Kauth v. Bartlett

[¶ 27.] I agree with the majority opinion’s determination that the parties raised the issue of deviation and therefore, the referee could consider a deviation. However, I disagree that the statute itself limits consideration of a deviation only to instances where a party raises the issue of a deviation. Admittedly, some of our prior case law suggested a deviation can only be considered if a party raises it. See Wagner, 2006 SD 31, ¶ 9, 712 N.W.2d at 657 (noting the statute “only allows a referee to address deviations when one has been ‘raised’ by a party and only upon the entry of specific…