Bradeen v. Bradeen

• Decision Date: 01 November 1988
• Docket Number: No. 15892,15892
• Parties: Nancy E. BRADEEN, Plaintiff and Appellee, v. James B. BRADEEN, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 87

430 N.W.2d 87

Nancy E. BRADEEN, Plaintiff and Appellee, v. James B. BRADEEN, Defendant and Appellant.

No. 15892.

Supreme Court of South Dakota.

Argued March 24, 1988.

Decided Oct. 5, 1988.

Rehearing Denied Nov. 1, 1988.

James L. Waggoner, Rapid City, for plaintiff and appellee.

Hermon B. Walker, Rushmore Legal Center, Rapid City, for defendant and appellant.

MORGAN, Justice.

Nancy E. Bradeen (Nancy) and James B. Bradeen (James) were granted a divorce on May 29, 1987. James appeals only that portion of the decree regarding rehabilitative alimony and the partial award of attorney fees.

The parties had been married for approximately twenty-two years. At the time of divorce, James was earning approximately $28,000 per year and Nancy was earning less than $5,000, her wages being fixed at $3.80 per hour. By stipulation of the parties, accepted by the court, the total assets of the parties were distributed, 58% to James and 42% to Nancy. Nancy is 43 years of age and James is 46 years of age. Each has a high school education. James attended two years of college. Both suffer from minor medical ailments which are not disabling. Both are employable. The trial court noted that Nancy had undergone a great decrease in her status in life due to separation of the parties and that she lives on her income and support payments. The trial court found the parties to be of equal fault in the divorce and granted divorce to each.

The trial court ordered James to pay rehabilitative alimony in the amount of $500 per month for eleven years, then to decrease by $100 for each of the next four years, to terminate at the conclusion of the fifteenth year. The trial court also awarded to Nancy partial attorney fees in the amount of $3,000. This left a balance to be paid by Nancy in the amount of $1,707.40.

Three issues are raised on appeal. (1) Whether the trial court abused its discretion in awarding rehabilitative alimony absent a showing of foregone opportunities. (2) Whether the trial court erred in rejecting James' proposed conclusion of law, which allegedly comports with the court's oral findings. (3) Whether the trial court abused its discretion in awarding to Nancy $3,000 in attorney fees.

We note initially that James does not dispute that rehabilitative alimony may have application to nonprofessional persons. In fact, James points out that rehabilitative alimony was awarded to a nonprofessional whose work career was displaced by marriage in Booth v. Booth, 354 N.W.2d 924 (S.D.1984). For a similar holding see Hautala v. Hautala, 417 N.W.2d 879 (S.D.1988). The crux of James' argument is that there is no showing in this case that the marriage displaced Nancy's acquisition of job skills or occupational status.

"The amount and length of alimony payments is ... left to the discretion of the trial court. SDCL 25-4-41." Guindon v. Guindon, 256 N.W.2d 894, 898 (S.D.1977). See Martin v. Martin, 358 N.W.2d 793 (S.D.1984); Booth, supra. This court will not disturb an award of alimony unless it clearly appears that the trial court abused its discretion. Baltzer v. Baltzer, 422 N.W.2d 584 (S.D.1988). Whether alimony, generally, is warranted, depends upon the trial court's consideration of the length of the marriage; the respective earning capacity of the parties; their respective financial condition after the property division; their respective age, health and physical condition; their station in life or social standing; and the relative fault in the termination of the marriage. Arens v. Arens, 400 N.W.2d 900 (S.D.1987); Hanks v. Hanks, 296 N.W.2d 523 (S.D.1980). Likewise, "the decision whether to award 'reimbursement' or 'rehabilitative' alimony, and, if so, in what amount and for what length of time, is committed to the sound discretion of the trial court." Saint-Pierre v. Saint-Pierre, 357 N.W.2d 250, 262 (S.D.1984) (emphasis added). The guidelines the trial court should look to when awarding rehabilitative or reimbursement alimony include "the amount of supporting spouse's contributions, his or her foregone opportunities to enhance or improve professional or vocational skills, and the duration of the marriage following completion of the nonsupporting spouse's professional education." Id.

The purpose of rehabilitative alimony is to put the supporting spouse in a position to likewise upgrade their own economic marketability. See Hautala, supra; Tesch v. Tesch, 399 N.W.2d 880 (S.D.1987); Martin, supra; Saint-Pierre, supra; Booth, supra. As Saint-Pierre emphasized, we must not put the trial courts to the task of setting awards with mathematical precision; rather, they must be free to set such awards based on the peculiar facts and circumstances of each case. We cannot say, for example, that an award of six months is too short a period of time, and, conversely, several years is too long. Such rigid parameters would be to tie the equitable arms of the trial court. If an initial award of alimony is justified by the trial court and it finds evidence in the record, we are not going to disturb the same because the trial court, in good faith, has miscategorized the type of alimony it has awarded. Categories (reimbursement and rehabilitative) are to be used as guidelines by the trial court for setting the method and defining the purpose of such payments. Misapplication of a guideline is not reason for reversal except in extreme examples of an abuse of discretion. In Hautala, we noted that "the issue is not the name placed on alimony, but whether the record supports the award." 417 N.W.2d at 882.

The trial court in this instance entered lengthy findings of fact covering all elements of property division, alimony, and rehabilitative alimony. In the trial court's oral findings, it specifically found

[Nancy] maintained and did those things [faithful homemaker and mother] while he was able to, over the years earn a better income, until he's reached the income of $28,000 a year. She's now trying to start a career and earning less than $5,000 a year.... The court should provide that a spouse who has served in the capacity that Mrs. Bradeen has served so long, should be given an opportunity to refresh and enhance her job skills so she can earn her own living. It is difficult to do that when you are still raising a child and attempting to maintain a living. So, rather than grant permanent alimony here, I am going to grant rehabilitative alimony. I am going to grant it over a long period of time, otherwise I'd be strapping Mr. Bradeen with an unreasonable amount of money to pay, and I think it will take quite a long time for Mrs. Bradeen to help rehabilitate herself, so she can earn a decent living.... Her contribution wasn't in the form of money, but in the form of being a homemaker and mother.... When someone gets married, they don't plan on being divorced someday, so in the strict sense, Mrs. Bradeen did not forego opportunities to enhance her professional or vocational skills.

We will not assume that a woman who has devoted more than twenty years of her life to being a wife, mother, and homemaker, would not have enhanced her employment skills had she remained a single person. This leads to the obvious conclusion that opportunities were foregone. After setting the rehabilitative award, the trial court said: "I anticipate that in that term of years Mrs. Bradeen will be able to increase her skills and take whatever necessary courses and training she needs to take so she's able to support herself at that time." It is obvious that the trial court gave careful and thorough thought to this award and we find no abuse therein.

James next contends that the trial court's oral decision does not comport with the judgment and decree. We disagree.

If the findings of fact and conclusions of law prevail over a trial court's memorandum decision, Moser v. Moser, 422 N.W.2d 594 (S.D.1988), they certainly prevail over an oral pronouncement from the bench. We note here that the trial court incorporated its oral decision in it's conclusions of law and the judgment and decree of divorce set out a scale for the alimony payments as follows:

(1) For the period of May 1, 1987, through April 30, 1998, the sum of $500 per month;

(2) For the period of May 1, 1998, through April 30, 1999, the sum of $400 per month;

(3) For the period of May 1, 1999, through April 30, 2000, the sum of $300 per month;

(4) For the period of May 1, 2000 through and including April 30, 2001, the sum of $200 per month;

(5) For the period of May 1, 2001 through and including April 30, 2002, the sum of $100 per month.

Said rehabilitative alimony obligation shall terminate according to the time schedule set forth above or upon the death or remarriage of [Nancy], whichever event first occurs.

We find that, as no disparity exists between the oral pronouncement and the written schedule, James' argument is totally without merit.

For James' last issue on appeal, he alleges that the trial court failed to first find that attorney fees were reasonable and suggests that such award should be modified or set aside. We disagree.

A review of the record reveals that the trial court considered all of the factors prescribed by our decisions in Lien v. Lien, 278 N.W.2d 436 (S.D.1979) and Holforty v. Holforty, 272 N.W.2d 810 (S.D.1978): (a) the amount and value of the property involved, (b) the intricacy and importance of the litigation, (c) the labor and time involved, (d) the skill required to draw the pleadings and the trying of the cause, (e) the discovery procedures utilized, (f) whether there existed complicated legal problems, (g) the time required to try the cause, and (h) whether written briefs were required in determining that attorney fees should be awarded and the amount of that award. The trial court particularly noted that James had materially increased the cost of these divorce proceedings and has the greater ability to pay. We find no abuse of discretion in awarding Nancy fees in...