Stacy DUSSART, Plaintiff and Appellant, v. Michael R. DUSSART, Defendant and Appellee.
No. 19010.
Supreme Court of South Dakota.
Decided April 17, 1996.
1996 SD 41
Considered on Briefs Sept. 15, 1995.
[¶ 15] Although there are factual disputes, we will not reverse a trial court‘s findings unless they are clearly erroneous, and we are required to resolve all conflicts in the evidence in favor of the trial court‘s findings. Matters v. Custer County, 538 N.W.2d 533 (S.D.1995); In re Estate of Elliott, 537 N.W.2d 660 (S.D.1995). The trial court was in the best position to assess the credibility of the witnesses and the weight to be accorded their testimony, and we give due regard to its opportunity to observe the witnesses and the evidence first hand. Estate of Elliott, 537 N.W.2d at 662. It is apparent the court rejected Mewes’ account of the conversation with Cowan on September 8 or 9. Mewes’ claim that the court should have chosen his version of the facts is insufficient to demonstrate reversible error. Further, the findings of the court support its conclusion that an implied contract existed.
[¶ 16] Affirmed.
[¶ 17] MILLER, C.J., and SABERS, AMUNDSON, KONENKAMP, and GILBERTSON, JJ., participating.
Mitchell D. Johnson, Rapid City, for defendant and appellee.
KONENKAMP, Justice.
[¶ 1] Stacy A. Dussart appeals from a decree of divorce, challenging the sufficiency of her rehabilitative alimony award, as well as the trial court‘s refusal to award attorney fees. We affirm in part, reverse in part, and remand.
FACTS
[¶ 2] Michael R. Dussart and Stacy were married approximately ten years at the time they were divorced. Stacy‘s complaint sought a divorce on irreconcilable differences. Later, after Michael had answered the complaint and without seeking leave of court to amend, Stacy served and filed an amended complaint. This amended complaint alleged additional grounds for divorce based on fault. Following trial, a divorce was granted on irreconcilable differences and Stacy was awarded rehabilitative alimony of $200 per month for thirty-six months.
ISSUES
[¶ 3] I. Did the trial court err in granting Stacy a divorce on the basis of irreconcilable differences rather than upon fault?
[¶ 4] Stacy argues the trial court should have granted her a divorce on the grounds of emotional cruelty and adultery; she did not consent to a “no-fault” divorce and her amended complaint did not aver irreconcilable differences. She also claims Michael should be deemed to have admitted fault as alleged in her amended complaint because he filed no amended answer and
[¶ 5] True, a divorce may not be granted on irreconcilable differences unless both parties consent. Osman v. Keating-Osman, 521 N.W.2d 655, 656 (S.D.1994);
[¶ 6] Issues tried by implied consent are to be treated as if they were regularly raised by the pleadings. Wasserburger v. Consolidated Mgmt. Corp., 502 N.W.2d 256, 261 (S.D.1993). Yet at no time—not during trial, after trial, or even after filing of the judgment—did Stacy move to have the pleadings conform to the evidence on fault to support her contention the issue was tried by implied consent. As no such motion was made, Stacy‘s argument that
[¶ 7] Likewise, her argument that Michael should be deemed to have admitted fault based on his failure to respond to her amended complaint assumes she properly pleaded fault as an issue for trial. Stacy never sought or received court approval to file an amended complaint as required by
[¶ 8] II. Did the court abuse its discretion in awarding only $200 a month in rehabilitative alimony?
[¶ 9] Stacy argues she is entitled to substantially more rehabilitative alimony. Our standard of review in challenges to such awards was recently reiterated in DeVries v. DeVries, 519 N.W.2d 73, 77 (S.D.1994). A trial court is vested with discretion in awarding alimony and its decision will not be disturbed unless it clearly appears the trial court abused its discretion. Id. Trial courts must consider the following factors when setting an alimony award: (1) the length of the marriage; (2) the parties’ respective ages and health; (3) the earning capacity of each party; (4) their financial situations after the property division; (5) their station in life or social standing; and, (6) the relative fault in the termination of the marriage. Id. A trial court‘s findings on these factors must support its legal conclusions. See, e.g., Fox v. Fox, 467 N.W.2d 762 (S.D.1991) (where trial court‘s findings justified award of alimony, no abuse of discretion occurred in determining wife was entitled to alimony). As often stated, an abuse of discretion exists only where discretion has been “exercised to an end or purpose not justified by, and clearly against, reason and evidence.” DeVries, 519 N.W.2d at 75.
[¶ 10] A review of the findings of fact and conclusions of law entered by the trial court in support of its judgment demonstrates the court considered all the necessary factors, including the duration of the marriage, the traditional roles assumed by Stacy as homemaker and mother, and by Michael as a career military member. Findings were also made on Stacy‘s ability to attain only minimum wage employment if she obtains no additional education, and her desire for further education in the dietary field. The court also considered the health of the parties, noting that Michael is in good health
[¶ 11] Stacy‘s appeal is based upon her belief the trial court‘s award of $200 per month for thirty-six months is inadequate, because she will not be self-sufficient in three years. Her brief portrays her perceived need for additional support, but does not demonstrate any particular manner in which the trial court‘s discretion was abused in setting the amount of alimony. Stacy‘s claim for rehabilitative alimony is based on her plan to obtain additional education as a dietitian. At trial, she testified her proposed two-year program of full-time study will cost approximately $2,200 per year, or about $200 a month, and she would also incur day care expenses while in class. On cross-examination she stated she would have to enroll as a part-time student and expected it would take more than two years to complete the dietitian course.
[¶ 12] From her own testimony it is plain, Stacy was awarded alimony consistent with her anticipated educational costs. Indeed, she was awarded $200 per month for three years, presumably to take into account the fact that she will not be a full-time student but will still incur some day care expenses. Moreover, the court ordered Michael to pay eighty percent of the child care expenses while Stacy is a student. On appeal, Stacy is essentially seeking to relitigate the amount of alimony, rather than demonstrating the manner in which the amount awarded by the trial court is against reason and evidence.
[¶ 13] We cannot retry factual issues decided by the trial court, even if we would not have made the same decision had we been sitting as trial judges. See People in Interest of A.R.P., 519 N.W.2d 56, 61 (S.D.1994). Stacy has not established any sound reason to abandon this logic or to reverse the trial court. Further, in the event it appears in the future the alimony award was insufficient, Stacy can return to court to seek a modification. Saxvik v. Saxvik, 544 N.W.2d 177 (S.D.1996). The alimony award is affirmed.
[¶ 14] III. Did the trial court err in not admitting evidence of Stacy‘s anticipated future expenses?
[¶ 15] As a continuation of the argument advanced in the previous issue, Stacy contends she should have been permitted to present evidence on what her expenses will be in the future to justify a higher alimony award. Apparently, these estimates were based on the assumption she would move to another city and enroll in school. She bases her argument on the legitimate notion that future expenses may be a proper consideration in setting alimony.
[¶ 16] Yet contrary to her assertion, the trial court did admit Stacy‘s projections, thus the court had this evidence available in reaching its decision. In DeVries we observed that anticipated expenses are not a definitive factor in setting an alimony award, although they may be considered. 519 N.W.2d at 77. Stacy‘s exhibit was, in fact, considered. Her assertion the trial court did not consider her needs and income in setting the amount of alimony is in direct conflict with the record and the actual findings of fact and conclusions of law.
[¶ 17] IV. Did the trial court abuse its discretion in refusing to award Stacy attorney fees?
[¶ 18] Finally, Stacy asserts the court abused its discretion in failing to award attorney fees to her.
[¶ 19] At trial Michael admitted he created a secret bank account during the
[¶ 20] V. Is either party entitled to appellate attorney fees?
[¶ 21] Both Stacy and Michael have filed motions for attorney fees, together with itemized statements of expenses incurred on appeal. See Tesch v. Tesch, 399 N.W.2d 880, 885 (S.D.1987). We award to Stacy fees of $2,500.
[¶ 22] Affirmed in part, reversed in part, and remanded.
[¶ 23] AMUNDSON and GILBERTSON, JJ., concur.
[¶ 24] MILLER, C.J., and SABERS, J., concur in part and dissent in part.
MILLER, Chief Justice (concurring in part and dissenting in part).
[¶ 25] I dissent as to issue two.
[¶ 26] I believe the trial court abused its discretion in limiting rehabilitative alimony to merely $200 per month. Rehabilitative alimony is appropriate where a lump-sum or short-term award of support is necessary to permit a spouse to achieve economic self-sufficiency or to improve or refresh job skills. Parsons v. Parsons, 490 N.W.2d 733, 738 (S.D.1992); Saint-Pierre v. Saint-Pierre, 357 N.W.2d 250, 261 (S.D.1984). Rehabilitative alimony is awarded to enable a former spouse “to obtain the educational skills she needs to fend for herself in life.” Ryken v. Ryken, 440 N.W.2d 300, 303 (S.D.1989) (quoting Tesch v. Tesch, 399 N.W.2d 880, 885 (S.D.1987)).
[¶ 27] The trial court does not seem to have acknowledged the disparity in the parties’ post-divorce income. After alimony and child support deductions, Michael will have approximately $1,530 per month net income for his sole support. In contrast, including alimony, child support, and earnings, Stacy must support herself and her two children on a net monthly income of $1,281. I cannot agree that an alimony award which essentially covers tuition and book expenses will ensure Stacy‘s self-sufficiency. Her basic living expenses while a student should also be considered when setting rehabilitative alimony. The trial court‘s award fails to equitably apportion income between the parties during this transitional period.
[¶ 28] I am particularly troubled by the trial court‘s miserly alimony award, because I believe factors relevant to setting alimony weigh heavily in favor of Stacy. While the parties are about the same age, their health is quite different. Michael is in good health, whereas, Stacy has sciatic nerve damage that causes her pain and limits the kind of physical labor she can perform. Stacy also has clinical depression, which she treats with medication.
[¶ 29] The earning capacity of the parties is sharply divergent. Without additional education and training, the court found Stacy “is primarily limited to essentially minimum wage jobs.” Assuming a forty-hour work week at the minimum wage of $4.25 per hour, Stacy‘s annual earning capacity is $8,840. Meanwhile, the trial court found Michael‘s earnings are in the “upper $30,000 to $40,000 range.” Likewise, the social standing of the parties after their divorce is very different. Michael is a gunnery sergeant in the United States Marines. Stacy is a manual laborer, currently performing part-time work in a school cafeteria.
[¶ 30] Additionally, the trial court‘s conclusion that the parties were equally at fault in the termination of the marriage is contrary to the evidence presented to the court. Michael admitted to having five affairs during the course of the marriage. Stacy testified that she first became aware of Michael‘s infidelity when she was pregnant with their second child and he advised her that she
[¶ 31] Except for a claim that he was unfaithful with a prostitute, Michael did not dispute the extramarital affairs that Stacy described. Michael claimed Stacy did not give him enough attention. He contended she was affectionate and loving only when she wanted something from him. Referring to one of his affairs, Michael testified, “I know it was wrong, but I wasn‘t getting any attention at home, and I figured—at one point, I figured life was too short for that kind of mediocrity.”
[¶ 32] I cannot agree that Stacy‘s alleged inattentiveness and “mediocrity” was on par with Michael‘s persistent and unabashed infidelity. Even acknowledging that we review a cold record, it is inconceivable that Michael experienced the same humiliation and betrayal that Stacy felt as a result of his blatant unfaithfulness.
[¶ 33] Michael‘s deviousness went beyond his numerous affairs and spilled into the parties’ finances. As the majority notes, he had a secret bank account during the marriage. After telling his wife he wanted a divorce, he conveniently used funds from this secret account to pay his own attorney fees. Michael hid these marital funds while he was earning $30,000 to $40,000 per year and Stacy was working seventeen hours a week for $6.00 per hour.
[¶ 34] Finally, when awarding rehabilitative alimony, the trial court should consider a spouse‘s foregone opportunities to enhance or improve professional or vocational skills. Parsons, 490 N.W.2d at 735. Although Michael testified that he wanted his wife to pursue education and a career during their marriage, he later stated he did not want his children “raised by a baby-sitter.” He told his wife, “Look, if we have kids right away, you‘ve got to be home with them.” Stacy testified that she was prevented from pursuing an education and job training because of her husband‘s insistence that she remain at home with the children.
[¶ 35] Based on the evidence presented, I believe it was against reason and evidence to award only $200 per month in rehabilitative alimony. Stacy, who will be raising the couple‘s children while working toward a new career, should not live in near poverty while her former husband lives in relative comfort.
[¶ 36] I concur as to all remaining issues.
[¶ 37] I am authorized to state that Justice SABERS joins in this writing.