Bolenbaugh v. Bolenbaugh
| Decision Date | 19 December 1975 |
| Docket Number | No. 11624,11624 |
| Citation | 89 S.D. 639,237 N.W.2d 12 |
| Parties | Kathleen E. BOLENBAUGH, Respondent, v. Carl BOLENBAUGH, Appellant. |
| Court | South Dakota Supreme Court |
Ericsson, Spencer & Ericsson, Madison, for appellant.
J. B. Lammers, Lammers, Lammers & Kleibacker, Madison, for respondent.
In this appeal from the granting of a divorce by the circuit court Appellant Carl Bolenbaugh raises at least three separate issues. He asks whether or not the trial court abused its discretion in awarding the custody of the minor child of the parties to the mother, whether or not it abused its discretion in allowing the mother to remove the child to Scotland and whether or not it abused its discretion in arriving at a property settlement. We have examined all of the issues and can find no abuse of discretion. We therefore affirm the decision of the court below.
Kathleen E. Bolenbaugh and Carl Bolenbaugh were married at Madison, South Dakota, December 16, 1967, not long after the former had come from Scotland and only three or four months after they had become acquainted. Mr. Bolenbaugh, a medical laboratory technician, is employed at Madison where the couple made their home until the commencement of this action. To this marriage one child was born, daughter Karen Elizabeth, on June 22, 1969. In the course of six or seven years the Bolenbaughs experienced some marital difficulties and at one point Respondent and child returned to the United Kingdom where Respondent initiated an action for divorce which was never completed. She returned with Karen to Madison after an absence of about five months and there seems to have been a brief reconciliation. On April 14, 1974, Respondent commenced an action for divorce and Appellant cross complained. A trial was held in circuit court at Madison on September 16, 1974. The court granted a divorce to both parties and granted child custody to the mother with visitation rights to the father. In the decree of divorce the court specifically awarded custody 'without restriction as to her place of residence with said minor child, be that residence within or without the State of South Dakota or the United States of America' subject to monthly weekend visitation rights of the father and extended stays of the child with the father during the summer months.
Appellant, Carl Bolenbaugh, asserts that the Court abused its discretion in awarding custody to the mother because she is 'clearly unfit to have custody.' There is no evidence or testimony of any weight whatsoever in the record to support such an allegation. We have noted that the trial court has broad discretion in child custody awards, though not uncontrolled. Masek v. Masek, 1975, S.D., 228 N.W.2d 334. The trial judge had the benefit of the full testimony of all the witnesses and subsequently made his decision. We cannot say that with regard to the fitness of the mother the custody award was at all erroneous.
The appellant further argues that the court abused its discretion in arriving at a property settlement. The judge allowed 60% Of the property owned jointly and severally by the parties to be awarded to the husband and 40% To be awarded to the wife. It is now axiomatic in this Court that the trial court has broad discretion also in making property settlements in divorce actions. Pochop v. Pochop, 1975, S.D., 233 N.W.2d 806. There is no rigid formula by which the court is bound to make the award. On many occasions we have pointed out that certain factors are to be taken into consideration and an equitable distribution is to be made in light of them. These factors include the duration of the marriage, the value of the property of each, the ages of the parties, their health and capacity to earn, the contribution of each to the accumulated property and the faults and circumstances leading up to the divorce. Plageman v. Plageman, 1961, 79 S.D. 221, 110 N.W.2d 337. We have reviewed the record in this...
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Presutti v. Presutti
...supra, 165 Conn. 740, 345 A.2d 48 and cases there cited; and removal to a foreign country. See e. g., Bolenbaugh v. Bolenbaugh, 89 S.D. 639, 237 N.W.2d 12 (1975) (Scotland); In re Erich, 310 A.2d 910 (Del.Ch.1973) (Austria); Miracle v. Miracle, 360 P.2d 712 (Okl.1961) (Italy); Donnally v. B......
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Masek v. Masek
...71 S.D. 430, 25 N.W.2d 458, transcontinental, Warder v. Warder, 87 S.D. 133, 203 N.W.2d 531, or intercontinental, Bolenbaugh v. Bolenbaugh, S.D., 237 N.W.2d 12, disruption is not a consideration Because the record convinces me that plaintiff desires custody for the sole purpose of providing......
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Jordan v. Jordan
...was planning to move in order to marry a native of Holland who was employed as a newsman in Johannesburg. See also Bolenbaugh v. Bolenbaugh, 89 S.D. 639, 237 N.W.2d 12 (1975), where the Court permitted the removal of the parties' minor child to Appellant offers in support of his position th......
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Schumaker v. Schumaker, 16061
...into this marriage. This writer appreciates that no rigid formula must be followed in the division of property. Bolenbaugh v. Bolenbaugh, 89 S.D. 639, 237 N.W.2d 12 (1975). In this case, the trial court received the husband's Exhibit No. 1 as to valuations; the trial court relied very heavi......