Fox v. Fox, 17000

Decision Date25 October 1990
Docket NumberNo. 17000,17000
Citation467 N.W.2d 762
PartiesFelix A. FOX, Plaintiff and Appellant, v. Delores M. FOX, Defendant and Appellee. . Considered on Briefs
CourtSouth Dakota Supreme Court

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 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 occurred as a result of being struck by husband; that she has a high school degree; that her net monthly take home pay from her employment is $800.00; and that any future advancement at her job was not expected. The court found that wife worked constantly during the marriage, taking only a few months off when the children were born; that she also raised the family and served as a homemaker; that her monthly living expenses were approximately $1,500.00; and that her age of forty-one years and her lack of formal education were detriments to her improving her station in the work place and in society.

Based on these findings, the trial court found that wife was entitled to permanent alimony in the monthly amount of $700.00 to meet her living expenses. The trial court reasoned that husband was leaving the marriage with a college degree, a new job, and a new lease on life while wife would be very financially strained if no support was received. The trial court further justified the amount of the award by finding that husband would still have "adequate resources" to maintain his cost of living after the alimony payment.

ANALYSIS

The first issue is whether the trial court abused its discretion when it did not award husband a decree of divorce on the ground of extreme cruelty. Husband is not arguing that the trial court erred in awarding a divorce to wife on her counterclaim; rather, he is claiming that he likewise was entitled to a divorce on his complaint.

As stated earlier, husband failed to propose any findings of fact and conclusions of law and also failed to file any objections to those proposed by wife. Since the trial court's findings made no mention of fault on the part of the wife and since our review is limited to determining whether the findings support the conclusions of law and judgment, husband has no ground to complain since he failed to preserve his record. We, therefore, reject husband's first contention.

The second issue is whether the trial court abused its discretion when it awarded the parties' home and funeral plot to wife when that award is considered in connection with the court's allocation of debt. It is a well-settled principle of law in South Dakota that this court will not disturb a division of property and liabilities unless it clearly appears that the trial court abused its discretion. Studt v. Studt, 443 N.W.2d 639 (S.D.1989). This clear abuse of discretion standard likewise appears in our review of awards of permanent alimony and attorney's fees. Studt, supra; Schmidt v. Schmidt, 444 N.W.2d 367 (S.D.1989). *

When a court is dividing the property of divorcing parties, its discretion is limited by the terms of SDCL 25-4-44 and SDCL 25-4-45.1. SDCL 25-4-44 provides:

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

SDCL 25-4-45.1 provides in pertinent part:

Fault shall not be taken into account with regard to the awarding of property ... except as it may be relevant to the acquisition of property during the marriage....

The factors the trial court is to consider in making an equitable division include: "the length of the marriage; the value of the property; the age and health of the parties; their respective competency to earn a living; the contributions of each party to the accumulation of the property; and the income producing capacity of the parties assets." Cole v. Cole, 384 N.W.2d 312, 314 (S.D.1986). While the trial court must consider these factors, it is not bound to any mathematical formula. Rather, it is limited by principles of equity. Baltzer v. Baltzer, 422 N.W.2d 584 (S.D.1988).

Standing by itself, the trial court's property division/allocation of debt does not appear to be an abuse of discretion given the weight of all of the factors that balance in favor of the wife. Those factors include the following. This is a lengthy marriage, 22 years. The parties are in their early forties. During the marriage wife contributed to the accumulation of the marital estate by working, raising the children, and serving as a homemaker. Not unlike many South Dakotans, the known gross and net values of the parties' marital estate are not particularly significant in amount. Husband's known and established ability to earn a living is far greater than that of wife. Because of the great disparity in the present earning abilities of the parties, the fact that wife may not be able to improve her position in the work force, and the amount of the marital debt, husband is in a far...

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