O'Connell v. O'Connell, 13990
| Decision Date | 24 October 1983 |
| Docket Number | No. 13990,13990 |
| Citation | 340 N.W.2d 700 |
| Parties | Kaye O'CONNELL, a/k/a Kay O'Connell, Plaintiff and Appellee, v. Daniel O'CONNELL, Defendant and Appellant. . Considered on Briefs |
| Court | South Dakota Supreme Court |
Ronald W. Banks of Banks & Johnson, Rapid City, for plaintiff and appellee.
George A. Bangs of Bangs, McCullen, Butler, Foye & Simmons, Rapid City, for defendant and appellant; Allen G. Nelson of Bangs, McCullen, Butler, Foye & Simmons, Rapid City, on brief.
This is an appeal from a judgment of the trial court granting Kaye O'Connell a divorce from Daniel O'Connell. Daniel appeals from the property division provisions of the judgment. We affirm.
Daniel and Kaye O'Connell were married on August 21, 1951. Five children were born to this marriage union, two of whom are deceased, while the other three have reached the age of majority. At the time of the marriage, Daniel was leasing the family ranch, which consisted of 2,480 acres, from his father. In 1954, Daniel and Kaye purchased the family ranch as joint tenants. Subsequently they acquired, in Daniel's name, additional real property, which brought the total size of the ranch up to approximately 6,279 acres. Both parties worked on the ranch during the entire thirty years of their marriage and knew no other form of employment.
Because of marital difficulties, Kaye filed for divorce; Daniel counterclaimed and sought divorce from Kaye. The trial court found that Kaye was entitled to the divorce. It also found that since the value of the assets which both parties infused into the marital estate was reasonably comparable, all of the property, including the ranch, should be equally divided.
Daniel raises three issues on appeal: 1) Did the trial court abuse its discretion by equally dividing the property? 2) Did the trial court abuse its discretion by ordering a division in kind of the real property? 3) Did the trial court abuse its discretion by refusing to grant Daniel a right of first refusal in the event Kaye desires to sell her portion of the real property?
We first deal with Daniel's contention that the trial court erred in ordering an equal division of the marital property. Daniel maintains that the trial court failed to give adequate consideration to the respective contributions of the parties and the income-producing capacity of the assets. We disagree.
Our statutes provide that the trial court must have regard for equity and the circumstance of the parties when making a division of property in a divorce proceeding. SDCL 25-4-44. The principal factors to be considered by the court when dividing the property are: duration of the marriage, value of the property, ages of the parties, the parties' state of health, the parties' competency to earn a living, contribution of each party to the accumulation of the property, and the income-producing capacity of the parties' assets. Jones v. Jones, 334 N.W.2d 492 (S.D.1983); Clement v. Clement, 292 N.W.2d 799 (S.D.1980). The trial court has broad discretion in making the division of property; we will not set the division aside unless it clearly appears that the trial court abused its discretion. Jones, supra; Currier v. Currier, 296 N.W.2d 713 (S.D.1980).
In examining the circumstances of this case, we can see no abuse of discretion by the trial court in dividing the property equally. While Daniel contributed somewhere between $13,940 and $80,000, along with his hard work and management of the ranch, to the marital assets, Kaye contributed money and labor of roughly equal value. We note the following facts: The family ranch was acquired jointly by Daniel and Kaye three years after their marriage. Out of her inheritance of over $61,000, Kaye contributed between $20,000 and $40,000 to family and ranch purposes. In addition, she used approximately $25,000 of her inheritance to pay the expenses for their deceased son's last illness. Kaye raised the five children and did the normal household chores; she kept the ranch records; she helped with the cattle when needed; and she cooked for ranch hands, who could number ten or twelve at certain times of the year.
Daniel's argument that the trial judge did not consider the income-producing...
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