394 N.W.2d 309 (S.D. 1986), 14980, Tate v. Tate

Docket Nº:14980.
Citation:394 N.W.2d 309
Opinion Judge:The opinion of the court was delivered by: Sabers
Party Name:Willie Ruth TATE, Plaintiff and Appellee, v. J.B. TATE, Sr., Defendant and Appellant.
Attorney:Richard A. Johnson of Pruitt, Matthews & Muilenburg, Attorneys for defendant and appellant.
Case Date:October 08, 1986
Court:Supreme Court of South Dakota
 
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Page 309

394 N.W.2d 309 (S.D. 1986)

Willie Ruth TATE, Plaintiff and Appellee,

v.

J.B. TATE, Sr., Defendant and Appellant.

No. 14980.

Supreme Court of South Dakota.

October 8, 1986

Considered on Briefs March 19, 1986.

Page 310

Richard A. Johnson, of Pruitt, Matthews & Muilenburg, Sioux Falls, for defendant and appellant.

Catherine M. McNamara, of East River Legal Services, Sioux Falls, for plaintiff and appellee.

SABERS, Justice.

This is an appeal from a judgment of the trial court granting Willie Ruth Tate a divorce from J.B. Tate, Sr. We affirm.

  1. FACTS

    Willie Ruth and J.B. were married on July 12, 1965. Three children were born of the marriage, all of whom were minors at the time of the divorce. Willie Ruth filed for a divorce in May of 1984. J.B. counterclaimed and sought a divorce from Willie Ruth. The trial court concluded that Willie Ruth was entitled to a divorce on the grounds of extreme cruelty. The court ordered J.B. to pay Willie Ruth $200 per month in alimony until such time as she remarries. The court also ordered a division of the property, awarding Willie Ruth certain items of personal property and a cash settlement in the amount of $4,000, payable in four annual installments. The court awarded J.B. the personal property in his possession, a 1983 automobile, a house in St. Louis, and the $371 in his checking account.

  2. REFUSAL TO GRANT A DIVORCE TO J.B.

    The first issue raised on appeal by J.B. is whether the trial court erred in not granting him a divorce on the grounds of extreme cruelty. The trial court specifically found that J.B. treated Willie Ruth "with extreme cruelty within the meaning of SDCL 25-4-2(2) and SDCL 25-4-4," but the court entered no findings concerning cruelty on the part of Willie Ruth. J.B. argues that the record in this case sets out more than sufficient grounds for the award of a divorce to him.

    On the review of the trial court's findings in a divorce case, due regard must be given to the opportunity of the trial court to judge the credibility of the witnesses and to weigh their testimony. The court's findings will not be set aside unless they are clearly erroneous. Hanks v. Hanks, 296 N.W.2d 523 (S.D.1980). SDCL 15-6-52(a).

    During the trial in this case, both parties presented testimony concerning the cruelty of the other party. Willie Ruth testified that within a year of the divorce, J.B. hit her in the mouth and shoulder and knocked her down on a...

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