Evans v. Evans

240 See,

workmanship by liability e.g., or behalf of the contracts. Rich thereon on insurance Lusalon, Co-op., East River Elec. 531 Inc. v. Acci ardson v. Power insured[.]” Hartford 903, Co., 23, 25 498 N.W.2d Mass.App.Ct. & Indem. 23 dent (1986), 1373, aff'd, 400 Mass. N.E.2d 1374 repair This is not a claim for or Bros., 767, (1987); 511 N.E.2d 595 Inc. Bond masonry replacement fireplace or work Robinson, 546, 1332, 393 471 N.E.2d Mass. quality Alverson. The of the work itself is (1984). Both of these found that 1333 eases negligent not at This is a claim for issue. “faulty unambiguous, exclusion was another, damage by installed workmanship” performed includes all work accidentally damaged by which was Alverson. Lusalon, N.E.2d at by insured. 498 Thus, liability a tort it is claim which should 1374; Bros., Bond 471 N.E.2d 1333-34. above, policy. As stated covered provision “your is different from work” This of these purpose prevent exclusions is to work,” particular “that mean the which using liabili- general the insured limiting more work contracted to do and are liability ty/products insurance “as a form “faulty workmanship,” than which means all property insurance to of re- cover cost performed by insured. work pairing replacing prod- its own defective Foods, 32] The trial court determined the exclu- ucts or Holsum N.W.2d work.” 469 “your particular part” (citations omitted). “that work” sions policy, at 920 Under this actually was “restricted to the work that are coverage damage should be available for the being masonry performed, that work since it is not own the windows Alverson’s cleaning mortar off product, [Alverson].” the brick. i.e. of the windows was incidental the work Therefore, I dissent. and, therefore,

performed under the contract not excluded. As the trial ex- plained: masonry

If puts up contractor a wall down, wall falls covered. that’s job

That’s his work. That’s the he con- cleaning

tracted to do. The of the win- distinguishable, in that it’s not dows 1997 SD 16 something together. put that he built or EVANS, Appellee, Edwin E. Plaintiff and They clean the because their windows splattered work on to the windows and they had to be cleaned. Cynthia EVANS, S. Defendant 33] The trial con court’s determination Appellant. with our It Haugan. forms decision is our 19604, Nos. 19626. long-standing provisions rule that “where fairly susceptible contract are Supreme Court of South Dakota. interpretations, interpretations different 4, Considered Briefs Dec. most favorable to the should be insured adopted.” Dakota Block Co. v. Western Ca 19, Decided Feb. Co., sualty 213, 219, & Sur. 81 S.D. (1965) (citations omitted);

N.W.2d State

see also Farm Mut. Ins. Co. v. Auto.

Wertz, (S.D.1995); Rog N.W.2d Co.,

ers v. Allied Mut. Ins. (S.D.1994); Family Kremer v. American Co., (S.D. Ins.

Mut. 767-68

1993); Co., Prokop v. North Star Mut. Ins. (S.D.1990). I sup find

port for the circuit court’s decision ease policy general

law and reasons behind

242 alimony,

awards of child affirm, attorney’s except fees. We to reverse and remand to the trial court an appro- priate discounting of the valuation of the policies together with a corre- sponding equitable adjustment, ad- two, dressed under issue infra. AND FACTS PROCEDURE Cyndy [¶ 2] Ed and were married June 1973, following completion year of Ed’s first Cyndy completed law school. had college degree and worked full time from the beginning marriage parties until the moved to Sioux Falls in June 1977. At that Cyndy expecting her first child. She not return to the work force. parties’ lifestyle [¶3] The was such that they club, belonged country to a had house- help, hold frequently. and dined out They generally took year. two vacations a hours, The many record reflects Ed worked including evenings weekends, and some was often days to be out of town for Cyndy weeks at a time. volunteered her community, church, time in and school-relat- ed activities. children, parties

[¶ 4] The Ashley have two Kelsey, ages who were 17 and re- spectively, at the time of the trial. divorce They parochial attend participate school and many school and extracurricular activities. They drive late model cars and wear the best clothing. Cyndy largely brand-named has responsible been coordinating the chil- dren’s activities. While Ed was not available he, Cyndy, too, as much as took an active children, interest in assisting their them with their driving homework and them to out-of- town functions. parties [¶5] In began construc- Danforth, Meierhenry Mark V. Meier- tion of a new home in Sioux Falls which &

henry Meierhenry Falls, plaintiff Sioux ultimately considerably money cost more appellee. originally planned. than had been Around Burd, Falls, Lee R. Sioux for defendant time, discontinued her volunteer appellant. activities and devoted her time instead to personal tennis and other interests. The GILBERTSON, Justice. parties admit problems with com- Cynthia (Cyndy) munication; Evans and Edwin marriage began to deterio- (Ed) appeal arising Evans both issues twenty-seven- rate. invited a the circuit year-old court’s division of male tennis friend to move into the court the matter discussing it with heard over family’s -without residence 30-31, 1995, four-day period, knowledge. October his When Ed without 12-13, guest, December 1995. The trial court he left wife’s house learned his involving support, determined issues days returned for a but home few division, award, and attor- request. attempted improve He ney February On fees. Cyndy, but she showed relationship his grounds divorce on spent awarded attempts his eve- little interest in adultery and dismissed counter- Mends, returning home in nings out with her appeal judgment claim. Both into morning Ed moved early hours. the trial court. displeasure, separate bedroom to show problems. couple did not discuss but the raises three issues follows: 1994, Cyndy By had ceased the summer 1. its Whether the court abused dis- vacations, preferring attending family instead failing cretion in to consider the chil- her Mends at Lake Oko- spend with dren’s actual and standard liv- needs boji, family took Ed and children while support? in ing setting child 1994, In the without her. fall vacations 2. Whether the court erred trans- having an with Cyndy Ed was affair learned ferring ownership of insurance Okoboji. a who owned a home in Lake man children, thereby to the from affair, Although Cyndy initially denied the excluding property from the marital eventually Upon admitted it was true. she assets? this, learning Ed moved out 3. the trial court in Whether erred deter- home. mining the amount of awarded? attempted Cyndy Ed a reconcilia- [¶ and 6] Ed two issues Notice of [¶ 11] raises tion, Cyndy promising to discontinue af- Review: promising spend time at fair Ed less 1. in Whether the trial court erred Cyndy and the work and more time with awarding alimony? rehabilitative home, bought Cyndy. Ed children. returned in the trial court erred Whether wanted, planned family a car that she new awarding attorney fees? Thanksgiving, in vacation Jamaica for Cyndy want- purchased tickets for concert seriatim. [¶ We will address each issue 12] Minneapolis. in four ed to attend Within home, days of Ed’s return announced AND ANALYSIS DECISION seeing stop she not intend to other men. did the trial abused [¶ court 13] Whether Ed home for the last time. left failing in discretion consider the spending He time with continued actual needs and standard however, went on the living setting support? child planned vacation and to the concert and provides guidelines SDCL 25-7-6.2 14] trips shopping Minneapolis. Ed continued setting must follow child trial courts money provide spending paid However, par where the amounts. support expenses. He reduced hours household statutory guidelines, ties’ income exceeds the counseling sought Ed and encour- work. support child provides the SDCL 25-7-6.9 aged Cyndy counseling attend sessions appro obligation “shall be established at him, or refused. Ed even- alone. She level, taking the actual priate into account tually gave up trying to reconcile the mar- living of the child.” and standard needs riage. (S.D. Jones, 472 785 In Jones v. N.W.2d 1991), of child period separation, Ed we held establishment During statutory guidelines obligations paid Cyndy per month to above discretion, taking was trial court’s She stated could within the their children. into the child’s actual needs suggested she account live this amount. Earley, living. Earley v. standard of Accord sell the house. refused and filed (S.D.1992), cert. de- 484 127-28 N.W.2d divorce action. 244

nied, (S.D.1995) Nelson, 121 506 U.S. 113 S.Ct. N.W.2d ] (1992). L.Ed.2d 200 See also Bloom v. child partici- that the should be allowed to (“the Bloom, (S.D.1993) pate high some the father’s standard support by may living calculate mathe- did not mandate that the child extrapolation, obligated permitted but it is not engage matical in all of the fa- inquiry high living. (Emphasis to do so.... essential [T]he remains ther’s standard of living original.) actual needs standard (Emphasis original.)). children.” (trial Bloom, See 498 N.W.2d at 218 failing not abuse its discretion to find a Cyndy sought per month cello, designer clothing, however, ballet lessons and support, produced she an ex- language camps did not constitute children’s expenses $4,410 per hibit which listed in determining Itemized, needs figure month. included: obligation). 400 for food $ expense 580 for vehicle Subtracting per month per expense month for medical expense living tennis itemized per month for ex- educational expenses for the children leaves balance of pense $2,185 per month. The trial court ordered month vacations amount, pay to support plus child in this per dining month for out pay per directly month in $500 allowances to 550 for entertainment and allow- children, ances per the month for their $600 clothing purchases 200 for school, parochial tuition at provide expenses (Kelsey 1300 for tennis child, health insurance for each a total (clothes, lessons, only) supplies, $3,505 support obligation per child of month.1 travel) tournament trial court noted that Ed agreed to piano 60 for lessons allowances, pay the parochial beauty shop expenses 25 for tuition, insurance, college school medical expenses 25 for cosmetics newspapers subscrip- 10 for expenses. The trial court noted this child tions support provided award still a “luxurious life- style” girls.2 two the $4,410 appeal, Cyndy 18] On notes the amount [¶ 16] The trial court ruled at an interim support obligation, of child as deter- $1,300 hearing that month for tennis by court, mined trial approximately the is clearly expenses was excessive and Ed would monthly 12% of his net income. required pay expense. not be to In so Cyndy argues the trial court made two er- doing, the trial court noted: 1) applied wrong it legal rors: the standard may jointly parties [W]hile the that decide by focusing on the children’s rather needs they want participate the children to in 2) than their standard of living; and it substi- extent, tennis activities to that that needs personal judgment its tuted of chil- what the joint parties to be a decision of the includ- be, living dren’s standard should for the joint ing a decision as to how that bewill by parties standard set the dur- themselves paid parties agree for. If the mutually marriage. ing their provide that want to those kind of opportunities girls they for the are certain- the trial court’s memorandum ly decision, entitled so to do but the court not will it “the cited needs the children force to in kind engage husband that ability pay” and the father’s to stan- the expenditures. The in determining decision [Ochs dard obli- 1. We note Supplemental several these items the trial in information Ed's brief to this pay ordered Ed to daughter graduated in addition to the Court notes his older from already amount were in high May currently included total school in 1996 and is en- Therefore, expenses. private list college in a rolled Minnesota. actually amount awarded pay Cyndy by is to the closer continues to the amount ordered requested by Cyndy argues ap- than she in her the trial court for two children and has not peal to this Court. moved for reduction of that amount. appropriate trial con statutory guidelines. It factor the court must gations above ability father’s sider. The trial court did not its dis that because the abuse then stated ease, only ordering not at issue in an amount pay cretion need the “reasonable needs adequately consideration that will care for the children’s solitary permit enjoy children.” This consideration actual needs and them standard set statute living not reflect the does standard commensurate with above, the trial prior Billion, caselaw. As noted prior parents’ to their divorce. ¶¶ inquiry is take into account the at SD 235-36. 41 - living actual needs standard However, the record reflects Whether trial court erred children. by transferring ownership apply only court did reasonable of insur- and that it did consider needs of the children ance from the to the living making children, thereby excluding prop- deter- their standard erty mination. the marital assets? where jection living. Billion lines set forth the burden To reflect the children’s needs and standard month is a which ter. traveling years involvement prove Kelsey cretion ments the per year couple’s daughters, which includes Kelsey’s dispute, that this N.W.2d 553 N.W.2d at 235 ple’s divorce. See curtailed after her sixteenth dard also note that while standard of 531) (“obviously, accept do projected expense for Ed Cyndy the so would remove the old. As ($15,600 annually) is based ^[1121] to travel at living standard of expenses to points more than of 530). either several states. setting living with this does not Cyndy’s claim of in SDCL 25-7-6.2. proving before A out, such, projected expense Billion, party’s claimed tennis, income exceeds reflects part appeal, Billion, 1996 SD at (citing in divorce cases a child’s which living prior accompany they month participate dispute, that this her claimed Cyndy has failed to (quoting for tennis which she 1996 SD spent Ochs, daughter Kelsey separated”). Cyndy only argues is not birthday. At parent’s reflective of in 1995 for also her court’s dis $1,300 per one obligations in tourna Ochs, expenses. is fifteen 101, 40, expenses expenses does not is the cou Ashley’s severely N.W.2d daugh of the guide notes, stan ¶ ¶ 41, pro pro has We whether the title trial court to “make an Dakota name gin.’ noted divorcing parties sion state” N.W.2d (S.D.1995) Id. at 67. of ‘This property unless it Prentice v. must be Vander tion be included N.W.2d court abused Goehry, 1992); (S.D.1991); N.W.2d 762 N.W.2d on the omission 1982); property ” Owen, discretion. our well-established standard of review (S.D.1977). is Endres v. 483, court will not disturb a division of Kanta Guindan broad, it evidence. considered 354 Pol, (quoting 156 351 N.W.2d soundly of assets which should court, 486 SDCL 25-4-44 authorizes the Prentice, “ husband or the wife.” South as marital belonging to (S.D.1991). N.W.2d 192 ‘all its discretion.’ Vander Pol v. (S.D.1991); Johnson 484 171 division of marital (S.D.1991)). v. Gibson, Endres, regardless Radigan Radigan, subject Kanta, is not uncontrolled and clearly appears the trial N.W.2d such (S.D.1989); Gibson v. to be an “all Guindan, 322 N.W.2d 880 equitable property substantially based 437 N.W.2d v. While (S.D.1984); Fox 479 N.W.2d 505 of either or both (S.D.1984). either or v. Johnson, of title or equitable Gibson, 437 v. Endres, this is an division Goehry 524 property: Fox, is properly at discre abuse Owen both, (S.D. (S.D. divi 171; The ori 465 467 471 we v. the trial court erred jection monthly expenses unrea claims “not four in- removing property from the marital monthly net income of given sonable” Cyndy, by Ed $25,000, policies owned type comparison is not the surance $100,000, having a cash value excess of amount of insurance for his children’s benefit transferring policies those to the children. required but was to name as his children As the trial court determined the marital policies already beneficiaries to owned. Lemer, should be divided between 50/50 See In re Estate argues provided error parties, The trial court refused “gift” children a windfall and caused assign policies value these to Ed party. loss of over each At because, making division under issue, of this we outset of discussion note court, the conditions set down it con trial court’s conclusions of law addressed five policies By cluded these have no value to Ed. policies: “The three New York order, court he must maintain them for the Policies, Policy Life Insurance Prudential benefit of the children and cannot Policy and the Northwestern shall be main- any way; encumber them in their value is tained for benefit children.” only to him directly, no current use but policies court the value of these determined security indirectly, daughters’ for wel $100,221. to be Merchant, fare. See Merchant v. 130 Mich. (1983) 25] Our review settled record App. (provi Cyndy’s formulation this ease indicates judgment sion in or decree of divorce appel- statement in this of her issue section dering be insurance to maintained benefit late brief the trial court’s mischaraeterizes marriage may of minor children of be discussion this issue at and its conclu- security sup viewed as court-ordered child regarding poli- sion of law these insurance port). (providing 25-4-42 in part SDCL Cf. transcript cies. Review of the trial reflects may require spouse “[t]he proposed policies that Ed these be set aside give security providing reasonable main that the the marital estate and children tenance, making any payments required so be made beneficiaries provisions chapter....”) under the of this money would have sufficient die needs should Ed before the children are making equitable division Cyndy agreed raised. be Ed should 25-4-44, under SDCL the trial provide funding, certain but that regard court “shall have for equity and the requirement such could fulfilled parties.” circumstances of the The trial purchase of inexpensive term life insurance discretionary authority court has broad than, policies she rather what characterized Endres, dividing the property. marital as, converting marital assets into children’s 67. The of N.W.2d at facts this case do not responded if assets. The trial court this present the situation where the to payments insurance is used secure Ed’s to has property omitted certain of the marital children, any there would not be cash to making proper failed consider it in its policies, to available him from these Gibson, ty division. See 437 N.W.2d at 172 therefore, opinion, in the trial court’s it would (omission of properly assets which should charge policies against not be to fair these property included as marital is an abuse Ed if he cannot make use them. The trial discretion). present In the case the trial court then that the be made ordered children court, “regard equity for and the circum policies, the five beneficiaries these parties,” stances of the considered the five policies, Ed be to maintain these policies and declared shall be any way. and that he not them in encumber by Ed maintained for the benefit of the Although children. facts, the trial court denotes the trial [¶26] Under these “given policies pur these for ownership not to children” court has transferred of these assets, poses policies of valuation marital we marital estate the chil note the to conveyance dren. that the trial court did not order Ed remains the owner of these five children, policies. property of this nor it parties’ children have to the been assign policies’ present made to policies’ the beneficiaries.3 Ed was not the value merely required specific making to maintain a its division. Since owner- divorce, Cyndy policies. 3. Prior to the named the children were the beneficiaries of these Ed, months, $1,000 per years month for five with policies remain ship of the actuality expert thereafter. vocational was in court’s order found, opined, benefit. trial court for the children’s and the that she distribution Hunter, 1278, 1291 year within v. 498 N.E.2d would be able to earn See Hunter therein). (and years, retraining reen- (Ind.App.1986) cited three to five after cases ages, tering Cyndy appeals light present the work force. of the award, obligation, and arguing she entitled to substantial- amount of the required by judgment alimony. ly argument Ed is more She bases her the fact that provide post- years marriage for the children’s on her of service to the as a court to education, discrepan- secondary we find the trial court’s homemaker the vast wife and earning par- ordering cy capabilities maintained for the these between “soundly to be and substan children’s benefit ties. Ed has a

tially based on the evidence.” of chal 31] Our standard review statutory obligation provide support lenges alimony trial court’s award 25-7-6.1 parties’ children. See SDCL Dussart, well-established. Dussart necessary provide (obligation to “for the ¶41, 9, 109, 111; SD DeVries maintenance, support of the education and DeVries, 73, 77 child”). A trial court is vested with discretion in Despite finding no our awarding alimony its decision will not ownership policies, hold we transfer clearly appears be disturbed unless it appropriate treatment their that more its Trial discretion. abused have been to discount their valuation would following must factors courts consider zeroing than their value value Ed rather (1) setting when an award: logic treatment particular out. The (2) length marriage; assignment by the court as lies their health; (3) respective earning ages and provide security obligation to finan for Ed’s (4) capacity party; each financial completion until support to his children cial (5) division; situations after the post-secondary After that of their education. and, standing; in life their station or social time, obligation of his point Ed is relieved (6) fault in termination of the relative and the need provide further findings on marriage. A trial court’s security payments likewise ceases of such legal conclu- factors must these remand to the trial exist. We reverse and stated, an discre- sions. As often abuse of appropriate an discounted val court to enter only has been tion where discretion exists policies. keeping ue on the insurance justi- purpose an ‘exercised to end pronouncement of at trial court’s against, by, clearly reason and fied equal the marital tempting distribution of evidence.’ assets, make an trial court should then obligated A court is to consider trial Cyndy to adjustment in to offset the award together. alimony division of awarded discounted value 479 N.W.2d Kappenmann Kappenmann, remanding this to Ed. hold that We (S.D.1992); Ryken, Ryken v. issue, prop which will result in an increased (S.D.1990) II). 122, 127 (Ryken Cyndy equal in an erty award to both Ed and amount, sufficiently impact the not this does must be Additional factors itself, by to a necessitate division trial court makes an considered when the alimony further award. reexamination alimony. Saint- award of rehabilitative ¶ three, infra, at 31. See issue Saint-Pierre, Pierre v. 357 N.W.2d awarding or re rehabilitative Whether the trial court erred [¶29] 3. alimony, court should the trial imbursement alimony determining the supporting guided by “the amount of be awarded? contributions, foregone his or her spouse’s improve or opportunities to enhance Cyndy reha- [sic] The trial court awarded skills, the du- alimony professional or vocational per month for six bilitative marriage following completion sought to 5.Refusing ration of the attend when counseling spouse’s professional encouraged Cyndy to nonsupporting him attend either with or alone. Id. An award of education.” rehabilitative designed alimony be to meet an edu must properly Cyn- The trial court concluded that plan of action cational or whose exis need dy’s fault awas factor to be taken into finds the record. Ra tence some deciding alimony. account 486; Ryken digan, Ryken, 465 N.W.2d at Following [¶34] of the marital division (S.D.1989) I). (Ryken property, Cyndy marriage leaves the with decision to award ‘reimbursement’ or “[T]he Approxi- over one million assets. dollars alimony, and, so, if ‘rehabilitative’ in what mately in the these assets are time, length is com amount and what payments Cyndy form paid of cash be mitted to the sound discretion of the trial immediately period Ed either or over a purpose court. The rehabilitative years the next at 7% five interest on the put supporting spouse in position is to that, unpaid balance. The trial court found upgrade own economic mar likewise investment, through Cyndy’s conservative Studt, ketability.” Studt v. liquid provide assets would annual income to (S.D.1989) (internal omitted). citations month, $40,792, her of or without invading principal. Following three to A review the record years wage-earning, monthly five in- the trial case demonstrates court considered $4,782 per come would rise to month. The factors, necessary including Cyndy’s all the specifically noted that par traditional role of homemaker and the would not be able to live in the luxurious earning discrepancy capabilities.5 ties’ lifestyle enjoyed she while married to Ed trial fi court also considered but, time, at the same should be able to nancial division situation after long-term support demand excessive her fault the dissolution the husband to whom did not wish to she marriage cooperation and lack of in Ed’s married. The court concluded marriage. granting efforts to save the comfortably should be able to live on the divorce in of Ed on the basis adul favor acknowledged amount awarded. The court tery, the trial court had before it numerous Cyndy’s family’s contribution accumu- examples of uneontested marital misconduct success, lation of wealth and her husband’s by Cyndy upon finding which base its justified and further noted award was fault: Cyndy’s forgone employment due to opportu- during parties’ twenty-two year nities Moving family twenty-

1. into the home a marriage. say We cannot seven-year-old male with- tennis friend against award was reason and the evidence. consent; prior knowledge out or Regarding “educational need Refusing to attend vacations as plan of action” that must be evidenced from past, vacationing in the but rather the record for an award of rehabilitative friends; Okoboji Lake alimony, Radigan, 465 N.W.2d at 3. Having an affair with a man who presented herself for evaluation the voca- Okoboji; owned home at Lake specialist tional rehabilitation who testified Refusing stop evaluation, seeing Following other men af- behalf. affair, ter personal Ed found out the and which about included interview with reconciliation; attempted Cyndy, taking when Ed and her educational and work his- point: express implied The trial on court reasoned this would have tract other or including agreement fidelity terms an the to The court doesn’t doubt the wife's claims that marriage. expect The wife cannot to breach agreement (express implied) there was or family the contract and then demand that the that husband on career work and wife up obligations. stay would husband live to its home to raise the children and (although be active in volunteer work she has particularly not been 5. At the time the active in volunteer work divorce Ed's annual income However, $485,000. years). in recent such a con- was

249 ¶ Grode, v. 1996 543 various vocational Grode SD tory, submitting her to and 795, 804; testing, expert Harvey Harvey, con- v. N.W.2d personality-type and Garnos, (S.D.1986); of action v. Cyndy’s best course N.W.2d 862 Garnos cluded (S.D.1985). review, to com- reentering the work force would be On we N.W.2d com- six months of select plete approximately analysis the trial court’s of the fol examine be- vocational school and puter courses at a lowing pertinent fixing legal to fees elements position the entry-level in gin in an (1) work the generally: the amount and value of banking banking worked in field. had (2) involved; intricacy im property in to Sioux Palls parties moved before (3) litigation; portance of the the labor vocational her scores 1977 and test (4) involved; time the skill to draft high interest and demonstrated a evaluation (5) case; discovery try the pleadings and also ability in this Her test scores area. (6) utilized; procedures the existence of com high in fields of business sales. were (7) legal problems; re plicated express spe- Although Cyndy not to this (8) quired; required; whether were briefs any specific plans employment cialist (9) is appeal whether an to this court interview, it not- retraining during their was Henrichs, 426 N.W.2d at 573. involved. expert not by at trial that is ed $15,- The trial court person ca- awarded who not been unusual for long marriage attorney is during a fees. The court found reer-minded through vo- going parties’ a divorce. The presently proper- the amount and value of the he specialist worth, testified cational rehabilitation ty, impacted over two million dollars’ ca- Cyndy discussed assistance with her all of the factors it must consider above development after the divorce. reer requested attorney determining whether the fees are reasonable. this issue. 36] affirm on [¶ We 4. Whether the trial court erred Once the deter [¶42] alimony? reasonable, awarding it requested rehabilitative mined the fees were property to owned was bound consider by issue Notice of 38] This Ed’s first incomes, party, each their wheth relative accepts the trial He states he Review. liquid, Cyndy’s property and the rea er wishes this on all issues and court’s decision actions, parties’ deter sonableness if appeal only on this issue Court consider be made. mine an award should whether any deci- part of the we reverse party was The trial court concluded each Our decision reverse and remand sion. $1,100,000 proper approximately awarded discounting of appropriate ty; great disparity is a there an ex- policies under issue two necessitates incomes; anticipated present and doing, of this issue. so we see amination is, most for the that while modify holding of no reason to ¶ would part, liquid, liquidating such 28, supra. court. See long-term earnings which the her

decrease the trial court erred making 5. Whether [¶39] deci court attributed awarding attorney fees? division, support, sions on alimony; and that both have claimed at The decision to award claiming the other be unreasonable —Ed torney the sound discretion fees within agreeing unreasonable in Henrichs, the trial court. Henrichs grounds of irreconcilable differ divorce on (S.D.1988); Wallahan fault, avoiding ences and thus a trial Wallahan, necessary Cyndy claiming Ed obstructed the attorney’s determining whether to award into Taking all of this discovery in this case. fees, prop trial court should consider consideration, attor the trial court awarded party, respective erty owned each $15,000 Cyndy. plus tax to ney sales fees incomes, moving liquidity party’s its court abused do not find party We either unreason assets and whether making in this award. ably spent on the case. discretion increased the time Appellate Attorney Therefore, [¶ 43] 51] Fees I [¶ find that this decision message a sends clear to the bar and trial [¶ Pursuant to the set 44] rule forth in judges that a actual needs of minor child are Malcolm, Malcolm 365 N.W.2d setting support. be considered in child (S.D.1985), Cyndy has submitted an itemized request attorney in I appellate [¶ 52] concur on all fees other issues. $4,926.35. requests Although she SABERS, (concurring part, Justice in dis- costs, $2,554.74 an additional sum of she senting part). has not offered an itemized statement of these costs. I only 53] would [¶ reverse and remand not insurance, 2 relating Issue but also Issues deciding [¶ party 45] whether a is relating support to child alimo- fees, appellate attorney entitled we consid “ ny- ‘property party, er the owned each incomes, liquidity assets, perspective relative The was so party unreasonably determining and whether either in narrow child and ali- ” spent mony that allocating creased the time on the case.’ one would think it Beer Beermann, money. Supreme ap- mann v. own Court (S.D.1995) Abrams, proves (quoting despite gross Abrams v. and affirms annual (S.D.1994)). $485,000. Maybe income of Considering for South Dako- standards, conjunction ta money these factors in with the facts of is so much the court ease, system incapable putting things we is party determine each shall in the responsible proper perspective. be attorney their own fees. [¶ 55] The amount of child deter- MILLER, C.J., KONENKAMP,' [¶ 46] ($3,505) only mined the trial court 8.7%

J., concur. monthly income, of Ed’s which amount will terminate in 1999. J., AMUNDSON, concurs result on Issue [¶ 57] After the first 6 months of $2,500 month, per at the trial court set alimo- SABERS, Justice, part concurs $1,000 ny per years. $1,000 at month for 5 part. and dissents in per represents month a mere 2.5% of Ed’s AMUNDSON, (concurring in Justice re- monthly income. I). on sult Issue [¶ 57] The trial court found that Nelson, 49] Ochs $25,000 “would be earn per year able to (S.D.1995), 530-31 this court affirmed an years, within 3 to 5 retraining after $1,733 award of child for a three- reentering the work Apparently, force.” year-old any showing child without of what trial court found this to be fair and the the actual needs of the I child were. dissent- majority affirms. How can this be fair when any ed Ochs based the lack of evidence her, under the best scenario for her annual reflecting what the actual needs this minor $25,000 income will be and his annual income (Amundson, J., at were. Id. 531-33 probably upwards $485,000, will which concurring in part dissenting part). acknowledged: the trial court Following Ochs, $485,000 based on a vastly husband superior [T]he has earn- case, income of the father in this ing capacity. it would present At the time he is mathematically logical seem extrapolate earning approximately year support obligation expected more and that can be to increase over hand, the older minor children. On twenty the other next years. In contrast record this case a trial court unemployed discloses present wife time and that looked at the period actual needs of chil- training expected after can be dren and not whether mother needed a only $25,- new to earn with increases to car, is, what mother’s credit card balance after years. three five After that mother, trips for unlikely other various and sun- it is earnings that her would dry wants mother. any increase than more the rate of infla- 59] For the trial court to make great disparity [¶ in the is a tion. There participation Kelsey’s continued tennis capacity parties. earning contingent invading capital her events on court, attempt to majority, The trial and the shortsighted her distribution is by noting Cyndy’s alimony justify award lopsided standpoint a from a from proper- from income investment additional standpoint. prevents Cyndy financial This This not narrow ty assets. does distribution continuing supportive from the active her income and Ed’s in- gulf between always played in daugh- which she role come; contrary, ignores the the court contrast, Ed tennis activities. can ters’ Ed, too, will realize an increased fact that participate choose to and contribute without his property dis- income from investment considering need ever even to invade the award of “[T]he tribution assets. It is capital of his distribution. wholly inadequate in amount and dura- [is] unduly hamper Cyndy’s support of fair to tion, considering perma- ... especially activities, when Ed can do so earning ability in the disparity nent simply pocket change.6 expending Johnson, parties.” two Johnson 60] I reverse and remand indi- would (S.D.1991) (Sabers, J., con- cated above. curring specially). nar- court was even more eliminating tennis and expenses row in family budget. tournaments from

tennis from the record tennis

It obvious recreational, major constituted the activities SD this fami- and social events for entertainment MEYER, Appellant, Keith Plaintiff and a ly year may all round. seem like Tennis necessity per- a from the luxury rather than income, average spective Dakota South Meyer Freightways, Dakota statute, family. According to but not Inc., Plaintiff, actual needs the trial court must consider the living the children: and standard of SANTEMA, Willmott, Darwin Leonard above the For a combined net income City White, Dakota, and the South 25-7-6.2, §in the child schedule Appellees. Defendants an appro- obligation shall established No. 19694. level, priate taking into account the actual living child. needs standard Dakota. Supreme Court South added). That (emphasis SDCL 25-7-6.9 16, 1997. on Briefs Jan. Considered living think it is not what we standard Feb. Decided living set ought is the standard of to be—it themselves; may what seem commonplace extravagant to an outsider was family.

in this example, approximately week one before 6. For trial, Kelsey, pay bought Anticipating [Cyndy] for the new automobile A. will years pay then 14 old: that I insurance out of you Q. What kind of car did select? her. words, Pathfinder. A. She selected Nissan of the trial court the decision other you pay Q. for that car? And what approves majority sanctions her, that she the convertible A. Traded funds purchase this car from marital sole convertible, $20,- had, paid a used Cyndy expected cover while 000.00. funds. purchase price Q. of that What was the total buy year-old girl a car Ed can a 14— car? impunity which marital funds with Twenty plus trade-in of the A. thousand years alimony. exceeds two Sunbird, I trade- which think Pontiac like, of, something. seven thousand in value

Case Details

Case Name: Evans v. Evans

Court Name: South Dakota Supreme Court

Date Published: Feb 19, 1997

Citation: 559 N.W.2d 240

Docket Number: None

Court Abbreviation: S.D.