543 N.W.2d 795 (S.D. 1996), 19013, Grode v. Grode

• Docket Number: 19013.
• Date: 14 February 1996
• Citation: 1996 SD 15,543 N.W.2d 795
• Parties: Bruce A. GRODE, Plaintiff and Appellee, v. Rose M. GRODE, Defendant and Appellant.
• Court: South Dakota Supreme Court

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543 N.W.2d 795 (S.D. 1996)

1996 SD 15

Bruce A. GRODE, Plaintiff and Appellee,

v.

Rose M. GRODE, Defendant and Appellant.

No. 19013.

Supreme Court of South Dakota.

February 14, 1996

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Considered on Briefs Oct. 16, 1995.

Thomas P. Tonner of Tonner, Tobin & King, Aberdeen, for plaintiff and appellee.

Susan Margolies of Richardson, Groseclose, Wyly, Wise & Sauck, Aberdeen, for defendant and appellant.

AMUNDSON, Justice.

¶1 Rose Grode (Rose) appeals the property division, amount of attorney fees, and child support granted by the trial court following her divorce from Bruce Grode (Bruce). We affirm in part, reverse in part and remand.

FACTS

¶2 Bruce and Rose (Grodes) were married on May 31, 1975, in Armour, South Dakota. From 1975 to 1979, the Grodes lived in South Dakota, Oklahoma and Kansas. Grodes had two boys during their marriage. In 1979, Bruce's brother, who farmed

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with their father Don Grode (Father), was killed in an automobile accident. Father asked Bruce to move back to Bristol to help on the family farm. The Grodes did move back to Bristol in November 1979.

¶3 Rose worked outside the home during the marriage, holding various teaching positions. Bruce has worked on the farm since his arrival in 1979. Bruce started farming with nothing and has acquired many of his assets from Father. Whether these assets were gifts, loans, or otherwise, has added heat to the controversy over the division of marital property.

¶4 Bruce filed for divorce on January 3, 1994, on the grounds of irreconcilable differences and extreme mental cruelty. Rose counterclaimed, denying Bruce's complaint and claiming she was entitled to a divorce on the grounds of adultery, extreme mental cruelty, willful desertion and habitual intemperance. The trial court granted Rose the divorce based on mental cruelty, awarded custody of the minor children to Rose, set visitation and support, and divided the marital assets. The trial court also awarded Rose a property settlement of $103,000 and $5,000 of her attorney fees. Due to the nature of the assets, the trial court set up a pay schedule for eighteen years. The pay schedule included the $103,000 awarded to Rose via the property division and the $5,000 awarded in attorney fees, for a total of $108,000. Bruce is to pay $6,000 per year, plus interest, for eighteen years. There are many facts that are pertinent to this case. However, for the sake of clarity, we will address them as they pertain to the relevant issue. Rose appeals on the following issues:

I. Whether the trial court abused its discretion in dividing the marital property?

A. Whether the trial court erred in its determination of the value of the marital estate?

B. Whether evidence should have been admitted that part of the value of the real estate purchased on contract for deed was a gift?

C. Did the trial court err in finding that part of the real estate purchased on a contract for deed was a gift?

D. Did the trial court err when it did not equitably distribute Bruce's nonvested military pension?

E. Whether the trial court erred by not making specific findings as to the missing money, grazing rights, and the crops in the ground?

II. Was the use of an interest rate different than the judgment rate an abuse of discretion?

III. Whether the trial court erred by not allowing Rose a security interest for her property payments?

IV. Did the trial court err in its assessment of attorney fees for Rose?

V. Did the trial court err in its computation of child support?

STANDARD OF REVIEW

¶5 We first note our standards of review in this case. We review a trial court's findings of fact under a clearly erroneous standard. In applying this standard, we will not overturn a valuation unless it is clearly erroneous. DeVries v. DeVries, 519 N.W.2d 73, 75 (S.D.1994) (citations omitted). All conflicts in the evidence must be resolved in favor of the trial court's findings. Kost v. Kost, 515 N.W.2d 209, 213 (S.D.1994). We review a trial court's conclusions of law under a de novo standard. Bess v. Bess, 534 N.W.2d 346, 347 (S.D.1995) (citing Johnson v. Johnson, 291 N.W.2d 776, 778 (S.D.1980)). We give no deference to the trial court under this standard of review. Id.

¶6 Our standard of review of a trial court's property division is that of an "abuse of discretion." Abrams v. Abrams, 516 N.W.2d 348, 352 (S.D.1994); Radigan v. Radigan, 465 N.W.2d 483, 487 (S.D.1991); Henrichs v. Henrichs, 426 N.W.2d 569, 572 (S.D.1988). We have stated several times: It is well settled that the trial court has broad discretion with respect to property division and, absent an abuse of discretion, its judgment will not be set aside. Caughron v. Caughron, 418 N.W.2d 791, 792 (S.D.1988);

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Tate v. Tate, 394 N.W.2d 309, 311 (S.D.1986). " 'The term 'abuse of discretion' refers to a discretion exercised to an end or purpose not justified by, and clearly against reason and evidence.' " Paradeis v. Paradeis, 461 N.W.2d 135, 137 (S.D.1990) (quoting Bradeen v. Bradeen, 430 N.W.2d 87, 91 (S.D.1988)); see also Bennett v. Bennett, 516 N.W.2d 672, 674 (S.D.1994) (citing Chicoine v. Chicoine, 479 N.W.2d 891, 895 (S.D.1992)).

¶7 The standard of review for determining whether a trial court has appropriately adjudicated the child support obligations of a parent is whether the trial court abused its discretion in setting the support. Nelson v. Nelson, 454 N.W.2d 533, 534 (S.D.1990). In this review, we do not determine whether we would have made an original like ruling, but whether a judicial mind, in view of the law and circumstances of the particular case, could reasonably have reached such a conclusion. Id.; see also Sjolund v. Carlson, 511 N.W.2d 818, 820 (S.D.1994) (citing Johnson v. Johnson, 468 N.W.2d 648, 650 (S.D.1991)).

ANALYSIS

¶8 I. Division of the marital property.

¶9 Among several contentions made by Rose's appeal is her claim that the court abused its discretion in making an inequitable distribution of the property. In evaluating such a claim, we must remember that a trial court " 'is not bound by any mathematical formula but shall make such award from the material factors before [it] having due regard for equity and the circumstances of the parties.' " Hanson v. Hanson, 252 N.W.2d 907, 908 (S.D.1977) (quoting Kressly v. Kressly, 77 S.D. 143, 150, 87 N.W.2d 601, 605 (1958)); SDCL 25-4-44.

¶10 The factors to be considered in dividing marital property are the (1) duration of the marriage, (2) value of the property owned by the parties, (3) ages of the parties, (4) health of the parties, (5) competency of the parties to earn a living, (6) contribution of each party to the accumulation of property, and (7) income-producing capacity of the property owned by the parties. Johnson v. Johnson 471 N.W.2d 156, 159 (S.D.1991); Ryken v. Ryken, 461 N.W.2d 122, 126 (S.D.1990); Saint-Pierre v. Saint-Pierre, 357 N.W.2d 250, 258 (S.D.1984). "It is axiomatic that each case must be judged upon its own set of facts." Abrams, 516 N.W.2d at 353 (Henderson, J., dissenting).

¶11 A. Value of the marital estate.

¶12 With these principles in mind, we examine the individual claims of abuse. Rose asserts the trial court incorrectly valued the marital estate by excluding certain farm equipment, part of the family farm, Bruce's military pension, crops, grazing rights, and monies earned by Bruce.

¶13 We note that Bruce and Father testified that a $29,000 loan existed on farm machinery and equipment. To that end, Father testified that he "probably [would have] given Bruce the machinery when I quit farming but things got so complicated now[.]" When asked by Rose's counsel if he meant the divorce action is what made things complicated, Father replied, "[r]ight." In this case, there is no written documentation to support this alleged loan. Furthermore, during the intervening fourteen years since Bruce began farming, Bruce has never made a single interest or principal payment upon this alleged "loan," nor has Father demanded as much. Bruce has treated this machinery and equipment as his own by using it for trade-ins, taking depreciation deductions on his tax returns, and listing it as his property, yet he has never mentioned the "loan" before. We have noted that written documentation is favored to prove the existence of a loan. See Cole v. Cole, 384 N.W.2d 312, 315 (S.D.1986). This factor is even more important when we are dealing with an inter-family loan.

¶14 The evidence did not establish a bona fide loan. State ex rel. Dept. of Rev. v. Karras, 515 N.W.2d 248, 251 (S.D.1994); Buhl v. McDowell, 51 S.D. 603, 607, 216 N.W. 346, 347 (1927); Churchill & Alden Co. v. Ramsey, 45 S.D. 454, 461, 188 N.W. 742, 744 (1922). Therefore, regardless of Bruce's and Father's self-serving declarations and based on the evidence and record herein, we find the trial court abused its discretion in considering

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this "loan" as part of the marital estate debts. See Karras, 515 N.W.2d at 251.

¶15 B. Evidence received regarding the farm as a gift.

¶16 Rose claims it was improper for the trial court to admit evidence establishing the grant of part of the farm to Bruce as a gift from Father. Specifically, the trial court heard testimony from Bruce, Father, and Father's accountant, Darrell Strivens. ¹ The trial court has broad discretion in admitting evidence. Zepp v. Hofmann, 444 N.W.2d 28, 31 (S.D.1989). This court will only disturb decisions of the trial court regarding the admission of evidence if there is a clear abuse of discretion. Id.; Magbuhat v. Kovarik, 382 N.W.2d 43, 46-7 (S.D.1986).

¶17 Trial courts are required to assess how marital assets are acquired prior to dividing same. See SDCL 25-4-44; Endres v. Endres, 532 N.W.2d 65, 68 (S.D.1995). This testimony was appropriate for such a decision. The trial court did not abuse its...