Billion v. Billion

Decision Date19 September 1996
Docket NumberNo. 19290,19290
Citation1996 SD 101,553 N.W.2d 226
PartiesPatricia Jane Speier BILLION, Plaintiff and Appellee, v. Michael Mitchell BILLION, Defendant and Appellant.
CourtSouth Dakota Supreme Court

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

Douglas E. Hoffman of Gibbs, Feyder, Myers, Peters & Hoffman, Sioux Falls, for defendant and appellant.

JOHNS, Circuit Judge.

¶1 Michael Mitchell Billion (Michael) appeals from a judgment and decree of divorce granted to Patricia Jane Speier Billion (Patricia), challenging the division of property, the award of alimony to Patricia, the amount of the child support award to Patricia, and the denial of his request for attorney fees. We affirm in part, and reverse in part.


¶2 Michael and Patricia were married on May 12, 1979 in Sioux Falls, South Dakota. The parties have two children, Mark, born January 7, 1981, and Jeff, born August 2, 1983.

¶3 At the time of the marriage, Patricia was employed part-time at Western Bank while working toward her undergraduate degree. After leaving Western Bank, Patricia became employed in a clerical position with B. Dalton for a short period of time. She obtained her undergraduate degree in 1982, then her Masters Degree of Education in guidance and counselling in 1988. From 1988 to 1991, Patricia worked as a contract counselor at Lutheran Social Services. From 1991 to the present, she has worked as a counselor at Mental Health Associates of Sioux Falls, South Dakota, for approximately four to eight hours per week. Her earning capacity is $30,000 a year.

¶4 Michael held both a Juris Doctorate degree and a Masters of Business Administration degree at the time of the marriage, and was a certified public accountant and partner in Henry Scholten and Company, an accounting firm in Sioux Falls. In 1990, Michael left Henry Scholten and Company, selling his interest in the partnership to the remaining partners. He then became employed as an attorney with the law firm of Woods, Fuller, Schultz & Smith of Sioux Falls, where he continues to be employed. His annual salary is $85,000.

¶5 The trial court divided the assets of the parties into "marital" and "non-marital." The value of the "marital" assets totaled $676,017, which figure is the difference between the appraised valuations and the liabilities thereon. Of this, $340,283 was awarded to Patricia and $335,734 was awarded to Michael. Patricia was allowed a credit of $7,400 on the amount awarded to her which represents the difference in values of the "marital" assets initially contributed by both parties. This credit resulted in the trial court's net division of the "marital assets" of $332,883 to Patricia and $335,734 to Michael.

¶6 The "non-marital" assets were all found to be Patricia's sole property and are three in number. The first is the Patricia Speier Trust, of which Patricia is both the grantor and beneficiary and which is fully revocable by her. It is comprised of cash, life insurance, stocks, bonds, notes and real estate with a total value of $390,047. The various individual items found in this trust were all given to Patricia by her parents, either before or during her marriage to Michael, and either represent the value as given or their appreciated value. The second asset is the Sequoia Funds investment with a value of $172,185. This asset was purchased by Patricia with proceeds from her trust. The third asset is Patricia's fractional interest in her paternal grandmother's trust, the Irma Speier Trust. The trial court did not value this asset.

¶7 The trial court granted Patricia a divorce based on irreconcilable differences. It awarded Patricia and Michael joint legal custody of Mark and Jeff; primary physical custody was awarded to Patricia, subject to Michael's reasonable visitation rights. The trial court awarded Patricia child support of $1,237 per month and $600 per month in rehabilitative alimony for a period of one year. The parties' mutual requests for attorney fees were denied.

¶8 Michael appeals on the following issues:

¶9 I. Whether the trial court erred in finding that certain properties were treated by the parties as belonging solely to Patricia and whether the trial court's action in setting aside this property for Patricia was an abuse of discretion?

¶10 II. Whether the trial court's award of alimony to Patricia was an abuse of discretion?

¶11 III. Whether the trial court abused its discretion in calculating child support by mathematical extrapolation over and above the maximum guidelines set forth at SDCL § 25-7-6.2?

¶12 IV. Whether the trial court abused its discretion in failing to award Michael his attorney fees?


¶13 We first note our standards of review for the issues presented in this case. It is settled law that we review a trial court's findings of fact under the clearly erroneous standard. Parsons v. Parsons, 490 N.W.2d 733, 736 (S.D.1992) (Parsons II ). Under this standard, we will not overturn the trial court's findings unless we are left with a definite and firm conviction that a mistake has been made. Id. (citing Hilbrands v. Hilbrands, 429 N.W.2d 750 (S.D.1988)).

¶14 This Court will not disturb a trial court's division of property, the award or denial of alimony, the award of child support or the award or denial of attorney fees unless it clearly appears from the record that it abused its discretion. Vander Pol v. Vander Pol, 484 N.W.2d 522 (S.D.1992); Kanta v. Kanta, 479 N.W.2d 505 (S.D.1991); Johnson v. Johnson, 471 N.W.2d 156 (S.D.1991); Fox v. Fox, 467 N.W.2d 762 (S.D.1991); Nelson v. Nelson, 454 N.W.2d 533 (S.D.1990). "The term 'abuse of discretion' refers to a discretion exercised to an end or purpose not justified by, and clearly against, reason and evidence." Kanta, 479 N.W.2d at 507, (quoting Gross v. Gross, 355 N.W.2d 4, 7 (S.D.1984)). In our 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. Nelson, supra.

¶15 I. Property Division

¶16 "Marriage is a personal relation arising out of a civil contract...." SDCL 25-1-1. When a man and a woman marry, they "contract toward each other obligations of mutual respect, fidelity, and support." SDCL 25-2-1. 1 Other than for the duty of support, a spouse does not have any vested rights in the property of his or her mate during the course of their marriage. 2 This means that spouses are entitled to maintain their property separate and apart and are entitled to do with it as they see fit. 3

¶17 The right to own and use one's separate property is subject to the spouse's right of support. This right is inalienable except to the extent it is modified or waived in an agreement which is entered into subsequent to marriage and in contemplation of separation or divorce. Connolly v. Connolly, 270 N.W.2d 44 (S.D.1978); SDCL 25-2-13. 4 However, even though parties can enter into support agreements post-marriage and in contemplation of separation or divorce, these agreements are always subject to rejection by a court, and, if approved, to later modification. Connolly, supra.

¶18 The concept that one's individual property is subject to his or her spouse's right of support, is carried over in South Dakota's statute which provides for an equitable division of the parties' property upon a divorce. SDCL 25-4-44. SDCL 25-4-44 provides:

When a divorce is granted, the courts may make an equitable division of property belonging to either or both, whether the title to such property is in the name of the husband or the wife. In making such division of the property, the court shall have regard for equity and the circumstances of the parties.

The second sentence of this statute clearly states that a court must consider both equity and the circumstances of the parties when it makes a property division. Interestingly, the "circumstances of the parties" language also appears in the statute which allows for alimony following a divorce. SDCL 25-4-41 provides:

Where a divorce is granted, the court may compel one party to make such suitable allowance to the other party for support during the life of that other party or for a shorter period, as the court may deem just, having regard to the circumstances of the parties represented; and the court may from time to time modify its orders in these respects.

It must also be noted that several of the factors traditionally considered for the purpose of a property division are the same factors to be considered when there is a request for post-divorce alimony. Those common factors are: the length of marriage; the age and health of the parties; and the competency of each to earn a living. The age, health and competency of a individual to earn a living are all very important factors one must consider when a spouse claims that he or she is unable to support himself or herself through his or her labors. There is a symbiotic relationship between SDCL 25-4-44 and SDCL 25-4-41. If a court determines that one spouse does not have the ability to support himself or herself through his or her labors and does not have sufficient assets of his or her own and is, therefore, in need of support, then a court might award him or her assets he or she would otherwise not be entitled to. If the court awards a spouse in need of support more assets than what he or she would otherwise be entitled to and/or awards him or her certain income producing assets, then the need for post-divorce alimony can be reduced or obviated. 5 Because of this symbiotic relationship, this court always reviews property divisions and post-divorce alimony awards in conjunction with each other. Heckenlaible v. Heckenlaible, 1996 SD 32, p 20, 545 N.W.2d 481, 485.

¶19 Michael contends that SDCL 25-44-4 re...

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