text:
    2003 ND 125
    VALLEY HONEY COMPANY, LLC, Plaintiff, Appellee, and Cross-Appellant v. Rebecca GRAVES, Defendant and Cross-Appellee, and Larry Young, Defendant, Appellant, and Cross-Appellee.
    No. 20020254.
    Supreme Court of North Dakota.
    July 21, 2003.
    Rehearing Denied Aug. 26, 2003.

      James J. Coles, Coles Law Firm, PC, Bismarck, for plaintiff, appellee, and cross-appellant.
    Larry Young, pro se, Bismarck, defendant, appellant, and cross-appellee.
    Rebecca Graves, pro se (no appearance), Grand Forks, defendant and cross-appel-lee.
   SANDSTROM, Justice.

[¶ 1] Larry Young appeals a South Central Judicial District Court judgment holding he and Rebecca Graves have no right, title, or interest in the property that is the subject of the action and holding they are jointly and severally liable to Valley Honey Company for costs of $1,794.79. Valley Honey cross-appeals on the ground that the district court erred in failing to find Graves and Young liable for damages. We affirm.

I

[¶ 2] The property in this action is located in Burleigh County and is described as the Northwest Quarter of the Southwest Quarter of Section Fifteen, Township One Hundred Forty North, Range Eighty West of the 5th Principal Meridian.

[¶ 3] The property was used by a honey-packing corporation and was owned by Albert and Iva Knoefler until February 1998, when the Knoeflers transferred the property by warranty deed to Valley Honey Company. Valley Honey Company, a corporation, acting through Clark Stott, who was registered with North Dakota’s Secretary of State in 2000 as the president of the corporation, with funding provided by Bruce Anderson, bought the property in an effort to bail out the Knoefler family from financial setbacks. Clark Stott and Harold Knoefler carried on the honey-packing operation until 2000, when they had a falling out. Valley Honey Company, through its managing officer, Bruce Anderson, limited Clark Stott’s role in the company and terminated Knoefler’s role, forbidding him entry to the premises. In 2001, Valley Honey relocated the plant’s operations to Idaho.

[¶ 4] Rebecca Graves, Harold Knoe-fler’s stepdaughter, and Larry Young, a former business associate of Knoefler’s, claim an interest in the real property by virtue of a series of quitclaim deeds, which were recorded in Burleigh County. These deeds are:

1. From Albert Knoefler to Rebecca Graves and Larry Young, a quitclaim deed dated October 27, 2000, and recorded October 31, 2000, as Document No. 547229 with the Burleigh County Recorder.
2. From Ray Knoefler to Rebecca Graves and Larry Young, a quitclaim deed dated October 27, 2000, and recorded October 31, 2000, as Document No. 547230 with the Burleigh County Recorder.
3. From Cathrine Curtis to Rebecca Graves and Larry Young, a quitclaim deed dated October 30, 2000, and recorded November 1, 2000, as Document No. 547295 with the Burleigh County Recorder.
4. From Valley Honey Company to Rebecca Graves and Larry Young, a quitclaim deed dated December 9, 2000, executed in Utah and recorded December 11; 2000, as Document No. 548462 with the Burleigh County Recorder.

[¶ 5] Valley Honey filed suit on June 1, 2001, and Graves and Young both counterclaimed. At the May 15, 2002, trial, the validity of the December 9, 2000, deed was contested. At a Utah meeting with Harold Knoefler and a financier, Ted Gubler, Clark Stott signed the deed. Clark Stott testified at trial that he was unaware Knoefler would be present at the meeting. Stott testified Knoefler pressured him to sign the deed, threatening to cut him out of another business deal if he refused. Stott testified he did not want to sign the deed at all, but because of the pressure from Knoefler, he agreed to sign it only with certain conditions attached. Stott testified that affixed to the deed was a document entitled Attachment A, signed by himself, Knoefler, and Gubler, which placed a number of conditions on the recording of the deed. One of the conditions was that Harold Knoefler would not take the property free and clear until the debts to Clark Stott, in the amount of $175,000, were paid. The quitclaim deed recorded by Knoefler on December 11, 2000, included an Attachment A, which was a handwritten compilation of numbers, but Stott testified it was not the same document he signed in Utah.

[¶ 6] The district court concluded the December 9, 2000, document was not a deed but rather a conditional contract that was not satisfied. The court found the conveyance was “limited to ‘the interests of Clark B. Stott,’ which were virtually nonexistent at the time of the conveyance, inasmuch as Bruce Anderson had essentially become the full owner and manager of [Valley Honey].” In addition, the district court concluded the validity of the deed was also undermined by the fraudulent conduct of Harold Knoefler in removing the agreed-upon Attachment A, which placed restrictions on his authority to record the deed, and replacing it with a meaningless attachment. The district court ordered entry of judgment on July 19, 2002, holding Graves and Young had no right, title, or interest in the property by any of the recorded quitclaim deeds because the grantors did not have a right, title, or interest in the property to legally convey to Graves or Young. The district court also awarded costs of $1794.79 to Valley Honey. Young appealed the judgment. Valley Honey cross-appealed the judgment for damages. On July 24, 2002, Valley Honey moved to amend the judgment under Rule 60(b), N.D.R.Civ.P. Valley Honey moved to add the cost of the abstract for the real property subject to the quiet title action in the amount of $657.00. On August 13, 2002, the district court denied Valley Honey’s Rule 60 motion to amend.

[¶ 7] The district court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. § 27-05-06. This Court has jurisdiction under N.D. Const, art. VI, § 6, and N.D.C.C. §§ 28-27-01 and 28-27-02.

II

[¶ 8] Young argues he and Graves own the property under a validly executed deed. He argues the district court’s conclusion that the December 9, 2000, deed was not a valid grant to them by Valley Honey Company but instead was an unsatisfied conditional contract is wrong because, under N.D.C.C. § 9-06-07, a delivery of a grant cannot be made conditionally. He argues the deed was not delivered with conditions and therefore Stott’s testimony of having placed conditions on the granted quitclaim deed is inadmissible parol evidence.

[¶ 9] Graves and Young do not receive a right, title, or interest under the October 27, 2000, deeds or the October 30, 2000, deed because the grantors did not have title to convey the property.

[¶ 10] Under the December 9, 2000, conveyance, whether the Attachment A as recorded was the attachment affixed to the deed at the time it was signed by Stott is a question of fact. Questions of fact are reviewed under the clearly erroneous standard of review. N.D.R.Civ.P. 52(a); Longtine v. Yeado, 1997 ND 166, ¶ 5, 567 N.W.2d 819. “A finding of fact is clearly erroneous if it is induced by .an erroneous view of the law, if no evidence exists to support it, or if, on review of the entire evidence, the reviewing court is left with a definite and firm conviction a mistake has been made.” Longtine, at ¶ 5.

[¶ 11] The district court found the December 9, 2000, deed as filed had attached to it an Attachment A different from the one agreed to and signed in Utah by Knoe-fler, Gubler, and Stott. The court found the valid attachment was the one agreed upon by all parties in Utah rather than the one that was attached to the deed when it was recorded. The Attachment A that was agreed upon contained conditions required to be met before delivery to Knoe-fler could be valid:

Stott, having personally guaranteed a loan of $175,000 that is of record against the property, that is now in default, had to sign his interest in Valley Honey to the lenders (the $175,000 lender & the organizations controlled by Bruce Anderson) and as such there is no interest free & clear until all debts are paid by Harold Knoefler, or to be caused by Harold to be paid by others. At that time & only will all of Stott interest in Valley Honey, LLC, be subject to this Quit Claim Deed.

The district court found that Clark Stott initially refused to sign the deed until Knoefler, Gubler, and Stott came to an agreement about conditions for the deed to take effect. Testimony supports the district court’s finding. The district court was not clearly erroneous in finding the filed Attachment A was different from the agreed-upon Attachment A.

[¶ 12] In reviewing the validity of the December 9, 2000, deed, we follow our standard of review of a district court’s disposition of a deed as stated in U.S. Bank v. Koenig, 2002 ND 137, ¶ 8, 650 N.W.2d 820:

Except as otherwise provided in N.D.C.C. ch. 47-09, grants are interpreted in the same manner as contracts. N.D.C.C. § 47-09-11. Contracts are construed to give effect to the parties’ mutual intent at the time of contracting. N.D.C.C. § 9-07-03; Haag v. Noetzelman, 1999 ND 157, ¶ 6, 598 N.W.2d 121. The parties’ intent must be ascertained from the writing alone if possible. N.D.C.C. § 9-07-04; Haag, at ¶ 6. The parties’ intent must be ascertained from the entire instrument, and every clause, sentence, and provision should be given effect consistent with the main purpose of the contract. Haag, at ¶ 6.... If the parties’, intent can be ascertained from the writing alone, the interpretation of the contract is entirely a question of law, and we independently examine and construe the contract to determine if the trial court erred in its interpretation of the contract. Haag, at ¶ 6.

[¶ 13] The December 9, 2000, contract is not ambiguous and can be ascertained from the writing alone. This Court will review whether the contract created a valid deed as a matter of law. Haag v. Noetzelman, 1999 ND 157, ¶ 6, 598 N.W.2d 121.

[¶ 14] Under N.D.C.C. § 47-09-13, a grant in a contract is interpreted in favor of the grantee, except if there is a reservation in a grant, it must be interpreted in fay or of the grantor. A contract is to be interpreted to give effect to the mutual intention of the parties at the time of contracting. N.D.C.C. § 9-07-03; Pamida, Inc. v. Meide, 526 N.W.2d 487, 490 (N.D.1995). “A contract may be explained by reference to the circumstances under which it was made and the matter to which it relates.” N.D.C.C. § 9-07-12.

[¶ 15] Under the December 9, 2000, conveyance, Young argues Valley Honey’s conditions are void under N.D.C.C. § 9-06-07, which states, “[t]he execution of a contract in writing ... supersedes all the oral negotiations or stipulations concerning its matter which preceded or accompanied the execution of the instrument.” Section 9-06-07 is applicable; however, it would apply only to the document with the Attachment A originally agreed to by the parties.

[¶ 16] Young argues that, based j on N.D.C.C. § 47-09-07, a “grant cannot be delivered conditionally but delivery to the grantee is necessarily absolute and the instrument takes effect on delivery, discharged of any condition on which delivery was made.” The statute provides:

47-09-07. Delivery must be absolute— Conditional delivery ineffective, becomes absolute. A grant cannot be delivered to the grantee conditionally. Delivery to the grantee or to the grantee’s agent as such is necessarily absolute and the instrument takes effect thereupon, discharged of any condition on which the delivery was made.

Young’s reliance on N.D.C.C. § 47-09-07 is misplaced. Here it was not the delivery that was conditional, but the document itself that was conditional. In Adams v. Little Missouri Minerals Ass’n, this Court in tracing the history of the statute explained:

“Tf the delivery be to the party to whom it is made, though upon express condition, not appearing upon the face of the deed, that it is to take effect only upon certain conditions, whatever may be the form of words, the delivery is absolute, and the deed takes effect immediately.’ ”

143 N.W.2d 659, 675 (N.D.1966) (emphasis added) (citation omitted). Here the condition did appear on the face of the document, in Attachment A. Young’s argument is without merit.

[¶ 17] Section 47-10-14, N.D.C.C., states that a “[g]rant takes effect on performance of condition. An .instrument purporting to be a grant of real property to take effect upon a condition precedent passes the estate upon the performance of the condition.” In this case, the conditions had not been satisfied when the document was recorded; therefore, the December 9, 2000, contract did not pass title to Graves or Young.

[¶ 18] The district court concluded as fact, from Stott’s, Gubler’s, and Knoefler’s testimony, that Stott’s grant of the property to Graves and Young included an Attachment A agreed to by Stott, Gubler, and Knoefler, which created a conditional contract, and the conditions had to be met by Knoefler before the document could effectively transfer title. We conclude the trial court was correct in finding the deed had attached to it an Attachment A, which made the conveyance conditional. In the agreed-upon Attachment A, there were conditions to the conveyance of this property that must be interpreted in favor of Valley Honey. Numerous facts lead to the conclusion that Stott was coerced into signing this deed, and that is why the conditions were placed in it. At the time the deed was signed, Stott was not involved in making any decisions for Valley Honey.

[¶ 19] Knoefler, by attaching a different Attachment A to the deed when he recorded it, disregarded the conditions and failed to complete them. Because the conditions were not satisfied, and because Knoefler made it clear by removing the original attachment and replacing it with a meaningless document that he had no intention of following the agreed-upon conditions, we conclude the deed to Graves and Young is not valid.

Ill

[¶ 20] Valley Honey cross-appealed, arguing the district court erred in failing to find Graves and Young jointly and severally hable for the damage cause by Knoefler. Valley Honey argues that by allowing Knoefler on the property, Graves and Young caused considerable damage to Valley Honey, which resulted in a costly relocation to Idaho to avoid future property damage by Knoefler. It argues Graves and Young both gave Knoefler a power of attorney over their interest in the property, which proved their collaboration with Knoefler. Valley Honey argues Graves fraudulently aided Knoefler in recording the deed by paying $3,500 in taxes on the property before any deeds granting her an interest in the property were recorded. The district court found Graves and Young were collaborators of Knoefler’s, at least after the signing of the December 9 document, and should not benefit from his fraudulent conduct; however, it did not find damages.

[¶ 21] Damages issues are questions of fact. Bechtold Paving, Inc. v. City of Kenmare, 446 N.W.2d 19, 20-21 (N.D.1989); Pfliger v. Peavey Co., 310 N.W.2d 742, 747 (N.D.1981). “A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if no evidence exists to support it, or if, on review of the entire evidence, the reviewing court is left with a definite and firm conviction a mistake has been made.” N.D.R.Civ.P. 52(a); Longtine, 1997 ND 166, ¶ 5, 567 N.W.2d 819. “Before the Supreme Court will interfere with an award of damages, the award must be so excessive or inadequate as to be without support in the evidence.” Pfliger, at 747.

[¶ 22] The district court found that Graves and Young collaborated with Knoe-fler; however, the evidence does not support a conclusion that the defendants would be responsible for the damages al-' legedly incurred by Knoefler. The district court stated:

Harold Knoefler has been the principal figure in the operation of Knoefler Honey Farms prior to the plaintiff becoming involved in it, and subsequently, as well. He is also the principal person involved in the disputes with the plaintiff regarding ownership of assets utilized in the honey packing operation, and to the extent that damages have been incurred by the plaintiff, it would [appear] that he is the responsible party, rather than the defendants. There is nothing in the record to suggest that he was acting as an agent of the defendants at the time he caused the problems resulting in the damages sought.

We conclude the district court did not err. That the district court did not grant damages to Valley Honey for Graves’ and Young’s actions was consistent with the evidence presented at trial.

IV

[¶ 23] After entry of judgment, Valley Honey moved, under N.D.R.Civ.P. 60(b), to add to the judgment the cost of the abstract for the property in the amount of $657.00. Under Rule 60(b), N.D.R.Civ.P., a party or his legal representative may be relieved from a final judgment or order in any action or proceeding for the following reasons:

(i) mistake, inadvertence, surprise, or excusable neglect; (ii) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (iii) fraud (whether denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (iv) the judgment is void; (v) the judgment has been satisfied, released, or discharged, or a previous judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (vi) any other reason justifying relief from the operation of the judgment.

[¶24] When there is an appeal from a trial court ruling on a Rule 60(b) motion, we review whether or not the trial court abused its discretion under the rule. Galloway v. Galloway, 281 N.W.2d 804, 806 (N.D.1979). The only subsection of Rule 60(b) not left to the court’s discretion is subsection (iv), because a court has no discretion to protect a void judgment. State Bank of Burleigh County Trust Co. v. Patten, 357 N.W.2d 239, 242 (N.D.1984). There is no evidence in the record showing Valley Honey supported its motion under subsection (iv); therefore, we apply an abuse-of-discretion standard.

[¶ 25] As the moving party, Valley Honey “has the burden of establishing sufficient grounds for disturbing the finality of such judgment.” Gajewski v. Bratcher, 240 N.W.2d 871, 886 (N.D.1976). On July 17, 2002, Valley Honey filed its affidavit of costs and disbursements in the amount of $1,794.79 and failed to include the $657.00 abstract as a cost. An abstract would have been a valid cost that Valley Honey could have brought under N.D.C.C. §§ 28-26-07 and 28-26-10 had it done so in the July 17, 2002, affidavit of costs. Valley Honey, in its motion to amend the judgment, did not meet its burden to provide the court with sufficient grounds for why it failed to bring the abstract cost in its July 17, 2002, affidavit of costs; therefore, we conclude the district court did not abuse its discretion in denying Valley Honey’s motion to amend the judgment. Accordingly, the order denying the Rule 60(b) motion for amended costs is affirmed.

V

[¶ 26] We conclude the deed was not validly executed and did not convey an interest in property to Rebecca Graves or Larry Young. We also conclude the district court did not err in finding Graves and Young were not liable for damages incurred by Valley Honey. We affirm.

[¶ 27] GERALD W. VANDE WALLE, C.J., WILLIAM A. NEUMANN, CAROL RONNING KAPSNER, JJ., and JAMES M. BEKKEN, District Judge, concur.

[¶ 28] The Honorable JAMES M. BEKKEN, District Judge, sitting in place of MARING, J., disqualified.


source: Caselaw Access Project

author: SABERS, Justice

license: Public Domain

text:
    2003 SD 76
    Michael JORENBY, Appellant, v. SOUTH DAKOTA DEPARTMENT OF LABOR, Unemployment Insurance Appeals, and Global Polymer Industries, Inc., Appellees.
    No. 22668.
    Supreme Court of South Dakota.
    Considered on Briefs May 27, 2003.
    Decided July 2, 2003.
    Ronald C. Aho, Brookings, for appellant.
    Lawrence E. Long, Attorney General, Pierre and Drew C. Johnson, Special Assistant Attorney General, Aberdeen, for appellee SD Department of Labor.
    Richard J. Helsper of Glover, Helsper & Rasmussen, Brookings, for appellee Global Polymer Industries, Inc.
   SABERS, Justice

[¶ 1.] The circuit court affirmed the Department of Labor’s (Department) denial of unemployment benefits to Michael Jorenby. Jorenby appeals claiming he was not discharged for work-related misconduct and is therefore entitled to unemployment benefits. We affirm.

FACTS

[¶ 2.] The facts in this case are undisputed. Jorenby was employed by Global Polymer Industries Incorporated (Employer): Employer operates in a very narrow field of competition and its work processes are considered top-secret. Employer suspects that one of its few competitors was started by someone who gained information regarding the process from Employer. To protect its secrets, Employer requires a written agreement from its employees that they will not allow non-employees into its plant without Employer’s prior consent. Jorenby signed such an agreement and was also verbally informed of the rule. Despite the verbal and written agreements, before the incident that caused his termination, Jorenby walked his girlfriend through the plant. After that incident, Employer informed him that if he allowed another non-employee into the facility without permission, he would be terminated. The warning did not prevent Jorenby from disregarding the rule again.

[¶ 3.] On January 20, 2002, while Jor-enby was working, a former employee arrived at the facility. While he was visiting with the former employee, Jorenby announced that he needed to go back into the plant to retrieve a tool. The former employee asked to go along, stating she would like to see how the machines looked. Jorenby testified that the former employee was curious to see the- machines because before leaving Employer, she had helped “fix up” and set up the machines, but had not seen them operating. Claimant was initially hesitant, but eventually allowed the former employee to join him. Jorenby contends that he decided to allow her in because she had helped set up the machines and because she “had worked there two times before and [I] figured she knew most of what was going on.” Jorenby was terminated when Employer discovered he had walked the former employee through the facility.

[¶4.] Jorenby applied for unemployment benefits. A hearing was -held before an administrative law judge (ALJ) who determined that Jorenby was not terminated for work-related misconduct. The Department rejected the ALJ’s conclusion of law and denied benefits, holding that Jorenby was not entitled to benefits because he was discharged for work-related misconduct. See SDCL 61-6-14; SDCL 61-6-14.1. The circuit court affirmed the Department’s decision and Jorenby appeals raising one issue:

Whether the circuit court erred in determining that Jorenby was terminated for work-related misconduct under SDCL 61-6-14.

STANDARD OF REVIEW

[¶ 5.] We review administrative decisions in the same manner as the circuit court. Factual findings are overturned only if, after consideration of all the evidence, they are clearly erroneous. SDCL 1-26-36; Abild v. Gateway 2000, Inc., 1996 SD 50, ¶ 6, 547 N.W.2d 556, 558 (citing Permann v. South Dakota Dept. of Labor, 411 N.W.2d 113, 117 (S.D.1987)). Conclusions of law and mixed questions of fact and law that require the application of a legal standard are fully reviewable. Weeks v. Valley Bank, 2000 SD 104, ¶ 8, 615 N.W.2d 179, 182 (citing Schuck v. John Morrell & Co., 529 N.W.2d 894, 896 (S.D.1995)). “Whether an employee’s actions constitute misconduct is a question of law.” Weeks, 2000 SD 104 at ¶ 8, 615 N.W.2d at 182 (citing Rasmussen v. South Dakota Dept. of Labor, 510 N.W.2d 655, 657 (S.D.1993)).

[¶ 6.] WHETHER THE CIRCUIT COURT ERRED IN DETERMINING THAT JORENBY WAS TERMINATED FOR WORK-RELATED MISCONDUCT UNDER SDCL 61-6-14.

[¶ 7.] SDCL 61-6-14 provides in part that a person who is discharged for work-related misconduct will be denied unemployment benefits.

[¶ 8.] SDCL 61-6-14.1 defines misconduct as:

(1) Failure to obey orders, rules or instructions, or failure to discharge the duties for which an individual was employed; or
(2) Substantial disregard of the employer’s interests or of the employee’s duties and obligations to his employer; or
(3) Conduct evincing such willful or wanton disregard of an employer’s interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee; or
(4) Carelessness or negligence of such degree or recurrence as to manifest equal culpability or wrongful intent.
However, mere inefficiency, unsatisfactory conduct, failure to perform as the result of inability or incapacity, a good faith error in judgment or discretion ... is not misconduct.

Interpreting this statute, this- Court has stated,

misconduct [within the meaning of the unemployment compensation statutes] is limited to conduct evincing such willful or wanton disregard of an employer’s interest as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employees, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer’s interest or of the employee’s duties and obligations to his employer. On the other hand, mere inefficiency, unsatisfactory conduct, failure in good performance as a result of inability or incapacity, inadvertaneies [sic] or ordinary negligence in isolated instances, or good faith errors in judgment or discretion are not to be deemed ‘misconduct’ within the meaning of the statute.

Weeks, 2000 SD 104, ¶ 16, 615 N.W.2d at 184 (quoting Raml v. Jenkins Methodist Home, 381 N.W.2d 241, 243 (S.D.1986) (additional citations omitted)). Jorenby argues that allowing the former employee into the facility was a “good faith error in judgment or discretion” rather than misconduct.

[¶ 9.] It is undisputed that Jorenby’s conduct was “work-related,” therefore the only question before the Court is whether Jorenby’s action was a good faith error in judgment or misconduct. Based on the plain language, of the statute, Jorenby’s action was misconduct. His conduct meets nearly all of the definitions of misconduct provided in SDCL 61--6-14.1.

[¶ 10.] First, Employer had a very clear rule that employees were not to allow non-employees into the facility without Employer’s prior consent. SDCL 61 — 6— 14.1(1). The record reveals no exceptions to this rule. Further, claimant concedes that he was aware of the rule. In fact, he signed a written agreement, was verbally informed of the rule and was threatened with termination for breaking the rule once before.

[¶ 11.] Second, Employer has a substantial interest in maintaining confidentiality. Employer suspects it has already gained one competitor due to leaks of information from its plant. Jorenby had a contractual duty not to allow non-employees into the facility. Jorenby disregarded both his Employer’s interest in confidentiality and his own duty not to let others on the premises. SDCL 61-6-14.1(2).

[¶ 12.] Third, based on his written and verbal agreement and the warnings he received after his first infraction, Employer had a right to expect Jorenby would not walk a non-employee through the plant. Jorenby willfully disregarded Employer’s interest in confidentiality. SDCL 61 — 6— 14.1(3).

[¶ 13.] Jorenby argues on appeal that his decision to let the employee in was in good faith because 1) she had worked on the machines and 2) she had signed a confidentiality agreement. There is nothing in the record to indicate that at the time he walked her through the facility he thought about the fact that she had signed a confidentiality agreement. In fact, Jorenby conceded to the AL J that the thought of her having signed the agreement never crossed his mind until after the fact. Furthermore, Jorenby testified that he hesitated to walk her through the facility because he knew of the rule against doing so. He made a conscious, intentional decision to do it anyway. Jorenby was fully aware of all of the information arid facts necessary to make an appropriate decision. Despite this awareness, he unilaterally chose to suspend his Employer’s strict mandate and his justifications for doing so are insufficient to amount to good faith.

[¶ 14.] Citing Matter of Kotrba, Joren-by contends that he cannot be found to have engaged in work-related misconduct because the ALJ made no finding of harm to Employer. Matter of Kotrba, 418 N.W.2d 313, 316 (S.D.1988). In Kotrba, this Court adopted a test from the Washington Supreme Court to determine the definition of “work-related misconduct.” Id. (citing Nelson v. Department of Employment Security, 98 Wash.2d 370, 655 P.2d 242, 245 (1982)). The question in that case was whether actions taken on the employee’s personal time could be “work-related” within the meaning of the statute. Jorenby’s reliance on Kotrba is therefore misplaced because there is no dispute that his conduct was work-related and the test of Kotrba is inapplicable.

[¶ 15.] Affirmed.

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


author: SABERS, Justice.

text:
    2003 SD 77
    Brenda M. DEJONG, Plaintiff and Appellant, v. Keith B. DEJONG, Defendant and Appellee.
    Nos. 22650, 22654.
    Supreme Court of South Dakota.
    Considered on Briefs May 27, 2003.
    Decided July 2, 2003.

      Sara E. Eng, Richard A. Johnson of Strange, Farrell & Johnson, P.C. Sioux Falls, for plaintiff and appellant.
    Michael D. Stevens of Blackburn & Stevens, Prof. L.L.C., Yankton, for defendant and appellee.
   SABERS, Justice.

[¶ 1.] The trial court granted a divorce to Keith and Brenda Dejong based on irreconcilable differences on October 25, 2002. The trial court awarded Keith general alimony of $1,000 per month until he is 62 years old and restitutional alimony of $400 per month for ten years. Brenda appeals claiming the trial court abused its discretion in awarding the amounts and both types of alimony. By notice of review, Keith appeals arguing the trial court abused its discretion by not awarding more general and restitutional alimony and by not extending the restitutional alimony until he becomes 62 years old. We affirm.

FACTS

[¶ 2.] Brenda and Keith were married shortly after they graduated high school in 1975. At the time of the marriage, Brenda was pregnant with the first of the couple’s three children. After they married, both of them began attending college at the University of South Dakota campus in Springfield. In fall 1976, Brenda left school because she was pregnant with their second child and was having complications with the pregnancy. Keith obtained his associates degree and the family moved to Rapid City where he received his bachelor’s degree in engineering. While Keith attended school, and until 1986, Brenda was primarily employed as a full-time homemaker and caretaker for the children, except that from 1982-83 she provided in-home daycare and for a short period when Keith was unemployed, she worked two outside jobs. She also taught piano lessons to supplement their income.

[¶ 3.] In 1986, Brenda enrolled at the University of South Dakota in Vermillion. By 1988, she was accepted into medical school. Her education, like- Keith’s, was financed through student loans. Brenda graduated from medical school in 1992. She did her residency in Sioux Falls. Upon completion of her residency, she was hired by a medical clinic in Sioux Falls. The family moved from Yankton to Sioux Falls so that they could be together during her residency. Keith left his job in Yank-ton and transferred to the City of Sioux Falls engineering department. One year later, Brenda accepted a position at the Yankton Medical Clinic. Keith subsequently took a job in Yankton and the couple purchased a home.

[¶ 4.] Brenda initiated the divorce in 1996, approximately 6-7 years after completing medical school and after a 27-year marriage. Brenda admitted to having an extramarital affair. The trial court granted the divorce based on irreconcilable differences. The trial court awarded Keith general alimony of $1,000 per month until he reaches age 62, dies, remarries or coha-bitates. Keith was also awarded $400 per month restitutional alimony for ten years, which will terminate upon the death of either party. Brenda claims the trial court abused its discretion by:

1) awarding general alimony of $1,000 per month until Keith is 62 years old; and
2) awarding $400 per month restitutional alimony for ten years.

By notice of review, Keith contends the trial court abused its discretion by:

3) failing to award him more than $1,000 per month general alimony; and
4) failing to award him more than $400 per month restitutional alimony and failing to extend it until he is 62 years old.

We consider each appeal issue together with each notice of review issue. We affirm the trial court on all issues.

STANDARD OF REVIEW

[¶ 6.] Our standard of review for the trial court’s alimony determination is abuse of discretion. “In determining whether there was an abuse of discretion, we ask, ‘whether a judicial mind, in view of the law and the circumstances of the particular case, could reasonably have reached such a conclusion’.” Savage v. Savage, 2003 SD 46, ¶ 5, 661 N.W.2d 762, 764 (internal citations and quotations omitted). We will not set aside the trial court’s findings of fact unless they are clearly erroneous. Keller v. Keller, 2003 SD 36, ¶ 8, 660 N.W.2d 619, 622 (quoting Harksen v. Peska, 2001 SD 76, ¶ 9, 630 N.W.2d 98, 101).

[¶ 6.] 1. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION BY AWARDING GENERAL ALIMONY OF $1,000 PER MONTH UNTIL KEITH BECOMES 62 YEARS OLD.

[¶ 7.] A party requesting alimony has the burden of proving their need for support and that their former spouse “has sufficient means and abilities to provide for part or all of that need.” Anderson v. Anderson, 2002 SD 154, ¶ 12, 655 N.W.2d 104, 107 (quoting Urban v. Urban, 1998 SD 29, ¶ 7, 576 N.W.2d 873, 875 (additional citations omitted)). The factors that must be considered in determining the need for, amount and duration of alimony are: (1) length of the marriage; (2) respective earning capacity of the parties; (3) their respective age, health and physical condition; (4) their station in life or social standing; and (5) relative fault in the divorce. Anderson, 2002 SD 154 at ¶ 12, 655 N.W.2d at 107-108 (citing Urban, 1998 SD 29 at ¶ 8, 576 N.W.2d at 875 (additional citation omitted)).

Length of Marriage.

[¶ 8.] The Dejongs were married for 27 years.

Respective Earning Capacity of the Parties.

[¶ 9.] The trial court found that Brenda draws $10,000 per month from the medical clinic and also receives distributions every quarter based on productivity. In 2001, she received her monthly draw plus $45,517.68 for productivity, for gross wages of $165,517.68 and taxable income of $155,833. Yankton Medical Clinic pays an amount equal to 15% of the first $170,000 of Brenda’s gross annual earnings to her profit sharing plan for retirement. In 2001, that equaled $24,827.65, and is not included in her $165,517.68 earnings for 2001. Brenda also receives $7,900 per year for education and supplies to be used at her discretion. Whatever she does not use is given to her as additional salary. Brenda currently pays $916 per month into her 401k program. The court determined that a realistic budget for Brenda is $6,200 per month.

[¶ 10.] The trial court found that Keith earns $61,000 per year. During their marriage and in order to help support the family and purchase their homes, Keith withdrew funds from various retirement accounts. He is now purchasing back credited service in the South Dakota State Retirement Plan. He is eligible to buy back $55,478.46 of his retirement for $403.38 per month for ten years. The court found that a realistic budget for Keith is between $4,200 and $5,000 per month.

Age, Health and Physical Condition of the Parties.

[¶ 11.] At the time of trial, Brenda was forty-five years old and Keith was within one month of turning forty-five. Although both Brenda and Keith experienced health difficulties during the marriage, they are now in good health. There is no indication in the record that either party has any physical impairment.

Station in Life or Social Standing.

[¶ 12.] The trial court found that the parties were living at a middle class standard until Brenda obtained her medical degree. The trial court found that since then, they were living at an upper middle class standard. The trial court found that once she obtained her medical degree, they were able to purchase a “very nice spacious house” and take “numerous vacations around the United States and internationally.” The court found that as a result of the divorce, Keith’s station in life based on his income will decline while Brenda’s station in life will continue to be consistent with that of a medical doctor.

[¶ 13.] Brenda asserts that the trial court erred in' determining that the couple was within the upper middle class because they only experienced that lifestyle for approximately 2 years of the marriage. Regardless of how long the parties enjoyed this lifestyle, it was their station in life at the time of the divorce and Brenda has not shown that the finding was clearly erroneous.

Relative Fault in the Divorce.

[¶ 14.] The trial court found that Brenda committed adultery during the marriage.

ANALYSIS OF THE FACTORS

[¶ 15.] Brenda concedes that as a doctor, she has greater earning capacity than Keith. She also acknowledges that she takes a monthly draw of $10,000 and receives additional distributions to reflect productivity. She contends that the trial court’s finding that she could expect to earn between $150,000 and $180,000 is clearly erroneous. She claims that her 2002 projected gross income would be only $128,000 and therefore contends that the trial court’s findings of fact regarding her income are clearly erroneous. This assertion fails in light of the fact that her “projected gross income” for 2002 fails to take into account two quarterly payouts for productivity, the $7,900 she receives for education and supplies, and the amount of her earnings that her employer pays into her retirement. She has not shown that the trial court’s finding regarding her income was clearly erroneous.

[¶ 16.] Brenda argues that the trial court abused its discretion in determining that she has the ability to pay $1,000 per month in general alimony. She contends that the trial court erred in using her earnings from 2001 to determine her ability to pay alimony because her earnings for that year were “anomalous.” She further argues that after deductions for federal income tax, Social Security tax and Medicare tax, her disposable monthly income is $7,589.69. She argues that her monthly budget is $7,687.86, leaving her $148.17 over budget.- However, the trial court found that a reasonable monthly budget for Brenda was $6,200. Reviewing Brenda’s statement regarding her monthly expenses, it does not appear that the trial court erred in setting a $6,200 budget. Her statement of claimed expenses includes car insurance, clothes, and “miscellaneous” expenses for the parties’ son, Chris. Those expenses do not seem reasonable in light of the fact that Chris is an adult who recently graduated from college. Further, she includes her expenses associated with the divorce ($200 per month), depreciation on her vehicle ($390 per month) and attorney’s fees ($720 per month) in her monthly budget. Brenda has not shown that the trial court was clearly erroneous in its determination that she has the ability to pay alimony.

[¶ 17.] Brenda next argues that the trial court erred in finding that Keith was in need of spousal support. The trial court found that a budget between $4,200 and $5,000 per month would realistically place Keith at the standard of living he maintained when he was married. His net income was found to be approximately $3,800 per month. Brenda seems to argue that Keith’s monthly budget would not be so high if he wasn’t paying so much into his retirement program. He is currently paying $1,378 per month into retirement. However, the trial court found, and Brenda does not dispute that Keith cashed in portions of his retirement accounts during their marriage to help support the family and purchase marital assets while Brenda attended medical school and completed her residency. Her argument that his contribution exceeds hers and is therefore an unreasonable expense is unpersuasive. This is especially so considering that in addition to the approximately $900 per month that she contributes, Brenda’s employer contributes an amount equal to 15% of her income to her retirement.

[¶ 18.] By notice of review, Keith argues -that the trial court abused its discretion by not awarding more alimony. Specifically, he argues that the proper amount should have been $4,642.91 per month. Keith apparently arrives at this figure by taking the total incomes of both parties and dividing them equally. He argues that this is the only way he will be provided for in the manner to which he became accustomed during the marriage and that failure to award him this amount was abuse of discretion. Keith offers no support for his proposed calculation of alimony. Further, he points to no finding by the trial court that was clearly erroneous; he simply makes the bare assertion that unless they both have the same income each month, they do not enjoy the same standard of living and therefore the trial court’s decision was abuse of discretion. There is no support offered nor can we find any support for this assertion. Keith fails To show that he has a need for this amount of alimony or that Brenda can afford to pay it.

[¶ 19.] The parties have not shown that the trial court’s award of $1,000 per month general alimony until Keith reaches age 62 was an abuse of discretion.

[¶ 20.] Affirmed.

[¶ 21.] 2. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION BY AWARDING KEITH $400 PER MONTH RESTITUTIONAL ALIMONY FOR A PERIOD OF 10 YEARS.

[¶ 22.] The trial court awarded Keith $400 per month restitutional alimony for ten years. Brenda argues that the award was an abuse of discretion. Keith argues that the trial court abused its discretion by limiting the award to ten years and $400 per month.

[¶ 23.] “The purpose of resti-tutional alimony (also called reimbursement alimony) is to reimburse [a] spouse’s contribution during the marriage to the advanced training or education of the other spouse.” Parsons v. Parsons, 490 N.W.2d 733, 738 (S.D.1992). In determining whether to award restitutional alimony, the trial court, in addition to the traditional alimony factors, should consider,

the amount of the supporting spouse’s contributions, his or her foregone opportunities to enhance or improve professional or vocational skills, and the duration of the marriage following completion of the non-supporting spouse’s professional education.

Saint-Pierre v. Saint-Pierre, 357 N.W.2d 250, 262 (S.D.1984) (additional citations omitted). As with general alimony, an award of restitutional alimony is left to the sound discretion of the trial court. Id.

[¶ 24.] To finance her education, Brenda borrowed approximately $60,000 in student loans. During the course of their marriage, the couple paid off approximately $47,000 of those loans. The loans were also used to pay family and household expenses while she went to school. The trial court found that during the time she was in school, both of the parties worked hard to take care of their family and that “Keith assumed significant additional responsibilities to the family while Brenda pursued her ... degree ... residency ... and medical license.”

[¶ 25.] The trial court noted in its memorandum decision that “Keith has foregone, to a small degree, his income and benefits as a result of moving back to Yankton from Sioux Falls” when Brenda took the job at Yankton Medical Clinic. The court found that Keith cashed in “various retirement accounts ... and used the proceeds to invest in the parties’ marital assets.” Specifically, the family moved from Yankton to Sioux Falls so that they could be together during her residency. After completing her residency and working at a clinic in Sioux Falls for approximately one year, the parties decided to move back to Yankton because Yankton Medical Clinic offered better pay and the parties wished to be closer to family. Pri- or to both moves, Keith cashed in his retirement accounts and used the funds to place down payments on homes and to pay family expenses. The trial court found that Keith is eligible to buy back $55,478.46 of his South Dakota State Retirement at $403.38 per month for ten years.

[¶ 26.] Brenda argues that both parties were able to obtain the necessary education and pursue their chosen career and therefore restitutional alimony should not apply. It is true that during the first years of their marriage, Brenda stayed home with the children while Keith pursued his degree in engineering. However, in reviewing alimony, the classification of the award is not as important as the question whether the record supports the award. Hautala v. Hautala, 417 N.W.2d 879, 881 (S.D.1988). The trial court’s findings support the award of alimony based on 1) Keith’s need to reestablish his retirement package; 2) his contributions to the family’s home life while Brenda completed her medical training; and 3) the relatively short period of time elapsing between completion of her training and her filing for divorce. Brenda has not shown that the trial court abused its discretion in awarding $400 per month res-titutional alimony over the next ten years.

[¶ 27.] Keith argues that the trial court abused its discretion in limiting the award to ten years. The findings of fact support the inference that the limitation on the alimony is based on the fact that Keith’s retirement buy back will be finished at the end of ten years. Keith has not shown a need for an award for more than ten years. Nor has Keith shown a need for an award greater than $400. At the end of ten years, he will have finished purchasing back his retirement benefits and his take-home pay will thereby increase approximately $400 per month. He has not shown that the trial court abused its discretion by limiting the award.

[¶ 28.] The trial court is affirmed.

[IT 29.] 3. ATTORNEY FEES

[¶ 30.] In accord with Malcolm v. Malcolm, 365 N.W.2d 863 (S.D.1985), both Keith and Brenda submitted motions for appellate attorney fees. Keith has requested ah award of $2,208.70 and Brenda has requested an award of $2,151.27. To determine whether attorney fees are proper in domestic relation cases, we consider, “the property owned by each party, the relative incomes, the liquidity of the assets and whether either party unreasonably increased the time spent on the case.” Peterson v. Peterson, 434 N.W.2d 732, 738 (S.D.1989) .(additional citations omitted). Taking these factors into consideration, along with the merits of the parties’ arguments, we award no appellate attorney fees.

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


author: PER CURIAM.

text:
    2003 SD 74
    Jeffrey GRAJCZYK, Appellant, v. STATE of South Dakota, Appellee.
    No. 22644.
    Supreme Court of South Dakota.
    Considered on Briefs April 28, 2003.
    Decided July 2, 2003.
    Steve Miller, Sioux Falls, South Dakota, Attorney for appellant.
    Lawrence E. Long, Attorney General, Frank E. Geaghan, Assistant Attorney General, Pierre, South Dakota, Attorneys for appellee.
   PER CURIAM.

[¶ 1.] Jeffrey Grajczyk appeals the terms of his confinement to the South Dakota State penitentiary following his mistaken release from prison on a suspended sentence. Grajczyk claims he is being required to serve the same sentence twice.

FACTS AND PROCEDURE

[¶ 2.] In June 1994 Grajczyk was sentenced to serve fifteen years for aggravated assault. At the time it was imposed, the fifteen year sentence consisted of seven years to be served with eight years suspended. After credit for time served, this sentence was commenced on May 8, 1994.

[¶ 3.] On September 19, 1997, Grajczyk pled guilty to possession of marijuana by an inmate and received an indeterminate sentence of three to twenty-four months. This sentence was to be served consecutive to his prior sentence for aggravated assault. The Board of Pardons and Paroles (Board) set the sentence at two years for the possession of marijuana conviction. In addition, because the conviction resulted from Grajczyk’s possession of marijuana as an inmate, the Board revoked the suspended eight years of the conviction for aggravated assault on October 24,1997.

[¶4.] Grajczyk appealed the Board’s revocation decision. The circuit court reversed the Board’s decision. Thereafter, this Court in Grajczyk v. Board of Pardons and Paroles, 1999 SD 149, 603 N.W.2d 508, reversed the circuit court and upheld the Board’s decision revoking the suspended eight years. Following that decision, nothing was done to effectuate the revocation until an order was filed on July 16, 2001. In the meantime, the penitentiary records only reflected the reversal by the circuit court ordering the eight years to remain suspended. Consequently, the penitentiary record as it existed showed that Grajczyk had served the required time for the seven year sentence for aggravated assault and also the two year sentence for possession of marijuana. Therefore, Grajczyk was released on June 7, 2001 with suspended sentence status.

[¶ 5.] The State eventually discovered this error and Grajczyk was re-arrested and returned to the penitentiary on July 10, 2001. Grajczyk appealed to the Board claiming that he was entitled to a continuation of his supervised release. The Board rejected that claim reasoning the fifteen year sentence was still required to be served following this Court’s decision reinstating the revocation of the suspended sentence. Therefore, this made Grajczyk ineligible for release at that time. In addition, the Board rejected Grajczyk’s claim that he had already served the sentence for possession of marijuana and determined that until that initial sentence for aggravated assault was completed Grajc-zyk had not served the sentence on the possession conviction. The Board determined that the proper timeframe for each sentence was as follows:

Start Date: July 13,1994
Jail Time Credit: 2 months, 5 days
Commence Date: May 8,1994
Sentence: 15 years
Term Expires: May 8, 2009
Goodtime Credit: 6 years
Goodtime Release Date: May 8, 2003
Possession of Marijuana
Start Date: May 8, 2003
Jail Time Credit: 0 days
Commence Date: May 8, 2003
Term Expires: May 8, 2006

[¶ 6.] Grajczyk appealed the Board’s decision to the circuit court. The circuit court affirmed the Board’s decision. Grajczyk appeals contending the Board is unlawfully requiring him to re-serve the sentence for possession of marijuana after he had already fully served it. We affirm.

STANDARD OF REVIEW

[¶ 7.] It is well settled that “[o]ur standard of review from decisions of administrative agencies is governed by SDCL 1-26-37.” Helms v. Lynn’s, Inc., 1996 SD 8, ¶ 9, 542 N.W.2d 764, 766. This statute provides:

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

SDCL 1-26-37. Under this standard, “[t]his Court ‘makes the same review of the administrative agency’s decision as did the circuit court, unaided by any presumption that the circuit court’s decision was correct.’ ” Cheyenne River Sioux Tribe Tel. Auth. v. Public Util. Comm. of South Dakota, 1999 SD 60, ¶ 12, 595 N.W.2d 604, 608. When the issue is a question of fact, we review the agency’s actions under the clearly erroneous standard. Id. Issues involving questions of law are fully reviewable by this Court. Id. Further, “ ‘[mjixed questions of law and fact are also fully reviewable.’ ” Id.

ANALYSIS

ISSUE

[¶ 8.] Whether the Board’s decision unlawfully requires Grajczyk to serve the same sentence twice.

[¶ 9.] Grajczyk does not dispute the Board’s mathematical calculations concerning his sentence but, instead, argues that in this situation he is being unlawfully required to serve the possession for marijuana sentence twice. He relies exclusively upon the fact that prior to his release the penitentiary operated under the notion that he had served both the aggravated assault and possession sentences. For parole purposes, if the time remaining to be served is only for the aggravated assault conviction Grajczyk contends that his parole date would be advanced. In essence, Grajczyk is arguing that his two year sentence for possession of marijuana interrupted his fifteen year sentence and as a result that sentence is now fully served. Grajczyk does not claim, and in fact concedes, that he is not being required to serve more than the raw number of years imposed by both sentences. Rather, he opposes the timing of the sentences.

[¶ 10.] The legislature has clearly set forth when a sentence commences if an inmate is convicted of a crime. To that extent, SDCL 23A-27-36 provides:

If any prisoner commits a crime, upon conviction, the sentence of the prisoner shall not commence to run until the expiration of the last sentence of his imprisonment.

Grajczyk’s commission of an offense while incarcerated invoked this statutory provision and upon his conviction the trial court correctly determined that the two offenses would be served consecutively. As a result, the earliest the sentence could begin running on this conviction was from the expiration of the imprisonment on the aggravated assault charge. See State v. Meyers, 1997 SD 115, ¶ 11, 571 N.W.2d 847, 849. In addition, with the commission of that offense Grajczyk violated the terms of his suspended sentence.

[¶ 11.] This Court has previously addressed and determined that the Board did not err in revoking the suspended sentence thereby requiring Grajczyk to serve the full fifteen year sentence. Grajczyk, 1999 SD 149, ¶ 10, 608 N.W.2d at 511. In so holding, this Court reversed and remanded to the circuit court in an opinion issued November 23, 1999, with instructions to affirm the Board’s determination. Id. ¶ 17. Consequently, Grajczyk was required to serve the full sentence for aggravated assault and the suspended years were no longer suspended. Yet, for some unexplained reason, this was not effectuated on remand until July 17, 2001.

[¶ 12.] Grajczyk contends that because the penitentiary operated under the mistaken notion he was serving time on the possession conviction prior to his mistaken release then that is the order in which the sentences must be treated as being served. As previously mentioned, this would be contrary to SDCL 23A-27-36. It is important to note that this is not a case where Grajczyk is claiming the time he did serve has not been applied toward his sentence. The penitentiary records reflect that Grajczyk was credited with time mistakenly attributed to the possession conviction when correctly calculating the time required to be served for the aggravated assault conviction. In fact, it also appears he was , credited with the time he was released on supervised status as time served for that conviction. After discovering this- recordkeeping error a correction was immediately made to reflect Grajc-zyk’s correct status in the penitentiary. However, as Grajczyk points out, that occurred after the errant release. As to the effect of this, it is certainly not insignificant that Grajczyk admitted he was aware that the suspended .sentence had been revoked when discussing his release with the Board but he made no mention of that fact. Clearly, as of November 23,1999, Grajczyk knew that he was required' to serve the entire fifteen years for the aggravated assault conviction.

[¶ 13.] Furthermore, Grajczyk contends that his remand to custody and the correction of his sentence violates the prohibition against double jeopardy. Certainly, the double jeopardy clauses of both the State and Federal constitutions protect against multiple punishments for the same crime if not legislatively authorized. See State v. Weaver, 2002 SD 76, ¶ 10, 648 N.W.2d 355, 359 (citations omitted). However, Grajczyk is not being punished twice; instead, the Board’s determination ensures he will be serving both sentences as originally required. The Minnesota Supreme Court has determined that:

The double jeopardy guarantees are generally not violated when a district court corrects an unauthorized sentence, even if the sentence is increased. This is because a sentence does not have the qualities of constitutional finality that attend an acquittal. Moreover, [defendant’s] revised sentence does not impose multiple punishments, but simply the single punishment that was mandatory at the time of sentencing. Therefore, the correction of his sentence does not violate double jeopardy.

State v. Calmes, 632 N.W.2d 641, 649 (Minn.2001) (emphasis added). The correction here was pursuant to a statutorily mandated sequence for sentencing. Grajczyk does not contend the Board’s current calculations are incorrect. Those calculations incorporate the decision by this Court in Grajczyk’s first case.

[¶ 14.] While Grajczyk points to authority indicating that “due process must in principle impose an outer limit on the ability to correct a sentence after the event” that authority only applies to extreme cases. See DeWitt v. Ventetoulo, 6 F.3d 32, 35-36 (1st Cir.1993)(holding due process limited State’s ability to re-impose a life sentence six years after suspending all but fifteen years of a life sentence and releasing defendant). In fact, the court in DeWitt noted that “the Constitution contains no general rule that prohibits a court from increasing an earlier sentence where the court finds that it was erroneous and that a higher sentence was required by law.” Id. at 34. Yet, that court found that in an “extreme case” this rule may not apply. Id. This is not such a case.

[¶ 15.] The circuit court recognized: [P]remature release and re-incarceration is a surprisingly frequent phenomenon. See generally, Gabriel J. Chin, GETTING OUT OF JAIL FREE: SENTENCE CREDIT FOR PERIODS OF MISTAKEN LIBERTY, 45 Cath. U.L.Rev. 403 (1996)(in collecting several cases on the topic of mistaken release and subsequent re-incarceration Gabriel observes well over 100 such incidents that have resulted in litigation). While some courts have found a protection-worthy liberty interest, this appears reserved for the most unusual circumstances as the vast majority of case law on the topic, have failed to find the type of uniquely arbitrary behavior by an administrative body which serves as a catalyst for substantive due process rights. Id. Tellingly, most of the cases cited by Grajczyk in supporting his administrative claim, fall within the unique and unusual cases commentators and judges recognize as being the exception.

While this mistake should not have happened, Grajczyk points to no authority that indicates he is entitled to any benefit from this error as a matter of law. Additionally, the eases he cites in support of his position are factually inapposite.

[¶ 16.] Affirmed.

[¶ 17.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, and ZINTER, Justices, participating.

[¶ 18.] MEIERHENRY, Justice, disqualified.

      . The record is not entirely clear as to what was the cause for delay on remand. The Board did find that it was a clerical error that resulted in the errant release.

      . SDCL 24-15A-20 provides:

        Consecutive sentencing-Parole eligibility. Any person convicted of a felony while an inmate under the custody of the warden of the penitentiary and for which the sentence is made to run consecutively is not eligible for consideration for parole until serving the last of such consecutive sentences.

      . SDCL 23A-31-1 (Rule 35) provides that a "court may correct an illegal sentence at any time.” SDCL 23A-31-2 (Rule 36) provides that “clerical mistakes in judgments, orders or other parts of a record and errors in a record arising from oversight or omission may be corrected by a court at any time.” The court has "the power and, indeed, the duty to resentence [defendants] appropriately.” United States v. Martin, 786 F.2d 974, 976 (10th Cir.1986) (citing Rule 35). See also Coffey v. Bd. of Pardons and Paroles, 1999 SD 164, 604 N.W.2d 238 (holding Board reasonably exercised its quasi-judicial powers to correct error).


author: LOVRIEN, Circuit Judge.

text:
    2003 SD 75
    Jill Marie ROBERTS, Plaintiff and Appellee, v. Bart J. ROBERTS, Defendant and Appellant.
    No. 22440.
    Supreme Court of South Dakota.
    Considered on Briefs Jan. 15, 2003.
    Decided July 2, 2003.

      Sabrina Meierhenry and Jason M. Harris of Danforth, Meierhenry & Meierhen-ry, Sioux Falls, South Dakota, Attorneys for plaintiff and appellee.
    Shelley R. Wieck of Burd & Wieck, Sioux Falls, South Dakota, Attorneys for defendant and appellant.
   LOVRIEN, Circuit Judge.

[¶ 1.] Bart Roberts (Bart) appeals a circuit court decision adopting a report by a child support referee recommending an increase in Bart’s child support obligation. In calculating the increase, the referee included “pass-through income” from a sub-chapter S corporation in Bart’s income and extrapolated his support to a level above the child support guidelines based upon the pass-through income. We reverse and remand.

FACTS AND PROCEDURAL HISTORY

[¶ 2.] Bart and Jill Roberts (Jill) were divorced in October 1995. The divorce decree incorporated a stipulation and agreement establishing child support and custody. After the divorce, Bart’s child support obligation was modified by the parties on numerous occasions.

[¶ 3.] In July 2001, Jill petitioned the court for a modification of Bart’s child support. A hearing was held before a child support referee on August 6, 2001. At the time of the hearing, Jill was employed by U.S. Bank as an administrative assistant at a net monthly salary of $1,652 ($22,760 a year). Bart was employed by, and was a minority shareholder in, several corporations.

[¶ 4.] Bart received a monthly salary of $2,935 ($71,762 a year) as an employee of a corporation named Sioux Falls Towers. In addition, as a minority shareholder in several subchapter S corporations, Bart reported corporate income of $163,471 on his federal income tax return. Included in this amount was money Bart received from the subchapter S corporations in order to meet his federal income tax liability on the pass-through corporate income.

[¶ 5.] Bart, as a shareholder in Sioux Falls Towers, had an ownership interest of 24 percent in the corporation. His accountant testified that Bart received numerous distributions from his corporate holdings for the sole purpose of paying his federal income tax liability. Further, the accountant acknowledged that, since these corporations were relatively new, they could not continue to operate if they distributed any income other than what was necessary for shareholders to meet federal income tax liability. Thus, while Bart had to report this corporate income on his federal income tax return, he did not actually receive the income and could not use it for his own support. However, in calculating Bart’s income, the referee included Bart’s salary, all of the pass-through income from the subchapter S corporations and the distributions made by the corporations to cover the tax liability on the pass-through income.

[¶ 6.] The referee calculated Bart’s monthly income at $18,441. Because Bart and Jill’s combined monthly income exceeded the amounts provided for in the child support guidelines, the referee recommended that, in order to provide for the children’s actual needs and standards of living, Bart’s monthly child support obligation should be extrapolated to $1000 above the maximum amount provided for by the guidelines. Accordingly, the referee recommended that Bart pay $3,083 per month in child support.

ISSUES

[¶ 7.] We identify three issues. Should pass-through corporate income from a subchapter S corporation included on a parent’s federal income tax return be included in calculating gross income for child support purposes when the parent does not actually receive the income and has no control over its distribution?
Should money a parent receives from a corporation to meet the parent’s tax liability on pass-through income from the corporation be included in calculating the parent’s gross income for child support purposes?
Did the circuit court err by increasing the child support obligation to $1000 above the child support guidelines?

ANALYSIS AND DECISION

[¶ 8.] The standard of review in a child support case is well-settled:

Findings of fact are reviewed under the clearly erroneous standard. This Court must be left with a definite and firm conviction that a mistake has been made to overturn a circuit court’s findings. Watson-Wojewski v. Wojewski, 2000 SD 132, ¶ 13, 617 N.W.2d 666, 669-670 (citing Billion v. Billion, 1996 SD 101, ¶ 13, 553 N.W.2d 226, 230). Questions of law are reviewed de novo. Hendricksen v. Harris, 1999 SD 130, ¶ 7, 600 N.W.2d 180, 181.
An award of child support will not be disturbed unless the trial court clearly abused its discretion. Watson-Wojewski, 2000 SD 132 at ¶ 14, 617 N.W.2d at 670 (citing Steffens v. Peterson, 503 N.W.2d 254, 257 (S.D.1993)). Abuse of discretion is defined as “a discretion exercised to an end or purpose not justified by, and clearly against, reason and evidence.” Billion, 1996 SD 101 at ¶ 14, 553 N.W.2d at 230. The question is not would this Court have made the same decision, but “whether a judicial mind, in view of the law and circumstances of the particular case, could reasonably have reached such a conclusion.” Id. (citing Nelson v. Nelson, 454 N.W.2d 533, 534 (S.D.1990)).

Laird v. Laird, 2002 SD 99, ¶¶ 13-14, 650 N.W.2d 296, 299.

ISSUE ONE

[¶ 9.] Should pass-through corporate income from a subchapter S corporation included on a parent’s federal income tax return be included in calculating gross income for child support purposes when the parent does not actually receive the income and has no control over its distribution?

[¶ 10.] We hold that, under the facts of this case, this income should not have been included in calculating gross income for child support purposes.

[¶ 11.] We begin with the basic premise that a parent’s obligation to provide necessary support must be in accordance with the means of the parent. See SDCL 25-7-6.1. The “means” of a parent include his income, if that income is sufficient to meet the child’s needs, or his income and assets if income alone is not sufficient. SDCL 25-7-6.5. A parent’s monthly net income is determined as follows:

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;
(2) Self-employment income including gain, profit, or loss from a business, farm, or profession; '
(3) Periodic payments from pensions or retirement programs, including social security or veteran’s benefits, disability payments or insurance contracts;
(4) Interest, dividends, rentals, royalties, or other gain derived from investment of capital assets;
(5) Gain or loss from the sale, trade, or conversion of capital assets;
(6) Unemployment insurance benefits;
(7) Workers’ compensation benefits; and
(8) Benefits in lieu of compensation including military pay allowances.
If the income of the parents is derived from seasonal employment, or received in payments other than regular, recurring payments, such income shall be annualized to determine a monthly average income.

SDCL 25-7-6.3.

[¶ 12.] We note that, under SDCL 25-7-6.3, in order for an amount to be included in a parent’s monthly net income, the amount must first be included in the parent’s monthly gross income. For an amount to be included in the parent’s monthly gross income, the amount must first be received by the parent. SDCL 25-7-6.3. The requirement that a parent receive an amount before it is included in the parent’s monthly.gross income is consistent with other provisions of-the child support statutes.

[¶ 13.] SDCL 25-7-6.6 allows the court to ignore deductions on a parent’s federal income tax return which do not require the expenditure of cash and, thus, increase a parent’s disposable income beyond what is shown on the -tax -return. This statute favors substance rather than form when viewing a parent’s federal income tax return. If a deduction on a parent’s federal income tax return is, in fact, money available to a parent to support himself, then that amount can be considered in deciding the extent to which the parent, should support his child.

[¶ 14.] We also note • the provisions of SDCL 25-7-6.7. Child support is based upon monthly net income which is determined by making certain deductions from a parent’s monthly gross income. By allowing for these deductions, the legislature has attempted to guarantee that the monthly net income on which child support is based reflects a parent’s actual ability to support himself and, thus, his child.

[¶ 15.] In reviewing the various provisions in the child support statutes, we conclude that the statutory scheme is based upon the general principle that the amount of income a parent has to support his child (i.e., the “means” of the parent) is the amount of income the parent has received to support himself. This principle is consistent with the approach urged by the South Dakota Commission on Child Support in both its 1985 and 1988 reports to the governor. In its reports, the Commission stressed the importance of establishing guidelines that reflected the parents’ ability to pay.

[¶ 16.] With this general principle in mind, we now examine the specific provisions of SDCL 25-7-6.6 at issue here. Did the fact that Sioux Falls Towers’ subchap-ter S income was reported on Bart’s federal income tax return mean that, under SDCL 25-7-6.6, that income had to be included in Bart’s gross income? We conclude that it did not.

[¶ 17.] We begin by noting that a parent’s monthly gross income must be received from those sources identified by SDCL 25-7-6.3. If one of the sources of monthly gross income is income from a business, profession or farming or income from rentals, royalties, estates, trusts or other sources, then SDCL 25-7-6.6 provides a method to calculate this income:

Gross income from a business, profession, farming, rentals, royalties, estates, trusts or other sources, are the net profits or gain, or net losses shown on any or all schedules filed as part of the parents’ federal income tax returns or as part of any federal income tax returns for any business with which he is associated, except that the court may allow or,disallow deductions for federal income taxation purposes which do not require the expenditure of cash, including, but not limited to, depreciation or depletion allowances, and may further consider the extent to which household expenses, automobile expenses, and related items are deductible or partially deductible for income tax purposes. In the event a court disallows depreciation, it may consider necessary capital expenditures which enhance the parent’s current income for child support purposes.

SDCL 25-7-6.6.

[¶ 18.] We do not read SDCL 25-7-6.6 as establishing a separate category of parental income in addition to the general provisions of SDCL 25-7-6.3. Rather, we believe that the two statutes must be read together. If money received by a parent meets the criteria set by SDCL 26-7-6.3 and is also from certain specific sources identified by SDCL 26-7-6.6, then SDCL 26-7-6.6 provides further rules as to how to calculate that income.

[¶ 19.] Based upon the foregoing authorities we conclude that proper analysis of a parent’s income for purposes of determining child support involves the following inquiries: First, did the parent receive the amount in question? Second, was the amount received by the parent from one of the categories identified in SDCL 25-7-6.3? If the amount was actually received by the parent, if it was in a category identified in SDCL 25-7-6.3 and if it was income from a business, profession or farming or from rentals, royalties, estates, trusts or other sources, then it must be treated as provided by SDCL 25-7-6.6.

[¶ 20.] It is undisputed that the corporate pass-through income at issue came within one or more of the categories established by SDCL 25-7-6.3. It is also undisputed that the income was from a business, profession or farming or from rentals, royalties, estates, trusts or other sources. Thus, the income triggered the provisions of SDCL 25-7-6.6. Under SDCL 25-7-6.6, gross income from a business is defined as the net profits or gain either, “shown on any or all schedules filed as part of the parents’ federal income tax returns or as part of any federal income tax returns for any business with which [the parent] is associated[.]” The net profits or gains of Sioux Falls Towers were shown on schedules filed as part of Bart’s federal income tax return. On that basis, the referee and circuit court included this income in determining Bart’s monthly gross income. We conclude, however, that Bart did not “receive” this income as required by SDCL 25-7-6.3 and it should not have been included in his monthly gross income.

[¶ 21.] In the past, we have considered the question of whether a parent has received income in the context of retained business income. More simply, did a parent receive income when a business the parent either controlled or was associated with retained that income rather than distribute it to the parent? We have held that when a parent can control whether or not a corporation distributes income to that parent, some or all of corporation’s retained earnings can be counted in the parent’s gross income. Ochs v. Nelson, 538 N.W.2d 527 (S.D.1995). We have also held that a director/shareholder who could not control the distribution of bank income should not have the bank’s retained income included in his gross income. Laird, 2002 SD 99 at ¶ 25, 650 N.W.2d at 301. In each case, whether or not a parent was held to have received retained corporate income depended on the extent to which the parent could control the distribution of that income. If a parent can control whether business income is retained by the business or distributed to the parent, the requirement that the parent receive the income is satisfied for purposes of SDCL 25-7-6.3. If the provisions of SDCL 25-7-6.6 are then met, some or all of that retained business income may be considered in calculating the parent’s gross income.

[¶ 22.] The matter before us does concern retained corporate income. It appears undisputed that, as a minority shareholder, Bart could not control whether corporate .income was distributed to him. Thus, under our holdings in Ochs and Laird, the retained corporate income should not have been included in calculating Bart’s gross income. The only basis for including the corporate income in Bart’s gross income for child support purposes was the fact that the corporate income was reported on Bart’s federal income tax return.

[¶ 23.] We conclude that, even though the corporate income was reported on Bart’s tax return, Bart did not “receive” that income as required by SDCL 25-7-6.3. It was not part of his means. He could not use this income to support either himself or his children. What Bart received from the corporation was not income, it was merely an obligation to pay taxes on the corporation’s retained income. Bart faced the worst of all possibilities with respect to the calculation of child support: retained corporate income he could not spend combined with a distributed federal income tax liability he was obligated to pay.

[¶ 24.] We conclude that the pass-through corporate income from a subchap-ter S corporation included on Bart’s federal income tax return should not have been included in calculating his gross income for child support purposes when he did not actually receive the corporate income and had no control over its distribution.

ISSUE TWO

[¶ 25.] Should money a parent receives from a corporation to meet the parent’s tax liability on pass-through income from the corporation be included in calculating the parent’s gross income for child support purposes?

[¶ 26.] We conclude that it should be included. It is undisputed that Bart received a distribution of money from the corporation to meet his federal tax liability on the corporate income reported on his income tax return. It is clear Bart received the money whether it was paid directly to him or applied to his tax obligation. The amount of the tax distribution was part of the net profits or gains from a business, in this case Sioux Falls Towers. The tax distribution constitutes income to Bart and should be included in calculating Bart’s gross income for child support purposes. On remand, however, the circuit court should decide whether the tax distribution would be an allowable deduction under SDCL 25-7-6.7 or would provide the basis for a deviation under SDCL 25-7-6.10.

[¶ 27.] Finally, given our decision as to issues one and two, we do not need to consider issue three. Because the parents’ combined monthly income should fall within the child support guidelines found at SDCL 25-7-6.2, it appears no extrapolation will be necessary on remand.

[¶ 28.] The decision of the circuit court is reversed. The matter is remanded to set Bart’s child support in an amount consistent with this opinion. Jill’s motion for appellate attorneys fees is denied. Considering the relevant factors under Senger v. Senger, 308 N.W.2d 395, 398 (S.D.1981), especially Jill’s inability to pay and the disparity in incomes, we also deny Bart’s motion for appellate attorney’s fees.

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

[¶ 30.] LOVRIEN, Circuit Judge, for MEIERHENRY, Justice, disqualified.

      . As a result of the hearing, the referee’s report recommended an increase in Bart's child support obligation from $1,286 per month to $3,083 per month. Bart objected to the referee’s recommendation. The circuit court entered a memorandum decision on November 14, 2001 approving the inclusion of subchapter S income for purposes of calculating child support. However, the court remanded the case back to the referee on the issue of extrapolation above the child support guidelines. A remand hearing was held before the referee. On February 6, 2002, the referee reaffirmed his earlier recommendation to extrapolate Bart’s child support obligation to $1,000 above the maximum amount provided for by the guidelines to satisfy the actual needs, and standards of living of the children. Bart again objected, but the court adopted the referee’s recommendation in a decision dated April 18, 2002.

      . Sioux Falls Towers owned several subsidiary companies: Intermountain Towers, Sioux Falls Towers South, Anchor Guard and Performance Development Group. Bart's ownership interest in Intermountain Towers was 12 percent; Sioux Falls Towers South was 12 percent; and, Anchor Guard was 24 percent. In Performance Development Group and Dakota Leasing, Bart owned a 6-2/3 percent interest.

      . Bart’s accountant, Kathy Helgerson, was also the accountant for the corporations previously noted.

      . Jill claimed that Bart’s monthly income was $18,441 (an income in excess of $235,000 a year). That amount reflected the income reported on Bart’s tax return from his various subchapter S corporations. Bart claimed that his monthly income was only $2,935 a month ($71,762 a year) which represented his salary from Sioux Falls Tower Specialists. Bart’s accountant testified that Bart did not receive any income above his salary for any purpose other than paying his federal income tax liability. She also testified "that the distributions made to Bart were for tax purposes only” and that Bart had no control over these distributions.

      . Based on the inclusion of the corporate income, the couple’s combined monthly income was $20,093.

      . Jill also questions this Court’s jurisdiction to decide the issue concerning inclusion of sub-chapter S income in calculating Bart’s child support obligation. She argues that a timely appeal was not filed with respect to this issue after the first hearing in front of the referee. However, Jill fails to provide any authority in support of her argument. In Matter of Estate of Lingscheit, 387 N.W.2d 738, 740 (S.D.1986), we held that orders that do not finally dispose of an entire proceeding are not final judgments within the meaning of SDCL 15-26A-3. Accordingly, we conclude that the issue of whether the subchapter S income should be included in calculating Bart's child support obligation is properly before us.

      . 7.SDCL 25-7-6.1 states in part: “The parents of a child are jointly and severally obligated for the necessary maintenance, education and support of the child in accordance with their respective means.”

      . Deductions include: income taxes withheld, estimated income taxes payable, FICA taxes, reasonable retirement fund amounts, actual business expenses of an employee not reimbursed by the employer and payments made on other support and maintenance orders. See SDCL 25-7-6.7.

      . These provisions include: the requirement that support be set in accordance with the means of the parent (SDCL 25-7-6.1); the definition of monthly gross income as income received by the parent (SDCL 25-7-6.3); the disallowance of certain income tax deductions if they do not require the expenditure of cash (25-7-6.6); and the allowance of various deductions from a parent’s monthly gross income (SDCL 25-7-6.7).

      . The 1985 and 1988 Reports of the South Dakota Commission on Child Support were the basis for the legislature's enactment and revision of South Dakota’s child support statutes and provide some guidance as to what the legislature intended. At page 14 in its 1985 report, the Commission noted that, "The guidelines are based on net income of the noncustodial parent and reflect his/her ability to pay.” At page 17 in its 1988 report, the Commission noted that, "The Commission felt the net income approach better reflects the actual cash available for the payment of child support and therefore determined to retain the use of the net rather than gross as the basis for determining child support.”

      . Both the referee's recommendation and the circuit court's decision in this case were specifically premised upon this Court’s decision in Watson-Wojewski, supra. In that case, we considered whether income in a partnership capital account and retained partnership income should be included in a parent's gross income for child support purposes. We remanded for further findings as to whether the parent had control over distributions from the partnership capital account. As to the retained partnership income, even though the parent could not control its distribution to the partners, we affirmed the circuit court’s inclusion of the income in the parent's gross income on the basis that it was reported on the parent’s federal income tax return. Thus, Watson-Wojewski required that income listed on a party’s tax return be considered income for child support purposes even if the income was not actually received and even if the “recipient” had no control over the decision to receive it. We now conclude that Watson-Wojewski wrongly decided this issue. Therefore, we decline to be bound by Watson-Wojewski to the extent that it is read to automatically include in a parent’s gross income all business income reported on a parent's federal tax return whether the parent received the income or not. Obviously, neither the referee nor the circuit court had the benefit of this decision in making their respective determinations in this case.