Baltzer v. Baltzer, 15641

• Decision Date: 08 October 1987
• Docket Number: No. 15641,15641
• Citation: 422 N.W.2d 584
• Parties: Donald R. BALTZER, Plaintiff and Appellant, v. Joan C. BALTZER, Defendant and Appellee. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 584

422 N.W.2d 584

Donald R. BALTZER, Plaintiff and Appellant, v. Joan C. BALTZER, Defendant and Appellee.

No. 15641.

Supreme Court of South Dakota.

Considered on Briefs Oct. 8, 1987.

Decided April 13, 1988.

Russell D. Kading of Moore, Rasmussen, Kading & McGreevy, Sioux Falls, for plaintiff and appellant.

Mary Lou Jorgensen Gubbrud of Pruitt, Matthews & Muilenburg, Sioux Falls, for defendant and appellee.

BERNDT, Circuit Judge.

Donald R. Baltzer appeals from a judgment and decree of divorce entered November 25, 1986. We affirm the valuation and division of property and the award of attorney fees but reverse in part on the alimony award.

STATEMENT OF FACTS

Donald and Joan were married January 23, 1976, in Sioux Falls, South Dakota. No children were born of this tumultuous marriage. At the time of trial, Donald was 48 years of age and Joan was 43. With the exception of some minor health problems of Joan's, both parties were in good health.

Donald is an architect, having far greater earning capacity than Joan, who has worked in sales and as a secretary. Donald earns approximately $35,000 a year and has a monthly take-home pay of about $2,000. With her job experience and high school education, Joan is capable of earning $10,000 a year. Donald worked as an architect throughout the course of the marriage, and Joan worked outside the home for seven and one-half years. She also contributed her homemaking skills to the marriage and periodically cared for Donald's daughter from a previous marriage.

Donald brought some assets into the marriage, but the trial court found that both parties contributed to the accumulation of the marital property. The marital assets were valued at $112,605.67, consisting of cash, personal property, shareholder interests, profit sharing accounts, the marital home, and some other miscellaneous property. The trial judge ordered Donald to pay Joan $50,000 as her interest in the marital property. $25,000 would be paid immediately from the profit sharing plan, with the balance payable in installments of $500 per month plus interest at the prime rate until paid in full. Joan was also awarded the furniture and those items in her possession, except for some personal property of Donald's. Donald was awarded the remaining marital property, along with liability for all the marital debts.

The trial court granted each party a divorce on mental cruelty grounds, but because the trial court found Donald's fault to be slightly greater, Joan was awarded alimony in the amount of $600 per month for one year, decreased to $400 per month for nine years, or until Joan died, remarried or cohabited with a man. Donald was also ordered to pay $1,600 of Joan's attorney fees.

On appeal, Donald argues that the trial court improperly computed the value of the marital assets, divided the property inequitably, and erred in awarding alimony and attorney fees to Joan. We will treat each of these issues separately as follows:

I. MARITAL ASSETS WERE PROPERLY VALUED.

Donald argues that the trial judge was clearly erroneous in valuing the Baltzers' property, particularly the marital home. We disagree. "Exactitude is not required of the trial court in the valuation of assets in a dissolution proceeding; it is only necessary that the value arrived at lies within a reasonable range of figures." Goehry v. Goehry, 354 N.W.2d 192, 196 (S.D.1984); Krage v. Krage, 329 N.W.2d 878 (S.D.1983); Hanks v. Hanks, 296 N.W.2d 523, 526 (S.D.1980).

In valuing the assets for purposes of making a property division, the trial court is not required to accept either party's proposed valuation. Hanks, supra. The only time this court will interfere with the valuations as determined by the trial court is when the trial court has made a clearly erroneous valuation finding. Herrboldt v. Herrboldt, 303 N.W.2d 571 (S.D.1981). Absent a stipulation as to the values of assets, the parties "had better be prepared to produce hard evidence as to those values other than their own personal opinions." Hanks, supra at 526.

There was no appraisal of the condominium submitted, thus the trial court was not clearly erroneous in using the purchase price of the property two years ago. Although Donald testified that the condominium had decreased in value, his personal opinion must be weighed with circumspection. The court did not err in rejecting Donald's value absent any appraisal by a disinterested party. Donald does not point out errors as to any of the other marital property. We hold that the values assigned to the property by the trial court are within a plausible range and should not be modified or set aside by this court on review.

II. MARITAL ASSETS AND LIABILITIES WERE EQUITABLY

DISTRIBUTED.

SDCL 25-4-44 provides:

Where a divorce is granted for an offense of either husband or wife, the courts shall in such action have full power to make an equitable division of the property belonging to either or both, whether the title to such property is in the name of the husband or the wife. In making such division of the property the court shall have regard for equity and the circumstances of the parties.

This court has held that the trial court has broad discretion with respect to property division, and its judgment will not be set aside unless it clearly appears that the trial court abused its discretion. Cole v. Cole, 384 N.W.2d 312 (S.D.1986); Temple v. Temple, 365 N.W.2d 561 (S.D.1985). On review we are limited to a determination of whether there was an equitable property division. Factors to be considered in dividing marital property include: duration of the marriage; value of the property; ages of the parties; their health and competency to earn a living; the individual contributions of the parties to the accumulation of the property; and the income producing capacity of the parties' individual assets. Garnos v. Garnos, 376 N.W.2d 571 (S.D.1985); Wallahan v. Wallahan, 284 N.W.2d 21 (S.D.1979). Fault should not be considered. SDCL 25-4-45.1. While these factors are considered, there exists no mathematical formula in making a property division. Martin v. Martin, 358 N.W.2d 793 (S.D.1984).

The trial court found that the marriage lasted 10 years and valued the marital property at $112,605.67. The parties were ages 48 and 43 at the time of trial. Donald has excellent health, while Joan has some minor health problems. Donald earns $35,000 a year plus benefits, while Joan can expect to earn approximately $10,000. She did work outside the home for seven and one-half years, contributing to the marital assets. Her contribution as a wife and stepmother also added to the accumulation of assets. Temple, supra.

Joan was awarded almost half of the marital assets and such assets are liquid. Donald's share of the property has little income producing capacity because it is not liquid, not readily saleable, or has been locked into some investment plan. The record supports the trial court's consideration of the foregoing factors, and we hold that the trial court did not abuse its discretion in dividing the marital assets and liabilities.

III. ALIMONY AWARD BEYOND ONE YEAR WAS AN ABUSE OF

DISCRETION.

The trial court awarded Joan $600 per month alimony for one year, and thereafter $400 per month for an additional nine years, or until her death, remarriage, or cohabitation with a man, whichever occurs first. We hold that the trial court properly awarded $600 per month alimony for one year, but the $400 per month award for the remaining period of nine years, or until her death, remarriage, or cohabitation with a man was an abuse of discretion.

SDCL 25-4-41 allows the trial court to compel one party to make such suitable allowance to the other party for support during the life of that other party or for a shorter period as the court may deem just, having regard to the circumstances of the parties represented. The Supreme Court shall not disturb an award of alimony unless it clearly appears that the trial court abused its discretion. Goehry, supra; Krage, supra. The factors to be considered by the trial court in awarding alimony include the length of marriage, earning capacity of the parties, financial condition after the property division, age, health and physical condition of the parties, parties' station in life or social standing, and fault. Hanks, supra.

In order to determine whether the trial court has abused its discretion, this court reviews the award of alimony and property division together. Booth v. Booth, 354 N.W.2d 924 (S.D.1984). Reviewing the property division and alimony together, Joan could be earning interest on the $25,000 cash settlement of approximately $200 per month; receive $500 per month installments, plus interest, owing on the property settlement; receive $600 per month alimony for one year; and then receive $400 per month until 1996. Joan would also earn income from any employment she obtains. Without such employment Joan would have an income of approximately $1,300 a month for year one; $1,100 per month for the next four years until the property settlement is paid in full; and $600 per month over the remaining five years. We are aware that Joan has incurred personal debts and attorney fees since the onset of this action that she is obligated to pay. Conversely, Donald has a monthly take-home pay of $2,000, and he must first pay $200 a month child support from a previous marriage for three years. He must also pay the $600 alimony award to Joan for one year, then $400 for nine more years. This is in addition to the $500 per month plus interest he is required to pay Joan pursuant to the property division. This leaves Donald with approximately $700 per month disposable income for year one, with $900 monthly the next two years, and $1,100 monthly until the property settlement is discharged. These amounts do not take into account Donald's higher cost of living because of his employment obligation or his assumption of all the marital debts. ...