467 N.W.2d 762 (S.D. 1991), 17000, Fox v. Fox

Docket Nº:17000.
Citation:467 N.W.2d 762
Opinion Judge:The opinion of the court was delivered by: Johns
Party Name:Felix A. FOX, Plaintiff and Appellant, v. Delores M. FOX, Defendant and Appellee.
Attorney:John P. Abbott, Brandon, South Dakota, Attorney for plaintiff and appellant.
Case Date:March 27, 1991
Court:Supreme Court of South Dakota
 
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Page 762

467 N.W.2d 762 (S.D. 1991)

Felix A. FOX, Plaintiff and Appellant,

v.

Delores M. FOX, Defendant and Appellee.

No. 17000.

Supreme Court of South Dakota.

March 27, 1991

Page 763

Considered on Briefs Oct. 25, 1990.

Page 764

John P. Abbott, Brandon, for plaintiff and appellant.

Russell D. Kading, Sioux Falls, for defendant and appellee.

JOHNS, Circuit Judge.

STATEMENT OF THE CASE AND ISSUES

Felix A. Fox (husband) appeals from a judgment and decree of divorce entered on November 22, 1989, granting Delores M. Fox (wife) a divorce on the ground of extreme cruelty. Husband also appeals from an order and judgment dated November 17, 1989, where the trial court, after a show cause hearing, found husband in contempt and entered a money judgment for interim child support arrearages, interim spousal support arrearages, and attorney's fees and costs. We affirm, in part, reverse, in part, and remand.

Husband asserts that the trial court committed the following reversible error:

1. That the trial court abused its discretion in not awarding him a decree of divorce on the ground of extreme cruelty;

2. That the trial court abused its discretion in its division of the parties' marital property and its allocation of their marital debts;

3. That the trial court abused its discretion when it entered its order and judgment of November 17, 1989, awarding wife a judgment for interim spousal support arrearages;

4. That the trial court abused its discretion when it entered its judgment and decree of divorce of November 22, 1989, awarding wife permanent alimony;

5. That the trial court abused its discretion when it awarded wife her attorney's fees and costs in the order and judgment of November 17, 1989; and

6. That the trial court abused its discretion when it awarded wife her attorney's fees and costs in the judgment and decree of divorce of November 22, 1989.

SCOPE OF REVIEW

Wife properly served husband with proposed findings of fact and conclusions of law for each judgment. Husband failed to file his own proposed findings and conclusions and failed to file any objections to those wife proposed. The trial court entered the findings and conclusions wife proposed. Husband now stands in the position of having failed to question the sufficiency of the evidence before the trial court. It is a long-standing rule in this state that such a failure limits this court's scope of review to "whether the findings support the conclusions of law and judgment." Application of Veith, 261 N.W.2d 424, 425 (S.D.1978). In such a case, the facts found by the court are presumed to be conclusive and this court will only consider whether the facts will support the legal conclusions. Massey Ferguson Credit Corp. v. Bice, 450 N.W.2d 435 (S.D.1990).

FACTS

The parties were married on July 30, 1967. At the time of trial, husband was forty-three (43) years old and wife was forty-one (41). They had four children who had reached the age of majority at the time of the entry of the judgment and decree.

The parties separated in December 1987. Husband moved to California and took a job with McDonnell Douglas Aircraft Company. Wife continued to reside at the couple's residence in Sioux Falls, South Dakota, and continued her employment at Sears.

The trial court found that during the marriage husband inflicted physical and mental anguish toward wife and that wife

Page 765

was therefore entitled to a divorce from husband on the ground of extreme cruelty. The trial court did not, however, make any findings concerning fault on the part of wife.

The trial court found that the parties acquired certain personal property including household goods, automobiles, and their respective retirement, pension, and profit-sharing plans. The trial court did not assign any valuations to these assets since it accepted the parties' agreement that each of them would receive the property in their respective possession.

The trial court also found that the parties owned a funeral plot of a value of $500.00 and the Sioux Falls residence which had a value of $57,498.00 and against which there were two outstanding mortgages totaling $39,707.00, leaving an equity of $17,791.00. Although the trial court did not assign any value to the parties' personal assets, it did find that the parties did not own any liquid assets. The trial court awarded wife the funeral plot and the home and held that she was responsible for one-half of the mortgages ($19,853.50) and that husband was responsible for the other one-half. Other specific marital debts of the parties totalled $4,828.00; the trial court allocated $2,713.50 to husband and $2,114.50 to wife. Other miscellaneous debts were divided equally and the parties were individually responsible for any debts incurred after the date of their separation.

The trial court found that husband was in good health; that he held a college degree in Business Administration, which was obtained during the marriage; that he holds a masters license as an electrician; that his employment gives him a net monthly income of $3,267.00; and, that in addition to his salaried income, he receives a Veteran's Administration benefit of $500.00 a month.

The trial court found that wife was also in good health, except for a permanent injury to her jaw that...

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