499 N.W.2d 145 (S.D. 1993), 17798, Bell v. Bell

Docket Nº:17798.
Citation:499 N.W.2d 145
Opinion Judge:The opinion of the court was delivered by: Miller
Party Name:Paulette A. BELL, Plaintiff and Appellee, v. Stephen G. BELL, Defendant and Appellant.
Attorney:Richard A. Johnson of Strange, Farrell, Johnson & Casey, Sioux Falls, South Dakota, Attorneys for plaintiff and appellee.
Case Date:April 21, 1993
Court:Supreme Court of South Dakota
 
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Page 145

499 N.W.2d 145 (S.D. 1993)

Paulette A. BELL, Plaintiff and Appellee,

v.

Stephen G. BELL, Defendant and Appellant.

No. 17798.

Supreme Court of South Dakota.

April 21, 1993

Considered on Briefs Nov. 17, 1992.

Page 146

Richard A. Johnson of Strange, Farrell, Johnson & Casey, Sioux Falls, for plaintiff and appellee.

Thomas J. Nicholson of McFarland and Nicholson, Sioux Falls, for defendant and appellant.

MILLER, Chief Justice.

Steve Bell appeals the circuit court's judgment, divorce decree and denial of his motion to reopen. We affirm in part, reverse in part, and remand.

FACTS

Steve and Paulette were married April 22, 1972, at Sioux Falls, South Dakota, and have lived there throughout most of their marriage. Three children were born to the marriage: Bradley, on May 17, 1973; Robin, on March 31, 1975; and Travis, on April 14, 1980. The parties are each thirty-nine years old.

Steve has a high school education. Prior to the marriage of the parties, Steve had been employed at American Freight in Sioux Falls. He worked there as a utility mechanic until they closed in 1988. Steve then sought employment in the Sioux Falls, Minneapolis and Kansas City areas. After three months, Steve moved to Kansas City, alone, when he found a job with a trucking firm which paid better wages than did the available jobs in Sioux Falls. Steve has stayed in the Kansas City area, living in the office where his brother works. Steve had been returning to Sioux Falls several weekends a month until this action was started. His Kansas City firm down-sized after one and one-half years and he lost his job.

At about this time, Steve obtained a part-time job as a gardener which developed into a temporary full-time job. While working as a full-time gardener, he also took a full-time job at Overnight Freight. Steve worked sixteen hours per day for about six weeks at which time the gardening job ended. 1 In December, 1990, Overnight Freight laid him off for lack of work. Steve remained unemployed until March, 1991, when he was temporarily called back by Overnight Freight for several weeks. Steve has since been unsuccessful in his search for truckline employment despite numerous inquiries. Steve was unemployed at the time of this divorce trial and his unemployment benefits had expired.

Steve has high blood pressure and diabetes which appear to be controlled with medications. In addition, due to a blood infection in May, 1991, he has pericarditis, a heart problem.

Page 147

Paulette has a high school education. When she was not working outside the home, she took care of the children and the household. Paulette did some babysitting while the children were little and worked as a waitress in 1981-82. Due to a bad back, Paulette did not again work outside the home until 1984 or 1985 when she went back to work part-time. Most of her work has been in sales. In 1990, Paulette took some marketing classes at Southeast Area Vo-Tech in Sioux Falls and has had one night class in computer-assisted design. Paulette also has some health problems. As previously alluded to, she has back problems which led to surgery in 1989. Her back problems may recur. She also suffers from allergies which have occasionally caused her to be bedridden with bad headaches.

This divorce action was commenced November 7, 1990. A trial was held August 23, 1991, at which time both parties testified. During the course of trial Paulette testified that in 1988 she thought she made $10,000. Subsequent to trial, Steve obtained copies of Paulette's W-2 tax statements. As these forms showed that Paulette's trial testimony greatly understated her 1988 wages, Steve filed a motion to reopen. This motion was made two weeks after the court's memorandum opinion of August 30, 1991, wherein the trial court noted that Paulette was capable of earning only minimum wages. The court, without holding a hearing, denied the motion.

In December, 1991, the court entered its judgment granting Paulette a decree of divorce on grounds of extreme cruelty. Child custody and support payments, as well as alimony and property division were ordered. Steve appeals, arguing (1) the trial court abused its discretion when it ordered alimony and child support payments which exceed the total of his monthly income; (2) the trial court was clearly erroneous in its identification and division of the marital assets; and (3) the trial court abused its discretion when it denied his motion to re-open.

DECISION

ISSUE I

WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN ITS

IDENTIFICATION AND DIVISION OF THE MARITAL

ASSETS.

A trial court's findings "will not be set aside unless they are clearly erroneous." Tate v. Tate, 394 N.W.2d 309, 310 (S.D.1986). "This court will not disturb a division of property unless it clearly appears the trial court abused its discretion." Kanta v. Kanta, 479 N.W.2d 505, 507 (S.D.1991); Johnson v. Johnson, 471 N.W.2d 156, 159 (S.D.1991); Fox v. Fox, 467 N.W.2d 762, 766 (S.D.1991).

  1. Retirement Plan.

    We look first to Steve's allegation that the trial court abused its discretion when it awarded half of his retirement plan to Paulette. Steve has been a member of the Teamster's Union for sixteen years. His Teamster's pension plan vested after ten years. The present retirement value of his retirement plan is $200/month upon reaching age sixty-five.

    "In South Dakota a retirement plan has been recognized as a divisible marital asset since it represents consideration in lieu of a higher present salary. Contributions made to the pension plan would have been available to the family as disposable income during the marriage." Stemper v. Stemper, 403 N.W.2d 405, 408 (S.D.1987) (citations omitted). Steve argues that...

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