author: GILBERTSON, Chief Justice. SABERS, Justice

text:
    2007 SD 65
    Chad ANDERSON, Plaintiff and Appellant, v. FIRST CENTURY FEDERAL CREDIT UNION, Defendant and Appellee.
    No. 24164.
    Supreme Court of South Dakota.
    Argued Feb. 14, 2007.
    Decided July 3, 2007.

      Meredith A. Moore, Michael D. Bornitz of Cutler & Donahoe, L.L.P., Sioux Falls, South Dakota, Attorneys for plaintiff and appellant.
    Melanie Carpenter, Gary P. Thimsen of Woods, Fuller, Shultz & Smith, Sioux Falls, South Dakota, Attorneys for defendant and appellee.
   GILBERTSON, Chief Justice.

[¶ 1.] On September 22, 2004, Chad Anderson (Anderson) filed suit in the South Dakota Second Judicial Circuit against First Century Federal Credit Union (hereinafter referred to as either “First Century” or the “credit union”) in connection with cessation of his employment. On April 28, 2006, First Century filed a motion for summary judgment. On June 14, 2006, the circuit court issued its memorandum opinion granting First Century’s motion. The circuit court’s order of dismissal and summary judgment were entered on June 19, 2006.

FACTS AND PROCEDURE

[¶ 2.] The material events leading up to the cessation of Anderson’s employment with First Century are essentially undisputed. Anderson was employed as executive vice president of First Century, the second highest position at the credit union. In January 2002, Judy Wickre (Wickre), head teller and operations manager for First Century, confronted Anderson about unusual activity involving the personal accounts of First Century’s president and CEO, Jill Handel (Handel) and her boyfriend Jarrod Haacke (Haacke). Wickre observed that late-night, large, even-dollar-amount drafts and ATM withdrawals were being drawn on the accounts. She also noted that tens of thousands of dollars at a time were coming into and going out of the accounts. Anderson and Wickre began to monitor the activity and eventually concluded that Handel, who they suspected had a gambling problem, was taking out loans in the names of other individuals and then depositing the proceeds in accounts belonging to Haacke and her. The two suspected that Handel was taking out the loans in the names of her two sons, a daughter-in-law and her father, and then refinancing them to conceal delinquencies.

[¶ 3.] Anderson and Wickre withheld notification to First Century’s board of directors of the suspicious activity involving the accounts of Handel and Haacke, anticipating that it would be exposed during an upcoming annual National Credit Union Administration (NCUA) audit. However, the NCUA’s May on-site audit, which focused on commercial rather than personal accounts, failed to uncover the activity. Anderson and Wickre then revealed the information about Handel and Haacke’s accounts to First Century vice president of operations, Matt Perry (Perry). Perry concurred with Anderson and Wickre’s assessment that Handel appeared to be complicit in wrongdoing.

[¶ 4.] On or about May 22, 2002, Anderson and Wickre went to the home of Lee Thompson (Thompson), chairman of the board of directors for First Century, to report their concerns about Handel. Anderson brought a prepared copy of his letter of resignation to the meeting with Thompson in order to show that he was not motivated by a desire to assume Handel’s position, but rather a genuine concern for the credit union and its members. During this meeting, Anderson and Wickre did not reveal in toto the information they had obtained, limiting the disclosure of names and account activity to that of Handel. Thompson told Anderson he would look into the situation and assured Anderson and Wickre that in bringing the information to his attention they “did the right thing.”

[¶ 5.] Between the date of this meeting and the middle of June 2002, Anderson called Thompson on two occasions to check on the status of Thompson’s investigation. On each occasion Anderson reiterated his willingness to resign if necessary to demonstrate that he was genuinely concerned about the well-being of the credit union and not simply angling for Handel’s job. During each of these conversations Thompson reassured Anderson that he was looking into the matter.

[¶ 6.] Cognizant of the recent NCUA audit, Thompson contacted the examiner who had conducted the review, Larry Wirt, to discuss the allegations against Handel. Wirt was dismissive of the claims. He also told Thompson that the allegations as reported did not justify a further review from the NCUA’s perspective.

[¶ 7.] Thompson then contacted Warren Anderson, the board’s supervisory committee chairman. However, Anderson had just resigned from the First Century board of directors due to his recent appointment to the position of United States Marshall. The two were therefore unable to discuss the matter. Thompson did not contact other past or present First Century board members at this time concerning the allegations involving Handel.

[¶ 8.] In addition to the NCUA, First Century’s accounting firm, Eide-Bailly, had also conducted its annual outside audit of the credit union’s operations. Thompson contacted Roger Terveen, the Eide-Bailly auditor who had conducted the review. During his deposition, Thompson stated that when he asked Terveen whether he had noticed anything unusual about the account activity of any First Century officers, Terveen indicated that although fraud detection had not been the focus of the audit, he had not found anything of concern during his review.

[¶ 9.] On or about June 20, 2002, Thompson contacted Anderson and informed him that he would need the identity of the other individuals whose names were being used in Handel’s alleged scheme in order to facilitate continued investigation. Anderson printed out account information for Handel, Haacke, and Handel’s sons, daughter-in-law and father. This information was then placed in an envelope and on June 20, 2002, was delivered by Wickre to Thompson at his place of business. Thompson, who at the time was meeting with a customer, placed the envelope in a drawer. Thompson left town later that day and did not open the envelope until July 1, 2002, following his return home.

[¶ 10.] On Monday, July 1, 2002, at 7:00 a.m., Anderson was preparing for his first day back to work after a vacation when he received a call from Thompson. Thompson informed Anderson that on June 28, 2002, Handel had apparently heard from First Century staff that Anderson, Perry and Wickre had raised allegations about her with Thompson, had disseminated personal account information to him, and that the trio were commenting that Handel’s “head would roll.” Handel had taken this information to another First Century board member, Cecilia Grunewaldt, who in turn contacted board member Dick DeVa-ney. The two had then confronted Thompson about his knowledge of the allegations and account information.

[¶ 11.] Through this juncture, while Anderson, Perry and Wickre had observed that Handel had become noticeably aloof and ill-tempered at work, her irascibleness was not specifically directed at the trio. Also, Anderson acknowledged that no one with First Century told Anderson that he should not have reported his suspicions about Handel and no one at First Century retaliated against Anderson for doing so. At no time following the discovery of Handel’s suspicious account activities did anyone associated with First Century, including Handel and Thompson, tell him to resign or that he was going to be terminated, demoted or disciplined. Further, no one lead Anderson to believe that his job was in jeopardy.

[¶ 12.] During the July 1, 2002, telephone call, Thompson informed Anderson that the First Century board of directors was going to meet later that day to discuss the allegations Anderson, Perry and Wickre had made against Handel. Anderson once again offered up his resignation stating to Thompson, ‘Well, what am I supposed to do? Pm not going to put up with this another day. I’m not going to work for her, and things are going but nothing has been done. Where can I go with this? I’m not going to be fired.” Thompson then told Anderson, “You do what you think you have to do.”

[¶ 13.] Before leaving for the credit union, Anderson called Perry to advise him that Handel and other members of the board of directors besides Thompson were now aware of their allegations. When Anderson arrived at the credit union, he walked into Handel’s office and tendered his resignation. Handel asked him to reconsider and at least hold off on making a decision until the board of directors had met. Anderson refused her request, packed his things and left. Later that same morning Perry submitted his resignation to Handel as well. Handel implored him to stay. Perry rejected her request, but agreed to stay through the end of the week to assist with transition. Following the board of directors meeting, Wickre was dismissed by Handel for carrying documents off the premises in violation of credit union policy.

[¶ 14.] As a result of the allegations against Handel, raised by Anderson, Perry and Wickre, the First Century board of directors voted during the July 1, 2002 meeting to hire Eide-Bailly to conduct another audit. In addition, after the cessation of their employment with First Century, Anderson and Perry filed a suspicious activity report with the NCUA prompting the regulatory agency to conduct an on-cite investigation into their allegations in November 2002. Ultimately, Handel was terminated by First Century in December 2002.

[¶ 15.] Anderson filed a suit against First Century for wrongful discharge and intentional infliction of emotional distress on September 22, 2004. On April 28, 2006, First Century filed a motion for summary judgment. On June 14, 2006, the circuit court granted First Century’s motion, dismissing Anderson’s claims.

[¶ 16.] Anderson appeals raising the following issues:

1. Whether the circuit court erred in granting First Century’s motion for summary judgment as to Anderson’s claim of wrongful discharge based on constructive discharge.
2. Whether the circuit court erred in granting First Century’s motion for summary judgment as to Anderson’s claim of intentional infliction of emotional distress.

STANDARD OF REVIEW

In reviewing a grant or a denial of summary judgment under SDCL 15-6-56(e), we must determine whether the moving party demonstrated the absence of any genuine issue of material fact and showed entitlement to judgment on the merits as a matter of law. The evidence must be viewed most favorably to the non-moving party and reasonable doubts should be resolved against the moving party. The non-moving party, however, must present specific facts showing that a genuine, material issue for trial exists. Our task on appeal is to determine only whether a genuine issue of material fact exists and whether the law was correctly applied. If there exists any basis which supports the ruling of the trial court, affirmance of a summary judgment is proper.

Pickering v. Pickering, 434 N.W.2d 758, 760-61 (S.D.1989) (internal citations omitted).

ANALYSIS AND DECISION

[¶ 17.] 1. Whether the circuit court erred in granting First Century’s motion for summary judgment as to Anderson’s claim of wrongful discharge based on constructive discharge.

“At-will” Employment and the Public Policy Exception

[¶ 18.] In South Dakota, employment without a specified term is on an “at-will” basis for which employment can be terminated with or without cause by notice of either party. SDCL 60-4-4. This Court has recognized exceptions to this doctrine where an “at-will” termination is contrary to public policy. See Johnson v. Kreiser’s, Inc., 433 N.W.2d 225, 227 (S.D.1988) (holding that an employee who was discharged in retaliation for refusal to commit an unlawful act could state a cause of action for wrongful termination); Niesent v.. Homestake Min. Co. of California, 505 N.W.2d 781, 784 (S.D.1993) (holding that the public policy exception to the “at-will” employment doctrine includes a cause of action for wrongful termination where the discharge is in retaliation for filing a workers’ compensation claim).

[¶ 19.] In Dahl v. Combined, Ins. Co., 2001 SD 12, 621 N.W.2d 163, we acknowledged that “whistleblowing,” or the reporting of criminal or unlawful activity to superiors or outside agencies, plays an invaluable role in society. Id. ¶ 12, 621 N.W.2d at 167. While noting that other courts have recognized that employees should not be deterred, but rather encouraged to report unlawful workplace activity if acting in good faith with probable cause, id. (citing Palmateer v. International Harvester Co., 85 Ill.2d 124, 52 Ill.Dec. 13, 421 N.E.2d 876, 880 (1981); Wagner v. City of Globe, 150 Ariz. 82, 722 P.2d 250, 257 (1986)), we held “that only whistle-blowing which promotes the public good is protected by the public policy exception.” Id. ¶ 12, 621 N.W.2d at 167. First Century concedes, and for purposes of this analysis we will assume, that Anderson acted not out of any self-serving motivation, but rather in good faith as a whistleblower acting out of concern for the credit union and its members. Though criminal charges were never filed against Handel, ultimately the First Century board of directors commissioned a second audit to review the suspect accounts and two federal agencies conducted on-site investigations when apprised of Anderson’s allegations. Thus, we will also assume for this analysis that Anderson had sufficient reason to believe Handel was conducting criminal or wrongful activity.

The Wrongful Discharged Claim

[¶ 20.] Since Anderson voluntarily resigned from his position with First Century, his wrongful discharge claim is based on a theory of constructive discharge. Anderson claims that he believed his work environment at First Century was intolerable because of his knowledge of suspicious account activity involving Handel and the tense atmosphere she was creating. He further claims that he put First Century on notice as to Handel’s suspicious activity and that the credit union failed to take adequate corrective action. Consequently, Anderson contends he had no hope that the intolerable work environs would be rectified and that he was thus left with no alternative but to resign, which First Century should have reasonably foreseen. Anderson also bases his claim that he was forced to resign on his belief that he would have been terminated on July 1, 2002, due to the allegations he had raised against Handel. Though Anderson indicated in his deposition testimony that he did not at the time believe he was about to be fired, Anderson now asserts that the July 1, 2002, revelation that Handel was aware that he had reported his suspicions about her to Thompson, placed him in fear for his employment. Coupling what he considered to be Thompson’s withdrawal of support and his perceived eminent termination with his knowledge of Handel’s activities and his own belief that his continued employment with First Century under the circumstances constituted tacit approval of Handel’s actions, Anderson argues that he had no alternative but to resign, thus, constituting wrongful discharge on a theory of constructive discharge.

[¶21.] This Court has not previously considered the merits of a wrongful discharge or termination based on the theory of constructive discharge. Therefore, it is instructive to examine case law from the federal courts and other jurisdictions.

[1122.] “An employee has been constructively discharged ‘when an employer, through action or inaction, renders an employee’s working conditions so intolerable that the employee essentially is forced to terminate [his] employment.’ ” Turner v. Honeywell Federal Mfg. Technologies, LLC, 336 F.3d 716, 724 (8th Cir.2003) (quoting Hunt v. Missouri, Dep’t of Corrections, 297 F.3d 735, 744 (8th Cir.2002) (citing Henderson v. Simmons Foods, Inc., 217 F.3d 612, 617 (8th Cir.2000))). Thus, a constructive discharge theory of liability allows an employee to sue for wrongful discharge even after the employee voluntarily resigns. MacGregor v. Mallinckrodt, Inc., 373 F.3d 923, 928 (8th Cir.2004) (citing Tidwell v. Meyer’s Bakeries, Inc., 93 F.3d 490, 494 (8th Cir.1996)).

[¶23.] The court in Phillips v. Taco Bell Corp., 156 F.3d 884 (8th Cir.1998), set out a standard for assessing constructive discharge claims:

Constructive discharge occurs “when an employer deliberately renders the employee’s working conditions intolerable and thus forces [her] to quit [her] job.” Johnson v. Bunny Bread Co., 646 F.2d 1250, 1256 (8th Cir.1981). See also Bergstrom-Ek v. Best Oil Co., 153 F.3d 851 (8th Cir.1998). The employer’s actions must have been intended to force the employee to quit, meaning the employee’s resignation must be a reasonably foreseeable consequence of the employer’s discriminatory actions. Allen v. Bridgestone/Firestone, Inc., 81 F.3d 793, 796 (8th Cir.1996) (citing Hukkanen v. International Union of Operating Engineers, 3 F.3d 281, 285 (8th Cir.1993)). See also Tidwell v. Meyer’s Bakeries, Inc., 93 F.3d 490, 494 (8th Cir.1996) (“To constitute a constructive discharge, the employer must deliberately create intolerable working conditions with the intention of forcing the employee to quit and the employee must quit.”). In addition, to prove she has been constructively [discharged], a plaintiff must demonstrate that a reasonable person would find the working conditions intolerable. Allen, 81 F.3d at 796. Such intolerability of working conditions is judged by an objective standard, not the plaintiffs subjective feelings. Id. Finally, to be reasonable “ ‘an employee has an obligation not to assume the worst and not to jump to conclusions too quickly. An employee who quits without giving [her] employer a reasonable chance to work out a problem has not been constructively discharged.’ ” Summit v. S-B Power Tool, 121 F.3d 416, 421 (8th Cir.1997) (quoting Tidwell, 93 F.3d at 494). See also Coffman v. Tracker Marine, L.P., 141 F.3d 1241, 1247 (8th Cir.1998).

Id. at 890.

[¶ 24.] While Anderson may have believed that the conditions of his employment were intolerable, this is not the standard by which intolerability is determined. See Phillips, 156 F.3d at 890 (citing Allen, 81 F.3d at 796 (stating an objective standard by which the intolerability of employment conditions are assessed for purposes of establishing constructive discharge)); see also Bristow v. Daily Press, Inc., 770 F.2d 1251, 1255 (4th Cir.1985), cert. denied, 475 U.S. 1082, 106 S.Ct. 1461, 89 L.Ed.2d 718 (1986) (recognizing that the law does not permit an employee’s subjective perceptions to underlie a claim of constructive discharge because to do otherwise would be to enable an employee to base such a claim on unreasonable sensitivity to his work environs) (citation omitted). In the instant case, the undisputed material facts do not objectively evince the intolerable working conditions that must be present to establish constructive discharge.

[¶ 25.] As evident from decisions in other jurisdictions, Anderson’s belief that his knowledge of Handel’s alleged wrongful activities coupled with his view that he was demonstrating tacit approval of her actions by his continued employment does not evince the intolerable working conditions required to establish constructive discharge. In Turner v. Anheuser-Busch, Inc., 7 Cal.4th 1238, 32 Cal.Rptr.2d 223, 876 P.2d 1022 (1994), the court considered the constructive discharge claim of an employee/whistleblower who reported the illegal activities of coworkers. The employee argued that the presence of illegal activity in the workplace was enough to constitute an intolerable work condition. Id. at 1031. In rejecting this argument, the court stated:

The mere existence of illegal conduct in a workplace does not, without more, render employment conditions intolerable to a reasonable employee. Turner was not requested, let alone required, to participate in any of the illegal conduct he complains of.

Id. at 1032. See also Strozinsky v. School Dist. of Brown Deer, 237 Wis.2d 19, 614 N.W.2d 443, 464 (2000) (citing Turner acknowledging that “the mere presence of illegal conduct at the workplace does not render the environment intolerable”). However, intolerable conditions may arise when an employer requests or requires an employee to take part in illegal activity. Strozinsky, 614 N.W.2d at 464 (citing Smith v. Brown-Forman Distillers Corp., 196 Cal.App.3d 503, 241 Cal.Rptr. 916 (1987); Turner, 32 Cal.Rptr.2d 223, 876 P.2d at 1032). In the instant case, assuming for the sake of argument that Handel’s suspicious account activity amounted to illegal conduct, Anderson never alleges that anyone associated with First Century attempted to recruit him to conduct illegal activity.

[¶ 26.] Anderson also attempts to base his claim that the work environment at First Century was intolerable on his contention that during the time in question Handel’s demeanor created tension for him at’ the credit union. However, that any ill-temperament on Handel’s part was directed specifically at Anderson cannot be gleaned from the record. Quite to the contrary, Handel gave Anderson a favorable performance review in June 2002, less than one month prior to his resignation. It is also apparent that Handel was not aware that Anderson had reported his allegations about her to Thompson until June 28, 2002 — three days before Anderson’s resignation. Furthermore, Anderson’s fellow whistleblower, Perry, stated that to the extent there was tension in the workplace emanating from Handel, it was felt by all.

[¶ 27.] In Goldsmith v. Mayor and City Council of Baltimore, 987 F.2d 1064 (4th Cir.1993), an employee claimed constructive discharge arising from her reporting of alleged fiscal irregularities within a city government. Id. at 1067. In dismissing the employee’s assertion that the defendant had retaliated by subjecting her to an intolerable work atmosphere, the court noted:

Every job has its frustrations, challenges and disappointments; these inhere in the nature of work. An employee is protected from a calculated effort to pressure him into resignation through the imposition of unreasonably harsh conditions, in excess of those faced by his co-workers. He is not, however, guaranteed a working environment free of stress.

Id. at 1072 (quoting Bristow, 770 F.2d at 1255, cert. denied, 475 U.S. 1082, 106 S.Ct. 1461, 89 L.Ed.2d 718) (emphasis added). Relating this rationale to the instant case, we note that Anderson was unable to show that Handel singled him out for ill-treatment. If anything, the record reflects nothing more than a general atmosphere of tension, for which all at the credit union were exposed. Therefore, Anderson’s assertion that the work environment at the credit union was intolerable falls short;

[¶ 28.] There is also nothing in the record to indicate that First Century did anything deliberate in an attempt to render Anderson’s working conditions intolerable. See Phillips, 156 F.3d at 890 (quoting Johnson, 646 F.2d at 1256; citing Allen, 81 F.3d 793, 796) (recognizing that to establish constructive discharge the employer must act with an intent to force the employee to quit). Anderson alleges no condemnations, threats or reprisals of any kind arising out of his disclosure of Handel’s activities. No one with First Century told Anderson that he should not have reported his suspicions about Handel. No one told him to resign or that he was going to be terminated, demoted or disciplined. In short, no one, on First Century’s behalf, retaliated against Anderson in any way for reporting his concerns about Handel.

[¶ 29.] Unable to show that anyone associated with or on behalf of First Century carried out any affirmative acts of retribution against him, Anderson argues that Thompson, on notice of Handel’s suspicious activities, failed to conduct an adequate investigation of Handel with the foreseeable consequence that Anderson would resign. Phillips, 156 F.3d at 890 (citing Allen, 81 F.3d 793, 796); see also Kimzey v. Wal-Mart Stores, Inc., 107 F.3d 568, 574 (8th Cir.1997) (citing Winbush v. State of Iowa by Glenwood State Hosp., 66 F.3d 1471, 1485 (8th Cir.1995)) (recognizing that there is constructive discharge when an employee quits due to a reasonable belief that there is no chance for fair treatment). In fact, Anderson suggests that having received the report of Handel’s activities, Thompson did nothing. Phillips, 156 F.3d at 890 (citing Summit, 121 F.3d at 421 (quoting Tidwell, 93 F.3d at 494 (holding that an employee, to have a reasonable basis to pursue a constructive discharge claim, must not “assume the worst [or] jump to conclusions tpo quickly”))). A review of the record reveals that this suggestion is fallacious.

[¶ 30.] Thompson did not have four months to ponder Handel’s account activities as did Anderson and Wickre. Notwithstanding the reason they chose to sit on that information from January 2002 until they informed Thompson on or about May 22, 2002, the end result was that Thompson was hit cold with serious allegations of misconduct involving Handel — the trusted president and CEO of First Century with over twenty years of employment history at the credit union.

[¶31.] Though it is unclear exactly what Anderson expected Thompson to do, it is clear that Thompson took the reasonably prudent steps that anyone in his position would have under the circumstances. Thompson contacted NCUA examiner, Wirt, to discuss the allegations. Wirt, who had just conducted the agency’s on-site audit of the bank, left Thompson with the impression that the allegations were without merit and not of concern. Still, Thompson took additional steps in an attempt to confirm the veracity of the allegations against Handel. Thompson contacted Warren Anderson to discuss the issue, but was unaware that he had recently resigned from the First Century board of directors and thus was unable to discuss the matter. He then contacted Eide-Bailly auditor, Terveen. Terveen, who had also conducted a recent on-site audit of the credit union, uncovered no suspicious employee account activity during his review.

[¶ 32.] Rather than dispensing with the matter at this point, Thompson, in an effort to continue the inquiry, contacted Anderson to request the identities of others that Handel had been using in her alleged scheme. Anderson and Wickre had knowledge of these identities, but had chosen not to divulge them earlier to Thompson. The two finally delivered this information to him on June 20, 2002— almost a full month after Thompson was apprised of Anderson and Wickre’s allegations. Unfortunately, Thompson, a volunteer director for First Century, was unable at that time to review the additional information because he was leaving town that same day.

[¶ 33.] Although Thompson did not initiate a contact with other current First Century directors to discuss the allegations against Handel, on June 28, 2002, the matter did come to the attention of Thompson’s fellow directors, Grunewaldt and DeVaney. A special meeting of the First Century board of directors was scheduled for July 1, 2002, exactly for the purpose of considering the allegations against Handel. Incredibly, upon hearing this news Anderson resigned stating, “I’m not going to put up with this another day.” In fact, if Anderson had put up with it for one more day, he would have found that the board of directors, on the strength of his allegations, decided at the special meeting to ask Eide-Bailly to come back and conduct a second audit — this time to review specific account activity.

[¶ 34.] Anderson argues that he gave First Century a reasonable chance to rectify the problems he perceived at the credit union. See Phillips, 156 F.3d at 890 (citing Summit, 121 F.3d at 421 (quoting Tidwell, 93 F.3d at 494 (holding that there is no constructive discharge where an employee fails to give an employer a reasonable chance to rectify a problem before resigning))). Anderson avers that given this reasonable chance to address his concerns, Thompson, on behalf of First Century, conducted a wholly inadequate investigation and failed to keep him informed as to any progress. But see Coffman, 141 F.3d at 1247 (holding that a former employee, claiming constructive discharge, had no right to dictate the manner in which her employer sought to rectify the problem leading to her resignation). However, where Anderson had four months to consider Handel’s account activity, Thompson had little more than five weeks from May 22, 2002, to verify the allegations against Handel of which he was previously unaware. Further, Anderson complicated Thompson’s inquiry by providing him piecemeal information relevant to the inquiry. Finally, Anderson gave his resignation on the very day that the entire First Century board met to consider his allegations against Handel and decided to commission an audit to look into the same. Viewed in a light most favorable to Anderson, First Century did not have a reasonable opportunity to investigate the allegations against Handel and take corrective action.

[¶ 35.] Anderson’s assertion that he was about to be terminated for his allegations against Handel, thereby justifying his July 1, 2002, resignation and claim of constructive discharge, is also unsupported by the facts. Anderson’s assertion that his termination was imminent is mainly attributable to his belief that Thompson’s July 1, 2002, statement, “You do what you think you have to do” made in response to his threat of resignation, constituted a withdrawal of Thompson’s support. Anderson’s assertion is simply not born out by the facts. First, rather than dismissing Anderson’s allegations, the First Century board of directors decided to have another audit conducted to look into the suspect accounts. Second, Handel asked Anderson to reconsider his resignation pri- or to the board of directors meeting. A tearful Handel even went so far as to plead with Anderson’s fellow whistleblower, Perry, to reconsider his own resignation. Third, Anderson points to Wickre’s dismissal by Handel, following the directors’ meeting, as evidence that he too was about to be fired. However, Wickre’s dismissal did not occur until after Anderson’s resignation and Wickre’s dismissal was a for-cause termination for taking account information off the credit union premises in violation of First Century policy. Finally, Anderson’s own deposition testimony belies his assertion that he was about to be terminated. See note 4, supra (indicating Anderson did not believe on July 1, 2002, that he was about to be terminated).

[¶ 36.] Our review of tort law establishes that the claim of constructive discharge has been generally applied in cases where intolerable work environs arise out of sexual harassment and various types of discrimination. On appeal, Anderson asks us for a holding that would constitute a radical departure from established law on constructive discharge. We decline his request. Viewed in a light most favorable to Anderson, we find no genuine issues as to material facts nor error in the circuit court’s application of relevant law to those facts. We, therefore, find no basis to reverse the circuit court’s grant of First Century’s motion for summary judgment as to Anderson’s wrongful discharge claim based on constructive discharge.

[¶ 37.] 2. Whether the circuit court erred in granting First Century’s motion for summary judgment as to Anderson’s claim of intentional infliction of emotional distress.

[¶ 38.] In South Dakota a prima facie case of intentional infliction of emotional distress requires the plaintiff to make a showing of the following elements: (1) an act by the defendant amounting to extreme and outrageous conduct; (2) intent on the part of the defendant to cause the plaintiff severe emotional distress; (3) the defendant’s conduct was the cause in-fact of plaintiffs distress; and (4) the plaintiff suffered an extreme disabling emotional response to defendant’s conduct. Nelson v. WEB Water Dev. Ass’n, Inc. 507 N.W.2d 691, 698 (S.D.1993) (citing Tibke v. McDougall, 479 N.W.2d 898 (S.D.1992) (citations omitted)).

[¶ 39.] As born out in the analysis of the first issue, there is no evidence that First Century carried out any extreme or outrageous acts against Anderson. There is absolutely no evidence in the record to indicate that First Century had any intention to cause Anderson severe emotional distress. Anderson does allude to various conditions including difficulty sleeping, irritability, a general feeling that he was not well and high blood pressure. However, his only evidence that these conditions were caused by First Century is the inconclusive deposition statement of his doctor, upon learning that he was experiencing stress at work, that work stress can cause high blood pressure. Finally, Anderson’s conditions are no more than ordinary and do not rise to the level necessary to sustain a claim of intentional infliction of emotional distress. Accordingly, the circuit court did not err in granting First Century’s motion for summary judgment as to Anderson’s claim of intentional infliction of emotional distress.

[¶ 40.] Affirmed.

[¶ 41.] KONENKAMP, ZINTER, and MEIERHENRY, Justices, concur.

[¶ 42.] SABERS, Justice, dissents.

SABERS, Justice

(dissenting).

[¶ 43.] The trial court erred in granting summary judgment. Summary judgment is a harsh remedy that rarely should be granted. Heib v. Lekrkamp, 2005 SD 98, ¶ 45, 704 N.W.2d 875, 889-90 (Sabers, J., dissenting) (noting summary judgment is an extreme remedy only to be used “when the truth is clear”); Richards v. Lenz, 539 N.W.2d 80, 83 (S.D.1995) (“Summary judgment is a drastic remedy, and should not be granted unless the moving party has established a right to a judgment with such clarity as to leave no room for controversy.”). It is not a substitute for a trial. Piner v. Jensen, 519 N.W.2d 337, 339 (S.D.1994) (citing Dahl v. Sittner, 429 N.W.2d 458, 461 (S.D.1988)). The court may not grant summary judgment simply because it believes the plaintiffs case will not succeed at trial. Wulf v. Senst, 2003 SD 105, ¶ 17, 669 N.W.2d 135, 141.

[¶ 44.] In a constructive discharge case, summary judgment should only be granted if there is “a complete absence of probative facts supporting plaintiffs’ position, such that no reasonable juror could have found that they had been constructively discharged .... ” Ogden v. Wax Works, Inc., 214 F.3d 999, 1005-06 (8th Cir.2000). Furthermore, summary judgment should rarely be granted in the area of discrimination. Crawford v. Runyon, 37 F.3d 1338, 1341 (8th Cir.1994). “Because discrimination cases often depend on inferences rather than on direct evidence, summary judgment should not be granted unless the evidence could not support any reasonable inference for the nonmovant.” Id.

[¶ 45.] In this case, the circuit court granted summary judgment despite the existence of genuine issues of material fact. In granting summary judgment, the court erroneously viewed the evidence in the light most favorable to First Century, instead of Anderson. All evidence and reasonable inference derived from it should be viewed in the light most favorable to the non-moving party. St. Onge Livestock Company, Ltd., v. Curtis, 2002 SD 102, ¶ 10, 650 N.W.2d 537 (quoting Mueller v. Cedar Shore Resort, Inc., 2002 SD 38, ¶ 10, 643 N.W.2d 56, 61-62); St. Paul Fire & Marine Ins. Co., v. Engelmann, 2002 SD 8, ¶ 15, 639 N.W.2d 192, 199 (“Not only must the facts not be in issue, but also there must be no genuine issue on the inferences to be drawn from those facts.”)- If the evidence is viewed using the proper standard, then we should reverse because there are genuine issues of material fact that a jury should decide.

[¶ 46.] Constructive discharge occurs “when an employer, through action or inaction, renders an employee’s working conditions so intolerable that the employee essentially is forced to terminate [his] employment.” Turner v. Honeywell Fed. Mfg. & Tech., L.L.C., 336 F.3d 716, 724 (8th Cir.2003) (additional citations omitted). A constructive discharge can occur if the employee “reasonably believes there is no chance for fair treatment....” Kimzey v. Wal-Mart Stores, Inc., 107 F.3d 568, 574 (8th Cir.1997). Anderson alleged sufficient facts for a reasonable jury to conclude that he was faced with an intolerable work environment and that First Century failed to conduct a prompt and adequate investigation to remedy the problem. Anderson reported Handel’s suspicious loan activity to Board member Thompson. Anderson claims Thompson did not take prompt and adequate corrective action. He alleges that Thompson only made phone calls to account examiners and asked them if any problems were noticed during the audits. However, the audits conducted in the past were insufficient to discover these specific allegations against Handel. Moreover, Thompson did not alert any other board member, did not speak with Handel or anyone else at First Century regarding the allegations, nor did he open the documents Anderson provided until July 1, 2002.

[¶ 47.] During the course of Thomson’s “investigation” Anderson was kept in the dark and had to continue working for Handel. There was testimony the office environment was “intense.” Anderson had to worry the company would think he was angling for Handel’s job, disbelieve his intentions and fire him. This was not over a couple days, but over a six week period. There is evidence that Handel and others knew of Anderson’s allegations and had informed other board members that he was conspiring against her to get her job.

[¶ 48.] There is evidence Anderson thought he could be fired. He testified Thompson told him, “heads were going to roll” and “s* *t was going to hit the fan.” While he testified that it was Handel’s head that was going to roll, he later indicated that he panicked and thought the head that was going to roll could have been his own. Whether his fear of “being fired” and of “having his head roll” were reasonable are genuine issues of material fact for the jury, not the judge. The jury should be allowed to weigh the evidence and testimony in order to determine whether Anderson reasonably suffered from an intolerable work environment and feared for his job.

[¶ 49.] Furthermore, when he asked for assurances and support from Thompson regarding his job and potentially resigning, Thompson replied “You do what you gotta do. Just tell her why.” Deposition of Anderson, p. 30, lines 5-25; p. 31, lines 1-3, Anderson v. First Century Fed. Credit Union, (No. 24164). There are several sufficient facts that, if viewed in the light most favorable to Anderson, create genuine issues of material fact for the jury to decide.

[¶ 50.] Instead of viewing the facts in the light most favorable to Anderson, the circuit court decided genuine issues of material fact against Anderson. The circuit court concluded that absent direct threats of termination, Anderson should have waited for termination. It also stated that Anderson should have waited longer before resigning or waiting until the board meeting on July 1, 2002. Furthermore, it noted that it believed Anderson was angling for Handel’s job. The circuit court noted:

I just don’t understand why he didn’t wait. What was the harm for waiting one more day to find out what the Board was going to do? State his case. Then find out whether or not there really was an intimidating work environment there or whether or not he was going [to] have the support of the Board. Certainly nothing that Mr. Thompson had done up to that point had indicated in any way, shape, or form that he was going to hang Mr. Anderson out to dry.

Brief of Appellant, p. 13, Anderson (No. 04-2192) (quoting Transcript of Summary Judgment hearing p. 29-30). These findings were made by viewing the facts in the light most favorable to First Century, not to- Anderson as required. In fact, the circuit court erred in making findings favorable to First Century during summary judgment.

[¶ 51.] The jury should determine the ultimate question — whether Anderson was subject to constructive discharge. The jury should determine whether Anderson’s work environment was so intolerable that a reasonable person in that employee’s position would have felt compelled to resign. It is the function of the jury to determine whether Anderson’s actions were reasonable. This case should be reversed and remanded in order for the jury to determine the questions of fact.

      . The NCUA is the federal agency that charters and supervises federal credit unions and insures savings in federal and most state-chartered credit unions across the country through the National Credit Union Share Insurance Fund, a federal fund backed by the full faith and credit of the United States government. www.ncua.gov (last visited January 25, 2007).

      . During his deposition Perry stated everyone in the credit union felt the tension in the workplace.

      . Handel actually gave Anderson a favorable performance review in June 2002.

      . During his deposition, while discussing the events surrounding the July 1, 2002, phone call with Thompson, Anderson engaged in the following exchange when questioned about whether he was in fear of losing his own job upon hearing from Thompson that morning:
      A: I guess I wasn't [in fear of losing my job],
      Q: You just said you were.
      A: Well, I guess I was thinking we were finally going to get to the bottom of [Handel's suspicious activities] here that week.

      . In recounting the episode during his deposition, Perry stated:
      [Handel] started crying. She said, "You don't need to resign.” She made a comment, "Yes, maybe I have been gambling a little, but if you notice, I quit two or three weeks ago.” I said that I still felt I needed to. She cried some more, requested that I stay on.

      .The documents that were the subject of Wickre’s dismissal were those that included the account information Wickre delivered to Thompson's place of business on June 20. A point of contention between Anderson and Thompson has been whether, as claimed by Thompson, he requested only the names of those that Handel was using in the alleged scheme or whether in addition he requested delivery of the account information associated with the names.

      . In addition to the NCUA, the FBI came to the credit union to conduct their own investigation of potential fraudulent activity involving Handel.

      . For the record, Handel died in a June 2003 propane explosion at the home she shared with Haacke in Crooks, SD. John-John Williams, Cut Line Caused Explosion: cable installers damaged pipe; propane leaked into house, S.F. Argus Leader, June 5, 2003, § B, pi., col. 2.

      . Anderson's view that his continued employment at First Century constituted tacit approval of Handel's activities is untenable in light of his well-documented efforts to bring her activity to the attention of the highest echelons of the credit union prior to his resignation.

      . Anderson argues that his resignation was a foreseeable outcome of his alleged intolerable work environs because he offered it on each occasion that he spoke to Thompson after and during his disclosure of the allegations against Handel. However, this is at odds with his assertion and earlier deposition testimony that his pre-July 1, 2002, offers to resign were intended to demonstrate that he was acting as a bona fide "whistleblower” and not merely out of a motivation to assume Handel’s job.

      . During his deposition, Thompson stated that Handel had been employed by First Century for over twenty-one years. She became president and CEO of the credit union in 1994. During her tenure as senior officer, she guided First Century through a successful turn-around following a bankruptcy that the credit union had entered before she became president and CEO. Thompson also indicated that Handel was well respected in the credit union industry and that she had a great rapport with the First Century membership.

      . During his deposition, Thompson indicated that Wirt, in addition to stating that further NCUA review would not be required, responded to the allegations by stating "I think you may just have a disgruntled employee.”

      . We note that Anderson failed to include his doctor's deposition testimony in the record and thus we would not in any event consider references to such in deciding this case.


source: Caselaw Access Project

author: ZINTER, Justice.

license: Public Domain

text:
    2007 SD 78
    STATE of South Dakota, Plaintiff and Appellant, v. Wayne L. DUCHENEAUX, Defendant and Appellee.
    No. 24304.
    Supreme Court of South Dakota.
    Considered on Briefs on May 21, 2007.
    Decided July 25, 2007.

      Lawrence E. Long, Attorney General, Katie L. Hansen, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellant.
    Joseph M. Kosel of Johns & Kosel, Prof. L.L.C., Lead, South Dakota, Attorneys for defendant and appellee.
   ZINTER, Justice.

[¶ 1.] Wayne Ducheneaux was charged with driving while under the influence (DUI). A Part II Information alleging that this was a third DUI offense was also filed. The circuit court granted Duche-neaux’s motion to strike the Part II Information. The State appeals. We reverse.

[¶ 2.] Ducheneaux was arrested in 2006 for driving with a blood alcohol content of 0.08 or more. He was alternatively charged with DUI under SDCL 32-23-1(1) and (2). The State’s attorney also filed a Part II Information alleging that Duche-neaux had two prior DUI convictions. One of the prior offenses was a 2003 Colorado conviction for driving while ability impaired (DWAI). Ducheneaux moved to strike the Part II Information on the ground that the Colorado conviction was not substantially similar to the elements of South Dakota’s DUI statute, and therefore, could not be considered a prior offense under SDCL 32-23-4.5. The circuit court granted the motion to strike and the State appeals raising one issue:

Whether a conviction under Colorado’s driving while ability impaired statute could be considered a prior driving under the influence offense under SDCL 32-23-4.5.

We review such questions of statutory interpretation de novo. State v. Asmussen, 2006 SD 37, ¶ 12, 713 N.W.2d 580, 586.

[¶ 3.] Under SDCL 32-23-4.5, any pri- or offense committed by a defendant in any state in the past ten years may be considered a prior offense as long as it would have been a violation of SDCL 32-23-1 if committed in this State:

Any conviction for, or plea of guilty to, an offense in another state which, if committed in this state, would be a violation of § 32-23-1, and occurring within ten years prior to the date of the violation being charged, shall be used to determine if the violation being charged is a second, third, or subsequent offense.

SDCL 32-23-1(2) defines the elements of DUI in South Dakota:

No person may drive or be in actual physical control of any vehicle while:
(2) Under the influence of an alcoholic beverage, marijuana, or any controlled drug or substance not obtained pursuant to a valid prescription, or any combination of an alcoholic beverage, marijuana, or such controlled drug or substance[.]

The comparable Colorado statute defines the elements of DWAI as:

(b) It is a misdemeanor for any person who is impaired by alcohol or by one or more drugs, or by a combination of alcohol and one or more drugs, to drive any vehicle in this state....
(g) “Driving while ability impaired” means driving a vehicle when a person has consumed alcohol or one or more drugs, or a combination of both alcohol and one or more drugs, which alcohol alone, or one or more drugs alone, or alcohol combined with one or more drugs, affects the person to the slightest degree so that the person is less able than the person ordinarily would have been, either mentally or physically, or both mentally and physically, to exercise clear judgment, sufficient physical control, or due care in the safe operation of a vehicle.

Colo.Rev.Stat. 42 — 4—1301(l)(b) and (g).

[¶ 4.] Although the South Dakota statute does not define the under the influence offense in detail like the Colorado DWAI statute, this Court has often stated the elements of “under the influence,” within the meaning of SDCL 32-23-1(2) as follows:

[T] his phrase covers “not only all well known and easily recognized conditions and degrees of intoxication, but any abnormal mental or physical condition which is the result of indulging in any degree in alcoholic liquor and which tends to deprive [the defendant] of that clearness of intellect and control of himself which [the defendant] would otherwise possess.” State v. Hullinger, 2002 SD 83, ¶ 14, 649 N.W.2d 253, 259 (quoting State v. Masteller, 86 S.D. 514, 517, 198 N.W.2d 503, 505 (1972) (emphasis added)). Therefore, it is not required that a defendant display the easily observable signs of impairment such as staggering or slurred speech. Rather, any abnormal mental or physical condition that deprives an individual of the clearness of intellect and self control that they would otherwise possess will suffice.

State v. Motzko, 2006 SD 13, ¶ 8, 710 N.W.2d 433, 437 (emphasis in original). See also State v. Dale, 66 S.D. 418, 421-422, 284 N.W. 770, 771-772 (1939); State v. Vandergrift, 1997 SD 5, ¶ 7, 558 N.W.2d 862, 863. Considering this definition, the elements of SDCL 32-23-1(2) are substantially similar to the elements of Colo.Rev. Stat. 42 — 4—1301(l)(g). They are substantially similar because, like our common-law definition, the Colorado statute only requires that the alcohol “affeet[s] the person to the slightest degree so that the person is less able than the person ordinarily would have been, either mentally or physically, or both mentally and physically, to exercise clear judgment, sufficient physical control, or due care in the safe operation of a vehicle.” Colo.Rev.Stat. 42-4-1301(g).

[¶ 5.] The circuit court incorrectly focused on considerations that are not relevant to determining whether the elements of Colorado’s DWAI statute are substantially similar to South Dakota’s DUI statute. The court noted differences between the blood alcohol content statutes in Colorado and South Dakota and Colorado’s different evidentiary inferences arising from blood alcohol levels. The court also noted that DWAI is a lesser included DUI offense in Colorado. However, SDCL 32-23-1(2) does not involve a blood alcohol content, and the lesser included offense analysis is not relevant in determining whether the elements of Colorado’s DWAI statute are substantially similar to the elements of South Dakota’s DUI statute.

[¶ 6.] Because the elements of Colo. Rev.Stat. 42-4-1301(l)(g) are substantially similar to SDCL 32-23-1(2), the Colorado conviction can be considered a prior offense in Ducheneaux’s Part II Information.

[¶ 7.] Reversed and remanded for proceedings consistent with this opinion.

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


author: SABERS, Justice.

text:
    2007 SD 77
    STATE of South Dakota, Plaintiff and Appellee, v. Margaret DILLON, Defendant and Appellant.
    No. 24027.
    Supreme Court of South Dakota.
    Considered on Briefs May 21, 2007.
    Decided July 25, 2007.

      Lawrence E. Long, Attorney General, Frank Geaghan, Assistant Attorney General, Pierre, South Dakota, Attorneys for plaintiff and appellee.
    Sandy J. Steffen, Gregory, South Dakota, Attorney for defendant and appellant.
   SABERS, Justice.

[¶ 1.] After the police entered the home of Margaret “Peggy” Dillon (Dillon) claiming exigent circumstances, they found evidence of marijuana use in plain view. Using this evidence, the police applied for and were granted a search warrant for the home. During this search, the police found 2.9 pounds of marijuana. A warrant for Dillon’s arrest and a search warrant for her urine were issued. After a positive urinanalysis indicated Dillon had ingested marijuana, she was charged with and found guilty of ingesting an intoxicant other than an alcoholic beverage. She appeals and we affirm.

FACTS

[¶ 2.] Around 2 a.m. on November 28, 2004, Chief Deputy Sheriff Dustin Baxter of the Mellette County Sheriffs Office responded to a reported stabbing in Horse Creek Housing near White River, South Dakota and a request to render first aid. Once there, he found Derek Rattling Leaf had been stabbed twice in the upper torso and once in the hip. When asked, Rattling Leaf indicated the stabbing had occurred in White River at the Dillon residence. Dillon rented the residence, but she did not live there. She lived with her boyfriend outside of White River, while Dillon’s son, Travis Brandis, lived at the rental home along with Susan Beckers and Layne Arrow, among others.

[¶ 3.] Due to a call from Winner, South Dakota dispatch regarding a disturbance at the Dillon home, Chief Deputy Baxter learned Deputy Justin Hooper was at the residence. Chief Deputy Baxter proceeded to the Dillon residence. According to Chief Deputy Baxter, he went to help Deputy Hooper because he was unsure if Deputy Hooper knew a stabbing had just occurred there and was concerned for his safety.

[¶ 4.] Meanwhile, Deputy Hooper spoke with Susan Dillon and Susan Becker, who were outside the Dillon residence and appeared to be arguing with each other. The women told Deputy Hooper that Gilbert Rattling Leaf, the stabbing victim’s brother, was inside, intoxicated and trying to fight. Deputy Hooper went inside the Dillon residence and spoke with Gilbert. Upon questioning, Gilbert told Deputy Hooper that Courtney Krogman was the one who had stabbed his brother Derek.

[¶ 5.] Deputy Hooper went upstairs to speak with Krogman. He noticed two spots of blood on the stairwell inside the Dillon residence. While the two were speaking, Chief Deputy Baxter arrived and took Krogman outside. According to Chief Deputy Baxter, Krogman implicated Layne Arrow in Derek’s stabbing. The deputies began looking for Layne Arrow.

[¶ 6.] Shortly thereafter, the deputies learned Layne Arrow was a second stabbing victim and he was at his sister’s house. When the deputies questioned Arrow’s sister, she confirmed he had been stabbed but had left her house. The deputies were informed that Arrow was inside the Dillon residence and he was with the person who stabbed him, so they returned to the residence.

[¶ 7.] At some point in the night, the officers requested the assistance of the South Dakota Division of Criminal Investigation (DCI). The deputies were joined by DCI Agent Shannon Riter at the Dillon residence. The three knocked on the door, announced their presence, and attempted to get someone to open the door. According to Chief Deputy Baxter, they heard a male voice and people moving around in the house, but nobody would answer the door. Chief Deputy Baxter testified he was “eoneern[ed] for the safety of Layne Arrow” so they entered the home.

[¶ 8.] While looking for Arrow, Chief Deputy Baxter looked behind a computer desk that was angled in such a way it could hide a person. He discovered “a bag with green stems and seeds, which appeared to be that of marijuana.” Next to this bag was a black and yellow bag that held more baggies. The officers did not find Arrow in the home, but took the bag of marijuana stems and seeds. Based on this evidence and Chief Deputy Baxter’s observations, the Mellette County Clerk of Courts issued a search warrant for the Dillon residence.

[¶ 9.] The search warrant was executed on December 10, 2004. During the search of the Dillon residence, officers discovered 2.9 pounds of marijuana and other drug paraphernalia. On December 11, Chief Deputy Baxter obtained a warrant for Dillon’s arrest and a search warrant for a urine sample from Dillon and others. She turned herself in to the Mellette County Sheriffs Office on December 14, 2004. Dillon’s urine sample tested “positive for cannabinoids ... components of marijuana.”

[¶ 10.] Initially, Dillon was charged with keeping a place for the use or sale of a controlled substance. On January 12, 2005, the State filed an amended complaint charging Dillon with keeping a place for the sale or use of a controlled substance; distribution of marijuana; possession of marijuana; and ingesting intoxicants other than an alcoholic beverage.

[¶ 11.] A preliminary hearing was held on January 19, 2004. At the preliminary hearing, the state’s attorney dismissed the charge of keeping a place for the sale or use of a controlled substance. The court found the State met its burden of demonstrating probable cause on the other charges in the amended complaint.

[¶ 12.] The State filed an Information on April 25, 2005, charging Dillon with distribution or possession with intent to distribute one pound or more of marijuana; possession of marijuana; and ingesting intoxicants other than an alcoholic beverage. Prior to trial, the State dismissed the distribution and possession charges. Therefore, the only charge at trial was the ingestion charge.

[¶ 13.] Dillon moved to suppress the evidence. A hearing was held and the trial court denied the motion and a jury trial started on September 16, 2005. However, that trial ended in a mistrial after one of the jurors informed the bailiff that she “was on the June trial ... they had the hearing for the stabbing.” Concerned she may have heard evidence that may not be included in this trial, the court granted a mistrial.

[¶ 14.] A second trial started on November 21, 2005. Dillon was found guilty of ingesting intoxicants other than an alcoholic beverage. She was sentenced on January 17, 2006, to one year in the Mel-lette County jail and all but thirty days of the sentence was suspended. Dillon appealed and this Court remanded on June 30, 2006 for entry of findings of fact and conclusions of law. In this appeal, Dillon raises the following issue:

"Whether exigent circumstances existed to justify the warrantless entry into the Dillon residence.

STANDARD OF REVIEW

[¶ 15.] Our review of a motion to suppress is de novo. State v. Sweedland, 2006 SD 77, ¶ 12, 721 N.W.2d 409, 412 (quoting State v. Chavez, 2003 SD 93, ¶ 13, 668 N.W.2d 89, 95) (additional citation omitted). Nonetheless, findings of fact made by the trial court are reviewed for clear error. Id. “Once the facts have been determined, however, the application of a legal standard to those facts is a question of law reviewed de novo.” Id. The issue of whether an exception to the warrant requirement applies is reviewed de novo. State v. Hess, 2004 SD 60, ¶ 9, 680 N.W.2d 314, 319.

[¶ 16.] Dillon claims that the necessary exigent circumstances did not exist on November 28, 2004, to enter the residence without a warrant. If exigent circumstances did not exist, then the marijuana observed in plain view cannot be the basis for the search warrant because the officers were not lawfully in the residence. See Horton v. California, 496 U.S. 128, 136, 110 S.Ct. 2301, 2308, 110 L.Ed.2d 112 (1990) (“It is, of course, an essential predicate to any valid warrantless seizure of incriminating evidence that the officer did not violate the Fourth Amendment in arriving at the place from which the evidence could be plainly viewed.”).

[¶ 17.] As we have previously noted, the Fourth Amendment to the United States Constitution and Article VI, section 11 of the South Dakota Constitution generally require a warrant prior to entering a home for the purpose of search and seizure. Sweedland, 2006 SD 77, ¶ 13, 721 N.W.2d at 412; Hess, 2004 SD 60, ¶ 22, 680 N.W.2d at 324. However, there are exceptions to the general warrant requirement. This case concerns the exigent circumstances exception. See Hess, 2004 SD 60, ¶ 24, 680 N.W.2d at 325. The State argued, and the trial court agreed, that exigent circumstances existed on November 28, 2004, that allowed the officers to enter the home without a warrant.

[¶ 18.] Exigent circumstances exist when “a situation demand[s] immediate attention with no time to obtain a warrant.” Id. ¶ 24. In determining whether exigent circumstances exist we ask, “Whether police officers, under the facts as they knew them at the time, would reasonably have believed that delay in procuring a search warrant would gravely endanger life, risk destruction of evidence, or greatly enhance the likelihood of a suspect[’]s escape.” Id. ¶ 25. The inquiry is one of objective reasonableness. Brigham City, Utah v. Stuart, — U.S. -, -, 126 S.Ct. 1948, 1948, 164 L.Ed.2d 650 (2006); United States v. Clement, 854 F.2d 1116, 1119 (8th Cir.1988). Furthermore, “[ejxigency remains “within the narrow range of circumstances that present real danger to the police or the public or a real danger that evidence or a suspect might be lost.’ ” State v. Lamont, 2001 SD 92, ¶ 22, 631 N.W.2d 603, 610 (quoting United States v. Bulman, 667 F.2d 1374, 1384 (11th Cir.1982)).

[¶ 19.] In 2006, the United States Supreme Court examined “whether police may enter a home without a warrant when they have an objectively reasonable basis for believing that an occupant is seriously injured or imminently threatened with such injury.” Brigham City, — U.S. at -, 126 S.Ct. at 1946, 164 L.Ed.2d 650. In Brigham City, the police were investigating a report of a loud party. Id. They heard shouting inside and saw two juveniles drinking beer in the backyard. Id. As they entered the backyard, they saw a fight occurring inside the home. Id. They observed an adult spitting blood into the sink and other adults attempting to restrain the juvenile that had hit the adult. Id. The police entered the home, announced their presence and arrested Stuart and others for contributing to the delinquency of a minor and other crimes. Id.

[¶20.] Stuart argued, and the Utah courts agreed, that the entry was not acceptable under either the “emergency aid doctrine” or the exigent circumstances exception. Id. at -, 126 S.Ct. at 1946-47, 164 L.Ed.2d 650. The Supreme Court, however, unanimously reversed finding “law enforcement officers may enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury.” Id. at -, 126 S.Ct. at 1947, 164 L.Ed.2d 650. It noted that “one exigency obviating the requirement of a warrant is the need to assist persons who are seriously injured or threatened with such injury.” Id. “ ‘The need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency.’ ” Id. (citing Mincey v. Arizona, 437 U.S. 385, 392, 98 S.Ct. 2408, 2413, 57 L.Ed.2d 290 (1978) (quoting Wayne v. United States, 318 F.2d 205, 212 (D.C.Cir.1963) (Burger, J.))); State v. Heumiller, 317 N.W.2d 126, 129 (S.D.1982) (additional citations omitted).

[¶ 21.] The Court rejected Stuart’s two attempts to avoid the exigent circumstances doctrine. First, Stuart argued the police were there primarily to make arrests not to render help, so the Court should deny the use of the exigent circumstances doctrine if the police were “primarily motivated by intent to arrest or seize evidence.” Brigham City, - U.S. at -, 126 S.Ct. at 1948, 164 L.Ed.2d 650. However, the Court noted that the officers’ subjective state of mind does not matter as long as the actions were reasonable when viewed objectively. Id. See Lamont, 2001 SD 92, ¶ 21, 631 N.W.2d 603, 610.

[ll22.] Next, Stuart argued, based on the decision in Welsh v. Wisconsin, 466 U.S. 740, 753, 104 S.Ct. 2091, 2099, 80 L.Ed.2d 732 (1984), that his conduct was not serious enough to warrant the intrusion. Brigham City, — U.S. at -, 126 S.Ct. at 1948-49, 164 L.Ed.2d 650. However, the Court explained his reliance on Welsh was incorrect. According to the Court, the entry into the home was plainly reasonable based on the officers’ objectively reasonable belief that the injured adult might need help and the violence could continue. Id. at -, 126 S.Ct. at 1949, 164 L.Ed.2d 650.

[¶ 23.] In this case, the trial court found that the officers possessed these facts:

1. An emergency existed as one person had already been stabbed three times, in the chest and torso area.
2. They were told Arrow had also been stabbed and was at his sister’s home.
3. Arrow’s sister confirmed he had been stabbed, but was no longer there.
4. Chief Deputy Baxter told Arrow’s sister that he wanted to find him so they could get him help and she did not say that he did not need medical help.
5. Susan Dillon would not initially tell Chief Deputy Baxter where Arrow was located. When told, “we have a bleeding person, you don’t want that on your head” she told the police Arrow was at the Dillon residence.
6. When the officers knocked and announced their presence at the Dillon residence, they heard a male voice and movement, but no one would open the door, despite repeated requests.
7. Based on concerns for Arrow’s safety, the officers entered the home.

[¶ 24.] Dillon claims the actions are not reasonable because Susan Dillon told Chief Deputy Baxter, the cut was not too bad and it was an accident. Furthermore, Dillon claims that two hours had elapsed since the phone call reporting the stabbing occurred, thus no emergency existed. It would be unreasonable to expect the police to believe Arrow was not really injured, stop their investigation and simply ignore the possibility he could be in need of some assistance of which Susan Dillon was not aware or not divulging. This is especially true when Susan Dillon had already lied to the officers about who had stabbed Rattling Leaf and tried to tell the police Rattling Leaf “had hit some glass on the stairwell and that’s where the blood came from.” Viewing these facts and the police actions using the objectively reasonable standard indicates exigent circumstances existed.

[¶ 25.] The officers had a man stabbed three times — twice in the upper torso and once in the hip. Investigation of this stabbing led them to and confirmed a second injured person. Just like the officers in Brigham City, “the officers had an objectively reasonable basis for believing that the injured adult might need help. ...’’See — U.S. at -, 126 S.Ct. at 1949, 164 L.Ed.2d 650. In this ease, the circumstances may warrant emergency entry more than the Brigham City case. In Brigham City, the officers could see the adult and determine his injury without entry into the home. Id. Here, the police officers could not see the victim and could only hear that someone was in the home and would not, or could not, answer the door.

[¶ 26.] Furthermore, Dillon argues that the actions were not reasonable because they had been observing her house for a while and the entry was a pretext in order to find drugs. It does not appear that the entry was a pretext. The trial court found the officers did not immediately go to the Dillon residence and instead went to Arrow’s sister’s house to look for him because that is where their investigation led. It noted that the entry would have been suspicious had the officers went directly to the Dillon residence, but instead, the police looked for Arrow instead of seizing the opportunity to enter the Dillon residence under the guise of helping or looking for Arrow.

[¶ 27.] In any event, we need not decide that claim. The subjective motivations for entry are irrelevant so long as the actions are reasonable when viewed objectively. Id. at -, 126 S.Ct. at 1948, 164 L.Ed.2d 650. See also Lamont, 2001 SD 92, ¶ 21, 631 N.W.2d at 610 (citing Arkansas v. Sullivan, 532 U.S. 769, 771-72, 121 S.Ct. 1876, 1878, 149 L.Ed.2d 994 (2001) (additional citation omitted) (“An objectively reasonable search based on probable cause will not be rendered invalid even when the motive for the search was pre-textual.”)). As noted above, the actions are objectively reasonable.

[¶28.] We agree with the trial court that exigent circumstances existed. As we noted in Lamont,

The spirit of the Fourth Amendment is reasonableness. Sitting in the sanctuary of our chambers with the advantage of hindsight, we may well analyze positions with exhaustive and clinical precision. But the officers acting in the wee hours of the night in the midst of their field investigation, with events changing and unfolding, had to use their best judgment in the moment. They were confronted with a difficult choice.

2001 SD 92, ¶ 38, 631 N.W.2d at 616. Entering the home without a warrant to check on and help a stabbing victim falls within the Fourth Amendment’s reasonableness standard. As the United States Supreme Court explains, “[I]t would be silly to suggest that the police would commit a tort by entering ... to determine whether violence (or threat of violence) has just occurred or is about to (or soon will) occur.... ” Georgia v. Randolph, 547 U.S. 103, 118, 126 S.Ct. 1515, 1525, 164 L.Ed.2d 208 (2006).

[¶ 29.] Dillon attempts to raise two issues under State v. Korth. 2002 SD 101, ¶ 17, 650 N.W.2d 528, 536. However, it is improper procedure to include a Part B section with client issues when counsel has identified an arguably meritorious issue. State v. Lems, 2005 SD 111, ¶ 7, 706 N.W.2d 252, n. 2. Therefore, these issues are not properly before this Court. Id.

[¶ 30.] Affirmed.

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

      . After speaking with Arrow’s sister, Chief Deputy Baxter received a call about a burglary and vehicle theft in Norris, South Dakota. According to Chief Deputy Baxter, he left Deputy Hooper to look for Arrow while Deputy Hooper handled the other call. He testified that some other officer handled the call before he made it to Norris and he returned to the Dillon residence around the same time Detective Hooper arrived at the residence.

      . The Fourth Amendment provides,
      The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

      . Article VI, section 11 provides:
      The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures shall not be violated, and no warrant shall issue but upon probable cause supported by affidavit, particularly describing the place to be searched and the person or thing to be seized.


text:
    2007 SD 85
    Mary C. LOWE, Plaintiff and Appellant, v. Karl M. SCHWARTZ, Defendant and Appellee.
    No. 24347.
    Supreme Court of South Dakota.
    Considered on Briefs May 21, 2007.
    Decided Aug. 8, 2007.

      Clark J. Bormann of Bormann & Myer-chin, LLP, Bismarck, ND, for appellant.
    Karl M. Schwartz, Sikeston, MO, pro se appellee.
   GILBERTSON, Chief Justice.

[¶ 1.] On August 23, 2006, Karl M. Schwartz (Schwartz) filed a motion in the South Dakota Fifth Judicial Circuit for relief from the circuit court’s October 17, 2005 order, compelling him to name his ex-wife, Mary C. Lowe (Lowe), as the beneficiary of and pay the premiums on a former-spouse-protection annuity related to his United States Coast Guard retirement plan. On August 28, 2006, Lowe filed a motion to amend a November 15, 2004 judgment and decree of divorce and order Schwartz to continue her beneficiary status and to increase alimony. The motions were heard on September 18, 2006, whereupon the circuit court granted Schwartz’s motion while denying Lowe’s. Findings of fact and conclusions of law, along with the order granting Schwartz’s motion for relief were entered on November 1, 2006. We affirm.

FACTS AND PROCEDURE

[¶2.] Schwartz and Lowe married in August 1997. Schwartz was a thirty-eight-year-old member of the Coast Guard and Lowe was a forty-six-year-old business consultant earning a substantial income. Schwartz had relatively few assets while Lowe had accumulated a net worth of about $365,000. Schwartz retired from the Coast Guard in April 1998. Lowe was the primary income earner, although Schwartz began collecting a modest retirement from the Coast Guard. In 2000, Lowe suffered a heart attack. The two separated later that year.

[¶3.] Forced to discontinue her business consultant activities following her heart attack, Lowe essentially began living off her accumulated assets. She filed for divorce in 2003. By May 28, 2004, the date of the trial on the divorce action, Lowe’s net worth had shrunk to about $80,000.

[¶ 4.] The circuit court’s amended judgment and decree of divorce was filed on November 15, 2004. In the decree, Lowe was awarded permanent alimony of $135.00 per month from Schwartz’s $1359.00 monthly Coast Guard retirement pay so that she could receive healthcare benefits under the Coast Guard’s Continued Health Care Benefit Program (CHCBP). Schwartz was directed to complete whatever paperwork was necessary to establish Lowe’s coverage under the CHCBP while converting her from the Coast Guard’s survivor-benefit plan to a former-spouse-protection plan, for healthcare only. Consistent with this provision, the decree and underlying conclusion of law No. 7 expressly set out that Lowe was not entitled to survivor-beneficiary payments through the Coast Guard’s former-spouse-protection-annuity plan.

[¶ 5.] On May 2, 2005, Lowe filed a motion to vacate the divorce decree. The circuit court denied Lowe’s motion and the corresponding order was filed on June 23, 2005. Lowe appealed that order to this Court, entering notice on August 15, 2005. Pending review of that matter, Lowe filed an application to this Court for special relief seeking an order requiring Schwartz to continue Lowe’s survivor-beneficiary status under the former-spouse-protection-annuity plan. We granted Lowe’s application on October 11, 2005, and remanded to the circuit court for an order continuing Lowe’s status as a survivor-beneficiary. The circuit court’s order was entered on October 17, 2005. On June 7, 2006, in Lowe v. Schwartz, 2006 SD 48, 716 N.W.2d 777, we affirmed the circuit court’s order denying Lowe’s motion to vacate the judgment of decree and divorce.

[¶ 6.] On August 23, 2006, Schwartz filed a motion for relief from the October 17, 2005 order on the ground that the November 15, 2004 divorce decree, setting out that Lowe was not entitled to survivor benefits, was affirmed by Lowe. On August 28, 2006, Lowe filed a motion to amend the divorce decree by increasing the amount of permanent alimony, on the ground there had been a change of circumstances, and to continue her status as a survivor beneficiary.

[¶ 7.] On September 18, 2006, the circuit court ruled from the bench denying Lowe’s motion and granting Schwartz’s motion for relief. The circuit court’s bench ruling was incorporated into its findings of fact and conclusions of law which, along with its order, was filed on November 1, 2006.

[¶ 8.] Lowe appeals raising two issues:

1. Whether the circuit court abused its discretion by not increasing Lowe’s alimony.
2. Whether the circuit court erred by not ordering Schwartz to continue Lowe’s status as a survivor beneficiary of the Coast Guard’s former-spouse-protection-annuity plan.

STANDARD OF REVIEW

[¶ 9.] A circuit court’s decision regarding whether to modify an alimony award is reviewed under the abuse of discretion standard. Jameson v. Jameson, 1999 SD 129, ¶ 13, 600 N.W.2d 577, 581 (citation omitted). “An abuse of discretion is a discretion exercised to an end or purpose not justified by, and clearly against, reason and evidence.” Anderson v. Anderson, 2002 SD 154, ¶ 11, 655 N.W.2d 104, 107 (citation omitted). We review the circuit court’s findings of fact under the clearly erroneous standard and conclusions of law de novo. Roth v. Roth, 1997 SD 75, ¶ 7, 565 N.W.2d 782, 784.

ANALYSIS AND DECISION

[¶ 10.] 1. Whether the circuit court abused its discretion by not increasing Lowe’s alimony.

(3) [¶ 11.] Following a divorce decree, the circuit court may from time to time modify an award of support lasting for a lifetime or shorter duration, giving consideration for the parties’ change in circumstances, as provided by SDCL 25-4-41. Lowe argues that a change in her and Schwartz’s financial conditions since the November 15, 2004 divorce decree constitutes a change in circumstances, justifying an increase in her permanent alimony.

[¶ 12.] Permanent alimony is among several types of alimony recognized in South Dakota. See Sanford v. Sanford, 2005 SD 34, ¶ 24, 694 N.W.2d 283, 290.- Permanent alimony is distinguishable from other forms of alimony in that it is intended as an allowance for support and maintenance for such things as food, clothing, habitation and other necessaries. Fox v. Fox, 467 N.W.2d 762, 767 (S.D.1991) (citations omitted). Necessaries may include medical or health insurance coverage. Harding-Moyer v. Harding, 2000 SD 126, ¶ 12, 616 N.W.2d 899, 902.

[1Í13.] Although the specifics of permanent alimony are determined by the facts of each case, common to it are payments until death of the recipient or other significant event, such as remarriage, which terminates the need for continuing support. Sanford, 2005 SD 34, ¶ 24, 694 N.W.2d at 290. We have held that circuit courts have continuing jurisdiction to modify permanent alimony as circumstances may require. Saxvik v. Saxvik, 1996 SD 18, ¶ 11, 544 N.W.2d 177, 180. To justify modification, there must be a change of circumstances from that which existed at the time of the divorce decree. Id. ¶ 9, 544 N.W.2d at 179 (citations omitted). Although the change need not be substantial, mere proof of a change is insufficient to mandate modification. Id. ¶ 21, 544 N.W.2d at 182 (citation omitted). The party seeking modification bears the burden of proving a change of circumstances justifying modification. Id. ¶ 9, 544 N.W.2d at 179 (citations omitted).

[¶ 14.] While Schwartz’s monthly retirement pay had only changed from $1,359 to $1,452, Lowe presented evidence that his average monthly earned income had increased from between $2,200 and $2,500 at the time of the May 28, 2004 divorce trial to about $3,250 per month from January through August of 2006. Lowe also presented evidence showing her own monthly income, including alimony, since the divorce trial had fallen from $317 to $264 per month. While she submitted an exhibit showing her average monthly living expenses for 2006 totaled about $3,800, the exhibit did not include any information as to living expenses for the balance of 2004 or 2005. Since the divorce trial, Lowe’s net worth had continued to decline, falling from about $80,000 to $6,287. Over the same period, Schwartz’s debt had increased from $26,000 to $40,000.

[¶ 15.] Conclusion of law No. 6, underlying the November 15, 2004 divorce decree, states that Lowe is to receive, from Schwartz’s retirement, alimony of $135 per month “so that [she] can continue her health care benefits through the [CHCBP].” See note 1 supra (re. CHCBP eligibility criteria). Lowe testified at trial that her CHCBP premiums remained unchanged since the divorce decree at $311 per month.

[¶ 16.] The foregoing evidence was essentially acknowledged in the circuit court’s findings of fact from which it concluded there was an insufficient basis to grant Lowe’s motion for an increase in alimony. In so deciding, the circuit court also stated in its incorporated bench ruling and in conclusion of law No. 14 that it was aware at the time of the divorce decree that because of Lowe’s diminished earnings capacity, her net worth would continue to decline unless she was able to find other means of supplementing her income. The circuit court pointed out that it had taken that factor into account in determining the amount of alimony to award in the decree. See Saxvik, 1996 SD 18, ¶ 19, 544 N.W.2d at 182 (holding that recipient spouse’s increased income, post divorce settlement, was a factor considered at the time alimony was awarded and hence could not be relied on to support payor spouse’s petition to eliminate alimony when the change in recipient spouses earnings occurred); see also Foley v. Foley, 429 N.W.2d 42, 46 (S.D.1988) (observing that while five “ ‘significant and material’ changes in [the recipient spouse’s] circumstances” were fully anticipated by the trial court when it awarded support alimony, other changes in circumstances that justified modification of support were not anticipated). The following remarks from the bench are consistent with the circuit court’s conclusion that Lowe’s reduction in assets did not constitute circumstances justifying an alteration of the prior alimony award:

At the time I awarded alimony, I knew that her assets were declining and that they were going to continue to decline, and I took that into account when I made the alimony award at that time. So there has been no change in that. It hasn’t declined more rapidly than I anticipated or less rapidly. It has continued to decline at the rate that I anticipated.

[¶ 17.] The sole purpose the circuit court identified for granting Lowe alimony was to enable her to continue to receive healthcare benefits through the CHCBP. Evidence at the motions hearing revealed that the cost of Lowe’s healthcare benefit thereunder remained unchanged since the divorce decree. Compare with Foley, 429 N.W.2d at 46 (holding, in a case where unforeseen events circumvented the alimony-awarding court’s economic objectives for the recipient spouse, that “when the trial court imposes a decision upon the parties which is based upon certain assumptions, the courts should be available to modify the decision so that the intended goals of the original decision are met”). The record also evinces only slight changes to Schwartz’s retirement pay and Lowe’s monthly income. While Lowe avers that Schwartz has realized a substantial increase in earned income, any such increase appears to be inconsistent at best. Although Lowe’s net worth has declined since the divorce trial, the record reflects that it was declining at the time of the divorce decree, that the circuit court was cognizant of that fact when it granted alimony and that it was aware that it most likely would continue to decline. Considering the foregoing, we conclude that Lowe has not met her burden to prove changes that justify increasing alimony and thus, no abuse of discretion in the circuit court’s order denying the same.

[¶ 18.] 2. Whether the circuit court erred by not ordering Schwartz to continue Lowe’s status as a survivor beneficiary of the Coast Guard’s former-spouse-protection-annuity plan.

[¶ 19.] Lowe now for the second time on appeal seeks to compel Schwartz to continue her survivor-beneficiary status under the former-spouse-protection-annuity plan. As before, Lowe argues that since entitlement to healthcare benefits under the CHCBP is conditioned on, among other requirements, receipt of Coast Guard retiree pay or survivor benefits, her healthcare benefits will cease should Schwartz predecease her.

[¶ 20.] In Lowe, we reviewed the circuit court’s denial of Lowe’s motion to vacate the divorce decree that she had in part grounded on the survivor-beneficiary issue. 2006 SD 48, ¶ 7, 716 N.W.2d 777, 778-79. Following the divorce trial, Lowe failed to submit proposed findings of fact and conclusions of law or object to those proposed by Schwartz. Id. ¶ 16, 716 N.W.2d at 781-82. Hence, Lowe’s attack on the circuit court’s decision as to survivor-beneficiary status was couched in a motion premised in relief under SDCL 15 — 6—60(b)(1) that averred insufficient evidence underlying the circuit court’s corresponding findings of fact and conclusions of law. Id. ¶¶ 9,11, 716 N.W.2d at 779. The issue had been tried on the merits below. Id. ¶ 12, 716 N.W.2d at 779. We affirmed the circuit court because Lowe neglected to avail herself of the opportunity to raise her sufficiency of evidence argument by objecting to the findings of fact and conclusions of law. Id. ¶ 16, 716 N.W.2d at 781.

[¶ 21.] Lowe’s motion to amend the divorce decree in the instant case, as it pertains to the survivor beneficiary issue, is nothing more than an attempt to resurrect a matter that we have previously settled. Therefore, there was no error in the circuit court’s denial of her motion to amend as to the same, and we need give it no further consideration on appeal.

[¶ 22.] Affirmed.

[¶ 23.] ZINTER and MEIERHENRY, Justices, concur.

[¶ 24.] SABERS and KONENKAMP, Justices, concur in part and dissent in part.

SABERS, Justice

(concurring in part and dissenting in part).

[¶ 25.] I concur in Issue 2. I dissent in Issue 1 because the trial court incorrectly denied Lowe’s alimony modification request. While the trial court may have expected Lowe’s income would decrease at this rate, it does not follow that the alimony should not be modified. Contrary to the trial court’s conclusions of law, the combination of the decrease in Lowe’s net worth, the increase in Schwartz’s retirement pay, and the increase in Schwartz’s income do justify an alteration in the prior alimony award. Findings of Fact and Conclusions of Law 17, Lowe v. Schwartz, No. 03-81 (Walworth County). In this case, Lowe has demonstrated a change in circumstances and the initial alimony award should be modified. The trial court abused its discretion when it denied the modification.

[¶ 26.] The majority opinion claims that simply because the trial court expected Lowe’s net worth would decline means the alimony may not be modified because there is no change in circumstances. However, Lowe need not show a substantial change of circumstances in order to justify modification. Saxvik, 1996 SD 18, ¶ 9, 544 N.W.2d at 179. She need only demonstrate a change in circumstances sufficient to warrant modification. Id. She has. Lowe met this burden and the trial court abused its discretion when it failed to modify her alimony payments.

[¶27.] When the divorce decree was issued, Lowe had a net worth of $80,000. Her monthly income, including alimony payment, was $399, while Schwartz’s monthly income was $3,559 to $3,859. She has presented evidence that her net worth is now only $6,000, while Schwartz’s income has increased to $4,792. According to Lowe, Schwartz’s average earned and retirement income exceeds Lowe’s by seventeen times. Yet, the trial court refused to modify alimony because it had expected and estimated Lowe’s income would decline at such a rate. Lowe is now destitute with health problems while her ex-husband lives comfortably. The circumstances demand a modification of at least $500.00 per month.

[¶ 28.] Alimony is awarded after the court considers the circumstances of the parties, paying particular attention to certain factors. Fausch v. Fausch, 2005 SD 63, ¶ 17, 697 N.W.2d 748, 755. These factors are (1) length of marriage; (2) parties’ respective earning capacities; (3) the parties’ respective financial condition after the property division; (4) the parties’ respective age, health and physical condition; (5) the parties’ station in life or social standing; and (6) the relative fault of the parties in the termination of the marriage. Id. Here, just because the trial court expected her net worth would decrease, it ignored these factors when awarding alimony, especially factors 2, 3, 4, and 5. Lowe earns substantially less money than Schwartz, is in poor health while Schwartz is healthy and continues to earn money, and Lowe is basically destitute while Schwartz has seventeen times her income.

[¶ 29.] The trial court abused its discretion when it failed to modify Lowe’s alimony. Even if it expected Lowe’s net worth would decline, it cannot remove and insulate its decision concerning modification of alimony from appellate review. Even though the trial court expected the rate at which Lowe’s assets would decline, the current financial state and change in circumstances indicate modification of alimony is warranted. We should reverse and remand Issue 1 for a fair adjustment.

[¶ 30.] KONENKAMP, Justice, joins this special writing.

      . Information was provided to the circuit court that several criteria needed to be met before a former spouse could be covered under the CHCBP. A former spouse must not remarry before age fifty-five, must have been enrolled in the Coast Guard's health care program (TRICARE) for at least eighteen months prior to divorce, receives or is court ordered to receive a portion of the retired Coast Guard member’s retirement pay or is a recipient of the Coast Guard member’s surviv- or, annuity benefit. Lowe had been enrolled in TRICARE for more than eighteen months prior to the divorce and by the September 2006 motions hearing, she had reached age fifty-five and had not remarried.

      . Rather, the decree provided that Schwartz was free to designate a beneficiary.

      . Lowe contends, and it appears from the information provided to the circuit court in 2004, that a former spouse may continue to receive post-divorce, healthcare benefits as long as the former spouse receives a portion of the Coast Guard retiree’s retirement pay or is a recipient of survivor benefits following the retiree’s death. Since retirement payments end upon the death of a retiree, it appears that a former spouse's continued healthcare coverage is then conditioned upon the receipt of survivor beneficiary payments. Hence, the reason for Lowe’s motion to vacate the divorce decree and application to this Court for special relief pending appeal of the circuit court's order denying the motion.

      . In Sanford we summarized the various types of alimony and how they may be distinguished. 2005 SD 34, ¶ 24, 694 N.W.2d at 290. In addition to permanent alimony, we identified lump-sum alimony, restitutional or reimbursement alimony and rehabilitative alimony. Id. (citations omitted). We also noted that there are types of alimony subject to future modification in order to take into account unforeseen circumstances that may arise. Id. ¶ 24, 694 N.W.2d at 290-91 (citation omitted).

      . Factors that are considered when assessing the need, amount and duration of alimony are: “(1) length of the marriage; (2) respective earning capacity of the parties; (3) their respective age, health and physical condition; (4) their station in life or social standing; and (5) relative fault in termination of the marriage.” Sanford, 2005 SD 34, ¶ 24 n. 4, 694 N.W.2d at 290 n. 4 (citations omitted).

      .Our holding in Saxvik was limited, establishing that permanent alimony is modifiable support that may be reinstated, even when terminated subsequent to the decree, if dictated by a change in circumstances. 1996 SD 18, ¶¶ 11, 15, 544 N.W.2d at 180. However, we reiterated that lump-sum alimony and restitution or reimbursement alimony are not subject to modification. Id. ¶ 13, 544 N.W.2d at 180 (citations omitted). Our holding was likewise inapplicable "to divorce cases where the trial court [finds] no basis for an award of alimony to begin with.” Id. ¶ 15, 544 N.W.2d at 180 (citations omitted). We withheld determination of whether rehabilitative alimony is modifiable, while suggesting that it must be considered on a case-by-case basis. Id. ¶ 14, 544 N.W.2d at 180.

      . Lowe cites, as particularly supportive of her argument for increasing alimony, Schwartz’s average earned income during the most recent three months preceding the September 2006 hearing. Schwartz's average earned income during that three-month period was about $5,500 per month. However, we note that the compilation from which the averages were derived shows that the monthly totals for the extraordinary three-month period range from $2,628 to $8,005 and that Schwartz’s average monthly income for January and February of 2006 was $0.

      . Close examination of Lowe’s statements of net worth, submitted as an exhibit at trial, reveals that her overall decrease in net worth since the divorce trial attributes about equally between a decrease in the value of assets and an increase in debt. At least some of the decrease in the value of assets is a consequence of depreciation and trading of vehicles. Lowe traded her 1996 Alfa Gold (divorce trial value: $28,790) and 1996 Dodge Ram 2500 (divorce trial value: $11,780) for a 2000 Winnebago 35U (motions trial value: $55,199). While this trade results in an increase to assets of about $15,000, her RV Loan Balance correspondingly increased about $17,000 to $54,331, resulting in a decrease to net worth of $2,000. Over the relevant period, her 1992 Jeep Cherokee depreciated by about $1,700. Lowe attributes an estimated $6,500 decrease in the value of a 1986 8x8 trolley to vandalism. Lowe also attributes a $2,500 tax liability to a 2005 Toyota Camry (motions hearing value: $19,825) that she won at a casino.

      . The remarks of plaintiffs counsel at the divorce trial, during closing argument, summarized the evidence then presented as to the continuing decline in value of Lowe’s assets: "Certainly her health is all shot. It doesn't look like very good prospects for earning income. Tax returns shown as devastating, her assets are dwindling on at a dangerously fast rate.”

      . The circuit court could have concluded that Lowe’s assets were declining at a significantly reduced rate following the November 15, 2004 divorce decree as compared to the rate of decline before that date. Assuming Lowe’s net worth remained consistent at approximately $365,000 until her heart attack in 2000, after which she discontinued her employment as a business consultant, and that her assets at that point began to decline, the rate at which her assets declined over the approximate four-year period preceding the divorce decree would be about $6,000 per month. The $74,000 reduction in assets over the 27-month period between the divorce trial and the motions hearing corresponds to a monthly reduction of about $2,750 per month.

      . SDCL 15 — 6—60(b)(1) provides in pertinent part:
      On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: (1) Mistake, inadvertence, surprise, or excusable neglect[.]