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

text:
    2000 SD 121
    Bonnie NICKERSON and Richard Nickerson, Plaintiffs and Appellants, and Catherine Day Breitag and Don Breitag, Plaintiffs, v. AMERICAN STATES INSURANCE, a corporation, Defendant and Appellee, and Allied Mutual Insurance Company, a corporation, and Dakota Fire Insurance Company, a corporation, Defendants.
    No. 21081.
    Supreme Court of South Dakota.
    Considered on Briefs Jan. 10, 2000.
    Reassigned June 19, 2000.
    Decided Aug. 30, 2000.

      James E. Carlon of Carlon Law Office, Pierre, South Dakota, Attorneys for plaintiffs and appellants.
    John J. Delaney of Delaney & Sumner, Rapid City, South Dakota, Attorneys for defendant and appellee.
   SABERS, Justice (on reassignment).

[¶ 1.] Bonnie Nickerson sued her insurer, American States Insurance, for under-insured motorist (UIM) coverage. The circuit court granted summary judgment ⅛ favor of American States. She appeals and we affirm.

FACTS

[¶ 2.] Bonnie Nickerson and Catherine Day Breitag were employed with Oahe, Inc. On March 18, 1996, they were traveling from Pierre to Rapid City, South Dakota on a business trip. Nickerson rode with Breitag who drove her personal vehicle instead of a company vehicle. As they drove west on Highway 14, they met a vehicle driven by Tommie Bruce. Bruce was traveling east when he fell asleep at the wheel, crossed the centerline and collided head-on with Breitag’s vehicle. The collision resulted in a fatality in Bruce’s vehicle and serious injuries to both Nicker-son and Breitag. Nickerson’s injuries resulted in damages in excess of $100,000.

[¶ 3.] The tortfeasor, Bruce, had liability coverage with Prudential Property and Casualty Insurance Company. In accordance with a mediation resolution, Prudential paid Nickerson $50,000. Thereafter, Nick-erson made a claim for UIM benefits with: (1) her automobile insurance company, American States Insurance; (2) Breitag’s automobile insurer, Dakota Fire Insurance; and (3) Oahe Inc.’s fleet automobile insurer, Allied Mutual Insurance Company. The UIM policy limits with American States and Dakota Fire were $100,000 while the limit with Allied Mutual was $1,000,000.

[¶ 4.] Nickerson brought a declaratory judgment action to determine coverage between these three UIM insurers. A companion case was filed in federal court against American States and Allied Mutual. However, the federal court determined that it did not have jurisdiction between Nickerson and American States because the amount in controversy was only $50,-000. After determining that it had jurisdiction over Allied Mutual, it ruled in favor of Allied Mutual and Nickerson appealed to the Eighth Circuit Court of Appeals. Once the federal court entered its judgment, the declaratory judgment action pending in state court between Allied Mutual and Nickerson was dismissed.

[¶ 5.] During these proceedings, Dakota Fire agreed that it was the primary UIM insurer and that Nickerson was an “insured.” It settled and paid Nickerson $50,000 in UIM coverage.

[¶ 6.] The remaining parties, American States and Nickerson, filed cross motions for summary judgment. American States argued that the payment of $50,000 by the tortfeasor and the additional $50,000 payment by the primary UIM insurer, Dakota Fire, precludes any recovery from its $100,000 policy. On the other hand, Nick-erson argued that American States cannot claim an offset for the $50,000 paid by the primary UIM insurer and she is entitled to recover $50,000 from American States. The circuit court granted summary judgment to American States and Nickerson appeals.

STANDARD OF REVIEW

[¶ 7.] Our standard of review for summary judgment is well established and briefly is ‘“whether a genuine issue of material fact exists and whether the law was correctly applied.’ ” Manuel v. Wilka, 2000 SD 61, ¶ 17, 610 N.W.2d 458, 462 (quoting Parmely v. Hildebrand, 1999 SD 157, ¶ 7, 603 N.W.2d 713, 715-16 (citations omitted)).

[¶ 8.] WHETHER AN EXCESS UIM INSURER IS ENTITLED TO OFFSET AMOUNTS PAID BY A PRIMARY UIM INSURER.

[¶ 9.] Nickerson maintains that she is entitled to recover $50,000 in UIM benefits from the excess UIM insurer, American States, because it cannot offset the $50,000 paid by Dakota Fire, the primary UIM carrier.

[¶ 10.] The South Dakota Legislature has addressed this issue:

Subject to the terms and conditions of such underinsured motorist coverage, the insurance company agrees to pay its oum insured for uncompensated damages as its insured may recover on account of bodily injury or death arising out of an automobile accident because the judgment recovered against the owner of the other vehicle exceeds the policy limits thereon. Coverage shall be limited to the underinsured motorist coverage limits on the vehicle of the party recovering less the amount paid by the liability insurer of the party recovered against.

SDCL 58-11-9.5 (emphasis added). We have referred to this enactment as “a difference of the limits statute.” Farmland Ins. Co. v. Heitmann, 498 N.W.2d 620, 625 (S.D.1993).

[¶ 11.] Statutory interpretation is a question of law, which is reviewed de novo. We are guided by specific rules of statutory construction:

One of the primary rules of statutory ... construction is to give words and phrases their plain meaning and effect. This court assumes that statutes mean what they say and that legislators have said what they meant. When the language of a statute is clear, certain and unambiguous, there is no occasion for construction, and the court’s only function is to declare the meaning of the statute as clearly expressed in the statute.

South Dakota Subsequent Injury Fund v. Federated Mutual Ins., Inc., 2000 SD 11, ¶ 17, 605 N.W.2d 166, 169 (quoting South Dakota Subsequent Injury Fund v. Casualty Reciprocal Exchange, 1999 SD 2, ¶ 17, 589 N.W.2d 206, 209 (other citations omitted)).

[¶ 12.] The language of this statute is clear and unambiguous and means exactly what it says: “the insurance company agrees to pay its own insured for uncompensated damages.” SDCL 58-11-9.5 (emphasis added). The legislature used the word “uncompensated” to define the type of “damages.” The plain meaning of the word “compensate” means monies to be paid to a party entitled to receive them. See Black’s Law Dictionary 282-83 (6 th ed. 1990). The insured is entitled to recover the amount of damages, up to the policy limits, for which she has not been compensated. In other words, all monies received from the tortfeasor and the UIM primary carrier are deducted from the excess UIM carrier’s policy limits to calculate the amount owed to the insured. Because the UIM insurer is liable only for “uncompensated damages,” the language of this “difference of limits statute” prohibits the stacking of UIM coverage from two policies.

[¶ 13.] Here, Nickerson received $50,000 from the tortfeasor and $50,000 from the primary UIM carrier. The total received, $100,000, is deducted from American States’ UIM policy limit of $100,000. Consequently, Nickerson is not entitled to recover any amount from American States.

[¶ 14.] We are bound by the unambiguous language of this statute. Therefore, statutory construction is not necessary and we need not refer to extrinsic evidence. However, even the extrinsic evidence provides further support for our decision.

[¶ 15.] Nickerson claims that American States is liable for the additional coverage she purchased under her policy because she paid premiums for $100,000 in UIM protection. However, this rationale is contrary to SDCL 58-11-9.5 and our case law. In Union Ins. Co. v. Stanage, 454 N.W.2d 736, 740 (S.D.1990), this court held that Stanage could not stack his two policies for uninsured motorist coverage issued him by Union. We interpreted SDCL 58-11-9, the predecessor to SDCL 58-11-9.4:

By enacting SDCL 58-11-9, our legislature clearly sought to provide protection to certain insureds who may be legally entitled to recover against uninsured motorists_ [T]he legislature amended this statute by providing a maximum amount of uninsured motorist coverage that an insurer could provide to an insured absent a request for additional coverage by the insured. This modification of the statute reflects a legislative determination that the maximum amount set forth in the statute is sufficient to protect those insureds who may be legally entitled to recover against an uninsured motorist.

Id. at 739 (emphasis added). We concluded that “[p]remiums for uninsured motorist coverage are charged on each vehicle merely to cover the increased risk.” Id. at 738-39. Therefore, premiums are paid for the insured’s “protection” that she will be guaranteed a minimum recovery. The fact that premiums are paid for the coverage is not the conclusive determination that the insured is entitled to the full amount of coverage without deduction. In other words, the insured who contracts for UIM coverage is contracting for the assurance that he will be able to recover, at a minimum, an amount equal to the UIM coverage. This right of recovery applies when the insured has uncompensated damages up to the UIM policy limits without regard to the number of policies, vehicles or the amount of premiums paid. See Winters v. Northwestern Nat’l Cas. Co., 838 F.Supp. 440, 443 (D.S.D.1993) (stating that “the legislative intent of UIM coverage [is to provide] an insured with maximum coverage.”).

[¶ 16.] Recently, we determined that the UIM insurer is entitled to deduct the amount paid by the tortfeasor when calculating the amount it owed to its insured. Great West Casualty Co. v. Hovaldt, 1999 SD 150, ¶ 10, 603 N.W.2d 198, 201. Ho-valdt requested that we adopt a “better rule of law” and treat UIM benefits as an “add on” coverage, as the Minnesota courts do, to “allow additional recovery without offset from the tortfeasor’s payment.” Id. ¶ 11. We declined the invitation and unanimously agreed that South Dakota law is explicit and unambiguous in prohibiting a double recovery. Id.

[¶ 17.] In Elrod v. General Casualty Co. of Wisconsin, 1997 SD 90, 566 N.W.2d 482, we indicated the excess amount of UIM insurer’s exposure in this situation. Elrod involved a two-vehicle accident where Susan Thompson, the driver and owner of the vehicle, and Eugene Elrod, a passenger in Thompson’s vehicle, sustained injuries when Sheldon Haas negligently collided with them. After an inadequate recovery from Haas’ liability insurer, Thompson and Elrod sought UIM benefits from their respective carriers. The trial court held that Elrod’s carrier, DeSmet, was the excess UIM carrier. Thompson’s carrier, Great Casualty, was deemed the primary UIM carrier and it appealed. The parties agreed that Elrod’s UIM carrier, DeSmet, had no UIM liability to Thompson, the owner of the vehicle. , This court, in a unanimous opinion, noted:

If General Casualty is determined to be the primary insurer for Elrod and DeS-met is determined to be Elrod’s secondary UIM insurer, then DeSmet would have no UIM liability to Elrod because the maximum coverage to Elrod would be covered by General Casualty’s UIM policy limits.

Id. ¶ 6. This hypothetical covers this issue and is consistent with SDCL 58-11-9.5, which provides that “the [UIM carrier] agrees to pay its own insured for uncompensated damages.... ”

[¶ 18.] Nickerson received $50,000 from the tortfeasor’s liability insurer and $50,000 from the primary UIM insurer. Nickerson had only $100,000 in UIM coverage with her insurer, American States. Pursuant to SDCL 58-11-9.5 and Elrod, both the $50,000 recovery from the tortfea-sor and the $50,000 from Dakota Fire are subtracted from the $100,000 UIM benefits available from American States. Thus, Nickerson is not entitled to recover from American States because she already received $100,000, the amount of UIM coverage she contracted with her carrier. Nickerson could have easily contracted for a higher level of protection in UIM coverage, but failed to do so. Thus, South Dakota law prohibits us from affording her any more insurance than the amount she contracted and agreed upon. To hold otherwise would be to force the UIM carrier to be contractually liable to indemnify its insured for the coverage amount regardless of the amount recovered from the tortfeasor or from the primary UIM insurer. In other words, it would constitute stacking and result in a double recovery. This would be something neither the insurer nor the insured bargained for and would thwart the purpose of UIM coverage. In fact, “[d]ouble recovery exceeds the clear objective of un[der]insured motorist statutes.” Rogers v. Allied Mut. Ins. Co., 520 N.W.2d 614, 619 (S.D.1994) (Miller, C.J., concurring in result). To avoid the effect of a double recovery, the insurer, as a matter of contractual agreement, pays its insured the UIM policy limits less the amounts recovered from the tortfeasor and the primary UIM insurer.

[¶ 19.] The trial court’s grant of summary judgment to American States Insurance is affirmed.

[¶ 20.] MILLER, Chief Justice, and KONENKAMP and GILBERTSON, Justices, concur.

[¶ 21.] AMUNDSON, Justice, dissents.

AMUNDSON, Justice

(dissenting).

[¶ 22.] I respectfully dissent.

[¶ 23.] The essential issue on this appeal is the interpretation of SDCL 58-11-9.5 to determine whether Nickerson is entitled to recover UIM proceeds under her own $100,000 UIM policy with American States after having already received $50,000 from the tortfeasor and $50,000 from the primary UIM insurer. This statute provides,

Subject to the terms and conditions of such underinsured motorist coverage, the insurance company agrees to pay its own insured for uncompensated damages as its insured may recover on account of bodily injury or death arising out of - an automobile accident because the judgment recovered against the owner of the other vehicle exceeds the policy limits thereon. Coverage shall be limited to the underinsured motorist coverage limits on the vehicle of the party recovering less the amount paid by the liability insurer of the party recovered against.

SDCL 58-11-9.5 (1996).

[¶ 24.] Under our rules of statutory interpretation, “ ‘[w]e interpret statutes in accord with legislative intent.’ ” Welsh v. Centerville Township, 1999 SD 73, ¶ 7, 595 N.W.2d 622, 624 (quotation omitted). To determine a statute’s intent, we must review the statute as a whole, as well as any enactments relating to the same subject. See Kayser v. South Dakota State Elec. Comm’n, 512 N.W.2d 746, 747 (S.D.1994) (citations omitted); Meyerink v. Northwestern Pub. Serv. Co., 391 N.W.2d 180, 183 (S.D.1986).

[¶25.] The majority opinion interprets SDCL 58-11-9.5 to provide that “all monies received from the tortfeasor and the UIM primary carrier are deducted from the excess UIM carrier’s policy limits to calculate the amount owed to the insured.” (Emphasis added). In making this interpretation, the majority ignores our settled rules of statutory interpretation by focusing in on only one sentence of SDCL 58-11-9.5, that “the insurance company agrees to pay its own insured for uncompensated damages,” and ignores the remainder of the statute. A thorough reading of the entire statute reflects that the statute also provides that UIM “[coverage shall be limited to the underinsured motorist coverage limits on the vehicle of the party recovering less the amount paid by the liability insurer of the party recovered against. ” See SDCL 58-11-9.5. The statute specifically deducts monies received from the liability insurer only and does not mention a deduction for monies received from another UIM carrier as the majority so holds.

[¶26.] In Farmland Insurance Co. of Des Moines v. Heitmann, 498 N.W.2d 620, 625 (S.D.1993), we held that SDCL 58-11-9.5 “clearly limits the insured’s UIM recovery to the difference between the UIM policy limits less the amount paid by the liability insurer of the tortfeasor.” (Emphasis added). See also Great West Cas. Co. v. Hovaldt, 1999 SD 150, ¶ 11, 603 N.W.2d 198, 201 (noting that “UIM recovery is confined to ‘the difference between the UIM policy limits less the amount paid by the liability insurer of the tortfeasor’ ”). In the present case, the liability insurer (Prudential), which was Bruce’s insurer, paid only $50,000 to Nickerson. The statute clearly and unambiguously provides that .the only setoff to be taken by a UIM insurer is for the amount paid by the tort-feasor’s liability insurer; therefore, only the $50,000 recovered by Nickerson from the tort-feasor (Bruce) is subject to setoff and only the primary insurer, American States, is entitled to that setoff.

[¶ 27.] The majority holds that since Nickerson has already recovered $50,000 from the tortfeasor and $50,000 from Dakota Fire, a total amount equal to her $100,000 UIM policy limit, recovery from her own UIM insurer would amount to “stacking and result in double recovery.” In support of its position, the majority cites Elrod v. General Casualty Co. of Wisconsin, 1997 SD 90, 566 N.W.2d 482, Union Insurance Co. v. Stanage, 454 N.W.2d 736 (S.D.1990) and Winters v. Northwestern National Casualty Co., 838 F.Supp. 440 (D.S.D.1993). These cases are all distinguishable from the present case and any reliance upon them by the majority is misplaced.

[¶ 28.] In Elrod, an automobile owned and driven by Susan Thompson and occupied by Eugene Elrod, collided with Sheldon Haas. See 566 N.W.2d 482. Thompson and Elrod, who were injured in the collision, settled with Haas’ liability insurer. Thompson was insured by General Casualty with UIM limits of $100,000 and $300,-000. Elrod had UIM coverage with DeS-met Insurance Company with policy limits of $100,000 and $300,000. Both Elrod and Thompson initiated an action against “their” respective insurers to determine UIM benefits owed. The issue before this Court on appeal was whether the insurance companies share the liability pro rata or whether one insurer is determined to be the primary insurer and the other an excess insurer. Before addressing the sole disputed issue, the majority noted:

We initially note that all of the parties involved in this action agree that DeS-met has no UIM liability to Thompson. If General Casualty is determined to be the primary insurer for Elrod and DeS-met is determined to be Elrod’s secondary UIM insurer, then DeSmet would have no UIM liability to Elrod because the maximum coverage to Elrod would be covered by General Casualty’s UIM policy limits. The only dispute involved here is General Casualty’s contention that DeSmet should share General Casualty’s UIM liability to Elrod on a pro rata basis.

See id. at 484 (noting SDCL 58-11-9.5 limits UIM coverage to “ ‘the difference between the UIM policy limits less the amount paid by the liability insurer of the tortfeasor’ ”). Both the majority and American States contend that our initial discussion in Elrod should apply in this case to remove American States’ exposure as an excess UIM carrier. While the facts in Elrod are similar to the present case, Elrod is distinguishable. In, Elrod, the parties agreed that DeSmet had no UIM liability to Thompson and the case involved an “other insurance” clause in both policies which provided that if other applicable similar insurance policies apply, the insurer will only pay their proportionate share of the loss. Id. at 483-84. No such agreement exists in this case, nor is there any contention that an “other insurance” clause in any of the policies affects the determination of UIM coverage.

[¶ 29.] In Stanage, we addressed an insured attempting recovery from two of his own uninsured motorist policies. See 454 N.W.2d at 740. We disallowed Stanage to stack coverages from his own two policies. Such is not the case before us on this appeal. In the present case, we are not faced with the situation of an insured attempting to “stack” his own insurance policies to obtain double recovery. Instead, we are faced with the question of whether an insured, Nickerson, who has an additional $100,000 in UIM coverage, can recover from her UIM insurer after recovering $50,000 from the tort-feasor and $50,000 from the operator of the vehicle’s insurer.

[¶ 30.] Finally, in Winters, Raymond Winters and Harold Speck sustained injuries in a motor vehicle accident in which Speck was a passenger in his own pickup driven by Winters. See 838 F.Supp. 440. Winters and Speck each received the $100,000 per person limit from the two tort-feasor’s insurance carrier; thereby each recovering a total of $200,000. The two then sought to recover UIM benefits under their individual insurance policies, which carried a $300,000 UIM policy limit. The district court applied SDCL 58-11-9.5 and ultimately awarded Winters and Speck $100,000; the difference between the. $300,000 UIM policy limit and the $200,000 recovered from the tort-feasors. In discussing its decision, the court noted:

[E]ach plaintiff has $300,000 underin-sured motorist coverage, which when reduced by the $200,000 recovered, leaves each plaintiff with $100,000 in UIM coverage. To aggregate each plaintiffs recovery with the other and preclude un-derinsured status not only would be contrary to the weight of legal authority on this issue, but also would be directly opposed to the legislative intent of UIM coverage in providing an insured with maximum coverage.

Id. at 443. The Winters case is distinguishable from the present ease because in Winters, the district court was faced only with a recovery from a tort-feasor for an amount less than the insured’s UIM policy amount. Here, in addition to a recovery from the tort-feasor, we are faced with UIM benefits of not just the tortfeasor, but UIM benefits of Breitag and Nicker-son.

[¶ 31.] The purpose of the UIM statute “ ‘is to provide the same insurance protection to the insured party who is injured by the uninsured or unknown motorist that would have been available to him had he been injured as a result of the negligence of a motorist covered by the minimum amount of liability insurance.’ ” Kremer v. American Family Mut. Ins. Co., 501 N.W.2d 765, 768 (S.D.1993) (quoting Clark v. Regent Ins. Co., 270 N.W.2d 26, 29 (S.D.1978)). “Insureds generally are allowed to receive recovery under more than one coverage as long as they do not receive more than the amount of their loss[J” Couch on Insurance 3d § 169:6 (1998) (citing Saxe v. State Farm Mut. Auto. Ins. Co., 955 S.W.2d 188 (Ky.Ct.App. 1997)). The Connecticut Superior Court once noted,

[t]he present case is not one of double payment, but rather one of implementation of public policy which underlies the uninsured motorist statute; viz., that “every insured is entitled to recover for the damages he or she would have been able to recover if the [under]insured motorist had maintained a policy of [adequate] liability insurance.”

Loika v. Aetna Cas. & Sur. Co., 44 Conn. Supp. 59, 667 A.2d 1308, 1314 (1995) (quoting Rydingsword v. Liberty Mut. Ins. Co., 224 Conn. 8, 615 A.2d 1032, 1037 (1992) (further quotations omitted)). A review of the record reflects Nickerson’s damages claim exceeds the $100,000 UIM limit in Nickerson’s policy. Allowing Nickerson to recover under both the primary and excess UIM carriers would not result in a double recovery; nor would it result in Nickerson recovering “more than the amount of her loss.”

[¶ 32.] While the majority would contend that allowing Nickerson to recover benefits from her “excess” insurer after having already recovered from the “primary” insurer constitutes a form of stacking, this appearance is solely the result of “excess policies havfing] an element of ‘stacking’ inherent in their very nature.” Couch on Insurance 3d § 169:8. Allowing Nickerson to recover from both the “primary” and the “excess” insurers is not the type of “stacking” that this Court has continually abhorred. The common stacking scenario entails a single insured attempting to stack coverages from more than one of the insured’s own policies for a single loss. See Stanage, 454 N.W.2d 736; Cunningham v. Western Cas. & Sur. Co., 90 S.D. 530, 243 N.W.2d 172 (1976). On the contrary, Nickerson requests recovery of benefits under only one policy from only one insurer; a situation which is clearly not a common stacking scenario. Nickerson entered a contract with American States for UIM coverage by paying a fixed premium. In return for paying her premium, American States has a contractual obligation to pay her UIM benefits upon submission by Nickerson of a valid claim. Nickerson paid her premium and submitted a claim to American States for her UIM coverage. Additionally, we have often stated that “[w]here the liability insurance of the tort-feasor exceeds UIM limits, there is no UIM recovery.” Farmland, 498 N.W.2d at 625. The tort-feasor’s liability insurance of $50,000 clearly does not exceed Nickerson’s UIM policy limits of $100,000. Because the proceeds from the tortfeasor do not exceed Nickerson’s UIM policy limits and recovery from both the “excess” and “primary” insurers does not constitute double recovery or stacking, Nickerson should be entitled to recover UIM benefits under her policy with American for any damages that she can prove were sustained over and above what she has already recovered.

[¶ 33.] I would reverse and remand to allow Nickerson the opportunity to recover UIM benefits from her insurer by proving that she sustained damages over and above what she has already recovered from the tortfeasor and the primary insurer.

      . Breitag, the executive director of Oahe, Inc., was Nickerson's supervisor.

      . $100,000 in medical expenses has been paid by worker’s compensation.

      . The UIM amount with Dakota Fire was $100,000. The amount paid by the tortfea-sor's insurer, $50,000, was deducted from $100,000 to determine that Nickerson could recover $50,000 from Dakota Fire.

      . In Kremer v. American Family Mutual Ins. Co., 501 N.W.2d 765, 768 (S.D.1993), we slated that the purpose for UIM coverage is to:
      provide the same insurance protection to the insured party who is injured by the uninsured or unknown motorist that would have been available to h[er] had [s]he been injured as a result of negligence of a motorist covered by the minimum amount of liability insurance, (quotation omitted).

      . In Westphal v. Amco Ins. Co., 87 S.D. 404, 209 N.W.2d 555, 556 (S.D.1973), an uninsured tortfeasor negligently collided with the Westphal vehicle. The tortfeasor was not injured, but the collision resulted in a fatality and significant injuries to three persons in the Westphal vehicle. The primary insurer deposited its uninsured motorist (UM) policy limits of $20,000 with the court and, thus, was not a party in the case. In determining the liability of the excess UM insurer, this court held that, under SDCL 58-11-9, the policy's "other insurance" clause did not preclude Westphal from collecting from the full $20,000 uninsured motorist policy limits from his insurer.
      Subsequent to our decision in Westphal, the legislature amended SDCL 58-11-9 by requiring an insurer to provide a maximum amount of uninsured motorist coverage to an insured unless the insured requests additional coverage. We have previously determined that "[t]his modification ... reflects a legislative determination that the maximum amount set forth in the statute is sufficient to protect those insureds who may be legally entitled to recover against an uninsured motorist.” Union Ins. Co., 454 N.W.2d at 739. Consequently, while the Westphal holding is sound, it is not applicable to these facts.


source: Caselaw Access Project

author: GILBERTSON, Justice. MILLER, Chief Justice, GILBERTSON, Justice,

license: Public Domain

text:
    2000 SD 118
    Rochelle REIDER, f/k/a Rochelle Schmidt, Plaintiff and Appellee, v. Brian Bruce SCHMIDT, Defendant and Appellant.
    No. 21113.
    Supreme Court of South Dakota.
    Considered on Briefs March 22, 2000.
    Decided Aug. 30, 2000.

      Richard A. Johnson of Strange, Farrell & Johnson, Sioux Falls, South Dakota, for plaintiff and appellee.
    Dennis C. McFarland of McFarland & Weidenaar, Sioux Falls, South Dakota, for defendant and appellant.
    [¶ 1.] GILBERTSON, Justice, delivers the majority opinion of the Court as to Issue 1 concerning the trial court’s calculation of the abatement of father’s child support and the majority opinion concerning mother’s motion for an award of appellate attorney’s fees.
    [¶ 2.] KONENKAMP, Justice, delivers the majority opinion on Issue 2 concerning the trial court’s modification of father’s visitation schedule.
   GILBERTSON, Justice.

FACTS

[¶ 3.] Brian Schmidt (father) and Rochelle Schmidt (mother) were divorced in 1994 and were granted joint custody of their two children, a four-year-old boy and a two-year-old girl. Mother was granted actual physical custody and father was granted liberal visitation privileges according to a stipulated schedule incorporated into the divorce decree. The schedule left many details open to agreement and visitation became an ongoing dispute between the parties. Both parties interpreted the schedule and made sua sponte modifications to it in a manner most beneficial to them at a particular time. As a result, extensive judicial involvement with visitation was required. Father requested modification of the visitation schedule in 1994 and again in 1995. The trial court entered modification orders in May 1995 and May 1997.

[¶ 4.] In June 1998, mother filed another request for modification of the visitation schedule. Father responded to the request and also sought an abatement of his child support during his extended summer visitation periods. The hearing on the request for modification commenced in June 1998 and, for reasons that are not clear in the record, was continued until January 1999. The trial court issued a memorandum decision at the end of January and findings of fact, conclusions of law and a final judgment in May and June. The judgment provided in pertinent part:

2. That due to [mother’s] change in circumstances regarding her employment, as well as [father’s] refusal to comply [with] the previous Court Order, the Court now hereby vacates the previous visitation order and now enters a visitation schedule that requires the parties to follow the First Circuit Guidelines, a copy [of] which are attached hereto and by this reference incorporated herein.
3. That the parties shall divide the summer visitation equally.
4. That [father] may choose whether he wants the visitation to be for a consecutive period of time or divided in two blocks of time pursuant to the guidelines. [Father] must notify [mother] by May 1 of each year as to the summer visitation arrangements.
5. [Father’s] weekend visitation shall be coordinated with [mother’s] desire to have the children together at the same time as her step daughter is present. Weekend visitation shall be on an alternative weekend schedule at the times set forth with the guidelines.
6. That [father] shall receive an abatement for 40% of his child support obligation for time he actually spent with the children. [Father] shall receive an abatement for the three weeks of each month of June, July, and August of 1998. This abatement is calculated by taking the child support divided by the number of days in the month, multiplied by the number of days actually spent with [father], multiplied by 40%.
7. [Father] is allowed an abatement for June of 1998 in the amount of $127.00, July 1998 in the amount of $123.00, and for August of 1998, in the amount of $123.00 for a total abatement of $373.00.
8. [Father] is entitled to a similarly calculated abatement for the summer of 1999 and all future years, (footnote added).

Father appeals.

ISSUE 1

[¶ 5.] Did the trial court err in calculating the abatement of father’s child support?

[¶ 6.] Father contends the trial court erred in granting him a 40% abatement of his child support only for those days he actually spent with the children. Father argues the abatement statute, SDCL 25-7-6.14, does not limit abatement to the time actually spent with the children, but provides for a percentage abatement of the full monthly support obligation if certain conditions are met. We agree.

[¶ 7.] SDCL 25-7-6.14 provides:

Unless the parties otherwise agree and the agreement is approved by the court, the court may, if deemed appropriate under the circumstances, order an abatement of not less than thirty-eight percent nor more than sixty-six percent of the child support if:
(1) A child spends ten or more days in a month with the obligor;
(2) The number of days of visitation and the abatement percentage or amount are specified in the court order; and
(3) The visitation is actually exercised.
The court shall allow the abatement to the obligor in the month in which the visitation is exercised, unless otherwise ordered.

[¶ 8.] This Court recently reiterated the primary rules of statutory construction in Zoss v. Schaefers, 1999 SD 105, 598 N.W.2d 550:

“Statutory interpretation presents a question of law reviewable de novo.” Satellite Cable Srvs. v. Northern Electric, 1998 SD 67, ¶ 5, 581 N.W.2d 478, 480.
One of the primary rules of statutory ... construction is to give words and phrases their plain meaning and effect. This court assumes that statutes mean what they say and that legislators have said what they meant. When the language of a statute is clear, certain and unambiguous, there is no occasion for construction, and the court’s only function is to declare the meaning of the statute as clearly expressed in the statute.

Zoss, 1999 SD 105 at ¶ 6, 598 N.W.2d at 552 (quoting South Dakota SIF v. CRE, 1999 SD 2, ¶ 17, 589 N.W.2d 206, 209).

[¶ 9.] The plain language of SDCL 25-7-6.14 makes no mention of abating a “pro-rated” portion of child support based upon days actually spent with the children. Rather, the statute calls for abating a straight percentage “of the child support.” The only “child support” contemplated by SDCL eh 25-7 is the monthly support obligation calculated according to the parties’ combined net monthly income. See SDCL 25-7-6.2. Thus, under the plain language of SDCL 25-7-6.14, if the trial court was going to abate father’s child support, it should have granted the abatement as a percentage of his monthly support obligation, not as a percentage of the obligation pro-rated according to days actually spent with the children. While the trial court’s approach does find support in an example used in a report issued by the South Dakota Commission on Child Support (Report of the South Dakota Commission on Child Support 21 (1997)), resort may not be had to such reports unless a statute is found ambiguous and some interpretation is required. See Petition of Famous Brands, Inc., 347 N.W.2d 882, 885 (S.D.1984)(resort to legislative history justified only when legislation is ambiguous or its literal meaning is absurd or unreason able). See also Whitney v. AGSCO Dakota, 453 N.W.2d 847, 851 (S.D.1990)(courts must apply law as legislature enacted it and must search for legislative intent by what legislature said rather than what it should have said or might have said).

[¶ 10.] There is no ambiguity in SDCL 25-7-6.14. The conditions it imposes for abatement of child support were apparently met and the trial court erred in failing to grant the abatement as a straight percentage of monthly support according to the plain language of the statute. Therefore, the abatement of father’s support obligation is reversed and remanded for recalculation according to the plain language of SDCL 25-7-6.14.

[¶ 11.] MILLER, Chief Justice, and SABERS, AMUNDSON and KONENKAMP, Justices, concur.

[¶ 12.] KONENKAMP, Justice writes the majority opinion on Issue 2.

ISSUE 2

[¶ 13.] Did the trial court abuse its discretion in modifying father’s visitation schedule?

[¶ 14.] Father argues the trial court abused its discretion in modifying his visitation schedule because the modification was imposed as punishment for his failure to comply with the visitation order already in place rather than as a change in the children’s best interests. We do not agree.

[¶ 15.] Trial courts have the authority to modify custody and visitation orders to curb the actions of parents who refuse to cooperate in visitation. SDCL 25-4-45 (best interests of the child guide decisions on custody and modifications of custody). In Yarnall v. Yarnall, 460 N.W.2d 161, 164 (S.D.1990), the mother had been cited twice for contempt for failing to cooperate with court-ordered visitation by the father. We held that the trial court did not abuse its discretion in granting the father’s request for a change of custody from the mother to the father. In Nauman v. Nauman, 445 N.W.2d 38, 39 (S.D.1989), we also found no abuse of discretion when the trial court changed custody from the mother to the father after the mother refused to comply with the visitation order and otherwise alienated the children from then-father.

[¶ 16.] Although in both Yamall and Nauman the trial court expressly stated that the custody change was for the best interests of the children involved, that point is well shown by the facts of those cases. Here, as well, the record shows a pattern of behavior by the father that supports the trial court’s decision and indicates that the visitation change was in the children’s best interests. The modification did not deny father reasonable visitation, but it set a schedule he could not manipulate to the same extent as he had the earlier one.

[¶ 17.] The earlier visitation order called for father to have the children three weeks during the months of June, July, and August, with mother to have two three-day weekends per month during that time, on an alternating basis if possible. Mother was also entitled to visit the children one evening per week during the time they were with their father. Rather than follow this schedule, father admits he “dictated” terms that would be more advantageous to himself. When mother asserted that this was not what the visitation order said, father responded that he was in control of summer visitation, and the judge could “slap his hands” for making the change.

[¶ 18.] Father told mother which weekends he was giving her, arbitrarily switching the visitation schedule. This resulted in mother’s weekends in June 1998 falling during weekends she had scheduled graduate classes in Rapid City in reliance on the previously set schedule, and meant she could not be with the children. Father felt this was “too bad” and refused to adjust. The weekend schedule was changed to one four-day weekend and one two-day weekend. He refused to allow mother her one week per month visitation. On several Thursday afternoons during the summer weeks that the children were with their father, she tried to plan afternoon visits with the children in Sioux Falls. She asked father if she could pick the children up at 1:00 in the afternoon and take them swimming or go to a park or some similar activity. Father refused to allow her these visits and insisted she wait until 5:00 to pick up the children because, he argued, they were involved in summer activities during those times and he did not want them to miss out on any of those programs. This also went against the court’s declaration during the April 1997 modification hearing that the children are better off with a parent than at daycare and that it would be better for the children to spend time with an available parent. In light of these statements, it is apparent that the trial court’s decision was that the father was simply obstructing visitation and not considering the best interests of his two children.

[¶ 19.] Father also showed disdain for the visitation schedule beyond the summer months. On his own, he decided mother “owed him” days with the children that she had with them when there was no school, such as parent-teacher days and Veterans Day. He also felt she “owed him” for several days when he chose to leave the children with her on his visitation days. Rather than stick to the visitation order, father told mother he was making up those days during the children’s 1997 Christmas vacation.

[¶ 20.] The previous order was based on the parties’ agreement, which the court approved as in the children’s best interests. After hearing the facts and observing the parties, the court made specific findings on father’s obstructive behavior in violation of the visitation order. The court then ruled that the local “visitation guidelines” should be put into effect. After recognizing that father was unwilling to comply with an agreement that depended on- mutual cooperation, the court had little choice but to order a more rigid schedule that father could not manipulate, a schedule that would ensure visitation of the children by both parents. Saint-Pierre v. Saint-Pierre, 357 N.W.2d 250, 255 (S.D.1984) (trial court’s decision to be given appropriate deference as it was based on first hand observation of the parties). Enforcing visitation to eliminate strife and obstruction is in the best interests of the children. Certainly, allowing the father’s action to continue unrestrained was not in their best interests. These children need stability, and that cannot exist when father takes it upon himself to set his own rules for visitation, disregarding everyone’s interests but his own. Remanding this case so the trial court could obligingly intone the words “best interests of the children” would be an unnecessary and ill-advised intrusion on the trial court’s authority. “It is our duty to review the record as a whole to see whether or not the evidence supports the trial court’s decision to modify.” Jeschke v. Wockenfuss, 534 N.W.2d 602, 607 (1995) (citations omitted). The facts support the trial court’s ruling, and we hold that it was not an abuse of discretion to modify the visitation schedule.

[¶ 21.] MILLER, Chief Justice, and SABERS, Justice, concur.

[¶ 22.] GILBERTSON and AMUNDSON, Justices, dissent as to Issue 2.

[¶ 23.] GILBERTSON, Justice, writes the majority opinion as to mother’s motion for appellate attorney’s fees.

APPELLATE ATTORNEY’S FEES

[¶ 24.] Mother has filed a motion for an award of appellate attorney’s fees that is supported by an itemized statement of costs incurred and legal services rendered. See Malcolm v. Malcolm, 365 N.W.2d 863, 866 (S.D.1985). The motion is denied.

[¶ 25.] MILLER, Chief Justice, and AMUNDSON, Justice, concur.

[¶ 26.] SABERS and KONENKAMP, Justices, dissent and would award mother $1,000 in appellate attorney’s fees.

[¶ 27.]

MILLER, Chief Justice,

(concurring with Justice Gilbertson as to Issue 1 and with Justice Konenkamp as to Issue 2).

[¶ 28.] I join Justice Konenkamp’s holding on Issue 2 and also agree with Justice Gilbertson’s opinion on Issue 1, that the trial court erred in calculating the abatement of father’s child support.

[¶ 29.] The 1997 Report of the SD Commission on Child Support, which was relied upon by the Legislature in revising many of the child support laws during that year’s session, provides valuable insight on SDCL 25-7-6.14, the abatement statute. The Legislature adopted verbatim the Commission’s proposal for that statute.

[¶ 30.] The report reveals that the Commission specifically considered and rejected an abatement that was based upon the number of days actually spent with the children, and instead opted for an abatement of the monthly support obligation:

A few states have attempted to use an abatement sliding scale based upon the number of days of visitation allowed. However, this approach is a relatively new concept and it lacks economic justification in every case. It can also lead to parental disputes over days of visitation for financial reasons alone. In view of these concerns, the Commission determined not to recommend a daily abatement or sliding scale approach.

Report of the SD Comm’n on Child Support (SD Comm’n on Child Support), Jan. 1997, at 20. In another area of the report, the Commission recommended that “the amount of the abatement be limited to between 38% and 66% of the monthly support obligation.” Id. at 8 (emphasis added).

[¶ 31.] Despite the Commission’s apparent rejection of a daily abatement calculation, it then provided the following illustration of the abatement calculation:

The appropriate abatement is a pro rata share of the monthly support obligation. For example, assume that the support obligation is $100 per month, the court has ordered a 66% reduction for abatement, and visitation is exercised for fifteen days in a month. The obligor would be required to pay $67.00 in child support. [$100 x ½ month x 66% = $33 abatement. Support due is $100 less $33 abatement = $67.00 obligation].

Id. at 21 (footnote omitted). Obviously, this illustration factors in the number of days of visitation actually exercised, in stark contradiction to the Commission’s earlier rejection of such an abatement calculation.

[¶ 32.] Notwithstanding its seemingly contradictory illustration, the Commission ultimately recommended, and the Legislature adopted, the following language for the abatement statute:

Unless the parties otherwise agree and the agreement is approved by the court, the court may, if deemed appropriate under the circumstances, order an abatement of not less than thirty-eight percent nor more than sixty-six percent of the child support ...

SDCL 25-7-6.14 (emphasis added). Considering the “actual days” discussion contained in the report, the statute is noticeably silent about whether actual days of visitation should be factored into the calculation.

[¶ 33.] It is unclear why the Commission offered the seemingly contradictory illustration; regardless, such illustration is insufficient to cast doubt on the clear language of the statute. I am persuaded that the proper abatement calculation should not include the number of days actually spent with the children. One must assume the Legislature read the report before amending the statute, and that it, too, rejected a calculation based upon actual days spent with the children.

[¶ 34.]

GILBERTSON, Justice,

(dissenting as to Issue 2).

[¶ 35.] Father argues the trial court abused its discretion in modifying his visitation schedule as punishment for his failure to comply with previous visitation orders. I agree.

[¶ 36.] “A trial court is given broad discretion when considering matters of visitation.” Hybertson v. Hybertson, 1998 SD 83, ¶ 14, 582 N.W.2d 402, 405. Accord Weber v. Weber, 529 N.W.2d 190, 191 (S.D.1995). “ ‘However, the trial court’s exercise of discretion is not uncontrolled and must have a sound and substantial basis in the testimony.’ ” Weber, 529 N.W.2d at 191 (quoting Williams v. Williams, 425 N.W.2d 390, 393 (S.D.1988)). “The best interests of the child are to govern visitation matters, and a trial court’s order will not be set aside unless an abuse of discretion is shown.” Hybertson, 1998 SD 83 at ¶ 14, 582 N.W.2d at 405. See also Weber, 529 N.W.2d at 191 (trial court’s decision can only be reversed upon clear showing of abuse of discretion).

[¶ 37.J Here, the trial court entered the following findings and conclusions to support its modification of father’s visitation schedule:

2. That the previous Court Orders specifically [set] forth how visitation was to be handled between the parties.
3. That [father] refused to follow the previous Court Order entered [in] April 1997 regarding this visitation.
4. [Father] has also refused to grant [mother] her summer visitation which would include one full week each month during the summer. [Father] was entitled to have the children for the three weeks per month.
6. [Father] also refused to allow [mother] to come and visit, the children on her days off during the summer while they were [not] in [father’s] care but in daycare.
7. [Mother] has done everything that she could to accommodate [father’s] visitation request and personal plans. Often times changing schedules to allow for various family plans that [father asked] to have the children for.
2. That due to [mother’s] change in circumstances regarding her employment, as well as [father’s] refusal to comply [with] the previous Court Order, the Court now hereby vacates the previous visitation order and now enters a visitation schedule that requires the parties to follow the First Circuit Guidelines, a copy [of] which are attached hereto and by this reference incorporated herein.
3. That the parties shall divide the summer visitation equally.
4. That [father] may choose whether he wants the visitation to be for a consecutive period of time or divided in two blocks of time pursuant to the guidelines. [Father] must notify [mother] by May 1 of each year as to the summer visitation arrangements.
5. [Father’s] weekend visitation shall be coordinated with [mother’s] desire to have the children together at the same time as her step daughter is present. Weekend visitation shall be on an alternative weekend schedule at the times set forth with the guidelines.

[¶ 38.] These findings and conclusions clearly establish that the trial court modified father’s visitation schedule as punishment for his lack of compliance with prior visitation orders, not as an arrangement in the children’s best interests. The pertinent findings and conclusions reflect no consideration whatsoever of the children’s interests, only father’s violation of prior visitation orders and his infringement on mother’s interests. This clearly violates settled law on visitation disputes as set forth above. Accordingly, the trial court’s modification of the visitation schedule should be reversed and the matter of visitation remanded for appropriate consideration of a schedule in the children’s best interests.

[¶ 39.] AMUNDSON, Justice, joins this dissent as to Issue 2.

      . The record contains no attachment outlin-tag visitation guidelines.

      . The existence of the statutory conditions allowing abatement is not in dispute in this appeal.

      . While the majority ably reviews the record, describing various instances where father failed to honor mother’s visitation rights, it identifies not a single finding or conclusion establishing the trial court’s consideration of the children’s best interests with regard to visitation. It is fundamental that it is not the function of this court to sift through a cold record and pick and choose evidence supportive of the position of one party or the other. Rather, we examine the trial court's findings of fact to ascertain whether they support its conclusions of law and ultimate judgment or determination. See E.H. v. M.H., 512 N.W.2d 148, 151 (S.D.1994)(findings of fact must support conclusions of law and judgment). See also State ex rel. Steffen v. Peterson, 2000 SD 39, ¶ 26, 607 N.W.2d 262, 271 (Supreme Court’s review is limited to written findings and conclusions and we ignore the trial court's oral pronouncements). Here, the trial court's findings fail to support its conclusions and judgment. While the trial court’s findings and conclusions might accurately detail father’s violation of certain visitation requirements, they fail to contain the essential component of consideration of the children’s best interests. Thus, this matter should be reversed and remanded so that visitation may appropriately be considered from the children’s point of view and not solely on the basis of the actions of father. Father’s violation of mother’s visitation rights is statutorily punishable as contempt (See SDCL ch. 25-4A) and should not be summarily met with a reduction in his own visitation rights that might not be in the children’s best interests.


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

text:
    2000 SD 119
    Chris W. COLE, Petitioner and Appellee, v. BOARD OF ADJUSTMENT OF the CITY OF HURON (the City commission acting thereas), Defendant, and Casey’s General Stores, Inc., Intervenor and Appellant.
    No. 21210.
    Supreme Court of South Dakota.
    Considered on Briefs April 24, 2000.
    Reassigned July 11, 2000.
    Decided Aug. 30, 2000.

      Todd D. Wilkinson and Gary W. Schu-macher, Wilkinson & Wilkinson, DeSmet, South Dakota, Attorneys for petitioner and appellee.

      Rodney Freeman, Jr. and Jeff Burns, Churchill, Manolis, Freeman, Kludt & Shelton, Huron, South Dakota, Attorneys for intervenor and appellant.
   GILBERTSON, Justice (on reassignment).

[¶ 1.] The Huron Board of Adjustment (Board) granted a variance to Casey’s General Stores, Inc, Floyd Peterson and Anthony Stahl (Casey’s). Chris W. Cole, an adjoining property owner, was granted a writ of certiorari by the circuit court. The circuit court reversed and Casey’s appeals. We reverse.

FACTS AND PROCEDURE

[¶ 2.] This is the second appeal for these parties. The basic facts underlying this appeal are recited in Cole v. Bd. of Adj., City of Huron, 1999 SD 54, 592 N.W.2d 175. The facts necessary for resolution of this appeal follow.

[¶ 3.] On November 25, 1997, Casey’s applied for a variance for three lots on a corner of a busy highway in Huron. Two of the lots were vacant and owned by Peterson. The third lot, with a house situated thereon, was owned by Stahl. In the application, Casey’s requested permission to construct a gas station and convenience store on the properties.

[¶ 4.] The variance request was met with opposition and a public hearing was held on December 15, 1997. On January 12, 1998, the Board granted the variance to Casey’s. On January 14, 1998, Cole filed for a writ of certiorari and appealed the Board’s decision to circuit court.

[¶ 5.] The circuit court reversed the Board’s decision finding “[t]he action of the Board granting Casey’s a variance was not done in compliance with the City’s zoning ordinances.” Casey’s appealed and we held that the circuit court failed to use the proper standard of review. The case was reversed and remanded. See Cole, 1999 SD 54, 592 N.W.2d 175.

[¶ 6.] On remand, the circuit court again reversed the Board’s decision. It concluded that the granting of the variance was “illegal and in excess of [the Board’s] jurisdiction” because it “failed to make any finding ‘that there exists special conditions which constitute an unreasonable deprivation of use.’ ” The circuit court concluded that the “granting of the variance was merely a grant of privilege, which is clearly prohibited by the City’s Zoning Ordinances.”

[¶ 7.] Casey’s appeals, raising the following issue:

Whether the circuit court exceeded its jurisdiction in reviewing the Board’s decision de novo.
STANDARD OF REVIEW
Zoning ordinances are interpreted according to the rules of statutory construction and any rules of construction included in the ordinances themselves. The interpretation of an ordinance presents a question of law which we review de novo. When interpreting an ordinance, we must assume that the legislative body meant what the ordinance says and give its words and phrases plain meaning and effect.
Because this matter was presented to the trial court on certiorari, our scope of review is limited to the questions of whether the inferior courts, officers, boards, and tribunals had jurisdiction and whether they have regularly pursued the authority conferred upon them. ‘When such courts, officers, boards, or tribunals have jurisdiction over the subject matter and of the party, their action will be sustained unless in their proceedings they did some act forbidden by law or neglected to do some act required by laiv.’
Cole, 1999 SD 54, ¶ 4, 592 N.W.2d at 176 (quoting Peters v. Spearfish ETJ Planning Comm’n, 1997 SD 105, ¶¶ 5-6, 567 N.W.2d 880, 883 (internal citations omitted)) (emphasis in original).

ANALYSIS AND DECISION

[¶8.] Casey’s argues that the circuit court erred in examining the merits of the Board’s decision to grant the variance, instead of restricting its review to whether or not the Board acted in excess of its jurisdiction. Thus, Casey’s contends that the circuit court, “in its findings of fact and conclusions of law has usurped the authority and discretion of the Board ... by analyzing and replacing the Board’s findings [with its] own.”

[¶ 9.] Pursuant to SDCL 21-31-1, the only question presented on certiorari “is whether the lower tribunal exceeded its jurisdiction.” Cole I, 1999 SD 54, ¶ 10, 592 N.W.2d at 177. See also Hamerly v. City of Lennox Bd. of Adj., 1998 SD 43, ¶ 14, 578 N.W.2d 566, 569 (stating that “the circuit court should ... [limit] its judgment to a reversal of the Board’s final decision as illegal and in excess of its jurisdiction.”); Willard v. Civil Service Board of Sioux Falls, 75 S.D. 297, 298, 63 N.W.2d 801, 801 (1954) (noting that review of a circuit court’s proceedings on certiora-ri extends only to a determination of whether the board acted without jurisdiction or exceeded its jurisdiction); Kirby v. Circuit Court, McCook County, 10 S.D. 38, 40-1, 71 N.W. 140, 141 (1897) (stating “the only questions to be considered in this court [on a writ of certiorari] are whether the court, upon the record before it, exceeded its jurisdiction, or whether that court has failed to regularly pursue the authority of such court.”).

[¶ 10.] According to Huron City Ordinance 23.04.028, a variance applicant must prove by a preponderance of the evidence that the variance is not contrary to the public interest, and that if the variance is not granted, there exists special conditions which constitute an unwarranted, or unreasonable hardship, which “constitutes an unreasonable deprivation of use as distinguished from the mere grant of a privilege.”

[¶ 11.] Instead of reviewing whether the Board exceeded its jurisdiction in granting the variance, the circuit court tried the case on the merits, by analyzing Huron City Ordinance 23.04.028 and con-eluding that there was no evidence supporting the Board’s finding of a special condition to justify the variance. The circuit court went as far to state in its opinion that the Board had “merely grant[ed] Casey’s a privilege,” instead of determining the existence of an unwarranted or unreasonable hardship.

[¶ 12.] This Court stated in Cole I:

It is quite clear from the Findings of Fact and Conclusions of Law and the incorporated memorandum opinion, the trial court did not utilize the correct standard of review for a writ of certiora-ri. The trial court reviewed the record de novo, taking into consideration the status of the property and drawing the conclusion that there was no evidence supporting the Board’s finding of a special condition to justify the variance. We have said, “certiorari cannot be used to examine evidence for the purpose of determining the correctness of a finding....” Willard, 75 S.D. at 298, 63 N.W.2d at 801 (emphasis added).

1999 SD 54, ¶ 11, 592 N.W.2d at 177. Similarly, here, the circuit court reviewed the Board’s record de novo, finding in its memorandum opinion that “[n]ot one of the Board of Adjustment’s findings supports a conclusion of law that Casey’s has met it[s] burden of proof to prove by a preponderance of evidence that the second prong of the City of Huron’s test for granting Casey’s a variance has been met....”

[¶ 13.] The circuit court’s judgment in this ease stated eight findings of fact and eight conclusions of law, and reversed the Board’s decision based upon such findings and conclusions. After an examination of the findings of - fact and conclusions of law entered by the circuit court, we reach but one conclusion — that “the [circuit] court in effect tried the petition de novo in that it made its own determinations upon the merits of the petition for a variance, thereby substituting its discretion for that of the Board.” See Board of Zoning App. v. American Fletcher Nat. Bank, 139 Ind. App. 9, 205 N.E.2d 322, 324 (1965).

[¶ 14.] In City of Madison v. Clarke, 288 N.W.2d 312 (S.D.1980) we applied the three part test contained in SDCL 11-4-17(3) to decide this type of an issue. A variance will be granted where it:

[1] will not be contrary to the public interest, [2] where, owing to special conditions, a literal enforcement of the provisions of the ordinance will result in unnecessary hardship and [3] so that the spirit of the ordinance shall be observed and substantial justice done.

Id. at 313. The circuit court’s memorandum opinion incorporated into its findings conceded criteria [1] in favor of the Board as it noted, “[a] limited review of the transcript of the proceedings below show there was evidence submitted which would support a findings [sic] to the effect that this variance would not be against the public interest.” As far as criteria [2] the circuit court conceded a claim of hardship can be made as the property has been vacant for many years and was lost for taxes to the county. Beyond that, when it was offered by the county for sale to the public, Peterson was the sole bidder.

[¶ 15.] While the Court tried to seize on the isolated word “may” cause unnecessary hardship, the fact is that while this property was zoned residential, it was of so little value that the previous private owner in effect donated it to the public in lieu of retaining ownership and paying taxes thereon. These facts certainly provide the needed evidentiary support to justify the Board’s actions under the limited scope of review for certiorari concerning criteria [2], Finally as to criteria [3], the City made a finding which is supported by the evidence and not overturned by the circuit court:

That North Highway 37 is that part of the City of Huron affected by the variance application is currently a state highway and presently subject to extensive commercial traffic and the granting of the said variance should not substantially increase noise, congestion, or otherwise disrupt the neighborhood.

The City further found that “[t]he granting of a variance for a convenience store will be in harmony with the general purpose and intent of the zoning ordinances, while maintaining the integrity of the comprehensive plan.”

[¶ 16.] In making a determination of the merits, the circuit court usurped the-Board’s administrative function and expertise in dealing with zoning problems of the community of Huron. See Falvo v. Kerner, 222 A.D. 289, 225 N.Y.S. 747, 749 (1927) (stating that “[t]he determination of the board was an administrative function, which should not be interfered with by the courts in the absence of proof that the board had abused the discretion with which it was clothed by the ordinance creating it.”); American Fletcher, 205 N.E.2d at 324 (noting “it must be recognized by the trial court that the Board is an administrative body especially expertise in the zoning problems of its particular jurisdiction”).

[¶ 17.] The Board has wide discretion in deciding whether or not to grant a variance to a zoning ordinance, and in reviewing that decision, the circuit court may not substitute its discretion for that of the Board. Id. This limitation on scope of review prevents “courts from usurping policy decisions from other branches of government.” Bell v. Township of Bass River, 196 N.J.Super. 304, 482 A.2d 208, 212 (Ct.Law Div.1984). Thus, courts must not review the merits of a petition or evidence in the absence of a showing that the Board “acted fraudulently or in arbitrary or willful disregard of undisputed and indisputable proof.” Cole, 1999 SD 54, ¶10, 592 N.W.2d at 177 (citing Willard, 75 S.D. at 298, 63 N.W.2d at 801). This is the standard of review which should have been utilized by the circuit court upon its review of Casey’s petition. Instead, the circuit court analyzed and replaced the Board’s findings with its own, substituting its judgment for that of the Board in determining whether the facts were adequate to be classified as an unwarranted hardship. The circuit court improperly did so despite declaring “[a] careful review of the findings [of the Board] indicate that there were many disputed facts.”

[¶ 18.] We reverse and remand to the circuit court for further proceedings with application of the proper standard of review.

[¶ 19.] MILLER, Chief Justice, and AMUNDSON and KONENKAMP, Justices, concur.

[¶ 20.] SABERS, Justice, dissents.

SABERS, Justice

(dissenting).

[¶ 21.] 1. THE CIRCUIT COURT APPLIED THE PROPER STANDARD OF REVIEW IN DETERMINING THAT THE BOARD’S GRANT OF THE VARIANCE WAS ILLEGAL.

[¶ 22.] I disagree with the majority opinion’s determination that the circuit court reviewed the Board’s record de novo, “thereby substituting its discretion for that of the Board.”

[¶ 23.] As we stated in the prior appeal, “the only question presented on certiorari is whether the lower tribunal exceeded its jurisdiction.” Cole v. Bd. of Adj., City of Huron, 1999 SD 54, ¶ 10, 592 N.W.2d 175, 176 (citations omitted). Thus, the circuit court’s review is “confined to a review of the legality of the municipality’s zoning decision.” Hamerly v. City of Lennox Bd. of Adj., 1998 SD 43, ¶ 14, 578 N.W.2d 566, 569. Furthermore, “certiorari cannot be used to examine evidence for the purpose of determining the correctness of a finding, at least in the absence of fraud, or willful and arbitrary disregard of undisputed and indisputable proof wherein credibility of witnesses is not involved.” Willard v. Civil Service Bd. of Sioux Falls, 75 S.D. 297, 63 N.W.2d 801 (1954) (quoting State ex rel. Grey v. Circuit Court of Minnehaha County, 58 S.D. 152, 235 N.W. 509, 511 (1931)).

[¶ 24.] This record reflects that the circuit court, per Willard, properly limited its review to the legality of the variance granted to Casey’s and the Board’s compliance with SDCL 11-4-17(3). It ultimately concluded that the variance was illegally granted because there was no “existence of special conditions which constitute an unwarranted or unreasonable hardship.... ” In its rationale, the circuit court examined the Board’s finding of fact number 9 which provides that the vacant lots “evidences a lack of marketability of those lots for residential development; therefore use of such land for some commercial purpose may be necessary for the reasonable use of the property.” (emphasis added). The Board also determined that a refusal to grant a variance for commercial use of the property “could substantially impair its appropriate use or development” and the land “cannot yield a reasonable return if used only for a purpose allowed in that zone.” These findings fail to establish necessity and merely provide for possibility, which is insufficient to satisfy the unnecessary hardship test set forth under SDCL 11 — 4— 17. The circuit court correctly determined that this finding conflicts with Casey’s admission that they purchased the property without intending to market it as residential property.

[¶ 25.] The circuit court and this court must look at the evidence, as well as the sufficiency thereof, to ascertain whether the Board exceeded its jurisdiction. See Graziano v. Bd. of Adj. of City of Des Moines, 323 N.W.2d 233 (Iowa 1982) (reviewing a certiorari action and reversing the board’s granting of a variance). Although the circuit court does not determine the “correctness of a finding,” the circuit court and this court must analyze the “correctness of a finding” when ascertaining whether the Board acted with “willful or arbitrary disregard of undisputed and indisputable proof.” Willard, 63 N.W.2d at 801. This is precisely what the circuit court did here.

[¶ 26.] Accordingly, there is an insufficient showing to support the claim that the circuit court used the wrong standard of review. In fact, the circuit court expressed and complied with the proper standard of review citing Willard, 63 N.W.2d at 801. See also Hamerly, 1998 SD 43, ¶ 14, 578 N.W.2d at 569 (stating that the circuit court’s review is “confined to a review of the legality of the municipality’s zoning decision.”). Therefore, the circuit court applied the correct standard of review in determining whether the variance was granted in compliance with SDCL 11-4-17 and the ordinances of the City of Huron.

[¶ 27.] Because the circuit court’s review was proper, the second issue must also be addressed.

[¶ 28.] 2. THE BOARD EXCEEDED ITS JURISDICTION IN GRANTING A VARIANCE TO CASEY’S.

[¶ 29.] As indicated, the Board may grant a variance if it finds that “strict application” of the ordinance to the applicant would cause unnecessary hardship. We have previously defined “unnecessary hardship” to require a hardship that is “substantial and of compelling force, not merely for reasons of convenience or profit.” City of Madison v. Clarke, 288 N.W.2d 312, 314 (S.D.1980) (citing Deardorf v. Bd. of Adj. of Planning and Zoning Comm’n, 254 Iowa 380, 118 N.W.2d 78, 82 (1962)). More specifically, unnecessary hardship is demonstrated when:

(1) the land in question cannot yield a reasonable return if used only for a purpose allowed in that zone;
(2) the plight of the owner is due to unique circumstances and not to the general conditions in the neighborhood which may reflect the unreasonableness of the zoning ordinance itself; and
(3) the use to be authorized by the variance will not alter the essential character of the locality.

Deardorf, 118 N.W.2d at 81 (citations omitted) (emphasis added). The burden was on the applicant to show all three elements. Greenawalt v. Zoning Bd. of Adj. of City of Davenport, 345 N.W.2d 537, 542 (1984). “A failure to demonstrate one of them requires the [B]oard to deny the application.” Id. (citations omitted).

A. Reasonable Return

[¶ 30.] Casey’s was required to prove that the land in question cannot yield a reasonable return if used only for a purpose allowed in that zone. “An ordinance deprives a landowner of a reasonable return if all ‘productive use of the land’ is denied.” Id. (citation omitted). To show a deprivation of all “productive use of the land,” the applicant must show that the property has changed and the “uses for which is was originally zoned are no longer feasible.” Id. However, the granting of a variance will not be upheld when the only evidence presented is that the value of the applicant’s land has been “depreciated by the zoning regulations, or that a variance would permit him to maintain a more profitable use.” Id. (citation omitted).

[¶ 31.] Here, the Board, in granting the variance, found that the fact that the vacant lots were acquired by the county for delinquent taxes “evidences a lack of marketability of those lots for residential development.” As indicated, the Board concluded that the commercial use of the land “may be necessary for the reasonable use of the property.” It also determined that a refusal to grant a variance for commercial use of the property “could substantially impair its appropriate use or development” and the land “cannot yield a reasonable return if used only for a purpose allowed in that zone.” Neither of the italicized words are sufficient to establish necessity.

[¶ 32.] “[T]he sole consideration is whether the land or structure is capable of being used in a reasonable manner which is consistent with the applicable zoning provisions.” 83 AmJur2d Zoning and Planning § 864 (1992). A review of the record discloses that Casey’s offered no evidence to show that the construction of single-family residences was not feasible. Nor did they present evidence that if the land were used to construct single-family residences, the return would be unreasonable or that they would be deprived of a productive use of the land. See Zimmerman v. O’Meara, 215 Iowa 1140, 245 N.W. 715, 718 (1932) (stating “[t]here is nothing in the record to indicate that an unnecessary hardship will be imposed” if applicant was denied the variance).

[¶33.] Further, Casey’s failed to show that the lots could not be sold to a person who would use the property in conformance with the zoning requirements. See Sheeley v. Levine, 147 A.D.2d 871, 538 N.Y.S.2d 93, 95 (1989) (upholding the granting of the variance where the property was (1) the subject of a multiple listing, (2) priced comparatively to similar structures, (3) shown to 41 people with no offers to purchase as a single-family home, and (4) evidence was presented that it would be “difficult and impractical” to maintain the property as a single-family home in accordance with the zoning regulations). The fact that the county, in 1970, bought the property at a tax sale is not indisputable evidence that the property is not marketable for residential purposes today. Some attempt at a better showing should have been offered.

[¶ 34.] In addressing the reasonable return of property, one court determined that neither depreciated value nor financial loss is an appropriate indicator in a variance case:

It does not appear from the record that the subject area is unfit for a conforming use, although such use may not be as inviting and the lots as desirable as some other lots in the use district. However, such depreciated value does not fall within the class of peculiar and exceptional circumstances necessary to sustain the granting of á use variance. If so, other property owners desiring to sell their property in a use zone at a premium for nonconforming purposes would frequently seek use variances, the granting of which would tend to destroy or greatly impair the whole system of zoning.

Brock v. Bd. of Zoning Adj., 571 So.2d 1183, 1185 (Ala.Civ.App.1990) (citation omitted). Furthermore, evidence of the “best use” of the property is “entitled to little or no weight in a variance case.” Bd. of Zoning Adj. v. Dauphin Upham Joint Venture, 688 So.2d 823, 825 (Ala.Civ.App.1996) (citations omitted). The applicant’s own economic situation is also an improper basis for establishing unnecessary hardship. City of Madison, 288 N.W.2d at 314 (stating that “[economic disadvantages ... do not constitute ‘unnecessary hardship.’ ”).

[¶ 35.] Here, the evidence does not support a conclusion that Casey’s would endure “a loss of all beneficial use of the property” if the variance was denied. The record is void of any evidence establishing any reasons the property cannot be used in accordance with the zoning ordinances. Nor does the Board make adequate findings to support the same. For example, the Board found that the City Administrator had stated that the operation of a convenience store would not be an “inappropriate” use of the land. This finding affords little support to the determination of unnecessary hardship.

[¶ 36.] In a similar case, In re Appeal of McClure, 415 Pa. 285, 203 A.2d 534, 535 (1964), a variance was granted to construct a bank in an area zoned for single-family residences. The board concluded, on two occasions, that the land was not suitable for residential use. In reversing the board, the McClure court determined:

Such finding [that the land was not suitable for residential use] does not ... command the grant of a variance, even if the public interest would not thereby be adversely affected. As a general rule, if the land, as a practical matter, cannot be utilized for residential purposes, then the land should be rezoned by an appeal to the legislative body. Such rezoning cannot and must not be accomplished under the guise of a variance.

Id. at 537 (emphasis added). See also Graziano, 323 N.W.2d at 237 (stating “[t]he board cannot alter the zoning ordinances by granting variances.... The power to change the zoning restrictions belongs to the zoning commission and the city council.”). A variance can not be used as a pretense to change or modify a zoning ordinance; only the governing body has the power to do that. City of Madison, 288 N.W.2d at 314.

[¶ 37.] The majority opinion points out that the Board found:

That North Highway 37 is that part of the City of Huron affected by the variance application [and] is currently a state highway and presently subject to extensive commercial traffic and the granting of the said variance should not substantially increase noise, congestion, or otherwise disrupt the neighborhood[,]

and that the Board also made several findings referring to “public health, safety or welfare.” For example, the Board found that:

The granting of a variance will bring changes to the neighborhood, but these changes will not necessarily be injurious or otherwise detrimental to the public health, safety or welfare.

The above findings merely support the determination that the Board attempted to accomplish rezoning by granting a variance to Casey’s. As stated, zoning laws are designed to promote “public health, safety and welfare.” See SDCL 11-6-2. This is not the standard used to determine whether to grant a variance. In fact, because variances circumvent the underlying purpose of zoning ordinances, they should be granted sparingly and only when it is shown that the strict application of the zoning ordinances results in an unnecessary hardship.

[¶ 38.] The above findings further support a determination that the Board’s decision did not satisfy the second prong of the unnecessary hardship test: “the plight of the owner is due to unique circumstances and not to the general conditions in the neighborhood which may reflect the unreasonableness of the zoning ordinance itself” (emphasis added). Clearly, this prong was not satisfied as these findings reflect that the Board determined that the zoning ordinance in place was unreasonable due to the location of Highway 37 and the growth of the city. Again, the Board can not accomplish through variance what can only be accomplished properly by modifying the zoning ordinances.

[¶ 39.] It appears obvious that Casey’s (and the City of Huron) should bite the bullet and petition to rezone this property rather than to attempt to shortcut the proper proceedings by variance. See Schrank v. Pennington County Bd. of Comm’r, 2000 SD 62, 610 N.W.2d 90 (providing that the County’s amendment to its zoning ordinances rendered a conditional use permit, previously determined to be illegally granted, to be valid). As stated in Schrank, the decision of how a community is to be zoned or rezoned “ ‘rests with the local legislative body.’ ” Id. ¶ 7 (quoting Tillo v. City of Sioux Falls, 82 S.D. 411, 415, 147 N.W.2d 128, 130 (1966) (other citation omitted)).

[¶ 40.] In light of the evidence presented to the Board, Casey’s attempted to accomplish, through a variance, what could only be accomplished by a modification in the zoning ordinances. Because the zoning laws are designed to promote public health, safety and welfare, the power to grant a variance should be exercised sparingly and in accordance with the public welfare. Therefore, “conditions personal to the land-owner are not relevant to whether a variance should be granted.” Hutchens v. St. Louis County, 848 S.W.2d 616, 619 (Mo.Ct.App.1993). In other words, a variance should not be granted simply because such a grant would permit the owner to obtain a greater profit from the sale or use of the property.

[¶ 41.] An applicant for a variance bears a great burden of proving that unnecessary hardship will result if the variance is denied. Casey’s failed to establish, before the Board, that it would be deprived of all productive use of the land if the variance was not granted. Therefore, the Board’s conclusion that the land could not yield a reasonable return if used only for the purpose allowed, is error and renders the grant of the variance illegal.

[¶ 42.] Since no showing of an unnecessary hardship was attempted or established, the Board exceeded its jurisdiction and we should affirm.

      . Evidence was presented at the public hearing that the vacant property was used as a public skating rink from 1927 to 1997. The Parks & Recreation Department maintained the property through those years, even when private persons owned the property. The county obtained the property from a citizen named "Murphy” for recovery of delinquent taxes. The county owned the property for 27 years when, in June of 1997, sold it at a public auction to Peterson, who was the only bidder.

      . SDCL 21-31-1 provides:
      A writ of certiorari may be granted by the Supreme and circuit Courts, when inferior courts, officers, boards, or tribunals have exceeded their jurisdiction, and there is no writ of error or appeal nor, in the judgment of the court, any other plain, speedy, and adequate remedy.

      . Huron City Ordinance 23.04.028 entitled "Variance - Findings of Fact,” provides:
      (a) A variance may be granted to the strict application of this chapter as will not be contrary to the public interest, where, owing to special conditions, a literal enforcement of the provisions of the title will result in unwarranted hardship, which constitutes an unreasonable deprivation of use as distinguished from the mere grant of a privilege, and so that the spirit of the title shall be observed and substantial justice done.
      ib) In any hearing concerning the requested variance, the applicant carries the burden of proving that the request complies with the necessary findings and that the granting of a variance is in keeping with the spirit and intent of this chapter.
      (c) In granting a variance, the board of adjustment shall prescribe any conditions and safeguards that it deems to be necessary or desirable. Such variance may be granted upon finding that there exists an unwarranted hardship, which constitutes an unreasonable deprivation of use as distinguished from the mere grant of a privilege. The board of adjustment may find that some or all of the following conditions exist:
      (1) The plight of the applicant is due to unique circumstances of their property;

        (2) The plight of the applicant is not due to the circumstances or conditions of the neighborhood or zone;
      (3) The unique circumstances which render the property incapable of being used in compliance with this chapter have not been caused or created by any actions of the applicant;
      (4) The variance requested is the minimum variance which is necessary for the reasonable use of the property;
      (5) The variance requested can be granted with substantial justice to the applicant as well as other property owners in the area;
      (6) That the granting of this variance will be in harmony with the general purpose and intent of this chapter while maintaining the integrity of the comprehensive plan;
      (7) The granting of this variance will not be injurious to the neighborhood or otherwise detrimental to the public health, safety or welfare;
      (8) That for an area variance, compliance with the strict application of this chapter governing area, setbacks, frontage, side-yards, height, bulk or density will unreasonably prevent the owner from using the property for a permitted purpose;
      (9) That for a use variance, the land in question cannot yield a reasonable return if only used for a purpose allowed in the zone.

      . The circuit court stated:
      Finding number (9) states that the property has been vacant for many years and was acquired for delinquent taxes. The Hearing Officer ultimate [sic] finds that this subordinate fact "evidences a lack of marketability of those lots for residential development, therefore use of such land for some commercial purpose may be necessary for the reasonable use of the property." [emphasis in original]. A review of the record for the limited purpose of testing the legality of the proceedings, shows that there is evidence to support that Finding [number] (9). The impact of this finding is contrasted and conflicted by Finding number (8). The evidence also confirms Finding number (8) that the current owners purchased never intending it to be marketed as a residential property.
      Here the circuit court conceded there was, at a minimum, a conflict in the evidence. It then improperly proceeded to resolve this conflict by conducting a de novo review. If the question is properly one of jurisdiction, then a conflict in the evidence by itself establishes there was the required evidence to support the Board's determination to grant a variance.

      . A variance can be granted only if the Board determines that it:
      [1] will not be contrary to the public interest, [2] where, owing to special conditions, a literal enforcement of the provisions of the ordinance will result in unnecessary hardship, and [3] so that the spirit of the ordinance shall be observed and substantial justice done.
      SDCL 11-4-17(3). See also Huron City Ordinance 23.04.028 (adopting this three-prong test).
      Issue 2 of this case, which was not reached by the majority opinion, is whether the Board exceeded its jurisdiction in granting a variance to Casey’s. In determining that the circuit court did not err in reviewing the Board’s decision, I also conclude that the Board illegally granted the variance to Casey’s because there was no showing that the strict application of the ordinance to Casey’s would cause unnecessary hardship.

      . See Issue 2, infra, for an analysis of why the Board's grant of this variance was illegal.

      . This standard is also incorporated into Huron City Ordinance 23.04.028.

      . Casey’s withdrew their application for zoning change prior to applying for a variance.