Stubbe v. Stubbe, 14753

• Decision Date: 13 September 1985
• Docket Number: No. 14753,14753
• Parties: M. June STUBBE, Plaintiff and Appellee, v. Roger B. STUBBE, Defendant and Appellant. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 807

376 N.W.2d 807

M. June STUBBE, Plaintiff and Appellee, v. Roger B. STUBBE, Defendant and Appellant.

No. 14753.

Supreme Court of South Dakota.

Considered on Briefs Sept. 13, 1985.

Decided Nov. 20, 1985.

David Alan Palmer, of Strange & Palmer, Sioux Falls, for plaintiff and appellee.

Timothy J. Nimick and Barbara Jo Anderson, of Woods, Fuller, Shultz & Smith, Sioux Falls, for defendant and appellant.

FOSHEIM, Chief Justice.

In this divorce action, Roger B. Stubbe (husband) appeals from the decision and judgment of the trial court. We affirm.

The parties were married on September 1, 1957. At the time of trial M. June Stubbe (wife) was forty-seven years of age and husband was fifty-four. Three children were born of this marriage. At the time of trial the oldest child, a daughter, was of legal age, Russell was seventeen and Craig was nine. Craig is now the only minor.

Throughout the marriage husband has been employed by Western Electric Company, Inc. Following their marriage, the couple resided in Rapid City. They moved to Sioux Falls, then to Pierre, back to Sioux Falls and again to Rapid City. In 1963, they moved to St. Charles, Missouri, then back to Sioux Falls in October of 1964, where they have since resided.

Wife worked as a registered nurse at local hospitals, either full-time or part-time when the family lived in Sioux Falls and Rapid City. Wife suffered miscarriages in 1960 and in 1961, and complications associated with a pregnancy in 1966 prevented her from being employed until 1968. From then until 1970, she worked part-time at McKennan Hospital. She did not work outside of the home from 1970 through 1980. Wife completed a refresher course in nursing during the summer of 1980 and commenced her present employment at McKennan Hospital in December of that year.

Wife admittedly was wanting in some home making areas. Nevertheless, both parties attribute the basic cause of their marital difficulties to husband's alcohol abuse. ¹

Both husband and wife have health problems. The trial court concluded, however, that husband's high blood pressure and diabetes did not physically preclude him from full-time employment at Western Electric. In contrast, the trial court concluded that wife's shoulder surgery in 1983 and arthritis has resulted in limited lifting ability. These conditions interfere with her employment as a nurse and, the trial court concluded, she is physically unable to maintain full-time employment as a nurse.

Husband generally works a forty hour week and receives $14.51 per hour. His gross income in 1983 was $31,859.33. Wife receives a typical bi-weekly net income of $505.35 for her part-time employment. Her gross income in 1983 was approximately $13,000.

According to the record, wife relocated herself, family and career on numerous occasions to accommodate husband's continued employment with Western Electric. During the times that wife was employed, her salary contributed to the support of the family and while unemployed, she devoted her energies as a homemaker and mother.

The first issue raised by husband on appeal is whether the trial court abused its discretion in awarding wife one hundred dollars per month alimony for the remainder of her life or until she remarries. Husband contends that this award was an abuse of discretion because wife is capable of working full-time.

We address this issue by revisiting Guindon v. Guindon, 256 N.W.2d 894 (S.D.1977):

The amount and length of alimony payments is ... left to the discretion of the trial court. SDCL 25-4-41. The factors for consideration in exercising that discretion are similar to those used in the property division, i.e., (1) the length of the marriage; (2) the respective earning capacity; (3) the respective financial condition after the property division; (4) their respective age, health and physical condition; (5) their station in life for social standing; and (6) the relative fault of the parties in the termination of the marriage.

Id. at 898 (citations omitted). In Hanks v. Hanks, 296 N.W.2d 523 (S.D.1980), and Martin v. Martin, 358 N.W.2d 793 (S.D.1984), we adhered to the factors stated in Guindon and noted that, although no longer a factor in making a division of property, ² the relative fault of the parties continues to be a consideration in awarding alimony. See also Booth v. Booth, 354 N.W.2d 924 (S.D.1984).

Husband emphasizes our statement in Guindon that, "Alimony will not be awarded in such an amount as would allow a wife capable of work to sit in idleness...." Guindon, 256 N.W.2d at 898. It is noteworthy, however, that the decision in Guindon continued, "... nor will it be denied merely because she may be able to obtain employment and support herself." Id. Therefore, we conclude that, upon considering all the evidence, the alimony award was not an abuse of discretion.

The husband next argues that the property division was inequitable because the trial court made no determination of the present value of his pension plan. He also argues that the pension fund should not be included as a marital asset and divided.

We note that under the court's division of the marital property, wife was awarded approximately $5,252.00 in value and husband was awarded approximately $19,628.00 in value. The trial court allowed wife use of the family home while the youngest child remains a minor. The house is then to be sold and the sale proceeds are to be disbursed 60 percent to wife and 40 percent to husband. In the interim, wife is responsible for the cost of real property taxes, insurance and repairs under $100.00 per month on the home. Major repair expenses are to be shared by husband and wife. The trial court awarded each party one-half of the A.T. & T. stock, and wife was awarded one-half of husband's pension plan with Western Electric Company, less alimony.

The trial court is entitled to make an equitable division of all marital assets belonging to either spouse. SDCL 25-4-44. A retirement plan has been recognized as a divisible marital asset since it represents consideration in lieu of a higher present salary. Hansen v. Hansen, 273 N.W.2d 749 (S.D.1979). Here, husband's pension contributions would have been otherwise available to the family as disposable income during the marriage. Boyd v. Boyd, 116 Mich.App. 774, 323 N.W.2d 553 (1982). Further, this pension plan is vested in the sense that it cannot be unilaterally terminated by his employer, though actual receipt of the benefits is contingent upon his survival and no benefits will accrue to the estate prior to retirement. Expert testimony in the record revealed that had the husband retired at the time of trial, he would have received monthly pension payments of about $785.00 during a life expectancy of 23 years and 10 months.

We cannot conclude that the trial court erred in considering the pension plan or in the total division of the marital assets. Wife made substantial contributions to the marriage in relocating herself and the children on numerous occasions to enhance husband's employment. She forfeited her own pension possibilities due to intermittent employment as a nurse made necessary by the demands of motherhood. It is true that the 50-50 split of the pension plan does not recognize husband's post-divorce contributions to the plan. This involves the uncertainty as to when husband will retire. When he does retire, husband can then petition the court for adjustment of any inequities. A reduction of wife's share of the pension plan benefits or alimony payments may then be indicated. In this regard, we take note that this manner of pension plan division comports in some respects with the Social Security provision which entitles certain divorced spouses to collect one-half of the former spouse's primary insurance benefits. See, 42 U.S.C. Secs. 402, 405, 416, 1302 (1973 and Supp. June, 1985); 20 C.F.R. Sec. 404.331 et seq.

We award wife attorney fees in the amount of $1,000.00 based on her affidavit itemizing appeal expenses.

The judgment is affirmed.

MORGAN, J., and WUEST and HERTZ, Acting Justices, concur.

HENDERSON, J., dissents.

HENDERSON, Justice (dissenting).

To understand the academic depth of my research in these alimony and property division cases, so as to appreciate my further dissent in this case, I refer the reader to Temple v. Temple, 365 N.W.2d 561, 569 (S.D.1985); Connelly v. Connelly, 362 N.W.2d 91, 92 (S.D.1985); and Martin v. Martin, 358 N.W.2d 793, 800 (S.D.1984). This author has sharply departed from the views of his Brothers on this Court on the subject of alimony. As I have expressed before, there has been repeated pronouncement and demands for the equality and independence of the sexes; yet, the demand for alimony seems to have sharpened in South Dakota and this state has veered into a column of the liberalization of alimony. Another strange paradox of this all, is the fact that this state is historically a very poor economic state with the smallest paychecks in the Nation. See State v. Auen, 342 N.W.2d 236, 240 (S.D.1984) (Henderson, Justice, dissenting).

The full facts, as depicted in the settled record herein, do not support an award of alimony and the trial court abused its discretion in awarding the same. Appellant ought not to have to pay alimony. Grant v. Grant, 5 S.D. 17, 57 N.W. 1130 (1894). Under the state law of South Dakota, appellant is no longer head of the house, said statute having been repealed. See Martin, 358 N.W.2d at 803 n. 3. This was one of the principal targets of the women's liberation movement. Before discoursing on why this particular ex-wife is not entitled to alimony, I wish to point out that I am not opposed to rehabilitative alimony where there is a need to rehabilitate a deserving spouse. Booth v. Booth, 354 N.W.2d 924 (S.D.1984) (alimony restricted to 15 months); Goehry v. Goehry, 354 N.W.2d 192 (S.D.1984) (wife unable to work and in poor health). "To me, rehabilitative alimony is an award of a...