Judith L. TEMPLE, Plаintiff and Appellee, v. Douglas L. TEMPLE, Defendant and Appellant.
Nos. 14293, 14310.
Supreme Court of South Dakota.
March 20, 1985.
365 N.W.2d 561
Considered on Briefs March 23, 1984.
In construing § 31 of the Act, several courts have taken the view that a court acting as a responding court in a URESA proceeding is not prevented from entering a child support order different from that previously ordered, on the basis that such an award is effective prospectively only, and thus the court is not nullifying or superseding the prior order within the meaning of the provision.... In such cases, the courts have reasoned that proceedings under the Act are de novo, in that the responding court has the authority to make an independent determination regarding the duty of support based on presently existing conditions, that the remedies under the Act are in addition to and not in substitution for any other remedies, and that the Act contemplates that more than one order of support may be outstanding at any given time for the same obligation. (Footnotes omitted.)
Hypothetically, I am not suggesting that our sister State of Minnesota can change the terms of a support decree issued by a court in the State of New York. A trial judge, acting under URESA, has a right to breathe practicality and equity into the situation which confronts him in the courtroom. A URESA hearing judge should be permitted to keep an open mind in the hearing; otherwise, there is no ring of reality to the economic facts brought before him. He has the right and duty to carefully listen to and deliberate upon evidence submitted tо him. Then, his obligation is to set a just amount of support considering the needs of the children and the absent parent‘s ability to pay. See Olson v. Olson, 534 S.W.2d 526 (Mo.App.1976).
Ronald W. Banks of Banks & Johnson, Rapid City, for defendant and appellant; Ann C. Jones of Banks & Johnson, Rapid City, on brief.
Douglas L. Temple (Douglas), the defendant in the underlying divorce action, appeals from the portion of the trial court‘s divorce decree which awarded the plaintiff, Judith L. Temple (Judith), alimony and attorney fees and from the property division, particularly the portion which included twenty-five percent of certain Pitchfork Ranch assets and improvements to a house owned by Douglas’ mother, Georgiana Temple (Georgiana), in the marital estate. Judith filed a notice of review based on her contention that one-half, rather than one-fourth, of the ranch assets should have been included in the marital estate. We affirm.
Douglas and Judith had very few assets when they married in 1959 at approximately ages 18 and 16 respectively. In 1961, Douglas inherited $13,515, including a one-half interest in 480 acres of deeded land from his father, Allen Temple (Allen). Georgiana acquired sole ownership of all land and property held jointly with her husband, Allen, and approximately $277,295 in land, equipment, livestock, and cash through inheritance when he died. The trial court found that these assets, along with assets she owned individually before Allen‘s death, were used for the operation and expansion of the ranch and were generally considered ranch assets at the time of the trial.
From the beginning of the marriage in 1959 until 1972, Douglas worked full-time on his family‘s ranch. He was paid $125 per month and was permitted to raise his own cattle herd of approximately sixty cows on the ranch. During this time, Douglas apparently covered his and his family‘s pеrsonal expenses with additional draws from the operation. In 1972 Douglas and Georgiana reached an agreement under which he was to receive a one-fourth interest in the profits generated by the ranch in exchange for his services as Ranch Manager. Since 1972, Douglas has substantially increased the Pitchfork Ranch profits which, throughout Douglas’ tenure at the ranch, have been plowed back into the operation for the accumulation of ranch assets. Capital generated by the ranch was primarily used to purchase land which was titled to Douglas and Georgiana in joint tenancy.
The trial court found that Douglas was able to accumulate the assets and benefits that constitute the Pitchfork Ranch operation and Douglas and Judith‘s marital estate because of the business relationship between Douglas and Georgiana. Georgiana drew approximately $6,000 per year from the ranch operation to cover her personal expenses. Although the amount Douglas withdrew for his family‘s expenses was somewhat greater, evidence and testimony was presented which indicated that the parties lived moderately. The trial court specifically found that remaining ranch profits were used to acquire land and other property and to pay other costs of expansion.
The trial court also found that under the agreement between Douglas and Georgiana, alloting Douglas one-fourth of the ranch operation profits, Douglas was intended to receive a one-fourth interest in the value generated to the ranch.1 As a result of this finding, twenty-five percent of Pitchfork Ranch assets the trial court found to have been acquired with profits from the ranch operation were included in the marital estate. The total fair market value of the ranch assets acquired in this manner was $1,292,477 at the time of trial. Total ranch liabilities at that time were $16,000.
The trial court found that as a result of Douglas’ service as Ranch Manager under his 1972 agreement with Georgiana, he had an interest in twenty-five percent of the ranch assets, reduced by twenty-five percent of ranch liabilities. The trial court apparently determined Douglas’ interest in Pitchfork Ranch under the laws governing partnership and decided that Judith‘s argument, that the law of joint tenancy gov-
The trial court worked out an intricate plan in оrder to protect Pitchfork Ranch as an ongoing enterprise and ruled that Douglas should pay Judith the dollar value of a proportionate amount of the net marital estate, which included Douglas’ share of the ranch assets. The trial court awarded Judith specific assets valued at $16,194 and a cash award of $310,000 as her share of the marital estate.2 Douglas was awarded the land, the leases and mineral interests, the livestock and equipment, certain personal property and bank accounts, and all of the parties’ liabilities. Judith was also awarded $500 per month alimony and Douglas was ordered to pay her attorney fees.
Douglas has raised four issues in his appeal: (1) Whether the trial court was inconsistent and erroneous when it initially found that Douglas had agreed to accept twenty-five percent of the ranch profits, and then included twenty-five percent of the ranch assets in the marital estate? (2) Whether the trial court erred when it included improvements to the parties’ residence, located on Georgiana‘s land, in the marital estate and, thereby, among the assets subject to division? (3) Whether the trial court abused its discretion when it awarded Judith alimony? (4) Whether the trial court abused its discretion when it ordered Douglas to pay Judith‘s attorney fees?
The rationale behind the property division plan and the alimony award is set out in the trial court‘s Findings of Fact and Conclusions of Law. This court reviews a trial court‘s findings of fact under the “clearly erroneous” standard and overturns a trial court‘s conclusions of law only when the trial court has erred as a matter of law. Wefel v. Harold J. Westin & Associates, Inc., 329 N.W.2d 624 (S.D.1983); Hartpence v. Youth Forestry Camp, 325 N.W.2d 292 (S.D.1982).
In applying the clearly erroneous standard, this court‘s function is not to decide factual questions de novo. The question is not whether this court would have made the same findings the trial court made, but whether on the entire evidence this court is left with a definite and firm conviction that a mistake has been made. Cunningham v. Yankton Clinic, P.A., 262 N.W.2d 508 (S.D.1978); In Re Estate of Hobelsberger, 85 S.D. 282, 181 N.W.2d 455 (1970). The trial court‘s findings of fact are presumptively correct and the burden is upon appellant to show error. Hilde v. Flood, 81 S.D. 25, 130 N.W.2d 100 (1964).
With respect to property divisions in divorce actions, the trial court has broad discretion and its judgment will not be set aside unless it clearly appears that the trial court abused its discretion. Prentice v. Prentice, 322 N.W.2d 880 (S.D.1982); Laird v. Laird, 322 N.W.2d 254 (S.D.1982); Palmer v. Palmer, 316 N.W.2d 631 (S.D.1982). This court‘s review is limited to a determination of whether there was an equitable property division. Krage v. Krage, 329 N.W.2d 878 (S.D.1983).
Douglas argues first that while his 1972 agreement with Georgiana entitled him to twenty-five percent of the ranch profits, the trial court included twenty-five percent of the ranch assets in the marital estate. Douglas also contends that certain livestock and realty improvements which be-
Given the variety and extent of the ranch assets, the informality of the 1972 agreement, and the absence of bookkeeping records, it would have been impossible to precisely designate the ownership of each ranch asset at the time of trial. In his reply brief filed with this court, Douglas cites
A partnership is an associatiоn of two or more persons who carry on a business as co-owners. Fredrickson v. Kluever, 82 S.D. 579, 152 N.W.2d 346 (1967). There is no arbitrary test for determining the existence of a partnership; therefore, each case is governed by its individual facts and the existence of the relationship is a question for the trier of fact, except when the evidence is conclusive. Widdoss v. Donahue, 331 N.W.2d 831 (S.D.1983); Munce v. Munce, 77 S.D. 594, 96 N.W.2d 661 (1959). The existence and scope of a partnership may be evidenced by a written or an oral agreement, or implied by conduct of the parties. Lewis v. Gallemore, 173 Neb. 211, 113 N.W.2d 54 (1962); Gangl v. Gangl, 281 N.W.2d 574 (N.D.1979).
We agree that the Douglas-Georgiana relationship is most properly characterized as a partnership. Douglas and Georgiana obviously considered themselves partners when they worked out the 1972 agreement to share profits.
The trial court‘s inclusion of twenty-five percent of the ranch assets in the marital estate is not inconsistent with its finding that Douglas and his mother agreed that he would share twenty-five percent of the profits. The ranch expansion and the acquisition of the assets resulted directly from the ranch profits and were the fruit of his family‘s labor and sacrifice. Apparently, in this unique and industrious family operation, almost every penny above basic minimal expenses was plowed back into the operation. The only partnership “profits” available for allocation to the partners are in the ranch assets and because funds, assets, and expenses have been intermingled for twenty years, it has become almost impossible to distinguish individual marital property from ranch property.
Title does not control the distribution of property in a divorce action.
The law is clear that a wife‘s performance of typical domestic duties as a housewife and mother constitutes a valuable contribution to the accumulation of property, i.e., farm or ranch property. O‘Connor v. O‘Connor, 307 N.W.2d 132 (S.D.1981); Kittelson v. Kittelson, 272 N.W.2d 86 (S.D.1978). Douglas and Judith were married for twenty-two years and together raised six children. They had very little property when they married and with Georgiana‘s help built a sizeable ranch operation.
In Prentice, supra, this court held that the trial court abused its discretion when it failed to divide farm property as part of the marital estate. The husband in Prentice took over a farm upon which his father had paid half of the purchase price. The parties to the divorce paid off the balance due on the farm from farm proceeds and this court held that the husband‘s interest in the farm should be divided between them as part of the marital estate. The Prentice Court found that the wife helped pay off the balance due on the farm, that together they improved the residence, and that both parties worked to increase the size and value of the farm; consequently, the wife was entitled to a share of her husband‘s interest in the farm operation. Given the expansion and increased value of the ranch in this case, the situation is similar to that presented in Prentice and the substance and result of the Douglas-Georgiana agreement must be considered over its form. Judith is entitled to a share of Douglas’ interest in the ranch.
Douglas also contends that the trial court was clearly erroneous when it included improvements to the parties’ home in the marital estate. The residence is located on real property owned by Georgiana. The trial judge found that the total value of the residence, $10,750, encompassed improvements valued at $10,000. The money for the improvements came from ranch profits and $10,000 was therefore added to the total Pitchfork Ranch assets, one-fourth of which then went into the marital estate.
A divorce court must consider equity and the circumstances of the parties when it divides the marital property.
Under the 1972 agreement, Douglas was to stop paying personal expenses with ranch funds, thus the $10,000 expended for home improvements should actually have been profit for the ranch operation. We agree that Judith is entitled to a share of all profits generated to Pitchfork Ranch, including the $10,000, and she may trace the profits to the improvements and obtain her share of their value. Douglas may not shelter the entire $10,000 under the legal principle that property affixed to realty, including building improvements, becomes the property of the owner of the realty. Cf. 63 Am.Jur.2d § 16, Property Affixed to Realty;
The third issue raised on this appeal is based on Douglas’ contention that the trial court, in light of the $310,000 property award to Judith over twenty years, abused its discretion when it further awarded her $500 per month alimony. We note, as we did in Krage, supra, and Wallahan v. Wallahan, 284 N.W.2d 21 (S.D.1979), that this court will hesitate before modifying judgments in divorce decrees that follow a well-considered pattern of distribution. Krage, supra. The alimony award and the property division will be considered together in determining whether the trial court has abused its discretion. Wallahan, supra.
While
The trial judge specifically found that Douglas had destroyed the marriage. He stated in his Findings of Fact:
That, at all times during the marriage of the parties hereto, defendant has followed a course manifesting a complete lack of affection and concern for the Plaintiff, her happiness and welfare, and the welfare of the marriage union itself; that the Defendant is belligerent and argumentative toward the Plaintiff; and that as a result of such aсts and omissions by the Defendant, as above set out, Defendant has caused Plaintiff grievous mental and physical suffering with the result that the purposes of the marriage union have been destroyed.
The trial court‘s Findings of Fact and Conclusions of Law indicate that the factors listed above for consideration in property divisions and alimony awards, including fault, were considered in the decision to award alimony. The amount of alimony awarded, $500 per month or $6,000 per year, when added to the annual property settlement payment of $11,750, provides Judith an annual income of $17,750. This amount is not exorbitant, nor an abuse of the trial court‘s discretion.
The record is clear that Judith contributed as a homemaker and mother during twenty-two years of marriage, she dropped out of high school as a result of the marriage, all income she earned outside the home went toward the family, and she contributed to the growth of the family ranch operation for twenty-two years.
While it is true that ‘[a]limony will not be awarded in such an amount as would allow a wife capable of work to sit in idleness,’ . . . it is equally true that alimony ‘will [not] be denied merely because she may be able to obtain employment and support herself.’
Wallahan, 284 N.W.2d at 27 (citation omitted) (brackets in original). The trial court properly considered Judith‘s lack of education and the probability that she will not earn above the minimum wage. Considering the evidence as a whole, there was no abuse of discretion in the property division or the alimony award.
In this case the assets, business dealings, and financial information involved were extensive. The record fills a 3’ x 2’ x 1 1/2’ box. Depositions were taken, the case was tried and then appealed to this court. At the circuit court level there were temporary restraining orders, orders to show cause, and several pretrial hearings based upon affidavits and motions. The attorneys furnished itemized statements outlining the time spent on this case.
In making this determination [to award attorney fees], the trial judge should consider the property owned by each party; their relаtive incomes, Jameson v. Jameson, 90 S.D. 179, 239 N.W.2d 5 (1976); whether the wife‘s property is in liquid or fixed assets, Iverson v. Iverson, 90 S.D. 374, 241 N.W.2d 583 (1976); whether the actions of the wife increased unreasonably the time spent on the case, DeWitt v. DeWitt, 86 S.D. 59, 191 N.W.2d 177 (1971); and whether the actions of the husband increased unreasonably the time spent on the case, Rock v. Rock, 89 S.D. 583, 236 N.W.2d 191 (1975).
Considering these factors in relation to this action and to these parties, we find no abuse of discretion in the trial court‘s determination that Douglas should pay Judith‘s attorney fees.
We affirm.
FOSHEIM, C.J., WOLLMAN, J., and DUNN, Retired Justice, concur.
HENDERSON, J., dissents.
WUEST, Circuit Judge, Acting as a Supreme Court Justice, not participating.
HENDERSON, Justice (dissenting).
ATTORNEY‘S FEES
An award of attorney‘s fees in this case is preposterous under the facts and settled law of this state. Judith Temple departed from Douglas Temple with some $30,000 by lifting money from a joint account; she received $75,000 of a $310,000 property award via the decree. It appears that Douglas Temple has far less liquidity than Judith Temple. She is 38 years of age and has a steady job as a dietician‘s aide. She is in excellent health. The children born as issuе of this marriage are adults and not dependent upon her for support. In Gross v. Gross, 355 N.W.2d 4, 9 (S.D.1984) (written by the same author as the majority opinion), this Court stated:
Allowance of attorney fees in a divorce action rests with the sound discretion of the trial court and will not be disturbed on appeal unless that discretion has been abused.
SDCL 15-17-7 ; Jameson [v. Jameson, 90 S.D. 179, 239 N.W.2d 5 (1976)]. The award depends on the parties’ relative worth, income, liquidity, and whether either party unreasonably increased the time spent on the case. Barrett [v. Barrett, 308 N.W.2d 884 (S.D.1981)]; Senger v. Senger, 308 N.W.2d 395 (S.D.1981).
It is obvious from the language of Gross that the liquidity of a party and the parties’ assets, have a great bearing upon an award of attorney‘s fees as it directly reflects upon the ability to pay. Here, with good health, a job, and $105,000, Judith Temple
ALIMONY AWARD
Conceding that the lone cry of dissent from the hinterlands on property award is, like the wind, heard but unseen, and that the award will be affirmed, an alimony award herein is unnecessary. For, surely, with $30,000 in pocket, appropriated from a joint account and unaccounted for, and an award of $310,000 ($75,000 already paid thereunder) payable to Judith Temple in equal annual installments for twenty years at ten percent interest, she shall not want for the necessities of life or become a public charge unless she fritters away her property award. If my arithmetic serves me correctly, as an examplе, the interest on $235,000 for the first year equals an additional $23,500. Interest commenced on March 4, 1983. One would have to be myopic and oblivious to hard-core finance, to not consider this in determining whether alimony should be awarded in the first instance.
This dissenter has sharply departed from the views of his Brothers on this Court on the subject of alimony. See Connelly v. Connelly, 362 N.W.2d 91, 92 (S.D.1985) (Henderson, J., dissenting), and Martin v. Martin, 358 N.W.2d 793, 800 (S.D.1984) (Henderson, J., concurring in part, dissenting in part). As I expressed in Martin, 358 N.W.2d at 803:
In the days of repeated pronouncement and demands for equality and independence of the sexes, it would appear that the State of South Dakota has veered sharply into a column of the liberalization of alimony. Historically, this would appear to be a paradox. (Footnote omitted.)
We see another extension of alimony liberalization, not only in Connelly, but also in the case at hand. We have apparently approached a mental state where we harbor an overly protective attitude toward prayers for and awards of alimony, thereafter approving of same, predicated upon a punishment of the male specie and as a gift for establishing economic stability. This decision, in my opinion, flies in the face of Krage v. Krage, 329 N.W.2d 878 (S.D.1983) (written by the same author as the majority opinion). In several recent writings, I have attempted to uphold the precedent of Krage, not only in dissent but in a majority opinion which I wrote for this Court, namely, Goehry v. Goehry, 354 N.W.2d 192 (S.D.1984). In Goehry, 354 N.W.2d at 194, with emphasis, it is written: “The trial court‘s award of alimony and the division of property are considered together on appeal to determine whether the trial court abused its discretion. Krage v. Krage, 329 N.W.2d 878, 879 (S.D.1983) (emphasis sup-
In Krage, this Court listed an additional consideration for alimony, for we declared: “In addition to the factors considered in making a property division, an alimony award is also based upon the respective financial conditions of the parties after the property division and their standard of living.” 329 N.W.2d at 879.
In Krage, the parties were alsо involved in a ranching operation. The wife in that case received a cash award of $272,000. Here, her award is $310,000 (plus $30,000 taken and unaccounted for).1 In Krage, no award of alimony was made to her because of the substantial property award which she had received and due to the restricted cash flow available in the ranching operation. Upon appeal, this very Court held that the lower court had not abused its discretion in refusing the wife‘s request for alimony. Krage is most applicable to the case before us. Here, we have a ranching operation; also, we likewise have a restricted cash flow by the husband (his income for the past four years reveals a net per year of $22,000 before depreciation and before income tax). In studying this record and the income tax returns, as well as the accompanying exhibits, it appears that Douglas Temple is financially unable to pay the $500 monthly alimony award and to simultaneously defray the substantial property settlement award which was granted below. The lower court and this Court have a duty to consider the respective financial conditions of the parties after the property division. In my opinion, this has not been done. As a student of the law, I cannot square our decision in Krage with the majority decision. If we assume that this 38-year-old woman will be awarded the sum of approximately $35,000 per year in principal and interest, it becomes obvious that an alimony award of $500 per month is unnecessary. In Krage, the “standard of living” was a factor to be considered. The standard of living for this couple was that of a young ranch couple, initially living in a house which had no running water. Their life-style was very hard and crude to begin with; only after the installation of plumbing and running water and the addition of a bathroom, did the parties begin to enjoy a modest life-style. In the first few years of the marriage, the parties did not have electricity. Both parties worked, Douglas Temple as a ranch hand, and Judith Temple as a mother raising children. The home in which they lived increased in value by $10,000 in improvements; the latter is another aspect of this appeal, which I shall not address in detail, but it all demonstrates that the standard of living for this young couple was very modest. There was no entertaining and apparently one vacation taken during the entire marriage. From sunup to sundown, it was raising children, wrangling cattle, and living the hard but rewarding life of a young ranching couple under the skies of Western South Dakota. Were it not for this extremely handsome property award, I could agree to an alimony award which would permit Judith Temple some dignity. However, when it appears that she will be the recipient of cash payments of some $35,000 per year, and given the entire circumstances of this case, I cannot subscribe to an additional $500 per month alimony award. Therefore, under the dictates of Krage, and as later espoused in Goehry, I maintain that there has been an abuse of discretion. The trial court‘s discretion is a broad one but it is not so broad that it is uncontrolled. That is why we have appellate courts. It is axiomatic that the discretion exercised must be soundly and substantially based upon the evidence. Owen v. Owen, 351 N.W.2d 139 (S.D.1984). In Connelly, 362 N.W.2d at 93, I pointed out where the power was given to the trial courts of this state to grant alimony, namely,
PROPERTY AWARD BASED ON INCONSISTENT FINDINGS
A mistake of monumental miscalculation has been committed by the lower court in property award. The majority opinion attempts to gloss it over by apparently taking the position that it is “almost impossible to distinguish individual marital property from ranch property.” This latter statement belies the exhibits on file in this case which were received in evidence and not objected to by Judith Temple. To understand this monumental miscalculation in law, it is necessary to appreciate some rather basic law concerning findings of fact and conclusions of law.
The standard and usual type of situation which confronts us at the appellate level is a determination of whether the trial court‘s findings of fact and conclusions of law are “clearly erroneous.” Then, this Court invariably cites the rule announced in In Re Hobelsberger, 85 S.D. 282, 181 N.W.2d 455 (1970). In this case, we have a different wrinkle and we must perceive some basic principles where there exists an inconsistency in findings of fact entered by a trial court. In this case, there can be no question that contradictory and inconsistent findings of fact were entered by the trial court which has precipitated a profound error which favors Judith Temple to such extent that the property award is sublime to her, rather than reasonable.
A reversal is necessitated when a judgment‘s validity and support is based оn a particular finding which is contradicted by another finding on the same essential matter. Balding v. Atchison, Topeka & Sante Fe, 225 Cal.App.2d 254, 37 Cal.Rptr. 215 (1964); Schaefer v. Berinstein, 180 Cal.App.2d 107, 4 Cal.Rptr. 236 (1960); American Nat‘l Bank of San Francisco v. Donnellan, 170 Cal. 9, 148 P. 188 (1915); 76 Am.Jur.2d Trial § 1260 (1975). “A judgment which rests on some particular finding for its validity and support may not be upheld where such finding is contradicted by another finding treating of the same essential matter.” 76 Am.Jur.2d Trial § 1260, at 212 (1975). “It is also established, however, that when findings of fact by a trial court are either so inconsistent or so confusing, vague or indefinite that this court cannot determine the facts that the trial court intended to find, such findings are insufficient to support a judgment.” Hawkins v. Teeples & Thatcher, Inc., 267 Or. 151, 156-57, 515 P.2d 927, 931 (1973). A conclusion of law is like a house. Without a solid foundation, it tilts and will ultimately collapse. Findings of fact are the foundation for conclusions of law. When they are inconsistent and contradictory, the conclusion of law must necessarily be faulty. Now let us see what the trial court did here. The trial court found that Douglas Temple and his mother had an agreement whereby Douglas Temple was to receive 25% of the profits from the Pitchfork Ranch after 1972 which is totally inconsistent with the trial court‘s conclusion that he was to receive 25% of all of the assets of the Pitchfork Ranch. Finding of Fact 10 stated:
That in the early 1970‘s, Defendant and his mother reached an agreement whereby, for his services on the Pitchfork, Defendant would receive one-fourth
of the profits from Pitchfork operations and that Defendant was therefore to receive one-fourth interest in the value generated to the Pitchfork; that, during the course of time that followed, Defendant contributed substantially to the enhancement of Pitchfork assets and profits were plowed back into the accumulation of assets.
Douglas Temple does not challenge the accuracy of this finding, and in reading the record, I cannot see where it is repudiated by Judith Temple. The trial court proceeded to enter Finding of Fact 12 and set forth each and every asset of the Pitchfork Ranch, without any consideration of the source of these assеts or their acquisition. Then, relying upon Finding of Fact 12, the court divided all of the property of the Pitchfork Ranch by virtue of the division of property set forth at Conclusion of Law 3. Moreover, Finding of Fact 15 is in direct conflict with Finding of Fact 10, for it holds that Douglas Temple has a 25% interest in all assets of the Pitchfork Ranch operations:
In the foregoing facts and circumstances above found, the Court further finds that the Defendant has an ownership of twenty-five percent (25%) of all assets in the Pitchfork Ranch operations, reduced by twenty-five percent (25%) of Pitchfork liabilities, all as generally found in Findings [12] and [13], which amount is to be added to the net value of the net marital estate as found in Finding [14].
There is no doubt that the trial court could adjudicate that Judith Temple was entitled to a percentage of a one-fourth interest of the profits from the Pitchfork operations; there is no doubt that Douglas Temple was entitled to receive a onе-fourth interest, from and after the early 1970‘s, of the value generated to the Pitchfork Ranch by those profits; and there is no question that these profits were plowed back into the accumulation of assets which contributed to the Pitchfork Ranch. Douglas Temple was entitled to 25% of the assets that 25% of the profits triggered. But to permit a sharing by Douglas Temple and Judith Temple to 100% of the assets of the Pitchfork Ranch is wrong. As I earlier expressed, assets before and after the 1972 agreement between mother and son, were broken down and put into this record as exhibits. Judith Temple is certainly entitled to a share of that 25%, but it must be limited to 25% of the profits and 25% of the assets that those profits created from and after 1972. Testimony all centered at the year of 1972 for the agreement between mother and son. As it now stands, the trial court included everything, that is to say, all land, livestock, machinery, buildings, vehicles, trailers, brands, and checking account of the Pitchfork Ranch.
Allen Temple, father of Douglas Temple, died in November 1961. His estate was probated in 1963. Nearly all of the property that Allen Temple owned when he passed on was in joint tenancy with his wife, Georgiana. This is reflected by Exhibit A in this file which also includes a final decree and the estate tax returns. All machinery, cash, and livestock passed directly to the widow outside of the estate. It was a handsome estate (example: $122,000 cash on deposit), and as reflected, there was a total joint tenancy ownership of $259,710 in assets. Douglas Temple and his mother each received $13,515 from the father‘s estate proper. The joint tenancy property included assets of the Pitchfork Ranch. At the conclusion of the estate proceedings, Douglas Temple‘s mother, the widow, owned 95% of all assets previously owned by her and her husband. Douglas Temple began to receive a salary in May 1960 of $125 per month and was allowed additional benefits, which included building up a small cattle herd of his own. With his inheritance in 1963 of $13,515, he began to build up his own estate. But it was not until 1972 that any agreement was struck wherein and whereby he was to receive any profits from the Pitchfork Ranch per se. In addition to the above, the mother of Douglas Temple owned land that she had inherited from her family in her own right and acquired another ranch called the “Cook Place.” Douglas Temple, at that
It is true that Pitchfork Ranch profits were used to purchase additional land in the name of Douglas Temple and his mother from and after 1972. Per the agreement and as established by Finding of Fact 10, Douglas Temple is entitled to 25% of the profits from the Pitchfork Ranch operations, including 25% of the land value generated by purchase from the Pitchfork Ranch profits.
It appears that Georgiana Temple drew out some $6,000 per year for her own individual living expenses from the Pitchfork Ranch operation. This was considerably less than Douglas and Judith Temple drew in various benefits and cash. Dоuglas Temple was not only withdrawing all of his personal expenses, but he was individually building up his private operations, outside of the Pitchfork Ranch, and these grew considerably, in ranch assets such as livestock, cash, machinery, vehicles, and equipment. The reader must understand that Judith Temple was also awarded a share of these holdings and there appears to be no objection to such an award/sharing concept. Further, I do not question for a moment that the trial court could act on those individually owned entities, whether cattle or land, which Douglas Temple acquired. To put it another way, the defendant acquired substantial personal assets during the course of his marriage and the inclusion of these assets to be distributed is legitimate.
I would reverse because Finding of Fact 12 totally ignores the mother‘s lifetime capital contribution to the limited partnership; I would reverse because the division of property includes all of the assets of the Pitchfork Ranch, regardless of when the assets were acquired; I would reverse and remand with instructions that the trial court enter a finding setting forth the Pitchfork Ranch profits and assets acquired after 1972, in accordance with Finding of Fact 10, thereby requiring the trial court to modify the property award accordingly; I would reverse because the findings of fact are glaringly inconsistent within themselves and the ultimate conclusions of law. A careful reading of Finding of Faсt 10 and Finding of Fact 15, set forth in extenso above, readily reveals an error of great magnitude in the lower court.
We have before us another divorce case which is of deep concern to these parties. This case, with the hundreds of others that pour into this Court, create the heaviest appellate workload in this Court‘s history.2 This wordy dissent perhaps can be attacked for its undue consideration of the case at hand. I would, however, like to believe that the Bar of this state realize that, notwithstanding the staggering increase in the number of appeals, these cases shall receive careful review. In this vein, I close with these words:
A cause for deep concern about appellate justice is the run-away inflation in the volume of appeals. Most appellate courts are confronted with staggering increases in the number of persons seeking their attention. This creates powerful pressures to adopt assembly line methods of work; such methods undermine basic values, destroying the qualities of deliberateness and personal concern that are essential to appellate justice.
Professors Carrington, Meador, and Rosenberg, Justice on Appeal, preface at 5 (West Pub.Co.1976).