author: KAPSNER, Justice.

text:
    2008 ND 58
    Lois Konzak HITZ, n/k/a Lois Ann Marie Konzak, Plaintiff and Appellant v. John William HITZ, Defendant and Appellee.
    No. 20070211.
    Supreme Court of North Dakota.
    March 24, 2008.

      Todd W. Foss (argued), Stefanson, Plambeck & Foss, Moorhead, MN, for plaintiff and appellant.
    Sherry Mills Moore (argued), Bismarck, ND, for defendant and appellee.
   KAPSNER, Justice.

[¶ 1] Lois Konzak Hitz (“Konzak”) appeals an amended judgment dividing marital property between her and her former husband, John Hitz (“Hitz”). We affirm the amended judgment.

I

[¶ 2] Konzak and Hitz were married June 25, 1994. Konzak commenced a divorce action in January 2005. Following post-trial briefing, an amended judgment, dividing and distributing the debts and assets between Konzak and Hitz, was entered in May 2007. In its findings of fact, conclusions of law, order for amended judgment and amended judgment, the district court awarded net property of $1,257,409 to Hitz and $334,206 to Konzak before adjustments. The court made an adjustment for post-separation property and debt, adding $12,000 to Hitz’s net property and $179,934 to Konzak’s net property. Hitz was also ordered to pay Konzak $160,000 in cash. After the adjustment and the cash payment, the district court awarded Hitz 62 percent and Konzak 38 percent of the net marital estate.

[¶ 3] Konzak was born in 1953. She obtained a pharmacy degree from North Dakota State University in 1976. Following her graduation, Konzak worked at various pharmacies. Prior to her marriage to Hitz, Konzak lived on a hobby farm near Duluth, Minnesota. The hobby farm consisted of a house and barn located on six acres of land; Konzak was purchasing the property on a contract for deed. According to Konzak, by 1995, the hobby farm was nearly paid off. Konzak also entered the marriage with a parcel of undeveloped real estate, which adjoined her hobby farm. At the time she married Hitz, she owed $16,850 on the undeveloped parcel. Konzak testified she thought she had retirement accounts at the time of marriage, valued at about $75,000; however, the statements closest to the marriage showed she had $33,286 in the accounts. She owned a 1976 Ford one-ton truck, a 1985 Toronado, and a 1992 Chrysler LeBaron. On the LeBaron, Konzak owed $8,884 at the time of marriage. Konzak also entered the marriage with some personal property, including livestock and family heirlooms. Konzak worked as a pharmacist at Fort Totten Indian Health Services. During the time she worked at Fort Tot-ten, Konzak made between $35,000 and $60,000 per year. She continued her employment at Fort Totten through 2002, when she left work due to severe depression. Since leaving her job in 2002, Kon-zak worked part time at a drug store in Devils Lake and received disability income in the amount of $3,200 per month after taxes and deductions for insurance premiums.

[¶ 4] At the time of the marriage, Hitz was farming 256 acres he owned debt free and 874 acres he was buying from his mother on a contract for deed. The contract for deed with his mother was the only substantial debt Hitz had at the time of marriage. Hitz also rented other farmland. Hitz entered the marriage with personal property, including livestock and farm equipment. Hitz’s income varied considerably from year to year. In January 1994, around the time the couple married, a Farm Credit Services balance sheet showed Hitz’s net worth to be $364,992. At trial, the district court valued his net worth at the time of marriage to be $452,495, due in part to the fact that he was purchasing the acreage from his mother below fair market value.

[¶ 5] After Konzak and Hitz began living together in 1993 and married in 1994, Konzak rented out her hobby farm and used the rental profits to pay the loan on the adjoining undeveloped real estate. In 1998, Konzak sold her undeveloped, unimproved parcel of land for $850,000. Kon-zak used the sale proceeds from this real estate to purchase 317 acres of farmland in Wells County, North Dakota, for the sum of $140,000. The money from Konzak’s farm also purchased an additional 157 acres, called the Kucera property, for $91,000.

[¶ 6] In 1995, Konzak and Hitz purchased a home in New Rockford, North Dakota, which they moved to the Hitz farmstead. Konzak testified at trial that the purchase price of the home was $58,000, and the cost of moving the house was $12,780. She testified the money for the purchase of the home came from a mortgage loan the parties obtained in the amount of $46,400. She testified she paid the mortgage off three years later with money she received from the sale of her hobby farm, which she sold in 1996 for $75,000. She testified the costs for moving the home, along with additions and improvements, were paid from the parties’ joint funds and with money from Konzak’s Edward Jones account. Hitz testified he paid between $125,000 and $135,000 towards the house from the parties’ Security State Bank account and alleged that the bulk of the money in that account came from his farming income. During the marriage, the parties also purchased an additional quarter of land for $65,000 in 2004. In January 2005, after the parties had separated, Konzak’s mother gave a house to Konzak. Konzak later inherited several other parcels of land before the divorce action was completed.

[¶ 7] At the time of separation, Konzak withdrew $60,000 from the parties’ farm operating loan account, spent $100,000 to restore the house given to her by her mother, which was valued after improvements at approximately $29,000, and withdrew $35,000 from her own retirement account. She also incurred additional credit card debt and debt to friends and family. The district court noted that in the 22 months following the parties’ separation, Konzak acquired nearly $180,000 in new debts. The court also noted that little of the debt incurred was spent in a manner that increased the parties’ net worth and found Konzak’s actions constituted economic waste, which would be considered in making the property distribution.

[¶ 8] The district court awarded Hitz 62 percent and Konzak 38 percent of the net estate of the parties. Before making this disparate division, the court included all of the assets and debts and analyzed all of the Ruff v. Ruff, 78 N.D. 775, 52 N.W.2d 107 (1952)-Fischer v. Fischer, 139 N.W.2d 845 (N.D.1966) factors.

[¶ 9] Konzak appeals, arguing the district court erred in failing to divide the property equitably between the parties, misclassified the marriage as a relatively short-term marriage, and erred in applying post-separation spending adjustments.

II

[¶ 10] “ ‘We review a district court’s determinations regarding the division of property as findings of fact, and we will not reverse unless the findings are clearly erroneous.’ ” Lorenz v. Lorenz, 2007 ND 49, ¶ 5, 729 N.W.2d 692 (quoting Dvorak v. Dvorak, 2005 ND 66, ¶ 20, 693 N.W.2d 646). A finding of fact is clearly erroneous when it is induced by an erroneous view of the law, there is no evidence to support it, or when, although there is some evidence to support it, after a review of the entirety of the evidence, this Court is left with a definite and firm conviction a mistake has been made. Lorenz, at ¶ 5 (citing Kostelecky v. Kostelecky, 2006 ND 120, ¶ 8, 714 N.W.2d 845). This Court views the evidence in the light most favorable to the findings, and the district court’s findings of fact are presumptively correct. Lorenz, at ¶ 5 (citing Striefel v. Striefel, 2004 ND 210, ¶ 8, 689 N.W.2d 415).

[¶ 11] “[A] trial court must start with a presumption that all property held by either party whether held jointly or individually is to be considered marital property. The trial court must then determine the total value of the marital estate in order to make an equitable division of property.” Ulsaker v. White, 2006 ND 138, ¶ 13, 717 N.W.2d 567. “After a fair evaluation of the property is made, the entire marital estate must then be equitably divided between the parties under the Ruff-Fischer guidelines.” Id. (citing Neidviecky v. Neidviecky, 2003 ND 29, ¶ 10, 657 N.W.2d 255). The Rujf-Fischer guidelines require a district court to consider the following factors in determining how to equitably divide the marital estate:

the respective ages of the parties, their earning ability, the duration of the marriage and conduct of the parties during the marriage, their station in life, the circumstances and necessities of each, their health and physical condition, their financial circumstances as shown by the property owned at the time, its value at the time, its income-producing capacity, if any, whether accumulated before or after the marriage, and such other matters as may be material. The trial court is not required to make specific findings, but it must specify a rationale for its determination.

Bladow v. Bladow, 2003 ND 128, ¶ 7, 665 N.W.2d 724 (internal quotations omitted).

[¶ 12] After calculating the entire marital estate, the district court, in considering the Ruff-Fischer factor regarding the origin of property, found Hitz entered the marriage with nearly twice as much in assets as Konzak. Konzak contends the court clearly erred in determining Hitz held twice as much property at the time of marriage. “A trial court’s valuation of property is a finding of fact that is presumptively correct and subject to the clearly erroneous standard of review.” Hoverson v. Hoverson, 2001 ND 124, ¶ 13, 629 N.W.2d 573 (citing Peterson v. Peterson, 1999 ND 191, ¶ 12, 600 N.W.2d 851). At trial, the court was presented with balance sheets for farm operating loans, which valued Hitz’s real and personal property around the time of marriage. Hitz testified the loan balance sheets undervalued his property, because the real property he purchased from his mother was purchased for less than fan-market value. He testified that the loan balance sheet underestimated the value of his livestock, because the lending institution requested he assign conservative values to his livestock for the purpose of securing the loan. Hitz further submitted professionally prepared appraisals as exhibits during the trial, which valued the property he purchased from his mother at a greater value than that shown on the loan balance sheets.

[¶ 13] Konzak argues the figures on the loan balance sheet should have been used to determine Hitz’s premarital holdings and his property should not be viewed as undervalued on the loan balance sheets, despite Hitz’s testimony and professional appraisals. The district court determined, based on Hitz’s testimony, the balance sheets, and professional appraisals, that Hitz’s net worth at the time of marriage was nearly twice that of Konzak. While Hitz and Konzak presented different testimony about their respective net worths at the time they were married, “[a] trial court, having the opportunity to observe demeanor and credibility, is in a far better position than an appellate court in ascertaining the true facts regarding property value.” Hoverson, at ¶ 13 (citing Pe terson, at ¶ 12). “A marital property valuation within the range of the evidence is not clearly erroneous.” Id. (citing Peterson, at ¶ 12). “A choice between two permissible views of the evidence is not clearly erroneous when the trial court’s findings are based either on physical or documentary evidence, or inferences from other facts, or on credibility determinations.” Fox v. Fox, 2001 ND 88, ¶ 14, 626 N.W.2d 660 (citations omitted). In this case, the district court was presented with conflicting evidence that gave a range for the property valuations. The district court assigned values to the property within the ranges presented. The property valuation is not clearly erroneous.

[¶ 14] Konzak next argues the district court misapplied the law when it failed to include the gift properties she received or inherited late in the marriage for the purposes of calculating the parties’ “premarital assets.” Konzak’s argument is misplaced. As this Court explained in Young v. Young, 1998 ND 88, ¶ 10, 578 N.W.2d 111:

‘[A]ll of the real and personal property accumulated by the parties ..., regardless of the source’ must be included in the marital estate to be divided by the trial court.” Glander v. Glander, 1997 ND 192, ¶ 10, 569 N.W.2d 262 (quoting Gaulrapp v. Gaulrapp, 510 N.W.2d 620, 621 (N.D.1994) (emphasis in original)). We have repeatedly held “[s]eparate property, whether inherited or otherwise, must initially be included in the marital estate.” Gaulrapp v. Gaulrapp, 510 N.W.2d 620, 621 (N.D.1994) (citations omitted). See also Grinaker v. Grinaker, 553 N.W.2d 204, 208 (N.D.1996); van Oosting v. van Oosting, 521 N.W.2d 93, 96 (N.D.1994). We have held a trial court can only apply the Rujf-Fiseher guidelines after all the assets are included in the marital estate. Gaulrapp, 510 N.W.2d at 621 (emphasis ours). The origin of the property is only one factor to consider under the Rujf-Fiseher guidelines, even if the property was acquired before the marriage or inherited. Winter v. Winter, 338 N.W.2d 819, 822 (N.D.1983). We have never held that property brought into a marriage or acquired by gift or inheritance by one spouse, be irrevocably set aside to that spouse. Grinaker, 553 N.W.2d at 208.

[¶ 15] After the district court considered all of the marital property, it considered the origin of the property, which is a permissible factor to consider when dividing the marital estate under the Rujf-Fiseher guidelines. The district court determined Hitz was entitled to a greater distribution, in part, based on the determination that Hitz brought nearly twice as much property into the marriage. The district court considered the fact that Konzak received or inherited certain properties late in the marriage; these properties were properly included in the district court’s calculation of the marital estate. Treating such property as premarital would have been contrary to the facts. Treating Konzak’s inherited property as premarital and failing to include it in the marital estate would have been error. Ulsaker v. White, 2006 ND 133, ¶13, 717 N.W.2d 567 (“[A] trial court must start with a presumption that all property held by either party whether held jointly or individually is to be considered marital property.”). In addition to considering the origin of the property, the district court found Konzak committed economic waste or misconduct after the parties separated, and Hitz was equitably entitled to a greater share of the marital estate based upon the Rujf-Fiseher factor that considers the conduct of a party during the marriage and the financial circumstances of the parties. “Under the Ruff-Fischer guidelines, both economic and noneconomic fault are proper factors for the trial court to consider in dividing marital property.” McDowell v. McDowell, 2001 ND 176, ¶ 6, 635 N.W.2d 139 (citations omitted). Because the origin of the property is only one factor to consider, and because this Court has “never held that property brought into a marriage or acquired by gift or inheritance by one spouse, be irrevocably set aside to that spouse,” the district court did not err as a matter of law in deciding Hitz was entitled to a greater share of the marital estate. Young, at ¶ 10 (citations omitted).

[¶ 16] Konzak argues the district court erred in determining the parties shared a relatively short-term marriage. “ ‘[A] property division need not be equal to be equitable, but a substantial disparity must be explained.’ ” Amsbaugh v. Amsbaugh, 2004 ND 11, ¶ 23, 673 N.W.2d 601 (quoting Bladow v. Bladow, 2003 ND 123, ¶ 5, 665 N.W.2d 724) (alterations in original). “ ‘In general, a lengthy marriage supports an equal division of all marital assets.’ ” Amsbaugh, at ¶ 23 (quoting Bladow, at ¶ 8). There is no bright-line rule to determine whether a marriage should be deemed short-or long-term. See Orgaard v. Orgaard, 1997 ND 34, ¶ 11, 559 N.W.2d 546 (finding that an 11-year marriage is “relatively short-lived”); Ulsaker v. White, 2006 ND 133, ¶ 14, 717 N.W.2d 567 (finding a 16-year marriage was a long-term marriage). In this case, Hitz and Konzak were married for over ten years, during which time they had no children and kept their finances relatively separate. Based upon the length of their marriage and the nature of their relationship, it would not be clear error to class the marriage as relatively short-term. Even if the marriage had been deemed a long-term marriage, the district court based its distribution on several other factors, including Konzak’s economic misconduct and the origin of each parties’ property. All of the relevant factors are to be considered, and the length of the marriage does not necessarily carry any greater weight than the other factors.

[¶ 17] For these reasons, the factual findings of the lower court were not clearly erroneous and the district court did not err as a matter of law. We affirm the amended judgment.

[¶ 18] GERALD W. VANDE WALLE, C.J., and WILLIAM F. HODNY, S.J., and DALE V. SANDSTROM, DANIEL J. CROTHERS., concur.

[¶ 19] The Honorable WILLIAM F. HODNY, S.J., sitting in place of MARING, J., disqualified.


source: Caselaw Access Project

author: MILLER, Retired Justice.

license: Public Domain

text:
    2008 SD 19
    Cheryl D. JACOBSON, Plaintiff and Appellant, v. Kevin LEISINGER, Defendant and Appellee. Cheryl D. Jacobson, Plaintiff and Appellee, v. Kevin Leisinger, Defendant and Appellant.
    Nos. 24491, 24492, 24498.
    Supreme Court of South Dakota.
    Argued Jan. 8, 2008.
    Decided March 12, 2008.

      Patricia A. Meyers of Costello, Porter, Hill, Heisterkamp, Bushnell & Carpenter, LLP, Rapid City, South Dakota, Attorneys for appellant (#24491), Attorneys for ap-pellee (# 24492).
    David M. Hosmer Yankton, South Dakota, Attorney for appellant (# 24492), Attorney for appellee (# 24491).
   MILLER, Retired Justice.

[¶ 1.] This opinion encompasses two separate appeals dealing with the same parties but involving independent issues and facts. Each will be addressed separately. In #24991, Cheryl Jacobson appeals the circuit court’s decision denying her request for attorney fees, and in # 24492 & # 24498, Kevin Leisinger appeals the circuit court’s dismissal of his defamation action against Jacobson.

JACOBSON’S APPEAL FOR ATTORNEY FEES

[¶ 2.] This dispute flows from our holding in Leisinger v. Jacobson, 2002 SD 108, 651 N.W.2d 693 (Leisinger I). In that case, this Court rejected a punitive damage award in the amount of $120,000 in favor of Leisinger and against Jacobson. We held that the punitive damage award should either be reduced to $25,000, or alternatively, should Leisinger reject the reduced award, a new trial could be conducted solely on the issue of punitive damages. Id. ¶25. Leisinger rejected the reduced award and thereafter failed to retry his case within one year of the remand, as required by SDCL 15-30-16. Therefore, he forfeited any right to the punitive damages which had previously been paid by Jacobson.

[¶ 3.] Despite our decision in Leisinger I, Leisinger did not return the $120,000 to Jacobson. She therefore moved the circuit court for an order requiring the return of the money. In a memorandum opinion of December 20, 2002, Circuit Judge Sever-son held that “on August 21, 2002[, the date of the decision of Leisinger I ], [Leis-inger] had an obligation to return the benefits he had received from the prior Judgment — $120,000—to [Jacobson].” Judge Severson entered a formal order to that effect on February 24, 2003. Leisinger did not comply with nor did he appeal that order requiring him to return the money. (Apparently, no formal notice of entry of the order was served upon Leisinger.)

[¶ 4.] Jacobson then sought a contempt order against Leisinger for his failure to comply with the February 24, 2003 order, but the circuit court did not rule on that motion. Jacobson later filed a formal notice of entry of the February 24, 2003 repayment order. Leisinger then appealed that order, however, therein he merely contested the award of interest. This Court summarily affirmed the order holding that Leisinger’s appeal was “without merit.” (Appeal No. 23287).

[¶ 5.] On November 24, 2003, Jacobson filed a conversion action against Leisinger basing her claim on Leisinger’s failure to comply with the February 24, 2003 order to return the $120,000. Leisinger counter-sued alleging many causes of actions, all independent of the money issues. The circuit court ultimately granted Jacobson’s summary judgment motion holding that Leisinger’s failure to return the money amounted to conversion as a matter of law.

[¶ 6.] While the foregoing conversion action was pending, Leisinger petitioned this Court for a rehearing of Leisinger I, and also sought to have Jacobson held in “contempt.” He contended that Leisinger I was founded on Jacobson’s perjured testimony. We denied the motion.

[¶ 7.] On December 21, 2004, Jacobson moved the circuit court for an order requiring Leisinger to show cause for his failure to comply with the February 24, 2003 order. At the hearing, the circuit court (Judge Zell) converted the order to a judgment. As a result of failing to be served with process, rather than for lack of notice, neither Leisinger nor his attorney attended the hearing. Jacobson, however, later filed a formal written motion requesting an amendment of the “order” to a “judgment.” That motion was granted on February 24, 2005. Leisinger appealed such judgment which was ultimately summarily affirmed by this Court wherein we held the appeal was “without merit.” (Appeal No. 23618). Jacobson ultimately recovered the $120,000 on October 28, 2005.

[¶ 8.] Jacobson then sought recovery of the attorney fees she incurred in the various court proceedings required to recover the $120,000. The circuit court rejected her request, citing Schuldies v. Millar, 1996 SD 120, 555 N.W.2d 90. Jacobson appeals. We reverse and remand.

[¶ 9.] Whether the circuit court erred by failing to award attorney fees.

[¶ 10.] Jacobson argues that she has a right to recover the reasonable cost of attorney fees she specifically incurred in unwarranted legal proceedings to recover her wrongfully withheld property. We agree.

[¶ 11.] It is clear and undisputed that Leisinger wrongfully withheld Jacobson’s $120,000. Subsequent to Leisinger’s rejection of the reduced punitive damages award, in Leisinger I, the portion of the trial court judgment regarding punitive damages was vacated. 2002 SD 108, ¶ 25, 651 N.W.2d at 701. Accordingly, “[a] judgment vacated on appeal is of no further force and effect.” Gluscic v. Avera St Luke’s, 2002 SD 93, ¶ 18, 649 N.W.2d 916, 920 (citations omitted); see also Hasse v. Fraternal Order of Eagles No. 2421 of Vermillion, 2003 SD 23, ¶ 9, 658 N.W.2d 410, 413 (citations omitted); Aune v. B-Y Water Dist., 505 N.W.2d 761, 764-65 (S.D.1993) (quoting Pendergast v. Muns, 59 S.D. 135, 142, 238 N.W. 344, 347 (1931)). Therefore, Leisinger’s rejection of the reduced award represented a simultaneous forfeiture of any rights in the previously acquired punitive damage award.

[¶ 12.] We conclude that Leisinger indefensibly and unlawfully withheld the $120,000. Judge Severson’s decision of December 20, 2002, granting Jacobson’s request for an order requiring Leisinger to return the $120,000 with interest, unequivocally informed Leisinger that his retention of the funds was unlawful. Moreover, Leisinger cannot argue in good faith that he believed the money could legally remain in his possession pending any appeals; indeed, in the original suit Leisinger acquired the $120,000, constituting the punitive damage award, via a writ of execution prior to Leisinger I reversing the same award. Leisinger may not now complain of being harmed by the forced repayment as he bore the risk by taking the money prior to completion of the appellate process. Hasse, 2003 SD 23, ¶ 11, 658 N.W.2d at 413-14.

[¶ 13.] Jacobson contends that although Schuldies v. Millar, supra, does not permit recovery of attorney fees for the actual litigation of the conversion lawsuit, reasonable attorney fees expended in pursuit of the money, unrelated to the conversion action, are separable and recoverable. We agree.

[¶ 14.] Generally, without specific authority to the contrary, attorney fees are not recoverable in civil actions. However, we agree with and now adopt the rationale that: “... in conversion cases, the reasonable and necessary expenses incurred in recovering the property are a proper element of damage. In such cases, the expense of recovery is a ‘further pecuniary loss’ recoverable under the Restatement rule.” State v. Taylor, 506 N.W.2d 767, 768 (Iowa 1993) (citing Restatement (Second) of ToRts § 927(2)(b) (1977) (other citations omitted) (emphasis added)). In this case, and as is the practice in other states, the damages must be bifurcated between “attorney fees incurred as a result of the conversion litigation as compared to attorney fees incurred in recovering possession of the property. The former are not compensable, the latter are.” Motors Ins. Corp. v. Singleton, 677 S.W.2d 309, 315 (Ky.Ct.App.1984).

[¶ 15.] Attorney fees are not generally recoverable in actions sounding in tort “except those fees incurred in other litigation which is necessitated by the act of the party sought to be charged.” Grand State Property, Inc. v. Woods, Fuller, Shultz, & Smith, P.C., 1996 SD 139, ¶ 19, 556 N.W.2d 84, 88 (emphasis added) (noting that separate litigation necessitated by the misconduct of the other party may permit recovery of attorney fees); Isaac v. State Farm Mut. Auto. Ins. Co., 522 N.W.2d 752, 763 (S.D.1994). Moreover, Leisinger, by his intentional and calculated action, left Jacobson with only one course of action, i.e., further litigation. See Rorvig v. Douglas, 123 Wash.2d 854, 862, 873 P.2d 492, 497 (1994); Restatement (Second) of Toets § 914 cmt a (1977); Liles v. Liles, 289 Ark. 159, 177, 711 S.W.2d 447, 456 (1986).

[¶ 16.] Recovery of attorney fees expended by Jacobson to force Leisinger to release her money may be analogized with the case of Foster v. Dischner, 51 S.D. 102, 212 N.W. 506 (1927). In Foster, the plaintiff sued for attorney fees incurred in releasing an unlawful levy of his property. Although the property remained in the possession of the plaintiff, he was still entitled to attorney fees as damages incurred in releasing the levy. Id. at 507; see also Baird v. Liepelt, 62 Ill.App.2d 154, 156-57, 210 N.E.2d 1, 2 (1965). Here, Jacobson seeks similar damages, which resulted from her attempt to recover her property. Like the unlawful paper levy attached in Foster, Leisinger’s unlawful possession of Jacobson’s money amounted to a de facto levy/pledge. See Ray D. Henson, SecüRed Transactions: Under the Uniform Commercial Code § 4-26 (West 1978). Indeed, Leisinger argued that if he “were to give said funds to [Jacobson], and [Leisinger] is later successful in a damage award against [Jacobson], then [Leisinger] will never recover said damages.” Similar to the unlawful levy in Foster, Leisinger’s argument demonstrates his desire to unlawfully withhold Jacobson’s money as security for a future lawsuit that may never be allowed (and in fact never was allowed). Therefore, as in Foster, Jacobson is entitled to reasonable attorney fees incurred in recovering the release of her property. (However, as conceded at oral argument, Jacobson is not entitled to any attorney fees incurred after the February 24, 2003 order was converted into a judgment.)

[¶ 17.] Additionally, although Jacobson’s action may have been pleaded in conversion, the lawsuit is more complicated than the typical conversion pleadings. Here, Leisinger defied multiple court orders requiring him to repay the $120,000. Instead of asserting his right to possess the money, Leisinger conjured up other legal arguments which did not proffer a genuine defense to his unlawful possession of the money. Moreover, all of Leisinger’s legal arguments regarding the $120,000, or the interest accruing on the same, failed as meritless before the circuit court and this Court. Even after we rejected Leisinger’s motion for a rehearing regarding the reversal of punitive damages, he still refused and failed to repay the money. We find that Leisinger “has not merely refused to pay a judgment, he has refused to obey an affirmative court order.” Dan B. Dobbs, Law of Remedies: Damages — Equity—Restitution § 3.10(3) (West 2nd ed. 1993). Therefore, attorney fees may be appropriately awarded at the discretion of the trial court upon a determination that the failure to comply with the order rose to the level of contempt. Although no contempt of court sanction was specifically implemented in this case, courts have inherent authority to act sua sponte and order the payment of opposing party’s reasonable attorney fees if the party’s actions rise to the level of litigation misconduct. See id.

[¶ 18.] We reverse and remand to the circuit court for proceedings consistent herewith.

LEISINGER’S APPEAL OF DISMISSAL OF DEFAMATION CLAIM

[¶ 19.] Leisinger initially sued Jacobson for malicious prosecution. The lawsuit was based on false information Jacobson allegedly provided to police which led to Leisinger being falsely arrested nine times. He prevailed in that action. In the summer of 2001, approximately thirty hours after the jury found for Leisinger in the malicious prosecution lawsuit, a 911 emergency call was placed from Jacobson’s residence. When the police arrived they were unable to locate her. Eventually, the sound of “moaning” led the officers to Jacobson who was laying face down in calf-high grass about thirty to forty yards from her residence.

[¶ 20.] Jacobson told the police that she heard an “alarm” alert and then was struck in the back of her head. She claimed to not know how she ended up face down in the grass. Detective Balfe examined Jacobson’s head and saw no signs of an assault: “there was no redness or swelling or bleeding or anything at the back of her head.” Therefore, no pictures were taken of the alleged injury.

[¶21.] An ambulance transported Jacobson to the hospital where Detective Balfe interviewed her. She allegedly accused Leisinger of attacking her, stating: “Kevin had something to do with this. I don’t have anything to prove it, but he had something to do with it.” After further questioning, she allegedly continued to accuse Leisinger of being responsible for the purported attack. (No criminal charges flowed from this claimed attack.)

[¶ 22.] In December 2003, based on these and other accusations related to the alleged 2001 attack, Leisinger sued Jacobson for defamation. This claim was contained in a permissive counter-claim to Jacobson’s unrelated conversion lawsuit filed against Leisinger. Jacobson moved for summary judgment based on Leisinger’s failure to bring the suit within the two-year statute of limitations. The cir-euit court granted Jacobson’s motion, holding that the alleged act occurred over two years prior to Leisinger filing the lawsuit and that Leisinger had actual knowledge of the defamatory act over two years prior to the lawsuit being filed. Therefore, the circuit court granted Jacobson’s motion for summary judgment and dismissed Leisinger’s counter-claim. Leisinger appeals and we affirm.

[¶ 23.] Whether the circuit court erred when it dismissed Leisinger’s defamation claim.

STANDARD OF REVIEW

[¶ 24.] Our standard of review regarding summary judgment is well established:

[W]e 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 nonmoving party and reasonable doubts should be resolved against the moving party. The nonmoving 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.

Cooper v. James, 2001 SD 59, ¶ 6, 627 N.W.2d 784, 787 (citation omitted). When summary judgment is granted on a statute of limitations defense:

The burden of proof is upon the movant to show clearly that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. When faced with “ ‘a summary judgment motion where the defendant asserts the statute of limitations as a bar to the action and presumptively establishes the defense by showing the case was brought beyond the statutory period, the burden shifts to the plaintiff to establish the existence of material facts in avoidance of the statute of limitations^]’ ” It is well settled that “ ‘[s]ummary judgment is proper on statute of limitations issues only when application of the law is in question, and not when there are remaining issues of material fact.’ ” Generally, a statute of limitations question is left for the jury; however, deciding what constitutes accrual of a cause of action is a question of law and reviewed de novo.

Id. ¶ 7, 627 N.W.2d at 787 (citations omitted).

ANALYSIS AND DECISION

[¶ 25.] Leisinger argues that the circuit court erred when it interpreted the statute of limitations for defamation actions as accruing on occurrence of the tort rather than his discovery. Moreover, he claims that application of the “discovery rule” would position his pursuit of this action within the statute of limitations.

[¶ 26.] The statute of limitation for a defamation action is provided in SDCL 15-2-15. Thereunder, a defamation lawsuit must be commenced within two years from the accrual of the cause of action.

[¶ 27.] Leisinger first argues that the “accrual” date of his cause of action for defamation, under SDCL 15-2-15, relates to the date when he, the victim, had actual or constructive notice of the defamation, citing Strassburg v. Citizens State Bank, 1998 SD 72, ¶ 10, 581 N.W.2d 510, 514 (stating “statute of limitations ordinarily begins to run when the plaintiff either has actual notice of a cause of action or is charged with notice”) and other similar cases as authority. However, none of the cases cited specifically interpret SDCL 15-2-15, nor do they discuss defamation. See Strassburg, 1998 SD 72, ¶ 10, 581 N.W.2d at 514 (conversion claim accruing under SDCL 15-2-13); Wissink v. Van De Stroet, 1999 SD 92, ¶¶8, 12, 598 N.W.2d 213, 215-16 (breach of contract, conversion, unjust enrichment (constructive trust), accruing under SDCL 15-2-13); Huron Center, Inc. v. Henry Carlson Co., 2002 SD 103, ¶¶ 5, 11, 650 N.W.2d 544, 546-47 (breach of contract accruing under SDCL 15-2-13).

[¶ 28.] As noted earlier, Leisinger’s cause of action for defamation is governed by SDCL 15-2-15. Generally the accrual date for a defamation action begins on the publication of the defamatory act. Davenport v. City of Corning, 2007 WL 3085797, at *6 (Iowa Ct.App.2007); Hayes v. Blue Cross Blue Shield of Minnesota, Inc., 21 F.Supp.2d 960, 978 (D.Minn.1998); LaPan v. Myers, 241 Neb. 790, 792, 491 N.W.2d 46, 49 (1992); White v. Fawcett Publications, 324 F.Supp. 403, 404-05 (D.C.Mo.1971); see also Francis M. Dougherty, Limitation of Actions: Time of Discovery of Defamation as Determining Accrual of Action, 35 A.L.R.4th 1002, § 2 (1985).

[¶ 29.] Alternatively Leisinger argues for the adoption of the “inherently undis-coverable” doctrine. He asserts that because the alleged defamatory material was statutorily confidential he cannot be charged with having knowledge of the acts until he had actual or constructive notice of the defamation, claiming that where the defamatory act is “secretive or inherently undiscoverable [due to the] nature of the publication” courts have permitted the more relaxed “discovery rule” for defamation. Staheli v. Smith, 548 So.2d 1299, 1303 (Miss.1989) (adopting the “discovery rule” for libel in the limited occasions when the publication is “secretive or inherently undiscoverable”). Although it is persuasive, we need not reach this limited application of the so-called “discovery rule.”

[¶ 30.] Leisinger’s appeal must fail because of the following. In Leisinger’s own affidavit he stated: “A Minnehaha deputy sheriff mentioned to me sometime during the Summer of 2001 that Jacobson had alleged to law enforcement that I assaulted her at her home. I had nothing to do with this I did not assault her.” (Emphasis added). By Leisinger’s own admission he knew of the alleged defamation in the summer of 2001, yet failed to commence any action until December 11, 2003, well over two years after he clearly had actual knowledge of the defamatory statements. This Court has stated:

when a party testifies to positive and definite facts which, if true, would defeat his right to recover or conclusively show his liability, and such statements are not subsequently modified or explained by him so as to show that he was mistaken although testifying in good faith, it has generally been held that he is conclusively bound by his own testimony, and cannot successfully complain if he is nonsuited or the court directs a verdict against him.

Miller v. Stevens, 63 S.D. 10, 16, 256 N.W. 152, 155 (1934) (citation omitted). Moreover, during oral arguments Leisinger’s attorney conceded that Leisinger had constructive knowledge of the alleged defamation on December 10, 2001, over two years prior to filing the lawsuit.

[¶ 31.] The defamation claim was untimely and must fail. Leisinger failed to bring suit before the tolling of the statute of limitations.

[¶ 32.] We reverse and remand Jacobson’s request for attorney fees (#24991) and affirm the dismissal of Leisinger’s defamation claim (# 24492 & # 24498).

[¶ 33.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP and ZINTER, Justices, concur.

[¶ 34.] MILLER, Retired Justice, sitting for MEIERHENRY, Justice, disqualified.

      . Leisinger's attorney had actual notice of the hearing, and the record reflects that a woman who attended the hearing was determined to have been sent by Leisinger.

      . On July 1, 2005, the money was deposited with the Minnehaha County Clerk pending an appeal of Judge Zell's order amending the original February 23, 2003 "order” to a "judgment.” This Court summarily affirmed Judge Zell's order. Jacobson did not recover the money until after the summary affirmance of the appeal.

      . Jacobson also moved for summary judgment contending that no claim for defamation may be based on any communication made "[i]n any legislative or judicial proceeding, or in any other official proceeding authorized by law.” SDCL 20-11-5(2). The circuit court denied this motion. Although Jacobson filed a notice of review on the denial, we do not reach this issue for two reasons. First, denials of summary judgment motions do not constitute final judgments, and therefore are not reviewable without good cause. Big Sioux Twp. v. Streeter, 272 N.W.2d 924, 926 n. 1 (SD 1978) (noting unless a trial court indicates there is good cause to appeal we will not review orders that do not amount to a final judgment). Second, based on our holding, below, we need not address Jacobson’s issue.

      . Pertinent portion of SDCL 15-2-15 reads:
      Except where, in special cases, a different limitation is prescribed by statute, the following civil actions other than for the recovery of real property can be commenced only within two years after the cause of action shall have accrued:
      (1) An action for libel, slander, ...

      . Black’s Law Dictionary defines publication, in the defamation context, as: ''[t]he communication of defamatory words to someone other than the person defamed.” 1242 (7th ed.1999).

      . SDCL 23-5-11 states that information related to ongoing investigation may be withheld from the public. SDCL 23A-28B-36 plainly states that information provided to the Crime Victims’ Compensation Program is confidential. Jacobson's alleged defamatory statements were made to the police and to the Crime Victims Compensation Program.

      . Although Leisinger claims his permissive counterclaim relates back to the filing of Jacobson’s conversion claim, effectively tolling the statute of limitations, this argument is without merit. Only compulsory counterclaims benefit from the relation back doctrine. See 6 Wright, Miller & Kane, Federal Practice and Procedure: Civil 2d § 1425 at 189-90 (West 1990). Indeed, even in the cases cited to this Court by Leisinger, Aramony v. United Way of America and MacDonald v. Riggs, permissive counterclaims are not permitted to benefit from the relation back doctrine. Aramony v. United Way of America, 969 F.Supp. 226, 231 (S.D.N.Y.1997) (stating "counterclaim tolls its limitations period at the filing of the initial complaint if it is compulsory, but not until the service of the counterclaim if it is permissive”) (citations omitted); MacDonald v. Riggs, 166 P.3d 12, 18 (Alaska 2007) (stating that the counterclaim is compulsory and relates back “if it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim”) (citation omitted).


author: MEIERHENRY, Justice (on reassignment). SABERS, Justice

text:
    2008 SD 20
    Melissa J. (Bartlett) KAUTH, Plaintiff, v. Lee O. BARTLETT, Defendant and Appellant.
    No. 24414.
    Supreme Court of South Dakota.
    Considered on Briefs Aug. 27, 2007.
    Reassigned Dec. 20, 2007.
    Decided March 12, 2008.

      Melissa J. (Bartlett) Kauth, Redfield, South Dakota, pro se.
    Carl J. Koch, Mitchell, South Dakota, Attorney for defendant, and appellant.
   MEIERHENRY, Justice (on reassignment).

[¶ 1.] Lee O. Bartlett (Bartlett) petitioned to modify his child support obligation after relocating and reducing his income. Even though the child support referee found that Bartlett did not leave his employment for the purpose of reducing his child support obligation, the referee’s report set child support based on the imputed income from Bartlett’s prior job. The circuit court’s order adopted the referee’s report. Bartlett appeals. We reverse and remand.

FACTS

[¶ 2.] When Bartlett and Melissa Kauth (Kauth) divorced on November 30, 2004, Bartlett’s monthly child support obligation for their two children was set at $730.00 based on his gross annual income of $37,600.00 as a funeral home director in Redfield, South Dakota. Bartlett remarried in June of 2006. His new wife lived and worked in Harrisburg, South Dakota. She attempted to relocate and find employment in Redfield but was unable to do so. Bartlett quit his job at the funeral home in Redfield to move to Harrisburg, South Dakota. He obtained employment as a pizza restaurant manager making a gross annual income of about $18,000.00.

[¶ 3.] In April of 2006, Bartlett petitioned for reduction of his child support obligation because of his lower income. Bartlett requested a deviation under SDCL 25-7-6.10(2) based on his financial condition. Melissa Kauth did not specifically request an upward deviation. At the hearing, Bartlett appeared by telephone, and Kauth appeared in person. Neither party was represented by counsel. At the beginning of the hearing, the referee questioned Bartlett about leaving his job as a funeral home director for a less stressful career as follows:

Referee: Why did that job [as funeral home director] end?
Bartlett: I decided on a different career.
Referee: So did you voluntarily quit?
Bartlett: Yes, I did.
Referee: Ordinarily, sir, if someone’s income decreases as a result of their voluntary actions, in a child support proceeding we treat them as though they still had that same income. Can you tell me any reason, sir, why that should not be the case in this proceeding?

Bartlett briefly explained that he was unable to find employment as a funeral home director after relocating to Harrisburg, South Dakota. He also explained that his job as a funeral home director was very stressful and that the job had a high turnover rate. The referee denied Bartlett’s request to reduce the support and imputed Bartlett’s prior gross monthly income of $3,133.00 for purposes of calculating child support. Based upon the imputed income, the referee calculated Bartlett’s child support obligation at $697.00, plus $85.00 per month for his pro rata share of health insurance, increasing the total support obligation from the prior order of $730.00 to $782.00 per month.

[¶ 4.] Bartlett retained counsel and objected in circuit court to the referee’s report. The circuit court remanded the matter to the referee “for the sole and limited purpose of conducting further hearing on the specific and limited issue of whether Lee O. Bartlett voluntarily reduced his income for the intent and purpose of manipulating (i.e. reducing) his child support obligation.”

[¶ 5.] On remand, Bartlett was represented by counsel and Kauth appeared pro se. Bartlett presented evidence that part of his decision to relocate and switch jobs was because of the stress of the funeral business and the extended hours he had to work. The referee noted that “[t]he mother did not request deviation based on the father’s voluntary reduction of his income.” Nevertheless, the referee determined that he had broad authority to raise deviations on his own and entered only one finding of fact as follows:

[Bartlett] admits he voluntarily quit his job. There was no evidence that he did so with the express intent of reducing his income. The Referee would point out, however, that he did not make any such finding in his original report either. ...

The referee went on to conclude that “[w]hether [Bartlett’s] intent in quitting his job was to reduce his child support obligation or not is irrelevant.”

[¶ 6.] Bartlett had requested a deviation based upon his financial condition pursuant to SDCL 25-7-6.10(2). This deviation presumes a financial hardship if the child support amount constitutes over fifty percent of the obligor’s net income. Although the evidence showed that Bartlett’s child support amount exceeded fifty percent of his actual net income, the referee made no finding on the deviation except to conclude Bartlett had waived it. The referee again imputed Bartlett’s prior income and recommended a monthly support amount of $782.00.

[¶ 7.] Bartlett once more objected to the referee’s recommendation because the referee had deviated from the child support schedule based upon a deviation neither party had requested and because the referee had automatically imputed Bartlett’s prior income. The circuit court adopted the referee’s findings of fact and conclusions of law as set forth in the referee’s reports from the original hearing and the remand. Bartlett raises the following issues on appeal:

ISSUES
1. Whether the circuit court erred in adopting the referee’s calculation of child support using Bartlett’s imputed income.
2. Wdiether a child support referee has authority to raise a deviation sua sponte.

STANDARD OF REVIEW

[¶ 8.] We review the decision to grant or deny child support under the abuse of discretion standard. Miller v. Jacobsen, 2006 SD 33, ¶ 18, 714 N.W.2d 69, 76 (citing Midzak v. Midzak, 2005 SD 58, ¶ 17, 697 N.W.2d 733, 738 (additional citations omitted)). When reviewing a child support referee’s findings of fact, we review for clear error, while conclusions of law are reviewed de novo. Wagner v. Wagner, 2006 SD 31, ¶ 5, 712 N.W.2d 653, 656 (quoting Mathis v. Mathis, 2000 SD 59, ¶ 7, 609 N.W.2d 773, 774). Additionally, when the lower court adopts the child support referee’s factual findings and legal conclusions, “we apply the clearly erroneous standard of review to the findings and give no deference to conclusions of law.” Id. Findings are not reversed for clear error “unless we are left with a definite and firm conviction a mistake has been made.” Id.

[¶ 9.] Issues regarding statutory interpretation are questions of law reviewed de novo. Rotenberger v. Burghduff, 2007 SD 7, ¶ 8, 727 N.W.2d 291, 294 (quoting State v. $1,010 in Am. Currency, 2006 SD 84, ¶ 8, 722 N.W.2d 92, 94). “Statutes are to be construed to give effect to each statute [ ] so as to have them exist in harmony. It is a fundamental rule of statutory construction that the intention of the law is to be primarily ascertained from the language expressed in the statute.” Huber v. Dep’t of Pub. Safety, 2006 SD 96, ¶ 14, 724 N.W.2d 175, 179 (quoting $1,010 in Am. Currency, 2006 SD 84, ¶ 8, 722 N.W.2d at 94 (citing In re Estate of Meland, 2006 SD 22, ¶6, 712 N.W.2d 1, 2) (additional citations omitted)).

DECISION

Child Support Calculated on Actual, Not Imputed Income

[¶ 10.] The referee and the circuit court misapplied and misinterpreted the statutes and prior case law by automatically imputing Bartlett’s previous wages. The referee and the circuit court applied a bright-line rule that if an obligor voluntarily takes a job that pays less than his prior job, his higher income from the prior job, must be imputed and used to calculate child support under the schedule. Neither the statutes nor our prior opinions support such a bright-line rule.

[¶ 11.] The statutory scheme in SDCL Chapter 25-7 governs child support calculations. The language of the statutes does not authorize automatically imputing a higher income when someone voluntarily takes a lower paying job. The only statute that even refers to imputed income is SDCL 25-7-6.4, which merely creates a rebuttable presumption that a parent is capable of being employed at minimum wage. Since Bartlett’s income exceeded minimum wage this statute does not apply.

[¶ 12.] In all other cases, such as Bartlett’s, the child support schedule uses an obligor’s actual monthly net income as determined by SDCL 25-7-6.3 (income included in monthly gross income) and SDCL 25-7-6.7 (allowable deductions). A proper application of the statutes in this case would require calculating Bartlett’s monthly net income based on his actual earnings. The monthly net income of the parties is then combined to determine the support obligation under the schedule set forth in SDCL 25-7-6.2. Only after this schedule calculation has been performed may a deviation, as set forth in SDCL 25-7-6.10, enter into the child support obligation equation.

[¶ 13.] Thus, the statutes lay out a procedure wherein the initial step is to determine the current net income of the parties and scheduled support amount. Then, any requested deviations can be considered. We addressed the mandatory nature of the procedure in Midzak v. Midzak, 2005 SD 58, 697 N.W.2d 733 and Gisi v. Gisi, 2007 SD 39, 731 N.W.2d 223. In Midzak, the trial court failed to order child support. We reversed and remanded pointing out that “[t]he trial court is required to calculate the parents’ monthly net income ... as codified at SDCL 25-7-6.3 and 25-7-6.7.” Midzak, 2005 SD 58, ¶30, 697 N.W.2d at 740. We noted that “[deviations from the support obligation schedule at SDCL 25-7-6.2 are possible, but must be raised by the parties in order to be considered by the trial court.” Id. ¶ 30, 697 N.W.2d at 741. However, in order to even reach the possibility of a deviation, the referee must first compute the child support pursuant to SDCL 25-7-6.2 using the parent’s current income. In Gisi, we said the child support schedule statutes require the trial court to calculate the monthly net income of the obligor first, based upon the obligor’s current income, and only after this calculation is made, may the deviations in SDCL 25-7-6.10 be applied. 2007 SD 39, ¶¶7-8, 11, 731 N.W.2d at 226-27.

[¶ 14.] The father in Gisi, asked for a downward deviation because he was incarcerated and had no income. The mother had not argued for an upward deviation. The referee and the court miscalculated the father’s obligation by using an imputed gross minimum wage rather than a monthly net income. We determined that a proper calculation under the schedule set the father’s obligation at $100.00 rather than the $190.00 ordered by the court. Neither the referee nor the court entered findings supporting a deviation. We found it was error for the referee to “merely impute” the father’s prior income.

[¶ 15.] Here, the referee and the circuit court failed to follow the procedures mandated by statute and articulated by this Court in Gisi See 2007 SD 39, ¶ 7, 731 N.W.2d at 226. In this case, like in Gisi the referee and the circuit court incorrectly considered a deviation without first calculating support. Clearly, this backwards application of the statutory deviation scheme is not contemplated by the statutes.

[¶ 16.] However, it is apparent from the record that the referee did not consider the higher imputed income as a deviation. In the first recommendation, the referee entered findings that Bartlett had waived his request for a deviation and Kauth had not requested a deviation. On remand from the circuit court, the referee again did not consider the imputed higher income as a deviation. Nevertheless, the referee alternatively found that if imputing the higher income was considered a deviation, then the referee had authority to raise the deviation sua sponte to sustain his recommended support amount. The referee, however, failed to enter specific findings based upon the deviation factors in SDCL 25-7-6.10 and failed to consider the deviation factor raised by Bartlett. The referee’s one finding was that “Bartlett admitt[ed] he voluntarily quit his job,” but did not quit “with the express intent of reducing his income.”

Referee Cannot Raise Deviations Sua Sponte

[¶ 17.] Bartlett argues that the referee erred when he alternatively considered the deviation without either party raising the issue. The statute, SDCL 25-7-6.10, allows for a deviation as follows:

Deviation from the schedule in § 25-7-6.2 shall be considered if raised by either party and made only upon the entry of specific findings based upon any of the following factors:
(1) The income of a subsequent spouse or contribution of a third party to the income or expenses of that parent but only if the application of the schedule works a financial hardship on either parent;
(2) Any financial condition of either parent which would make application of the schedule inequitable. If the total amount of the child support obligation, including any adjustments for health insurance and child care costs, exceeds fifty percent of the obligor’s monthly net income, it shall be presumed that the amount of the obligation imposes a financial hardship on the obligor. This presumption may be rebutted based upon other factors set forth in this section;
(3) Any necessary education or health care special needs of the child;
(4) The effect of agreements between the parents regarding extra forms of support for the direct benefit of the child;
(5) The obligation of either parent to provide for subsequent natural children, adopted children, or stepchildren. However, an existing support order may not be modified solely for this reason; or
(6) The voluntary act of either parent which reduces that parent’s income.

Pointing to the statutory language, “if raised by either party,” Bartlett claims that a deviation from the child support schedule cannot be considered unless a party raises the issue.

[¶ 18.] We agree with Bartlett that the referee may not raise a deviation sua sponte. The statute directs that “[deviation from the schedule in § 25-7-6.2 shall be considered if raised by either party.” SDCL 25-7-6.10. The statute contemplates that the parties would raise deviations. There is no authority to support the premise that a child support referee has inherent authority to raise a deviation on his own. Gleaning such authority from SDCL 25-7-6.2 is dubious. The language of the statute neither authorizes nor prohibits a referee or court from considering a deviation sua sponte. The plain and simple statutory meaning merely requires the referee and/or the court to consider and enter specific findings if a party raises a deviation request.

[¶ 19.] The referee relied upon the broad equitable standard of “best interest of child” as giving him inherent authority to raise deviations sua sponte. The referee referred to this as “an affirmative duty to protect children even against the wishes or arrangements of parents.” The referee’s reliance on this standard is misplaced. The “best interest of the child” standard is not a standard articulated in the child support statutes. SDCL ch. 25-7. The guiding standard for child support is the child’s “standard of living” pre-divorce and the child’s actual needs. SDCL 25-7-6.2; Laird v. Laird, 2002 SD 99, ¶ 80, 650 N.W.2d 296, 301. The court’s broad equitable power to set child support has long been replaced by the mandatory child support statutes, the goal of which is to establish uniformity. Report of the South Dakota Commission on Child Support 13 (Dec.1985) (“The lack of uniform support guidelines in the State has led to substantial variations in the amount of support ordered to families in similar situations. The support obligation ordered oftentimes varies depending on the method used in determining what the support obligation should be.”).

[¶ 20.] Prior to enactment of mandatory child support schedules, the courts were guided by “the [child’s] necessary maintenance, education and support” and the parent’s “respective means.” SDCL 25-7-7 (1982), amended by 1986 SD Sess. Laws ch. 218, section 11, repealed by 1989 SD Sess. Laws ch. 220, section 19. The 1982 statute made “the parents of a child jointly and severally obligated to provide the necessary maintenance, education, and support of the child in accordance with their respective means.” Saint-Pierre v. Saint-Pierre, 357 N.W.2d 250, 259 (S.D.1984). In interpreting the 1982 statute, this Court applied several factors and set two explicit standards courts were to apply in determining child support. We stated, “The amount of child support depends upon the reasonable needs of the child, i.e., the reasonable expenditures suitable to the child’s circumstances at the time of the divorce and the payor’s financial situation.” Gross v. Gross, 355 N.W.2d 4, 7 (S.D.1984) (citations omitted). We instructed the lower courts to determine (1) an amount which would support the child’s circumstances and situation in life; and (2) obligor’s ability to pay. Id. Thus, even before the mandatory schedules were enacted “the best interest of the child” was not the standard for child support determinations. See SDC 183 (1929) (requiring “support and education suitable to his circumstances”); see also SDCL 25-7-7 (1982) (requiring support “in accordance to their respective means”), amended by 1986 SD Sess. Laws ch. 218, section 11, repealed by 1989 SD Sess. Laws ch. 220, section 19.

[¶ 21.] Since 1986, the legislature has established mandatory child support guidelines. 1986 SD Sess. Laws ch. 218, section 11. In interpreting the 1986 version of the law, we determined that the statutes required courts to impose the guidelines and consider the deviation factors in every case. We said in Bruning v. Jeffries, “The question becomes whether Secretary (and hearing examiner) must consider these [deviation] factors in every case he hears. We conclude, from a reading of this statute in its entirety, that the legislature intended that these [deviation] factors be considered in each proceeding.” 422 N.W.2d 579, 580 (S.D.1988). Because the hearing examiner “chose not to consider any of the deviations” we reversed. Id. Even though the legislature later amended the statutes only to require consideration of the deviation factors raised by the parties, 1989 SD Sess. Laws ch. 220, section 10, it still required uniform application of the guidelines. 1989 SD Sess. Laws ch. 220, section

2. The 1986 statutory scheme and all subsequent amendments to the child support guidelines demonstrate a clear legislative intent to make the statutory procedures mandatory.

Parties Responsibility to Request Deviations

[¶22.] As part of the statutory scheme, child support hearings under SDCL 25-7A-22 give parents an opportunity to request a change in child support without a formal circuit court proceeding. Even though the referee hearing may be less formal and the parties usually appear pro se, the referee must conduct the proceeding in a fair and impartial manner. Additionally, when referees or courts interject issues not raised by either party, they run the risk of losing their neutrality and becoming advocates for a party, if not in fact, then in appearance. The referee as an arm of the court cannot be an advocate for either party. See SDCL 25-7A-6 (a referee “is a member in good standing of the State Bar Association and is appointed by the court, pursuant to statute”). A referee or court that raises an issue sua sponte may compromise its position as a fair and impartial adjudicator.

[¶ 23.] Whether to request a deviation with supporting evidence is the responsibility and decision of each party. SDCL 25-7-6.10. In Bartlett’s original petition for modification of child support Bartlett requested a deviation from the support schedule because of his financial condition pursuant to SDCL 25-7-6.10(2). Kauth, on the other hand, did not initially request a deviation. However, during the referee hearing upon remand, Kauth, appearing pro se, argued for a deviation. While she did not specifically say “deviation,” she did argue for one as follows:

[T]he law states that if you voluntarily quit your job, whether it’s to reduce, purposely reduce child support or not, that you’re still responsible for the prior initial setup of child support.... I know that it’s tough to make things meet now that he doesn’t pay the child support when he use[d] to. I pay my rent a month late because I only make $15,000 a year, so it doesn’t spread very well. It’s very thin.

This statement constitutes an effective request for deviation. Additionally, the parties clearly litigated the issue in the various hearings during the course of the proceedings. Thus, the statutory requirement of being “raised by either party” was met. The referee was presented with the father’s request to reduce his child support and the mother’s request that it remain the same because the father voluntarily reduced his income. Nevertheless, the referee failed to consider the deviations as contemplated by the statutes and failed to enter sufficient findings as to the deviations.

Conclusion

[¶ 24.] We hold that the circuit court erred in adopting the referee’s report because the referee incorrectly applied the child support statutes by initially using the imputed prior income of Bartlett to calculate support and by not considering the deviation factors properly. We reverse and remand.

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

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

SABERS, Justice

(concurring in result in part and dissenting in part).

[¶ 27.] I agree with the majority opinion’s determination that the parties raised the issue of deviation and therefore, the referee could consider a deviation. However, I disagree that the statute itself limits consideration of a deviation only to instances where a party raises the issue of a deviation. Admittedly, some of our prior case law suggested a deviation can only be considered if a party raises it. See Wagner, 2006 SD 31, ¶ 9, 712 N.W.2d at 657 (noting the statute “only allows a referee to address deviations when one has been ‘raised’ by a party and only upon the entry of specific findings following the hearing”); Midzak, 2005 SD 58, ¶ 31, 697 N.W.2d at 741 (noting neither party raised the issue of deviation, nor did the court enter specific findings on any of the statutory factors in SDCL 25-7-6.10). However, these cases only consider the issue in dicta and it has not been thoroughly analyzed. In the prior cases, the trial courts did not make the requisite findings of fact in order to deviate from the schedule. It is difficult to determine from the prior cases whether the failure to make specific findings was the determinative reason to deny a deviation. Regardless of the prior cases, this issue has not been squarely raised until now.

[¶ 28.] In determining the legislative intent of a statute, “[w]e give words their plain meaning and effect, and read statutes as a whole, as well as enactments relating to the same subject.” Rotenberger v. Burghduff, 2007 SD 7, ¶8, 727 N.W.2d 291, 294 (Rotenberger I) (quoting Chap man v. Chapman, 2006 SD 36, ¶ 11, 713 N.W.2d 572, 576). The courts must confine themselves to the language the legislature used and cannot insert words into the statute that the legislature did not place there. Gloe v. Iowa Mut. Ins. Co., 2005 SD 29, ¶ 36, 694 N.W.2d 238, 250.

[¶ 29.] While Bartlett reads the statute that the court may only consider a deviation when a party raises the issue, the statute does not say only. The statute says the court shall consider the deviation when the party raises the issue, but does not otherwise direct a court when it can or cannot hear an issue concerning deviation. Considering our long history of safeguarding the best interest of the child, it would be inconsistent to say a court cannot consider a deviation when a litigant, especially one appearing pro se, does not raise the issue during the hearing. See Dahl v. Dahl, 2007 SD 64, ¶21, 736 N.W.2d 803, 808 (striking down a mutual agreement to seek no child support and noting such an agreement was not in the child’s best interest); Thomas v. Hauge, 2002 SD 12, ¶ 8, 639 N.W.2d 520, 521-22 (requiring noncustodial parent to pay child support on public policy grounds that require the protection of children despite an agreement between parents that waived child support in conformity with SDCL 25-7A-17); Estes v. Albers, 504 N.W.2d 607, 609 (S.D.1993) (noting a support agreement that is detrimental to the best interest of the child violates public policy and is void); Vander Woude v. Vander Woude, 501 N.W.2d 361, 363 (S.D.1993) (noting the parental obligation to support one’s children is statutory and a matter of public policy); Stack v. Stack, 369 N.W.2d 132, 136 (S.D.1985) (noting it is in the best interest of the child to be supported). Therefore, while a court “shall consider a deviation if a party raises the issue,” a court may also consider a deviation sua sponte when it is in the best interest of the child, and the court makes specific findings regarding any of the factors in SDCL 27-5-6.10. See Brandriet v. Larsen, 442 N.W.2d 455, 462 (S.D.1989) (noting that a “motion seeking amendment of the child support provision in the decree opened for examination all aspects of child support”) (citing Brunick v. Brunick, 405 N.W.2d 633 (S.D.1987)) (emphasis added); see also State ex rel. Struck v. Struck, 526 N.W.2d 500, 502 (S.D.1995) (same); Grunewaldt v. Bisson, 494 N.W.2d 193, 195 (S.D.1992) (same).

[¶ 30.] Contrary to the majority opinion’s assertions, see supra ¶ 19, the standard of best interest of the child has been used in conjunction with support obligations. See Dahl, 2007 SD 64, ¶ 21, 736 N.W.2d at 808 (striking down a mutual agreement to seek no child support and noting such an agreement was not in the child’s best interest); Estes, 504 N.W.2d at 609 (noting a support agreement that is detrimental to the best interest of the child violates public policy and is void); Stack, 369 N.W.2d at 136 (noting it is in the best interest of the child to be supported). I agree with the majority opinion that the referee should not become an advocate for one party and with the remedy of canvassing the parties regarding deviations; however, the most important thing is that the referee gets it right. In other words, the referee must look out for the best interests of the child and ensure that the child’s needs are supported, especially when the parties are pro se and may not understand the deviations offered or available. Therefore, even though it is unnecessary to reach the issue in the current case since the parties raised the issue of deviations, the referee would have the power to consider a deviation, despite the absence of a request by one of the parties.

[¶ 31.] Bartlett’s second claim, one which the majority opinion largely changes to a different issue, is that the referee and circuit court erred when they deviated from the child support schedules. He argues that he cannot be held to his higher income when he did not quit his job in order to reduce his child support obligation, but quit in order to have a better quality of life. The referee found Bartlett voluntarily quit his former, higher paying job and took lower paying employment, but that he did not do so in order to reduce his child support. Even so, the referee determined the higher income should be used because quitting his job was a voluntary act. The referee interpreted the statute to mean that the act need not be for the purpose of reducing child support; it need only be undertaken voluntarily.

[¶ 32.] Instead of addressing solely the issue of whether a referee can deviate from the schedule when a reduction in income results from a voluntary change in employment, and not for the purpose of reducing child support obligation, the majority opinion addresses the procedure of arriving at the obligation when a referee deviates from the schedule. The majority opinion reaches this issue despite it never being raised by Bartlett. In fact, Bartlett declares that “imputation of income is a deviation.” Furthermore, he expressly says a referee can implement a deviation by imputing former income and comparing it to the lower obligation and comments that “[p]robably no one is too concerned over whether the deviation value is itemized as ... described.” He does not argue that the referee does not have the power to assign the former higher income when deciding to deviate. Nor does he argue that a referee must follow the procedure outlined by the majority opinion. He simply argues that the deviation was not raised by either party.

[¶ 33.] Nonetheless, the majority opinion concludes that the referee erred when it imputed the higher, former income. The majority opinion does not conclude that the deviation was in error because the voluntary act that lowered Bartlett’s income was not done to manipulate child support, as advocated by Bartlett. Instead, the majority opinion concludes the procedure was incorrectly followed and the referee’s decision must be reversed because the lower income was not used to calculate child support first and then a deviation taken subsequent to the initial lower child support obligation.

[¶ 34.] The majority opinion argues that the “proper application of the statutes in this case would require calculating Bartlett’s monthly net income based on his actual earnings” and “[o]nly after this schedule calculation has been performed may a deviation, as set forth in SDCL 25-7-6.10, enter into the child support obligation equation.” Supra ¶ 12. Therefore, the majority opinion claims that the referee “incorrectly applied the child support statutes by initially using the imputed pri- or income of Bartlett to calculate support[.]” Supra ¶ 24. However, this argument is contrary to our prior case law. See Woehl v. Woehl, 2002 SD 6, ¶ 15, 639 N.W.2d 188, 192 (no abuse of discretion in deviating from the child support schedule by using [obligor’s] former income to calculate [the obligor’s] current child support obligation).

[¶ 35.] In support of its argument, the majority opinion cites Midzak, 2005 SD 58, 697 N.W.2d 733, and Gisi, 2007 SD 39, 731 N.W.2d 223. It claims these cases stand for the proposition that a circuit court is required to calculate the current child support obligation from the current net monthly income and then deviate from the result. These cases do not support this proposition.

[¶ 36.] In Midzak, the circuit court gave custody of the couple’s minor child to the father, but did not order any child support. 2005 SD 58, ¶ 11, 697 N.W.2d at 737. In reversing this decision, this Court stated that the parents’ combined monthly net incomes shall be used to determine the obligation. Nevertheless, the later sentence in that paragraph explains that deviations from the support obligation schedule are possible, but must be raised by the parties in order to be considered. Id. ¶ 30. No party raised a deviation, and the circuit court did not make findings regarding a deviation. Id. ¶ 31. Therefore, we reversed the circuit court’s failure to order child support. Id. ¶ 32. We did not explain or require the current combined monthly net income to be used prior to deviating from the child support schedule.

[¶ 37.] The majority opinion, citing Gisi, claims that we “require the trial court to calculate the monthly net income of the obligor first ...” Supra ¶ 13 (citing Gisi 2007 SD 39, ¶ 8, 731 N.W.2d at 226) (emphasis added). It goes on to state that “[o]nly after this calculation is made ... may the deviations ... be applied.” Id. (citing Gisi 2007 SD 39, ¶ 11, 731 N.W.2d at 227) (emphasis added). However, paragraph eight of Gisi requires a circuit court to use the monthly net income rather than monthly gross income. See 2007 SD 39, ¶ 8, 731 N.W.2d at 226. Furthermore, paragraph eleven explains a deviation is possible in certain circumstances, but not in Gisi because Lynette did not argue for a deviation exceeding the schedule and neither the referee nor the circuit court entered findings of fact supporting such deviation. Id. ¶ 11. No language in Gisi requires a circuit court to use the current monthly combined net income first and then apply the deviation.

[¶ 38.] In contrast, we have case precedent that supports a referee or circuit court’s decision to apply a deviation by imputing the former higher income when a parent has committed a voluntary act that reduces their income. In Woehl, 2002 SD 6, 639 N.W.2d 188, we did not require the circuit court or referee to first determine the child support obligation based on the current monthly income and then consider the deviation. Instead, we explained that because of his voluntary act that reduced his income, “there was no abuse of discretion in deviating from the child support schedule by using his former income to calculate his current child support obligation.” Id. ¶ 15, 639 N.W.2d at 192 (emphasis added).

[¶ 39.] There is no support in the statute for the majority opinion’s interpretation. It claims the statute requires the computation of child support based upon the current net monthly income and then a deviation from the result. However, the statute requires that “[t]he child support obligation shall be established in accordance with the following schedule subject to such revisions or deviations as may be permitted pursuant to 25-7-6.1 to 25-7-6.18[.]” SDCL 25-7-6.2 (emphasis added). The statute continues to explain that “[e]x-cept as provided in this chapter, the combined monthly net incomes of both parents shall be used in determining the obligation .... ” Id. (emphasis added). The statute does not direct the circuit court to set the obligation and then deviate.

[¶ 40.] In any event, it seems that the majority opinion is preferring form over substance. In practice, the result will be the same. If a circuit court determines a deviation is warranted because of a party’s voluntary act that lowered their income, the circuit court will most inevitably look at the prior income from which the income was lowered. It seems counterintuitive to set the obligation using current, monthly combined net income and then essentially “pick” a higher or lower obligation. There needs to be an objective basis for assigning an obligation. Imputing former, higher income to a party whose voluntarily act reduces their income provides a basis for assigning the obligation. For example, under the rationale of the majority opinion, the referee would be justified in first determining the obligation from the current income, next determining the obligation from the former, higher income and finally assigning the higher obligation based on the former income due to its finding that a deviation is warranted. The result is the same and the procedure is not only not mandatory, but unwarranted.

[¶ 41.] Finally, Bartlett claims that Nauman v. Nauman, 320 N.W.2d 519 (S.D.1982), requires the voluntary action be for the purpose of reducing his child support. Bartlett is correct that the case explains that one cannot voluntarily reduce one’s income “in order to avoid alimony and support payments.” However, Nau-man does not declare that the lower income should be used to determine child support if the voluntary reduction of income is for a purpose other than reducing child support. The case was simply explaining that Nauman could not lower his income to reduce his child support.

[¶ 42.] Our statutes and our case law are contrary to Bartlett’s argument. “It is a fundamental rule of statutory construction that the intention of the law is to be primarily ascertained from the language expressed in the statute.” Huber v. Dep’t of Pub. Safety, 2006 SD 96, ¶ 14, 724 N.W.2d 175, 179 (additional citations omitted). The statute provides that a “deviation from the schedule ... shall be ... made only upon the entry of specific findings based upon ... [t]he voluntary act of either parent which reduces that parent’s income.” SDCL 25-7-6.10. The statute provides the act must be voluntary but does not require it to be for the purpose of reducing child support.

[¶ 43.] Furthermore, our case law does not require the act be for the purpose of reducing child support. In Kost v. Kost, we imputed minimum wage income to the mother when she voluntarily reduced her income to return to school. 515 N.W.2d 209, 214-15 (S.D.1994). In doing so, this Court explained that the duty of a parent to support his or her child is paramount and the child’s interest is the primary consideration. Id. at 214. We noted that “the first obligation of any parent is to provide child support, assuming he is physically and mentally capable. To hold otherwise would be to open the floodgates and allow parents who have child support obligations to circumvent these obligations under the guise of returning to school to enhance employment.” Id. at 215.

[¶ 44.] I agree with the conclusion that imputation of former, higher income is not automatic if the obligor commits a voluntary act which reduces his or her income. Indeed, the real problem in this case is it appears that the referee incorrectly assumed that it had no choice but to impute Bartlett’s higher income once it determined there was a voluntary act that allowed for a deviation under SDCL 25-7-6.10. The statute requires the deviation to be considered, but does not mandate deviation. See SDCL 25-7-6.10 (“Deviation from the schedule in § 25-7-6.2 shall be considered (emphasis added). Where I part ways with the majority opinion on this issue is that a child support referee may, in its discretion, impute the former, higher income to the obligor under SDCL 25-7-6.10(6). Absent an abuse of discretion, the decision whether or not to impute the former, higher income as a deviation would stand.

[¶ 45.] Because Bartlett’s actions were voluntary and the reduction of income was self-imposed, the court did not err when it recognized it could deviate from the child support schedule and impute Bartlett’s former, higher salary to determine his support obligation. However, the language in the referee’s report indicates it considered the imputation of the former, higher income mandatory. On the contrary, the referee or circuit court has discretion to deviate if the income is lowered by a voluntary act, but the imputation of the higher income is not mandatory. Therefore, I agree in result since the case should be remanded in order for the referee to consider the discretionary deviations. I dissent because the referee need not follow the procedure outlined by the majority opinion. As long as the deviation is supported, the procedure should not matter.

      . Kauth did not submit a brief in this matter.

      . SDCL 25-7-6.4 provides as follows:
      Except in cases of physical or mental disability, it shall be presumed for the purposes of determination of child support that a parent is capable of being employed at the minimum wage and his child support obligation shall be computed at a rate not less than full-time employment at the state minimum wage. Evidence to rebut this presumption may be presented by either parent.

      . Even if a referee had inherent power to raise a deviation sua sponte, here the referee’s one finding in support of the deviation was insufficient to support the amount of the deviation.

      . Although the legislature repealed SDCL 25-7-7 in 1989, SDCL 25-7-7 (1986), repealed by 1989 SD Sess. Laws ch. 220, section 19, the mandated child support guidelines continued with a newly adopted child support schedule, codified under SDCL 25-7-6.2. In the repealed language of SDCL 25-7-7 the legislature clearly provided that ''[t]hese guidelines shall be used in setting child support.” SDCL 25-7-7 (1986) (emphasis added), repealed by 1989 SD Sess. Laws ch. 220, section 19. The mandated child support guidelines continued with a new child support schedule codified under SDCL 25-7-6.2 (1989). The current version of SDCL 25-7-6.2 states: "The child support obligation shall be established in accordance with the following schedule ...." (Emphasis added).

      . A better approach for a referee is one we have seen in other cases where the referee goes through each statutory deviation on the record and canvasses the pro se litigants as to whether they wish to raise any of them.

      . Moreover, the referee gave an example of what would result from adoption of the position urged by father in this case:
      Example # 1: This Referee hears several modification petitions every year in which a father has committed a crime, becomes incarcerated, loses his job as a result and has zero income, or virtually none. He then petitions for reduction of his child support obligation, and points out to the Referee that he has no income. Usually the mothers do not appear at such hearings, because they are receiving no child support anyway and have no immediate prospect of doing so. The Referee’s practice has invariably been to impute to the father the income he lost as a result of his incarceration, usually with the result there is no change in circumstances. The Referee then recommends dismissal of such petitions on the ground that the father’s lack of income was the result of his voluntary act, even though that act was not accompanied by an intent to reduce his child support, and even though the mother did not request deviation. Frequently these incarcerated fathers object to the Referee’s recommendation. In dozens of such objections over the years, no circuit court has overturned such a recommendation, even though no one requested deviation from the support schedule. If the rule in South Dakota were that deviation could not be considered in the absence of a request by a party, hundreds of South Dakota children and mothers every year would see their support reduced to zero because the obligor committed a crime. Many of these obligations, if unmodified, will at least continue to accrue as arrearages and eventually be paid, even if not paid today.
      (Emphasis added).

      . Like Bartlett, the father’s child support obligation in Gisi exceeds fifty percent of his monthly net income. Under SDCL 25-7-6.10(2), there is a presumption that the obligation imposes a financial hardship on the obligor, but the referee or circuit court can consider the voluntary act that reduced the income. See Gisi, 2007 SD 39, ¶ 18, 731 N.W.2d at 229; see also Woehl, 2002 SD 6, ¶¶ 14-15, 639 N.W.2d at 191-92.

      . Bartlett emphasizes he quit his job in Huron near his children because working at the funeral home was highly stressful and he was “burn[ed] out.” However, the referee, who heard his testimony, found the "true motivation appears to be his decision to remarry, to a woman who lives in the Harrisburg area.”

      . Iowa has refused to modify a support obligation when the reduction of income is voluntary and self-inflicted. See In re Marriage of Walters, 575 N.W.2d 739, 741-42 (Iowa 1998) (citing generally In re Marriage of Dawson, 467 N.W.2d 271, 275-76 (Iowa 1991)) (refusing to reduce child support obligation for obligor who quit job to finish education and take a job with lower pay); In re Marriage of Vettemack, 334 N.W.2d 761, 763 (Iowa 1983) (court unwilling to modify obligation for obli-gor who committed felony and was incarcerated but who had equity in home from which obligation could be satisfied); Ellis v. Ellis, 262 N.W.2d 265, 267-68 (Iowa 1978) (finding obligor's voluntary retirement at time when he still had substantial earning capacity to be voluntary and self-inflicted); Reed v. Reed, 260 Iowa 1166, 152 N.W.2d 190, 191 (1967) (refusing to modify support obligation when obligor voluntarily quit job to return to school); In re Marriage of Bales, 439 N.W.2d 228, 230 (Iowa Ct.App.1989) (declining to modify obligation when obligor quit job paying $15,000 per year to take job paying $5,900 per year).

      . While this imputation of minimum wage was done in Kost under SDCL 25-7-6.4, citing SDCL 25-7-6.10, we noted that the lower court could have deviated by virtue of Karen's voluntary act which reduced her income. Id. at 215. Her former income before going back to school would have been minimum wage because she was not working during the marriage or prior to going back to school. Id. at 211.

      .The majority opinion also suggests the referee's findings were inadequate to support the imposed deviation. However, in the referee report upon remand, the conclusions of law also note that "Melissa ... due to Lee’s unilateral reduction of his support payments ... is already in arrears in her rent payment.” I would submit that this supports the referee's implementation of a deviation.
      Moreover, the majority opinion suggests that the referee simply imputed the higher income and did not consider the imputed higher income as a deviation. I agree the initial referee report does not use the word deviation and specifically finds that Bartlett waived his requested deviation. However, in the report of referee upon remand, the issue of deviation and the power to raise it sua sponte was addressed as a specific issue.


author: APPEL, Justice.

text:
    Upon the Petition of DeAngelo Delonn SEAY, Appellant, And Concerning Andrea Lynette Thomas, Appellee.
    No. 06-1353.
    Supreme Court of Iowa.
    April 4, 2008.
    Curtis R. Dial, Keokuk, for appellant.
    James F. Dennis, Keokuk, for appellee.
   APPEL, Justice.

In this case, we must determine the proper method of calculating child support in a case where the district court awards joint physical care, but where the district court order provides that one party has actual physical care for more days a year than the other. We hold that under our rules, child support in all joint physical care cases should be decided using the offset method provided in Iowa Court Rule 9.14.

I. Factual and Procedural Background.

DeAngelo Seay and Andrea Thomas were never married, but had three children. Seay filed a petition to determine custody arrangement, child support, and liability for resulting court costs. The parties agreed that the court should award the parties joint legal custody of the children. The parties disagreed on the issues of physical care, child support, and apportionment of court costs and fees.

The district court order “awarded joint physical care” of the children to Seay and Thomas. The district court order further established a physical care schedule under which the parties alternated “physical care” on weekends and most holidays and vacations. The court provided that Seay would have “physical care” from 6:00 pm on Tuesdays and Thursdays until the beginning of school on Wednesdays and Fridays respectively. Under the schedule, the children would reside with Seay for 158 days and with Thomas for 206 days.

The district court awarded child support pursuant to the Child Support Guidelines Worksheet. Using undisputed income figures provided by the parties, the district court calculated that under the guidelines, Seay’s child support obligation for the three children was $381 per month. Pursuant to Iowa Court Rule 9.9, the district court then reduced Seay’s child support obligation by 25 percent as a result of extraordinary visitation. As a result, the district court ordered that Seay pay Thomas child support of $248 per month.

Seay appealed. He argued that the district court erred in calculating his child support obligation. According to Seay, the district court erred in not applying Iowa Court Rule 9.14 in calculating child support. Iowa Court Rule 9.14 provides that “[i]n cases of court-ordered joint (equally shared) physical care, child support shall be calculated” using an offset approach. Under the offset approach of the rule, the child support that would be required of each party is calculated as if they were a noncustodial parent. Child support is determined by calculating the difference between these two amounts.

Thomas cross-appealed. She claimed that the district court should have reduced Seay’s child support obligation by only 20 percent because Seay’s court-ordered visitation was more than 148 days but less than 167 days per year. See Iowa Ct. R. 9.9. Thomas also contended that Seay’s support obligation should be increased because the court awarded two children to Seay as dependents for tax purposes, and only one to Thomas. She also sought an award of appellate attorneys’ fees.

We transferred the case to the court of appeals. The court of appeals affirmed the ruling of the district court. The court of appeals dismissed Thomas’s cross-appeal as untimely filed and denied her request for appellate attorneys’ fees. We granted Seay’s petition for further review, and now vacate the court of appeals decision, vacate the district court’s judgment, and remand the matter to the district court.

II. Scope of Review.

This case involves the interpretation of court rules regarding the award of child support where joint physical care is awarded. Our review of such legal issues is for errors at law. In re Marriage of McCumin, 681 N.W.2d 322, 327 (Iowa 2004) (“Because interpretation of child support guidelines is a legal question, our review of such interpretation is for errors at law.”).

III. Discussion.

In this ease, there is no dispute that the district court ordered joint physical care of the parties’ three children and that aspect of the district court’s order is not challenged on appeal. The fighting issue in this case is whether Iowa Court Rule 9.14 applies to a case involving joint physical care where the district court establishes a schedule pursuant to which one party has physical care for a somewhat longer period than the other. The district court declined to apply the rule on the grounds that physical care in this case was not “equally shared.”

States have taken a variety of approaches to the issue of whether generally applicable child support guidelines should apply in cases where the court awards joint physical care or its equivalent to both parents. Some states have decided that generally applicable child support guidelines should be applied in the first instance, subject to any adjustments that might be justified under all the facts and circumstances. Other states by judicial decision have adopted variants of the offset method in situations involving joint physical care. See generally Stephanie Giggetts, Application of Child-Support Guidelines to Cases of Joint-, Split-, or Similar Shared-Custody Arrangements, 57 A.L.R.5th 389, 389 (1998).

In Iowa, we have adopted a rule which requires application of the offset method for calculating child support in cases involving joint physical care. Iowa Ct. R. 9.14. The rule reflects the difference between joint physical care and other parental arrangements. Under Iowa Code section 598.1(4) (2007), parties awarded joint physical care have equal responsibility to maintain homes and provide routine care for the child. No party has superior rights or responsibilities with respect to the child. In contrast, the legal rights and responsibilities of a party with only joint legal custody and visitation is more limited. See Iowa Code § 598.1(3). As a result, ordinarily a parent with joint physical care directly expends more for the support of a child than a party awarded joint legal custody and visitation. Application of the offset method as a starting point in determining child support recognizes these differences.

On appeal, Thomas argues that Iowa Court Rule 9.14 should not apply under the facts and circumstances presented to the district court. She draws our attention to In re Marriage of Fox, 559 N.W.2d 26 (Iowa 1997). In Fox, the parties had agreed to what they termed “shared physical care” whereby one child lived with the father one third of the time. Fox, 559 N.W.2d at 27. Under the circumstances presented, we ruled that the “shared parenting” arrangement gave the father nothing more than what amounted to liberal visitation and applied the child support guidelines applicable to a noncustodial parent. Id. at 29.

We find Fox inapposite. In Fox, we found that the arrangement of the parties 'amounted to “liberal visitation.” In this case, the district court specifically awarded “joint physical care” to the parties. Nolte v. Mehrens, 648 N.W.2d 727, 730 (Minn.Ct.App.2002) (district court description determines nature of custody arrangements). The distinction between “liberal visitation” and “joint physical care” is crucial on the issue of the proper manner in determining child support. Iowa Court Rule 9.14 applies to situations where the parties are awarded “joint physical care.”

Thomas stresses that Iowa Court Rule 9.14 contains the parenthetical “equally shared” and argues that, as a result, it does not apply to this case because physical care of the children was not equally divided on a calendar basis. Although the text of Iowa Court Rule 9.14 uses the parenthetical “equally shared,” this phrase is a generalized description of the responsibilities and decision-making authority of each party. Under joint physical care, the parties are equally responsible for routine, daily decisions to be made regarding the child or children regardless of residential arrangements at the time. See Iowa Code § 598.1(4) (neither parent has physical care rights superior to the other); In re Marriage of Hansen, 733 N.W.2d 683, 691 (Iowa 2007); In re Marriage of Hynick, 727 N.W.2d 575, 579 (Iowa 2007). While joint physical care does require equal responsibility on routine, daily decision-making, it does not require that the residential arrangements be determined with mathematical precision. Hynick, 727 N.W.2d at 579 (“Joint physical care anticipates that parents will have equal, or roughly equal, residential time with the child.”); Janney v. Janney, 943 So.2d 396, 399-400 (La.Ct.App.2006) (45.3 percent physical custody amounted to shared custody under child support statute).

For the above reasons, we hold that because the district court awarded joint physical care, Iowa Court Rule 9.14 is applicable. As a result, the district court erred in failing to utilize the offset method in calculating Seay’s child support.

Our holding, however, does not end the matter. The amount of child support calculated pursuant to the rules is not cast in stone. Instead, under Iowa Court Rule 9.11, the amount of child support for parents awarded joint physical care pursuant to Iowa Court Rule 9.14 is a guideline that is presumptively valid but may be varied if the district court makes written findings that application of the guidelines would be unjust or inappropriate according to established criteria. See Iowa Code § 598.21(B)(l)(c), (d). Upon remand, the district court should determine whether there is any basis for a departure from an award of child support calculated pursuant to the offset method contained in Iowa Court Rule 9.14.

In addition, because the medical suppoit provisions provided in the district court’s original decree were based upon an erroneous interpretation of the support guidelines, the district court should reconsider its requirement that Thomas pay the first $250 of all medical, optical, dental and prescription drug expenses not covered by insurance on an annual basis up to a maximum of $500 for all the children. See Iowa Ct. R. 9.12 (requiring custodial parent to “pay the first $250 per year per child of uncovered medical expenses up to a maximum of $500 per year for all children”). The court should also consider the allocation of the children as dependents for tax purposes for the same reason. Cf. In re Marriage of Okland, 699 N.W.2d 260, 268 (Iowa 2005) (where original support provisions were based on joint physical care and trial court modified decree to award primary physical care to one parent, the support provisions needed to reflect this new arrangement). As a general rule, the parent given primary physical care is entitled to claim the child as a tax exemption. Id. at 269. The court, however, has the authority to award tax exemptions “ ‘to achieve an equitable resolution of the economic issues presented.’ ” Id. (quoting In re Marriage of Rolek, 555 N.W.2d 675, 679 (Iowa 1996)). In this case involving joint physical care, the allocation of deductions should be based upon the impact on the children’s interests. Id. (considering the effect of deductions on parent’s income and whether it freed up more money for the benefit of the children).

Thomas seeks an award of appellate fees from Seay on this appeal. In light of our disposition, we decline to award attorneys’ fees to Thomas. Okland, 699 N.W.2d at 270 (no reason to award attorneys’ fees where opposing party primarily prevails).

IV. Conclusion.

The decision of the court of appeals is vacated, the decision of the district court is reversed, and the matter is remanded to the district court.

DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT VACATED; CASE REMANDED.