author: DANIEL F. FOLEY, Judge.

text:
    Edward SANTIAGO III, petitioner, Appellant, v. STATE of Minnesota, Respondent.
    No. C7-00-307.
    Court of Appeals of Minnesota.
    Oct. 17, 2000.

      Frederick J. Goetz, Special Assistant State Public Defender, Minneapolis, for appellant.
    Mike Hatch, Attorney General, St. Paul, and Amy Klobuchar, Hennepin County Attorney, Michael Richardson, Assistant County Attorney, Minneapolis, for respondent.
    Considered and decided by AMUNDSON, Presiding Judge, WILLIS, Judge, and FOLEY, Judge.
   OPINION

DANIEL F. FOLEY, Judge.

A jury convicted appellant and a code-fendant each of one count of second-degree murder and two counts of attempted second-degree murder. In this postconviction proceeding, appellant seeks a new trial claiming that the trial court abused its discretion in (1) joining the codefendants for trial; (2) not admitting certain evidence; and (3) allowing attorney misconduct to occur during attorney arguments. In the alternative to seeking a new trial, appellant challenges the trial court’s imposition of a consecutive sentence. We affirm.

FACTS

Appellant Edward Santiago III and co-defendant Thomas Rodriguez III are cousins. On July 17, 1997, Rodriguez was in the pool area of the apartments in Rich-field where his sister, Shalonda Rodriguez, lived. Thomas Rodriguez had an argument with Veronica Watt, who became angry and left with her two friends. Watt soon returned with these same two friends, followed by Manyani Henderson and Andre Patten. Watt then pulled a knife out of her boot and threatened to cut Rodriguez. Rodriguez appeared frightened, jumped over the pool fence, and ran off.

Rodriguez went to his sister’s apartment and informed appellant that some people at the pool were “trying to start some sh-t.” Appellant and Rodriguez returned to the pool area, at least one of them in a green Chevrolet Caprice. Shalonda Rodriguez, Shedava Abram, and a third friend, all of whom had been in Shalonda Rodriguez’s apartment, also drove down to the pool in a separate car.

Watt approached Rodriguez and started yelling at him. Manyani Henderson tried to engage Rodriguez in a fight. Rodriguez appeared frightened and acted as if he did not want to fight. Andre Patten convinced Watt to end the altercation and to move away, but she began to yell at Rodriguez again. When Rodriguez moved towards her, Manyani Henderson stepped between them. One witness, Eugene Webster, who observed the argument from his car, testified that appellant moved his hand towards the inside of his coat, as if to imply that he had a gun. Manyani Henderson began to walk away and Andre Patten again suggested that they stop the argument.

Eugene Webster testified that Rodriguez went to the passenger side of the green Chevrolet, leaned inside, and then walked over to appellant, who moved his hand toward Rodriguez and instructed him several times to “take care of your business.” Another witness, Rhonda Watt, testified that Rodriguez asked appellant for a gun and that appellant handed something to Rodriguez and told him to handle his business. Rodriguez, appearing frightened, walked around the car with an exposed gun. Andre Patten told Veronica Watt to leave. Eugene Webster testified that appellant again instructed Rodriguez to “take care of your business.” Appellant disputes that he directed Rodriguez’s actions. Rodriguez then raised the gun and shot Andre Patten. Rodriguez also shot at Manyani Henderson and Veronica Watt as they fled. One of the shots struck Manya-ni Henderson in his right side, near his hip. Two other shots struck Rodriguez’s cousin, Shedava Abram, in each foot. Andre Patten died from the gunshot wounds.

Appellant and Rodriguez fled from the scene. Rodriguez fled to the home of his uncle, Jose Rodriguez, and told him that he had shot Shedava Abram and someone else. Rodriguez telephoned appellant from Jose Rodriguez’s home at least once. Rodriguez’s sister, Shalonda, arrived at Jose Rodriguez’s home with a towel-wrapped bundle, which she took inside. Jose Rodriguez later gave the towel-wrapped bundle, which contained the gun used in the shooting, to the police. Appellant also arrived at Jose Rodriguez’s home. Appellant and Rodriguez then left the home in Rodriguez’s green Chevrolet Caprice. The police stopped their car shortly thereafter and arrested them.

A jury convicted appellant and Rodriguez each of one count of second-degree murder and of two counts of attempted second-degree murder. Appellant, with his criminal history points, was sentenced to prison for 480 months for the second-degree murder charge, to a consecutive term of 153 months for the first count of attempted murder, and to a concurrent term of 214.5 months for the second count of attempted murder. Appellant now challenges the joinder of the codefendants for trial, the trial court’s evidentiary rulings, alleged attorney misconduct, and his consecutive sentence.

ISSUES

I. Did the trial court abuse its discretion in joining the trials of the code-fendants?

II. Did the trial court abuse its discretion in disallowing certain evidence?

III. Did the prosecutor and counsel for the codefendant engage in misconduct during their arguments at trial, thereby depriving appellant of a fair trial?

IV. Was there a cumulative effect of evidentiary errors and improper argument of counsel requiring a new trial?

V. Did the trial court unfairly impose a consecutive sentence?

ANALYSIS

I.

Appellant contends that the trial court abused its discretion when it joined his trial with that of Rodriguez. Appellant also claims that, because his and Rodriguez’s defenses were irreconcilable and mutually exclusive, separate trials were mandatory. A trial court has the discretion to determine whether codefendants jointly charged with a felony be tried separately or jointly. Minn. R.Crim. P. 17.03, subd. 2. In reviewing the trial court’s decision to join codefendants for trial, we must independently determine whether the defendants suffered any substantial prejudice as a result of being joined for trial. State v. Hathaway, 379 N.W.2d 498, 502 (Minn. 1985).

Minn. R.Crim. P. 17.03 governs joinder and severance of criminal matters. Under this rule, two or more defendants jointly charged with a felony “may be tried jointly or separately, in the discretion of the court.” Minn. R.Crim. P. 17.03, subd. 2 (emphasis added). The trial court shall sever defendants during trial “upon a finding of manifest necessity” if the court finds severance is required to fairly determine a defendant’s guilt or innocence. Minn. R.Crim. P. 17.03, subd. 3(l)(c). Severance is proper if a defendant can show “that a jury could not reasonably be expected to compartmentalize the evidence as it relates to separate defendants.” United States v. Penson, 62 F.3d 242, 244 (8th Cir.1995) (quotation omitted).

Prior to 1987, rule 17.03 stated that two or more defendants jointly charged with a felony “shall be tried separately” unless the court, upon written motion, ordered a joint trial in the interests of justice. Minn. R.Crim. P. 17.03, subd. 2(1) (emphasis added). The former rule thus preferred that two or more persons charged in a felony receive separate trials. See State v. Stock, 362 N.W.2d 351, 352 (Minn.App.1985). The plain language of the current rule, however, eliminates this preference. Appellant, nevertheless, interprets the current rule to favor separate trials for code-fendants who have mutually antagonistic defenses or who seek to shift blame to each other.

At the time of trial in February and March 1998, Minnesota courts had not yet reviewed and interpreted the current version of rule 17.03 and its impact on mutually antagonistic defenses. The United States Supreme Court, however, had reviewed the impact of mutually antagonistic defenses under the federal rule, which favors joinder of trials for codefendants who are indicted together. Zafiro v. United States, 506 U.S. 534, 537, 113 S.Ct. 933, 937,122 L.Ed.2d 317 (1993).

In Zafiro, the Supreme Court refused to adopt “a bright-line rule, mandating severance whenever codefendants have conflicting defenses.” Id. at 538, 113 S.Ct. at 937-38. Rather, the Court reasoned that “[mjutually antagonistic defenses are not prejudicial per se,” and that the federal rules leave the decision on joinder or severance to a trial court’s discretion. Id. at 538-39, 113 S.Ct. at 938. The Court concluded that a trial court should grant a severance only if a serious risk of prejudice exists from a joint trial, which mighf “compromise a specific trial right of one of the defendant’s, or prevent the jury from making a reliable judgment about guilt or innocence.” Id. at 539, 113 S.Ct. at 938.

Thus, to show that joinder is prejudicial, a defendant must prove that he was denied a fair trial by showing irreconcilable defenses or that the jury could not separate the evidence relating to each defendant. United States v. Shivers, 66 F.3d 938, 940 (8th Cir.1995). Even if a defendant might suffer prejudice from a joint trial, measures less drastic than severance, such as limiting jury instructions, often will be adequate to cure any risk of prejudice. Zafiro, 506 U.S. at 539, 113 S.Ct. at 938.

After appellant’s 1998 trial in this case, the Minnesota Supreme Court addressed joinder and the current Minn. R.Crim. P. 17.03. See State v. DeVerney, 592 N.W.2d 837 (Minn.1999), cert. denied, — U.S. -, 120 S.Ct. 420, 145 L.Ed.2d 328 (1999); State v. Greenleaf 591 N.W.2d 488 (Minn.1999), cert. denied, — U.S. -, 120 S.Ct. 156, 145 L.Ed.2d 132 (1999). DeVerney and Greenleaf are not controlling here because they did not involve mutually antagonistic defenses. This case, therefore, is one of first impression.

Rodriguez claims that he shot the gun because appellant instructed him to do so. Appellant claims that he did not instruct Rodriguez or hand him the gun and was merely a bystander at the shooting. He claims that Rodriguez did the shooting on his own. It is evident that appellant and Rodriguez are attempting to shift blame to one another.

We conclude that the trial court properly used its discretion to order a joint trial. Before trial, the court considered the rule 17.03 factors, which include the nature of the offense charged, the victim impact, the potential prejudice to the defendant, and the interests of justice. See Minn. R.Crim. P. 17.03, subd. 2(1). The court determined that, because both defendants were involved in the events leading up to the shooting and the evidence would be the same, the jury would better understand each defendant’s role by hearing all the evidence in one trial. The court further determined that neither defendant could show he would be prejudiced by a joint trial or could specifically identify inconsistent defenses.

At the end of trial, the court properly instructed the jury to lessen any risk of prejudice. See Zafiro, 506 U.S. at 539,113 S.Ct. at 938 (limiting instructions often suffice to cure risk of prejudice in joint trial). The jury was instructed: (1) to give separate and personal consideration to the case of each individual defendant; (2) to evaluate the evidence with respect to each individual defendant leaving out of consideration any evidence admitted solely against the other defendant; (3) that each defendant was entitled to have his case determined from evidence as to his own actions; and (4) that finding one defendant guilty should not in any way affect the jury’s verdict regarding the other defendant.

The postconviction court also weighed the interests of the victims and their families in having to suffer through two trials, finding that some of the witnesses were frightened and reluctant to testify even at one trial. In balancing any potential prejudice to the defendants and the state’s interests, the trial court properly concluded that there was no manifest necessity to sever and that no substantial prejudice existed to either defendant as a result of the joinder.

Under these circumstances, the joint trial gave the jury the best perspective on all of the evidence leading to the conviction. We believe a jury could also reasonably separate the evidence relating to appellant and to Rodriguez. The trial court, therefore, did not abuse its discretion in joining appellant and Rodriguez for trial.

II.

Appellant argues that he was denied a fair trial when the trial court excluded evidence supporting appellant’s defense that Rodriguez acted alone. This court largely defers to the trial court’s evidentiary rulings, which will not be overturned absent a clear abuse of discretion. State v. Kelly, 435 N.W.2d 807, 813 (Minn. 1989). When dealing with a claim of erroneous exclusion of evidence, prejudicial error occurs when there is a reasonable possibility that the verdict might have been more favorable to the defendant if the evidence had been admitted. State v. Post, 512 N.W.2d 99,102 (Minn.1994).

Appellant first argues that evidence that Rodriguez was known to carry handguns in his waistband should have been admitted to show that Rodriguez carried his guns in a certain manner and to create a reasonable doubt that appellant ever had the gun. We agree with the trial court’s determination that the evidence should be excluded as cumulative because there was already evidence in the record showing that Rodriguez was known to carry the actual murder weapon.

Appellant also argues that evidence on Rodriguez’s volatile temper was relevant because it would show that Rodriguez reacted violently to the argument with Veronica Watt without any prompting from appellant. The evidence supports the trial court’s determination that Rodriguez was fearful of the confrontation, that he did not shoot out of anger and did not wish to engage in a physical altercation with Manyani Henderson, and that appellant told Rodriguez several times to “take care of your business.” The trial court did not err in excluding evidence regarding Rodriguez’s alleged temper.

Finally, appellant argues that evidence that a pair of shoes found in the trunk of the green Chevrolet fit Rodriguez and not appellant would prove that Rodriguez alone planned to flee. The trial court excluded the evidence on the basis that it was consistent with the fact that Rodriguez was visiting from out of state. The evidence supports the trial court’s determination.

It is not reasonable for us to conclude that the verdict might have been more favorable to the defendant if the evidence had been admitted. Because it was not prejudicial error to exclude the evidence, the trial court did not abuse its discretion.

III.

Determination of whether the prosecutor engaged in prejudicial misconduct is within the trial court’s discretion. State v. Robinson, 604 N.W.2d 355, 361 (Minn.2000). Reversal is warranted only where the alleged misconduct, examined within the context of the entire record, is so prejudicial that an appellant’s right to a fair trial is impaired. Id. The trial court’s cautionary instructions regarding the alleged misconduct play a significant role in the decision to grant or deny a new trial. Id.

Appellant argues that the prosecutor committed misconduct during voir dire and during opening and closing arguments by repeatedly inferring that he was privy to the truth and that the truth required convictions. A prosecutor may not express “his or her personal belief or opinion as to the truth or falsity of any testimony or evidence or the guilt of the defendant.” State v. Salitros, 499 N.W.2d 815, 817 (Minn.1993) (quotation omitted).

Although the prosecutor commented on “the truth of the evidence,” his comments, examined as a whole and within the context of the entire record, are not personal opinions or inferences that he alone was privy to the truth. Finally, the trial court struck from the record the prosecutor’s final reference to the truth in his closing argument and later instructed the jury to look solely at the evidence, which did not include counsel’s arguments. We conclude that the prosecutor’s comments as a whole were not so prejudicial as to warrant a new trial.

Appellant also argues that Rodriguez’s attorney made comments during his final argument that ridiculed appellant’s witnesses, belittled his defense, and attacked his character. The trial court determined that the attorney was properly acting as an advocate and that, even if his closing arguments were improper, the jury instructions would outweigh any prejudice. It does not appear, in the context of the entire argument, that the arguments presented by Rodriguez’s attorney prejudiced appellant. The trial court did not abuse its discretion in determining that these comments during closing argument did not deprive appellant of a fair trial.

IV.

Appellant further argues that the cumulative effect of the evidentiary errors and the improper argument from the prosecutor and Rodriguez’s counsel require a new trial. Even if an error occurs at trial and that error, standing alone, is insufficient to require reversal, the cumulative effect of all errors may compel reversal. State v. Underwood, 281 N.W.2d 337, 344 (Minn.1979). Because the trial court did not err in its evidentiary rulings and because there was no prosecutorial or attorney misconduct, there is no cumulative effect of errors requiring reversal.

V.

Finally, appellant argues that the trial court imposed a consecutive sentence that unfairly exaggerated the criminality of his conduct. Appellant concedes, however, that his sentence falls within the presumptive guidelines.

The trial court has great discretion in imposing sentences. State v. Munger, 597 N.W.2d 570, 573 (Minn.App. 1999), review denied (Minn. Aug. 25, 1999). This court will reverse a trial court’s imposition of a presumptive sentence only in a rare case. State v. Kindem, 313 N.W.2d 6, 7 (Minn.1981).

Appellant was sentenced to prison for 480 months for the second-degree murder conviction, to a consecutive term of 153 months for his conviction of one count of attempted murder, and to a concurrent term of 214.5 months for his conviction of the other count of attempted murder. He claims that his sentence is unfair when compared to Rodriguez’s sentence, because Rodriguez was the one who did the shooting and appellant played only a minor role. Appellant seeks to have his sentence reduced to 480 months for the second-degree murder conviction with both attempted murder convictions to be served concurrently.

In cases involving multiple victims, a trial court may impose one sentence per victim “so long as the multiple sentences do not unfairly exaggerate the criminality” of the offense. State v. Norris 428 N.W.2d 61, 70 (Minn.1988). In assessing the fairness in sentencing on appeal, this court will compare the defendant’s sentence with those of other offenders. Id. This court has, however, allowed consecutive sentences to stand in cases that involved three multiple sentences, with two served consecutively. See id. at 70-71 (allowing consecutive sentences to stand in cases involving aggravated robbery, assault, and multiple victims).

The trial court determined that the sentence was appropriate, did not unfairly exaggerate appellant’s criminality, and was not a deviation from the guidelines. The court noted that appellant’s presumptive guideline sentence would have been greater than Rodriguez’s because appellant had criminal history points. The court also noted that appellant could have been sentenced consecutively to an aggregate of 786 months under the guidelines, because multiple victims were involved.

The trial court further determined that appellant was actively in control of the situation and that Rodriguez, as a mentally low-functioning adult, was frightened, and looked to appellant for guidance. The court stated that appellant’s acts of directing Rodriguez to shoot and of handing a gun to a scared, mentally low-functioning adult “were more reckless than if [appellant] had pulled the trigger himself.”

Given these considerations, we cannot conclude that the sentence unfairly exaggerates the criminality of appellant’s conduct. Thus, the trial court did not abuse its discretion in sentencing appellant to a concurrent prison term for one of the attempted murder convictions.

DECISION

The trial court did not abuse its discretion when it ordered a joint trial, disallowed certain evidence, determined that there was no attorney misconduct, and imposed a consecutive sentence.

Affirmed.

       Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const, art. VI, § 10.

      . On July 13, 1999, this court filed an unpublished opinion in an appeal brought by Rodriguez. State v. Rodriguez, No. C9-98-1408, 1999 WL 486534 (Minn.App. 1999), review denied (Minn. Sept. 14, 1999). In that appeal, this court affirmed the joinder of the code-fendants for trial, stating there was no manifest necessity to sever because there was no prejudice to Rodriguez. Rodriguez's claims of prejudice differ from appellant's.


source: Caselaw Access Project

author: SANDSTROM, Justice.

license: Public Domain

text:
    2000 ND 178
    STATE of North Dakota, Plaintiff and Appellant, v. Neal Matt HAVERLUK, Defendant and Appellee.
    No. 20000077.
    Supreme Court of North Dakota.
    Oct. 3, 2000.

      Tom M. Henning, State’s Attorney, Dickinson, for plaintiff and appellant.
    Steven Balaban, Bismarck, for defendant and appellee.
   SANDSTROM, Justice.

[¶ 1] The State of North Dakota appeals from a district court order suppressing evidence. Concluding the district court erred in its application of the law, we reverse.

I

[¶ 2] Belfield police officer Michael Gant and Belfield police chief Eric Ahrens responded to a complaint from an employee of the Super Pumper Station Store in Bel-field, North Dakota. The employee’s complaint alleged a customer in the store’s parking lot was making “fists gestures” at employees. When the officers arrived, they attempted to speak to Neal Matt Haverluk, who was seated in a car in the store’s parking lot. Haverluk responded by cursing at the officers.

[¶ 3] Officer Gant, who was stationed on the passenger side of Haverluk’s vehicle, observed Haverluk place his right hand between the driver’s seat and console. Gant informed Chief Ahrens of Haverluk’s actions; the officers drew their weapons and ordered Haverluk to step out of the car.

[¶ 4] The officers noticed several indications of intoxication and ultimately arrested Haverluk for being in actual physical control (“APC”) of a motor vehicle while under the influence of intoxicating liquor, drugs, or other substances. Shortly after Haverluk was ordered out of the car, Gant entered the car and reached between the driver’s seat and console, where he found a set of keys, one of which was the vehicle’s ignition key. Ahrens advised Haverluk he was under arrest. Haverluk then struck Ahrens in the face.

[¶ 5] After a preliminary hearing, Haver-luk moved to suppress the keys, based on the testimony presented at the preliminary hearing. The State’s untimely response to the motion included an evidentiary hearing request. Without addressing either the State’s request for an evidentiary hearing-on Haverluk’s motion or Haverluk’s motion to quash the State’s answer as having been untimely submitted, the district court granted Haverluk’s motion to suppress, stating:

Under the facts revealed in this record, law enforcement claimed to be searching for weapons, but none were found, and the search occurred after the situation was secured.
The rationale for the exception — the protection of the officers from assault with a weapon hidden in the vehicle and the prevention of destruction of evidence — does not apply once the vehicle or arrestee is removed from the scene of the arrest....

The car keys are inadmissible.

[¶ 6] The State filed a statement with the district court, as required by N.D.C.C. § 29-28-07(5), and appeals, contending the district court erred in suppressing the vehicle ignition keys. The district court had jurisdiction under N.D.C.C. § 27-05-06. This Court has jurisdiction under N.D. Const, art. VI, § 6, and N.D.C.C. § 29-28-07(5).

II

[¶ 7] When reviewing a district court’s ruling on a motion to suppress, we defer to the district court’s findings of fact and resolve conflicts in testimony in favor of affirmance. City of Grand Forks v. Zejdlik, 551 N.W.2d 772, 774 (N.D.1996) (citing City of Grand Forks v. Egley, 542 N.W.2d 104 (N.D.1996)). We affirm the district court’s decision unless, after resolving conflicting evidence in favor of af-firmance, we conclude there is insufficient competent evidence to support the decision, or unless the decision goes against the manifest weight of the evidence. City of Fargo v. Thompson, 520 N.W.2d 578, 581 (N.D.1994) (citations omitted). Questions of law are fully reviewable. State v. Zimmerman, 529 N.W.2d 171, 173 (N.D. 1995) (citations omitted).

A

[¶ 8] The search of vehicles incident to arrest has been reviewed numerous times by this Court. State v. Wanzek, 1999 ND 163, 598 N.W.2d 811; State v. Olson, 1998 ND 41, 575 N.W.2d 649; State v. Erbele, 554 N.W.2d 448 (N.D.1996); State v. Hensel, 417 N.W.2d 849 (N.D. 1988). These cases clearly establish this Court applies the New York v. Belton rule: “when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.” 453 U.S. 454, 460, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981) (footnotes omitted).

[¶ 9] The district court correctly noted that a warrantless search incident to arrest is invalid when it is not contemporaneous in time or in close proximity to the place of the arrest. State v. Kunkel, 455 N.W.2d 208, 210 (N.D.1990). Likewise, evidence seized subsequent to an invalid arrest is inadmissible. State v. Phelps, 286 N.W.2d 472, 475-76 (N.D.1979). Haverluk contends the search-ineident-to-arrest exception does not apply because the search occurred before his arrest. Haverluk also argues the testimony establishes he “was not yet combative, was out of the vehicle,” and was “actually moving away from the vehicle.”

[¶ 10] In Wanzek, we held a warrantless search of the passenger compartment of a vehicle is valid even if the arrestee voluntarily exits the vehicle prior to arrest. 1999 ND 163, ¶¶ 6, 22, 598 N.W.2d 811. In Wanzek, the defendant claimed the search of her vehicle was invalid because she was not an occupant at the time of her arrest and therefore the search was not valid as a search incident to arrest. Id. at ¶ 10. The district court appears to have applied a rationale similar to the one rejected in Wanzek.

[¶ 11] A search is not invalid under the Belton exception simply because a person is not occupying the vehicle when the search is conducted. Wanzek, 1999 ND 163, ¶ 10, 598 N.W.2d 811. Some courts have interpreted Belton to require initial police contact while a person is inside a vehicle. Id.at ¶ 13. We, however, have not interpreted Belton to require that the arrestee be inside the vehicle or that contact be made before the arrestee exits the vehicle. Id. at ¶ 15.

B

[¶ 12] Haverluk argues the search was invalid because he was not formally arrested at the time the search took place. This Court has applied the United States Supreme Court’s rationale in Rawlings v. Kentucky to searches of a vehicle occurring prior to formal arrest. 448 U.S. 98, 111, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980); Wanzek, 1999 ND 163, ¶ 17, 598 N.W.2d 811 (citing State v. Overby, 1999 ND 47, ¶ 8, 590 N.W.2d 703). “ ‘Where the formal arrest followed quickly on the heels of the challenged search of petitioner’s person, we do not believe it particularly important that the search preceded the arrest rather than vice versa’ so long as the fruits of the search were ‘not necessary to support probable cause to arrest.’ ” Wanzek, at ¶ 17 (citing Overby, at ¶ 8 n. 6).

[¶ 13] When a search incident to an arrest has been conducted prior to the formal arrest, we “closely examine the facts prior to the search to determine if probable cause to arrest is present without regard to any evidence which might be discovered during the search preceding the arrest.” Overby, 1999 ND 47, ¶ 17, 590 N.W.2d 703 (VandeWalle, C.J., specially concurring).

1

[¶ 14] Haverluk argues the officers could not have had probable cause to search when they lacked the keys because vehicle keys are essential to probable cause and APC could “only be charged from the presence of the keys.”

[¶ 15] The essential elements of APC are: (1) the defendant is in actual physical control of a motor vehicle on a highway or upon public or private areas to which the public has á right of access; and (2) the defendant was under the influence of intoxicating liquor, drugs, or other substances. See State v. Ulmer, 1999 ND 245, ¶ 7, 603 N.W.2d 865 (identifying similar elements for driving under the influence, citing State v. Salhus, 220 N.W.2d 852, 856 (N.D.1974)).

[¶ 16] We have frequently upheld APC convictions even when the vehicles were inoperable or the operator had no intent to drive. City of Fargo v. Novotny, 1997 ND 73, 562 N.W.2d 95 (intent to drive is not an element of APC); Salvaggio v. North Dakota Dep’t of Transp., 477 N.W.2d 195 (N.D.1991) (APC is appropriate when a person is arrested outside of vehicle while attempting to free a stuck vehicle); City of Fargo v. Komulainen, 466 N.W.2d 610 (N.D.1991) (a defendant who was asleep in vehicle with keys in ignition may be convicted of APC despite allegation the ear was inoperable); City of Fargo v. Theusch, 462 N.W.2d 162 (N.D.1990) (a person may be guilty of APC even though the person is asleep in the car with the vehicle keys in his coat pocket); State v. Ghylin, 250 N.W.2d 252 (N.D.1977) (evidence was sufficient to support APC conviction of defendant who was stuck in a ditch); State v. Schuler, 243 N.W.2d 367 (N.D.1976) (evidence sufficient to support APC conviction when defendant was in a “high centered” automobile).

[¶ 17] “The key factor in determining actual physical control is whether the defendant is able to manipulate the vehicle’s controls.” Novotny, 1997 ND 73, ¶ 7, 562 N.W.2d 95. The defendant’s ability to manipulate the vehicle controls is a question of fact for the jury. Id. at ¶¶ 9, 11. The presence of the vehicle ignition key is not essential to the offense, and presence of the vehicle ignition key is not needed for probable cause. Cf. State v. Larson, 479 N.W.2d 472 (N.D.1992) (upholding the DUI conviction of a person steering and braking an inoperable bus while the person had the bus keys in his pocket).

[¶ 18] “Actual physical control of a vehicle does not solely depend on the location of the ignition key. The location of the key is one factor among others to consider.” Theusch, 462 N.W.2d at 163 (citation omitted). Because the location of the vehicle keys is only one factor, the vehicle keys are “not necessary to support probable cause to arrest.” Wanzek, 1999 ND 163, ¶ 17, 598 N.W.2d 811 (citing Over-by, 1999 ND 47, ¶8, 590 N.W.2d 703).

2

[¶ 19] Here, a careful examination of the facts establishes that the officers had probable cause to arrest Haverluk pri- or to the search of the vehicle. The officers responded to a complaint of an unruly customer and found Haverluk seated in his vehicle. Haverluk’s unusual behavior, his slurred speech and bloodshot eyes, the odor of alcoholic beverages emanating from Haverluk and his vehicle, and Haver-luk’s use of his vehicle to steady himself were sufficient to establish probable cause to arrest for APC. Therefore, the officer’s search of Haverluk’s car was valid as a search incident to arrest, and the vehicle key was not essential for the probable cause to arrest.

Ill

[¶ 20] The search in this instance was also valid as an officer-safety measure. The United States Supreme Court has held a law enforcement officer may order a person to exit a vehicle when the person has been lawfully detained, even in situations not amounting to arrest. Pennsylvania v. Mimms, 434 U.S. 106, 108-11, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977). This Court has embraced and extended the Mimms rationale. State v. Gilberts, 497 N.W.2d 93 (N.D.1993); see also State v. Mertz, 362 N.W.2d 410, 413 (N.D.1985) (extending Mimms to allow a law enforcement officer to place a traffic violator in a patrol car).

[¶ 21] Mimms balances the governmental interest in the safety of the officers, the extent of the intrusion, and the nature of the act from which the search stemmed. New York v. Class, 475 U.S. 106, 117, 106 S.Ct. 960, 89 L.Ed.2d 81 (1986). Here the officers feared Haverluk was reaching for or concealing a weapon. Haverluk’s behavior was unusual. The officers drew their weapons and ordered Haverluk out of the car. The search was initially confined to the area between the driver’s seat and console. The officers testified their sole purpose in searching was safety. Under the Mimms balancing test, the safety of the officers here is an important governmental interest, and the search that followed was minimally intrusive. Id. .

[¶ 22] A law enforcement officer may conduct a pat-down search of a person when the officer “possesses an ar-ticulable suspicion that an individual is armed and dangerous.” Michigan v. Long, 463 U.S. 1032, 1034, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983) (citing Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). If a person is outside a vehicle, a search of the vehicle is valid if the officer possesses a reasonable belief that a person poses a danger if allowed to reenter the vehicle. Id. at 1050, 103 S.Ct. 3469 (citations omitted). This type of search must be restricted to those areas within the person’s immediate control and to areas that could contain a weapon. Id.

[¶ 23] When Haverluk reached between the seat and console, the officers drew their weapons, apparently fearing danger. Officer Gant testified he searched between the seat and console because he didn’t know if Haverluk “was going for something or if he was placing something there.” Gant testified the search was conducted “[f]or our safety.”

[¶24] The district court erred in concluding the “rationale for the exception — the protection of the officers” did not apply. Even out of the vehicle, a suspect may “break away from police control and retrieve a weapon from his automobile.” Id. (citing United States v. Rainone, 586 F.2d 1132, 1134 (7th Cir.1978), cert. denied, 440 U.S. 980, 99 S.Ct. 1787, 60 L.Ed.2d 239 (1979)). In fact, after Haver-luk was told he was under arrest, he assaulted Chief Ahrens. The officers had to subdue Haverluk to handcuff him. The district court also erroneously gave significance to the immaterial fact that vehicle keys rather than weapons were discovered. See Michigan v. Long, 463 U.S. 1032, 1035, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983) (upholding the discovery of marijuana during the protective search of a vehicle for weapons).

IV

[¶ 25] Haverluk argues we should affirm the suppression of evidence because the State’s response to his motion to suppress was not timely filed in the trial court. Haverluk moved to suppress on February 3, 2000. The State did not respond until February 16, 2000. Haverluk argues that under N.D.R.Ct. 3.2(a) and the time computations of N.D.R.Civ.P. 6(e), the State’s untimely response is an admission Haverluk’s motion was meritorious.

[¶ 26] Once a party has filed a motion, “the adverse party shall have 10 days after service of a brief within which to serve and file an answer brief and other supporting papers.” N.D.R.Ct. 3.2(a). “Failure to file a brief by the adverse party may be deemed an admission that, in the opinion of party or counsel, the motion is meritorious. Even if an answer brief is not filed, the moving party must still demonstrate to the court that it is entitled to the relief requested.” N.D.R.Ct. 3.2(b).

[¶ 27] In City of Grand Forks v. Zejdlik, 551 N.W.2d 772, 774-75 (N.D.1996), we affirmed a trial court’s denial of a motion to suppress despite a late answer from the City. Although, under the provisions of N.D.R.Ct. 3.2(b) in effect at that time, the City’s failure to respond within ten days was an admission that the motion had merit, Zejdlik, at 774, we stated:

But, as we explained in Hartman v. Hartman, 466 N.W.2d 155, 156 (N.D. 1991), “[although a party who fails to respond or make an appearance assumes a substantial risk that the trial court will act favorably on the motion, the moving party has the burden of demonstrating to the trial court’s satisfaction that he is entitled to the relief requested.” Zejd-lik argues that, unlike the movant in Hartman, he presented evidence at the hearing which “showed that [he] was entitled to a favorable decision on the [m]otion.” We disagree.

Id. at 774; see also City of Jamestown v. Snellman, 1998 ND 200, ¶ 6, 586 N.W.2d 494 (“In suppression cases, the defendant has the initial burden of establishing a prima facie case of illegal seizure before the burden of persuasion shifts to the prosecution to justify its actions.”) (citing City of Fargo v. Sivertson, 1997 ND 204, ¶ 6, 571 N.W.2d 137; State v. Glaesman, 545 N.W.2d 178, 182 n. 1 (N.D.1996)). As a result of its untimely response, the State here assumed the risk of unfavorable action by the district court. Haverluk still had to demonstrate he was entitled to the relief requested. Zejdlik, at 774; N.D.R.Ct. 3.2(b). The district court, however, did not consider the late reply an admission, nor did it abuse its discretion by not considering it an admission.

V

[¶ 28] Because the district court erred in its application of the law, we reverse the order of the district court and remand for further proceedings.

[¶ 29] GERALD W. VANDE WALLE, C.J., WILLIAM A. NEUMANN, MARY MUEHLEN MARING, CAROL RONNING KAPSNER, JJ., concur.


author: GILBERTSON, Justice SABERS, Justice AMUNDSON, Justice

text:
    2000 SD 131
    Larry NICKLES, as Guardian Ad Litem of Mark Nickles, a minor, Plaintiff and Appellant, v. Jay SCHILD, a minor, Defendant and Appellee.
    No. 21034.
    Supreme Court of South Dakota.
    Argued March 21, 2000.
    Reassigned Aug. 31, 2000.
    Decided Oct. 11, 2000.
    Rehearing Denied Nov. 20, 2000.
    C.E. Light and Michael Bornitz, Yank-ton, South Dakota, Attorneys for plaintiff and appellant.
    Kristine L. Kreiter of Woods, Fuller, Schultz & Smith, Sioux Falls, South Dakota, Attorneys for defendant and appellee.
   GILBERTSON, Justice

(on reassignment).

[¶ 1.] Larry Nickles, the Guardian Ad Litem (Guardian) of Mark Nickles (Nickles) appeals the trial court’s admission of expert testimony. We affirm.

FACTS

[¶ 2.] On May 5, 1996, Jay Schild (Schild), Nickles and Schild’s younger brother, drove to the Human Services Golf Course in Yankton, South Dakota to play golf. All three boys were minors. Both Nickles and Schild had previously received golf instructions and had been taught some golfing rules.

[¶ 3.] After playing five holes, Schild and Nickles proceeded to the next tee box. Sehild’s younger brother was still on the fifth hole green retrieving his ball, which Nickles had knocked a short distance from the green. Schild proceeded to tee up his ball at the front center of the tee box and was preparing to hit his next drive. In the meantime, Nickles moved off the tee box approximately ten feet and was facing the previous green watching Schild’s brother. Schild, who had seen Nickles walk off the tee box, stepped back from his ball and took three practice swings. On the third practice swing, Schild hit Nickles in the head, fracturing his skull and permanently injuring his left eye.

[¶ 4.] Guardián commenced a personal injury action against Schild for damages sustained as a result of Schild’s negligence and failure to exercise reasonable care in swinging his golf club. Schild denied he was negligent and claimed that Nickles was contributorily negligent and assumed the risk of his injuries. During trial, Schild called Robert Boldus (Boldus) as an expert witness. Boldus was a former member of the Professional Golfer’s Association and golf professional at Fox Run Golf Course in Yankton, South Dakota. Boldus had often given golfing lessons to junior golfers while at Fox Run.

[¶ 5.] At trial, Boldus explained the game of golf, rules of etiquette, and what Nickles should have known following his own golf lessons from Boldus at Fox Run. Schild then asked Boldus whether “as a golf professional,” he had “formed any opinions as to what had happened in this case?” Nickles immediately requested permission to briefly interrogate Boldus for purposes of objecting to his opinion. During this interrogation, the following discussion occurred:

Q: (Nickles’ Attorney): Mr. Boldus, as a professional golfer, a member of PGA or based upon your experience, have you had any training in evaluating liability or standards of care required in golf liability cases?
A: (Boldus): No, I haven’t.

Nickles then objected to the opinion by Boldus regarding standards of care or the ultimate issue. The trial judge overruled Nickles’ objection and allowed Boldus to give his opinion:

Q: (Schild’s attorney): And could you tell the jury what opinions you have come to?
A: (Boldus): In my opinion it was an accident. But one of the players moved, and when you’re in your preshot routine if you move, you back away from the ball six inches to a foot or one step, and then you take your practice swings. My opinion, somehow Mark Nickles had moved in the way of the swing and got hit.
Q: (Schild’s attorney): In your opinion did [Schild] violate any standards of care?
A: (Boldus): No.

[¶ 6.] The jury returned a verdict in favor of Schild. Nickles appeals, raising the followmg issue:

Whether the trial court abused its discretion by permitting expert testimony from Boldus.

STANDARD OF REVIEW

[¶ 7.] Our standard of review in reviewing admissibility of expert testimony is well settled. We have often stated that:

[w]e review questions of admissibility of an expert witness’ testimony under an abuse of discretion standard. We have long acknowledged that the trial court has broad discretion concerning the admission of expert testimony. The trial court’s decision on such matters will not be reversed absent a clear showing of an abuse of discretion.

Maroney v. Aman, 1997 SD 73, ¶ 33, 565 N.W.2d 70, 78 (quoting Schaffer v. Edward D. Jones & Co., 1996 SD 94, ¶ 6, 552 N.W.2d 801, 805 (citations omitted)). Thus, for a reversal, Nickles must establish that no “judicial mind, in view of the law and the circumstances, could have reasonably reached the same conclusion.” State v. Barber, 1996 SD 96, ¶ 14, 552 N.W.2d 817, 820.

DECISION

[¶ 8.] Whether the trial court abused its discretion by permitting expert testimony from Boldus.

[¶ 9.] The admissibility of expert testimony is governed by SDCL 19-15-2 (Rule 702). See State v. Edelman, 1999 SD 52, ¶ 4, 593 N.W.2d 419, 421 (quoting State v. Raymond, 540 N.W.2d 407, 409 (S.D.1995)). Under SDCL 19-15-2,

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, (emphasis added).

See Maroney, 1997 SD 73, ¶ 34, 565 N.W.2d at 78.

[¶ 10.] Thus, under this statute, Nickles could have questioned Boldus on whether he possessed the “knowledge, skill, experience, training or education” to answer the question of “what happened in this case.” However, Nickles failed to protect his record, because his sole question to Boldus for purposes of an objection, was: “have you had any training in evaluating Lability or standards of care required in golf liability cases?” (emphasis added). Nickles failed to ask Boldus whether he possessed or lacked the “knowledge, skill, experience or education” by which he obtained the expertise to answer Schild’s question of “what happened in this case.” Under SDCL 19-15-2, an expert is not limited to testifying only upon those areas in which he or she has received formal training. Rather, when giving an opinion, an expert is allowed to draw upon all the knowledge, skill, or experience that he or she has accumulated. See Friendship Heights Assoc. v. Koubek, 785 F.2d 1154, 1159 (4th Cir.1986) (noting that “the use of the disjunctive indicates that a witness may be qualified as an expert on any one of the five listed grounds.”); Hammond v. Int’l Harvester Co., 691 F.2d 646, 653 (3rd Cir.1982) (stating that “an individual need possess no special academic credentials to serve as an expert witness.”).

[¶ 11.] Moreover, while Boldus may not have had any formal classroom “training” in the applicable liability standards, it is clear Boldus was no novice at the game of golf. He was a former member of the PGA and a golf professional at Fox Run Golf Course in Yankton. While at Fox Run, he had often given golf lessons to junior golfers, which included golf etiquette and safety. He had even previously given golf lessons to Nickles. By any of these methods of acquiring the appropriate expertise or combination thereof, he could have qualified himself as an expert to testify as to “what happened.”

[¶ 12.]. It is quite clear from the testimony of Boldus and his vitae that he did have an opinion on the standards of care required in golf and the expertise to give such an opinion. The following testimony regarding the standard of care applicable to the game of golf was elicited from Boldus during direct testimony:

Q: When someone has addressed the ball and stepped back and they’re doing their practice swings, what is the person’s duty when they’re doing those practice swings?
A: Well, basically there’s nothing stated that says that you have to look around. You should be, when you begin your preshot routine, prior to taking your practice swings you should look and kind of [get] an idea where people are at so they are out of your way so you can take a swing. Once you begin your practice swings I think it’s a duty of the other person to stay out of the way.
Q: So once, right before you start your preshot routine is when you have the duty to check what’s going around?
A: Yes.
Q: And then as you start your preshot routine then it’s the duty of those around you to become aware that that’s what you’re going to do, to watch?
A: Yes.

When asked whether he had formed any opinions as to what had happened in this case, Boldus replied:

In my opinion it was an accident. But one of the players moved and when you’re in your preshot routine, if you move, you back away from the ball six inches to a foot or one step, and then you take your practice swings. My opinion, somehow Mark Nickles had moved in the way of the swing and got hit.

Boldus merely described, in his opinion, “what happened in this case” and that Schild’s actions did not violate any standard of care concerning the game of golf. He did not invade the province of the jury as Nickles suggests. Unlike the experts in Robbins v. Buntrock, 1996 SD 84, 550 N.W.2d 422 and Zens v. Harrison, 538 N.W.2d 794 (S.D.1995), Boldus did not testify as to the ultimate issue of negligence. In fact, Boldus did not discuss the issue of liability at all until he was asked upon cross-examination, “but one party is liable, aren’t they?” Boldus responded: “I wouldn’t -yah- I don’t know about liable, but somebody [is responsible for that].” At that point any error was invited by Nickles.

[¶ 13.] Nickles’ objection as to the qualifications of Boldus goes in part to formal training concerning the issue of ultimate liability. The ultimate liability of one of the parties is not the same as standard of care. One can violate a standard of care and still not be held liable. There could be further potential questions of contributory negligence, assumption of the risk, financial responsibility of a minor and/or his parents, questions of duty to supervise a minor and the like, all of which can have a decisive effect on “liability” and which clearly are outside the expertise of a golf pro and his knowledge of golf standards of care. In this case the issues of contributory negligence and assumption of the risk were raised by Schild. Boldus did not testify as to any of these issues, his testimony was limited to describing the standard of care for the game of golf.

[¶ 14.] Niekles argues that this Court should set aside the jury’s verdict upon the rationale that we are faced with the trial court’s allowance of expert witness testimony regarding the violation of the standards of care in the game of golf after the expert admitted that there was no standard of care. That is not what Boldus said. He only testified in response to a question from Niekles that he had no “training in evaluating liability or standards of care required in golf liability cases.” Authority from other jurisdictions makes it very clear that there is a standard of care in golf and that experts can be used to inform the jury of that standard. Other jurisdictions have allowed an expert opinion on golfing etiquette, rules, and customs because they are not “of such common knowledge that a lay juror can form as intelligent and accurate [an] opinion on the subject as can an expert witness.” Thurston Metals & Supply Co. v. Taylor, 230 Va. 475, 339 S.E.2d 538, 542 (1986). See also Boyd J. Peterson, Annotation, Liability to One Struck By Golf Club, 63 A.L.R.4th 221, 228 (stating that “[g]olf custom and etiquette may be important in showing the propriety of the swing, as well as other matters subject to such rules, and although not necessary, such rules may be more credible if presented by an expert witness.”). The trial court properly instructed the jury on this point.

[¶ 15.] The jury was also instructed that it was not bound by the opinion of Boldus in determining questions of fact. The court instructed the jury that it could disregard an expert’s opinion if other evidence in the case outweighed the opinion. Boldus did not declare how he felt the jury should rule. Boldus offered his opinion as to “what happened in this case” and then applied the rules of golf as to the standard of care. The jury was free to give whatever weight to his opinion it determined appropriate, by completely disregarding the opinion of Boldus, or by endorsing it. It is apparent that the jury chose to accept it.

[¶ 16.] Niekles had the opportunity to call his own expert and chose not to do so. He also had a chance to thoroughly cross-examine Boldus and to point out to the jury any defects or weaknesses in his testimony. Thus, any complaint by Niekles goes to the weight of the evidence rather than its admissibility. Estate of Dokken, 2000 SD 9, ¶ 41, 604 N.W.2d 487, 499.

[¶ 17.] For the foregoing reasons we hold that the trial court did not abuse its discretion in allowing the testimony of Bol-dus. We affirm.

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

[¶ 19.] SABERS and AMUNDSON, Justices, dissent.

[¶ 20.] Justice Sabers had disqualified himself; said disqualification was waived by all counsel and parties.

SABERS, Justice

(dissenting).

[¶ 21.] I dissent.

[¶ 22.] I write specially to point out that the majority opinion misses the point - not once, but several times.

[¶ 23.] Whether Boldus was qualified as an expert witness is immaterial. The point is that under the pretense of being an expert witness - Boldus cannot testify as a fact witness. He was not present at the scene. He does not know what happened. Only fact witnesses can testify - “as to what happened?”

[¶24.] Therefore, under these circumstances, it was totally improper for Boldus to testify to his opinion “as to what happened in this case.” Therefore, we should reverse and remand for a new trial.

[¶ 25.] I also join the dissent of Justice Amundson.

AMUNDSON, Justice

(dissenting).

[¶26.] The, admissibility of expert testimony is governed by SDCL 19-15-2 (Rule 702). See State v. Edelman, 1999 SD 52, ¶ 6, 593 N.W.2d 419, 421 (quoting State v. Raymond, 540 N.W.2d 407, 409 (S.D. 1995)). Under SDCL 19-15-2,

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine'a fact in issue, a witness qualified , as an expert by knowledge, skill, experience, training, or education, may testify thereto in- the form of an opinion or otherwise.

See Maroney, 1997 SD 73, ¶34, 565 N.W.2d at 78.

[¶ 27.] In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592-93, 113 S.Ct. 2786, 2794, 125 L.Ed.2d 469, 480 (1993), the United States Supreme Court established specific standards for admission of expert scientific testimony. This Court followed Daubert in State v. Hofer, 512 N.W.2d 482, 484 (S.D.1994) when-we held that a trial judge must ensure that an expert’s testimony rests on both “a reliable foundation and is relevant to the task at hand.” The trial judge - must also “make the initial decision on-whether the testimony will assist the trier .of fact.” Schaffer, 1996 SD 94, ¶ 8, 552 N.W.2d at 805 (citing Nebraska Depository Inst. Guar. Corp. v. Stastny, 243 Neb. 36, 497 N.W.2d 657, 670 (1993)).' The United States Supreme Court recently expanded: its Daubert gate-keeping decision to be applicable to “ ‘technical’ and ' ‘other specialized’ ” expert testimony, in addition to the testimony of scientific experts. ' See Kumho Tire Co. v. Carmichael, 526 U.S. 137, 141, 119 S.Ct. 1167, 1171, 143 L.Ed.2d 238, 249 (1999) (citing FedREvid 702). See also Estate of Dokken, 2000 SD 9, ¶ 51, 604 N.W.2d 487, 500 (Amundson, J., concurring specially) (quoting Kumho as expanding the Daubert gate-keeping function). This Court recognized in Kuper v. Lincolm-Union Electric Co., 1996 SD 145, ¶ 41, 557 N.W.2d 748, 760, that “when the trial court is ruling on the admissibility of an expert opinion, the trial court needs to exercise its gatekeeping function” to determine that the opinion has a rehable foundation and is relevant to the case at hand.

[¶ 28.] Nickles argues that the trial court abused its discretion in its role as “gatekeeper” by permitting Boldus to testify as to what he “perceived to be applicable standards of care for golf course conduct by both Nickles and Schilds.”

[¶ 29.] Other jurisdictions have allowed an expert opinion on golfing etiquette, rules, and customs because they are “not of such common knowledge that a lay juror could form an intelligent and accurate opinion as an expert could.” Stephenson v. Redd, 1990 WL 751302, at *2 (Va. Cir. Ct.1990) (citing Thurston Metals & Supply Co. v. Taylor, 230 Va. 475, 339 S.E.2d 538, 542 (1986)). See also Boyd J. Peterson, Annotation, Liability to One Struck By Golf Club, 63 A.L.R.4th 221, 228 (1988) (stating that “[g]olf custom and etiquette may be important in showing the propriety of the swing, as well as other matters subject to such rules, and although not necessary, such rules may be more credible if presented by an expert witness”).

[¶ 30.] While this Court has never been confronted with expert testimony regarding a golf club accident, it is clear there was no error to allow expert golfer to testify as to the rules, etiquette, and customs of golf to assist the jury in understanding the issues and deciding the case. In the present case, however, Boldus not only testified as to golf rules, etiquette and customs, he also provided his opinion as to what he believed happened and concluded that there was a violation of a standard of care but failed to establish what standards control the determination of liability in a golfing incident.

[¶ 31.] In Robbins v. Buntrock, 1996 SD 84, 550 N.W.2d 422, this Court was faced with whether the opinion testimony from a police officer who investigated the motorcycle/automobile accident between Robbins and Buntrock was inadmissible. At trial, Robbins wanted Officer Sambo to “ ‘explain to the jury why [Buntrock] was negligent, and how that negligence caused this accident[.]’ ” Id. ¶ 8, 550 N.W.2d at 425. In holding the testimony inadmissible, we stated:

Trial courts possess broad discretion in ruling on the qualifications of experts and admissibility of their testimony.... Although SDCL 19-15-4 (Rule 704) has been revised, allowing witnesses to testify on ultimate issues, opinions must still help the trier of fact to understand the evidence or determine issues of fact. Resolving negligence questions is an elemental jury function and opinions couched purely in terms of negligence may confuse and misdirect, rather than assist the jury.

Id. (internal citations omitted).

[¶ 32.] In Zens v. Harrison, 538 N.W.2d 794 (S.D.1995), Zens brought suit against Harrison after falling off Harrison’s roof while assisting him in reshingling. At trial, Zens called Steve Pelzl as an expert on roofing and roofing safety. Id. Pelzl testified that Harrison inadequately instructed and supervised Zens. Id. at 795. The trial court ultimately disallowed Pelzl from responding to Zens’ question of “whether Harrison was ‘negligent’ in his instruction and supervision of the workplace.” Id. In affirming the trial court’s disallowance of Pelzl’s testimony, we held:

In 1993 SDCL 19-15-4 (Rule 704) was amended to adopt verbatim the federal rule and abolish the ultimate issue rule....
Thus, even with the abolition of the ultimate issue rule, certain expert opinions may be excluded as intrusive. “With respect to negligence actions, an opinion phrased in terms of negligence itself, involving not only the formulation of a legal standard by the witness but also one substantially immune to exploration, seems calculated to confuse or mislead rather than assist the trier.”
“The law permits expert opinion testimony because the expert can draw inferences beyond the capability of lay jurors.” Determining negligence has always been the jury’s function.

Id. at 795-96 (internal citations omitted).

[¶ 33.] In the present case, we are not faced with the trial court’s disallowance of an expert’s testimony. On the contrary, we are faced with the trial court’s allowance of expert witness testimony regarding the violation of the standards of care in the game of golf after said witness admitted there was no such standard of care. While Boldus’ testimony regarding golf etiquette and customs may have been beneficial to the jurors, an opinion as to a violation of an unknown standard of care went too far. Based upon the prior testimony of Boldus that no standard existed, what standard was supposed to have been violated? The answer to that is a mystery. We have often stated determining negligence, contributory negligence and assumption of the risk are within the province of the jury. See Bland v. Davison County, 1997 SD 92, ¶ 27, 566 N.W.2d 452, 460; Gerlach v. Ethan Lumber Ass’n, 478 N.W.2d 828, 830 (S.D.1991). To allow the admission of this speculative and conjectural opinion would shift the responsibility of determining the negligence in this golf case from the jury to the expert witness. This is a classic example of intrusion by an expert in order to mislead the jury. Thus, the trial court abused its discretion in admitting Boldus’ opinion regarding the violation of a phantom standard.

[¶ 34.] I would reverse and remand for a new trial.

      . For example when asked if there was “a specific set of rules for golf,” Boldus answered:
      The United Slates Golf Association in conjunction with the Royal and Ancient Golf Club have established what we consider to be the rules of golf and they publish a book yearly that explains the rules. It covers how to play the game. There is an area in there on etiquette. But that’s who publishes the book.

      . To provide a factual basis for his opinion, Boldus had read the depositions of Jay Schild, Mark Nickles and Mark Schild. Boldus had also sat through the trial and listened to the witnesses including Jay Schild, Mark Schild and Mark Nickles who testified prior to his testimony.

      . In Buntrock, a police officer was asked to " 'explain to the jury why [Buntrock] was negligent, and how that negligence caused this accident[.]’ ” 1996 SD 84, ¶ 8, 550 N.W.2d at 425 (alterations in original). That testimony was held to be inadmissible by the trial court. On appeal we found no abuse of discretion.

      .In Zens, the trial court would not allow an expert on roofing safety to testify on "whether Harrison was 'negligent' in his instruction and supervision of the workplace.” 538 N.W.2d at 795. The trial court's decision was affirmed on appeal under an abuse of discretion standard of review.

      . Schild briefly mentions in a footnote in his brief that Nickles did not raise the Daubert gatekeeping issue before the trial court.


author: JAMES W. ANDERSON, Circuit Judge

text:
    2000 SD 132
    Leslie Tyler WATSON-WOJEWSKI, Plaintiff and Appellee, v. Paul A. WOJEWSKI, M.D., Defendant and Appellant.
    No. 21083.
    Supreme Court of South Dakota.
    Argued June 1, 2000.
    Decided Oct. 11, 2000.

      Linda Lea M. Viken of Viken, Viken, Pechota, Leach & Dewell, Rapid City, South Dakota, Attorneys for plaintiff and appellee.
    Joseph M. Butler of Bangs, McCullen, Butler, Foye & Simmons, Rapid City, South Dakota, Attorneys for defendant and appellant.
   JAMES W. ANDERSON, Circuit Judge

[¶ 1.] Paul Wojewski appeals a circuit court order which increased his child support obligation and imposed other obligations not expressly mandated by the South Dakota child support statutes. Paul also contends that in setting child support, the circuit court erroneously excluded the potential value of his ex-wife’s liquid assets from her gross income. We reverse and remand for further findings.

FACTS

[¶ 2.] Paul Wojewski (Paul) is a successful cardiac surgeon and Leslie Tyler Watson-Wojewski (Tyler) -is a former news anchor who currently operates a daycare business. They met and married in 1988 and had one child, John Paul. John Paul was approximately four and a half years old at the time of the modification order at issue.

[¶ 3.] Beginning in July 1996, Paul suffered a psychotic episode caused by a bipolar condition. During this time, he told Tyler he wanted a divorce, chartered a jet to California and engaged in other bizarre behavior. Paul eventually received medical treatment for his condition and his psychotic episode was brought under control in late October 1996. Since this time, Paul has consistently taken his medication and received psychological assistance to keep his bipolar condition under control.

[¶ 4.] Prior to Paul’s manic episode, he was highly regarded as a surgeon and his income ranged from approximately $40,000 to $70,000 monthly. After the episode, his hospital privileges were taken away and he was unable to practice his profession for approximately one year. After treatment, he began the process of rebuilding his medical practice, earning back his reputation as a surgeon and increasing his income to his pre-illness level.

[¶ 5.] The divorce trial was held before the Honorable Merton B. Tice, Jr., on August 12 through 16, 1997. On December 12, 1997, Paul and Tyler entered into a post trial stipulation and agreement in which Tyler waived any alimony claim in exchange for a negotiated property settlement. On the same date, Judge Tice signed the judgement and decree of divorce. This decree incorporated the post trial stipulation. In addition, Tyler was given primary physical custody of John Paul and Paul was granted reasonable visitation. The decree also ordered Paul to pay $2000 per month child support subject to six month reviews until Paul had reestablished his practice and his pre-illness income level.

[¶ 6.] On September 14, 1998, Tyler filed a motion for review of child support. She alleged that she had difficulty meeting the actual needs of John Paul which included a maintenance of his pre-divorce standard of living. She also argued that because Paul’s income had greatly increased since the time of the original child support order, John Paul’s standard of living would have likewise increased. The motion was tried before Judge Tice on January 19 and 20,1999.

[¶ 7.] The circuit court issued its findings on Tyler’s motion on May 27, 1999 and set Paul’s monthly child support amount at $4,200. The court found that Paul’s gross income at the time of the hearing was $74,267 a month with a child support net of $46,501. The court also determined that Tyler’s gross income at the time of the hearing was $2,948 per month with a child support net of $2,367.

[¶ 8.] When determining Tyler’s gross income, the court included her interest and capital gain income from an individual investment account and the income from her daycare. The court did not include potential income from certain limited partnership interests.

[¶ 9.] The court also ordered payments for John Paul’s education. It required Paul to pay 90 per cent of the ongoing cost of private schooling for John Paul. It also ordered Paul to deposit $400 per month into an account established exclusively for John Paul’s post high school education.

[¶ 10.] Finally, the court declared that it had taken Paul’s air travel costs for visitation into account when setting the $4,200 per month child support award. Therefore, the court ordered Paul to pay Tyler $345 for any month he did not exercise visitation.

[¶ 11.] Additional facts will be discussed as they relate to particular issues.

[¶ 12.] Paul appeals four issues:

Whether the circuit court considered both the actual needs and standard of living of the child under SDCL 25-7-6.9 when setting child support based on a combined net income above the child support schedule?
Whether the circuit court should have included the potential income from and appreciation in value of Tyler’s liquid assets when calculating her monthly net income for child support purposes under SDCL 25-7-6.3?
Whether the circuit court abused its discretion by ordering Paul to pay $400 per month into a special account to be used for John Paul’s post minority college education?
Whether the circuit court abused its discretion by ordering Paul to reimburse Tyler $345 for every month he did not travel from Rapid City to Houston to visit John Paul?

STANDARD OF REVIEW

[¶ 13.] We first note the standard of review for each issue presented. We review findings of fact under the clearly erroneous standard. To overturn the circuit court’s findings, this Court must be left with a definite and firm conviction that a mistake has been made. Billion v. Billion, 1996 SD 101, ¶ 13, 553 N.W.2d 226, 230 (citing Parsons v. Parsons, 490 N.W.2d 733, 736 (S.D.1992) (Parsons IP).) Questions of law are fully reviewable. Hendricksen v. Harris, 1999 SD 130, ¶ 7, 600 N.W.2d 180, 181.

[¶ 14.] This Court will not disturb a child support award unless the trial court clearly abused its discretion. Steffens v. Peterson, 503 N.W.2d 254, 257 (S.D.1993). Abuse of discretion is “ ‘a discretion exercised to an end or purpose not justified by, and clearly against, reason and evidence.’ ” Billion, 1996 SD 101 at ¶ 14, 553 N.W.2d at 230 (quoting Kanta v. Kanta, 479 N.W.2d 505, 507 (S.D.1991)). This Court does not determine whether it would have made the ruling in question, but rather “whether a judicial mind, in view of the law and circumstances of the particular case, could reasonably have reached such a conclusion.” Id. (citing Nelson v. Nelson, 454 N.W.2d 533, 534 (S.D.1990)).

DECISION

ISSUE ONE

[¶ 15.] Whether the circuit court considered both the actual needs and standard of living of the child under SDCL 25-7-6.9 when setting child support based on a combined net income above the child support schedule?

[¶ 16.] Paul argues that the monthly $4,200 child support award was excessive under the evidence and applicable law. Paul claims that: (1) the circuit court considered expenses which related solely to Tyler’s needs; and (2) the circuit court failed to consider the actual needs of the child as required by SDCL 25-7-6.9. Paul asserts, therefore, that part of the child support award must be either de facto alimony or a pre-distribution of Paul’s estate.

[¶ 17.] In order to address these contentions, we must look to the circuit court’s findings of fact on the child support calculation. A main purpose of such findings is “to aid the appellate court in reviewing the basis for the trial court’s decision[.]” Heikkila v. Carver, 416 N.W.2d 591, 592 (S.D.1987) (citing J. Moore & J. Lucas, 5A Moore’s Federal Practice, ¶ 52.06[1] (1987) and C. Wright & A. Miller, 9 Federal Practice and Procedure § 2571 (1971)). Therefore, “[i]t is for the trial court to make adequate findings to enable us to make a meaningful review.”. Jensen v. Weyrens, 474 N.W.2d 261, 266 (S.D.1991) (Sabers, J., concurring in part and dissenting in part). In child support cases, we must have sufficient findings of fact to “make the appropriate calculations and render a meaningful review[.]” Grunewaldt v. Bisson, 494 N.W.2d 193, 195 (S.D.1992).

[¶ 18.] In this case, there were very limited findings on the child support calculation. The circuit court found that Paul’s child support net was $46,501 per month and that Tyler’s child support net was $2,367 per month. The court also concluded that “the proportion of the parents’ child support income is 90% for [Paul] and 10% for [Tyler].” In addition, the court mentioned Tyler’s budget, which showed monthly expenses over $14,000, but it did not make specific findings about which of these budget items were allowed.

[¶ 19.] These limited findings do not illustrate how the circuit court calculated the $4,200 per month child support award. Therefore, we are unable to “make the appropriate calculations and render a meaningful review.” Id. As a result, we must reverse and remand to the circuit court for sufficient findings on the child support figure to allow us meaningful review of Paul’s contentions. See Grade v. Grade, 1996 SD 15, ¶ 29, 543 N.W.2d 795, 803 (failure to make adequate findings constitutes reversible error).

[¶ 20.] After reviewing Tyler’s budget, however, we are compelled to provide some guidance to the circuit court on remand. The first point of guidance concerns any items of Tyler’s budget which relate solely to her needs. Under SDCL 25-7-6.9, the trial court is to establish child support “at an appropriate level, taking into account the actual needs and standard of living of the child.'’ SDCL 25-7-6.9 (emphasis added). The custodial parent has the burden of proving his or her claimed expenses reflect the child’s needs and standard of living. Ochs v. Nelson, 538 N.W.2d 527, 530 (S.D.1995) (citing Jones v. Jones, 472 N.W.2d 782, 785 (S.D. 1991)).

[¶21.] In regard to this test, we have stated that “[t]he indirect financial benefit a custodial spouse receives cannot serve as a justification for denial of support to children whose actual needs and standard of living warrant a particular award.” Billion, 1996 SD 101 at ¶ 44, 553 N.W.2d at 236. However, SDCL 25-7-6.9 does not authorize “an alimony/palimony windfall contained in the rhetoric of child support.” Ochs, 538 N.W.2d at 533 (Amundson, J., concurring in part and dissenting in part).

[¶22.] Clearly, Tyler will get an indirect benefit from any child support award to John Paul. What is troubling, however, is Tyler’s admission at the modification hearing that she made no attempt whatsoever to allocate expenses between herself and John Paul. This testimony indicates that her budget likely contains some figures which were expended strictly for her own needs. Therefore, the circuit court must make specific findings on Tyler’s budget items on remand and disallow any expense which Tyler has not proven necessary for John Paul’s actual needs and standard of living.

[¶ 23.] The second point of guidance is that the circuit court must consider both the actual needs and standard of living of John Paul. Although the circuit court mentioned both actual needs and standard of living in its findings, it failed to enter specific findings on either of these factors.

[¶24.] The court need not enter specific findings on actual needs and standard of living if proof of both exists. Bloom v. Bloom, 498 N.W.2d 213, 217 (S.D.1993) (citing Jones, 472 N.W.2d at 785). However, Tyler did not present evidence of the actual needs of John Paul at the modification hearing, only his standard of living. For example, Tyler borrowed some funds from her parents to maintain her standard of living. She also clearly admitted that her budget was based on the pre-divorce standard of living of she and John Paul, not her actual expenditures. In fact, there was little evidence of the actual needs of John Paul between the first support order and the modification hearing.

[¶ 25.] Because such evidence of actual needs was lacking, the circuit court was not excused from making findings on actual needs under Jones. Therefore, the court must make findings on both John Paul’s actual needs and standard of living on remand.

[¶ 26.] In summary, we reverse the circuit court’s $4,200 monthly child support order. We remand for the circuit court to make specific findings on its calculation of the monthly child support figure. In making these findings,- the court should not consider any items of Tyler’s budget relating solely to her own needs. Moreover, the court should make specific findings on both John Paul’s actual needs and standard of living.

ISSUE TWO

[¶ 27.] Whether the circuit court should have included the potential income from Tyler’s liquid assets when calculating her monthly net income for child support purposes under SDCL 25-7-6.3?

[¶ 28.] Paul claims that the circuit court inappropriately excluded from Tyler’s gross income the potential income from Tyler’s personal investment account, Northern Trust, and her limited partnerships, Watfield Ltd. and 56585963 Ltd. As such, he argues that Tyler’s child support net income must be recalculated on remand.

[¶ 29.] The first question is whether the limited partnerships’ tax reportable income should have been included.in Tyler’s gross income. At the hearing, Tyler presented expert testimony that although her tax return showed -income- from the limited partnerships, these funds remained in the partnerships. The circuit court found that “although [Tyler] shows ‘income’ from the partnership on her tax return, [there] áre no actual dollars coming to her, but tax reportable income only.” As a result, the court did not consider the limited partnership income when setting Tyler’s child support net income at $2,367 per month.

[¶ 30.] One definition of gross income in the South Dakota child support statutes provides that:

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

SDCL 25-7-6.6 (emphasis added). The income reported on the limited partnership tax returns fits within the other sources listed in SDCL 25-7-6.6. Regardless of whether Tyler actually received this partnership income,- it was nevertheless “net profits or gain ... filed as part of [her] federal income tax returns.” Id. Hence, it was part of her gross income.

[¶ 31.] This reading is consistent with our treatment of corporate retained earnings; such, earnings are gross income under SDCL 25-7-6.6. Ochs, 538 N.W.2d at 529. In Ochs, these earnings were described as follows:

An accountant testified that retained earnings will not translate into an equivalent amount of cash and the company needs these earnings to maintain growth. The company’s banker verified that due to company debt, it had agreed not to draw out its retained earnings. On the other hand, Robert borrowed $79,600 from the company, for which there had been no repayment made in over three years. These conflicting matters were factual issues for the trial court to unravel. Robert'fails to show why retained earnings from a closely held corporation do not fall within the ambit of this statute. Other jurisdictions have similarly found it appropriate to consider corporate retained earnings as income for the purposes of calculating child support.

Id. (emphasis and footnote added)

[¶ 32.] This description of corporate retained earnings and Tyler’s description of the limited partnership income are quite similar. Both entities hold onto earnings and reinvest them into the entity. Both entities must report these earnings on their tax return. Neither entity pays these earnings as cash. If retained earnings are income for child support purposes, then the earnings from Tyler’s limited partnership interests are also income. As a result, the circuit court should have considered the income from Tyler’s family limited partnerships as part of her gross income. This Court orders the circuit court on remand to include in Tyler’s gross income any profits from the limited partnerships shown on her tax return.

[¶ 33.] Having addressed the first question under issue two, whether the limited partnership income should have been part of Tyler’s gross income, we turn to the second question: whether Tyler’s capital accounts in the limited partnerships should be considered part of her gross income.

[¶ 34.] The relevant statute provides that:

The monthly gross income of each parent includes amounts received from the following sources:
(4) Interest, dividends, rentals, royalties or other gain derived from investment of capital assets[.]

SDCL 25-7-6.3 (emphasis added). We read this provision to include a capital account received from a limited partnership.

[¶ 35.] The real question, then, is whether Tyler can actually receive her capital account. According to the limited partnership agreements:

The General Partner may, and if there is more than one General Partner then they may, by unanimous decision of all the General Partners, return capital contributions or allocate net profits to the partners.... No partner shall be entitled to withdraw or demand the return of any part of his or her capital account except upon dissolution or winding up of the partnership and as specifically provided for in this Agreement. (emphasis added).

As can be seen from this language, a limited partner can usually receive his or her capital account only after dissolution and winding up of the partnership. However, this agreement specifically provides that Tyler can access her capital contributions if all the general partners agree.

[¶ 36.] In an affidavit, Tyler’s sister Terri Watson states that Terri is the general partner of Watfield Ltd. and that Tyler has unilateral access to her individual account in Watfield Ltd. This evidence is sufficient to warrant findings of fact on whether Tyler’s capital account in Watfield Ltd. is available to her under SDCL 25-7-6.3 and therefore part of her gross income. On remand, the circuit court should make findings of fact on the accessibility of Tyler’s capital contributions in Watfield Ltd.

[¶ 37.] The finai question is whether the circuit court should have considered the investment potential of Tyler’s individual account with Northern Trust. Paul claims that the circuit court erred by considering only the actual income of this investment. He argues that because Tyler controls the investment mix and, hence, the income, the court should have considered what the account would have made if conservatively invested.

[¶ 38.] We need not address the merits of this issue. Although Paul proposed findings on several investment possibilities for Tyler’s individual account, he did not present evidence of these investment possibilities at the modification hearing. Findings of fact must be based on evidence in the record. Nelson v. State Bd. of Dentistry, 464 N.W.2d 621, 625 (S.D.1991); Farmers Union Coop. v. Schladweiler Bros., 448 N.W.2d 650, 653-54 (S.D.1989); Sanborn v. Farmers Union Elevator Co., 68 S.D. 138, 299 N.W. 258, 259 (S.D.1941). Therefore, because Paul presented no evidence of investment possibilities at the modification hearing, he waived any findings on this issue.

[¶ 39.] On remand, we direct the circuit court to include Tyler’s tax reportable limited partnership income when setting her gross income. We also direct the circuit court to make findings on whether Tyler’s capital account in Watfield -Ltd. is accessible to her.

ISSUE THREE

[¶ 40.] Whether the circuit court abused its discretion by ordering Paul to pay $400 per month into a special account to be used for John Paul’s post minority college education?

[¶ 41.] The third issue is whether the circuit court abused its discretion when it ordered Paul to pay $400 per month into a post minority college education account. Resolution of this issue turns on SDCL 25-5-18.1:

The parents of any child are under a legal duty to support their child in accordance with the provisions of § 25-7-6.1, until the child attains the age of eighteen, or until the child attains the age of nineteen if he is a full-time student in a secondary school, (emphasis added).

[¶ 42.] This Court has interpreted SDCL 25-5-18.1 as follows:

The statute simply does not provide the trial court with the authority or discretion to extend the application of the statute beyond the age of nineteen.... We cannot extend a statute where its plain language dictates the result.
We hold that where the parties do not otherwise agree ... the trial court may not impose a duty to support beyond nineteen.

Birchfield v. Birchfield, 417 N.W.2d 891, 895 (S.D.1988) (citations omitted) (emphasis added). Therefore, the ongoing college fund is authorized only if Paul has agreed to pay for John Paul’s college education. [¶ 43.] The agreement in this case provided that Paul would “in good faith provide for a college education for John Paul to the best of his ability at that time.” (emphasis added). According to the plain language of this stipulation, Paul has agreed to provide for John Paul’s college education if, and only if, Paul is financially able to do so at the time John Paul reaches college age. Paul has not agreed to pay now. If Tyler wanted a higher education guarantee from Paul, she should have specifically negotiated for it in the post trial stipulation.

[¶ 44.] In summary, SDCL 25-5-18.1 does not authorize an ongoing higher education fund as part of a child support award unless the parties so agree. Because Paul did not agree to the ongoing fund, the circuit court abused its discretion. We therefore reverse on this issue.

ISSUE FOUR

[¶ 45.] Whether the circuit court abused its discretion by ordering Paul to reimburse Tyler $345 for every month he did not travel from Rapid City to Houston to visit John Paul?

[¶ 46.] Paul claims that the circuit court abused its discretion by ordering him to pay Tyler a penalty for every month he failed to fly to Houston to visit John Paul. Judge Tice’s reasoning for this order was as follows:

[T]his Court having considered the cost of air travel of [Paul] for visitation purposes when setting the foregoing support, should there be any month in which [Paul] does not exercise visitation of John Paul, he shall pay to [Tyler] an additional sum of $345 to be included along with the child support payment for the succeeding month. This amount shall be considered child support, (footnote added).

[¶ 47.] The circuit court has statutory authority to allocate travel costs between the parties:

If travel costs are substantial due to the distance between the parents, the court may order the allocation of such costs, taking into consideration the circumstances of the respective parties as well as which parent moved and the reason that the move was made.

SDCL 25-7-6.15. However, the intermingling of travel costs with the actual child support figure, as was done in this case, gives the appearance of a penalty for non-visitation. This situation should be avoided. See Hathcock v. Hathcock, 685 So.2d 736, 738 (Ala.Civ.App.1996) (Penalty for nonvisitation disallowed). Therefore, the allocation of travel costs under SDCL 25-7-6.15 shall be separate and distinct from the monthly child support award.

[¶ 48.] Based upon the foregoing, we hold that the circuit court abused its discretion by requiring Paul to pay $345 for every month he did not fly to Houston to visit John Paul and we reverse on this issue. If the circuit court again allocates travel costs on remand, it must separate this allocation from the monthly child support amount.

[¶ 49.] Reversed and remanded for proceedings consistent with this opinion and for further findings.

[¶ 50.] SABERS, and AMUNDSON, and GILBERTSON, Justices, and FLEMMER, Circuit Judge, concur.

[¶ 51.] JAMES W. ANDERSON, Circuit Judge, for MILLER, Chief Justice, disqualified.

[¶ 52.] FLEMMER, Circuit Judge, for KONENKAMP, Justice, disqualified.

      . Net income for child support purposes is monthly gross income less allowable deductions under the South Dakota child support statutes. See SDCL 25-7-6.3 to 25-7-6.7.

      . Tyler and John Paul currently reside in Houston, Texas.

      .Paul pointed out in oral argument that his monthly child support obligation is actually closer to $6,000 per month ($4,200, $400 college fund, $375 missed visitation charge, $600 private schooling, and approximately $1000 in counseling charges). Paul has not appealed the private schooling payment or counseling charges and we will address the college fund and missed visitation payment separately. Therefore, we address only the $4,200 child support award here.

      . “For a combined net income above the schedule in § 25-7-6.2, the child support obligation shall be established at an appropriate level, taking into account the actual needs and standard of living of the child." SDCL 25-7-6.9.

      . Although our decision in Grunewaldt addressed a child support award under the schedule, our reasoning is equally applicable to incomes above the schedule. We must be able to follow the circuit judge's reasoning for setting the specific child support amount.

      . We leave it to the circuit court to determine which items, if any, on remand.

      . At one point, Tyler had a motion before the circuit court for reconsideration of alimony. However, she seems to have dropped this motion at the child support modification hearing. Tyler cannot now use child support as a back door to alimony.

      . Tyler claims that we added retained earnings to the father's gross income in Ochs only because he had already borrowed almost $80,000 of these earnings. However, in at least one of the cases cited by this Court in support of its holding, there was no indication that the parent had withdrawn any of the retained earnings. See Merrill v. Meirill, 587 N.E.2d 188 (Ind.Ct.App.1992). Therefore, the holding in Ochs is not tied to the fact that the father had already taken out some of the earnings in the form of loans.

      . Tyler points out that the original contributions to the partnerships were a gift from her mother. While this fact might have some relevance to property division, we fail to see its relevance for child support purposes.

      . Paul has directed this Court to no evidence that the capital account in the other partnership, 56585963 Ltd., was available to Tyler. Therefore, the circuit court need not consider Tyler’s capital account in 56585963 Ltd. on remand.

      .Paul introduced exhibits at the modification hearing on the historical growth of Tyler's individual account. However, he presented no specific evidence of what Tyler’s investments could earn if invested in particular securities at a particular rate of return. Such evidence first appeared in Paul’s proposed findings after the modification hearing.

        . Tyler claims that SDCL 25-4-45 authorizes the monthly payment. However, that statute simply authorizes the circuit court to give direction for education of the children in an action for divorce. It does not extend to conflict with the support ceiling of SDCL 25-5-18.1.

      . Although requiring an ongoing higher education fund in a case such as this might be equitable, it is not authorized by SDCL 25-5-18.1. Such authorization would have to come from the legislature, not this Court.

      . Due to the lack of findings on the child support calculation, we cannot determine where this allocation was made. However, this lack of factual findings is not important to our decision on this issue.