author: MARING, Justice. SANDSTROM, Justice,

text:
    2002 ND 35
    Jenny A. ZELLER, f/k/a Jenny A. Meyers, n/k/a Jenny A. Holloway, Plaintiff and Appellant, v. Doni E. ZELLER, Defendant and Appellee.
    No. 20010134.
    Supreme Court of North Dakota.
    Feb. 21, 2002.

      Robert G. Will, Minot, for plaintiff and appellant.
    Donald L. Peterson, Kenner Sturdevant Peterson & Cresap, PC, Minot, for defendant and appellee.
   MARING, Justice.

[¶ 1] Jenny Zeller (now known as Jenny Holloway) appealed an order denying her motion to change the residence of the parties’ children from North Dakota to Missouri. We reverse and remand for entry of an order granting the motion.

[¶ 2] When Jenny Zeller and Doni Zel-ler, members of the United States Air Force stationed at Minot, divorced in 1997, they were awarded joint legal custody of their children, Kodi and Kole, who were born in 1994 and 1995. Jenny was awarded physical custody of the children. In accordance with the parties’ stipulation, the divorce judgment provides:

Both parties acknowledge that orders from the United States Air Force permanently transferring Jenny outside the state of North Dakota, if-accepted by her, and if such transfer actually takes place, will constitute a material change in circumstances that will justify transferring physical custody of the two minor children to Doni, and that custody will therefore in fact be transferred to him.

Jenny and the children moved to Grand Forks when Jenny was transferred to Grand Forks Air Force Base in 1998.

[¶ 3] In 2000, Jenny received orders for a transfer to Fort Leonard Wood, Missouri, for a four-year teaching assignment. Jenny moved for an order allowing her to change the residence of the parties’ children from North Dakota to Fort Leonard Wood, Missouri. Doni, who is still stationed at Minot Air Force Base, opposed the motion, relied on the decree-incorporated agreement for a change of custody if Jenny were transferred outside of North Dakota, and asserted it would be in the best interests of the children to reside with him if Jenny transferred to Missouri. After a hearing, the district court denied Jenny’s motion to allow a change of residence for the children, and Jenny appealed.

[¶ 4] A custodial parent’s change of a child’s residence to another state is governed by N.D.C.C. § 14-09-07, which provides, in part:

A parent entitled to the custody of a child may not change the residence of the child to another state except upon order of the court or with the consent of the noncustodial parent, if the noncustodial parent has been given visitation rights by the decree.

The purpose of the statute is to protect the noncustodial parent’s visitation rights. Hentz v. Hentz, 2001 ND 69, ¶ 5, 624 N.W.2d 694. The best interest of the child is the primary consideration in determining if the custodial parent should be permitted to change the child’s residence to another state. Id.

[¶ 5] A trial court’s decision as to whether a proposed move to another state is in the best interest of a child is a finding of fact which we will not overturn unless it is clearly erroneous. Hentz, 2001 ND 69, ¶ 6, 624 N.W.2d 694. “A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, if there is no evidence to support it, or if, after reviewing all the evidence, we are left with a definite and firm conviction a mistake has been made.” Tibor v. Tibor, 1999 ND 150, ¶ 8, 598 N.W.2d 480.

[¶ 6] In determining if a request to change a child’s residence to another state is in the child’s best interest, the trial court must consider four factors:

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

Hentz, 2001 ND 69, ¶ 7, 624 N.W.2d 694. “When the relevant factors weigh in favor of the custodial parent’s request to relocate the children, the trial court’s denial of the motion constitutes reversible error.” Tibor, 1999 ND 150, ¶ 27, 598 N.W.2d 480. See also Paulson v. Bauske, 1998 ND 17, ¶¶ 8, 9, 14, 574 N.W.2d 801 (where trial court found factors 2, 3, and 4 presented no obstacle to a change of residence, and its finding under factor 1 that the child’s quality of life would not be improved was clearly erroneous, the court’s denial of the requested move because it would not be in the child’s best interest was clearly erroneous).

[¶ 7] In addressing the four factors for consideration of a change in a child’s state of residence, the trial court found:

The Plaintiff, arguably complies with factor number 2 concerning the integrity of the custodial parent’s motive for relocation considering whether it is to defeat or deter visitation by the non-custodial parent. Plaintiff complies with the other three factors.

Thus, the trial court found, as Doni’s counsel conceded at oral argument, that Jenny had satisfied the relevant factors to be considered in determining a relocation request, which, therefore, weighed in favor of Jenny’s request to relocate the children.

[¶ 8] Despite the fact that the relevant factors to be considered in determining Jenny’s relocation request weighed in favor of the request, the trial court found the parties’ decree-incorporated stipulation which automatically transferred physical custody of the children from Jenny to Doni if Jenny is transferred out of North Dakota, “is the law of the case,” and found “[i]t is in the best interest of the children to be in the physical custody of their father if Plaintiff relocates to Fort Leonard Wood, Missouri.”

[¶ 9] Jenny relies on a number of decisions from other jurisdictions for the proposition that a trial court is not bound by a stipulation for a future change of custody upon the occurrence of a specified event. See Hovater v. Hovater, 577 So.2d 461 (Ala.Civ.App.1990); In re Marriage of Thielges, 623 N.W.2d 232 (Iowa Ct.App.2000); In re Marriage of Witzenburg, 489 N.W.2d 34 (Iowa Ct.App.1992); In re Marriage of Hunt, 476 N.W.2d 99 (Iowa Ct.App.1991); Williams v. Pitney, 409 Mass. 449, 567 N.E.2d 894 (1991); Masters v. Craddock, 4 Mass.App.Ct. 426, 351 N.E.2d 217 (1976); Phillips v. Jordan, 241 Mich.App. 17, 614 N.W.2d 183 (2000); Napora v. Napora, 159 Mich.App. 241, 406 N.W.2d 197 (1986); Bell v. Bell, 572 So.2d 841 (Miss.1990); Hill v. Robbins, 859 S.W.2d 355 (Tenn.Ct.App.1993); deBeaumont v. Goodrich, 162 Vt. 91, 644 A.2d 843 (1994); Wilson v. Wilson, 12 Va.App. 1251, 408 S.E.2d 576 (1991); Watt v. Watt, 971 P.2d 608 (Wyo.1999).

[¶ 10] In Bastian v. Bastian, 160 N.E.2d 133, 134 (Ohio Ct.App.1959), the parties’ 1952 divorce judgment incorporated their separation agreement, which gave the father custody of their child, but provided that the mother would get custody if she “obtains adequate and proper living quarters and is able to properly care for” the child. After remarrying, the mother moved for custody in 1958. The trial court “believed that it was bound by the agreement of the parties, and hence could not exercise any discretion in the matter of future custody.” Id. at 136. The appellate court disagreed, observing: “The pole star in all custody matters between parents is, what is for the best interests of the child whose custody it is sought to change.” Id. The court continued: “nothing that the parents do, in the matter of agreement for custody, can usurp the duty of the court to determine, as between the parents, that which is for the best interest of the children.” Id. The court recognized, however, that the trial court’s duty “is most frequently discharged by accepting as its order that to which the parties have agreed.” Id.

[¶ 11] In Hovater v. Hovater, 577 So.2d 461 (Ala.Civ.App.1990), the divorce decree incorporated the parties’ agreement that if either party moved out of the Mt. Hope School District, the other party would get physical custody of the children. The appellate court held the provision was invalid, explaining: “We find ... the custodial reversionary clause in this instance to be of no effect because it is premised on a mere speculation of what the best interests of the children may be at a future date.” Id. at 463.

[¶ 12] In Phillips v. Jordan, 241 Mich.App. 17, 614 N.W.2d 183, 185 (2000), the trial court entered a stipulated order providing “if plaintiff moved away from Owos-so, defendant would be given physical custody of the child.” Plaintiff remarried and petitioned for a change of domicile to California. Defendant petitioned for a change of custody and enforcement of the stipulated order. The trial court set aside the stipulated order. The appellate court affirmed, explaining:

However, contract principles do not govern child custody matters.... While trial courts try to encourage parents to work together to come to an agreement regarding custody matters, the circuit court retains jurisdiction over the child until the child reaches the age of majority. The trial court cannot blindly accept the stipulation of the parents, but must independently determine what is in the best interests of the child.

Id. at 186.

[¶ 13] In deBeaumont v. Goodrich, 162 Vt. 91, 644 A.2d 843, 845-46 (1994), the court said the parties’ stipulation that a move of more than 50 miles “ ‘shall constitute a change in circumstances so the court may reconsider existing parental responsibilities and visitation’ ... provided the family court with a reasonable basis to find changed circumstances.” However, the court held it “would not give effect to an ‘automatic change’ provision ‘because it is premised on a mere speculation of what the best interests of the children may be at a future date.’ ” Id. at 846 (quoting Hovater, 577 So.2d at 463).

[¶ 14] In Martin v. Martin, 798 P.2d 321 (Wyo.1990), the trial court provided in a divorce decree for an automatic custody modification if either party moved from Laramie, Wyoming. The supreme court held the trial court abused its discretion, explaining that speculation about the effects of a possible future move “is not a substitute for complete analysis of all existing circumstances when and if a change in the established child custody arrangement becomes necessary.” Id. at 323. “It is the trial court’s duty to see that the children are protected at every turn.” Jasper v. Jasper, 351 N.W.2d 114, 117 (S.D.1984). “Although stipulations are favored by the judicial system and are generally upheld, a parent may not bargain away a child’s right by agreement with a former spouse.” Napora v. Napora, 159 Mich.App. 241, 406 N.W.2d 197, 199 (1986) (citation omitted).

[¶ 15] The foregoing decisions are consonant with existing North Dakota law. Section 14^05-22(1), N.D.C.C., provides, in part: “In an action for divorce, the court ... may give such direction for the custody ... of the children of the marriage as may seem necessary or proper, and may vacate or modify the same at any time.” Section 14-09-06.1, N.D.C.C., provides: “An order for custody of an unmarried child ... must award the custody of the child to a person ...' as will, in the opinion of the judge, promote the best interests and welfare of the child.” (Emphasis added.) The trial court has continuing jurisdiction over child custody, Voskuil v. Voskuil, 256 N.W.2d 526, 529 (N.D.1977), and a custody award “is always subject to modification as the best interests of the children may require,” Bryant v. Bryant, 102 N.W.2d 800, 803 (N.D.1960).

[If 16] In Malaterre v. Malaterre, 293 N.W.2d 139, 141 (N.D.1980), Doris and Frederick Malaterre stipulated Doris would have custody of their child. The 1976 divorce judgment adopted the parties’ stipulation. Id. at 141. In 1979, Frederick moved the district court to modify the 1976 judgment and award him custody. Id. Doris opposed the motion, asserting, in part, that the stipulation was “a full and complete compromise and settlement of all the parties’ property rights and of all claims and demands of every kind, nature, and description.” Id. The district court held, in part: “Now, I expressly reject the concept that parties, by agreement, may oust a district court of this state of jurisdiction; it has continuing jurisdiction over child custody.” Id. This Court agreed with the district court:

The general rule in North Dakota is that a court having jurisdiction to hear a divorce action continues to have jurisdiction regarding the custody, care, and education of the children of the marriage as may be deemed necessary or proper and to vacate or modify any decree as is deemed appropriate in the best interests of the children. This is true regardless of any contract of the parties to the contrary. Therefore, we agree with the district court that it was not ousted of its jurisdiction by the “stipulation property settlement agreement” entered into by Doris and Frederick.

Id. at 142 (citation omitted). See also Tiokasin v. Haas, 370 N.W.2d 559, 562 (N.D.1985) (“This court has often stated that a trial court is not bound to accept stipulations which purport to determine questions regarding the custody and care of the children of a marriage if it finds that it is not in the best interests of the children to do so.”); Mathisen v. Mathisen, 276 N.W.2d 123, 129 (N.D.1979) (“In custody matters, the district court is not bound by private arrangements to which the parties have agreed.”); Voskuil v. Voskuil, 256 N.W.2d 526, 529 (N.D.1977) (a trial court “is not bound to accept stipulations and side agreements which purport to determine custody questions if it finds that it is not in the best interests of the children that it do so”); Foster v. Nelson, 206 N.W.2d 649, 650 (N.D.1973) (“The court retains control of the decree of divorce insofar as the rights of the children are concerned, regardless of any contract of the parties to the contrary.”).

[¶ 17] “[A] stipulation by the parents prohibiting or limiting the power of the court to modify future child support is against public policy and invalid.” Zarrett v. Zarrett, 1998 ND 49, ¶ 10, 574 N.W.2d 855. If divorcing parents may not validly limit the trial court’s power to modify child support by agreement, it follows a fortiori that divorcing parents may not validly limit the trial court’s power to modify custody provisions by agreement. There is no reason to apply a less stringent rule in custody matters than in support matters.

[¶ 18] In accordance with the foregoing decisions, we conclude a stipulated divorce provision for an automatic change in custody upon the occurrence of a future event is unenforceable and the district court retains control over the rights of children, regardless of any contrary agreements of the divorcing parties.

[¶ 19] The trial court erred in holding the parties’ stipulation to automatically transfer physical custody of the children from Jenny to Doni if Jenny is transferred out of North Dakota, “is the law of the case.” The trial court was not bound by that stipulation. We conclude the trial court’s finding “[i]t is in the best interest of the children to be in the physical custody of their father if Plaintiff relocates to Fort Leonard Wood, Missouri,” was induced by an erroneous view of the law that the parties’ stipulation for a change in physical custody was “the law of the case,” which the court was bound to enforce. The trial court found that Jenny had satisfied the relevant factors to be considered in determining a relocation request. Thus, the court’s denial of Jenny’s request to relocate the children constitutes reversible error. Hentz v. Hentz, 2001 ND 69, ¶ 7, 624 N.W.2d 694; Tibor v. Tibor, 1999 ND 150, ¶ 27, 598 N.W.2d 480; Stout v. Stout, 1997 ND 61, ¶ 52, 560 N.W.2d 903.

[¶ 20] The order is reversed, and the matter is remanded for entry of an order granting Jenny’s motion to relocate the children and appropriately modifying the visitation provisions in the judgment to provide a basis for fostering the noncustodial parent’s relationship with the children.

[¶ 21] VANDE WALLE, C.J., and NEUMANN and KAPSNER, JJ., concur.

SANDSTROM, Justice,

dissenting.

[¶ 22] Although I agree that a district court is not bound by a stipulation requiring an automatic change of custody upon the occurrence of a specific event, I dissent because of the majority’s disposition of this case.

I

[¶ 23] The case should be remanded to the district court for a hearing on the motion to relocate without the validity of the stipulation clouding the proceeding.

[¶ 24] This case differs from several of those cited by the majority, because Doni Zeller did not file a motion for change of custody in response to Jenny Zeller’s motion to relocate. See, e.g., Hovater v. Hovater, 577 So.2d 461 (Ala.Civ.App.1990); In re Marriage of Thielges, 623 N.W.2d 232 (Iowa Ct.App.2000); Williams v. Pitney, 409 Mass. 449, 567 N.E.2d 894 (1991); Phillips v. Jordan, 241 Mich.App. 17, 614 N.W.2d 183 (2000); Wilson v. Wilson, 12 Va.App. 1251, 408 S.E.2d 576 (1991); Watt v. Watt, 971 P.2d 608 (Wyo.1999). Rather, he relied solely on the couple’s previous stipulation.

[¶ 25] Doni Zeller’s reliance upon the parties’ stipulation was not misplaced, because of the absence of North Dakota case law or statutes regarding stipulations for automatic changes of custody. While a majority of jurisdictions treat stipulations regarding the automatic change of custody as void, this view is not unanimous. See, e.g., Carr v. Carr, 207 Ga.App. 611, 429 S.E.2d 95 (1993); Maeda v. Maeda, 8 Haw.App. 139, 794 P.2d 268 (1990).

[¶ 26] A review of the district court’s proceedings shows the court was focusing on the validity of the stipulation rather than the statutory test for relocation. I would remand for a hearing on the motion to relocate without the confusion of the validity of the stipulation.

II

[¶ 27] Although I disagree with the majority’s disposition of this case, I do not read its opinion as precluding Doni Zeller from immediately seeking a change of custody. The Court’s remand instructions are not a disposal of a motion for modification on its merits under N.D.C.C. § 14-09-06.6(2) (“if a motion for modification has been disposed of upon its merits, no subsequent motion may be filed within two years of disposition of the prior motion”). Doni Zeller may file a motion for change of custody immediately upon remand.

[¶ 28] If Doni Zeller should choose to seek a change of custody, he would be free to argue the couple’s stipulation is evidence of a material change in circumstances. See, e.g., Studenroth v. Phillips, 230 A.D.2d 247, 657 N.Y.S.2d 257 (N.Y.App.Div.1997) (parties may stipulate what will constitute a change in circumstances); deBeaumont v. Goodrich, 162 Vt. 91, 644 A.2d 843 (1994) (parties may stipulate a move by either parent outside a specific geographic area would constitute a change in circumstances). He would also be free to argue the stipulation is evidence the couple agreed the best interests of the children would be served by allowing them to continue to live in North Dakota once Jenny Zeller accepted a transfer out of North Dakota. 1 Alexander Lindey <& Louis I. Parley, Lindey & Parley on Separation Agreements and Antenuptial Contracts § 20.76[3][c] (2d.2001).

[¶ 29] Dale V. Sandstrom

      . Doni did not bring a motion for a change of custody in response to Jenny’s motion to relocate the residence of the children. At oral argument, counsel for Doni asserted a remand for modification of the visitation provisions might be necessary if we agreed with Jenny’s position.


source: Caselaw Access Project

author: FLEMMER, Circuit Judge. SABERS, Acting Chief Justice

license: Public Domain

text:
    2002 SD 14
    FULL HOUSE, INC., Plaintiff and Appellant, v. Kermit G. STELL, Marlene J. Stell, and Melodee S. Stell, Defendants, v. B.R.I., Inc., Intervenor and Appellee.
    Nos. 21736, 21761.
    Supreme Court of South Dakota.
    Considered on Briefs Aug. 28, 2001.
    Decided Jan. 30, 2002.

      Michael V. Wheeler of Demersseman Jensen, Rapid City, Attorney for plaintiff and appellant.
    Samuel D. Kerr of Banks Johnson Col-bath & Kerr, Rapid City, Attorney for intervenor and appellee.
   FLEMMER, Circuit Judge.

[¶ 1.] This is an appeal in a quiet title action concerning the existence and use of an easement for an advertising billboard sign in Deadwood, South Dakota. The real property on which the easement is located belongs to the plaintiff and appellant, Full House, Inc. (Full House). The sign on the easement is for a Best Western Motel owned by B.R.I. Inc. (BRI), the intervenor below and the appellee here. The original defendants, Kermit and Marlene Stell and Melodee Nelson (Stell) defaulted in the circuit court and are not parties to this appeal.

[¶ 2.] Summary judgment was granted to BRI. The circuit court found that no material issue of fact exists as to the claims set forth in the record and that BRI is entitled to judgment as a matter of law. Full House appeals. We affirm.

STATEMENT OF FACTS

[¶ 3.] At one time, Stell owned the two pieces of property at issue: the Best Western Hickok House (Best Western) and what was the Porter Lumber Company (Main Street). On the Main Street property, Stell erected a large billboard advertising the Best Western.

[¶ 4.] In April 1990, Stell sold the Main Street property to William P. Martindale by warranty deed, taking back a 180 day redemption mortgage. At the time of the sale, Stell executed an easement allowing a Best Western billboard sign on the Main Street property in perpetuity. The billboard sign located on the easement is limited to advertising the Best Western Motel and its associated restaurants. Both the one hundred eighty-day redemption mortgage and the easement were properly recorded on the same day.

[¶ 5.] In December 1990, Stell decided to sell the Best Western. Stell entered into an offer and agreement to purchase with BRI. This transaction was completed on March 29,1991. The parties also executed a promissory note, security agreement and bill of sale. All rights, title and interest in the Best Western were transferred to BRI via warranty deed and quitclaim deed. Contained in the purchase agreement were provisions requiring BRI to keep the same number of Best Western advertising signs. BRI also purchased a number of signs from Stell and BRI was paying rent for certain billboards still owned by Stell. Stell believed that he still owned the Main Street sign and that it was included in the rental arrangement. Stell defaulted in the circuit court and now claims no ownership of the sign located on the Main Street property.

[¶ 6.] In August 1991, Stell foreclosed on Martindale who was in default on his mortgage. A judgment and decree of foreclosure was entered on January 27, 1992. The Main Street property was purchased at auction by Full House. Full House uses this property as a parking lot for its hotel, a local competitor of the Best Western.

[¶ 7.] In 1999, Full House brought this action to quiet title to the sign easement on the Main Street property. Both parties moved for summary judgment. The motion was argued on June 20, 2000 and, on September 7, the circuit court entered judgment for BRI. The memorandum decision by the circuit court states that: “the easement was appurtenant to the Charles Street/Best Western property and passed from Stell to BRI when BRI purchased that property; the easement burdened the Main Street property, and ... Full House took the Main Street property subject to that easement.”

ISSUES ON APPEAL:

[¶ 8.] Full House raises one issue on appeal:

Did the circuit court err in granting summary judgment in favor of BRI?

[¶ 9.] BRI raises one issue as well:

Did the circuit court err in denying BRI’s application for taxation of costs?

STANDARD OF REVIEW

[¶10.] SDCL 15-6-56(c) provides that summary judgment should be granted when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. It is settled law that this Court will affirm a summary judgment “ ‘only when there are no genuine issues of material fact and the legal questions have been correctly decided.’ ” Kimball Investment Land, Ltd. v. Chmela, 2000 SD 6, ¶ 7, 604 N.W.2d 289, 292 (quoting Mattson v. Rachetto, 1999 SD 51, ¶ 8, 591 N.W.2d 814, 816-17).

We interpret a deed as we would a contract. SDCL 43-4-13. Contract interpretation is a question of law. See Harksen v. Peska, 1998 SD 70, ¶ 11, 581 N.W.2d 170, 173 (citing Spring Brook Acres Water Users Ass’n, Inc. v. George, 505 N.W.2d 778, 780 (S.D.1993))(further citations omitted). Whether a contract is ambiguous is also a question of law subject to de novo review. Id. (Citations omitted).

In re Estate of Rosenbaum, 2001 SD 44, ¶ 6, 624 N.W.2d 821, 824.

ANALYSIS AND DECISION

ISSUE ONE

[¶ 11.] Did the circuit court err in granting summary judgment in favor of BRI?

[¶ 12.] There are two inquiries under this issue: first, when BRI purchased the Best Western from Stell, did the purchase include the easement over the Main Street property; and, second, when Full House purchased the Main Street property at auction, was the property subject to the easement attached to the property?

A.

[¶ 13.] The question of whether BRI’s purchase of the Best Western included the sign easement is a question of law requiring the interpretation of the purchase agreements and contracts between BRI and Stell. The offer and agreement to purchase executed in December 1990 between Stell as seller and BRI as buyer clearly indicated: “Other provisions purchased by Buyers at cost: All highway sign leases to be transferred to new Buyers. ...” In addition, the 1991 mortgage of the Best Western referenced purchase of “all [property] together with all rights and easements pertinent to the property, all abstracts of title and title insurance thereof and insurance thereon, ... appurtenances and permits of and from the property and all collateral as set forth in the Promissory Note and Security Agreement referred to hereafter .... ” (emphasis added).

[¶ 14.] The promissory note and security agreement between BRI and Stell listed the same items as collateral and specifically included “signs.” It also listed items associated with the Best Western that were to be retained by Stell and that list did not include the easement on the Main Street property. Most importantly, the note directed BRI to continue to maintain the number of signs and billboards then in existence. As part of the note, Stell specifically set the rental arrangement for other Best Western signs not included in the sale as easements. For example, BRI was to rent the sign at the “Chicken Ranch” (another property of Stell) for the amount of $600 per year. This is notable because there was no mention in the note of Stell still owning the easement on the Main Street property and requesting rent for that sign. If Stell wished to maintain ownership of that easement at the time of the sale to BRI, that term could easily have been included in the contract. Absent some ambiguity in the contract terms, the plain and ordinary meaning of these written documents is controlling. See Lakes’ Byron Store v. Auto Owners Ins., 1999 SD 25, ¶ 7, 589 N.W.2d 608, 609.

[¶ 15.] While it is true that the bill of sale and the mortgage agreement did not specifically list the easement located on the Main Street property, easements were mentioned in a general sense. All easements created for a specific piece of property run with the ownership of that property. South Dakota law is clear on this issue. SDCL 43-25-30 states:

A transfer of real property passes all easements attached thereto, and creates in favor thereof an easement to use other real property of the person whose estate is transferred, in the same manner and to the same extent as such property was obviously and permanently used by the person whose estate is transferred, for the benefit thereof, at the time when the transfer was agreed upon or completed.

[¶ 16.] In Nelson v. Gregory County, 323 N.W.2d 139 (S.D.1982), this Court ruled that even though the transferring documents (deeds, bill of sale) did not specifically reference the easements, the easements were nonetheless transferred as appurtenant to the land. As set forth in Nelson, 323 N.W.2d at 142:

That neither the deed to appellee nor the deed to appellants from [the seller] mentions transfer of the easement rights so reserved by [the seller] in the 1957 agreement does not bar appellee’s right to the easement. Appellants do not contend that [the seller] lacked such rights. A transfer from [the seller] to appellee passed all easements attached thereto by operation of SDCL 43-25-30, even though the deed of conveyance did not specifically mention the grant of the easement. Homes Development Company v. Simmons, 75 S.D. 575, 70 N.W.2d 527 (1955).

[¶ 17.] “Once the parameters of an easement are established it runs with the land, passing to whomever buys the property for the benefit of the easement holder.” Peterson v. Beck, 537 N.W.2d 375, 378 (S.D.1995). The Main Street easement was created for the sole benefit of the Best Western. BRI, as purchaser of the Best Western, is also the owner of the easement.

B.

[¶ 18.] With regard to the question of whether Full House purchased the Main Street property subject to the sign easement, Full House argues that, when Stell foreclosed on the property, the property was returned to its original state as it existed before Martindale’s purchase and Stell’s retention of the easement. According to Full House, it follows that there was no longer any sign easement attached to the property by the time of its purchase.

[¶ 19.] The Full House complaint alleges that the mortgage between Martindale and Stell was granted prior to Stell’s recording of the easement. The circuit court concluded that these two acts occurred at the same time; that Stell sold the Main Street property to Martindale and, at the same time, retained an easement for the Best Western. Full House points out that BRI, in its initial answer to the complaint, agreed with Full House concerning the timing of fifing of the mortgage and easement. Although BRI made a motion to amend the answer, the circuit court did not specifically grant leave to amend the pleadings. Full House now argues that the circuit court and this Court must follow BRI’s erroneous admission. However, the circuit court did not take this admission into account when making its ruling, therefore giving leave to BRI to amend the pleadings. The general rule is that a motion to amend should be freely granted unless it will somehow prejudice the adverse party. See SDCL 15 — 6— 15(a); Kjerstad v. Ravellette Publications, Inc., 517 N.W.2d 419, 423 (S.D.1994). The circuit court most appropriately did not place any reliance on BRI’s flawed pleading.

[¶ 20.] Full House further argues that, due to the foreclosure, it believed it was purchasing a property free and clear of any easements. However, SDCL 21-47-24 clearly provides in part that:

At the expiration of the time for the redemption of such mortgaged premises, if the same is not redeemed, the person or officer making the sale ... must make to the purchaser or purchasers ... a deed ... to such premises which shall vest in the purchaser, or other party entitled thereto, the same estate that was vested in the mortgagor at the time of the execution and delivery of the mortgage!.] (emphasis added).

At the time of the execution of the mortgage, Martindale purchased the Main Street property subject to the easement. Martindale never had title to the property without the easement. Therefore, as a matter of law, the title transferred at the foreclosure can be no better than what Martindale had at the time of the execution of the mortgage.

[¶ 21.] In conclusion, the owner of the Best Western, BRI, also owns the easement located on the Main Street property which is owned by Full House. The circuit court’s summary judgment for BRI is affirmed.

ISSUE TWO

[¶ 22.] Did the circuit court err in denying BRI’s application for taxation of costs?

[¶ 23.] SDCL 15-6-54(d) and 15-17-37 lay out the procedure for the prevailing party in a civil action to recover expenditures incurred in the gathering and discovery of evidence. In its memorandum decision of September 7, the circuit court ruled that each party should pay their own attorney fees and costs. The prevailing party is allowed thirty days to file an application for costs and disbursements following the entry of judgment. SDCL 15 — 6—54(d).

[¶ 24.] BRI made an application in a timely manner for taxation of costs and Full House objected. Both sides fully briefed the issue and the circuit court denied BRI’s application on October 12. By notice of review, BRI now seeks review of the denial. The issue is reviewed under an abuse of discretion standard. Nelson v. Nelson Cattle Co., 513 N.W.2d 900, 906 (S.D.1994) (citing Dacy v. Gors, 471 N.W.2d 576, 580 (S.D.1991)). “ ‘Abuse of discretion’ is discretion not justified by, and clearly against, reason and evidence.” Id.

[¶ 25.] Under SDCL 15-17-52, the circuit court may, in its discretion, limit disbursements to either party. As this Court recently ruled in Culhane v. Michels, 2000 SD 101, ¶33, 615 N.W.2d 580, 590:

[A] court is not required to grant recovery for disbursements simply because' a party has achieved the status of a prevailing party. While SDCL 15-17-37 grants no discretion, SDCL 15-17-52 allows a court to “limit the taxation of disbursements in the interests of justice.” This statute grants discretion to deny recovery of disbursements even though SDCL 15-17-37 does not. (quoting Michlitsch v. Meyer, 1999 SD 69, 594 N.W.2d 731, 734). (internal citations omitted).

In this case, the circuit court apparently disallowed disbursements in the interests of justice. The court reviewed the application for taxation of costs as well as the objections to the application and made a decision based upon its review of those arguments. We find no abuse of discretion by the circuit court in this matter. The denial of the application for taxation of costs and disbursements is affirmed.

[¶ 26.] GILBERTSON, and KONENKAMP, JJ., concur. MILLER, Retired Chief Justice, was a member of the Court at the time this action was submitted but was disqualified and did not participate.

[¶27.] SABERS, Acting Chief Justice, dissents.

[¶ 28.] FLEMMER, Circuit Judge, for AMUNDSON, Justice, disqualified.

SABERS, Acting Chief Justice

(dissenting).

[¶29.] I dissent on Issue 1 because there are clearly genuine issues of material fact. BRI claims that it owns both the easement and sign at issue. BRI, however, stated that it was paying rent to Stell for the use of the easement and the sign on the Main Street property. It is unclear why BRI would pay unnecessary rent for a billboard if it believed it had an easement in the property. Paying rent for an easement is inconsistent with a belief in outright ownership in the easement. This question alone presents a genuine issue of material fact.

[¶ 30.] Moreover, there is a genuine issue of material fact regarding the agreement between BRI and Stell for the sale of the Best Western. BRI acknowledges that the sale documents did not reference the easement on the Main Street property. Again, such an acknowledgement may be inconsistent with a belief in outright ownership. Because of these questions, this case is inappropriate for summary judgment.

[¶ 31.] Even if the majority opinion is correct in its analysis of Issue 1, it reaches an incorrect result on Issue 2. The majority opinion concludes that the circuit court did not err in denying BRI’s application for taxation of costs. It states that the circuit court did not abuse its discretion by disallowing an award for costs and disbursements to BRI “in the interests of justice.” The majority opinion views an award of costs and disbursements as discretionary. The governing statute, however, provides that “[c]osts and disbursements shall be allowed as provided by statute.” SDCL 15-6-54(d) (emphasis added). The term “shall” does not allow for discretion. This Court has repeatedly stated that: 'When ‘shall’ is the operative verb in a statute, it is given ‘obligatory or mandatory’ meaning.” Fritz v. Howard Township, 1997 SD 122, ¶ 15, 570 N.W.2d 240, 242 (citing In re Groseth Int’l, Inc., 442 N.W.2d 229, 231-32 (S.D.1989)). See also SDCL 2-14-2.1 (providing that “[a]s used in the South Dakota Codified Laws to direct any action, the term, shall, manifests a mandatory directive and does not confer any discretion in carrying out the action so directed”). Therefore, there is no allowance for discretion and costs and disbursements should be awarded.

      . Testimony was given that BRI was paying rent for the sign on the Main Street property not because it believed it was owed to Stell, but because it did not want to foster any antagonism with Stell. BRI believed that paying the yearly rent for the sign was easier than litigation with Stell.

      . SDCL 43-1-5 provides in pertinent part that "[a] thing is deemed to be incidental or appurtenant to land when it is by right used with the land for its benefit[.]”

      . SDCL 43-13-2(6) provides:
      The following land burdens or servitudes upon land may be attached to other land as incidents or appurtenances, and are called easements:

      (6) The right of transacting business upon land[.)
      Advertising is a business transaction and is a legal easement.

      . SDCL 15-6-54(d) provides:
      Costs and disbursements shall be allowed as provided by statute. If a party wishes to have disbursements and costs of the action assessed, that party must file an application for taxation of costs, and a certificate of service, with the clerk of court. The application shall include a statement in detail of the costs and disbursements claimed and shall be verified by affidavit. The party preparing the application shall forthwith serve a true copy of the application and the certificate of service upon all other parties. A party who objects to any part of the application shall serve and file his objections with the clerk of court in writing within ten days of the service of the application on him or he will be deemed to have agreed to the taxation of the costs and disbursements proposed. The written objections must be accompanied by a notice of hearing thereon and shall set forth in concise language the reasons why the costs should not be allowed. Upon receipt of such written objections and the notice of hearing, the clerk shall file the same and forward copies thereof, together with a copy of the application, to the court.
      The decision rendered at the hearing shall be filed as a written order with the clerk, directing that the approved amount of costs and disbursements be inserted in the judgment and docketed.
      If no written objection to the taxation of costs is filed within ten days of service, the clerk shall tax the costs and disbursements as set forth on the application, insert the amount in the judgment, and docket it.
      Costs and disbursements under this section shall be waived if proper application is not made within thirty days of the entry of the judgment. For good cause shown, the court may extend the time.

      . SDCL 15-17-37 provides:
      The prevailing party in a civil action or special proceeding may recover expenditures necessarily incurred in gathering and procuring evidence or bringing the matter to trial. Such expenditures include costs of telephonic hearings, costs of telephoto or fax charges, fees of witnesses, interpreters, translators, officers, printers, service of process, filing, expenses from telephone calls, copying, costs of original and copies of transcripts and reporter's attendance fees, court appointed experts and other similar expenses and charges. These expenditures are termed “disbursements" and are taxed pursuant to § 15 — 6—54(d).


author: GILBERTSON, Chief Justice. SABERS, Justice KONENKAMP, Justice

text:
    2002 SD 13
    In the Matter of the GUARDIANSHIP AND CONSERVATORSHIP FOR T.H.M. and M.M.M., Minor Children.
    No. 21635.
    Supreme Court of South Dakota.
    Argued Oct. 3, 2001.
    Decided Jan. 30, 2002.
    Rehearing Denied March 14, 2002.

      Sandy J. Steffen of Johnson, Eklund, Nicholson, Peterson & Fox, Gregory, for appellee, children.
    Stanley E. Whiting, Winner, for appel-lee, grandmother.
    Neil Carsrud, Dakota Plains Legal Services, Mission, for appellant, mother.
   GILBERTSON, Chief Justice.

[¶ L] Melanie Regalado (Grandmother) brought Guardianship proceedings to gain custody of T.H.M. and M.M.M., minor children of Ardith Perry (Mother), on grounds of abuse and neglect. The trial court determined the children to be abused and neglected, determined Mother to be unfit, terminated Mother’s custodial rights, and granted custody to Grandmother. Mother appeals on grounds that the guardianship proceeding was not the proper means in which to transfer the custodial rights of a parent to a non-parent where abuse and neglect was the basis for the transfer and that Mother was denied her constitutional right to procedural due process. We affirm as to the creation of a guardianship, but reverse and remand as to the determination of abuse and neglect and transfer of custody.

FACTS AND PROCEDURE

[¶ 2.] T.H.M. and M.M.M. are the natural children of Michael M. and Mother. Michael was the eldest son of Grandmother. T.H.M. was born September 16, 1993. M.M.M. was born May 23,1995.

[¶ 3.] Michael and Mother were married in February of 1994 and spent a significant amount of time between the years of 1993 and 1997 living in Grandmother’s home, in both Colorado and California. After Michael committed suicide on December 21, 1997, Mother allowed the children to have extended visits with Grandmother in California. When this action began, the children had been staying with Grandmother for five months, with Mother’s permission.

[¶ 4.] Grandmother commenced proceedings pursuant to the South Dakota Guardianship Act, SDCL chapter 29A-5, on November 29, 1999, alleging it would be in the best interests of the children if she were appointed guardian and conservator for T.H.M. and M.M.M. Mother filed a motion for summary judgment. Grandmother responded by moving to amend her application to allege the children were abused and neglected and Mother was unfit. Grandmother’s motion was granted. Mother then filed a motion to dismiss on grounds that guardianship proceedings were not the proper means to involuntarily transfer custody from a parent to a non-parent. Mother asserted that the proceedings should be held pursuant to SDCL chapters 26-7A (Juvenile Court) and 26-8A (Protection of Children from Abuse or Neglect). Mother also filed a writ of habe-as corpus, alleging her children were being illegally held from her custody. The trial court denied Mother’s motion to dismiss, dismissed the writ of habeas corpus, and entered an order for interim custody in favor of Grandmother based upon the best interests of the child standard.

[¶ 5.] In response to Mother’s objection to telephonic testimony of the out-of-state witnesses and an ex parte motion filed by the children’s court appointed attorney, the trial court also entered an order authorizing travel expenses so that the attorney could travel to California to take depositions. Mother’s own requests for a court appointed attorney and authorization for travel expenses were denied. The children’s attorney deposed nine witnesses in California on May 15, 2000. Mother was financially unable to attend or participate in these depositions. Copies of the depositions were provided to Mother on the first day of trial and, over the objections of Mother’s attorney, were admitted into evidence the following day.

[¶ 6.] Mother’s attorney also filed a motion to dismiss on grounds that SDCL 29A-5-203, the guardianship provision, unconstitutionally infringed upon Mother’s Fourteenth Amendment due process rights to the “care, custody, and control” of her children. The trial court, however, refused to rule on the motion. The court concluded, as a matter of law, that Mother was unfit, that compelling reasons existed to separate T.H.M. and M.M.M. from their half-siblings, and that it was in the best interests of the children to transfer custody to Grandmother. Mother appeals, raising the following issues:

1. Whether a guardianship proceeding commenced by a non-parent and based upon allegations of abuse and neglect is a proper proceeding to terminate the custodial rights of a natural parent.
2. Whether Mother was deprived of her constitutional right to procedural due process when the trial court allowed a non-parent to use the South Dakota Guardianship Act to involuntarily terminate her custodial rights.

STANDARD OF REVIEW

[¶ 7.] This case involves a matter of statutory interpretation. It is well settled that “[statutory interpretation presents a question of law reviewable de novo.” Zoss v. Schaefers, 1999 SD 105, ¶ 6, 598 N.W.2d 550, 552 (citing Satellite Cable Srvs. v. Northern Electric, 1998 SD 67, ¶ 5, 581 N.W.2d 478, 480). This Court need only construe a statute if the plain meaning of the statute is ambiguous. Our rules of statutory construction are as follows:

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.

Martinmaas v. Engelmann, 2000 SD 85, ¶ 49, 612 N.W.2d 600, 611 (quoting Moss v. Guttormson, 1996 SD 76, ¶ 10, 551 N.W.2d 14, 17) (additional citations omitted). In a case where two statutes touch upon the same subject matter, there is a presumption that the Legislature intended the two to coexist and that it “did not intend an absurd or unreasonable result.” Id. Therefore, the statute with more specific language “relating to a particular subject will prevail over the general terms of another statute.” Id.

ANALYSIS AND DECISION

[¶ 8.] 1. Whether a guardianship proceeding commenced by a non-parent and based upon allegations of abuse and neglect is a proper proceeding to terminate the custodial rights of a natural parent.

[¶ 9.] Proceedings instituted under the South Dakota Guardianship Act, set forth in SDCL chapter 29A-5, are not the proper means of transferring custody from a parent to a non-parent without a prior determination of a parent’s unfitness. See Blow v. Lottman, 75 S.D. 127, 59 N.W.2d 825 (1953) (holding mother’s disqualification as custodian is prerequisite to award of custody to any other person) overruled on other grounds by Matter of Termination of Parental Rights of P.A.M., 505 N.W.2d 395 (S.D.1993). When allegations of abuse and neglect serve as the basis for such a determination, the action becomes an adjudication of abuse and neglect. SDCL 29A-5-106 provides:

Nothing in this chapter affects the provisions of chapters 26-7A, 26-8A, 26-8B and 26-8C relating to the appointment of guardians and conservators and the administration of guardianships and con-servatorships for children who have been adjudicated to be delinquent, abused, neglected, or in need of supervision .... In the event of any inconsistency or conflict, the provisions of chapters 26-7A, 26-8A, and 26-8C or of Title 27A shall control, and the provisions of this chapter are in all respects to be supplementary thereto.

(emphasis added). Thus, where allegations of abuse and neglect serve as the grounds for the guardianship petition, as was the case here, the statutory provisions specifically relating to abuse and neglect proceedings, as well as the provisions relating to juvenile court, must control. See Martinmaas, 2000 SD 85 at ¶ 49, 612 N.W.2d at 611.

[¶ 10.] Adjudication of abuse or neglect is done in juvenile court pursuant to SDCL chapters 26-7A and 26-8A. SDCL 26-7A-2 provides for exclusive jurisdiction of the juvenile court as to dependent or neglected children. These chapters were enacted for the particular purpose of “establish[ing] an effective state and local system for the protection of children from abuse or neglect.” SDCL 26-8A-1. In so doing, the law requires that these statutes be liberally construed in favor of the child, the parents, and the state. SDCL 26-7A-6. The numerous constitutional safeguards embedded within chapters 26-7A and 26-8A also afford substantial protection. Similar provisions cannot be found in the more general Guardianship Act.

[¶ 11.] The Department of Social Services (DSS) cannot be bypassed when custody is being involuntarily taken from a natural parent in favor of a non-parent. See SDCL 26-8A-27; Matter of Z.Z., 494 N.W.2d 608, 610 (S.D.1992) (holding custody and guardianship of child whose natural parent is adjudicated unfit mandatorily vests with social services). Abuse and neglect allegations trigger the State’s interest, as parens patriae, in protecting the welfare of the child. SDCL 26-8A-1. See also Matter of N.J.W., N.G.B., and K.F.B., 273 N.W.2d 134, 137 (S.D.1978) (holding State, as parens patriae, takes strong interest in care and treatment of children within its borders). The State is the only party that may seek to involuntarily deprive a parent of custody and place the custody of the child with a non-parent when abuse and neglect is the contested issue. The Legislature has delegated the State’s authority to DSS, an agency uniquely qualified in this area. SDCL 26-8A-8; 9. The trial court usurped this role when it allowed Grandmother to by-pass mandatory custody proceedings by using the more general guardianship provisions. See People ex rel. H.O., 2001 SD 114, ¶ 9, 633 N.W.2d 603, 605.

[¶ 12.] Grandmother asserts that the guardianship procedure was proper because it did not involve the final “termination” of parental rights. She argues, instead, that it was merely a custody proceeding, with modifiable results, and therefore need not comply with chapters 26-7A or 26-8A. Grandmother misses the point. The revocation of custodial rights is not another party’s self-help proposition, no matter how sincere their intentions. The facts of this case necessitate a particular type of proceeding, an abuse and neglect determination, before a guardian who is vested with custody of the children may be appointed. The trial court used language from the abuse and neglect statutes, essentially adjudicating the children abused and neglected. Yet, two children, who lived in the same conditions, remain with Mother. This adjudication should be done in juvenile court, pursuant to the abuse and neglect statutes, so that such an oversight may be avoided. One of the remedies under an abuse and neglect determination is the appointment of a guardian pursuant to SDCL 26-8A-22. There is simply no justification for Grandmother’s end-run around the proper statutory procedures.

[¶ 13.] 2. Whether Mother was deprived of her constitutional right to procedural due process when the trial court allowed a non-parent to use the South Dakota Guardianship Act to involuntarily terminate her custodial rights.

[¶ 14.] The use of the Guardianship Act in this case to effect a change of custody is not merely a procedural flaw. SDCL chapters 26-7A and 26-8A exist for the protection of the children, the parents and the family unit. Because these chapters deal with the fundamental right of parents to the care, custody, and control of then-children, they employ multiple constitutional safeguards that are not present in the Guardianship Act. See Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) (holding care, custody and control of children is a fundamental right); Lassiter v. Dept. of Social Services, 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981) (holding parents’ custodial rights are a fundamental interest guaranteed due process protection). These safeguards cannot be brushed aside by those seeking custody, by the attorneys, or by the trial court when the requirements simply become inconvenient or burdensome.

[¶ 15.] While the Guardianship Act merely provides for notice and an opportunity to be heard, proceedings under the abuse and neglect statutes are much more rigorous. For example, the protective sections that are at issue in this case include: (1) SDCL 26-7A-30, providing the parent be advised of her constitutional rights, including the right to a court appointed attorney; (2) SDCL 26-7A-34, providing for separate adjudicatory and dispositional hearings; (3) SDCL 26-7A-39, providing for compulsory process for the attendance of witnesses; (4) SDCL 26-7A-57-81, providing for discovery, especially the requirements for the manner and scope of examination, as well as the right of the parent to be present at the examination; (5) SDCL 26-7A-82, placing an elevated “clear and convincing” burden of proof upon the party alleging abuse and neglect instead of a preponderance burden in a guardianship proceeding; (6) SDCL 26-7A-83, providing the party who prepares reports or material to be admitted at trial shall be present at trial as a witness for examination and cross-examination; and (7) SDCL 26-8A-21, providing reasonable efforts be made to eliminate the need for removal and to return the child after removal. Clearly, by allowing the custody action to proceed under the Guardianship Act, the trial court deprived Mother, and her children, of all of these constitutional safeguards.

CONCLUSION

[¶ 16.] The record of this case, together with the trial court’s findings of fact, at a minimum raise a serious question as to the treatment of these children by Mother. For the reasons set forth above, we reverse and remand to the trial court with directions to modify and limit its grant of guardianship to that of a guardian ad litem with those powers defined in SDCL 15-6-17(c) and 34-12C-2. We further direct the trial court to order DSS to intervene in this action pursuant to its statutory duty under SDCL 26-8A-9, pending an adjudication of the abuse and neglect allegations.

[¶ 17.] AMUNDSON, Justice, and GORS, Acting Justice, concur.

[¶ 18.] SABERS and KONENKAMP, Justices, dissent.

SABERS, Justice

(dissenting).

[¶ 19.] I dissent,

[¶ 20.] I would affirm the guardianship (of the persons) and the conservatorship (of the estates) of T.H.M. and M.M.M. and remand solely for the purpose of determining their physical custody under the direction and control of the Department of Social Services.

KONENKAMP, Justice

(dissenting).

[¶ 21.] This is a case where, had it not been for a loving grandmother, two children might not have survived; certainly, they would not be in the safe and healthy place they are today. These children endured almost unimaginable misery. Addiction, disease, suicide, filth, and abuse— that was their portion. In desperation, the grandmother several times sought help for them from the South Dakota Department of Social Services. In the end, the Department declined to proceed. Then the grandmother sought guardianship. The matter went to trial. Finding the mother unfit and the children abused and neglected, the circuit court awarded the grandmother custody under the South Dakota Guardianship and Conservatorship Act. Through their attorney, both children now urge us to allow them to remain in their grandmother’s guardianship and custody. It is not difficult to understand why. What is difficult to understand is this Court’s order nullifying the guardianship.

[¶ 22.] In this appeal, the mother argues that her case should have been handled in juvenile court through the dependency process, by the very officials who earlier declined involvement and with whom she refused to cooperate. The majority of this Court agrees. It quashes the custodial guardianship and orders that the Department of Social Services take over the case. It remains to be seen how the Department will proceed now, when it decided not to proceed before. This is not to fault the Department. Perhaps it never became aware of all the particulars we now have. But the fact remains that, were it not for the grandmother, these children would be without hope.

[¶ 23.] To reach its decision, the majority curtails the provisions of our guardianship laws, departs from our longstanding precedent, and joins a tiny minority of jurisdictions that hold that child custody cannot be decided in guardianship proceedings. Nearly all courts, from New York to California and most in between, hold that guardianships can be used to obtain custody. Why should South Dakota not be among these jurisdictions, especially when our Legislature intended it so?

A.

Lives of Misery

[¶ 24.] The trial court’s findings of fact in this case remain wholly undisputed. Although the majority hardly alludes to them, these facts have a decided beai'ing on how we should view this case. This is a story of a state agency declining to proceed and a courageous family member stepping up for the sake of the family’s children. The parents met while both were attending the Job Corps in Nemo, South Dakota. They eventually had three children together, two of whom are involved here, one born on September 16, 1993, and the other, on May 23, 1995. These parents lived addicted, degraded lives, lives their children were condemned to share.

[¶ 25.] Brief excerpts from the trial court’s extensive findings suffice to describe just how squalid these children’s surroundings were. Both parents were to blame. There were frequent all-night drinking binges and extended absences from the children. At times, twelve to fifteen people lived in their small quarters, with no functional plumbing. On one occasion, the grandmother observed one of the children left only in dirty diapers and lying on a bare cement floor, amid rat feces and trash piled high all about. There was no food available but a baby bottle containing soda pop.

[IT 26.] The children sometimes got by on scraps picked up from the floor. They had no oral or bodily hygiene. They had no childhood immunizations. They suffered from scabies, malnutrition, and rotting teeth. One child’s teeth were so severely decayed, and her gums so filled with sores, that only extensive oral surgery would help her. When the Department of Social Services offered the mother parenting classes, vaccinations for the children, and transportation for dental care, she refused. She claimed this was harassment. With the mother’s lack of cooperation, and her refusal to allow social workers inside her apartment, the Department declined further action. Even so, the facts are uncontradicted that the children were psychologically maladapted, seriously undernourished, and evinced unmistakable signs that they had been sexually molested. All this was later confirmed by experts who examined them.

[¶ 27.] The father committed suicide on December 21, 1997. After this, though hard to imagine, the children’s situation became worse. The mother and her boyfriend used cruel pranks, stories of imaginary monsters, to torment the children. The boyfriend hung little nooses for the children to see, a heartless reminder of their father’s death. Their filthy apartment was infested with fleas, rodents, and cockroaches. The grandmother, who had given intermittent extended care for the children over the years, came to South Dakota from her home in California. She had a mission. Indeed, she was the children’s last hope. She and the children pleaded with the mother to let them go back to California and live there. Mercifully, the mother acceded in allowing these two children to go with the grandmother in July 1999.

[¶ 28.] In California, they received needed dental care, immunizations, psychological counseling, and surgery to repair one child’s heart defect. The mother had known of the heart problem but ignored it. Then the grandmother sought guardianship. Even when this matter was about to go to court, the mother did not cooperate in having a home study done. Nonetheless, she admitted that after the father died, she failed to provide for the children and was unfit.

B.

Guardianship and Custody

[¶ 29.] Our guardianship laws were rewritten in 1993, creating the new South Dakota Guardianship and Conservatorship Act. This Act did not purport to change our earlier precedents on nonparental custody placements. On the contrary, the parental preference statute previously in our guardianship laws was repealed. See SDCL 30-27-23 (repealed 1993). This does not mean that there is no presumptive preference for fit parents. The natural parent-child relationship is a constitutionally protected fundamental right. See Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 1394, 71 L.Ed.2d 599 (1982). However, as we have said in several cases, when the parents are shown to be unfit or there are extraordinary circumstances reflecting on parental fitness and serious detriment to the child, custody may be transferred to a nonparent, apart from dependency proceedings.

[¶ 30.] SDCL 29A-5-203 provides:

[A] petition for the appointment of a guardian, a conservator, or both, may be filed by ... an interested relative, by the individual or facility that is responsible for or has assumed responsibility for the minor’s care or custody, by the individual or anyone the minor has nominated as guardian or conservator, or by any other interested person, including the department of human services or the department of social services.

Obviously, the grandmother is an “interested relative” who “has assumed responsibility for the [children’s] care or custody,” and thus she is qualified to petition for conservatorship and guardianship.

[¶ 31.] Nothing has changed our position articulated in Langerman v. Langerman:

Before a parent’s right to custody over his or her own children will be disturbed in favor of a nonparent a clear showing against the parent of “gross misconduct or unfitness, or other extraordinary circumstance affecting the welfare of the child” is required, and an award cannot be made to [nonparents] simply because they may be better custodians.

336 N.W.2d 669, 670 (S.D.1983). See Cooper v. Merkel, 470 N.W.2d 253, 255 (S.D.1991). As we said in Crouse v. Crouse, 552 N.W.2d 413, 418 (S.D.1996), two statutory avenues are available for nonparents to obtain custody in South Dakota, one through the abuse and neglect laws, SDCL ch. 26-8A, and the other through the Guardianship and Conservatorship Act, SDCL ch. 29A-5. The grandmother availed herself of that Act, and we should uphold her right to do so. Here, the circuit court found the mother unfit, opening the door for an interested relative to take custody. In Langerman, this Court upheld a grant of custody to the grandparents after a finding that the father was unfit because of his alcohol abuse and his unstable living arrangements. None of these cases have ever been overruled.

[¶ 32.] Surely, the majority misconstrues SDCL 29A-5-106 in holding that it requires this matter to be decided in juvenile court. All that statute provides is that with respect “to the appointment of guardians and conservators and the administration of guardianships and conservatorships for children who have been adjudicated ... abused, neglected,” the abuse and neglect statutes shall control if there is any inconsistency. (Emphasis added.) The children here were not adjudicated abused and neglected under the abuse and neglect statutes. In fact, just the opposite, the State never brought a case for abuse and neglect. Our guardianship laws specifically permit courts to consider the “extent to which it is necessary to protect the minor from neglect, exploitation, or abuse.... ” SDCL 29A-5-208. Will all guardianship cases where there is evidence of neglect or abuse now be diverted to the Department of Social Services?

[¶ 33.] It would be a different matter if the State had initiated its own petition under the abuse and neglect statutes. Then, obviously, that proceeding would take priority. On point is Guardianship of Z.Z., 494 N.W.2d 608, 610 (S.D.1992), a ease the majority relies on to support its position. There, the child had already been adjudicated abused and neglected in juvenile court when the grandparents sought to bypass the juvenile court by bringing a guardianship action for custody. See also People ex rel. H.O., 2001 SD 114, 683 N.W.2d 603 (ongoing abuse and neglect action cannot be circumvented). That is not what happened in this case. Here, in a guardianship proceeding, not an abuse and neglect proceeding, the circuit court found that the mother was unfit and that the children suffered abuse and neglect. No reference in the court’s decision was even made to the abuse and neglect statutes.

[¶ 34.] Most states allow for the award of custody to a nonparent in guardianship proceedings. Legislatures in these states, like our own Legislature, recognize that it would place an overwhelming burden on social service agencies to take responsibility for all nonparental custody placements. When family members and others come to court seeking guardianship with allegations of parental unfitness, permanent or temporary, courts are empowered to remove custody from the unfit parent for such time as is necessary to provide for the child’s needs. Unlike abuse and neglect proceedings in juvenile court, where terminations of parental rights often result, a guardianship can end any time the court is satisfied that the circumstances giving rise to the guardianship no longer exist. SDCL 29A-5-506. Hence, the panoply of rights attendant on dependency proceedings is not required.

[¶ 35.] In the interest of space, only a sampling of cases will be cited to demonstrate that the majority of courts allow this type of proceeding, upon a showing of parental unfitness. See, e.g., In re Guardianship of D.A. McW., 460 So.2d 368 (Fla. 1984); In re Guardianship of Williams, 254 Kan. 814, 869 P.2d 661 (1994); In re Guardianship of M.R.S., 960 P.2d 357 (Okl.1998); Fuss v. Niceforo, 244 A.D.2d 858, 665 N.Y.S.2d 781 (N.Y.A.D.1997); Matter of Guardianship of R.B., 619 N.E.2d 952 (Ind.Ct.App.1993); In re Guardianship of Jenna G., 63 Cal.App.4th 387, 74 Cal.Rptr.2d 47 (1998); In re Guardianship of Yushiko, 50 Mass.App.Ct. 157, 735 N.E.2d 1260 (2000).

[¶ 36.] South Dakota’s Guardianship and Conservatorship Act enables a court to consider “the suitability of the proposed guardian or conservator, the minor’s current or proposed living arrangements ... the availability of less restrictive alternatives, the extent to which it is necessary to protect the minor from neglect, exploitation, or abuse, and if applicable, the minor’s need for habilitation or therapeutic treatment.” SDCL 29A-5-208 (emphasis added). Guardians appointed for minors under this act “shall be responsible for making decisions regarding the minor’s support, care, health, education, and, if not inconsistent with an order of commitment or custody, to take custody of the minor and to determine the minor’s residence.” SDCL 29A-5-401. In deciding guardianship issues, a court must consider “the wishes of the minor if the minor is of sufficient age to form an intelligent preference.” SDCL 29A-5-202.

C.

Mother’s Constitutional Rights

[¶ 37.] Contrary to the majority’s conclusion, the mother suffered no deprivation of her due process rights. The circuit court wisely applied the higher constitutional burden, clear and convincing evidence, in concluding that the mother is presently unfit and that the children are in need of a guardian. As one California appellate court recognized in comparing guardianship actions with dependency proceedings:

In several other respects the creation of a guardianship under California law offers fewer protections for parental interests than dependency proceedings or proceedings to terminate parental rights. In contrast to dependency and termination proceedings, the laws governing guardianship petitions make no provision for appointing counsel for a parent. (See Prob.Code, § 1470; compare Welf. & Inst.Code, § 317; Fam. Code, § 7862.) Moreover, dependency and termination proceedings are almost invariably instituted by officers of the state, who may be expected to have made some neutral assessment prior to initiating litigation. A guardianship petition, in contrast, may be filed by any “relative or other person” claiming to act “on behalf of the minor.” (Prob. Code, § 1510, subd.(a).) No representative of the state, or other arguably neutral party, participates in the decision to institute proceedings. Nor is there any mandatory equivalent of the numerous investigations and reviews undertaken by child welfare authorities in dependency cases. (Footnotes omitted.)

Guardianship of Stephen G., 40 Cal.App.4th 1418, 1429-30, 47 Cal.Rptr.2d 409, 417 (1995). Despite the “fewer protections” available to a parent in guardianship proceedings, California courts uphold guardianships to nonparents. See, e.g. Guardianship of Diana B., 30 Cal.App.4th 1766, 36 Cal.Rptr.2d 447 (1994).

[¶ 38.] Lastly, the mother complains that some of the evidence was offered by deposition, in violation of her constitutional rights. Incorrect! This is a civil action. Depositions are routinely used in civil triais. The mother and her attorney refused to cooperate in making any accommodation for telephonic depositions, so the mother could participate in them. She gambled that these depositions would later be disallowed on constitutional grounds. Because she had no basis for failing to cooperate, she cannot now complain that the depositions were improperly admitted at trial.

D.

Conclusion

[¶ 39.] Guardianship is a longstanding and widely used method of shifting custody of children, especially within families. Into this relatively uncomplicated process, the Court today injects the ponderous apparatus of dependency law, with its “reasonable efforts,” foster care placements, and broad array of constitutional mandates. To do so, the Court ignores our precedents, misconstrues our statutes, and sides against the overwhelming trend in this country to the contrary. Were it not for the terrible suffering these children have already endured, perhaps this ruling would be less difficult to accept. But this decision is wrong. Our State should not join the minority. Our Legislature did not intend this. These children do not deserve this. I dissent.

      . Mother also has two other children: D.M., born February 6, 1997, and W.P., born January 29, 1999. D.M. was born during the marriage of Michael and Mother and was acknowledged by Michael as his child even though Michael was not the natural father.

      . Court appointed counsel was not granted to Mother until after this appeal was filed. Mother filed an order to show cause with this Court and because of the important issue presented herein, this Court issued an order of remand requiring the trial court to appoint counsel.

      . The trial court also made findings of fact that the children were abused and neglected, using language set forth in SDCL 26-8A-2(2), (3) and (4). These findings of fact are incorporated into the trial court’s order appointing guardian and conservator where the court states:
      [t]he Court further having considered ... the extent to which the children have been neglected in the home of the natural mother, ... ha[s] found the appointment of Melanie Regalado as Guardian and Conservator of the minor children is necessary because of the natural mother’s unfitness ... and is further necessary to protect the minor children from neglect or abuse, and there are no less restrictive alternatives ....

      . Grandmother cites Crouse v. Crouse, 552 N.W.2d 413, 418 (S.D.1996), for support of the proposition that a private party may bring an action in guardianship proceedings to involuntary deprive a parent of custody. Grandmother’s reliance is misplaced. Our decision in that case simply pointed out two means by which a non-parent may gain custody of a child. Id. It did not, however, sanction the involuntary revocation of custody from a natural parent by a third party in guardianship proceedings. We cited In re Marriage of Miller, 251 Mont. 300, 825 P.2d 189 (1992), which held where a child is not the natural or adopted child of the person seeking custody, the procedure to be used was in the child abuse, neglect and dependency sections. We agree with the Miller decision and further emphasize its holding today.

      . While legally correct that this is not a termination case, a guardianship in this case would have some factual similarities with a termination of parental rights. If Grandmother, as guardian, takes the children with her back to California, Mother's destitute economic status would in reality terminate contact with the children, except possibly for any letters or an occasional phone call.

      .The dissent portrays this case as a choice between placing the children in the stable home of Grandmother or returning them to the deplorable conditions from which Grandmother removed them. Not so. The reality is that DSS or the courts will determine what is in the best interests of all four children and, it is a possibility that, T.H.M. and M.M.M. will remain with Grandmother. But because of the interests at stake, it is all the more important to follow the proper statutory mandates, thus ensuring the constitutional protection of the children and the parent.

      . The mother has four children. The oldest and the youngest still live with her. The youngest child has a different father than the children involved in this guardianship. I certainly agree with the majority that these two remaining children should be referred to the South Dakota Department of Social Services.

      . Note the similarity of language between South Dakota’s and California’s guardianship statutes.


author: KONENKAMP, Justice.

text:
    2002 SD 16
    STATE of South Dakota, Plaintiff and Appellee, v. Guy G. PUGH, Defendant and Appellant.
    No. 21642.
    Supreme Court of South Dakota.
    Argued Oct. 2, 2001.
    Decided Jan. 30, 2002.

      Mark Barnett, Attorney General, Patricia Archer, Pierre, for plaintiff and appel-lee.
    Kevin S. Lewis, Pennington County Public Defender’s Office, Rapid City, for defendant and appellant.
   KONENKAMP, Justice.

[¶ 1.] This is a criminal appeal from a judgment of conviction for kidnapping and second-degree rape. We affirm.

Background

[¶ 2.] M.H.L. arose shortly before 4:00 a.m. on Tuesday, December 14, 1999, to prepare for her morning paper route in Rapid City, South Dakota. After dressing warmly against the winter cold, she left her apartment at the Corral Motel, where she was residing with her mother and younger brother. She tried unsuccessfully for about half an hour to start her station wagon. Two men emerged from a nearby room in the motel where a party was still underway. The men approached her and offered to help. At their suggestion, she opened the hood, and they made some adjustments to the carburetor. With still no success in starting the car, M.H.L. told the men that she would have to use her bicycle to pick up and deliver the papers. She began to remove it from her car trunk. One of the men, Robert Ralston, went back to the party, but the other, defendant Guy Gregory Pugh, remarking on the cold, offered to take her to pick up the newspapers at the Rapid City Journal. M.H.L. gratefully accepted. Pugh drove her to retrieve her papers, and she put them in the back seat. To this point, all had been cordial. Thereafter, the versions conflict markedly.

[¶ 3.] According to M.H.L., Pugh offered to drive her around on her paper route, but she declined and asked to be taken back to the motel to get her bicycle. Pugh drove in a different direction. He refused to let her out of the car despite her repeated requests. They drove around town for approximately an hour, stopping occasionally while they talked. Still promising to take her home, he stopped the car at one point, to get out and urinate. Eventually, they arrived at a parking lot on Dinosaur Hill, a sightseeing area overlooking the city. Under threat of harm, M.H.L. pulled down her pants about her ankles, Pugh took off his pants and shoes, climbed onto her, and sexually penetrated her. She protested, she struggled, she prayed. She even tried to open the door.

[¶ 4.] To thwart escape, Pugh held one of her arms painfully behind her back, placed his mouth over her nose to stifle her cries, and put a hard object against the side of her head, threatening to shoot her. Thereafter, she ceased struggling and protesting. Saying that he could not go back to prison, Pugh twice asked, “I have your consent for this, don’t I?” M.H.L. responded yes, explaining later, “I just wanted to get out of that alive.” Next, he performed cunnilingus on her, and then he returned to a second act of penile penetration. Pugh allowed her to put her clothes back on, and he put his on as well. Then, despite her requests to take her home, he insisted on cuddling with her. He fell asleep. After it became light outside, he finally drove her home.

[¶ 5.] By the time the two returned to the motel, M.H.L.’s supervisor from the newspaper, Jay Erickson, was there, concerned that the papers on her route had not yet been delivered. She got her newspaper bundles from the backseat, told Pugh goodbye, and went into her apartment. Visibly distraught, M.H.L. reported to her mother and Erickson what had happened to her. Pugh did not leave, but knocked on his friend’s door. Erickson noted the license tag of the car Pugh had been driving. He also asked Pugh his name. Pugh responded with a lie, saying his name was “Mike.” Then, with M.H.L.’s approval, her mother telephoned their minister, Pastor Bill Turley, and asked him to come to their residence. Soon after Turley arrived, he persuaded M.H.L. to report the incident to the police, and he drove her to the station. She gave a statement to officers Darrell Brumbaugh and Lisa Lee. Next, Pastor Turley took M.H.L. to the hospital. There, Nurse Karen Schussler gathered evidence, and Dr. Michael Matthews performed a rape examination.

[¶ 6.] By tracing the license tag number reported by Erickson, the police identified the car as belonging to Sheila Furbish, Pugh’s fiancée. Acting on a tip from Furbish, Officer Cliff Peterson found her car in the parking lot at DD’s Bar, found Pugh in the bar playing pool, and took him into custody. After questioning at the police station by Detective Steve Oberman, Pugh was placed under arrest. According to Pugh, the trip up Dinosaur Hill and the ensuing sexual acts were consensual, accomplished without force or threat of force, and were as much her idea as his. Nor, according to him, did he ever transport and confine M.H.L. against her will. No gun was ever found, and, indeed, M.H.L. never actually saw any gun.

[¶ 7.] In the jury trial, the State called as witnesses M.H.L., her mother, Dr. Matthews, Pastor Turley, Erickson, Officer Brumbaugh, Officer Peterson, Nurse Schussler, and Detective Oberman. Pugh testified on his own behalf and called Ral-ston as a witness. The jury found Pugh guilty of kidnapping and second degree rape. On the kidnapping conviction, he was sentenced to life imprisonment without parole, and for the rape he received twenty-five years, the sentences to run concurrently.

[¶ 8.] On appeal, Pugh raises the following issues: (1) Whether the evidence was insufficient to sustain a conviction for kidnapping and second degree rape. (2) Whether the violations of a pretrial order that prohibited the state from mentioning that the victim was a virgin was prejudicial to defendant. (S) Whether the trial court erred in allowing M.H.L.’s mother, Pastor Turley, and Jan Erickson to testify about M.H.L.’s statements. (4) Whether the trial court erred in denying defendant’s requested specific intent instruction. (5) Whether the life sentence is so severe, excessive, and manifestly disproportionate to the crime that it shocks the conscience and therefore violates Article VI § 23 of the South Dakota Constitution. (6) Whether the life sentence is grossly disproportionate to the crime and is hence a violation of the Eighth Amendment to the United States Constitution.

A. Sufficiency of the Evidence

[¶ 9.] On insufficiency of evidence claims, we review the evidence in a light most favorable to the verdict. State v. Karlen, 1999 SD 12, ¶ 49, 589 N.W.2d 594, 605 (citations omitted). The question is whether the evidence is sufficient to sustain a finding of guilt beyond a reasonable doubt. State v. Hart, 1996 SD 17, ¶ 8, 544 N.W.2d 206, 208 (citations omitted). We will not usurp the jury’s function in resolving conflicts in the evidence, weighing credibility, and sorting out the truth. Id.

[¶ 10.] Kidnapping occurs when [a]ny'person ... shall seize, confine, inveigle, decoy, abduct or carry away any person and hold or detain such person ... [t]o facilitate the commission of any felony....

SDCL 22-19-1(2). Second-degree rape under the circumstances here is defined as

an act of sexual penetration accomplished with any person ... through the use of force, coercion or threats of immediate and great bodily harm against the victim ..., accompanied by apparent power of execution.

SDCL 22-22-1(2). Pugh points to inconsistencies in the evidence and to the fact that M.H.L. had no physical manifestations of trauma. Certainly, M.H.L. and Pugh gave conflicting accounts of what happened on Dinosaur Hill, but the jury chose to believe M.H.L. Reviewing the evidence in a light favorable to the verdict, we conclude that it supports a rational theory of guilt. Accordingly, Pugh’s argument on this issue fails.

B. Violation of Pretrial Order — Virginity of Victim

[¶ 11.] The trial court granted a defense motion in limine to prevent the State from introducing evidence that M.H.L. was a virgin. The court reasoned that an avowal of virginity, as circumstantial evidence of unwillingness to engage in sexual acts, impermissibly broaches character evidence prohibited by SDCL § 19-12^4 (Rule 404(a)), which provides:

Evidence of a person’s character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion....

The court relied on People v. Bone, 230 Mich.App. 699, 584 N.W.2d 760 (1998). In that case, a Michigan appeals court ruled that introduction of evidence of the alleged victim’s virginity as circumstantial proof of her current unwillingness to consent to a particular sexual act was so prejudicial that a new trial was necessary. Id. at 762.

[¶ 12.] However, numerous courts throughout the country have ruled otherwise, recognizing that evidence of a victim’s prior virginity is relevant to, if not highly probative of, the issue of consent. See, e.g., State v. Preston, 121 N.H. 147, 427 A.2d 32 (1981) (rape shield law would not prevent admission of victim’s prior virginity for purpose of proving lack of consent); State v. Aveen, 284 Minn. 194, 169 N.W.2d 749 (1969) (physician’s testimony of victim’s prior virginity was admissible and germane to element of consent); People v. Harris, 297 Ill.App.3d 1073, 232 Ill.Dec. 108, 697 N.E.2d 850 (1998) (evidence of victim’s prior virginity did not constitute evidence of past sexual activity within scope of rape shield law where evidence was relevant to circumstances of the assault); State v. Singleton, 102 N.M. 66, 691 P.2d 67 (N.M.Ct.App.1984) (upholding admission of victim’s statement that she pleaded with defendant not to rape her because she was still a virgin as relevant to show lack of consent); Goodrich v. State, 671 S.W.2d 920 (Tex.App.1984) (victim’s testimony of prior virginity was relevant and admissible); People v. Johnson, 671 P.2d 1017 (Colo.Ct.App.1983) (prosecution’s questions regarding victim’s prior virginity not improper under state’s rape shield statute). In this case, a thirty-year-old victim’s prior virginity is at least probative of the improbability that, on the spur of the moment on a sub-zero morning, she abandoned her employment and consented to sexual intercourse in a car on Dinosaur Hill with an inebriated man she had only just met.

[¶ 13.] The trial court ruled that evidence of M.H.L.’s virginity is also inadmissible under SDCL § 23A-22-15 (the Rape Shield Law), which provides:

In prosecutions for a sex offense under chapter 22-22, evidence of specific instances of a victim’s prior sexual conduct shall not be admitted nor reference made thereto before the jury or jury panel, except as provided in this section. Whenever a party proposes to offer evidence concerning a victim’s prior sexual conduct, the court shall first conduct a hearing in the absence of the jury and the public to consider and rule upon the relevancy and materiality of the evidence.

Chastity, as much as promiscuity, may characterize a person’s sexual conduct, so that — other things being equal — evidence of either would be inadmissible. Other things are not equal, however. The purpose of the rape shield law is not to bar people from vaunting their chastity or testifying to their loss of virginity, but to protect victims from the humiliation of having their unrelated sexual conduct paraded before juries. See State v. Woodfork, 454 N.W.2d 332, 336 (S.D.1990); Jeffries v. Nix, 912 F.2d 982 (8thCir.1990); State v. Sanchez-Lahora, 261 Neb. 192, 622 N.W.2d 612 (2001); State v. Babbs, 334 Ark. 105, 971 S.W.2d 774 (1998); State v. Lampley, 859 S.W.2d 909 (Mo.Ct.App.1993). Accordingly, this protection should be subject to voluntary waiver by a victim in order to prove an element of the case.

[¶ 14.] Furthermore, the rape shield statute is not a total bar to admission of evidence of a victim’s prior sexual conduct. As we said in Woodfork, “[e]vi-dence of a rape victim’s prior sexual encounters may be admitted if the trial court finds that it is relevant and material to a fact at issue in the case.” 454 N.W.2d at 336. For example, evidence of a victim’s prior virginity may be evidence of the victim’s physical state before the assault. See, e.g., Herndon v. State, 232 Ga.App. 129, 499 S.E.2d 918 (1998) (holding physical injuries received during commission of rape, including condition of hymen, is admissible evidence); People v. Stephens, 18 Ill.App.3d 971, 310 N.E.2d 824 (1974) (holding medical testimony regarding'victim’s laceration of hymen was admissible evidence). Indeed, comparing the victim’s physical state before and after an alleged assault might be relevant to a material issue in any rape case.

[¶ 15.] For these reasons, we hold that the trial court abused its discretion in granting the defense motion in limine to prevent the State from introducing evidence of M.H.L.’s prior virginity. Therefore, we need not reach the issue whether the violations of that order were prejudicial to defendant.

C. Life Sentence — Cruel and Unusual Punishment

[¶ 16.] In separate issues, Pugh challenges his sentence under the United States Constitution and the South Dakota Constitution. He contends that ■ his life sentence both imposes a grossly disproportionate punishment and “shocks the conscience.” The Eighth Amendment to our federal constitution forbids a sentence disproportionate to the crime. Solem v. Helm, 463 U.S. 277, 284, 103 S.Ct. 3001, 3006, 77 L.Ed.2d 637, 645 (1983). This principle is narrowly construed in noncapi-tal cases. Harmelin v. Michigan, 501 U.S. 957, 997, 111 S.Ct. 2680, 2702-03, 115 L.Ed.2d 836, 866 (1991). We resort to intra-jurisdietional and inter-jurisdictional analysis “only in the rare case in which a threshold comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality.” Id. at 1005, 111 S.Ct. at 2707, 115 L.Ed.2d at 871.

[¶ 17.] In State v. Bonner, we abandoned the “shock-the-conscience” test when conducting federal constitutional analysis under the Eighth Amendment. 1998 SD 30, ¶ 13, 577 N.W.2d 575, 579. Noting that “[t]he test was originally adopted for application only with our own state constitution, not the Eighth Amendment,” we reserved the shock-the-con-scienee formulation for future consideration under our state constitution. Id. at n. 4. In Bonner, however, we found the sentence to be disproportionate under the Eighth Amendment, so we did not need to examine the sentence under Article VI § 23 of the South Dakota Constitution. Yet, we recognized our conscience “test to be roughly consistent with the gross dis-proportionality analysis used by the United States Supreme Court.” ' Bonner, 1998 SD 30, ¶ 13, 577 N.W.2d at 579.

[¶ 18.] Pugh argues that the question remains whether a sentence reviewed under our state constitution, even if not violating the gross proportionality test, may nevertheless shock the conscience of humankind and this Court and may, on that basis, be overturned. The ideal underlying both tests is the same: whatever act society may reckon as deserving criminal punishment, our notions of justice require different offenses to be treated differently and like offenses to be treated alike. Although it has its flaws, the gross dispro-portionality test allows for some precision in comparing judicially imposed punishments and assessing legislatively imposed gradations. Adverting only to the conscience, to ours or to what we perceive to be the people’s, approaches resorting merely to the subjective.

[¶ 19.] We see nothing in our state constitutional prohibition against “cruel punishments” to suggest that a different standard should be applied. Today, therefore, we take this opportunity to declare that the foremost line of review under both our federal and state constitutions is the gross disproportionality test.

[To] assess a challenge to proportionality we first determine whether the sentence appears grossly disproportionate. To accomplish this, we consider the conduct involved, and any relevant past conduct, with utmost deference to the Legislature and the sentencing court.

Id. at ¶ 17. As for proportionality in this sentence, Pugh’s record shows a background of violence against women, escalating over time. His criminal history includes a 1988 aggravated kidnapping conviction in Texas, as well as arrests in South Dakota for simple assault (domestic violence), violation of a protection order, and possession of a firearm by a felon. Thus, the kidnapping and rape of M.H.L. were not isolated incidents, but only the latest in a series of acts, all indicating an unlikely prospect for rehabilitation. Pugh’s lack of remorse for his crimes against M.H.L. bodes only worse for his chances of reform. The Legislature sanctioned life imprisonment for particularly egregious conduct such as kidnapping, and the trial court found that Pugh was incorrigibly dangerous to others and incapable of rehabilitation. As we have remarked, “successful challenges to the proportionality of particular sentences [will be] exceedingly rare,” for this Court gives great deference to sentencing decisions. State v. Milk, 2000 SD 28, ¶10, 607 N.W.2d 14, 18. In Bonner, we held that if a sentence fails “to suggest gross disproportionality, our review ends.” Bonner at ¶ 17. We find no inference of gross disproportionality in this sentence.

[¶ 20.] Affirmed.

[¶ 21.] GILBERTSON, Chief Justice, and SABERS and AMUNDSON, Justices, and GORS, Acting Justice, concur.

      . We use the rape victim's initials throughout this opinion to protect her privacy. At the time of this incident, she was thirty.

      . This issue lacks sufficient merit for discussion. The trial court properly allowed this testimony under the excited-utterance exception to the hearsay rule.

      . "Rape .... is a general intent offense.” State v. Means, 363 N.W.2d 565, 568 (S.D.1985). Pugh was charged with rape. Therefore, the trial court acted properly in refusing to issue a specific-intent jury instruction.

      . Despite the court's ruling that evidence of M.H.L.'s virginity would not be allowed, one unambiguous and one ambiguous reference occurred at trial. The first reference came from M.H.L. and the other, from a detective; neither was responsive to the question asked. Upon defense objection, the court ruled that the jury should disregard each reference.