*1 termi- rights properly were parental ents’ not herein discussed issues
nated. All other merit. without
are deemed to be disposition is decree of
Accordingly, the
affirmed. concur.
All the Justices MEINDERS, Plaintiff L.
Danell Appellee, MEINDERS, Defendant R.
Thomas Appellant.
No. Dakota. of South
Supreme Court 18, 1981. Feb. on Briefs
Considered 6, 1981. May
Decided 12,1981. June
Rehearing Denied Pruitt, Willy, Mat-
Thomas J. Farrell of thews, Farrell, Johnson, Sioux Frankman & Falls, appellee. Wilds, Falls, for defendant John L. Sioux appellant. MARTIN, Judge. Circuit granted Plaintiff was a divorce from de- grounds cruelty. on extreme fendant appealed judgment from the re- garding the division of the alimony. the award of We af- debts and firm. *2 The on record reflects relevant were married December several other parties
The
part
factors.
of the divorce decree in
27,1974.
on
As
granted
A
Febru-
divorce was
concerning
marriage,
Hawaii
her
first
15,
marriage
The
of the
ary
duration
plaintiff was awarded the home. The de-
years.
five
approximately
was therefore
provided
she
cree
that if
did not sell the
trial,
thirty-
of
was
plaintiff
At the time
1980,
September
prior
Hawaii home
to
her
eight
age;
of
record
the
does
the
two children would be awarded 100%of
Plaintiff
two
age.
reflect defendant’s
had
profit.
prior
net
If the house was sold
to
marriage, ages
by
previous
a
sev-
children
September
plaintiff’s former husband
enteen and fifteen.
proceeds,
was to receive 40%of the net
with
were
plaintiff and defendant
mar-
When
plaintiff
the
In
to receive
balance.
Elko,
in
ried,
owned some land
plaintiff
plaintiff
defendant
insisted
sell the
Nevada;
Florida;
a lot in
an interest
in
pro-
in
house Hawaii and retain all of the
California;
partnership property
some
in
a
in
ceeds
of the Hawaii court order
violation
car;
interest
former
in
part
in her
home
purchase
Falls
a residence in Sioux
Hawaii;
savings
approxi-
and a
account of
insistence,
the money.
with
At defendant’s
$7,700.
brought
mately
Defendant
into the
the house was sold and
received
a car.
marriage some furniture and
$29,000
proceeds, giving
in net
her former
husband none of that amount. Plaintiff’s
the parties apparently
The health of
was
former husband learned of the sale
good. Regarding
parties’ competency
the
proceedings
The
legal
started
in Hawaii.
living, plaintiff graduated
to earn a
judg-
court in Hawaii has since entered a
College
degree
a
in
Sioux Falls
social
against
in
ment
favor of the for-
However,
psychology.
work and
she did
$16,000.
mer husband for
during the
not work
course of the
$29,000
From the
realized from the Hawaii
defendant,
request
at
of
who did not
sale,
plaintiff purchased two cer-
put
her to work as it would
him in a
want
deposit for
tificates of
the children
higher
is a
tax bracket. Defendant
stock-
$10,000.
stated, $15,000
total sum
As
employed
as
presently
broker and
mana-
proceeds
downpay-
used
a
was
towards
ger
of an
of the Sioux Falls office
invest-
purchase
ment on
of a
in Brandon
house
again
banking firm.
In 1978 and
in
ment
improvements.
and on
Plaintiff also
initial
$50,000.
defendant earned in excess
$3,000
gave
proceeds to defendant to
Further,
expected to
defendant was
earn
invest in
Plaintiff had
the stock market.
$38,000.
year
for the
1980 the sum of
$7,700
given
in sav-
earlier
defendant her
accumulated,
parties
during
The
had
The
ings
invest in the stock market.
Brandon,
in
course of
a home
various
record reflects that defendant made
Dakota,
Dodge
camper,
a
van
South
stock,
purchases
mainly
and transfers
goods
and fixtures and household
furniture
area,
high
the timé of the
risk
deposit,
and two certificates of
latter to
worthless.
stocks were
be held for the benefit of
chil-
purchased the home in
parties
After the
Excluding
mortgage
dren.
on the Brandon,
more
to borrow
defendant wanted
home,
had incurred debts
talked
money
improvements
for
$35,000.
excess of
using
borrowing
into
more funds and
tiff
of each
Regarding
party
the contribution
deposit as se-
the children’s certificates of
property,
said
the accumulation of the
to do this
curity. Plaintiff was reluctant
house,
plaintiff,
keeping
in addition to
mak-
if she
but
advised
defendant that
ing
him,
normal
doing
meals
housewife
would let
loved him and trusted
she
$15,000
chores,
money.
contributed
towards down-
fur-
manage
him
Defendant
purchase
of the home and
if she
payment
on
ther
to leave
threatened
of de-
improvements
mortgage
initial
on
home.
the certificates
some
refused to
this,
basically
posit.
his
discover-
contributed
earn-
addition
using
construction
ings.
ed
defendant
responsible for
to facilitate
and be
debts
excess
living expenses and
loans for
night
$24,000.
activi-
and late
The trial court also
excessive bar life
his
go
Further,
refused to
pay attorney
ties.
defendant
fees of $750.
fendant
counseling.
above,
addition
and then resumed
parties separated
month,
plaintiff alimony of
awarded
summer of 1978 but
living together in the
monthly installment
to be due for
the first
*3
prob-
financial
again
experiencing
started
February
and
contin-
the month of
lems,
after-hours
mainly
due
to defendant’s
age
youngest
ue until her
child reaches the
plain-
to tell
refused
activities. Defendant
eighteen
emancipated,
or is
if that
is
that
and demanded
tiff about the finances
the time of the termination of
earlier. At
De-
charge of the finances.
he be left in
indicated,
as above
the trial
alimony
to an at-
plaintiff
drove
fendant’s conduct
alimony
court will reassess the
situation on
November
tempted suicide.
In
and
plaintiff
motion of
and as
needs
that he did not
fendant advised
stated,
parties
dictate. As
abilities
go get
her to
anymore
love her
and for
youngest child was fifteen at the
attorney and that he was not
herself an
time of the divorce.
coming home.
parties’
in Brandon has been
reviewing
home
the division of
upon.
judge
The trial
ordered it
foreclosed
alimony,
the award of
and
to be sold. The record reflects that
making
provi
has
discretion
such
broad
$80,000;
approximately
home was worth
award,
granting such
and we will
sion and
figure include a mort-
deductions from that
modify or set them aside unless it clear
not
$54,900,
charges and taxes of
gage of
late
ly appears that
the trial court abused its
$2,250,
$3,000,
a lien
real estate fees of
Hansen,
v.
discretion. Hansen
273 N.W.2d
$6,000,
a construction loan in the
and
(S.D.1979). Although a trial court has
749
$12,300
by
secured
the children’s
amount of
discretion, we have enumerated fur
broad
leaving
profit
a net
deposit,
certificates of
factors which should be considered in
ther
$1,550.
If the home should be
of around
of marital assets. These fac
the division
$80,000,
may very
sold for
than
there
less
are;
tors
loss;
event, plaintiff
any
well be a net
duration of the
value of
[T]he
$15,000
her
would not be able to recover
property,
ages
parties,
of the
Regarding
proper-
investment.
the other
parties’
competency
of health and
state
ties, plaintiff
furniture and
was awarded
each
living,
earn a
the contribution of
amounting
goods
household
and other items
proper-
party to the accumulation of
$2,500.
Defendant was
income-producing capacity of
ty, and the
household
awarded certain furniture
Hansen,
parties’
supra,
p.
assets.
goods
Dodge
camper
as well as the 1975
van
$3,975.
for a total value of
It must be
for the same
holding
proposi
Other cases
stated, however,
camper
that the
was mort-
Johnson,
tion include
v.
300 N.W.2d
Johnson
gaged
approximate
in the
sum of its value.
Buseman,
(S.D.1980);
865
Buseman v.
299
The trial court also awarded to
(S.D.1980);
Cooper,
Cooper
N.W.2d 807
v.
Florida;
Malibar,
land in
the land in
Port
(S.D.1980);
The trial court also ruled Hanks, alimony. Hanks v. 296 responsible for debts in an award of should incur and be $11,000, excess of and that defendant incur N.W.2d 523 each, HENDERSON, we enumerating (dissenting). Justice Without replete evidence the record is find I would reverse and remand. properly presented factors were all these divorce, The decree of entered on Febru- trial We do by the court. and considered 15, 1980,provided, inter ary alia: its the trial court abused believe that That is entitled judgment regard entering its discretion commencing sum of month $750.00 or award. ing property division payable February on the [sic] property, a making equitable division of an first of each month thereafter until mathemati any court is not bound child, Lewis, Mark youngest tiff’s reaches to make award on cal formula but is age emancipated, case, of the factors in the basis material At whichever first. that time the occurs equity due and the cir having regard for will Court reassess as the needs Further, spe party. cumstances abilities dictate. That con cifically regarding alimony, fault is a paid payments said shall be *4 sideration, in amply which is shown and one through the of County Minnehaha Clerk case. this Courts. the year prior entry Less than one to of this requested has that defend Plaintiff decree, Price, this Court stated Price v. attorney pay be additional ant 455, (S.D.1979): 278 N.W.2d 458 defense, appeal. the of this We fees for awarding we that Although recognize ali- and request this to reasonable find be a payments are in mony support and child require pay that the additional defendant discretion, the trial we must stress court’s attorney sum of for fees. $500 alimony support sepa- child are that judgment the trial court is modi- of concepts. rate of $500 to include an award fied Price at 459: We also stated in attorney appeal. modi- for fees on As so alimony and as award fluc- Inasmuch the fied, judgment is the affirmed. support, must child we tuated trial alimony remand the award to the for consideration based court further J., MORGAN, J., WOLLMAN, C. solely upon a allowance to suitable concur. child con- independent support tiff J., DUNN, specially. concurs sideration. True, child, Lewis, was not plaintiff’s Mark HENDERSON, J., dissents. True, of defendant the child defendant. support required by the decree to MARTIN, Judge, for sitting Circuit true, owed child. And defendant FOSHEIM, J., disqualified. obligation support whatsoever to legal no then, did trial court Why, child. this DUNN, (concurring specially). Justice payment alimony of intertwine the patently case. I concur the result this eighteen attainment of with the child’s of child have held that issues We is age emancipation? or There years of his settlement, alimony property support, express monthly payment that no doubt separately different decree, should be treated as ter- will alimony, under $750 Price, v. 278 N.W.2d apply. Price stepson standards when fulfills minate defendant’s However, I (S.D.1979). prepared am 455 an alimo- one of these two conditions. Such court that not a accept ny contrary statement award is to Price and alimony re-appraised upon will be which should be considered. factor reaching payments, as set- majority” termining “youngest child amount to be re-appraisal expressed time rather than has the factors ting a this Court Hanks, 296 N.W.2d I v. support. and child considered Hanks confusion Guindon,256 (S.D.1980), affirming judgment. 523 and Guindon join in would 408 stepson’s Young, A attain- 371 Mich. majority emancipation (1963); Miles,
ment of is not one Miles v. 185 Or. 202 P.2d (1949); of the factors to be considered and the trial Schwent, 485 Mo.App., Schwent judgment regard oppres- in this court’s (1948); Branson, S.W.2d Branson v. settled,law sive, contrary wrong, and 347, 123 (1942). good Okl. P.2d 643 It is appears It of this state. to work courts should not harbor together mixed an spurn those who it. way, settlement award. In a circuitous during plaintiff’s life, It was college trial court support either awarded child which time framed within her married requiring unto defendant pay life, that she drifted into alcoholism. She support for a minor to whom he owed no graduated College Palls Sioux in 1978 legal obligation provided and/or a property Mandan, and was treated at the North Da- by making very high settlement monthly kota, Alcoholic Rehabilitation Center that alimony award. year. same parties’ Prior to the It strikes me that an award of many years had lived for month for a lasted and, Orient from 1968 to worked in and, five is excessive Club, Hawaii, bars from Hickom AFB case, under the circumstances of this consti Bar, Sky Aurora, Lane Inn and Sansa tutes an abuse of discretion. A trial court’s Colorado. Defendant first met discretion, judicial discretion ais not an said Sansa Bar. months par- Six later the one, uncontrolled and its exercise must have ties were married. Plaintiff had suffered a a sound and substantial basis in the testi previous marriage. broken September *5 25-4-44; mony. Fink, SDCL Fink v. 1979, plaintiff attempted ques- suicide. I (S.D.1980); Hansen, Hansen v. highly tion that defendant solely should pro bear the blame for this attempt suicide posed finding of fact concerning plain light plaintiff’s of the circumstances of life college tiff’s obtainment of a degree, which prior to this and the circumstanc- college study three during marriage. es of this There is no finding of the five-year marriage and enabled her to fact to buttress the majority opinion’s find- employment. secure favorable No finding ing to Although plaintiff’s this effect. at- any respect kind entered with there tempt foiled, on her own life was this dra- to as the trial court ignore chose to this episode matic should not be considered as a Rather, critical factor. the trial court rivet sympathy any factor or other factor in arri- ed in Therefore, on defendant’s resources. ving at an award. it must be assumed that the trial court did I Finally, general exception take not consider recent educational majority opinion’s expression that defend- pursuits at all which most certainly bears ant caused to refrain employ- upon competency “the living.” earn a during marriage. For, indeed, ment The majority -opinion accepts the factual Finding duly of Fact XIII entered proposition that “the health of the provides: trial court “That is un- If, good.” indeed, plaintiff enjoys good employed and unemployed has been education, good health and has a why does years and has been unable to secure em- require she monthly $750 award? ployment.”
Alimony should not sympa be awarded for for the thy able-bodied and award of well-educated month reversal; who refuse to cries out for “Alimony mixing work. is not a right. matter of When the award with the emancipa- wife has the child’s ability living, to earn a it tion and/or [proper is not award clouds the low- legal policy] give perpetual her a er court’s lien on rationale to such an extent that it her divorced husband’s future income.” deviates from the settled law of this state. Morgan v. Morgan, 642, 369 59 Wash.2d I would therefore also reverse the property (1962). P.2d Young See also award so that it may adjudicated be with a Lacking viewpoint equity. towards fresh dissent, I my or associates in
companions cry. my solitary
issue FLEEGE, Special E. Administra
Jerome Fleege, of the Estate James P.
tor
Deceased, Appellant, Plaintiff and CIMPL,
John A. Defendan t Appellee.
No. 12926. Court Dakota.
Supreme of South Sept. 10,
Argued 1980.
Decided May