*1 Therefore, fully I cannot injured worker. OSMAN, Appellant, labels work-
join majority opinion which D. Plaintiff and as “nonadver- compensation proceedings er’s sarial.” KEATING-OSMAN, Connie R. it, Legislature perceive the State As Appellee. Defendant and privileges certain has defined South Dakota No. 18530. they are lost or by which the terms have under- privileges These surrendered. Dakota. Supreme South Court by the addition gone metamorphosis 62-4-44, Report submitted to to be SDCL 25, May on Briefs Considered department labor employer 7, Sept. Decided treating surgeon practitioner or —Time 4, 416, limitation, § ch via SL 62-4-45, injury Information about SDCL Penalty for with-
to be made available —
holding information, ch via SL By legisla-
5;§ § 43. the 1990 ch act, ma- were added which new sections
tive practi- a medical
terially affected selection of treatment, surgeon, reports, and or
tioner in- practitioners attending
requiring medical hospi-
jured employees make “medical and available “de-
tal information relevant” longer to no are now deemed
mand.” Same purposes privileged
be “a communication compensation claim.” SDCL
of a worker’s
62-4-45. “routinely
Finally, paid if claims are
quickly,” remembered be Act Compensation is remedial
Workmen’s liberally construed to effectu-
and should be Premack, 70 S.D. purpose. its Schwan
ate (1945).
371, 17 just If boil or like coffee.
Justice is it, usually if pretty good. it But
perk tastes coffee, the aroma not there
it’s instant Myself, I good. have taste so doesn’t enjoyed coffee.
never instant
SABERS, (concurring specially). Justice opinion, I do not
Although concur
join of footnote 1 because paragraph the last the letter is statement
the statement intention, legal right, rather than
fact
threat.
FACTS John and January Connie were married on 22, 1993. This was the first for parties, both and no children were born of Connie had a minor child 2) (Scott, aged previous from relationship. a complaint On June filed seeking grounds on divorce from Connie of cruelty. extreme Connie answered and counterclaimed, seeking likewise a divorce on grounds cruelty. extreme mental granted trial court a divorce Connie on grounds cruelty of extreme mental on Octo- divorce, ber At the time age John was 34 and age Connie was appeal John raises several issues which separately. we address Additional facts are applicable. set out where ISSUE I: DID THE TRIAL COURT ABUSE ITS DISCRETION IN GRANTING A DIVORCE TO CONNIE ON GROUNDS OF EXTREME CRUELTY? argues
John first that the trial court granting erred not on grounds a divorce However, irreconcilable differences. SDCL provides pertinent 25-4r-17.2 part: “The may judgment not decreeing render legal separation parties or divorce grounds on the of irreconcilable differences parties[.]” without the consent both We according note that testimony, engage did designed persuade in tactics agree Connie to grounds to a divorce on irreconcilable differences. When Connie go marriage counseling wanted John to attempt marriage, to save John stated go counseling only that he would if Connie agree would grounds to divorce on of irrec oncilable differences if the counseling did not help. John also told Connie that he would Nicholson, EMund, Johnson, Thomas J. pay on repair a ear bill on the condition Nicholson, Abourezk, Dougherty & and Bar- agree that Connie to an uncontested divorce. Everist, Falls, plaintiff bara Sioux for par These tactics were unsuccessful. As the appellant. agree ties did not ground to a divorce on the differences, granting irreconcilable a di Crew, Crew, Falls, Karen L. Crew & Sioux grounds on vorce such an option for for appellee. defendant and the trial court. parties sought grounds Both divorce WUEST, Justice. cruelty. of extreme cruelty “Extreme (John) appeals Osman grievous from certain infliction of ... suffering mental provisions of other, upon decree divorce from party one to the mar- (Connie). Keating-Osman riage.” We affirm. 25-4-4. “In SDCL a marital set- cruelty particular questions concerns or to- no differs ting, the definition extreme fairly day. apparently going personalities Things ... according Schaack, report That medical is dated N.W.2d well him.” Schaack involved.” 20, 1993, (citing April approximately Brandsma v. months two Brandsma, before John filed divorce. *3 to granted a divorce Connie trial court The inability engage in Related to John’s cruelty. mental grounds of on the extreme satisfactory intercourse with his wife were testimony par- listening to the the
After implications has that John homosexual ten- ties, “[Connie] found a fact that: the court as brought into his dencies. evidence own John marriage promises, and [John’s] relied on showing in March 1991 medical records that counseling attempt made no to seek [John] condyloma (geni- ease of he had contracted a marriage work.” try or make The the warts). by attorney tal asked his own When that, guilty has been “[John] court concluded that are genital aware warts whether he was [Connie], cruelty by his toward extreme males, present in homosexual John ad- often marriage Findings contract.” of the breach knowledge; but that he had mitted that said unless this court of fact are not set aside part- genital warts from a female contracted erroneous; clearly to be and we finds them attorney ner. John’s asked: regard” opportunity give “due must Q: saying that no con- you there is Are credibility judge trial court “to of the your problems between sexual nection (cit- Schaack, at witnesses.” right honeymoon after the 466, 467-68, ing Pochop Pochop, 89 S.D. with Connie duration (1975)). findings These you practice that other sexual amply supported our and conclusions might have? review of record. I I have ten- A: don’t believe homosexual August and Connie met on John dencies. dating shortly thereafter. and started married, they get September decided to Q: yourself consider hetero- And do together. they to live decided October sexual? or into house on John moved Connie’s about A: Yes. Although John wanted to mar- November December, ry convinced him to Connie that, “I physician’s part notes state in January they were married on
wait and got how he [John] admonished consider honeymoon newlyweds on a 1993. The went appropriate steps protect these and take Islands, Virgin honeymoon and the partners.” himself and his quickly ended. problem that John devel- Another bizarre honey- oped abruptly at end of
Beginning after the return from rather pass- inappropriate moon incessant and honeymoon, and for the entire duration was gas. had this marriage, ing of admitted that he impo- brief was either John John beyond his prematurely. problem, that it was ejaculated couple but insisted tent or control, inten- stating, “I don’t think ever satisfactoiy had sexual relations after never tionally passed gas people. Gas honeymoon. front of Connie asked to dis- quick. step me. If I can during physical his his hits It hits me this with doctor cuss away never exam, any physical prob- testified that John see if do.” Connie there was married; problem. they were way problem had before lem or some to resolve did, must it Connie, reported or that if he have controlled According to that the he also was unaware of it. Connie physical there no cause for because she doctor said it like con- premature ejaculation, testified that he did “almost impotency or that his of like he could do ... sort thing trolled problem was “in his head.” There is it for thing.” John could control as to even dis- a retaliation question some whether John got upset, it couple days, and then if he impotency premature ejacula- cussed him to again. Connie asked problems physician, the med- would start the bathroom please well be considerate use report states: feels and has “[John] ical purpose. cruelty. for that But John refused and to me that’s I so find and I table, pass gas would at the dinner while conclude. television,
watching anywhere or in the house Based our review the we cannot on expressed displea- it. If felt like Connie find that trial clearly court was erroneous situation, regarding this sure John felt that granted when on divorce being he was belittled. grounds cruelty. of extreme mental The tri- Approximately six weeks after the mar- position al best see and 1993), riage (early suddenly March hear the evidence view personalities prior moved out of the house without warn- Schaack, parties. ing explanation. He returned after about clearly The trial court was convinced week, only again to move out about *4 marriage lay fault for the failure of this with later), May (approximately ten weeks ac- trial John. The court is affirmed on this cording testimony. to John’s John testified issue. marriage the that he wanted to work. According testimony, to Connie’s “in- John ISSUE II: DID THE TRIAL COURT Scotty daddy sisted that call him from the ABUSE IN ITS DISCRETION MAKING Scotty time he moved into the house and has ITS OP MARITAL DIVISION PROPER- daddy every asking been He since. al- AND TY DEBT? ways daddy wants to know coming when very strongly home.” John stated that he division, making In property the the left, adopt to intended Scott. John When court ordered Connie to return a number of to distressing was Connie when Scott would personal of property listed items to John. “daddy” coming ask when home. particular, there a wedding were number of gifts that major John wanted. The other leaving John’s reason for Connie was that regard property consideration with to marital him, “constantly verbally she abused” and division was the of division debt. The complained court spoke that Connie to him in a concluded: “very sharp gave fashion.” exam- two ples, regarding displeasure one Connie’s with pay [John] shall the to debt Citibank Mast- passing gas. example The other was in $5,559.57[,] ercard in the amount $215.00 regard request put to Connie’s that he used [of] which was [Connie’s] debt before the (for dishes) pad scrubbing steel wool into a parties’ relationship, total of plastic cup stains, to avoid rust than rather $5,344.57; and one-half of the to debt Cen- leaving it on the kitchen counter. could tral Plains Clinic the amount of not actually recall whether this incident took pay shall $115.76[.] [Connie] the debt to place before or after the There Design Andrea’s Photo in the amount of testimony was no physical abuse $519.05; and one-half of the debt Cen- that voices ever were raised. tral Plains Clinic the amount of testimony, hearing After the the trial court $115.76[.] by stating reacted to John: Connie had also testified that she was a I think could have mar- worked this Catholic, requested devout Roman the
riage
Moving
out[.]
out after six
weeks
pay
court
order
Catho-
you say,
me
of what
yelling
because
—I’ve
lic Diocese
she
so
could obtain an
twenty-four years
ecclesiasti-
been married
if I
marriage
cal annulment
every
would have
so
my
moved out
wife
me,
yelled at
could receive
rites of the
I would have
Catholic church.
been divorced
expressed sympathy
While the court
about five hundred
times.
don’t think
request,
you tried
to make this
Like I
stated since he had never
work....
said,
decision,
I’m not much
seen that kind of
in a
so
worried about this
award
passing gas
grant
Thus,
not
anything
request.
like that but I
could
John was
$5,460.33 debt,
marrying,
together
assigned
think this
living
for six
while Connie was
weeks,
out,
debt,
walking
coming
assigned
plus
back
walk-
the cost of
$634.81
out,
ing
again
trying
($650).
out
and not
to work it
annulment
college
John has a
edu-
consistently
particular note that
recognized
has
This court
working
degree
on a master’s
cation and
factors to be considered
principal
engineer
a civil
an
employed
as:
making
equitable property division
(2)
$40,000
(1)
annually,
marriage;
of at
thus he is
of the
income
least
the duration
(3)
age
earning
of the
property;
capable of
substantial
income.
value
(5)
(4)
parties;
high
diploma
the health of the
has
school
works
parties;
Connie
living;
Citibank,
$12,000
earn
parties’ competency
earning
annually.
about
(6)
party to the
of each
urging,
quit working
contribution
Upon John’s
(7) the
property;
night
accumulation
night shift where she earned
shift
capacity
parties’
income-producing
working
began
shift
differential and
assets.
pay.1
cannot
lower rate of
immedi-
at a
She
night
shift until
ately switch back
Pol,
Pol v. Vander
beginning
At
opening.
there is an
Kanta,
(citing
Kanta
(October 1992),
relationship
Connie had a
(S.D.1991);
Ryken Ryk
(S.D.1990);
charge
Citibank
card
en,
balance
Baltzer
461 N.W.2d
(Janu-
Baltzer,
By
time of the
$215.77.
1993)
-with
ary
trial
has broad discretion
the balance had ballooned
‘“A
appeared
division
we will
to be
respect
bulk which
$4044.42—the
*5
judgment
honeymoon
unless a clear abuse of wedding
expenses.
aside its
set
and
Al-
Schwab,
$35,000
plus
discretion is shown.’” Schwab
though
savings,
had
John
(quoting
755
$28,000
N.W.2d
plans,
approximately
pension
he
(S.D.
Studt,
443 N.W.2d
Studt
wedding-
encouraged
put
to
these
Connie
“
1989)).
of
‘The term “abuse
discretion”
charge
expenses2 on
card be-
related
her
to
to a
exercised
an end
refers
discretion
a
a lower rate of interest as
cause she had
justified by,
clearly against,
not
and
purpose
employee. The trial court found as
Citibank
”
Pol,
reason and evidence.’
of
par-
that
“credit card debt
a fact
Kanta,
(quoting
479 N.W.2d
high
it not
would
be as
as
had
ties
not
(citations omitted)).
at 507
[John’s]
and
insistence
been
separate
kept
be
as
as
property
that all
fact
findings
the trial court’s
Since
taking
should
been
on
possible.
[John]
have
clearly
law
demonstrate
and conclusions of
factor,
expenses
parties
from the
some
given
to each
that consideration
relationship.” The court
beginning of the
unnecessary to
each
reiterate
of them
“it is
that, “I
[John]
from the bench
know
Kappenmann, 479 stated
Kappenmann v.
here.”
(S.D.1992).
got
wedding presents and he
took
court
wanted
customers)
I.R.S.,
(as
Connie
well as the
into
that Connie also cleaned hous-
1. The court noted
prior
supplement
supply
mar-
her income
to her
to
the names and addresses
es
refused
John,
riage
Judge
but stated that income would not
for
she
house.
women
whom
cleaned
alimony
property
in the
division or
be considered
going
any
not
to consider
Srstka stated: "I’m
record shows that Connie testified
award. The
going
cleaning business[.]
house
If
are
"Buy
that at one time she had a business called
houses, you
going
are
to earn income
to clean
performed "errands and
and she
Some Time”
report
you ought
...
to follow the law and
and
cleaning
things
planning
party
house
government.”
to the
professional people
people
don’t
older
that
pregnant
do." When she became
have
affidavit, John
the fact that he
In an
itemized
i.d.
canceled her tax
she closed the business and
Connie,
$3,100
ring
bought
wedding
for
However,
people
testified
that
license.
wedding expenses
paid
for
$600
another
other
ask
whom
had cleaned would call and
for
music, singers,
of the church and
such as
use
them,
and she did. Con-
her to clean house
gifts
that
We find
these items
limousine.
during
day
because
was able to do
nie
bearing
property
ali-
division or
have no
on
(3:30 p.m.
night
mid-
until
she worked the
shift
commentary
mony
It is a sad
award.
night) at
testified that she
Citibank. Connie
ring
price
wedding
as
evidence
offers the
per
$400
income
month
made about
thereby.
additional
contribution;
property
that the bill for
unreported
her
income went
on
This
wedding pictures
part
the debt distribution
of the relation-
income tax return. After the start
stated,
"I
a divorce
As the trial
decree.
ship,
did
need to clean houses
John said she
utility
more,
anything
guess
have
think of
less
can’t
transfer to the Citi-
and asked her to
marriage[.]”
wedding pictures
of a failed
turn her
than
Fearful that
would
bank
shift.
Pol,
(S.D.1992);
ought
responsibili-
take
those.
I think
484 N.W.2d
Kanta
debts, too,
Kanta,
(S.D.1991).
would
ty
because
debts
479 N.W.2d
incurred without
the mar- The clear
of discretion
not have been
abuse
standard that
expenses,
riage[.]”
apply
property
applies
Other contributions
we
divisions also
Pol,
landscaping
alimony
work
as some electrical and
our review of
awards. Vander
such
(citations omitted).
suggestion
done at John’s
at 524
on
house were
unlikely
It
that Connie
and direction.
making
The trial court stated that in
own,
spent those monies on
would have
her
award,
alimony
note was taken of
fault of
Conversely,
her
limited income.3
well
previously
as
as the factors
money
as
makes more than three times much
set out
this court. At the conclusion of
Connie,
dependents.
and has no
trial,
court
stated
Connie had
changed
position
in reliance on the mar-
Based on our review
we
riage promise
position
and “she
worse
cannot find that the court abused
discre-
its
got
than
now
she was before she
mar-
on
the division
liabilities.
great weight
....
give
lifestyle
ried
affirm the trial court
this issue.
We
disparity
position
and the income
and the
ISSUE
DID THE TRIAL
III:
COURT
marriage.”
before and after the
In its find-
IN
ABUSE
DISCRETION
ITS
AWARD-
ings,
the trial court stated that Connie’s
ING FIFTEEN MONTHS OF ALIMONY
living
“standard of
has deteriorated since the
AT
TO CONNIE
A MONTH?
separation.” The court also found that
alimony
awarded Connie
fault,
disparity, differing
“[John’s]
income
Pending
for fifteen months.
$450 month
lifestyles, capacity
living,
earn
and finan-
divorce,
previously
the court had
award
parties,
justifies
cial condition of the
temporary alimony
per
ed Connie
of $600
alimony
award of
to [Connie].”
month,
*6
paid
which
for
for three months
Based on our review of the
we
$1,800.
given
a total
John was
credit for
cannot find that the court abused its discre-
already paid,
amounts
so the result
that
was
in
alimony
the award of fifteen months’
alimony payment
actual
is
the
a month
$330
to Connie.
affirm
trial
We
this
appeals
for fifteen months. John
award
this
issue.
alimony.
ISSUE IV: ATTORNEY FEES
length
alimony pay-
The amount and
left
ments is ...
to the discretion of the
urges
that the court abused its
trial
This
court.
court will not disturb an
awarding attorney
discretion
Con
fees to
alimony
it clearly appears
award of
unless
nie
bill
Connie’s total
to the time
$869.20.
that the trial court abused its discretion.
$1,700,
approximately
of trial was
so the
alimony,
In awarding
the trial court must
approximately
amount awarded was
one-half
following
length
consider the
factors:
attorney’s fees,
of her
taxes and costs.
marriage,
respective earning
gives
“SDCL 15-17-7
the trial court dis
capacity
parties;
respective
their
attorney
cretion to award
fees in divorce
property
financial condition after the
divi-
eases, and
will not
we
disturb its decision
sion;
age,
respective
their
health
unless it has abused its discretion. The
condition;
physical
their station in life or
may
deciding
factors the court
consider in
standing;
social
and the relative fault in
attorney
whether to award
fees include the
the termination of the
parties,
relative financial condition of the
(S.D.
Schwab,
505
Schwab
N.W.2d
fault of
prolong
relative
1993)
Studt,
(citing
ing litigation,
issues,
complexity
Studt
(S.D.1989)).
See Vander Pol v.
required
whether briefs were
and whether
$4,000
(from
doing
is
It
commendable that Connie was
in an IRA
which she
with-
had to
$1,000,
penalties,
pay
well as she
on her
attorney)
was
limited income. She had
draw
with
her
purchased
purchase
savings
a small home in Sioux Falls
valued
some U.S.
for
bonds
$40,000
mortgage payment
college
Many single
around
with a
parents
son's
education.
well,
per
provide
budget
especially
month
home
herself
unable to
so
on such a
managed
away
put
and her son. She had
limited income.
Furthermore,
appealed
Supreme
my opinion
that footnote
the case
editorial comment which is not in
Court.”
contains
law
keeping
applicable
with either facts
Schwab,
(quoting Radigan
at 756
505 N.W.2d
It is
that
to decide this case.
obvious
used
Radigan, 465 N.W.2d
(citations omitted)).
trial,
At the end of
are in-
the first
last sentences thereof
many divorce cases—
industrious,
sees
trial
thrifty nature
to laud the
tended
—who
stated:
Then,
majority opinion portrays
of wife.
have
this
should
been settled.
scenario,
I think
case
to foot-
two sentences linked
wholly
I think
came with a
[John]
And
relatively poor
is
that
and he
note
pay
having
about not
unrealistic attitude
Hence,
relatively
leap
rich.
of induction
taken
anything.
think that should be
So
implement
a modem
Robin Hood
it
and take
into consid-
into consideration
theory:
give
it
rich
it to
Take
from the
you can
into a
that
enter
eration.
idea
poor.
change
person
marriage and then have
alimony
apparently
award is
based
position in her life and walk out and
alia,
pay anything is not
expect to
realistic
refusal
upon, inter
John’s
to control
body
the law.
passing
gas.
gas passing
As
ordinary
beings,
function of
human
it should
review of the record reveals no abuse
Our
monthly
severely punished by
so
attor-
not be
in the trial court’s award of
discretion
fees,
ney
alimony
alimony
and we affirm the trial court on
award.
rehabilitative
issue.
a short
was of
Consider
fact,
point
that it
appears
duration.
separate
appel
motion
filed
approximately five
More-
lasted
months.
attorney
accompanied by an item
late
fees
expenses. Radigan,
over,
ized statement of
there
absences within that
were
Malcolm,
(citing
at 487
Malcolm v.
window.
fac
“The
Apparently
trial court also based its
party
whether one
tors used
determine
criteria, namely
opinion upon
improper
attorney
required
pay
fees for
should be
single
is a
mother and
that “the defendant
party
appeal
in a divorce
include
the other
plaintiff has no other ties.
I think
party,
each
their
‘the
owned
taken
Five
should be
into consideration.”
assets,
incomes,
liquidity of
relative
*7
earlier,
social
ex-
months
the same
condition
party unreasonably in
either
and whether
”
i.e.,
isted,
single
she
mother before
spent
the time
on the case.’ Cau
creased
791,
ghron
Caughron,
Thus,
794 marriage.
appears
v.
a situa-
that such
Storm,
v.
400
(quoting Storm
Ryken
be
[John’s]
tion “cannot
laid at
door.”
457,
pre
458
We are
N.W.2d
(S.D.1989).
300,
Ryken, v.
N.W.2d
$2,321.40.
sented with
statement
However, it was.
in
significantly
liquid
and
has
more
assets
appears to be no evidence of Connie
There
Connie;
this
than
and our review of
come
having
her
been unable
enhance
ever
unreasonably
convinces us that
record
during
marriage
short
nor
working skills
this
spent
on this case. We
increased
forego any opportunities
improve
she
did
of the entire amount
award Connie one-half
v.
attorney fees
is
appellate
herein.
She
self-sufficient. See Johnson
ment.
(S.D.1991);
Johnson,
156,
N.W.2d
MILLER,
SABERS, J.,
C.J., and
concur.
(S.D.
Baltzer,
before she subse- Furthermore,
quent thereto. another factual
assumption, without foundation fact in implications is that “were there
that John has homosexual tendencies.” Ac-
cording majority opinion, text of the Dakota, STATE of South Plaintiff not one fact establish there is this and Appellee, nothing Findings by there is of Fact the trial such a base statement JONES, Appellant. Jason Defendant and upon. An intuition a fact. is not by retaliation, passing says Gas John for PEOPLE the State South Intentional, says Connie. Connie. “A con- J.J., Dakota in INTERESTS thing,” says. testimony, trolled Such Child, Concerning Minor D.C. thereon, majority opinion’s and the reliance Nos. collegiate caused me to browse a book University Gideon E. Nelson of the of South Supreme Court of South Dakota. Florida, Biological Principles with Human (John Argued March Sons, Perspectives, Wiley 3-11 & Inc. *8 1980). page Noted 7 is dissertation on Sept. Decided biological knowledge
how new is attained.
Thereat, expressed scientists, by efforts, particularly
research spe- areas of them,
cial significant interest make con- by challenging existing theory.
tribution an beginning
“The step design sig- crucial is to investigation questions
nificant to an- are, questions according
swer.” These treatise, “hypoth- stated in the form of a assumed, writer, by
esis.” It is that the
intentional, theory, legal retaliation used as majority opinion,
rationale herein is in biological hypothesis.
the form of a “Hy- is,
pothesis, unproven conclusion that