Gibson v. Gibson
437 N.W.2d 170
S.D.
1989
Check Treatment

*1 GIBSON, Plaintiff Marie LaVonne Appellant,

and GIBSON, Defendant Dale

Glenn Appellee. Piersol, V. Piersol of Rose & Catherine Falls, appellant. for No. 16163. Sioux Falls, Burke, defen- John E. for Sioux Dakota. Court South appellee. dant and 30, Briefs Nov. 1988. Submitted SABERS, 8, Justice. March

Decided (Wife) appeals a divorce

LaVonne Gibson claiming in the error decree alimony. property and in the amount of remand. We reverse Facts (Husband) and Wife were Glenn Gibson 18, 1950, Brandon, married June South during They children Dakota. had two longer at marriage, adult and no both are parties fifty-seven at the Both were home. time divorce. grocery employed was at a years in Sioux Falls for the first two

store working marriage. began In capacity. He for the Air Force in a civilian joined had the Air National Guard also capacities 1953. He continued both monthly the time of divorce with net salary of marriage, During years four first born, first was until their child full-time in clerical and service worked home the next jobs. She remained at children and take years fifteen raise the 1969, she housekeeping duties. In care of working began part-time for Western she was At the time of Bank. divorce Bank and working full-time at Western monthly salary net was $863.40. she suffered The court found that loss, arthritis, problems, hearing back ringing of the ears. Husband was found that he was good health. The court marriage pri- and was well-suited was fault divorce. Wife marily at January granted the divorce on cruelty. physical grounds mental *2 171 property by court divided the award- Failure to The include Husband’s retirement ap- of ing property equity with a net as divisible marital benefits proximately he received $40,000, while Wife the claims that trial court erred equity approximate- net of property with a considering not Husband’s retirement bene- ly 146,00o.1 largest was The asset divided fits the division of marital assets. She at the marital residence which was valued argues that largest was far the home a equity The had net of $66,000. it asset and was an abuse of discretion not monthly mortgage pay- and a $310 $53,500 pensions. to the argues include Husband remaining in- ment. The marital that were not divisible vehicles, cluded several household furnish- they were not vested and had no ings, liquid and some assets. The court present monetary value. $66,000, ordered the home sold for with the parties proceeds equally. to divide the We review the trial court’s division of given ninety-day option pur- Wife a to was property under the of discretion equity chase Husband’s share of Cole, standard review. v. 384 Cole mortgage. assume the home and (S.D.1986); N.W.2d Goehry Goehry, 312 v. given option upon lapse was the same (S.D.1984); 354 192 N.W.2d v. Guindon option. Wife’s j Guindon, 256 N.W.2d 894 broad, not party’s

The court did consider either While this is discretion it is not retirement benefits as marital soundly uncontrolled and must be and sub property. Husband’s benefits included a stantially based on the Goehry, evidence. pension through Air civilian Force and Owen, supra; v. 351 N.W.2d 139 Owen military pension a from the Air National (S.D.1984). The omission of assets which The Guard. court determined that properly should as be included marital $1,970.65 total would receive a combined property is an abuse of discretion. Guin per pensions. life both month for don, supra. fully pensions begin upon These taxable age sixty Husband’s retirement at and are Although portion a of Husband’s contingent upon his calcu- survival. Wife pension military pay, is retirement pensions lates the value of Husband’s over prevent does as not its inclusion marital $235,- ten-year period approximately at Hautala, 417 Hautala pension is 000. The value Wife’s less (S.D.1988); Moller, N.W.2d 879 Moller v. dependent upon it is certain because 909 The state N.W.2d employer amount she and her contribute jurisdiction military courts over retire have eligible until becomes to receive the she military pensions ment are not benefits age sixty-five. at Based on cur- pensions in differently treated than other contributions, she rent estimates that Moller, determining su marital assets. age sixty-five total of her at value pra. would exceed consistently This court has held that alimony The court Wife of $525 awarded vested retirement accounts per mandatory month until Husband’s as marital assets and should be included age sixty. alimony The award tirement at parties. Caughron v. divided between the per to to month. $330 then be reduced (S.D.1988); Caughron, However, employ- if Husband obtains other Hautala, Arens, supra; Arens v. retirement, to ment after entitled (S.D.1987); N.W.2d 900 Stubbe percent net in- twenty the additional (S.D.1985). One come, 376 N.W.2d 807 rationale with total not to exceed $525 including per as a divisi- month. retirement dispute equity to record valuation of some There was the amount is unclear ap- independent pickup, marital An of the was in the 1986 Ford which awarded posses- praiser property in valued all the Wife’s finding equity Husband without a sion, permit but Husband would not such an the vehicle. appraisal possession. alimony payment denied an con- which is that asset ble marital higher pension plan which was sala- from the same in lieu of sideration Stubbe, supra. supra; property, was ry. Caughron, previously divided as pension is not rehearing. Husband’s This court has also that modified The fact and is contin- holding his retirement payable severely until limited the destroy does not his survival gent upon may trial court not consider *3 in plan. As stated Hautala, his nature of su- vested awarding alimony. in income Stubbe: pra. Husband’s argument is also defeated is vested in the sense pension plan of Law 6. by the trial court’s Conclusion [T]his unilaterally terminated determining cannot be

that it “In this which states though receipt of employer, actual by his considered the defen- award the court has upon contingent his sur- is the benefits military pensions dant’s civilian and accrue to the no will benefits vival awarding plaintiff any court is not retirement. prior to estate portion pensions.” such Stubbe, supra at 809. Husband’s property remand the division We unilaterally by terminated his may not be pension plans include the the trial court to is vested. employer and part property. of the marital The exact argues that it was also yet is value of Husband’s court to include the impossible for the trial undetermined, preclude but this does not property since pension as marital equitably dividing pen the court from not deter of the account was present value in property in division. As stated sions The fact of the time trial. minable at Hansen, Hansen v. pension upon retire Husband’s (S.D.1979): by the evidence established ment was well to the We remand the dispute is no as to the There at trial. of the trial court for a determination amount of Husband’s monthly payment right present value of the to receive the years, his retirement two pension upon account retirement. can be determined present value and its present The value should be included pension plan amount. Husband’s from this and, necessary, if valuation court where the is similar to that equitable may include a cash an argument present that the val rejected the payable in installments with settlement pension could not be determined. ue of the interest. Stemper argues Finally, Husband The court should include the trial mod (S.D.1987), Stemper, finding of property, make a marital (S.D. rehearing, on ified value, equitable and make an divi- 1987), permit the trial court to not does may in- sion based thereon. Such division plan and at the same thtfpehsion divide payments in accord with clude installment alimony payments from provide time for alternative, a determina- Hansen or in the reading on pension. Based percentage of the to which each would tion Stemper, argues that the trial court did purpose for this entitled. We remand be properly as it its discretion judgment on the other issues and reserve alimony out of the awarded Wife court has divided the marital dividing part of until the trial plan, it as a rather than original opinion.2 this property in accordance with The proof. Additionally, , there was no failure "fails to claims that The dissent by only issues created the briefs. rule” on all of the Obviously, a determination there — court will cor- remand the trial proof missing. Even the value of that including dividing by rect its omission reversing dissent concurs "in the result may very pension plans. This well omitted pensions," remanding since the this case on the any any consider other issues need to eliminate larg- trial omitted as marital court they may properly determined ex- to have a value est asset—an asset claimed appellate Issue 1. This is sound balance with procedure $200,000. ceeding objec- disposes most of the tions raised the dissent. a motion and for Wife submits affidavit divide the It is not for this Court attorney appeal in the to tell the fees and costs on trial court proper- how divides ty. If, indeed, on a amount Based consider that is the then all factors, divorce appropriate up ation of the cases will end we award in the Cole, $1,200 Dakota, Court of su attorney fees. South then and there to pra. Perhaps decided de novo. this decision why is an indicia of literally Court is part Reversed in and remanded. swamped and, with divorce particu- cases larly, involving cases alimony awards. WUEST, C.J., and MORGAN and long continue, As MILLER, JJ., Court, as we concur. have this, decisions such as the flood of HENDERSON, J., concurs in domestic relations cases will continue. We part. and dissents must look back at some of our older cases HENDERSON, (concurring Justice guidance help and to us out of the *4 part; dissenting part). sult in morass that we find now ourselves in. all, I by major- First of am astounded the briefed, On the issues I would affirm the ity opinion that it fails to rule the award and the property award on by Appellant issues created the tangible personal briefs. the I concur in appellee, although couched in reversing different the result of and remanding this language, presented each this Court pensions, reason, with case on the three expressed issues. first issue centers in Caughron Caughron, v. 418 plan around a (S.D.1988): civil service retirement and N.W.2d 793 “Again, a military plan; the second issue tirement recognized has been as a supposed addresses a of discretion divisible marital asset because it alimony; and the third issue addresses consideration in higher present lieu of a awarding tangible personal discretion Stemper, Id. salary.” (citing Hansen). Examining Although Stemper opinion, opening this in its v. was mod paragraph, ified, I note that this Court is “re- this statement was not modified: “A appar- verse in and remand.” There theory claim or pro not mentioned in the ently in part.” posed no “affirm As I findings understand of fact and conclusions of it, page when one reads the final of this Turley v. Un law is deemed abandoned. opinion, this Court decides one ion Corp., Carbide (S.D. issue: That F.Supp. 618 1438 Stemper, finding W.Va.1985).” trial court must now make a of present (S.D.1987). Appellant submitted find property. Surprisingly, leaps ings it then one of fact and conclusions law. How ever, step logic decision-making further in majority opinion, core of the (a power by expressing decision which which is to return this case to determine totally should should, the control of the trial plans, per valuations on court), mandating, if not haps, prior that a certain divi- fall because of the statement made, telling sion must be by special trial court made Appellant writer. Then, that it has alternatives. present any two shock- wife did not evidence of the ingly, nothing it decides that it will decide cash value the husband’s civil (apparently) further until such time that military Appellant service or retirement. propose findings learns what the trial court has done on a any wife did not of fact or (concerning discretionary power mandate a conclusions of as to the law value For, judge). plans of a trial does not this on retirement of the husband. She did, say, judgment however, law, “reserve that it will on the in her conclusions suggest other issues until the trial court has divided that the trial court should award the marital in accordance with her of the husband’s civilian and mili 36% opinion”? tary pensions. duty, It is not for this Court to She owed a preponderance proof, being plain- find the facts. It is not for this Court to of a tiff, Thereafter, procedure forth, evidence on the valuations of to adduce is set statu- plans pension plans. or torily, concerning these retirement withholding by in her and she failed in entering findings But she failed court of the for a findings fact and con submitting proper period days of five Thereup- after service. not, This Court should on, clusions of law. findings the court enters of fact and her a arguably, permit second bite judgment conclusions of law as it not, apple. arguably, This Court should proper. Conceding appel- deems that the permit retry what she has failed to her theory lant tried the and claim that these trial. It is the function of do in the first pension plans were a divisible marital as- appel find facts. Not this the trial court to set, proposed findings of fact and conclu- Kittelson, late Court. Kittelson prepared sions of law should have been It is true that valu served. It is noted that did re- ations, court, by the trial determined cite, fact, proposed findings range of within the evidence before the yearly amounts that husband would receive Hersrud, court. Hersrud v. retirement, upon his pensions; via two (S.D.1984); Krage, 329 Krage N.W. however, proposed conclusion of law prob do not 2d 878 We have a (from type dreamed-up theorized some of a lem, failing of a trial court formula) she should be awarded 36% duty; do its we have before us a failure of of her husband’s total civilian to adduce evidence to establish through the Air military pen- Force and a case, namely, expert experts to have an or sion from the Air National Guard. This is or these retirement someone familiar with *5 cry placing far present monetary plans or to come forward and upon pensions. value or valuation There- testify This as to their value. was never fore, great I believe that a deal of addition- fully appreciate I that “a done. retirement legal expense al and time lie at the door of plan recognized as a mar has been divisible appellant, proof who failed be- ital considera asset because low. higher present salary.” tion in lieu of a Caughron, In proof the failure of 418 N.W.2d at 793. Caughron, See Whose findings the failure of of fact and conclu- responsibility is this to come forward with argued sions of by appellee. law were not proof? Surely, province that is In appellee vigorously has ar- supposed to judge who is be a neu gued procedure that the civil and civil judicial tral officer. It should not be the quite faulty. I believe that responsibility of the Court to re although faulty, weak, it is and albeit judge he or verse a trial she has appellant i.e., theory, did have a claim or presented to acted on the record him/her. theory. Under the 36% share theo- 36% hand, if On the other evidence has been ry appellant’s, paid she would be presented, very cloudy and it is and un monthly approximately installment of certain, concerning per her No. $702.00 Exhibit 7. accounts, judge a trial must rule However, wrong totally segregate alimony on the evidence before him/her. It is to him/her, when is before what exactly, no evidence division. This is judge my opinion, to do? For a trial to he/she award what the seeks to pension, a retirement or he/she must achieve. If this stands for a total property being have evidence in the record which dissection of marital divided may judge A reasonably alimony being granted he/she act. trial on the one hand and hand, only presented. judicial can act on And facts also on other with blind- proposed equity, firmly he/she must also act on the find ers to obfuscate I dissent to ings equitable holding. such an fact and conclusions law which Old cases. Booth, presented are to him/her. SDCL 15-6- Good cases. Booth v. 354 N.W.2d 52(a) (S.D.1984), proper procedure sets forth the instructs us that order serving findings proposed of fact and con determine if the trial court has abused its discretion, proposed judgment. clusions of this court reviews the award the law and together. alimony

Booth, above, Krage, id. cited stands PHONE AMERICAN INCORPORATION proposition. the same Do mean what we Phone American of South d/b/a say? again, Over and we over Dakota, Appellee, Plaintiff and talked, discussed, Court, we have dis- upon, coursed and written the trial that awarding has broad discretion in ali- court NORTHWESTERN BELL TELEPHONE making property

mony and division. We COMPANY, Appellant. Defendant and pronounce judgment that will not be set aside, instances, such clearly unless it No. 16037. appears the trial court has its that abused Supreme Court of South Dakota. Goehry Goehry,

discretion. not, We should from our Sept. 1, Considered Briefs 1988. perch Pierre, appellate this trial instruct specifics For, judge on the of his decision. Decided March so, expunge to do is to and eradicate his Below, as judge discretion. the trial now valuations,

struggles to determine these I him

would remind said: we have exactitude, require do not

“While we valua- range

tions must be within the evidence Pennock,

before the Court.” Pennock v. appreci- I

ate that it will be a difficult task

trial court to determine the of mar-

ital under state Surely, record. there determine, produced

be some evidence degree accuracy,

with a reasonable pension plans.

valuations of these The bal-

ancing, prop- between award,

erty my opinion, place,

take under the numerous decisions Property

of this Court.

appellee’s plan/pensions cannot in a considered vacuum. It is notewor-

thy pen- is on to a way totally

sion but that seems to im- If go

material. into the pot, plan. so likewise for her that, I

Lastly, simply express wish to

my opinion, judge gave the trial

thoughtful consideration to case.

There no abuse of discretion on the ali-

mony personal tangible award and the $46,245.11

property assets were divided $40,004.94

the husband and to the wife.

No discretion on the latter deci-

sion.