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In re Estate of Watson12/10/2003
mphasis added).
. SDCL 21-5-7 provides " n every action for wrongful death the jury may give such damages as they may think proportionate to the pecuniary injury resulting from such death to the persons respectively for whose benefit such action shall be brought." See Halvorsen v. Dunlap, 495 F2d 817, 819 (8thCir 1974) (discussing the history of South Dakota's wrongful death statutes and recognizing beneficiaries may recover for pecuniary loss). As we acknowledged in Zoss v. Dakota Truck Underwriters:
ecuniary injury encompasses more than strictly economic losses in that it includes 'the loss of decedent's companionship and society as expressed by, but not limited to, the words 'advice,' 'assistance,' and 'protection,' but without consideration for the grief and mental anguish suffered by the beneficiaries because of the wrongful death.
1999 SD 37, , 590 NW2d 911, 913-14 (quoting Sander v. Geib, Elston, Frost Prof''l Ass'n, 506 NW2d 107, 119 (SD 1993)).
. When an adult child dies, we have held there is no presumption "a parent has suffered pecuniary loss . . . but the parent is entitled to prove . . . that the adult child had the willingness and also the ability to furnish support for his parent." Gilbert v. Root, 294 NW2d 431, 432 (SD 1980) (citing Hodkinson v. Parker, 70 SD 272, 16 NW2d 924 (1944)). We have also held a parent may recover if the parent can show he or she might reasonably have expected support from the child if the child had lived. Id.; Halvorsen, 495 F2d at 822. Thus, under our statutory scheme, it is clear that a child's support for his or her parents may be a major factor in determining the award of a wrongful death action.
. Although the present controversy involves a fair and equitable division of a wrongful death settlement, it was entirely proper for the circuit court to look to the South Dakota wrongful death statutory scheme for guidance. The circuit court concluded Joan had a reasonable expectation of support from Brian, and the facts wholeheartedly support this conclusion. At the time of his death, Brian lived with his mother just as he had almost his entire life, save a brief period of attendance at a vocational school. Despite his meager earnings, Brian supported his mother after becoming an adult and even claimed her as a dependent on the last tax return he filed with the Internal Revenue Service. On the other hand, Calvin was unable to offer any evidence of Brian's support. In fact, the record supports the circuit court's conclusion that Brian made a free and voluntary decision as an adult not to have any contact with Calvin. Brian never made any attempt to establish contact with his father. After his high school graduation, Brian made no effort to contact Calvin while on vacation in Florida. Therefore, Calvin could not make any credible claim for expectation of support from Brian.
. Court's sitting in equity have wide latitude, and " e will not bind a trial court to a strict mathematical formula" in determining property divisions. Pellegrin v. Pellegrin, 1998 SD 19, , 574 NW2d 644, 649 (citing Bennett v. Bennett, 516 NW2d 672, 675 (SD 1994)). The circuit court did not abuse its discretion in largely basing its division of the settlement on the relative expectations of support Joan and Calvin could claim.
. In addition, as the circuit court recognized, in order to expect equity, a party must do equity. See Talley v. Talley, 1997 SD 88, , 566 NW2d 846, 852. The circuit court found that Calvin abandoned his son, and the record strongly suggests this finding is not clearly erroneous. Despite having the intellectual and financial ability to contact Brian after he moved to South Dakota, Calvi
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