text:
    2000 ND 103
    Joyce R. TISHMACK, now known as Joyce Stern, Plaintiff and Appellant, v. Gregory A. TISHMACK, Defendant and Appellee.
    No. 990287.
    Supreme Court of North Dakota.
    May 25, 2000.

      Arnold V. Fleck, Fleck Law Office, Bismarck, ND, for plaintiff and appellant.
    Mary E. Nordsven, Hardy, Maus & Nordsven, Dickinson, ND, for defendant and appellee.
   KAPSNER, Justice.

[¶ 1] Joyce Tishmaek appealed from a trial court order denying her motion to move out of state with her son, Matthew. We hold the trial court did not clearly err in determining the requested move is not in Matthew’s best interests. We therefore affirm.

I

[¶ 2] Joyce Tishmaek and Gregory Tish-mack are the parents of Matthew who was born on March 28, 1985. Joyce and Gregory divorced in 1986, and Joyce was awarded custody of Matthew subject to Gregory’s right to reasonable visitation.

[¶ 3] In 1990, Gregory moved the trial court to amend its judgment to provide for specific visitation. Joyce responded, arguing Gregory had not shown a material change of circumstances affecting Matthew’s best interests and Gregory had not requested a specific visitation schedule. The parties later agreed to a specific visitation schedule, and the divorce judgment was accordingly amended.

[¶ 4] In March 1996, Gregory moved for expanded visitation, the appointment of a guardian ad litem, and a psychological evaluation of Matthew. Gregory asserted Matthew experienced anxiety problems related to visitation. Joyce contested the motion, asserting Matthew did not have an anxiety problem and there had been no material change in circumstances justifying a change in visitation. The trial court ordered a psychological evaluation and. appointed a guardian, ad litem. In 1998, the trial court ordered the parties and Matthew’ to' participate in counseling. ■ The parties stipulated to a visitation schedule which was incorporated into an April 1998 order.

[¶ 5] Joyce sold her house in August 1998 and began renting a house. In July 1999, she moved the trial court for permission to move with Matthew to Bandera, Texas. Joyce asserted her position in Grant County as Clerk of Court and Register of Deeds was jeopardized by legislative plans to reduce clerk of court positions, she had been offered a higher paying job in Texas, she had family in Texas, and Matthew wanted to make the move. Matthew submitted an affidavit requesting the trial court allow the move. Opposing the request to move, Gregory contended Joyce intended to frustrate visitation and avoid dealing with Matthew’s anxiety problem.

[¶ 6] After a hearing, the trial court acknowledged it was governed by the four-factor best interest analysis established in Stout v. Stout, 1997 ND 61, ¶ 34, 560 N.W.2d 903, and clarified in Hawkinson v. Hawkinson, 1999 ND 58, ¶ 9, 591 N.W.2d 144. The trial court determined: the first factor, the prospective advantages of the move, favors the move because of the anticipated economic gains; the second factor, the integrity of the custodial parent’s motive for relocation, weighs strongly against the move because Joyce appears to intend to deter visitation and to avoid addressing Matthew’s separation anxiety problem; the third factor, the integrity of the non-custodial parent’s motives for opposing the move, weighs against the move because Gregory is genuinely concerned the move would destroy his relationship with Matthew; and the fourth factor, the potential negative impact, weighs against the move because, in light of Matthew’s unresolved anxiety problem, an extended visitation plan would not work and the tenuous relationship which exists between Matthew and Gregory would be destroyed. See Stout, at ¶ 34; Hawkinson, at ¶ 9. An order denying Joyce’s motion was entered on July 30, 1999. Joyce appealed.

II

[¶ 7] Joyce contends the trial court erred in determining the move was not in Matthew’s best interests. A custodial parent has the burden of proof to establish a proposed move is in the best interests of the child. Hawkinson, at ¶ 5. When determining whether the move is in the best interests of the child, the trial court must apply the following four-factor analysis:

1. The prospective advantages of the move in improving the custodial parent’s and child’s quality of life,
2. The integrity of the custodial parent’s motive for relocation, considering whether it is to defeat or deter visitation by the noncustodial parent,
3. The integrity of the noncustodial parent’s motives for opposing the move,
4. The potential negative impact on the relationship between the noncustodial parent and the child, including whether there is a realistic opportunity for visitation which can provide an adequate basis for preserving and fostering the noncustodial parent’s relationship with the child if relocation is allowed, and the likelihood that each’ parent will comply with such alternate visitation.

Id. at ¶¶ 6, 9 (citing Stout v. Stout, 1997 ND 61, ¶ 34, 560 N.W.2d 903, and clarifying its fourth factor). The trial court’s determination is a finding of fact and will not be reversed unless it is clearly erroneous. Id. at ¶ 5. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if there is no evidence to support it, or if, after reviewing all the evidence, we are left with a definite and firm conviction a mistake has been made. Tibor v. Tibor, 1999 ND 150, ¶ 8, 598 N.W.2d 480. We do not reweigh evidence or reassess credibility where there is evidence to support a trial court’s findings. Habeck v. MacDonald, 520 N.W.2d 808, 813 (N.D.1994). “The trial court’s choice between two permissible views of the weight of the evidence is not clearly erroneous.” Id. (citation omitted). [¶ 8] In challenging the trial court’s findings, Joyce asks this Court to reweigh the evidence. We decline and review only for clear error.

A

[¶ 9] Considering the second Stout factor, the trial court found “[t]he history of the relationship between Joyce and Gregory and their continuing problems as shown by the evidence persuades the Court that Joyce is motivated more by an intention to defeat or deter Gregory’s visitation than she is motivated by a sincere desire to improve herself economically or otherwise.” Joyce argues the trial court gave insufficient weight to the evidence suggesting a motive to improve her situation and too much weight to evidence that put her motives in a different light.

[¶ 10] The trial court’s finding the integrity of Joyce’s motives for relocation weighs against the move is supported by the record. There is evidence suggesting Joyce was motivated by a desire to minimize and avoid dealing with Matthew’s anxiety problem. Joyce admitted that after three or four counseling sessions, she “just took it for granted we were done.” Joyce testified “in [ ] encouraging Matthew to stay [for visitation with Gregory, she has] suggested that his failure to do so could result in [his] having to go back to counseling.” Joyce contended Matthew’s “anxiety comes from there’s nothing for him to do” while at Gregory’s. In response to the question whether Matthew cannot spend more than one night per visit to Gregory’s home, Joyce asserted “[i]t’s because he doesn’t want to. It’s a totally different life style.” Joyce testified she felt Matthew could handle traveling to North Dakota from Texas and staying for extended visitation periods.

[¶ 11] There is evidence showing Joyce was motivated by an intent to deter visitation. In support of his 1990 motion to amend the divorce judgment to provide for specific visitation, Gregory stated Joyce had refused to provide him with reasonable visitation. He stated Joyce would not allow overnight visitation and had sometimes allowed only two visits per month. Joyce contested Gregory’s motion, arguing he had not shown a material change of circumstances since the divorce decree. Joyce denied she had refused overnight visitation but indicated she felt overnight visitation was not then in Matthew’s best interests. She also stated she was “not sure if Greg is earing for Matthew properly when Matthew is with him.” In response to Gregory’s 1996 motion for expanded visitation, the appointment of a guardian ad litem, and a psychological evaluation of Matthew, Joyce asserted there had not been a material change in circumstances since the judgment had been amended. She opposed the appointment of a guardian ad litem and requiring Matthew to submit to a psychological evaluation, asserting he was a normal child. Joyce also indicated Gregory was controlling and manipulative and had frequently failed to follow their visitation arrangements. Although the parties eventually agreed to visitation schedules following both of Gregory’s motions, the record shows the parties have had considerable conflict and visitation-related problems.

[¶ 12] Other evidence weakens Joyce’s assertion her current job was in jeopardy and she sought employment in Texas “after [she] checked with Job Service [and] couldn’t find anything around here.” Joyce testified she began to look for employment in Texas in February or March of 1999 and “beg[a]n seriously pursuing a move to Texas” in about April 1999. However, eight of the eleven Job Service notices Joyce introduced were dated April 15, 1999, or later. Joyce conceded she was in no danger of losing her job until 2002, and was not sure if her position would be eliminated at that time.

[¶ 13] • Finally, there is evidence Joyce concealed her plan to move. Despite “seriously pursuing” a move to Texas in April 1999, Joyce conceded she did not notify Gregory, until late June, of her intention to move to Texas. Joyce also admitted she put her home on the market and sold it in August 1998.

[¶ 14] Because there is evidence supporting the trial court’s determination Joyce’s motives for relocation weigh against allowing the move, we conclude the trial court did not clearly err in determining the second Stout factor weighs against the move.

B

[¶ 15] Under the third Stout factor, the trial court indicated it “does not mean to imply that Gregory’s motives are beyond all question, but [it] is convinced that Gregory is primarily motivated by a desire to preserve a relationship with Matthew and not simply to prevent Joyce from moving.” Joyce asserts the trial court “gave far too little consideration to the evidence that indicates that Gregory is more interested in keeping Matthew in the state than he is in Matthew’s best interest.”

[¶ 16] The record supports the trial court’s finding the integrity of Gregory’s motives for opposing the move weighs against the move. There is evidence showing Gregory wants to have a strong relationship with Matthew and fears the move would prevent any significant relationship between them. Gregory indicated he wanted to have an influence in Matthew’s life. Gregory expressed concern the move would severely limit visitation and harm his existing relationship with Matthew. He testified he did not request extended visitation in the past with Matthew because he did not want to increase Matthew’s anxiety and “[i]t’s impossible for Matt I know to even spend more than a night now and for him to travel 1400 miles alone I could never put him through that now.” Tina Tishmack, Gregory’s new wife, testified that in the past when Gregory requested Matthew stay for an extended visit, Matthew would become very anxious and Gregory would then attempt to console him.

[¶ 17] Because there is evidence supporting the trial court’s determination, we hold the trial court did not clearly err in determining the third Stout factor weighs against allowing the move.

C

[¶ 18] Under the fourth Stout factor, the trial court determined “[b]ecause of Matthew’s anxiety problem the move to Texas would in all probability destroy the tenuous relationship which now exists between Gregory and Matthew.” Joyce contends the trial court erred because “[t]he record evidence demonstrates that visitation can be restructured to preserve and foster Matthew’s relationship with Gregory.”

[¶ 19] The record supports the trial court’s finding the potential negative impact on the relationship between Gregory and Matthew weighs against the move. There is evidence Matthew would have difficulty dealing with extended visitation. Both Gregory and Tina testified Matthew would become very emotional when faced with extended visitation. Matthew admitted extended visitation has been very difficult to deal .with and he was not sure whether he would be able to handle extended visitation in the future. Other evidence, mainly Joyce and Gregory’s past conflicts, indicates arranging visitation would be difficult if Joyce and Matthew moved to Texas. Although the parties eventually reached visitation agreements in the past, they did not do so until Gregory moved the trial court to act. Gregory has accused Joyce of refusing to allow him reasonable visitation. Joyce has accused Gregory of failing to follow visitation arrangements. She, also has criticized Gregory’s parenting and referred to him as “controlling and manipulative.”

[¶ 20] Because there is evidence supporting the trial courts determination, we con-elude the trial court did not clearly err in determining the fourth Stout factor weighs against allowing the move.

D

[¶ 21] Joyce argues the trial court failed to consider Matthew’s desire to make the requested move. A child’s preference “is one factor the trial court may consider in determining the best interests of the child in the context of a motion to remove the child from the state.” Keller v. Keller, 1998 ND 179, ¶ 18, 584 N.W.2d 509. The preference of a mature child is significant in determining the child’s best interests. Id. at ¶¶ 17, 19 (noting the trial court, despite finding the child to be well-adjusted and an “A” student, “neither indicated it gave any consideration to [the child’s] preference nor explained why it should discount or ignore it”); see also N.D.C.C. § 14 — 09—06.2(l)(i) (providing “[t]he reasonable preference of the child, if the court deems the child to be of sufficient intelligence, understanding, and experience to express a preference” must be considered in a custody determination).

[¶ 22] Although the trial court did not expressly recognize Matthew’s preference, two factors compel a holding the trial court did not clearly err. First, the child’s preference is relevant to the first Stout factor and the trial court indicated the first factor weighs in favor of allowing the move. See Tibor v. Tibor, 1999 ND 150, ¶ 18, 598 N.W.2d 480 (considering the child’s preference when analyzing the first Stout factor). Second, there is evidence showing Matthew is not a mature child. Both Gregory and Tina testified Matthew becomes very anxious when faced with the possibility of extended visitation. Matthew testified coping with extended visitation has been very difficult and he is unsure whether he could handle it in the future. Matthew also admitted he has received some poor grades in school. The trial court accordingly found Matthew “appears somewhat immature for his age” and “may have difficulty adjusting to his new surroundings.” We conclude the trial court did not clearly err in not expressly acknowledging Matthew’s preference.

Ill

[¶ 23] Because the trial court did not clearly err in determining the move is not in Matthew’s best interests, we affirm the trial court’s order.

[¶ 24] GERALD W. VANDE WALLE, C.J., MARY MUEHLEN MARING, WILLIAM A. NEUMANN, JJ., concur.

DALE V. SANDSTROM, I concur in the result.

      . Joyce is now known as Joyce Stern.


source: Caselaw Access Project

author: MILLER, Chief Justice SABERS, Justice

license: Public Domain

text:
    2000 SD 60
    Scott J. JACOBSON, Plaintiff and Appellant, v. Nancy J. JACOBSON, Defendant and Appellee.
    No. 21088.
    Supreme Court of South Dakota.
    Considered on Briefs Feb. 14, 2000.
    Decided May 3, 2000.

      John J. Delaney of Delaney & Sumner, Rapid City, for plaintiff and appellant.
    James L. Waggoner, Rapid City, for defendant and appellee.
   MILLER, Chief Justice

[¶ 1.] This is an appeal from the trial court’s modification of a provision in a divorce decree which allocated the federal income tax dependent exemptions. We affirm in part and reverse in part.

' FACTS

[¶ 2.] Scott Jacobson and Nancy Jacobson were married in August 1985, and two children were born to the marriage. They were divorced in May 1996. The divorce decree incorporated a “Stipulation, Property Settlement and Child Custody Agreement” [Stipulation] entered into between the parties, which provided in salient part:

IV. The parties agree that [Scott] shall pay child support in accordance with the guidelines of the state of South Dakota of Eight Hundred Sixty-eight Dollars ($868) per month. Day care or similar costs incurred as a result of [Nancy’s] employment will be shared by the parties ([Scott] shall pay 70% and [Nancy] shall pay 30% at this time) and paid separately from the child support obligation.... Uncovered medical expenses and all costs of medical insurance shall be shared equally by the parties.... In any year in which the child support paid by [Scott] to [Nancy] equals or exceeds Four Thousand Two Hundred Dollars ($4,200), the exemption for the Internal Revenue Service shall pass to [Scott] and [Nancy] shall execute any documents or papers necessary to accomplish that end.

[¶3.] At the time the Stipulation was signed, Nancy had just been notified that her teaching contract would be reduced to a part-time position for the 1996-1997 school year. She later testified that she agreed to permit Scott’s claiming the children’s income tax exemptions because she “just thought that it was fair that Scott get them. At the time, they would have been worth more to him for his income than they would have been to me for what my income was going to be.”

[¶ 4.] As a result of Nancy securing a full-time teaching contract for the 1998-1999 school year, Scott suggested that child support be reviewed. Nancy agreed and filed a Petition for Modification of Child Support, claiming that circumstances had changed. In addition to Nancy resuming full-time employment, both parties had re-married. Further, the state child support guidelines and the federal tax laws concerning dependency exemptions and child care credits had changed. She and Scott agreed to present the case to a referee in order to “keep the lawyers out of it.”

[¶ 5.] A hearing was held before the referee on December 9, 1998. A transcript of the hearing is not contained in the file, but it appears that the issue of whether the dependent exemptions could be modified was not addressed.

[¶ 6.] Apparently the referee assumed Nancy was entitled to the federal income tax dependent exemptions, despite the contrary provision in the Stipulation. He additionally assumed that she was in fact claiming the exemptions on her tax returns. Under the presumption that he had no jurisdiction to make a recommendation about who was entitled to claim such exemptions, the referee treated them only as a factor to consider in deviating from the child support guidelines. He ultimately recommended that the amount of child support be increased (pursuant to applicable child support guidelines), and that the payment of the children’s medical expenses not covered by insurance be reallocated between the parties.

[¶ 7.] Neither party objected to the referee’s report. The trial court adopted the report and entered a child support order accordingly. Two days later, Nancy filed a motion to modify the divorce decree and remove the provision concerning which party is entitled to the dependent exemptions. On June 23, 1999, the court granted the motion, finding that circumstances had changed since the entry of the divorce decree. Specifically, it noted that both parties had re-married and each parties’ new spouse was employed full time, Nancy had secured full-time employment, the statute (SDCL ch. 25-7) pertaining to child support had been modified in 1997, and federal tax laws relating to dependent exemptions and child care credits had changed. The court further found that the value of the dependent exemptions was almost equal to both parties, but were Nancy allowed to claim the children as dependents for income tax purposes, the children would be more greatly benefited. Based on these and other findings, the court concluded in pertinent part:

5. The issue of what party is entitled to. claim a child as a dependent for income tax purposes is part of child support and the child support: equation and in fact, the amount of child support and which party will claim the children as dependents for federal income tax purposes are absolutely interlocking considerations. Sarver v. Dathe, 439 N.W.2d 548 (S.D.1989).
6. This Court must defer to federal law as to which parent is entitled to claim the children as dependents for income tax purposes as that matter has been determined by federal law.
7. The portion of the Stipulation, Property Settlement and Child Custody Agreement requiring the custodial parent to sign a written statement disclaiming her right to claim the children as dependents for income tax purposes for a specified year and allowing the noncustodial parent to attach that statement to his tax return for that particular year is removed and stricken from the Decree of Divorce.
8. Commencing with calendar year 1998, which party shall be entitled to claim the children of the parties hereto as dependents for income tax purposes shall be determined in accordance with applicable federal law and regulations.

[¶ 8.] Scott now appeals, raising essentially one issue: Did the trial court, abuse its discretion by modifying the provision in the divorce decree which allocated the federal income tax dependent exemptions? Nancy seeks attorney fees on appeal.

STANDARD OF REVIEW

[¶ 9.] We will not tamper with modification decisions unless the circuit court has acted in a manner which amounts to an abuse of its discretion; “a discretion exercised to an end or purpose not justified by, and clearly against, reason.and evidence.” Deference must also be accorded a circuit court’s findings due to its opportunity to view the witnesses and judge the credibility of their testimony.

State, ex rel. Dryden v. Dryden, 409 N.W.2d 648, 651-52 (S.D.1987) (citations omitted).

DECISION

[¶ 10.] 1. The trial court did not abuse its discretion in modifying a provision in the divorce decree which allocated the federal income tax de-

. pendent exemptions,

a. Modification of the dependent exemption allocation

[¶ 11.] Scott contends that the dependent exemption provision in the divorce decree cannot be stricken or otherwise modified by the court, because that issue is controlled by federal law. Citing Jameson v. Jameson, 306 N.W.2d 240 (S.D.1981) (Jameson II), he further argues that even though a court in this state does not have authority to allocate dependency exemptions, it has a duty to enforce those obligations the parties undertook willingly. Thus, Scott asserts that even though the court could. not allocate .the exemptions initially, it can enforce the exemption provision in the original decree. He argues that since Nancy agreed in the Stipulation that he could claim the children as dependents in any year he paid more than $4,200 in child support (which he has done every year since the divorce), the provision must be upheld and cannot now be stricken from the decree. We disagree.

[¶ 12.] “In an action for divorce, the court may, before or after judgment, give such direction for the custody, care, and education of the children of the marriage as may seem necessary or proper, and may at any time vacate or modify the same.” SDCL 25-4-45. “Circuit courts have continuing jurisdiction to modify child support obligations and are statutorily infused with broad powers to implement modifications ‘from time to time,’ SDCL 25-4-41, and ‘as may seem necessary or proper.’ SDCL 25-4-45.” Dryden, 409 N.W.2d at 651 (citations omitted). A child support agreement may be modified even though it was originally based on a stipulation between the parties. Jameson II, 306 N.W.2d at 242; State ex rel. Larsgaard v. Larsgaard, 298 N.W.2d 381, 383 (S.D. 1980). “The parties’ agreement cannot deprive the courts of their power to modify support obligations.” McGee v. McGee, 415 N.W.2d 812, 813 (S.D.1987). In addition, dependent exemptions and child support are “absolutely interlocking considerations,” Sarver v. Dathe, 439 N.W.2d 548, 551 (S.D.1989), and “the tax exemption is part of the child support issue.” Id. at 554 (Sabers, J., concurring specially).

[¶ 13.] On the other hand, federal law mandates that absent three exceptions, the dependent exemption goes to the custodial parent. IRC § 152(e). Accordingly, trial courts have no authority to award dependent exemptions for federal income tax purposes. Alexander v. Hamilton, 525 N.W.2d 41, 45 (S.D.1994); Voelker v. Voelker, 520 N.W.2d 903, 909 (S.D.1994); Earley v. Earley, 484 N.W.2d 125, 128 (S.D.1992), cert. denied 506 U.S. 895, 113 S.Ct. 272, 121 L.Ed.2d 200 (1992); Sarver, 439 N.W.2d at 551; Brandriet v. Larsen, 442 N.W.2d 455, 460 (S.D.1989); and Dryden, 409 N.W.2d at 652 n.2.

[¶ 14.] Further, we have held that although a court cannot impose an obligation such as college education expenses upon the parties to a divorce, such an obligation is valid and enforceable if stipulated between the parties. Jameson II, 306 N.W.2d at 244. Even though a party may subsequently find harsh the terms of an agreement to which he earlier stipulated, such a revelation does not constitute changed circumstances so as to warrant a modification. Jameson v. Jameson, 90 S.D. 179, 184, 239 N.W.2d 5, 7, (S.D.1976) (Jameson 7).

[¶ 15.] Both Jameson II and IRC § 152(e) place similar restrictions upon our courts: Courts cannot impose certain obligations upon the parties as part of a divorce (such as college education expenses or the allocation of dependent exemptions), but the parties can impose such obligations on themselves.

[¶ 16.] Are income tax dependent exemptions a matter of federal law outside state court jurisdiction, or are they merely one component of an overall divorce decree that can be reviewed and modified by our courts at any time? Although Jameson II and IRC § 152(e) limit the initiative of the judiciary, neither was intended to bind the hands of judges. They should not be interpreted in such a manner. Instead, a court’s broad powers to implement modifications must be reconciled with the apparent limitations of Jameson II and IRC § 152(e) as follows: A court can not impose certain arrangements on the parties as a condition of granting a divorce. However, once the parties have stipulated to a provision and incorporated it into their divorce agreement, the court has authority to approve or reject the agreement. If it approves, it also has the authority to later modify a provision as part of the overall modification of the decree. This holding finds support in Connolly v. Connolly, 270 N.W.2d 44, 47 (S.D.1978), where, regarding the modifiability of alimony orders, we stated:

We conclude that when read together [our alimony statutes] contemplate that a husband’s duty of support may be the subject of a valid agreement entered into between the parties' to a marriage subsequent to the marriage and in contemplation of separation or divorce, but that in the event of a divorce the trial court has the ultimate authority to approve or reject the agreement and, if it approves the agreement, to later'modify the provisions for support.

Accord Shoop v. Shoop, 58 S.D. 593, 600, 237 N.W. 904, 907 (S.D.1931) (surmising that court would be deprived of statutorily prescribed jurisdiction in holding that because the court incorporated provision from parties’ stipulated agreement into divorce decree, the decree is not subject to modification).

[¶ 17.] Our position in no way infringes upon the federal mandate in IRC § 152(e) and is harmonious with other decisions concerning dependent exemptions. A review of our pertinent cases reveals that where there is no exemption provision in the divorce agreement, we have not allowed the trial court to proactively allocate the dependent exemption. See Sarver, 439 N.W.2d at 551; Brandriet, 442 N.W.2d at 460; Voelker, 520 N.W.2d at 909. However, in the three cases where there has been an initial stipulated allocation of the exemption between the parties, Dryden, Earley, and Struck v. Struck, 417 N.W.2d 382 (S.D.1987), we have both allowed and disallowed modification. In Dryden, we allowed modification in part because the father had not timely made support payments. 409 N.W.2d at 652. In Earley, the trial court first modified the stipulated exemption provision without objection, but subsequently refused to do so a second time. 484 N.W.2d at 126. Although the first modification was not appealed, we affirmed the court’s subsequent refusal to modify, citing IRC § 152(e). Id. at 129. In both Earley and in Struck, we determined that the agreements qualified as “pre-1985 instrument” exceptions under IRC § 152(e), therefore the stipulated exemption provisions were valid. Earley, 484 N.W.2d at 129; Struck, 417 N.W.2d at 383. Neither case involved the “written waiver” exception Scott is presenting here.

[¶ 18.] Applying our analysis to the instant ease results in the conclusion that the trial court did not err in modifying the dependent exemption provision of Scott and Nancy’s divorce decree. The court did not have authority to proactively allocate the dependent exemptions, but Scott and Nancy did. Once allocated, the dependent exemption provision was subject to modification by the court as a component of the divorce decree.

[¶ 19.] A review of the trial court’s reasons for striking the dependent exemption provision does not show an abuse of discretion. Therefore, the modification of the provision in the divorce decree pertaining to allocation of dependent exemptions is affirmed.

b. Retroactive modification of the dependent exemption provision

[¶ 20.] Scott alternatively argues that if the trial court is allowed to modify the stipulated allocation of dependent exemptions, then it erred by retroactively applying its decision. He makes this contention because the trial court initially made its decision effective for the 1999 tax year, but subsequently amended the decision to make it effective for the 1998 tax year. Scott claims this retroactive application violates SDCL 25-7-7.3 and is controlled by our previous decisions on the subject.

[¶ 21.] SDCL 25-7-7.3 states:
Any past due support payments are not subject to modification by a court or administrative entity of this state, except those accruing in any period in which there is pending a petition for modification of the support obligation, but only from the date that notice of hearing of the petition has been given to the obligee, the obligor, and any other parties having an interest in such matter.

[¶ 22.] We interpreted this statute ' to mean that “[o]nly those payments which accrue while a petition for modification is pending may now be modified, but only from the date that notice of hearing on the petition has been given to the interested parties.” Kier v. Kier, 454 N.W.2d 544, 546 (S.D.1990); see also, Earley, 484 N.W.2d at 129; Vellinga v. Vellinga, 442 N.W.2d 472, 474 (S.D.1989).

[¶ 23.] Here, notice of the motion which eventually resulted in the modification of the dependent exemption was served on Scott on February 5, 1999. Therefore, the court erred by making The modification effective for tax year 1998. We reverse this issue, and direct the court to enter an amended order making its modification effective for the 1999 tax year.

c. Trial court’s consideration of changed circumstances

[¶ 24.] Scott also contends the trial court erred in finding that changed circumstances warranted modification of the divorce decree. He claims that the circumstances presented by Nancy were considered by the referee at the child support hearing, and that there were no additional changes between the filing of referee’s decision in February 1999 and the filing of the motion to modify the divorce decree two days later.

[¶ 25.] Scott’s position overlooks the fact that the referee understandably presumed he had no jurisdiction to rule on the dependent exemption issue. Further, the language of his report indicates he assumed that Nancy was already claiming' the exemptions. Under these circumstances, it would have been either futile or unwarranted for Nancy to object to the referee’s findings. In light of these facts, it cannot be said the trial court erred in finding that a change of circumstances warranted the modification of the original dependent exemption allocation in the divorce decree.

d. Trial court’s consideration of other factors

[¶ 26.] Scott’s final claim is that the trial court erred in modifying the exemption provision without considering the amount of the child support obligation or any other factors determining such obligation. He relies on Sarver, 439 N.W.2d at 551, wherein we stated that consideration of dependent exemptions was a factor in considering the ability to pay child support. This argument is also flawed.

[¶ 27.] In essence, what happened in this case is that the cart was put before the horse. The referee’s decision which modified the amount of Scott’s child support obligation assumed that Nancy was entitled to and currently claiming the exemptions. Operating under this assumption, the referee took all the pertinent factors into consideration at the time he revised the child support obligation. Therefore, when the trial court modified the dependent exemption provision in the decree, it simply brought the decree into alignment with the referee’s assumption concerning the exemptions. Since all the other factors related to determining a child support award had just been considered by the referee, it was unnecessary for the court to re-consider them. Thus, the trial court did not err by failing to consider all pertinent factors in conjunction with modifying the divorce decree.

[¶ 28.] 2. Attorney fees on appeal.

[¶29.] Nancy filed a motion for attorney, fees on appeal supported by a verified, itemized statement of legal services rendered. Malcolm v. Malcolm, 365 N.W.2d 863 (S.D.1985).

[¶ 30.] SDCL 15-17-38 provides that attorney fees may be granted in cases of domestic relations and support. Proceedings which are sufficiently intertwined with the domestic relation case do not prohibit such an award being made. See Estate of Thomas v. Shef field, 511 N.W.2d 841, 844 (S.D.1994); Finck v. Finck, 354 N.W.2d 198, 202 (S.D.1984). Attorney fees on appeal may be granted, “regardless of the success of the party requesting them, unless that party has proceeded in bad faith, or has brought a frivolous or unjustified action.” Peterson v. Peterson, 434 N.W.2d 732, 738 (S.D.1989).
In determining whether fees for the appeal are proper, we must “consider the property owned by each party, the relative incomes, the liquidity of the assets and whether either party unreasonably increased the time spent on the case.” Hautala v. Hautala, 417 N.W.2d 879, 883 (S.D.1988); Peterson, 434 N.W.2d at 738.

Alexander, 525 N.W.2d at 48.

[¶ 31.] Applying these factors to this case, we hereby grant Nancy’s motion for attorney fees on appeal.

[¶ 32.] Affirmed in part and reversed in part.

[¶ 33.] KONENKAMP and GILBERTSON, Justices, concur.

[¶ 34.] SABERS and AMUNDSON, Justices, concur in part and dissent in part.

SABERS, Justice

(dissenting in part and concurring in part).

[¶ 35.] The trial court erred in modifying a bargained-for, court-approved Stipulation which allocated federal income tax dependent exemptions between the parties. Therefore, the trial court erred in modifying the Stipulation (Issue 1(a)) and in retroactively applying its decision to modify the Stipulation in the 1998 tax year (Issue 1(b)). Therefore, I dissent to Issue 1(a), but concur in Issue 1(b).

[¶ 36.] The trial court erred in modifying the parties’ agreement to allocate the federal income tax dependent exemptions, and abused its discretion in doing so.

[¶ 37.] Scott and Nancy Jacobson were divorced in May of 1996. During the divorce proceedings, the parties agreed and signed a “Stipulation, Property Settlement and Child Custody Agreement” providing, in part:

In any year in which the child support paid by [Scott] to [Nancy] equals or exceeds Four Thousand Two Hundred Dollars ($4,200), the exemption for the Internal Revenue Service shall pass to [Scott] and [Nancy] shall execute any documents or papers necessary to accomplish that end....

This Stipulation was incorporated into the divorce decree.

[¶ 38.] It is clear that trial courts do not have the authority to allocate the tax exemptions because federal tax laws control the issue. Alexander v. Hamilton, 525 N.W.2d 41, 45 (S.D.1994); Voelker v. Voelker, 520 N.W.2d 903, 909 (S.D.1994). However, the parties can enter into a private agreement to allocate the exemptions and we must uphold that agreement if it complies with the federal requirements. See Jameson v. Jameson, 306 N.W.2d 240, 243-44 (S.D.1981) (.Jameson II) (stating the trial court could not obligate the child support obligor to provide for the children’s college education, but the Stipulation between the parties to do so was valid and enforceable); Weekley v. Weekley, 1999 SD 162, ¶ 18, 604 N.W.2d 19, 24 (holding that “the parties bound themselves to the trial court’s determination that California has jurisdiction over the child support issue.”).

[¶ 39.] The Internal Revenue Code § 151(c) allows taxpayers an annual exemption amount for each “dependent” as defined in section 152(a). Under section 152(a), the term “dependent” means specified individuals, such as a son or daughter, “over half of whose support, for the calendar year in which the taxable year of the taxpayer begins, was received from the taxpayer (or is treated under subsection (c) or (e) as received from the taxpayer)....”

[¶ 40.] Generally, the custodial parent is entitled to the dependency exemption deduction for the children. IRC § 152(e)(1). However, the statute also sets forth specific exceptions under-which the noncustodial parent is entitled to the exemptions. Scott argues that he falls within one of the exceptions and is entitled to the exemptions pursuant to section 152(e)(2): “Exception where custodial parent releases claim to exemption for the year:”

A child of [divorced] parents ... shall be treated as having received over half of his support during a calendar year from the noncustodial parent if -
(A) the custodial parent signs a written declaration (in such manner and form as the Secretary may by regulations prescribe) that such custodial parent will not claim such child as a dependent for any taxable year beginning in such calendar year, and
(B) the noncustodial parent attaches such written declaration to the noncustodial parent’s return for the taxable year beginning during such calendar year.

[¶ 41.] Typically, the written declaration attached to the noncustodial parent’s income tax return is IRS “Form 8332.” However, other documents are acceptable as long as they “conform with the substance” of “Form 8332,” which provides:

(1) names of the children for which exemption claims were released;
(2) years for which the claims were released;
(3) signature of the custodial parent;
(4) Social Security number of the custodial parent;
(5) date of signature; and
(6) name and social security number of the parent claiming the exemption.

Neal v. Comm’r of Internal Revenue, T.C.Memo. 1999-97, 1999 WL 167689 (1999). The written declaration must be in strict compliance with these requirements. See White v. Comm’r of Internal Revenue, T.C. Memo. 1996-438, 1996 WL 540111 (1996)(holding that a letter written and signed by the custodial parent failed “to ‘conform with the substance’ of Form 8332.”). Within the written declaration, the custodial parent may waive her entitlement to use the -exemptions annually, for a specified number of years or permanently. 33 Am.Jur.2d Federal Taxation 1249 (1999).- Consequently, once the custodial parent signed a written declaration properly waiving her right to claim the exemptions, the noncustodial parent is entitled to claim them, as long as he complies with the Stipulation and attaches the written waiver to his income tax return.

[¶ 42.] The conference opinion states that its decision that the custodial parent be given the dependent exemptions “is consistent with the spirit of the federal law....” I respectfully disagree based on a review of the legislative history of IRC § 152(e). Prior to T984, Congress provided an additional exception which required the noncustodial parent, seeking the dependency exemption, to provide “$1,200 or more for support of each- child” and a determination that “the custodial parent did not' ‘clearly establish’ that he or she provided more than the noncustodial parent for such child’s support.” Cafarelli v. Comm’r of Internal Revenue, T.C. Memo. 1994-265, 1994 WL 247954 (1994). This requirement was reduced to “$600 or more for support of each child” by 1986 and was entirely eliminated in 1996 because it presented:

subjective and difficult problems of proof and substantiation. The Internal Revenue Service became involved' in many disputes between parents who both claim the dependency exemption based on providing support over the applicable thresholds.... The Committee [wished] to provide more certainty by allowing the custodial spouse the exemption unless that spouse waives his or her right to claim the exemption. Thus, dependency disputes between parents will be resolved without the involvement of the Internal Revenue Service.

Id. (emphasis added). Clearly, the purpose behind the specified exceptions to the general rule that the custodial parent receives the dependent exemptions was to free the IRS from becoming involved in factual disputes over which parent provides over one-half of the child’s support. The spirit behind IRC § 152(e)(2) is one of agility by allowing the parties to determine, between themselves, how to allocate the exemptions without encumbering IRS resources.

[¶ 43.] I agree with the conference opinion’s statement that the issues of dependent exemptions and child support are “absolutely interlocking considerations.” Sarver v. Dathe, 439 N.W.2d 548, 551 (S.D.1989). However, the conference opinion’s attempt to use this determination to support its conclusion that a trial court can modify an agreement allocating the dependency exemptions is strained. As I explained in my special concurrence therein:

[T]he tax exemption is part of the child support issue.... The trial court has the power to reduce the amount required to be paid under the [child support] guidelines by a sum equal to the value of the exemption as child support in the event of a refusal by the custodial parent to agree or execute the necessary waiver. SDCL 25-7-7. This power stems from the direct effect the exemption has on the ‘[f]inancial condition of the parents’ under subsection (1) relating to deviations from the guidelines and ‘[fincóme taxes withheld’ under subsection (1) relating to deductions from monthly gross income. SDCL 25-7-7.

Id. at 554 (Sabers, J., specially concurring) (internal citations omitted). Obviously, the child support may be modified, but the parties’ agreement to allocate the dependency exemptions can not be modified.

[¶ 44.] The conference opinion also states that once a trial court approves a Stipulation, “it also has the authority to later modify a provision as part of the overall modification of the decree.” While this is true when dealing with support obligations, it is not true when dealing with issues that the trial court had no authority to initially impose. See Jameson II, 306 N.W.2d at 243-44. Furthermore, this decision does not improperly or illegally “bind the hands of judges” as claimed by the conference opinion. Judges have no authority to order a party to pay for a child’s college education or to allocate federal tax exemptions. Only the parties can agree to impose those obligations on themselves. Judges have no authority over the agreement between the parties. We have provided ample warning that these types of agreements are binding and should be entered into cautiously because “it is not the role of courts in modification proceedings to relieve a party of his or her bad bargain.” Weekley, 1999 SD 162, ¶ 19, 604 N.W.2d at 24 (quoting Jameson v. Jameson, 1999 SD 129, ¶ 20, 600 N.W.2d 577 (Jameson IV)) (citing Olson v. Olson, 1996 SD 90, ¶ 11, 552 N.W.2d 396, 399; Whalen v. Whalen, 490 N.W.2d 276, 283 (S.D.1992); Jameson v. Jameson, 90 S.D. 179, 239 N.W.2d 5, 7 (S.D.1976) (Jameson I)).

[¶45.] Here, the parties agreed that Scott would pay Nancy a monthly child support amount of $868, or $10,416 per year. It appears from the record that Scott is current on his child support obligations. The parties also agreed that “[fin any year in which the child support paid by [Scott] to [Nancy] equals or exceeds ... $4,200, the exemption for the Internal Revenue Service shall pass to [Scott].... ” Scott fulfilled the stated condition to the passing of the exemptions and the exemption will continue to pass to Scott as long as he (1) continues to pay $4,200 in annual child support payments and (2) attachés, to his income tax return, a properly drafted declaration signed by Nancy in which she waives her right to the' dependency exemptions. See Agee v. Agee, 1996 SD 85, ¶¶ 25-26, 551 N.W.2d 804, 807 (disallowing the exemptions to be taken by the noncustodial parent because the accompanying conditions were not satisfied). For every year that Scott satisfies the $4,200 condition, the parties agreed that Nancy “shall execute any documents or paper necessary” for Scott’s claim of the exemptions. Therefore, Nancy’s failure to provide the proper written declaration to Scott could result in contempt. See Jameson II, 306 N.W.2d at 243-44.

[¶ 46.] The loss of these bargained-for tax exemptions will résult in a loss to Scott exceeding $700 per year. The trial court and the supreme court fail to compensate Scott for this loss. Therefore, their decisions are not only in error, but constitute abuses of discretion.

[¶ 47.] Thus, I vote to reverse the trial court’s modification of the ' Stipulation which allocated the federal income tax dependent exemptions.

[¶ 48.] I would not award any attorney’s fees to Nancy as she should not be the successful party when there is a clear violation of the law, a violation of the Stipulation and agreement and an abuse of discretion.

[¶ 49.] AMUNDSON, Justice, joins this special writing.

      . She taught part-time for the 1996-97 and 1997-98 school years, before regaining a full-time teaching position for the 1998-1999 year.

      . Although Nancy presented at least three circumstances that had changed since the entry of the divorce decree, under SDCL 25-7-6.13, she is not required to present any change of circumstances in order to modify the original support order, since it was entered prior to July 1, 1997.

      . Other states also consider dependent exemptions part of the child support issue. Under statutory authority recognizing the intimate link between child support orders and dependent exemptions, Colorado courts in In re Marriage of Ford, 851 P.2d 295, 298 (Colo.Ct.App.1993), and In re Marriage of Larsen, 805 P.2d 1195, 1197 (Colo.Ct.App.1991), have modified such exemptions as part of a child support order. See also, Hutchinson v. Hutchinson, 85 Ohio App.3d 173, 619 N.E.2d 466, 468 (Ohio Ct.App.1993) (holding that whenever a court modifies, reviews or otherwise reconsiders a child support order, it may reconsider the dependent exemptions); and McKenzie v. Jahnke, 432 N.W.2d 556, 558 (N.D.1988)(Levine, J. concurring specially) (stating that because dependent exemptions are so clearly aligned with child support, as opposed to property division, they may be modified by trial court).

      . IRC § 152(e) provides in pertinent part:
      Support test in case of child of divorced parents, etc.—
      (1) Custodial parent gets exemption. — Except as otherwise provided in this subsection, if—
      (A) a child ... receives over half of his support during the calendar year from his parents,

      (B) such child is in the custody of one or both of his parents for more than one-half of the calendar year,
      such child shall be treated ... as receiving over half of his support during the calendar year from the parent having custody for a greater portion of the calendar year (hereinafter in this subsection referred to as the "custodial parent”).
      (2) Exception where custodial parent releases claim to exemption for the year.— A child of parents described in paragraph (1) shall be treated as having received over half of his support during a calendar year from the noncustodial parent if—
      (A) the custodial parent signs a written declaration (in such manner and form as the Secretary may by regulations prescribe) that such custodial parent will not claim such child as a dependent for any taxable year beginning in such calendar year, and
      (B) the noncustodial parent attaches such written declaration to the noncustodial parent’s return for the taxable year beginning during such calendar year.
      For purposes of this subsection, the term "noncustodial parent” means the parent who is not the custodial parent.
      (3) Exception for multiple-support agreement. — This subsection shall not apply in any case where over half of the support of the child is treated as having been received from a taxpayer under the provisions of subsection (c).
      (4) Exception for certain pre-1985 instruments.—
      (A) In general. — A child of parents described in paragraph (1) shall be treated as having received over half his support during a calendar year from the noncustodial parent if—
      (i) a qualified pre-1985 instrument between the parents applicable to the taxable year beginning in such calendar year provides that the noncustodial parent shall be entitled to any deduction allowable under section 151 for such child, and
      (ii) the noncustodial parent provides at least $600 for the support of such child during such calendar year.
      (B) Qualified pre-1985 instrument. — For purposes of this paragraph, the term "qualified pre-1985 instrument” means any decree of divorce or separate maintenance or written agreement—
      (i) which is executed before January 1, 1985,
      (ii) which on such date contains the provision described in subparagraph (A)(i), and

        (iii) which is not modified on or after such date in a modification which expressly provides that this paragraph shall not apply to such decree or agreement.

      . Jameson I, 90 S.D. at 184, 239 N.W.2d at 7, is frequently cited for the proposition that it is not the function of courts to relieve parties of their "bad bargain.” Weekley v. Weeldey, 1999 SD 162, ¶ 19, 604 N.W.2d 19, 24; Jameson v. Jameson, 1999 SD 129, ¶ 20, 600 N.W.2d 577, 582 (.Jameson IV), Olson v. Olson, 1996 SD 90, ¶ 11, 552 N.W.2d 396, 399; Whalen v. Whalen, 490 N.W.2d 276, 283 (S.D. 1992). In fact, we upheld the trial court's modification of Mr. Jameson’s “bad bargain” on one occasion. See Jameson II, 306 N.W.2d at 242-43 (“We Cannot say that the trial court abused its discretion in the adjustments entered or in refusing further modifications.”). Thus, when a party 'sufficiently satisfies the trial court that changed circumstances warrant modification of the decree’s original terms, we will uphold such a modification absent an abuse of discretion, irrespective of our opinion about the wisdom of the agreement’s original terms.

      . In fact, our decision in the present case is consistent with the spirit of the federal law, which by default gives the exemptions to the custodial parent, presumably because that parent provides more than half of the child’s support. See IRC § 152(e)(1); Brandriet, 442 N.W.2d at 457.

      . The two remaining cases are inapposite to our analysis. In Alexander we found § 152(e) to be inapplicable altogether. 525 N.W.2d at 45. In Agee v. Agee, 1996 SD 85, ¶45, 551 N.W.2d 804, 809, we found that the noncustodial parent had become the custodial parent since the entry of the divorce decree, therefore he was entitled to the exemption under the general rule.

      . When the custodial parent waives her entitlement to use the dependent exemptions, she “does not relinquish the child care credit, the earned income credit, or head of household status in the case of married persons living apart....” 33 Am.Jur.2d Federal Taxation 1249 (1999).

      . SDCL 25-7-7 was repealed in 1989 but replaced with similar language in SDCL 25-7-6.10.


author: GILBERTSON, Justice SABERS, Justice

text:
    2000 SD 70
    STATE of South Dakota, Plaintiff and Appellee, v. Leon L. CHARGER, Defendant and Appellant,
    No. 21149.
    Supreme Court of South Dakota.
    Considered on Briefs April 24, 2000.
    Decided May 31, 2000.

      Mark Barnett, Attorney General, Ann C. Meyer, Assistant Attorney General, Pierre, South Dakota, for plaintiff and ap-pellee.
    Timothy J. Rensch, Rapid City, for defendant and appellant.
   GILBERTSON, Justice

[¶ 1.] Defendant Leon Charger (Charger) appeals his conviction for witness tampering. We affirm.

FACTS AND PROCEDURE

[¶2.] In July of 1998 Charger was charged with sexual contact with Jacqueline Swimmer’s (Swimmer) two daughters. Swimmer testified as a witness against Charger in the first criminal trial in February 1999, which resulted in a hung jury. Subsequently, Swimmer was subpoenaed as a witness to testify against Charger a second time during the May 25 and 26, 1999 retrial proceedings. Charger was acquitted by the jury in this second trial. It was during the interim between these two trials that Charger was charged with tampering with a witness, in violation of SDCL 22-11-19(2).

[¶ 3.] On May 7, 1999, Charger met with his cellmate, Leon Norman (Norman), and instructed him to deliver or relay a note to Swimmer. Norman was scheduled to be released later that day. Charger offered' Norman five dollars to deliver the message. Charger completed a cash-out request from his jail account, indicating as his reason that a “cousin” of his needed “gas to get home” from jail. Norman is not Charger’s cousin. Charger wrote what he believed to be Swimmer’s telephone number and a message on a piece of paper for Norman to read to Swimmer.

[¶4.] Norman went to the house of an acquaintance, Larry Welder, where he made a telephone call, utilizing the phone number Charger had given him. He reached a woman he thought was Swimmer. Swimmer did not have a telephone, so she frequently used the phone of her sister-in-law, good friend and neighbor, Jacalyn Hagans (Hagans), to receive messages from callers. Thus, the phone number Charger had given Norman was actually Hagans’. When Hagans answered the phone, Norman asked to speak “to Jackie,” and when Hagans answered “this is Jackie,” Norman stated “I have a message from Leon.”

[¶ 5.] Hagans testified that during the phone call, Norman stated:

I have a message from Leon and I said okay. And he said that the State has a file from Behavior Management. And that if you testify in court you’ll be arrested. He said that the prosecutor is not a friend of yours, he is a friend of Leon’s. He said if you even try to contact the prosecutor, you’ll be arrested. If you show up in court, all I have to do is say your name and- you’ll be arrested. He said that he’s protected under the Shield Act, and that meant that any crime that’s not pled in one year you can’t be prosecuted for it even if it’s a sexual abuse. Then I asked him if this was a threat. And he said yeah that’s what it sounds like, but I’m having a hard time reading his writing.

Hagans asked the caller to identify himself, and Norman “said he was a friend of Leon’s,” and that “we were in jail together, I just got out.” Hagans testified she immediately concluded that the caller was referring to Leon Charger, and his message was mistakenly being relayed to her, rather than to Swimmer.

[¶ 6.] Hagans testified that because she “thought this was a threat,” she “dialed Star 69” on her telephone, so she could identify the origin of the call for law enforcement. She promptly called the police. Officer Jegeris returned her call “right away” and reviewed the situation with her. At approximately 6:30 p.m., Hagans encountered Swimmer in the apartment complex parking lot. Hagans told Swimmer about the phone call she had received, and that she was “scared for [Swimmer],” but that she had contacted the police.

[¶ 7.] Norman was brought back to the Pennington County Jail on May 8, 1999. Charger made a written request to cancel his previous jail “cash-out” payment to Norman the same day Norman was returned to jail.

[¶ 8.] Officer Jegeris confirmed with Norman that Norman had indeed used Larry Welder’s telephone to place the call to Swimmer at Hagan’s residence, and that Charger had offered to pay him five to ten dollars to deliver the telephone message.

■ [¶ 9.] On June 7, 1999, Charger was accused by information with one count of Tampering With a Witness, in violation of SDCL 22-11-19(2), a Class 4 felony. He was arraigned before the Pennington County Circuit Court, and pled not guilty.

[¶ 10.] Charger was tried before a jury on July 7, 1999. At trial Norman could not recall the exact contents of Charger’s handwritten note. However, he did remember Charger’s message included the premise “[t]he attorney is not your friend if you don’t cooperate with him or her,” and that “[Swimmer would] go to jail if she didn’t cooperate with the attorney.” Norman also indicated “I just read what I could read that was legible writing, and then I just couldn’t read his chicken scratching writing.” Norman testified he had thrown the note away “in a garbage can up at Arnaco.” Jegeris was unable to find the note.

[¶ 11.] Charger testified on his own behalf. Charger testified that he had been involved with Swimmer “on and off for five years.” He also alleged the note had been meant for both Swimmer and Robert Swimmer, her brother, and that Robert was “the root of the problem” from which the sexual contact charges had arisen. Charger claimed that Robert had sexually molested Swimmer, which caused her to file false criminal charges against Charger for sexual contact with her two daughters.

[¶ 12.] Charger’s account of the contents of the note was different than Hagans’. He claimed the note stated:

I want to warn you the prosecutor isn’t anybody’s friend. If I get on the stand and he asks me about your sex abuse, who sexually abused you, Jackie, I’ll tell him it was your brother Robert. He’s one root to this whole problem. You filed false allegations against me. I just wanted to tell you that though.

[¶ 13.] During Hagans’ direct testimony at trial, Charger objected to her perceptions and descriptions of Norman’s May 7, 1999 telephone call. Charger claimed Ha-gans’ testimony violated the hearsay rule. The circuit court denied his objection, concluding Hagans’ testimony concerning the contents of Norman’s threatening phone call on behalf of Charger constituted verbal acts, not hearsay.

[¶ 14.] Charger also proposed four jury instructions at the close of the evidence. Specifically, Charger claimed that since Norman had phoned the wrong “Jackie,” his proposed jury instructions 3 and 4 were required to explain that “attempt” is a lesser included offense of the completed crime of witness tampering. Charger also argued proposed jury instructions 1 and 2 were necessary to advise the jury about his “free speech rights.” The circuit court rejected all four of Charger’s proposed jury instructions.

[¶ 15.] Charger was convicted of one count of Tampering With a Witness (SDCL 22-11-19(2)). Subsequently, Charger filed a Motion for New Trial. The circuit court conducted a hearing on this post-trial motion, at which Charger argued his proposed “attempt” instructions should have been given at trial. The circuit court denied this motion. On August 9, 1999, the circuit court sentenced Charger to serve four years in the state penitentiary, giving him credit for 75 days already served in the county jail.

[¶ 16.] Charger now appeals his conviction, raising the following issues for our consideration:

1. Whether Hagans’ testimony concerning Norman’s telephone call on behalf of Charger constituted inadmissible hearsay.
2. Whether the circuit court erred when it refused to instruct the jury on attempted witness tampering.

STANDARD OF REVIEW

[¶ 17.] The circuit court has broad discretion in making evidentiary rulings. State v. Knecht, 1997 SD 53, ¶ 14, 563 N.W.2d 413, 419. We recently stated our standard of review for a circuit court’s evidentiary rulings in State v. Smith:

Evidentiary rulings made by the trial court are presumed correct and are reviewed under an abuse of discretion standard. State v. Oster, 495 N.W.2d 305, 309 (S.D.1993). The test is not whether we would have made the same ruling, but whether we believe a judicial mind, in view of the law and the circumstances, could have reasonably reached the same conclusion. State v. Rufener, 392 N.W.2d 424, 426 (S.D.1986).
Veeder v. Kennedy, 1999 SD 23, ¶41, 589 N.W.2d 610, 619 (citing State v. Goodroad, 1997 SD 46, ¶ 9, 563 N.W.2d 126, 129).

1999 SD 83, ¶ 13, 599 N.W.2d 344, 348.

[¶ 18.] Our standard of review of the circuit court’s refusal to give a requested instruction is well settled. This Court stated in State v. Tapio, 459 N.W.2d 406, 408-09, (S.D.1990):

Where a request has been made to charge the jury on a lesser-included offense, the duty of the trial judge is determined by the evidence. If evidence has been presented which would support a conviction of a lesser charge, refusal to give the requested instruction would be reversible error.... There must be sufficient evidence, however, when read in the light most favorable to the defendant, which would justify a jury in concluding that the greater offense was not committed and that a lesser offense was, in fact,, committed, (emphasis in original.)
[State v. Scholten, 445 N.W.2d 30, 32 (S.D.1989]) (citing State v. Rich, 417 N.W.2d 868 (S.D.1988)). See also [State v. Gregg, 405 N.W.2d 49 (S.D.1987)]; State v. Woods, 374 N.W.2d 92 (S.D.1985). “A trial court is not required to instruct on matters that find .no support in the evidence.... ” State v. Wilson, 297 N.W.2d 477, 482 (S.D.1980); State v. Kafha, 264 N.W.2d 702, 703 (S.D.1978).

459 N.W.2d 406, 408-09 (S.D.1990).

ANALYSIS AND DECISION

[¶ 19.] 1. Whether Hagans’ testimony concerning Norman’s telephone call on behalf of Charger constituted inadmissible hearsay.

[¶20.] Charger argues the circuit court abused its discretion in allowing Ha-gans to testify concerning the statements made to her by Norman on behalf of Charger during the telephone call. Charger contends that these statements were inadmissible hearsay and thus, should have been excluded. The State argues the circuit court was correct in concluding Hagans’ testimony concerning the^ substance of Charger’s telephone message constituted ■ “verbal acts,” and thus was nonhearsay. We agree.

[¶ 21.] “Hearsay” is defined as “a statement, other than one made by the declar-ant while testifying at the trial or hearing, offered to prove the truth of the matter asserted.” SDCL 19-16-1(3). Norman’s statements on behalf of Charger to Ha-gans were not offered for their truth. The State’s intention was not to convince the court and >jury that “the prosecutor [was] not a friend of [Swimmer’s]” or that Charger would actually have her arrested if she contacted the prosecutor. Its purpose was to show that Charger had induced Norman to deliver the message during the phone call, because it was these threatening statements which, by attempting to discourage Swimmer from testifying, violated SDCL 22-11-16.

[¶ 22.] In State v. Carlsen, 638 P.2d 512 (Utah 1981), the court faced- a similar set of facts. In Carlsen, the defendant instructed a third party to threaten a witness that was to testify against him in an upcoming trial. Carlsen requested the third party to threaten the witness and “tell him that he better not show up for court the next day.” Carlsen was charged with tampering with a witness. Carlsen argued the third party’s testimony concerning the threatening statements was inadmissible hearsay. In affirming Carl-sen’s conviction, the court held that the purpose in offering the testimony was to show “merely that [the third party] had made the statements, because it was these threatening statements which, by attempting to discourage the witness from testifying, violated the [witness tampering] statute.” Id. at 514.

[¶ 23.] Similarly, in United States v. Jones, 663 F.2d 567 (5th Cir.1981), the defendant was indicted and convicted of threatening the lives of a judge and prosecutor. Jones contested the admission of testimony concerning the language containing the actual threats made by him, at trial, by arguing the testimony was hearsay. In affirming his conviction, the Fifth Circuit Court of Appeals concluded the statements at issue were “ ... nonhear-say; [the testimony] was offered because it contains threats made against officers of the federal courts, i.e., it contains the operative words of this criminal action. It was not ‘offered in evidence to prove the truth of the matter asserted[.]’” Id. at 571.

[¶ 24.] Likewise, in this case, the testimony was offered as evidence of the fact that the call was made to Hagans, but intended for Swimmer. Because Norman’s statements to Hagan were not offered to prove the truth of the matter asserted, Norman’s statements were not hearsay.

[¶ 25.] Instead, Hagans’ testimony was evidence of a verbal act. “Verbal acts are those ‘out-of-court statements [that] are operative legal facts which constitute the basis of a claim, charge or defense ... and are nonhearsay.’ ” Banks v. State, 92 Md.App. 422, 608 A.2d 1249, 1254 (1992); McCormick on Evidence § 249, at 100 (5th ed. 1999) (noting verbal acts are “[u]tterance[s which are] operative facts[s]” (citing Morgan, A Suggested Classification of Utterances Admissible as Res Gestae, 31 Yale LJ 229, 231 (1922)) and noting verbal acts are “utterances forming a part of the issue.” (citing 6 Wigmore, Evidence § 1770 (Chadbourn rev. 1976))). “Since the law accords the making of such statements a certain legal effect, the sincerity and reliability of the declarant is of no consequence; the simple fact that such statements are made is relevant.” Banks, 608 A.2d at 1254.

Two types of evidence are not hearsay simply because § 19-16-1(801) excludes them by definition. First, verbal acts that are not offered to prove the truth of the matter asserted, but rather to establish what was done or created, are an actual part of the transaction involved in the lawsuit, and are excluded from the definition of hearsay by § 19-16-1(3) (801(c)). Obviously, a contract, [for example,] written or oral, would not be excluded as an out-of-court statement in a lawsuit based on it. The contract was an actual part of the transaction, and had independent legal significance or consequence.

John W. Larson, South Dakota Evidence § 801.1, at 535 (1991).

[¶ 26.] The “verbal acts” rule is a firmly established principle in the law of evidence:

Not all out-of-court statements are hearsay. The hearsay rule only prohibits admission of evidence of out-of-court statements offered to prove the truth of the out-of-court declaration. Defendant overlooks the well-established ‘verbal acts’ rule. Utterances made contemporaneously with or immediately preparatory to an act which is material to the litigation that tends to explain, illustrate or show the object or motive of an equivocal act and which are offered irrespective of the truth of any assertion they contain, are not hearsay and are admissible.

State v. Kelley, 953 S.W.2d 73, 85 (Mo.App.1997) (citing State v. Copeland, 928 S.W.2d 828, 848 (Mo.1996), cert. denied, 519 U.S. 1126, 117 S.Ct. 981, 136 L.Ed.2d 864 (1997)); see also Best v. State, 71 Md.App. 422, 526 A.2d 75, 80 (1987) (citing United States v. Hansbrough, 450 F.2d 328, 329 (5th Cir.1971)) (concluding police officer’s testimony about the contents of a telephone conversation with a third party calling the defendant’s residence was admissible when it was merely offered as evidence the call was made for the purpose of arranging an illegal drug transaction).

[¶ 27.] The Best court, in affirming the defendant’s conviction, recognized by analogy:

Testimony concerning telephone calls made to or received at a particular location has been held admissible frequently in prosecutions for bookmaking and other gambling activities, where such testimony is offered not to establish the truth of what was said over the telephone, but as evidence that the calls were made to the location for the purpose of placing bets.

Id. (citing Courtney v. State, 187 Md. 1, 48 A.2d 430 (1946); [H.D. Warren,] Annotation, [Admissibility of Evidence of Fact of Making or Receiving Telephone Caüs,] 13 A.L.R.2d 1409 (1950)). Similarly, here, the testimony was not offered to establish the truth of what Norman said over the telephone, but rather, as evidence Charger actually induced Norman to call Swimmer for the purpose of threatening her not to testify in his upcoming trial. Thus, the telephone conversation testimony was offered as a “verbal act,” indicating that the call was made. See Cephas v. State, 719 So.2d 7, 8 (Fla.Dist.Ct.App.1998) (concluding witnesses’ telephone conversation testimony was a “verbal act,” indicating that the call was made and the contents of the call); State v. Kelly, 207 N.J.Super. 114, 504 A.2d 37, 40 (N.J.Super.Ct.App.Div.1986) (ruling witness’s testimony that she had received numerous telephone calls for the victim from the defendant was admissible as verbal conduct to show only the fact the calls were made).

[¶ 28.] The circuit court’s decision allowing Hagans’ testimony as evidence of verbal acts is affirmed.

[¶ 29.] 2. Whether the circuit court erred when it refused to instruct the jury on attempted witness tampering.

[¶ 30.] Charger argues the circuit court improperly rejected his proposed jury instructions 3 and 4, regarding attempted witness tampering. He states a reasonable jury could have viewed his actions as an attempt to tamper with a witness because: (1) the wrong person was threatened; (2) Hagans was not a witness in an official proceeding; and (3) the contents of Charger’s note did not constitute a threat “even though they may have been intended as one.” The circuit court ruled no attempt instructions were warranted, because pursuant to State v. Peck, 459 N.W.2d 441 (S.D.1990), a criminal defendant need not actually succeed in threatening a potential witness to support a conviction for witness tampering. We agree.

[¶ 31.] This Court has recently held that “|j]ury instructions are sufficient when, considered as a whole, they correctly state the applicable law and inform the jury.” State v. Jemison, 1999 SD 29, ¶ 2, 590 N.W.2d 897 (citing State v. Fast Horse, 490 N.W.2d 496, 499 (S.D.1992) (citing State v. Grey Owl, 295 N.W.2d 748, 751 (S.D.1980))). “It is not error for the trial court to refuse a requested instruction which amplifies the principle embodied in a given instruction.” Id. (citing State v. Johnston, 478 N.W.2d 281, 283 (S.D.1991) (other citations omitted)).

[¶ 32.] Charger’s proposed jury instruction 3 stated:

Any person who attempts to commit any crime and in such attempt does any act toward the commission of such crime, but fails or is prevented or intercepted in the perpetration is guilty of a crime.

Proposed jury instruction 4 provided:

The elements of the crime of Attempting Witness Tampering, each of which the state must prove beyond a reasonable doubt, are that at the time and place alleged:
1. The defendant had the specific intent to commit the crime of Witness Tampering;
2. The defendant did a direct act toward the commission of the intended crime; and
3. The defendant failed or was prevented or was intercepted in the perpetration of the crime.

As stated above, the circuit court refused both of these instructions.

[¶ 33.] Inherent in Charger’s argument is the notion that in order to be rightfully convicted of tampering with a witness, he must have successfully completed the tampering. However, this argument is flawed. Generally, “[i]n the typical case of a criminal attempt, the factor distinguishing the attempt from the completed crime is that the intended criminal result, an element of the completed crime, was not achieved.” Brown v. State, 550 So.2d 142, 143 (Fla.Dist.Ct.App.1989) (citing Adams v. Murphy, 394 So.2d 411, 414 (Fla.1981)).

[¶ 34.] However, under the laws of this state, to prove the crime of witness tampering a criminal defendant does not need to succeed in actually inducing a witness to testify falsely, or withhold information. “The focus of anti-tampering statutes is on the actions and intent of the person trying to influence the witness.” Peck, 459 N.W.2d at 443 (citing State v. Bartilson, 382 N.W.2d 479, 481 (Iowa App.1985)). Only Charger’s intent to induce Swimmer to withhold testimony and information in his criminal trial must be proven by the State. Id. -

[¶ 35.] Thus, it was not necessary under SDCL 22-11-19(2) for the State to prove that Charger was successful in his effort to influence Swimmer not to testify or withhold information. Id. (citing State v. Boutchee, 406 N.W.2d 708, 712 (S.D.1987); United States v. Jeter, 775 F.2d 670 (6th Cir.1985); United States v. Brimberry, 744 F.2d 580 (7th Cir.1984)). See also Brown, 550 So.2d at 143 (holding that the similar intent crime of solicitation does not require that the crime solicited actually be perpetrated, because “the offense of attempting to solicit is implicitly included within [solicitation statutes].”). “As long as his words or actions support the inference that he (1) sought to prevent or dissuade a potential witness from attending upon a trial or (2) attempted by threat of force to induce a person to withhold testimony,” the defendant can be made to answer to the crime of tampering with a witness. Boutchee, 406 N.W.2d at 712 (citing People v. Thomas, 83 Cal.App.3d 511, 148 Cal.Rptr. 52, 54 (1978)).

[¶ 36.] Once Charger instructed Norman to place the phone call to Swimmer and relay the message inferring she should not testify against him, and after Hagans passed the message on to the person to whom it was intended for, the act of tampering with a witness was complete. See Navarro v. State, 810 S.W.2d 432, 437 (Tex.App.1991) (concluding “[t]he alleged offense of tampering with a witness was complete when the appellant offered and conferred and agreed to confer a benefit (money) to the witness in a manner calculated to cause false testimony.”). The record is clear that Norman read to Hagans a message, written in Charger’s handwriting, stating to the effect “if you testify in court you’ll be arrested ... if you even try to contact the prosecutor, you’ll be arrested.... If you show up in court, all I have to do is say your name and you’ll be arrested.” Moreover, Hagans-recalled the message to also include an indication that if Swimmer did not testify, Charger would be left unproseeuted - “[h]e said that he’s protected under the Shield Act, and that meant that any crime that’s not pled in one year you can’t be prosecuted for it even if it’s a sexual abuse.”

Elf 37.] There is evidence in the record that Charger’s message achieved his desired results in trying to persuade Swimmer not to testify against him in his upcoming criminal trial. Hagans testified that she relayed Charger’s message directly to Swimmer approximately two hours after Norman’s telephone call. Hagans’ testified she explained the message to Swimmer, because she was “scared for her.” When Swimmer heard the details of the message, she “looked scared” and “got tears in her eyes and she said she was scared.” During her direct testimony at trial, Swimmer testified after hearing about the message she “felt fear,” and perceived the telephone message from Charger “as a threat.”

[¶ 38.] Although Charger claimed his warning was only directed at Robert Swimmer to warn him of potential prosecution, when Norman phoned Hagans, he asked only for “Jackie,” not “Jackie and Robert,” or “Jackie or Robert,” or simply “Robert.” Robert’s name was never mentioned during the phone conversation.

[¶ 39.] Moreover, the jury rejected his version of the facts in finding him guilty of witness tampering, which, as the factfinder, it was entitled to do. It is well settled that it is the function of the jury to determine credibility of witnesses. State v. Raymond, 540 N.W.2d 407, 409 (S.D.1995) (citing State v. Svihl, 490 N.W.2d 269, 274 (S.D.1992) (citing State v. Battest, 295 N.W.2d 739, 742 (S.D.1980))). “It is hornbook law that the credibility of a witness and the weight to be given his testimony rests exclusively with the jury.” Id. at 410 (citing United States v. Azure, 801 F.2d 336, 340 (8th Cir.1986) (quoting United States v. Rosenberg, 108 F.Supp. 798, 806 (S.D.N.Y.1952), aff'd, 200 F.2d 666 (2d Cir.1952))). “[T]he jury is the lie detector in the courtroom.... ” Id.

[¶ 40.] We find that under the evidence in this record, Charger was guilty of the charged offense of witness tampering or guilty of nothing. A defendant in a criminal case is entitled to an instruction on his theory of the case only if there is evidence to support it. State v. Pellegrino, 1998 SD 39, ¶ 9, 577 N.W.2d 590, 594 (citing State v. Helmer, 1996 SD 31, ¶ 42, 545 N.W.2d 471, 478 (other citations omitted)). Therefore, a jury instruction on “attempt” would have been not only inappropriate, but also error.

[¶41.] The circuit court did not err in refusing to include an attempt instruction in this case. Affirmed.

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

[¶ 43.] SABERS, Justice, concurs specially.

SABERS, Justice

(concurring specially).

[¶ 44.] I concur specially because, under the majority in State v. Springer-Ertl, 2000 SD 56, 610 N.W.2d 768, the trial court’s refusal to instruct the jury on defendant’s right of free speech would be plain and reversible error requiring a new trial.

[¶ 45.] Accordingly, I write specially to expressly overrule Springer-Ertl.

      . Charger has not appealed the circuit court’s refusal to instruct the jury on free speech.

      . The circuit court also concluded the elements of attempted witness tampering in this case did not meet the legal test for a lesser-included offense, as set forth in State v. Tammi, 520 N.W.2d 619, 620-24 (S.D.1994). As we conclude an attempt instruction was not warranted because of our holding in Peck, we do not reach this portion of the circuit court’s analysis.