Bennett v. Bennett

• Citation: 516 N.W.2d 672
• Decision Date: 22 March 1994
• Docket Number: 18439,Nos. 18426,s. 18426
• Parties: Bonnie BENNETT, Plaintiff and Appellant, v. Robert BENNETT, Defendant and Appellee. . Considered on Briefs
• Court: Supreme Court of South Dakota

Page 672

516 N.W.2d 672

Bonnie BENNETT, Plaintiff and Appellant, v. Robert BENNETT, Defendant and Appellee.

Nos. 18426, 18439.

Supreme Court of South Dakota.

Considered on Briefs March 22, 1994.

Decided May 25, 1994.

Rick Johnson, Stephanie Pochop, Johnson, Eklund, Nicholson, Dougherty & Abourezk, Gregory, for plaintiff and appellant.

Tom D. Tobin, Kenn A. Pugh, Tobin Law Office, Winner, for defendant and appellee.

WUEST, Justice.

This is an appeal from the provisions of a decree of divorce to Robert Bennett (Robert) and Bonnie Bennett (Bonnie) dividing the property of the parties. We affirm in part, reverse in part, and remand.

FACTS

Robert and Bonnie were married on August 12, 1967. Robert was age 37, and Bonnie was age 30 at the time of the marriage. Both are presently in fair health. At the time of the marriage, Bonnie had two daughters of a previous marriage, aged 7 and 8. No children were born of the marriage between Robert and Bonnie.

Property brought into the marriage by Bonnie included some horses, sheep, and a car, valued at approximately $5,000. Robert had started a ranching operation, and although he owned no land at the time of the marriage, Robert did have some livestock (300 cattle) and farm equipment. A 1967 financial statement shows that Robert had a total net worth of $54,259 at the time of the marriage.

During the course of the marriage, the parties worked to increase the value of the ranching operation. They started buying land in 1970, and at the time of the divorce in 1993 owned 3,942 acres of land valued at approximately $490,000. The ranching operation was further developed with the addition of buildings, building improvements and machinery acquisitions. It was undisputed that, in addition to maintaining the household, Bonnie and her daughters were an integral part of the ranching operation. Bonnie performed an entire range of ranching chores such as operation of farm equipment in the crop operation; constructing and repairing fence, lambing and calving, milking cows, and assisting with sorting, branding and vaccination of cattle.

Although they apparently had been experiencing difficulties prior to the Fall of 1988, it was at that time that the parties separated. One of Bonnie's daughters had broken her leg in an accident, and Bonnie went to assist her. During that time, Robert took Bonnie's name off their joint checking account, and told Bonnie to get her horses off his land. Bonnie delayed filing for a divorce at Robert's request, as he was having health problems. The divorce action was commenced in February 1991. Robert then decided to have surgery, so proceedings were further delayed. In September 1991, the parties met to negotiate a property settlement. Robert asked to be left alone for a year or two, and said that he would then agree to an equitable property settlement. At the time of trial in February 1993, Robert expressed his feeling that Bonnie had "not really" left him alone long enough.

The trial court issued an Amended Decree of Divorce on July 20, 1993. In this appeal, Bonnie raises a number of issues regarding the property award, and Robert raises one issue in his notice of review. We address these issues, noting additional facts where necessary.

STANDARD OF REVIEW

The standard of review for property divisions was recently reiterated by this court:

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); 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) (citing Bradeen v. Bradeen, 430 N.W.2d 87, 91 (S.D.1988)).

Chicoine v. Chicoine, 479 N.W.2d 891, 895 (S.D.1992). A limit on the trial court's discretion in dividing the property of the parties is SDCL 25-4-44. ¹ See Johnson v. Johnson, 471 N.W.2d 156, 159 (S.D.1991). Factors to be considered in making a property division include: (1) The duration of the marriage; (2) the 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) the contribution of each party to the accumulation of property; and (7) the income-producing capacity of the property owned by the parties. Chicoine, 479 N.W.2d at 895 (citing Johnson, 471 N.W.2d at 159; Ryken v. Ryken, 461 N.W.2d 122, 123 (S.D.1990); Saint-Pierre v. Saint-Pierre, 357 N.W.2d 250, 258 (S.D.1984)).

ISSUE I: Did the court err when, prior to calculating the property division, it credited Robert with 300 cattle as premarital property, valuing those cattle at 1993 prices, rather than a 1967 valuation?

In its calculation of the marital property, the court deducted the $5,000 worth of property that Bonnie brought into the marriage in 1967. On Robert's side, the court deducted $262,500. The court explained this figure by noting that Robert brought 300 head of cattle "free and clear" into the marriage, and that those cattle had a "current [1993] value of $262,500." The court further noted that it intended to distribute 300 cows at their 1993 value ($875 per cow) to Robert, and not include them as marital property. This calculation by the trial court was an abuse of discretion. Chicoine, 479 N.W.2d at 895.

First, the 1967 financial statement shows that the cattle were not owned "free and clear." Robert carried considerable debt against both livestock and equipment; his net worth was $54,259. The financial statement also shows that the 1967 cattle were valued at $200 per head (with the exception of forty summer calves valued at $107.50 per head). It is undisputed the cattle owned in 1993 were not the same type or grade of cattle as those owned in 1967; the 1993 cattle were a reputation, fancy grade of cattle. The parties worked over the years to maintain and improve the cattle herd. The cattle appreciated significantly in value. Both parties should share in this appreciated value.

We have previously addressed situations similar to those presented here. See Prentice v. Prentice, 322 N.W.2d 880 (S.D.1982); Temple v. Temple, 365 N.W.2d 561 (S.D.1985). In Temple, we explained and applied the concepts found in Prentice:

In Prentice, this court held that the trial court abused its discretion when it failed to divide farm property as part of the marital estate. The husband in Prentice took over a farm upon which his father had paid half of the purchase price. The parties to the divorce paid off the balance due on the farm from farm proceeds and this court held that the husband's interest in the farm should be divided between them as part of the marital estate. The Prentice Court found that the wife helped pay off the balance due on the farm, that together they improved the residence, and that both parties worked to increase the size and value of the farm; consequently, the wife was entitled to a share of her husband's interest in the farm operation.

Temple, 365 N.W.2d at 567. Due to the "expansion and increased value of the ranch" in Temple, we followed Prentice in holding that the wife was entitled to a share of the interest in the ranch. Id. Likewise, the maintenance and improvement of Robert and Bonnie's cattle herd was due to the joint efforts and labors of both parties. Bonnie is entitled to share in that increased value, and we reverse the trial court's decision on this issue. We will not bind a trial court to a strict mathematical formula when reviewing marital property divisions. Korzan v. Korzan, 488 N.W.2d 689, 693 (S.D.1992) (citing Martin v. Martin, 358 N.W.2d 793, 797 (S.D.1984)). However, the trial court may not exclude one party from sharing in the value of labors that resulted in appreciated value to property during the course of a lengthy marriage. On remand, the trial court may properly deduct from the marital estate the 1967 values of the properties brought into the marriage by both parties; i.e., Bonnie's $5,000 worth of property, and Robert's 1967 net worth of $54,259.

ISSUE 2: Did the court err when it failed to consider the 1993 calf crop in the value of the marital estate?

Attached to Bonnie's proposed findings of fact and conclusions of law was a proposed schedule for calculation of the property division. The schedule showed the cows valued at $875 per head, and additionally showed the expected 1993 calf crop of 400 calves valued at $200 per head for a total $80,000 value on the 1993 calf crop. The trial court adopted the $875 per head value on the cows, but stated that, "The court is not going to consider the 1993 calf crop. The cows were appraised as bred cows. A further hearing on valuation of the property will not be held."

The record reveals that shortly before trial, the Production Credit Association (PCA) completed an appraisal of the livestock. Before trial, counsel agreed to admission of various written appraisals into evidence, noting that even "if the witnesses were here to testify, they would testify substantially as shown by those exhibits." Thus, the individual who prepared the PCA appraisal was not called as a witness. The PCA livestock appraisal shows that the cows were estimated at 1100 pounds in weight and valued at $900 per head, but does not show whether the cows were appraised as bred cows. There was no stated value for the expected calf crop.

It was undisputed at trial that the Bennett's cattle were a reputation, fancy grade of cattle. When Robert was asked whether the cows were worth $900 a head, he replied, "I don't know if they are or not." Robert also stated that bred cows had been "bringing less" than $900 a head, at "any sale barn you want to go to," but offered no evidence to substantiate that. Later, however, Robert testified that some springing heifers ² had sold "the other...