Lien v. Lien
420 N.W.2d 26
S.D.
1988
Check Treatment
MILLER, Justice.

This is an appeal from an order denying a former husband’s motion to terminate “alimony” on the basis of his former wife’s remarriage. We affirm.

FACTS

The original divorce рroceeding was tried by the late Honorable Joseph H. Bottum, Circuit Judge (Judge Bottum). The facts of that case are extensively set forth in our prior opinion of Lien v. Lien, 278 N.W.2d 436 (S.D.1979) (Lien I). Therein, we generally affirmed Judge Bottum’s property award of approximately $1,096,333 to the former Mrs. Lien.

Appellant Bruce H. Lien (Bruce) filed a Motiоn to Terminate Alimony based upon his former wife’s remarriage. The motion was submitted to Presiding Circuit Court Judge Marshall Young (Judge Young) principally on a stipulation of fаcts. Among the facts stipulated to were that appellee, Barbara Lien (Barbara), married William G. Porter (Porter) on February 19, 1984, and that the separate and/or collective income of Barbara and Porter is more than adequate to provide her a standard of living substantially equal to that which she had grown accustomed during her marriage to Bruce — without the payment to her of any support from Bruce. Barbara submitted additional evidence for Judge Young's consideration, including her affidavit and a request that judicial notice be taken of the entire court record, which request was granted over Brucе’s objection.

Judge Young denied the motion to terminate “alimony,” finding that “extraordinary circumstances” had been established by Barbara under Marquardt v. Marquardt, 396 N.W.2d 753 (S.D.1986), and that Lien I, supra, was dispositive. Judge Young specifically found that (1) it was clear from the court record that the amounts in dispute were part of a property division arrived at by Judge Bottum аnd that the award was merely classified as support at Bruce’s request, to enable him to obtain certain tax credits; (2) Lien I specifically recognized that part of the amount designated as property division was payable as support for the tax benefit of Bruce; and (3) pursuant to Bruce’s request, the judgment and decree of divorce was amended, pursuant to a stipulation of the parties on February 25, 1981. The amendment specifically provided, in pаrt, that the “allowance for support shall not be otherwise subject to termination or modification upon any grounds including, without limitation, [Barbara’s] remarriage or any other change of circumstances.”

Based upon the above findings, Judge Young held that Barbara’s support provisions should ‍​‌​‌‌​​​‌​‌​​‌​​​​‌​‌‌‌‌‌​‌‌‌​​‌​​​​​​‌​​‌‌‌​​​​‍not terminate due to her remarriage. It is from this judgment that defendant appeals.

ISSUE I

WHETHER THE TRIAL COURT IMPROPERLY RELIED UPON ORAL PRONOUNCEMENTS AND MEMORANDUM OPINIONS OF THE ORIGINAL TRIAL JUDGE IN REACHING ITS DECISION.

Bruce claims that Judge Young improperly and prejudicially relied upon oral pronouncements and one of several conflicting memorandum opinions issued by Judge Bottum. Bruce claims that under existing statutory and case law, these considerations are improper if not incorporated into the formal decision by reference.

One of Judge Young’s findings states:

That it is clear from the record that the amounts in dispute werе part of the property division plan arrived at by Judge Bottum and were classified as support at [Bruce’s] request in order that [he] could obtain certain tax credits[.]

The record, referred to by Judge Young in the above finding, consisted of (1) remarks made by Judge Bottum, which were made at a hearing held before him on *28 March 3, 1978, * аnd (2) one or more of the conflicting memorandum decisions authored by Judge Bottum before he adopted and entered formal findings of fact, conclusiоns of law, and the judgment.

Undoubtedly, oral pronouncements or written memoranda of a trial judge, which are extraneous to the formal findings and judgment, are of nо binding force or effect. Hitzel v. Clark, 334 N.W.2d 37 (S.D.1983); Morrison v. Morrison, 323 N.W.2d 877 (S.D.1982); Western Bldg. Co. v. J.C. Penney Co., 60 S.D. 630, 245 N.W. 909 (1932). However, the trial court is not precluded from considering any written memorandum decisions or oral pronouncements set forth in its own file. Clearly, Judge Young properly took judicial notiсe of the entire circuit court record for purposes of reaching a decision. Gross v. Gross, 355 N.W.2d 4 (S.D.1984); Adam v. Adam, 254 N.W.2d 123 (S.D.1977); Muller v. Reagh, 178 Cal.App.2d 1, 343 P.2d 135 (1959); Roberts v. Roberts, 201 Ga. 357, 39 S.E.2d 749 (1946); see generally State v. Aspen, 412 N.W.2d 881 (S.D.1987); Alexander v. Solem, 383 N.W.2d 486 (S.D.1986). It was especially appropriate since he wаs not ‍​‌​‌‌​​​‌​‌​​‌​​​​‌​‌‌‌‌‌​‌‌‌​​‌​​​​​​‌​​‌‌‌​​​​‍the original trial judge in this complicated action.

ISSUE II

WHETHER THE TRIAL COURT ERRONEOUSLY DETERMINED THAT THE PAYMENTS WERE NOT TERMINABLE UNDER MARQUARDT.

Bruce claims that the “alimony" payments should be terminated due to (1) Barbara’s remarriage and (2) the stipulation stating that she has no need for the “alimony” since the remarriage. Barbara claims that the amount of the award in issue was, in fact, a part оf a property division and such award was merely labeled as support (or alimony) at Bruce’s request, solely for his tax benefit.

In Marquardt, we held that remarriage “еstablishes a prima facie case for termination of alimony payments” and imposes on the remarried ex-wife the burden of establishing that “extraordinаry circumstances” exist which justify the continuation of alimony payments. However, it is also well-settled that a property division is not subject to modification. See Holt v. Holt, 84 S.D. 671, 176 N.W.2d 51 (1970). Additionally, we have recognized the concept of permanent alimony in lieu of property division. Vaughn v. Vaughn, 262 N.W.2d 910 (S.D.1977); Holt, supra; Annot., Ali mony— Effect of Remarriage, 48 A.L.R.2d 270 (1956).

After reviewing Lien I, we find that Marquardt has no application here. In Lien I, we stated that tax consequences were proper considerations. In addition, we specifically stated:

The trial judge determined that Mrs. Lien should receive approximately one-third of the family’s net assets, and that becаuse she was inexperienced in business affairs and because he concluded that Mr. and Mrs. Lien couldn’t reasonably be expected to get along as business *29 partners, she should receive her ‍​‌​‌‌​​​‌​‌​​‌​​​​‌​‌‌‌‌‌​‌‌‌​​‌​​​​​​‌​​‌‌‌​​​​‍equitable share of the assets in cash. Became o/the large amount of money involved which created practical problems of cash availability and the tax consequences to Mr. Lien of acquiring this cash either by liquidation of assets or out of his income, the trial judge, after several hearings, devised the rather elaborate plan previously set out in detail, involving large payments over a relatively short time, deferred payments over a longer time but short enough to make them nontaxable to Mrs. Lien, and support payments over about 13 years which would be deductible to Mr. Lien and taxable to Mrs. Lien. Interest on the deferred payments would also be deductible by Mr. Lien and taxable to Mrs. Lien.

Lien, 278 N.W.2d at 444 (emphasis added).

The above-quoted paragraph from Lien I is dispositive. Any other finding would be inconsistent with Judge Bottum’s (and this court’s) intent. Clearly, what was intended as a property division and part of an award of approximately one-third of the assets to Barbara was designated as support merely at Bruce’s request for the purpose of providing him with a tax benefit and to alleviate thе harshness of a total cash award of property.

Finally, Bruce argues that the stipulation stating that Barbara does not need the support demands that the payments be terminated. In Lien I, Bruce objected to any support award on appeal, claiming that it was unwarranted because she received a large sum of property in the division, citing Guindon v. Guindon, 256 N.W.2d 894 (S.D.1977). However, we chose to ignore Guindon because the Lien assets were so substantial that, basically, neither party needed the money. Moreоver, we have now stated that ‍​‌​‌‌​​​‌​‌​​‌​​​​‌​‌‌‌‌‌​‌‌‌​​‌​​​​​​‌​​‌‌‌​​​​‍what was deemed “support” was in reality a property division. Thus, whether or not Barbara needed “support,” was irrelevаnt.

Affirmed.

WUEST, C.J., and MORGAN and SABERS, JJ., and GILBERTSON, Circuit Judge, concur. GILBERTSON, Circuit Judge, sitting for HENDERSON, J., disqualified.

Notes

*

At this hearing, Judge Bottum announced his final memorandum decision and made the following statements;

Judge Bottum: I found a lоng time ago that is the plaintiffs share to be divided out of the property acquired during the marriage which was $1,096,000.00 and I've come to the conclusion, and it will be my Order of Judgment that the Defendant shall pay this in the following manner: ... [page 504]
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Mr. Porter: If I understand the Court, it is the Court's intention to make the first nine years of these payments, however much that is, property division and nontaxable. (Emphasis added.)
The Court: If it is humanly possible, yes. It's approximately $876,000.00.
Mr. Porter: Nontaxable, and the balance—
The Court: To be taxable. Word it any way you like to bring that about. (Emphasis added.)
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Mr. Porter: The only question I had is that I, as I understand it, the $876,000.00 or whatever that figure is that the Court ordered would be tax free to the plaintiff and the balance, the 60 payments, would be taxable?
The Court: That is my understanding. Now, I haven't been able to talk to an accountant ‍​‌​‌‌​​​‌​‌​​‌​​​​‌​‌‌‌‌‌​‌‌‌​​‌​​​​​​‌​​‌‌‌​​​​‍for the last two weeks, so I don't know, so I suggest you people do that,
The Court: 1 want this result. I don't care who words it, just so if possible I want that to be nontaxable.,.. [page 508] (Emphasis added.)