471 N.W.2d 156 (S.D. 1991), 17282, Johnson v. Johnson

Docket Nº:17282.
Citation:471 N.W.2d 156
Opinion Judge:The opinion of the court was delivered by: Amundson
Party Name:Steven L. JOHNSON, Plaintiff and Appellee, v. Susan J. JOHNSON, Defendant and Appellant.
Attorney:Kay F. Nikolas, Sisseton, South Dakota, Attorney for plaintiff and appellee.
Case Date:May 29, 1991
Court:Supreme Court of South Dakota

Page 156

471 N.W.2d 156 (S.D. 1991)

Steven L. JOHNSON, Plaintiff and Appellee,


Susan J. JOHNSON, Defendant and Appellant.

No. 17282.

Supreme Court of South Dakota.

May 29, 1991

Page 157

Considered on Briefs March 20, 1991.

Page 158

Kay F. Nikolas, Sisseton, for plaintiff and appellee.

Roger W. Ellyson, Ellyson Law Offices, Watertown, for defendant and appellant.

AMUNDSON, Justice.

Susan J. Johnson appeals the judgment and decree of divorce entered August 30, 1990. We affirm in part, reverse in part, and remand.


Susan J. Johnson (wife) and Steven L. Johnson (husband) were married July 11, 1981. Their first child was born in 1981, and their second in 1985. Wife did not work outside the home during the marriage; she stayed home to raise the children and maintain the family home. Prior to marriage, she obtained a high school diploma and attended one year of vocational school. Husband obtained a college degree in mortuary science and was a licensed funeral director for five years before the parties' marriage. Throughout the marriage, husband continued to work in the family funeral home and furniture business where he had worked since high school.

At the time of the marriage, husband owned a twenty-five percent (25%) interest in the family funeral home and furniture business. During the marriage he purchased an additional fifty-seven percent (57%) interest, thus, at the time of trial he owned an eighty-two percent (82%) interest in the corporation. Husband's father later became incapacitated, and husband has been running both the funeral home and furniture store since 1985. When the parties were married, husband also owned a house in which they lived during the marriage, a car, and various furnishings and personal property, which assets were contributed to the marital estate. Wife contributed a car and some personal property to the marital estate, on which the court placed no value.

The breakdown of the marriage resulted from the inability of the parties to cope with medical problems and normal business stresses, resulting in chemical abuse and violence by both husband and wife. Husband is a manic depressive, however, his illness is controlled with medication and psychiatric counseling. Wife suffers from borderline personality disorder, a genetic disorder which causes violent and abrupt mood swings, resulting in a great deal of stress on the sufferer and family. There is no cure for this disorder, but wife is involved in counseling. Since her teenage years, this disorder has led her to alcohol abuse and bulimia in attempts to cope. The court found that husband was aware of wife's bulimia prior to their marriage. Wife's bulimia and addiction to alcohol became more severe after the birth of the second child in 1985. Husband began using cocaine due to stresses at home and at the business, and this led to both parties becoming regular users. The care of the children and the home suffered accordingly.

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Early in 1989, at the urging of the family minister, husband had wife hospitalized for treatment of her alcohol abuse and eating disorder. This was the beginning of a series of hospitalizations and treatments in numerous institutions which uniformly ended in failure due to wife's continued bulimia and use of alcohol, and due to husband's facilitation of her continued use of cocaine. Her conduct caused husband and the children to leave the family's home at one point, and resulted in prosecution of wife for several episodes of criminal behavior. Both husband and wife have physically assaulted each other on occasion.

Husband commenced this action for divorce in January 1990. Prior to trial, husband and wife stipulated that they had irreconcilable differences. After trial, the court awarded wife $75,000 and her car, and awarded the balance of the property to husband. Wife was also awarded rehabilitative alimony of $4,000 per year for four years. The children were placed in husband's custody, and no child support was ordered. Wife was allowed eight hours of supervised visitation twice a month, plus visitation on an alternating basis for birthdays and holidays. Wife was also awarded attorney fees. Additional details are discussed below in the analysis of each issue raised by wife's appeal.


1. Does the trial court's division of property constitute an abuse of discretion?

2. Is the trial court's valuation of Johnson Furniture and Funeral Home, Inc. clearly erroneous?

3. Does the trial court's award of rehabilitative alimony evidence an abuse of discretion?

4. Does the restricted visitation ordered by the trial court constitute an abuse of discretion?

5. Does the trial court's award of only a portion of wife's attorney fees demonstrate an abuse of discretion?


  1. Property Division.

    Wife argues that the division of the marital assets is inequitable because husband was awarded nearly all of what was a substantial marital estate. Husband responds that the award properly restored to him the value of pre-marital assets, and that wife made no direct contribution to the marital property. It is well settled that this court will not disturb a division of property unless it clearly appears that the trial court abused its discretion. Fox v. Fox, 467 N.W.2d 762, 766 (S.D.1991); Studt v. Studt, 443 N.W.2d 639, 642 (S.D.1989). See Estate of Donahue, 464 N.W.2d 393, 395 (S.D.1990) (defining abuse of discretion standard). This clear abuse of discretion standard likewise governs our review of awards of alimony, visitation, and attorney fees. Fox, 467 N.W.2d at 766; Shoop v. Shoop, 460 N.W.2d 721, 725, 726 (S.D.1990). The exercise of the trial court's discretion in dividing the property of divorcing parties is, however, limited by SDCL 25-4-44 1 and SDCL 25-4-45.1. 2 Fox, 467 N.W.2d at 766.

    In Ryken v. Ryken, 461 N.W.2d 122, 126 (S.D.1990) (Ryken II ), we reiterated that the principal factors to be considered in making a property division are: "(1) the duration of the marriage; (2) the value of the property; (3) the ages of the parties; (4) their competence to earn a living; (5) the contribution of each party to accumulation of property; and (6) the income-producing capacity of the parties' assets."

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    In considering these factors, the trial court is to be guided by principles of equity. Ryken v. Ryken, 440 N.W.2d 300, 304 (S.D.1989) (Ryken I ); Cooper v. Cooper, 299 N.W.2d 798, 799-800 (S.D.1980) (Henderson, J., dissenting). The record in this case demonstrates that the trial court's division of property specifically took into consideration most of the relevant factors noted above, and it is unnecessary to reiterate each of the trial court's findings here. However, the record does not reflect an appropriate consideration of wife's contribution to the accumulation of property during the marriage. We have consistently held that the duties performed as a mother and housewife constitute a valuable contribution to the marital property. See, e.g., Garnos v. Garnos, 376 N.W.2d 571, 573 (S.D.1985). Although the trial court made reference to this consideration in passing, we find that consideration was more perfunctory than real.

    Wife's primary point of contention...

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