author: ZINTER, Justice.

text:
    2003 SD 128
    STATE of South Dakota, Plaintiff and Appellee, v. Jeremy SMITHERS, Defendant and Appellant.
    No. 22623.
    Supreme Court of South Dakota.
    Considered on Briefs Aug. 25, 2003.
    Decided Oct. 15, 2003.

      Lawrence E. Long, Attorney General, John M. Strohman, Assistant Attorney General, Pierre, for plaintiff and appellee.
    Thomas M. Issenhuth, Madison, for defendant and appellant.
   ZINTER, Justice.

[¶ 1.] Jeremy Smithers was convicted of nine drug related offenses including possession and distribution of methamphetamine. He appeals contending that the trial court erred: 1) in allowing the State to present evidence of the discovery of methamphetamine in another county, when the test results of that evidence was not disclosed in discovery; and 2) in finding adequate evidence to corroborate accomplice testimony. We affirm.

FACTS AND PROCEDURAL HISTORY

[¶ 2.] Chad Blasius, an acquaintance of Jeremy Smithers, lived at a house in Madison, which is in Lake County, South Dakota. One of Blasius’s roommates, J.M., was under the supervision of juvenile corrections agent Ryan Smit. Smit stopped at the residence around 11 p.m. to conduct an alcohol check on J.M. Because J.M. was not home, Smit returned to the house about 11:30 p.m. to try again. This time, Smit smelled marijuana in the house. He reported his discovery to the Madison Police Department, and preparations were made to obtain a search warrant.

[¶ 3.] Jeremy Smithers got off work at around midnight that evening. His girlfriend, Amber Alfson, and Blasius picked up Smithers from work. Blasius drove to his home, dropped Alfson off, and he and Smithers proceeded to Colman, which is located in Moody County, South Dakota. They went to Colman to purchase an “eight ball” (3.5 grams) of methamphetamine.

[¶ 4.] Once in Colman, Blasius and Smithers proceeded to the home of Smith-ers’ friend, “Rebecca.” Smithers paid Rebecca $200 for the methamphetamine. Blasius and Smithers talked about smoking some of it and cutting the rest into smaller amounts to sell. Blasius testified that he had the methamphetamine in his possession as he and Smithers drove back to Blasius’s home in Madison.

[¶ 5.] When they returned, Blasius and Smithers went upstairs to Blasius’s bedroom. They were accompanied by Alfson and Marin Moran, who had been at the house while Blasius and Smithers were in Colman. The methamphetamine was put into tinfoil, and the four smoked it through a method called “freebasing.”

[¶ 6.] About the time they started freebasing, law enforcement officers entered the residence by executing a “no-knock” search warrant. The officers first secured the lower level of the house and then proceeded upstairs. As the officers got closer, Alfson flushed the methamphetamine down the toilet. Smithers, believing that a police search was a joke and that the police were not really there, reached into the toilet in an attempt to retrieve the drugs. He was not successful. When he came out of the bathroom, he was handcuffed by police, and they observed that his hands were still wet. After securing those present at the home, the officers continued their search.

[¶ 7.] The search did not result in the seizure of the methamphetamine from the Madison residence. It did, however, yield drug paraphernalia that could be used for the use and sale of methamphetamine, including: a digital scale, sandwich bags, razor blades, a mirror, a hollowed-out barrel of a pen, tinfoil, a glass pipe, pieces of plastic, and cut corners of sandwich bags.

[¶ 8.] Detective Vilhauer, one of the officers participating in the search, testified to the drug-related use of these items. He indicated that the razor blades would have been used to “chop [methamphetamine] down to smaller fragments” so that it could be smoked or ingested. Detective Vilhauer also indicated that small pieces of plastic would be used to package methamphetamine and cocaine in “bindles.” He finally testified that “[i]n controlled substances or powders such as cocaine or methamphetamine, very often the corners [of the bags] are cut away, then that small bag is used to weigh and tie small amounts of meth or coke.”

[¶ 9.] Around the time of the search, Smithers, Blasius, Alfson and Moran all gave inculpatory statements to Vilhauer. They also submitted to urinalysis. Smith-ers and Alfson tested positive for THC and methamphetamine. Blasius tested positive for THC, methamphetamine, and amphetamine. Moran tested positive for THC.

[¶ 10.] Based on the Madison (Lake County) search and the statements given, a search warrant was also obtained for the residence in Colman (Moody County) where Blasius and Smithers purchased the methamphetamine. The Colman search led to the discovery of methamphetamine, more arrests, and separate charges in Moody County.

[¶ 11.] One of the suspects arrested in the Colman search was represented by Philip Parent. Parent worked for the same law firm as Smithers’ attorney, Thomas Issenhuth. In fact, Parent assisted in the representation of Smithers by appearing with Smithers at two separate court hearings. Parent also helped make arrangements to have an independent laboratory test of Smithers’ urine sample. Parent finally engaged in some discovery from the Lake County State’s Attorney’s Office regarding Smithers’ case. Parent wrote the Lake County State’s Attorney asking whether any plea bargains had been made in cases relating to Smithers, including any defendants in either Lake County or Moody County. Parent asked for this information pursuant to Smithers’ original discovery request.

[¶ 12.] Parent also signed a number of documents indicating that he was participating in the representation of Smithers. He signed documents titled “Defendant’s [Smithers’] Response to State’s Discovery Motion,” and “Defendant’s [Smithers’] Response to State’s Motion for Assessment of Costs.” He signed these documents as “Attorneys for Defendant [Smithers].” Each document also contained a preamble stating, “Comes now Jeremy Smithers, ... by and through Philip R. Parent, of Arne-son, Issenhuth & Parent, LLP, attorneys for the above named Defendant....” Parent also sent a letter to the Lake County State’s Attorney regarding a DNA analysis of Smithers’ urine sample. In that letter, Parent referred to Smithers as “our client.”

[¶ 13.] Pursuant to Smithers’ discovery request, the Lake County State’s Attorney’s Office provided Issenhuth with all of the documents in that office’s possession. That included the reports of Detective Vil-hauer’s interview with Smithers, Vilhauer’s report regarding the execution of the Madison search warrant listing the specific items recovered and the suspects taken into custody, and a copy of the written statement Smithers provided law enforcement.

[¶ 14.] The Lake County State’s Attorney’s Office also provided Issenhuth with the only information it possessed regarding the Colman search. That information included a copy of a police narrative which described the search, the officers involved in the search, and the suspects arrested as a result of the search. The information also included a written report from Detective Vilhauer, which described the details of the execution of the Colman search warrant and the illegal items discovered as a result. That information clearly indicated that methamphetamine was believed to have been found in the Colman search.

[¶ 15.] The discovery information also indicated that Vilhauer could be a witness to the Colman search and what was seized there. Vilhauer was a potential witness because the report indicated that Vilhauer had found a tin in the Colman bedroom:

In that tin was some marijuana paraphernalia and what appeared to be marijuana seeds, along with a little brown box. Inside the little brown box was what appeared to be one gram and a small plastic baggy of a white powdery substance that appeared to be meth-anphetamine [sic].

The report further described the items seized in the Colman search as “cash, marijuana, several small plastic baggies con-tabling a white powdery substance that appeared to be meth, as well as two larger solid rock pieces.... ”

[¶ 16.] The Lake County State’s Attorney’s Office possessed no other documentation relating to the Colman search or the testing performed on the drugs seized in Colman. The reports concerning the Col-man search and any accompanying laboratory tests were in the possession of the Moody County authorities because the charges that arose from the Colman search were being handled by the Moody County State’s Attorney.

[¶ 17.] However, as previously mentioned, one of the defendants charged in Moody County was represented by Parent. Therefore, in the course of that representation, Parent received the reports of the Colman search from the Moody County State’s Attorney’s Office. The specific information Parent received from Moody County authorities included a copy of the Evidence Inventory and Receipt of the Colman search; a copy of the State Chemist’s report showing positive test results for eannaboids and methamphetamine in the urine sample of “Rebecca” and the Moody County defendant represented by Parent; and, a copy of a Lab Data Collection form used in connection with the suspected methamphetamine. Parent was also provided with a report from State Chemist Roger Mathison on tested items from the Colman search. The report revealed that the evidence seized tested positive for methamphetamine. Parent finally had the narrative reports from Detective Vilhauer and the Colman Police Chief. Those reports listed the law enforcement officers who participated in the execution of the Colman search warrant, the Colman suspects, and again, the illegal items seized in Colman.

[¶ 18.] At Smithers’ trial, Detective Vil-hauer was permitted to testify, over Smithers’ discovery objection, that methamphetamine was found in the Colman search. The State also introduced accomplice testimony from Blasius, Alfson and Moran. After trial, Smithers filed a Motion for Relief from Judgment and a Motion for Judgment of Acquittal. Smithers contended that the evidence of methamphetamine in Colman was not provided in discovery by the Lake County State’s Attorney, and that the accomplice testimony was not corroborated. Both motions were denied.

[¶ 19.] On appeal, Smithers raises two issues:

1. Whether the trial court erred in allowing Detective Vilhauer to testify that methamphetamine was found at the residence in Colman.
2. Whether the trial court erred in finding that there was adequate evidence to corroborate the testimony of Smithers’ accomplices.

1.

[¶ 20.] Smithers first contends that the trial court erred in allowing Detective Vilhauer to testify that methamphetamine was discovered in the Colman search. He alleges error because the test results were not provided to attorney Is-senhuth by the Lake County State’s Attorney pursuant to Smithers’ discovery request.

[¶ 21.] “A violation of a discovery order and the court’s resultant choice of, or failure to grant a remedy, is reviewed under an abuse of discretion standard.” State v. Moran, 2003 SD 14, ¶ 10, 657 N.W.2d 319, 323 (citing State v. Guthrie, 2001 SD 89, ¶¶ 7-11, 681 N.W.2d 190, 198-95). Furthermore, even if a trial court has abused its discretion, there must be a showing of prejudice. “It is not error alone that reverses judgments of convictions,” there must be “error plus injury.” State v. Daniel, 2000 SD 18, ¶ 17, 606 N.W.2d 532, 535 (citing SDCL 23A-44-14). Finally, to preserve alleged error for appellate review, an objection must have been made raising that issue. Moran, 2003 SD 14, ¶ 21, 657 N.W.2d at 325.

[¶ 22.] Smithers objected to Detective Vilhauer’s testimony regarding the methamphetamine asserting two alleged discovery violations:

Q: Did Mr. Smithers give you any indication as to whether or not you would find additional methamphetamine at that address?
DEFENSE COUNSEL: Objection, Your Honor, there’s a pending Discovery Order and there’s been nothing furnished to the Defense in regard to these conversations.
THE COURT: The objection is overruled.
A: I don’t recall that he gave us information advising there would be more there. I reacted to the information of where they had made a current and recent purchase.
Q: When you went to the address in Colman described by Mr. Smithers, did you locate additional methamphetamine?
A: Yes sir, we did.
DEFENSE COUNSEL: Objection, Your Honor, this has not been provided through discovery.
THE COURT: The objection is overruled.

(Emphasis added.)

[¶ 23.] We first observe that Smithers’ first' discovery objection only related to “conversations” between Detective Vil-hauer and Smithers. That objection was properly overruled. Issenhuth was given Detective Vilhauer’s report of his conversations with Smithers. Therefore, there was no discovery violation.

[¶ 24.] With respect to the second objection concerning the finding of methamphetamine in Colman, we first note that Smithers only raised a discovery objection to the testimony that Vilhauer had located methamphetamine in the Colman search. No objection was made to the foundation for the officer’s statement that the substance seized was in fact methamphetamine. Therefore, the discovery objection did not preserve any failure to disclose scientific tests or other foundational evidence necessary to prove that the substance was methamphetamine. That leaves the question on appeal whether the officer’s statement about locating methamphetamine should have been excluded because that statement was not provided in discovery.

[¶ 25.] Although the Lake County State’s Attorney provided Smithers with Vilhauer’s statements indicating that he located methamphetamine in Colman, Smithers argues that the Lake County State’s Attorney was also obligated to produce the Moody County test results. Smithers contends that “the burden was on [the Lake County State’s Attorney] to find out the results of that search” in Moody County. Smithers specifically contends that “[t]he State was obliged to seek out this information and provide it to defense counsel.” (Emphasis added.)

[¶ 26.] This contention is misplaced for three reasons. First, as previously noted, Smithers was provided with Vilhauer’s statements that he found methamphetamine in Colman, and Smithers failed to preserve an objection to other foundational evidence such as test results. Therefore, there was no discovery violation concerning Vilhauer’s knowledge and testimony that he found methamphetamine in the Colman search.

[¶ 27.] Second, because there is no evidence to suggest that the Lake County State’s Attorney had the Moody County test results, this case is governed by State v. Erickson, 525 N.W.2d 703 (S.D.1994). There, this Court held that “while ‘the State cannot suppress evidence favorable to [a defendant, it is not ] the state’s duty to conduct a discovery examination for a defendant.’ Id. at 710 (quoting State v. Chacon, 50 Wis.2d 73, 183 N.W.2d 84, 86 (1971)) (emphasis added).

[¶ 28.] Finally, the trial court found that both Issenhuth and Parent were participating in the representation of Smith-ers. Therefore, they not only had the information regarding Smithers from the Lake County State’s Attorney’s Office, but they also had the Moody County information regarding the Colman search from Parent’s representation of the Moody County defendant. That information included the inventory and testing of the methamphetamine seized in the Colman search. Consequently, we agree with the trial court’s finding that the information relating to the Colman search was available to both Parent and Issenhuth in their representation of Smithers.

[¶ 29.] The trial court did not abuse its discretion in denying Smithers’ motion for relief from judgment or for a judgment of acquittal based upon an alleged discovery violation.

2.

[¶ 30.] Smithers also argues that there was insufficient evidence to corroborate the testimony of accomplices Blasius, Alfson and Moran, and therefore, there was insufficient evidence to sustain a conviction. SDCL 23A-22-8 provides:

A conviction cannot be had upon the testimony of an accomplice unless it is corroborated by other evidence which tends to connect the defendant with the commission of the offense. The corroboration is not sufficient if it merely shows the commission of the offense, or the circumstances thereof.

In State v. Reutter, 374 N.W.2d 617 (S.D.1985), we discussed this requirement of corroborative evidence, stating:

Accomplice testimony need not be corroborated by evidence sufficient to sustain a conviction. The mandate of [SDCL 23A-22-8] is satisfied where the corroborative evidence in some substantial degree tends to affirm the truth of the testimony of the accomplice and establish the guilt of the accused. There is no requirement that every material fact testified to by the accomplice be confirmed by corroborative evidence. The accused himself can provide the necessary corroboration. Finally, whether corroboration is sufficient is a question for the jury.

Id. at 626 (citations omitted). See also State v. Feyereisen, 345 N.W.2d 58 (S.D. 1984). In deciding this sufficiency question, circumstantial evidence may satisfy the corroboration requirement. Id. at 60.

[¶ 31.] At trial, accomplices Blasi-us, Alfson, and Moran all testified against Smithers. The State corroborated this accomplice testimony by Smithers’ own statements confirming that he and Blasius went to Colman where the “eight ball” of methamphetamine was purchased. Smith-ers also admitted: that the methamphetamine was put on a piece of tin foil and was ingested by each of them; that some of the methamphetamine was placed on a scale; and that he had tried to recover the drugs after they were flushed in the toilet. Further corroboration came from the presence of drug paraphernalia in the room where Smithers was located at the time of the search, the presence of methamphetamine in his and his recipients’ urine samples, and the fact that his hands and arms were wet from his attempted recovery of the methamphetamine from the toilet. Considering all of this evidence, the trial court concluded:

[T]hose things standing alone [Smithers’ own statements to law enforcement, the presence of drug paraphernalia in the room where Smithers was located, the fact that Smithers’ arms and hands were wet at the time of his arrest, and the presence of methamphetamine in his urine] might not be sufficient to establish guilt beyond a reasonable doubt, but each of those items is corroboration of the testimony of accomplices, and the testimony of accomplices combined with that corroboration with or without the fact that there were [sic] methamphetamine found in Colman, is overwhelming to establish beyond a reasonable doubt that the Defendant committed the ... offenses with which he is charged.

We agree.

[¶ 32.] Smithers, however, contends that this evidence was only sufficient to corroborate the possession of methamphetamine, not the distribution charges. Distribute means to “deliver a controlled drug_” SDCL 22-42-1(5). Deliver or delivery is defined as “the actual or constructive transfer of a controlled drug ... whether or not there exists an agency relationship.” Id. at (3).

[¶ 33.] According to the accomplices, Smithers and Blasius went to Col-man to purchase the methamphetamine, and Smithers paid Rebecca for the drug. They indicated that some of it was transferred to Alfson and Moran by freebasing, and they planned to cut the methamphetamine in order to sell it. We believe that the drug paraphernalia, Smithers’ wet hands, and Blasius’s and Alfson’s positive urinalyses for methamphetamine corroborated much of the accomplice testimony. Smithers’ own statements that he was in the room with the drug paraphernalia, that he and Blasius drove to Colman where the methamphetamine was purchased, that they jointly shared the methamphetamine, and that he was present when the scale was used to divide the methamphetamine corroborated other material aspects of the accomplice testimony. Furthermore, “[t]here is no requirement that every material fact testified to by the accomplice be confirmed by corroborative evidence.” Reutter, 374 N.W.2d at 626. Considered as a whole, “[t]hese are more than suspicious circumstances.” State v. Stecker, 79 S.D. 79, 84, 108 N.W.2d 47, 49 (1961). Therefore, the jury could have reasonably concluded from all of the evidence that the accomplice testimony was corroborated and that it connected Smithers with the crimes of possession and distribution. The trial court did not abuse its discretion in refusing to grant Smithers’ Motion for Judgment of Acquittal.

[¶ 34.] Affirmed.

[¶ 35.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP and MEIERHENRY, Justices, concur.

      . They include: (1) unauthorized possession of methamphetamine with intent to distribute (SDCL 22-42-2; 34-20B-16(6)); (2) unauthorized possession of methamphetamine with intent to distribute in a drug-free zone (SDCL 22-42-19, 22-42-20, 22-42-2, 34-20B-16(6)); (3) unauthorized distribution of methamphetamine to Amber Alfson (SDCL 22-42-2, 34-20B-16(6)); (4) unauthorized distribution of methamphetamine to Amber Alfson in a drug-free zone (SDCL 22-42-19, 22-42-20, 22-42-2, 34-20B-16(6)); (5) unauthorized distribution of methamphetamine to Marin Moran (SDCL 22-42-2, 34-20B-16(6)); (6) unauthorized distribution of methamphetamine to Marin Moran in a drug-free zone (SDCL 22-42-19, 22-42-20, 22-42-2, 34-20B-16(6)); (7) unauthorized possession of a controlled substance (SDCL 22-42-5, 34-20B-16); (8) ingesting a substance, other than alcohol, for the purpose of becoming intoxicated (SDCL 22-42-15); and (9) use or possession of drug paraphernalia (SDCL 22-42A-3).

      . Officers also handcuffed Blasius’s other roommate who did not participate in the events that night.

      . We also note that the State did not introduce the methamphetamine or inquire as to test results from the Colman search. It was the defense that questioned Vilhauer whether the methamphetamine had been tested. Vil-hauer responded that the methamphetamine had been tested. Apparently surprised by this information, the State later questioned Vil-hauer and discovered that Vilhauer’s knowledge of the testing arose from his previous experience testifying on these matters in Moody County.

      . Smithers has not argued, let alone established that the trial court’s finding of Parent’s representation was clearly erroneous.


source: Caselaw Access Project

author: KONENKAMP, Justice. SABERS, Justice

license: Public Domain

text:
    2003 SD 125
    Travis L. ARNESON, Plaintiff and Appellant, v. Teresa E. ARNESON, Defendant and Appellee.
    No. 22639.
    Supreme Court of South Dakota.
    Argued May 30, 2003.
    Decided Oct. 15, 2003.

      Rhonda Lockwood, Rita Allen, Sioux Falls, for Plaintiff and Appellant.
    Lee R. Burd, Sioux Falls, for Defendant and Appellee.
   KONENKAMP, Justice.

[¶ 1.] This appeal concerns whether the circuit court improperly considered the father’s physical limitations resulting from his cerebral palsy in deciding child custody between the parents. The father challenges three aspects of the court’s decision: the child custody award to the mother, the use of his structured personal injury settlement as a “source of income” for child support, and the award of attorney’s fees to the mother. Because the court considered the appropriate factors in determining child custody, child support, and attorney’s fees, we affirm on all issues.

I.

Background

[¶ 2.] Travis and Teresa Arneson married on March 28, 1998. Their only child, Grace Marie Ann Arneson, was born on September 24, 1998. When Travis was six months old, he was diagnosed with cerebral palsy. At birth, he suffered a lack of oxygen caused by a physician’s negligence. From the resulting medical malpractice settlement, Travis now receives monthly personal injury payments for life. He uses a wheel chair and a personal attendant. He does not consider himself “confined” to a wheelchair. He feeds and bathes himself. As he explained to the court in an affidavit, he is independent and capable of caring for himself: “I do hire personal assistants to help me with my day to day routines, not because I need the help but to make my life easier and improve the quality of my life.”

[¶ 3.] Travis suffers no disability of intellect. He graduated with honors from high school and Southeastern Votech. An advocate for people with disabilities on both the local and national level, Travis works as a counselor at the Jaycee Camp for the Exceptional. He believes he is capable of caring for his child, “without assistance of an aide.” On the subject of his daughter, he is passionate:

I am no different than any other parent. I love my child and I am able to care for her, albeit, not societies [sic] standard idea of care. My daughter gets all of her needs met with me; I love her and I am a positive influence on her emotionally. She loves spending time with me and I love spending time with her; we need each other just like any other parent/child relationship. Grace does not see me as disabled; she sees me as her daddy.

[¶ 4.] Teresa is equally devoted to her child. She believes that she provided for a greater share of Grace’s physical needs when she and Travis lived together. For five months, when Grace was still in diapers, Teresa worked a night shift from 11:00 p.m. to 7:00 a.m., leaving Grace at home alone with Travis. During these absences, Teresa was comfortable with their arrangements for Grace because before Teresa left for work, Grace was already asleep and she slept through the night; Grace was an infant and not able to climb out of her crib; Teresa was only eight blocks away from the residence and had made arrangements with her supervisor to leave if there was an emergency. Moreover, Travis and Teresa had both talked to the neighbors about the situation so that Travis could call on a neighbor for help when needed. In fact, Teresa testified that Travis did call on neighbors to assist with diaper changes on occasions when Teresa ran errands. Teresa made sure before she left that Travis had attendants to assist him and that everything was lined up beforehand. On one other occasion, when the parties were having marital difficulties, Teresa went to stay with her parents. Although she wanted to take Grace with her, Travis would not allow it. She was gone for approximately one week.

[¶ 5.] In April 2001, Travis sued Teresa for divorce. While the action was pending, the circuit court ordered that they share custody of the child on alternating weeks. Travis’s attendant later testified that during and before the time when this interim order was in place, Travis bathed, dressed, and fed his daughter. The attendant thought that any concerns about Travis’s inability to react in an emergency situation were unfounded. This attendant had worked in the home for four months while the parties were still living together. She believed that Travis was more active in parenting than Teresa.

[¶ 6.] Since August 2001, Travis has lived with Edith Krueger. They were married during the pendency of this appeal. Edith and Travis have known each other since 1985, when Edith was a child care worker at the Children’s Care Hospital and School. Edith provides day care for six children in Travis’s home. Although Grace was at the day care in Travis’s home during his alternating weeks, Teresa refused to let Grace stay there on the weeks the child was with her because Travis would not let her take the child each night.

[¶ 7.] By stipulation, the parties agreed that the court would appoint Judy Zimbel-man, MSW CSW-PIP, to perform a formal custody evaluation. Zimbelman filed a report and appeared at trial to give her opinion. In her report, she wrote:

Although Travis was able to demonstrate how he was able to care for Grace’s physical needs, the majority of this time Travis has someone with him to take care of him should he need assistance. This person also cares for Grace when needed. Travis does a good job of being able to respond to Grace as needed. There are concerns for how Travis would be able to respond to Grace in times of sickness or emergency. He is able to move about in his wheelchair but it is unclear if he would be able to respond to an emergency. Travis described being able to place Grace into the bath tub as needed. With his own limitations, it appears Teresa would be able to better respond to Grace at her young age. Because of Grace’s young age, it is important that she has supervision and can be responded to quickly.

Zimbelman later repeated these concerns in her testimony. On the other hand, Zim-belman reported that Travis had scored higher on the Parent Awareness Skills Survey. And Teresa had made some poor choices in male companions. Teresa took pains to tell Zimbelman that her latest companion was not around Grace often. Zimbelman recommended that Teresa obtain individual counseling on her relationship decisions.

[¶ 8.] On the subject of his disability, Zimbelman questioned whether Travis could care for Grace by himself. While acknowledging that he always made sure that Grace had the care she needs, Zimbel-man noted that “Travis has care givers in his home for himself the majority of the time.” She concluded that Travis’s “limitations make him less able to care for Grace than Teresa.” On the other hand, Zimbelman believed that at different stages of Grace’s development, “there may be a need to change the parenting arrangement.” As Grace becomes older, Zimbelman thought, “[I]t may be possible for her to split her time more equally with her parents.”

[¶ 9.] Zimbelman concluded that “Grace is emotionally tied to her mother at this stage and needs to be with her mother on a daily basis.” She also felt it important that Grace be in one home or the other: “Because of Grace’s young age, it is better for a child to have a primary home. As she grows older, it may be easier for Grace to split her time with her parents.” Although Travis preferred that Grace be with him every evening, Zimbleman thought that “at this age Grace needs stability. She is not able to comprehend the-change of a home every week.” Moreover, because of her emotional tie to her mother, “Grace would suffer by not seeing her mother all week.” Zimbelman believed that “[b]y living with Teresa and going to her father’s for daycare, Grace’s schedule is stable.”

[¶ 10.] For child support purposes, the parties testified on their financial circumstances. Teresa is employed by Southeastern Behavioral Health and earns $8.44 per hour, forty hours per week. In addition, she provides personal assistance for a handicapped person, averaging seven hours per week, at $12 per hour. Teresa’s annual income is $21,932. Travis is not employed. Annually, he receives $88,800 from his structured personal injury settlement. This averages $7,400 per month. Because of his disability, Travis incurs some extraordinary expenses, including the recurrent cost of a personal assistant and wheelchair repairs. At trial, he offered proof that for a six-month period, these expenses totaled $8,000.

[¶ 11.] The trial court awarded joint legal custody to the parents, naming Teresa as the primary physical custodian. In its ruling, the court considered our guidelines in Fuerstenberg v. Fuerstenberg, 1999 SD 35, 591 N.W.2d 798. For computing the amount of monthly child support, the court excluded $16,000 of Travis’s annual structured settlement receipts and calculated child support as if Travis had a yearly income of $72,000. Travis was ordered to pay monthly child support of $938. In addition, he was allowed to bill Teresa or receive credit for 20% of the reasonable cost of daycare. The court directed Teresa to use the daycare provided in Travis’s home, “insofar as he is willing to do so and insofar as he does so with sufficient reliability so as not to create a difficulty for [Teresa’s] work attendance.”

[¶ 12.] In this appeal, Travis raises the following issues: (1) “Whether the trial court’s determination to grant physical custody to the mother was impermissibly influenced by Travis Arneson’s physical disability?” (2) ‘Whether the trial court’s determination to grant physical custody to the mother was erroneously based on the ‘tender years’ doctrine?” (3) “Whether the trial court’s findings supporting its physical custody determination are clearly erroneous, and whether the trial court abused its discretion in awarding physical custody to the mother?” (4) “Whether the trial court erred in considering the monthly payments from Travis’s malpractice settlement as income for determining child support and past due support?” (5) “Whether the trial court abused its discretion in awarding attorney fees to the mother?” For continuity of analysis, we combine the first three issues.

II.

Custody Award

[¶ 13.] In deciding custody disputes between parents, “the court shall be guided by consideration of what appears to be for the best interests of the child in respect to the child’s temporal and mental and moral welfare.” SDCL 25-4-45; Zepeda v. Zepeda, 2001 SD 101, ¶ 13, 632 N.W.2d 48 (citing Fuerstenberg, 1999 SD 35, ¶ 22, 591 N.W.2d at 806). On appeal, we review a trial judge’s decision for error in incorrectly choosing, interpreting, or applying the law; for clear mistakes in fact findings; and for undue emphasis on matters not materially related to the child’s welfare. Fuerstenberg, 1999 SD 35, ¶ 35, 591 N.W.2d at 810. We expect that any decision will be balanced and methodical. Id. In considering the relevant evidence, courts should be cognizant of several “guiding principles.” Id., ¶ 23. These include parental fitness, stability, primary caretaker, child’s preference, harmful parental misconduct, and separation of siblings. See generally Fuerstenberg, 1999 SD 35, ¶¶ 23-32, 591 N.W.2d at 806-10.

A court is not bound to make a specific finding in each category; indeed, certain elements may not apply in some cases, and, in others, there may be additional relevant considerations. In the end, our brightest beacon remains the best interests of the child.

Zepeda, 2001 SD 101, ¶ 13, 632 N.W.2d at 53 (citing Fuerstenberg).

[¶ 14.] It is a poignant reality that when parents contest the custody of their children, a court must make a choice. That choice is often difficult because between two loving parents there may be little to distinguish one over the other. Choosing between two satisfactory options falls within a judge’s discretion. Thus, in our review of an ultimate decision on custody, we decide only whether the court abused its discretion. Fuerstenberg, 1999 SD 35, ¶ 22, 591 N.W.2d at 807 (citations omitted). Although we have repeatedly invoked stock definitions, the term “abuse of discretion” defies an easy description. It is a fundamental error of judgment, a choice outside the range of permissible choices, a decision, which, on full consideration, is arbitrary or unreasonable. See generally Adrian v. McKinnie, 2002 SD 10, ¶10, 639 N.W.2d 529, 533 (citations omitted). This standard is the most deferential of appellate review standards, but that does not mean that a judge’s custody decision will remain undisturbed. Rather, it is a recognition that trial courts are in a better position to make these difficult choices because the parents are present in the courtroom and the judge is better able to assess their capabilities firsthand.

[¶ 15.] Travis believes that the Americans with Disabilities Act (ADA) affords “protection from discrimination for persons with disabilities seeking custody of their children.” For him, the spirit, if not letter, of the ADA precludes a trial court’s presumption “that his limitations in physical abilities prevent him from being fully capable in his parenting abilities.” We acknowledge that with the ADA Congress issued a mandate of “comprehensive character.” PGA Tour v. Martin, 532 U.S. 661, 675, 121 S.Ct. 1879, 1889, 149 L.Ed.2d 904, 919 (2001). For a nation that values the full realization of potential for all its citizens, the ADA marks “a milestone on the path to a more decent, tolerant, progressive society.” Id. (citing Board of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356, 375, 121 S.Ct. 955, 968, 148 L.Ed.2d 866, 884 (2001) (Kennedy, J., concurring)). To accomplish “its sweeping purpose,” the ADA prohibits discrimination against disabled persons “in major areas of public life[.]” Id.

[¶ 16.] Codified at 42 U.S.C. § 12111 et seq., the ADA provides:

Subject to the provisions of this sub-chapter, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.

42 U.S.C. § 12132. Under Title II of the ADA, a “qualified individual with a disability” means:

[A]n individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity.

42 U.S.C. § 12131(2). The ADA requires reasonable accommodation for limitations, not disabilities. See Taylor v. Principal Fin. Group, Inc., 93 F.3d 155, 164 (5thCir.), cert. denied, 519 U.S. 1029, 117 S.Ct. 586, 186 L.Ed.2d 515 (1996); 29 C.F.R. § 1680.9 app. at 362 (2003). Thus, employers, for example, “are obligated to make reasonable accommodation only to the physical or mental limitations resulting from the disability....” Id. at 363.

[¶ 17.] A person, such as Travis, who has cerebral palsy and requires the use of a wheelchair, is considered an individual with a disability for purposes of the ADA. See Stalter v. Bd. of Co-op. Educ. Serv. of Rockland County, 235 FSupp2d 323, 330 (S.D.N.Y.2002). In Stalter, the plaintiff qualified under the ADA because he had a mental or physical impairment, which affected a major life activity, and which substantially limited that major life activity. Id. See also Martin v. Metro. Atlanta Rapid Transit Authority, 225 FSupp2d 1362, 1376 (N.D.Ga.2002) (noting persons with cerebral palsy were clearly “disabled” for purposes of the ADA).

[¶ 18.] A “public entity” is defined as “[a]ny department, agency, or other instrumentality of a State or States or local government.” 28 C.F.R. § 35.104(5)(2) (2001). A court has been considered a “public entity” for purposes of the ADA. Galloway v. Superior Court, 816 F.Supp. 12, 18 (D.D.C.1993) (court system is a “public entity” under the ADA and must provide reasonable accommodations for juror’s visual limitations). For our case, however, no authority supports the extension of the ADA into parental custody disputes. Most cases concerning the application of the ADA in court proceedings deal with reasonable courthouse accommodations. See Matthews v. Jefferson, 29 FSupp2d 525 (W.D.Ark.1998) (county courthouse in violation of ADA by failing to make courthouse readily accessible to paraplegic); Ann K. Wooster, J.D., Annotation, When Are Public Entities Required to Provide Services, Programs, or Activities to Disabled Individuals Under Americans with Disabilities Act, 42 U.S.C.A. § 12132, 160 A.L.R. Fed. 637 (2000). A custody proceeding is not a “service, program, or activity” under the provisions of the ADA. In re Adoption of Gregory, 434 Mass. 117, 747 N.E.2d 120 (2001) (proceedings to terminate parental rights are not “services, programs, or activities,” under the ADA). We conclude that the ADA does not apply to this custody litigation.

[1119.] Although the ADA is not applicable here, we stress that a physical disability is not a per se impediment to custody. This principle is well illustrated in another authority Travis cites: Carney v. Carney, 24 Cal.3d 725, 157 Cal.Rptr. 383, 598 P.2d 36 (1979). There, a decision on custody turned on the trial judge’s stereotypical perceptions about the father’s disability. Id. at 39-40. The father had custody of his two boys for almost five years during which time their mother never once visited them nor made any contribution to their support. Id. at 37. After the father became a quadriplegic resulting from an automobile accident, the mother sought a change in custody. Id. Equating disability with parental unfitness, the court transferred custody to her, basing its decision on the father’s physical handicap and its presumed adverse effect on his capacity to care for the boys. Id. Rather than considering the deeper contributions the father made to his sons’ lives, the judge puzzled over the father’s inability to function with the boys in sports activities. Id.

[¶20.] In reversing, the Carney court pointed out that the trial judge became fixed on the father’s disability and disregarded other important factors in making the decision. Id. at 39-40. The judge allowed assumptions about people with disabilities to control. Id. at 40-41. But the Carney court went on to explain:

We do not mean, of course, that the health or physical condition of the parents may not be taken into account in determining whose custody would best serve the child’s interests. In relation to the issues at stake, however, this factor is ordinarily of minor importance; and whenever it is raised whether in awarding custody originally or changing it later it is essential that the court weigh the matter with an informed and open mind.
* * *
[I]n all cases the court must view the handicapped person as an individual and the family as a whole.

Id. at 41-42.

[¶ 21.] We agree with the holding in Carney. Although the health and physical condition of a parent is a valid factor in determining a child’s best interests, a judge must neither presume the existence of limitations nor fail to adequately consider other relevant factors. When faced with a parent’s disability in a custody dispute, the judge should consider: (1) the person’s actual and potential physical capabilities; (2) how the parent has managed and adapted to the disability; (3) how the other members of the household have adjusted to it; and (4) “the special contributions the person may make to the family despite, or even because of, the handicap.” Id. at 42. Weighing these and other relevant factors together, the court should then decide what effect, if any, the parent’s condition will have on the best interests of the child.

[¶ 22.] Here, unlike in Carney, the trial court took evidence on Travis’s disability, but properly centered on the three Fuer-stenberg elements most relevant in these circumstances: fitness, stability, and primary caretaker. Concerning the fitness factor, the court found that Teresa was more willing to “maturely encourage and provide frequent and meaningful contact between the child and the other parent.” Fuerstenberg, 1999 SD 35, ¶ 24, 591 N.W.2d at 807. In addition, the court noted that Travis was living with a woman to whom he was not married. They eventually married during the pendency of this appeal, but, of course, the court could not have counted on that at the time. As to the stability factor, the court noted that both parents were equal. The court concluded that Teresa was Grace’s primary caretaker and then concurred in Zimbel-man’s observation that at her present age, Grace needs to be with the one she is most emotionally attached to, Teresa.

[¶ 23.] Travis takes issue with Zimbel-man’s assessment of his limitations, especially her concerns about his ability “to respond to Grace in times of sickness or emergency.” He insists that in so concluding, Zimbelman “let her stereotypical assumptions prevail.” The trial court never found that Travis had such limitations. However, the court did find “the opinions and observations of the expert to be reasonable and well grounded and ... placed great weight upon them.” Travis believes that Zimbelman should have tested his response times before coming to her conclusions about his ability to respond. But Zimbelman did observe Travis in his daily activities. As she stated in her report,

Travis demonstrated how he was able to move around the house and how he was able to care for Grace. He drove his wheel chair to the stairs and slid down the stairs to his bedroom.... Travis also demonstrated how he was able to get Grace a drink if she asked for one and how he was able to get something for her to eat or drink.

Only then did she express her concerns about his ability to respond in an emergency. Travis may take exception to her opinion, but this is not a case of diserimi-nation, as Travis contends, by reliance on assumptions about a physical condition as prima facie evidence of parental unfitness. On the contrary, Zimbelman directly observed Travis’s mobility in his home. By stipulation of the parties, Zimbelman was appointed by the court to perform a home study on each parent. If Travis felt that Zimbelman’s assessment misrepresented his abilities, he could have brought in his own expert to contradict her.

[¶ 24.] Travis also contends that the court resurrected the “tender years” doctrine. He quotes the court’s bench comments: “[B]ecause of the age of the child ... the mother is the important one now. As the child gets older, as the discipline comes into it, discipline is necessary and so forth and guidance, perhaps things may change.” We do not ordinarily probe the court’s oral pronouncements. In reviewing decisions, we look to the formal written findings. Marks v. Clark, 2001 SD 122, ¶ 12, 685 N.W.2d 278, 281; Western Bldg. Co. v. J.C. Penney Co., 60 S.D. 680, 636-37, 245 N.W. 909, 911-12 (1932). Nonetheless, although we must base our review on the written findings, we acknowledge that these remarks sound as if the tender year’s doctrine were still alive in the trial court’s view. Yet, an examination of the entire fact findings does not bear out Travis’s complaint. In commenting on tender years, the court was speaking primarily in the context of the child’s emotional attachment to her mother, a matter on which Zimbelman gave her expert opinion. As Zimbelman said, small children are more emotionally attached for nurturing and security to their primary caretakers, whether male or female. At the same time, the trial court recognized that children’s needs change over time, just as the South Dakota Visitation Guidelines envision. The court’s written findings leave no doubt of this. Concluding that Teresa had been Grace’s primary caretaker until the separation when Travis became more active, the court followed Zimbelman’s recommendation that Grace needed “daily contact with her mother to [meet] her needs.”

[¶25.] Lastly, Travis argues that the court registered a finding not borne out in the record: “More significantly, [the mother] has demonstrated great willingness to share the child with plaintiff whereas plaintiff tends to want to hang on to the child to meet his needs rather than focusing on the needs of the child.” Concededly, there is scant evidence to support this finding. Yet, the question is not whether each finding can be linked to a page in the transcript, but whether the court could have reasonably reached this conclusion from the entirety of the evidence. Early in their separation, both parents had difficulty sharing custody of Grace at times. In ascribing fault, the court could well have decided that Travis bore greater responsibility. Travis resisted paying Teresa child support, wanted any child support he should have to pay in the future to be based on the minimum income level, and claimed under oath that the annual $88,800 he received tax free was actually his mother’s, even though he received it and spent it as his own. Travis was twenty-eight at the time of trial, and his mother had been his guardian ad litem during his minority. She contradicted his latter contention, and the judge specifically found that he had misrepresented his financial condition. The court also found that he was “highly resistant to providing monetary support, using the financial issues to attempt to coerce the custody issue.... ” Certainly, the court could conclude that these are not the acts of a father who puts the needs of his child first.

[¶ 26.] On the whole, the record does not reveal that the trial court’s findings were clearly erroneous. We conclude that the court properly considered the relevant factors in making its custody determination and did not abuse its discretion in awarding primary physical custody to Teresa.

III.

Use of Structured Settlement in Calculating Child Support

[¶ 27.] In calculating child support, the circuit court included Travis’s medical malpractice settlement funds, but deducted $16,000 for extraordinary expenses related to his disability. In reviewing a child support award, we look to see “whether the trial court abused its discretion in setting the support.” Peterson v. Peterson, 2000 SD 58, ¶ 13, 610 N.W.2d 69, 71 (quoting Grade v. Grode, 1996 SD 15, ¶ 7, 543 N.W.2d 795, 800 (citation omitted)). However, the question whether a source of funds constitutes income involves statutory interpretation, and that is a question of law reviewable de novo. Bozied v. City of Brookings, 2001 SD 150, ¶ 8, 638 N.W.2d 264, 268 (citation omitted). Travis argues that his settlement proceeds are not a source of income under SDCL 25-7-6.3. The court concluded that these proceeds are periodic payments from an “insurance contract” under 25-7-6.3(3).

[¶ 28.] Although the circuit court was clearly right in holding that Travis receives periodic payments from an “insurance contract” under SDCL 25-7-6.3(3), there is more to this question than meets the eye. These payments are from a tax-exempt personal injury structured settlement. As the court in Western United Life Assurance Co. v. Hayden, 64 F.3d 833, 839 (3rdCir.1995), explained:

Structured settlements are a type of settlement designed to provide certain tax advantages.... [I]n a structured settlement the claimant receives periodic payments rather than a lump sum, and all of these payments are considered damages received on account of personal injuries or sickness and are thus excludable from income. Accordingly, a structured settlement effectively shelters from taxation the returns from the investment of the lump-sum payment.

See also IRC 104(a)(2); Pub. L. No. 97-478, Title K, § 101(b)(1), Jan. 12, 1988, 96 Stat. 2605 (1982) (codifying the tax-free status of such structured settlements provided by Revenue Rulings 77-230,79-220 and 79-313).

[¶29.] Our law partially defines gross income in terms of federal tax reporting. SDCL 25-7-6.6 provides:

Gross income from a business, profession, farming, rentals, royalties, estates, trusts or other sources, are the net profits or gain, or net losses shown on any or all schedules filed as part of the parents’ federal income tax returns or as part of any federal income tax returns for any business with which he is associated ....

In Roberts v. Roberts, 2003 SD 75, ¶ 18, 666 N.W.2d 477, 482, a case handed down a few months ago, we held that SDCL 25-7-6.6 does not establish “a separate category of parental income in addition to the general provisions of SDCL 25-7-6.3.” In reading the two statutes together, we concluded that “if money received by a parent meets the criteria set by SDCL 26-7-6.3 and is also from certain specific sources identified by SDCL 26-7-6.6, then SDCL 26-7-6.6 provides further rules as to how to calculate that income.” Id.

[¶ 30.] Travis’s funds do indeed fall under one of the categories in SDCL 25-7-6.3, namely § 6.3(3), periodic payments. But these payments are neither profit nor gain as “shown on any or all schedules filed as part of the parents’ federal income tax returns....” SDCL 25-7-6.6. Nonetheless, our child support statutes do not provide exclusions for personal injury benefits, nor do they generally exclude nontaxable proceeds in figuring parental income for child support purposes.

[¶ 31.] The Nebraska Court of Appeals discussed the problem of the nontaxable nature of certain personal injury awards in Mehne v. Hess, 4 Neb.App. 935, 553 N.W.2d 482 (1996).

[W]e are not persuaded by Mehne’s argument that personal injury settlements should be ignored as an income source in determining child support because they are not considered as gross income by Internal Revenue Service laws. The taxability of moneys received provides no logical basis to necessarily include or exclude them from the category of resources available to pay child support. Such a general proposition would exclude such settlements, when in fact many represent compensation for lost wages or diminished earning capacity, which are pivotal considerations in setting child support under Nebraska law.

Id. at 487.

[¶ 32.] In disregarding the nontaxable status of these types of structured settlements in child support cases, several authorities have held that, in the absence of any legislative intent to exclude nontaxable parental income, periodic payments from an annuity, regardless of the annuity’s source, will be included. Sherburne County Social Serv. v. Riedle, 481 N.W.2d 111, 112 (Minn.App.1992). In Mower County Human Serv. v. Hueman, 543 N.W.2d 682 (Minn.App.1996), the court ruled that two annuity contract payments received by a father as part of his childhood personal injury settlement constituted income for the purpose of establishing child support.

[¶ 33.] Likewise, in the case of In re Marriage of Fain, 794 P.2d 1086 (Colo.App.1990), the court ruled that payments received through a personal injury structured settlement constitute gross income for calculating child support. The court wrote:

Section 14-10-115(7)(a)(I)(A), C.R.S. (1987 Repl. Vol. 6B) provides that “gross income” includes “income from any source and includes, but is not limited to ...” the items specifically enumerated therein. Therefore, although social security benefits and disability benefits are expressly included as “gross income,” § 14 — 10—115(7)(a)(I), by its plain language, also includes all payments from a financial resource, whatever the source thereof....
While the General Assembly expressly excluded certain benefits from the definition of “gross income,” ... the statute does not provide an exclusion for personal injury benefits.

Id. at 1087. Under Colorado’s inclusive definition of “gross income,” a parent’s structured settlement payments are included for child support purposes. Similarly, our Court held in Peterson that the use of the word “include” in SDCL 25-7-6.3 suggests a legislative intent to encompass other unlisted sources of income.

[¶ 34.] Even if the circuit court had not relied on SDCL 25-7-6.3, as an alternative, it could have fallen back on SDCL 25-7-6.5. That statute provides: “If a child’s needs are not being met through the income of the parents, assets shall be considered. If the parents have savings, life insurance or other assets in amounts unrelated to income, these holdings shall be considered.” Without his structured settlement funds, Travis has no money to support his child. Thus, his income is insufficient to meet his child’s needs. His structured settlement payments can therefore be used as an “asset” to be considered for child support purposes. SDCL 25-7-6.5. Several jurisdictions have held that these settlements constitute a “financial resource” or “asset” to be included in a child support calculation. See Genna Rosten, J.D., Annotation, Consideration of Obligor’s Personal-Injury Recovery or Settlement in Fixing Alimony or Child-Support, 59 A.L.R.5th 489 § 3 (1998). See also Butler v. Butler, 339 Pa.Super. 312, 488 A.2d 1141, 1143 (1985) (it would be illogical to rule that the tort award is available to pay debts to “the butcher, the baker, and the candlestick maker,” but not debts for child support).

[¶ 35.] Because Travis’s structured settlement payments are either income or an asset available for purposes of calculating child support, the next question is how much of these amounts should be included in the child support calculation? As previously mentioned, the trial court excluded $16,000 of Travis’s annual payments for extraordinary expenses. Some jurisdictions only include that portion of the personal injury settlement proceeds that represent lost income and income capacity. Villanueva v. O’Gara, 282 Ill.App.3d 147, 218 Ill.Dec. 105, 668 N.E.2d 589 (1996); In re Marriage of Durbin, 251 Mont. 51, 823 P.2d 243 (1991); In re Marriage of Gallegos, 174 Ariz. 18, 846 P.2d 831 (Ct.App.1992); Mehne, supra; Whitaker v. Colbert, 18 Va.App. 202, 442 S.E.2d 429 (1994); Geyer v. Geyer, 1992 WL 352642 (Ohio Ct.App.1992). Personal injury settlements often compensate for more than lost earnings and earning capacity. These awards also compensate for such things as disability and disfigurement; past and future pain and suffering; past and future medical expenses; and caretaking expenses. See South Dakota Pattern Jury Instructions 30-01, et seq. Here, however, because Travis maintained that none of his proceeds should be considered, he offered no suggestion on what part of his settlement was intended to replace income. And the settlement agreement itself does not specify a lost income component. It is simply a structured settlement, providing for payments beginning in 1992 and ending either in 2012 or at the end of Travis’s life, whichever period is longer.

[¶ 36.] Counting all his funds as income for child support purposes may be unfair to Travis, though excluding all of it, as he requested, is clearly unfair to his child. If Grace lived with her father fulltime, she would enjoy his standard of living made possible by the use of these funds. With the limited information available to the trial court, it did its best to exclude those portions of the settlement necessary for Travis’s basic care. Because Travis took the position that none of the settlement could be used for child support, he left the court with an all or nothing choice. On this record, we cannot say that the court abused its discretion in setting support using a portion of Travis’s structured settlement proceeds. We affirm the child support award.

IV.

Award of Attorney Fees to Mother

[¶ 37.] SDCL 15-17-38 permits the award of attorney’s fees in divorce actions. Kappenman v. Kappenman, 522 N.W.2d 199, 202 (S.D.1994). As we said in Temple v. Temple, 365 N.W.2d 561 (S.D.1985), each case rests on its own merits and in the court’s discretion. In reviewing such awards, we will consider the totality of circumstances. Pribbenow v. Van Sambeek, 418 N.W.2d 626, 630 (S.D.1988). The trial court considered the proper factors to determine the reasonableness of attorney’s fees and whether either party ought to be required to contribute to the fees of the other. See Kappenman, 522 N.W.2d 199. In accord with Ryken v. Ryken, 461 N.W.2d 122 (S.D.1990), the trial court considered the relative incomes of the parties to be significant in this case. After finding that Travis’s income was almost four times Teresa’s income, the trial court divided the burden accordingly, ordering that Travis pay 70% of Teresa’s attorney fees, tax, and costs. In addition, the court also found that Travis should pay 80% of the home study cost. The court did not abuse its discretion.

V.

Appellate Attorney’s Fees

[¶ 38.] Teresa requests appellate attorney fees of $2292.98 and costs of $246.80. In considering fees for the appeal, we must consider “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.” Barnes v. Matzner, 2003 SD 42, ¶ 24, 661 N.W.2d 372, 379 (citation omitted). From the record, we know that Travis’s annual payments total approximately $88,800 (non-taxable) and Teresa’s annual income is approximately $22,000. Thus, Travis is in a significantly better position to pay attorney’s fees. The second step of our analysis is to examine the fee requests from the perspective of whether the party’s appellate arguments carried any merit. Considering this factor, Travis’s appeal had some merit, especially the questions of first impression in South Dakota. Teresa asks for $2292.98, which appears to be appropriate for the work her attorney performed in defending the appeal. Yet, considering the merit of Travis’s arguments, we award her $1,500.

[¶ 39.] Affirmed.

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

[¶ 41.] SABERS, Justice, concurs in part and concurs in result in part.

SABERS, Justice

(concurring on Issues 1, 2, and 4 and concurring in result on Issue 3).

[¶ 42.] I concur in result on Issue 3 because Travis wholly failed to establish that the trial court abused its discretion in determining that his structured settlement was income under the child support provisions. As we noted in Peterson, SDCL 25-7-6.3 was intended to be inclusive and to “encompass other, unlisted sources of income.” Peterson, 2000 SD 58 at ¶ 21, 610 N.W.2d at 72 (citing Hautala v. Hautala, 417 N.W.2d 879, 881 (S.D.1988) (additional citations omitted)).

      . The Arneson Release and Settlement Agreement dated December 2, 1985 provides that Travis’s parents be paid “the sum of $1,500 per month commencing December 15, 1985, adjusted at the end of each succeeding year by a 3% escalation factor, compounded annually for a period of ten years.” Furthermore, the agreement provided that Travis’s mother, as guardian ad litem, would be paid “the sum of $4,167 per month, commencing December 15, 1992, adjusted at the end of each succeeding year by a 6% escalation factor, compounded annually, throughout the lifetime of Travis L. Arneson or until November 15, 2012, whichever period of time is longer.”

      . When it existed, the "Tender Years Doctrine" granted preference to mothers of children of "tender years.” In 1979, our Legislature abrogated this doctrine. Before then, the law provided that, all things being equal, the mother was entitled to custody of a child of tender years. Prentice v. Prentice, 322 N.W.2d 880, 881-82 (S.D.1982). However, the law was amended so that now neither parent can be given preference in determining custody. See SDCL 25-4-45.

      . SDCL 25-7-6.3 provides:
      The monthly net income of each parent shall be determined by the parent's gross income less allowable deductions, as set forth herein. The monthly gross income of each parent includes amounts received from the following sources:
      (1) Compensation paid to an employee for personal services, whether salary, wages, commissions, bonus, or otherwise designated;
      (2) Self-employment income including gain, profit, or loss from a business, farm, or profession;
      (3) Periodic payments from pensions or retirement programs, including social security or veteran's benefits, disability payments, or insurance contracts;
      (4) Interest, dividends, rentals, royalties, or other gain derived from investment of capital assets;
      (5) Gain or loss from the sale, trade, or conversion of capital assets;
      (6) Unemployment insurance benefits;
      (7) Worker’s compensation benefits; and
      (8) Benefits in lieu of compensation including military pay allowances.
      If the income of the parents is derived from seasonal employment, or received in payments other than regular, recurring payments, such income shall be annualized to determine a monthly average income.

      . According to Travis’s settlement agreement, the negligent physician’s malpractice insurer funded the settlement by a “contract or contracts of insurance with Manufacturers Life Insurance Company of Toronto, Canada.”

      . It should be noted that Peterson was a split decision on the question whether the Legislature intended to include as income other unlisted sources. However, since that decision of three years ago, the Legislature has not seen fit to amend this statute to correct this interpretation, although it has amended other portions of the child support statutes. Thus, we must conclude that the Legislature continues to embrace this interpretation.


author: KONENKAMP, Justice.

text:
    2003 SD 126
    ESTATE OF Marcella M. GASPAR, Jerome C. Baumberger and Vincent Baumberger, co-personal representatives, Plaintiffs and Appellees, v. VOGT, BROWN & MERRY, a South Dakota partnership engaged in the practice of law, Defendant and Appellant.
    No. 22690.
    Supreme Court of South Dakota.
    Considered on Briefs Aug. 25, 2003.
    Decided Oct. 15, 2003.
    Rehearing Denied Nov. 18, 2003.

      Clair R. Gerry, Brian J. Stuart of Stuart, Gerry & Schlimgen, Sioux Falls, South Dakota, Attorneys for plaintiffs and appellees.
    Rory King of Bantz, Gosch <& Cremer, Aberdeen, South Dakota, Attorneys for defendant and appellant.
   KONENKAMP, Justice.

[¶ 1.] In preparing wills for a husband and wife who wished to disinherit each other so that their children by previous marriages would receive their estates, the attorney failed to advise that waivers of their respective spousal elective shares would be necessary to accomplish their testamentary wishes. After the wife died, the husband obtained his elective share of half the wife’s estate. The wife’s estate then brought a legal malpractice action against the attorney. In finding against the attorney, the circuit court ruled in a bench trial that the loss to the wife’s estate was proximately caused by the attorney’s negligence. On appeal, the attorney questions whether the trial court failed to consider various contingencies in deciding that the proximate cause of the loss was the attorney’s deficient advice. Because the court was not required to speculate on all possibilities in considering proximate cause, we affirm.

Background

[¶ 2.] Marcella and Ray Gaspar married in 1965. Both were previously married and had children from those marriages. They had no children together. At the time of their marriage, each held an estate of approximately equal value. Because of their desire to preserve their property for their children, they maintained separate finances. Nonetheless, during their marriage, Marcella expected Ray to support her completely. She believed that it was a husband’s duty to support his wife. Ray assented. For the next thirty-two years of marriage, he expended most of his income and assets, while Marcella increased her wealth.

[¶ 3.] Attorney Max Merry represented both Marcella and Ray. In 1981, shortly after South Dakota enacted the right of the spousal elective share, Merry drafted a will for Marcella. The intent of the will was to disinherit Ray. At that time, Marcella’s and Ray’s estates still had approximately equal worth. In 1987, Merry drafted a similar will for Ray that disinherited Marcella. Throughout this time, Merry provided other legal services to Marcella and Ray. In 1991 and 1996, Merry drafted a subsequent will and codicil for Marcella. Neither of these made any provision for Ray, leaving no doubt of Marcella’s desire to disinherit him.

[¶ 4.] Marcella died on January 12, 1997. From the time of her 1981 will until her death, her wealth had grown to $498,794.60, ten times the $45,895.33 in Ray’s estate. Despite their mutual testamentary intent to disinherit each other, Ray petitioned for and received under SDCL 29A-2-202 his surviving spouse’s elective share. His entitlement came to fifty percent or $226,449.54.

[¶ 5.] Marcella’s estate then brought this action against Merry, claiming that his negligence resulted in a loss of $226,449.54. Merry admitted that he failed to inform Marcella that without a waiver signed by Ray, the intent of her will could be defeated if Ray decided to take an elective share of her estate. In a bench trial, the circuit court found that Merry owed a duty to Marcella, that he breached that duty, and that his breach caused her estate to sustain actual damages in the amount of $226,449.54. On appeal, Merry raises the following issues: (1) “Whether the trial court erred by refusing to consider clearly relevant evidence on the issue of proximate cause, dismissing it as speculative, and whether the decision of the trial court on that issue was clearly erroneous.” (2) ‘Whether, if Ray Gaspar had signed an unconditional waiver of his elective share rights in 1981, such a postnuptial agreement would have been enforceable and whether such agreement would have been against public policy.” (3) “Whether the statute of limitations bars plaintiffs claim based upon the alleged negligence of defendant with respect to the 1981 will.”

1. Proximate Cause

[¶ 6.] Causation is usually a fact question for the fact finder except when there are no differences of opinion on the interpretation of the facts. Weiss v. Van Norman, 1997 SD 40, ¶ 13, 562 N.W.2d 118, 116. We review questions of fact under the clearly erroneous standard. A.P. & Sons Construction v. Johnson, 2008 SD 13, ¶ 9, 657 N.W.2d 292, 294. In a case for legal malpractice, it is the plaintiffs burden to prove:

1. An attorney-client relationship giving rise to a duty;
2. the attorney, either by an act or a failure to act, violated or breached that duty;
3. the attorney’s breach of duty proximately caused injury to the client; and
4. the client sustained actual injury, loss, or damage.

Ford v. Moore, 1996 SD 112, ¶7, 552 N.W.2d 850, 852 (citation omitted). At issue here is whether Merry’s negligence was the proximate cause of the loss to Marcella’s estate. A proximate or legal cause is a cause that produces a result in a natural and probable sequence and without which the result would not have occurred. Such cause need not be the only cause of a result. It may act in combination with other causes to produce a result. SDCL 21-3-1; Musch v. H-D Coop., Inc., 487 N.W.2d 623 (S.D.1992); see also S.D. Pattern Jury Instruction 15-01.

[f 7.] In this case, the estate had to prove that but for Merry’s negligent failure to inform Marcella of the elective share and the need for a waiver, Marcella’s estate would not have suffered a loss. Merry argues that the trial judge refused to consider, as speculative, evidence on the issue of proximate causation and that such refusal was clearly erroneous. First, to clarify this question, there is no indication in the record that the court refused to hear certain evidence. The court, however, declined to engage in all the hypotheses Merry offered to suggest that his error would not have caused the loss to the estate. Merry states in his appellate brief:

It is the position of the appellant that the trial court refused to consider, as speculative, a great deal of very relevant evidence on that issue, much of it undisputed, including the all important advice that an independent attorney would have given Ray Gaspar. For some reason, the trial court focused instead upon a very few items of disputed evidence, and dismissed, as speculative, a raft of clearly relevant evidence, much of it undisputed.

Merry contends that the trial judge refused to consider what Ray would have done if he had received proper advice from a competent attorney. Merry points to the testimony of the expert witnesses who both stated they would have advised a client in Ray’s position not to sign a waiver. But this misses the heart of the question. The primary issue was whether Ray, had he sought advice, would have signed a waiver regardless of what a competent attorney might have told him. The evidence within the record does not clearly outweigh the trial judge’s finding that Ray would have signed a waiver. In his memorandum opinion, the judge concluded that Ray would have signed a waiver because: (1) the estates of Marcella and Ray were approximately the same at the time; (2) Ray had a similar desire to protect his property, as evidenced by his will disinheriting Marcella; and (3) Marcella was willing to end the marriage had Ray refused to sign a waiver.

[¶ 8.] Merry highlights a sentence from the memorandum opinion: “The Court cannot indulge in endless and pure speculation as to what ‘might have’ or ‘could have’ happened.” Indeed, a trier of fact should refrain from unwarranted speculation, either for or against a litigant. If, for example, equally probable causes of loss appear, for one or more of which the defendant is not responsible, the fact finder should not guess, speculate, or surmise about the actual cause. See Phillips-Smith Specialty Retail Group v. Parker Chapin Flattau & Klimpl, LLP, 265 A.D.2d 208, 696 N.Y.S.2d 150, 151-52 (1999); Tilden v. Profeta & Eisenstein, 236 A.D.2d 292, 654 N.Y.S.2d 10, 10 (1997). In dealing with probabilities, the court had only to decide what was most likely, not what might have happened based on whatever counsel could envision as imaginable. That the facts of the case could not lead a reasonable trier of fact to believe that Marcella and Ray would have signed waivers at the time is refuted by Merry’s own testimony: “there would be no reason that either party wouldn’t sign the waiver in 1981 because they wanted their estate, their separate estates, to go to their previous children....” In sorting out the evidence, the trial court was within its discretion in refusing to indulge in the speculation Merry advanced.

2. Valid Postnuptial Agreement

[¶ 9.] Even if Ray had signed an unconditional waiver of his elective share rights in 1981, Merry contends that such a postnuptial agreement would not have been enforceable and would have been against public policy. We considered, whether a postnuptial agreement could be valid and enforceable in Estate of Gab, 364 N.W.2d 924 (S.D.1985). In that decision, we held the agreement to be “lawful.” Id. at 925. In Gab, the parties had several children from previous marriages. Id. To ensure that the assets from each estate would go only to their children from the previous marriages, both spouses executed wills disinheriting the other. Id. Later, the parties signed a postnuptial agreement. Id. In effect, the agreement prevented the surviving spouse from petitioning for an elective share of the deceased spouse’s estate. Id. In holding the agreement valid, we reasoned that so long as the extent and nature of the decedent’s property was revealed, and so long as the agreement was entered into “freely and for good consideration,” a postnuptial agreement could survive the strict scrutiny standard required of such an agreement. Id. at 926.

[¶ 10.] Merry would have us hold that any postnuptial agreement entered into by Marcella and Ray would not have survived application of the strict scrutiny standard. Using the findings of the trial judge, as we must because they were not clearly erroneous, there is no reason to believe that an elective share waiver would not have survived strict scrutiny. In his decision, the judge found that Ray would have entered into the agreement voluntarily and that there was no evidence that Marcella was predisposed to fraud or deceit to accomplish the agreement. These are the exact criteria that we laid out in Gab. Consequently, we believe that based on the findings of the trial judge, the conclusion, “[t]hat the waiver would have been effective against future changes in the law and in the estates of the parties,” is not in contravention of our previous holdings.

[¶ 11.] Merry asserts that had Marcella required Ray to sign an absolute waiver by threat of divorce while insisting that Ray pay most of the living expenses, such a waiver would be a “violation of the public policies behind the marital support laws and the elective share laws.” “Marcella,” Merry maintains, “had a continuing obligation, throughout the course of her marriage to Ray, to take no deliberate action which would deprive Ray of proper support, including food, clothing, shelter or medical attendance, or which would leave him, then, or in the future, in a destitute condition.”

[¶ 12.] As foundation for his proposition, Merry cites SDCL 25-7-1 and 25-7-4. However, the language of these statutes does not contemplate the situation presented in this case. SDCL 25-7-1 provides: “A person shall support himself or herself and his or her spouse out of his or her property or by his or her labor.” Likewise, SDCL 25-7-4 commands:

Every person with sufficient ability to provide for his or her spouse’s support, or who is able to earn the means of the spouse’s support, who intentionally abandons and leaves his or her spouse in a destitute condition, or who refuses or neglects to provide such spouse with necessary food, clothing, shelter or medical attendance, unless, by the spouse’s misconduct, he or she is justified in abandoning the spouse or failing to so provide is guilty of a Class 6 felony.

(Emphasis added.) Merry’s interpretation of the statute would have us construe a postnuptial agreement as containing the requisite intention, refusal, or neglect contemplated in the statute. This we decline to do.

3. Statute of Limitations

[¶ 13.] In his last issue, Merry argues that the statute of limitations bars the estate’s claim with respect to the 1981 will. “[A] claim that a cause of action is time-barred is an affirmative defense.” Huron Center, Inc. v. Henry Carlson Co., 2002 SD 103, 11, 650 N.W.2d 544, 547 (citing Wolff v. Sec. of S.D. Game, Fish and Parks Dept. 1996 SD 23, 14, 544 N.W.2d 531, 533-34). Merry did not aver the statute of limitations in his pleadings.

[¶ 14.] Merry contends that Marcella’s estate based its claim on the 1981 will only after trial. However, the record shows that the 1981 will was part of the claim for negligence. During the trial, the attorney for Marcella’s estate posed a question to its expert witness, “In your opinion, does the malpractice in this case and the damages associated therefrom, stem back to the failure of [Merry] in 1981 to get an elective share waiver from Ray?” Merry’s attorney objected on the ground that the question called for speculation and was beyond the capacity of the witness. The trial judge sustained the objection stating, “I think that is a factual determination I have to make.” Thus, the record reflects that Merry had notice that the 1981 will would be part of the basis for assessing his negligence.

[¶ 15.] Merry’s argument is further undermined by his not having asserted this affirmative defense concerning the testamentary instrument Marcella signed in 1991. The statue of limitations bars any claim for legal malpractice not brought “within three years after the alleged malpractice-” SDCL 15-2-14.2 (2001). Marcella’s estate did not bring the current action until February 1998. We will ordinarily decline to review issues not properly presented to the trial court. Knudson v. Hess, 1996 SD 137, ¶8, 556 N.W.2d 73, 75. Because the 1981 will was in issue and Merry failed to assert the statute of limitations, we hold that he is barred from raising that issue on appeal.

[¶ 16.] Affirmed.

[¶ 17.] GILBERTSON, Chief Justice, and SABERS and MEIERHENRY, Justices, concur.

[¶ 18.] ZINTER, Justice, deeming himself disqualified, did not participate.

      . Merry testified that he believed he informed Marcella of Ray’s right to take an elective share of her estate. He recalled that Marcella’s response to his statement was, "He wouldn’t do that would he?” According to Merry, the conversation was brief and no details were discussed. Jerome Baumberger, Marcella's son, was present during discussion of matters involving Marcella’s finances. He did not recall any conversation about the elective share.

      . Attorney Richard Kolker was called as an expert witness by the plaintiff. Mr. Kolker testified that if he was aware of all the circumstances that had come to light since 1981, he would not have advised Ray Gaspar to sign a waiver. See In re Estate of letter, 1997 SD 125, ¶ 16, 570 N.W.2d 26, 29 n.5. However, Mr. Kolker also testified that had Ray Gaspar refused to sign a waiver, there were other options available that would accomplish Marcella Gaspar’s intent of having her estate go to her children. Mr. Kolker stated that it would be the duty of an attorney to do what was legally necessary to accomplish Marcella Gaspar's testamentary purpose. Attorney Thomas H. Foye testified as an expert for the defense. In his testimony, he agreed that "a postnuptial agreement that would have required Ray Gaspar to pay all the expenses of the parties, allowing Marcella Gaspar to save her income, and yet required Ray Gaspar to waive his elective share,” would not have been a conscionable postnuptial agreement. Therefore, he explained that his recommendation to a client in Ray Gaspar’s position would have been against signing the waiver. He further stated that in his experience it would be difficult, if not impossible, to get a client such as Marcella Gaspar to satisfy the requirement of complete disclosure. However, Mr. Foye agreed that had an effective waiver been signed by Ray Gaspar in 1981, the waiver would have still been in effect at the time of Marcella Gaspar’s death. Finally, Mr. Foye negated the relevance of potential alternatives to the waiver of the elective share. While he did not specifically state that there were no alternatives to the waiver, he did state that the alternatives would not be as desirable as the waiver.

      . Merry cites Gabaig v. Gabaig as standing for the proposition that an agreement can never be voluntary under the threat of divorce. 717 P.2d 835, 841 (Alaska 1986). In Gabaig, the trial court found that the husband actively discouraged the wife from consulting with an attorney and repeatedly threatened divorce, and therefore there was no arm’s length bargaining. It further concluded that the husband did not fully disclose his assets; therefore, there was no full disclosure. While the husband’s repeated threats of divorce played some role in the court’s decision, the court also had evidence of the husband’s active dissuasion of the wife’s need to seek counsel regarding the agreement. Furthermore, the Gabaig Court had to deal with the husband’s unwillingness to disclose all his assets.

      . The estate contends that even if the statute of limitations is properly before us, the statute was tolled by Merry's continuing representation and fraudulent concealment. We need not address these issues.