GILBERTSON, Chief Justice.
[¶ 1.] On July 12, 2011, the trial court granted Kevin Schieffer and Carmen Schieffer a divorce on grounds of irreconcilable
[¶ 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.
[¶ 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.
[¶ 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
[¶ 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
[¶ 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.
[¶ 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).
[¶ 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:
Kreps, 2010 S.D. 12, ¶ 26, 778 N.W.2d at 843-44. Subfactors examined when considering stability include:
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
[¶ 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.
[¶ 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.
[¶ 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
[¶ 30.] SDCL 25-5-7.1 provides:
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.
[¶ 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.
[¶ 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
[¶ 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
[¶ 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.
[¶ 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,
[¶ 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
[¶ 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.
[¶ 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.
[¶ 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.
[¶ 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.
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.
[¶ 58.] The trial court's extensive amended findings of fact and conclusions of law demonstrate that the trial court
[¶ 59.] SEVERSON and WILBUR, Justices, concur.
[¶ 60.] KONENKAMP and ZINTER, Justices, concur in part and dissent in part.
KONENKAMP, Justice (concurring in part and dissenting in part).
[¶ 61.] In this case, the father earns a monthly income of better than $176,000. Yet the trial court limited his child support payment to the guideline amount for parents earning a combined monthly income of $20,000. With a single sentence, the court rejected the mother's entire budget: "The court discredits her expenses as inflated, speculative, and unreliable." No details were given on how, in the court's view, all the mother's expenses were objectionable. Acting under the misbelief that the tables in the child support schedule set the limit for gauging standard of living, the court found that the mother "would be the driving force behind setting a standard of living that is inconsistent with the guideline amounts." This was an error of law, as well as an abuse of discretion.
[¶ 62.] Our child support schedule, based on average family expenditures, is only a starting point for high-income earners. No presumption exists in South Dakota that the correct child support for high earners is the ceiling amount set out in the schedule tables. On the contrary, "For a combined net income above the schedule in § 25-7-6.2, 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 (emphasis added). What measure, then, should be used to determine the "appropriate level" of child support for parents earning extraordinarily high incomes?
[¶ 63.] Certainly, in this type of case, it would be unsuitable to order child support calculated purely by linear upward extrapolation from the income and support amounts listed in the guidelines. Such an arbitrary method would have no necessary relationship to the children's needs or standard of living, and might well infringe upon the parents' shared right to make lifestyle choices for their children. When earnings exceed the guideline schedule, therefore, the Legislature left to the courts the work of setting the "appropriate" child support, most likely because such awards defy mathematical formulas. On the other hand, limiting the award to the ceiling amount provided in the base schedule ignores the legislative command that for higher level income the "child support obligation shall be established at an appropriate level" considering needs in context with standard of living. See id. (emphasis added). Since high-income families live well above subsistence levels, both needs and standard of living must be considered in the parents' distinctive circumstances. Where high wealth is concerned, necessities and luxuries are relative.
[¶ 64.] In affirming the child support award, this Court proclaims that trial courts are not required to go above the guidelines, without considering the trial court's erroneous view of the law and the significant variance this case presents. Little guidance can be gleaned from the cases the Court cites. In Bloom, the paying parent earned something over $4,000 a
[¶ 65.] Children should share in their parents' standard of living. In measuring standard of living for child support purposes, the test is not whether the high-income payer chooses to live a frugal lifestyle, as the Court here seems to suggest; the test is to determine the standard of living the children would have enjoyed had it not been for the divorce. See Billion, 1996 S.D. 101, ¶ 41, 553 N.W.2d at 235 (citing Ochs, 538 N.W.2d at 531). That measure incorporates both parents' values. Indeed, our child support guidelines are premised on the belief that children are entitled to the same level of expenditures they would have received had the parents lived together and combined their financial resources. See Report of the South Dakota Commission on Child Support (December 2008). And the job of the trial court is to reconcile the critical tension between competing parents to ascertain the appropriate standard of living.
[¶ 66.] In jurisdictions where these questions arise more frequently, courts have embraced "the recognition that the appropriate standard of living for a child of affluent parents is affluence matching that of the parents...." Laura W. Morgan, Child Support Guidelines Interpretation & Application § 8.07, Deviating from the Guidelines (2013). One parent cannot control the children's standard of living. Id. Seldom have we had occasion to examine child support for extremely high-income earners such as here, but in cases where the income was well above the guidelines, we have generally espoused a similar view. See Ochs, 538 N.W.2d at 531 (child can "partake in some of his father's high standard of living while he is with his mother"); Evans, 1997 S.D. 16, ¶ 17, 559 N.W.2d at 244 (child support provided "luxurious lifestyle" for the children).
[¶ 67.] It is always a matter of balance, of course, between setting an amount that will care for the children's actual needs and permit them to enjoy a standard of living commensurate with what they would have had if the parents had not been divorced. This does not mean that children must be supported at the highest standard of living attainable by the parents' income.
[¶ 68.] As other courts have noted, child support should provide the receiving parent with adequate resources to support the children in a lifestyle the parents would have had if they remained together. See Nash v. Mulle, 846 S.W.2d 803, 805 (Tenn.1993) (one of the primary goals of guidelines is to allow children of wealthy parents to share in a very high standard of living); see also Bagley v. Bagley, 98 Md.App. 18, 632 A.2d 229, 238 (1993) (children of affluent noncustodial parents are entitled to benefits of affluent standard of living). Reasonable needs of affluent children may include items that would be frivolous for children of less-well-off parents. In re Marriage of Nimmo, 891 P.2d 1002, 1007 (Colo.1995) (children entitled to "fruits of one parent's good fortune"). Where courts fail to account for a high earner's standard of living in setting child support, an abuse of discretion occurs.
[¶ 69.] The Court makes much of the fact that the father must pay, in addition to child support, ninety-five percent of the children's expenses. But most of these payments go toward the parents' special-needs daughter. These costs include supplemental expenses, such as therapy, her potential SEIT, nutritional supplements, and possible private school tuition. Also, the father pays uncovered medical costs, and the children's health insurance. None of these amounts goes toward the children's standard of living. This Court also emphasizes that the parents share custody of the children. Yet the father did not request any abatement or cross-credit, and the circuit court specifically found that "[a]batement or shared parenting cross-credit are discretionary and are not warranted under the facts of this case."
[¶ 70.] Considering the father's income of over $176,000 a month and the parents' combined income of $185,000 per month, the child support award of $2,815 for two children was inadequate to provide for their needs and standard of living. This matter should be reversed and remanded for a new determination of "appropriate" child support based on the record and arguments of counsel.
ZINTER, Justice (concurring in part and dissenting in part).
[¶ 71.] I concur on all issues except the matter of child support. On that issue, I join Justice Konenkamp's dissent.
[¶ 72.] I write to explain the trial court's error in calculating the base child support. In its analysis, the court first noted the disparity in the parties' incomes. Because of that disparity, the court indicated
[¶ 73.] But the court erred as a matter of law in then determining the base obligation to prorate.
[¶ 74.] The base obligations in the guidelines are based on economic data reflecting the different cost of raising children in households as monthly incomes increase up to $20,000.
Therefore, even if the parties cannot agree on the terms and conditions of SEIT services for AC-AS, Kevin does not have the ability to block AC-AS's receipt of SEIT services altogether. Instead, a mediator or Parenting Coordinator will resolve any disputes (keeping in mind that the trial court specifically gave Carmen the authority to make the initial determination of whether or not to utilize SEIT services for AC-AS).