Hautala v. Hautala

HAUTALA, Plaintiff M. Bernard Appellant, v. HAUTALA, Defendant J. Appellee.

No. Dakota. Supreme of South Court Oct. on Briefs Considered 6, 1988. Decided Jan. Office, Jasper Jasper Law

Kenneth E. appellant. plaintiff and Rapid City, for Groves, City, de- Rapid Wm. Jason appellee. fendant and SABERS, Justice. appeals a divorce de- Hautala committed re- claiming the trial court

cree allowing hearsay testimo- error versible considering military pay, in ny about computing child nongarnishable income awarding Phyl- alimony, and in support and lis rehabilitative Facts married Phyllis had been

Bernard and of trial. years at the time nineteen almost Sergeant in the was a Master nineteen over Air Force with United States service, Phyllis military length service. years marriage, of active worked of wage overlap two, minimum sporadically jobs after the trial court They Phyllis of each their children were born. were both awarded 42% of Bernard’s military high graduates. payments.1 future retirement fifty- school Bernard had Ber- challenge nard does not college. Phyllis semester hours of seven divi- includes this recently completed sion which future had an adult education 42% re- payments. tirement computers college course in and two level sons, They courses. have three who were sixteen, fifteen, aged eight at the time 1. TESTIMONY ON MILITARY PAY of trial. AND ALLOWANCES ENTITLE- principal marital assets were the MENTS FROM A MILITARY AUDI- residence, by marital valued the court at TOR. $54,000, furnishings, household and Ber- Ames, Sergeant military auditor from military nard’s retirement. Bernard was Base, Ellsworth Air Force was by called only achieving twenty a few months from Phyllis testify specific to military about service, making eligible in the him pay allowances and entitlements which Ber- However, for retirement. his then current receiving. nard was Bernard claims that duty assignment Germany required him Sergeant testimony Ames’ hearsay was to remain the Air Force for a which was either inadmissible or admissible beyond twenty years. only under SDCL 19-16-28 or 19- SDCL statutes, If Phyllis

The trial court found that 16-35. admissible under these suf- problems, argues fered Bernard testimony chronic health but that Ames’ problems pre- Phyllis these did not should have been excluded disable her or because give working Phyllis vent her from full time. did not him advance notice of her unemployed, present intent to seeking testimony. but had been em- He dis- ployment. putes pur- testimony concerning She was also interested in Ames’ suing education, entitlements, amounts of claiming had not decid- changes specific goal. ed on a residence and marital status will alter the received. amounts This con- The trial court par- determined that each goes primarily credibility tention not ad- ty was entitled to a divorce but that Ber- missibility. Phyllis contends that if even marginally nard was more at fault aas Sergeant testimony the admission of Ames’ result of an relationship. extramarital error, it was harmless error because The trial legal custody court awarded findings court’s are substantiated boys parties, the three physi- with brief, testimony. reply Bernard’s In his custody cal Phyllis. given pos- She was also Phyllis contends that waived session of the youngest residence until the because of a failure to cite son becomes an adult. At that time the any authority argument. for her equity in the home is to equally. be divided pay was ordered to $690 We find little merit Bernard’s ar month child gument. Sergeant Ames’ testimony is clos expert er to than inadmissible Using length hearsay. Admissibility formula which considered expert opinion 42%, la, arriving figure 1. In at a the court uti- would be entitled to 60% of each following marriage length lized the formula: payment. Although retirement these or similar (projected) length military applied mechanically, service formulas are not to ½. x The trial court's actual calculation was they permitted guideline. are if used as a Tesch marriage 226 months 271 months of Tesch, (S.D.1987); Saint- = military service 83% divided Saint-Pierre, (S.D.1984); Pierre v. 357 N.W.2d roughly is½ A similar formula is 42%. age Krage, 329 N.W.2d Kr Rutkin, proposed Family in 3 Law and Practice (S.D.1983). However, § 43.14[3]. under the Rutkin formu- testimony is within the discretion of the and “basic allowance for subsistence” are garnishable. 5 581.104(h)(2) C.F.R. 19-15-2; § trial court. SDCL Matter of (1980). The record shows that J.L.H., Be- monthly court did include the sums for Sergeant training, position, Ames’ cause quarters paid rations to and Bernard in experience, and was benefi- calculating However, his net income. aiding understanding cial the court’s regulations federal laws cited above military payments. are not in conflict with our state statutes support. In child Rose v. Rose 481 U.S. -, (1987), 2. CONSIDERATION OF NONGAR- 95 L.Ed.2d S.Ct. veteran, a PAY AL- disabled whose income NISHABLE MILITARY consisted benefits, ap- veterans’ and other federal LOWANCES AS INCOME FOR COM- pealed finding contempt for failure to AND AL- PUTING CHILD SUPPORT pay support grounds pre- child on the IMONY. emption of federal law. The veteran ar- Initially, argues Bernard that SDCL gued, preemption, as one basis for support 25-7-7 states that income for child prohibits garnishment federal law of veter- specific includes amounts from enumerated disability thereby ans’ benefits embod- sources and that none of these enumerated congressional ies intent that such bene- assigned spe sources include the terms to subject any legal process fits “not be to military pay cific allowances. SDCL 25- diverting sup- aimed funds for child ” states that of income “in 7-7 sources port^] (emphasis original) 107 S.Ct. at “ “(1) paid Compensation clude”: to an em may 2038. The Court stated it be [WJhile services, personal ployee for whether called exempt true that these funds are from commissions, salary, wages, bonus or other garnishment or attachment while in the added) (emphasis Administrator, The designations.” hands of the we are persuaded that once these funds are deliv- wording appears pur of the statute to be ered to the veteran a state court cannot posefully broad and nonrestrictive to en require satisfy that veteran to use them to compass any compensation paid, regardless support.” an order of child 107 S.Ct. at Additionally, nothing of what it is called. purpose noted Court that the in this section of the statute indicates that sovereign these federal laws was to avoid general listing categories of income immunity problems, not to shield income is exclusive. The use of the word “in support from valid orders. suggests legislative clude” intent to en Earnings Bernard’s Leave and Statement other, compass unlisted sources of income. (“the military equivalent pay of a stub.” Rutkin, Family Law and Practice argues Bernard next that federal § (1987)) was before the trial court as his regulations military law and make certain pay allowances, # Exhibit 2. The des- pay categories exempt garnishment from amount, ignation presented and such sums should not considered as Although disputes trial court. Bernard support him in computing income to child continuing garnishability amounts and the accept Bernard’s awards. To allowances, pay certain of these he does regardless of would mean that dispute paid that he sums. these receives, party much income a such how Therefore, correct court was considered if those sums sums cannot be including compensation these items of garnished at their source could not be income under SDCL 25-7-7. the future. OF pursuant ALIMONY Regulations promulgated REHABILITATIVE FOR PER MONTH (1975)(which provides for en- U.S.C. 659 § MONTHS. obligations federal forcement of military pay employees) clearly issue of re state that have discussed We numerous cases. designated quarters” habilitative “basic allowance for proper that the trial determining division of Bernard contends court’s (1) consider: award “reimbursement” “restitution- ty, the trial must (2) respective al” must be set aside because marriage; length of (3) pro- did not contribute Bernard’s earning capacity parties; of the each, fessional advancement. uses after the condition of divi financial interchangeably. these terms (4) age, property; respective of the sion cite to nor any does not reference does the health, par physical of the condition any record disclose reference to “reim- (5) ties; the station in life and social stand bursement” The trial court con- each; (6) fault ing of the relative sistently refers to “rehabilitative” marriage. in the termination of the each findings in its fact and conclusions of Booth, (S.D.1984); v. 354 N.W.2d 924 Booth However, refers judgment the to “re- law. (S.D. Goehry, Goehry v. 354 alimony.” Al- habilitative restitutional 1984). urge though we the use of careful and The trial court found that: language, the issue is consistent not the (1) parties the had been married almost placed name on but whether the trial; 19 at the time of supports record the award. $1,900.00 (2) Bernard’s net was income consistently This court has held that re- per month he had a better in- proper is it is habilitative where come-earning potential; Phyllis was necessary supporting “to spouse enable the presently unemployed only and would job refresh or the skills to enhance he or to earn at a minimum be able income Saint-Pierre, living.” needs to earn she wage without and reha- enhancement 262; Tesch, Booth, supra supra; at see skills; bilitation her Goehry, Martin, supra; supra; Martin v. (3) equal equity of an division of the (S.D.1984). N.W.2d 799 youngest home after the child reach- trial court heard that appropriate; per- es his experience Phyllis may skills and which property sonal to be divided to possessed years have earlier were outdat- $2,600 give approximately Two ed. witnesses who were familiar with $6,700 Phyllis approximately background present Phyllis’ and the labor (which for her included a vehicle use Phyllis market testified that would not be children); and one the use of the wage obtain to better than minimum able Phyllis was entitled to of Ber- 42% employment training without further or ed- payments; nard’s future retirement ucation. (4) age parties both at The trial court was aware that the also Phyllis’ the time of health trial sup- month in and child $900 was fair because of chronic health port expenses was insufficient to cover problems; Phyllis boys. Phyllis three (5) parties had a middle class status approximately to would have earn enjoyed upper and both an middle expenses.2 to meet current standing social as a result of class rank; military Stemper Stemper, Bernard cites (6) (S.D.1987), greater N.W.2d Bernard bears a fault modified (S.D.1987), marriage. rehearing, termination cause the award is needed to meet 2. The rehabilitative awarded far expenses, Phyllis As noted this basic will be able continue from excessive. the trial court “is stay through evening only classes amount that her to home. her education if not an will allow wage her more minimum un- It will be an amount obtaining that will assist she earns likely prospect than —an education, enough further education or but not she without training. stay go This Catch-22 renders will be able at home school required "rehabilitative.” full time. She will be to work.” Be- more "subsistence” than fees, ney that the trial court we consider factors as the of his such property party, owned by his retirement in each their rela- considered improperly incomes, First, assets, liquidity awarding tive come in either Stemper wholly point party unreasonably whether in- fail to Bernard and case. Storm spent creased the time on the respective out where how Storm, 400 N.W.2d 457 “improperly supposedly courts light Phyllis of these factors we award awarding alimony.” income in retirement $1,255.64 attorney fees. Stemper For Secondly, has been modified. (see my dissenting other reasons

these and 409-10, Stemper opinion joined by WUEST, C.J., and MORGAN and n Stemper authority Judge Konenkamp), JJ., MILLER, concur. severely and is should be limited. pay HENDERSON, J., of the retirement part to receive 42% concurs in part part. of the division. and dissents ments he could retire testified that HENDERSON, (concurring in Justice military March of 1988 and from the before part, dissenting part). to retire at that that his inclination was findings The of fact and conclusions time. separate presented by Three are issues law, upon testimony at of extensive briefs, based 2 the and I concur on Issues 1 and trial, presumed indicate that the trial court by majority opinion. forth the as set employed past that Bernard would remain 3, respect With to Issue rehabilitative Air Force a either with the or with respectfully I dissent. employer. alimony award civilian Finding 17, “[bjoth parties of Fact Per paid not be from the retirement would engaged during have a course conduct fund, salary, from unless he were but marriage causing the course of the the during remaining the employed all not grievous suffering.” party mental other (i.e., alimony if he eight years of the award parties were Per Conclusion Law continually fifty- unemployed age entitled to divorce. Nauman, v. one). N.W. Nauman In 320 (S.D. Goehry Goehry, v. 354 192 (S.D.1982), distinguished N.W.2d this court 2d 519 1984), by majority opinion, written cited the inability support obligations to pay the special writing, is not by the author this of funds. Nauman simple from a lack does, alimony case. how a rehabilitative It support obligations will it clear that makes ever, the general forth criteria for set the the re simply eliminated because not be It cites award sponsible party not to work or chooses Owen, (S.D.1984), v. N.W.2d 139 Owen 351 to work.3 refuses holding proposition for the stands which can, indeed, motion Phyllis has filed its abuse that a trial fees, attorney It is must tax costs. and that a decision below discretion Mal substantially upon required by soundly based and itemized as verified (S.D. Malcolm, ‘abuse of discre “The term v. 365 N.W.2d 863 the evidence. colm exercised to an to ‘a discretion attor- tion’ refers 1985). determining the award of does, remarried. If she has not major dissent ture. thrust of Justice Henderson’s 3. A alimony question and decided. award should terminate can be considered is that upon this the Phyllis’ remarriage. Marquardt, Marquardt See (S.D.1986). argument never as an raised 1. This appeal briefs or in Bernard’s simply issue in trial court an issue on is not 3.This by argument fail- appeal. If is an waived on stated in Swanson As Wuest this case. Justice Matheson, authority, Corbly v. (S.D. to cite Commerce, ure Dep’t 417 N.W.2d 385 of" (S.D.1983),certainly waiver exists N.W.2d 1987): issues should stick [w]e argument is made. where no appeal.” Obviously reason prema- made was that it was clearly person living. can An justified by, so that earn a purpose end or ” alimony presuppos- Moore v. against, reason evidence.’ award rehabilitative (S.D.1984) Moore, potential es a divorced wife’s or actual ca- v, Herndon, 305 N.W.2d (quoting Herndon pacity self-support. Surely, ten (S.D.1981)). my It is contention is far too extended a of time to years’ court's of ten award type award this to rehabilitate a alimony” “rehabilitative $210 Therefore, approving divorced wife. of discretion and that the case is an abuse ten-year rehabilitative be reversed remanded for an should decision, as well as that of the equitably comport would with award which court, flawed, inherently that it the facts. concept conflicts with the true of rehabilita- alimony.1 Ten on a hue of tive takes Booth, (S.D. 354 N.W.2d 924 Booth v. degree permanency. any aptitude With 1984), majority, is a by cited rehabilita application, appellee her- should have approved alimony case rehabilita tive many years self rehabilitated before the period of fifteen months. alimony for a tive terminates. There- up good authority to back This is not fore, the trial court’s discretion is abused majority’s decision. clearly against that it is reason and evi- (S.D. Tesch, 399 N.W.2d 880 Tesch v. Herndon, dence. 305 N.W.2d at 918. In 1987), majority, was also writ cited my opinion, departure decision special writing. author of this past precedent from immediate in this and the It case is a rehabilitative Court and this award exceeds the bounds month was award liberality. I twenty-four months. do not period of proper authority for an Although consider it to be majority opinion the would approval ten-year rehabilitative award of a suggest problems, or hint medical the in this case. record abounds with the fact that neither party any major problems has medical and Saint-Pierre, In Saint-Pierre problems the few that have are not (S.D.1984),Justice Woll- debilitating they employ- nor do affect their any rigid, against man inflexible cautioned ability.2 awarding reimbursement or re- formula A ali- rehabilitative habilitative facts, disturbing aspect The most of make sense and not be mony award should attending alimo- the award of rehabilitative any type upon of formula. Formulas based ny, is summarized court itself trial Equity, creating are too mechanistic for from the when the trial court reflected major- parameters. However the inflexible appellee that seemed to have no defi- bench fact, is, effect, ity may try to mask the it goal, nite her consistent was alimo- approving a formula of rehabilitative goal, with no definite and she had exhibited case, grounds ny in is additional this which go support no desire to out and herself. my for dissent. has, however, previously worked as a She payroll Shafer, clerk. alimony in oppose I do not rehabilitative Shafer (1984), a S.C. 320 S.E.2d 730 trial should this case and maintain that this case alimony of of court’s award rehabilitative purpose for the be reversed and remanded sixty per month for months was re- maintaining of for its appellate per- manded court to trial express purpose permit is to which there job in a skill court for a redetermination where son to rehabilitate themselves recognized generally Separa- ali- See 24 Am.Jur.2d Divorce and 1. Rehabilitative is as an (1983). short, specific § tion mony payable deter- for a and time; furthermore, it is to minable amount of is, recipient Finding capable in the exercise of Per Fact she is of cease when efforts, self-support. "working position full time." reasonable in a finding to the no factual as rehabilita- tive award” does amount to an was serve; I sug- additional award as goal that have was tive gested, then surely type it amounts to a and, additionally, the duration bore where separate which is in maintenance total con- relationship to wife’s edu- no reasonable decree, flict with an award of a divorce Conceded, timetable. it best cational having granted divorce been both of the she, indeed, principally the three raise that parties to litigation. This would con- a mother unto them children be 25-4-39, flict SDCL provides: with which purpose. stay home for that worthwhile “Though judgment denied, of divorce is Yet, if there is a rehabilitative may in an for provide court action divorce soundly substantially it must or spouse for maintenance of a chil- and the Owen, upon N.W. the evidence. based parties, any them, by dren of the Appellee experts to called three 2d 25-4-40, spouse.” other See also SDCL All that the the stand. testified prescribing separate an action for mainte- problems were low the wife’s related to without latter nance divorce. Under the marital discord. With self-esteem and statute, permanent may be award- training counseling, agreed all spouse sepa- for the an action ed under for problems portion a substantial her that rate maintenance which was not the case disappear upon termination of the would here, maintenance marriage. training counseling, With words). (by express An awarded allowance experts that ca- opined she was the wife’s support does exist when a divorce holding, advancing obtaining, pable granted under 25-4-41. SDCL physical as she mental job in a had the Judgment De- October forty-one years do so. She is abilities of Divorce “rehabilitative and cree awards groping, age. The wife was as she talked alimony” in the sum of $210 restitutional counselors, reconstructing about to these of 120 consecutive life, sincerely empathize I with her and can months, paragraph sixth thereof. Obvi- see her, two these ex- appears it that was, ously, again, once con- becoming efforts toward perts directed her there concepts fused its CPA; be a appears it would no evidence or contentions that previ- that she had not professional level any type made wife had ever divorced attempted bring to aspired ously to or required a contributions which material so, schooling Even this such fruition. “restitution”; opinion ten-year period. a encompass would this record and hus- the state of confuses on thoughtful analysis of these cases A reflecting hus- contention band’s alimony and the facts of this rehabilitative arguing against “reimbursement” band is years award of justify do not an ten case argues against alimony. Husband’s brief alimony. only Not is this too rehabilitative alimony, restitutional” “rehabilitative a used fixed formu long, but trial court I have Issue 3 of his brief. As both under arriving Appellee should in at an award. la above, only has mentioned alimony, to some rehabilitative be entitled awarding years reha- in ten court erred life; living a in enough help her make in likewise it erred bilitative however, awarding this “rehabilitative restitutional $25,200 into, equates reality, in award” that the trial provides 25-4-41 SDCL re In such property award. additional alimony as deemed may award of con gards, it is unlawful mixture an having regard for the circumstances just alimony and an award cepts; parties. To warrant modification of the totally awards award, merely are different there must of an state, al change relations law v. domestic of circumstances. Cole be a (S.D.1986); together. Lam though they may Cole, be 384 N.W.2d (S.D. (S.D. Lambertz, 329 N.W.2d 878 v. Krage Krage, bertz 1985). 1983). $25,200ten-year If this “rehabilita- 690, period 391 N.W.2d 692 the sum of month for a Wegner,

Wegner v. 120 consecutive months shall not abate ten-year trial court’s remarry. should the defendant It is silent remarries, if the ex-wife fore- even If, indeed, regard. appellate in that an taking trial court from any future closes would, inference, deem that reviewer parties contrary of the the circumstances the ex-wife is to receive “rehabilitative and cited authorities. The award these last alimony,” and the restitutional same is not consideration, prohibits a rigid it is so of ten even if to abate futuro, “change of circumstances.” of a remarries, then the ex-wife this award be is the final doc- of Divorce The Decree Appellee- more comes even unreasonable. Here, incorporate it does not ument. collect from her ex-hus wife could Law, and Conclusions of Findings of Fact band for ten and could likewise re paragraph in the first mention does ceive from her new husband. She Findings of Fact Con- that it did enter supported by be two men at the would August clusions of Law remarry same time. Were she to and be oversight an on the my opinion, this was divorced, nothing stop could then her come court, case, and in this it part of asking from from the second For, in confusing aspect. another creates Again, this illustrates that the husband. Findings of Fact and Conclu- checking the rigidity of the trial court’s award fore record, Findings in the sions of Law changed circum closes consideration of revealing. They and 57 are Fact stances the future.3 state: state, Judge Under the settled law of this alimony in an entitled to Defendant is attempt Konenkamp’s to cement and solidi obtaining her in that will assist fy

amount a rehabilitative award education, enough years, though that will allow re but not even the ex-wife should marry, upheld. should not Mar go to school full be See stay at home and her to quardt Marquardt, 396 N.W.2d time. (S.D.1986). Marquardt, a first im case of Alimony of $210.00 in the amount pression, adopted rule in this state that assist her in 120 months will month for remarriage of one’s ex-wife “establishes (cid:127) employment skills. rehabilitating her alimo prima case for termination of facie alimony in the sum The rehabilitative ny payments.” writing of Id. Under the per month for months of $210.00 Morgan, imposes on the remar Justice Defendant re- shall not abate should the that “ex ried ex-wife a burden to establish marry. traordinary circumstances” exist before expression in the Decree of There is no alimony payments may continuation of judgment Thus, that the pronouncing a deci Divorce ordered. Id. the trial court’s law. alimony” in sion obliterates recent decisional and restitutional “rehabilitative bound, writings. way, misperceived major cial Put another I am not has 3. Justice Sabers ten-year issue, my legal litigant which is that a au- thrust of "rehabilitative says dissent once a raises an to the alimony award" is not what it litigant. Judge Konen- thorities cited is; ten-year rehabilitative that it kamp’s ten-year rehabilitative any possible beyond time-frame award extends for rehabilitation. issue, remarry, though is an the ex-wife should is, (1) actuality, either It apologize studying I for current case and do maintenance, (2) prop- an additional reference to law of this Court. The author’s settlement, calling erty Reha- without it such. Swanson v. Chief Justice Wuest’s statement in alimony continuing bilitative years,^ 385, Commerce, Department 417 N.W.2d highlight- notwithstanding remarriage, (S.D.1987), inapposite; Chief furthermore. my writing. Appellant's counsel cited two ed in writing in Swanson cites his Justice Wuest’s in his brief contend- recent South Dakota cases Jones, dissenting opinion 366, 406 N.W.2d in State v. "impermissible ing the trial court considered (S.D.1987), totally unrecogniz- which is properly apply the correct factors" and “did not Court, historic, major in this cases ed two True, spe- awarding alimony. criteria” in 366, Jones, Bayer v. and State v. Marquardt and found the cial writer studied decision, Johnson, can be law in this state but settled by justices opinions/spe- who write reversed re- case should be This instructions to the

manded with comport decree to with the to amend its state and take decisional law goal of ex- evidence on the rehabilitation its fulfillment. wife the duration of M.N., Matter of C.M. Dependent Alleged Children. Firm, Gregory Gregory Peter Law P.C., Falls, Mother, appellant for Sioux and 15502. Nos. R.N. Dakota. Supreme Court of South Pruitt, Thomas Farrell of Matthews & J. Falls, appellant Fa- Muilenburg, Sioux Argued May ther, D.N. Decided Jan. County Riepel

Patricia of Minnehaha C. Office, Falls, for Public Sioux Defender’s Children, C.M. M.N. appellants Pierre, Gen., Godtland, Atty. Asst. Janice State; Roger Tellinghuisen, appellee A. Gen., Pierre, on brief. Atty. HENDERSON, Justice. children,

Mother, Father, C.M. erroneously M.N., the circuit court contend rights. We affirm. parental terminated N. March May From 1980 to maintaining difficulty in family experienced children, properly clean home and also an Mother was supervising children. time, one the children alcoholic. At whereupon the parking lot alone in a found brought boys to the police Children’s Earlier, on at least three Inn. Police occasions, Falls Sioux officers concerning responded to calls Department heavily traveled wandering alone C.M. Department of Social A city streets. neglect dependency and (DSS) Services

Case Details

Case Name: Hautala v. Hautala

Court Name: South Dakota Supreme Court

Date Published: Jan 6, 1988

Citation: 417 N.W.2d 879

Docket Number: 15632

Court Abbreviation: S.D.