author: MEIERHENRY, Justice. SABERS, Justice

text:
    2006 SD 27
    Harry A. HOAAS, Plaintiff and Appellee, v. Larry D. GRIFFITHS, Defendant and Appellant.
    Nos. 23716, 23725.
    Supreme Court of South Dakota.
    Argued Jan. 10, 2006.
    Decided March 22, 2006.

      John C. Wiles of Wiles <& Rylance, Wa-tertown, South Dakota, Attorneys for plaintiff and appellee.
    Reed Rasmussen of Siegel, Barnett & Schütz, Aberdeen, South Dakota, Attorneys for defendant and appellant.
   MEIERHENRY, Justice.

[¶ 1.] Plaintiff Harry A. Hoaas (Hoaas) brought this action against Defendant Larry D. Griffiths (Griffiths) to recover his share of corporate assets. On the issue of Griffiths’ liability, the trial court entered summary judgment in favor of Hoaas; the amount owed, $58,447.20, was undisputed. The remaining issues were tried to a jury. The jury was to decide whether Hoaas was entitled to punitive damages and whether Hoaas misappropriated funds from the corporation and, if so, what amount. The jury found that Hoaas misappropriated funds in the amount of $68,850, but granted Hoaas punitive damages of $68,850. The trial court offset the amount of money Hoaas misappropriated against the punitive damages award and entered judgment in favor of Hoaas in the amount of $58,447.20. Both parties have raised issues on appeal. We affirm in part and reverse in part.

FACTS

[¶ 2.] The parties were shareholders in the corporation Grand Casino, Inc., which owned and operated a casino in Water-town, South Dakota. Since 1995, 51% of the stock was owned by Griffiths and 49% by Hoaas. Hoaas also managed the casino. Griffiths would typically visit the casino once a week; however, his involvement with the casino significantly decreased in 1996 and 1997 because of injuries he sustained in an auto accident.

[¶ 3.] At the end of 1997, problems surfaced with the casino’s bookkeeping. An accounting showed that actual cash on hand was about $32,000 less than the approximately $65,000 cash on hand reflected by the casino’s books. At that time, the accountant adjusted the books to compensate for the shortfall. Similar adjustments were made in June and December of 1998, when shortfalls were again discovered. By the end of 1998, the casino’s books showed a cash shortage of $84,720.23.

[¶ 4.] As manager of the casino, Hoaas was ultimately responsible for the cash on hand, the majority of which was kept in a lockbox at the casino during business hours. At night, Hoaas took the lockbox home with him and was the only one with a key to it. Hoaas, however, was unable to account for the cash shortages showing on the casino books, and the discrepancy between the recorded and actual cash on hand remained unexplained. In October 1999, Griffiths decided to do a complete audit. Two days later, Hoaas claimed that the lockbox was stolen from his vehicle during the night. Griffiths suspected that Hoaas concocted the theft story because of the impending audit. He fired Hoaas as manager of the casino on October 8, 1999. During the investigation into the theft, Hoaas informed the police that the lockbox contained $23,962.72. The casino’s books showed that the cash on hand was supposed to be $58,716.89. The apprehended thieves, as well as others who observed the thieves counting the cash, said that the lockbox only contained about $8,000.

[¶ 5.] Later in 1999, Grand Casino, Inc. sued Hoaas to recover the corporate assets which he allegedly converted. While the lawsuit was pending, Griffiths sold the casino for $100,000 without formally notifying Hoaas, who still owned 49% of the corporation. Griffiths retained Hoaas’ share of both the sale proceeds and casino’s profits for 2000 and 2001. In documents filed with the IRS, Griffiths claimed that he was the sole owner of the casino. According to Griffiths, he felt he had the right to keep Hoaas’ share of the corporate assets and profits because Hoaas was responsible for the missing cash. Grand Casino’s lawsuit against Hoaas, however, was administratively dismissed for failure to prosecute on April 8, 2002.

[¶ 6.] Approximately one year later, Hoaas filed for bankruptcy. Prior to filing, Hoaas commenced this lawsuit against Griffiths personally for failure to account, breach of fiduciary responsibility, conversion, misappropriation of corporate assets, and theft. The bankruptcy trustee authorized Hoaas’ lawsuit against Griffiths to proceed in the trial court. The trustee filed an amended interpleader in the lawsuit of Grand Casino versus Hoaas wherein the trustee represented to the court that the casino had two options — either apply for relief from the automatic stay or ask for dismissal of the action and file a proof of claim in bankruptcy. The trustee learned, however, that the suit had already been dismissed. Neither Griffiths, personally, nor the corporation filed a claim in the bankruptcy proceedings. Hoaas’ debts were discharged in bankruptcy on July 1, 2003.

[¶ 7.] Subsequently, Hoaas filed a summary judgment motion in this action and requested that the trial court enter judgment in his favor. The court granted partial summary judgment against Griffiths on Hoaas’ claims of breach of fiduciary duty, conversion, misappropriation of corporate assets, and theft. The amount of the claim, if any, was to be determined by the jury. Griffiths attempted to resurrect his claim against Hoaas for misappropriating corporate funds by requesting leave to file a counterclaim. The court denied Grif-fiths’ counterclaim because the claim belonged to the corporation and had been dismissed in bankruptcy. Nevertheless, the court allowed Griffiths to present evidence of Hoaas’ alleged misappropriation as an offset pursuant to 11 USC § 553, which gives a bankruptcy creditor the right “to offset a mutual debt owing by such creditor to the debtor” if both debts arose before filing for bankruptcy. Both Hoaas’ claims and Griffiths’ offset claim were tried to a jury. Additionally, the trial court allowed the jury to decide whether Hoaas was entitled to punitive damages.

[¶ 8.] At trial, the parties agreed that Griffiths withheld $58,447.20 from Hoaas, an amount which represented Hoaas’ 49% share of the casino sale and profits. By special verdict, the jury determined that Hoaas took funds from the casino without authorization in the amount of $68,850. Additionally the jury awarded punitive damages to Hoaas in the same amount of $68,850.

[¶ 9.] After the verdict was returned, Griffiths requested that the judge disallow the punitive damage award because the offsetting amount of misappropriated funds of $68,850 exceeded the compensatory damages of $58,447.20. Griffiths argued that the offset reduced the compensatory damages to zero and that absent an award of compensatory damages, punitive damages should not have been awarded. Griffiths sought prejudgment interest on the amount of the offset. Hoaas also sought prejudgment interest on the compensatory damages of $58,447.20. The trial court denied prejudgment interest for both parties and rejected Griffiths’ request to strike punitive damages, and the court entered judgment in favor of Hoaas in the amount of $58,447.20.

[¶ 10.] Both parties appeal and raise the following issues:

ISSUES
1. Whether the trial court erred by granting partial summary judgment to Hoaas on his claims against Grif-fiths.
2. Whether the trial court erred by determining that Hoaas was entitled to punitive damages.

DECISION

Partial Summary Judgment on Hoaas’ Claims

[¶ 11.] As we have repeatedly stated, summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits of the parties reveal no genuine issues of material fact. SDCL 15 — 6—56(c); Wulf v. Senst, 2003 SD 105, ¶ 17, 669 N.W.2d 135, 141. When considering a motion for summary judgment, the court must view the evidence in a light most favorable to the nonmoving party. Wulf, 2003 SD 105, ¶ 17, 669 N.W.2d at 141. The moving party bears the burden of proving that no such issues exist. Id. The nonmoving party, however, cannot merely rely on general allegations or denials. Id. ¶ 18. Rather, the nonmoving party must set forth specific facts which show the existence of genuine issues of material fact. Id. When reviewing summary judgment, “we determine only whether a genuine issue of material fact exists and whether the law was applied correctly.” Id. ¶ 19.

[¶ 12.] An examination of the record in this case reveals that Griffiths filed no affidavits or other evidence to refute Hoaas’ summary judgment motion. Hoaas, on the other hand, presented affidavits, documents, and Griffiths’ deposition testimony in support of his motion. The only activity by Griffiths reflected in the record was his attorney’s motion to withdraw because of a conflict of interest. The trial court allowed the attorney to withdraw and held all matters in abeyance until Griffiths retained new counsel or further informed the court. The new hearing-on the summary judgment was scheduled for October 6, 2004. Griffiths did not inform the court nor did he appear for the October 6 hearing. Since Griffiths failed to respond to the summary judgment motion, the record presented no genuine issues of material fact. Consequently, the trial court orally granted summary judgment in Hoaas’ favor.

[¶ 13.] On October 14, 2004, Griffiths’ current attorney noticed his appearance and requested additional time to acquaint himself with the case. The judge gave him additional time and also allowed time to respond to Hoaas’ proposed findings of fact and conclusions of law. Griffiths’ attorney filed objections to the findings; for the most part, however, those objections were general objections and did not point to specific evidence in the record sufficient to raise a genuine dispute of material fact. What the judge had before him was Grif-fiths’ deposition testimony wherein he admitted selling the corporation and disposing of its proceeds as if he owned 100% of the shares, even though he knew that Hoaas owned 49% of the corporation. In his deposition, Griffiths also admitted claiming ownership of all the shares, income, and proceeds of the sale on IRS documents, and he acknowledged that he had been untruthful in that regard. Grif-fiths also did not deny holding a special meeting of the casino’s board of directors on November 27, 2001, the minutes of which indicated that Griffiths was the only member of the board and that he served as both the president and secretary. In those minutes, Griffiths recorded that no stock had been issued to Hoaas, that Hoaas’ debt to the corporation exceeded any interest he may have been due because of the missing cash, and that the corporation should proceed with the sale. Griffiths also admitted in his deposition that the statement that Hoaas owned no stock was untrue.

[¶ 14.] On appeal, Griffiths claims that he intended to pay Hoaas when Hoaas accounted for the missing cash. He argues that this alone should have precluded summary judgment. His argument fails, however, because he did not present this argument or point to anything in the record to support his claim at the time the motion for summary judgment was considered by the trial court. Upon a motion for summary judgment, the trial court must consider the evidence in the light most favorable to the nonmoving party. The nonmoving party, however, has the responsibility to come forward with specific evidence which places a material fact in dispute. Griffiths failed to do so. He made no response to the summary judgment motion nor did he appear at the hearing. The judge had no disputing affidavit from Griffiths or anyone else. Griffiths did not offer evidence that money had been missing from the casino or that Hoaas had taken it. All the judge had in Griffiths’ favor was Griffiths’ general allegation that Hoaas owed him money from the casino. The specific evidence regarding his allegation only emerged when this case went to trial.

[¶ 15.] Under these circumstances, we cannot say that the trial court incorrectly granted the summary judgment motion. Neither the mere assertion that Hoaas had taken casino money nor Griffiths’ belated claim of a contingent intent to pay Hoaas does not counter Griffiths’ admissions that he disposed of corporate assets without Hoaas’ knowledge and that he intentionally withheld both the proceeds of that sale and profits of the corporation to which he knew Hoaas was entitled. All of the evidence before the trial court at the summary judgment motion indicated that Griffiths paid 100% of the proceeds from the sale of the corporation to himself and also kept 100% of the profits from the time period at issue. Griffiths placed those amounts in his personal account. He did not distribute the corporate assets to the other shareholder, Hoaas, and he did not place them in a corporate account. The evidence supports the trial court’s finding that Griffiths failed to establish a genuine issue of material fact for any of Hoaas’ claims, and therefore the trial court’s grant of summary judgment was proper.

Whether Punitive Damages were Recoverable

[¶ 16.] We review a trial court’s decision to submit punitive damages to the jury under a clearly erroneous standard. Kieser v. S.E. Props., 1997 SD 87, ¶ 27, 566 N.W.2d 833, 839-40. In order for the issue of punitive damages to be submitted to the jury, the proponent of those damages must establish by clear and convincing evidence that there is a reasonable basis to believe that a party’s conduct was willful, wanton, or malicious. Boomsma v. Dakota, Minn., & E. R.R. Corp., 2002 SD 106, ¶ 37, 651 N.W.2d 238, 246 (overruled on other grounds); see also SDCL 21-1-4.1. At the hearing regarding punitive damages, the trial court was presented with Griffiths’ deposition, in which Grif-fiths admitted intentionally withholding Hoaas’ portion of the corporate assets. Attached to the deposition were Griffiths’ tax returns in which he claimed to be the sole owner of the casino. Thus, the evidence supported the trial court’s conclusion that there was a reasonable basis to believe Griffiths’ conduct was willful, wanton, or malicious. That determination was not clearly erroneous.

[¶ 17.] Second, Griffiths argues that even if Hoaas could properly pursue a punitive damages claim, Hoaas’ unauthorized taking of' $68,850 cancelled out the compensatory damage award, thus negating Hoaas’ right to punitive damages. This issue hinges on whether the offset should apply first to the compensatory damages or whether it should apply to the aggregate amount of damages, which included both compensatory • and punitive damages. This question has not previously been presented to this Court.

[¶ 18.] We have “consistently held that punitive damages are not allowed absent an award for compensatory damages.” Schaffer v. Edward D. Jones & Co., 521 N.W.2d 921, 928 (S.D.1994) (citations omitted); see also Henry v. Henry, 2000 SD 4, ¶ 5, 604 N.W.2d 285, 288. One reason for the rule “is that we do not punish conduct, no matter how malicious or reprehensible, which in fact causes no injury.” Schaffer, 521 N.W.2d at 928 (citations omitted). In this case, the trial court determined by summary judgment that Griffiths withheld Hoaas’ share of the sale and profits of the corporation in the amount of $58,447.20. The court then let the jury decide whether Hoaas misappropriated corporate funds for his own use. The court also instructed the jury to consider whether Griffiths’ conduct in withholding Hoaas’ corporate share was of such a nature that punitive damages should also be awarded. The jury found that Hoaas had misappropriated $68,850, but it also found that Hoaas was entitled to $68,850 in punitive damages.

[¶ 19.] If the total offset of $68,850 is applied first to the compensatory damages, it would reduce the compensatory damages to zero. Without compensatory damages, Hoaas would not be entitled to punitive damages. On the other hand, if the offset is applied to the aggregate award of $127,297.20 (compensatory plus punitive), Hoaas would still be entitled to a judgment of $58,447.20.

[¶ 20.] In this case, the nature of the offset determines how it should be applied. Here, the trial court permitted Griffiths’ claim against Hoaas to proceed under a provision in the bankruptcy code that allows “a creditor to offset a mutual debt owing by such creditor to the debtor that arose before the commencement of the [bankruptcy] case.” 11 U.S.C. § 553. The United States Supreme Court characterizes the § 553 offset as follows:

The right of setoff (also called “offset”) allows entities that owe each other money to apply their mutual debts against each other, thereby avoiding “the absurdity of making A pay B when B owes A.” Studley v. Boylston Nat. Bank, 229 U.S. 523, 528, 33 S.Ct. 806, 808, 57 L.Ed. 1313 (1913). Although no federal right of setoff is created by the Bankruptcy .Code, 11 U.S.C. § 553(a) provides that, with certain exceptions, whatever right of setoff otherwise exists is preserved in bankruptcy..

Citizens Bank of Md. v. Strumpf, 516 U.S. 16, 18, 116 S.Ct. 286, 289, 133 L.Ed.2d 258 (1995). Generally, federal courts view the setoff as an equitable claim. See, e.g., In re Pleasant, 320 B.R. 889, 894 (Bankr.N.D.Ill.2004); French v. Bank One, Lima N.A. (In re Rehab Project, Inc.), 238 B.R. 363, 374 (Bankr.N.D.Ohio 1999). Additionally, the burden of proof rests with the party asserting the setoff. See, e.g., First Nat’l Bank of Louisville v. Hurricane Elkhorn Coal Corp. II, 763 F.2d 188, 190 (6thCir.1985); United States v. Krause (In re Krause), 261 B.R. 218, 222 (BAP 8thCir.2001); In re Lason, Inc., 314 B.R. 296, 305 (Bankr.D.Del.2004); Photo Mech. Servs., Inc. v. E.I. Dupont De Nemours Co. (In re Photo Mech. Servs., Inc.), 179 B.R. 604, 616 (Bankr.D.Minn.1995). As explained by a legal encyclopedia,

The doctrine of setoff, or compensation ■ . is essentially an equitable one requiring that the' demands of mutually indebted parties be set off against each other and that only the balance be recovered in a judicial proceeding by one party against the other.... It is a mode that equity adopts to compel the ultimate payment of a debt by one who in justice, equity, and good conscience ought to pay.

20 Am. Jur. 2d Counterclaim, Recoupment, & Setoffs § 6 (citations omitted); see also First Nat’l Bank of Minneapolis v. Kehn Ranch, 394 N.W.2d 709, 716 (S.D.1986) (“The allowance of a set-off recognizes the injustice resulting from compelling a creditor to pay the bankrupt estate the full value of a claim owed, while at the same time requiring the creditor to forfeit a claim due from the debtor.”).

[¶21.] In this case, the trial court did not allow Griffiths to amend his pleadings to assert a counterclaim by which he could recover affirmatively. Griffiths was only allowed to introduce evidence that Hoaas converted funds from the corporation in order to justify the amount Griffiths withheld when the corporation was sold. That evidence was clearly offered to reduce the amount Griffiths, as majority shareholder, owed to Hoaas as part of the sale of the casino.

[¶22.] The evidence to the jury was that $135,000 was missing from the casino. Griffiths’ 51% of the missing cash would have been $68,850, which is the exact amount the jury entered on the verdict form. Thus, in effect, the verdict determined that Griffiths owed Hoaas his share of the casino sale and profits in the amount of $58,447.20, and also that Hoaas had misappropriated Griffiths’ share of the ea-sino cash in the amount of $68,850. The parties, therefore, not only had mutually owing debts, but those debts arose from the same transaction. The debts were basically part of the dissolution of the corporation of which the parties were the only shareholders. It would be inequitable for Hoaas to enjoy the full benefits of the sale and profits of the corporation without also being responsible for the money he misappropriated.

[¶ 23.] Consequently, under the facts of this case we determine that the laws of equity require the amount of the offset first to be applied against the compensatory damages. We base this determination on the intertwined relationship of the two claims. Here, Hoaas’ claim and Griffiths’ offset are essential and integral to the parties’ corporate relationship. Therefore, under the principles of equity Griffiths should be able to reduce the amount he owes to Hoaas by the amount he should have received from Hoaas. By doing so, Hoaas is not entitled to compensatory damages and therefore cannot be awarded punitive damages.

[¶ 24.] We affirm the trial court’s grant of summary judgment in favor of Hoaas. We direct that the setoff determined by the jury must be applied to Hoaas’ compensatory damages. Because the setoff negates compensatory damages, we reverse the award of punitive damages to Hoaas. In light of this decision, we need not address the other issues raised on appeal, and we remand to the trial court for judgment to be entered accordingly.

[¶ 25.] GILBERTSON, Chief Justice, and KONENKAMP and ZINTER, Justices, concur.

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

SABERS, Justice

(concurring specially).

[¶27.] I concur specially to point out that, in my opinion, the trial court ignored two time honored principles that rose from these facts.

[¶28.] The basic facts are that Hoaas stole or misappropriated $68,850 from the corporation and Griffiths and they withheld $58,447 to offset the loss. This conduct was understandable, especially considering the principle that “possession is nine tenths of the law.” Why deliver to a thief or misappropriator money you claim he owes you? Accordingly, the grant of summary judgment by the trial court was premature, if not wrong. The jury should have determined under proper instructions whether it was proper to offset the amount taken.

[¶ 29.] The second time honored principle is that a “person cannot profit from [one’s] own wrong.” Dacy v. Gors, 471 N.W.2d 576, 581 (S.D.1991) (Sabers, J„ dissenting). This principle supports our decision today that Hoaas should not recover a judgment, punitive damages, or costs.

      . Federal courts refer to this same transaction analysis in bankruptcy proceedings as recoupment and distinguish it from setoff. See, e.g., Reiter v. Cooper, 507 U.S. 258, 263-65, 113 S.Ct. 1213, 1218, 122 L.Ed.2d 604 (1993); Conoco, Inc. v. Styler (In re Peterson Distrib., Inc.), 82 F.3d 956, 959-60 (10thCir.1996); United States v. Dewey Freight Sys., 31 F.3d 620, 622-23 (8thCir.1994); Clemens v. W. Milton State Bank (In re Clemens), 261 B.R. 602, 606 (Bankr.M.D.Pa.2001); Sheehan v. Wiener (In re Wiener), 228 B.R. 647, 649-650 (Bankr.N.D.Ohio 1998). This distinction, however, was not argued or addressed by the parties.

      . Our holding in allowing the offset to be applied first to reduce compensatory damages when punitive damages are also awarded is limited by the facts of this case. Under a different set of facts, an offset may involve a transaction which is independent of a plaintiff ⅝ claims and, consequently, may not affect entitlement to punitive damages.


source: Caselaw Access Project

author: GILBERTSON, Chief Justice. SABERS, Justice

license: Public Domain

text:
    2006 SD 33
    Kimberly Kay Spieker MILLER, f/k/a, Kimberly Kay Jacobsen, Plaintiff and Appellee, v. Todd Wayne JACOBSEN, Defendant and Appellant.
    Nos. 23630, 23649.
    Supreme Court of South Dakota.
    Considered on Briefs on Jan. 9, 2006.
    Decided April 5, 2006.

      Nancy L. Oviatt of Green, Roby, Oviatt, Cummings & Linngren, Watertown, South Dakota, Attorneys for plaintiff and appel-lee.
    Rebecca L. Morlock Reeves of Wiles and Rylance, Watertown, South Dakota, Attorneys for defendant and appellant.
   GILBERTSON, Chief Justice.

[¶ 1.] Kimberly Kay Spieker Miller (Kimberly) filed a motion seeking modification of a child support obligation order and divorce decree from Todd Wayne Ja-cobsen (Todd). The trial court found facts sufficient to warrant an increase in Todd’s child support obligation but denied Kimberly’s motion to modify the divorce decree. We affirm on Issues 1, 2, 3, and 5 and remand Issue 4 to the trial court for a determination of when an upward deviation from the basic child support obligation for transportation needs ends.

FACTS AND PROCEDURE

[¶ 2.] Kimberly and Todd were married on May 13,1989. Their son, Andrew Kris-tian, was born on July 19, 1989. Andrew has been disabled since birth due to cerebral palsy and a seizure disorder. Kimberly and Todd divorced on May 10, 1993, at which time Kimberly was awarded full custody of Andrew under a stipulated agreement and subject to Todd’s visitation rights.

[¶ 3.] The stipulated agreement called for Todd to continue paying child support per the terms specified as long as Andrew “is dependent or until further order of the court.” It also required the parties to exchange income information annually and for Todd to provide proof of $200,000 in life insurance maintained for Andrew’s benefit. In addition, the agreement called for Kimberly to claim Andrew as a depen-dant for income tax purposes in odd numbered years and Todd to claim him in even numbered years. Under the terms of the original stipulated agreement, Todd was required to pay $516 per month in basic child support per the support schedule in SDCL 25-7-6.2. An additional $155 per month in child support was included based on Andrew’s special needs. The language of the agreement provided:

The parties further agree that in addition to the basic child support obligation which is set by the schedule found at SDCL 25-7-6.2, Todd will pay an additional $100 per month as support. Todd also agrees to pay an additional $55 per month in recognition of the special needs his son has for transportation. Said additional $55 per month payment shall continue to be made each month until the van in which Kim now transports Andrew is paid in full or October 28, 1997.

[¶ 4.] In 2001, Kimberly contacted Todd to inform him that due to changes in circumstances and Andrew’s enrollment in a specialized school in Sioux Falls, South Dakota, with tuition paid by public funds, any dollar amount over $300 per month received by Kimberly would have to be forwarded to the State. Therefore, she proposed a reduction from the original $676 child support obligation to $300. In June 2001, the parties signed a modification to the child support agreement thereby incorporating the new amount.

[¶ 5.] Currently, Andrew is fifteen years old and weighs sixty-five pounds. His disability requires him to have extensive care and assistance with activities of daily living. Andrew must be fed, dressed and diapered daily, as well as requiring assistance with medications, bathing, and toileting twice a day. He takes medications three times per day for seizure control, drooling, and bowel elimination. Andrew must be turned at least once each night when he is sleeping. He also has a drug pump in his abdomen that delivers medication to his spinal column for relief of muscle tightness. Andrew spends the majority of his day in his wheelchair and requires physical assistance for transfers to and from his wheelchair.

[¶ 6.] Kimberly and Andrew have lived in Watertown, South Dakota, since 1993. Kimberly works as an occupational therapy assistant, and is remarried. Todd has lived in Longmont, Colorado, since before the divorce and is now remarried. He sees Andrew approximately once a year for a visit. Todd has not seen Andrew since 2003 and has made no recent contact with Andrew’s school or caregivers.

[¶ 7.] Andrew attends school at Children’s Care Hospital in Sioux Falls during the school year and during summer session. He remains in Sioux Falls at the school from Monday morning to Friday afternoon each week school is in session. Kimberly drives him to Sioux Falls each Monday morning that school is in session and returns on Friday afternoons to take him back to Watertown for the weekend. Andrew is home in Watertown every weekend from Friday night until Monday morning, during school holidays, and during summer break. Thus, Andrew lives with Kimberly slightly more than fifty percent of the year.

[¶ 8.] Kimberly has been for the last fifteen years, and continues to be, Andrew’s primary caregiver at home. She attends to his medical needs, coordinates and arranges for his care when she is at work, and attends all his medical appointments. She often uses her vacation time from work to attend to Andrew’s needs and, on occasion, has had to take leave without pay due to Andrew’s medical needs. Kimberly and her husband have made numerous adaptations to their home to provide better care for Andrew. They recently installed a lift system and bathtub in Andrew’s room and have built a wheelchair ramp outside their home.

[¶ 9.] Kimberly’s parents have provided care for Andrew when he is home on school breaks and Kimberly is at work. Her parents have provided the care without charge. Due to their ages and her father’s recent retirement, Kimberly anticipates having to hire caregivers in the near future to administer medication and meet Andrew’s complex physical needs while he is home and she is at work. The cost of the care was estimated at $2,400 per year by Kimberly at the hearing.

[¶ 10.] Andrew’s disability requires Kimberly to use a van equipped with a lift and lock-down system to transport him from Watertown to Sioux Falls each week for school, to medical appointments, and to recreational outings. The van is used exclusively for Andrew’s transportation, not for Kimberly or her family’s use. Kimberly has purchased two vans since the divorce. She replaced the original van with a used van with high mileage in January 2004, but it has been expensive to operate and must be replaced. Based on Kimberly’s knowledge of Andrew’s limitations and needs for his future growth, including additional headroom, at the time of the hearing Kimberly planned to trade in the current vehicle and purchase a new van in the near future. The total cost was estimated at approximately $35,654, but after trade in of the current vehicle and lift system and rebates, the sum of $30,075 needed to be borrowed to pay for the new van. Kimberly’s monthly payment was scheduled to be $507.66.

[¶ 11.] On November 5, 2004, Kimberly initiated the current proceedings seeking a modification of Todd’s child support obligation and a modification to the divorce decree to permit Kimberly to claim Andrew each year as a dependant for income tax purposes. Prior to filing her motion to modify the judgment of divorce, 'Kimberly requested Todd’s compliance with the terms of the stipulated agreement with regard to proof of life insurance maintained for Andrew’s benefit and proof of income. Todd failed to respond to the requests, and Kimberly filed a motion with the court to compel production. Todd failed to produce the required information until the morning of the hearing.

[¶ 12.] On December 15, 2004, a hearing on the matter was held. After testimony from both Kimberly and Todd, the trial court held that Todd’s child support obligation per SDCL 25-7-6.2 was based on an annual income of $84,000, and a monthly net income of $4,159, which provides a monthly basic child support obligation of $690. The trial court found Andrew spent significant time outside Kimberly’s home at school and, therefore, modified the child support obligation by deviating downward by fifty percent to $345 per month. The trial court found that Andrew required caregivers to attend to his complex physical needs and that due to Kimberly’s parents’ advancing age, paid caregivers would need to be hired at an annual cost of $2,400. Therefore, it ordered an additional upward deviation to Todd’s basic child support obligation, of $144 per month for caregivers to provide the necessary care for Andrew while he is in Kimberly’s home and she is at work.

[¶ 13.] The trial court also found that Andrew’s special health care needs required the purchase of a new van and lift system, and ordered an upward deviation of $380 per month for the cost of the new van and lift system. Based on Kimberly’s documentation, the loan for the new van was scheduled to be paid in full on February 1, 2011. The trial court ordered Todd to make the $380 monthly payment through the life of the loan until it was paid in full on February 1, 2011.

[¶ 14.] Todd’s total child support payment was set at $869 per month, which included $345 in basic child support plus the upward deviations of $144 for paid caregivers and $380 for the van payment. The trial court ordered that the $345 in basic child support and the $144 upward deviation for paid caregivers was effective December 1, 2004, and was to be paid to the Office of Child Support Enforcement “[b]eginning March 1 and on the 1st day of each month thereafter!.]” Thé .trial court did not specify a time for the expiration of this portion of Todd’s child support obligation, but noted with regard to the monthly $380 van payment “there has to be a mechanism for closing that off, if it is a four year [loan] I think it ought to be for four years.even though the child is going to be 18 and probably the child support obligation will end, but the moral obligation.doesn’t end.” i

[¶ 15.] Finally, the trial court awarded Kimberly $750 of the $1;128 in attorney fees she incurred to bring the motion to modify the divorce decree. The trial court found a portion of Kimberly’s attorney fees were incurred due to Todd’s failure to timely comply with the requirement in the divorce decree to provide the income and insurance information after numerous requests.

[¶ 16.] Todd appeals the following issues:

1. Whether the trial court erred when it calculated Todd’s net monthly income.
2. Whether the trial court erred in calculating Todd’s child support obligation when it included upward deviations for the purchase of a van and paid caregivers for Andrew.
3. Whether the trial court erred when it failed to provide Todd with a credit for overpayments in vehicle and medical payments previously made to Kimberly.
4. Whether the trial court erred when it failed to comply with SDCL 25-5-18.1 and specify the termination date of Todd’s child support obligation.
5. Whether the trial court erred when it awarded Kimberly attorney fees.

[¶ 17.] Both parties request attorney fe§s for the appeal currently before this Court per the provisions of SDCL 15-26A-87.3. Each party has submitted affidavits with verified, itemized statements of legal services with their respective motions for attorney fees. Todd requests $3,928.68 in attorney fees, while Kimberly requests $3,727.

STANDARD OF REVIEW

[¶ 18.] We review the trial court’s award or denial of child support under the abuse of discretion standard. Midzak v, Midzak, 2005 SD 58, ¶ 17, 697 N.W.2d 733, 738 (citing Billion v. Billion, 1996 SD 101, ¶ 14, 553 N.W.2d 226, 230 (citing Vander Pol v. Vander Pol, 484 N.W.2d 522 (S.D.1992))). A trial court’s award of attorney fees is also reviewed under the abuse of discretion standard of review. In re South Dakota Microsoft Litig., 2005 SD 113, ¶27, 707 N.W.2d 85, 97-98 (citing Anderson v. Aesoph, 2005 SD 56, ¶ 18, 697 N.W.2d 25, 31) (citations omitted). As such, our purpose is not to determine “whether we would have made an original like ruling, but whether a judicial rnind, in view of the law and circumstances of the particular case, could reasonably have reached such a conclusion.” Johnson v. Johnson, 468 N.W.2d 648, 650 (S.D. 1991) (citing Nelson v. Nelson, 454 N.W.2d 533 (S.D.1990)). The exercise of discretion by the “trial court must have a sound basis in the evidence presented.” Linard v. Hershey, 489 N.W.2d 599, 603-04 (S.D. 1992) (citing Masek v. Masek, 89 S.D. 62, 228 N.W.2d 334 (1975)). An abuse of discretion occurs when “discretion [is] exercised to an end or purpose not justified by, and clearly against, reason and evidence.” Watson-Wojewski v. Wojewski, 2000 SD 132, ¶ 14, 617 N.W.2d 666, 670 (quoting Billion, 1996 SD 101, ¶ 14, 553 N.W.2d at 230 (quoting Kanta v. Kanta, 479 N.W.2d 505, 507 (S.D.1991))).

[¶ 19.] We review the trial court’s findings of fact under the clearly erroneous standard. Johnson, 468 N.W.2d at 650 (citing SDCL 15-6-52(a)). We will overturn the trial court’s findings of fact on appeal only when a complete review of the evidence leaves the Court with a definite and firm conviction that a mistake has been made. Id. (citing Johnson v. Johnson, 451 N.W.2d 293, 295 (S.D.1990)).

ANALYSIS AND DECISION

[¶20.] 1. Whether the trial court erred when it calculated Todd’s net monthly income.

[¶ 21.] A parent’s net monthly income for child support purposes is determined under SDCL 25-7-6.3, which provides in relevant part:

The monthly net income of each parent shall be determined by the parent’s gross income less allowable deductions, as set forth herein. The monthly gross income of each parent includes amounts received from the following sources:
(1) Compensation paid to an employee for personal services, whether salary, wages, commissions, bonus, or otherwise designated!].]

[¶ 22.] Todd failed to provide Kimberly with his income information as required by the stipulated agreement. He did provide a copy of his 2003 W-2 on the morning of the hearing, which indicated his wages for 2003. During Todd’s direct examination, the following testimony was given:

Q. Todd, how are you employed?
A. I’m employed with Lockheed as a systems engineer.
Q. And is that — are you salaried or are you paid hourly?
A. I’m salary.
Q. What is your salary for this year?
A. I think it’s approximately $84,000.

Todd’s 2003 W-2 was then entered into evidence, which indicated his salary for 2003 was $75,785. During cross-examination, Todd was asked if his current salary was $84,000. Todd responded: “I’d have to look at the W-2 but it’s probably 83.” Todd also stated his annual salary increases were only a percentage or two at the most.

[¶ 23.] On appeal, Todd contends the trial court erred when it found his annual gross income to be $84,000 and his monthly gross income to be $7,000. He argues the amount should have been determined using his 2003 W-2, resulting in an annual gross income figure of $76,000 and a monthly gross income figure of $6,333.33. Without citing any authority, Todd contends the trial court erred when it failed to base Todd’s net monthly income on actual earned income received by Todd as evidenced by his 2003 W-2.

[¶ 24.] The trial court based its finding of fact as to Todd’s annual income on Todd’s testimony. The trial court was not required to base its finding of fact solely on wages as evidenced by the 2003 W-2 when competent evidence existed in the record to support a determination of 2004 wages. Todd testified his 2004 salary was either. $84,000 or $83,000 and that his monthly salary might differ by one, to two percent due to shift differentials,/-Therefore, there was sufficient evidence in the record for the trial court to find Todd’s current salary was $84,000.

[¶ 25.] Todd next argues that the trial court erred when it failed to consider the higher cost of living in Colorado. Todd cites to Johnson, 468 N.W.2d at 651, for the proposition that the trial court should have considered the higher cost of living in Colorado as compared to South Dakota. Todd entered no evidence into the record at the hearing to support his claim. Rather, in the Defendant’s proposed findings of fact and conclusions of law, which were ultimately refused by the trial court, finding of fact number thirteen stated: “There is a cost-of-living difference between Wa-tertown, South Dakota[,] and Longmont, Colorado. One Hundred Thousand Dollars ($100,000) in Watertown, South Dakota!],] has been compared to One Hundred Eighteen Thousand Dollars ($118,000) in Longmont, Colorado.”

[¶ 26.] In Johnson, this Court stated:

As to father’s- contentions concerning the higher costs of-living in California, we note that these are mere conclusory assertions without evidentiary support in the record. However, while recognizing that father’s assertions may have merit, we note that father fails to mention that not only was an increase in costs of living occasioned by his move to California but so too was a $7,000 to $8,000 per year increase in his wages for similar work. Thus, while father might suffer the detriment of higher costs of living in California, he also gains the benefit of a higher wage scale to offset those costs.

468 N.W.2d at 651.

[¶ 27.] The same reasoning applies in the instant case. There is no competent evidence in the record to support Todd’s bare and conclusory assertion as to the cost of living in South Dakota versus Colorado. Nor is there any mention of the salary differential Todd was able to obtain by securing employment in Colorado rather than in South Dakota. The trial court did not err when it did not consider the cost-of-living differential between South Dakota and Colorado.

[¶ 28.] 2. Whether the trial court erred in calculating Todd’s child support obligation when it included upward deviations for the purchase of a van and paid caregivers for Andrew.

[¶ 29.] SDCL 25-7-6.10 provides in relevant part: “Deviation from the schedule in § 25-7-6.2 shall be considered if raised by either party and made only upon the entry of specific findings based upon the following factors: ... (3) Any necessary education or health care special needs of the child[.]” Child care expenses may also be considered as a factor for additional support above the basic amount in the schedule in SDCL 25-7-6.2, as they are not included within the basic child support obligation. Juttelstad v. Juttel-stad, 1998 SD 121, ¶ 17, 587 N.W.2d 447, 451.

Van Purchase

[¶ 30.] Todd argues the trial court abused its discretion when it ordered an upward deviation of his child support obligation for the purchase of a van for Andrew. Todd contends the trial court sua sponte provided Kimberly with the deviation for the purchase of a new van. He attempts to characterize her testimony at the child support hearing as merely an expression of her concerns over the van. Todd then argues that Kimberly’s need for a vehicle is no different than any other parent’s need for a vehicle for family transportation, analogizing the need for a larger van to accommodate Andrew’s growth to that of “any other mother’s need to have a van so as to accommodate more of a child’s friends.” Todd then argues the trial court abused its discretion when it failed to consider that Kimberly’s decision to purchase a Chevrolet van, instead of a Volkswagen van, rendered obsolete the lift and lock-down system previously purchased by Todd’s family. Finally, Todd argues that a vehicle is not a necessary or special need within the meaning of SDCL 25-7-6.10, and therefore, an upward deviation from the basic child support obligation may not be imposed for the purchase of the van.

[¶ 31.] Kimberly instituted the proceedings for two purposes, first, to modify the child support obligation and second, to change the divorce decree to allow her to claim Andrew as a dependant in each tax year. At the hearing, Kimberly testified to the need for a new van for Andrew’s transportation due to the age of the current van, the travel to and from Andrew’s school in Sioux Falls, and Andrew’s physical growth. Todd’s claim that the trial court sua sponte provided Kimberly with the upward deviation for the van is without merit.

[¶ 32.] Todd’s arguments that a vehicle is not a special need within the meaning of SDCL 25-7-6.10 and that the need is one for transportation for Kimberly are equally -without merit. Kimberly testified at the hearing that the need for additional headroom for Andrew as he continues to grow was the basis of the decision to purchase a Chevrolet van rather than another Volkswagen van that could accommodate the current lift and lock-down system. In addition, Kimberly testified that the Easter Seals Society had already approved a $500 contribution toward the cost of the $1,000 ramp and lock-down system for the new van. Furthermore, Todd offered no testimony at the hearing as to how the purchase of a Volkswagen van would better accommodate Andrew’s physical needs. The trial court entered specific findings of fact regarding Andrew’s disability and physical limitations and how his need for reliable transportation to school and for medical visits made the purchase of the new van a special need within the meaning of SDCL 25-7-6.10.

Paid Caregivers

[¶ 33.] The circuit court’s order included an upward deviation from the basic child obligation for paid caregivers for Andrew while he is in Kimberly’s home and she is at work. The circuit court found the annual cost of paid caregivers to be $2,400 and ordered Todd to pay $144 per month for the upward deviation.

[¶ 34.] Todd argues that Kimberly would be unjustly enriched by the upward deviation ordered by the trial court for the paid caregivers. Todd contends that Kimberly testified only that she may incur such expenses, that she offered no evidence as to the cost and number of hours of care required, and that he should not be required to pay these expenses until such time that they are incurred.

[¶ 35.] Todd again mischaracter-izes the record. Kimberly testified at length as to how the age of her parents and her father’s impending retirement would preclude them from caring for Andrew on- a regular basis as they have for the past fifteen years. Kimberly’s mother is sixty-five years old and is no longer physically able to lift Andrew by herself and transfer him to and from his wheelchair. Kimberly’s father is seventy years old and semi-retired. In addition, Kimberly testified that the hourly rate she would need to pay suitable caregivers would range from eight to ten dollars per hour and that she would be seeking a nursing student with some medical training and skills due to Andrew’s complicated medication regimen. She also testified the care would be required during the six-week summer break and over the Christmas and holiday breaks when Kimberly was scheduled to work. Kimberly testified the annual cost of the care provider would be $2,400 given the rate and the number of hours of care needed.

[¶ 36.] Todd did not offer any evidence at the hearing to support his contention on appeal that Kimberly would be unjustly enriched by his payment for caregivers .until such time as the expenses are actually incurred. Nor does Todd offer any authority for his proposition that he should not have to pay the expenses until they are actually incurred. Todd cites to Juttel-stad, 1998 SD 121, ¶20, 587 N.W.2d at 451-52, for the proposition that Kimberly would be unjustly enriched as she would receive more in support payments than the expense actually incurred. However, in that case the Court’s holding concerned a mother who admitted she knowingly accepted more in child care reimbursements than the actual expenses she incurred. Id. ¶21. The holding in Juttelstad does not apply to the instant case, as Kimberly has yet to receive any payments for caregivers from Todd and there are no facts to indicate she will receive more money from Todd than the expense she will incur for the services.

[¶ 37.] The obligation to provide specialized caregivers for Andrew belongs to Kimberly and Todd, not to Kimberly’s parents as suggested by Todd. See SDCL 25-7-6.18. There is evidence in the record to support the need for such care and the amount of the expense that will be incurred. The trial court entered specific findings of fact as to the need for paid caregivers. The trial court then allocated seventy-two percent of the expense to Todd and twenty-nine percent of the expense to Kimberly based on their gross income figures.

[¶ 38.] The trial court did not abuse its discretion when it included an upward deviation in the child support obligation for the purchase of a van and for paid caregivers. There is ample evidence in the record to support the deviations, and deviations for both are permitted under the statutory scheme.

[¶ 39.] 3. Whether the trial court erred when it failed to provide Todd with a credit for alleged overpay-ments in vehicle and medical payments previously made to Kimberly.

[¶ 40.] Todd claims the trial court erred when it failed to order a credit or reimbursement for his alleged overpay-ments of van payments for the original van and child medical expense payments. Todd ■ claims Kimberly had been unjustly enriched by his overpayments.

[¶ 41.] It is well settled in South Dakota that a modification cannot be made to past-due child support payments, except for those payments that accrue during the time of a pending modification petition. Juttelstad, 1998 SD 121, ¶ 17, 587 N.W.2d at 451. The underlying rationale for the rule is that a past-due payment or child support installment becomes a final judgment by law and cannot be retroactively modified. Id. (citing SDCL 25-7-7.4; Agee v. Agee, 1996 SD 85, ¶ 20, 551 N.W.2d 804, 806). However, the prohibition on retroactive modifications does not apply when a parent is current on all support obligations and that parent is seeking a correction for overpayment of child care expenses. Id. We have not had the opportunity to consider the applicability of the holding in Juttelstad to upward deviations to the basic child support obligation codified in SDCL 25-7-6.10.

Van Overpayments

[¶ 42.] Todd argues he overpaid Kimberly $55 per month for the purchase of a vehicle to transport Andrew. The original child support agreement required Todd to make the payment until October 28, 1997, or until the vehicle was paid in full. Todd continued making the payment from October 1997 until June 2001 and contends he overpaid Kimberly by $2,420. Kimberly did not bring Todd’s error to his attention during that time.

[¶ 43.] In the instant case, Kimberly testified at the hearing that she continued to accept the $55 per month after the first van was paid off and used the money toward the purchase of the second van required for Andrew’s transportation and other transportation expenses such as repairs and maintenance for the van. Todd did not testify at the hearing to the issue of the $55 overpayment. Todd testified at the hearing in support for his contention that he should not have to provide additional funds toward the purchase of a new vehicle and that Kimberly was already reimbursed for repairs, maintenance, and wear and tear on the vehicle by the state, as she received mileage reimbursement for the weekly trips from Watertown to Sioux Falls. Todd included the credit or reimbursement for the alleged $2,420 overpayment in his proposed findings of fact and conclusions of law that were ultimately rejected by the trial court. Todd contends Kimberly was unjustly enriched by the $55 payment as she no longer had any vehicle expenses from October 1997 to June 2001.

[¶ 44.] The upward deviation of $55 for the van payment was not a part of the original child support obligation as determined by using the schedule in SDCL 25-7-6.2. Rather, it is more akin to additional child support for child care expenses as was the case in Juttelstad. Thus, the rule against retroactive modifications does not apply to the alleged $2,420 overpayment as Todd is current on all his child support obligations, both the basic amount per SDCL 25-7-6.2 and all upward deviations, and is seeking a correction or credit for overpayment of an upward deviation under a theory of unjust enrichment.

[¶ 45.] However, in order to recover, Todd must show that Kimberly was unjustly enriched by the overpay-ments. See Juttelstad, 1998 SD 121, ¶ 19, 587 N.W.2d at 451. “Unjust enrichment occurs ‘when a party confers a benefit upon another party who accepts or acquiesces in that benefit and it is inequitable to receive that benefit without paying.’ ” Id. (quoting Sporleder v. Van Liere, 1997 SD 110, ¶ 16, 569 N.W.2d 8, 12 (quoting Randall Stanley Architects, Inc. v. All Saints Community Corp., 1996 SD 138, ¶ 20, 555 N.W.2d 802, 805)).

[¶ 46.] For Todd to establish that Kimberly was unjustly enriched at his expense, he must show Kimberly received a benefit to which she was not entitled. He then must show that Kimberly was cognizant of the benefit and that her retention of the benefit without reimbursing Todd unjustly enriched her.

[¶47.] Kimberly did not concede she received a benefit as a result of the $2,440 overpayment, as she used the monies for expenses incurred for Andrew’s transportation above and beyond the expense of purchasing the original van. Kimberly testified she and her husband paid $6,000 for the second van purchased for Andrew in 2004, as well as repairs and maintenance work on the original and second van. Todd offered no evidence of unjust enrichment at the hearing and offered only bare allegations in his proposed findings of fact and conclusions of law.

[¶ 48.] The trial court rejected Todd’s proposed findings of fact and conclusions of law wherein he addressed the issue of the overpayment. No specific finding of fact was entered by the trial court on this issue. However, the facts in the record indicate that Kimberly was not unjustly enriched by the retention of the $55 per month from October 1997 to June 2001, as she incurred substantial and legitimate expenses for Andrew’s transportation above and beyond the mileage reimbursement and the alleged $2,420 overpayment. The trial court did not abuse its discretion in refusing to order Kimberly to reimburse or credit Todd for the alleged overpayment.

Medical Overpayments

[¶ 49.] Todd contends he overpaid Kimberly $100 per month in medical care expenses from January 1996 to June 2001, for a total of $9,020. Todd argues the overpayment occurred when Andrew transitioned from Todd’s insurance to Medicaid in 1995. Todd argues at that time all of Andrew’s medical expenses began being covered by Medicaid, thus eliminating the need for the $100 per month upward deviation under the terms of the original stipulated agreement.

[¶ 50.] Todd mischaraeterizes the nature of the additional $100 above the basic child support amount in the original stipulated agreement. The language of the agreement provided Todd would pay an additional $100 as support due to Andrew’s special needs. The language did not limit the additional $100 to medical expenses not covered by insurance. That subject was specifically addressed in another portion of the stipulated agreement wherein Todd agreed to pay for seventy-six percent of any uncovered medical expenses and Kimberly agreed to pay for twenty-four percent of such expenses. More importantly, the additional $100 did not have an expiration date attached to it as did the upward deviation for the van payment. Therefore, Kimberly did not receive monies from Todd to which she was not entitled under the terms of the stipulated agreement. Based on the evidence in the record, the trial court did not err when it failed to order Kimberly to reimburse or credit Todd with $9,020 in alleged overpayments.

[¶ 51.] 4. Whether the trial court erred when it failed to comply with SDCL 25-5-18.1 and specify the termination date of Todd’s child support obligation.

[¶ 52.] SDCL 25-5-18.1 provides in relevant part:

The parents of any child are under a legal duty to support their child in accordance with the provisions of § 25-7-6.1, until the child attains the age of eighteen, or until the child attains the age of nineteen if the child is a full-time student in secondary school.

In Birchfield v. Birchfield, 417 N.W.2d 891, 895 (S.D.1988), this Court made it unequivocally clear that a parent’s statutory duty to support his or her child terminates per the provisions of SDCL 25-5-18.1, no later than age nineteen. A trial court may not impose a duty to support a child beyond the age of eighteen, or the age of nineteen if the child is still enrolled full-time in high school. Radigan v. Radi-gan, 465 N.W.2d 483, 485 (S.D.1991) (citing SDCL 25-5-18.1; Birchfield, 417 N.W.2d at 895). However, the parties are free to agree to provide support beyond the age of nineteen. Birchfield, 417 N.W.2d at 895 (citing Wame v. Wame, 360 N.W.2d 510 (S.D.1984)).

[¶ 53.] Ordinarily, we do not address a question on appeal that was not before the trial court. State v. Hays, 1999 SD 89, f 16, 598 N.W.2d 200, 203 (citing State v. Henjum, 1996 SD 7, ¶ 13, 542 N.W.2d 760, 763). “The trial court must be given an opportunity to correct any claimed error before we will review it on appeal.” Id. (quoting Henjum, 1996 SD 7, ¶ 13, 542 N.W.2d at 763 (quoting State v. Heftel, 513 N.W.2d 397, 401 (S.D.1994))).

[¶ 54.] In the instant case, the trial court did not impose an absolute duty upon Todd to support Andrew beyond the age specified in SDCL 25-5-18.1. The trial court’s order is silent as to an ending date for the basic child support and upward deviation for paid caregivers. Therefore, the issue of whether the trial court could impose an obligation for basic child support and the upward deviation for paid caregivers is not properly before the Court. Thus, we do not address this portion of the issue as raised by Todd.

[¶ 55.] The issue of whether the trial court could impose an obligation for child support beyond the age of eighteen as specified in SDCL 25-5-18.1 has been properly preserved as it pertains to the van payment. Todd objected to the inclusion of the upward deviation for the van payment in its entirety when he objected to Kimberly’s inclusion of the upward deviation in her proposed findings of fact and conclusions of law. Therefore, we address only this portion of the issue.

[¶ 56.] The trial court ordered Todd to pay the $380 monthly child support payment for the purchase of the van until the van was paid in full. The estimated payoff date for Kimberly’s loan is February 1, 2011. Given that Andrew was born on July 19, 1989, he will be eighteen years old on July 19, 2007. In effect, the trial court ordered Todd to pay this portion of the child support payment up until Andrew is twenty-two years of age.

[¶ 57.] Kimberly argues the language of the stipulated agreement entered into by the parties in 1993 controls this issue. It provides in relevant part: “that Defendant’s obligation for payment of child support shall continue as long as Andrew Kristian Jacobsen is dependent or until further Order of the Court.” Kimberly argues that the meaning of the word “dependent” is in reference to Andrew’s physical and mental disability, which will require continued care throughout his adult years, rather than his attainment of the age of majority.

[If 58.] We remand this issue to the trial court in order to fully develop the record and allow each party to present evidence and argument as to the termination date of the child support obligation. If the trial court holds that Todd’s child support obligation terminates per SDCL 25-5-18.1 upon Andrew’s eighteenth birthday, we direct the trial court to reconsider the monthly support amount. If the trial court determines the meaning of the term “dependent” in the child support agreement entered into by the parties called for support for Andrew for life, the vehicle payment termination date may stand as originally ordered.

[¶ 59.] 5. Whether the trial court erred when it awarded Kimberly attorney fees.

In determining whether one party should be required to pay another party’s attorney fees, we will consider the property owned by each party; their relative incomes; whether the requesting party’s property is in fixed or liquid assets; and whether either party unreasonably increased the time spent on the case.

Johnson, 468 N.W.2d at 652 (quoting Studt v. Studt, 443 N.W.2d 639, 644 (S.D.1989) (quoting Senger v. Senger, 308 N.W.2d 395, 398 (S.D.1981))).

[¶ 60.] Applying the factors above, and considering the facts of the case before us, we do not find that the trial court erred when it found that a portion of Kimberly’s attorney fees were the result of Todd’s unwillingness to comply with the requirement to produce proof of insurance and income after multiple requests. Providing Kimberly with the required information on the morning of the hearing did not eliminate the attorney hours and fees she incurred to prepare the various requests and file the motion to compel.

Appellate Attorney Fees

[¶ 61.] Kimberly and Todd both filed separate motions for appellate attorney fees accompanied by itemized statements of expenses. In view of the above, we award Kimberly the full amount of appellate attorney fees she requested, $3,727.

[¶ 62.] We affirm on Issues 1, 2, 3, and 5 and remand Issue 4 to the trial court for a determination of the meaning of the word “dependent” in the original stipulated agreement and its effect on the termination of the upward deviation from the basic child support obligation for the van payment.

[¶ 63.] KONENKAMP, ZINTER and MEIERHENRY, Justices, concur.

[¶ 64.] SABERS, Justice, concurs in part and dissents in part.

SABERS, Justice

(concurring in part and dissenting in part).

[¶ 65.] I concur except as to Issue 4, where I dissent. Kimberly argues that the meaning of the word “dependent”, is in reference to Andrew’s physical and mental disability, which will require continued care throughout his adult years. I agree and it is a mistake to give Todd “a second bite of the apple.”

[¶ 66.] Unfortunately, Andrew’s physical and mental disability is permanent and he will always be “dependent” for life, family, medical and financial support. In this context, the stipulated agreement requiring Todd’s obligation for payment of child support, which shall continue “as long as Andrew[ ] is dependent or until further Order of the Court,” is clear. We should remand Issue 4 to be enforced, not to be interpreted.

      . Kimberly argues on appeal that Todd waived this issue, as his proposed findings of fact and conclusions of law included an upward deviation for a van payment but at a lower dollar amount. Despite what appears at first glance as a waiver of this issue, Todd objected to the inclusion of any upward deviation for a van payment when he opposed its inclusion in Kimberly's proposed findings of fact and conclusion of law. Therefore, we address the issue of the upward deviation for the van.

      . SDCL 25-7-6.18 provides in relevant part: "The court may enter an order allocating the reasonable child care expenses for the child, which are due to employment of either parent, job search of either parent, or the training or education of either parent necessary to obtain a job or enhance earning potential."

      . In Juttelstad, the child care expenses were labeled an upward deviation. 1998 SD 121, ¶ 17, 587 N.W.2d at 451. However, child care expenses are more properly characterized as an additional child support amount, as child care is not codified as an upward deviation under SDCL 25-7-6.10, but rather is codified separately at SDCL 25-7-6.18.

      . SDCL 25-7-6.10 provides:
      Deviation from the schedule in § 25-7-6.2 shall be considered if raised by either party and made only upon the entry of specific findings based upon any of the following factors:
      (1) The income of a subsequent spouse or contribution of a third party to the income or expenses of that parent but only if the application of the schedule works a financial hardship on either parent;
      (2) Any financial condition of either parent which would make application of the schedule inequitable. If the total amount of the child support obligation, including any adjustments for health insurance and child care costs, exceeds fifty percent of the obligor's monthly net income, it shall be presumed that the amount of the obligation imposes a financial hardship on the obligor. This presumption may be rebutted based upon other factors set forth in this section;
      (3) Any necessary education or health care special needs of the child;
      (4) The effect of agreements between the parents regarding extra forms of support for the direct benefit of the child;
      (5) The obligation of either parent to provide for subsequent natural children or stepchildren. However, an existing support order may not be modified solely for this reason; or
      (6) The voluntary act of either parent which reduces that parent’s income.


author: SABERS, Justice.

text:
    2006 SD 42
    Ramona CASILLAS and Delora Stickelman, Plaintiffs and Appellants, v. Ted SCHUBAUER, Defendant and Appellee.
    No. 23773.
    Supreme Court of South Dakota.
    Considered on Briefs March 20, 2006.
    Decided April 26, 2006.

      Charles Abourezk of Abourezk & Zephier Rapid City, SD, for plaintiffs and appellants.
    Sara L. Larson, Michael M. Hickey of Bangs, MeCullen, Butler, Foye and Simmons, Rapid City, SD, for defendant and appellee.
   SABERS, Justice.

[¶ 1.] Ramona Casillas (Casillas) and Delora Stickelman (Stickelman) were injured when Casillas’ vehicle collided with an eighteen-hundred pound Black Angus bull (the black bull) owned by Ted Schu-bauer (Schubauer). Casillas and Stickel-man brought a negligence action against Schubauer. After discovery, Schubauer filed a motion for summary judgment. The circuit court granted the motion. Ca-sillas and Stickelman appeal. We reverse and remand for trial.

FACTS

[¶ 2.] Casillas and Stickelman reside in North Platte, Nebraska. On May 30, 2002, they drove to Mission, South Dakota, to attend the graduation of Casillas’ grandson. Later that evening, Casillas and Stickelman left Mission and began traveling south on South Dakota Highway 83 towards North Platte. Stickelman was driving Casillas’ vehicle.

[¶ 3.] At approximately 11:00 p.m., they suddenly came upon the black bull which was standing on the highway. Stickelman attempted to swerve but was unable to avoid hitting the black bull. The vehicle was totally destroyed and Casillas and Stickelman suffered extensive personal injuries.

[¶ 4.] Sometime between 7:30 and 8:00 the following morning, Schubauer noticed that the black bull was missing from the corral outside of his home. He searched his property and came upon the accident scene where he saw blood on the highway. Schubauer found the black bull lying on the ground. The black bull had skin missing from one of its legs, but was able to walk back to the corral.

[¶ 5.] Casillas and Stickelman brought a negligence action against Schubauer seeking to recover damages for the injuries sustained. Schubauer denied any negligence.

[¶ 6.] Claris Young (Young) submitted an affidavit on behalf of Casillas and Stick-elman. Young stated that at approximately 6:30 p.m. on the evening of the accident, she saw the black bull on Highway 83. Specifically, Young stated that several cars had to slow down and swerve to avoid hitting the black bull. Then, while driving home from work, Young witnessed Casillas and Stickelman’s accident and assisted them until the paramedics arrived at the scene.

[¶ 7.] Schubauer testified via deposition. He testified that on the day of the accident he placed the black bull with another bull and some cattle in a small corral. The corral was located near Schu-bauer’s residence. The fence surrounding the corral was an assortment of stockade panels, wood, and barbed wire. Schubauer testified that he and his son diligently maintain the fences and gates and that they were not in a state of disrepair on the day of the accident.

[¶ 8.] Schubauer did not recall whether he checked on the black bull after it had been put in the corral. He did not find any damaged fence or open gates the following morning. However, this was not the first occasion the black bull escaped from one of Schubauer’s corrals. A few years earlier, Schubauer put the black bull and another bull in one of his corrals. The two bulls started fighting and the black bull broke through the fence, but apparently did not reach the highway.

[¶ 9.] After discovery was complete, Schubauer made a motion for summary judgment. A hearing was held on May 27, 2005. The circuit court granted Schu-bauer’s motion. The court ruled that there was no direct or circumstantial evidence that the escape of the bull “was occasioned by any acts of negligence” on the part of Schubauer.

[¶ 10.] Schubauer made a motion requesting the circuit court award disbursements under SDCL 15-17-37. The disbursements requested included fees for computerized legal research. Casillas’ counsel objected to the motion, stating, “I have never been able to get [computerized legal research expenses] in any court in South Dakota, because it is not specifically in the statute.” The court taxed disbursements in favor of Schubauer in the amount of $905.67, including the computerized legal research expenses.

[¶ 11.] Casillas and Stickelman raise the following issues:

1. Whether the circuit court erred in granting summary judgment in favor of Schubauer on the negligence claim.
2. Whether the doctrine of res ipsa loquitur precluded the circuit court from granting summary judgment in favor of Schubauer.
•■3. Whether the circuit court erred in -taxing disbursements in favor of Schubauer.

. Standard of Review

[¶ 12.] “Summary judgment is authorized- if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.” Krier v. Dell Rapids Township, 2006 SD 10, ¶ 12, 709 N.W.2d 841, 844-45 (citing SDCL 15 — 6—56(c)). We view all reasonable inferences derived from the facts in the light most favorable to the nonmoving party. Id. The moving party must clearly show, the absence of any genuine issue of material fact and entitlement to judgment as a matter of law. In re Estate of Shuck v. Perkins County, 1998 SD 32, ¶ 6, 577 N.W.2d 584, 586. “Once we determine that the material facts are undisputed, our review is limited to whether the law was correctly applied.” Krier, 2006 SD 10, ¶ 12, 709 N.W.2d at 845 (citing Schulte v. Progressive N. Ins. Co., 2005 SD 75, ¶ 5, 699 N.W.2d 437, 438).

1. Summary Judgment

[¶ 13.] Summary judgment is generally not feasible in negligence cases. Satterlee v. Johnson, 526 N.W.2d 256, 258 (S.D.1995); Zeeb v. Handel, 401 N.W.2d 536, 537 (S.D.1987); Lalley v. Safway Steel Scaffolds, Inc., 364 N.W.2d 139 (S.D.1985). “It is only when the evidence is such that reasonable [persons] can draw but one conclusion from the facts and inferences that they become a matter of law and this occurs rarely.” Id. (quoting Lamp v. First Nat’l Bank of Garretson, 496 N.W.2d 581 (S.D.1993)); see also Wilson v. Great N. Railway Co., 83 S.D. 207, 157 N.W.2d 19, 22 (1968) (noting that summary judgment should not be granted on claims of contributory negligence except in “extraordinary, unusual, or rare case[s] where the facts are conceded or demonstrated beyond reasonable question, and show a right to summary judgment with such clarity as to leave no room for controversy”). The burden remains with the moving party to clearly show an absence of any genuine issue of material fact and an entitlement to judgment as a matter of law. State Dept. Revenue v. Thiewes, 448 N.W.2d 1, 2 (S.D.1989).

[¶ 14.] Even though summary judgment is rare in negligence cases, we have held that the determination of whether a duty exists is a question of law for the courts. Bordeaux v. Shannon County Schools, 2005 SD 117, ¶ 11, 707 N.W.2d 123, 126. The inquiry involves whether “a relationship exists between the parties such that the law will impose upon the defendant a legal obligation of reasonable conduct for the benefit of the plaintiff.” Estate of Shuck, 1998 SD 32, ¶8, 577 N.W.2d at 586. “Landowners have a duty of care regarding their roaming animals.” Atkins v. Stratmeyer, 1999 SD 131, ¶ 23, 600 N.W.2d 891, 898. Once the duty is determined, whether a breach of that duty occurred is for the finder of fact, not this Court.

[¶ 15.] In personal injury cases arising out of collisions between vehicles and domestic animals, this Court has explained:

At common law an owner of a domestic animal is under no legal obligation to restrain it from being at large on the highway unattended, and he is not liable for damages for an injury resulting from its being so at large unless he has knowledge of vicious propensities of the animal or unless he should reasonably have anticipated that injury would re- suit from its being so at large on the highway.

Id. (citing Eixenberger v. Belle Fourche Livestock Exchange, 75 S.D. 1, 5, 58 N.W.2d 235, 237 (1953) (emphasis in original)). In the absence of a specific statute, the rule set forth in Eixenberger and its progeny continues to control these types of cases. Originally, the rule only applied to cattle that were permitted to roam at large. Id. However, the rule has subsequently been applied to cases involving negligent maintenance of fences or other forms of confinement. Pexa v. Clark, 85 S.D. 37, 40, 176 N.W.2d 497, 498 (1970); Zeeb, 401 N.W.2d at 537; Atkins, 1999 SD 131, 600 N.W.2d 891.

[¶ 16.] In this case, the inquiry is whether the owner could have reasonably anticipated that the animal would stray onto the highway. In answering this inquiry, we look to

[t]he facts of [the] case and consider the character of the road, the kind of traffic thereon, the time of day, and all other pertinent facts and the surrounding conditions to determine whether the defendant should have reasonably anticipated the danger.

Atkins, 1999 SD 131, ¶ 23, 600 N.W.2d at 898 (citing Estate of Shuck, 1998 SD 32, at ¶ 12, 577 N.W.2d at 587). This Court has held that the inquiry is a factual one and should be left to the jury. Id.

[¶ 17.] In summary, landowners have a duty of care regarding their animals. Id. Whether a breach of that duty occurred depends upon whether the landowner could have reasonably anticipated the danger in light of all the facts and circumstances. This inquiry is a factual one and should be decided by the jury.

[¶ 18.] The determination is whether Schubauer should have reasonably anticipated that his black bull would stray onto Highway 83. All facts and reasonable inferences must be viewed in the light most favorable to Chsillas and Stickelman. The burden is on Schubauer to clearly show no genuine issue of material fact exists in this regard. Thiewes, 448 N.W.2d at 2. “A surmise that [Casillas and Stickelman] will not prevail upon trial is not sufficient basis to grant the motion on issues which are not shown to be sham, frivolous or so unsubstantial that it is obvious it would be futile to try them.’* See id.

[¶ 19.] Schubauer did not allow his livestock to roam at large. His property is enclosed by fence. Casillas and Stickel-man did not present facts indicating that Schubauer negligently maintained his fence. Nor do they set forth facts indicating that Schubauer left the fence gates open on the day of the accident.

[¶ 20.] Schubauer does admit, however, that this was not the first time the black bull escaped from a corral. On a prior occasion, Schubauer confined the black bull and another bull in close quarters. The two bulls started fighting and the black bull was able to break through the fence. Schubauer testified in regards to bulls and their propensity to challenge one another as follows:

Q: Now you said you had that problem at one time with that big bull and the little bull; do bulls fight often?
A: I don’t know if you call it fighting or playing, but they — boys will be boys I guess. I don’t know what you call it. .
>Q: They challenge each, other, right, or how would you describe it? .
A: 'I guess that’s what you would say. I don’t know. They just butt heads and the bigger one usually wins and pushes the little' one away, and if he’s too much bigger the little one ’ runs away: ■ ■

[¶ 21.] On the day of the " accident, Sehubauer put the black bull, another bull, and some cattle in the corral. He does not recall checking on the bulls that afternoon or evening despite the fact that the corral can be seen from his house. The black bull was observed on the highway by 6:30 p.m. The accident occurred at 11:00 p.m. The black bull was not found until 7:30 or 8:00 the following morning.

[¶ 22.] Under these circumstances, a genuine issue of material fact exists as to whether Sehubauer could have reasonably anticipated the black bull would escape and stray onto Highway 83. Schúbauer knew that bulls had a propensity to challenge one another. He also knew the black bull escaped from a corral when confined with another bull on a prior occasion. Despite' the fact that the bulls were confined and Schiibauer’s home was near a major highway, he did not check on the bulls until the following morning. Viewing these facts and inferences in the light most favorable to Casillas and Stickelman, a jury should determine whether Sehubauer could have reasonably' anticipated the black bull’s escape and the likelihood of an accident.

[¶ 23.] It was Schubauer’s burden'to show the absence of a genuine issue of material fact as to whether -he breached his duty to Casillas and Stickelman. He has failed to meet his burden. Therefore, we reverse and remand for a jury trial.

2. Res Ipsa Loquitur

[¶ 24.] The essential elements to warrant application of the doctrine of res ipsa loquitur are: (1) the instrumentality which caused the injury must have been under the full management and control of the defendant or his servants; (2) the accident must be such that, according to knowledge and experience, does not happen if those having management or control had not been negligent; and (3) the plaintiffs injury must have resulted from the accident. Wuest v. McKennan Hospital, 2000 SD 151, ¶ 18, 619 N.W.2d 682, 688 (citing Fleege v. Cimpl, 305 N.W.2d 409 (S.D.1981)). “Also, the doctrine of res ipsa loquitur is to be utilized sparingly and only when the facts and demands of justice make its application essential.” Id. (citing Shipley v. City of Spearfish, 89 S.D. 559, 235 N.W.2d 911 (1975)).

[¶ 25.] .There is a split of authority as to whether and to what extent the doctrine of res ipsa loquitur applies to cases involving collisions between motorists and domestic animals. See 29 A.L.R.4th 431, Collision With Domestic Animal, §§ 8(a),(b) (listing cases). Res ipsa loquitur is primarily a rule of evidence. Roster v. Inter-State Power Co., 58 S.D. 521, 237 N.W. 738, 741 (1931). Because the circuit court granted summary judgment, it did not have the opportunity to rule on the doctrine’s applicability to the present case. Therefore, it is for the circuit court to determine whether Ca-sillas and Stickelman are entitled to an instruction on res ipsa loquitur in light of the substantive law and the evidence at trial.

3. Taxation of Disbursements

[¶ 26.] The circuit court awarded Sehubauer $905.67 in disbursements pursuant to SDCL 15-17-37, which provides:

The prevailing party in a civil action or special proceeding may recover expenditures necessarily incurred in gathering and procuring evidence or bringing the matter to trial. Such expenditures include costs of telephonic hearings, costs of telephoto or fax charges, fees of witnesses, interpreters, translators, officers, printers, service of process, filing, expenses from telephone calls, copying, costs of original and copies of transcripts and reporter’s attendance fees, court appointed experts, and other similar expenses and charges. These expenditures are termed “disbursements” and are taxed pursuant to § 15-6-54(d).

Because we have concluded that the circuit court erred in granting summary judgment in favor of Schubauer, we vacate the circuit court’s taxation of disbursements in favor of Schubauer. However, we specifically address whether legal research fees can be awarded under SDCL 15-17-37.

[¶ 27.] We have held that “only those expenses specifically authorized by statute may be taxed as disbursements, and although the trial court has some discretion, it must use cautious restraint within the statutory specifications.” Behrens v. Wedmore, 2005 SD 79, ¶ 69, 698 N.W.2d 555, 581 (quoting Lewis v. Aslesen, 2001 SD 131, ¶ 10, 635 N.W.2d 744, 747). Schu-bauer does not argue that computerized legal research fees are expressly authorized by the statute. Instead, he argues that computerized legal research fees fall under “other similar expenses and charges.” SDCL 15-17-37.

[¶ 28.] In City of Aberdeen v. Rich, 2003 SD 27, ¶ 27, 658 N.W.2d 775, 782, we noted that “this Court has been extremely hesitant to allow disbursements for [the] other similar expenses and charges” provision of SDCL 15-17-37. In this case, we follow the strict construction of SDCL 15-17-37. The depth and detail of legal research is dictated by the complexity of the case and the judgment of the individual attorney. More importantly, the expense for non-computerized legal research is not taxable and is not within “other similar expenses and charges.” We hold that computerized legal research fees cannot be taxed as disbursements under SDCL 15-17-37.

[¶ 29.] Reversed and remanded.

[¶ 30.] GILBERTSON, Chief Justice, and. KONENKAMP, ZINTER, and MEIERHENRY, Justices, concur.

        Estate of Shuck is the only case in which this Court has upheld the grant of summary judgment on this issue. In doing so, the Court noted that the defendant’s cattle roamed at large in a remote area that was surrounded by infrequently traveled, gravel roads. 1998 SD 32, ¶¶ 14. 15, 577 N.W.2d at 587-88. Additionally, there were cattle guards and a sign that put motorists on notice thát cattle were likely to roam across the road that runs through the defendant’s grazing land. Because of those unique facts, this Court distinguished its holdings in Pexa and Eixenberger. Id. n. 6.