*1
рrejudgment
interest.
It was
different
court on
five
Courts
have served with
upon
composi-
studied effort
the trial
based
standpoint of a different
from the
differing
testimony in the
It was far from a
As a result of
record.
tion of the Court.
Therefore,
slapdash judgment.
stat-
I would
apply
how to
this state’s
opinions on
conflict, consternation,
ute,
prejudgment
and trou-
interest based
great
sustain
upon
testimony
with the trial bench and bar
and the reason-
has flowed
the sworn
ble
prejudgment
apply
prejudgment
interest
trying to
able exactness
award.
Sons,
faсtual
scenarios. Super Hooper,
statute
to different
Inc. v. Dietrich &
noted,
again, that the
Inc.,
(N.D.1984).
it is to be
factors. must that to record, According I
facts hand. to (1) 4,May judg-
glean follows: A as exists; specify the
ment it does not amount $4,300.00 interest; specify princi- it does JOHNSON, L. Plaintiff Steven 24, (2) May judgment pal; and A Appellee, еxists; $4,300.00; specifies principal of it 1, $1,935.00 it interest from: adds June 1, Therefore, nicely 1987 to 1990. it June JOHNSON, Defendant Susan J. 1, years, cleaves for three from June it Appellant. 1, expresses 1987 to 1990. It that June 17282. No. day. my opin- per interest be $5.38 will ion, post judgment interest would follow Supreme Court of South Dakota. law this is a South Dakota because South on March 1991. al., Considered Briefs Patzer, et judgment. Dakota concede Husky Husky if prevails, that is enti- May Decided judgment post tled interest. to lost, acreage according amount of business witness, non-spraying at
to one because of
Léola, 2,800 3,000 acres. was Several days were fact
spraying lost due spray plane operation; only was down, plane namely the
the other was plane
plane question. The down May judge
delivered on trial 1987 as time
chose the date June calculating begin appears interest. It judge took into consideration the acres, a spraying
number fee of $3.25 acre, pilot’s fee
per deducted the of $.60 acre, maintenance, calculated the all Although transcript.
from the trial there no precision,
was mathematical there does calculation,
appear the mathematical to be court, day trial to a certain and non-usage apply
airplane question. appears There to be a
fair, finding by non-erroneous *2 a li-
gree mortuary science and was years director for five censed funeral Throughout parties’ marriage. fore work husband continued *3 family home and furniture busi- funeral high had where he worked since ness school. marriage, husband
At the time of (25%) percent interest twenty-five owned a family in funeral home and furniture marriage During pur- he business. fifty-seven percent an chased additional thus, (57%)interest, of at the time trial he (82%) percent eighty-two owned an interest corporation. Husband’s father later incapacitated, has became and husband and running been both funeral home par- furniture store since 1985. When the married, a also owned ties were husbаnd during they the mar- house which lived ear, furnishings riage, a and various personal which assets were con- property, to the marital estate. Wife con- tributed personal property a car tributed and some estate, to the marital which the court placed no value. marriage
The breakdown of the resulted inability parties cope of from the to problems with medical and normal business stresses, resulting in chemical Nikolas, Sisseton, abuse plaintiff Kay F. Hus- violence both husband and wife. appellee. however, deрressive, a his band is manic Ellyson Offices, W. Law Roger Ellyson, with medication and illness controlled Watertown, appellant. for defendant and counseling. Wife suffers from psychiatric disorder, personality genetic a borderline AMUNDSON, Justice. abrupt which causes violent and disorder appeals judgment J. Johnson Susan swings, resulting great in a deal of mood August and decree divorce entered family. stress on the sufferer and There is part, part, 1990. affirm in reverse disorder, no wife is in- cure this and remand. teenage counseling. volved Since years, this led her to alcohol disorder has FACTS attempts cope. abuse bulimia (wife) L. aware Susan J. Johnson and Steven The court found husband was (husband) prior July were married bulimia to their Johnson wife’s Their and addiction to alcohol 1981. first was born Wife’s bulimia more the birth of the and their second 1985. Wife did not came severe after began us- work outside the home the mar- second child in 1985. Husband riage; stayed home raise at home and at she the chil- cocaine due stresses business, family dren and maintain the home. Prior led to both high becoming regular a users. The care of the she obtained school according- diploma home year and attended one of vocation- children suffered ly. college al obtained a de- school. Husband restricted visitation ordered urging family Does the at the
Early in an the trial court constitute abuse minister, hospitalized for had wife husband of discretion? eating abuse and her alcohol treatment of beginning ser- only This was award disorder. 5. Does hospitalizations portion and treatments fees demon- ies of wife’s uniformly end- strate an abuse of discretion? which numerous institutions continued buli- in failure due to wife’s ed alcohol, to hus- and due
mia and use of
ANALYSIS
use of
of her continued
band’s facilitation
Property
Division.
Her conduct caused husband
cocaine.
*4
argues
Wife
that the division of the
family’s home at
to leave the
the children
inequitable
marital assets is
because hus
prosecution
resulted in
of
point,
nearly
band was awarded
all of what was a
of criminal behav-
episodes
wife for several
re
substantial marital estate. Husband
physical-
have
Both husband and wife
ior.
sponds
properly
that the
restored to
award
ly
each other on occasion.
assaulted
assets,
pre-marital
him the -value of
di-
commenced this action for
Husband
that wife made no direct contribution to the
trial,
January
Prior to
hus-
vorce
property.
marital
It is well settled that
they
had
stipulated
and wife
this court will not disturb a division of
trial, the
differences. After
irreconcilable
appears that the
property
clearly
unless it
car,
$75,000 and her
court awarded wife
v.
trial court abused its discretion. Fox
property
of thе
awarded the balance
Fox,
762,
(S.D.1991);
766
was also awarded rehabili-
husband. Wife
Studt, 443 N.W.2d
642
Studt v.
$4,000 per year
alimony of
for four
tative
Donahue,
464
See Estate of
placed
were
hus-
years. The children
(S.D.1990)(defining
N.W.2d
395
abuse
custody,
and no
band’s
standard).
clear
of discretion
This
abuse
eight
was allowed
hours of
ordered. Wife
governs our
of discretion standard likewise
month,
supervised
plus
twice a
visitation
visitation,
alimony,
review of awards of
alternating
visitation on an
basis
birth-
Fox,
N.W.2d at
fees.
467
days
holidays.
Wife was also awarded
721, 725,
766; Shoop Shoop,
attorney fеes. Additional details are dis-
(S.D.1990). The exercise of the trial
726
analysis
cussed
of each issue
below
dividing
property
the
court’s discretion
appeal.
raised
wife’s
is, however,
limited
divorcing parties
of
25-4-45.1.2
25-4-441 and SDCL
Fox,
ISSUES Ryken, In Ryken of 1. Does the trial court’s division II), (S.D.1990) we reit (Ryken an of property constitute abuse discre- con principal factors to be erated that tion? are: making property a sidered Is the trial court’s valuation of John- (2) “(1) marriage; the duration of the Home, Furniture and Funeral Inc. son (3) ages of the property; value clearly erroneous? (4) a liv competence to earn parties; their (5) party to award of reha- of each ing; 3. Does the trial court’s contribution (6) the in property; and alimony evidence an abuse of accumulation of bilitative as capacity parties’ come-producing discretion? pertinent part: provides, provides: 2. SDCL 25-4-45.1 1. SDCL 25-4-44 granted, may the courts When divorce with be taken into account Fault shall not property division of the be- make an except regard awarding property ... bоth, longing to either or whether the title to acquisition property may relevant to the it property the name the husband or such is in marriage[.] prop- making In such division of the wife. the erty, regard equity have the court shall parties. circumstances of the factors, adopt appropri- this court such a factor as considering these sets.” Husband contends that ate this case. guided by principles of trial court is to be disproportionate the award was not Ryken, equity. Ryken v. approximately represents the cause I); (S.D.1989) Cooper v. Coo (Ryken premarital The record value of his assets. (S.D.1980) 798, 799-800 per, 299 N.W.2d because, conflicting on this matter is al- (Henderson, J., dissenting). The record though the trial court found husband to the trial court’s demonstrates that case house, car, variety and a have owned property specifically took into division of personal property prior most of the relevant consideration these assets were included in the valuation above, unnecessary it is to reit noted the marital estate. This matter must be findings the trial court’s here. erate each of resolved the trial court on remand. reflect an the record does not Further, amount is but a frac- contri appropriate consideration of wife’s percent tion of a of husband’s dur bution to the accumulation award. consistently We have property appears performed as a mother The division of to have held that duties minimized, totally disregarded, if not a valuable contri and housewife constitute *5 earning capacity parties. of the It See, relativе property. e.g., bution to the marital undisputed was that annual re- husband’s Garnos, 573 Garnos $90,000, ported income is excess of (S.D.1985). Although the trial court made unreported that he has income which is passing, reference to this consideration in siphoned from the business as he himself per find that consideration was more we testified, ability that wife’s functory than real. herself is uncertain and her current income primary point of contention in re- Wife’s is zero.4 The trial court did find that in gard property division is that hus- job order for wife to hold a she will neеd improperly dispropor- band was awarded special- additional education and “extensive tionately large share of the marital estate. counseling for a minimum of ized two point taken. Her is well The trial court years with an estimated cost of $500.00 $75,000 cash, payable awarded wife per day in order for to be $800.00 [wife] equal three annual in- installments without employable.”5 husband was or- While terest.3 Husband was awarded the balance existing dered to maintain the medical in- $420,803.02, property valued at years, surance for the next four wife is $7,862.65, responsible was for debts of deductible, required pay the and there $412,940.37. net award of question was a serious raised as to the coverage provided by that would be insur- begin by noting that the trial er. property by court’s division of is not bound any mathematical formula. Baltzer v. property essentially division fore-
Baltzer,
any possibility
closes
that wife can become
trial court found that husband was the sole
years,
self-sufficient within the next four
income,
source of the marital assets and
although
contemplates
periоd
it
such a time
just
and that he would have been
as finan by the award of rehabilitative maintenance
cially
if
successful
he had not married.
$4,000 per year
four-year period.
of
for a
by
This is not one of the factors delineated
appears
This
division
to have dis-
making
this court for consideration in
an regarded
of
circumstances
both
assets,
of marital
principles
equity. Possibly
nor will
and the
payments
paid
counseling
3. All
to wife were ordered to be
5.If wife were to receive such
five
responsible
manag-
to a trustee whо will be
for
days
years,
range
a week for two
the cost would
oppose
her financial affairs. Wife does not
|260,000
|416,000
approximately
from
requirement.
necessary
unlikely
medical treatment.
It is
pay
that husband’s medical insurer would
assuming
job,
4. Even
wife obtains a
no one
majority
expenses.
of these
suggests
earning capacity
approach
that her
will
that of husband.
house,
of the new
found the value
trustee could
that wife’s
court felt
after the
$25,000
year for three
of which was started
construction
manage her
living
commenced,
with her basic
proceedings
wife
divorce
had been
years to
food, clothing, housing and
$40,000.7
findings
expenses
Again,
to be
care,
deci-
cannot base our
we
dispute
medical
do not address the
over
trial court
they
especially when
assumptions,
sion
of the funds for construction
the source
Also,
on their face.
unreasonable
appear
home,
it
done
or the fact that
why the trial court
indication
is no
there
the court or wife.
without the consent of
$75,000
interest on
to award wife
failed
pro-
addressed in wifе’s
These issues were
Lien,
6. The
Home, Inc.,
parties’
prior
mar-
addressed
Funeral
owned
Furniture and
in issue
est husband
riage.
two,
infra.
figure represents the
It is unclear whether
equity
or the
value of the house
fair market
the hоuse at the time
of trial.
distinguished
alimony, as
Permanent
a valuation
not overturn
We will
ali-
and rehabilitative
from restitutional
clearly erroneous. Herrboldt
it is
unless
support and
mony, is an allowance for
Herrboldt,
food,
(i.e.
provision
maintenance
of the value
assessment
The court’s
habitation,
neces-
clothing,
and other
was
and furniture business
funeral home
saries)
dependent/obligee spouse.
presented at
range
figures
within
party
follows that when
It therefore
by the record.
supported
trial and
alimony they must
requests permanent
Nelson,
Nelson
sup-
they have a need for
establish that
require exactitude
do not
spouse has sufficient
port and that their
closely
valuation of
held
in the trial court’s
part
or
means and abilities to
and,
finding falls
long
as its
businesses
all of the need.
range
figures in
a reasonable
within
evidence,
disturb the valuation.
we will not
each ease
163 n . implication of Visitation. clear support relatively that wife was finding Next, is wife contends that visitation of the for the termination fault more at restrictive, especially light of the too financial con- the relative mаrriage. While pretrial visitation schedule. Wife does not approach not parties does dition challenge custody the award of of both a decrease wife will suffer level and similar In its conclusions of children husband. living, these factors in her standard law, permitted wife the fol- by the court into consideration were taken lowing visitation: is no basis say cannot there and we support decision. or evidence to reason 7. Donahue, N.W.2d at 395. 464 Estate light super- of our be allowed particularly true That the Defendant This is eq- award for an with the children twice a vised visitation remand sober, month, supervisor with the to be a division. uitable permit responsible adult who will not adequacy of the award of drinking, visits when the Defendant is judged alimony must be rehabilitative and with the visits to be limited so as not and circumstances on the facts based (8) eight to exceed hours duration. Studt, N.W.2d individual case. each designed to alimony is Rehabilitative 639. 8. necessary to spouse the means permit a alternate That Plaintiff and Defendant job refresh or enhance enable him or holidays birthdаys of the children self-sufficient, necessary to skills become the same conditions between them with par while the provide financial and restrictions as set forth above. necessary training. Balt ty obtaining Hautala, 584; zer, Hautala setting
the deductible.
trial,
month. Prior to
to 16 hours each
ited
obtain an education
every
weekend
children
other
wife had the
food, clothing, and other nec
housing,
own
the entire weekend.
We cannot
month.
essaries
$333
present visitation
While the
inadequate
to
is so
say that this award
restrictive,
trial court
is more
court’s dis
schedule
an abuse of the trial
evidence
wife’s con
findings regarding
several
made
the amount
rehabili
cretion.
problems involved
and the
reconsidered in dition
alimony must be
tative
to
rights prior
visitation
of her
remanding
proper
exercise
light
holding
of our
The court found:
trial.
for reconsideration.
ty division
agree
has no in-
though
both
she
xlvii.
years
two
come and it will be at least
personali-
her borderline
As a result of
job,
hope
can
to hold a
there is
before she
disorder,
extremely
ma-
ty
Defendant
trial court considered the
no evidence the
and, according
psychol-
to her
nipulative,
statutory presumptiоn
parent
that a
is ca-
steal,
lie,
exercis-
ogist,
cheat
would
pable
being employed at a minimum
judgment,
poor impulse control and
es
parent’s support obli-
wage, and that the
others,
danger to herself and to
and is a
full-time
gation
computed
shall be
based on
children, during mood
including her
employment
wage.
at the minimum
SDCL
swings.
presump-
point
out that this
25-7-6.4.
rebuttable,
the trial court made
tion is
XLVIII.
require-
no indication that it considered
using alcohol
Defendant admitted to
ruling
ments of SDCL 25-7-6.4
attempting
exercise visitation
when
currently cаpable
provid-
is not
“[wife]
during
pendency of
the children
with
support
[husband],
has
which
in violation of the Court’s
this action
recognized by
The con-
been
[husband].”
order.
party
satisfy
is insufficient to
sent of
statute,
and this matter should be ad-
dressed on remand.
It is settled law that
L.
continuing jurisdic-
the trial court retains
unpredictable
Defendant’s conduct is
appropriate
set the
level of child
tion to
dangerous
potentially
to the children
25-7A-22;
support.
Sharp
SDCL
supervisor should
such that a sober adult
Hus-
Sharp,
present when she is with the children.
be
could,
any time until the children
age
majority, petition the
reach the
LII.
appropri-
an
of an
court for
establishment
wife,
paid by
ate level of
be
interests of the children will
best
nothing
in the decision of the trial
by allowing
De-
be served
visitation with
right.
supervision
precludes
fendant with
for a limited
visit,
allowing
duration on each
time
telephone
children
contacts between the
Attorney
Fees.
and Defendant if the Defendant has not
Wife contends that the trial court
drinking.
been
should have awarded her all of her attor
protect
duty
The trial court has a
$12,168.18,
asks
ney fees of
us to
children,
necessarily
must
and its decision
appellate attorney
award her
fees.
guided by the best interests of the chil-
attorney
trial court found the reasonable
Jasper
Jasper,
dren.
$12,168.18,
fees incurred
mother to be
(S.D.1984);
Nauman,
Nauman v.
attorney
and awarded her
fees
SDCL
the trial court decision here does not evidence an and its rights when to seek more liberal visitation Fox, abuse of that discretion. 467 N.W.2d presents danger to the longer she no 768; properly 15-17-7. The court children. necessary as set considered the out Lien, in at 436. The court moving on to wife’s final
Before issue, found that the fee was reаsonable and that the trial court did not we note that outstanding job in paid by Al- both counsel did an what support to be wife. set divorce case. The trial complex was a attorney fees is Jimmy BOYKIN, affirmed. Appellant,
court’s award of Lee v. also submitted motion for Wife costs, appellate attorney fees and which is LEAPLEY, Walter Warden South supported itemized state verified and Penitentiary, Appellee. Dakota State in ments services rendered and costs No. 17214. Malcolm, curred. Malcolm (S.D.1985). appellate totаl Wife’s fees Supreme of South Dakota. Court $6,083.31. affirming are are costs Argued Feb. part reversing part. court in in part is appeal When a case on affirmed May Decided part, appellate attorney and reversed in fees and costs are discretion of this Baltzer,
court.
award wife appeal. plus
fees her costs on judgment of the trial court is af- part, part, reversed re-
firmed proceedings with
manded for consistent
this opinion. C.J.,
MILLER, and WUEST and
HENDERSON, JJ., concur.
SABERS, J., specially. concurs
SABERS, (concurring specially). Justice agree
I is division
against and evidence and must be reason for an
remanded SDCL 25-4-44. The mari-
marital estate. his, theirs,
tal must be their
considered as such. amount of property to be to wife
marital distributed
should sufficient to her some security
permanent considering financial and to illness and conditions enable her chil- contribute their Hilbrands,
dren. Hilbrands v. 752-753 view,
Finally, my the award of wholly inadequate amount and dura-
tion, considering especially wife’s medical
situation, for medical her need insurance permanent disparity earning
ability parties. of the two Stubbe
Stubbe,