text:
    2007 ND 194
    Shelly EVENSON, Plaintiff and Appellant v. John T. EVENSON, Defendant and Appellee.
    No. 20060148.
    Supreme Court of North Dakota.
    Dec. 13, 2007.

      Neil W. Fleming (argued) and Lawrence D. DuBois (on brief), Fleming, DuBois & Fleming, P.L.L.P., Cavalier, N.D., for plaintiff and appellant.
    Alan M. McDonagh, Carter McDonagh, P.L.L.P., Grand Forks, N.D., for defendant and appellee.
   MARING, Justice.

[¶ 1] Shelly Rae Evenson appeals from an amended judgment granting her a divorce from John T. Evenson, dividing their marital property, setting his child support obligation, granting her spousal support, and awarding neither party attorney fees. Shelly Evenson also appeals from an order denying her motion for a new trial and for relief from the judgment. We conclude the district court’s findings on the value of the marital property and John Evenson’s child support and spousal support obligations are not clearly erroneous, and the court did not abuse its discretion in refusing to award Shelly Evenson attorney fees and in denying her post-trial motions. We affirm.

I

[¶ 2] The parties were married in 1985. At the time of the marriage, Shelly Even-son had completed her education at St. Luke’s School of Nursing and was working full-time as a registered nurse. John Ev-enson had one year of college left at North Dakota State University, where he completed school with a degree in education, concentrating in mathematics. After John Evenson graduated, the parties moved to Edinburg. John Evenson began working as a loan officer with Farm Credit Services, and the parties moved to Langdon. After the first of their four children was born, Shelly Evenson worked at hospitals in Langdon and Park River. The family eventually moved back to Edinburg. Throughout the marriage and birth of the other children, Shelly Evenson continued to work part-time as a registered nurse in the area. John Evenson eventually left his job at Farm Credit Services and worked as a loan officer and insurance agent for area banks.

[¶ 3] In January 2000, John Evenson quit his employment as a bank loan officer and opened his own multi-peril crop insurance agency, Tri-County Insurance, which he operated as a sole proprietorship. He sold insurance to many of his former clients from the area banks where he had been employed. He also accepted employment with Cenex Harvest States performing accounting and collection services for the company. Shelly Evenson • began doing administrative work for the insurance agency from its inception, and by 2001, she was working full-time at the agency. By 2002, she had also become a licensed multi-peril crop insurance agent. John Evenson continued working at Cenex Harvest States until March 2004, when his position was “discontinued.”

[¶ 4] Shelly Evenson brought this divorce action in August 2003. The parties stipulated that Shelly Evenson would have physical custody of the three children who were still minors. Following the trial, the district court found the net value of the parties’ marital estate to be $284,211.44, which was subsequently amended to $277,211.44. The court awarded Shelly Evenson approximately 52 percent of the net marital property, including the parties’ newly-completed home. The court awarded John Evenson approximately 48 percent of the net marital estate, including the Tri-County Insurance business. Shelly Evenson was awarded most of the parties’ liquid assets, including a $67,550 cash distribution from John Evenson payable in $15,000 annual installments with interest. The court ordered John Evenson to pay $1,809 per month for child support and awarded Shelly Evenson $700 per month in spousal support for four years and $400 per month for an additional two-year period. The court further ordered the parties to pay their own attorney fees. Shelly Evenson moved to amend the findings of fact, and the court denied the motion in part and granted the motion in part. Shelly Evenson subsequently moved for a new trial and for relief from the judgment under N.D.R.Civ.P. 59 and 60, but the court denied the motion.

II

[¶ 5] Shelly Evenson argues the district court erred in valuing the crop insurance business, Tri-County Insurance, at $135,000.

[¶ 6] In Olson v. Olson, 2002 ND 30, ¶ 7, 639 N.W.2d 701, this Court said:

The value a trial court places on marital property depends on the evidence presented by the parties. See Fox v. Fox, 2001 ND 88, ¶ 22, 626 N.W.2d 660. Because a trial court is in a far better position than an appellate court to observe demeanor and credibility of witnesses, we presume a trial court’s property valuations are correct. See Hoverson v. Hoverson, 2001 ND 124, ¶ 13, 629 N.W.2d 573. We will not reverse a trial court’s findings on valuation and division of marital property unless they are clearly erroneous. See Corbett v. Corbett, 2001 ND 113, ¶ 12, 628 N.W.2d 312. “A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, there is no evidence to support it, or if, although there is some evidence to support it, on the entire evidence the reviewing court is left with a definite and firm conviction a mistake has been made.” Kautzman v. Kautzman, 1998 ND 192, ¶ 8, 585 N.W.2d 561. “A choice between two permissible views of the evidence is not clearly erroneous if the trial court’s findings are based either on physical or documentary evidence, or inferences from other facts, or on credibility determinations.” Hoverson, at ¶ 13. Marital property valuations within the range of evidence presented to the trial court are not clearly erroneous. See id.; Fox, at ¶ 19; Wald v. Wald, 556 N.W.2d 291, 295 (N.D.1996).

Ordinarily, the proper method of valuing marital property in a divorce is the fair market value as of the date of trial. See Hoverson v. Hoverson, 2001 ND 124, ¶ 12, 629 N.W.2d 573; Barth v. Barth, 1999 ND 91, ¶ 8, 593 N.W.2d 359. Business property need not be liquidated for a distribution to be equitable. Holden v. Holden, 2007 ND 29, ¶ 14, 728 N.W.2d 312. “It is not usually wrong for a trial court to accept the valuations submitted by one spouse over the other’s, or to weigh one spouse’s value testimony more heavily.” Braun v. Braun, 532 N.W.2d 367, 370 (N.D.1995).

[¶ 7] The parties’ expert witnesses agreed that the most common method of determining the fair market value of an insurance business is to apply a multiplier to the total amount of the agency’s gross commissions over a period of time. The witnesses testified relevant factors for computing the value included the loss ratios on the policies sold, the volume of business, the retention of business, and the company reinsurance agreements which established the commission rates. The district court found the gross premiums for Tri-County Insurance were $114,315 with a 229.19 percent loss ratio for 2000; $144,759 with a 146.08 percent loss ratio for 2001; $179,427 with a loss ratio of 168.34 percent for 2002; $174,883 with a loss ratio of 135 percent for 2003; and $130,488.40 with a loss ratio of 181 percent for 2004.

[¶ 8] Shelly Evenson asserted at trial that the value of the business should be determined by taking a three-year average of gross commissions from 2001 through 2003 and applying a multiplier of 1.75, resulting in a value of $296,674.47. Her expert witness, Timothy L. Dvorak, testified a multiplier of 1.5 would be “reasonable” under current circumstances, and that a multiplier of 1.75 would be “the upper range today.” John Evenson proposed in his property and debt listing that the court average the gross commissions during the first four years of the business and apply a multiplier of 1.0, resulting in a value of $146,666.06. The district court, however, found averaging annual gross commissions, “will not serve the purpose of fairly valuing the business at the time of trial.” Rather than adopting one of the values proposed by the parties, the court applied the gross commissions for the most recent year of business, 2004, to a multiplier of 1.0 and found the value of TriCounty Insurance to be $135,000.

[¶ 9] Shelly Evenson argues the district court erred in its valuation of the business because neither party proposed basing the value on only the gross commissions from 2004. She further asserts those figures are suspect because the parties were separated during 2004. There is, however, support in the record for the court’s valuation.

[¶ 10] Shelly Evenson’s expert witness, Dvorak, testified that “current conditions” of the past year were a factor in valuating an insurance business. He testified “we use an average or also, a single year. And generally go by current conditions. With a little bit of speculation in the future.” The court also rejected the suggestion that John Evenson had intentionally decreased Tri-County Insurance’s income in 2004. The court found that John Evenson had lost numerous clients between 2003 and 2004 based on circumstances beyond his control and there was little likelihood they would be replaced by new clients from the area. The court decided to use a multiplier of 1.0 based on the agency’s “steady decrease in commission rates” caused by the high loss ratios suffered in the previous years and found “this pattern of decreased commission rates will continue.” The court reasoned:

North Dakota has experienced high loss ratios exceeding premium rates over the past recent years. In this state those loss ratios are more severe north of Highway Two. They are even more severe in the locality of the farm operations of the clients of Tri-County Insurance Agency. Those loss ratios are consistent with the wet weather conditions testified to by different witnesses. This testimony does not favor a higher value for this agency.

[¶ 11] Furthermore, the court specifically found unpersuasive Dvorak’s proposed multipliers of 1.5 or 1.75 because “his agency’s use of a 1.75 multiplier for the purchase of another area agency was four years ago, when the crop insurance business environment was far more positive.” The court found persuasive the testimony of Curt Christofferson, regional manager for NAU Country Insurance Company, who believed, under the current circumstances, a multiplier of 1.0 would be the most appropriate. The court concluded:

Considering all of the above, this court finds that a multiplier of one is the most appropriate figure to use as the primary basis to calculate the agency’s fair market value at the time of trial. For reasons already noted, the use of multiple years in reaching an average of annual commissions is not appropriate. Certainly there are some factors that would support the use of an average. Crop values fluctuate year to year. Loss ratios fluctuate year to year. Individual .clients tend to increase coverages. By the same token, commission rates have been decreasing for this agency directly related to the continued high crop loss ratios. Ultimately this court is satisfied that at the time of trial the agency has a value of at least $130,884.00. It is also of the conclusion that just as the agency lost some clients in 2004, that for some of those reasons he may also gain clients from another agency this year or the next. That is a fluctuation that causes this court to at least note the higher income John received in 2003 and 2002. Finally, the agency’s reputation and that of its primary agent, John Evenson is high. He is well regarded by his peers with his knowledge and administration of the agency. Considering all of the factors above, including the use of one as a multiplier, this court is of the conclusion that an appropriate fair market value to place on the agency is $135,000.00.

[¶ 12] We are not left with a definite and firm conviction that the district court made a mistake in valuing Tri-County Insurance at $135,000. We conclude the valuation is within the range of the evidence presented and is not clearly erroneous.

III

[¶ 13] Shelly Evenson argues the district court erred in distributing the marital property because it failed to consider John Evenson’s savings account as part of the marital estate or require him to explain the depletion of the account assets.

[¶ 14] The savings account had an ending balance of $61.69 as of December 30, 2004. Shelly Evenson claimed the account should have contained between $36,000 and $81,000. John Evenson testified it had been his practice to place Tri-County Insurance proceeds into his business account, and then transfer those funds into his personal savings account. He testified the funds in his savings account were used to pay business expenses as well as interim child and spousal support, mortgage payments, insurance, real estate taxes, lines of credit, and legal fees. He presented general account ledgers establishing how the funds were spent and transferred to an account that was treated as part of the marital estate. Shelly Evenson’s argument that the court failed to consider this account is without merit.

IV

[¶ 15] Shelly Evenson argues the district court miscalculated John Even-son’s child support obligation because it failed to include income he had earned from Cenex Harvest States.

[¶ 16] Child support determinations involve questions of law subject to a de novo standard of review, findings of fact subject to a clearly erroneous standard of review, and may include matters of discretion subject to an abuse of discretion standard of review. Marchus v. Marchus, 2006 ND 81, ¶ 6, 712 N.W.2d 636.

[¶ 17] The district court used a four-year average to compute John Evenson’s annual self-employment income at $90,382.75. See N.D. Admin. Code § 75-02-04.1-05(4) (although usually requiring a five-year average for self-employment activity, a shorter period may be used “[w]he.n self-employment activity has not been operated on a substantially similar scale for five years”). The court also included his interest income to arrive at- a gross annual income of $90,787.75.

[¶ 18] From 2000 through March 2004, John Evenson also received wage income from Cenex Harvest States where he worked in accounting and collection. The court refused to include this income for child support purposes based on N.D. Admin. Code § 75-02-04.1-02(8), which provides in part: “If circumstances that materially affect the child support obligation are very likely to change in the near future, consideration may be given to the likely future circumstances.” The court found that the Cenex Harvest States job was a temporary position that had been eliminated in March 2004 and the income from that position would no longer be available to John Evenson. The court found elimination of the job “materially effects [sic] the child support obligation” and John Evenson’s past income from that position “should not be considered for any future circumstances relating to child support.” Compare In re F.R.S., 2002 ND 191, ¶ 6, 653 N.W.2d 659 (court’s finding that obligor would not continue his out-of-state custom harvesting operations was not clearly erroneous and court properly refused to include losses from the out-of-state custom harvesting for computing income because those past losses were not the best predictor of his future income).

[¶ 19] We conclude the district court’s finding that the Cenex Harvest States job was only a temporary position that had been eliminated is not clearly erroneous, and the court did not err in failing to include that income in computing John Ev-enson’s child support obligation.

V

[¶ 20] Shelly Evenson argues the district court erred in awarding her spousal support of $700 per month for four years and $400 per month for an additional two-year period.

[¶ 21] A spousal support determination, including the amount and the duration, is a finding of fact which will not be reversed on appeal unless it is clearly erroneous. Wagner v. Wagner, 2007 ND 33, ¶ 5, 728 N.W.2d 318; Beals v. Beals, 517 N.W.2d 413, 416 (N.D.1994); LaVoi v. LaVoi, 505 N.W.2d 384, 385 (N.D.1993). Any spousal award is to be based on consideration of the Ruff-Fischer guidelines weighing:

the respective ages of the parties, their earning ability, the duration of the marriage and conduct of the parties during the marriage, their station in life, the circumstances and •'ecessities of each, their health and physical condition, their financial circumstances as shown by the property owned at the time, its value at the time, its income-producing capacity, if any, whether accumulated before or after the marriage, and such other matters as may be material.

Sack v. Sack, 2006 ND 57, ¶ 11, 711 N.W.2d 157 (quoting Staley v. Staley, 2004 ND 195, ¶ 8, 688 N.W.2d 182).

[¶ 22 ¡ During tria!, Shelly Even-son requested a spousal support award of $700 per month for seven years. The district court found that the monthly expenses claimed by the parties were “excessive in light of the limited funds that will be available ... to provide for them.” The district court recognized the limited amount of Shelly Evenson’s income at this time, but further found that, after deducting net monthly expenses from net monthly income, John Evenson would have $2,900 per month remaining to pay his obligations under the divorce judgment. These obligations included his $1,809 monthly child support obligation, his $700 per month spousal support obligation, and his $15,000 annual cash distribution to Shelly Evenson. In setting the amount and duration of support, the court specifically referenced its findings regarding the valuation of Tri-County Insurance. Those findings indicate that John Evensoris income from his crop insurance business will more likely decrease than increase in the future.

[¶ 23] Given Shelly Evenson’s request for $700 per month for seven years and the court’s award of that amount for four years followed by $400 per month for two years, and considering the court’s concern over the continued vitality of John Even-soris crop insurance business, we cannot say on this record the amount and duration of the spousal support award is clearly erroneous. If circumstances change and Tri-County Insurance’s business flourishes in the future, Shelly Evenson may move to modify the spousal support provisions of the divorce judgment. See Beals, 517 N.W.2d at 416.

VI

[¶ 24] Shelly Evenson argues the district court erred in firing uo award her attoiiir > n . urn? case.

[¶ 25] Under N.D.C.C. § 14-05-23, a district court in divorce proceedings has discretion to award attorney fees based on one spouse’s need and the other’s ability to pay, and the court’s decision on the matter will not be reversed on appeal unless the court abused its discretion. Jelsing v. Peterson, 2007 ND 41, ¶ 22, 729 N.W.2d 157. In making its decision, the court should consider the property owned by each party, their relative incomes, whether property is liquid or fixed assets, and whether the actions of either party have increased the time spent on the case. Dvorak v. Dvorak, 2006 ND 171, ¶ 24, 719 N.W.2d 362. A court abuses its discretion when it misinterprets or misapplies the law. Wagner v. Wagner, 2007 ND 101, ¶ 22, 733 N.W.2d 593.

[¶ 26] The parties have incurred substantial attorney fees in this divorce action. Each has had more than one attorney represent them in the proceedings. The court noted that John Evenson has paid more than $21,000 for his attorney fees and continues to owe about $14,750. He also paid almost $8,000 in custody investigator fees and had previously paid $6,000 of Shelly Evenson’s attorney fees. Shelly Evenson still owes about $31,250 for her attorney fees. The court ordered the parties to pay their own attorney fees because: (1) both parties were at fault through their conduct for the high fees; (2) Shelly Evenson was awarded more liquid assets and a cash distribution; and (3) John Evenson could not afford to pay her attorney fees in view of his other obligations under the divorce judgment.

[¶ 27] The district court considered the appropriate factors under the law. We conclude the court did not abuse its discretion in refusing to award Shelly Evenson her attorney fees in this case.

VII

[¶28] Shelly Evenson argues the district court erred in denying her motion for a new trial under N.D.R.Civ.P. 59(b)(4) and for relief from the judgment under N.D.R.Civ.P. 60(b)(ii) based on newly discovered evidence of John Evenson’s 2004 tax return. She contends use of the tax return would have increased John Even-son’s child support obligation and the valuation of Tri-County Insurance.

[¶ 29] Although the district court ruled the motion was untimely, the court also addressed the merits and concluded the tax return did not constitute newly discovered evidence. It is unnecessary to decide whether the motion was timely because, even if it was, we conclude the court did not err in denying the motion on the merits.

[¶ 30] In Johnson v. Johnson, 2001 ND 109, ¶ 6, 627 N.W.2d 779, this Court stated:

Under N.D.R.Civ.P. 59(b)(4), the court may vacate a decision and grant a new trial if there is newly discovered material evidence that the party, with reasonable diligence, could not have discovered and produced at the trial. Before a new trial is granted on the ground of newly discovered evidence, it must be shown: 1) the evidence was discovered following trial; 2) the movant must have exercised due diligence in discovering the evidence; 3) the evidence must not be merely cumulative or impeaching; 4) the evidence must be material and admissible; and 5) the evidence must be such that a new trial would probably produce a different result.

A district court’s decision on a motion for new trial or for relief from the judgment on the basis of newly discovered evidence under N.D.R.Civ.P. 59(b)(4) and N.D.R.Civ.P. 60(b)(ii) will not be reversed on appeal unless the court abused its discretion. Johnson, at ¶ 6; Bender v. Beverly Anne, Inc., 2002 ND 146, ¶ 18, 651 N.W.2d 642.

[¶ 31] Events occurring after trial do not qualify as newly discovered evidence to justify a new trial. See Johnson, 2001 ND 109, ¶ 7, 627 N.W.2d 779; Porter v. Porter, 274 N.W.2d 235, 242-43 (N.D.1979). Consequently, under either N.D.R.Civ.P. 59 or N.D.R.Civ.P. 60, evidence must have been in existence at the time of trial to constitute newly discovered evidence. See 11 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure: Civil 2d § 2859 (1995). The trial in this case occurred the last week of January 2005, and no 2004 tax return had been prepared at that time. John Evenson testified he had not received all of his 1099 forms, and his certified public accountant who prepared his tax returns testified he had not received all of the information necessary to prepare the tax return.

[¶ 32] The district court noted the insurance companies that paid John Evenson income had until January 31 to issue 1099 forms, and because the parties were aware the 2004 tax return was not available, they attempted to reconstruct his income for the year from other exhibits during the trial. In concluding the “2004 tax return as an evidentiary exhibit is a post trial document, and because it did not exist at the time of trial it does not fall under the category of newly discovered evidence,” the district court said:

[John Evenson] correctly notes that neither [Shelly Evenson] nor her attorney made any objection to the lack of availability of the 2004 income tax return, and made no request that the record remain open to allow its introduction and consideration. There was no order sought compelling [John Evenson] to complete and tender the 2004 income tax return. Rather, both litigants accepted the fact that the return was not available and would not be available, and therefore proceeded accordingly. Under the totality of circumstances this was reasonable and this court does not fault [Shelly Evenson] in this regard. A litigation’s timeline for evidence can never be so exact. Because the child support guidelines for calculating child support directed that the tax returns be the foundational basis for calculating income, that was the method used by this court as it relates to child support calculations. [Shelly Evenson’s] remedy is to seek a modification of her child support for years subsequent to that following the entry of the amended judgment and decree pursuant to N.D.C.C. 14-09-08.9.

Regarding the tax return’s possible effect on the valuation of Tri-County Insurance, the court noted Shelly Evenson was attempting to change the theory of her case in the treatment of commissions by using a “cash method” rather than the “accrual method” the parties had agreed upon at trial. A new trial will not be granted to enable the movant to present her case under a different theory than she adopted at trial. Rummel v. Rummel, 234 N.W.2d 848, 853 (N.D.1975).

[¶ 33] We conclude the district court did not abuse its discretion in denying Shelly Evenson’s post-trial motion.

VIII

[¶ 34] We have considered the other arguments presented and conclude they do not affect our decision. The amended judgment and order denying Shelly Even-son’s post-trial motion are affirmed.

[¶ 35] GERALD W. VANDE WALLE, C.J., and CAROL RONNING KAPSNER, and DANIEL J. CROTHERS, JJ., concur.

DALE V. SANDSTROM, concurs in the result.


source: Caselaw Access Project

author: ZINTER, Justice. GILBERTSON, Chief Justice

license: Public Domain

text:
    2007 SD 122
    STATE of South Dakota, Plaintiff and Appellee, v. Joshua Steven BECKLEY, Defendant and Appellant.
    No. 24062.
    Supreme Court of South Dakota.
    Considered on Briefs Feb. 13, 2007.
    Decided Dec. 5, 2007.

      Lawrence E. Long, Attorney General, Craig M. Eichstadt, Deputy Attorney General, Attorneys for plaintiff Pierre, South Dakota and appellee.
    Steven R. Binger, Attorney for defendant Sioux Falls, South Dakota and appellant.
   ZINTER, Justice.

[¶ 1.] Joshua Beckley (Beckley) appeals his conviction of possession of a controlled substance. He contends that the trial court failed to properly advise him of his right to compel witnesses prior to receiving his guilty plea. He also contends that the trial court abused its discretion in refusing to continue the sentencing hearing to allow a psychological evaluation. We affirm on the advisement of rights issue, but reverse and remand for resen-tencing for the failure to grant the continuance.

[¶2.] After being previously told to leave, Beckley was observed videotaping a young woman at a retail store in Sioux Falls. He was again asked to leave and law enforcement responded. Earlier that day Beckley was involved in another incident where he stopped two young women in a car, approached them with a video camera, and asked them to get out of their vehicle. He claimed he was a city employee investigating littering. The women refused his request, left the scene, and reported the incident to law enforcement.

[¶ 3.] During a search incident to his subsequent arrest, methamphetamine was found in Berkley’s sock and a methamphetamine pipe with residue was found in his vehicle. While he was free on bond on these charges, Beckley was observed taking pictures of a young girl from behind. In yet another incident, Beckley was observed staring in windows and attempting to enter a university dormitory wearing only underwear and a tank top. In a final incident, Beckley was arrested for driving under the influence. As a result of the foregoing conduct, Beckley was charged with possession of methamphetamine, possession of drug paraphernalia, unlawful occupancy, window peeking and third offense driving under the influence.

[¶ 4.] On April 6, 2005, Beckley was arraigned before Magistrate Judge Julie Irvine. During the arraignment he was advised of his constitutional and statutory rights, including the right to compel witnesses. On May 16, 2005, Beckley appeared before Circuit Judge Peter H. Lieberman for a second arraignment. Beckley was again advised of his constitutional and statutory rights, including the right to compel witnesses. Thereafter, Beckley entered into a plea agreement under which he agreed to plead guilty to possession of methamphetamine in exchange for a dismissal of the remaining charges and reduction of the third offense DUI to a misdemeanor.

[¶ 5.] On January 13, 2006, Beckley appeared with counsel at his change of plea hearing. Judge Lieberman again informed Beckley of his constitutional and statutory rights, but this time did not inform him of his right to compel witnesses. The court did, however, canvass defense counsel concerning Beckley’s understanding of his rights. Counsel indicated Beck-ley understood the consequences of his plea after their “considerable discussion.” Beckley then entered a guilty plea to possession of methamphetamine. The DUI charge was the subject of a separate proceeding that is not at issue in this appeal.

[¶ 6.] On March 8, 2006, Beckley appeared for sentencing on the methamphetamine offense. Judge Lieberman asked Beckley’s separate counsel on the DUI charge if she and Beckley had also discussed his constitutional and statutory rights. She indicated they had. Defense counsel on the methamphetamine charge then attempted to call two sentencing mitigation witnesses and sought a continuance to obtain psychological testing at the defendant’s own expense to be utilized at sentencing. This motion for the continuance was accompanied by a subpoena for Jack Dodge, a former doctor and one of Beckley’s fellow inmates who was awaiting sentencing on federal drug charges. Counsel sought to call Dodge as a witness to Beckley’s mental state, which would have further supported the request for the psychological testing in mitigation of punishment. A handwritten note from Dodge explained the nature of his proposed testimony. The motion was finally supported by an affidavit of counsel indicating that the continuance was necessary because of a conflict in the scheduling of a professional examination. The circuit court denied the request to call the witness and denied the request for a continuance. Beckley was sentenced to eight years in the state penitentiary. He appeals raising two issues.

I.

[¶ 7.] Whether Beckley should be allowed to withdraw his guilty plea because the sentencing court did not advise him of his right to compel witnesses prior to receiving the guilty plea.

[¶ 8.] “[I]n order for a conviction based upon a guilty plea to stand the plea must be intelligent and voluntary. Such a plea is intelligent and voluntary when the accused has a full understanding of his constitutional rights and, having that understanding, waives these rights by a plea of guilty.” Lodermeier v. State, 273 N.W.2d 163, 164 (S.D.1978) (citations omitted). SDCL 23A-7-4 (Rule 11(c)) “establishes a procedure for the judge to follow to ensure that a guilty plea is knowing and voluntary.” State v. Goodwin, 2004 SD 75, ¶ 7, 681 N.W.2d 847, 850. That statute provides:

Before accepting a plea of guilty or nolo contendere a court must address the defendant personally in open court, subject to the exception stated in 23A-7-5, and inform him of, and determine that he understands, the following:
(1) The nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law;
(2) If the defendant is not represented by an attorney, that he has the right to be represented by an attorney at every stage of the proceedings against him and, if necessary, one will be appointed to represent him;
(3) That he has the right to plead not guilty or to persist in that plea if it has already been made, and that he has the right to assistance of counsel, the right to confront and cross-examine witnesses against him, and the right not to be compelled to incriminate himself;
(4) That if he pleads guilty or nolo contendere there will not be a further trial of any kind, so that by pleading guilty or nolo contendere he waives the right to a trial, the right to confront and cross-examine witnesses against him, and the right not to be compelled to incriminate himself; and
(5) That if he pleads guilty or nolo contendere, the court may ask him questions about the offense to which he has pleaded, and if he answers these questions under oath, on the record, and in the presence of counsel, his answers may later be used against him in a prosecution for perjury.

[¶ 9.] Although SDCL 23A-7-4 does not specifically require an advisement of the right to compel witnesses, both the United States and South Dakota Constitutions guarantee that right. US Const amend VI; SD Const art VI, sec 7. This Court has reiterated the United States Supreme Court’s characterization of the right to compulsory process:

The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant’s version of the facts as well as the prosecution’s to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution’s witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law.

State v. Wiegers, 373 N.W.2d 1, 8 (S.D.1985) (quoting Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019, 1023 (1967)).

[¶ 10.] Although compulsory process has been recognized as a fundamental element of due process, the failure to advise a defendant of all constitutional and statutory rights does not necessarily vitiate a guilty plea. For example, SDCL 23A-7-4 has been characterized as only a “procedural safeguard” for determining that a guilty plea is knowing and voluntarily entered. State v. Miller, 2006 SD 54, ¶ 18, 717 N.W.2d 614, 620. “There is no requirement that the record show an express enumeration by the court nor an express waiver by the defendant ... as a condition precedent to a voluntary and intelligent guilty plea.” State v. Moeller, 511 N.W.2d 803, 810 (S.D.1994) (citation omitted). Furthermore, even “[sjpecific articulation of the Boykin rights by the trial judge is not an indispensable requisite for the record to establish a valid plea.” Id. “It is sufficient when the record in some manner shows the defendant entered his plea understanding^ and voluntarily.” Id. “The record need only show that he knew of his rights and the consequences of his guilty plea.” Id.

[¶ 11.] Beckley, however, cites this Court’s decision in State ex rel. Henning v. Jameson, 71 S.D. 144, 22 N.W.2d 731 (1946), for the proposition that the failure to advise of the right to compel witnesses before receiving a guilty plea requires automatic reversal. In that case, this Court held that a failure to advise a pro se defendant of various rights, including the right to confront the witnesses against him, the right to compulsory process for the witnesses on his behalf, and the right to a speedy public trial by an impartial jury of the county was a jurisdictional defect entitling the defendant to habeas relief when the record indicated the defendant did not sufficiently understand these rights. Id. at 732-33. At the time Hen-ning was decided, this Court recognized a presumption that a defendant represented by counsel waived these rights by a guilty plea; however, a pro se defendant did not. Id. This dichotomy was abandoned following the United States Supreme Court decision in Boykin, which required the record to affirmatively establish the waiver of the three constitutional rights mentioned in Boykin self-incrimination, confrontation and jury trial. Nachtigall v. Erickson, 85 S.D. 122, 128, 178 N.W.2d 198, 201 (1970).

[¶ 12.] Under the modern framework, the more analogous South Dakota cases are Lodermeier, 273 N.W.2d at 165, and State v. Gagne, 421 N.W.2d 502, 503 (S.D.1988). In Lodermeier, the defendant was not advised of his right to confront witnesses (a Boykin right) or his right to compel witnesses on his behalf (a non-Boykin right). 273 N.W.2d at 165. In Gagne, the defendant was not advised of his right to confront and cross-examine witnesses (a Boykin right) or his right to compulsory process to secure witnesses (a non -Boykin right). 421 N.W.2d at 503. In both cases, the Court reversed in accord with Boykin. However, in this case Beckley was advised of his Boykin rights,, and Boykin rights do not include compulsory process.

[¶ 13.] Additionally, in both Lo-dermeier and Gagne, the record did not indicate the defendants were otherwise aware of their rights. “The standard was- and remains whether the plea represents a voluntary and intelligent choice among- the alternative causes of action open to the defendant.” Moeller, 511 N.W.2d at 810. Therefore, although it is advisable to inform a defendant of his right to compulsory process, not doing so is not automatic reversible error. As the Colorado Supreme Court explained:

[W]e reject the defendant’s claim that the trial court’s advisement did not satisfy the requirements of due process because the trial court failed to advise the defendant that he could subpoena out-of-state witnesses at the state’s expense. Due process of law does not require that a court inform a defendant of every conceivable constitutional right that might be waived by a guilty or nolo contendere plea. Carried to its logical extreme, this argument would require a court before accepting a guilty or nolo contendere plea, to inform a defendant, among other things, of his right to be free from cruel and unusual punishment, his right to be free from unreasonable searches and seizures, his right to be protected against being placed twice in jeopardy for the same crime, and his right to reasonable bail.

People v. Drake, 785 P.2d 1257, 1272 (Colo.1990). See also State v. Moses, 280 Kan. 939, 127 P.3d 330, 335-40 (2006) (recognizing the failure to advise a defendant of compulsory process and other'rights does not automatically result in the withdrawal of a guilty plea and examining the circumstances surrounding that plea including a written waiver, representation by counsel, familiarity with the criminal justice system and defendants- familiarity with the case against him and the benefit of the plea agreement); State v. Salter, 515 So.2d 609, 610 (La.Ct.App.1987) (concluding “[t]he right to compulsory process is not one of the rights required by the trial judge in order to [e]nsure that a guilty plea is knowingly and intelligently made.”); State v. Rau, 367 N.W.2d 613, 616 (Minn.Ct.App.1985) (holding failure to advise of right to subpoena witnesses does not affect the validity of a guilty plea); State v. Miller, 110 Ariz. 304, 518 P.2d 127, 129 (1974) (holding failure to advise of right to compel witnesses and plead not guilty are not required by Boykin and there “is absolutely no requirement that [defendant] be advised of any other rights in order to be able to enter a valid guilty plea.”).

[¶ 14.] Rather than mechanically determining whether certain rights were given, we look to “the totality of the circumstances when ascertaining whether a plea was made knowingly and voluntarily.” Goodwin, 2004 SD 75, ¶ 11, 681 N.W.2d at 852. “In examining the ‘totality of the circumstances’ we have taken into consideration the following factors: the defendant’s age; his prior criminal record; whether he is represented by counsel; the existence of a plea agreement; and the time between advisement of rights and entering a plea of guilty.” Goodwin, 2004 SD 75, ¶ 11, 681 N.W.2d at 852 (internal citations omitted).

[¶ 15.] In this case, Beckley was thirty years old; he was represented by counsel; and although this was his first felony, he had a prior criminal history of driving under the influence, theft, reckless driving and driving without a license. In addition to the knowledge gained from the foregoing experiences, he was advised on three occasions, including the day he entered his guilty plea, of the required constitutional and statutory rights in accord with Boykin and SDCL 23A-7-4. Most significantly, he negotiated a plea agreement and was twice advised of his right to compel witnesses. Thereafter, Beckley actually subpoenaed a witness to testify at his sentencing hearing, demonstrating that he was aware of this right. On this record, we conclude that Beckley’s plea was not unknowingly or involuntarily entered simply because the trial court did not advise him of his right to compel witnesses a third time.

II.

[¶ 16.] Whether the trial court abused its discretion in refusing to continue the sentencing hearing to allow Beckley to obtain a psychological evaluation.

[¶ 17.] On March 2, 2006, six days before sentencing, Beckley moved to continue the sentencing hearing in order to obtain a psychological evaluation at his own expense. The motion was supported by an affidavit from defense counsel indicating that a professional evaluator (Michael McGrath) had been contacted but was unable to complete the evaluation in time for the sentencing hearing. Counsel indicated he only learned of this on March 1, 2006. The motion was also supported by the letter from Dodge, the fellow inmate and former doctor, recommending that Beckley receive a psychological examination.

[¶ 18.] At the sentencing hearing, defense counsel again sought permission to call Dodge as a witness to Beckley’s mental state. The trial court immediately asked to see both attorneys in chambers for an off-the-record discussion. Upon returning, the court indicated a record needed to be made to support the need for the psychological evaluation. After argument from counsel, the trial court denied the request to call Dodge, finding he lacked credibility and the presentence investigation was “extremely complete.” The trial court also denied permission to allow Beckley’s foster father to testify.

[¶ 19.] After the testimonial requests were denied, defense counsel proceeded to argue the request for continuance to obtain the psychological evaluation from the professional evaluator. The trial court denied that motion stating:

I have a report from the Human Services Center and I also have an extensive letter from your client. Okay, so [defense counsel] we are going to proceed with sentencing and if you would, please, proceed with your sentencing comments.

This possession of other psychological information is the only reasoning reflected in the record for denial of the motion for continuance. Although Beckley is not appealing the trial court’s denial of the witness’ testimony, he argues that the trial court erred in refusing to continue the hearing. Beckley contends that an evaluation would have allowed him to present psychological evidence in mitigation at the sentencing hearing, particularly concerning his sexual proclivities.

[¶ 20.] A trial court’s decision to grant or deny a continuance is reviewed under an abuse of discretion standard. State v. Letcher, 1996 SD 88, ¶ 29, 552 N.W.2d 402, 407. “An abuse of discretion refers to a discretion exercised to an end or purpose not justified by, and clearly against reason and evidence.” State v. Asmussen, 2006 SD 37, ¶ 13, 713 N.W.2d 580, 586 (citations omitted).

[¶ 21.] “In deciding whether to grant a continuance, a trial court must consider: (1) whether the delay resulting from the continuance will be prejudicial to the opposing party; (2) whether the continuance motion was motivated by procrastination, bad planning, dilatory tactics or bad faith on the part of the moving party or his counsel; (3) the prejudice caused to the moving party by the trial court’s refusal to grant the continuance; and, (4) whether there have been any prior continuances or delays.” In re J.G.R., 2004 SD 131, ¶ 15, 691 N.W.2d 586, 591. Furthermore, before imposing sentence, the trial court must acquire a thorough acquaintance with the character and history of the defendant:

[T]he circuit court must “acquire a thorough acquaintance with the character and history of the [person] before it.” The [State v. Hinger, 1999 SD 91, 600 N.W.2d 542 (1999)]/Bonner factors are the appropriate factors for the circuit court to consider when determining sentencing, which include the defendant’s “general moral character, mentality, habits, social environment, tendencies, age, aversion or inclination to commit crime, life, family, occupation, and previous criminal record.” In addition, the trial court considers the rehabilitation prospects of the particular defendant.

State v. Blair, 2006 SD 75, ¶27, 721 N.W.2d 55, 63-64 (internal citations omitted).

[¶ 22.] In this case, the trial court was presented with a presentence investigation detailing Beckley’s comments regarding the offense. It also included personal information such as Beckley’s family, marital, educational, military, religious, medical, employment and financial history. The presentence report finally included Beckley’s plea agreement, prior criminal record, and a discussion of his drug and alcohol problems. Although the professional evaluations contained in the presen-tence report mentioned past problems with depression, as well as sexual, emotional and physical abuse, they did not go into any detail about those issues. Those evaluations focused on Beckley’s drug and alcohol addiction, which was understandable considering the fact that Beckley was being sentenced for the possession of a controlled substance. The presentence report did, however, specifically recommend further assessment in the areas of Beckley’s sexual abuse and depression. It was also recommended that Beckley “[b]e seen by a physician/psychiatrist through the Community Health Clinic for medical assistance and possible medication management for mental health issues.” There is no indication that such assessments were conducted, and the presentence report does not include any detail on these issues.

[¶ 23.] Despite these omissions and the denial of Beckley’s request for his own psychological evaluation, the sentencing transcripts indicate that the court proceeded with sentencing focusing on Beckley’s sexual proclivities. In fact, that was the trial court’s main concern and motivating factor for the sentence it imposed. The trial court’s statement in sentencing speaks for itself:

I don’t even know where to start here. If this were just a methamphetamine case, I would .treat it as I do with other possession of methamphetamine cases where we have a jail sentence and a person goes into treatment and I try to keep them out of the penitentiary. I am sorry to say that this is more — more than a methamphetamine case. He is being sentenced on methamphetamine, but as we all know I am required to take into consideration all of the facts of someone’s life and it isn’t the possession of methamphetamine that is of greater concern to me, in this case, it is the sexual proclivity of Mr. Beckley. It appears to me that during the period of time that he was under the jurisdiction of this Court or immediately before that time he was involved in three separate sexual incidents and I share [victim’s father’s] concern about the defendant involving his daughter. When I hear that this man had weapons on him, that he was stopping young girls and video taping them and saying that he was a personal investigator for the City and I heard he had knives on his person, [victim’s father], you are not the only one who got the chills, I did also.
We then have the incident at the [university] where Mr. Beckley is in underwear and he is peeking into the windows of young women, and then I also remember that the State brought Mr. Beckley before this Court to have his bond revoked based on the fact that he was out at the driver’s license bureau and, again, was taking photographs and it should be noted that he wasn’t taking pictures of any women’s behinds, but, again, my memory serves me that he was taking photographs of the behinds of very young women. This is a real problem here and the particular problem is that Mr. Beckley, under the jurisdiction of this Court, knew that he was facing penitentiary time and despite that was unable to control his sexual proclivities.
Frankly, in this case, I have reached the point where I am frightened. I am frightened for the young women of this community as to where this is going. Mr. Beckley has knives, he’s stopping women saying he is a private investigator, taping them, and all the while he was under the supervision of this Court. This situation has gotten too scary for me to take any chances.
You talk about throwing someone else away, I don’t throw people away, I work with people who have methamphetamine problems, but when someone keeps committing sexual crimes, the Court gets scared and I am scared. Now, at some point the balance has to shift. I have some concern for Mr. Beckley and I realize that he has serious problems, but at some point the balance of the scale has to shift towards the safety of girls in our community, and I am afraid that through his repeated actions over and over and over again that has caused that balance to shift traumatically. If he needs help, he’ll have to receive that help at the penitentiary. At this point he needs to get himself under control. He’s too scary at this point to be on the streets of this city and community. I am imposing a sentence of eight years in the South Dakota State Penitentiary.

These concerns continued after sentencing. The trial court’s judgment of conviction recommended that the Parole Board obtain a psychosexual evaluation and have Beckley placed in a sex offender group. This record demonstrates that Beckley’s psychosexual state was the major motivating factor and weighed heavily in the trial court’s formulation of its sentence.

[¶ 24.] Notwithstanding this focus, the court denied the continuance twice stating its belief that it had adequate information on this subject. The record does not support the trial court’s conclusion. The information in the presentence report (or otherwise before the Court) was wholly lacking concerning the psychological aspects of Beckley’s sexual proclivities, the area of main concern to the trial court in determining punishment. More importantly, the denial of Beckley’s requests for continuance to present highly relevant and potentially mitigating evidence violated SDCL 23A-27-1. That statute provides in relevant part:

At such hearing, the court shall allow the defense counsel an opportunity to speak on behalf of the defendant and shall address the defendant personally and ask him if he wishes to make a statement in his own behalf and to present any information in mitigation of punishment.

[¶ 25.] Although we are not suggesting that the failure to include particular information in a presentence investigation is a matter that is generally appealable, in this case we consider that fact because it was the sole basis for the trial court’s denial of the continuance and Beckley had a right to present that information to the sentencing court. “Fundamental principles of procedural fairness apply with no less force at the penalty phase of a criminal trial than they do in the guilt-determining phase of a criminal trial.” State v. Phelps, 297 N.W.2d 769, 776 (N.D.1980) (citing Presnell v. Georgia, 439 U.S. 14, 99 S.Ct. 235, 58 L.Ed.2d 207 (1978)).

[¶ 26.] Unable to procure the mitigating psychological evaluation allowed under SDCL 23A-27-1, counsel proceeded to the request for a continuance. This was denied by the trial court without an analysis of the In re J.G.R. factors. See supra ¶21. We have also been pointed to no evidence in the record that a continuance would have been prejudicial to the State or that it was motivated by bad faith or dilatory tactics. Yet, there is evidence that' such an evaluation would have provided the trial court with relevant psychological information concerning Beckley’s mental state and sexual proclivities. The trial court recognized that fact, recommending such an evaluation after Beckley was incarcerated.

[¶ 27.] On this record, the trial court abused its discretion in denying the continuance to allow Beckley to obtain the psychological evaluation to mitigate the evidence relating to his sexual misconduct. The trial court failed to consider the relevant continuance factors, its sole reason for denying the continuance was not supported, and its denial of Beckley’s attempt to present this mitigation witness violated the statutory right to present mitigation evidence. Compare, State v. Milk, 2000 SD 28, ¶ 23, 607 N.W.2d 14, 21 (foreclosing the defendant from seeking to re-open the sentencing phase to allow psychological evidence because he did not attempt to call the witness or seek a continuance of the sentencing hearing). Therefore, we reverse and remand for resentencing after Beckley has been provided an opportunity to obtain a psychological evaluation.

[¶ 28.] Affirmed in part, reversed in part and remanded.

[¶ 29.] SABERS, KONENKAMP and MEIERHENRY, Justices, concur.

[¶ 30.] GILBERTSON, Chief Justice, concurs in part and dissents in part.

GILBERTSON, Chief Justice

(concurring in part and dissenting in part).

[¶ 31.] While I concur with the Court’s holding on Issue 1, I write to dissent with its holding on Issue 2 — that the circuit court abused its discretion by refusing to continue the sentencing hearing to allow Beckley to obtain a psychological evaluation pertaining to his sexual proclivity. The Court’s decision is based on its position that the presentence report was incomplete and that the circuit court had inadequate information to pass sentence without the psychological evaluation that Beckley argues would have provided the justification for mitigating his sentence. I cannot agree.

[¶ 32.] It is the duty of a sentencing court to insure that the punishment “fit[s] the offender and not merely the crime.” State v. Anderson, 1996 SD 46, ¶ 32, 546 N.W.2d 395, 403 (quoting Williams v. New York, 337 U.S. 241, 247, 69 S.Ct. 1079, 1083, 93 L.Ed. 1337, 1342 (1949)). In order to impose an appropriate sentence, the sentencing court must “acquire a thorough acquaintance with the character and history of [the defendant.]” State v. Blair, 2006 SD 75, ¶ 27, 721 N.W.2d 55, 63 (citing State v. Bonner, 1998 SD 30, ¶19, 577 N.W.2d 575, 580 (quoting State v. Chase in Winter, 534 N.W.2d 350, 354-55 (S.D.1995))). Appropriate factors to consider when determining sentence include, “the defendant’s ‘general moral character, mentality, habits, social environment, tendencies, age, aversion or inclination to commit crime, life, family, occupation, and previous criminal record,’ ” Id. (citing Bonner, 1998 SD 30, ¶ 19, 577 N.W.2d at 580 (quoting Chase in Winter, 534 N.W.2d at 354-55)). “This consideration may include ... ‘uncharged conduct.’ ” Id. ¶ 27, 721 N.W.2d at 64 (quoting State v. McKinney, 2005 SD 74, ¶ 17, 699 N.W.2d 460, 466 (McKinney II) (citing United States v. Schaefer, 291 F.3d 932, 944 (7th Cir.2002))). However, “[t]he primary criterion in sentencing is good order and protection of the public and society, and all other factors must be subservient to that end.” Anderson, 1996 SD 46, ¶ 31, 546 N.W.2d at 403 (citations omitted).

[¶ 33.] Whether, a presentencing investigation and report is ordered is a discretionary matter. SDCL 23A-27-5. When there is sufficient evidence in the record, enabling the meaningful exercise of sentencing discretion, the presentence report is superfluous. Id. See swpra note 9 (setting out that when there is sufficient evidence in the record on which to base a sentence, a sentencing court need only then state said basis for the record).

[¶ 34.] In this case, the sentencing court ordered a sentencing hearing that was held on March 8, 2006. In advance of this hearing, the court reviewed a presen-tence report. After reviewing the record, it is apparent, as the court pointed out at the hearing, the report is “very complete.” It contains voluminous information about Beckley including family and marital history, his level of education, military service, employment and financial and medical records as well as information about his religious background. In addition, the report also noted that Beckley had had periods of depression and that he had been sexually abused. Further, the report discussed in detail Beckley’s problems with drugs and alcohol. Nevertheless, the Court concludes that since the sentencing court emphasized its concern over Beckley’s history of perverse sexual behavior when imposing sentence, Beckley was entitled to a continuance in order to include a psychological evaluation aimed at explaining his sexual proclivity, thereby providing a basis to mitigate his sentence.

[¶ 35.] Despite the fact that Beckley offered no explanation as to why the evaluation had not been completed in advance of the March 8, 2005 sentencing hearing, the Court bases its conclusion that Beckley was entitled to the continuance on an interpretation of SDCL 23A-27-6 that it believes required the presentence report to include more findings about Beckley’s sexual proclivity. SDCL 23A-27-6 provides: .

The report of a presentence investigation shall contain any prior criminal record of the defendant and such information about his characteristics, his financial condition, and the circumstances affecting his behavior as may be helpful in imposing sentence or in granting probation or in the correctional treatment of the defendant, and such other information as may be required by the court.

(Emphasis added). The only requirement under this statute is that the presentence report “shall contain any prior criminal record.” After ordering a presentence investigation and report, the sentencing court then has the discretion to direct that it include whatever other information “as may be helpful” and “required” in imposing sentence.

[¶ 36.] In addition to the detailed pre-sentence report in this case, the record indicates that the sentencing court was well informed as to the detail and extent of Beckley’s perverse conduct. As reflected in'-the Court’s opinion, supra note 10, the seniSqncing court went to great lengths to establish for the record the basis for its sentence.

[¶ 37.] The sentencing court discussed at length how Beckley had pulled over a car with two young girls on April 5, 2005, under the false pretence of working undercover for the City of Sioux Falls. The court discussed how he attempted to videotape the girls. Later that day, Beckley was arrested for methamphetamine possession at the Best Buy in Sioux Falls after police had been summoned there to investigate his strange behavior, which included videotaping other young women. There, Beck-ley was found in possession of the video camera and knives. The camera’s videotape contained footage of the rear ends of young women at Best Buy. The videotape also included footage of Beckley engaged in sex acts. After being released on bail, Beckley was again taken into custody on May 10, 2005, when police were summoned to the driver’s licensing office in Sioux Falls after Beckley was observed photographing another young girl. Finally, on September 13, 2005, Beckley was arrested for window peeking and attempting to force his way into a women’s dormitory on the campus of a Sioux Falls University. During this episode, Beckley was wearing only underwear and a tank top.

[¶ 38.] Despite the obvious and extensive justification for the sentence handed down by the court, this Court now determines that Beckley was entitled to a continuance on the chance that a psychological evaluation of his perverse sexual behavior would have rendered some finding that the sentencing court would have justified as a reason to impose a lesser sentence. This defies reason. The record is replete with evidentiary support for the sentencing court’s determination that Beckley’s behavior posed a clear and present danger to the community, thereby justifying the lengthy sentence that he received.

[¶ 39.] The Court also concludes that the sentencing court’s refusal to grant a continuance violated SDCL 23A-27-1. However, the Court is mistaken in this assessment as well since, as required by that statute, both Beckley and defense counsel had an opportunity to speak at the discretionary sentencing hearing. See supra note 12 (SDCL 23A-27-1). While under the statute Beckley was entitled “to present any information in mitigation of punishment,” see supra note 12 (SDCL 23A-27-1), the only thing that the Court can point to that Beckley was not able to present was the psychological evaluation. Again, it is beyond reason to conclude that the evaluation would have contained any finding for which the sentencing court would have justified imposition of a shorter sentence.

[¶ 40.] There was support in the record for the sentence imposed by the court; the presentence report notwithstanding. The Court’s holding imposes mandatory content in a discretionary report. The result of this holding will be that sentencing courts will forego ordering presentence reports in favor of determination based on the trial court record in order to avoid the threat of reversal established by this Court today.

      . Furthermore, "a plea of guilty cannot stand unless the record in some manner indicates a free and intelligent waiver of the three constitutional rights mentioned in Boykin self-incrimination, confrontation and jury trial and an understanding of the nature and consequences of the plea.” Lodermeier, 273 N.W.2d at 165. Beckley does not contend he was not properly advised of these Boykin rights. See Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274, 280 (1969).

      . Federal Rule of Criminal Procedure 11(b)(1)(e) specifically requires an advisement of the defendant’s right to compel the attendance of witnesses.

      . SDCL 23A-27-6 provides:
      The report of a presentence investigation shall contain any prior criminal record of the defendant and such information about his characteristics, his financial condition, and the circumstances affecting his behavior as may be helpful in imposing sentence or in granting probation or in the correctional treatment of the defendant, and such other information as may be required by the court.

      . It is important to note that this is not a case where a defendant sought to contest the factual allegations contained in a presentence report. See Hansen v. Kjellsen, 2002 SD 1, ¶ 11, 638 N.W.2d 548, 552 (recognizing "the defense has a right to comment on the presen-tence report and may introduce evidence.”); State v. Jensen, 1998 SD 52, ¶ 58, 579 N.W.2d 613, 623 ("[D]ue process requires a defendant who contests the accuracy of factual information relied upon by a sentencing court be given an opportunity to rebut or explain that information.”). Rather, Beckley sought to supplement that report with relevant evidence relating to the topic of most concern to the trial court-information that was otherwise absent.

      . While there is some contention in the brief that the motion for a continuance was not filed as quickly as it could have been because of informal discussions occurring between the State and Beckley's trial counsel relating to further psychological testing, that evidence is not contained in the record and we do not consider it here.

      . Even if the dissent were correct in noting that the trial court “was well informed as to the detail and extent of Beckley’s perverse conduct,” infra ¶ 36, that is not the question. The question is whether Beckley was denied the statutory right to present mitigating evidence relating to that conduct. Moreover, that right was not satisfied because "both Becldey and defense counsel had an opportunity to speak at the ... sentencing hearing.” See infra ¶ 39. Neither Beckley nor his counsel was competent to provide a psychological evaluation, and without that type of evaluation we can only speculate whether the trial court’s ultimate sentence would have been different. Further, the dissent’s assertion that our decision here will discourage trial courts from ordering presentence reports in the future is untenable. A defendant’s statutory right to present mitigation evidence is not dependent upon a trial court’s decision to order a presentence report.

      . This case is distinguishable from State v. Jensen, 1998 SD 52, V 57, 579 N.W.2d at 623 (holding decision denying expert witness testimony during sentencing concerning impact of prison term on juvenile offender was not a denial of due process) and State v. Iron Necklace, 430 N.W.2d 66, 81-82 (S.D.1988) (holding trial court did not abuse its discretion in denying a continuance to allow defendant to present mitigating evidence in the form of letters and affidavits from family members when they were not requested until the day before the hearing). Beckley's motion was filed six days prior to the sentencing hearing and one day after learning that his expert could not complete the evaluation in time. Finally, the purpose of the requested continuance was to obtain mitigating evidence concerning conduct that was not the subject of the guilty plea but nevertheless was the most aggravating sentencing factor in the view of the court and was an area virtually untouched in the presentence report.

      . While the sentencing court has "wide latitude” in determining an appropriate sentence, see McKinney II, 2005 SD 74, ¶ 17, 699 N.W.2d at 466 (citing State v. Milk, 2000 SD 28, ¶ 10, 607 N.W.2d 14, 17 (citation omitted)), in order to consider uncharged conduct, the State must prove such conduct by a preponderance of the evidence. Id. ¶ 18, 699 N.W.2d at 466 (citations omitted). Although Beckley argues that the circuit court did not adequately consider the psychological underpinnings of his perverse sexual behavior, he did not object to the sentencing court's consideration of this uncharged conduct nor does he on appeal claim error in the sentencing court's consideration of same.

      . SDCL 23A-27-5 provides:

        A presentence investigation may be ordered in the discretion of a court. The court services officer of a court shall make a presen-tence investigation and report to the court before the imposition of sentence or the granting of probation unless, with the permission of the court, the defendant waives a presentence investigation and report, or the court finds there is in the record information sufficient to enable the meaningful exercise of sentencing discretion, and the court explains this finding on the record.

      The report shall not be submitted to a court or its contents disclosed to anyone unless the defendant has pleaded guilty or nolo contendere or has been found guilty, except that a judge may, with the written consent of the defendant, inspect a presentence report at any time.
      (Emphasis added).

      . The report indicates that Beckley received a substantial monetary award as a participant in a class-action law suit seeking damages for victims of sexual abuse that occurred in a group home operated by the State of Washington.

      . The fact that Beckley’s expert was unable to attend the sentencing hearing does not constitute a reason for why the psychological evaluation had not been completed by that late date.

      . SDCL 23A-27-1 provides in pertinent part:
      Sentences shall be imposed without unreasonable delay, but not within forty-eight hours after determination of guilt. A defendant may waive the forty-eight hour delay. Before imposing a sentence, a court may order a hearing in mitigation or aggravation of punishment. At such hearing, the court shall allow the defense counsel an opportunity to speak on behalf of the defendant and shall address the defendant personally and ask him if he wishes to make a statement in his own behalf and to present any information in mitigation of punishment.
      (Emphasis added).


author: GILBERTSON, Chief Justice.

text:
    2007 SD 123
    Kaden HOGLUND and Monte Hoglund, Plaintiffs and Appellants, v. DAKOTA FIRE INSURANCE COMPANY, Defendant and Appellee.
    Nos. 24470, 24471.
    Supreme Court of South Dakota.
    Considered on Briefs on Oct. 1, 2007.
    Decided Dec. 5, 2007.

      Chet Groseclose, Sioux Falls, South Dakota and Kerry Cameron of Cameron Law Office Sisseton, South Dakota, Attorneys for plaintiffs and appellants.

      Douglas M. Deibert of Cadwell, Sanford, Deibert & Garry Sioux Falls, South Dakota, Attorneys for defendant and appellee.
   GILBERTSON, Chief Justice.

[¶ 1.] A motions hearing was held in the South Dakota Fifth Judicial Circuit on August 21, 2006, in regard to a declaratory judgment action filed by Monte and Kaden Hoglund, father and son (collectively Ho-glunds), seeking a ruling that Monte could recover expenses from Dakota Fire Insurance Company (Dakota Fire) in connection with injuries to Kaden resulting from an automobile collision caused by its insured, Matthew West (West). Prior to the hearing, Dakota Fire filed a motion for summary judgment. On February 12, 2007, the circuit court entered its judgment and order granting Dakota Fire’s motion. We affirm.

FACTS AND PROCEDURE

[¶ 2.] There is no dispute about the facts underlying this case. On January 24, 2004, at about 12:00 p.m., Kaden was severely injured in an automobile collision while driving to his home at Langford, South Dakota. The collision occurred at a rural intersection when West failed to stop for a stop sign. Kaden suffered permanent injuries as a result of the collision.

[¶ 3.] At the time, Kaden was 17-years-old. He did not reach his 18th birthday until July 8, 2004. During the intervening period Monte incurred $38,627.21 in hospitalization, medical and surgical care expenses on Kaden’s behalf. In addition to this sum, Monte claimed that he was entitled to $1,630.00 attributable to his loss of after-tax income during a one-month period that he took off from work to care for Kaden after the accident. Kaden claimed damages, resulting from the collision with West in excess of $100,000.00 for pain and suffering, loss of enjoyment of life, permanent injuries and future medical expenses.

[¶ 4.] The auto insurance policy, issued to West by Dakota Fire, capped the insured’s liability coverage at $100,000.00 per person and $300,000.00 per accident. Dakota Fire offered to settle with Ho-glunds for $100,000.00 in exchange for West’s release. On December 2, 2005, Ho-glunds commenced an action against Dakota Fire seeking a declaratory judgment that Dakota Fire was also liable under the policy for a second “per person” limit to cover Monte’s expenses and services provided on Kaden’s behalf.

[¶ 5.] On December 20, 2005, Dakota Fire answered the complaint and counterclaimed seeking a determination that it was liable for no more than $100,000.00 under a single “per person” limit. On July 13, 2006 Dakota Fire filed a motion for summary judgment. The matter was heard by the circuit court on August 21, 2006. The court, in its memorandum opinions of October 12, 2006 and December 28, 2006, concluded that while Dakota Fire was not obligated for a second “per person” limit under the policy, Monte was entitled to $1,630.00 for the value of services provided to Kaden. On February 12, 2007, the circuit court entered findings of fact and conclusions of law in this regard and entered judgment and order granting Dakota Fire’s motion for summary judgment in all other respects.

[¶ 6.] In addition to Hoglunds’ appeal, Dakota Fire raises issues by notice of review. We combine Hoglunds’ first appeal issue and Dakota Fire’s first review issue as follows:

1. Whether Monte’s claims were separate from Kaden’s.

The following issues were raised by Ho-glunds on appeal:

2. Whether the terms of the insurance policy that Dakota Fire issued to West were ambiguous such that they should have been construed in favor of Hoglunds, thereby entitling Monte to recovery for damages under a second “per person” liability limit.
3. Whether Monte and Kaden both sustained “bodily injury” within the meaning of the policy.

Dakota Fire raises an additional issue by notice of review:

4. Whether there was sufficient evidence to sustain the circuit court’s award of $1,630.00 for the value of Monte’s services rendered to Kaden.

STANDARD OF REVIEW

[¶ 7.] “In reviewing a grant of summary judgment under SDCL 15-6-56(c) we must determine whether the moving party has demonstrated there is no genuine issue of material fact and he is entitled to judgment as a matter of law.” Rogers v. Allied Mut. Ins. Co., 520 N.W.2d 614, 615 (S.D.1994) (citations omitted). “Once we determine that the material facts are undisputed, our review is limited to whether the law was correctly applied.” Pauley v. Simonson, 2006 SD 73, ¶ 7, 720 N.W.2d 665, 667 (citations omitted). “We review questions of law de novo with no discretion given to the circuit court.” Id. (citations omitted).

[¶ 8.] “When interpreting insurance contracts, we have uniformly held them reviewable as a matter of law under the de novo standard.” Friesz ex rel. Friesz v. Farm & City Ins. Co., 2000 SD 152, ¶ 5, 619 N.W.2d 677, 679 (citing DeSmet Ins. Co. v. Gibson, 1996 SD 102, ¶5, 552 N.W.2d 98, 99; Economic Aero Club, Inc. v. Avemco Ins. Co., 540 N.W.2d 644, 645 (S.D.1995); State Farm Mut. Auto. Ins. Co. v. Vostad, 520 N.W.2d 273, 275 (S.D.1994)). “This includes determining whether an insurance contract is ambiguous.” Id. (citing Rogers, 520 N.W.2d at 616).

ANALYSIS AND DECISION

[¶ 9.] 1. Whether Monte’s claims were separate from Kaden’s.

[¶ 10.] While the circuit court found for Dakota Fire in rejecting Monte’s claim to coverage under a second “per person” limit, it nonetheless concluded that he had a separate cause of action for medical expenses incurred prior to Kaden’s 18th birthday, and for the value of service that he provided to Kaden. We agree.

[¶ 11.] This Court has reviewed appeals dealing with facts similar to those of this case. In Knowles v. United States, 1996 SD 10, 544 N.W.2d 183, we discussed several cases that considered the nature of parent claims arising out of tortious injury to children. In Knowles we reviewed certified questions submitted by the United States Court of Appeals for the Eighth Circuit, pertaining to claims filed against the United States under the Federal Tort Claims Act. Id. ¶4, 544 N.W.2d at 185.

[¶ 12.] The claims in Knowles, were brought by the parents of an infant who suffered severe brain damage following hospitalization and routine treatment at the Ellsworth Air Force Base Hospital near Rapid City, South Dakota. Id. ¶¶ 5, 6, 544 N.W.2d at 185. The parents brought claims on their own behalf and for the infant for medical malpractice, emotional distress, and loss of consortium. Id. ¶ 6, 544 N.W.2d at 185. Pertinent to the instant case was the Court’s analysis of the third and fourth certified questions, respectively; whether South Dakota law recognized parental claims for emotional distress or loss of consortium that arose from injuries to a minor child; and, whether South Dakota’s statutory limitation for malpractice damages applied separately to the claims and to the plaintiffs. Id. ¶ 6, 544 N.W.2d at 185-86.

[¶ 13.] We rejected the existence of parental claims for emotional distress and loss of consortium. Id. ¶ 43, 544 N.W.2d at 193. However, we reiterated our prior holding “that a parent may bring a cause of action to recover consequential damages incurred because of negligent injury to a child.” Id. ¶ 40, 544 N.W.2d at 192 (citing Barger for Wares v. Cox, 372 N.W.2d 161, 164 (S.D.1985)). The basis for a parent’s cause of action against a tortfeasor, for recovery of medical expenses resulting from negligent injury to a child, arises from the common-law rule that obliges the parent to provide medical attention for the minor child. Id. ¶ 42, 544 N.W.2d at 193 (citing Prosser and Keeton, The Law of Torts § 125, 934 (5thEd 1984)). See also SDCL 25-7-6.1 (codifying the parent’s obligation to a minor child).

[¶ 14.] We also analyzed whether the surviving medical 'malpractice claims of the parents were separate and distinct or derivative actions. Id. ¶¶ 45-49, 544 N.W.2d at 193-94. In arriving at the answer to this question we relied heavily on our prior holding in Barger.

[¶ 15.] Barger was another case that involved a claim brought by a parent on behalf of a tortuously injured minor child and a parental claim to recover medical expenses incurred on the behalf of the child. 372 N.W.2d at 164. In Barger, the child’s claim was barred by our former guest statute. The issue this Court addressed was whether the parent’s claim was similarly barred. The Court’s task in addressing the issue was to decide whether the parent’s claim was derivative of the child’s or separate and distinct.

[¶ 16.] The Court observed that the parent’s claim was not a true derivative action in so much as that designation belongs to those causes of action which accrue to fatally injured persons and survive their deaths, which are then maintainable by the .representatives of the estates. Id. at 165 (quoting Irlbeck v. Pomeroy, 210 N.W.2d 831 (Iowa 1973)). Such claims are subject to any defense that could have been raised against the decedent. Id. The Court went on to conclude that while claims such as the one in Barger, brought by the parent to recover medical expense incurred on behalf of the child, are not truly derivative in that the parent who incurred them was the injured party, such claims nevertheless arise out of and are consequential to the injury sustained by the child. Id. We also observed:

An act or omission of a person which causes a loss of the services of a minor child to a parent, or necessitates expenditures to cure an injury done to the child, entitles the parent to recover damages when it appears that the act or omission is one which the law holds to be a legal wrong.... [I]n such a case as this, where the basis of the claimed wrongful conduct is the failure of the defendant to take certain steps to prevent the child from suffering injury, the parent cannot recover unless that failure constituted a legal wrong to the child.

Id. (citing Shiels v. Audette, 119 Conn. 75, 174 A. 323, 325 (1934)) (citation omitted) (emphasis added). In coming to the determination that the parent’s claim in Barger was barred by our former guest statute, the Court implied in the holding that the parent’s claim, while separate and distinct from the child’s, was, nevertheless, derivative in nature. Id. (analogizing with Titze v. Miller, 337 N.W.2d 176 (S.D.1983) (holding that a husband’s cause of action for loss of consortium failed when the injured spouse was unable to recover damages for her own personal injuries, because although separate and distinct from the injured spouse’s claim for personal injuries, the loss of consortium claim was in any case derivative in nature)).

[¶ 17.] This was precisely the basis upon which we answered question four in Knowles. We said:

Due to the differing nature of the parents’ claim in comparison to the child’s, we find that parents’ claim is a distinct ‘action’ as applied to [our statutory damages cap.] However, the actions are linked in regard to liability issues and the parents cannot recover unless the child also has a good cause of action.... Because, [our statutory damages cap] is a limitation on damages only, not liability, we hold the parents’ ‘action’ and child’s ‘action’ are separate and distinct for purposes of the damages cap.

Knowles, 1996 SD 10, ¶ 50, 544 N.W.2d at 194.

[¶ 18.] While the facts of the instant case are different from Knowles, the basis upon which we decide this issue is identical. Monte sought to recover medical expenses incurred prior to Kaden’s 18th birthday. Kaden claimed damages for pain and suffering, loss of enjoyment of life, permanent injuries and future medical expenses. However, the two plaintiffs’ claims are linked by liability stemming from West’s negligent act of running a stop sign and colliding with Kaden. Therefore, Monte’s ability to state a cause of action depended on Kaden’s ability to show that his damages were the proximate cause of West’s negligence. Thus, while Monte’s and Kaden’s claims are separate and distinct, they are derivative in nature.

[¶ 19.] 2. Whether the terms of the insurance policy that Dakota Fire issued to West were ambiguous such that they should have been construed in favor of Hoglunds, thereby entitling Monte to recovery for damages under a second “per person” liability limit.

[¶20.] Hoglunds argue that the “LIMIT OF LIABILITY” paragraph under the “PART A — LIABILTY COVERAGE” section of the auto insurance contract issued to West by Dakota Fire is ambiguous and therefore should be construed to provide a second “per person” liability limit to cover Monte’s consequential damages. The paragraph provides as follows:

LIMIT OF LIABILITY
The limit of liability shown in the Declarations for each person for Bodily Injury Liability is our maximum limit of liability for all damages, including damages for care, loss of services or death arising out of “bodily injury” sustained by any one person in any one auto accident. Subject to this limit for each person, the limit of liability shown in the Declaration for each accident for Bodily Injury Liability is our maximum limit of liability for all damages for “bodily injury” resulting from any one auto accident.

[¶ 21.] Hoglunds advocate that we employ the rule of statutory and grammatical construction known as “The Doctrine of the Last Antecedent” to interpret the insurance contract in their favor. Under the rule, the modifying clause is confined to the last antecedent, unless there is something in the dominant purpose of the provision that requires a different interpretation. Rogers, 520 N.W.2d at 617 (quoting Kaberna v. School Bd. of Lead-Deadwood Sch. Dist. 40-1, 438 N.W.2d 542, 543 (S.D.1989)) (citing Lewis v. Annie Creek Mining Co., 74 S.D. 26, 33, 48 N.W.2d 815, 819 (1951)) (citing State v. Ventling, 452 N.W.2d 123, 126 (S.D.1990)).

[¶22.] Hoglunds contend that employing the general rule to the language of the paragraph, the modifying clause “sustained by any one person,” applies to the last antecedent, “bodily injury,” such that “per person” liability limits are available to provide coverage only for “bodily injury” as defined in the policy. Application of the general rule would exclude coverage for Monte’s claims because they are not 'included in the definition. However, Ho-glunds assert that the dominant purpose of the provision is to limit liability for damages, thereby taking precedence over the general rule. Hoglunds thus contend that the modifying clause applies to the term “all damages,” thereby including coverage for Monte’s claims under a second “per person” limit.

[¶ 23.] Addressing this issue, we rely on our well-established principles for interpreting an insurance contract when ambiguities are alleged:

Where the provisions of an insurance policy are fairly susceptible of different interpretations, the interpretation most favorable to the insured should be adopted. This rule of liberal construction in favor of the insured and strictly against the insurer applies only where the language of the insurance contract is ambiguous and susceptible of more than one interpretation.... This rule does not mean, however, that the court may seek out a strained or unusual meaning .for the benefit of the insured.

Olson v. U.S. Fidelity and Guar. Co., 1996 SD 66, ¶ 6, 549 N.W.2d 199, 200 (citing Rogers, 520 N.W.2d at 616). “Ambiguity in an insurance policy is determined by reviewing ‘the policy as a whole and plain meaning and effect of its words’ Chord v. Reynolds, 1999 SD 1, ¶ 15, 587 N.W.2d 729, 732 (quoting American Family Mut. Ins. Co. v. Elliot, 523 N.W.2d 100, 102 (S.D.1994)).

[¶ 24.] In addition to the aforementioned paragraph governing the limit of liability, supra ¶ 4, Dakota Fire’s policy declarations page reflects that the liability coverage for “BODILY INJURY” is $100,000.00 per person and $800,000.00 for each accident. The “INSURING AGREEMENT” under “PART A — LIABILITY COVERAGE” provides as follows: “We will pay damages for ‘bodily injury’ ... for which an ‘insured’ becomes legally responsible because of an auto accident.” The “DEFINITIONS” section of the policy defines “bodily injury” as: “bodily harm, sickness or disease, including death that results.”

[¶25.] We juxtapose these provisions with the paragraph limiting liability and reject Hoglunds’ claim of a dominant purpose that would result in a strained and unusual meaning. Considering the whole policy and the plain meaning and effect of its words, we find no ambiguity in the policy. The policy provides $100,000.00 of “per person” “bodily injury” liability coverage. The part of the policy under which Dakota Fire agrees to pay claims states that it will “pay for bodily injury....” “Bodily injury” as defined in the policy does not include the type of claims for which Monte seeks recovery. Since we conclude that the dominant purpose of the limiting paragraph is to limit Dakota Fire’s liability exposure for “bodily injury,” damages, we find no basis upon which to reverse the circuit court on this issue.

[¶ 26.] 3. Whether Monte and Kaden both sustained “bodily injury” within the meaning of the policy.

[¶ 27.] Hoglunds argue that the terms “bodily injury” and “personal injury” are used interchangeably or that “personal injury” is a broad term that includes “bodily injury.” Hoglunds then cite Knowles for the proposition that “personal injury” includes a “personal right.” 1996 SD 10, ¶ 49, 544 N.W.2d 188, 194 (reiterating that a parent’s cause of action for consequential damages resulting from the negligent injury to a child is a personal right). Ho-glunds assert that since in Knowles we concluded that the parents’ cause of action for their medical malpractice claims were separate and distinct from the child’s claims, having recognized that they were grounded in a personal right, Monte thereby is entitled to coverage under a second “per person” liability limit on the basis of personal right.

[¶ 28.] Hoglunds cite a number of cases and statutes to illustrate that the terms “bodily injury” and “personal injury” have been used interchangeably. We do not disagree that these terms have frequently been used in this fashion. Where we do disagree is in Hoglunds’ interpretation of our analysis in Knowles. While we reiterated a prior holding that the term personal injury includes injuries to personal rights, the statement was made in a statutory context. Id. ¶ 49, 544 N.W.2d at 194 (citing Titze, 337 N.W.2d at 177). The question in Knowles pertaining to the analysis that Hoglunds cite was whether the statutory limitation on damages applied to the consequential claims of the parents as well as the minor child. Id. ¶ 44, 544 N.W.2d at 193; see also supra ¶ 12. The issue here is whether Monte can recover damages under the insurance policy for his claims consequential to Kaden’s injury. While our analysis of the preceding two issues indicates that Monte has a cause of action separate and distinct from Kaden’s, his ability to recover under the policy is precluded by the language therein.

[¶ 29.] 4. Whether there was sufficient evidence to sustain the circuit court’s award of $1,630.00 for the value of Monte’s services rendered to Kaden.

[¶ 30.] A parent is required by law to provide support and care for his minor child. Knowles, 1996 SD 10, ¶41, 544 N.W.2d at 192 (citations omitted); SDCL 25-7-6.1. Whether Monte contemplated the legal obligation when he took a month off from work to care for his severely injured son is not a matter of record. What is a matter of record is that doing so cost him $1,630.00 in after-tax income. The circuit court concluded an award of $1,630.00 was appropriate for the value of Monte’s services. Our review of the record indicates Dakota Fire failed to preserve this issue for our appellate review. See Anderson v. Johnson, 441 N.W.2d 675, 677 (S.D.1989) (reiterating that issues not properly preserved below cannot be reviewed by this Court on appeal) (citations omitted).

[¶ 31.] Affirmed.

[¶ 32.] SABERS, KONENKAMP, ZINTER, and MEIERHENRY, Justices, concur.

      . Dakota Fire has acknowledged that West’s negligence is the sole proximate cause of the collision.

      . A parent is required by law to provide support and care for his minor child. Matter of Certification of Questions of Law from U.S. Court of Appeals (Knowles v. United States), 1996 SD 10, ¶ 41, 544 N.W.2d 183, 192 (citation omitted); SDCL 25-7-6.1. Since Kaden’s mother died in 2003, Monte was solely obligated for the payment of Kaden’s expenses incurred prior to his 18th birthday.

      . Sometime after the complaint was served, Dakota Fire paid Hoglunds $100,000.00 under an agreement whereby both parties agreed to preserve all rights and defenses.

      . Monte also claimed damages attributable to the loss of Kaden's service prior to his 18th birthday. However, the circuit court rejected this claim for insufficient evidence. Ho-glunds do not challenge this decision on appeal.

      . Noting that we had recognized a claim for spousal loss of consortium and that it was grounded in the common-law, Knowles, 1996 SD 10, ¶ 42, 544 N.W.2d at 192 (citing Hoekstra v. Helgeland, 78 S.D. 82, 98 N.W.2d 669, 670-79 (1959)), we consulted with the treatise of professors Prosser and Keeton, The Law of Torts § 125, 934 (5thEd 1984), in concluding that no similar basis existed for parental claims for loss of consortium or emotional distress. Id. ¶ 43, 544 N.W.2d at 193.

      . Although not at issue in the instant case, the parent's right to recover for the lost services of a tortiously injured minor child is similarly grounded in the common-law rule that entitles a parent to such services. Id. ¶ 42, 544 N.W.2d at 193 (citing Prosser, § 125, 934).

      . Our former guest statute was codified under SDCL 32-34-1 (repealed by 1978 SD Sess. Laws ch 240, § 2).

      . The constitutionality of our statutory, malpractice damages cap, codified under SDCL 21-3-11, was at issue in Knowles and abrogated by our answer to certified question 1. ¶ 72, 544 N.W.2d at 199.

      . Although the text of this insurance policy controls the resolution of this issue, the issue itself has arisen in other jurisdictions:
      ... where a minor is injured by an insured, the minor’s parents’ claim for recovery of loss of the minor’s service and the minor's medical expenses under the terms of an automobile liability policy do not make the parent a separate "person” for purposes of recovering more than the policy limits of liability for "bodily injury” to "each person.”
      Couch on Insurance § 170:8. Couch goes on to cite 43 cases from 13 jurisdictions which adhere to this holding.

      . While not an issue in this case, the limiting paragraph also functions to limit Dakota Fire’s liability exposure for property damage.