author:
LOVRIEN, Circuit Judge.
      SABERS, Justice

text:
    2002 SD 77
    William O’TOOLE and Elisabeth O’Toole, Plaintiffs and Appellants, v. BOARD OF TRUSTEES OF THE SOUTH DAKOTA RETIREMENT SYSTEM, Defendant and Appellee.
    No. 22016.
    Supreme Court of South Dakota.
    Argued Jan. 10, 2002.
    Decided July 2, 2002.

      Sheila S. Woodward of Johnson, Heide-priem, Miner, Marlow and Janklow, Yank-ton, South Dakota, Attorneys for plaintiffs and appellants.
    Mark Barnett, Attorney General, Wade A. Hubbard, Assistant Attorney General, Pierre, South Dakota, Attorneys for defendant and appellee.
   LOVRIEN, Circuit Judge.

[¶ 1.] William and Elisabeth O’Toole (O’Tooles) appeal the circuit court’s judgment affirming the South Dakota Retirement System Board of Trustee’s (Board) determination that O’Tooles were not entitled to an additional refund for the employer contributions made on their behalf. We affirm.

FACTS

[¶2.] Elisabeth and William O’Toole were employed with state government until November 1 and August 23, 1996 (respectively). After leaving the state’s payroll each had five years to apply for a refund of the contributions they made to the South Dakota Retirement System (System). Each applied for a refund on November 18, 1997 and each was issued a refund on November 26,1997.

[¶ 3.] On December 5, 1997, Board decided to seek legislative approval of a change to the portability of its retirement benefits. This proposed change would allow vested members to withdraw both their own and their employer’s contributions to System. To meet what it considered its fiduciary duty, Board immediately began to notify all interested persons and members that they should wait to remove benefits until the possible changes were approved or rejected.

[¶ 4.] During the 1998 Legislative Session, the legislature approved and the governor signed the bills that granted the change in the portability of benefits. The changes went into effect on July 1, 1998. In addition to allowing the change in portability benefits, the legislature also specifically provided that no member or former member of the system, who had withdrawn contributions from the system before July 1, 1998, could receive any additional refund. SDCL 3-12-77.4

[¶ 5.] Approximately eight months later, on March 9, 1999, O’Tooles contacted System to request a refund of employer contributions. The system administrator refused the request. A hearing was held before the Board of Trustees on April 13, 2000. Board affirmed the administrator’s decision and O’Tooles filed an appeal with the circuit court. The circuit court affirmed Board’s decision.

[¶ 6.] The argument raised by O’Tooles before the administrator, the Board, and the circuit court was that they were entitled to an additional refund from System based on a claim that Board breached its fiduciary duty to them. O’Tooles argued that when they applied for their refund, Board was considering asking the legislature to approve a statute to allow an employee to withdraw contributions made by both the employee and employer. O’Tooles claim that Board had a fiduciary duty to disclose this to them but failed to do so. O’Tooles claim that had they been informed by Board of this possible statutory change, they would have waited to withdraw their contribution and would have received an additional $14,000, representing the contributions made on their, behalf by their state employers.

[¶7.] On appeal, O’Tooles argue that the circuit court erred in applying a “clearly erroneous” standard to Board’s findings and that Board breached its fiduciary duty in failing to provide information about a potential change in plan benefits to O’Tooles. Board argues that there is no remedy available for the O’Tooles as there is no provision in state law to make the payment requested by O’Tooles.

[¶ 8.] On close review of the record, we conclude the issue before us is essentially jurisdictional. Under the facts of this case, did the Board have the authority, and thus jurisdiction, to give a refund to O’Tooles based on their claim of breach of fiduciary duty? We conclude that it did not.

STANDARD OF REVIEW

[¶ 9.] The Court reviews agency findings in the same manner required of the circuit court when reviewing a decision from an administrative agency. Associated Sch. Bds. v. Hughes County, 2002 SD 41, ¶ 8, 643 N.W.2d 417. See SDCL 1-26-36. This Court reviews findings of fact under the clearly erroneous standard, whereas questions of law are reviewed under the de novo standard. In re Dorsey & Whitney Trust Co. LLC, 2001 SD 35 ¶ 5, 623 N.W.2d 468, 471 (citing Permann v. Department of Labor, 411 N.W.2d 113, 115-117 (S.D.1987)). The issue on review is a question of law, upon which we apply a de novo standard of review. In re Estate of Galada, 1999 SD 21, ¶ 8, 589 N.W.2d 221, 222, see also Kroupa v. Kroupa, 574 N.W.2d 208, 210 (S.D.1998).

ANALYSIS AND DECISION

[¶ 10.] First, did Board have authority to consider O’Tooles’ request for a refund of employer contributions? We conclude that it did.

In administrative law the term jurisdiction has three aspects: (1) personal jurisdiction, referring to the agency’s authority over the parties and intervenors involved in the proceedings; (2) subject matter jurisdiction, referring to the agency’s power to hear and determine the causes of a general class of cases to which a particular case belongs; and (3) the agency’s scope of authority under statute.

2 AmJur 2d Administrative Law § 274 (1994) (internal citations omitted). Board has authority, under SDCL 3-12-56 to SDCL 3-12-58, to consider and decide requests for refunds. O’Tooles’ request was fully within the scope of the administrator’s statutory authority to make a determination.

[¶ 11.] Second, did Board have authority to grant O’Tooles’ request for a refund based on a claim of breach of fiduciary duty? We conclude that it did not.

[¶ 12.] It is undisputed that at the time O’Tooles requested a refund, the Board stood in a fiduciary relationship with them. SDCL 3-12-47(33). As a fiduciary, Board had a duty to act in the highest good faith and to refrain from obtaining any undue advantage over members. Ward v. Lange, 1996 SD 113, ¶ 15, 553 N.W.2d 246, 251 (1996). In dealing with a member, Board had a duty to act primarily for the benefit of the member.

[¶ 13.] When a member’s request can be decided by Board in one of several ways, each authorized by statute, Board’s decision must be consistent with its fiduciary duty to that member. If one decision would be consistent with Board’s fiduciary duties but a second decision would not be, and Board makes the second decision, it is proper for the circuit court, on appeal, to review Board’s decision in light of Board’s fiduciary duty to the member.

[¶ 14.] However, when a member’s request can only be decided by Board in one way under the statute, the question of whether the Board’s decision is consistent with its fiduciary duties to that member does not arise as a matter for Board consideration. Neither Board nor the circuit court can consider a claim of breach of fiduciary duty as a basis for granting a refund if granting that refund is prohibited by statute. Thus, even if O’Tooles had convinced Board, or the circuit court, that Board had breached its fiduciary duty, the remedy sought by the O’Tooles, a refund of the employer contributions, would still be prohibited by statute and beyond the authority of Board to grant.

[¶ 15.] The Retirement System Board of Trustees has the power to make determinations in controversies, but is limited by the parameters given in state law. The general rule is that administrative agencies have only such adjudicatory jurisdiction as is conferred upon them by statute. Johnson v. Kolman, 412 N.W.2d 109, 112 (S.D.1987) (citing Springville Com. Sch. Dist. v. Iowa Dept. of Pub. Inst., 252 Iowa 907, 109 N.W.2d 213 (1961); Montana Bd. of Nat. Res. & Con. v. Montana Power Co., 166 Mont. 522, 536 P.2d 758 (1975); 2 AmJur2d Administrative Law § 328). Furthermore, “[an administrative agency] may not acquire jurisdiction by estoppel or consent, and, where it acts without jurisdiction, its orders are void.” Montana Bd. of Nat. Res. & Con., 536 P.2d at 762 (quoting 73 CJS Public Administrative Bodies and Procedures § 116). See also Pickering v. Illinois Human Rights Com’n, 146 Ill.App.3d 340, 99 Ill.Dec. 885, 496 N.E.2d 746 (1986); and Powell v. Khodari-Intergreen Co., 303 N.W.2d 171 (Iowa 1981).

An agency has only such power as expressly or by necessary implication is granted by legislative enactment; agency may not increase its own jurisdiction and, as a creature of statute, has no common-law jurisdiction nor inherent power such as might reside in a court of general jurisdiction.

Lee v. Div. of Fla. Land Sales & Condominiums, 474 So.2d 282, 284 (Fla.App. 5 Dist.1985).

[¶ 16.] Under the facts of this case, Board did not have several alternatives from which to decide O’Tooles’ request for a refund of employer contributions. It had only one lawful option. It is undisputed that O’Tooles were former members of the system who had withdrawn their contributions from the system before July 1, 1998. Given the provisions of SDCL 3-12-77.4, Board was precluded, by statute, from granting O’Tooles a refund. Thus there was no basis for the Board, or the circuit court, to consider if a possible breach of fiduciary duty by Board mandated one decision, granting a refund, over another decision, not granting a refund. The only decision Board could properly make was to deny the refund, even if a breach of fiduciary duty had occurred. The fact that O’Tooles may or may not have a valid claim of breach of fiduciary duty does not alter this conclusion nor does it confer on Board authority denied by statute.

[¶ 17.] We are also mindful that this Court has long recognized a breach of fiduciary duty as a tort. Hoffman v. Louis Dreyfus Corp., 435 N.W.2d 211, 214 (S.D.1989) (internal citations omitted). Tort claims are properly brought in the circuit court, not before administrative agencies. The statutory authority given to an administrative agency to conduct hearings does not extend to deciding contested tort allegations leveled against the agency. Board had no statutory authority, and thus no jurisdiction, to consider or provide a monetary remedy based on a claim of tort damages. SDCL 3-12-72.1, and -77.4. “The power to award damages for a tort rests with the courts and is strictly a judicial function.” Pounds v. Denison, 115 Idaho 381, 766 P.2d 1262, 1266 (App.1988) (citing Youst v. Longo, 43 Cal.3d 64, 233 Cal.Rptr. 294, 729 P.2d 728 (1987)).

[¶ 18.] Finally, it is essential not to confuse the distinction between damages awarded by a circuit court and a refund made by Board. The approach urged by O’Tooles, to allow Board and circuit court to consider a claim of breach of fiduciary duty as a reason to give a refund even when Board has no authority to give a refund, would have us blur that distinction. This we are unwilling to do. The breach of a fiduciary duty, while the basis for the award of damages in circuit court, is not the basis for a refund of employer contributions by Board.

[¶ 19.] Board properly heard and denied O’Tooles claim for a refund of employer contribution based on the provisions of SDCL 3-12-77.4. The judgment of the circuit court, upholding Board’s ruling on this basis, is affirmed.

[¶ 20.] GILBERTSON, Chief Justice, and KONENKAMP, Justice, concur.

[¶ 21.] SABERS, Justice, and GORS, Acting Justice, dissent.

[¶ 22.] LOVRIEN, Circuit Judge, for AMUNDSON, Justice, disqualified.

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

SABERS, Justice

(dissenting).

[¶ 24.] The majority opinion states that “[i]t is undisputed that at the time O’Tooles requested a refund, the Board stood in a fiduciary relationship with them.” However, the majority opinion concludes that the O’Tooles do not have a claim for breach of fiduciary duty. The majority opinion states that “[n]either Board nor the circuit court can consider a claim of breach of fiduciary duty as a basis for granting a refund if granting that refund is prohibited by statute.”

[¶ 25.] The majority opinion misses the point. The question is not whether Board had the power to grant O’Tooles’ request for a refund, but whether, under the fiduciary duty imposed by SDCL 3-12-47(33), it had a duty to provide O’Tooles with notice of the change in the benefit distribution system.

[¶ 26.] SDCL 3-12-47(33) controls and provides as follows:

“Fiduciary,” any person who exercises any discretionary authority or control over the management of the system or the management or disposition of its assets, renders investment advice for a fee or other compensation, direct or indirect, or has any authority or responsibility to do so, or has any discretionary authority or responsibility in the administration of the system[.]

[¶ 27.] This Court has stated:

A fiduciary relationship is founded on a “peculiar confidence” and trust placed by one individual in the integrity and faithfulness of another. When such relationship exists, the fiduciary has a “duty to act primarily for the benefit” of the other. “Generally, in a fiduciary relationship, the property, interest or authority of the other is placed in the charge of the fiduciary.” South Dakota law reflects “the traditional view that fiduciary duties are not inherent in normal arm’s-length business relationships, and arise only when one undertakes to act primarily for another’s benefit. The law will imply such duties only where one party to a relationship is unable to fully protect its interests and the unprotected party has placed its trust and confidence in the other.” We recognize no “invariable rule” for ascertaining a fiduciary relationship, “but it is manifest in all the decisions that there must be not only confidence of the one in the other, but there must exist a certain inequality, dependence, weakness of age, of mental strength, business intelligence, knowledge of the facts involved, or other conditions, giving to one advantage over the other.”

Ward v. Lange, 1996 SD 113, ¶ 12, 553 N.W.2d 246, 250 (citing High Plains Genetics Research, Inc. v. JK Mill-Iron Ranch, 535 N.W.2d 839, 842 (S.D.1995)) (quoting Garrett v. BankWest, Inc., 459 N.W.2d 833, 839 (S.D.1990)) (additional citations omitted) (emphasis added).

[¶ 28.] “One who stands in a confidential or fiduciary relation to the other party to a transaction must disclose material facts.” Buxcel v. First Fidelity Bank, 1999 SD 126, ¶ 14, 601 N.W.2d 593, 596-97 (citation omitted) (emphasis added). Fiduciaries also have a duty to the other party of “utmost good faith, integrity and loyalty.” See, e.g., Dinsmore v. Piper Jaffray, Inc., 1999 SD 56, ¶ 18, 593 N.W.2d 41, 46 (holding that some parties, because of their superior knowledge and training in the area, owe a fiduciary duty to the other party of “utmost good faith, integrity and loyalty”); Hurney v. Locke, 308 N.W.2d 764, 768 (S.D.1981) (same).

[¶ 29.] In this case, Board had a duty, both under SDCL 3-12-47(33) and this Court’s caselaw, to disclose material facts regarding potential changes in benefit portability. Board had a duty to provide O’Tooles with enough information to allow them to make an informed decision.

[¶ 30.] Board began considering the portable retirement option in April 1997. By September 1997, Board was seriously deliberating the feasibility of the option. O’Tooles contacted SDRS in October 1997 and were informed they could receive a refund of only their contributions to the fund. They were not informed of any potential changes. O’Tooles received refund checks in November 1997, only nine days before Board voted to change the refund process.

[¶ 31.] Board admits that it was not SDRS policy to inform members of potential retirement benefit changes until after a Board vote. This Court’s caselaw, however, mandates disclosure of material facts. Buxcel, 1999 SD 126 at ¶ 14, 601 N.W.2d at 596-97. Under these circumstances, Board had superior knowledge of the facts. Had O’Tooles known of the proposed changes in the system, they would not have withdrawn their contributions from the system at that time. But because Board failed to disclose material facts about the potential change in portability, O’Tooles never had any option. Board failed in its “duty to act primarily for the benefit” of O’Tooles and other SDRS members.

[¶ 32.] Therefore, I would overturn the decision of the Board and trial court.

[¶ 33.] GORS, Acting Justice, joins this dissent.

      . SDCL 3-12-77.4 provides:
      No member or former member of the system who has withdrawn contributions from the system prior to July 1, 1998 may receive any additional refund under the provisions of§§ 3-12-47 to 3-12-143.

      . SDCL 3-12-56. Applications for membership for new or additional benefits, credited service, or benefit payments which may be granted by the board of trustees shall be made to the administrator on forms approved by the board.
      SDCL 3-12-57. Any applications which on their face appear valid and to which the applicant is obviously entitled shall be approved by the administrator. If the administrator has any reason to question an application he shall forward it to the board of trustees who shall afford the applicant an opportunity for hearing upon reasonable notice. Action taken by the board on applications shall be treated as a contested case with right of review authorized by chapter 1-26.
      SDCL 3-12-58. The board of trustees may adopt such rules as may be necessary to establish uniform procedures for the administration of the system and to insure uniformity of application of the provisions of this chapter. Such rules may be adopted in the following areas:
      (1) Membership and class of membership;
      (2) Contributions and the collection thereof;
      (3) Criteria and procedures for the determination of applications for, and payment of disability allowances;
      (4) Procedure for applications for benefits and the payment of benefits;
      (5) Election of trustees; and
      (6) Procedure for the conduct of meetings of the board.

        The rules shall be adopted pursuant to chapter 1-26 and shall be in accordance with the provisions of this chapter.

      . SDCL 3-12-72.1. No part of the fund created by this chapter may be used for any purpose other than for the exclusive benefit of members and their beneficiaries and payment of reasonable administrative expenses of the system. No participating unit may receive any amounts from the fund except such amounts which may remain after the satisfaction of all liabilities of the system to its members.

      . Since we do not need to decide the issue of whether O'Tooles have a valid claim for breach of fiduciary duty, we express no opinion on that issue.


source: Caselaw Access Project

author: SABERS, Justice (on reassignment). GILBERTSON, Chief Justice

license: Public Domain

text:
    2002 SD 78
    Heather HATHAWAY, f/k/a Heather Bergheim, Plaintiff and Appellee, v. Jody M. BERGHEIM, Defendant and Appellant.
    No. 22020.
    Supreme Court of South Dakota.
    Considered on Briefs Peb. 11, 2002.
    Reassigned May 22, 2002.
    Decided July 2, 2002.

      John S. Theeler, Trudy A. Morgan of Morgan, Theeler, Wheeler, Cogley & Petersen, Mitchell, South Dakota, Attorneys for plaintiff and appellee.
    Wilson M. Kleibacker of Lammers, Lammers & Kleibacker, Madison, South Dakota, Attorneys for defendant and appellant.
   SABERS, Justice (on reassignment).

[¶ 1.] Jody Bergheim filed a motion seeking custody of his eight-year-old son, Christian. The trial court denied the motion, determining that Christian should remain with his mother, Heather Hathaway. Jody appeals and we affirm.

FACTS

[¶ 2.] Heather and Jody grew up in Madison, met in high school, and married in 1990. He farmed and worked for a livestock auction business. She worked in a grocery store while attending college.

[¶ 3.] Christian was born May 13, 1992. The parties separated in October 1992 because of financial difficulties. Their divorce became final on March 9, 1993, and the parties received joint custody of Christian.

[¶ 4.] Since the divorce, Jody, whose current income is over $40,000, has paid $105 per month for Christian’s support. Heather worked several jobs to support herself and Christian, continued to attend college, and was Christian’s primary caregiver. Jody has always been faithful about visitation and fully involved in Christian’s activities, school and church.

[¶ 5.] On February 12, 1994, Heather married Stephen McComish. Heather and Stephen’s son, Michael, was born on September 6, 1994. Because of Stephen’s absence, the two divorced on March 20, 1996. Heather was awarded actual physical custody of Michael.

[¶ 6.] In the spring of 1998, Heather received her bachelor of science degree in information systems. On August 13, 1998, she married Brent Hathaway. It was the third marriage for both. Heather, who had lived in Madison since 1979, and the boys moved to Brent’s home by Chester, South Dakota. Heather worked for the Harrisburg School District while Brent continued selling cars in Madison.

[¶ 7.] On July 1, 1999, Heather became the information systems coordinator for Mitchell Technical Institute (MTI). Her salary increased by $8,000 and she considered it a career advancement. After one year at MTI, Heather and Brent decided to move to Mitchell and scheduled the move for summer 2000. They believed the family would benefit from eliminating two commutes and living and working in the same town where the children attended school.

[¶ 8.] Because of the move, Heather allowed Jody to have Christian for the entire summer rather than the four weeks allotted in the divorce decree. Michael spent the summer with Stephen. The boys’ contact with each other was minimal. Each did well.

[¶ 9.] Christian and Michael returned to Heather’s care when school started in Mitchell. Jody and Stephen filed motions for change of custody. Each expressed the same concerns. They believed Heather provided an unstable environment for the children because of her many moves and jobs, her relationships with many men and what they considered to be her unstable third marriage.

[¶ 10.] Jody and Stephen’s motions were tried in one proceeding. Dr. Andre B. Clayborne, a licensed professional counsel- or, prepared custody home study evaluations. He concluded that Michael should remain with Heather. He noted that: “Michael reported having a very close relationship with his brother [Christian.] Indeed, according to Michael, he and [Christian] share a lot together and he really enjoys being with his brother.”

[¶ 11.] Christian told Dr. Clayborne that he wanted to live with Jody. In recommending that primary custody of Christian be awarded to Jody, Dr. Clayborne noted that while both parents were effective, Jody offered more stability and involvement. He believed Heather and Jody would cooperate in allowing substantial contact between Michael and Christian.

[¶ 12.] The trial court found that Heather, as primary caretaker, provided appropriate education, recreation, care, parental love, affection and guidance. It found that Christian and Michael have a “closely bonded sibling relationship.” It also found that Jody demonstrated a strong relationship with Christian and a stable lifestyle. Of the three parents involved, the court found that Jody was the best, followed by Heather. Stephen was “the worst.”

[¶ 13.] The trial court concluded that, while it was in the best interests of Christian individually to be with Jody, it was in his and Michael’s best interests to remain with Heather.

STANDARD OF REVIEW

[¶ 14.] “The primary determination in a custody dispute is to ascertain the best interest of the child.” Price v. Price, 2000 SD 64, ¶ 18, 611 N.W.2d 425, 430 (citing Fuerstenberg v. Fuerstenberg, 1999 SD 35, ¶ 22, 591 N.W.2d 798, 806 (citations omitted)). “Trial courts possess broad discretion in deciding the best interests of a child; their decisions will only be disturbed upon a finding of abuse of discretion.” Fuerstenberg, 1999 SD 35 at ¶ 22, 591 N.W.2d at 807 (citations omitted).

[¶ 15.] WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING JODY’S MOTION FOR CHANGE OF CUSTODY.

[¶ 16.] Jody argues that the trial court abused its discretion in denying his motion for change of custody because it was in the best interests of Christian to be with him. He argues that the trial court’s finding that it was in the best interests of Christian individually to be with him, should override the trial court’s finding that it was in the best interests of both Christian and Michael to remain with Heather. He argues that the trial court allowed the rule regarding the separation of siblings to override Christian’s best interests.

[¶ 17.] The trial court concluded in part:

The [c]ourt determines that it is in Christian’s, individually, best interest that custody be changed to his father Jody Bergheim, but that [it] is in the best interest of Michael McComish, individually, to remain with his mother[,] Heather Hathaway.
The [c]ourt determines that there are no compelling reasons to separate the siblings, Christian Richard Bergheim and Michael Thomas McComish. Therefore, it is in the best interest of both children as siblings to remain in the custody of their mother, Heather Hathaway.

[¶ 18.] When it addressed the parties, the court explained:

I believe largely, like Mr. Clayborne did, that it’s in the best interests of Christian to be with his father. I believe that it’s in the best interests of Michael to be with his mother. I believe that it is in the best interests of Michael to have Christian living with him. We have a clear conflict between what is in Michael’s best interests to have Christian [and] what is Christian’s best interests to have his father. That’s the reason why South Dakota put in the provision that there has to be compelling reasons to separate children and it still is in the best interests of the children. I weigh the best interests of Michael and Christian and believe that Christian should remain with his mother, and that Michael should remain with his mother. I do that quite hesitantly because I do believe it is in the best interests of Christian to be with his father. I think the loss of Michael would be significant but not damaging. I believe the loss to Michael of Christian would be damaging to Michael. The one thing that those two children have is each other. And so the [c]ourt will order that the children remain in the custody of their mother.

[¶ 19.] In determining the best interests of a child, the court must consider the child’s “temporal, mental and moral welfare.” SDCL 25-4--45; Fuerstenberg, 1999 SD 35 at ¶ 22, 591 N.W.2d at 806 (citations omitted). The trial court may consider these factors in determining which parent should have primary care of the child: “(1) parental fitness; (2) stability; (3) primary caretaker; (4) child’s preference; (5) harmful parental misconduct; (6) separation of siblings; and (7) substantial change in circumstances.” Price, 2000 SD 64 at ¶ 18, 611 N.W.2d at 430. These factors serve as guidelines and the trial court need not address all of them. The trial court’s decision regarding custody, however, “should be ‘balanced and methodical’ and should be based on ‘the best interest of children and not the shortcomings of the custodial parent.’ ” Id. at ¶ 56 (citing Fuerstenberg, 1999 SD 35 at ¶ 35, 591 N.W.2d at 810) (internal citations omitted).

[¶ 20.] The trial court considered each of these factors and determined what was in the best interests of Christian. It found that Heather was a fit parent and Christian’s primary caretaker. It found that there were no compelling reasons to separate the siblings, Christian and Michael, and that, therefore, it was in the best interests of both children as siblings to remain in the custody of their mother. In other words, even though it might have been in the best interests of Christian, individually, to be with his father, when all things are considered, it was in his best interests to be with his brother and his mother, and not his father.

[¶ 21.] The trial court did make a determination of Christian’s best interests. It found that in these circumstances it was in the best interests of both children as siblings to remain in the custody of their mother. There is no real need to unsettle the settled custody situation and the settled custody law.

[¶ 22.] Jody has failed to show that the trial court abused its discretion in determining that custody of Christian should remain with Heather. Therefore, we affirm.

[¶ 23.] AMUNDSON and KONENKAMP, Justices, concur.

[¶24.] GILBERTSON, Chief Justice, and GORS, Acting Justice, dissent.

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

GILBERTSON, Chief Justice

(dissenting).

[¶ 26.] I respectfully dissent. The best interests of the child as an individual person has been, and should continue to be, the standard by which child custody determinations are to be made by a trial court.

[¶ 27.] The trial court concluded that it was in Christian’s individual best interest to change his custody to his father, Jody. It also concluded that there was no compelling reason to separate Christian from his half-brother Michael. As a result, it ultimately concluded that it was in the best interests of both siblings to remain in their mother’s custody. The. trial court’s two conclusions regarding Christian’s best interests are inconsistent with each other. Accordingly, the case should be reversed and remanded.

[¶ 28.] Court involvement and supervision in child custody determination dates back to our very first territorial code:

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.

1877 Dakota Territorial Civil Code § 72 (emphasis added). Although the specific language of the statute placed no express limits on judicial discretion, the earliest cases on this issue clearly declare that the best interests of the child are controlling as “[t]he rights of either or both parents are subservient to- those of the child.” Wallace v. Wallace, 26 S.D. 229, 235, 128 N.W. 143, 145 (1910).

In a divorce cáse the children are, and continue to be virtually wards of the court. It is the welfare of the children that the court is concerned with, not the wishes of either of the parents[.]

Houghton v. Houghton, 37 S.D. 184-89, 157 N.W. 316, 317 (1916) (internal citation omitted).

[¶ 29.] Beginning with Mayer v. Mayer, 397 N.W.2d 638, 642 (S.D.1986), this Court declared, “[i]t is universally recognized that in the absence of compelling reasons to the contrary, the best interest of siblings require that they be raised together whenever possible.” See also Adam v. Adam, 436 N.W.2d 266 (S.D.1989); Olson v. Olson, 438 N.W.2d 544 (S.D.1989); Schmidt v. Schmidt, 444 N.W.2d 367 (S.D.1989). This doctrine was epcpanded to include half-siblings. Friendshuh v. Headlough, 504 N.W.2d 104 (S.D.1993). Finally, in Mitzel v. Black Cloud-Walberg, 511 N.W.2d 816 (S.D.1994), in a 3-2 decision issued on February 2, 1994, this Court held that the no split siblings rule had been violated because while the trial court found that “unique” circumstances existed for splitting half-siblings, “'[u]nique’ does not equate with ‘compelling.’ ” Mitzel, 511 N.W.2d at 818.

[¶ 30.] It is not mere coincidence that the 1994 Legislature amended SDCL 25-4-45 for the first time since its enactment back in 1877.

In such 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. In awarding the custody of a child, the court shall be guided by consideration of what appears to be for the best interests of the child in respect to the child’s temporal and mental and moral welfare. If a child is of a sufficient age to form an intelligent preference, the court may consider that preference in determining the question. As between parents adversely claiming the custody, neither parent may be given preference over the other in determining custody.

1994 SDSessL ch 192 (emphasis added). Relevant to this case are three important changes brought forth by this amendment. First, the best interests of the child standard is now codified. Second, the word “children” in the plural which was previously used in this code section, now becomes “child” in the singular. Third, there is no codification of the “compelling interests” rule that became ever more pervasive since our 1986 Mayer decision. Thus, this is a clear legislative mandate that a determination of the best interests of a child is to be based solely on that child’s interests alone and not blended into what may or may not be the best interests of other children of the marriage or relationships.

[¶ 31.] “The primary determination in a custody dispute is to ascertain the best interest of the child.” Price v. Price, 2000 SD 64, ¶ 18, 611 N.W.2d 425, 430. “Trial courts possess broad discretion in deciding the best interests of a child; their decisions will only be disturbed upon a finding of abuse of discretion.” Fuerstenberg v. Fuerstenberg, 1999 SD 35, ¶ 22, 591 N.W.2d 798, 807.

[¶ 32.] “Although keeping siblings together is generally considered to be the better practice, the effect of separating siblings from each other is just one of several factors courts consider in determining the best interests of the children.” Pace v. Pace, 22 P.3d 861, 867-68 (Wyo.2001). These factors include: 1) parental fitness; 2) stability; 3) primary caretaker; 4) child’s preference; 5) harmful parental misconduct; 6) separation of siblings; and 7) change in circumstances, substantial or otherwise. Price, 2000 SD 64 at ¶ 18, 611 N.W.2d at 430. Thus, the general rule against splitting siblings cannot be elevated above all factors, but must be weighed in conjunction with them. Crouse v. Crouse, 552 N.W.2d 413, 419 (S.D.1996). “Keeping siblings together is a splendid aspiration, but it cannot override the controlling questions of their best interests.” Id.

[¶ 33.] Here the trial court concluded that there had been a substantial change in circumstances and that Christian’s best interests were served by awarding custody to his father. It then concluded that it was in the best interests of both half-siblings to remain with their mother. It, in effect, used the general rule against splitting custody to trump what it determined was Christian’s best interest. If it was, in fact, in Christian’s best interest to be in his father’s care, that provides the compelling reason to split custody. As merely one factor in determining a child’s best interest, the general rule against splitting siblings, “must yield to the paramount principle that the best interests of each individual child must be the determining factor in custody decisions.” Haag v. Haag, 336 Pa.Super. 491, 485 A.2d 1189, 1193 (1984).

[¶ 34.] A rule adopted with good intentions to be a guide to trial courts as to what constitutes the best interests of an individual child has now taken on a life of its own. Rather than the flexible analytical tool it was intended to be, it now has become a wooden barrier that must be vaulted before the best interests of the child can be addressed.

[¶ 35.] When applied to today’s world of “his kids, her kids, their kids,” either in and out of a marriage setting, it becomes even more unworkable. “Importantly, the traditional ‘Cleaver’ family is becoming less and less common in contemporary society. As society changes, some of our laws become antiquated and fail to provide just results.” Meldrum v. Novotny, 2002 SD 15, ¶ 66, 640 N.W.2d 460, 473 (Amundson, J., concurring specially).

[¶ 36.]’ We will never get a clearer example of the negative effect this rule now exercises on the best interests of the child than in this case. The trial court found:

The [c]ourt determines that it is in Christian’s, individually, best interest that custody be changed to his father Jody Bergheim, but that [it] is in the best interest of Michael McComish, individually, to remain with his mother, Heather Hathaway.
The [c]ourt determines that there are no compelling reasons to separate the siblings, Christian Richard Bergheim and Michael Thomas McComish. Therefore, it is in the best interest of both children as siblings to remain in the custody of their mother, Heather Hathaway.

[¶ 37.] This “rule” now violates the directions of SDCL 25-4-45 and its standard of best interests of the child. It is the best interests of Christian and Christian alone that control where he should reside, not Christian and “his kids, her kids and their kids.” Admittedly, the current state of the “no split siblings” rule can free the trial courts from having to make difficult custody decisions that require the wisdom of Solomon. It is certainly much easier to determine: 1) are there siblings or half-siblings and, if so, 2) are there compelling reasons to split them? However, as the children are wards of the court, the goal should not be bright line rules, but rather a consistent, although at times difficult, determination of what constitutes the best interests of the child.

[¶ 38.] In this case, the order appealed from should be reversed and the case remanded for a redetermination of Christian’s best interest, giving the separation of siblings’ issue its proper weight and no more. For the above reasons I respectfully dissent.

[¶ 39.] GORS, Acting Justice, joins this dissent.


author: PER CURIAM.

text:
    2002 SD 76
    STATE of South Dakota, Plaintiff and Appellee, v. Mark WEAVER, Defendant and Appellant.
    No. 21889.
    Supreme Court of South Dakota.
    Considered on Briefs Nov. 13, 2001.
    Decided July 2, 2002.

      Mark Barnett, Attorney General, John M. Strohman, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
    Mark S. Falk, Rapid City, South Dakota, Attorney for defendant and appellant.
   PER CURIAM.

[¶ 1.] Mark S. Weaver appeals from a judgment of conviction of simple assault. He claims the trial court erred in denying his motion for a new trial and in allowing expert witness testimony, and further claims that his sentence unlawfully exceeds the maximum statutory limits. We affirm the judgment of conviction, but remand for correction of Weaver’s sentence.

FACTS AND PROCEDURE

[¶ 2.] Weaver met Maria Waichler in July 1999 and they began a romantic relationship. However, on January 21, 2000, Waichler obtained a protection order in Meade County against Weaver. The following month, despite the still-valid protection order, Waichler moved back into Weaver’s home.

[¶ 3.] On March 17, 2000, Waichler claimed Weaver wanted her to go out for an evening on the town with him but that she refused. Around 2:00 a.m., he returned home intoxicated, put her in handcuffs and assaulted her. She begged him to take her to the hospital in Rapid City for treatment of her injuries resulting from this assault. There she confided in a nurse who called the pólice. Weaver spoke with the police at the hospital, giving them a false name. He was arrested and charged with false personation and violation of the protection order.

[¶ 4.] The false personation charge was later dismissed and Weaver pled guilty in Pennington County to violation of the protection order. He was sentenced to nine months in jail, with six months suspended. He was also on probation for a previous crime at this time and his probation was revoked.

[¶ 5.] On June 16, Weaver was indicted and charged in Meade County with violation of the protection order, two alternate charges of kidnapping, and aggravated assault or, alternatively, simple assault. These charges stemmed from Weaver’s March 17, 2000 assault on Waichler. Following a jury trial, Weaver was convicted of violation of the protection order and simple assault and acquitted of all other charges. He was sentenced and a judgment of conviction entered.

[¶ 6.] Weaver filed a motion for new trial. The court granted the motion for a new trial on the protection order conviction, but denied the motion regarding the assault conviction. Weaver then filed a motion to dismiss the conviction for violation of the protection order based on double jeopardy protections in the federal and state constitutions as he had earlier pled guilty to this same charge in Pennington County. The Meade County trial court dismissed the conviction for violation of the protection order and vacated the judgment. An amended judgment was entered on the simple assault conviction. Weaver was sentenced to serve one year in jail, to be served consecutively to the Pennington County sentence, with one year unsupervised probation and was ordered to pay court costs and restitution. This is the judgment from which Weaver now appeals.

ANALYSIS AND DECISION

ISSUE ONE

[¶ 7.] Whether the trial court erred in denying Weaver’s motion for new trial on the simple assault conviction based on double jeopardy concerns.

[¶ 8.] Weaver claims he was prosecuted, convicted and sentenced twice, once in Pennington County and once in Meade County, for the same assault on Waichler on March 17, 2000 and that this constitutes a violation of his double jeopardy protections under the federal and state constitutions. Weaver pled guilty to violation of a protection order in one county and was convicted of simple assault in another county. These are two separate crimes, containing separate elements, albeit presumably arising from the same conduct by Weaver. “Established double jeopardy jurisprudence confirms that the Legislature may impose multiple punishments for the same conduct without violating the Double Jeopardy Clause if it clearly expresses its intent to do so.” State v. Dillon, 2001 SD 97, ¶ 14, 632 N.W.2d 37, 43 (citing Garrett v. United States, 471 U.S. 773, 778, 105 S.Ct. 2407, 2411, 85 L.Ed.2d 764 (1985)).

[¶ 9.] Violation of a protection order is prohibited by SDCL 25-10-13. That statute provides:

If a temporary protection order or a protection order is granted pursuant to this chapter, and the respondent or person to be restrained knows of the order, violation of the order is a Class 1 misdemeanor. If any violation of this section constitutes an assault pursuant to § 22-18-1.1 [Aggravated Assault], the violation is a Class 6 felony. Any 'proceeding under this chapter is in addition to other civil or criminal remedies.

(emphasis added). The plain language of this statute, emphasized here, clearly expresses the Legislature’s intent to impose multiple punishments for the same conduct as it provides that a proceeding for violation of a protection order supplements other criminal or civil remedies against the perpetrator. Weaver was also convicted of violation of SDCL 22-18-1(2), prohibiting the crime of simple assault. In pertinent part, that statute provides:

Any person who:
(2) Recklessly causes bodily injury to another;
... is guilty of simple assault.
Simple assault is a Class 1 misdemean- or. However, if the defendant has been convicted of, or entered a plea of guilty to, two or more violations of § 22-18-1, 22-18-1.1, 22-18-26, or 22-18-29 within five years of committing the current offense, the defendant is guilty of a Class 6 felony for any third or subsequent offense.

[¶ 10.] This Court most recently addressed double jeopardy protections under the federal and state constitutions in Dillon, 2001 SD 97 at ¶¶ 11-22, 632 N.W.2d at 42-47. Writing for a unanimous Court, Justice Konenkamp noted these constitutional protections “shield criminal defendants from both multiple prosecutions and multiple punishments for the same criminal offense if the Legislature did not intend to authorize multiple punishments in the same prosecution.” Id., 2001 SD 97 at ¶ 13, 632 N.W.2d at 43 (citing United States v. Dixon, 509 U.S. 688, 735, 113 S.Ct. 2849, 2876, 125 L.Ed.2d 556 (1993); State v. Augustine, 2000 SD 93, ¶ 11, 614 N.W.2d 796, 797) (emphasis added). We explained:

In Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932), the Supreme Court held that ‘where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not.’ See also Dixon, 509 U.S. at 696, 113 S.Ct. at 2856, 125 L.Ed.2d 556 (1993). Still, the Blockburger test is ‘a rule of statutory construction to help determine legislative intent’ and ⅛ not controlling when the legislative intent is clear from the face of the statute or the legislative history.’ Garrett [v. United States ], 471 U.S. [773,] 778-79, 105 S.Ct. [2407,] 2411, 85 L.Ed.2d 764 [ (1985) ] (citations omitted). Thus, multiple charges and punishments in a single prosecution will not violate double jeopardy if the Legislature plainly intended to impose cumulative punishments. [Missouri v.] Hunter, 459 U.S. [359,] 368-69, 103 S.Ct. [673,] 679, 74 L.Ed.2d 535 [ (1983) ].
‘[S]imply because two criminal statutes may be construed to proscribe the same conduct under the Blockburger test does not mean that the Double Jeopardy Clause precludes the imposition, in a single trial, of cumulative punishments pursuant to those statutes.’ Id. at 359, 103 S.Ct. 673. Courts cannot impose multiple punishments for different offenses arising out of the same conduct but the Legislature can. See Whalen v. United States, 445 U.S. 684, 695, 100 S.Ct. 1432, 1439, 63 L.Ed.2d 715 (1980).

Id., 2001 SD 97, at ¶ 14 and n. 4, 632 N.W.2d at 43-44 and n. 4 (emphasis added). “When legislative intent to impose multiple punishments is clear, double jeopardy is not violated and further inquiry into the statutory elements is unnecessary.” Id., 2001 SD 97 at ¶ 15, 632 N.W.2d at 44 (citing Hunter, 459 U.S. at 368-69, 103 S.Ct. at 679, 74 L.Ed.2d 535).

[¶ 11.] This appeal involves not only multiple punishments, but multiple prosecutions. As the Supreme Court and this Court have recognized, the constitutional protection against double jeopardy “protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.” North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969); State v. Cates, 2001 SD 99, ¶ 7, 632 N.W.2d 28, 33. Weaver claims violation based on the second type of government action.

[¶ 12.] In Brown v. Ohio, 432 U.S. 161, 168, 97 S.Ct. 2221, 2226-27, 53 L.Ed.2d 187 (1977), a case procedurally similar to the one before us, the Court reviewed a double jeopardy claim involving two prosecutions. Brown stole a vehicle in East Cleveland, Ohio and was caught driving it in Wick-liffe, Ohio. He was charged with joyriding in Wickliffe, pled guilty, and was sentenced to a fine and thirty days in jail. Upon his release from jail, he returned to East Cleveland to face charges of auto theft and joyriding, resulting from the same incident. Brown objected on grounds of “former jeopardy,” but pled guilty to the auto theft charge with the understanding that the trial court would consider his former jeopardy claim on a motion to withdraw his plea. Id., 432 U.S. at 163, 97 S.Ct. at 2224, 53 L.Ed.2d 187. Brown was not allowed to withdraw his plea and he appealed. Applying established double jeopardy analysis and examining the Ohio statutes, the Supreme Court reversed Brown’s conviction, holding that, joyriding was a lesser included offense of the crime of auto theft and did not require proof of an additional fact which the other did not. Under these facts, the Double Jeopardy Clause barred Brown’s second prosecution. The Court stated:

The Double Jeopardy Clause ‘protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.’ Where consecutive sentences are imposed at a single criminal trial, the role of the constitutional guarantee is limited to assuring that the court does not exceed its legislative authorization by imposing multiple punishments for the same offense. Where successive prosecutions are at stake, the guarantee serves ‘a constitutional policy of finality for the defendant’s benefit.’ That policy protects the accused from attempts to relitigate the facts underlying a prior acquittal, and from attempts to secure additional punishment after a prior conviction and sentence.

Id., 432 U.S. at 165-66, 97 S.Ct. at 2225, 53 L.Ed.2d 187 (internal citations omitted). The Court applied Blockburger as the established test to determine whether the same act or transaction constitutes a violation of two distinct statutory provisions, instructing that the test is “whether each provision requires proof of an additional fact that the other does not.... If each requires proof of a fact that the other does not, the Blockburger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes.... ” Id., 432 U.S. at 166, 97 S.Ct. at 2225-26, 53 L.Ed.2d 187 (quoting Iannelli v. United States, 420 U.S. 770, 785 n. 17, 95 S.Ct. 1284, 1294 n. 17, 43 L.Ed.2d 616 (1975)). See also Dixon, 509 U.S. at 696, 113 S.Ct. at 2856, 125 L.Ed.2d 556 (applying double jeopardy analysis and Blockburger to multiple prosecutions). In U.S. v. Bennett, 44 F.3d 1364 (8thCir.1995), the Eighth Circuit Court of Appeals applied the Blockburger double jeopardy analysis to multiple prosecutions and held:

Our ‘same offense’ analysis, however is unaffected by whether this case involves multiple punishments or successive prosecution. It is well settled that ‘if two offenses are the same under the Block-burger test for purposes of barring consecutive sentences at a single trial, they necessarily will be the same for purposes of barring successive prosecutions.’ Likewise, the opposite must also be true: if two offenses are not the same for purposes of barring multiple punishment, they necessarily will not be the same for purposes of barring successive prosecutions. This is so ‘because it is embarrassing to assert that the single term “same offence” ... has two different meanings — that what is [not] the same offense is yet ... the same offense.’

Id. at 1372, n. 7 (quoting Brown, supra and citing Dixon, supra).

[¶ 13.] Here, the two offenses are not the same and do not bar successive prosecution. Unlike the statutes applicable to Brown’s crime in Ohio, in Weaver’s case there is no lesser included offense situation. Legislative intent is made clear in the last sentence of SDCL 25-10-13: “Any proceeding under this chapter is in addition to other civil or criminal remedies.” (emphasis added). The proceeding against Weaver for violation of the protection order was in addition to the subsequent criminal prosecution against him for simple assault.

[¶ 14.] Under the Blockburger test, and as we recognized in Dillon, supra, further inquiry into the statutory elements is unnecessary where the legislature has clearly intended to impose multiple punishments. Garrett, 471 U.S. at 779, 105 S.Ct. at 2411, 85 L.Ed.2d 764; Hunter, 459 U.S. at 368, 103 S.Ct. at 679, 74 L.Ed.2d 535, Albernaz v. United States, 450 U.S. 333, 340, 101 S.Ct. 1137, 1143, 67 L.Ed.2d 275 (1981); Whalen, 445 U.S. at 691-92, 100 S.Ct. at 1437-38, 63 L.Ed.2d 715. The Garrett Court instructed that for double jeopardy purposes:

Where the same conduct violates two statutory provisions, the first step in the double jeopardy analysis is to determine whether the legislature — in this case Congress — intended that each violation be a separate offense.... We have recently indicated that the Blockburger rule is not controlling when the legislative intent is clear from the face of the statute or the legislature history.

471 U.S. at 778-79, 105 S.Ct. at 2411, 85 L.Ed.2d 764 (emphasis added). “Thus, when the Blockburger analysis arrives at a result contrary to the ‘language, structure, and legislative history’ of the statute, the ‘Blockburger presumption must of course yield to a plainly expressed contrary view on the part of the legislature.’ ” State v. Gill, 187 W.Va. 136, 416 S.E.2d 253, 259 (1992) (quoting Garrett, 471 U.S. at 779, 105 S.Ct. at 2412, 85 L.Ed.2d 764). We hold the legislature in this state has clearly expressed its intent in this regard and that the proceeding against Weaver for violation of the protection order is permissible in addition to a criminal proceeding for simple assault, without violating double jeopardy. However, as both parties proceeded directly into this second part of the recognized double jeopardy analysis, Blockburger’s “same elements” test will be applied to the facts in this case. As will be shown, Weaver’s argument also fails under this test.

[¶ 15.] Blockburger instructs that where the same act or transaction constitutes a violation of two distinct statutes, the Court must determine whether each statute requires proof of an additional fact that the other does not. “[I]f not, they are the ‘same offence’ and double jeopardy bars additional punishment and successive prosecution.” Dixon, 509 U.S. at 696, 113 S.Ct. at 2856, 125 L.Ed.2d 556. SDCL 25-10-13 requires a protection order to have been granted and the person-restrained to have knowledge of the order. Beyond that, the terms of the order control what constitutes a violation. The terms of the protection order in this case prohibited Weaver from being within 500 feet of Wai-chler, possessing any guns or knives,, or

committing any acts resulting in physical harm, bodily injury or attempting to cause physical harm or bodily injury, or from inflicting fear of imminent physical harm or bodily injury against family or household members, SDCL 25 — 10—1[.]

[¶ 16.] According to the terms of the protection order restraining Weaver, his violation was complete when he, with knowledge of the order, came within 500 feet of Waichler. He did not have to also “recklessly cause bodily injury” to her, a required element of simple assault. In fact, the complaint filed by the State charging him with violation of the order (and with false personation which was later dismissed) states:

COUNT I: That on or about the 17th day of March, 2000, in the County of Pennington, State of South Dakota, MARK S. WEAVER did commit the public offense of VIOLATION OF PROTECTION ORDER in that (s)he did then and there, knowing that a protection order had been granted pursuant to SDCL 25-10 restraining him/her from interfering with Maria Waichler, breach said order, in violation of SDCL 25-10-13[J

(emphasis added). The complaint does not charge Weaver with assault. The State needed only prove existence of the order, his knowledge of it, and his proximity to her. Similarly, the criminal offense of simple assault under SDCL 22-18-1(2) did not require the victim to be a member of Weaver’s household or family, nor would Weaver have been required to know of the existence of a protection order. Each crime, violation of the protection order and simple assault, was able to be committed without committing the other, separate criminal offense.

[¶ 17.] Weaver cites Dixon, 509 U.S. at 692, 113 S.Ct. at 2854, 125 L.Ed.2d 556, a consolidated case and plurality opinion of the Supreme Court, claiming the holding as it relates to defendant Foster is supporting authority for his argument. A careful reading of that case and comparison of the statutes and applicable facts shows otherwise. Analyzing Foster’s claims, the Dixon Court held:

The foregoing analysis [of Dixon’s claims under double jeopardy] obviously applies as well to Count I of the indictment against Foster, charging assault in violation of § 22-504, based on the same event that was the subject of his prior contempt conviction for violating the provision of the CPO forbidding him to commit simple assault under § 22-504. The subsequent prosecution for assault fails the Blockburger test, and is barred. The remaining four counts in Foster, assault with intent to kill (Count V; § 22-501) and threats to injure or kidnap (Counts II — IV; § 22-2307), are not barred under Blockburger. As to Count V: Foster’s conduct on May 21, 1988, was found to violate the Family Division’s order that he not ‘molest, assault, or in any manner threaten or physically abuse’ his wife. At the contempt hearing, the court stated that Ana Foster’s attorney, who prosecuted the contempt, would have to prove, first, knowledge of a CPO, and, second, a willful violation of one of its conditions, here simple assault as defined by the criminal code. On the basis of the same episode, Foster was then indicted for violation of § 22-501, which proscribes assault with intent to kill. Under governing law, that offense requires proof of specific intent to MU; simple assault does not.
Similarly, the contempt offense required proof of knowledge of the CPO, which assault with intent to kill does not. Applying the Blockburger elements test, the result is clear: These crimes were different offenses, and the subsequent prosecution did not violate the Double Jeopardy Clause.
Counts II, III, and IV of Foster’s indictment are likewise not barred. These charged Foster under § 22-2307 (forbidding anyone to ‘threate[n] ... to Mdnap any person or to injure the person of another or physically damage the property of any person’) for his alleged threats on three separate dates. Foster’s contempt prosecution included charges that, on the same dates, he violated the CPO provision ordering that he not ‘in any manner threaten’ Ana Foster. Conviction of the contempt required willful violation of the CPO— which conviction under § 22-2307 did not; and conviction under § 22-2307 required that the threat be a threat to kidnap, to inflict bodily injury, or to damage property — which conviction of the contempt (for violating the CPO provision that Foster not ‘in any manner threaten’) did not. Each offense therefore contained a separate element, and the Blockburger test for double jeopardy was not met.

Dixon, 509 U.S. at 700-03, 113 S.Ct. at 2858-59, 125 L.Ed.2d 556 (emphasis added) (footnotes and internal citations omitted).

[¶ 18.] The trial court made this distinction in its memorandum decision and order granting Weaver’s motion for a new trial on the violation of protection order conviction and denying his motion for a new trial on simple assault conviction. Therein, the court observed,

As stated above [citing the ‘in addition to’ language], SDCL 25-10-13 contemplates additional criminal penalties. The elements necessary to prove violation of the statute does not necessarily require proof of simple assault. Here, in fact, Defendant was charged with ‘Reckless Simple Assault’ (SDCL 22-18-1(2)) in Meade County. The protection order violation(s) require proof of additional facts. No matter how you slice it — the violation of a protection order, whether as a result of assault or otherwise, is neither the same offense or lesser-included offense of simple assault, or vice versa.

As previously noted, the trial court later amended its order to dismiss the Meade County judgment of conviction for violation of the protection order, with prejudice, based on double jeopardy as Weaver had previously pled guilty to violation of the protection order in Pennington County.

[¶ 19.] Weaver has failed to establish a double jeopardy violation regarding the subsequent prosecution for simple assault where he has failed to establish under Blockburger that the same elements are necessary to prove both simple assault and violation of the protection order. These crimes constitute different offenses and the subsequent prosecution did not violate Weaver’s double jeopardy protections. On this issue, the trial court is affirmed.

ISSUE TWO

[¶ 20.] Whether the trial court erred in allowing the State’s expert witness to testify on domestic abuse.

[¶ 21.] Weaver filed a pretrial motion, citing relevancy and the standards for admission of expert witnesses under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), to preclude the State’s expert witness, Carol Maicki, from testifying. Maicki testified at a pretrial Daubert hearing after which the trial court performed the balancing test under SDCL 19-12-3 (Rule 403) and applied the Dau-bert guidelines regarding expert witnesses. The court found Maicki’s proffered testimony would be relevant and more probative than prejudicial, and approved her to testify regarding domestic abuse, specifically the “cycle of violence” and “battered women’s syndrome.” However, she was not permitted to opine whether Waichler was a battered woman and the parties were prohibited from asking her hypothetical questions. Weaver claims Maicki’s testimony was not relevant and only offered to bolster Waichler’s credibility.

[¶22.] “Any evidence tending to connect an accused with the commission of a crime is relevant and probative.” State v. Bunger, 2001 SD 116, ¶ 10, 633 N.W.2d 606, 609 (citing State v. Anderson, 2000 SD 45, ¶ 97, 608 N.W.2d 644, 671). Weaver was on trial for assaulting his live-in girlfriend, Waichler. The record shows that after the protection order was in place in late January 2000, Weaver persuaded Wai-chler to try several times to get the court to rescind the order, which the court would not do. Waichler then recanted allegations of Weaver’s January assault on her. The State argued at the motion hearing that Carol Maicki was being offered as an expert witness to explain to a jury why Waichler would recant allegations of abuse and resume cohabitation with Weaver a month after obtaining a protection order against him. Certainly, this was relevant and probative evidence.

[¶ 23.] Weaver also claims Maicki’s testimony was only offered to bolster Wai-chler’s credibility. However, Maicki did not testify regarding Waichler’s credibility and she was not permitted to give her opinion whether Waichler was a battered woman or answer any hypothetical questions. No. evidence supports Weaver’s claim.

[¶ 24.] Finally, Weaver claims Maicki lacked reliability as an expert witness and therefore the trial court erred in allowing her to testify. A trial court has broad discretion in admitting expert testimony. Expert witness testimony is admitted if it “ “will assist the trier of fact to understand the evidence or to determine a fact in issue’ ” and if it “ ‘rests on a reliable foundation.’ ” State v. Guthrie, 2001 SD 61, ¶ 85, 627 N.W.2d 401 (quoting SDCL 19-15-2; Daubert, 509 U.S. at 597, 113 S.Ct. at 2799, 125 L.Ed.2d 469). However, “a trial judge must ensure that an expert’s testimony rests on both ‘a rehable foundation and is relevant to the task at hand.... [W]hen the trial court is ruling on the admissibility of an expert opinion, the trial court needs to exercise its gatek-eeping function.’ ” Rogen v. Monson, 2000 SD 51, ¶ 13, 609 N.W.2d 456 (quoting Kuper v. Lincoln-Union Electric Co., 1996 SD 145, ¶ 41, 557 N.W.2d 748, 760).

[¶ 25.] Daubert provides guidelines for courts to assess an expert witness, which we recently reviewed in Guthrie, 2001 SD 61 at ¶ 35, 627 N.W.2d at 416:

(1) whether the method is testable or falsifiable; (2) whether the method was subjected to peer review; (3) the known or potential error rate; (4) whether standards exist to control procedures for the method; (5) whether the method is generally accepted; (6) the relationship of the technique to methods that have been established as reliable; (7) the qualifications of the expert; and (8) the non-judicial uses to which the method has been put. See Daubert, 509 U.S. at 593-95, 113 S.Ct. at 2796-98, 125 L.Ed.2d 483-84. Daubert’s list of factors may not each apply to all experts in every case. Rogen v. Monson, 2000 SD 51, ¶ 28, 609 N.W.2d 456, 462-63 (Konenkamp, J. concurring)(citing Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141, 119 S.Ct. 1167, 1171, 143 L.Ed.2d 238 (1999)).

Weaver is critical of the trial court for not malting an “explicit consideration,” apparently meaning on the record, of the nonexclusive guidelines listed above. However, an express rendering of the trial court’s decisionmaking process is not required. See Argus Leader v. Miller, 2000 SD 63, ¶ 29, n. 16, 610 N.W.2d 76, 88, n. 16 (citing Morrison v. Kimmelman, 650 F.Supp. 801, 807 (D.N.J.1986)) (court’s specific finding is supported by the record and further explanation not required to uphold the order).

[¶ 26.] Maicki, with a bachelor’s degree in psychology, informed the court at the pretrial motion hearing that she had been working in the field of domestic abuse of women for the past twenty-five years. In that time she helped start the first rape crisis center which shortly thereafter became the first battered women’s shelter in Wyoming. She was appointed state administrator for the new domestic violence programs in Wyoming, a job she held for four years. She then moved to this state where she worked for the Coalition Against Domestic Violence and Sexual Assault as its state coordinator, a job she held for another four years. During all of this time she also helped on a volunteer basis at women’s shelters. She has been interim director of programs involving violence against women in Sturgis and Rapid City. She currently has a consulting business in this field and is writing a manual for seventy-seven domestic violence and rape coalitions across the nation, entitled Cultural Competency, which will help workers better communicate with Native American women. In 2000, she started a Native American women’s shelter, Standing Strong Woman House, in Rapid City. She has also published a manual for the State Department of Health in coordination with the Coalition Against Domestic Violence, entitled First Responder to Rape, to assist law enforcement, shelter workers, and prosecutors. She has lobbied in this state concerning this issue and, following election as state senator from Meade County (1991-92), helped pass two victims’ crime bills. She has provided public education and training and has been the recipient of such training. She testified to having worked, with thousands of women victims of domestic abuse in the past twenty-five years.

[¶ 27.] Maicki explained the concepts of “battered woman’s syndrome” and “cycle of violence.” Both concepts have been subjected to peer review, are not new concepts in the field of domestic abuse counseling and are accepted in the field. See State v. Burtzlaff, 493 N.W.2d 1 (S.D.1992) (pre-Daubert, two expert witnesses permitted to testify on “battered spouse syndrome”). Maicki stated she has testified in approximately fifty cases involving domestic abuse, in federal, state, military and tribal courts, since 1985. She has testified as an expert witness in this field at least three times previously in the Fourth Circuit.

[¶ 28.] The trial court did not abuse its discretion in approving Maicki as an expert witness with the above-noted parameters limiting her testimony. There is no claim by Weaver, or evidence in the record, that she testified beyond these limits. The trial court is affirmed on this issue.

ISSUE THREE

[¶ 29.] Whether Weaver’s sentence unlawfully exceeds the maximum statutory limits.

[¶ 30.] Weaver was sentenced to the maximum term of one year following his conviction for the crime of simple assault, a Class 1 misdemeanor. This sentence was ordered to be served consecutively to his sentence for violation of the protection order. Weaver was also sentenced, under the simple assault conviction, to one-year unsupervised probation and assessed court costs and restitution.

[¶ 31.] Weaver claims, and the State agrees, that his sentence exceeds the statutory maximum. SDCL 22-6-2 provides the maximum penalty for a Class 1 misdemeanor is “one year imprisonment in a county jail or one thousand dollars fine, or both[.]” This statute further provides:

The court in imposing sentence on a defendant who has been found guilty of a misdemeanor shall order, in addition to the sentence that is imposed pursuant to the provisions of this section, that the defendant make restitution to any victim in accordance with the provisions of chapter 23A-28.

Pursuant to a plain reading of the statute, the court’s sentencing of Weaver to one year imprisonment in the county jail and one,year of unsupervised probation, upon completion of the imprisonment, is in excess of the statutory maximum. However, Weaver is incorrect where he claims the sentence must be imposed concurrently with his Pennington County conviction for violation of the protection order. As noted in the discussion of double jeopardy above, this is not the “same offense” and the trial court has the discretion whether to order the sentence to run concurrently or consecutively. SDCL 22-6-6.1.

[¶ 32.] Weaver also claims the trial court’s order of restitution was unlawful and a violation of his due process rights because it included an “open-ended” order that he pay restitution “not to exceed $15,000” rather than providing him a fixed amount, and that the “Crime Victim’s Compensation Fund,” to which he is ordered to pay this money, does not meet the statutory definition of “victim.” SDCL 23A-28-2(5); State v. Sprecher, 2000 SD 17, 606 N.W.2d 138. SDCL 23A-28-3 provides for a hearing where the defendant contests the amount of recommended restitution; Weaver claims he was not granted this hearing though he represented himself at the sentencing hearing and was given the opportunity to raise this issue with the sentencing court.

[¶ 33.] He further claims the costs ordered were excessive and not supported by the record. SDCL 23A-27-26 provides a defendant may be ordered to pay part or all of the prosecution costs with some statutory limitation on what items may be included in those costs. See State v. Ryyth, 2001 SD 50, 626 N.W.2d 290.

[¶ 34.] Since this appeal must be remanded for resentencing, these issues of costs and restitution may be taken up by Weaver and the State with the trial court at that time. The judgment and conviction for simple assault is affirmed and this matter is remanded for correction of Weaver’s sentence and consideration of his claims regarding restitution and costs ordered.

[¶ 35.] GILBERTSON, Chief Justice, and SABERS, AMUNDSON, and KONENKAMP, Justices, and GORS, Acting Justice, participating.

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

      . This is the definition of "domestic abuse” provided by the cited statute.

      . Dixon, issued in 1993, overruled the "same conduct” rule from Grady v. Corbin, 495 U.S. 508, 110 S.Ct. 2084, 109 L.Ed.2d 548 (1990) for analyzing double jeopardy claims. Contrary to Weaver’s argument, State v. Sprik, 520 N.W.2d 595 (S.D.1994) does not provide the analysis he claims for support and does not hold that Grady provides the conclusive rule for double jeopardy analysis in South Dakota. Sprik, without discussion, cited to this Court's decision in State v. Floody, 481 N.W.2d 242 (S.D.1992), which cited to Grady, which was overruled the year after Floody was decided.

      . We distinguish our decision here which forecloses the imposition of a maximum sentence and probation from our conclusion in State v. Macy, 403 N.W.2d 743 (S.D.1987) which permits the imposition of a probationary term longer than a maximum sentence if the term is imposed as part of a suspended imposition of sentence as an alternative in lieu of sentencing freely accepted by a defendant as part of a plea agreement.