author: ZINTER, Justice.

text:
    2002 SD 150
    Jennie DURKEE, Jennell Sylte, Geneva Durkee and William Fielhaber, Plaintiffs and Appellants, v. Gerald VAN WELL and Beverly Van Well, Defendants and Appellees.
    No. 22242.
    Supreme Court of South Dakota.
    Considered on Briefs Oct. 7, 2002.
    Decided Dec. 4, 2002.

      Gordon P. Nielsen of Delaney, Vander Linden, Delaney & Nielsen, Sisseton, South Dakota, Attorneys for plaintiffs and appellants.
    John Wiles of Wiles & Rylance, Water-town, South Dakota, Attorneys for.defendants and appellees.
   ZINTER, Justice.

[¶ 1.] In 1975, Jennie Durkee (Dur-kee) and Gerald Van Well (Van Well) entered into an oral agreement to relocate a boundary fence that separated their respective properties. The agreement was made after a survey revealed that the fence was located approximately thirty-five feet north of the legally described location on the east-west quarter-section line between the properties. The southerly relocation of the fence would have changed possession of the thirty-five foot strip of land from Durkee to Van Well. In 2000, Van Well removed the old fence and began constructing the new fence on the quarter-section line pursuant to the parties’ 1975 agreement. However, before the new fence was completed, Durkee commenced this action to declare the agreement unenforceable under the statute of frauds and to enjoin Van Well from relocating the fence. The trial court held that Van Well’s partial performance of the agreement and the doctrine of promissory estoppel removed the agreement from the statute of frauds. Therefore, the trial court denied Durkee’s request to enjoin relocation of the fence. Durkee appeals. We affirm.

FACTS

[¶ 2.] In 1953, Durkee and her late husband acquired property in the south half of a section of land in Codington County. In 1975, Van Well and his wife became interested in acquiring two quarters of land in the north half of the same section. Van Well’s property was contiguous to, and directly north of Durkee’s property. According to the legal descriptions, an east-west quarter-section line divided a portion of the properties.

[¶ 3.] Before Van Well completed the purchase of his property, he hired an engineering company to survey his parcel. The survey revealed that the boundary fence between the two properties was located approximately thirty-five feet north of the legally described boundary on the east-west quarter-section line. Upon making this discovery, Van Well discussed the survey and a proposed relocation of the misplaced fence with Durkee. Durkee and Van Well agreed to leave the fence as it stood until it needed to be replaced. They agreed that when it became necessary to replace the fence, Van Well would move it thirty-five feet south to the east-west quarter-section line as provided in the legal descriptions. They also agreed that each party would pay an equal share of the cost of reconstructing the new boundary fence. They finally agreed that, although the incorrectly located fence prevented Van Well’s immediate use and possession of the southerly thirty-five feet of his property, he would maintain the existing fence and would pay the real estate taxes on the strip of property. This agreement allowed Durkee to continue to have the use and benefit of the thirty-five foot strip of land, tax free, until Van Well relocated the fence.

[¶ 4.] In 1982, Van Well had the property resurveyed in preparation to move the fence. At the same time, Durkee first sought legal advice about her rights to the thirty-five foot strip of property. Durkee was advised by an attorney that she had already acquired legal title to the property by adversely possessing it from 1953 until 1975. She did not however relay that information to Van Well. Coincidentally, Van Well abandoned his plan to replace the fence at that time because of economic circumstances.

[¶ 5.] In 2000, Van Well began preparations to move the fence again. At that time the property was resurveyed, Van Well removed the original fence, and he began constructing the new fence on the east-west quarter-section line. After Van Well had constructed almost one-half of the new fence, Durkee filed a complaint seeking to enjoin Van Well from relocating the fence. Van Well counterclaimed for enforcement of the 1975 agreement to move the fence. Van Well also sought damages for one-half the cost of relocating the fence.

[¶ 6.] In pre-trial rulings, the trial court denied 'Durkee’s motion for summary judgment on her request for injunctive relief and denied Durkee’s request for a jury trial. The trial court then conducted a court trial that was limited to Durkee’s request for injunctive relief and the underlying equitable issues. Following the court trial, the court ruled that Durkee had acquired the disputed property by adverse possession by occupying the fenced property from 1953 to 1975. The trial court also found that the 1975 oral agreement existed between Durkee and Van Well. Although that agreement did not comply with the writing requirement of the statute of frauds, the trial court concluded that Durkee was estopped from asserting that defense. The court concluded that Durkee was estopped because (1) Van Well had reasonably and detrimentally relied on the oral agreement, and (2) Van Well had partially performed the oral agreement by maintaining the original fence and by paying the property taxes after 1975.

[¶ 7.] On appeal to this Court, Durkee raises five issues, four of which we address.

1. Whether the trial court erred in denying Durkee’s motion for summary judgment.
2. Whether the trial court erred in denying Durkee’s request for a jury trial.
3. Whether the trial court erred in finding that a 1975 oral agreement existed between the parties.
4. Whether the trial court erred in determining that promissory es-toppel and partial performance removed the oral agreement from the statute of frauds.

DECISION

[¶ 8.] 1. Durkee was not entitled to summary judgment.

[¶ 9.] Durkee argues that the trial court erred in denying her motion for summary judgment. We disagree for two reasons. First, considering Van Well’s evidence regarding the existence of the 1975 oral agreement, Van Well raised genuine issues of disputed fact that precluded summary judgment. The disputes of fact were material to the existence of an oral contract, as well as Van Well’s related defenses of promissory estoppel and partial performance. Second, even if there were no disputed issues of material fact relating to these issues, Durkee suffered no prejudice because the trial court fully considered, but ultimately rejected all of Durkee’s claims on the merits at trial. Because the trial court correctly determined that Dur-kee was not entitled to relief on the merits, she could not have been prejudiced by an earlier denial of her motion for summary judgment on the same claims.

[¶ 10.] 2. The trial court correctly refused Durkee’s request for a jury trial.

[¶ 11.] Although Durkee did not demand a jury trial in her pleadings, Dur-kee argues that she was entitled to a jury trial because Van Well’s counterclaim requested a jury trial on Van Well’s claim for damages. The trial court, however, bifurcated the equitable issues for a trial to the court, and the legal claims for a trial by jury. The trial court ruled that it would try Durkee’s claim for an injunction along with the incidental equitable issues involving promissory estoppel, partial performance, specific performance, and the statute of frauds. The trial court further ruled that if Van Well prevailed on these equitable issues, the court would then grant Durkee a jury trial on Van Well’s legal claim for damages. This procedure followed our settled law on the right to jury trial in cases seeking both equitable and legal relief.

[¶ 12.] We have often noted that the right to a jury trial does not exist in all civil cases. Nizielski v. Tvinnereim, 453 N.W.2d 831, 833 (S.D.1990). “In cases where the pleadings seek equitable relief or where the legal relief is incidental, a jury trial is a matter for the trial court’s discretion.” Id. at 833 (citing Skoglund v. Staab, 312 N.W.2d 29 (S.D.1981)). In determining whether the action arises at law or in equity, we look to the pleadings, including the complaint, answer, cross-complaint and prayer for relief. Id. (citing Arlt v. Langley, 56 S.D. 79, 227 N.W. 469, 473 (1929)).

[¶ 13.] Here, the pleadings and prayer for relief reflect that Durkee was seeking injunctive relief for which there was no right to trial by jury. Injunction is an equitable remedy for which Durkee was not entitled to trial by jury. Metropolitan Life Insurance Co. v. Jensen, 69 S.D. 225, 230, 9 N.W.2d 140, 142 (1943). Moreover, Durkee’s right to injunctive relief was dependent upon equitable or incidental legal claims for which there was no right to jury trial. See Skoglund v. Staab, 312 N.W.2d 29, 31 (action for specific performance is equitable); Valley Bank v. Dowdy, 337 N.W.2d 164, 165 (S.D.1983) (promissory estoppel involves equitable relief); Crawford v. Carter, 74 S.D. 316, 319, 52 N.W.2d 302, 304 (1952) (a court of equity may exercise its power where there has been a part performance); Owens v. Moyes, 95 SD 211, ¶ 6, 530 N.W.2d 663, 665 (the existence of a valid express contract is a question of law to be determined by the court, not a jury). Therefore, the trial court correctly tried the equitable and incidental legal claims, while leaving the claim for damages for a jury.

[¶ 14.] 3. A 1975 oral agreement existed between the parties.

[¶ 15.] Durkee argues that the 1975 oral agreement was invalid because there was no “meeting of the minds,” and therefore, there was no consent to the agreement. Durkee contends that the parties believed they were only consenting to relocate a fence, but not to transferring ownership of real property. In support of this contention, Durkee points out that at the time of the 1975 agreement, she did not know that she had already acquired the property by adverse possession. Consequently, Durkee concludes that her consent to the agreement was voidable due to a mistake of law. However, we conclude that even if the agreement was voidable due to Durkee’s mistake of law, she subsequently ratified the agreement by her conduct after she discovered her right to claim the property by adverse possession.

[¶ 16.] SDCL 53^1-1 provides that: “apparent consent is not real or free and is voidable when obtained through ... [mistake.” A mistake of a law:

... in relation to consent to contract constitutes a mistake [of law] resulting in voidable consent only when it arises from:
(1) A misapprehension of the law by all parties, all supposing that they knew and understood it and all making substantially the same mistake as to the law; or
(2) A misapprehension of the law by one party of which the others are aware at the time of contracting, but which they do not rectify.

SDCL 53-4-10.

[¶ 17.] However, even if the 1975 agreement was voidable due to mistake of law (a question which we need not decide) a party may subsequently ratify such an agreement. SDCL 53-3-4 provides that a contract that is voidable for want of consent may nevertheless be ratified by subsequent consent. Moreover, ratification may be express or implied by conduct. First State Bank of Sinai v. Hyland, 399 N.W.2d 894, 898 (S.D.1987) (further citations omitted). Implied ratification by conduct may occur when a party fails to disaffirm a contract over a period of time. Such a failure to act may, by itself, ripen into a ratification, especially if rescission would result in prejudice to the other party. Id. (further citations omitted).

[¶ 18.] Here, Durkee apparently learned of her claim to adverse possession in 1983. Nevertheless, she failed to make any claim to the property, and she failed to take any action to disaffirm or rescind the 1975 agreement for seventeen years after her discovery of her legal rights. Yet during those years, Durkee allowed Van Well to continue to pay the taxes, maintain the fence, and forego his claim to use of the property all in detrimental reliance on the 1975 agreement. Under these circumstances, Durkee’s failure to disaffirm the agreement for seventeen years after her discovery of her right to ownership of the land by adverse possession constituted ratification of any voidable consent. See generally, First State Bank, 399 N.W.2d at 898.

[¶ 19.] 4. The trial court correctly ruled that promissory estoppel and partial performance removed the oral agreement from the statute of frauds.

[¶ 20.] Durkee points out that she was in possession of the disputed property for over twenty years before Van Well purchased his land, and the trial court ruled that Durkee acquired the disputed strip by adverse possession before the 1975 agreement. Consequently, Durkee argues that the 1975 oral agreement to transfer her interest in that real property was unenforceable under the statute of frauds.

[¶ 21.] The statute of frauds generally requires a written contract for the transfer of an interest in real estate. SDCL 53-8-2 sets forth that general rule and an exception for partial performance.

The following contracts are not enforceable by action unless the contract or some memorandum thereof is in writing and subscribed by the party to be charged or his agent, as authorized in writing: ...
(3) An agreement for sale of real estate or an interest therein[.] ... However, this does not abridge the power of any court to compel specific performance of any agreement for sale of real estate in case of part performance thereof!.]

SDCL 53-8-2(3). In addition to this statutory exception for partial performance, promissory estoppel is another exception to the statute of frauds.

An oral promise to convey real property is enforceable by specific performance where the grantee has partially performed or has acted in reliance upon the promise of the grantor in such a manner that it would invoke a fraud or prejudice against the grantee not to grant specific performance thereon.

Matter of Estate of Gosmire, 331 N.W.2d 562, 567 (S.D.1983) (citing Bentz v. Esterling, 76 S.D. 331, 78 N.W.2d 73 (1956))(emphasis added).

[¶ 22.] The trial court held that this “doctrine of promissory estoppel and ... [Van Well’s] partial performance of the 1975 oral agreement ... [made] the Statute of Frauds inapplicable.” We agree.

[¶ 23.] Promissory estoppel and estoppel based on partial performance have similar elements. The elements of promissory estoppel require a promise, and that:

... a promisee alters his position to his detriment in the reasonable belief that a promise would be performed. To apply the doctrine of promissory estoppel, the trial court must find: 1) the detriment suffered in reliance must be substantial in an economic sense; 2) the loss to the promisee must have been foreseeable by the promisor; and 3) the promisee must have acted reasonably in justifiable reliance on the promise made.

Garrett v. BankWest, Inc., 459 N.W.2d 833, 848 (S.D.1990)(internal citations omitted). The elements of estoppel based on partial performance are:

(a) [an] oral agreement must be established by satisfactory evidence;
(b) the party asserting rights under the agreement must have relied thereon and have indicated such reliance by the performance of acts unequivoca-bly [sic] referable to the agreement; and
(c) it must appear that because of his change of position in reliance on the agreement, to enforce the statute [would] subject such party to unconscionable hardship and loss.

Williams v. Denham, 83 S.D. 518, 522, 162 N.W.2d 285, 287 (1968).

[¶ 24.] Here, the elements of promissory estoppel were established. First, there was an oral agreement or promise. Van Well testified that before he purchased the property, he and Durkee agreed that when the fence needed to be replaced, Van Well could move the fence to the quarter-section line. The trial court found these as facts, and Durkee has not established that the trial court was clearly erroneous.

[¶ 25.] Second, the potential detriment to Van Well was substantial in an economic sense. Under the agreement, Durkee was allowed to continue to use the thirty-five foot strip of land without paying rent or taxes on the property. For twenty-five years, Van Well maintained the existing fence and paid those taxes. He testified that he did so in reliance on the agreement so that he would obtain possession of the approximately two-acre strip of land when the fence was relocated. All potential detriments to Van Well were substantial.

[¶ 26.] Third, those detriments or losses were foreseeable to- Durkee. When Van Well first attempted to exercise his right to move the fence in 1983, Durkee sought advice and discovered that she had a legal claim to the property by adverse possession. However, Durkee did not inform Van Well of her realization. Although Van Well began plans to replace the fence in 1983, Durkee kept the status of the land to herself. As a result of Durkee’s silence and the 1975 agreement, Durkee knew that Van Well would continue to pay the taxes, while Durkee continued to use the property for another seventeen years. Thus, Van Well’s payment of the taxes and his loss of use of the property were foreseeable to Durkee. It was also foreseeable that Van Well would be financially harmed by his initial purchase of the property unless Durkee abided by the agreement to relocate the fencé when it needed to be reconstructed.

[¶ 27.] Fourth, Van Well acted “reasonably in justifiable reliance” on Durkee’s promise. Both parties knew that the fence was not located on the quarter-section line, yet Van Well was paying the taxes. Under those circumstances, it was reasonable for Van Well to' rely on Durkee’s agreement that the fence would be relocated to the correct location described in the deeds when it-needed to be rebuilt; Based on all of the foregoing facts, the trial court was clearly justified in concluding that the elements of promissory estoppel were present.

[¶ 28.] Durkee was also estopped from asserting the statute of frauds defense because Van Well partially performed his part of the agreement. First, Van Well and Durkee made an agreement to relocate the fence. Second, there is no dispute that in reliance on that agreement, Van Well fully performed his' part of the agreement to leave the fence in its existing location until the fence needed to be replaced. In further reliance on the agreement, Van Well also maintained the fence; paid the property taxes on the disputed property;. allowed Durkee full use and benefit of the land for twenty-five years; and, eventually, when the fence needed to be replaced, Van Well removed the old fence and reconstructed almost one-half of the new fence before Durkee objected. Finally, under these circumstances an “unconscionable hardship and loss” would befall Van Well if the agreement were not enforced. Id If the agreement were not enforced, Van Well stood to lose approximately two acres of land, the taxes he had paid, the cost of maintaining the fence, and thé loss of the use of the property since 1975. Therefore, Van Well’s partial performance of the agreement was an additional ground to preclude application of the statute of frauds.

[¶ 29.] For all of the foregoing reasons, we affirm the trial court on all issues.

[¶ 30.]' GILBERTSON, Chief Justice, and SABERS and KONENKAMP, Justices, and AMUNDSON, Retired Justice, concur.

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

      . In 1992, Durkee deeded her property to her children Jennell Sylte, Geneva Durkee, and William Fielhaber, reserving for herself a life estate and life interest. Jennie Durkee died after this action was commenced, but prior to her deposition. Sylte, Geneva Durkee, and Fielhaber are the remaining plaintiffs/appellants. For ease of reference we refer to these remaining plaintiffs as "Durkee.”

      . The legal description of Durkee's property was:
      Southeast quarter and the East half of the Southwest quarter (SE1/4 & E1/2SW1/4), all in Section 21, Township 119 North, of Range 51, West of the Fifth P.M.
      The legal description of Van Well's property was:
      The Northeast Quarter (NE1/4) of Section 20, less the right-of-way of St. Paul, Minneapolis and Manitoba Railway Company, (now Great Northern Railway Company) and all that' part of the North Half of Section 21 lying South of South Dakota Highway No. 20, except that part thereof platted as “Hansen Addition to the County of Cod-ington”, all in Township 119 North, of Range 51, West of the Fifth Principal Meridian.

      . In 1975, Van Well also discussed this problem with Isabel Lapenick, another neighbor who shared an extension of this boundary fence with Van Well's property. In 2000, Van Well moved the fence between his property and Lapenick’s property to the east-west quarter-section line without apparent objection.

      . Neither party has raised the question whether Durkee’s failure to judicially establish her claim to adverse possession prior to 2000 had any effect on her current claim of ownership. We therefore assume, without deciding, that Durkee had acquired ownership of the disputed property by 1975.

      . We do not address the question whether "all parties” or "one party” misapprehended the law within the meaning of SDCL 53-4-10 because neither party has briefed that question, and because we conclude that Durkee ratified any “voidable” agreement.

      . Durkee also raises a failure of consideration argument for the first time in her reply brief. Because it is improperly first raised in Dur-kee's reply brief, Van Well has not had an opportunity to address the issue. Nevertheless, we believe that Van Well’s obligations under the agreement, including the payment of the taxes, constituted sufficient consideration.

      . Durkee also points out that the only evidence of the agreement was the testimony of Van Well. The trial court ruled that Van Well could testify to the details of the oral agreement pursuant to SDCL 19-16-32 (Rule 804(b)(3)), which permits hearsay testimony concerning an admission against interest.
      A statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject him to civil or criminal liability, or to render invalid a claim by him against another, that a reasonable man in his position would not have made the statement unless he believed it to be true, is not excluded by § 19-16-4 if the declarant is unavailable as a witness....
      SDCL 19-16-32 (Rule 804(b)(3)). Although Durkee argues that Van Well's testimony concerning the oral agreement should be disregarded, Durkee fails to address the testimony’s admissibility under Rule 804(b)(3), and Durkee fails to cite authority supporting her contention that the trial court erred in this evidentiary ruling. Durkee has waived this argument on appeal. Longwell v. Custom Benefit Programs Midwest, Inc., 2001 SD 60, ¶ 30, 627 N.W.2d 396, 401.

      . Durkee extensively briefs the assertion that "equitable estoppel,” as applied in Cooper v. James, 2001 SD 59, ¶ 16, 627 N.W.2d 784, 789, is not applicable here. However, the trial court did not apply the doctrine of equitable estoppel. Instead, the trial court applied promissory estoppel. We do not consider an equitable estoppel argument that was neither raised nor ruled on by the trial court. City of Sioux Falls v. Kelley, 513 N.W.2d 97, 110 (S.D.1994).


source: Caselaw Access Project

author: SABERS, Justice. GILBERTSON, Chief Justice ZINTER, Justice

license: Public Domain

text:
    2002 SD 153
    STATE of South Dakota, Plaintiff and Appellant, v. Judy Kay JONES, Defendant and Appellee.
    No. 22281.
    Supreme Court of South Dakota.
    Considered on Briefs Aug. 26, 2002.
    Decided Dec. 4, 2002.

      David R. Nelson, Minnehaha County State’s Attorney, Sioux Falls, for plaintiff and appellant.
    Bret C. Merkle, Merkle Law Firm, Sioux Falls, for defendant and appellee.
   SABERS, Justice.

[¶ 1.] Judy Jones was charged with 4 counts of unlicensed practice of midwifery in connection with her involvement in the at-home births of two children. The State filed a notice of intent to use evidence of an injunction prohibiting Jones from practicing midwifery, a contempt order for violating the injunction, and the treatment and death of one of the children she helped deliver. Jones moved to suppress the evidence and the trial court granted the motion. The State appeals and we affirm.

FACTS

[¶ 2.] In January 1993, Jones was enjoined from practicing midwifery without a license by the First Judicial Circuit after assisting in the at-home delivery of a child in Union County, South Dakota. Jones was permanently enjoined from “practicing any acts or medical functions of a nurse midwife ... unless and until she becomes licensed under SDCL [ch] 36-9A.” She did not obtain a license to practice midwifery as required under SDCL ch 36-9A and violated the injunction by aiding in the at-home delivery of a child in Clay County. In August 1996, the First Judicial Circuit held her in contempt for violating the injunction.

[¶ 3.] Jones appealed the finding of contempt to this Court and we unanimously affirmed. South Dakota Bd. of Nursing v. Jones, 1997 SD 78, 566 N.W.2d 142.

[¶ 4.] Jones assisted in two at-home births, one in August 1999 and one in March 2001 in Minnehaha County. On April 18, 2001, Jones was indicted on four counts of unlicensed practice of midwifery in connection with the two at-home births. The State filed a notice of intent to offer specified evidence of the 1993 injunction and 1996 finding of contempt. Jones moved to suppress evidence of the injunction and evidence of one of the children’s post-birth treatment and death. The death of the child occurred in the hospital 10 days after the child was removed from Jones’ care.

[¶ 5.] Both sides briefed the issues and argued them on October 5, 2001. On February 7, 2002, the trial court suppressed from the State’s case-in-chief evidence of the injunction, the contempt order, and the treatment and death of one of the children whose birth she assisted. The court stated that if Jones were to open the door as to the suppressed evidence, the State could request a hearing to determine the relevance and probative value of the evidence. A trial was scheduled for February 26, 2002, but was stayed by order of this Court on February 19, 2002.

STANDARD OF REVIEW

[¶ 6.] “The decision to admit evidence at trial is a matter within the discretion of the trial court and is reviewed under an abuse of discretion standard.” State v. Chamley, 1997 SD 107, ¶7, 568 N.W.2d 607, 611 (citing State v. Fowler, 1996 SD 78, ¶ 12, 552 N.W.2d 92, 94). See also State v. Klein, 444 N.W.2d 16, 18 (S.D.1989) (stating, “[o]ur standard of review concerning the trial court’s admission of evidence of prior crimes, wrongs or acts is whether the trial court abused its discretion”).

[¶ 7.] 1. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION BY EXCLUDING EVIDENCE OF THE INJUNCTION AND CONTEMPT ORDER FROM THE STATE’S CASE-IN-CHIEF.

[¶ 8.] The State argues that evidence of the injunction and contempt order is admissible under SDCL 19-12-5 or Federal Rule of Evidence 404(b). It argues that the permanent injunction and contempt order is evidence of a continuing plan to practice midwifery without a license.

[¶ 9.] “Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith.” SDCL 19-12-5. The statute provides that such evidence may be admissible for other purposes, such as “proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” However, “prior bad acts evidence is not admissible to show that, merely because a defendant committed a similar offense on another occasion, he has a propensity to commit the offense charged.” State v. Steichen, 1998 SD 126, ¶ 17, 588 N.W.2d 870, 874 (citing State v. Moeller, 1996 SD 60, ¶ 12, 548 N.W.2d 465, 471) (citations omitted).

[¶ 10.] Before other acts evidence may be admitted as evidence, the trial court must apply a two-prong analysis:

(1) Whether the intended purpose for offering the other acts evidence is relevant to some material issue in the case (factual relevancy); and
(2) Whether the probative value of the evidence is substantially outweighed by its prejudicial effect (legal relevancy).

State v. Ondricek, 535 N.W.2d 872, 873 (S.D.1995) (citing State v. Steele, 510 N.W.2d 661, 667 (S.D.1994)). This Court has stated that “it is preferable to delay admission of [other acts] evidence until the defense rests” or otherwise joins the issue. Steichen, 1998 SD 126 at ¶ 19, 588 N.W.2d at 875 (internal quotations and additional citations omitted).

[¶ 11.] The State argues that the injunction and contempt order are relevant to show knowledge or that the act was not a mistake or accident. These claims, however, are not relevant until Jones opens the door by claiming lack of knowledge, mistake or accident. The State also argues that the injunction and contempt order are relevant to prove a common plan or scheme. Again, however, Jones must open the door. When a defendant “denies doing the charged act, evidence of a common plan or scheme to achieve the act is directly relevant to refute this general denial.” Steichen, 1998 SD 126 at ¶ 23, 588 N.W.2d at 875 (citing Ondricek, 535 N.W.2d at 875) (additional citations omitted).

[¶ 12.] The trial court determined that evidence of the injunction and contempt order could not be used in the State’s casein-chief. It held that: “Should the Defendant open the door, the State is instructed to request a hearing outside the presence of the jury so that the Court can determine the relevance and probative value of the evidence the State wishes to submit.” If Jones opens the door at any time by claiming accident or mistake or any other stated exception, the State has the opportunity to prove the relevance of this evidence. The State has failed to show that the trial court abused its discretion in suppressing the evidence at this time.

[¶ 13.] 2. WHETHER THE TRIAL COURT ERRED IN SUPPRESSING EVIDENCE OF THE POST-BIRTH TREATMENT AND DEATH OF A CHILD WHOSE BIRTH JONES ASSISTED.

[¶ 14.] The State argues that all evidence relating to the birth, treatment and death of a child whose birth Jones assisted is part of the res gestae of the case and may be presented as evidence to the jury. It argues that the practice of midwifery by Jones and the death of the child constitute a continuous ■ course of events, thereby making it a part of the main transaction.

[¶ 15.] This Court has stated:

The res gestae embraces matters and statements immediately antecedent to, and having a causal connection with, the ■main transaction. The res - gestae, as applied to a crime, includes the complete criminal transaction from its beginning or starting point in the act of accused until the end is reached. Continuing acts or a series of events, transpiring before the commission of the crime, and which lead up to and are necessary or helpful to an understanding of the main event, and tend to explain the conduct and purposes of the parties are admissible as part of the res gestae.

State v. Burtts, 81 S.D. 150, 155, 132 N.W.2d 209, 211-12 (1964) (citation omitted). Furthermore, “‘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.

[¶ 16.] This Court’s definition of res gestae is clear. Because it embraces only those matters and statements “immediately antecedent ... to the main transaction” (emphasis supplied), the evidence of a death that occurred ten days after Jones’ treatment of the child is not part of the res gestae. This restriction in no way ties the State’s hands in proving the crime charged. The State is still free to show any care or conduct by the Defendant prior to the time the child was removed from her care. The evidence remaining for the State’s use is sufficient for it to try the case without unfair prejudice to the Defendant.

[¶ 17.] Jones was indicted on charges of practicing midwifery without a license in violation of SDCL ch 36-9A. The medical treatment and death of one of the children is not relevant to prove the charges against Jones. Moreover, this evidence is not sufficiently related to the conduct charged so as to create a .continuing act or transaction. The State has failed to show that the trial court abused its discretion in denying admission of this evidence at this time.

[¶ 18.] Therefore, we affirm.

[¶ 19.] KONENKAMP, Justice, and AMUNDSON, Retired Justice, concur.

[¶ 20.] GILBERTSON, Chief Justice, and ZINTER, Justice, dissent in part and concur in result in part.

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

GILBERTSON, Chief Justice

(dissenting in part and concurring in result in part).

[¶ 22.] I respectfully dissent on Issue One. When a criminal defendant enters a plea of not guilty, it is a complete denial of all the elements of the criminal charge. State v. Steichen, 1998 SD 126, ¶¶ 23-24, 588 N.W.2d 870, 875. That puts in issue each of the elements of the charge, all of which the state has to prove beyond a reasonable doubt. Id. Whether evidence of other acts is admitted and when, rests with the sound discretion of the trial court. Steichen, 1998 SD 126 at ¶ 19, 588 N.W.2d at 875 (citing State v. Werner, 482 N.W.2d 286,290 (S.D.1992)).

Generally, “ ‘it is preferable to delay the admission of [other acts] evidence until the defense rests.’ ” Once the defense rests, the trial court is then in the “best position to determine whether the issue sought to be proved by the extrinsic evidence is really in dispute, and if so, to assess its probative worth and possible prejudicial effect.” However, admission of other acts evidence may be properly admitted during the State’s case-in-chief. (“[W]here it is made clear at the outset of the trial that the defendant’s principal defense is lack of knowledge or intent, and thus the issue is unarguably in dispute, the government may introduce the [other acts] evidence in its case-in-chief.”) “[T]he order of proof is within the sound -discretion of the trial court[.]”

(Citations omitted) (emphasis added).

[¶ 23.] In a proper exercise of judicial discretion, the trial court obviously must be guided by a correct application of the applicable law. Here the trial court improperly followed the now-discarded thesis: “Evidence of a Defendant’s other crimes or acts is generally not admissible unless an exception can be met.” Rather, the trial court should have followed State v. Wright, 1999 SD 50, ¶ 13, 593 N.W.2d 792, 798, which established that SDCL 19-12-5 is a rule of inclusion, rather than exclusion. Failure to follow the proper law is per se an -abuse of discretion.

[¶ 24.] Moreover, Jones has served notice that in this proceeding she intends to raise the same defense that she raised in South Dakota Bd. of Nursing v. Jones, 1997 SD 78, 566 N.W.2d 142, that is, the South Dakota statutes on midwifery do not control her activities. Compare her unsuccessful argument of no state regulation in Jones in that she was a “direct-entry, midwife” rather than a “certified nurse midwife,” id. at ¶ 18, 566 N.W.2d at 147 n. 6, with her affidavit in this case where she argues she is a “certified professional midwife” rather than a “certified nurse midwife” which once again she argues, the state cannot regulate.

[¶ 25.] Here the plea of not guilty and her affidavit make clear she denies intentionally committing any acts which violated SDCL ch 36-9A, which become a criminal offense under SDCL 36-9A-35. The State has to prove this intent beyond a reasonable doubt. . If she chooses to present no defense, the State will be denied any opportunity to show that a circuit judge and this Court in Jones concluded and so told her, that her midwife activities violated SDCL ch 36-9A. Therefore, the trial court abused its discretion in not allowing admission of the injunction and contempt order in the state’s case-in-chief. Steichen, 1998 SD 126 at ¶¶ 23-24, 588 N.W.2d at 875-76.

[¶ 26.] I can concur in result only on issue Two as the Court attempts to resurrect a definition for application of res ges-tae which this Court long ago discarded. The Court today attempts to apply the requirement of State v. Burtts, 81 S.D. 150, 155-56, 132 N.W.2d 209, 211-12 (1964) that the application of res gestae “embraces matters and statements immediately antecedent to ... the main transaction.” The requirement of immediately antecedent is an artificial time requirement that may or may not have relevance to determining admissibility.

[¶ 27.] In State v. Goodroad, 1997 SD 46, ¶ 10, 563 N.W.2d 126, 130, this Court discussed at length the proper application of the doctrine of res gestae:

The res gestae rule is well-recognized exception to rule 404(b). In Floody, we acknowledged the Second Circuit Court of Appeals’ holding that “ ‘evidence’ of uncharged criminal activity is not considered ‘other crimes’ evidence if it ‘arose out of the same transaction or series of transaction of the charged offense[.]’ ”
This court has ... approved the admission of other crimes where such evidence is ‘so blended or connected’ with the one[s] on trial ... that proof of one incident involves the others[s]; or explains the circumstances; or tends logically to prove any element of the crime charged.

(citations omitted).

[¶ 28.] Recently in State v. Andrews, we again adopted the Goodroad standard of “same transaction or series of transactions as the charged offense.” 2001 SD 31, ¶ 9, 623 N.W.2d 78, 81. Thus, while the same series of transactions may be immediately connected to the charged offense by time, it may just as well not be so directly connected.

[¶ 29.] In the case now before us, the controlling factor is not the expiration of ten days time from the child’s birth to its death, but rather that during that period of time, the child was out of the care of Jones before the child died.

[¶ 30.] As such the trial court did not abuse its discretion in suppressing evidence of the child’s death.

ZINTER, Justice

(dissenting in part and concurring in result in part).

[¶ 31.] I join the dissent of Chief Justice Gilbertson on Issue 1 and his concurrence in result on Issue 2. I write to add two additional reasons for dissenting on Issue 1.

ISSUE 1

WHETHER THE TRIAL COURT ABUSED ITS DISCRETION BY EXCLUDING EVIDENCE OF THE INJUNCTION AND CONTEMPT ORDER FROM THE STATE’S CASE-IN-CHIEF.

[¶ 32.] Trial courts retain broad discretion in ruling on the admissibility of evidence. Therefore, decisions to admit or exclude testimony will not-be reversed absent a clear showing of abuse of discretion. State v. Guthrie, 2001 SD 61, ¶ 30, 627 N.W.2d 401, 414-415. However, “[w]hén a trial court misapplies a rule of evidence, as opposed to merely allowing, or refusing questionable evidence, it abuses its discretion.” Id. (citing Koon v. United States, 518 U.S. 81, 100, 116 S.Ct. 2035, 2047, 135 L.Ed.2d 392, 414 (1996)). In my judgment, the trial court misapplied Rule 404(b) and our cases in two respects.

Other-Acts Evidence Is Admissible In The State’s Case-in-Chief.

[¶ 33.] First, our cases establish that a defendant need not testify before other-acts evidence is admitted in the state’s case-in-chief. A defendant need not testify if the pre-trial proceedings disclose that the defendant has raised a real dispute about an issue that makes the other-acts evidence admissible for a proper purpose. State v. Werner, 482 N.W.2d 286, 290-291 (S.D.1992). Moreover, because those proper uses for other-act evidence are limitless, the Rule 404(b) list of permissible purposes is nonexclusive. State v. Wright, 1999 SD 50, ¶ 14, 593 N.W.2d 792, 798. Therefore, if the injunction and contempt order are relevant to any non-character purpose that Jones has placed in issue, they are admissible in the state’s ease-in-chief.

[¶ 34.] In this case, Jones submitted a pre-trial affidavit in which she unequivocally declared her defense. She admitted attending the births, admitted practicing as a “midwife,” but denied that she held herself out as a “Certified Nurse Midwife” and further denied that her conduct fell within the proscription against practicing midwifery without a license. Under those circumstances, the trial court misapplied Rule 404(b) and our cases when it summarily concluded that the injunction and contempt findings were.-“not relevant” to show knowledge or absence of mistake (intent) “unless and until the defendant testifies that she did not know that what she did was prohibited or that it was a mistake or accident.” (emphasis added). That decision, which only allowed the other-acts evidence if Jones opened the door by testifying about knowledge or intent, misapplied Rule 404(b) because it failed to consider the fact that the injunction and contempt order directly refuted Jones’ declared defense that her type of practice was not prohibited by SDCL ch 36-9A and the statute with which she was charged.

[¶ 35.] The trial court’s decision also reflects that it did not consider all of the rules that determine when other-acts is permitted in the state’s case-in-chief. The trial court premised its decision on only one of the two applicable rules governing the use of other-acts evidence in the state’s case-in-chief. The trial court relied on the rule of “preference” (expressed in State v. Steichen, 1998 SD 126, ¶ 19, 588 N.W.2d 870, 875) to wait for the admission of other-acts evidence until the defense opens the door at trial. The trial court, however, misapplied Steichen because the trial court’s decision reflects that it did not consider the Steichen exception to the preference. More specifically, the trial court’s decision reflects that it failed to consider the reason for the Steichen preference, and therefore, it failed to apply Steichen’s exception to the preference: an exception under which other-acts evidence is admitted in the state’s case-in-chief. Steichen, 1998 SD 126 at ¶ 24, 588 N.W.2d at 875 (further citations omitted).

[¶ 36.] A review of the trial court’s application of. Steichen must begin with the observation that the Steichen court’s preference for requiring a defendant to open the door at trial was adopted from Werner, 482 N.W.2d at 290. Werner explained the reason for the preference. Werner noted that it is generally “preferable to delay the admission of 404(b) evidence until after the defense rests because it places the trial court in the best position to determine whether the issue sought to be proved by the extrinsic act evidence is really in dispute, and if so, to assess its probative worth and possible prejudicial effect.” Werner, 482 N.W.2d at 290 (citing United States v. Estabrook, 774 F.2d 284, 289 (8thCir.1985)) (emphasis added). Thus, the reason for the preference in delaying the admission of other-acts evidence is to give the trial court an opportunity to determine whether a legitimate purpose exists for use of other-acts evidence.

[¶ 87.] However, it is not always necessary for the defense to present its case before a trial court can make that determination. Therefore, Steichen and Werner adopted an exception to the preference. Under that exception: “where it is made clear at the outset of the trial that the defendant’s principal defense is [a permissible purpose for use of other-acts evidence], and thus the issue is unarguably in dispute, the government may introduce the [other-acts] evidence in its case-in-chief” Id., (further citations omitted); Steichen, 1998 SD 126 at ¶ 19, 588 N.W.2d at 875. Indeed, this Court applied this exception in Werner and held that other-acts evidence was admissible in the state’s case-in-chief. It did so because that trial court “had ample opportunity” in pre-trial proceedings to ascertain that there was a dispute over an appropriate purpose for use of other-acts evidence. Id. The identical situation is present in the case now before us.

[¶ 38.] In this case, Jones has unequivocally declared through a sworn affidavit that she admits attending the births, but denies that her conduct constitutes the practice of midwifery within the meaning of the statute under which she is charged. Moreover, Jones’ defense has remained unchanged from her position in prior litigation where she also admitted attending births, but denied that her attendance at births constituted the practice of midwifery without a license in violation of SDCL ch. 36-9A. See, South Dakota Bd. of Nursing v. Jones, 1997 SD 78, ¶ 18 n. 6, 566 N.W.2d 142, 147 n. 6. Significantly, the trial court observed that this was Jones’ defense. The trial court noted that Jones’ contention was “that the requirements of SDCL S6-9A-35 do not apply to her as she is not and does not hold herself out to be a nurse midwife. She contends that she is a Certified, Professional Midwife and, therefore, not subject to SDCL 36-9A-35.” (emphasis added). Notwithstanding this recognition of a defense that is directly refuted by the injunction and contempt order, the trial court’s opinion does not reflect that Jones’ sworn affidavit and her similar contention in the prior litigation was considered. Had this pretrial record been considered on the 404(b) issue, it clearly demonstrated factual and legal relevancy to a real issue in dispute that Jones will raise at trial.

[¶ 39.] Under those circumstances, where Jones has unequivocally revealed her defense in pre-trial proceedings, the reason for the preference stated in Stei-chen and Werner is absent. When that reason for delaying admission of other-acts evidence is absent, our cases apply the exception that allows the admission of the other-acts evidence in the state’s case-in-chief. Werner, 482 N.W.2d 286, 290; Steichen, 1998 SD 126, ¶ 19, 588 N.W.2d at 875.

[¶ 40.] Respected commentators confirm this conclusion. In cases like this where “it is obvious that an appropriate consequential fact will be in issue, [whether Jones’ specific conduct in attending births constitutes the practice of midwifery in violation of SDCL 36-9A-35, a] trial court does not err by admitting other-crimes evidence as a part of the government’s case-in-chief.” 2 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence, § 404.23(3) (2d ed 2002). Moreover, that rule is not diminished by the fact that practicing midwifery without a license may be a general intent offense. “Even in general intent crimes; the government can offer [such] other crimes evidence as part of its case-in-chief when it is obvious that the defense will raise [a non-character issue] as a defense.” 22 Charles A. Wright & Kenneth W. Graham, Federal Practice and Procedure, § 5244 at 490 (1978). Under these circumstances, where it was made clear at the outset that Jones’ defense was that her attendance at the births did not constitute the practice of midwifery as defined in SDCL ch 36-9A, the trial court misapplied Rule 404(b) by failing to consider the pre-trial record, by failing to consider the reason for the Stei-chen preference, and by failing to apply the Steichen exception.

Continuing Course of Criminal Conduct.

[¶ 41.] Alternatively, the trial court misapplied Rule 404(b) because it faded to consider the admissibility of the injunction and contempt citation to prove an obvious plan to engage in a continuing course of criminal conduct. ■ Had the trial court considered that purpose, Jones’ affidavit and her prior legal history made the injunction and contempt citation admissible in the state’s case-in-chief to prove Jones’ plan to engage in a continuing midwifery practice without a license.,'

[¶ 42.] Jones’ pre-trial affidavit indicates that since 1984, she has attended over 400 births and continues to do so- to the date the affidavit was submitted in this case. In 1997, Jones filed a similar affidavit claiming attendance at 150 births. Jones, 1997 SD 78, ¶ 18, n. 6, 566 N.W.2d at 147, n. 6. Given Jones’ proclamation of a “larger continuing plan” to practice without a license, and given the fact that the present alleged crime is a part of that continuing course of criminal conduct, the prior acts are admissible in the state’s case-in-chief. Steichen, 1998 SD 126, ¶ 25, 588 N.W.2d at 876. Applying the test we used in Steichen. if one “compartes] the crimes for which {Jones] is charged with the other-acts avidence[, it] demonstrates [that] the crimes charged are a continuation of [Jones’] criminal conduct,” and therefore, the- other-acts are properly admitted' to show the continuing course of criminal conduct. Id.

[¶43.] The, trial court’s opinion does not reflect that .it considered Jones’ continuing criminal conduct or the applicable exception to. the preference stated in Stei-chen and Werner. ■■ Had the trial court considered those matters, the injunction and contempt citation were not only relevant to refute Jones’ declared defense, but also to prove her plan to engage in a continuing course of criminal conduct. Therefore, the trial court erred in its application of Rule 404(b), and it abused its discretion on Issue 1. Guthrie, 2001 SD 61, ¶ 30, 627 N.W.2d at 414-15.

      . In the event that Defendant or her attorney attempts to assert at any time during trial, as she asserted in a pretrial affidavit, that she was acting as a “certified professional midwife''- or was acting under some similar cá-pacity not legally authorized for the lawful practice of midwifery, then the issue would be properly joined and the State may seek to offer its other act evidence.

      . In her affidavit Jones also makes it clear that she has not changed her methods of midwifery since this Court's 1997 decision in Jones:

      I have practiced as a Midwife since September of 1984 and I have attended over 400 births to this date.
      In all of these births, I have not held myself out to be a Certified Nurse Midwife (CNM). I hold myself out as a Certified Professional Midwife (CPM).

      . In Goodroad, we found the defendant's stealing of a car eleven days before the unlawful taking of a second car to he part of the res gestae. Id. at ¶ 13, 563 N.W.2d at 130.

      . The State makes no claim whatsoever that the death of the child is in any way causally related to the delivery by Jones. Had there been evidentiary support to the contrary, it would have been an abuse of discretion by the trial court not to admit the death as part of the res gestae.

      . In footnote 1, this Court adopts the trial court's error by requiring that Jones or her counsel must repeat, at trial, Jones’ sworn pre-trial assertion that she was acting lawfully as a “certified professional midwife or under some other capacity” which made her conduct lawful under SDCL 36-9A-35. The Court’s procedural impediment misapplies Rule 404(b) in cases like this where the defendant has, at the outset, made this defense the issue in the case. See generally, Werner, supra; State v. Champagne, 422 N.W.2d 840 (S.D.1988). This Court also overlooks the fact that Jones' defense is unarguably at issue. The trial court expressly noted that Jones was contending that she acted in a capacity (a "Certified Professional Midwife”) that made her conduct lawful under SDCL 36-9A-35, and Jones does not take issue with this finding on appeal.

      . Notwithstanding her denial in that case, we concluded that her conduct was a willful violation of the prohibition against practicing midwifery without a license in SDCL ch. 36-9A.


author: SABERS, Justice. AMUNDSON, Retired Justice

text:
    2002 SD 151
    Marjorie A. SLAMA, Claimant and Appellant, v. LANDMANN JUNGMAN HOSPITAL, Employer and Appellee, and Phico Insurance Company, Insurer and Appellee.
    No. 22303.
    Supreme Court of South Dakota.
    Considered on Briefs Oct. 8, 2002.
    Decided Dec. 4, 2002.

      Daniel L. Fox, Fox, Youngberg & Lew-no, Yankton, for appellant.
    Rick W. Orr, Davenport, Evans, Hur-witz & Smith, Sioux Falls, for appellees.
   SABERS, Justice.

[¶ 1.] Marjorie Slama appeals a circuit court order dismissing her appeal of a South Dakota Department of Labor decision on her claim for workers’ compensation benefits. We affirm.

FACTS

[¶ 2.] An administrative law judge for the South Dakota Department of Labor granted summary judgment to Slama’s employer, Landmann Jungman Hospital, and its insurer, Phico Insurance Company, on Slama’s ciaim for workers’ compensation benefits. Slama attempted to appeal the summary judgment to ■ circuit court. To perfect the appeal, her counsel served copies of the notice of appeal on the department and on the attorney for the hospital and insurer, but not on the administrative law judge. Opposing counsel moved to dismiss the appeal for violation of the service -requirements of SDCL 1-26-31: “[a]n appeal shall be taken by serving a copy of a notice of appeal upon the adverse party, upon the agency, ■ and upon the hearing examiner, if any, who rendered the decision [.] ” ■ Slama’s counsel responded by arguing that the administrative law judge was not a “hearing examiner” as contemplated by SDCL 1-26-31 and, therefore, his service of copies of the notice of appeal on the other required parties was sufficient to perfect the appeal.- Relying on the plain language of the statute, the circuit court disagreed and dismissed Slama’s appeal. This appeal followed.

ISSUE

[¶ 3.] Did the circuit court err in dismissing Slama’s appeal?

[¶ 4.] In appeals to circuit court from decisions of administrative agencies, “SDCL 1-26-31 clearly delineates who must be served with a notice of appeal and when and where it must be filed in order to-transfer jurisdiction from the executive to the judicial branch.” Schreifels v. Kottke Trucking, 2001 SD 90, ¶ 12, 631 N.W.2d 186, 189. Failure to follow the plain language of the statute deprives the circuit court of subject matter jurisdiction over the appeal and requires its dismissal. Id. See also Stark v. Munce Bros. Transfer & Storage, 461 N.W.2d 587, 589 (S.D.1990) (failure of workers’ compensation claimant to serve timely notice of appeal on department of labor was jurisdictional error requiring dismissal of appeal).

[¶ 5.] SDCL 1-26-31 required Slama to serve her notice of appeal on “the hearing examiner, if any, who rendered the decision[.]” “ “Words and phrases in a statute must be given their plain meaning and effect. When the language in a statute is clear, certain and unambiguous, there is no reason for construction, and the Court’s only function is to declare the meaning of the statute as clearly expressed.’ ” Arends v. Dacotah Cement, 2002 SD 57, ¶ 11, 645 N.W.2d 583, 587 (quoting Martinmaas v. Engelmann, 2000 SD 85, ¶ 49, 612 N.W.2d 600, 611). The term “hearing examiner” has a plain meaning identical to the term “administrative law judge.” As set forth in Black’s Law Dictionary 46 (Bryan A. Garner ed., 7th ed.1999):

administrative-law judge. An official who presides at an administrative hearing and who has the power to administer oaths, take testimony, rule on questions of evidence, and make factual and legal determinations. 5 USCA § 556(c).— Abbr. ALJ. — Also termed hearing examiner; hearing officer; trial examiner, (emphasis added).

There is no dispute that Slama failed to serve a copy of her notice of appeal on the administrative law judge or “hearing examiner” who rendered the decision in her case. Therefore, the circuit court never acquired jurisdiction over the appeal and properly dismissed it. Schreifels, supra; Stark, supra.

[¶ 6.] Relying on the legislative history of SDCL 1-26-31, Slama argues that the term “hearing examiner” in the statute refers only to hearing examiners employed by the State Office of Hearing Examiners pursuant to SDCL ch 1-26D. Since the administrative law judge in her case was employed by the department of labor rather than the office of hearing examiners, Slama argues that she was not required to serve the judge and her service complied with SDCL 1-26-31.

[¶ 7.] As noted above, “ ‘[w]hen the language in a statute is clear, certain and unambiguous, there is no reason for construction, and the Court’s only function is to declare the meaning of the statute as clearly expressed.’ ” Arends, supra. Thus, “resorting to legislative history is justified only when legislation is ambiguous, or its literal meaning is absurd or unreasonable. Absent these circumstances, we must give legislation its plain meaning. We cannot amend to produce or avoid a particular result.” Petition of Famous Brands, Inc., 347 N.W.2d 882, 885 (S.D.1984). Further, this Court must apply the law as the legislature enacted it and must search for legislative intent by what the legislature said rather than what it should have said or might have said. Whitney v. AGSCO Dakota, 453 N.W.2d 847, 851 (S.D.1990).

[¶ 8.] In this case, the term “hearing examiner” has a plain meaning. There is no need for further construction. Had the legislature intended the meaning to be limited to hearing examiners employed under SDCL ch 1-26D, it could have said so. It did not. Moreover, there are practical reasons for rejecting this argument. Interpreting “hearing examiner” to refer only to hearing examiners employed under SDCL ch 1-26D would require appealing litigants in every administrative case to make a threshold determination of which state office employed the “hearing examiner” who decided their case. Only if the hearing examiner was employed by the office of hearing examiners would the appealing party be required to serve the examiner with a copy of the notice of appeal. There is no readily discernible purpose for this extra step. It promotes confusion and inconsistency from case to case in a procedural area where there should be clarity and continuity.

[¶ 9.] Requiring service on the hearing examiner who decided the case in every administrative appeal is not overly burdensome and, although perhaps unnecessary in some circumstances, it is presently mandatory under the law. Despite the apparent harsh result in this case, it is for the South Dakota Legislature, not the courts, to change the service, requirement if it is unnecessary or poses an unreasonable hurdle in certain circumstances.

[¶ 10.] Because Slama’s counsel failed to serve a copy of the notice of appeal on the hearing examiner who rendered the decision in her case, the service failed to comply with SDCL 1-26-31. Accordingly, the circuit court correctly dismissed the appeal. Schreifels, supra; Stark, supra.

[¶ 11.] Adfirmed.

[¶ 12.] GILBERTSON, Chief Justice, and KONENKAMP and ZINTER, Justices, concurring.

[¶ 13.] AMUNDSON, Retired Justice, dissenting.

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

AMUNDSON, Retired Justice

(dissenting).

[¶ 15.] The Court is denying this worker’s- compensation claimant her right to an appellate review of this case on the merits. Reason being that counsel failed to-serve notice of appeal on the administrative law judge.. , Certain questions come to mind. Is the administrative law judge responsible to pay any benefits? Obviously not. If the appeal goes forward would the-administrative law judge have the right to file a brief and argue before the Court? Obviously not, The parties with a vested interest in the determination of the issues in this appeal have been served with notice and are aware of its' existence and the issues involved:

[¶ 16.] Should this Court require this claimant to seek recovery through another legal action such as legal malpractice? I think not. I would adhere to the policy established in International Union of Operating Engineers Local # 19 v. Aberdeen School District No. 6-1, even though not strictly on point, wherein this Court held:

Notices of appeal should be liberally construed in favor of their sufficiency. Kelly v. Kelly, 371 N.W.2d 193, 195 (Minn.1985). We agree generally that:
In considering the sufficiency of the content of the notice [of appeal,] ... if the intent of the appellant to appeal from a judgment may be inferred from the text of the notice and if the appellee has not been misled by the defect the appeal will be entertained. This more liberal rule of construction is consistent with our oft repeated preference for disposition of cases on the merits and not on mere technicalities. Blink v. McNabb, 287 N.W.2d 596, 598-99 (Iowa 1980) (citations omitted).

463 N.W.2d 843, 844 (emphasis added).

[¶ 17.] Is it fair that this claimant is out of court on this technicality when in essence allowing the appeal to proceed does not prejudice either the employer or the employee and certainly not the administrative law judge? NO, it is not fair that this claimant’s case is not disposed of on the merits. Cases should customarily be decided upon the merits. Roso v. Henning, 1997 SD 82, ¶ 12, 566 N.W.2d 136, 141.


author: STREIT, Justice.

text:
    Cheryl MESSERSCHMIDT and Kelvin Messerschmidt, Appellees, v. CITY OF SIOUX CITY, Appellant. City of Sioux City, Iowa, Third-Party Plaintiff, v. Sisangviane Mekdara, Third-Party Defendant.
    No. 01-1209.
    Supreme Court of Iowa.
    Nov. 14, 2002.
    Rehearing Denied Jan. 3, 2003.

      Ivan T. Webber, Andrew J. Bracken, Danielle J. Jess, and James R. Wainwright of Ahlers, Cooney, Dorweiler, Haynie, Smith & Allbee, P.C., Des Moines, for appellant.
    Edward J. Keane, Sioux City, for appel-lees.
   STREIT, Justice.

While volunteering at the Big Parade celebration in Sioux City, Cheryl Messerschmidt was seriously injured when a drunk driver plowed into the golf cart in which she was seated. Before the accident, a Big Parade worker made the decision to remove the road barricade which prevented cars from moving' in this: area during the celebration. Messerschmidt sued the city for her injuries. The city argues it is immune under three theories. The city also argues there was not substantial evidence to support the jury’s apportionment of fault. Messerschmidts cross-appeal arguing the trial court erred in allowing the city to amend its answer after the close of plaintiffs case in chief. Because we find the city is not immune from liability under the facts of this case, we affirm both on the appeal and on the cross-appeal.

I. Background and Facts

In July 1999, Cheryl Messerschmidt was working for a community celebration in Sioux City known as the “Big Parade.” The Big Parade is an event the city holds together with its sister city, Lake Charles, Louisiana. Big Parade sponsors and vendors pay into the city budget. Approximately ten thousand people participate in the Big Parade. A Sioux City employee was in charge of running the Big Parade. The city contracted with vendors to provide various services during the Big Parade. As part of this event, Sioux City police officers were paid to help provide security. At the city’s request, the Wood-bury County Sheriffs Reserve unit also assisted in providing security and crowd control. The sheriffs reserve unit was to report to and follow any orders given by Martin Pottebaum, the member of the event committee in charge of security and safety for the Big Parade.

During the event, the city provided barricades to block off a frontage road near the riverfront. The barricade was to be in place until people were off the riverfront road. ■ However, following the evening parade and fireworks, but before the area was clear, the city removed the barricades blocking access to the riverfront road. Martin Pottebaum gave the order to the sheriffs reserve unit to lift the barricade. Pottebaum does not recall giving this order though other testimony suggests he did. Pottebaum conceded the barricades should not have been lifted when they were. ■ When the barricades were removed, there were still between 1,500 and 2)000 people in the area. Shortly after the sheriff reserve officers took the barricade down, Sisangviane Mekdara, an underage drunken driver, drove his car down the frontage road and hit the golf cart in which Messerschmidt was seated. Messerschmidt was thrown from the golf cart and injured. She and her husband sued the city claiming the city removed the barricades too soon after the fireworks. The city, in turn, sued Mekdara as a third-party defendant and. Mekdara defaulted.

In its amended answer, the city claimed it is immune from suit under the discretionary function immunity exception of Iowa Code section 670.4(3) (1999). At the close of Messerschmidts’ case, the court allowed the city to add an immunity defense based on -Iowa Code section 670.4(10) (damages caused by a third party not under the supervision of the city). The court denied the city’s motion for a directed verdict. The jury apportioned eighty-five percent fault to the city and fifteen percent fault to Mekdara. The. jury -returned .a million-dollar verdict for Messerschmidt and her husband. The city appeals and Messerschmidts cross-appeal.

On appeal, the city argues: 1) under its discretionary function it is immune from liability under Iowa Code section 670.4(3); 2) it could not be assigned a percentage of fault for Mekdara’s fault under Iowa Code section 668.10(1); and 3) it was immune from liability for placement of the barricade under Iowa Code section 670.4(10). The city also contends the jury’s apportionment of fault.was manifestly erroneous and not supported by substantial evidence. Messerschmidts argue the district court abused its discretion in allowing the city to belatedly amend its answer to add the section 670.4(10) immunity defense. They also argue the city did not preserve error on its section 668.10(1) immunity.

II. The Merits

. On appeal we must consider whether the discretionary function immunity applies in this case to shield the city from liability for its action in removing the barricade. We also must determine whether the trial court properly sustained the jury’s verdict that the city was predominantly at fault. Finally, we must determine whether the trial court abused its discretion in allowing the city to belatedly amend its answer to add the section 670.4(10) immunity defense.

A. Discretionary Function Immunity Under Iowa Code Section 670.4(3)

We are called upon to determine whether the actions of the city in removing the barricade to allow' frontage road access was a decision entitled to immunity. Our review of this issue is for correction of errors at law. Pinkerton v. Jeld-Wen, Inc., 588 N.W.2d 679, 680 (Iowa 1998). We recently addressed the discretionary function immunity in Doe v. Cedar Rapids Community, School District, 652 N.W.2d 439 (Iowa 2002). We articulated the appropriate test for determining whether a governmental action is immune from liability. First, we determine whether the challenged conduct was a matter of choice for the acting government employee. Id. at 443 (citing Goodman v. City of LeClaire, 587 N.W.2d 232, 237-38 (Iowa 1998)). Then, if we conclude the challenged conduct was the product of judgment, we must determine whether the judgment is of the kind the legislature intended to shield from liability when it enacted Iowa Code section 670.4(3). In applying this two-step test, the district court found the discretionary function immunity does not apply because Pottebaum’s decision to remove the.barricades was not the product of choice. We now turn to the first prong of this test.

The first factor to examine is whether an element of judgment or discretion was involved in the city’s decision to remove the barricade. Though Messer-schmidts contend there was no choice involved, we disagree. Just as we recently found choice existed at the heart of a school district’s decision to hire, retain, and supervise a particular teacher, here we find the city exercised choice in its decision to take the barricade down. Doe, 652 N.W.2d at 444. Messersehmidts argue the city is liable because, when it removed the barricade, it failed to comply with a previously adopted policy. There is no evidence to suggest the city had a policy stating the barricade was to be removed only when all people were gone from the premises. At best, there was evidence of a consensus of the Big Parade workers that the barricades would stay in place until all of the festival activities had ended. In years past, the barricades were not removed until the very end of the event when no people were left. Evidence of this custom and usage alone does not constitute a policy on the issue. When the parade worker decided it was time to take the barricade down, he exercised choice based on judgment. The first prong of the test is satisfied.

We now must determine whether the particular challenged choice is of the type the legislature intended to insulate from liability. If the city’s action involved a “high degree of discretion and judgment ... in weighing alternatives and making choices with respect to public policy and planning,” the city should be immune from liability. Id. (citing Hacking v. Town of Belmont; 143 N.H. 546, 736 A.2d 1229, 1232 (1999)). We consider whether the challenged action involved policy-making decisions and significant judgment or merely the performance of routine duties.

The city has not met its burden to prove considerations based on social, economic, or political policy were involved in its decision to take the barricade down. We do not question or test the wisdom of the city’s action, but rather the nature of the decision itself and the process used to reach it. See State v. Livengood by Livengood, 688 N.E.2d 189, 196 (Ind.Ct.App.1997). Only those decisions based on political, social, or economic policy considerations which cannot be assessed by customary tort standards are immune. Doe, 652 N.W.2d at 443. The city’s action in removing this particular barricade did not involve legislative or administrative decisions.

The decision to block a particular road was made in the interests of the safety of the people at the Big Parade. This is not comparable to a government decision to open a new road or highway. When a city decides whether to build a road, open a new street, or install highway guardrails, it may consider various social, economic, and political policies. For instance, the city may weigh competing needs of pedestrian safety, engineering concerns, commerce, traffic flow, and limited financial resources. See, e.g., Guerrero v. Alaska Hous. Fin. Corp., 6 P.3d 250, 261 (Alaska 2000) (decision whether to install highway guardrails is immune); Dep’t of Transp. v. Brown, 267 Ga. 6, 471 S.E.2d 849, 851 (1996) (decision whether to build a road is immune, whereas decision to open an intersection and whether to open it without traffic lights is not immune); Metier v. Cooper Transp. Co., 378 N.W.2d 907, 910 (Iowa 1985) (decision to keep highway open during construction was immune, but once decision was made, negligence in carrying out the decision was not protected from liability); Butler v. State, 336 N.W.2d 416, 419-20 (Iowa 1983) (decisions as to when and where to construct a new freeway are immune); Baker v. Seal, 694 S.W.2d 948, 950 (Tenn.Ct.App.1984) (decision whether to construct a road is immune from liability). Similarly, the city’s removal of this particular barricade is not analogous to a city’s decision to adopt highway safety standards that involved a deliberate assessment of the state’s priorities. See Livengood by Livengood, 688 N.E.2d at 196 (adoption of highway safety standards implicates the type of policy-oriented deliberation process discretionary function immunity is designed to protect). The city does not assert any such policies were at the heart of its decision to take the barricade down.

There is no evidence that anyone of authority weighed any social, economic, or political policies before lifting the barricade. The record indicates Pottebaum’s decision was nothing more than an ad hoc decision, tailored only for the particular facts as presented the night of the Big Parade. Matters such as when to lift a temporary road barricade do.not require evaluation of policies but instead involved implementation of everydáy decisions routinely made by the city. The city undertook to provide safe conditions for the festival-goers. In doing so, ’the city had a duty to use due care in providing safety and crowd control. Resolution of questions such as whether dr not the city properly removed the barricade when there were still over 1,500 people in the area relates to its duty of care to the Big Parade visitors. Such an a matter presents issues of fact that courts are equipped to evaluate under traditional principles of negligence. Because the city has not articulated any economic, political, or social policy concerns central to its actions, it has not met its burden to show the discretionary function immunity ’ applies. We find the district court correctly found the city is not immune from liability for its actions in this case. We affirm.

B. Iowa Code Section 668.10(1) Immunity for Traffic Control Devices

The city also contends it is immune from liability under Iowa Code section ■ 668.10(1). This section provides a government entity cannot be assigned any percentage of fault for failing to “place, erect, or install a stop sign, traffic control device, or other regulatory sign as defined in the uniform manual for traffic control devices adopted pursuant to section 821.252.” However, when a regulatory device has been .set up “the state or municipality may be assigned a percentage of fault for its failure to maintain the device.” Id. The city did not argue this defense below. The trial court did not have an opportunity to rule on this issue. As such, we find the city has not preserved error for our review of this claim.

C. Immunity Under Iowa Code Section 670.4(10) for Third-party , Fault

Finally, the city argues it cannot be held liable ■ for Messerschmidt’s injuries when .it was the drunken driver, not the city, who drove a car into Messerschmidt injuring her. The city filed a motion for a new trial with the 'trial court arguing the court erred in denying the city’s request for an instruction on immunity under Iowa Code’ section 670.4(10). This section provides for immunity from,

[a]ny claim based upon an act or omission of an officer or employee of the municipality', whether by issuance of permit, inspection, investigation, or otherwise ... if the damage was caused by a third party, event, or property not under the supervision or control of the municipality, unless the act or omission of the officer or employee constitutes actual malice or a criminal offense.

Iowa Code § 670.4(10). The city argued Messerschmidt’s injuries were caused by a third party, event, or property not under the city’s supervision or control. The court ruled that whatever negligence may be attributable to the drunken driver is not a superseding or intervening cause of the injury, but rather is a part of the totality of the circumstances leading to Messerschmidt’s injuries. We must consider whether the city can find shelter from liability under Iowa Code section 670.4(10).

Whether this section is applicable to the case before us presents a question of law appropriate for determination by the trial court. The city’s reliance on section 670.4(10) immunity is misplaced. This section provides a municipality is immune from liability for “[a]ny claim based upon an act or omission of an officer or employee of the municipality,- whether by issuance of permit, inspection, investigation, or otherwise .... ” Iowa Code § 670.4(10) (emphasis added). Messerschmidts claim the city “was negligent in removing the barricades, security officers, and law enforcement vehicles and in reopening the frontage road to motor vehicle traffic.” Messerschmidts do not allege the city is liable for its actions in conducting an investigation or inspection or through issuing a permit. We must determine whether the city’s action in removing the barricade is the type of action that falls within the meaning of the word “otherwise” as it is used in this statute.

The doctrine of ejusdem generis is instructive. Under this doctrine, when specific words are used in a statute followed by general words, the general words are restricted to include only objects similar to those specified. Shatzer v. Globe Am. Cas. Co., 689 N.W.2d 1, 5 (Iowa 2001). Here, the specific words are “issuance of permit,” “inspection,” and “investigation.” These words contemplate actions by the city such as the inspection of buildings and elevators, food inspection, and issuance of permits. See, e.g., Williams v. Bayers, 452 N.W.2d 624, 626 (Iowa Ct.App.1990) (where plaintiff injured in a building in Which city conducted inspections and issued permits, municipality not hable under Iowa Code section 613A.4(10) (renumbered Iowa Code § 670.4(10)) because these actions did not constitute supervision or control over the premises). The words “issuance of permit,” “investigation,” and “inspection” are followed by the more generic phrase, “or otherwise.”

The term “otherwise” is not so broad as to include every municipality action or omission. Pursuant to the doctrine of ejusdem generis, “otherwise” is intended to define the preceding terms with some flexibility. This flexibility is intended to accommodate for similar municipality actions not within the express contemplation of the legislature when it enacted this immunity provision. “Otherwise” includes only those actions of a municipality similar to an inspection, investigation, or issuance of a permit. Here, the city did not inspect, investigate, or issue a permit. The city’s actions in removing the barricade are not remotely similar to the actions contemplated. by section 670.4(10). In this case, it cannot be said the statute contemplates the city’s removal of a barricade as coming within the protective ambit of section 670.4(10) immunity.

Messerschmidts claim the city’s negligence in removing the barricade was a proximate cause of Cheryl’s injuries. Because the city did not conduct an investigation or inspection or issue a permit, section 670.4(10) does not apply to this case. In the court’s ruling on the city’s motion for a new trial, the court properly found it did not err in refusing to instruct the jury on immunity premised upon Iowa Code section 670.4(10).

The city amended its original answer arguing this immunity after the close of Messerschmidts’. case in chief. Because section 670.4(10) immunity does not protect the city from liability, we do not reach Messerschmidts’ objection to the trial court’s allowance of this late amendment and the trial court is affirmed as to this ruling.

D. Apportionment of Fault and Verdict

The jury found the city eighty-five percent at fault and Mekdara fifteen-percent liable. In the city’s motion for a new trial, it argued the verdict was not sus-tainéd by sufficient evidence. The court ruled questions of negligence, contributory negligence, and proximate cause are questions for the jury. See Iowa R.App. P. 6.14(6)(j). The court found sufficient facts upon which to uphold the jury’s verdict and apportionment of fault.

The jury’s determination of fault was a question of fact appropriate for resolution by the jury. See Morgan v. Perlowski, 508 N.W.2d 724, 728 (Iowa 1993). There was substantial evidence upon which the jury could have found the city was in part at fault for Cheryl’s injuries. The facts relevant to this issue are as follows.

The city held and sponsored the Big Parade on city property. Pottebaum had been drinking while he was in charge of safety and security at the Big Parade. Though he testified he did not drink when he was “actually working,” in fact, Potteb-aum had about four beers before ordering the barricade to be taken down. Control of safety and security did not shift during the night from Pottebaum to any other city employee. Pottebaum admitted he was in a hurry to attend a Cajun party after the fireworks. The accident occurred shortly after the city removed the barricade. Witnesses testified Mekdara was in control of the car and was not weaving. After the accident, Pottebaum admitted the barricade should not have been removed. He also acknowledged that when the city removed the barricade, other workers in golf carts were put in danger because the carts did not have reflectors on them. '

The record also supports the conclusion that a sober driver could have hit Messerschmidt under the same condition as did the drunken driver. Witnesses testified the golf carts had no lights or reflective material on them. Though there are a few street lights on the road where Messerschmidt was injured, testimony reveals the area of the accident was not well-lit. The road Messerschmidt was injured on is a busy road. While the barriers remained in place, the traffic flow was consistent with approximately eight cars every fifteen minutes approaching the barriers trying to get down the road. No other cars had passed through the area between the time the barricade was removed and when the drunk driver hit Messerschmidt. There were no other warning signs that Big Parade visitors were still in the area and drivers should approach with caution.

Given these facts, we conclude there was substantial evidence upon which the jury could apportion fault between the city and the drunken driver finding the city was negligent and its negligence was a proximate cause of Cheryl’s injuries. Because substantial evidence exists to support the jury’s finding of fault, the court properly upheld the jury’s apportionment of fault. See Cook v. State, 431 N.W.2d 800, 807 (Iowa 1988) (court must determine whether substantial evidence exists to support jury’s apportionment of fault); see also Fox v. Interstate Power Co., 521 N.W.2d 762, 764 (Iowa Ct.App.1994) (court cannot substitute is judgment for that of the jury). We affirm.

III. Conclusion

The city is not immune from liability for its actions in removing this particular barricade during the Big Parade. The decision did not involve social, political, or economic policies the discretionary function immunity is designed to protect. Because the city is not immune from liability under Iowa Code section 670.4(10), we do not address Messerschmidts’ objection to the city’s late amendment adding this defense. Substantial evidence in the record supports the jury’s conclusion that the city was liable in part for Cheryl’s injuries.

AFFIRMED ON APPEAL AND CROSS-APPEAL.

      . The .city attempts to dodge this conclusion arguing the issue is a matter of subject matter jurisdiction and may be raised at any time. The city's claim is wholly without merit. Immunity defenses are not jurisdictional, but may be reviewed on the merits. Hawkeye Bank v. State, 515 N.W.2d 348, 351 (Iowa 1994). Under Iowa Code section 670.4, a city may establish immunity from liability. The court may preside over cases where liability is an issue. See id.


author: CARTER, Justice.

text:
    Debbie JOHNSON, Appellant, v. Michael J. LOUIS, Appellee.
    No. 01-0402.
    Supreme Court of Iowa.
    Dec. 18, 2002.

      Leslie Babich and Stacey N. Warren of Babich, Goldman, Cashatt & Renzo, P.C., Des Moines, for appellant.
    Ben T. Doran of Doran,. Anderson & Baltimore, P.L.C., Boone, for appellee.
   CARTER, Justice.

Debbie Johnson, the mother of Jared Johnson, appealed from a denial of her request to modify the child support obligation of Jared’s father, Michael Louis, to include a postsecondary educational subsidy for Jared.. Debbie and Michael had never married. The court of appeals, although acknowledging that Jared, who would soon be eighteen, had no statutory or common-law right to continued child support after attaining that age, concluded that a refusal to grant him a postsecond-ary educational subsidy would amount to a denial of equal protection of the law. As a result, it reversed the district court’s judgment and ordered that a subsidy be exacted from Michael. After reviewing the record and considering the arguments presented, we vacate the decision of the court of appeals and affirm the judgment of the district court.

Debbie gave birth to Jared on November 3, 1982. In February of 1984 the child support recovéry unit, acting oh behalf of Debbie, sought and obtained a finding of paternity and a support order against Michael pursuant to Iowa Code section 252A.3(2) (1983). On June 12, 1991, the amount of support to be provided Jared by Michael was substantially increased as a result of Debbie’s application to modify the 1984 order. On November 14, 1994, the district court, acting on Debbie’s application, again increased the amount of child support required from Michael based on a finding that the support provided in the 1991 order was more than ten percent below that which was required under the child support guidelines.

The November 1994 order that increased Michael’s child-support obligation also acted favorably on his request for court-prescribed visitation with Jared. Prior to that order, Michael had enjoyed very little visitation. Between November 1994 and October 1995, Michael’s visits with Jared were sporadic and, when they occurred, of short duration. On the latter date, Debbie moved with Jared from Ames, Iowa (where Michael resided), to Salt Lake City, Utah, and Michael’s visits with Jared ceased entirely except for a few brief telephone conversations. In May 2000 Debbie pétitioned for a modification of the support order to include a postsec-ondary educational subsidy. The district court denied that request on February 6, 2001. Other facts that are of significance in deciding the appeal will be discussed in connection with our consideration of the legal issues presented.

I. Common-Law and Statutory Requirements for Parental Support of Children.

We first consider the extent of common-law or statutory requirements for parental support of children.

A. Common law. At common law a parent’s obligation to support his or her child ends when the latter becomes of age, unless the child is physically or mentally unable to care for itself. Davis v. Davis, 246 Iowa 262, 266, 67 N.W.2d 566, 568 (1954); Addy v. Addy, 240 Iowa 255, 258, 36 N.W.2d 352, 354 (1949); Blackley v. Laba, 63 Iowa 22, 23-24, 18 N.W. 658, 658 (1884). At common law the time one became of age was twenty-one. 42 Am. Jur.2d Infants § 5, at 16 (2000). . In Iowa this age was lowered by statute to nineteen in 1972. 1972 Iowa Acts ch. 1027, § 49. The following year it was lowered to eighteen. 1973 Iowa Acts ch. 140, § 49. It has remained at this age ever since, except as altered by statute in specific situations not relevant here.

B. Iowa Code chapter 252A. Michael’s child-support obligation was adjudicated pursuant to Iowa Code chapter 252A in 1984. When this obligation was originally established, chapter 252A provided that a child-support obligor was required to pay for “his or her child or children under eighteen years of age ... a fair and reasonable sum according to his or her means, as may be determined by the court.” Iowa Code § 252Á.3(2) (1983). This “under eighteen years of age” limitation for support actions under chapter 252A has been retained until the present time. The corresponding provision of chapter 252A at the time of the latest child support order on February 6, 2001, rendered a child-support obligor who is a parent but not a spouse

liable for the support of the parent’s child or children under eighteen years of age, whenever the other parent of such child or children is dead, or cannot be found, or is incapable of supporting the child or children, and, if the hable parent is possessed of sufficient means or able to earn the means. The court having jurisdiction of the respondent in a proceeding instituted under this chapter shall establish the respondent’s monthly support payment and the amount of the support debt accrued and accruing pursuant to section 598.21, subsection 4.

Iowa Code § 252A.3(2) (1999). Subsection 4 of section 598.21 (1999) provided for monthly support payments consistent with the child-support guidelines. Our child-support guidelines have never included provisions that relate to postsecondary educational subsidies. We are satisfied that at no time following the original support order against Michael has chapter 252A obligated him to provide a postsecondary educational subsidy for children eighteen years of age or older.

C. Iowa Code chapter 600B. Iowa Code section 600B.1 provides:

The parents of a child born out of wedlock and not legitimatized (in this chapter referred to as “the child”) owe the child necessary maintenance, education, and support.

Later in the same chapter, it is provided, “[f]or the purposes of this chapter, ‘child ’ means a person less than eighteen years of age.” Iowa Code § 600B.39.

D. Iowa Code chapter 598. The source of the claimed entitlement, which the court of appeals confirmed on equal-protection grounds, is Iowa Code chapter 598. There are several pertinent provisions in this chapter with respect to the support of children. Iowa Code section 598.1(9) provides:

“Support ” or “support payments ” means an amount which the court may require either of the parties to pay under a temporary order or a final judgment or decree, and may include alimony, child support, maintenance, and any other term used to describe these obligations. For orders entered on or after July 1, 1990, unless the court specifically orders otherwise, medical support is not included in the monetary, amount of child support. The obligations shall include support for a child who is between the ages of eighteen and nineteen years who is engaged full-time in completing high school graduation or equivalency requirements in a manner which is reasonably expected to result in completion of the requirements prior to the person reaching nineteen years of age; and may include support for a child of any age who is dependent on the parties to the dissolution proceedings because of physical or mental disability.
Iowa Code section 598.21(4)(a) provides: [U]pon every judgment of annulment, dissolution, or separate maintenance, the court may order either parent or both parents to pay an amount reasonable and necessary for supporting a child.... There shall be a rebuttable presumption that the amount of child support which would result from the application of the guidelines prescribed by the supreme court is the correct amount of child support to be awarded.

Another provision of section 598.21 provides:

The court may order a postsecondary education subsidy if good cause is shown.
b. A postsecondary education subsidy shah be payable to the child, to the educational institution; or to both, but shall not be payable to the' custodial parent.

Iowa Code § 598.21(5A). As we have previously noted, at the time of the several determinations of Michael’s child support obligation that have taken place since 1984, section 598.21(5A) was not applicable in determining his support obligation.

The court óf appeals was correct in concluding that, based on the applicable statutory law, Michael was under no obligation to provide any type of child support for Jared after Jared attained his eighteenth birthday.

II. The Equal Protection Issue.

The court of appeals concluded that, because support decrees entered in proceedings under Iowa Code chapter 598 allow the court to provide a postsecondary educational subsidy for a child attending college, it is a denial of equal protection of the law to deny the same opportunity for a child whose support obligation is adjudicated under statutes other than chapter 598. Michael urges that the court of appeals’ conclusion on that issue is flawed.

The primary basis for the court of appeals’ decision was its conclusion that the statutory scheme discriminated against illegitimate children because only children whose parents are married have their support obligation adjudicated under chapter 598. As support for striking down this perceived discrimination, the court of appeals relied on Levy v. Louisiana, 391 U.S. 68, 71, 88 S.Ct. 1509, 1511, 20 L.Ed.2d 436, 439 (1968), wherein the Court held that it was a denial of equal protection under the Fourteenth Amendment to the federal constitution for the State of Louisiana to fail to provide the same right of recovery for wrongful death of a parent to illegitimate children as was provided to legitimate children. A similar result, also involving the. State of Louisiana, was reached in Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 169, 92 S.Ct. 1400, 1403, 31 L.Ed.2d 768, 775 (1972) (failure to provide identical workers’ compensation benefits to legitimate and illegitimate children of a worker killed on the job deemed denial of equal protection).

Because the court of appeals decided the issue under the federal constitution, we consider it in the same manner. We note, however, that we usually deem the federal and state Equal Protection Clauses to be identical in scope, import, and purpose. Exira Cmty. Sch. Dist. v. State, 512 N.W.2d 787, 792-93 (Iowa 1994). Mere differentiation is not enough to constitute denial of equal protection — there must be invidious discrimination. Bd. of Dirs. of Indep. Sch. Dist. of Waterloo v. Green, 259 Iowa 1260, 1270, 147 N.W.2d 854, 860 (1967). In State v. Mann, 602 N.W.2d 785 (Iowa 1999), we observed:

A classification is reasonable if it is “based upon some apparent difference in situation or circumstances of the subjects placed within one class or the other which establishes the necessity or propriety of distinction between them.” A classification “does not deny equal protection simply because in practice it results in some inequality; practical problems of government permit rough accommodations.... ”

Mann, 602 N.W.2d at 792 (citations omitted). Unless a suspect class or a fundamental right is involved, any classification made by the legislature need only have a rational basis. Bowers v. Polk County Bd. of Supervisors, 638 N.W.2d 682, 689 (Iowa 2002). In applying this standard, we apply a rational-basis test in determining the validity of the statutory classifications that are assailed here.

We conclude that the discrimination against illegitimate children that was perceived by the court of appeals is not well-founded. Michael’s support obligation was originally established under Iowa Code chapter 252A. We have recognized a right to modify orders entered under chapter 252A, albeit not retroactively. State ex rel. Dep’t of Human Sens. v. Flo, 477 N.W.2d 383, 384 (Iowa 1991). We are convinced that the most recent modification effort in 2001 seeking a postsecondary educational subsidy was required to be adjudicated within the limits of the support allowed in chapter 252A.

Chapter 252A, at all times relevant to the present dispute, has provided for support orders for both legitimate and illegitimate children. Subsections (1) and (2) of section 252A.2 do distinguish between parents who have been married (and thus obtained a status of a “spouse”) and other parents. We are convinced, however, that neither subsection establishes a right to a postsecondary educational subsidy for children who are eighteen years of age or older. Although subsection (1) appears to incorporate all of section 598.21 for purposes of fixing support, the language in that subsection that precedes the reference to section 598.21 limits the obligation for support under that subsection to children under eighteen years of age.

We also conclude that there is no invidious discrimination between the rights of children whose parents dissolve their marriages under chapter 598 and those for whom support is determined under chapter 252A. Chapter 252A, at all times relevant to this dispute, has been a body of uniform legislation. See Iowa Code § 252A.1 (1999). As such it was a rational decision for the legislature to adopt the provisions of the uniform law as framed by its drafters, rather than substituting a local variation.

For purposes of an equal-protection analysis, Jared’s lack of entitlement to a postsecondary educational subsidy is not only similar to the situation of other child-support obligees whose rights are established pursuant to chapter 252A, it is also similar to the situation of children whose parents continue to be married to each other. The class of children who do enjoy the right to seek a postsecondary educational subsidy, ie., children whose parents are or have been divorced, present a situation different from the classes of children who do not enjoy that entitlement.

As we recognized in In re Marriage of Vrban, 293 N.W.2d 198, 202 (Iowa 1980), the benefited class of children have had the .attributes of a legally recognized parental. relationship taken from them by court decree. The educational benefit is a quid pro quo for the loss of stability resulting from divorce. Children like Jared, whose parents never sought State involvement to formalize or dissolve their relationships, are not similarly situated. They cannot claim the loss of stability such change in status brings. And, while they may rightfully claim a similarly vulnerable status insofar as furthering their education, we deem the classification drawn by the legislature to be rational, not arbitrary, and thus not constitutionally infirm.

We have considered all issues presented and conclude that the decision of the court of appeals should be vacated. The judgment of the district court is affirmed.

DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT AFFIRMED.

      . In contrast, in subsection (1) of section 252A.3, which pertains to the support obligation of a "spouse,” the cross-reference to section 598.21 is to the entire section, rather than to subsection (4) thereof. Subsection (1) of section 252A.3 reads:
      A spouse is liable for the support of the other spouse and any child or children under eighteen years of age and any other dependent. The court shall establish the respondent’s monthly support payment and the amount of the support debt accrued and accruing pursuant to section 598.21.

      . Because we conclude that at no time did the applicable statutes provide a basis for imposing a postsecondary educational subsidy as part of a chapter 252A support order, we need not consider whether decrees under chapter 252A may be modified based on legislative change that provides more generous benefits. In marriage-dissolution cases, we have held that legislative changes decreasing support benefits may not be applied retroactively to modify support payments ordered under prior law. In re Marriage of Sojka, 611 N.W.2d 503, 505 (Iowa 2000); In re Marriage of Williams, 595 N.W.2d 126, 130 (Iowa 1999); Willcox v. Bradrick, 319 N.W.2d 216, 217-18 (Iowa 1982); In re Marriage of Harless, 251 N.W.2d 212, 212 (Iowa 1977). We have yet to decide whether a modification of a support order may be based on a statutory change providing more generous benefits.