Abrams v. Abrams, 18431

• Decision Date: 15 February 1994
• Docket Number: No. 18431,18431
• Citation: 516 N.W.2d 348
• Parties: Donna Lea ABRAMS, Plaintiff and Appellee, v. Larry Lee ABRAMS, Defendant and Appellant. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 348

516 N.W.2d 348

Donna Lea ABRAMS, Plaintiff and Appellee, v. Larry Lee ABRAMS, Defendant and Appellant.

No. 18431.

Supreme Court of South Dakota.

Considered on Briefs Feb. 15, 1994.

Decided May 25, 1994.

Rehearing Denied June 27, 1994.

John J. Delaney, Johnson Huffman, P.C., Rapid City, for plaintiff and appellee.

Ramon A. Roubideaux, Rapid City, for defendant and appellant.

WUEST, Justice.

Larry Lee Abrams (Larry) appeals the property settlement and certain child support and visitation provisions of the decree of divorce from Donna Lea Abrams (Donna). We affirm.

FACTS

Larry and Donna were married on January 24, 1970. Two children were born to the marriage: Larry Don, born in 1976; and Amber Dawn, born in 1981. A decree of divorce was granted on June 7, 1993 on stipulated grounds of irreconcilable differences. At the time of the divorce decree, Larry was age 50 and Donna was age 44. Additional facts are noted where applicable.

ANALYSIS OF ISSUES AND DECISION

1. Visitation Provisions

Larry and Donna stipulated that the trial court could consider the home study evaluation on file with the court. The home study report recommended that custody of each child be vested in the parent with whom each child resided at the time of the study. Pursuant to that recommendation, custody of Larry Don (age 17) was granted to Larry, and custody of Amber Dawn (age 12) was granted to Donna. The visitation recommendations set forth in the study were "likewise adopted" by the court and incorporated into the decree. The home study recommended structured visits between the siblings, to be arranged by the parents at least twice a month. No structured visits were recommended for Larry Don with his mother Donna. For Amber Dawn, the home study recommended structured visits with her father Larry, initially "at least weekly for several hours," and later to include overnights or full weekends. Because the parents desired flexibility in the arrangement, no certain schedule was recommended in the home study. Thus, the decree did not set out a structured visitation schedule.

Larry urges that the court abused its discretion when it failed to set out structured visitation with Amber Dawn in the decree of divorce. We have stated that a "clear abuse of discretion standard" governs our review of lower court orders regarding visitation. Johnson v. Johnson, 471 N.W.2d 156, 159 (S.D.1991) (citing Fox v. Fox, 467 N.W.2d 762, 766 (S.D.1991); Shoop v. Shoop, 460 N.W.2d 721, 725-26 (S.D.1990)). As stated, the court incorporated the home study recommendation by reference, and that home study stated that Amber Dawn is to visit with her father "at his residence or in a public place, at least weekly for several hours. As soon as Amber feels more comfortable with her dad, occasional overnights or full weekends can be arranged." It was because both parents wanted a flexible arrangement that no certain schedule was recommended; thus, the parents must cooperate in arranging this visitation between Amber and her father Larry. The decision of the lower court to not set out a structured visitation schedule was "within the bounds of the trial court's discretion." Johnson, 471 N.W.2d at 164. We affirm the trial court on this issue. ¹

2. Child Support

The divorce action was commenced in April 1992. On August 28, 1992, the court ordered Larry to pay interim child support of $608.00 per month, based on the understanding that both children would be living with Donna. However, Larry Don moved in with Larry in September 1992. In January 1993, the parties readjusted the child support by agreement, to account for the fact that one child was living with each parent. Larry asked the court to address his "overpayment" of child support from September 1992 until January 1993, and asked that he be given credit for overpayments. In its memorandum opinion which was incorporated into the into the findings of fact and conclusions of law, the court took this into consideration, noting that Larry paid no child support from April until September 1992. Thus, the court decided not to make any further adjustments on the child support payments. This determination was within the discretion of the trial court, and we will not disturb its decision. Barrett v. Barrett, 308 N.W.2d 884, 885 (S.D.1981).

3. Property Valuation and Division

Donna worked outside the home on a full time basis for the entirety of the marriage, taking two six-week maternity leaves on accumulated sick leave so there was no loss of income. Larry retired from the highway patrol in 1988, and then worked seasonally for the highway patrol and Mount Rushmore. The court determined that the contributions to the marital estate were substantially equal, and the record reveals that the property division was also substantially equal.

Larry disputes the valuation of the marital home, which was awarded to Donna, subject to the indebtedness of a first and second mortgage. The parties had lived in Rapid City until they moved into the house in Black Hawk, South Dakota, in May 1989. At the time of trial, Donna presented an appraisal showing the market value of the home at $68,000, and further presented an estimated statement showing all costs that would be incurred upon sale of the house, including brokerage commission, real estate taxes, and other fees. Thus, the net value of the home for purposes of the property division was $19,417. Larry disputes the valuation, specifically arguing that the closing costs were inflated, and that they should not be included in the valuation. According to Larry's brief, the house was not being sold; thus, he characterizes the closing costs as "imaginary."

First, we note that Larry failed to present any evidence at trial to dispute the appraisal and valuation of the house. Second, the record indicates that there were, during the pendency of the divorce in the lower court, plans to sell the house. The record includes an August 1992 affidavit from Larry, wherein he twice states that he was helping Donna to "fix up the home" for possible sale. We also note that Larry, in his refusal to execute a quitclaim deed to Donna following the decree of divorce, argues that, "She would sell [the house] tomorrow given the chance." ² There was sufficient evidence on the record to support a conclusion that the sale of the house was clearly contemplated by the parties.

Other courts have directly addressed the issue of whether the costs of selling a marital home may properly be included in valuation of the house for purposes of making an equitable division of the property. As one court stated:

[E]ven if neither party contemplated selling the home, the costs of sale must still be deducted. Valuation is nothing more than a function of what the home is worth if it were to be presently sold; therefore, the costs of achieving that value should be considered. Moreover, any number of events could occur that would require the home to be sold at virtually any time. Thus, [the court] did not err by including costs of sale in the net equity of the marital home.

Zeigler v. Zeigler, 365 Pa.Super. 545, 530 A.2d 445, 447 (1987) (citations omitted). Likewise, another court has stated that, "Where a trial court, acting within its discretion, determines that an equitable division of property can best be achieved by considering the net equity rather than the gross equity of the property, this court will not interfere with that determination." In re Marriage of Woodrum, 618 P.2d 732, 734 (Colo.App.1980). Still another court found abuse of discretion in the lower court's refusal to take into account the costs of selling a home, including "payment of a sales commission, payment of pro-rated taxes and other incidental expenses in connection with the sale," when valuating a home for purposes of property division in a divorce. Payne v. Payne, 5 Va.App. 359, 363 S.E.2d 428, 433 (1987). See also Wright v. Wright, 469 A.2d 803, 806 (Del.Fam.Ct.1983) (noting that the parties properly agreed to reduce the fair market value appraisal of the house by eight percent, "to cover selling costs").

Thus, even if sale of the home were not immediately contemplated, it was reasonable for the trial court to consider the net value of the house to the party who received it. Additionally, Larry presents no contrary evidence regarding the amount of the closing costs. "We will not overturn a valuation unless it is clearly erroneous." Johnson, 471 N.W.2d at 162 (citing Herrboldt v. Herrboldt, 303 N.W.2d 571, 572 (S.D.1981)). We find no error in the circuit court's valuation of the marital home.

Larry additionally argues that if Donna intended to sell the home, the court should have awarded it to Larry as part of his property award. Larry urges that he and his son "could have made use of it and salvaged the marital home for them and their descendants." First, we note that the parties had lived in the house for less than three years at the time of the filing of the divorce. This was not ancestral property for which there need be serious concern in regard to keeping it in the family. Second, Donna has indicated her willingness to sell it to Larry at the appraised value--which could likely be accomplished by his tendering Donna's share of the net equity as calculated by the court. Finally, in Larry's August 1992 affidavit, he states that he was involved in cleaning up the home for possible sale; thus, Larry knew during the pendency of the divorce that sale of the home was contemplated by the parties.

Finally, Larry disputes the trial court's calculations regarding the parties' pensions as marital property. This court has repeatedly held that retirement plans accrued during the marriage, whether contributory or non-contributory, are divisible marital assets. Bell v. Bell, 499 N.W.2d 145, 147 (S.D.1993) (citing Kanta v. Kanta, 479 N.W.2d 505, 510 (S.D.1991); Stemper v. Stemper, 403 N.W.2d 405, 408 (S.D.1987); Stubbe v. Stubbe, 376 N.W.2d 807, 809 (...