Caldwell v. Caldwell, 6987

• Decision Date: 26 June 1931
• Docket Number: 6987
• Citation: 237 N.W. 568,58 S.D. 472
• Parties: JENNIE D. CALDWELL, Respondent, v. W. A. CALDWELL, Appellant.
• Court: South Dakota Supreme Court

58 S.D. 472

237 N.W. 568

JENNIE D. CALDWELL, Respondent,

v.

W. A. CALDWELL, Appellant. South Dakota Supreme Court Appeal from Circuit Court, Hanson County, SD Hon. RC Bakewell, Judge # 6987—Reversed Frank Vincent, Alexandria, SD Attorneys for Appellant. H. G. Giddings, Mitchell, SD Attorneys for Respondent. Opinion filed Jun 26, 1931

ROBERTS, J.

This is an appeal from a modified decree of divorce. Plaintiff brought an action for divorce charging cruelty, and was awarded judgment on November 30, 1926. Therein defendant was directed to convey to the plaintiff a residence in the city of Alexandria, and was also required to pay to the plaintiff the sum of $75 per month for her support and maintenance. Such payments were made a charge and a lien upon the real property owned by the defendant, and the court expressly reserved jurisdiction to revise the judgment as to alimony, by either increasing or diminishing the amount of the monthly allowance, in the event of changed conditions of the parties, or to make other provisions in lieu of monthly payments.

Defendant defaulted in the payment of nine monthly allowances, and plaintiff then applied for a modification of the divorce decree. After hearing upon the application for modification of the decree, the trial court entered findings of fact and conclusions of law in favor of the plaintiff, and entered judgment in conformity thereto. By this judgment the plaintiff was awarded the undivided one-half interest in and to a garage building in Alexandria, and the machinery, tools, and equipment therein used in connection with a garage business, and was also awarded a quarter section of land in Hanson county, subject to a mortgage of $5,000. Defendant was relieved from payment of delinquent and future installments under the original judgment. There is one assignment of error, and the sole question presented for review upon this appeal is whether or not the findings of fact made by the trial court justify the entry of the modified divorce decree.

The trial court found that the defendant was the owner of two quarter sections of land in Hanson county and a one-half interest in the aforementioned garage building and the equipment therein. The court fixed the value of one of the quarter sections of land, unimproved and incumbered by a mortgage of $5,000, at $9,600, and the value of the other quarter, improved and incumbered by a mortgage of $7,500, at $13,000. The residence property which the defendant conveyed to the plaintiff under the original decree was valued at $3,500. Defendant’s one-half interest in the garage building and the machinery, tools, and equipment therein was valued at $5,000. The court further found that the defendant and one Robert L. Davidson, brother of the plaintiff, had for several years, as copartners, conducted a garage business in the building referred to; that the marked decrease in the earnings of the copartnership business was caused principally by the misconduct of the defendant who used intoxicating liquors in excess, and neglected his business by absenting himself therefrom; that the defendant had not made a good faith effort to conduct a garage business and to earn money therefrom; that he had failed and neglected to pay taxes upon his properties; that the defendant had willfully wasted his money; that the default of the defendant in the payment of alimony under the original judgment had been caused by willful misconduct; and that if the defendant was left in charge of his property and income, he would continue to willfully misapply earnings therefrom. It is further stated in the findings of the court that the plaintiff was 65 years of age; that she had never had any other occupation except that of housewife; that she had no source of independent income except the amount of $8 per month which was her portion of rent derived from inherited property; that the actual and necessary living expenses of the plaintiff was at least $75 a month; that the defendant was 62 years of age, was in good health and was capable of earning his own livelihood; that the parties to this action had no material amount of property at the time of their marriage; and that the plaintiff contributed to the accumulation of the property by her assistance in the operation of their farm and by her thrift and good management. The court included within its findings on the application for modification of the divorce decree the findings filed in support of the original judgment. It appears therefrom that the plaintiff had been a faithful wife; and that the defendant had treated her with extreme cruelty, and had caused her grievous mental suffering.

The second paragraph of section 165, Rev. Code 1919, as amended by chapter 219 of the Laws of 1923, makes provision for the division of property on the granting of a divorce. It reads as follows: “Where a divorce is granted for an offense of either husband or wife, the courts shall in such action have full power to make an equitable division of the 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 party.”

This statute is...