Date: 01-23-2013

Case Style: Carmen Colette Schieffer v. Kevin Victor Schieffer

Case Number: 2013 SD 11

Judge: Gilbertson

Court: Supreme Court of South Dakota on appeal from the Circuit Court of The Second Judicial Circuit, Lincoln County

Plaintiff's Attorney: LINDA LEA M. VIKEN KYLIE M. RIGGINS of Viken Law Firm Rapid City, South Dakota

Defendant's Attorney: THOMAS J. WELK JASON R. SUTTON of Boyce, Greenfield, Pashby & Welk, LLP Sioux Falls, South Dakota

Description: [¶1.] On July 12, 2011, the trial court granted Kevin Schieffer and Carmen Schieffer a divorce on grounds of irreconcilable differences. In its judgment and decree of divorce, the trial court denied Carmen’s request to relocate to New York City with the minor children, granted Kevin and Carmen joint legal and physical custody of the minor children, implemented a custody schedule, ordered Kevin to pay Carmen child support, resolved the disputed property issues, and denied Carmen’s request for attorney fees. Carmen appeals various aspects of the trial court’s decision. We affirm.

FACTS

[¶2.] Kevin and Carmen met in 1999. From 1999 to 2007, Kevin and Carmen were involved in an “on again, off again,” long distance relationship, with Kevin primarily residing in Sioux Falls, South Dakota, and Carmen living various places including New York City, New York. While in New York City, Carmen was employed as a vice president of an international insurance and investment company. Kevin worked as the CEO of Dakota, Minnesota, and Eastern Railroad (DM&E) in Sioux Falls. Kevin was also a shareholder of DM&E.

[¶3.] Kevin amassed a considerable amount of wealth throughout his career, acquiring much of his wealth as a result of the sale of DM&E in October 2007. Kevin was required to continue working for DM&E during a period of transition as part of the sale. However, after completing the transition in October 2008, Kevin ceased working for DM&E. Neither Kevin nor Carmen has worked outside of the home since that time.

[¶4.] In 2007, the parties learned Carmen was pregnant. Kevin and Carmen then married on September 22, 2007.1 The parties’ daughter (AC-AS) was born on March 6, 2008. AC-AS was born with Down syndrome. In addition, AC-AS was born with a heart defect that required her to have surgery in New York City shortly after her birth. As a result, Carmen and AC-AS lived in New York City for approximately the first five months of AC-AS’s life. Carmen and AC-AS then moved to Sioux Falls to live with Kevin.

[¶5.] AC-AS has received various services and therapies to help treat the symptoms of her Down syndrome since her birth. These services include physical therapy, occupational therapy, speech therapy, music therapy, etc. Some of these services are provided by the State of South Dakota.2 However, Kevin and Carmen have continuously supplemented these services with “private pay” therapy services. Typically, AC-AS participates in at least 12 hours of therapist-led therapy sessions each week. Additionally, Carmen has pursued alternative treatments for AC-AS. For example, AC-AS is on a special diet and takes various vitamins and supplements daily.

[¶6.] On October 15, 2009, Carmen formally notified Kevin that she intended to relocate from Sioux Falls to New York City because she believed facilities in New York City could provide AC-AS with better therapy services and educational opportunities. At the time, Carmen was pregnant with the parties’ son (AE-VS). Kevin resisted the proposed relocation. As a result, Carmen filed a complaint on December 14, 2009, in which she sought separate maintenance, custody, child support, permission to relocate, and attorney fees. In response, Kevin objected to the proposed relocation and counterclaimed for a declaratory judgment based on the parties’ prenuptial agreement.

[¶7.] The trial court held a hearing on February 11-12, 2010, to address the interim issues of child support, visitation, and attorney fees. After the hearing, the trial court entered a memorandum decision and interim order to establish the rights and obligations of the parties until the occurrence of a trial, which was originally set for July 2010, but was later moved to November 2010. Kevin and Carmen’s son AE-VS was born on May 4, 2010.

[¶8.] On October 11, 2010, Kevin amended his answer and counterclaim, seeking a divorce from Carmen on the grounds of irreconcilable differences. Prior to their divorce trial, Kevin and Carmen stipulated to the enforceability of their prenuptial agreement. The parties’ divorce trial was held on November 15-19, 2010. At trial, Kevin and Carmen disputed various issues. Some of the more significant issues included: whether New York City could provide better services to AC-AS than Sioux Falls; whether AC-AS participated in an appropriate amount of therapy; and whether the type and quantity of supplements AC-AS was taking was appropriate. Over the course of the trial and prior hearings, the parties and more than 15 experts provided testimony regarding these and other issues.

[¶9.] On March 4, 2011, the trial court entered extensive findings of fact and conclusions of law based on the evidence presented at both the February 2010 hearing and the November 2010 trial. However, both parties moved for reconsideration/clarification/amendment of the trial court’s findings. The trial court addressed these motions at a hearing held on May 23, 2011. On July 12, 2011, the trial court entered an order on the parties’ motions for reconsideration, a judgment and decree of divorce, and amended findings of fact and conclusions of law.

[¶10.] The trial court’s amended findings of fact and conclusions of law consisted of 161 findings and 47 conclusions that were incorporated by reference into the judgment and decree of divorce. This Court addresses only those portions of the judgment and decree of divorce that are relevant to this appeal. In its judgment and decree of divorce, the trial court granted Kevin a divorce based upon irreconcilable differences and denied Carmen’s request to relocate to New York City. The trial court ordered Kevin to pay Carmen $3,971,973.90 to satisfy the $5 million total she was entitled to under the prenuptial agreement. In addition, the trial court awarded Kevin and Carmen joint legal and physical custody of AC-AS and AE-VS. The trial court also adopted a modified version of the custody schedule proposed by Dr. Price (Kevin’s expert).

[¶11.] With regard to AC-AS’s therapy, the trial court ordered that the State-provided therapy granted to AC-AS under her IEP would be the minimum amount of therapy AC-AS would receive. The trial court also ordered that the recommendations of AC-AS’s doctor (Dr. Blake) would control matters in which the parties disagreed about the healthcare needs of the children, including disputes about additional therapy for AC-AS. Further, the trial court ordered that Kevin be permitted to take part in determining the appropriate financial terms for certain services Carmen specifically wanted AC-AS to participate in, assuming Dr. Blake found these services to be appropriate.

[¶12.] Additionally, the trial court rejected Carmen’s request for child support of more than $25,000 per month. In Carmen’s reply brief and Exhibit 423, Carmen clarifies that approximately $9,200 of the $25,000 total is attributable to costs associated with the children’s actual needs and standard of living (“base” child support), while the remaining costs of $15,800 are attributable to AC-AS’s special needs. In rejecting Carmen’s child support request, the trial court instead ordered Kevin to pay Carmen “base” child support of $2,815 per month. The trial court also ordered Kevin to pay for health insurance for the children, 95 percent of AC-AS’s therapy costs, 95 percent of the supplemental costs associated with AC-AS’s special needs, 95 percent of the children’s uncovered medical expenses, 95 percent of the nanny expenses incurred until AC-AS entered preschool, and 95 percent of private school tuition (if applicable). Finally, the trial court denied Carmen’s request for attorney fees of more than $370,000. Carmen appeals several of the trial court’s determinations.

STANDARD OF REVIEW

[¶13.] “[This Court] review[s] child custody decisions under the abuse of discretion standard of review.” Simunek v. Auwerter, 2011 S.D. 56, ¶ 8, 803 N.W.2d 835, 837 (citing Fuerstenberg v. Fuerstenberg, 1999 S.D. 35, ¶ 22, 591 N.W.2d 798, 807). In addition, the trial court’s decisions regarding child support and the division of property are reviewed for an abuse of discretion. Hill v. Hill, 2009 S.D. 18, ¶ 5, 763 N.W.2d 818, 822 (citing Billion v. Billion, 1996 S.D. 101, ¶ 14, 553 N.W.2d 226, 230). Further, “[a] circuit court’s ruling on the allowance or disallowance of costs and attorney fees is also reviewed by this Court under the abuse of discretion standard of review.” Terca v. Terca, 2008 S.D. 99, ¶ 18, 757 N.W.2d 319, 324 (citing Eccleston v. State Farm Mut. Auto. Ins. Co., 1998 S.D. 116, ¶ 20, 587 N.W.2d 580, 583).

[¶14.] “An abuse of discretion is ‘a discretion exercised to an end or purpose not justified by, and clearly against, reason and evidence.’” Hill, 2009 S.D. 18, ¶ 5, 763 N.W.2d at 822 (citing Laird v. Laird, 2002 S.D. 99, ¶ 13, 650 N.W.2d 296, 299). In the context of reviewing custody decisions, “[a]n abuse of discretion occurs . . . when the trial court’s review of the traditional factors bearing on the best interests of the child is scant or incomplete.” Kreps v. Kreps, 2010 S.D. 12, ¶ 25, 778 N.W.2d 835, 843 (quoting Pietrzak v. Schroeder, 2009 S.D. 1, ¶ 37, 759 N.W.2d 734, 743).

[¶15.] On appeal, findings of fact are reviewed under the clearly erroneous standard of review. Id. As a result, this Court “will overturn the trial court’s findings of fact on appeal only when a complete review of the evidence leaves [this] Court with a definite and firm conviction that a mistake has been made.” Id. Further, this Court gives due regard to the trial court’s opportunity “to judge the credibility of witnesses and to weigh their testimony[.]” Walker v. Walker, 2006 S.D. 68, ¶ 11, 720 N.W.2d 67, 70-71 (quoting Midzak v. Midzak, 2005 S.D. 58, ¶ 14, 697 N.W.2d 733, 738).

ANALYSIS AND DECISION

[¶16.] 1. Whether the trial court’s amended findings of fact regarding the custody determination factors were clearly erroneous, causing the trial court’s joint legal and physical custody award to be an abuse of discretion.

[¶17.] When determining custody, “the court shall be guided by consideration of what appears to be for the best interests of the child in respect to the child’s temporal and mental and moral welfare.” SDCL 25-4-45. “The trial court may, but is not required to, consider the following [Fuerstenberg] factors in determining the best interests and welfare of the child: parental fitness, stability, primary caretaker, child’s preference, harmful parental misconduct, separating siblings, and substantial change of circumstances.” Simunek, 2011 S.D. 56, ¶ 9, 803 N.W.2d at 837 (quoting Kreps, 2010 S.D. 12, ¶ 26, 778 N.W.2d at 843). In evaluating parental fitness, a trial court may consider the following subfactors:

(1) mental and physical health; (2) capacity and disposition to provide the child with protection, food, clothing, medical care, and other basic needs; (3) ability to give the child love, affection, guidance, education and to impart the family’s religion or creed; (4) willingness to maturely encourage and provide frequent and meaningful contact between the child and the other parent; (5) commitment to prepare the child for responsible adulthood, as well as to insure that the child experiences a fulfilling childhood; and (6) exemplary modeling so that the child witnesses firsthand what it means to be a good parent, a loving spouse, and a responsible citizen. Kreps, 2010 S.D. 12, ¶ 26, 778 N.W.2d at 843-44. Subfactors examined when considering stability include:

(1) the relationship and interaction of the child with the parents, step-parents, siblings and extended families; (2) the child’s adjustment to home, school and community; (3) the parent with whom the child has formed a closer attachment, as attachment between parent and child is an important developmental phenomena and breaking a healthy attachment can cause detriment; and (4) continuity, because when a child has been in one custodial setting for a long time pursuant to court order or by agreement, a court ought to be reluctant to make a change if only a theoretical or slight advantage for the child might be gained.

Price v. Price, 2000 S.D. 64, ¶ 27, 611 N.W.2d 425, 432.

[¶18.] “‘We encourage trial courts to take a balanced and systematic approach’ when applying the factors relevant to a child custody proceeding.” Simunek, 2011 S.D. 56, ¶ 9, 803 N.W.2d at 837 (quoting Fuerstenberg, 1999 S.D. 35, ¶ 23, 591 N.W.2d at 807). See also Kreps, 2010 S.D. 12, ¶ 28-29, 778 N.W.2d at 844 (reiterating that courts should utilize a balanced and systematic approach in analyzing the various factors applicable to child custody proceedings, and clarifying that this Court has never held that the primary caretaker factor should prevail over all other factors considered by the trial court).

[¶19.] Carmen argues that several of the trial court’s amended findings of fact are clearly erroneous, and that the joint legal and physical custody award was an abuse of discretion as a result. However, Carmen’s claims of error are without merit because the record supports the trial court’s amended findings of fact. For example, Carmen challenges Amended Finding of Fact 74, which deals with “fitness” subfactor 5. Carmen argues the trial court committed clear error in finding that Kevin was more capable than Carmen to prepare the children for responsible adulthood while simultaneously ensuring that they had the benefit of a fulfilling childhood. She argues that she “fully appreciates the importance of playtime, socialization, and family for children and worked hard to incorporate them all, along with the therapy AC-AS requires.”

[¶20.] However, a review of the record demonstrates that Carmen heavily favored therapy over playtime and time with family. For example, AC-AS spent over 1200 hours in therapy sessions before turning age two, yet she spent no time with other children. Further, Carmen prevented AC-AS from socializing with the children in Kevin’s family, and only began allowing AC-AS to interact with other children after the February 2010 hearing. At one point during the February 2010 hearing, Carmen was asked for the names of AC-AS’s playmates. Carmen replied that AC-AS had no playmates. Therefore, Amended Finding of Fact 74 was not clearly erroneous.

[¶21.] As an additional example, Carmen argues that Amended Finding of Fact 81 is clearly erroneous. Carmen challenges the trial court’s finding that she indicated she does not think family is as important as therapy. However, once again, the record supports this finding. When Carmen was asked to respond to Kevin’s concern about being far from family if she and the children relocated to New York City, Carmen stated that family was very important, but that she did not think family was as important as the therapy opportunities AC-AS would have in New York. This testimony demonstrates that Amended Finding of Fact 81 was not clearly erroneous.

[¶22.] Overall, Carmen has not shown that the trial court’s amended findings of fact were clearly erroneous. As noted above, it is within the prerogative of the trial court to resolve conflicts of evidence, judge the credibility of witnesses, and weigh the testimony of witnesses. The fact that Carmen disagrees with the trial court’s findings does not mean they were clearly erroneous. Because the trial court’s amended findings of fact were supported by the record, Carmen has not established that the trial court’s amended findings of fact were clearly erroneous. Furthermore, a review of the record establishes that the trial court engaged in a balanced and systematic review of each of the Fuerstenberg factors and subfactors in finding that the best interests of AC-AS and AE-VS supported awarding Kevin and Carmen joint legal and physical custody. Specifically, the trial court devoted Amended Finding of Facts 69 through 93 (approximately 8 of the 58 pages of its amended findings of fact and conclusions of law) to providing detailed evaluations of each of these factors and subfactors. As a result, the trial court did not abuse its discretion in awarding Kevin and Carmen joint legal and physical custody of the children.

[¶23.] 2. Whether the trial court abused its discretion in adopting a modified version of the custody schedule recommended by Dr. Price (Kevin’s expert)3 instead of adopting the custody schedule proposed by Dr. Ackerman (Carmen’s expert).4

[¶24.] “As with all witnesses, it falls on the trier of fact to decide whether to believe all, part, or none of an expert’s testimony.” Great W. Bank v. H & E Enters., LLP, 2007 S.D. 38, ¶ 10, 731 N.W.2d 207, 209 (citing Sauer v. Tiffany Laundry & Dry Cleaners, 2001 S.D. 24, ¶ 14, 622 N.W.2d 741, 745). As a result, “[i]t is within the [trial] court’s discretion to choose between conflicting experts.” Simunek, 2011 S.D. 56, ¶ 16, 803 N.W.2d at 838 (citing Wise v. Brooks Constr. Servs., 2006 S.D. 80, ¶ 33, 721 N.W.2d 461, 472-73). Furthermore, SDCL 25-5-7.1 gives a trial court the authority to order joint legal and physical custody. In ordering joint physical custody, the trial court may award it “in such proportions as are in the best interests of the child, notwithstanding the objection of either parent.” SDCL 25-5-7.1.

[¶25.] At trial, both Kevin and Carmen presented testimony from custody experts and proposed custody schedules based on this testimony. Carmen argues the trial court abused its discretion in failing to adopt the custody schedule proposed by Dr. Ackerman for several reasons. For example, she argues Dr. Ackerman was more qualified than Dr. Price in both training and experience.5

[¶26.] In this case, the trial court did not abuse its discretion in finding that the adoption of a modified version of Dr. Price’s proposed custody schedule was in the best interests of AC-AS and AE-VS. It was within the trial court’s discretion to weigh the competing opinions of Dr. Price and Dr. Ackerman and to select one of the proposed custody schedules. The trial court chose to implement a modified version of Dr. Price’s proposed custody schedule over Dr. Ackerman’s proposed custody schedule because it provided the children with an equal opportunity to spend time with both parents and to develop secure attachments to both parents. The trial court found that this case was unique because both Kevin and Carmen had substantial assets which eliminated either party’s need to work outside of the home, thus giving both Kevin and Carmen the ability to devote substantial time to AC-AS and AE-VS.

[¶27.] Furthermore, the trial court chose to implement a modified version of Dr. Price’s proposed custody schedule as opposed to Dr. Ackerman’s proposed custody schedule because the trial court determined that Dr. Price’s opinions were more consistent with modern research, scholarship, common sense, and public policy. Additionally, the trial court concluded that Dr. Ackerman’s proposed schedule would unreasonably and unnecessarily limit the children’s ability to attach to Kevin.

[¶28.] As previously mentioned, the trial court was vested with the discretion to weigh the opinions of the experts and to select the proposed custody schedule it found to be most consistent with the best interests of AC-AS and AE-VS. Overall, the record supports the trial courts findings and supports its decision to adopt a modified version of Dr. Price’s proposed custody plan. Therefore, the trial court did not abuse its discretion in adopting a modified version of the custody plan proposed by Dr. Price.

[¶29.] 3. Whether the trial court abused its discretion in allowing Kevin to participate in determining the financial terms of certain services for AC-AS.6

[¶30.] SDCL 25-5-7.1 provides:

In ordering joint legal custody, the court may consider the expressed desires of the parents and may grant to one party the ultimate responsibility over specific aspects of the child’s welfare or may divide those aspects between the parties based on the best interest of the child. . . . [T]he court may order, or the parties may agree, how any such responsibility shall be divided.

In awarding Kevin and Carmen joint legal custody, the trial court gave Carmen the specific authority to continue the non-speech oral motor therapies (such as TalkTools and PROMPT) that AC-AS had previously received, provided that Dr. Blake did not find these therapies to be harmful to AC-AS.7 The trial court also gave Carmen the authority to decide whether or not to utilize a Special Education Itinerant Teacher (SEIT) to assist AC-AS when AC-AS entered school. However, the trial court ordered that Kevin have the authority to participate in determining the appropriate financial terms for these services. With regard to the SEIT, Kevin was also allowed to participate in setting the reasonable duties, terms, and conditions of the employment relationship, and was allowed to participate in interviewing and hiring the SEIT.8 Carmen argues the trial court abused its discretion in allowing Kevin to participate in establishing the financial terms of these services, claiming that this grant of authority essentially gave Kevin the power to block AC-AS’s receipt of these services. She asserts that Kevin might require that the services be obtained at a rate that proves to be unacceptable to the therapists, making it impossible to find therapists to provide these services to AC-AS.

[¶31.] However, Carmen’s argument lacks merit. In allowing Kevin to participate in determining the financial terms for AC-AS’s non-oral motor therapies and SEIT services, the trial court did not give Kevin the power to block AC-AS’s receipt of these services altogether. On the contrary, Carmen retained the full authority to continue these services assuming Dr. Blake did not find them to be inconsistent with AC-AS’s best interests. Therefore, the only person with the ability to block AC-AS’s receipt of the non-oral motor therapies and SEIT services is Dr. Blake.9 Further, there is no indication that the trial court meant to allow Kevin to use his authority as a means of blocking AC-AS’s receipt of these services by insisting upon financial terms that were unacceptable to the therapists. Such an understanding would be entirely inconsistent with the trial court’s specific grant of authority to Carmen with regard to the continuation of these services.

[¶32.] Instead, in reviewing the judgment and decree of divorce in its entirety, the trial court’s division of authority balanced the interests of both Kevin and Carmen. In its amended findings of fact, the trial court found that Carmen’s spending was irresponsible and excessive. Further, it found that the non-speech oral motor therapies were expensive and controversial, and that it was unclear whether or not the services actually caused AC-AS’s speech to improve. However, the trial court found that Carmen was passionate about AC-AS’s receipt of these services and that Carmen’s ability to co-parent with Kevin would be negatively impacted if these services were terminated. By giving Kevin the ability to participate in determining the financial terms of these services, the trial court balanced Carmen’s interest in continuing the therapy services she strongly believed were imperative to AC-AS’s improvement with Kevin’s interest in ensuring that these services were provided at costs that were not unnecessary or excessive. Therefore, although Kevin has the ability to give input, he does not have the authority to block AC-AS’s receipt of the non-speech oral motor therapies and SEIT services. As a result, the trial court did not abuse its discretion in giving Kevin the authority to participate in determining the financial terms of AC-AS’s non-speech oral motor therapies and SEIT services.10

[¶33.] 4. Whether the trial court abused its discretion in ordering Kevin to pay “base” child support of $2,815 per month.

[¶34.] “The court is required to set a child support obligation based on an income schedule established by the Legislature.” Hill, 2009 S.D. 18, ¶ 6, 763 N.W.2d at 822. “[T]he combined monthly net incomes of both parents shall be used in determining the obligation which shall be divided proportionately between the parents based upon their respective net incomes.” SDCL 25-7-6.2. Currently, the schedule provides child support obligation calculations up to a combined net monthly income of $20,000. Id.

[¶35.] In situations where the parents’ combined net monthly income exceeds $20,000, “the child support obligation shall be established at an appropriate level, taking into account the actual needs and standard of living of the child.” SDCL 25-7-6.9. Further, “the trial court may calculate support by mathematical extrapolation, but it is not obligated to do so. . . . [T]he essential inquiry remains the actual needs and standard of living of the children.” Bloom v. Bloom, 498 N.W.2d 213, 217 (S.D. 1993) (citing Earley v. Earley, 484 N.W.2d 125, 127-28 (S.D. 1992)). In addition, the party requesting child support in excess of the schedule “has the burden of proving [the] claimed expenses reflect the children’s needs and standard of living.” Evans v. Evans, 1997 S.D. 16, ¶ 20, 559 N.W.2d 240, 245 (citing Billion, 1996 S.D. 101, ¶ 40, 553 N.W.2d at 235). However, “[a] trial court is not required to accept either party’s claimed expenses.” Id.

[¶36.] The trial court determined that Kevin’s annual income (including the imputation of minimum wage) was $2,115,080; whereas Carmen’s annual income (including the imputation of minimum wage) was $105,080. Based on these figures, the trial court concluded that the combined monthly income of the parties exceeded the $20,000 maximum provided by the child support obligation schedule. However, the trial court ultimately concluded that a child support award in excess of the child support obligation schedule was unwarranted in this case.

[¶37.] Instead, the trial court calculated “base” child support at $2,963, which was the top of the child support obligation schedule for two children. The trial court ordered that the parties bear this expense based upon the ratio of their levels of income, meaning that Kevin was responsible for paying 95 percent of this amount, and Carmen was responsible for paying 5 percent of this amount. The result of these calculations was that Kevin was responsible for making monthly child support payments of $2,815. In addition to these “base” payments, the trial court ordered Kevin to pay 95 percent of several of the children’s other expenses. Carmen argues the trial court abused its discretion in calculating child support, claiming she established the actual needs and standard of living of AC-AS and AE-VS required a “base” child support award of approximately $9,200 per month.11

[¶38.] In determining the appropriate child support award, the trial court considered the actual needs and standard of living of both AC-AS and AE-VS. The trial court found that “base” child support of $2,963 per month properly accounted for AC-AS’s and AE-VS’s actual needs and standard of living. The trial court made several findings of fact to support its rationale for awarding “base” child support of $2,963. First, as to the children’s needs, the trial court found that $2,963 accounted for the children’s typical expenditures such as food, clothing, transportation, and housing. Next, with regard to the children’s standard of living, the trial court specifically found that “[t]here is no evidence that would support the supposition that the children will be living an opulent or excessive lifestyle in Kevin’s home. To the contrary, the evidence suggests that Kevin values fiscal discipline . . . .” In addition, the trial court found that “Kevin’s current home is considerably less expensive than the current marital residence[,]” and that “the evidence shows that it is Carmen, rather than Kevin, that would be the driving force behind setting a standard of living that is inconsistent with the guidelines amounts.”

[¶39.] Further, the trial court found that “[t]he only unusual costs associated with the standard of living for the children as set forth herein are the costs of [AC-AS]’s therapy, her potential SEIT, nutritional supplements, and possible private school tuition.” Beyond those costs, the trial court found that “Carmen has failed to prove that additional deviation from the child support guidelines is necessary to serve the children’s actual needs and standard of living.” Carmen has failed to establish that these findings are clearly erroneous.

[¶40.] Because of AC-AS’s special needs, most of the evidence concerning the additional expenses associated with the children related exclusively to her. However the detail of the trial court’s findings on the overall issue of support show that the trial court considered the needs of each child and did not exclusively focus on AC-AS. AE-VS is two years old. If AE-VS’s needs change as he ages, as is expected, the trial court will have discretion to correspondingly raise the support obligation to meet those needs, provided that Carmen can establish a “substantial change in circumstances.” See SDCL 25-7A-22.

[¶41.] Additionally, in rejecting Carmen’s request for “base” child support of approximately $9,200 per month, the trial court concluded that Carmen’s proposed expenses were inflated, speculative, and unreliable. A review of the record supports the trial court’s determinations. For example, when Carmen was asked about her proposed monthly budget, Carmen was unable to provide a rationale for several of the expenses. In addition, she agreed that some of the figures were miscalculated.

[¶42.] Furthermore, the trial court found that Carmen’s spending was “undisciplined” and that her spending habits exhibited her tendencies for “excess and over-indulgence.” Carmen has also failed to show that these findings were clearly erroneous. The trial court determined that “it is clearly not appropriate to increase child support simply to allow a parent to enjoy a desired level of opulence.” We agree. Simply because Carmen spent excessively during the parties’ marriage does not mean that Kevin must maintain that standard of living following their divorce, especially given that Kevin objected to Carmen’s spending during the marriage and given that the parties’ young children’s actual needs do not correspond with such an opulent standard of living. See Bloom, 498 N.W.2d at 218 (stating that “[w]hile father’s income and status as a physician might establish that [designer clothes, cellos, ballet lessons, etc.] are commensurate with the children’s standard of living, we are not prepared to state that the trial court abused its discretion in failing to enter such a finding or a finding that these items constitute actual needs of the children”).

[¶43.] In addition, Carmen did not present any evidence to suggest that the children’s standard of living would dramatically decrease following the parties’ divorce if Carmen was not awarded her requested amount of child support. In fact, on appeal Carmen has not alleged that the children’s needs are not being met by the current child support award, nor has she alleged that the children’s standard of living is now inconsistent with the standard of living they had before the parties’ divorce. In Ochs v. Nelson, 538 N.W.2d 527 (S.D. 1995), this Court addressed a situation where an unmarried mother and father had considerably disproportionate standards of living because the mother’s earnings were marginal and the father’s earnings were substantial. In Ochs, this Court affirmed the trial court’s decision to set child support based on a mathematical extrapolation from the child support obligation schedule even though the parties’ child had never experienced his father’s high standard of living because the child was young and had never lived with his father. Id. at 530-31 (holding that child was entitled to share in some of father’s high standard of living even though child only resided with mother).

[¶44.] However, this case is distinguishable from Ochs. Unlike the mother in Ochs, Carmen has substantial assets of her own. Specifically, under the prenuptial agreement, Carmen received a total of $5 million as part of the parties’ divorce. In addition, the trial court found that Carmen’s net monthly income including child support would be over $9,000, which does not account for the $1 million the trial court expected Carmen to set aside to purchase a home, furnishings, etc. Further, unlike in Ochs, in this case there is no indication that AC-AS and AE-VS will experience substantially disproportionate standards of living at the homes of Kevin and Carmen. As noted above, although Kevin has a higher income and a greater net worth than Carmen, Kevin is more financially conservative than Carmen. Therefore, it appears that both Kevin and Carmen will maintain reasonably equivalent standards of living. The fact that the concerns this Court expressed in Ochs regarding situations involving parents with disproportionate standards of living do not exist in this case provides further support for the trial court’s determination that a child support award in excess of the child support obligation schedule was unnecessary in this case. Additionally, if at some point Kevin’s and Carmen’s standards of living become disproportionate, this disproportionality may be considered for purposes of modification of the child support award pursuant to SDCL 25-7A-22 in order to maintain the children’s standard of living.12

[¶45.] Overall, Carmen has failed to establish that the trial court’s amended findings of fact regarding its determination of the appropriate child support award were clearly erroneous. As a result, the trial court did not err in concluding that Carmen did not meet her burden of proving that her claimed expenses of approximately $9,200 per month reflected the actual needs and standard of living of each of the children. Thus, the trial court did not abuse its discretion in determining that the actual needs and standard of living of the children would be provided for by Kevin paying Carmen “base” child support of $2,815 per month.

[¶46.] Finally, in evaluating the child support award, it is important to note that the trial court did not give Kevin an abatement or cross-credit on his child support obligation even though the children would be living with Kevin 50 percent of the time.13 This is significant because the obligations set forth in the child support obligation schedule are typically applied to situations where one parent has primary physical custody of the child(ren) and the other parent only has visitation. Further, it is also important to note that Kevin will be paying substantially more than $2,815 each month to cover other costs associated with the children.14 In addition to the monthly “base” payments of $2,815, the trial court ordered Kevin to pay for health insurance for the children, 95 percent of AC-AS’s therapy costs, 95 percent of the supplemental costs associated with AC-AS’s special needs, 95 percent of the children’s uncovered medical expenses, 95 percent of the nanny expenses incurred until AC-AS entered preschool, and 95 percent of private school tuition (if applicable).

[¶47.] According to Carmen’s own estimates, the additional expenses associated with AC-AS’s special needs alone total approximately $15,800 per month (making Kevin’s share of these expenses approximately $15,010). Consequently, when taking into account both the “base” child support payment of $2,815 and the additional payment of $15,010, Kevin will be paying more than $17,825 per month in child support.

[¶48.] In this case, Carmen has failed to establish that the trial court’s child support award was “not justified by, and clearly against, reason and evidence.” See Hill, 2009 S.D. 18, ¶ 5, 763 N.W.2d at 822. Accordingly, the trial court did not abuse its discretion in rejecting Carmen’s request for “base” child support of approximately $9,200 per month and instead ordering Kevin to pay monthly “base” child support of $2,815. As previously discussed, if the actual needs of either AC-AS or AE-VS change in the future, the trial court has continuing jurisdiction to modify the child support order pursuant to SDCL 25-7A-22 in order to meet the children’s actual needs. [¶49.] 5. Whether the trial court abused its discretion in dividing the property by rejecting Carmen’s request for reimbursement of $6,000 she claimed she paid Kevin.

[¶50.] When dividing property, “a trial court ‘is not bound by any mathematical formula but shall make such award from the material factors before [it] having due regard for equity and the circumstances of the parties.’” Grode v. Grode, 1996 S.D. 15, ¶ 9, 543 N.W.2d 795, 800 (alteration in original) (quoting Hanson v. Hanson, 252 N.W.2d 907, 908 (S.D. 1977)). In this case, the parties’ prenuptial agreement generally controlled the property division. Prior to trial, Kevin paid Carmen $1 million of the $5 million total he owed her under the prenuptial agreement. Therefore, at the time of trial Kevin still owed Carmen $4 million. At trial, the parties disputed whether Kevin was entitled to receive certain offsets for payments Kevin believed he should be reimbursed for. Ultimately, the trial court found that Kevin was entitled to an offset of $28,026.16 for expenses Carmen agreed she was responsible for paying. The trial court rejected Kevin’s requests for other offsets totaling more than $300,000.

[¶51.] Additionally, at trial Carmen requested a credit for $6,000. Carmen claimed she wrote a $6,000 check on the parties’ joint account, but then attempted to stop payment on the check after Kevin requested that she no longer use their joint account. Believing that her attempt to stop the check was unsuccessful, Carmen claimed she paid Kevin $6,000 from her personal account to cover the check. However, Carmen claims that when she later requested that the $6,000 be returned because payment of the check had been stopped, Kevin refused. The trial court denied Carmen’s request for a $6,000 credit. Carmen appeals this ruling.

[¶52.] A review of the record establishes that the trial court did not abuse its discretion in dividing the property under the prenuptial agreement. The record shows that the trial court considered the evidence presented by each party with regard to the disputed property, and then divided the property. In doing so, the trial court denied most of Kevin’s requests for offsets, and gave Carmen various property despite Kevin’s objections. Overall, the record demonstrates that the distribution of property was equitable.

[¶53.] Further, the trial court found that there was insufficient evidence to support Carmen’s request for a credit of $6,000. The record supports this finding. First, when Carmen was asked at trial about the cash she allegedly paid Kevin, Carmen initially indicated the amount was $5,000, but later stated it was $6,000. Next, it was unclear whether the $6,000 Carmen claimed she paid Kevin came from her own personal account, or whether it was Kevin’s money. Finally, Carmen failed to provide any evidence, such as account statements, to support her testimony. Therefore, the trial court did not err in finding the evidence was insufficient to support Carmen’s claim. As a result, the trial court did not abuse its discretion in dividing the property when it denied Carmen’s request for a credit of $6,000.

[¶54.] 6. Whether the trial court abused its discretion in denying Carmen’s request for attorney fees of more than $370,000.

[¶55.] Generally, trial courts may award attorney fees in cases involving divorce, support, or alimony. SDCL 15-17-38. A two-step analysis is used by courts in determining whether to award attorney fees. Urbaniak v. Urbaniak, 2011 S.D. 83, ¶ 31, 807 N.W.2d 621, 628.

First, the court must determine what constitutes a reasonable attorney’s fee. This requires consideration of (1) the amount and value of the property involved, (2) the intricacy and importance of the litigation, (3) the labor and time involved, (4) the skill required to draw the pleadings and try the case, (5) the discovery utilized, (6) whether there were complicated legal problems, (7) the time required for the trial, and (8) whether briefs were required. Second, it must determine the necessity for such fee. That is, what portion of that fee, if any, should be allowed as costs to be paid by the opposing party. This requires consideration of the parties’ relative worth, income, liquidity, and whether either party unreasonably increased the time spent on the case.

Id. (quoting Edinger v. Edinger, 2006 S.D. 103, ¶ 17, 724 N.W.2d 852, 858).

[¶56.] In this case, Carmen requested that the trial court order Kevin to pay her attorney fees of over $370,000. However, the trial court denied this request and ordered the parties to pay their own attorney fees. In denying Carmen’s request for attorney fees, the trial court considered the appropriate factors and specifically found that each party had sufficient assets to pay his or her own attorney fees. The fact that Kevin has more liquid assets than Carmen does not mean that Kevin is required to pay Carmen’s attorney fees. Further, the trial court found that Carmen increased her own litigation costs by calling numerous experts, including some that were cumulative and/or unpersuasive. Finally, the trial court found that Kevin did not engage in conduct that increased Carmen’s costs. These findings were supported by the record. Therefore, the trial court did not abuse its discretion in denying Carmen’s request for attorney fees.

[¶57.] Additionally, both parties submitted motions for appellate attorney fees in this case. Kevin requests appellate attorney fees and costs of $11,030.05. Carmen requests appellate attorney fees and costs of $29,910.78. Upon consideration of the factors described above, we conclude that neither party is entitled to an award of appellate attorney fees. As a result, the parties’ motions for appellate attorney fees are denied.

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See: http://www.sdjudicial.com/Uploads/opinions/26101.pdf

Outcome: [¶58.] The trial court’s extensive amended findings of fact and conclusions of law demonstrate that the trial court thoroughly reviewed the evidence and weighed it accordingly. The amended findings of fact are supported by the record and are not clearly erroneous. Furthermore, the trial court’s resolution of the issues disputed by the parties is supported by the evidence. As a result, the trial court’s decisions as to custody, child support, property division, and attorney fees were not an abuse of discretion. Affirmed.

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