author: GORS, Acting Justice.

text:
    2002 SD 92
    Dorothy J. BROWN, Plaintiff and Appellee, v. DOUGLAS SCHOOL DISTRICT, Employer and Appellant, and Associated School Boards of South Dakota Worker’s Compensation Trust Fund, Provider and Appellant.
    No. 22050.
    Supreme Court of South Dakota.
    Argued Feb. 12, 2002.
    Decided July 31, 2002.

      James D. Leach of Viken, Viken, Pecho-ta, Leach & Dewell, Rapid City, South Dakota, Attorneys for plaintiff and appel-lee.
    Karla L. Engle of Tieszen Law Office, Pierre, South Dakota, Attorneys for appellants.
   GORS, Acting Justice.

[¶ 1.] Dorothy Brown (Brown) filed a petition for worker’s compensation benefits with the South Dakota Department of Labor (Department) seeking an award of permanent total disability. After a hearing, the Department denied Brown’s request. Brown appealed and the trial court reversed the Department’s order. Brown’s employer, the Douglas School District (the School), and the Associated School Boards of South Dakota Workers Compensation Trust Fund appeal. We affirm.

FACTS AND PROCEDURE

[¶ 2.] Brown, age 59 in 2001, worked in the cafeteria at the School for twenty-four years. She began her work for the School in 1973 as a temporary substitute in food service. She was eventually promoted to cafeteria supervisor, and for the last twelve years she was responsible for serving 30 breakfasts a day, 1200 to 1400 hot lunches a day and more than 200 breakfasts and lunches for Head Start children. At all times her work involved physical labor and lifting food.

[¶ 3.] On May 8, 1997, Brown was preparing mashed potatoes. This required Brown to carry a five-gallon pot that was roughly two-thirds full of water to a floor mixer. Brown bent forward and twisted to pour the water, lifting and tilting the pot by the handle. She felt a severe sharp pain in her back. Brown set the pot down and took a seat on a stool that a co-worker placed under her. Brown could not move. The School called the rescue department, an ambulance arrived, and Brown was transported to the hospital emergency room. Brown was diagnosed with compression fractures of the T12 and LI vertebrae of her back. She was hospitalized for two weeks and subsequently released with a hard cast over her torso.

[¶ 4.] In September of 1997, Brown returned to work for two hours a day. Due to the pain in her back, she only could handle work for two weeks. On February 16, 1998, Brown’s rehabilitative physician, Dr. Lawlor, concluded that she had reached maximum medical improvement and would not be able to work. Brown took a medical leave of absence and resigned her employment in May of 1999.

[¶ 5.] Before the May 8, 1997 injury, Brown had other physical problems. She began smoking forty years ago. Over the years she smoked as much as two packs a day. Brown’s pulmonologist, Dr. McCaf-ferty, testified that Brown was “terribly addicted” to nicotine. As a result of her smoking, she was diagnosed with chronic obstructive pulmonary disease (COPD) in 1991. COPD is a lung disease with symptoms including destruction of lung tissue, narrowing of the airways, shortness of breath and difficulty with the flow of air to the lungs. For this disease, Dr. McCafferty prescribed Prednisone, a steroid that, among others, has a side effect of causing osteoporosis. Dr. McCafferty’s testimony and medical records established that he clearly explained to Brown that she would have to continue taking Prednisone if she did not quit smoking.

[¶ 6.] Nevertheless, Brown continued to smoke, and in 1994 she was diagnosed with osteoporosis. Osteoporosis is a disease which results in the gradual weakening of the bones and bone fractures. According to Dr. Cynthia Anderson Weaver (Dr. Weaver), Brown’s rheumatologist, the bones that are most likely to fracture in a person with osteoporosis are the vertebrae of the spine. In addition to suffering from COPD and osteoporosis, Brown also suffered from shingles, a viral disorder that Brown describes as “extremely” painful. Furthermore, on August 3, 1998, (five months after her work injury) Dr. Lawlor concluded that Brown’s x-rays showed a mild compression fracture at L3, which could have occurred prior to her work injury.

[¶ 7.] In the one-year period before Brown’s May 8, 1997, injury, she was hospitalized on seven different occasions and visited the emergency room eight times for non-work related problems. Also, less than a month before the injury on May 8, 1997, Brown took a two-month leave of absence from work due to her COPD and shingles. Prior to the May 8, 1997, injury, however, Brown was always able to return to work despite her other health problems. After the May 8, 1997, injury her schedule became sporadic until she was completely unable to work.

[¶ 8.] The Department concluded that Brown was not entitled to permanent total disability benefits because she failed to prove her injury at work was “a major contributing cause” of her disability, pursuant to SDCL 62-1-1(7). Rather, the Department concluded, Brown’s osteoporosis, COPD and shingles were “a major contributing cause,” and therefore her injury was not compensable. The trial court disagreed, and awarded Brown permanent total disability benefits. The School appeals on the following issues:

1. Whether Brown’s work injury was “a major contributing cause” of her disability.
2. Whether the School must file a timely notice of review to obtain a trial court’s review of an agency decision.

STANDARD OF REVIEW

[¶ 9.] The standard of review in an administrative appeal is governed by SDCL 1-26-36. Fact questions are reviewed under the clearly erroneous standard and questions of law are reviewed de novo. Wendell v. South Dakota Dept. of Transp., 1998 SD 130, ¶ 5, 587 N.W.2d 595, 597. We give deference, Watertown Coop. Elevator Assn. v. State Dept. of Revenue, 2001 SD 56, ¶ 10, 627 N.W.2d 167, 171, and great weight to the agency or hearing officer on fact questions. Goebel v. Warner Transp., 2000 SD 79, ¶ 10, 612 N.W.2d 18, 21; Kurtz v. SCI, 1998 SD 37, ¶¶ 9-10, 576 N.W.2d 878, 881-82; Sopko, 1998 SD 8 at ¶ 6, 575 N.W.2d at 228. Findings of fact are clearly erroneous when the reviewing court has a definite and firm conviction that a mistake has been made. Goebel, 2000 SD 79 at ¶ 10, 612 N.W.2d at 21; Kurtz, 1998 SD 37 at ¶ 9, 576 N.W.2d at 882; Sopko, 1998 SD 8, at ¶ 6, 575 N.W.2d at 228. When factual determinations are made on the basis of documentary evidence, however, we review the matter de novo, unhampered by the clearly erroneous rule. Watertown Coop. Elevator, 2001 SD 56 at ¶ 10, 627 N.W.2d at 171; Kurtz, 1998 SD 37 at ¶ 10, 576 N.W.2d at 882. Mixed questions of fact and law are fully reviewable. Heir v. Dakotah, Inc., 2000 SD 90, ¶ 11, 613 N.W.2d 549, 552.

[¶ 10.] In this case, the Department’s decision was made on deposition testimony from the doctors and experts. The only live testimony came from claimant Brown. The trial court applied the proper de novo standard of review. The trial court made findings of fact and conclusions of law that are required when an administrative decision is reversed, in order to enable the Supreme Court to review the trial court’s reasoning. SDCL 1-26-36; Schroeder v. Dept. of Social Services, 529 N.W.2d 589, 591-92 (S.D.1995).

[¶ 11.] Brown argues that the standard of review on appeal from the trial court’s reversal of the agency decision is the clearly erroneous standard set forth in SDCL 15-6-52(a). In other words, the trial court reviews the agency decision de novo, unhampered by the clearly erroneous rule, but this Court would be bound to review the trial court’s findings of fact under the clearly erroneous standard.

[¶ 12.] The Supreme Court’s review of a trial court’s findings of fact was amended in 2000 when the legislature revised SDCL 15-6-52(a). This Court noted the following in Pamnely v. Hildebrand:

This case was presented to the trial court through prepared written statements of facts, exhibits, and depositions. In such a situation, we would have previously reviewed a trial court’s findings of fact de novo. However, last year the legislature amended SDCL 15-6-52(a), which now requires all findings of fact, “whether based on oral or documentary evidence” to be reviewed under the clearly erroneous standard. SL 2000, ch. 91, § 1. Therefore, the trial court’s findings of fact will not be set aside unless “we are left with a definite and firm conviction that a mistake has been made.”

2001 SD 83, ¶ 6, 630 N.W.2d 509, 512 (internal citations omitted). Brown buttresses her argument with SDCL 1-26-37, which provides:

An aggrieved party or the agency may obtain a review of any final judgment of the circuit court under this chapter by appeal to the Supreme Court. The appeal shall be taken as in other civil cases. The Supreme Court shall give the same deference to the findings of fact, conclusions of law and final judgment of the [trial] court as it does to other appeals from the circuit court. Such appeal may not be considered de novo.

Brown contends that the “same deference to findings of fact” is the clearly erroneous standard as set forth in SDCL 15-6-52(a). We disagree.

[¶ 13.] The question of whether the new standard of review applied to trial court appellate review of an administrative decision was alluded to in Webster Educ. Ass’n v. Webster Sch. Dist., where this Court stated:

Our legislature has recently revised our standard of review for agency decisions: “Findings of fact, whether based on oral or documentary evidence, may not be set aside unless clearly erroneous!.]” SDCL 15-6-52(a). Since the parties stipulated to the facts before the DOL, the issues presented to the circuit court were solely legal issues to be reviewed de novo.

2001 SD 94, ¶ 4, 631 N.W.2d 202, 204 (additional citations omitted). However, Justice Konenkamp noted in his concurring opinion, “[t]he majority opinion reaches the correct conclusion, and I concur with it. The parties agreed to de novo appellate review. But whether we apply the standard of review from SDCL 15-6-52(a) to agency fact findings on disputed or undisputed facts must be left for another day.” Id. at ¶ 16, 631 N.W.2d at 206 (Ko-nenkamp, J., concurring).

[¶ 14.] That day has come.

[¶ 15.] We reject Brown’s argument that we are to ignore the Department’s findings and review the trial court’s findings under the clearly erroneous standard. SDCL 15-6-52(a) does not apply to a trial court’s review of agency decisions for two reasons.

[¶ 16.] First, the beginning sentence of 15-6-52(a) provides: “In all actions tried upon the facts without a jury or with an advisory jury, the court shall” make findings of fact. The first sentence describes a court trial where evidence is heard, not an administrative appeal in trial court where evidence is not heard. Therefore, SDCL 15-6-52(a) does not relate to trial court appellate review. Instead, SDCL 1-26-37 requires the same deference afforded findings of fact in “other appeals from the [trial] court.”

[¶ 17.] Second, when there are no witnesses in a trial court appellate review of an agency decision, the trial court is reviewing the cold record, not determining the credibility of live witnesses. When it comes to an appeal, based on documents, depositions and transcripts, we can read the cold record just as well as the trial court. Justice Morgan wrote the following in Zeig v. South Dakota Dept. of Labor:

We next examine the issue of whether the decision by the appeal referee was clearly erroneous. SDCL 1-26-36. The trial court, in its memorandum opinion, found that “[g]iving the agency findings great weight, the appeals referee’s decision, which was affirmed by the Secretary of the Department of Labor, was not clearly erroneous in light of the entire evidence in the record.” We are not bound by the trial court’s reading of the record. We can read it for ourselves.

337 N.W.2d 435, 439-40 (S.D.1983) (emphasis added). The standard of review in an appeal to the Supreme Court from a trial court’s appellate review of an administrative decision is de novo: unaided by any presumption that the trial court is correct. Kurtz, 1998 SD 37 at ¶ 10, 576 N.W.2d at 882 (citing Zoss v. United Bldg. Centers, Inc., 1997 SD 93 at ¶ 6, 566 N.W.2d 840, 843).

ANALYSIS AND DECISION

[¶ 18.] 1. Whether Brown’s work injury was “a major contributing cause” of her disability.

[¶ 19.] Before Brown can collect any benefits under South Dakota’s workers’ compensation statutes, she must establish a causal connection between her injury and her employment. Johnson v. Albertson’s, 2000 SD 47, ¶ 22, 610 N.W.2d 449, 453. Brown must prove her employment was “a major contributing factor” to her injury, pursuant to SDCL 62-1-1(7). Id. at ¶ 22, 610 N.W.2d at 454. This statute defines “injury” as one that arises:

out of and in the course of employment. ... An injury is compensable only if it is established by medical evidence, subject to the following conditions:
(a) No injury is compensable unless the employment or employment related activities are a major contributing cause of the condition complained of; or
(b) If the injury combines with a preexisting disease or condition to cause or prolong disability, impairment, or need for treatment, the condition complained of is compensable if the employment or employment related injury is and remains a major contributing cause of the disability, impairment, or need for treatment.

SDCL 62-1-1(7) (emphasis added). “Injury is the act or omission which causes the loss whereas condition is the loss produced by an injury, the result.” Grauel v. South Dakota Sch. of Mines and Technology, 2000 SD 145, ¶ 9, 619 N.W.2d 260, 263 (emphasis in original) (citing Steinberg v. South Dakota Dep’t of Military & Veterans Affairs, 2000 SD 36, ¶ 10, 607 N.W.2d 596, 600)). In short, in order for Brown to prevail she must show both: (1) that her injury arose out of and in the course of employment, and (2) that, in this case involving a preexisting disease or condition, her employment or employment related injury is and remains “a major contributing cause” of her disability. Id. “This causation requirement does not mean that the employee must prove that [her] employment was the proximate, direct, or sole cause of [her] injury; rather the employee must show that [her] employment was a ‘contributing factor ‘ to [her] injury.” Arends v. Dacotah Cement, 2002 SD 57, ¶ 13, 645 N.W.2d 583 (citing Gilchrist v. Trail King Indus., Inc., 2000 SD 68, ¶ 7, 612 N.W.2d 1, 4.)

[¶ 20.] The parties do not dispute that Brown’s injury arose out of the course of her employment. Thus, our only inquiry on appeal is whether her employment was a major contributing cause of her disability. In this case, all of the medical evidence was presented through depositions. To determine if Brown established by a preponderance of medical evidence that her employment was a major contributing cause of her disability, we review the medical testimony de novo.

[¶ 21.] Dr. Lawlor opined that the compression fracture at T12-L1 was and remained a major contributing cause of Brown’s condition, disability and need for treatment. Testifying to the cause of Brown’s injury, Dr. Lawlor stated: “I would consider the twisting motion to have been the major contributing cause and the osteoporosis a minor contributing cause.” He explained: “Prior to the injury she was working even though she had COPD and was getting along reasonably well, though with very little tolerance for increased physical activity. Since that time, the combination of her injury and the subsequent pain has left her unable to tolerate that level of activity.” With respect to her osteoporosis, Dr. Lawlor testified:

We have to go back to the activity that precipitated [Brown’s] current symptoms. And while the osteoporosis was present the day before and a week before, it was the activity that caused her symptoms. An example would be if someone had osteoporosis and was involved in a car wreck and suffered a compression fracture. I would say that the car wreck was the major cause of the compression fracture, the osteoporosis would have been a contributing cause. It was that activity. Similarly with her it was the activity that she did that has left her in her current state of pain.

[¶ 22.] The Department relied on Dr. Dale Anderson’s testimony. Dr. Anderson is an orthopedic surgeon the School hired to conduct an independent medical examination and review of Brown’s records. Like Dr. Lawlor, Dr. Anderson concluded that Brown sustained a compression fracture of her spine at T12-L1 while at work on May 8, 1997. Where the doctors diverged was whether Brown’s work activities were or remain “a major contributing cause” of Brown’s disability. Dr. Anderson testified as follows:

Q: [D]o you have an opinion as to whether the compression fracture at T12-L1 that was diagnosed on or around May 8, 1997, whether that is a major contributing cause of Ms. Brown’s current inability to work?
A: I do not believe the compression fracture that occurred to her at work in 1997 is the major contributing factor to be unable to work now.
Q: [D]o you have an opinion as to whether the compression fracture T12-L1 ... is or remains a major contributing cause of Ms. Brown’s current need for treatment?
A: Her current need for treatment I think is primarily pulmonary, and it is not related to her compression fracture that she sustained in 1997.

(emphasis added). Dr. Anderson elaborated, “[h]er employment is not the cause for her treatment at the present time or her disability at this time.... I think it’s the smoking, the osteoporosis, the Prednisone, that combination is what’s causing her impairment at the present time.” Dr. Anderson also explained that Brown could have sustained a compression fracture from traumas as slight as sneezing or coughing because her bones were so weak from osteoporosis.

[¶ 23.] Brown did not have to prove that the work injury was “the” major contributing cause, only that it was “a” major contributing cause, pursuant to SDCL 62-1-1(7). In 1995, the statute was proposed to the Legislature in Senate Bill 234 with the wording “the major contributing cause.” However, the Legislature rejected this more restrictive standard and amended “the” to “a” major contributing cause. 1995 Senate Journal at 633-34; 1995 House Journal at 977.

[¶ 24.] Both Dr. Lawlor and Dr. Anderson applied the wrong standard. Dr. Lawlor testified that Brown’s work injury on May 8, 1997, was “the major contributing cause” of her disability. Despite being asked whether Brown’s injury on the job was “a major contributing cause,” Dr. Anderson testified that Brown’s injury on the job on May 8, 1997, was “not ... the major contributing factor” in Brown’s disability. Both doctors used a standard that was too high. All Brown had to prove was that her injury was “a major contributing factor.”

[¶ 25.] In this case, application of the higher standard by both doctors works to Brown’s advantage. Dr. Anderson’s opinion is less persuasive because he holds Brown to a higher standard than the law requires. Conversely, Dr. Lawlor’s opinion, in which he uses the higher standard, is more persuasive. According to Dr. Lawlor, not only is Brown’s injury “a major contributing cause,” but “the major contributing factor.” Brown has not only met but also exceeded her burden of proof in this case.

[¶ 26.] The School also argues that since Brown had non-work related compression fractures both before and possibly after May 8, 1997, that this indicates Brown’s work is not a major contributing cause of her condition. Dr. Anderson admitted on cross-examination, however, that any compression fractures prior to May of 1997 were completely asymptomatic and did not interfere with her ability to work.

[IF 27.] The School also relies on the testimony of Dr. Weaver, who stated “patients who have multiple fractures are more likely to have chronic pain. They have more deformity of their back, more mechanical changes in their back, and therefore, are going to have more problems.” Dr. Weaver did not, however, testify that this occurs with every patient or that it occurred to Brown. The trial court found that “[n]o medical evidence shows that any subsequent fractures sustained by Brown were any more significant in creating her inability to work than the May 8, 1997, fractures.” We agree. After reviewing the doctors’ deposition testimony, the facts of this case clearly demonstrate that the disabling fractures occurred on May 8,1997.

[¶ 28.] This Court stated in Steinberg that “[i]f the injured employee can prove the injury arose out of and in the course of employment, and that employment related incident was a major contributing cause of the resulting condition, the employer’s liability is established.” Steinberg, 2000 SD 36 at ¶ 29, 607 N.W.2d at 606. Brown has shown both requirements. The trial court did not err in reversing the Department’s decision and awarding Brown permanent disability benefits.

[¶ 29.] 2. Whether the School must file a timely notice of review to obtain a trial court’s review of an agency decision.

[¶ 30.] The School argues that the trial court abused its discretion when it denied the School’s motion to file its notice of review and granted Brown’s motion for dismissal on the School’s additional statement of the issues. Since this is an issue of law, this Court’s standard of review is de novo. Harksen v. Peska, 2001 SD 75, ¶ 9, 630 N.W.2d 98,101.

[¶ 31.] On October 30, 2000, Brown served her notice of appeal. The School filed an additional statement of issues on November 7, identifying the Department’s denial of a willful misconduct defense and award of benefits for an impairment rating. However, the School failed to file a timely notice of review as required by SDCL 1-26-36.1. The statute provides that the School “may obtain review of a final decision, ruling or action of any agency which may adversely affect [it] by filing a notice of review with the clerk of circuit court within twenty days after service of the notice of appeal.” SDCL 1-26-36.1 (emphasis added). On November 29, after more than twenty days had passed since service of the notice of appeal, Brown moved to dismiss the School’s additional statement of issues. In response, the School filed an application for relief of default and extension of time. The trial court granted Brown’s motion and denied the School’s application. The trial court held that the School waived its right to obtain review and that the trial court was without jurisdiction to hear the issues the School sought to have reviewed.

[¶ 32.] The School argues that the statute’s use of the word “may” means that the School’s filing of a notice of review is optional. We disagree. The word “may” in this statute means that the School may seek review of the Department’s decision. While the School is not required to seek review, if it chooses to do so, it must file “within 20 days after service of notice of appeal.” SDCL 1-26-36.1. The School waited more than twenty days to seek review, and therefore failed to meet this mandatory deadline.

[¶ 33.] The School also argues that the trial court should have allowed it to file a notice of review pursuant to SDCL 1-26-30.5, which provides:

In the interest of expediting decisions in cases of pressing concern to the public or litigants, or for good cause shown, the circuit court may suspend the requirement provisions of these rules on application of a party or on its own motion and may order proceedings in accordance with its direction.

(emphasis added). This statute is clear that it is within the discretion of the trial court to suspend the requirement provisions. Further, the issue does not involve expediting a decision or other good cause. The School defaulted on a mandatory deadline.

[¶ 34.] The School finally argues that its failure to timely file a notice of review should be excused because it substantially complied with 1-26-36.1. We disagree. Full compliance is required. Schreifels v. Kottke Trucking, 2001 SD 90, ¶ 10, 631 N.W.2d 186, 189 (citing Matter of Groseth Intern., Inc., 442 N.W.2d 229 (S.D.1989)). The School, therefore, has shown no basis for overturning the trial court’s refusal to relieve the School from its default.

[¶ 35.] We affirm.

[¶ 36.] GILBERTSON, Chief Justice, and SABERS, AMUNDSON, and KONENKAMP, Justices, concur.

[¶ 37.] ZINTER, Justice, not having been a member of the Court at the time this action was submitted to the Court, did not participate.

      . The proper review of fact determinations by an administrative agency is clearly erroneous, not substantial evidence. Sopko v. C & R Transf. Co., 1998 SD 8, ¶ 6, 575 N.W.2d 225, 228.

      . Although Brown testified at the Department's hearing, neither the Department nor the trial court entered findings as to Brown’s credibility.

      . This distinction is similar to negligence cases, where the plaintiff does not have to prove that the defendant's negligence was "the proximate cause” of the injury but that it was "a proximate cause.” See Schmeling v. Jorgensen, 77 S.D. 8, 19, 84 N.W.2d 558, 564 (1957)(stating, "[a]nd, of course, negligence, to render a person liable, need not be the sole cause of injury, but it is sufficient that his negligence concurring with one or more efficient negligent acts of third persons, is a proximate cause of the injury.” (citing Lapp v. J. Lauesen Co., 67 S.D. 411, 293 N.W. 536; Rowan v. Becker, 73 S.D. 273, 41 N.W.2d 836; and Hjermstad. v. Petroleum Carriers, 74 S.D. 406, 53 N.W.2d 839). See also Northwestern Bell Tel. Co. v. Henry Carlson Co., 83 S.D. 664, 669, 165 N.W.2d 346, 349 (1969)) (stating, “it is a fundamental rule that negligence to be actionable must be a proximate cause of the damage.").


source: Caselaw Access Project

author: SABERS, Justice. ZINTER, Justice

license: Public Domain

text:
    2002 SD 98
    Constance R. CURREY, Plaintiff and Appellee, v. Shawn M. CURREY, Defendant and Appellant, Marvin Currey and Darlene Currey, Intervenors and Appellants.
    No. 22184.
    Supreme Court of South Dakota.
    Considered on Briefs May 28, 2002.
    Decided Aug. 7, 2002.

      Wilson Kleibacker of Lammers, Lam-mers & Kleibacker, L.L.P., Madison, for plaintiff and appellee.
    Thomas J. Linngren of Green, Schulz, Roby, Oviatt, Cummings & Linngren, Wa-tertown, for defendant and appellant and intervenors and appellants.
   SABERS, Justice.

[¶ 1.] Marvin and Darlene Currey (Grandparents) sought a modification of visitation rights with their two grandchildren, the children of their son, Shawn Currey, and his ex-wife, Connie. Connie answered and countered to terminate the visitation rights of Grandparents. The trial court determined that (1) SDCL 25-4-52, which provides for grandparent visitation, was unconstitutional and (2) terminated Grandparents’ visitation rights. Grandparents appeal.. We reverse (1) and (2) and remand to determine whether grandparent visitation is in the best interests of the children.

FACTS

[¶ 2.] Shawn and Connie were divorced on January 29, 2001, in Watertown, South Dakota. Because Shawn was incarcerated at the time of the divorce, Connie was given legal and physical custody of the parties’ children, Ashley (DOB 3/12/94) and Tyler (DOB 8/24/95). The terms of the divorce decree and custody agreement provided for visitation in Grandparents. Connie required that Grandparents intervene as parties and agree to the terms of the custody agreement so that they would be subject to the contempt power of the trial court, if necessary.

[¶ 3.] In June 2001, Connie accepted a teaching position in Madison, South Dakota. She informed Grandparents that she would be moving in July and that they would need to come to Madison to exercise their visitation rights. In response, Grandparents petitioned the trial court for a modification of their visitation schedule. Connie asked the trial court to declare South Dakota’s grandparent visitation statute, SDCL 25-4-52, unconstitutional under Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147. L.Ed.2d 49 (2000), and terminate Grandparents’ visitation with the children.

[¶ 4.] Following a hearing on July 18, 2001, the trial court modified Grandparents’ visitation schedule to provide for visitation with the children in Madison. The trial court did not rule initially on the constitutionality of SDCL 25-4-52 and ordered the parties to submit briefs on the issue. On September 17, 2001, the trial court issued a memorandum decision declaring SDCL 25-4-52 unconstitutional and the divorce decree and custody agreement illegal and unenforceable, thereby terminating Grandparents’ visitation.

[¶ 5.] After the trial court rendered its decision, the attorneys for the parties learned that the constitutionality had been determined without reference to the 2001 legislative amendment of SDCL 25-4-52. The trial court reviewed the amended version of the statute and stated that the amendment did not cure the constitutional defect because the new version created a presumption against the parent, which the trial court stated was prohibited by Troxel.

[¶ 6.] Grandparents appeal, arguing that: 1) SDCL 25-4-52 is not unconstitutional, and 2) alternatively, even if it is, it is not determinative of the issue of Grandparents’ visitation rights because those rights arose by agreement and were approved by the court in the divorce decree.

STANDARD OF REVIEW

[¶ 7.] “Our review of a challenge to the constitutionality of a statute is de novo.” Burlington N. Railroad Co. v. Green, 2001 SD 48, ¶ 6, 624 N.W.2d 826, 829 (citing Green v. Siegel, Barnett & Schutz, 1996 SD 146, ¶ 7, 557 N.W.2d 396, 398) (citation omitted).

[¶ 8.] Modifications of visitation rights are reviewed under the abuse of discretion standard and the trial court’s ruling will be reversed only on a clear showing of an abuse. Olson v. Olson, 438 N.W.2d 544, 546 (S.D.1989) (citing Mayer v. Mayer, 397 N.W.2d 638 (S.D.1986); Flint v. Flint, 334 N.W.2d 680 (S.D.1983); Kolb v. Kolb, 324 N.W.2d 279 (S.D.1982)).

[¶ 9.] 1. WHETHER THE TRIAL COURT ERRED IN DECLARING SDCL 25-4-52 UNCONSTITUTIONAL.

[¶ 10.] The trial court determined:

SDCL 25-4-52 is unconstitutional as it infringes upon the fundamental right of a custodial parent to determine whether visitation with a grandparent would be in his/her child’s best interest. The provision in the parties’ agreement regarding grandparent visitation was placed there after the [United States] Supreme Court had struck down a grandparent visitation statute. This provision was clearly contrary to a “policy of express law,” [SDCL 53-9-1] and is thus unlawful.

In reaching this conclusion, the trial court relied heavily on the Troxel case. 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49. In Troxel, the United States Supreme Court declared a Washington visitation statute, Wash.Rev.Code § 26.10.160(3), unconstitutional. Id. at 73, 120 S.Ct. at 2064, 147 L.Ed.2d 49. The Washington statute provided: “Any person may petition the court for visitation rights at any time including, but not limited to, custody proceedings. The court may order visitation rights for any person when visitation may serve the best interest of the child whether or not there has been any change in circumstances.”

[¶ 11.] The United States Supreme Court determined that the statute was “breathtakingly broad” and “unconstitutionally infringe[d] on [the] ... fundamental right of parents to make decisions concerning the care, custody, and control of their children.” Id. at 66, 120 S.Ct. at 2060-61, 147 L.Ed.2d 49. This statute would permit “any third party seeking visitation to subject any decision by a parent concerning visitation of the parent’s children to state-court review.” Id. at 67, 120 S.Ct. at 2061, 147 L.Ed.2d 49. In effect, the statute allowed the trial court to place the burden on the custodial parent of “disproving that visitation would be in the best interest of [the children]” and “contravened the traditional presumption that a fit parent will act in the best interest of the children.” Id. at 69, 120 S.Ct. at 2062, 147 L.Ed.2d 49.

[¶ 12.] SDCL 25-4-52 is not unconstitutional under Troxel. Mother has failed to overcome the strong presumption in favor of constitutionality. This Court has stated:

There is a strong presumption that the laws enacted by the [LJegislature are constitutional and the presumption is rebutted only when it clearly, palpably and plainly appears that the statute violates a provision of the constitution. Further, the party challenging the constitutionality of a statute bears the burden of proving beyond a reasonable doubt that the statute violates a state or federal constitutional provision.

State v. Hauge, 1996 SD 48, ¶ 4, 547 N.W.2d 173, 175 (quoting Sedlacek v. Teener Baseball Program, 437 N.W.2d 866, 868 (S.D.1989)) (additional citations omitted) (emphasis added).

[¶ 13.] SDCL 25-4-52 provides for grandparent visitation “if the visitation is in the best interests of the grandchild and either the visitation would not significantly interfere with the parent-child relationship or the parent or custodian of the grandchild has denied or prevented a grandparent reasonable opportunity to visit the grandchild.” Unlike the Washington statute in Troxel, SDCL 25-4-52 is not over-broad. In fact, the statute takes effect if, and only if, “the visitation is in the best interests of the grandchild and either the visitation would not significantly interfere with the parent-child relationship or the parent or custodian of the grandchild has denied or prevented a grandparent reasonable opportunity to visit the grandchild.” It does not allow any individual to petition for visitation nor does it deprive the custodial parent of the fundamental right to make decisions concerning the care, custody, and control of the children. This statute is limited to grandparents and does not unreasonably deprive the custodial parent of the fundamental right to make decisions concerning the care, custody, and control of the children. The statute properly places the burden of proof upon the grandparents.

[¶ 14.] The last sentence of SDCL 25-4-52, which creates a presumption in favor of the grandparents, is unconstitutional under Troxel, but does not apply here and is clearly severable. See SD Educ. Assoc./NEA v. Barnett, 1998 SD 84, ¶ 33, 582 N.W.2d 386, 394 (holding that partial invalidity of general appropriation bill did not render it invalid in its entirety); Simpson v. Tobin, 367 N.W.2d 757, 768 (S.D.1985) (holding that the rule generally applicable to all legislative acts is that severability should occur “if [the remainder] can stand by [itself] and if it appears that the [Legislature would have intended the remainder to take effect without the invalidated section”). The last sentence of this statute improperly provides that “[t]here is a presumption that visitation with the grandparents is in the best interests of the grandchild if a parent of that grandchild, who is also the child of that grandparent, has died.” (emphasis added). This portion of the statute, however, is inapplicable to the facts of this case because Shawn is in prison and riot dead.

[¶ 15.] Therefore, there is no showing that SDCL 25-4-52 is unconstitutional under these circumstances and we reverse the decision of the trial court.

[¶ 16.] 2. WHETHER THE TRIAL COURT ERRED IN DENYING GRANDPARENTS VISITATION AS A MATTER OF LAW WITHOUT CONSIDERING THE BEST INTERESTS OF THE CHILDREN.

[¶ 17.] Grandparents argue that the trial court erred in failing to consider the best interests of the children. Because the trial court declared SDCL 25-4-52 unconstitutional, it terminated Grandparents’ visitation rights without considering the best interests of the children. It entered no findings of fact or conclusions of law when it summarily terminated Grandparents’ visitation.

[¶ 18.] It was error for the trial court to terminate Grandparents’ rights without making a determination of the best interests of the children. Even if SDCL 25^1-52 were unconstitutional, that would not necessarily determine Grandparents’ visitation rights because those rights arose by agreement. SDCL 53-9-1 provides: “A contract provision contrary to an express provision of law or to the policy of express law, though not expressly prohibited or otherwise contrary to good morals, is unlawful.” The provision providing for visitation rights in the divorce and custody agreement is “not expressly prohibited” or “contrary to an express provision of law.” Unless the agreement itself is clearly against public policy, it is not rendered unenforceable because of the unconstitutionality of a statute. See Commercial Trust and Sav. Bank v. Christensen, 535 N.W.2d 853, 858 (S.D.1995) (holding that relief is not generally granted under agreements that are -unenforceable as against public policy); McKellips v. Mackintosh, 475 N.W.2d 926, 929 (S.D. 1991) (holding that because “contract is void as against public policy it is unlawful and therefore, unenforceable” under SDCL 53-9-1). Here, grandparent visitation is “not expressly prohibited” or “contrary to an express provision of law” and is not against public policy.

[¶ 19.] Furthermore, in their written argument to the trial court, Grandparents requested that the trial court consider the applicability of SDCL 25-4-45, which provides in part:

In an action for divorce, the court may, before or after judgment, give such direction for the custody, care and education of the children of the marriage as may seem necessary or proper, and may at any time vacate or modify the same.

This statute allows the trial court to consider the best interests of the children either before of after rendering its judgment. Because the trial court failed to make any determination of the best interests of the children, it erred in terminating Grandparents’ visitation rights.

[¶ 20.] We conclude that there is no showing that SDCL 25-4-52 is unconstitutional under these circumstances and we reverse the trial court’s termination of visitation rights of the Grandparents and remand to determine whether grandparent visitation is in the best interests of these children.

[¶ 21.] GILBERTSON, Chief Justice, and AMUNDSON and KONENKAMP, Justices, concur.

[¶ 22.] ZINTER, Justice, concurs with a writing.

ZINTER, Justice

(concurring).

[¶ 23.] I concur and write to add two additional points.

[¶ 24.] First, the record reflects that the trial court fully intended to conduct a “best interests” hearing on the grandparents’ claim for visitation. In fact, the trial court appointed an expert to evaluate the visitation. The trial court also scheduled a hearing to “fully address the visitation rights of the grandparent’s .... ” However, before the scheduled hearing, both parties submitted briefs requesting the trial court to determine the law prior to proceeding with the “best interests” hearing. The trial court complied with that request and concluded that the statute and agreement did not, as a matter of law, afford grandparent visitation rights. Consequently, as the case stood before the trial court, there was no need to enter findings of fact after conducting a “best interests” hearing. The trial court certainly did not “summarily” terminate the grandparents’ rights without making the factual findings required by the case before it.

[¶ 25.] Second, in performing the “best interests” analysis on remand, the trial court should consider an additional factor. Troxel not only places the burden of proof on the' non-parent, but it also requires deference to a fit parent’s decision. This means that some special weight must be given to the parent’s own determination. .As the United States Supreme Court noted:

In an ideal world, parents might always seek to cultivate the bonds between grandparents and their grandchildren. Needless to say, however, our world is far from perfect, and in it the decision whether such an intergenerational relationship would be beneficial in any specific case is for the parent to make in the first instance. And, if a fit parent’s decision of the kind at issue here become subject to judicial review, the court must accord at least some special weight to the parent’s own determination.

Troxel, 530 U.S. at 70, 120 S.Ct. at 2062, 147 L.Ed.2d at 49.

      . Shawn was convicted of two counts of sexual contact with a minor child, not his child, on January 8, 1999, and sentenced to seven years in the state penitentiary. He was released on parole January 12, 2000, but his parole was revoked following an altercation with his wife, which resulted in a simple assault charge. He is now serving the remainder of his sentence. Connie filed for divorce thereafter.

      . Grandparents wanted to take the children to see Shawn in the penitentiary. Connie did not think it was in the children's best interests to visit the penitentiary. Instead of visitation with Shawn, Grandparents received visitation with the children every Wednesday night and Shawn’s visitation with the children was limited to telephone and mail.

      .The original version of SDCL 25-4-52 provided:
      The circuit court may grant grandparents reasonable rights of visitation with their grandchild, with or without petition by the grandparents, if it is in the best interests of the grandchild.

        As amended, the statute provides:
      The circuit court may grant grandparents reasonable rights of visitation with their grandchild, with or without petition by the grandparents, if the visitation is in the best interests of the grandchild and either the visitation would not significantly interfere with the parent-child relationship or the parent or custodian of the grandchild has denied or prevented a grandparent reasonable opportunity to visit the grandchild. There is a presumption that visitation with the grandparents is in the best interests of the grandchild if a parent of that grandchild, who is also the child of that grandparent, has died.

      . Tommie Granville and Brad Troxel never married but had two daughters. Troxel, 530 U.S. at 61, 120 S.Ct. at 2057, 147 L.Ed.2d 49. Troxel lived with his parents and regularly brought his daughters to his parents’ home. Id. Two years after the end of their relationship, Troxel committed suicide. Id. Granville initially allowed Troxel’s parents to see the children, but then told them that she wished to limit their visitation to one monthly visit. Id. In 1993, the Troxels filed a petition to obtain visitation rights with their grandchildren. Id. The trial court granted the Troxels' petition, ruling that it was in the children's best interests to have visitation with their grandparents. Id. at 61, 120 S.Ct. at 2058, 147 L.Ed.2d 49. Granville appealed and the Washington Court of Appeals reversed the lower court and dismissed the Troxels' petition. Id. The Washington Supreme Court affirmed the court of appeals' decision and determined that the Washington statute under which visitation was granted was unconstitutional. Id. at 63, 120 S.Ct. at 2058, 147 L.Ed.2d 49.

      . The agreement here was not contrary to the public policy of Troxel because the Due Process Clause only prohibits "government interference" with the liberty interests of parents to the care, custody and control of their children. Troxel, 530 U.S. at 65, 120 S.Ct. at 2059-60, 147 L.Ed.2d 49. Thus, it is the government that is restrained from certain types of interference with parental decision making: parents remain free and unrestrained to make private consensual agreements for grandparent visitation. The trial court did not reach the issue of the enforceability of the agreement apart from Troxel. Consequently, we have not considered that issue on appeal.

      . Even in their briefs in this appeal, Grandparents continue to argue "that all issues to be decided herein are legal in nature rather than factual ....”


author: GILBERTSON, Chief Justice

text:
    2002 SD 99
    Thomas S. LAIRD, Plaintiff and Appellee, v. Emma French LAIRD, Defendant and Appellant.
    No. 21998.
    Supreme Court of South Dakota.
    Considered on Briefs Feb. 11, 2002.
    Decided Aug. 7, 2002.
    Rehearing Denied Sept. 16, 2002.

      Roger W. Damgaard of Woods, Fuller, Shultz & Smith, Sioux Falls, South Dakota, Attorneys for plaintiff and appellee.
    Catherine V. Piersol and Leah Piersol Crain, Sioux Falls, South Dakota, Attorneys for defendant and appellant.
    [¶ 1.] Circuit Judge JAMES W. ANDERSON sitting for Justice RICHARD W. SABERS, disqualified, delivers the majority opinion of the Court on Issues One, Two and Four.
    [¶ 2.] Justice ROBERT A. AMUNDSON delivers the majority opinion of the Court on Issue Three.
    [¶ 3.] JAMES W. ANDERSON, Circuit Judge, writing the majority on Issues One and Two.
    [¶ 4.] Emma French Laird appeals a circuit court judgment denying her request for modification of child support. Emma also contends that the circuit court erred in denying her requested reimbursement of health insurance premiums.
   FACTS

[¶ 5.] Emma French Laird (Emma) and Thomas S. Laird (Thomas) were married for sixteen years. The parties had two children, Jonathan, born March 25, 1983 and Robert, born July 14, 1987. In July 1997 the parties entered into a stipulation and agreement of divorce (stipulation of divorce) that was adopted by the trial court. The stipulation of divorce provided for joint legal custody, with Emma having physical custody. Thomas was allowed liberal, unstructured visitation.

[¶ 6.] The stipulation of divorce also set forth several other factors. Thomas was to pay the sum of $1500 per month in child support. Thomas was also given a $250 credit on his child support payment so long as he maintained health and dental insurance. Thomas agreed to continue paying the premiums on a $200,000 life insurance policy for the benefit of the children and to maintain the boys’ college funds. Thomas was also responsible for any of the children’s medical expenses not covered by insurance.

[¶ 7.] Thomas was the president of Security State Bank, in Tyndall, South Dakota at the time of the divorce and Emma was a realtor. Following the divorce Thomas joined the Board of Directors of Audio Video Dimensions and moved to Plymouth, Minnesota, commuting to Tyndall a few days per week. Emma and the boys moved to Yankton, South Dakota.

[¶ 8.] The Laird family enjoyed a good standard of living in Tyndall, South Dakota prior to the divorce. The house they lived in was worth $110,000. They belonged to the Tyndall Country Club, took family vacations, drove newer cars and owned more than one airplane.

[¶ 9.] On or about May 3, 2000 Emma commenced a motion for order of modification of child support, payment of medical bills and other post divorce matters. The motion was argued before Judge Lee Tappe on August 22, 2000. The circuit court denied Emma’s motion and issued findings of fact and conclusions of law accordingly.

[¶ 10.] The circuit court found that although the parties’ income is disparate each party is a millionaire in their own right. The circuit court based its decision on the 1999 adjusted gross income of the parties because the 2000 figures were speculative at best. Emma’s adjusted gross income was $47,285 and Thomas’ was $281,281 (included in this figure is a one time capital gain from the sale of stock for $129,300). The circuit court held that retained earnings of the bank should be taken into account in determining Thomas’ total assets, but, since there was more than enough income to meet the children’s needs, assets were irrelevant in calculating child support.

[¶ 11.] The parties’ combined monthly income exceeds the statutory support schedule in SDCL 25-7-6.2. Based on the evidence presented the court chose not to extrapolate beyond the guidelines.

ISSUES

[¶ 12.] Emma appeals four issues:

Whether the circuit court abused its discretion and committed reversible error by fading to include all sources of the non-custodial parent’s income for purposes of determining child support.
Whether the trial court abused its discretion and committed reversible error by characterizing the non-custodial parent’s retained earnings as an asset rather than income and thereby not including them for the purpose of calculating child support.
Whether the trial court abused its discretion and committed reversible error by refusing to extrapolate beyond the child support guidelines Whether the trial court abused its discretion and committed reversible error by refusing to order repayment of child support withheld to pay health insurance premiums which are actually paid by father’s employer.

STANDARD OF REVIEW

[¶ 13.] Findings of fact are reviewed under the clearly erroneous standard. This Court must be left with a definite and firm conviction that a mistake has been made to overturn a circuit court’s findings. Watson-Wojewski v. Wojewski, 2000 SD 132, ¶ 13, 617 N.W.2d 666, 669-670 (citing Billion v. Billion, 1996 SD 101, ¶ 13, 553 N.W.2d 226, 230). Questions of law are reviewed de novo. Hendricksen v. Harris, 1999 SD 130, ¶ 7, 600 N.W.2d 180, 181.

[¶ 14.] An award of child support will not be disturbed unless the trial court clearly abused its discretion. Watson, 2000 SD 132 at ¶ 14, 617 N.W.2d at 670 (citing Steffens v. Peterson, 503 N.W.2d 254, 257 (S.D.1993)). Abuse of discretion is defined as “a discretion exercised to an end or purpose not justified by, and clearly against, reason and evidence.” Billion, 1996 SD 101 at ¶ 14, 553 N.W.2d at 230. The question is not would this Court have made the same decision, but “whether a judicial mind, in view of the law and circumstances of the particular case, could reasonably have reached such a conclusion.” Id. (citing Nelson v. Nelson, 454 N.W.2d 533, 534 (S.D.1990)).

ANALYSIS ISSUE ONE

[¶ 15.] Whether the circuit court abused its discretion and committed reversible error by failing to include all sources of the non-custodial parent’s income for purposes of determining child support.

[¶ 16.] Stated differently, the issue is whether or not the circuit court committed reversible error by using the parties’ 1999 income figures instead of using 2000 figures. Emma argues that the circuit court’s use of Thomas’ 1999 income was clearly erroneous. She claims that Thomas will earn significantly more income in the year 2000, than he did in 1999, while her income will remain relatively unchanged. The circuit court addressed this issue in its findings of fact. The court specifically found that, “The parties’ relative adjusted gross incomes for the year 1999 shall be used for purposes of calculations in this case and not the estimated 2000 incomes. The 1999 incomes are known, while the 2000 incomes are speculative.” (Finding of Fact No. 49).

[¶ 17.] The circuit court may exercise discretion in setting child support. The circuit court must consider the “reasonable needs of the child and the obligor’s ability to pay.” Havens v. Henning, 418 N.W.2d 311, 312 (S.D.1988) (citing Gross v. Gross, 355 N.W.2d 4 (S.D.1984)). The circuit court’s findings in this case reveal that it considered the speculative nature of the 2000 income and the facts surrounding the parties’ income. The circuit court did not abuse its discretion in using the 1999 incomes of the parties.

ISSUE TWO

[¶ 18.] Whether the trial court abused its discretion and committed reversible error by characterizing the noncustodial parent’s retained earnings as an asset rather than income and thereby not including them for the purpose of calculating child support.

[¶ 19.] Emma claims that the circuit court inappropriately excluded from Thomas’ gross income his share of the bank’s retained earnings. She claims that Thomas’ share of the retained earnings is $4,215,215.50.

[¶ 20.] Emma characterizes retained earnings in a bank as “undivided profits.” South Dakota Law defines gross income as:

Gross income from a business, profession, farming, rentals, royalties, estates, trusts or other sources, are the net profits or gain, or net losses shown on any or all schedules filed as part of the parents’ federal income tax returns....

SDCL 25-7-6.6. The above statute definitely contemplates including retained earnings in gross income if they were filed as part of Thomas’ federal income tax return. Id.

[¶ 21.] This Court has addressed retained earnings in the previous cases of Watson, 2000 SD 132, 617 N.W.2d 666 and in Ochs v. Nelson, 538 N.W.2d 527 (S.D.1995). In Watson, retained earnings from a limited partnership were considered gross income for purposes of determining child support. Watson, 2000 SD 132 at ¶ 27, 617 N.W.2d at 672. In Ochs the court included in the father’s income his share of a closely held corporation’s retained earnings. Ochs, 538 N.W.2d at 529.

[¶ 22.] In this case the circuit court made numerous findings in regard to classifying retained earnings as an asset rather than income. The circuit court recognized that whether to include retained earnings in child support calculations is a highly fact specific determination. (Finding of Fact 26). The court noted that Security State Bank in Tyndall, South Dakota is not the same as a “mom and pop” corporation as was the case in Ochs. (Finding of Fact 27). The court also found that banks are highly regulated industries and Thomas cannot simply write himself a check from the bank’s undivided profits. (Findings of Fact 29, 30). In Ochs, Mr. Nelson borrowed $79,000 from the corporation and had made no payments in satisfaction of that debt. (Finding of Fact 31). The banking industry on the other hand has strict rules and regulations relating to insider transactions. Id. The circuit court analyzed this issue very carefully as evidenced by its detailed findings distinguishing the Ochs case.

[¶ 23.] In Watson this Court listed several factors to consider in determining whether or not retained earnings should be considered income. Watson, 2000 SD 132 at ¶ 32, 617 N.W.2d at 673. This Court took into consideration whether or not the earnings were held for reinvestment purposes, were reported on tax returns, and were paid as cash. Id.

[¶ 24.] In this case Security State Bank is made up of many shareholders and directors. (Findings of Fact 32, 33). Thomas is both a shareholder and a director of Security State Bank. Id. Therefore, the decision of whether to pay dividends from retained earnings is not one made exclusively by Thomas. Further, all of the bank’s retained earnings are not readily available for distribution. Finally Thomas’ 1999 income tax return does not list his share of the retained earnings as incomé rather it lists the receipt of dividends paid out by the Bank for that year.

[¶ 25.] The real question is whether Thomas can readily receive his share of the bank’s retained earnings. It is apparent that he cannot. The trial court did not abuse its discretion in holding that retained earnings from the bank should be considered an asset rather than income and that since there is enough income between the parties to support the children, assets are not relevant. SDCL 25-7-6.5.

[¶ 26.] GILBERTSON, Chief Justice, and AMUNDSON and KONENKAMP, Justices, and GORS, Acting Justice, concur.

[¶ 27.] ZINTER, Justice, not having been a member of the Court at the time this action was submitted to the Court, did not participate.

[¶ 28.] AMUNDSON, Justice, writing the majority on Issue Three.

ISSUE THREE

[¶ 29.] Whether the circuit court abused its discretion by failing to extrapolate beyond the statutory child support guidelines.

[¶ 30.] Emma argues that the circuit court erred by refusing to extrapolate beyond the statutory child support guidelines. The circuit court determined that the parties’ combined monthly income did exceed the guidelines in SDCL 25-7-6.2. It, however, found that Emma failed to submit adequate proof of the children’s actual needs and standard of living. Therefore, the court declined to extrapolate beyond the child support guidelines.

[¶ 31.] In Ochs, 538 N.W.2d at 528, we upheld an extrapolated monthly child support award of $1,456 per month, which was to be paid in addition to $288 per month in daycare. There, the father had a yearly income of $62,345 and had an 80 percent interest in a closely held corporation that had an average yearly net income of $116,345, of which $93,524 was imputed to the father to reflect his interest. Id. The father in Ochs also had a nice home, a vacation cabin in the Black Hills, and other luxuries that the mother, who made about $12,000 per year, did not. Id. There, we upheld the award by emphasizing the standard of living of the child and focusing on the disparities between the mother’s lifestyle and the father’s lifestyle. Id. at 530.

[¶ 32.] In Ochs, the two-year-old child at issue was not accustomed to his father’s more-than-comfortable income, vacation home and “quality home in a fashionable area of Sioux Falls” because he never lived with the father. Id. at 528. His parents were never married and the mother had custody. Therefore, the child spent the vast majority of his time with his mother, who lived a far more meager lifestyle. Id. Still, the majority noted that children have an interest in parents’ “well-to-do” living standards. Id. at 531.

[¶ 33.] If we fail to permit extrapolation in this case, we would be creating extremely inconsistent precedent for future child support cases. In Ochs we focused on creating a standard of living for a very young child who had never appreciated or become accustomed to a more lavish lifestyle. Here, we have children who are accustomed to an extremely high standard of living and who are clearly old enough to appreciate that high standard. In denying the extrapolation, the circuit court seems to emphasize the fact that the children have such luxuries as colored televisions in their bedrooms and college savings accounts, but that should not prevent extrapolation. Merely because the mother in this case has a more luxurious lifestyle than the mother in Ochs does not mean we should cast aside the emphasis on maintaining the standard of living to which the children are accustomed.

[¶ 34.] We should not create a higher standard of living for a child in one case, then approve a lesser standard of living in another. Here, the father obviously has greater financial ability to pay for the lifestyle he helped establish for these children than the father did in Ochs.

[¶ 35.] Because of the precedent established in Ochs, we reverse issue three and remand to the trial court for proceedings consistent with this opinion.

[¶ 36.] KONENKAMP, Justice, and GORS, Acting Justice, concur.

[¶ 37.] GILBERTSON, Chief Justice, dissents.

[¶ 38.] ANDERSON, James W, Circuit Judge, dissents without a writing.

[¶ 39.] ANDERSON, James W., Circuit Judge, writing the majority on Issue Four.

ISSUE FOUR

[¶ 40.] Whether the trial court abused its discretion and committed reversible error by refusing to order repayment of child support withheld to pay health insurance.

[¶ 41.] Since the divorce, pursuant to the parties’ stipulation of divorce Thomas has been receiving a $250 credit toward his obligation to pay for the children’s health insurance. Emma argues the credit was inappropriate since the bank rather than Thomas is making the payment. Emma asks for reimbursement of the money withheld and interest thereon.

[¶ 42.] The circuit court found that “the Stipulation does not require Tom to pay the costs of health and dental insurance out of his pocket; it does require him to maintain the insurance however.” (Finding of Fact 62). Thomas has upheld his end of the bargain by remaining employed at Security State Bank. (Finding of Fact 63). Both parties knew the bank was paying for the health insurance on Thomas’ behalf when they entered into the stipulation of divorce. (Finding of Fact 70).

[¶ 43.] The stipulation of divorce was agreed upon by the parties and adopted by the court. “In determining the proper interpretation of an agreement incorporated into a divorce decree, a court must seek to ascertain and give effect to the intention of the parties.” Culhane v. Michels, 2000 SD 101, ¶ 19, 615 N.W.2d 580, 587 (citing Kier v. Kier, 454 N.W.2d 544, 547 (S.D.1990)).

[¶ 44.] The stipulation of divorce shows the parties intended that Thomas only “maintain” health insurance. It does not specify that he pay for the insurance “out-of-pocket.” This intention is further shown by the fact that Emma knew the bank paid for the insurance while they were married. In fact, she testified she assumed the bank paid for all of the health and dental insurance during the marriage. The circuit court did not abuse its discretion in refusing to award reimbursement of the $250 per month credit to Emma.

[¶ 45.] GILBERTSON, Chief Justice, and AMUNDSON and KONENKAMP, Justices, and GORS, Acting Justice, concur.

[¶ 46.] GILBERTSON, Chief Justice, dissents on Issue Three.

GILBERTSON, Chief Justice

(dissenting).

[¶ 47.] As her third issue, Emma contends that the trial court committed reversible error when it failed to extrapolate beyond the child support guidelines. She claims that the trial court understated the children’s pre-divorce standard of living. She also argues, in the alternative, that even if their pre-divorce standard of living has been maintained, a lack of increase in the support payment precludes the children from enjoying their father’s post-divorce success. Thus, this case is not about maintaining the children’s pre-divorce lifestyle; it is about increasing their lifestyle commensurate with the non-custodial parent’s post-divorce success. Because there is no basis in South Dakota law to support such a holding, I dissent.

[¶ 48.] The circuit court made several findings on this issue. The court found that although the parties’ income is disparate, they both are millionaires in their own right. (Findings of Fact 18, 21). The parties’ combined monthly income exceeds the guidelines in SDCL 25-7-6.2. (Finding of Fact 35). Emma has the burden of proving the children’s actual needs and their standard of living, as she is the one seeking modification. (Finding of Fact 36). Emma failed to meet her burden of proof because she did not submit a monthly budget for the boys, nor did she differentiate between items solely for the benefit of the children and those items exclusively for her enjoyment. (Findings of Fact 54, 55).

[¶ 49.] Jonathan and Robert enjoy a healthy and comfortable standard of living. The boys live in a $100,000 home. They each have their own bedroom. They each have a computer, stereo, color TV and VCR. Emma owns a 1999 Dodge Durango, free of any liens, to transport the boys. Both boys have college accounts, Jonathan’s totaling $150,000 and Robert’s totaling $100,000. Thomas maintains life insurance naming the boys as beneficiaries. There is no dispute that the boys are adequately clothed and fed. The children continue to travel, attend camps, and participate in activities such as basketball, swimming, and drama.

[¶ 50.] The circuit court, in issuing new support obligations, calculated Thomas’ child support at $1800 per month. Thomas also has the burden of maintaining health and dental insurance on both boys through their graduation from high school at a cost of $650 per month. Since Thomas’ employer pays for this insurance, he does not receive a credit for it. Thomas is responsible for eighty-seven percent of all medical bills not covered by insurance until the boys graduate from high school. This cost is estimated at $8,045 per year ($3,500 times eighty-seven percent). As previously mentioned, Thomas also maintains a $200,000 life insurance policy on himself, in which the boys are named as joint beneficiaries, at a cost of $200 per month. Thomas is responsible for eighty-seven percent of all car-related costs for Robert. Thomas is'required to take the boys on a seven-day vacation each year until they graduate from high school. This cost is estimated at $3,000 per year. Thomas must also furnish transportation for the boys to Minneapolis for as many weekends as they want, taking them to whatever sporting and cultural events they desire. This cost is estimated ■ at $2,000 per year. Thomas must also continue to manage the boys’ college accounts free of charge.

[¶ 51.] The circuit court has the obligation to establish child support, “at an appropriate level, taking into account the actual needs and standard of living of the child.” SDCL 25-7-6.9. It is the custodial parent’s burden to prove “his or her claimed-expenses reflect the child’s needs and standard of living.” Watson, 2000 SD 132 at ¶ 20, 617 N.W.2d at 671 (emphasis original) (citing Ochs, 538 N.W.2d at 530). There is, however, no provision for increasing a child’s standard of living to keep up with the non-custodial parent’s post-divorce success. Moreover, when the combined monthly income of both parents exceeds the child support guidelines, “extrapolation beyond the maximum guideline level is permissible, but not obligatory!)]” Ochs, 538 N.W.2d at 530. '

[¶ 52.] This Court’s reallocation of parental assets amounts to nothing more than de facto alimony. SDCL 25-7-6.9 cannot act as “an alimony/palimony ■windfall contained in the rhetoric of child support.” Id. at 533 (Amundson, J., concurring in part and dissenting in part). In Billion, this Court held the fact that a custodial parent may indirectly benefit does not justify denial of child support to children whose actual needs and standard of living are not being met. Billion, 1996 SD 101 at ¶ 44, 553 N.W.2d at 236. But Emma was unable to demonstrate that her sons’ standard of living was not being maintained. While it is permissible' for children to enjoy some of their father’s high standard of living, the law does not mandate that they enjoy all of it. Evans v. Evans, 1997 SD 16, ¶ 16, 559 N.W.2d 240, 244.

[¶ 53.] Emma’s evidence failed to reflect the needs of the children. She failed to make a monthly budget depicting the children’s expenses. She also failed to distinguish between the needs of the children and her needs. See Watson, 2000 SD 132 at ¶ 22, 617 N.W.2d at 671. The circuit court made detailed findings regarding the children’s pre-divorce and current standard of living. The circuit court further made detailed findings in computing Thomas’ child support obligation. It is clear from these findings that the children’s pre-divorce standard of living will be maintained, if not exceeded, and the children will share in many of the fruits of Thomas’ labor. Since Emma failed to meet her burden of proof and the children’s actual needs and standard of living are being adequately met, the trial court did not abuse its discretion in refusing to extrapolate beyond the child support guidelines. Accordingly, I dissent from the majority opinion on this issue.

      . The parties stipulation of divorce on this issue states as follows:
      Plaintiff [Tom] shall pay to the Defendant [Emma] commencing August 1, 1997, the sum of $1500.00 per month as child support until his child support obligations cease or otherwise modified by statute or case law. Plaintiff shall be given credit in the amount of $250.00 per month as long as he maintains the health and dental insurance and if, in fact, such costs remain at $250 per month. Said credit shall be reviewed on a periodic basis.

      . Emma did introduce a list of things the children wanted, including: (1) replacement of a $100,000 home with a $300,000 home; (2) new furniture for the kids; (3) a reserve for computers, cars and sports equipment; (4) a curio for family heirlooms; (5) a new stereo; (6) a new camcorder; and (7) recurring monthly expenses in the amount of $2,370 above and beyond expenses of food, clothing or shelter. The circuit court determined that these items were not actual needs of the children and were not necessary to maintain their standard of living.

      . This was calculated by taking the top of the chart amount under SDCL 25-7-6.2 for two children, $2,049.00, multiplying it by eighty-seven percent, which is Emma's percentage recommendation, and rounding up to $1800.


author: ZINTER, Justice.

text:
    2002 SD 95
    STATE of South Dakota, Plaintiff and Appellee, v. Richard Lynn LAPLANTE, Defendant and Appellant. State of South Dakota, Plaintiff and Appellee, v. Carolyn Susan Laplante, Defendant and Appellant.
    Nos. 21993, 21999.
    Supreme Court of South Dakota.
    Considered on Briefs April 22, 2002.
    Decided Aug. 7, 2002.
    Rehearing Denied Oct. 15, 2002.

      Mark Bar-nett, Attorney General, Michele K. Bennett, Assistant Attorney. General, Pierre, for plaintiff and appellee.
    Gary Conklin, Rapid City, for defendant and appellant Richard LaPlante.
    Steven Binger, Sioux Falls, Randall D.B. Tigue, Minneapolis, MN, for defendant and appellant Carolyn LaPlante.
   ZINTER, Justice.

[¶ 1.] Carolyn and Richard LaPlante (Carolyn, Richard, or LaPlantes) appeal from their convictions of maintaining a place for the purpose of using, keeping, or selling controlled substances in violation of SDCL 22-42-10. LaPlantes’ convictions arose out of their three sons’ involvement in drug activity in the family home. Carolyn and Richard raise a number of issues on appeal. We address their challenge to the sufficiency of the evidence to support their convictions, and the introduction of marijuana and firearm evidence. We affirm.

FACTS AND PROCEDURAL HISTORY

[¶ 2.] At all times material to this case, Richard and Carolyn lived in a split-level home in Sioux Falls. Their three sons (Jesse, age 21; Tyler, age 19; and Jared, age 17) also resided in the home. The boys’ bedrooms were on the lower level, LaPlantes’ bedroom was on the upper level, and there was an open stairway between the two. The lower level also contained a number of common areas including a television room (hereinafter referred to as Jesse’s television room), a furnace room, a storage room, and a family room.

[¶ 3.] Carolyn, Richard, and their sons all used the lower level. Although the extent of that use was in dispute, there is no dispute that Carolyn collected laundry from the lower level, and Richard would often watch movies in the family room. Additionally, Carolyn’s teacher supplies and household storage items were located in the storage room, the furnace and related items were in the furnace room, and a large screen television was in the family room. In order to access any of these common areas, LaPlantes would have to walk by two or all three of the boys’ rooms.

[¶ 4.] The evidence reflects that the La-Plante family problem with drugs started as early as 1994. In 1994 and 1996 Jesse was arrested on drug charges. Carolyn was called to the police station following the 1996 arrest. The police told Carolyn that Jesse had been using methamphetamine. Having worked as a school district drug prevention advisor, Carolyn was aware that methamphetamine was an extremely addictive drug.

[¶ 5.] Obviously concerned, Carolyn arranged for Jesse to attend drug treatment. Although Jesse completed the treatment program, he did not complete the recommended aftercare. Instead, Jesse started private counseling and was placed on an antidepressant. As a result of this and other conduct, Richard acknowledged that “we always kept a little bit more of an eye on Jess.”

[¶ 6.] The drug problems continued in 1998, when the Sioux Falls police received numerous calls from neighbors complaining about short-term traffic at LaPlantes’ home. The police officers subsequently monitored the home. During the monitoring, they observed a man leave. The officers searched him and discovered marijuana on his person.

[¶ 7.] As a result of these events, two police officers conducted what they described as a “knock and talk” at LaPlantes’ home. During that visit, the officers specifically informed Richard and Carolyn of the numerous calls the police had received about the short-term traffic. They also informed Richard and Carolyn that the police suspected that drugs were being sold from the home. Although the officers asked for permission to search the home, LaPlantes declined to give their consent. Before leaving, the officers told the La-Plantes that if drugs were being sold from their house, they could face civil and criminal penalties.

[¶ 8.] In early 2000, the police began receiving information that ultimately led to a search of LaPlantes’ home. The affidavit in support of the search warrant reveals that a confidential informant alleged that he had purchased ecstasy (a controlled substance) from another informant who had purchased the ecstasy from Jesse at LaPlantes’ home. Another informant disclosed that she had sold Jesse a gram and Jesse’s brother l/8th ounce of cocaine in LaPlantes’ home.

[¶ 9.] As a result of this information, the police obtained and executed a search warrant. All of the officers who entered the home testified that they smelled the odor of burning marijuana. Although no burning marijuana was discovered, controlled drug paraphernalia (including methamphetamine and cocaine residue) were found in plain view in the lower level. Controlled drugs, controlled drug paraphernalia, marijuana, marijuana paraphernalia, and other items used in the drug trade were also found concealed in the boys’ bedrooms, the furnace room, and Jesse’s television room.

[¶ 10.] The evidence that was removed from the lower level of the home included:

Exhibit 2, dock handgun
Exhibit 3, Three dock magazine rounds
Exhibit 4, Holster and bullets
Exhibit 5, Pipes and residue
Exhibit 6, Address book and Rolodex
Exhibit 7, Leather bong
Exhibit 9, Spoons with residue of cocaine or methamphetamine
Exhibit 10, Tin with needles
Exhibit 11, Tool organizer with 8.4 grams of methamphetamine
Exhibit 12, Suspected methamphetamine
Exhibit 13, Baggies, pipe and needle
Exhibit 14, Gun safe
Exhibit 15, Olympic Arms AR15 rifle
Exhibit 16, Clip with bullets
Exhibit 17, SIG-Sauer handgun
Exhibit 20, One-fourth pound of marijuana
Exhibit 21, Triple beam scale
Exhibit 22, Ammunition
Exhibit 23, Notebooks and receipts (“owe sheets”)
Exhibit 25, Bulletproof vest
Exhibit 26, Baggies, foil, scale, and pipes
Exhibit 27, Glock handgun
Exhibit 28, Magazine and bullets
Exhibit 29, A “one-hitter” found on Jared
Exhibit 31, Hemostats, pipes, and razor blades
Exhibit 32, Spoon with residue of cocaine or methamphetamine
Exhibit 33, Photocopied pages from the book Secrets of Methamphetamine Manufacture: Including Recipes for MDA, Ecstasy, and Other Psychedelic Amphetamines (a book discussing the “clandestine” manufacture of controlled substances)
Exhibit 34, Triple beam scale and bong
Exhibit 35, Baby wipes container and syringes

[¶ 11.] This evidence was found in the following specific locations: Jesse’s bedroom and Jesse’s television room contained various items of marijuana smoking paraphernalia and various items associated with controlled substances, including spoons, a snorting device, a plastic dish, razor blades with a powdery substance, syringes, and approximately 8.4 grams of methamphetamine. One spoon was in plain view under a coffee table. A syringe was also found in plain view behind a chair. The spoons, plastic dish, and syringes tested positive for either cocaine or methamphetamine. Officer Mundt testified that additional syringes were observed in plain view in a wastebasket, but they were not seized and entered into evidence as exhibits.

[¶ 12.] The following exhibits were found in Tyler’s room: a safe containing a notebook that listed names and dollar amounts (“owe sheets”), an assault rifle, a SIG-Sauer handgun and ammunition, a bulletproof vest, a quarter pound of marijuana, a triple beam scale, and various marijuana pipes. The Glock handgun was found loaded under Tyler’s bed pillow.

[¶ 13.] The following exhibits were found in Jared’s room: a small scale, case, marijuana seeds and residue in bags. The police also found another scale and a “one-hitter” with marijuana residue on Jared’s person.

[¶ 14.] After the search, Sergeant Mundt interviewed Richard and Carolyn. Although there is a dispute concerning the conversation, Sergeant Mundt testified that Richard admitted that he knew that there were drugs in the house. Mundt testified that Richard said he had told the boys “to get it out.” Richard, however, also said, “they’re my boys, what can I do?”

[¶ 15.] On April 2, 2001, a jury found Richard and Carolyn guilty of violating SDCL 22-42-10. LaPlantes were sentenced to four years in the state penitentiary. Their sentences were suspended on a number of conditions. One condition was that they keep their home free of marijuana and controlled substances for four years.

[¶ 16.] We address the following issues:

(1) Whether there vtas sufficient evidence for a jury to find that LaPlantes knew of the use, storage, or sale of controlled substances in their home, and whether they knowingly maintained a place where controlled substances were used, kept or sold.
(2) Whether the trial court should have admitted the firearms and marijuana evidence.
DECISION
[¶ 17.] (1) Whether there was sufficient evidence for a jury to find that LaPlantes knew of the use, storage, or sale of controlled substances in their home, and whether they knowingly maintained a place where controlled substances were used, kept or sold.

[¶ 18.] LaPlantes make a three-part argument challenging the sufficiency of the evidence to support the jury’s finding that LaPlantes had knowledge of “controlled substances” in the home and the finding that they knowingly maintained a place for “controlled substance” use, storage, or sale. LaPlantes argue: (a) that the marijuana evidence was insufficient to sustain the convictions; (b) that the remaining evidence only reflected “limited” controlled substance use for the personal consumption of the boys, and therefore the controlled drug evidence was insufficient to sustain the convictions; and (c) that they had insufficient knowledge of the use, storage, or sale of controlled substances in the home to sustain the convictions.

[¶ 19.] We first address the standard of review. “In determining the sufficiency of the evidence on appeal in a criminal case, the issue before this Court is whether there is evidence in the record which, if believed by the jury, is sufficient to sustain a finding of guilt beyond a reasonable doubt.” State v. Augustine, 2000 SD 93, ¶ 26, 614 N.W.2d 796, 800. In making that determination, we “accept the evidence and the most favorable inferences fairly drawn therefrom, which will support the verdict.” Id. Moreover, “the jury is ... the exclusive judge of the credibility of the witnesses and the weight of the evidence.” State v. Beynon, 484 N.W.2d 898, 907 (S.D.1992). Therefore, this Court does not resolve conflicts in the evidence, or pass on the credibility of witnesses, or weigh the evidence. State v. Frazier, 2001 SD 19, ¶ 44,-622 N.W.2d 246, 261. “No guilty verdict will be set aside if the evidence, including circumstantial evidence and reasonable inferences drawn therefrom, sustains a reasonable theory of guilt.” State v. Holway, 2002 SD 50, ¶ 11, 644 N.W.2d 624, 628 (citing State v. Buchholz, 1999 SD 110, ¶ 33, 598 N.W.2d 899, 905).

(a) Sufficiency of the Marijuana Evidence.

[¶ 20.] LaPlantes first argue that the evidence of marijuana use, storage, and sale in the home was insufficient to sustain a finding of guilt. LaPlantes’ argument is premised on the fact that marijuana is not a “controlled substance” within the meaning of SDCL 22-42-10.

[¶ 21.] Although we agree that marijuana is not a controlled substance, marijuana was not the only evidence found in this home. LaPlantes ignore the other substantial evidence of controlled drug use, storage, and sale in their home. That controlled drug evidence included cocaine, methamphetamine, related paraphernalia, and other items used in the controlled drug trade (such as guns, scales, syringes, and drug sales records).

(b) Sufficiency of the Controlled Substances Evidence.

[¶ 22.] LaPlantes next argue that “apart from the marijuana evidence,” the only other evidence was a “limited amount” of controlled substances for Jesse’s personal use. LaPlantes argue that a small amount of a controlled substance, which is only intended for personal use, is insufficient to sustain a conviction for maintaining a house for the use, storage, or sale of controlled substances. LaPlantes point out that other jurisdictions with similar statutes have held that mere possession of limited amounts of controlled substances for personal use is insufficient to support a conviction. See Barnes v. State, 255 Ga. 396, 339 S.E.2d 229, 234 (Ga 1986). See also United States v. Verners, 53 F.3d 291, 296 (10thCir.1995); State v. Ceglowski, 103 Wash.App. 346, 12 P.3d 160, 163 (2000); People v. Vera, 69 Cal.App.4th 1100, 82 Cal.Rptr.2d 128, 129-130 (1999); Meeks v. State, 872 P.2d 936, 938 (Okla.Crim.App.1994); Howard v. State, 815 P.2d 679, 683 (Okla.Crim.App.1991).

[¶ 23.] We agree with the other jurisdictions and hold that SDCL 22-42-10 does not generally prohibit the mere possession of a small quantity of controlled drugs that is only intended for the personal use of the occupant. This case, however, involves more than the isolated, personal use of limited controlled substances. The totality of the evidence found here circumstantially suggests that both methamphetamine and cocaine were used, stored, and sold in the home on an ongoing basis. Some of that evidence included: 8.4 grams methamphetamine, scales, razor blades, baggies, aluminum foil, spoons, a mirror, syringes, a Rolodex, an address book, a notebook with names and dollar amounts (“owe sheets”), photographed pages from a book on the production of controlled drugs, two pistols with ammunition (one of which was found loaded under a bed pillow), a bulletproof vest, an assault rifle with ammunition, a safe, and cocaine and methamphetamine residue on the drug paraphernalia.

[¶ 24.] This evidence was highly significant. Detective Kneip and Sergeant Mundt explained that methamphetamine is burned in spoons or on aluminum foil to ingest the smoke; syringes are used to inject the methamphetamine or cocaine into the veins; and razor blades are used to cut the controlled drugs before they are weighed and placed in the baggies. The photocopied book explained in detail how to illegally manufacture controlled drugs and avoid detection. This controlled drug paraphernalia, together with the drug records, weapons, and controlled substances was sufficient to circumstantially prove that the LaPlante house was used to sell, keep and use controlled substances on a recurring basis.

(c) LaPlantes’ Knowledge of Controlled Substance Use, Storage, or Sale.

[¶ 25.] We have held that despite the absence of the word “knowingly” in SDCL 22-42-10, “knowledge is an essential element of the offense.” State v. Stone, 467 N.W.2d 905, 906-7 (S.D.1991). LaPlantes argue that they lacked that requisite knowledge of controlled substance use, storage, or sale.

[¶ 26.] There was, however, extensive evidence of LaPlantes’ knowledge of controlled drug use, storage and sale in this home. LaPlantes knew that Jesse had used methamphetamine, that he attempted drug treatment, and that he did not complete aftercare. Jesse’s behavior after treatment was of sufficient concern to both parents that LaPlantes “always kept a little bit more of an eye on Jess.” Richard also testified that in the fall of 1997 or 1998, he discovered a bong in the family room that belonged to Jesse.

[¶ 27.] Both Carolyn and Richard were also' advised at the “knock and talk” in 1998 that the police believed ongoing drug sales were being conducted in the home. Moreover, Sergeant Mundt testified that when the house was searched, Richard admitted that he knew his sons had drugs in the home. Although LaPlantes dispute this testimony, the other evidence of ongoing controlled drug activity found throughout the common areas and bedrooms in the lower level of the home belie Richard’s denial.

[¶ 28.] In addition to the foregoing, La-Plantes’ knowledge of controlled drug activity could have been circumstantially inferred from Tyler’s purchase of the safe and assault rifle, and Jesse’s purchase of a Glock handgun, all at a time when their employment would not have supported such purchases. The testimony revealed that Tyler’s safe cost approximately $800 and his assault rifle cost approximately $1200. Further testimony revealed that, although Jesse was unemployed, he purchased the Glock handgun for $500. Carolyn knew of their purchases, and even recorded the serial number of Jesse’s Glock handgun on her computer records.

[¶ 29.] Most importantly, one cannot overlook the obvious indicia of drug activity throughout the lower level of the home. This was a split-level home with an open stairway. Jesse’s room could be seen from the front door and Carolyn testified that she could sit at the kitchen table and see who- was coming and going. When the police executed the warrant, an overwhelming smell of burning marijuana permeated the residence. This pervasive odor would clearly suggest to parents with this -history that illegal drug activity was occurring. Moreover, the entire family was often in and out of the lower level. Carolyn kept her school supplies in the lower level, and she would go downstairs to get the laundry. Richard often watched television and movies in- the family room on the lower level. The sum of this evidence, together with the reasonable inferences therefrom, could have convinced a jury that LaPlantes had knowledge of ongoing controlled drug use, storage, and sale in the lower level of the home.

[If 30.] LaPlantes discount this evidence of knowledge by arguing that it was only circumstantial in nature. The State may, however, prove all elements of an offense through circumstantial evidence. State v. Holzer, 2000 SD 75, ¶ 15, 611 N.W.2d 647, 651. Knowledge involves the actor’s state of mind, and “[an] actor’s ‘state of mind’ at the time of the offense may ... be determined from his acts, conduct and inferences which are fairly dedueible from the circumstances surrounding the offense.” Id. Therefore, contrary to LaPlantes’ assertions, “the jury, as the exclusive judge of facts, credibility of the witnesses, and the weight to be given the evidence,” could have inferred “knowledge and intent from the acts, words, and conduct of’ LaPlantes. Id. at ¶ 16, 611 N.W.2d at 652.

[¶ 31.] LaPlantes also argue that the circumstantial evidence of knowledge failed to exclude every reasonable hypothesis of innocence. Consequently, LaPlantes argue that the State’s circumstantial evidence was insufficient under State v. Esslinger, 357 N.W.2d 525 (S.D.1984). In Esslinger we noted that a conviction based entirely on circumstantial evidence must exclude every reasonable hypothesis of innocence.

“[T]o warrant conviction upon circumstantial evidence alone, such facts and circumstances must be shown as are consistent with each other and with guilt of the party charged, and such as cannot by any reasonable theory be true and the party charged be innocent.” This rule does not mean the evidence must be such as to exclude every possible hypothesis of innocence. Rather, it requires only the exclusion of [a] reasonable hypothesis of innocence.

Id. at 530-31 (internal citations omitted) (emphasis added).

[¶ 32.] More recently, however, we discarded this concept and held that in circumstantial evidence cases, the “reasonable hypothesis of innocence” instruction is no longer necessary. State v. Webster, 2001 SD 141, ¶¶ 11-12, 637 N.W.2d 392, 396. Rather, we held that our settled law on reasonable doubt suffices to determine if circumstantial evidence is sufficient to prove the elements .of an offense. Id. We noted that circumstantial and direct evidence have equal weight, and circumstantial evidence can be more reliable than direct evidence. Id. at ¶ 13, 637 N.W.2d at 396. To the extent that Esslinger suggests otherwise, it has been overruled by Webster.

[¶ 33.] LaPlantes finally argue that the boys’ use of this home precludes a finding of Richard’s and Carolyn’s drug knowledge under the authority of Franklin v. State, 60 Ark.App. 198, 962 S.W.2d 370, 373 (1998). In Franklin, the Arkansas court reversed a conviction for maintaining a drug premises. In that case the defendant shared a house with another occupant. The police found cocaine under the carpet in a bedroom and under a doghouse in the backyard. However, that defendant did not use the bedroom involved, and he was asleep in a different room when the police found the cocaine. Furthermore, that defendant was afraid of the dogs. Finally, the Arkansas Court noted that no drugs were found in plain view or in the common areas of the house. Id. at 373. In contrast, the drugs in this case were found throughout the lower level, including a common area. There was also other direct and circumstantial evidence of the La-Plantes’ knowledge of the ongoing drug activities in the lower level. Therefore, Franklin is inapposite.

[¶ 34.] (2) Whether the trial court should have admitted the firearms and marijuana evidence.

[¶ 35.] LaPlantes argue that the firearms and marijuana evidence was irrelevant. “ ‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” SDCL 19-12-1 (Rule 401). We review the admissibility of evidence under the abuse of discretion standard. State v. Bunger, 2001 SD 116, ¶ 7, 633 N.W.2d 606, 608.

Marijuana Evidence

[¶ 36.] The trial court admitted the marijuana evidence because the court concluded that it was probative of LaPlantes’ knowledge of controlled drug use, presence, or sale in this home. The trial court noted that even though marijuana is not a controlled drug, the presence of marijuana made it more probable that other drugs might be present. The trial court stated:

Clearly, if you find marijuana, which is one kind of drug, it is more likely -you will find, other kinds of drugs and the brief submitted by the defense itself states that where there were controlled substances, 51% of the time marijuana was also found .... Relevant evidence is like a brick in a house, [it is also] not a touchdown, but moving the ball forward a few yards.

We agree.

[¶ 37.] The evidence of marijuana possession, use, and sale in this home made it more probable, rather than less probable, that LaPlantes knew other drugs were also involved. LaPlantes’ own statistical evidence demonstrated that more than half of the drug cases they referenced involve both marijuana and controlled substances. We agree that the evidence of marijuana in the LaPlanté home was simply one “brick” in a circumstantial case that made it more probable that LaPlantes had knowledge of controlled substance presence, use and sale.

[¶ 38.] LaPlantes, however, contend that other courts have found marijuana evidence irrelevant. See State v. Larson, 512 N.W.2d 732 (S.D.1994), Turner v. United States, 396 U.S. 398, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970), and Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969). LaPlantes’ reliance on these cases is misplaced. Larson involved a murder where marijuana was obviously irrelevant to the charge. Larson, 512 N.W.2d at 737. Both Turner and Leary are inapposite because they involved statutory presumptions, rather than the. eviden-tiary challenge of relevancy. Unlike Turner and Leary, the State made no claim here that marijuana “presumptively” established knowledge of controlled sub- ‘ stances. Instead, the marijuana evidence was only used as one circumstantial “brick” to suggest it was more probable that LaPlantes had knowledge of controlled drug activity in the lower level of their home. The marijuana evidence was properly admitted.

Firearms Evidence

[¶ 39.] The evidence in this case involved a number of firearms (including an assault rifle, two pistols, ammunition, and a bulletproof vest) together with controlled drugs, drug paraphernalia, and drug records found within a safe. Moreover, one of the pistols was found loaded and hidden under a bed pillow. As the courts in United States v. Rhodes, 229 F.3d 659, 661 (7thCir.2000), and United States v. Meirovitz, 918 F.2d 1376, 1379 (8thCir.2000), point out, such caches of weapons and ammunition may be indicative of the drug trade. .Because drug trade activities were át issue in this case, the firearm evidence was relevant.

[¶ 40.] We have considered LaPlantes’ other issues on appeal and find them without merit.

[¶ 41.] Affirmed.

[¶ 42.] GILBERTSON, Chief Justice, and SABERS, AMUNDSON and KONENKAMP, Justices, concur.

      . SDCL 22-42-10 provides that ''[a]ny person who keeps or maintains a place which is resorted to by persons using controlled drugs and substances for the purpose of using such substances, or which is used for the keeping or selling of such substances, is guilty of a Class 5 felony.”

      . LaPlantes claim the smell was the result of "Bidi” cigarette use.

      . LaPlanles disputed the existence of the syringes in the wastebasket and argued that the videotape received into evidence showed no syringes in the wastebasket.

      . Tyler testified that he sold marijuana from the home, although he denied selling controlled substances.

      . We also note that Esslinger has ho application here because knowledge was not proved by circumstantial evidence alone. Richard's admission was direct evidence of knowledge' of the boys’ drug activities.

      . We express no opinion on the validity of LaPlantes' statistical model. We only note that a 51% probability supports the "more probable” standard.

      .' LaPlantes’ reliance on State v. Rufener, 401 N.W.2d 740 (S.D.1987), is misplaced. In Rufener this Court found that a single pistol discovered in a rented automobile was not relevant in a prosecution for one charge of distribution of marijuana. Id. at 743. Rufener is inapposite because LaPlantes’ case involved different charges and additional evidence associated with ongoing controlled drug activity.