440 N.W.2d 300 (S.D. 1989), 16213, Ryken v. Ryken

Docket Nº:16213, 16224.
Citation:440 N.W.2d 300
Opinion Judge:The opinion of the court was delivered by: Henderson
Party Name:Patti Rae RYKEN, Plaintiff and Appellee, v. Larry L. RYKEN, Defendant and Appellant.
Attorney:Arthur L. Rusch of, Bogue, Weeks, Rusch & Billings, Vermillion, South Dakota, Attorneys for plaintiff and appellee.
Case Date:April 26, 1989
Court:Supreme Court of South Dakota
 
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Page 300

440 N.W.2d 300 (S.D. 1989)

Patti Rae RYKEN, Plaintiff and Appellee,

v.

Larry L. RYKEN, Defendant and Appellant.

Nos. 16213, 16224.

Supreme Court of South Dakota.

April 26, 1989

Page 301

Argued Jan. 9, 1989.

Page 302

Arthur L. Rusch of Bogue, Weeks, Rusch & Billings, Vermillion, for plaintiff and appellee.

John E. Burke, Sioux Falls, for defendant and appellant.

HENDERSON, Justice.

PROCEDURAL BACKGROUND

Appellee Patti Rae Ryken (Patti Rae) commenced this divorce action in December 1985 after three and one-half years of marriage to appellant Larry L. Ryken (Larry). Larry also sought divorce, by counterclaim. The circuit court for Yankton County granted divorce to both parties on the grounds of irreconcilable differences, and also granted Patti Rae divorce for extreme cruelty. The trial court divided the parties' property, and awarded Patti Rae both $25,000 in permanent alimony and $625 per month for forty-eight months as rehabilitative alimony. She also was awarded $6,500 in attorney's fees and $4,000 in appraiser's fees. 1 Larry appeals (Appeal No. 16213), alleging that the trial court erred regarding division of property and its awards of rehabilitative alimony, attorney's fees, and appraiser's fees. In turn, Patti Rae argues, through notice of review (Appeal No. 16224), that the trial court's awards of attorney's, accountant's and appraiser's fees were too low.

We reverse the trial court's awards of property, alimony, and fees, holding: 1) that rehabilitative alimony was unjustified on this record; 2) that the trial court's property division was an abuse of discretion; and, 3) that Patti Rae's awards of attorney's, appraiser's, and accountant's fees were inadequate.

FACTS

Patti Rae and Larry met in the Fall of 1981. She had been married twice before. Her first marriage, of twelve years' duration, ended in 1981 and produced three children. Her second marriage, also in 1981, lasted a month. Larry, widowed in October 1981, also had three children, whose acquaintance with Patti Rae's children brought the parties together. They married on June 15, 1982, after Patti Rae signed an antenuptial agreement by which both parties gave up any claim on the personal or real property of the other. This agreement made no provision for Patti Rae's support in any form. It also stated that both owned real property, a patent untruth.

At the time of the marriage, Patti Rae owned only an inexpensive car, her clothing, and personal effects. Her education consisted of one year of college, and her work history was limited to part-time sales positions. Her first husband paid her $300 per month in child support. Larry, on the other hand, was a college graduate and owned, among other things, the Yankton Livestock Company and three-quarters of a partnership in the R & R Cattle Company. The trial transcript contains testimony by Larry which indicated that his net worth, at the start of the marriage, was roughly 2.5 million dollars although, at another point in the transcript, he estimated his net worth to be one million dollars at that time.

Immediately before and during the marriage, the parties spent money lavishly. He bought a diamond necklace, appraised at $24,000, and gave it to her to wear. The couple went out for dinner three nights a week, and traveled extensively. Larry's financial records were unreliable, as evidenced by his claim that a check for $24,090 drawn on a Yankton Livestock account, recorded as an expenditure on "feed for calves" in company records, was actually used to pay an old friend for fifty gold Krugerrand coins. Larry left the running of his household to Patti Rae, who paid the expenses with Larry's money. Her own income was limited to her monthly child support payments, which she used to pay off a $9,000 debt to her father. She did, however, occasionally work without pay for Yankton Livestock, entertain for business

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purposes, and accompany Larry on business trips.

Deterioration set into the marriage. Larry physically and verbally abused Patti Rae, apparently motivated by jealousy. In December 1985, she left him. Curiously, Larry's children initially went with her. After she departed, Larry hired a housekeeper, to whom he paid $175 a week. Prior to her departure, Patti Rae assembled approximately $4,000 to $4,500 in cash at their house. She also took various items of furniture, and a 1985 Cadillac registered to Yankton Livestock, which she used regularly. Larry later alleged that she or her friends made off with his fifty Krugerrands, but this she denied. This divorce proceeding followed.

DECISION

  1. REHABILITATIVE ALIMONY

    The trial court directed Larry to pay $625 in rehabilitative alimony for 48 months, plus 7% interest on unpaid installments. He argues that the award constitutes an abuse of discretion. We agree.

    The factors to be considered in awarding alimony are: 1) The length of the marriage; 2) the respective earning capacity of the parties; 3) their respective...

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