Cole v. Cole, 14911

CourtSupreme Court of South Dakota
Citation384 N.W.2d 312
PartiesJoanne C. COLE, Plaintiff and Appellee, v. Rolfe H. COLE, Defendant and Appellant. . Considered on Briefs
Docket NumberNo. 14911,14911
Decision Date14 January 1986

Page 312

384 N.W.2d 312
Joanne C. COLE, Plaintiff and Appellee,
Rolfe H. COLE, Defendant and Appellant.
No. 14911.
Supreme Court of South Dakota.
Considered on Briefs Jan. 14, 1986.
Decided March 12, 1986.

Richard A. Johnson, Pruitt, Matthews & Muilenburg, Sioux Falls, for plaintiff and appellee.

Laird Rasmussen, Moore, Rasmussen, Sabers & Kading, Sioux Falls, for defendant and appellant.

HERTZ, Acting Justice.

Rolfe H. Cole, Jr. (Rolfe), the appellant herein, appeals from a judgment and decree of divorce awarded to Joanne C. Cole (Joanne), the appellee. We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.


Rolfe and Joanne Cole were married on December 1, 1961, in Centerville, South Dakota. One child was born of this union, Timothy, who, at all times pertinent to this action, had attained the age of majority. At the time of trial, Rolfe was 44, and Joanne was 45 years of age. Both parties enjoy good health.

Neither one of the Coles brought any discernable assets into the marriage. As such, both parties agree that whatever they acquired during their 24 years of marriage was as a result of their joint efforts.

Except for the seven year period between 1965 and 1972 when she remained at home to care for Timothy, Joanne has always worked on a full- or part-time basis. She is currently a secretary at Western Bank in Sioux Falls, South Dakota and earns approximately $733.07 take-home pay per month. Rolfe's present income from the Dakota Livestock Company is $20,150 per year, or approximately $1,250 take-home pay per month. Additionally, Rolfe is employed on a part-time basis at the Westward Ho Country Club from which he earns $3,524.02 per year. The trial court made a finding that Rolfe's net monthly income totals approximately $1,500.

The parties' divisible assets included a house in Sioux Falls, which is presently valued at $69,000 and subject to a first mortgage in the amount of $35,037.46. The trial court awarded Joanne the marital residence with its attendant indebtedness.

The Coles also jointly owned a farm consisting of 160 acres in Lincoln County, South Dakota, which they purchased on a contract for deed in 1975. The down payment of $28,800 was paid by Rolfe's father, Rolfe Hi Cole, Sr. (Rolfe, Sr.). Although there is no written evidence characterizing this money as a loan, Rolfe and his father insist that the down payment was not a gift and that the $28,800 debt which is owed to Rolfe, Sr., is expected to be paid in full plus 8% interest per annum. No principal or

Page 314

interest payments had been made at the time of trial.

The Lincoln County property is leased to Rolfe's brother for farming purposes. The farm property was valued by Joanne's appraiser at $128,000, whereas Rolfe's appraiser valued it at $116,000. The trial court adopted Joanne's appraisal, and awarded the farm property to Rolfe subject to the balance on the contract for deed and the $28,800 indebtedness owed to Rolfe, Sr.

The trial court also ordered Rolfe to pay Joanne a lump sum payment of $20,000 as a further property settlement. Additionally, the trial court awarded Joanne $400 per month in the form of alimony until she remarries or dies.

According to the briefs and record herein, the Coles marital problems began in the early 1970's as a result of Rolfe's excessive drinking. He has since rectified this problem. Thereafter, the parties had trouble communicating. Joanne testified that Rolfe admitted to having an extra-marital affair in 1978, but he denied this allegation at trial.

It appears, however, that Rolfe's relationship with Connie Sweeter (Connie), a divorcee and neighbor of the Coles, has generated the most conflict between the parties. Both Rolfe and Connie testified that they were just good friends and not lovers.

However, the testimony of Joanne and another neighbor, Lola Heyer, depicted Rolfe's close association with Ms. Sweeter as something more than a friendship. They testified, respectively, that while the Coles were still living together, Rolfe spent many afternoons at Connie's home while Joanne was at work; that Rolfe did numerous household chores for Connie while neglecting the same ones at his own home; that Rolfe would ignore Joanne at neighborhood gatherings and spend all of his time with Connie; and that Rolfe often sided with Connie in arguments between she and Joanne, (inasmuch as they started out as good friends), and forced Joanne to apologize.

At this writing, Rolfe's relationship with Connie is still in existence. The record reflects that he often took Connie and her children out to various places. Ms. Sweeter testified, however, that she and Rolfe have only gone out alone together approximately four or five times. She also stated that Rolfe had purchased gifts for her upon occasion.

The Coles separated in May of 1984, and commencement of this action followed shortly thereafter. The issues herein will be separately stated and so treated.



A divorce court must consider equity and the circumstances of the parties when it divides the marital property. SDCL 25-4-44. This court reviews a trial court's findings of fact under the "clearly erroneous" standard and will overturn a trial court's conclusions of law only when the trial court has erred as a matter of law. Temple v. Temple, 365 N.W.2d 561, 565 (S.D.1985).

Generally, fault will not be taken into account with regard to an award of property. SDCL 25-4-45.1. Thus, the principal factors to be considered in a division of property pursuant to divorce are: the length of the marriage; the value of the property; the age and health of the parties; their respective competency to earn a living; the contributions of each party to the accumulation of the property; and the income producing capacity of the parties' assets. Clement v. Clement, 292 N.W.2d 799 (S.D.1980).

The trial court has broad discretion with respect to property division, and its judgment will not be set aside unless it clearly appears that the trial court abused its discretion. Temple, 365 N.W.2d at 565. Although the trial court's discretion is broad, it is not uncontrolled, and must be soundly and substantially based upon the evidence. Goehry v. Goehry, 354 N.W.2d 192, 194 (S.D.1984). This court's review is limited

Page 315

to a determination of whether there was an equitable property division. Temple, 365 N.W.2d at 565; Krage v. Krage, 329 N.W.2d 878 (S.D.1983).

With the foregoing principles in mind, we now turn to the distribution of marital assets in the case at bar. The trial court divided the marital property as follows:

 Joanne Rolfe
                 ---------- ----------
                Farm Equity - $64.163.00
                Residence Equity $33,963.00 -
                IRA 1,319.45 17,304.66
                Automobile 2,900.00 -
                Boat & Trailer - 1,500.00
                Checking Account 200.00 1,500.00
                Joint Savings Account 1,211.92 -
                Lump Sum Payment 20,000.00 -
                Profit Sharing 30.65 -
                Personal Property 5,435.00 1,181.00
                 ---------- ----------
                TOTAL $65,060.02 $85,648.66

At the time of trial, the Coles had been married for 24 years. They are within one year of being the same age, and both enjoy good health. There is no dispute that each party contributed equally to the accumulation of marital property.

Each of the Coles is capable of earning a living and both of them are presently employed. However, Rolfe earns almost twice the salary per year at Dakota Livestock that Joanne earns as a secretary for Western Bank. If Rolfe elects to continue his part-time employment at the Westward Ho Country Club and that salary is added on to his full-time earnings, then he most certainly earns twice as much as Joanne does in one year.

Rolfe was awarded the farm property subject to the balance on the contract for deed and any indebtedness he may owe to his father for the down payment. Joanne was awarded the marital home which is subject to a first mortgage. The farm equity equals: $64,163.00, and the residence equity equals: $33,963.00.

A review of the trial court's property division indicates that it awarded Joanne a $20,000 lump sum payment as a further property settlement. Apparently this adjustment was made to balance the equities between the parties in relation to the real property, given the farm's ability to generate a profit. The family home is not income-producing property. As such, we cannot find that the trial court abused its discretion in awarding the lump sum payment.

Inasmuch as the distribution of assets set forth above indicates that Joanne received 43% of the net assets and Rolfe received 57%; and by applying the factors enunciated in Clement, supra, to the case at bar; we hold that the trial court made an equitable division of the marital property.

We note that Rolfe Cole attempted to characterize the down payment on the farm property as a loan. To that end, his father testified that he expected to be repaid in full and with 8% annual interest. However, there is no written documentation to support the appellant's claim. Furthermore, during the intervening ten years since the contract for deed was executed, Rolfe has never made a single interest or principal payment upon this "loan", nor has his father demanded as much. Rolfe, Sr. testified at trial...

To continue reading

Request your trial
37 cases
  • Grode v. Grode, 19013
    • United States
    • Supreme Court of South Dakota
    • October 16, 1995
    ...mentioned the "loan" before. We have noted that written documentation is favored to prove the existence of a loan. See Cole v. Cole, 384 N.W.2d 312, 315 (S.D.1986). This factor is even more important when we are dealing with an inter-family ¶14 The evidence did not establish a bona fide loa......
  • Pellegrin v. Pellegrin, 20007
    • United States
    • Supreme Court of South Dakota
    • December 2, 1997 Norma on the basis of extreme mental cruelty, the outcome of the property settlement would not have been affected. See Cole v. Cole, 384 N.W.2d 312, 314 (S.D.1986) (noting that "[g]enerally, fault will not be taken into account with regard to an award of property"); SDCL 25-4-45.1. Altho......
  • Stemper v. Stemper, 15232
    • United States
    • Supreme Court of South Dakota
    • October 22, 1986
    ...and this court will not interfere with such an award unless the same is based on a clear abuse of discretion. See e.g., Cole v. Cole, 384 N.W.2d 312, 315 (S.D.1986); Straub v. Straub, 381 N.W.2d 260, 261 (S.D.1986); Stubbe v. Stubbe, 376 N.W.2d 807, 808 (S.D.1985); Goehry v. Goehry, 354 N.W......
  • Priebe v. Priebe, 19407
    • United States
    • Supreme Court of South Dakota
    • September 11, 1996
    ...value of the asset should be included in the equitable division. See Grode, 1996 SD 15 at p 20, 543 N.W.2d at 801 (citing Cole v. Cole, 384 N.W.2d 312, 314 (S.D.1986)). In addition, Mary cited no authority stating that a trial court has no right to consider a minority discount when making a......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT