Schwab v. Schwab

SABERS, Justice

(concurring in part, dissenting in part).

The trial court should deviate from the guidelines as provided by SDCL 25-7-6.10(1) * because these calculations work a financial hardship on Shirley and the children. Grunewaldt v. Bisson, 494 N.W.2d 193, 196 (S.D.1992). As this court stated in Gnmewaldt, “father’s receipt of the Social Security Disability Benefits on behalf of the children may appropriately be taken into consideration by the trial court as a factor for deviation from the guidelines. Any such deviation, however, must be based on entry of the necessary findings of fact and conclusions of law showing the basis for a finding of an inequity which works a financial hardship on mother.” Id. (citation omitted); but cf. *760Grunewaldt, 494 N.W.2d at 196-97, Henderson, J., concurring in part, dissenting in part (court should not dictate which laws are to be used in deviating).

The contribution of social security to the income of William amounts to a windfall when compared to the financial hardship incurred by Shirley and the two children.

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Under the majority’s calculations, William retains $1,218.00 per month as disposable income while Shirley and the two children attempt to exist on $1,336.00 or $445.33 each. Common sense is required.

Why should Shirley and the children each have only $445 per month to live on while William has $1,218 for himself? Is it any wonder that the poorest people in America are divorced mothers and their children? See Steven Waldman, Deadbeat Dads, Newsweek, May 4, 1992, at 46 (average support award is just $57.59 per week). (“On average, the family income of the mother retain*761ing custody drops 23 percent after divorce or separation];.] Families headed by a mother alone are six times as likely to be poor as those with two parents.” Id.)

This father’s disability permits him to golf, fish, and hunt and the law provides him the wherewithal to do it. In stark contrast, the mother of these two children operates a cleaning service to provide bare sustenance to herself and her children. Should we then be surprised to learn that women and children continue to tolerate incredible physical and mental abuse within the home just to maintain some financial security? See Nancy Gibbs, ’Til Death Do Us Pati, Time, Jan. 19, 1993, at 42 (women do not leave abusive situations because it is not a viable option— they have young children and no other way to support them); see also Battered Women — Why do they stay?, Psychology Today, May/June, 1992, at 22. (Women stay in physically abusive relationships because they have no place to go and are protecting their children. “[T]here are 1,200 shelters for battered women, and only 5% of them accept women with children. By contrast, there are 3,800 shelters for homeless animals.” Id.) Apparently, the system, which is being ratified today by the majority, is leaving them without other options.

SDCL 25-7-6.10(1) provides in part:

Deviation from the schedule in § 25-7-6.2 shall be considered if raised by either party and made only upon the entry of specific findings based upon any of the following factors:
(1) The income of a subsequent spouse or contribution of a third party to the income or expenses of that parent but only if the application of the schedule works a financial hardship on either parent[.]