[¶ 1.] Theodore Roosevelt Muenster (Ted) appeals from a judgment and decree of divorce granted to Carleen Ann Muenster (Carleen) challenging the trial court’s division of property, the determination of child support and the finding that he was in contempt of court. We affirm the property division and contempt finding and reverse and remand for recalculation of Ted’s child support.
BACKGROUND
[¶2.] Ted and Carleen were married on October 19, 1996. At the time of the marriage, the parties were living in a home оwned by Ted on St. Paul Street in Sioux Falls, South Dakota. Carleen had obtained a bachelor’s degree in business administration and was working for Specialized Card Services, earning $32,000 per year. Ted had not yet earned his bachelor’s degree and was working for his mother, Karen Muenster, maintaining her rent
[¶ 3.] In August 19.98, the parties moved to Vermillion so Ted could pursue a law degree. In October 1998, Carleen obtained a job at the law school in the Dean’s Office, earning a salary of $32,000 per year and the job provided medical insurance for the children. The parties lived with Car-leen’s mother for the first eight months. The parties sold the house on St. Paul Street in Sioux Falls for approximately $79,000. With the proceeds they paid off marital debts, including some of Ted’s undergraduate expenses, and purchased two rental properties in Vermillion: 217 and 225 N. University (University) and 515 E. Clark (Clark) in which they resided. The parties sold the University property to clear debt and purchased a duplex at 200 and 202 N. Pine Street (Pine). All the properties were titled jointly by the parties. The parties received about $2,000 per month in net income from the rental properties.
[¶ 4.] The parties’ second child, Alexander, was born October 22, 2000. Carleen enrolled in graduate school in 2001. Ted graduated from law school in 2003, and elected not to take the bar exam but continued to manage the rental property on Pine Street and work with his mother in real estate ventures. In 2003, the parties moved to Sioux Falls as Carleen obtained a paid internship at “West Central” as a counselor. The parties lived rent-free in a furnished home located on Harriet Lee belonging to Ted’s parents. The parties’ third child, Olivia, was born January 1, 2004. Carleen obtained her master’s degree in the spring of 2004.
[1f 5.] As the couple now had three small children, they decided Carleen should remain at home with the children. Alex had ADHD and she began home schooling him. Ted worked at Wells Fargo and Home Depot, earning between $10 and $13 per hour. He later obtained employment as the director of the Chiesman Foundation at a salary of $38,000 per year. His position was eliminated after three months and he collected unemployment benefits for eight months. Ted obtained his real estate license and worked at Century 21 but never sold a house.
[¶ 6.] On June 13, 2007, Carleen filed for divorce, interim custody of the parties’ children, child suрport and interim spousal support. At the time of the divorce proceeding, Carleen was unemployed and Ted indicated he was working full time as a real estate agent and managing the rental properties the parties owned in Vermillion. Their only income was the $1,300 per month they were now receiving as net income from the rental properties. The trial court ordered Ted to pay Carleen her one-half share of the rental income ($650) and the court ordered both partiеs to obtain employment. Carleen promptly obtained employment with Capital Card Services at a salary of $47,705 per year.
[¶ 7.] On August 16, 2007, Carleen filed motions to compel answers to interrogatories, to hold Ted in contempt for failing to pay the $650 per month and for modification of support. A hearing was held on September 24, 2007, at which time the parties agreed that the answers to interrogatories had been received and that the accounting regarding the rental income would be produced in two weeks. Prior to the hearing, Ted satisfied the child support arrearages generated by the court’s prior order of $650 per month. The trial court ordered Ted to immediately seek gainful employment and ordered that the remaining $650 in equity from the parties’ rentals would be given to Carleen to assist with
[¶ 8.] On October 31, 2007, Carleen filed a second' motion seeking to have Ted held in contempt of court for failing to comply with the court’s order directing him to produce the financial information and for failing to pay 100 percent of the rental income to Carleen.
[¶ 9.] A hearing was held on December 10, 2007, and counsel for the parties again agreed that an accounting of the rental income would be mаde within two weeks to Carleen’s counsel. Counsel also obtained clarification from the court regarding the September 24, 2007, order which provided that Ted would pay Carleen 100 percent of the net income from the rental property.
[¶ 10.] On December 12, 2007, Karen Muenster delivered to the sheriff a notice to quit and vacate the property at 2304 Harriet Lee, thereby beginning eviction proceedings against Carleen and the children who were still residing in the Muenster residence. Cableen vacated the property voluntarily and obtained an apartment for herself and the couple’s three children. On January 8, 2007, Karen Muenster filed mechanic’s liens totaling $44,910 against the Pine Street property ($33,563) and against the Clark Street property ($11,347) for taxes paid, repairs, improvements and property management fees beginning in 2002 and ending December 31, 2007. At the time of the divorce, the Clark Street property was valued at $70,152 and had a mortgage of $60,185. The Pine Street property was valued at $109,087 and had a mortgage of $70,496. The parties’ combined equity in both properties was $48,558. Thus, the mechanic’s liens were nearly equal to the parties’ equity in the two properties.
[¶ 11.] The case proceeded to a trial before the court on March 6, 2008. At trial, Ted testified and produced some evidence that he brought into the marriage approximately $177,000 in premarital assets obtained from the sale of several properties he had purchased prior to marriage and the proceeds from the sale of the St. Paul Street residence in Sioux Falls in 1998. Carleen testified that Ted had not paid her the $1,300 per month ordered by the court. Ted testified that he was working for his brother but not receiving any income. He also testified that the expenses on the rentals had increased and that they were now only netting $650 per month.
[¶ 12.] The trial court awarded the parties’ only income producing property, the Vermillion rentals, to Carleen and set Ted’s child support at $1,000 per month. The court held Ted in contempt of court for failing to comply with the court’s October order requiring Ted to pay Carleen $1,300 per month. The court also found that Ted colluded with his mother in the filing of the mechanic’s liens to tie up the parties’ equity in the property. The court determined the liens were not filed in good faith and ordered Ted to pay Carleen’s attorney’s fees associated with her defense of the mechanic’s liens and to reimburse Carleen for the equity in the properties if the liens were upheld.
[¶ 13.] On appeal, Ted raises the following issues:
Whether the trial court abused its discretion in dividing the marital estate? Whether the trial court erred in determining the amount of child support by imputing a prior income?
Whether the trial court erred in its finding of contempt of court?
[¶ 14.] On appeal a trial court’s division of property and award of child support is reviewed using an abuse of discretion standard.
Billion v. Billion,
[¶ 15.] “We review a trial court’s findings as to contempt under a clearly erroneous standard.”
Driscoll v. Driscoll,
ANALYSIS AND DECISION
Division of Property
[¶ 16.] “South Dakota Codified Law 25-4^14 authorizes [trial] courts to equitably divide the marital estate in a divorce proceeding.”
Terca v. Terca,
[¶ 17.] Ted first contends that the trial court abused its discretion when it deemed the Vermillion rental properties part of the divisible marital estate. His assertion is premised on the fact that the properties were рurchased with proceeds from the sale of his premarital property and that Carleen did not contribute financially to the acquisition of the Vermillion rentals or their management. Ted testified that he entered the marriage with a net worth of $177,000. During trial, however, it became clear that this figure was somewhat inflated. Ted reported capital gains of $10,000 on his tax returns in 1996 and $34,500 in 1997. The parties sold the unmortgaged St. Paul Street residence in 1998 for $79,000 when they moved to Vermillion. The parties used these funds to pay living exрenses and debts and to purchase the Vermillion rental properties which they titled jointly in their names. Although Carleen did not have premarital funds to contribute to purchase the properties, her valuable contributions to the acquisition and maintenance of the properties may not be ignored. Courts are directed to consider a party’s indirect contributions, especially where, as here, one spouse’s efforts permit the other spouse to acquire and maintain proрerty with “assets that otherwise would be required for the support and maintenance of the family.”
Terca,
[¶ 19.] In making an equitable division of property, “there is no rigid formula that must be followed, nor any fixed percentage to which either party is entitled.”
Clement v. Clement,
[¶ 20.] The trial court considered each of the required factors and awarded Car-leen the Vermillion properties. Ted claims that the trial court’s consideration of the factors was cursory and that the award of all income earning property to Carleen was an abuse of discretion. At the time of trial both parties were 42 years of age and in good health. Ted had suffered from a thyroid condition which was under control and not an impediment to employment.
[¶ 21.] “The trial court is clearly authorized and directed to considеr the contribution of each party to the accumulation of assets” when dividing marital property.
Korzan v. Korzan,
[¶ 22.] In contrast, despite a law degree and a real estate license, Ted maintained formal employment for approximately one year of the parties’ ten-year marriage. His contributions were made through the management of the rental properties. (However, Ted’s mother testified she was significantly involved in the management of the properties since 2001.) Despite the fact both parties have similar earning potential due to their advanced degrees, Ted has been and remains chronically under-employed. At trial, Ted testified that he currently works for his brother renovating buildings, receives no income and lives with him rent free. He estimated the value of the compensation received from his brother at $10 to $12 per hour. Ted testified thаt he could not pay Carleen the $1,300 per month rental income from the Vermillion properties because the expenses for the properties had increased and thus the net income was now only $650
[¶23.] Carleen and the three children were left in a precarious situation as a result of the divorce. As Ted and Carleen were living in a furnished home belonging to Ted’s parents at the time of the divorce, her subsequent eviction left her with no home or furniture and uncertain support from Ted. Her daycare expenses alone for three children exceeded $840 per month. From this set of facts, the trial court determined that, notwithstanding Carleen’s higher income, an unbalanced property division was necessary to provide adequate assets and a reliable source of support for Caldeen and the children. This type of analysis is not entirely unprecedented. For example, in
Morrison v. Morrison,
we concluded that “the trial court was justified in awarding [the] appellee a substantial share of the assets to put her in a stable financial condition” in part because of “appellant’s unreliability in repaying a loan from the appellee and his failure to maintain child support payments.”
[¶ 24.] In addition to the aforementioned factors, courts are also permitted to consider a party’s intentional depletion of a marital asset when making an equitable division of property.
See, e.g., Johnson,
[¶ 25.] The trial court based its finding of fraud largely upon the testimony of Ted and his mother. “Trial courts are [ ] required to determine the credibility of witnesses that testify.”
Grode v. Grode,
[¶ 26.] The trial court was faced with determining what was equitable under these unique circumstances. In light of Carleen’s substantial contributions, Ted’s inconsistent support and his attempt to deplete the Vermillion properties’ value, we cannot conclude that the division of property was inequitable. The trial court’s division of property is affirmed.
Child Support
[¶ 27.] “The statutory scheme in SDCL Chapter 25-7 governs child support calculations” and sets forth a procedure “wherein the initial step is to determine the current net income of the parties and scheduled support amount.”
Kauth v. Bartlett,
[¶ 28.] Ted argues that the appropriate procedure was not followed. Carleen submitted a proposed child support calculation imputing Ted’s yearly wages at $42,000, which produced a base support obligation of $777.38. With additions for health insurance and daycare expenses, she requested monthly support in the amount of $1,215.89. The trial court noted Ted’s education and prior employment at $38,000 per year and set his support at $1,000 per month without performing a calculation based on his actual earnings. Carleen’s income was calculated without consideration of income received from the rentals.
[¶ 29.] In
Kauth,
the obligor voluntarily took a lower paying job and the referee utilized his previous wages when calculating child support.
Kauth,
[¶ 30.] A proper application of the statutes in this ease requires the trial court to calculate Ted’s monthly child support based on his actual earnings. The parties’ net monthly income is then combined to determine the appropriate support obligation. Only after these calculations have been performed may the trial court consider any deviation requested by the parties pursuant to SDCL 25-7-6.10.
[¶ 31.] Ted filed his notice of appeal on June 17, 2008. On June 16, 2008, Carleen filed a motion for an order establishing custody, visitation and child support pending appeal. A hearing on the motion was held on August 4, 2008, and the trial court entered an order again setting child support at $1,000 and authorizing the defendant to have his child support directly reviewed by filing a petition for modification without showing any change in circumstances. Ted petitioned for a modification of thе child support order and the matter was heard by a referee. Ted filed a motion with this Court, pursuant to SDCL 15-26A-56 to supplement the record on appeal to include the report issued
[¶ 32.] “An appeal from a judgment or order strips the trial court’s jurisdiction over the subject matter of the judgment or order except as to certain trivial matters.”
Reaser v. Reaser,
[¶ 33.] The trial court, when calculating Ted’s child support, failed to follow the procedures mandated by statute and articulated by this Court. Therefore, the award of child support is reversed and remanded for recalculation in compliance with thе child support guidelines and consideration of any deviations requested by the parties. Accordingly, Ted’s motion to supplement the record is denied.
Contempt
[¶ 34.] The trial court found that Ted had willfully and contumaciously disobeyed its order to pay interim support in the amount of $1,300 per month and found him in contempt. Ted alleges that the trial court failed to consider whether he had the actual ability to comply with the order and requests that the finding of contempt be vacated.
[¶ 35.] The four elements of contemрt are (1) existence of an order; (2) knowledge of the order; (3) ability to comply with the order; and (4) willful or contumacious disobedience of the order.
Johnson v. Johnson,
[¶ 36.] In August 2007, Carleen and her counsel filed a motion to compel the production of information regarding the rental receipts and expenditures. A hearing was held on September 24, 2007, at which the court ordered Ted to provide by October 8, 2007, a full accounting of the rental income received and expenditures of monies from the rental inсome. The accounting was not produced and on October 31, 2007, Carleen filed a second motion seeking to hold Ted in contempt. At a hearing held on December 10, 2007, Ted again agreed to provide the accounting within two weeks. At the March 6, 2008,
Attorney’s Fees
[¶ 37.] Both parties have petitioned the court for an award of attornеy’s fees generated as a result of this appeal. Ted’s request for attorney’s fees is denied. Car-leen is awarded two-thirds of her requested fees in the amount of $3,183.00.
Notes
. If a change in circumstances occurred that necessitated review of a child support order which was the subject of an appeal, a party could move this Court for an order of partial remand to have that issue returned to the trial court for consideration.