught correctly by her mother. When the mother teaches her to lie and exposes her to highly improper conduct which she, the child witnessed, how can the little girl ever know right from wrong? Obviously, these traits of the mother will cascade over onto the little girl and she will act out that which she sees and hears and is taught. Again, this demonstrates that the mother is an extremely weak and improper person to have custody of this little girl.
Amazingly, testimony of experts, who were called into this case, either by the mother or the father, was totally disregarded by the trial court. Psychologist Holub, who was involved in a mental health facility, at Huron, South Dakota, was deemed to have given testimony “without evidentiary value”. This was not only an improper finding under these facts but also an error in law. In Williams v. Williams, 425 N.W.2d 390 (S.D.1988), this Court regretted that “there was no testimony offered from the children or from disinterested persons relating to the well-being of the children or their best interests”. Now, we have such testimony before us in this case, and we take an entirely different approach. Ho-lub’s testimony should not have been disregarded altogether; he met with the little girl and talked to her on several occasions. Both he and Doctor Dame believed that it was in the best interests of this little girl to be in the custody of her father. There was additional buttressing testimony, during the trial, to support that the father was an excellent father who had a loving relationship with his daughter. In essence, the father had everything going for him in a lawsuit with the exception of the judge’s decision. Doctor Dame testified that the mother’s depression "... is long rooted”.
A decision of a trial judge, when he exercises his discretion, is not uncontrolled. There must be a sound and substantial basis in testimony. Such a rule may be gathered from Flint v. Flint, 334 N.W.2d 680 (S.D.1983) and Hansen v. Hansen, 327 N.W.2d 47 (S.D.1982). In the trial court, apparently, the heart had its reasons, which reason cannot know. Reason was lost. Therefore, I would reverse the trial court on the award of custody.
Issue 3
I concur.
Issue 4
The amount established by the trial court for child support has absolutely no relation, whatsoever, to the guidelines established by SDCL 25-7-7, which statute, I have stated in the past, is a statute of abomination. However, under chapter 220 of the 1989 session laws, this support law has been amended, under paragraph 2 thereof, whereby “Any financial condition of either parent which would make application of the schedule inequitable”. Elasticity, so that the trial judge can use his mind, has finally been placed into the statute of abomination. However, this trial judge was adjudicating under the old law and he used improper criteria in determining child support by delving into a fluctuating farm income and adding this unusual dash: father occasionally eats meals with his parents. Apparently, this was viewed as a tremendous windfall to him, sufficient to abdicate the support obligations under SDCL 25-7-7. Of course, this was done to increase the child support, thereby affixing the final nail.
Issue 5
I concur on the disposition of attorney’s fees at the trial court level but would dissent on the award of $1,500 in appellate attorney’s fees because she has as much wherewithal as the father. Further, he did not precipitate this divorce and is in this Court with clean hands. She is not. “The doctrine of ‘unclean hands’ has been upheld by courts of equity throughout the history of equity jurisprudence (21 C.J. 180) and by *843this court an occasion has risen; (cites omitted)”. In Valley Bank v. Dowdy, 337 N.W.2d 164, 166 (S.D.1983), Justice Morgan approvingly referred to the doctrine calling it the “... ancient maxim of equity jurisprudence”. Presiding Judge E.W. Hertz, then serving as an Acting Justice in the case of Kane v. Schnitzler, 376 N.W.2d 337 (S.D.1985), referred to this doctrine, at 341 thereof, as a "... fundamental rule of law” and cited old cases in this Court with reaffirmation. Again, writing for this Court in Stach v. Stach, 369 N.W.2d 132, 136 (S.D.1985), Justice Morgan, on behalf of this Court, again reannounced this Court’s adherence to the clean hands doctrine. Therefore, in keeping with this Court’s long history, Mother would not obtain an award of appellate attorney’s fees because of the facts of this case and the precedent I have cited.