*1 stipulation on the record The the lawsuit. accounting and the probate
settled both Ben now states that
related civil suit. the settlement his counsel like
does not ground on not a sufficient That is
reached. the settlement.
which to vacate court had before it
The trial accounts, discovery, and
various sworn There was and affidavits. pleadings
related question for the trial court and of fact of discretion for the an abuse non-oral issues on
court to determine errone
testimony. The trial court was not stipulation concluding that
ous in
be enforced. remaining issues are frivolous and the trial addressed.
court is affirmed. C.J., WUEST,
MILLER,
HENDERSON, SABERS, JJ., concur.
TUCKER, Judge, for Circuit
AMUNDSON, J., disqualified. GUNN, L. Plaintiff Appellant, GUNN, Appellee.
Lore E. Defendant
No. 17953. South Dakota. May 26, on Briefs
Considered Sept.
Decided
Rehearing Denied Oct.
tempt alimony payments for failure to make previously ordered the court. We affirm.
FACTS Michael by entry and Lore were divorced July and decree of divorce on 1982. The judgment provided that Michael was to per Lore week in $65.00 “until [Lore] becomes deceased or remarries[.]” alimony agreement was based cir- cumstances were dictated into the rec- parties ord at the presented time the their stipulation agreement to the court for its approval. Unfortunately, transcript proceedings the divorce could be located and thus there 'is no record of what the circum- alimony agreement stances for the were. paid Michael Lore a week in alimo- $65.00 ny from the time of divorce until mid-June 1986 when unemployed he became due to a strike at John Morrell’s. The court entered contempt against order Michael October past-due alimony. 1986 for Michael bor- money rowed from his mother and sister and expunged contempt by himself of paying the past-due amount. order,
Following Michael re- making weekly sumed time, through April Lore 1987. At that cohabitating Michael believed that Lore was impression and he was under the mistaken alimony payments that he could cease that reason. Michael has never resumed making payments.
Michael returned to work at Morrell’s in May and continued to work until there his retirement November plans begin job building chael had made hog buildings upon his confinement retire- but, ment as the result stroke suffered on December was unable to start Grunewaldt, Falls, Cecelia A. Sioux job. attempted Michael to work at sev- plaintiff appellant. jobs until eral he was declared disabled Dennis C. McFarland of McFarland & Ni- Sep- the Social Administration on cholson, Falls, appel- Sioux for defendant and 20,1990, illiteracy tember as the result of his lee. physical disabilities. prop- In late Michael sold one of two
AMUNDSON, Justice. attempted to erties he owned. Michael ob- (Michael) appeals by having Michael L. Gunn title in the court from a tain clear (Lore) judgment awarding satisfy alimony judgment Lore E. Gunn October 1986 past alimony paid. contemporane- holding Michael in con- which he had circumstances, assessing change we motion to
ously
filed
in the necessities of the
consider
based on a
of divorce
and decree
ability of the
recipient and the financial
obli-
by filing
responded
circumstances.
gor.
that his
Id. Michael asserts
circum-
why
*3
show cause as
motion to
retired,
in that he has
changed
stances have
contempt for failure to
be held in
should not
stroke,
suffered a
been declared disabled
alimony
April
pay
since
and,
Administration
ac-
Social
entered an order for satisfaction
The court
cordingly,
change
his income.
suffered
held
judgment,
but
the October
of
has a higher
He likewise asserts that Lore
property
the sale of Michael’s
proceeds from
time of
income than she did at the
the di-
The court further denied Mi-
in escrow.
great
vorce and thus does not have as
circumstances,
change
for a
chael’s motion
alimony.
need for
past-due
for Lore for
entered
at the
The record indicates
time of
contempt.
alimony, and held Michael in
only sporadi
that
worked
the divorce
Lore
appeals.
chael
cally
Following
problems.
due to health
divorce,
Washing
to the state of
moved
ISSUES
employment.
ton and obtained
She has re
the trial court abused its
1. Whether
dis-
$25,490.00
adjusted
ported
incomes
for
denying
Michael a
cretion
modifica-
$32,246.00
The
1990 and
for 1991.
court
alimony
holding him in con-
tion of
and
found, however,
was a
that there
substantial
pay alimony past
tempt for failure to
that
be laid off
likelihood
Lore would
from
due?
job
Boeing
her
at
near future
due to
addition,
layoffs.
projected
In
Lore contin-
the trial court erred
"Whether
hold-
prob-
health
ues to suffer from a number of
jurisdiction
ing
over Michael’s home-
lems, including pulmonary and cardiac dis-
proceeds?
stead
ability
impair
which often
her
eases
work.
With the evidence of the likelihood of Lore’s
ANALYSIS
job terminating
and
in the near future
her
Alimony
continuing
not
problems,
and Past-Due
health
we do
find
Modification
that the
court abused its discretion in
Michael asserts that the trial court
.
finding
alimony
that her
for
had not
need
its discretion when it
to modi
abused
refused
changed.
Lampert,
Lampert
See
fy
alimony obligation
him
his
and held
(S.D.1986).
899,
N.W.2d
902-03
alimony
for his failure to make
may
since 1987. A trial court
Michael’s income tax returns indicate
modify support
$12,-
adjusted
orders from time to time.
that he has had
income of
However,
1988, $4,173.00
$19,676
alimony
25^4-41.
an
for
SDCL
award
982.66
for
1989, $6,352.00
$3,956.00
may
change
not modified
be
unless there is a
and
through
of circumstances from those that existed
incomes for 1988
however,
original
Foley
misleading,
they
the time of the
decree.
as
somewhat
(S.D.1988).
$2,500.00
Foley, 429 N.W.2d
include losses of between
and
$7,800.00
party seeking
property
modification bears the burden
rental
Michael
addition,
proving
in circumstances.
the 1990
Id.
rented to his son.1 In
We review the trial court’s decision to
incomes do
not include
month-
ly
disability payments
award under the abuse of
social
discre
($11,698
Therefore,
annually).
tion standard.
Id. “An
of discretion’
‘abuse
while
is discretion exercised to an end or
Michael’s income has been effected
his
retirement,
justified by,
clearly against,
reason
his
income tax returns
not an
Horr,
ing
entirely
evidence.”
Horr v.
accurate reflection of his income.
Michael’s current
income comes
his
depreciation
property
proper-
1. The losses on the rental
are a result
able to deduct
on the rental
mortgage payments
property
taxes which
ty from his income.
addition,
exceed rental income.
security payments
op
by the court for
as
ordered
homesteads and the
pension and social
wages. His annual income is still
from the sale of the homesteads.
posed to
($5,160.00
$16,858.00
annual
approximately
A homestead:
$11,698.00
disability).
+
annual
pension
(1)
chapter
As defined and limited in
43-
addition,
in net
absolutely exempt;
or
(more thoroughly
of real estate
sale
(2) In the
such
event
homestead is sold
2)
.managed to
in Issue
and has
discussed
21-19,
provisions
chapter
under the
$5,000 in
since the divorce.
accumulate
bonds
voluntarily,
is sold
the owner
circumstances,
Despite
his
sale,
exceeding
of such
still has sufficient funds
dollars,
thirty
sum of
thousand
is abso-
*4
precedent
obligation.
the established
Under
lutely exempt
period
year
for a
of one
court,
say
cannot
that the trial
of this
we
receipt
proceeds by
after the
of such
the
finding
in
that
court abused its discretion
owner....
ability
financial
to make the
Michael had the
Judgment
SDCL 43-45-3.
creditors are
alimony
weekly
payments. See Lam
similarly prevented
obtaining
liens on
pert,
We the sale of pro proceeds from escrowing the discretion abused its year absolutely exempt period of one real estate of Michael’s from the sale ceeds proceeds by the receipt of such after the Mi alimony arrearages. for a Therefore, trial court erred owner. one pieces of real estate: two chael owned jurisdiction concluding court has that he rented to his one which he lived and which proceeds from the sale of over the to use the planned son. Michael 43-45-3(1) provides homestead. SDCL property on which from the sale absolutely exempt and SDCL a homestead is mortgage remaining pay off living to 43-45-3(2) part: provides in he was property to which on his second Escrowing the sale did moving. homestead ... is sold In the event such home; permitting Michael of deprive voluntarily, proceeds of such the owner exemption the homestead the use of sale, thirty exceeding the sum of thou- years alimony to five deprives Lore of dollars, absolutely exempt for sand Michael made was entitled. which she year receipt after the of such period of one to termi independent, inappropriate decision the owner. notwith alimony payments nate his *5 majority opinion, judg- As indicated knowledge of the divorce decree standing his obtaining prevented are from ment creditors Equity afford Mi matter. will not in this 15-16-7. liens on the homestead. SDCL paying mortgage luxury of off the chael the statutory ex- There are no constitutional or proceeds property he owns with on a second ceptions provisions these for ex-wives. from the first when he has the sale of from provisions, it is incumbent In view of these arrearag- judgment outstanding security the party the who wants court did not abuse its discre es. The trial apply payment future indebtedness to placing in escrow the amount of mon
tion in
the divorce or at least
same at the time of
real estate sale
ey
proceeds
the
his
from
shortly thereafter.
alimony arrearages.
necessary to cover
upon majority
the
The two cases relied
accordingly
trial court is
The order of the
Harding,
clearly distinguishable.
In
the
affirmed.
approximate-
court modified a divorce decree
by
ly
years
ordering
later
the sale of the
two
C.J.,
WUEST, J.,
MILLER,
concur.
possessed by
parties.
homestead once
both
so,
that,
doing
the court noted
unlike this
SABERS, J.,
part
and dissents
concurs
case,
the
had been awarded
husband
part.
theory ...
that he would
homestead “on the
HENDERSON, J., dissents.
by
alimony prescribed
promptly.” Harding, 16
92
S.D.
SABERS,
part
(concurring in
Justice
at 1081. In
the court modified
N.W.
dissenting
part).
support
child
less than two
divorce decree for
years
by ordering
against
I vote to reverse on Issue 2.
a lien
non-
later
property of the father until he
decree,
At the time of the divorce
eleven
Kerr, 74
fully complied with the decree.
years ago,
the two
Lore was awarded one of
(Kerr
simply held
777
exceeding
except
portion
cast to the wind
he is forced to
for the
move into
and.
$30,000.
dilapidated
property. Majority
some
rental
cleverly
opinion
refers to his homestead as a
An
should not be allowed to sit
ex-wife
is,
“property.” Property it
but it was his
expect the
rights
her
and then
absolutely
homestead and the
protect
to “bend the laws” to
her
courts
43-31-1;
43-45-3(2).
exempt. SDCL
SDCL
at the
the same manner as she was entitled
past,
In the
the South Dakota
far.
time of divorce. The trial court went too
recognized
family,
the head of the
We should reverse on Issue
as reflected
our State Constitution.
HENDERSON,
(dissenting).
XXI,
Justice
§
South Dakota Constitution art.
provides:
15-16-7,
Under SDCL 43-45-3
SDCL
right
enjoy
of the debtor to
the com-
the trial court was not entitled
hold
forts and necessaries of
recog-
life shall be
in es-
proceeds of Michael’s homestead sale
nized
exempting
wholesome laws
crow.
homestead,
forced sale a
the value of which
agree
I
that the
of the homestead
law,
shall be limited and defined
to all
family
exemption
provide
families,
heads of
and reasonable amount
against
Speck
the claims of creditors.
personal property,
the kind and value of
Anderson,
318 N.W.2d
by general
which to be fixed
laws.
Despite
majority’s
use of Minnesota au-
Somers,
551, 558,
See Somers v.
33 S.D.
Jensen,
thority,
Application
re
(1914);
Longstaff,
N.W.
Linander v.
(Minn.App.1987),
the ex-wife
who
(1895); Kingman
7 S.D.
divorce not hold that Kerr did party.
the innocent against the homestead attached
lien could be this case on decide 'party.
of one We my read- particular case of this
the facts a case have never had that we
ing discloses Here, Dakota. in South
quite like this one proceeds be-
the homestead Michael Gunn. This exclusively to
long
Court, has not circumvented my opinion, It is mad- spawned one. inequity, it has
an majority logic to note
dening to the art of override, by equitable
opinion cites to court, exemp- over a homestead
Minnesota a footnote that Minneso- and to read
tion statute to legislature then revised the
ta ar- support or maintenance
exempt-out child
rears. matters, the trial I would reverse
In all motion Gunn’s
court for its denial judgment and decree of divorce modify the proceeds of the apply the
and its decision to alimony. Essen to back
sale of homestead
tially, and out and she is on he is-down
alimony gravy train. He wheezes
caboose.* *7 BROOK ACRES WATER
SPRING ASSOCIATION, INC., a South
USERS Corporation and Dawn E. Maz Appellees,
zio, Plaintiffs GEORGE, and
Abner H. Tom-Tom Com Inc.,
munications, Dakota Cor South Appellants.
poration, Defendants 18017.
No. Dakota. South April
Considered on Briefs Sept.
Decided
Rehearing Denied Oct. breath, disease, dysp- by shortness of quotes at 136-137: manifested *Her brief the Settled Record nea, coughs’.” has the serious [Michael Gunn] "Defendant same and chronic on exertion including problems, 'pulmonary health vascular