author: AMUNDSON, Justice.

text:
    2000 SD 54
    Todd H. ALBRECHT, Plaintiff and Appellee, v. Jill N. ALBRECHT, Defendant and Appellant.
    No. 21018.
    Supreme Court of South Dakota.
    Considered on Briefs Feb. 14, 2000.
    Decided April 26, 2000.

      Todd D. Wilkinson and Gary W. Schu-macher of Wilkinson & Wilkinson, DeS-met, for plaintiff and appellee.
    Richard J. Helsper and Victoria M. Duehr of Glover, Helsper & Rasmussen, P.C., Brookings, for defendant and appellant.
   AMUNDSON, Justice.

[¶ 1.] Jill Albrecht (Jill) appealed the trial court’s judgment and decree of divorce. We affirm in part, reverse and remand in part.

FACTS

[¶ 2.] Todd Albrecht (Todd) and Jill began dating while Jill was attending college at the University of Minnesota in Crook-ston, Minnesota; Jill later transferred to North Dakota State University. Todd and Jill were married on November 5, 1988. At the time of his marriage, Todd was working for his parents’ farming and ranching corporation, H.T. Albrecht & Sons (Albrecht & Sons). In early 1990 or 1991, Todd terminated his employment with Albrecht & Sons to begin his own farming and ranching operation with Jill. Jill subsequently decided to postpone her education and be a co-producer with Todd on his new farming and ranching operation.

[¶ 3.] In 1991, Todd entered into a contract for deed to purchase a parcel of property called the “Kenny Albrecht property” from Kenneth and Beverly Albrecht. The contract was arranged and negotiated by Todd’s father. Only Todd was listed as a buyer and Jill’s name was not mentioned on the contract or deeds. Jill raised concern about the absence of her name from the deeds and Todd assured her that the land was a marital asset. The down payment for the Kenny Albrecht property was paid by Albrecht & Sons. Under the contract for deed, annual payments of $10,254.32 were due on the property from 1991 to 1996. Todd and Jill earned the money to pay the annual payments by renting the property to Albrecht & Sons and performing services for Al-brecht & Sons. Albrecht & Sons agreed to pay Todd and Jill $10,254.32 annually and the couple would then use this money to pay the annual payment under the contract for deed. The contract for deed was ultimately paid off in 1996. Between 1991 and 1996, Albrecht & Sons treated the $10,254.32 annual payment as a rent expense on its income tax return and Todd and Jill reported their payment as rental income on their joint income tax return.

[¶ 4.] On May 14, 1993, Todd and Jill entered into a contract for deed with Todd’s parents, Henry and Leona Al-brecht, to purchase a sixty acre parcel of property known as the “Marital Residence.” Todd and Jill resided here throughout their marriage and expended considerable time and money in making major improvements to the property. Todd and Jill made an initial $2,000 down payment on the house.

[¶ 5.] In 1995, Todd and Jill started a road maintenance business. As the success of the road maintenance business grew, the farming operation was reduced and the livestock were sold in the spring of 1997.

[¶ 6.] On December 31, 1997, Todd sued Jill for divorce. On March 2, 1999, the circuit court granted a divorce to Todd on the grounds of irreconcilable differences and to Jill on grounds of extreme cruelty and adultery. In the property division, the court determined that only $19,700 of the value of the Kenny Albrecht property was a marital asset; the appraised value of $89,000 less the contract for deed purchase price of $69,300. The court awarded the Marital Residence property, which was where Jill was residing and operating her own livestock operation, to Todd because it had “been in the family for years” and “because it would work for whatever operation [he has] now or will have in the future.” Todd and Jill had another parcel of real property in Miner County that was considered “poor land” and was rented to others. The court awarded Jill the Miner County property.

[¶ 7.] Jill also requested an award of rehabilitative alimony. Jill argued to the court that she had postponed her schooling to be a co-operator of the farming and ranching operation. At the time of her divorce, Jill was working forty hours per week as a loan processor at First National Bank in Brookings, South Dakota and earning $8.75 per hour. Jill argued that without a college degree, she is not able to advance in her current position. Jill also aTgued to the court that she planned to return to school or start a Pregnant Mare Urine (PMU) operation if she were awarded the Marital Residence property. Jill also requested some of the farming and livestock equipment to use in her own livestock operation. Jill’s request for rehabilitative alimony was denied and all of the farming and livestock equipment assets were awarded to Todd. Finally, the trial court required Todd to pay Jill $23,-185 to equalize the marital property division between the parties.

[¶ 8.] Jill appeals, raising the following issues:

1. Whether the trial court erred in the property division.
2. Whether the trial court erred in denying Jill rehabilitative alimony.
3. Whether the trial court erred in refusing the filing of defendant’s proposed findings of fact and conclusions of law.

DECISION

[¶ 9.] 1. Whether the trial court erred in the property division.

[¶ 10.] In reviewing the trial court’s property division, our standard of review is abuse of discretion. Priebe v. Priebe, 1996 SD 136, ¶ 9, 556 N.W.2d 78, 80 (citing Grode v. Grode, 1996 SD 15, ¶ 6, 543 N.W.2d 795, 799; Abrams v. Abrams, 516 N.W.2d 348, 352 (S.D.1994); Radigan v. Radigan, 465 N.W.2d 483, 487 (S.D.1991); Henrichs v. Henrichs, 426 N.W.2d 569, 572 (S.D.1988)). To reverse under this standard, we must find that the trial court exercised discretion “ ‘to an end or purpose not justified by, and clearly against reason and evidence.’ ” Id. (quoting Paradeis v. Paradeis, 461 N.W.2d 135, 137 (S.D.1990) (quoting Bradeen v. Bradeen, 430 N.W.2d 87, 91 (S.D.1988))).

[¶ 11.] We have often noted that “[i]n making an equitable division of property, the trial court is not bound by any mathematical formula, but is to make an award on the basis of the material factors in the case, having due regard for equity and the circumstances of the parties.” Garnos v. Garnos, 376 N.W.2d 571, 572-73 (S.D.1985). In making our review, “we do not determine whether we would have made an original like ruling, but whether a judicial mind, in view of the law and circumstances of the particular case, could reasonably have reached such a conclusion.” Billion v. Billion, 1996 SD 101, ¶ 14, 553 N.W.2d 226, 230 (citing Nelson v. Nelson, 454 N.W.2d 533 (S.D.1990)).

[¶ 12.] Jill attacks the property division for four reasons. We address each separately.

Kenny Albrecht Property

[¶ 13.] The trial court found that Kenneth and Beverly Albrecht agreed to sell the Kenny Albrecht property to Todd on a contract for deed with a total purchase price of $69,300, with $23,300 down, and the balance to be paid in installments. The trial court also found that the terms of the contract for deed were entirely negotiated by Todd’s father. Further, the trial court found that Todd’s father arranged the payment of the down payment and categorized his payments to Todd for tax purposes as land rent and “the amount paid was grossly in excess of the going cash rent rate.” The trial court ultimately held that “the usage and course of dealing between [Albrecht & Sons] and [Todd] ... indicated an arrangement other than a landlord/tenant arrangement and reflected the true intent of [Todd’s] father, Henry Albrecht and [Todd], to gift the funds necessary for [Todd] to make Contract for Deed payments.” The trial court held that the $69,300 purchase price is not marital property, but the increase in fair market value of $19,700 was marital property subject to division.

[¶ 14.] Jill contends that “[a]ll property of both parties is subject to an equitable division regardless of origin or title.” Further, Jill claims that because the property was “clearly acquired during the marriage and [she] did contribute to the accumulation and maintenance of this property,” the entire value of $89,000 should have been included as a marital asset. In support of her argument, Jill cites Garnos, 376 N.W.2d 571 and Prentice v. Prentice, 322 N.W.2d 880, 882 (S.D.1982). Both cases cited by Jill involve a dispute as to whether the wife made any contribution to the disputed property. In the present case, the issue in question is not whether Jill substantially contributed to the Kenny Albrecht property; rather, whether the property was a gift to Todd and partially excludable from the property division. Todd argues that considerable and extensive testimony was offered at trial that “Todd got the [Kenny Albrecht] land free from his dad” and therefore, it is a gift and should not be included as a marital asset. A review of the record does not support this contention. Todd utilized the rent payments of $10,254.32 received from Albrecht & Sons to make his annual contract for deed payment of $10,254.32 to Kenny Albrecht. There were no documents drafted which described this transaction as a gift, nor was there a gift tax paid. In fact, Albrecht & Sons included its payment to Todd as a “rent expense” for a tax deduction on their income tax form. Further, Todd treated the payment as “rental income” on Todd and Jill’s joint income tax return.

[¶ 15.] We have often stated that the essential elements of a gift are: intent, delivery, and acceptance. Estate of Fiksdal, 388 N.W.2d 133, 135 (S.D.1986) (citing Owen v. Owen, 351 N.W.2d 139 (S.D.1984); Bunt v. Fairbanks, 81 S.D. 255, 258, 134 N.W.2d 1, 2 (1965)). Further, “[t]he donor’s intent must be shown in order to determine that a gift has been made.” Id. The record does not establish a bona fide intent by Todd’s father to make a gift of the Kenny Albrecht property. In fact, testimony during the divorce proceeding from Todd’s father provides:

Q: (Wilkinson): Henry, why did you write the checks to Todd and write the checks to bill for those contract payments?
A: (Henry):i continued to farm the land until the contract was paid off and it was for rent. (Emphasis added).

Based upon the evidence and record herein, we find that the trial court’s conclusion that the Kenny Albrecht land transaction constituted a gift was an abuse of discretion. Based on this record, the gift theory on this asset seems to have been birthed solely for the purposes of this divorce action. Therefore, the full $89,000 value of this asset should have been included in the marital estate.

Marital Residence

[¶ 16.] The trial court found that Todd and Jill, during the course of their marriage, entered into a contract for deed with Todd’s parents to purchase a parcel of real property known as the Marital Residence. The purchase price for the property was $20,000. The trial court found this sum to be “significantly below the fair market value of the property.” The court held that this property was a marital asset; however, because the property was owned by Todd’s family for several generations, was part of Todd’s family farming operation for many generations, had significant sentimental value to Todd and his family, and was further necessary for Todd’s continued farming activities, the trial court awarded the property to Todd. The court further found that Jill had failed to provide a compelling reason why she should be awarded the property.

[¶ 17.] Jill argues that the trial court erred in awarding the property to Todd because she resided there for eleven years, made improvements to the value of the property by planting flower gardens, building fences, planting trees, and working in the shelterbelt, and maintained her own farm/ranch operation which included livestock and horses. Further, Jill argues that the court did not consider the facts and circumstances of the parties before making the award.

[¶ 18.] We have often stated that in making a property division, “the court shall have regard for equity and the circumstances of the parties.” Endres v. Endres, 532 N.W.2d 65, 71 (S.D.1995). See also Garnos, 376 N.W.2d at 572-73 (stating that the trial court must divide the property based upon “the material factors in the case, having due regard for equity and the circumstances of the parties”). A review of the record shows that the trial court did analyze the circumstances of Todd and Jill with regard to the property and concluded that this asset should go to Todd. Again, the question is not what we would have done, but whether there was an abuse of discretion. We determine there was no abuse.

Farm Assets

[¶ 19.] The trial court awarded all the farm assets and the road maintenance assets to Todd. Jill argues that the trial court erred in awarding Todd all of the farm and road maintenance assets because “[a]t the time of trial, ... [Jill] did have a farm/ranch operation in existence at the marital residence wherein [Jill] maintained [ten] cow/calf pairs and horses.” Jill contends that to continue her operation, she requested the trial court to award her specific farm assets to allow her to continue her operation. Further, Jill claims that Todd had scaled back his own farming operation to concentrate on his road maintenance business, had access to other farm equipment, and did not have livestock.

[¶ 20.] As we previously noted, “the trial court shall have regard for equity and the circumstances of the parties.” Endres, 532 N.W.2d at 71. In weighing the circumstances of the parties, the court found that Jill intended “to remain in her present position with the First National Bank of Brookings at least for the time being” and “will not have her earning capacity impaired as a result of the Court’s award of property.” The court ultimately found that Todd’s “ability to operate a farming business and road maintenance business requires allocation of those assets to [Todd].” In light of our determination that the Kenny Albrecht property is to be valued at $89,000, the award of the Marital Residence and the farm assets to Todd and the cash award to Jill does not constitute an inequitable property division.

Additional Prepaid Expenses

[¶ 21.] At the divorce proceeding, the trial court included “prepaid expenses and supplies of $11,368” to determine the net value of the road maintenance business. Jill claims that these prepaid expenses and supplies were identified on the January 15, 1998 financial statement as gas, fuel and oil. She argues that there was an additional prepaid expense of $6,465 from Lake Preston Coop for fertilizer which did not appear on the financial statement used by the trial court in determining the net value of Todd’s road construction operation. The trial court found that “there was insufficient evidence presented to warrant the inclusion of an additional $6,465 as requested by [Jill].”

[¶ 22.] Jill argues that the trial court erred when it failed to include the $6,465 for prepaid fertilizer expenses as an asset of Todd’s in the road maintenance operation. Jill claims that she “presented hard evidence to the trial court that there was an additional prepaid expense for fertilizer that had not been included anywhere on [Todd’s] proposal.”

[¶ 23.] The record reveals that contradicting evidence was presented at trial concerning what the $11,368 and $6,465 figures represented. We have often stated that “[t]he trial court is in the best position to assess the credibility of witnesses, weigh the conflicting evidence and observe the witnesses and the evidence first hand.” Geraets v. Halter, 1999 SD 11, ¶ 18, 588 N.W.2d 231, 234 (citing Cowan v. Mervin Mewes, Inc., 1996 SD 40, ¶ 15, 546 N.W.2d 104, 109; In re Estate of Elliott, 537 N.W.2d 660, 662 (S.D.1995)). The trial court weighed the testimony and evidence and found that Jill failed to provide sufficient proof that the extra $6,465 should be included. We find no abuse of discretion on this point.

[¶ 24.] 2. Whether the trial court erred in denying Jill rehabilitative alimony.

[¶ 25.] The award of rehabilitative alimony is reviewed under the same abuse of discretion standard as an alimony award. Urban v. Urban, 1998 SD 29, ¶ 13, 576 N.W.2d 873, 876. We have often held that “[t]he factors to be considered in awarding alimony are: 1) The length of the marriage; 2) the respective earning capacity of the parties; 3) their respective financial conditions after the property division; 4) their respective age, health, and physical condition; 5) their station in life or social standing; and 6) the relative fault in the termination of the marriage.” Ryken v. Ryken, 440 N.W.2d 300, 303 (S.D.1989) (citing Caughron v. Caughron, 418 N.W.2d 791, 793 (S.D.1988); Tesch v. Tesch, 399 N.W.2d 880, 884 (S.D.1987)). In addition to the previous factors, the following additional factors must be considered in awarding rehabilitative alimony: 1) the supporting spouse’s contributions; 2) foregone opportunities to enhance or improve professional or vocational skills; and 3) the duration of the marriage following completion of the non-supporting spouse’s professional education. See Parsons v. Parsons, 490 N.W.2d 733, 735 (S.D.1992). Rehabilitative alimony is “ ‘designed to meet an educational need or plan of action whose existence finds some support in the record.’ ” Urban, 1998 SD 29, ¶ 13, 576 N.W.2d at 876-77 (quoting Radigan, 465 N.W.2d at 486 (citing Ryken, 440 N.W.2d at 303)). “Typically, rehabilitative alimony is awarded when there is testimony to show an educational need or a plan of action to meet that need.” Id. (citing Evans v. Evans, 1997 SD 16, ¶ 35, 559 N.W.2d 240, 248-49).

[¶ 26.] The trial court found: Todd is thirty-four and Jill is thirty-one; both parties are in good health; Todd and Jill were married ten years; Todd is self-employed and has gross income of $4,160; Jill is employed as a mortgage loan processor earning $8.75 per hour and expecting annual income of $17,680; prior to the marriage, Jill had discontinued her attendance at college; during the marriage, Jill had several part-time jobs and periodically assisted the farming and road maintenance operations; and Jill’s earning capacity has not been reduced and she will be substantially debt-free as a result of the property division. The trial court also found that Jill “requires no additional educational training or degree to perform her present jobs requirements and has the competency to earn a living.” Further, the court held that Jill “did not forego education and employment opportunities during the marriage as her current employment demonstrates her ability to obtain employment.” In rejecting Jill’s request for rehabilitative alimony, the court held that Jill “has requested rehabilitative alimony but has not demonstrated her inability to obtain gainful employment, she is earning a wage within her station in life and has not demonstrated that additional training is required for her to become self sufficient when in fact her current employment demonstrates her self sufficiency.”

[¶ 27.] An essential requirement of recovering rehabilitative alimony is that the requesting party must provide testimony of an educational need or plan of action. See, e.g., Urban, 1998 SD 29, ¶ 13, 576 N.W.2d at 877 (allowing no rehabilitative alimony because wife “presented no evidence of any educational need or plan of action to support such an award”). A review of the record reflects that Jill’s plans were speculative at best. She failed to establish that an educational need existed and that she had a meaningful plan to correct that need; therefore, the trial court did not abuse its discretion in denying rehabilitative alimony.

[¶ 28.] Both parties have requested appellate attorney fees. Based upon this decision, both requests are denied and each party is responsible for their own respective attorney fees.

[¶ 29.] We reverse and remand on the issue of valuation of the Kenny Albrecht property, with directions to include the full value of the Kenny Albrecht property in the marital estate. We affirm the judgment of the trial court regarding the Marital Residence, the farm assets, prepaid expenses, and rehabilitative alimony. We have considered issue three and find it to be unpersuasive.

[¶ 30.] MILLER, Chief Justice, and SABERS, KONENKAMP, and GILBERTSON, Justices, concur.

      . Kenneth Albrecht is Todd’s father's first cousin.

      . In Gamos, wife appealed the trial court's award of $25,000 in property to her when the husband and wife had a net worth of over $800,000. 376 N.W.2d at 573. In reviewing the assets, this Court noted that husband and wife had an ownership interest in 4,136.89 acres. Of these acres, 3,070.89 were acquired by husband by either inheritance or estate planning. The remaining land, which was purchased during the marriage, had a total value of $236,150. The trial court found that the "inherited real property was to be excluded from any consideration in the determination of the property division” and wife had made "little, if any, contribution towards the acquisition of the 1,066 acres purchased during the marriage.” Id.-, In reversing the trial court’s award, we noted that "[d]uring the fifteen year plus of marriage of the parties, [wife] contributed all of her teaching income to family expenses” and also performed all of the duties of a housewife and mother. Id. An award of $25,000 was "clearly inadequate and an abuse of discretion on the part of the trial court.” Id.

      In Prentice, wife appealed the trial court's failure to include their farm property, which had been deeded to husband during the marriage. 322 N.W.2d at 881. Husband's father (father) deeded the farm to husband and husband’s sister for $10,000, payable at the rate of $1,000 per year, plus interest. Father testified that this was "not intended to be a gift of the land until his death.” Despite this testimony, the trial court found that “[i]t appears that this land was either a gift from [husband’s] father before the marriage and property which he brought into the marriage subject to the rights that [husband’s] sister may have, or it is still property of [Father], subject to the rights of the two children.” Id. at 882. The trial court disallowed the inclusion of the property in the property division. In reversing the trial court's decision, this Court held,
      [w]hile we can appreciate the trial court’s difficulty in making an equitable division of this property between [husband] and [wife], it is clear that [wife] and her husband, in addition to paying the balance due on the farm, improved the real property by drilling a well ..., constructing a pole barn and improving the residence by approximately $5,000.... Moreover, [wife] helped on the farm after they took possession, worked as secretary, and conducted a plant business. Thus, [wife] contributed to the partial payment and the improvements upon this farm by her work and industry. Given these facts, we believe the trial court abused its discretion in failing to consider this farm property in making an equitable division.

        Id.

      . The testimony of Todd's mother regarding the gift was as follows:
      Q: (Jill’s Attorney): And I’m going to ask you your understanding of the ownership and the arrangements on that property with regard to the land that we are referring to as Kenny Albrecht. Was it your understanding that those quarters were being gifted to your twtf sons by you and your ex-husband?
      A: (Leona): I don’t feel gifted is the correct word.
      Q: How would you define that arrangement?
      A: That land came up for sale and my husband up until now had bought all land in joint tenancy for him and I. Our divorce was pending and so joint tenancy was not an option. I would not allow the three quarters to be bought and excluding me. But we did do the two quarters that way, putting the one in Bill's name, the one in Todd’s name.
      And it.was simply a ploy, partly in our own divorce and the way they set it up with the taxes, with him getting benefit of that [$]10,000, the boys paying the tax on that money, it was more of a ploy than it was anything else. (Emphasis added.)
      Q: Do you recall any specific conversations you and your ex-husband Henry Al-brecht would have had in which the word gift was even used?
      A: Never.
      Q: Was it part of any estate plan?
      A: We did no estate planning.
      Q: Did you ever file a gift tax return for the value of those, the property?
      A: Never.
      Q: And explain your understanding of the arrangement for how payments, what payments you would make and how they would be reported?
      A: Oh, as to the Kenny Albrecht land?
      Q: Yes.
      A: All right. He did malte the $10,000 plus payment to the boys. He gave them that amount. They put that on their income tax as income. They complained, Bill in particular made quite a statement as to having to pay income tax on that money because it simply wasn’t there for him, but he had to pay the income tax on it.
      Q: And then you also declared the rental income as well?
      A: Yes, yes.
      Q: Do you recall any conversation or your understanding of how they determined the value of that rent?
      A: No, it was just, there again, it was a ploy for tax purposes. I questioned the honesty of it in the tax, but it seemed to work for him.

      . In divorce proceedings, we have previously staled that if one comes into the proceeding and claims for the first time that a loan exists, he better bring proof of the loan’s existence. See Grode, 1996 SD 15, ¶7, 543 N.W.2d at 800. In Grode, this Court found that loan was never mentioned before this divorce proceeding, no written documentation exists to support the claim, of the existence of the alleged loan, no interest or principal payments were ever made, and the machinery and equipment were never treated as a loan, but was used for trade-ins and depreciation deductions on income tax returns. Id. Further, we found that the evidence did not support the existence of a bona fide loan. This Court refused to find a loan existed solely on the basis of the self-serving declarations by the husband and his father that a loan existed. Here, Todd is coming into this divorce proceeding and claiming for the first time that this was a gift. As we have said with loans, if one is claiming a gift, he better bring in some evidence to prove the existence of a gift.


source: Caselaw Access Project

author: AMUNDSON, Justice. SABERS, Justice

license: Public Domain

text:
    2000 SD 59
    Allan D. MATHIS, Petitioner and Appellant, v. Beth C. MATHIS, Appellee.
    No. 21092.
    Supreme Court of South Dakota.
    Considered on Briefs Feb. 14, 2000.
    Decided May 3, 2000.

      Brad P. Gordon of Fuller, Tellinghuisen, Gordon <& Percy, Spearfish, Attorneys for petitioner and appellant.
    Linda Lea M. Viken of Viken, Viken, Pechota, Leach & Dewell, Rapid City, Attorneys for appellee.
   AMUNDSON, Justice.

[¶ 1.] Allan Mathis (Allan) brought a petition for modification of his child support payments payable to his former spouse, Beth Mathis (Beth). The circuit court adopted the child support referee’s recommendation that Allan did not provide sufficient information establishing a change in income that would warrant a modification of his child support payments. We affirm.

FACTS

[¶ 2.] Allan and Beth Mathis were divorced on March 23, 1998. At the time of the divorce, Allan and Beth had six children; two children were over age eighteen and four were still minors. The couple entered a stipulation and agreement (agreement) which was incorporated by reference into the divorce decree. The agreement provided that Allan was obligated to pay $1,226 per month for the care and support of the couples’ then four minor children. Also under the agreement, Allan received certain shares of corporate stock. Beth was designated as the physical custodian of the minor children.

[¶ 3.] On March 2, 1999, Allan filed a petition for modification of child support. The basis for his petition was that his income was reduced and one of the children turned eighteen on August 29, 1998, and was graduating from high school. Beth responded to Allan’s petition by arguing no change of circumstances exists as it relates to Allan’s financial condition and if any reduction of income did exist, it was voluntary on the part of Allan.

[¶ 4.] The petition for modification was heard by Child Support Referee John Fee-han on March 24, 1999. The referee found that no sufficient information existed to establish any change in income which would warrant a change in the previous child support order. In calculating Allan’s monthly income, amount of $6,183.33. the referee found that Allan had sold various stock holdings beginning on July 9, 1998, and received $50,-756 in proceeds. The referee annualized the entire proceeds amount of $50,756 over a one-year period for a total of $4,229.67 per month and included this amount as part of Allan’s monthly income amount of The referee concluded that, based upon the combined assets and incomes of the parents, Allan’s child support obligation should be increased from $1,226 to $1,247 per month for the three remaining minor children.

[¶ 5.] Allan appealed the referee’s decision to the Circuit Court, Eighth Judicial Circuit, Lawrence County, South Dakota. After briefs were submitted and oral arguments held on May 25, 1999, the circuit court adopted the referee’s recommendation, including the referee’s calculations containing the annualization of the proceeds from Allan’s stock sale.

[¶ 6.] Allan appeals, raising the following issue:

Whether the trial court erred as a matter of law by adopting the referee’s child support order.

STANDARD OF REVIEW

[¶ 7.] It is well settled that we review a child support referee’s “findings of fact under the clearly erroneous standard and questions of law are fully reviewable.Mixed questions of law and fact are classified as questions of law and are reviewable de novo.” Hendricksen v. Harris, 1999 SD 130, ¶ 7, 600 N.W.2d 180, 181 (citing Permann v. Department of Labor, Unemployment Ins. Div., 411 N.W.2d 113 (S.D.1987); Janke v. Janke, 467 N.W.2d 494 (S.D.1991)). In addition, “[w]hen the circuit court has adopted a child support referee’s findings and conclusions, we apply the clearly erroneous standard of review to the findings and give no deference to conclusions of law.” Matter of Loomis, 1998 SD 113, ¶ 6, 587 N.W.2d 427, 429 (citing Wolff v. Weber, 1997 SD 52, ¶ 7, 563 N.W.2d 136, 138 (citing Whalen v. Whalen, 490 N.W.2d 276, 280 (S.D.1992)); Janke, 467 N.W.2d at 497). Further, “[i]n applying this standard, we will not reverse findings of fact unless we are left with a definite and firm conviction a mistake has been made.” Id. (citing Janke, 467 N.W.2d at 497). We have often noted,

[t]he referee was the fact finder and had the advantage of hearing testimony of witnesses and could directly judge their credibility. As a reviewing court, neither the circuit court nor this [CJourt should attempt to assume such a role. Conclusions of law made by the referee are fully reviewable and may be overturned by a reviewing court whenever they are found to be incorrect.

Hendricksen, 1999 SD 130, ¶7, 600 N.W.2d at 181 (citing Janke, 467 N.W.2d at 494).

DECISION

[¶ 8.] Whether the trial court erred as a matter of law by adopting the referee’s child support order.

[¶ 9.] The determination of the monthly net income of each parent is addressed in SDCL 25-7-6.3. Under the statute,

[tjhe monthly net income of each parent shall be determined by his 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; and
(7) Worker’s compensation benefits.
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.

[¶ 10.] In the present case, the referee had a difficult time determining Allan’s present income level. This difficulty was based upon Allan’s failure to provide a specific income amount; instead, Allan provided several varying income figures. The referee made the following findings in regards to Allan’s monthly income:

a. In his petition for modification of child support [Allan] fails to complete the financial statement which requires an estimation of present income from all sources. No income is listed.
b. In his testimony [Allan] submits wages for himself of $1000 per month.
c. In.a financial statement [Allan] submitted to his lender dated [February 2, 1998,] [Allan] lists his income as $4975.00 per month. He lists assets of $836,295.00 and liabilities of $261,-413.81. (Note is made that the stock holdings that were liquidated were not specifically listed on this financial statement.)
d. In his 1998 personal income tax return [Allan] lists income as follows: wages $13,200; interest income $411.00; dividend income $771.00; rental income $7096.00; and capital losses of ($1500.00) for a total income of $19,978. The tax return lists depreciation of $3466.00. Disallowing depreciation, [Allan’s] income for his tax return is $23,444.00 or $1953.67 per month.

[¶ 11.] A review of the record reveals that Allan was attempting to play “fast and loose” in his reporting of net income. On several different occasions, Allan would report his income at different amounts depending upon whether the reported amount would benefit him: applying for a loan or getting his child support payments lowered. As we have often stated, “[a] referee, after holding a hearing and listening to witnesses, is in a much better position to find facts than a reviewing court.” Janke, 467 N.W.2d at 497. See also Hendricksen, 1999 SD 130, ¶ 7, 600 N.W.2d at 181 (noting that the referee is the fact-finder and has the advantage of hearing the testimony of witnesses and judging their credibility); In re Schmidt, 70 S.D. 161, 164, 16 N.W.2d 41, 42 (1944) (holding that a referee’s findings are entitled to careful consideration by a reviewing court because “the referee saw and heard witnesses with all advantage that is gained from such personal contact”); Wood v. Saginaw Gold Mining & Milling Co., 20 S.D. 161, 163, 105 N.W. 101, 102 (1905) (noting that'the referee “was [a] better ... judge of the weight to be given to the evidence of respective witnesses” than this reviewing court).

[¶ 12.] In this child support modification proceeding, the burden of proof is on Allan to show a “substantial change of circumstances” has occurred which warrants modification. See SDCL 25-7A-22 (providing that for any child support order entered after July 1, 1997, “[t]he order may be modified upon showing a substantial change in circumstances if the petition is filed within three years of the date of the order”). This is a more stringent standard than the mere “change in circumstances” standard that was utilized prior to the 1997 South Dakota Legislative amendment to SDCL 25-7A-22. See Roger M. Baron, Cases and Materials on Family Law for the South Dakota Lawyer 429 (4thEd. 1999). Allan’s failure to meet this stringent burden is evident from the varying income amounts that Allan reported. The referee and trial court both sifted through Allan’s various financial statements and concluded that there was “no sufficient information [provided by Allan] to establish any change in incomes as a basis to change to previous order of child support.” We agree. While the referee might have erred, the record clearly supports the referee’s conclusion since Allan submitted inadequate justification for showing a substantial change of income. If Allan wanted a loan, he reported his income high. If Allan wanted to modify his child support obligation, he reported his income low. We cannot condone this type of presentation to support a request to reduce an individual’s obligation to pay child support. We have often held that “ ‘[i]f the circuit court reaches the right conclusion for the wrong reason, we will nonetheless affirm.’” Estate of Perry, 1998 SD 85, ¶ 29, 582 N.W.2d 29, 35 (quoting Horne v. Crazier, 1997 SD 65, ¶ 5, 565 N.W.2d 50, 52 (citing Kehn v. Hoeksema, 524 N.W.2d 879, 881 (S.D.1994); City of Sioux Falls v. Miller, 492 N.W.2d 116, 118 (S.D.1992) (citations omitted))). Based upon this record, we find that despite trial court’s error, it rendered the correct conclusion.

[¶ 13.] Beth has requested allowance by this Court of attorney fees in the amount of $1,329.98 for her defense of this appeal. Since we conclude that the referee was not clearly erroneous in finding that no change of circumstances existed which warranted modification of Allan’s child support payments, Beth’s request for $1,329.98 in attorney fees is granted.

[¶ 14.] We affirm.

[¶ 15.] MILLER, Chief Justice and KONENKAMP and GILBERTSON, Justices, concur.

[¶ 16.] SABERS, Justice, dissents.

SABERS, Justice

(dissenting).

[¶ 17.] The trial court erred in determining child support by including in Allan’s income not only the gain from a sale of stock but also the principal or cost basis.

[¶ 18.] This appeal is limited in scope to the interpretation of SDCL 25-7-6.3(5). Statutory interpretation is a question of law, which is reviewed de novo. In re Estate of Klauzer, 2000 SD 7, ¶ 22, 604 N.W.2d 474, 479 (citations omitted).

The purpose of statutory construction is to discover the true intention of the law which is to be ascertained primarily from the language expressed in the statute. The intent of a statute is determined from what the legislature said, rather than what the courts think it should have said, and the court must confine itself to the language used. Words and phrases in a statute must be given their plain meaning and effect. When the language in a statute is clear, certain and unambiguous, there is no reason for construction, and the Court’s only function is to declare the meaning of the statute as clearly expressed.

Beck v. Lapsley, 1999 SD 49, ¶ 3, 593 N.W.2d 410, 412 (citations omitted).

[¶ 19.] Generally, all income available to both parties should be considered as income when calculating income for child support purposes. Peterson v. Peterson, 2000 SD 58, ¶26, 610 N.W.2d 69. However, SDCL 25-7-6.3 specifically controls this issue:

The monthly net income of each parent shall be determined by his gross income less allowable deductions, as set forth herein. The monthly gross income of each parent includes amounts received from the following sources:
(5) Gain or loss from the sale, trade or conversion of capital assets....

[¶ 20.] The language of this statute is “clear, certain and unambiguous.” The term “gain” is commonly defined as “[a]p-preciation in value or worth of securities or property.” Black’s Law Dictionary 678 (6 th ed.1990). More specifically, a “gain derived from capital” is defined as “a gain, profit or something of exchangeable value proceeding from the property, severed from the capital however invested.... ” Id. (emphasis added). Clearly, the legislature intended to exclude the cost basis, the amount paid for the stock, from income because only the gain or loss is designated as income. We assume statutes mean what they say and that the legislators have said what they meant.

[¶ 21.] In her appellate brief, Beth cites to numerous cases to support her argument that all monies received from the sale of stock are included as income, regardless of the cost. Her cases include receipt of monies from: (1) the sale of farm machinery, (2) insurance proceeds, (3) an inheritance, (4) a trust fund, and (5) a worker’s compensation award. Even if we were to agree with the inclusion of these receipts of monies as income for child support purposes, it is immaterial here. The South Dakota Legislature specifically and unequivocally provided that only the “gain ... from the sale, trade or conversion of capital assets” is considered as income.

[¶ 22.] Here, the referee calculated Allan’s monthly gross income by using his 1998 income tax return, which reflected a monthly income of $1,953.67 after disallowance of depreciation. The referee included as income Allan’s sale of stock, which Allan previously received as part of the property division in the divorce, amounting to $50,-756 and averaging $4,229.67 per month. The referee combined $1,953.67 and $4,229.67 to conclude that Allan’s monthly income was $6,183.33. Based upon this figure, the referee increased Allan’s monthly child support obligation from $1,226 for four children to $1,247 per month for three children. This was error.

[¶ 23.] Obviously, the referee and the trial court failed to deduct the cost basis of Allan’s stock per SDCL 25-7-6.3(5). Schedule D of Allan’s 1998 income tax return reflects that Allan sold stock for $50,756 with a cost basis of $43,422 resulting in a long-term capital gain of $7,334. The return also reflects that Allan had a short-term loss of $1,492 when he sold his Intel stock. Thus, the total capital gain realized by Allan in 1998 was $5,842. This amount, $5,842, not $50,756, should be included in Allan’s income for child support purposes pursuant to the “clear, certain and unambiguous” language of SDCL 25-7 — 6.3(5). Therefore, the referee and the trial court erred as a matter of law in determining that the entire $50,756 was included as income.

[¶ 24.] Implicitly conceding error, Beth argues alternatively that the $50,756 is included as income to Allan under SDCL 25-7-6.5:

If a child’s needs are not being met through the income of the parents, assets shall be considered. If the parents have savings, life insurance or other assets in amounts unrelated to income, these holdings shall be considered. The parents’ ability to borrow may be used to determine financial ability.

The referee noted that “[t]his is also a case where the assets of the Petitioner Father should be considered if any claims of inadequate cash flow are considered.” However, reliance on this statute is premature and wrong. First, there has been no determination that the needs of the child “are not being met through the income of the parents.” Second, SDCL 25-7-6.3(5) excludes the cost basis of stock as income. While other assets may be considered under SDCL 25-7-6.5, those amounts specifically excluded as income may not be included.

[¶ 25.] While I dislike the manner in which Allan presented his financial situation to the referee, that conduct does not justify an affirmance of an error of law. I vote to reverse the trial court’s erroneous inclusion of the cost basis of the stock as part of Allan’s income and remand for a correct determination of his income and child support obligation.

      . At the time of Allan’s divorce, Allan stipulated that his monthly income was $6,667.

      . The record contains a copy of the Uniform Residential Loan Application by Allan for the purchase of a $106,875 residence on February 1, 1999. This document states that Allan's income is $4,975 per month, which is well in excess of the $1000 per month that Allan stated in his testimony before the referee. Further, this application provides above Allan's signature that his signature certifies that “the information provided is true and correct.”

      . Allan filed his petition for modification of child support, dated February 18, 1999, and stated that “my income have [sic] dropped substantially from the time of my divorce and .needs to be re-evaluated.” At the time of hearing, March 24, 1999, Allan told the referee that he earned $1000 per month. Further, at this hearing Allan agreed to provide a copy of the Uniform Residential Loan Application which was later submitted. This document was filled out by Allan on February 1, 1999 and stated that his income was $4,975 per month. This was all evidence which was in front of the referee. If this was not playing fast and loose on the issue of income available, what is?

      . Allan did not appeal the determination that his 1998 tax return reflected his current income. Therefore, the conference opinion's discussion of his playing "fast and loose” is of little relevance. The referee found that a substantial change of circumstances existed effective June 1, 1999, the date the oldest child graduated from high school. Thus, Allan’s child support obligation was modifiable and the conference opinion's discussion regarding his "failure to meet this stringent burden” is also unnecessary.
      Some of the confusion surrounding Allan’s financial status is attributable to the fact that he solely owns a restaurant in Sundance, Wyoming and is paid $1,000 per month, which amount is deducted from corporate income as an expense. Likewise, Beth Mathis solely owns a restaurant in Spearfish, South Dakota and claims she is paid $500 per month.
      Beth argues that any reduction in Allan’s income is due to his own voluntary act. In justifying the change in the operation of his restaurant, Allan testified that he has experienced management and personnel problems; for example, he fired his restaurant manager, who is now employed by Beth. In considering deviations from the guidelines, the referee found "[t]here is no recommendation for any deviation at this time.”

      . In fact, Beth cites to a Tennessee case that supports this conclusion. In Smith v. Smith, 1999 WL 548568, the Tennessee Court of Appeals noted that it previously remanded the case and had instructed the trial court to "consider [obligor's] 1995 capital gains as well as his commissions, bonuses and salary.” After the capital gains were considered, the child support obligor appealed, but the Smith court affirmed.


text:
    2000 SD 57
    Laurie BARNAUD and Bernard Barnaud, Plaintiffs and Appellants, v. BELLE FOURCHE IRRIGATION DISTRICT, Randy Oliver, Individually and as Manager of the Belle Fourche Irrigation District, and Gary Brunner, Darrel Cox, Steve Gatzke, Harlan Aplo, Art Persche, Robert Ruff, and Walter Stumpf, Individually and as the Board of Directors of the Belle Fourche Irrigation District, Defendants and Appellees.
    No. 20909.
    Supreme Court of South Dakota.
    Argued Oct. 19, 1999.
    Decided May 3, 2000.

      Dorothy A. Dygas, Belle Fourche, Attorney for plaintiffs and appellants.
    Paul S. Swedlund, Marty J. Jackley and G. Verne Goodsell of Gunderson, Palmer, Goodsell & Nelson, Rapid City, Attorneys for defendants and appellees.
   AMUNDSON, Justice.

[¶ 1.] Laurie and Bernard Barnaud (Bar-nauds) appeal the granting of summary judgment in favor of Belle Fourche Irrigation District (District) and the denial by the trial court of Barnauds’ motion to vacate the judgment. We affirm.

FACTS

[¶ 2.] The Canal Act of 1890 (Canal Act), 26 Stat. 391, 43 USC § 945, expressly reserved to the federal government an easement of right-of-way across all lands west of the 100th meridian. The 100th meridian runs in a north-south direction through South Dakota in the vicinities of Gettysburg, Presho, and Winner. Congress passed the Canal Act to allow construction of canals and ditches to provide irrigation to the arid western lands of South Dakota to encourage homesteading of those lands.

[¶ 3.] District was formed in 1904 as a private corporation known as Belle Fourche Valley Water Users’ Association (Association). Association was formed to benefit landowners by delivering water through irrigation works constructed by the United States Department of the Interior pursuant to the Reclamation Act of 1902 (Reclamation Act). The construction began in 1905 under the U.S. Secretary of Interior acting by and through the Bureau of Reclamation (Bureau). The construction consisted of miles of canals, ditches, drainage areas, the Orman Dam, and other irrigation equipment and structures. District, which was responsible for repayment of the construction costs, passed the repayment costs to the water users through the payment of fees.

[¶ 4.] Until 1949 the Bureau operated, maintained and rehabilitated the works it had constructed. In 1949 the Bureau entered into a contract with District, transferring to District the responsibility for and cost of operating and maintaining the irrigation system. After years of attempted repayments by District, the federal government and District entered into an amended repayment contract in 1984. The 1984 contract authorized District, on behalf of the federal government, to coordinate district improvement construction that would be paid for by the federal government. In addition, the contract transferred “all of the Belle Fourche Unit project works including the irrigation canals, laterals, drains, and appurtenant structures” to District. Under the contract, District was required, “without expense to the United States,” to “care for, operate, and maintain the transferred works in full compliance with the contract.” The contract specifically noted that title to the project facilities would remain in the name of the United States.

[¶ 5.] In the Spring of 1993, Barnauds purchased a parcel of land within the District. During 1993 District was involved in a federally funded irrigation district improvement project to increase the efficiency of District’s irrigation ditches through the piping and infilling of ditches. In the course of its construction work, contractors hired by District dismantled ¾ of a mile of fence on Barnauds’ land to allow construction equipment passage upon the right-of-way and to access the ditch to construct improvements.

[¶ 6.] District had a policy which allowed construction workers to dismantle a fence by rolling up the wire and piling the posts in an area designated by the landowner. However, replacement of the fence was the responsibility of the landowner. The ditch project lasted from the Fall of 1993 to the Spring of 1994. During this time, Bar-nauds installed a temporary electric fence to contain their livestock. Two District employees assisted Barnauds in relocating approximately seventy steel fence posts to form a temporary fence line approximately 125 feet from the edge of the county road. The remainder of the fence was constructed at Barnauds’ expense.

[¶ 7.] The added cost of building and maintaining an electric fence placed Bar-nauds in a cash-shortage position. Due to them cash shortage and possible inability to pay District’s assessment for water delivered in 1995, Barnauds asked District to compensate them for removing them fence. When the pipe installation was completed, District refused to replace Barnauds’ permanent fence that had been removed or provide compensation to them for removing their fence. Believing that they had to pay for their own fence replacement twice, once for installation of the pipe and another for the loss of productivity to their land, Barnauds brought an action against District in small claims court, which was later removed to circuit court by Barnauds.

[¶ 8.] The trial court granted summary judgment for District, finding that the fence was within the Canal Act right-of-way easement and District acted within its authority in removing the obstruction from the right-of-way. The trial court advised Barnauds that jurisdiction for any claim for compensation they sought would lie in federal district court. The court also granted District’s motion to dismiss all named district board members in their individual capacity pursuant to SDCL 15-6 — 12(b)(5) based upon Barnauds’ failure to state a claim against these individuals.

[¶ 9.] Barnauds appeal, raising the following issues:

1. Whether the circuit court erred in granting the district summary judgment and dismissing as to the individual defendants by reason of the grant of summary judgment.
2. Whether the circuit court erred further in denying Barnauds’ motion to vacate the judgment.

DECISION

[¶ 10.] 1. Whether the circuit court erred in granting the District summary judgment and dismissing as to the individual defendants by reason of the grant of summary judgment.

a. Summary Judgment

[¶ 11.] In addressing a summary judgment motion, “[t]he moving party has the burden of proving that under the substantive law and the evidence presented there is no genuine issue of material fact.” Nelson v. Belle Fourche Irrigation Dist., 539 N.W.2d 682, 683 (S.D.1995) (citing Tipton v. Town of Tabor, 538 N.W.2d 783, 785 (S.D.1995)). Our standard of review in a summary judgment case is well settled.

Summary judgment is authorized ‘if the pleadings, depositions, answers to interrogatories, and admission on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law.’ SDCL 15 — 6—56(c). We will affirm only when there are no genuine issues of material fact and the legal questions have been correctly decided. All reasonable inferences drawn from the facts must be viewed in favor of the nonmov-ing party. The burden is on the moving party to clearly show an absence of any genuine issue of material fact and an entitlement to judgment as a matter of law.

Shevling v. Butte County Bd. of Comm’rs, 1999 SD 88, ¶ 13, 596 N.W.2d 728, 730 (quoting Estate of Shuck v. Perkins County, 1998 SD 32, ¶ 6, 577 N.W.2d 584, 586 (internal citations omitted)).

[¶ 12.] In the present case, there is no dispute that a Canal Act easement exists on Barnauds’ land pursuant to an express reference to the Canal Act in Barnauds’ original November 22, 1916, land patent. Barnauds do dispute the extent of the easement and claim that they are entitled to just compensation for the removal of their fence and its relocation 125 feet from the ditch. It is well settled that the “Fifth Amendment provides that private property shall not be taken for public use without just compensation.” United States v. 106.64 Acres of Land, Etc., State of Nebraska, 264 F.Supp. 199, 201 (D.Neb.1967). In 106.64. Acres of Land, the district court of Nebraska held that “[n]o constitutional right to just compensation arises when an easement is exercised pursuant to 43 USC[ ] § 945.” Id. The only right to compensation is statutorily authorized by 43 USC § 945a. Id. This section, passed on October 4,1966, states,

Notwithstanding the existence of any reservation of right-of-way to the United States for canals under section 945 of this title, or any State statute, the Secretary of Interior shall pay just compensation, including severance damages, to the owners of private land utilized for ditches and canals in connection with any reclamation project, or any unit or any division of a reclamation project, provided the construction of said ditches or canals commenced after January 1, 1961, and such compensation shall be paid notwithstanding the execution of any agreements or any judgments entered in any condemnation proceeding, prior to September 2,1964.

43 USC § 945a (1986).

[¶ 13.] In lieu of § 945a, 43 USC § 945b must also be considered. Section 945b clearly and unambiguously states,

Jurisdiction of an action brought by the United States or the landowner for the determination of just compensation pursuant to section 945a of this title is hereby conferred on the United States district court in the district in which any such land is situated, without limitation to the amount of compensation sought by such suit.... (Emphasis added.)

The statute clearly states that an action by a landowner seeking “just compensation” under § 945a must be brought in United States District Court. Barnauds’ claim for just compensation under § 945a would have to be brought in United States District Court of South Dakota. Considering § 945a and § 945b together, an action for just compensation under § 945a clearly must be brought in federal court.

[¶ 14.] Next, Barnauds claim that state law, not federal law, should be applied in this case. The basis for Barnauds’ contention is that section eight of the Reclamation Act superseded the Canal Act of 1890 and required irrigation districts to comply with state law. Section eight provides:

Nothing in this Act shall be construed as affecting or intended to affect or to in any way interfere with the laws of any State or Territory relating to the control, appropriation, use, or distribution of water used in irrigation, or any vested right acquired thereunder, and the Secretary of the Interior, in carrying out the provisions of this Act, shall proceed in conformity with such laws, and nothing herein shall in any way affect any right of any State or of the Federal Government or of any landowner, appropriator, or user of water in, to, or from any interstate stream or the waters thereof.

43 USC § 383 (1986) (emphasis added).

[¶ 15.] In Ivanhoe Irrigation Dist. v. McCracken, 357 U.S. 275, 291, 78 S.Ct. 1174, 1183-84, 2 L.Ed.2d 1313, 1325 (1958), the United States Supreme Court interpreted § 8 of the Reclamation Act to “merely require[] the United States to comply with state law when, in the construction and operation of a reclamation project, it becomes necessary for it to acquire water rights or vested interests therein.” A clear reading of § 8 shows that this section deals with the use of water and water rights. The United States Supreme Court noted this when they stated that “the acquisition of water rights must not be confused with the operation of federal projects.” 357 U.S. at 291, 78 S.Ct. at 1184, 2 L.Ed.2d at 1325.

[¶ 16.] In the present case, this Court is faced with a “federal project” to make District’s irrigation ditches more efficient. The rehabilitation work was achieved through the utilization of the Canal Act right-of-way easement granted to the District pursuant to the 1949 contract. The use of a right-of-way and the subsequent removal of obstacles to that easement have nothing to do with water rights. See California v. United States, 438 U.S. 645, 664, 98 S.Ct. 2985, 2995, 57 L.Ed.2d 1018, 1032 (1978) (noting that the Reclamation Act “clearly provided that state water law would control in appropriation and later distribution of water”). Barnauds’ reliance on § 8 of the Reclamation Act is therefore misplaced.

[¶ 17.] Under the law, 43 USC § 945b requires that an action under § 945a, for just compensation, is within the jurisdiction of the United States District Court. The circuit court’s decision on the existence of the easement and jurisdiction over the just compensation issue was in accordance with the law; therefore, we find the trial court did not err in granting District’s motion for summary judgment.

b. Dismissal of individually named defendants

[¶ 18.] In the present case, the trial court granted District’s motion to dismiss pursuant to SDCL 15-6-12(b)(5) on behalf of all individually named defendants (defendants) due to Barnauds’ failure to state a claim. It is well settled that “[a] motion to dismiss under Rule 12(b)(5) tests the law of a plaintiffs claim, not the facts which support it.” Thompson v. Summers, 1997 SD 103, ¶ 5, 567 N.W.2d 387, 390 (citing Stumes v. Bloomberg, 1996 SD 93, ¶ 6, 551 N.W.2d 590, 592; Schlosser v. Norwest Bank South Dakota, 506 N.W.2d 416, 418 (S.D.1993)). Under Schlosser, the trial court is directed to consider,

the complaint’s allegations and any exhibits which are attached. The court accepts the pleader’s description of what happened along with any conclusions reasonably drawn therefrom. The motion may be directed to the whole complaint or only specified counts contained in it.... ‘In appraising the sufficiency of the complaint we follow, of course, the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’ [quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80, 84 (1957)]. The question is whether in the light most favorable to the plaintiff, and with doubt resolved in his or her behalf, the complaint states any valid claim of relief. The court must go beyond the allegations for relief and ‘examine the complaint to determine if the allegations provide for relief on any possible theory.’

Id. (quoting Schlosser, 506 N.W.2d at 418 (emphasis in original)) (citation omitted). An appeal of a motion to dismiss presents a question of law and our standard of “review is de novo, with no deference given to the trial court’s legal conclusions.” Id. (citing City of Colton v. Schwebach, 1997 SD 4, ¶ 8, 557 N.W.2d 769, 771).

[¶ 19.] All that Barnauds argue in their brief is that defendants trespassed upon their property, deprived them of compensation which they were constitutionally and statutorily entitled, and District’s denial of Barnauds’ right to just compensation constituted a compensable action under 42 USC § 1983.

[¶ 20.] Barnauds fail to cite any authority for their arguments that the individual district board members should not have been dismissed pursuant to SDCL 15-6-12(b)(5) and that the District’s actions made them liable under § 1983. It is well settled that “ ‘failure to cite authority violates SDCL 15-26A-60(6) and constitutes a waiver of that issue.’ ” Gleason v. Peters, 1997 SD 102, ¶ 20, 568 N.W.2d 482, 486 (quoting State v. Phillips, 489 N.W.2d 613, 616 (S.D.1992)). As such, both issues are deemed waived.

[¶ 21.] 2. Whether the circuit court erred further in denying Barnauds’ motion to vacate the judgment.

[¶ 22.] In the present case, Barnauds moved to vacate the trial court’s judgment based upon newly discovered evidence pursuant to SDCL 15-6-60(b). This Court has repeatedly noted that a Rule 60(b) motion is equitable in nature and is designed to “ ‘preserve the delicate balance between the sanctity of final judgments and the incessant command of a court’s conscience that justice be done in light of all the facts.’ ” Hrachovec v. Kaarup, 516 N.W.2d 309, 310-11 (S.D.1994) (quoting Peterson v. La Croix, 420 N.W.2d 18, 19 (S.D.1988) (citations omitted)).

[¶ 23.] It is well settled that “[t]he decision to grant or deny a Rule 60(b) motion rests within the sound discretion of the trial court and will not be disturbed on appeal except for abuse.” Id. at 311 (citing Gold Pan Partners, Inc. v. Madsen, 469 N.W.2d 387 (S.D.1991); Tingle v. Parkston Grain Co., 442 N.W.2d 252 (S.D.1989); Clarke v. Clarke, 423 N.W.2d 818 (S.D.1988); Haggar v. Olfert, 387 N.W.2d 45, 51 (S.D.1986); Peterson, 420 N.W.2d at 19; Matter of T.M.B., 416 N.W.2d 260 (S.D.1987)). An abuse of discretion is “ ‘a discretion exercised to an end or purpose not justified by, and clearly against, reason and evidence.’ ” Id. (quoting Herndon v. Herndon, 305 N.W.2d 917, 918 (S.D.1981)). This Court will review the matter to determine “ ‘whether we believe a judicial mind, in view of the law and the circumstances, could reasonably have reached the conclusion.’ ” Id. (quoting Dacy v. Gors, 471 N.W.2d 576 (S.D.1991) (citation omitted)).

[¶ 24.] To prevail on a motion for relief of a judgment under SDCL 15 — 6—60(b) based upon newly discovered evidence, the moving party (Barnauds) must prove the following:

(1) the evidence was discovered after trial;
(2) [the moving party] exercised due diligence to obtain the evidence for trial;
(3) the evidence is not merely cumulative or impeaching;
(4) the evidence is material; and
(5) the evidence is such that a new trial would probably produce a new verdict.

Hrachovec, 516 N.W.2d at 312 (citing Haggar, 387 N.W.2d at 51) (emphasis in original). The language clearly reflects that “the failure to prevail on any one of these elements defeats a party’s ability to obtain relief under Rule 60(b)(2).” Id.

[¶ 25.] Barnauds’ contentions arise primarily out of the “Belle Fourche Irrigation District Policies” (Policy) updated by District in 1993. This claim by Barnauds originated out of District’s response to Barnauds’ interrogatories; specifically, question number 24 which requested District to identify any document related to the subject matter of Barnauds’ complaint. District’s manager, Randy Oliver, responded with “none known at this time.”

[¶ 26.] Barnauds had received a copy of the policy, but the policy did not contain an attached section referred to as “Land Policy Memorandum 87-2,” which discussed the “Conflicts in Use on 1890 Canal Act Right-of-Way” (conflicts memo). The table of contents to the policy identified that the memorandum was “attached,” when in fact, the memorandum was not attached to Barnauds’ copy of the policy. The memorandum, dated October 1, 1986, was addressed from the Associate Solicitor, Energy and Resources, and was attached to a February 10, 1987, memorandum entitled “Use and Control of 1890 Canal Act Rights-of-Way” (use memo). District attached and relied upon a copy of the “use memo” in its motion for summary judgment, but did not include the originally attached “conflicts memo.” Laurie Bar-naud discovered the existence of the memorandums after she was elected to the district board of directors and received a copy of the memorandum along with other information regarding the District.

[¶ 27.] As previously mentioned, Barnauds must prove every element of the Rule 60(b)(2) test in order to prevail. It is undeniable that Barnauds discovered the existence of the memorandum after trial. The trial had long since been over when Laurie Barnaud was elected to the District’s board and received a copy of the memorandums. It is also undeniable that Barnauds exercised due diligence in obtaining evidence for trial. Barnauds made motions for discovery and served interrogatories on the defendants. Barnauds easily meet the first two elements of their burden of proof.

[¶ 28.] Barnauds failed to meet the third element, “the evidence is not merely cumulative or impeaching.” “Cumulative evidence” is defined as “[additional or corroborative evidence to the same point. That which goes to prove what has already been established by other evidence.” Black’s Law Dictionary 380 (6thEd. 1990). The gist of the “conflicts memo” is a summation and accumulation of case law and research on the 1890 Canal Act. Everything in the memo is discoverable through diligent research by an attorney. In addition, the evidence in the “conflicts memo” presents nothing different than was presented at the motions hearing. The trial court did not abuse its discretion in denying Barnauds’ motion to vacate pursuant to SDCL 15—6—60(b)(2).

[¶ 29.] We affirm.

[¶ 30.] MILLER, Chief Justice, and SABERS, KONENKAMP, and GILBERTSON, Justices, concur.

      . In their complaint, Barnauds alleged unlawful removal of the fence without due compensation, trespass, and violation of their due process rights pursuant to 42 USC § 1983.

      . The Canal Act, which is codified under 43 USC § 945, provides:
      In all patents for lands taken up after August 30, 1890, under any of the land laws of the United States or on entries or claims validated by this act west of the one hundredth meridian, it shall be expressed that there is reserved from the lands in said patent described, a right of way thereon for ditches or canals constructed by the authority of the United States. (Emphasis added.)

      . SDCL 15 — 6—60(b) provides in pertinent part:
      On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons:
      (2) Newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under § 15 — 6—59(b);
      The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order or proceeding was entered or taken....