(dissenting).
I.
Child support could not be established at “$800.00 ... as set forth ... at the Guidelines” because the guidelines established child support at $680.00 per month without benefit of any consideration of alimony payments by Michael Whalen. It appears that, as a matter of law, the original amount of $800.00 was entered in error. Under Janke v. Janke, 467 N.W.2d 494, 498 (S.D.1991), this Court may and should consider that Michael Whalen objected to the Referee’s Conclusion of Law; and that, therefore, there exists a patent error of law.
II.
Disallowing the alimony deduction is an error of law. Accordingly, it falls under the legal thesis of Janke, supra. Such an interpretation restricts Michael Whalen, father, and the three children to live on approximately $533.00 per month during extended visitation; thus, it hurts father, economically, for the balance of the year. See, SDCL 25-7-6.6, 25-7-6.7 and Internal Revenue Code § 215(a). Alimony paid by Michael Whalen should have created a deduction but it did not under the rulings of the Referee and Circuit Judge. Rather, it was totally ignored. Monthly child support should have been adjusted. In South Dakota, the children’s needs and the obligor’s ability to pay, must be considered in determining a reasonable amount of child support. Bruning v. Jeffries, 422 N.W.2d 579 (S.D.1988). Further, SDCL 25-7-6.6 defines “gross income” to include “... the net profits or gains, or net losses shown on any or all schedules filed as part of the parents’ financial income tax returns...” (emphasis supplied mine).
III.
This case should be reversed and remanded to the circuit court. However, I would affirm the circuit court’s award of transcript costs because Referee has the authority to recommend the payment of same to the circuit court. Such an amount is not so great as to jeopardize Michael Whalen’s security. SDCL 15-6-53(a) (1992 Supp.). Further, concerning an award of the attorney’s fees at the trial court level, I would affirm a denial thereof based upon a greater net income of the wife than the husband after the divorce proceeding. Under Pochop v. Pochop, 233 N.W.2d 806 (S.D.1975), there was no abuse of discretion, particularly in light of the liquidity of the parties’ assets. Regarding an appellant attorney’s fees award, under the theory that appellee loses this appeal (see, Hulm v. Hulm, 484 N.W.2d 303, 306 (S.D. 1992) (Henderson, J., dissenting)), no award should be entered because (1) child support payment entered by the trial court was (inceptually) clearly in error (2) alimony payments should have been taken into consideration, as referred to above, and were not.