author: SABERS, Justice. AMUNDSON, Justice

text:
    2000 SD 64
    Thomas L. PRICE, Plaintiff and Appellant, v. Melinda S. PRICE, Defendant and Appellee,
    No. 21127.
    Supreme Court of South Dakota.
    Considered on Briefs March 20, 2000.
    Decided May 17, 2000.

      Drew C. Johnson of Johnson Law Office Aberdeen, South Dakota, Attorneys for plaintiff and appellant.
    Thomas M. Tobin of Tonner, Tobin and King, Aberdeen, South Dakota, Attorneys for defendant and appellee.
   SABERS, Justice.

[¶ 1.] Melinda Price motioned for change of custody and an increase in alimony. The trial court granted both motions and awarded $338 in child support to Melinda. Tom Price appeals. We reverse and remand the change of custody and child support award, but affirm the.alimony award.

PACTS

[¶ 2.] Tom and Melinda were married June 17, 1972. Shortly thereafter, the couple moved from New York to South Dakota so Tom could practice as a licensed psychologist in Aberdeen. He is a partner in the Northern Plains Psychological Services clinic, which is located in Aberdeen with branch offices in Watertown, Redfield and Waubay.

[¶3.] The couple have four children: Zachary, born April 12, 1977; Adam, born January 27, 1979; Joshua, born March 2, 1982; and Stuart, born April 5,1988.

[¶ 4.] After 21 years of marriage, Tom filed for divorce in July of 1993. Melinda initially sought sole custody of the four minor children. Tom opposed and sought joint custody of the children with physical custody awarded to him. An extensive custody evaluation was conducted in August of 1994. As part of the evaluation, Stuart, be.cause of his young age of six, was tested to “obtain some objective information about [his] parental preference.” Stuart completed four of the seven tests with the results showing that his preferred parent was his father. Stuart also “portrayed himself as being very close to, and protected by, Josh.” The three older children were personally interviewed and indicated that “they did not want to continue living with their mother’s anger, and that they felt closer to, and safer with, their father.” During a home visit with Melinda, the evaluator noted:

Mrs. Price spent more than 30 minutes discussing her angry feelings about the ending of the marriage, information about Mr. Price’s father’s suicide, and allegations that Mr. Price had wanted hér to have an abortion instead of giving birth to Stuart. All of this was done in the presence of Stuart who appeared to be very sad, and somewhat dissociative, during this discussion. Mrs. Price also went on at length about Mr. Price’s attempts to turn the children against her, as well as the difficulties she had experienced financially due to him not giving her enough money.

After interviewing several references provided by both parties, the evaluator recommended that Tom have sole custody of the two oldest boys, Zachary and Adam, and that Tom and Melinda share joint custody of Josh and Stuart with primary physical custody in Tom.

[¶ 5.] Instead of contesting the custodial recommendations, Melinda agreed that she and Tom would share joint legal custody of all four children with physical custody in Tom. However, the older two children were not required to abide by the visitation schedule and were allowed to choose if and when they visited Melinda. The marital property was divided and Melinda was awarded a lump sum of $27,203 in restitu-tional alimony, $1 in regular alimony and rehabilitative alimony in an amount offsetting her child support obligation to Tom. The Judgment and Final Decree of Divorce was filed on October 6,1994.

[¶ 6.] Melinda moved to Rochester, New York shortly after the divorce. On February 26, 1996, Melinda motioned for a change in physical custody of Stuart and for an increase in alimony. During the hearing, the trial court reviewed the 1994 custody evaluation and transcripts of two telephone conversations between Melinda and Stuart and Josh. The transcripts reveal that Melinda was: pressuring Stuart to tell his teachers that he wanted to live with his mom; disparaging Tom to the children; and trying to alienate their affections for Tom. Finding it was in Stuart’s best interest to remain with Tom, the trial court denied Melinda’s motion for a-change in custody. However, the trial court acknowledged Melinda’s need for educational training and awarded her $600 in rehabilitative alimony beginning June 1996 and ending June 1998.

[¶ 7.] After completing a two-year training course, Melinda filed, on June 22,1998, a second motion to change custody of Stuart and a motion to increase alimony. The matter was heard April 28-29, 1999.

[¶ 8.] At this time, Zachary was married, working and attending' college full-time and maintaining an independent residence in Aberdeen. The second oldest son, Adam, was attending college full-time and working two part-time jobs, but still resided at home. Joshua, 17-years-old, was a junior in high school and worked part-time. Stuart was 11-years-old and was in the fifth grade.

[¶ 9.] The trial court interviewed Stuart in chambers for 25 minutes, with both counsels present. During this interview, Stuart “expressed a strong preference to live with his mother” in Rochester, New York due to his “close relationship” with her and his feeling that Melinda’s boyfriend, Clark, whom Melinda lived with, would provide a “safe environment” for him.

[¶ 10.] In evaluating Stuart’s care under Tom, the trial court found: (1) the three older siblings do not regularly interact with Stuart; (2) Stuart is home alone for a minimum of two and one-half hours after school; (3) Tom’s relationship with his girlfriend consumes much of Tom’s time; and (4) Tom does not spend any time trying to develop Stuart’s reading skills beyond putting him in special education classes.

[¶ 11.] Conversely, the trial court found that Melinda was able to provide “special attention” to Stuart by spending more time with him and working with him on his learning disability. The court also noted that Stuart would “flourish” if placed with Melinda because her work schedule permitted her to be available to Stuart more often.

[¶ 12.] The trial court concluded that it was in Stuart’s best interest that Melinda be awarded primary physical custody of Stuart, conditioned on Melinda-moving out of her boyfriend’s home, maintaining her own apartment in New York and attending to Stuart’s spiritual needs. The court also concluded that Melinda’s alimony be increased to $1,000 per month and that Melinda receive $338 in monthly child support payments from Tom.

[¶ 13.] Tom motioned for reconsideration or new trial. A hearing was held on May 27, 1999 at which Tom told the court that Stuart met with a certified professional counselor in Sioux Falls after the court ordered that physical custody be changed to Melinda. The report reflects that Stuart was prompted, for years, by Melinda to say he wanted to live with her and he was stunned that the trial court awarded custody to Melinda. A transcript of a post-trial telephone conversation between Stuart and Melinda was also presented to the trial court. During this conversation, Stuart admitted that he was' uncertain whether he actually wanted to live in New York. In response, Melinda told Stuart “everybody is telling you things that aren’t true” and that he would love their new apartment once he got there because there were “a thousand” children in the complex and it had three swimming pools on site. The trial court determined there was no evidence of Melinda .exerting influence over Stuart and denied the motion for reconsideration or new trial.

[¶ 14.] Tom also motioned the court to stay the transfer of custody, which was scheduled for June 1, 1999, three days from the date of this hearing. Tom requested that the trial court allow Stuart to stay with him during the pendency of the appeal or until a complete home study was conducted in Rochester, New York because Melinda’s new living arrangements had not been disclosed. The trial court determined that Melinda signed a 12-month lease for an apartment in Rochester, New York and denied Tom’s motion. Therefore, Stuart has been living with Melinda in Rochester, New York since June 1, 1999.

[¶ 15.] Tom appeals and raises three issues.

[¶ 16.] 1. WHETHER THE TRIAL COURT ERRED IN GRANTING A CHANGE OE PHYSICAL. CUSTODY OF STUART FROM TOM TO MELINDA.

[¶ 17.] Tom argues that: (1) it was not in Stuart’s best interest to be uprooted from his home in South Dakota to live in Rochester, New York with Melinda; (2) Stuart’s stated preference to live with Melinda was the result of Melinda’s influence; and (3) Melinda did not present compelling reasons to separate the four siblings.

[¶ 18.] The primary determination in a custody dispute is to ascertain the best interest of the child. In determining the best interest of a child, the court must consider the child’s “temporal, mental and moral welfare.” SDCL 25-4-45; Fuerstenberg v. Fuerstenberg, 1999 SD 35, ¶ 22, 591 N.W.2d 798, 806 (citations omitted). “Trial courts possess broad discretion in deciding the best interests of a child; their decisions will only be disturbed upon a finding of abuse of discretion.” Fuersten-berg, 1999 SD 35, ¶ 22, 591 N.W.2d at 807 (citations omitted). A court may consider seven factors in determining which parent will have primary care of the child: (1) parental fitness; (2) stability; (3) primary caretaker; (4) child’s preference; (5) harmful parental misconduct; (6) separation of siblings; and (7) substantial change in circumstances. We review these seven factors:

[¶ 19.] A. Parental Fitness

[¶ 20.] Here, we determine which parent is better equipped to provide for the child’s “temporal, mental and moral welfare.” SDCL 25-4-45. Some of the factors considered in evaluating parental fitness include:

(1) mental and physical health;
(2) capacity and disposition to provide the child with protection, food, clothing, medical care, and other basic needs;
(3) ability to give the child love, affection, guidance, education and to impart the family’s religion or creed;
(4) willingness to maturely encourage and provide frequent and meaningful contact between the child and the other parent;
(5) commitment to prepare the child for responsible adulthood, as well as to insure that the child experiences a fulfilling childhood; and
(6) exemplary modeling so that the child witnesses firsthand what it means to be a good parent, a loving spouse, and a responsible citizen.

Fuerstenberg, 1999 SD 35, ¶ 24, 591 N.W.2d at 807 (internal citations omitted).

[¶21.] When the parties were initially divorced, a custody evaluation was conducted. After testing the children, interviewing several individuals, and observing the parties with the children, the evaluator recommended that Tom have sole custody of the two oldest boys and that Tom and Melinda share joint custody of Josh and Stuart with primary physical custody in Tom. The evaluator further recommended that Melinda “undergo a complete psychological evaluation” and that:

[t]he court ... issue an injunction prohibiting [Melinda] from yelling at, or in the presence of, the children, throwing objects or doing physically abusive acts in the presence of the children, making disparaging remarks about [Tom] in the children’s presence, and pumping the children for information about the other parent.

The evaluator also recommended that Melinda “take a parenting class from a trained mental health professional.”

[¶ 22.] Melinda had not completed any of the evaluator’s recommendations when she petitioned for modification in 1996. Nor did she show any signs of improvement. After reviewing transcripts of telephone conversations, the trial court found that during her conversations with Stuart, Melinda referred to Tom as “your dumb father,” accused Tom of an affair which destroyed the marriage and commented that Tom might get AIDS from sleeping with his fiancée, which was OK with Melinda. Based on the evidence, the trial court concluded that Melinda was pressuring Stuart to tell his teachers and others that he wanted to live with her. The trial court also prohibited both parties from “making negative or disparaging comments about the other in the children’s presence or, in any way, pressuring the children with regard to the issue of custody.”

[¶ 23.] By 1999, Melinda had not completed any of the evaluator’s recommendations. Tom introduced the 1994 custody evaluation as well as the 1996 transcripts to the trial court during the second modification proceeding. The trial court did not make any specific findings regarding Melinda’s overall parental fitness.

[¶ 24.] At the hearing on the motion for reconsideration or new trial, Tom presented another transcript of a telephone conversation between Melinda and Stuart. The transcript reflects that Melinda continues to belittle Tom to Stuart and pressures Stuart into saying he wants to live with her:

Melinda: Are you still sure you want to come here?
Stuart: Sort of. Sort of not.
Melinda: Stu, why? I thought this is what you wanted?
Stuart: Well ... actually, now I just thought of something. Yes.
Melinda: Yeah, because everybody is working on you aren’t they, Stu?
Stuart: Huh?
Melinda: Because everybody is telling you things that aren’t true aren’t’ they, Stu?
Melinda: You still want to? You want to try it don’t you?
Stuart: Yes. Yeah. Now I do.
Melinda: Yeah? -Well, you tell me that when you’re on the phone ■with me but..... apparently when I’m out of sight and [ ] mind, you say other things there. Is that correct?
Stuart: ummm.... Yep.
Melinda: Yep. Your brothers are trying to convince you and all this stuff.,, I know what is going on back there. I am well aware of it. Stuey, we’re going to have such a good time and now Dad wants to keep you for the beginning of the summer instead of the end of the summer and I want it the other way around and if that is the way it is, you won’t be able to play traveling soccer.
Stuart: Oh, no way!
Melinda: I’m fighting it, Stuey. Nothing concrete [mind] you. We have no idea....
Stuart: Right now I’ll say no.

Melinda also told Stuart, “Don’t tell your brothers anything that I’m telling you.”

[¶25.] Given the history of Melinda’s belittling Tom to the children and attempting to influence them, there is little reason to believe that anything has changed since August of 1994, the date of the last custody evaluation. Based on the record evidence, Tom appears to be best equipped to provide for Stuart’s temporal, mental and moral welfare.

[¶ 26,] B. Stability

[¶ 27.] This determination is which parent is able to provide a stable and consistent home environment. Factors considered include:

(1) the relationship and interaction of the child with the parents, step-parents, siblings and extended families;
(2) the child’s adjustment to home, school and community;
(3) the parent with whom the child has formed a closer attachment, as attachment between parent and child is an important developmental phenomena and breaking a healthy attachment can cause detriment; and
(4) continuity, because when a child has been in one custodial setting for a long time pursuant to court order or by agreement, a court ought to be reluctant to make a change if only a theoretical or slight advantage for the child might be gained.

Id. at ¶ 26 (internal citations omitted).

[¶ 28.] Stuart has attended the same school, was raised in the same house and lived in the same community all his life, with the exception of visitations with Melinda in Rochester. His siblings and father live in Aberdeen, South Dakota. Tom regularly attended church with all four boys, an activity Melinda did not participate in, even during the marriage. At the time of the hearing, Tom had physical custody of Stuart for nearly 5 years.

[¶ 29.] In justifying the change of custody, the trial court found that Stuart had a close relationship with his mother and desired to live with her because he would receive more individualized attention from her. The trial court also found:

As a further change of circumstances since June of 1996, Stuart has also been engaged in a special education class which has improved his success in his school work. The type of special education classes that Stuart can benefit from are available in the State of New York living with [Melinda].

Only a “theoretical or slight advantage” would be gained for Stuart in New York because, as the trial court noted, the classes he was attending in Aberdeen were improving his “success in his school work.”

[¶ 30.] The trial court also determined that Stuart wanted to live with Melinda because her boyfriend, Clark, “provided a safe environment in which Stuart could participate in all of the activities and socialization necessary for a[n] 11-year-old boy.” The trial court ordered Melinda to move out of Clark’s house and maintain her own apartment; therefore, the finding that Clark could provide a “safe environment” for Stuart is somewhat immaterial as the question is whether Melinda could provide a safe environment for Stuart by herself. Obviously, no home study or custody evaluation was performed in the home where Melinda would be living with Stuart.

[¶ 31.] C. Primary Caretaker

[¶ 32.] Many jurisdictions give preference to the primary caretaker. Id. at ¶ 28. This factor determines the person most committed and involved in parenting the child and is also a “fair indicator of which parent has been more responsible to the child in the past.” Id. The trial court must consider who was more devoted to the child before the custodial dispute arose. Id.

[¶ 33.] The primary caretaker can be identified by determining “which parent invested predominant time, care and consistency in raising the child.” Id.

It is evidenced in such matters as spending time with the child, preparing meals, playing, attending to medical care, choosing clothing, involvement in school, attending the child’s extracurricular activities, reading to the child, preparing birthday parties, knowing the pediatrician, consistent disciplining, arranging transportation, and providing appropriate clothing, foods and toys.

Id. “Closely related to this question is the issue of which parent has more time available to spend with the child.” Id. (citation omitted).

[¶ 34.] Both parties are employed. Tom works over 40 hours per week. On the days he travels to the branch offices, he begins his days early so that he is regularly home by 6:00 p.m.; sometimes, however, he is home by 4:00 or 5:00, depending on his schedule. From 1994 to 1999, he was the primary caretaker of Stuart. At the time of the hearing, Tom was responsible for meeting Stuart’s educational, medical and emotional needs. Tom planned the birthday parties for Stuart, took him to church and involved him in extracurricular activities, such as hockey and soccer. Tom also enrolled Stuart in a summer reading clinic program at Northern State University to help him with his learning disability. Around the house, Stuart was responsible for taking care of the dogs, taking out the garbage and cleaning his own room. On occasion when warranted, Tom disciplined Stuart by withholding privileges that Stuart considered important.

[¶ 35.] Clearly, Tom was the primary caretaker at the time of the hearing. The trial court made no specific findings regarding the manner Melinda proposed to care for Stuart on a permanent daily basis while she was working. The court found that Melinda, who works 35-40 hours per week, would be able to give Stuart more time than Tom.

[¶ 36.] D. Child’s Preference

[¶ 37.] SDCL 25-4-45 provides that “[i]f the child is of a sufficient age to form an intelligent preference, the court may consider that preference .... ” (emphasis added). While the final decision rests with the court, a child’s parental preference deserves some consideration.

[¶ 38.] Here, Stuart expressed to the trial court that he wanted to live with his mother. The trial court stated that Stuart felt close to his mother, wanted to receive more individualized attention and felt like he was in a “safe environment” with Clark. After the court awarded physical custody to Melinda, Tom claims that Stuart was stressed about the move and was confused. Therefore, Tom took him to a counselor in Sioux Falls, who met with Stuart and received letters from Zachary, Adam and Josh. During the hearing on Tom’s motion for reconsideration, Tom presented the counselor’s report, which provides that Stuart is easily influenced and “has had years of being primed to respond in a way. that his mother desires.” The counselor further notes:

It appears that Melinda may be suffering from some personality disorder that contributes to her verbal and psychological abuse of her children.... I believe it would [be] in Stuart’s best interest ... that Melinda have [a] full, psychological evaluation by a qualified psychologist. .... It is also suggested] that another full custody evaluation be completed pri- or to a change in physical care of Stuart.

[¶ 39.]. Tom also presented the trial court with a transcript of a post-trial, telephone conversation between Melinda and Stuart. During this conversation, Stuart expressed that he was not sure whether he wanted to live with his mother and stated he was “confused.” Melinda also validated his confusion by stating: “you tell me [you want to live with me] when you’re on the phone with me, but ... apparently when I’m out of sight and ... mind, you say other things there.” Stuart responded, “yep.”

[¶ 40.] Based on Melinda’s history and pattern of attempting to alienate her children from Tom, Stuart’s expressed preference can not be afforded great weight. The standard remains the best interest of Stuart and an 11-year-old child can not always determine his own best interest.

[¶41.] E. Harmful Parental Misconduct

[¶ 42.] This factor is only considered when “a parent’s marital misconduct has a harmful effect on a child....” Fuerstenberg, 1999 SD 35, ¶ 31, 591 N.W.2d at 809. “[T]he harmful effect is self-evident when parental misconduct is committed in the presence of a child old enough to perceive the misconduct.” Id.

[¶ 43.] In 1994, the custody evaluation reflected that the three older children thought Melinda was angry and they felt safer with Tom. The evaluator’s experience with Melinda was also revealing: Melinda told the evaluator how angry she was with Tom and told the evaluator that Tom wanted her to abort Stuart, all in the presence of Stuart who appeared “sad and somewhat dissociative.” In 1996, the trial court found that Melinda was pressuring Stuart into telling his teachers that he wanted to live with Melinda. It also found that Melinda, in her conversations with Stuart, then 8-years-old, referred to Tom as “your dumb father,” accused Tom of an affair which destroyed the marriage and commented that Tom might get AIDS from sleeping with his then-fíancée.

[¶ 44.] The trial court made no findings that Melinda’s attempts to alienate the children against Tom, which allegedly began during the marriage, have ceased.

[¶ 45.] F. Separating Siblings

[¶ 46.] “Siblings should not be separated absent compelling circumstances.” Id. at ¶ 32. “Justice requires that society exercise its moral duty to insure that children in a family enjoy the right to remain together, to share each other’s lives, and to grow up together, until such time as necessity and the welfare of the children, itself, requires their separation.” Id. (quoting Mayer v. Mayer, 397 N.W.2d 638, 644 (S.D.1986)).

[¶47.] The trial court found that the Price family dynamics have changed substantially since 1994. Stuart is the youngest of four boys. The oldest two boys reached majority age. Zachary is married, works and attends college full-time in Aberdeen. Adam works and attends college, but lives with Tom, Josh and Stuart. Josh was 17 at the time of the hearing and a junior in high school. Now, he is 18-years-old and a senior in high school. Josh did not testify at trial.

[¶ 48.] The trial court found that “compelling reasons [exist] why [Stuart] could ... be separated from his siblings because the two older ones are on their own. Josh is 17. He has his vehicle, and he is driving around with his Mends. He doesn’t have a lot of time for an 11-year-old.” It also found the older boys did not spend a substantial amount of time with Stuart; i.e. “they do not play a role in his education, support, maintenance or supervision, except on a superficial basis.”

[¶ 49.] Siblings are not responsible for the “education, support, maintenance or supervision” of each other. The purpose in requiring a trial court to have compelling reasons before separating siblings is to ensure that they are afforded “the right to remain together, to share each other’s lives, and to grow up together.” Id. (quoting Mayer, 397 N.W.2d at 644). The fact that a 17-year-old has a ear and drives around with friends does not amount to a compelling reason to separate siblings.

[¶ 50.] It appears that the sibling relationship between Josh and Stuart is not unusual. Stuart accused Josh of yelling at him and making him do Josh’s chores. There was also evidence that the two brothers were close, they frequently bowled, played video games and went to restaurants together. The trial court found that there was “no close relationship” between Josh and Stuart, which is disputed. Overall, there did not appear to be compelling reasons to separate Stuart from his siblings.

[¶ 51.] G. Substantial Change in Circumstances

[¶ 52.] To modify a custody decree after a contested hearing, the moving party must show a substantial change in circumstances. Mayer, 397 N.W.2d at 640. Here, the original decree awarded custody to Tom pursuant to an agreement by the parties. However, Melinda sought a change in custody of Stuart in 1996 and that issue was contested. Therefore, Melinda must show that a substantial change in circumstances exists since 1996.

[¶ 53.] The trial court found a change in circumstances existed: (1) Stuart’s parental preference changed since 1994; (2) the relationship between Josh and Stuart differed from 1996; (3) Tom is not home when Stuart gets home from school and is occasionally gone in the evenings; (4) Tom does not assist Stuart with his homework at night; and (5) Tom does not read with Stuart like he did previously.

Conclusion

[¶ 54.] Although we are satisfied the change in circumstances was sufficient, we do not agree that the decision to change custody of Stuart from Tom to Melinda was correct.

[¶ 55.] Stuart’s claimed parental preference and his version of his relationship with Josh are both highly suspect. The trial court’s decision appears premised on the parent with the most available time. Although having more available. time is important, a change of custody can not be justified on that factor to the exclusion of others and the trial court did not make any specific findings on the manner that Tom’s work schedule substantially differed from 1996.

[¶ 56.] These seven factors are guidelines and a trial court is not expected to make findings on all seven. However, the trial court’s decision should be “balanced and methodical,” Fuerstenberg, 1999 SD 35, ¶ 35, 591 N.W.2d at 810, and should be based on “the best interest of children and not the shortcomings of the custodial parent.” Mayer, 397 N.W.2d at 642 (quoting Haak v. Haak, 323 N.W.2d 128, 130 (S.D.1982)).

[¶ 57.] Based on the record evidence, we determine that the trial court abused its discretion in awarding physical custody to Melinda. “The predominant concern is the child’s best interest and each case turns on its own facts in determining which parent can administer more effectively to the long range interests of the child.” Mayer, 397 N.W.2d at 642 (citation omitted). Considering Melinda’s history of attempting to alienate Stuart from Tom and her expression of anger for Tom to Stuart, we are convinced that Tom is the parent best equipped to handle Stuart’s “temporal, mental and moral welfare.” We hold that the trial court abused its discretion in awarding physical custody to Melinda and we reverse.

[¶ 58.] 2. WHETHER MELINDA DEMONSTRATED A CHANGE OF CIRCUMSTANCES TO JUSTIFY AN INCREASE IN PERMANENT ALIMONY.

[¶ 59.] In modifying alimony, the party seeking modification must establish a change of circumstances. Lampert v. Lampert, 388 N.W.2d 899, 902 (S.D.1986).

[¶ 60.] The parties were divorced in 1994. Melinda was awarded a lump sum of $27,203 in restitutional alimony, $1 in permanent alimony and rehabilitative alimony which offset her child support obligation to Tom. In 1996, she was awarded $600 per month in rehabilitative alimony, beginning June 1996 and ending June 1998, so she could attend a two-year training course. As rehabilitative alimony ended, Melinda petitioned to increase the permanent alimony award. The trial court awarded permanent alimony of $1,000 per month.

[¶ 61.] In awarding permanent alimony, the trial court must consider six factors:

(1) the length of the marriage;
(2) the respective earning capacity of the parties;
(3) their respective financial condition after the property division;
(4) their respective age, health and physical condition;
(5) their station in life or social standing; and
(6) the relative fault in the termination of the marriage.

Jones v. Jones, 1996 SD 2, ¶ 21, 542 N.W.2d 119, 124 (citation omitted).

[¶ 62.] The parties were married for 22 years. ' Tom is a licensed psychologist and is one of two partners in Northern Plains Psychiatric Services. ■ His 1997 income tax return reflects that his total income was $160,221, which includes $13,300 of his second ex-wife’s income. His return for 1998 shows total income of $109,206.

[¶ 63.] Melinda did not work outside the home during the marriage. She currently has a two-year degree in travel and tourism and is a ticket salesperson with Continental Airlines, working 35-40 hours per week at $8.01 an hour. She has an annual gross income of $14,500 to $16,000.

[¶ 64.] In the divorce, Melinda was awarded $80,685 in marital property with $1,658 in debt netting $79,027. Tom was awarded $118,391 in marital assets with $104,923 in debt netting $13,468. Both parties are in good physical condition and are able to work.

[¶ 65.] Fault for the deterioration of the marriage was not addressed at the time of the divorce.. Tom now claims that Melinda was to blame because she: (1) constantly belittled him in front of the children; (2) used vulgarity when talking to the chil■dren; (3) spent more money than the family had to spend; (4) was an incompetent housekeeper; (5) was- unwilling to cook meals for the family; (6) slept late in the morning and did not get the kids off to school; (7) expressed antagonism toward his success in his career; and (8). refused to attempt to reconcile these faults and attempt to save the marriage. Melinda claims she was not at fault for the divorce but claims that Tom’s extramarital affair caused the divorce. The trial court did not determine which party was at fault.

[¶ 66.] Melinda submitted a list of anticipated, ordinary expenses she would incur once she was living in her own apartment in New York. The total was $2,668.50 per month or $32,022 annually. Tom submitted his estimated personal expenses for 1999. His montíiíy total, for himself, Josh .and Stuart, was $10,464.68 or $125,573 annually.

[¶ 67.] Based on all the facts and circumstances, there is no showing that the trial court abused its discretion in awarding permanent alimony to Melinda of $1,000 per month. We affirm.

[¶ 68.] 3. CHILD SUPPORT AND APPELLATE ATTORNEY’S FEES.

[¶ 69.] In Issue 1, we reversed the change of physical custody to Melinda. Therefore, the award of child support to Melinda is also reversed and remanded to determine, after considering all income available to Melinda, the amount of child support Melinda shall pay to Tom. See Peterson v. Peterson, 2000 SD 58, 610 N.W.2d 69.

[¶ 70.] Additionally, Melinda motions this court for an award of $4,378.33 in appellate attorney fees. The motion is accompanied by an itemized statement of costs incurred and legal services rendered in accord with Malcolm v. Malcolm, 365 N.W.2d 863, 866 (S.D.1985). Factors considered in awarding appellate attorney’s fees are: “the property owned by each party; their relative incomes; the liquidity of the assets; and whether either party unreasonably increased the time spent on the case.” Weekley v. Weekley, 1999 SD 162, ¶ 27, 604 N.W.2d 19, 26 (citations omitted). Based upon our consideration of these factors, Tom shall pay Melinda appellate attorney’s fees of $1,000.

[¶ 71.] MILLER, Chief Justice, and KONENKAMP, Justice, concur.

[¶ 72.] AMUNDSON, Justice, concurs in part and dissents in part.

[¶ 73.] GILBERTSON, Justice, deeming himself disqualified, did not participate.

AMUNDSON, Justice

(concurring in part and dissenting in part).

[¶74.] I respectfully dissent on issue two.

[¶ 75.] We have often stated that to obtain a modification of alimony, the moving party must establish that a change in circumstances has occurred since the original decree was entered. See Olson v. Olson, 1996 SD 90, ¶10, 552 N.W.2d 396, 399 (citations omitted). The trial court must limit its review to “changes occurring since the time of the divorce” and “whether the economic circumstances of the parties have changed since the award such that the original award is now either insufficient or excessive.” Id., ¶ 11. Further, the “trial court’s findings ... must support its conclusion on an award of alimony.” Eichmann v. Eichmann, 485 N.W.2d 206, 207 (S.D.1992) (citations omitted).

[¶ 76.] In the present case, the trial court had ordered that the custody of Stuart go to Melinda, but that Melinda must obtain her own apartment and no longer reside with her boyfriend. To support her request for an increase in alimony, Melinda presented evidence depicting her monthly expenses. She provided two breakdowns of her expenses: $2083.50 if she continued to live with her boyfriend and $2668.50 if she obtained her own apartment. A review of these two exhibits reflects that many of Melinda’s expenses were identical, regardless of whether she lives with her boyfriend or lives alone. The trial court further found that Melinda’s monthly “take-home pay” would be around $800.

[¶ 77.] Both the trial court and the majority opinion held, in a conclusory fashion, that a change of circumstances existed to support an alimony award of $1,000. Since this alimony award, however, this Court has reversed the trial court’s decision and allowed Stuart to remain in the custody of Tom. Based upon this determination, the “economic circumstances” of the parties are not the same as what the trial court reviewed in determining the alimony award; therefore, a 1000 percent increase in alimony is not appropriate in this case.

[¶ 78.] Despite the fact that Melinda has not reached a level of financial stability like Tom has, I can not condone such a large increase in alimony based upon this record. The trial court did not detail how it came up with the $1000 alimony figure, it only stated that a “change of circumstances exist creating a great need on behalf of [Melinda] for additional income in which to be self-supporting.” Since Melinda is not going to obtain custody of Stuart, as the trial court originally ordered, the circumstances for which the alimony award was .based have changed. Therefore, I would reverse and remand the alimony-award back to the trial court for reconsideration based upon this Court’s decision to allow the custody of Stuart to remain with Tom.

      . The trial court also allowed Josh, like Zachary and Adam, to choose if and when he visited Melinda.

      . Melinda appealed the trial court's denial of her motion for change of custody and Tom appealed the increase in rehabilitative alimony. Melinda dismissed her appeal on January 13, 1997. The trial court's determination that rehabilitative alimony be increased for two years was summarily affirmed on April 3, 1997.

      .Tom married Linda Wachtel on August 16, 1997 and divorced her on June 8, 1998. The girlfriend referred to here is Doris Opitz. Tom married her in June of 1999.

      . The trial court reviewed a transcript of a telephone conversation taped on February 14, 1996. During the conversation, Melinda was crying and repeatedly asked Stuart about Tom's new engagement to Linda Wachtel. She told Stuart to “give [Linda] a bad time” so that Stuart could live with Melinda.
      During this conversation, Josh also got on the telephone and spoke with Melinda. She told Josh that Tom was having sex with Linda during their marriage, but Josh did not believe her. She further told him: "I can’t believe that you would just accept somebody else being your mother.” The transcript indicates that Melinda was crying and yelling at Josh about the relationship between Tom and Linda. She concluded:
      [Linda will] have sex with [Tom] every night, so, your father will be very happy, very happy. And the more you guys are gone, the happier he’ll be. The more time they can be together, the happier they’ll be ... when you guys aren’t around. And I know you don’t like to hear it either, but it’s true. It's a big thing in your dad's life. But just remember, Josh, [your] mom’s here for you.

      . During trial, Melinda presented a letter written by Stuart to Melinda’s attorney in July of 1998, when Stuart was visiting Melinda:
      I want to live with my mom because I'm scared of my dad. I heard my dad and [LJinda fighting and my dad hit [L]inda. I heard [L]inda say stop it but my dad didn't. They did not know that I was up and listening. I’m scared my dad will hit me too. My brother [J]osh mostly yells at me for everything and makes me do his things. My family leaves me alone at times which I do not like. In my house in Aberdeen there is always a lot of changes, like Linda, Doris, my dad drinking and my brothers and my dad are seldom home. With my mom she’s always there for me and we do a lot of things together.
      Please let me stay with my mom.
      Tom argues that Stuart is not scared of him and that Melinda coerced Stuart to write the letter. He claims that Stuart never heard the disagreement between himself and Linda; rather, it was Linda who told her version to Melinda, after Linda's divorce from Tom.

      . Melinda presented a home study that was performed on September 3, 1998 while Stuart was visiting her in New York for the summer. The home study was conducted at Clark's home, where Melinda was residing at the time. However, because Melinda no longer resides there, the "home and neighborhood” portion is questionable.
      The interviewer also met with Stuart and, as indicated above at footnote 5, noted that Stuart "is afraid of his father, having witnessed fights between his father and Linda in which they were ‘yelling at each other’ " and Tom hit Linda. The report also reflects that Stuart stated that he would miss his brothers if he were allowed to live in New York, but "some of [his] friends remind [him] of [his] brothers.” The interviewer concluded that she would "have no reservations to Stuart's living in this situation.”

      . Melinda argues that Tom allows Stuart to watch violent programs on television; name- . ly, an adult cartoon entitled "South Park” and "All-Star Wrestling.” Tom asserts, however, that "South Park” was introduced into his home after Adam returned from a visit with Melinda.
      Melinda further claims that Tom allowed Stuart to witness his brothers sleeping in the same cabins as their girlfriends when they ■ went on a cruise for a family reunion. Tom counters by arguing that both Zachary and Adam had attained the age of majority, Zachary was engaged to his girlfriend and Adam and his girlfriend slept in the same cabin as Tom did.
      Finally, Melinda claims that Stuart is left at home alone after school and sometimes in the evenings. Tom testified that Stuart had a babysitter until January of 1999 when Stuart insisted that he was the only fifth-grader that still had a babysitter after school. After speaking with several individuals, Tom allowed Stuart to stay home alone after school. Tom, however, provided Stuart with a list of phone numbers to reach Tom or others, and Tom called in and checked on him after school.

      . During the pendency of these motions, Melinda filed for bankruptcy in February of 1999. Approximately $25,000 in debt was discharged, leaving Melinda with $15,000 in student loans and federal and state income tax debts. The trial court noted that the bankruptcy was necessary "in order [for Melinda] to have the ability to provide a decent life for herself and for Stuart.” '

      . It is clear from the record that Melinda has undergone severe financial difficulties. She spent all of her rehabilitative alimony award and eventually filed for bankruptcy. It is also troubling that Melinda depicts here monthly income as around $800, which the trial court and this Court agreed with, but estimates her monthly expenses ranging from $2,083.50 to $2,668.50. Her estimated expenses clearly exceed her monthly income by a vast amount.


source: Caselaw Access Project

author: TRIMBLE, Circuit Judge MILLER, Chief Justice AMUNDSON, Justice

license: Public Domain

text:
    2000 SD 73
    Warren Michael JURGENSEN, Plaintiff and Appellee, v. Lori Ann SMITH, Defendant and Appellant.
    No. 20996.
    Supreme Court of South Dakota.
    Considered on Briefs Feb. 14, 2000.
    Decided June 7, 2000.

      Steven M. Johnson and Matthew T. To-bin of Johnson, Heidepriem, Miner, Mar-low & Janklow, Todd C. Miller, Sioux Falls, South Dakota, Attorneys for plaintiff and appellee.
    John E. Simko and Melanie L. Carpenter of Woods, Fuller, Shultz & Smith, Sioux Falls, South Dakota, Attorneys for defendant and appellant.
   TRIMBLE, Circuit Judge

[¶ 1.] This was a case of admitted liability. The jury was required to determine damages. Lori Ann Smith (Smith) appeals the award of damages to Warren Michael Jurgensen (Jurgensen) in the amount of $310,000. Smith alleges that based on the evidence presented, the trial court erred in not allowing her to introduce evidence that Jurgensen’s financial condition was similar before and after the accident. Smith further alleges the trial court erred in not allowing her to assert a mitigation of damages defense. We affirm.

FACTS

[¶2.] On January 23, 1996, Jurgensen was involved in a car accident with Smith. The accident occurred when Smith failed to stop at a red light. As a result of the accident, Jurgensen sustained serious physical injuries to his neck, back and shoulder and incurred substantial economic losses. Smith admitted liability in her answer and at trial. Thus, the only issue at trial was damages.

[¶ 3.] At the time of the accident, Jur-gensen was employed by Electric Construction Company (Electric Construction) as a licensed journeyman electrician. His pay rate at the time of the accident was $16.26 per hour as a journeyman and $19.67 per hour as a foreman. Jurgen-sen’s annual income prior to the accident was approximately $41,000 per year plus benefits.

[¶ 4.] On the date of the accident, Jur-gensen was on his way to work at the First National Bank Building where he was supervising a small crew cleaning and fixing light fixtures. When he was about half a block from an intersection, the traffic light turned green. Jurgensen proceeded through the intersection where his vehicle was broadsided by Smith’s vehicle. Jur-gensen was taken to an emergency room where he was treated for a head injury. He was discharged with instructions to follow-up with his physician if his condition did not improve.

[¶ 6.] Jurgensen’s condition did not improve so he sought chiropractic treatment on January 29. Dr. Mark Hagen (Hagen) examined Jurgensen and took x-rays. The x-rays revealed Jurgensen’s back and neck had suffered severe trauma as a result of the accident and were out of alignment. The trauma had also caused the ligaments and nerves to break apart which resulted in a soft tissue injury.

[¶ 6.] The injuries to Jurgensen’s neck and back prevented him from working from January 29 to April 4. During these months, Jurgensen underwent physical therapy designed to heal and strengthen the muscles in his back and neck. Although he returned to work on April 15, his pain persisted and he was forced to take another leave of absence from work. At this point, Jurgensen was referred to Dr. Myung Cho (Cho), a physiatrist specializing in the field of physical medicine and rehabilitation.

[¶ 7.] Cho found that Jurgensen’s pain was consistent with injuries sustained in an automobile accident. Cho treated Jur-gensen- from August to December and prescribed trigger point injections and physical therapy designed to improve Jur-gensen’s muscle strength. Initially, the injections and therapy helped relieve the pain, but it reoccurred as Jurgensen’s work duties increased. In December, Cho released Jurgensen to return to work on a trial basis with a thirty pound lifting restriction. Within a week of returning to work, the pain returned to Jurgensen’s back and neck and he was again forced to leave his job with Electric Construction. At that point, Cho ordered a Functional Capacities Evaluation (FCE).

[¶ 8.] An FCE is a comprehensive assessment of a patient’s ability to deal with: weight; lifting or carrying; and'the type of position they are able to tolerate, e.g. kneeling, standing, walking, or reaching above the head. Cho reviewed the FCE and concluded that Jurgensen was capable of performing medium level work. Cho then ordered a job site evaluation.

[¶ 9.] Stan Kulzer (Kulzer), an occupational therapist with Avera McKennan Hospital, went to Electric Construction and performed the job site evaluation. After visiting the job site, Kulzer concluded Jurgensen was not able to continue working as an electrician due to the injuries he received as a result of the car accident. In addition, Cho determined that a combination of lifting more than 25 pounds and reaching overhead prevented Jurgensen from returning to his job as a journeyman electrician.

[¶ 10.] On December 14, Jurgensen quit his job with Electric Construction. Jur-gensen had sought a lighter duty position with Electric Construction, but no such positions were available. Jurgensen contacted his union and learned that Crescent Electric had an opening for an electrical estimator. He applied for that job, albeit for lower pay, but was not hired because he lacked the necessary experience and training with computers.

[¶ 11.] Faced with an inability to work as an electrician and growing financial trouble, Jurgensen sought vocational counseling. He filled out applications, took aptitude tests and went to classes designed to direct him toward a new career. During the course of this counseling, Jurgensen interviewed with Rick Ostrander (Ostran-der), a vocational rehabilitation specialist. Ostrander concluded that by transferring Jurgensen’s skills to a less physical occupation, such as pharmacy, he could return to the standard of living to which he was accustomed.

[¶ 12.] In 1997, Jurgensen enrolled' in pre-pharmacy classes at South Dakota State University in Brookings, South Dakota. Testimony by Ostrander and Dr. Ralph Brown, a professor and economist at the University of South Dakota, indicated Jurgensen would lose more money by taking a lower paying substitute job than he would by returning to school for six years to become a licensed pharmacist. The evidence presented' indicated Jurgensen would lose a total of $294,000 from the time of his accident to the time of his graduation with a pharmacy degree. In addition, it was undisputed that Jurgensen incurred medical bills in the amount of $15,141.09.

[¶ 13.] On March 10, 1999, after hearing all of the evidence and testimony, the jury returned a verdict in favor of Jurgensen in the’ amount of $310,000. The court entered judgment on the verdict on March 11.

[¶ 14.] Smith raises the following issues on appeal:

Whether the trial court abused its discretion in refusing to allow Smith to introduce evidence that Jurgensen received financial benefits from collateral sources.
Whether the trial court abused its discretion in refusing to grant Smith a jury instruction on mitigation of damages.

ANALYSIS

[¶ 15.] Did the trial court abuse its discretion in refusing to allow Smith to introduce evidence that Jurgensen received financial benefits from collateral sources?

[¶ 16.] Smith argues that because references to Jurgensen’s financial condition were made by both Jurgensen and his attorney, she should have been allowed to introduce evidence that Jurgensen received benefits from collateral sources. This argument is unpersuasive.

[¶ 17.] It is well settled under South Dakota law that “ ‘[t]otal or partial compensation received by an injured party from a collateral source, wholly independent of the wrongdoer, does not operate to reduce the damages recoverable from the wrongdoer.’ ” Moore v. Kluthe & Lane Ins. Agency, Inc., 89 S.D. 419, 484, 234 N.W.2d 260, 269 (1975)(quoting Swift & Company v. Gutierez, 76 Idaho 82, 277 P.2d 559, 561 (1954)). Furthermore, a plaintiffs collateral source of income “cannot be inquired into as part of a defendant’s case, because of the danger that the jury may be inclined to ... reduce a damage award, when it learns that plaintiffs loss is entirely or partially covered.” Moses v. Union Pacific R.R., 64 F.3d 413, 416 (8th Cir.1995). This rule of law rests on the premise that it is more just that a windfall benefit an injured party as opposed to a tort feasor. See Hamilton v. Slover, 440 S.W.2d 947, 958 (Mo.l969)(overruled on other grounds by Stover v. Patrick, 459 S.W.2d 393 (Mo.1970)).

[¶ 18.] The trial court ruled that Jurgensen’s testimony did not open the door for Smith to introduce evidence of collateral sources. A trial court’s eviden-tiary rulings are presumed correct and will not be reversed unless there is a clear abuse of discretion. See Opp v. Nieuwsma, 458 N.W.2d 352, 357 (S.D.1990); Magbuhat v. Kovarik, 382 N.W.2d 43, 46 (S.D.1986). An abuse of discretion has been defined as a decision that is not justified by, and is clearly against reason and evidence. Dakota Cheese, Inc. v. Taylor, 525 N.W.2d 713, 715 (S.D.1995). This Court will not reverse a decision if it “ ‘believe[s] a judicial mind, in view of the law and the circumstances, could reasonably have reached that conclusion.’ ” See id. (quoting Rosen’s, Inc. v. Juhnke, 513 N.W.2d 575, 576 (S.D.1994)). Moreover, this Court has cautioned that it “must be careful not to substitute [its] reasoning for that of the trial court.” State v. Larson, 512 N.W.2d 732, 736 (S.D.1994).

[¶ 19.] The mere fact that Jurgen-sen’s financial status was introduced is not enough to warrant a finding of abuse of discretion by the trial court. As we noted in Atkins v. Stratmeyer, 1999 SD 131, ¶ 14, 600 N.W.2d 891, 897, “[w]e decline to extend the law to prohibit every single mention of financial status or insurance in cases such as this where it is vital to establish the amount of damages.” Therefore, the trial court’s ruling prohibiting Smith from introducing evidence that Jur-gensen allegedly received funds from collateral sources was reasonable in light of the law and circumstances.

[¶ 20.] Did the trial court err in refusing to give a jury instruction on mitigation of damages?

[¶ 21.] In her second assignment of error, Smith contends that the trial court erred when it refused her proposed jury instruction on mitigation of damages. Of note is the fact that Smith failed to plead the affirmative defense of failure to mitigate damages. In fact, it was not raised until the settlement of instructions. Under South Dakota law, a defendant is required to plead any and all affirmative defenses in the answer to the plaintiffs complaint. See SDCL 15-6-8(c). Mitigation of damages is an affirmative defense. See Kowing v. Williams, 75 S.D. 454, 459, 67 N.W.2d 780, 783 (1954). This Court could find that the mitigation of damages argument was waived by Smith under our holding in Farmers Cooperative El. Co. of Revillo v. Johnson, 90 S.D. 36, 237 N.W.2d 671 (1976).

[¶ 22.] Smith’s argument would fail even if this court were to allow her to amend her pleadings. It is well settled that the court need only instruct the jury on issues supported by competent evidence in the record. See Bauman v. Auch, 539 N.W.2d 320, 323 (S.D.1995). Additionally, to obtain a reversal for failure to give a requested instruction, an appellant has the burden of proving that the jury might and probably would have returned a different verdict had the proposed instruction been given. See Chambers v. Dakotah Charter, Inc., 488 N.W.2d 63, 64 (S.D.1992). Smith has not met that burden. The record is replete with evidence that Jurgensen took reasonable steps to improve his condition, including enrolling in a six-year pharmacy program at South Dakota State University. There is little, if any, evidence in the record to support a jury instruction on mitigation of damages. We find that the instructions given at trial correctly apprised the jury of the applicable law and the requisite quantum of proof.

[¶ 23.] Affirmed.

[¶ 24.] KONENKAMP, Justice, concurs.

[¶25.] MILLER, Chief Justice, concurs specially.

[¶ 26.] AMUNDSON, and GILBERT-SON, Justices, dissent.

[¶ 27.] TRIMBLE, Circuit Judge, for SABERS, Justice, disqualified.

MILLER, Chief Justice

(concurring specially).

[¶ 28.] I concur and agree that the trial court’s decision should be affirmed.

[¶ 29.] I write to reiterate that the facts of this case do not warrant creating an exception to our long-recognized collateral source rule. Nor should we rush to create an exception. That would be a dangerous precedent. By doing so we would relegate ourselves to constantly making a factual analysis in every case to determine whether the plaintiffs testimony was so egregious as to open the door to the defendant’s collateral evidence.

[¶ 30.] For many good reasons,, to date we have not recognized an exception to the collateral source rule. In Moore v. Kluthe & Lane Ins. Agency, Inc., 89 S.D. 419, 234 N.W.2d 260 (1975), we refused to create an exception where the defendant argued that plaintiffs, by testifying that they performed labor on their mobile home in order to make it habitable after flood damage, elicited sympathy from the jury and opened the door to collateral evidence. Id. at 435, 234 N.W.2d at 269.

[¶31.] Next in Degen v. Bayman, 90 S.D. 400, 241 N.W.2d 703 (1976), we applied the rule to a case where the victim received gratuitous medical services from a source wholly independent of the defendant. ' We affirmed the court’s refusal to deduct the value of the gratuitous services from the overall verdict amount awarded. Id. at 410-11, 241 N.W.2d at 708-09.

[¶ 32.] Most recently in Atkins v. Stratmeyer, 1999 SD 131, 600 N.W.2d 891, we held that the plaintiffs brief reference to his financial condition and insurance, in response to a question from his attorney, did not create prejudicial error. By allowing the plaintiff to present evidence of his financial condition, we reaffirmed our adherence to the collateral source rule. In fact, we said such information is admissible where it is “vital to establish the amount of damages.” Id., ¶ 14, 600 N.W.2d at 897. In Atkins there was no indication that the defense attempted to rebut or impeach the plaintiffs evidence.

[¶ 33.] As the dissent notes, it may be true that an exception to the collateral source rule has been recognized in some jurisdictions where a party testifies about his or her financial condition “in a false or misleading manner.” Younts v. Baldor Elec. Co. Inc., 310 Ark. 86, 832 S.W.2d 832, 834 (1992). However, we have not recognized such an exception, and the facts of this case do not warrant it.

[¶ 34.] I must observe that even were we to adopt such an exception, there was no determination in the present case that Jurgensen’s testimony was false or misleading. The transcript here reflects that, prior to cross-examination and during a hearing outside the presence of the jury, Smith’s counsel attempted to show exactly that. Specifically, the attorney offered to rebut Jurgensen’s statement that his family was barely surviving by asserting that the family’s income for 1997 was approximately $32,000 - an amount arguably above poverty. Smith further offered to show that approximately $17,000 of this amount was received from disability payments.

[¶ 35.] Jurgensen’s counsel countered by explaining that, in addition to the disability payments, part of the 1997 income figure was attributable to a pension his client was forced to cash in, thereby proving the plaintiffs difficult financial situation. Moreover, Smith’s counsel admitted that the $32,000 income figure included both Mr. and Mrs. Jurgensen’s income, not just Mr. Jurgensen’s.

[¶ 36.] In denying Smith’s offer of proof, the court explained that, as she understood it, the collateral source rule exists to exclude evidence of collateral payments, particularly those that might require repayment in the future, from improperly influencing the damage award. The court concluded that several sources of income Jurgensen received might need to be repaid in the future; therefore such evidence was inadmissible. I agree. Because Jur-gensen’s testimony was not shown to be false or misleading, no exception to the collateral source rule was warranted or worthy of consideration.

AMUNDSON, Justice

(dissenting).

[¶ 37.] The majority correctly notes that under South Dakota law, “ ‘[t]otal or partial compensation received by an injured party from a collateral source, wholly independent of the wrongdoer, does not operate to reduce the damages recoverable from the wrongdoer.’ ” Moore v. Kluthe & Lane Ins. Agency, Inc., 89 S.D. 419, 434, 234 N.W.2d 260, 269 (1975) (quoting Swift & Company v. Gutierez, 76 Idaho 82, 277 P.2d 559, 561 (1954)) (quoting Gersick v. Shilling, 97 Cal.App.2d 641, 218 P.2d 583, 589 (1950)). In fact, the defendant cannot even inquire into the issue of plaintiffs receipt of income from collateral sources. See Moses v. Union Pac. R.R., 64 F.3d 413, 416 (8th Cir.1995). An exception exists, however, when the plaintiff “opens the door” to such testimony. See Younts v. Baldor Elec. Co. Inc., 310 Ark. 86, 832 S.W.2d 832, 834 (1992). It has been often stated that “[w]hen a party testifies about his or her financial condition in a false or misleading manner, ... he or she opens the door for the introduction of evidence which might otherwise be inadmissible under the collateral source rule.” See id. (citing Peters v. Pierce, 308 Ark. 60, 823 S.W.2d 820 (1992); York v. Young, 271 Ark. 266, 608 S.W.2d 20 (1980)).

[¶38.] In Younts, Younts brought a products liability action against Baldor Electric Company because a defective motor in an exercise machine caused a fire that substantially damaged Younts tanning salon and exercise facility. 832 S.W.2d at 833. During direct examination, Younts’ counsel asked him whether “he had been able to reopen his business after the fire.” Id. at 834. Younts responded that he “[has]n’t been able to afford it.” Id. Defense counsel argued that Younts opened the door for him to show that Younts had received a $41,500 insurance settlement. The trial court found that Younts had “opened the door” and the Arkansas Supreme Court agreed. Id. The court noted,

[i]t is important to recognize that Younts’ testimony came when he was being questioned by his own counsel. The question asked was whether he had rebuilt the physical facilities of his business. The question was wholly irrelevant to any question in the case other than possibly that of mitigation of damages which does not appear to have been at issue.... The important point is that Younts’ response that he could not afford to rebuild could very well have been misleading to the jury.

Id.

[¶ 39.] In Peters, the driver of a truck brought an action against the driver of a vehicle which allegedly rear-ended his pickup truck. 823 S.W.2d at 820. The defendant, Pierce, was asked by his own counsel on direct- examination “how long he had been retired.” Id. Pierce responded that “[r]etired May 1st of 1988. And-now, whatever I have, if it is taken away from me, I can’t replace. I’m too old. I don’t work anymore. I do occasionally part time, but not on a regular basis.” Id. at 820-21. Peters had offered proof that he had incurred medical bills of $5,000 and loss of wages between $126,000 and $135,-000, but a jury awarded him only $6,000. Id. at 820. Peters argued that he should be allowed to offer evidence that Pierce had received $50,000 in liability insurance because Peters had opened the door to such testimony. The Arkansas Supreme Court determined that Pierce did' in fact “open the door.” The court noted in its decision,

[Pierce] injected his limited personal resources into issue, casting doubt before the jury that he could afford or' financially survive a judgment against him. By doing so, he portrayed a false, or at least a misleading picture, that he alone would absorb any loss or judgment, and under these limited and special circumstances, [Peters] had the right to answer [Pierce’s] portrayal by giving the jury the full and complete picture.

Id. at 822.

[¶ 40.] In Washington v. Barnes Hosp., 897 S.W.2d 611, 619-21 (Mo.1995), the court was faced with, among other issues, whether the mitigating evidence of the availability of a free public schooling program that Washington qualified for should have been admitted. The court found that such evidence should not have been excluded by the trial court. Id. at 621. One of the court’s justification for such a ruling was based upon the fact that Washington “opened the door to'this issue by injecting testimony of Ms. Washington’s financial condition into the case.” Id. The court noted that “ ‘[w]hether the plaintiff injects his financial condition through inadvertence or purposefully, it is the raising of plaintiffs financial condition with the jury that permits the opposing party to attack his claims of financial distress by showing that other financial assistance was' available.’ ” Id. (quoting Moore v. Missouri Pac. R.R. Co., 825 S.W.2d 839, 843 (Mo. 1992)).

[¶ 41.] In the present case, a review of the record reflects the following testimony from Jurgensen on direct examination:

Q. Tell us a little bit abodt your move to Brookings. Did you have to sell any of your property in order to survive and try to make this transition?
A. Yeah, we sold the house, my boat, all kinds of fishing equipment, basically everything we knew we wouldn’t have room for.
Q. And how are you and your wife surviving economically?
A. Barely I guess would be the best description.
Q. Did you have to cash in or liquidate your pension plan that you had accumulated over the years as an electrician?
A. Yes, sir.
Q. And why did you' have to do that?
A. We needed the money.

The record reflects that Jurgensen also testified that he had “debts that are to the limits” and that in regards to his earnings, he went from making $40,000 per year to basically making nothing. After hearing Jurgensen’s testimony, Smith made an offer of proof that established that Jurgen-sen received $82,453 in income in 1997; $17,628 originated from benefits from his local electric workers union. Jurgensen also received a substantially similar amount in 1998. Further, Jurgensen received a subsidy for his apartment rent and some of his college tuition and expenses were paid for through state programs. Smith argues that Jurgensen opened the door and he should have been allowed to present evidence that Jurgen-sen received income from collateral sources to prevent the jury from being mislead.

[¶ 42.] This is a case where Smith admitted liability and the only issue for the jury to decide was the amount of damages sustained by Jurgensen. Under the trial court’s instruction number thirteen, the elements of damages for the jury to consider were set forth. Reading this instruction clearly discloses that an element of damages is not proving whether or not one sold their house, whether or not one liquidated personal property, whether or not one liquidated a pension plan, whether or not someone tried to make ends meet, survive or is suffering financially. The only elements to be proven are injury, disability, pain and suffering, medical bills, lost income and future loss of income. When counsel argues that his client has been fighting for three years to make ends meet, but is not looking for sympathy, what else would they be looking for when “fighting for three years to make ends meet” is not an element of the jury instruction on damages.

[¶ 43.] The majority states that the reasoning behind the collateral source rule is to eliminate “the danger that the jury may be inclined to ... reduce [the plaintiffs] damage award, when it learns that the plaintiffs loss is entirely or partially covered.” See Moses, 64 F.3d at 416. But this rule should not provide a shield for the introduction of evidence which has nothing to do with the determination of the damages amount. There is no question that Jurgensen is entitled to recover damages. On the other hand, there is also no dispute under our settled law that both parties are entitled to a fair trial. See, e.g., Black v. Class, 1997 SD 22, ¶ 24, 560 N.W.2d 544, 550 (noting that while a party is not entitled to a perfect trial, they are entitled to a fair trial).

[¶ 44.] We have previously held that “[t]rials are a search for the truth as determined by the jury based upon all the evidence.” Tunender v. Minnaert, 1997 SD 62, ¶ 28, 563 N.W.2d 849, 855. If the truth that Jurgensen was trying to show the jury that he was living in poverty, then Smith should have been allowed to challenge that claim, notwithstanding the collateral source rule. In other words, based upon this record, Jurgensen has opened the door and Smith should be allowed to come in and challenge evidence which has a potential, if not strong possibility, of inciting the jury. This Court should not allow the collateral source rule to place blinders on its consideration of the case. It should also be noted that this is not a case involving a liability insurer’s bad faith failure to pay, nor is it an action against said insurer to recover punitive damages as a result of the insurer’s bad faith refusal to pay. Why else would this evidence have been added in this case other than to influence the jury’s damages award. I would reverse and remand and if at retrial, the same poverty evidence is offered by the plaintiff, then Smith should be allowed to provide a complete and fair picture of plaintiffs actual financial condition during this time, rather than allow the collateral source rule to leave the jury in the dark.

[¶ 45.] GILBERTSON, Justice, joins this dissent.

      . Unlike the present case, in Younts, when defense counsel 'alleged that the plaintiffs statement was made in a false or misleading manner, plaintiff’s counsel did nothing to dispel it. Therefore, collateral evidence of insurance proceeds was admitted.

      . Jury Instruction number thirteen provided:
      Your award of actual damages must be in an amount which will reasonably and fairly compensate Mike Jurgensen for all injuries or losses caused by Ms Smith, whether the loss or harm could have been anticipated or not, namely;
      1) The nature, extent, and duration of Mike Jurgensen's injury.
      2) The disfigurement and disability of Mike Jurgensen.
      3) The pain and suffering mental anguish and loss of capacity of the enjoyment of life experienced in the past and reasonably certain to be experienced in the future as a result of the injury.
      4) The reasonable expense of necessary medical care, treatment, and services received as a result of the January 23, 1996 accident;
      5) The time Mike Jurgensen has lost for employment since the injury because he was unable to pursue his occupation or other income-producing activities. In determining this amount, you should consider evidence of Mike Jurgensen’s earning capacity, past, earnings, and the manner in which he ordinarily occupied his time before the injury and find that Mike Jurgensen was reasonably certain to have earned in the time lost had he not been disabled.
      6)The loss of future earning capacity of Mike Jurgensen because of his not being able to pursue his occupation or other income-producing activities. The factors to be considered in determining the measure of damages for loss of earning capacity included what Mike Jurgensen earned before the injury and what he is capable of earning after the injury, his prior ability and the extent to which his injuries affect his power to earn, his age, his life expectancy, his physical condition, his occupation, his skill and habits of industry.
      Whether any of these elements of damages have been proved by the evidence is for you to determine. Your decision must be based on evidence and not upon speculation, guesswork, or conjecture.


author: PER CURIAM.

text:
    IOWA SUPREME COURT BOARD OF PROFESSIONAL ETHICS AND CONDUCT, Complainant, v. John W. ACKERMAN, Respondent.
    No. 99-1876.
    Supreme Court of Iowa.
    June 1, 2000.
    Norman G. Bastemeyer and David J. Grace, Des Moines, for complainant.
    Max E. Kirk of Ball, Kirk, Holm & Nardini, Waterloo, for respondent.
   PER CURIAM.

This lawyer discipline case involves an attorney’s conduct in presenting an order to a district judge. The order, dismissing a criminal prosecution, was promptly vacated when the judge learned the facts were not as recited in the order. Without question the misstated facts were crucial in prompting the dismissal. We find this serious violation of the canons of ethics demands a suspension.

John W. Ackerman, the respondent attorney, was admitted to practice in 1967. He is also admitted in Illinois. His practice in Cedar Falls and Waterloo includes family law and bankruptcy, but emphasizes criminal law.

I. After he was appointed to represent Scott Jon Schwestka on a charge of child endangerment, an aggravated misdemeanor, Ackerman moved to dismiss the prosecution under Iowa Rule of Criminal Procedure 27(2)(a) (criminal prosecutions must be dismissed if an indictment is not found within forty-five days of arrest — in the absence of good cause or waiver). The motion was misleading. An information had in fact been filed on November 7, 1997, well within forty-five days of Schwestka’s arrest on September 26, 1997. The miscalculation, which Ackerman adopted without checking, arose when his legal assistant misread the date of the alleged crime (July 3) as the arrest date.

When the order vacating the dismissal was filed, the judge cited Ackerman for contempt. A different judge presided over the contempt hearing. In response to Ackerman’s defense of mistake, the county attorney offered proof of two other similar incidents. In one (the Perkins matter), Judge Briner found Ackerman had secured a release order on behalf of a client he did not formally represent, without so advising the court or tendering notice of his action to the county attorney or the defendant’s counsel of record. In another (the Justice matter) Ackerman presented an order that incorrectly indicated it had been approved by the county attorney. The court found Ackerman’s conduct sufficiently negligent and violative of his duty' to the court as to warrant a finding of contempt. The court then forwarded the matter to the Board of Professional Ethics and Conduct for its consideration.

In these proceedings, the ethics board took advantage of Iowa Court Rule 118.7 which implicates principles of issue preclusion in disciplinary proceedings. See Supreme Ct. Bd. of Prof'l Ethics & Conduct v. D.J.I., 545 N.W.2d 866, 875 (Iowa 1996). The Schwestka, contempt proceeding, which incorporated Ackerman’s other encounters with the district court, showed a clear pattern of misleading conduct. These matters are not in dispute. Acker-man admitted them in the hearing before the grievance commission, although he viewed them as honest mistakes.

We do not think the conduct can be written off as mere mistake. At its most basic level a court must rely, not alone on the honesty of lawyers, but also on the reliability of factual representations submitted to the court. A misrepresentation cannot be explained away, and certainly not justified, on the basis of disorganization and confusion. Disorganized confusion becomes itself culpable when left unaddressed.

When a lawyer repeatedly misrepresents facts to a court, the line between a pattern of reckless disregard and deliberate deceit becomes blurred. Neither practice can be tolerated. Each is a violation of DR 1-102(A)(1), (4), (5) and (6). Comm. on Prof'l Ethics & Conduct v. Ramey, 512 N.W.2d 569, 571 (Iowa 1994) (lawyer cannot be excused for misrepresentation by sloppy or even casual unawareness of the truth). Deliberate deceit usually calls for revocation. Comm. on Prof'l Ethics & Conduct v. Hurd, 375 N.W.2d 239, 247-48 (Iowa 1985). Lack of due care causing misstatement of facts often calls for a reprimand. Common Prof'l Ethics & Conduct v. O’Donohoe, 426 N.W.2d 166, 168-69 (Iowa 1988). A pattern of misstating facts, such as the conduct evident here, usually calls for a suspension. Comm. on Profl Ethics & Conduct v. Wenger, 469 N.W.2d 678, 679-80 (Iowa 1991).

II. The commission was also correct in separately finding that Ackerman violated DR 7-110(B) by presenting the dismissal order ex parte without advising the county attorney. Again Ackerman blames a breakdown in the communication with his legal assistant for the failure to clear the order with the county attorney. What we have said with regard to the other violation applies here. Ackerman cannot be rescued from the violation by an isolating wall of sloppiness and confusion.

III. In fixing the appropriate sanction, we also consider the fact that Ackerman is a repeater. On April 12, 1990, we publicly reprimanded him for securing, a fee from the mother of a criminal defendant for whom he had been court appointed and compensated from public funds.

We direct that John W. Ackerman’s license to practice law in the courts of this state, as that term is defined in Iowa Supreme Court Rule 118,12, be suspended indefinitely, with no possibility of reinstatement for one month from the date of this opinion. The costs of this action are assessed against Ackerman in accordance with Iowa Supreme Court Rule 118.22.

LICENSE SUSPENDED.

All justices concur except CARTER, J., who takes no part.