Connelly v. Connelly

• Decision Date: 24 October 1984
• Docket Number: No. 14457,14457
• Citation: 362 N.W.2d 91
• Parties: Bernetta M. CONNELLY, Plaintiff and Appellee, v. James Keith CONNELLY, Defendant and Appellant. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 91

362 N.W.2d 91

Bernetta M. CONNELLY, Plaintiff and Appellee, v. James Keith CONNELLY, Defendant and Appellant.

No. 14457.

Supreme Court of South Dakota.

Considered on Briefs Oct. 24, 1984.

Decided Feb. 6, 1985.

Thomas K. Wilka of Hagen & Wilka, Sioux Falls, for plaintiff and appellee.

Paul E. Mundt, Sioux Falls, for defendant and appellant.

FOSHEIM, Chief Justice.

Bernetta M. (wife) and James Keith (husband) Connelly were divorced after twenty-two years of marriage. Husband appeals. We affirm.

Husband claims the court's decision to grant wife a divorce; alimony of $1,500 per month; and possession of the home until July 1, 1984, all lack sufficient evidentiary support.

The record indicates wife fulfilled traditional family responsibilities. She gave up her teaching career, and cared for the home and children. She was frugal when the family started out with little money, and she worked outside the home when necessary to supplement the family income. She cared for husband at home after his 1977 heart attack. Husband also had a drinking problem. The trial court found wife suffered worry, anxiety, and emotional distress. We cannot conclude that the findings of fact and conclusions of law of the trial court granting wife a divorce were clearly erroneous. SDCL 15-6-52(a).

Husband assails wife's claims concerning his alcohol problem, contending the evidence does not show a use of intoxicating liquor which meets the requirements of SDCL 25-4-16. Habitual intemperance was not alleged, or found, as a ground for the divorce. Husband's drinking habit could nevertheless be a factor which the court could consider in finding grievous mental suffering upon the wife pursuant to SDCL 25-4-4. See, Phutzenreuter v. Phutzenreuter, 76 S.D. 276, 77 N.W.2d 563 (1956); Baker v. Baker, 252 Iowa 1161, 110 N.W.2d 236 (1961); Lawler v. Lawler, 175 N.W.2d 103 (Ia.1970); Knapton v. Knapton, 28 Mich.App. 316, 184 N.W.2d 207 (1970).

Husband argues the alimony award should be governed by Hanks v. Hanks, 296 N.W.2d 523 (S.D.1980) rather than Guindon v. Guindon, 256 N.W.2d 894, 898 (S.D.1977). Wife's conduct can hardly be compared with the wife's misconduct in Hanks, supra. (Wife in Hanks left 4 children, ages 8-18, for an indefinite period to pursue an adulterous relationship). In addition, the wife in Hanks, supra, was fully employed at the time of trial. Mrs. Connelly is unemployed. Despite her educational level, the trial court found her re-entry into the job market will be difficult and require preparation. The evidence indicates husband has health problems and consequently may be forced into early retirement. The trial court obviously took this into consideration. The judgment provides that in the event husband retires at age 55 or older, wife's alimony will be decreased to one-third of his retirement benefits, excluding social security. The alimony award was compatible with the evidence concerning husband's earning capacity.

Husband's claim the court erred in allowing wife sole occupancy of the home is moot since the house was sold July 4, 1984. See, Matter of Silver King Mines Permit Ex-5, 315 N.W.2d 689, 690 (S.D.1982); Rapid City Journal v. Circuit Court, etc., 283 N.W.2d 563, 565 (S.D.1979).

Wife's request for appellate attorney fees of $1,275.00 meets the considerations of Peshek v. Peshek, 297 N.W.2d 323 (S.D.1981) and Lien v. Lien, 278 N.W.2d 436 (S.D.1979), and is granted.

The judgment is affirmed.

WOLLMAN and MORGAN, JJ., and WUEST, Circuit Judge, acting as a Supreme Court Justice, concurs.

HENDERSON, J., dissents.

HENDERSON, Justice (dissenting).

Perhaps the origin and existence of alimony should be mentioned, however briefly, in order to understand not only this dissent but my past dissents on alimony in this Court. Literally, alimony signifies nourishment or sustenance. It is a monetary provision which the law may afford to a wife from her husband's estate so that she may have food, clothing, habitation, and other necessaries for support. Bradley v. Superior Court, 48 Cal.2d 509, 310 P.2d 634 (1957). The term "alimony" is derived from the Latin word "alimonia," see Eaton v. Davis, 176 Va. 330, 10 S.E.2d 893 (1940), and, in its origin, was a method by which the spiritual courts of England enforced the duty of support owed by the husband to the wife; however, this was only during such time as they were legally separated pending the marriage relation. Evolution in domestic relations law has swept this concept into oblivion. Obviously, even in the days of womanhood obtaining over one-half of the jobs in America, it is not for a woman to bask in luxury nor to enjoy fripperies. ¹ Alimony is generally held to have as its basic purpose the support of the wife and is not intended as a penalty against the husband. A wife must establish not only that she is married but that she is entitled to support and that the husband is able to pay it. Although seemingly not a requirement for an award in this day and age, alimony was historically created so that a wife would not become a public charge. Several authorities hold the underlying policy on alimony statutes is not punishment for a wrongdoing husband, but rather to insure that where the wife is entitled to support, she will receive it, and not become a public charge. Tobey v. Tobey, 165 Conn. 742, 345 A.2d 21 (1974); Putnam v. Putnam, 5 Mass.App. 10, 358 N.E.2d 837 (1977), appeal after remand, 7 Mass.App. 672, 389 N.E.2d 777 (1979); Gugliotta v. Gugliotta, 160 N.J.Super. 160, 388 A.2d 1338, aff'd, 164 N.J.Super. 139, 395 A.2d 901 (1978); Covert v. Covert, 48 Misc.2d 386, 264 N.Y.S.2d 820 (1965); Wheeler v. Wheeler, 88 U.S.App.D.C. 193, 188 F.2d 31 (1951); Buehler v. Buehler, 373 Ill. 626, 27 N.E.2d 466 (1940); Warner v. Warner, 219 Minn. 59, 17 N.W.2d 58 (1944). A divorced wife who is capable of assisting herself should have no right to insist that her husband maintain her in either idleness or luxury. Alimony's basic purpose is to estop economic want and is basically a statutory substitute for the marital obligation of a husband to support his wife. There are three states which do not recognize alimony at all, North Carolina, Pennsylvania, and Texas. "It should not be suffered to convert a host of physically and mentally competent women into an army of alimony drones." Doyle v. Doyle, 5 Misc.2d 4, 7, 158 N.Y.S.2d 909, 912 (Sup.Ct.1957). In the case before us, wife will receive $18,000.00 per year net income as an alimony award. The courts have often pointed out that a wife should not receive so much alimony from her husband so as to have her remain idle. Schwent v. Schwent, 209 S.W.2d 546 (Mo.App.1948). At $18,000.00 per year guaranteed income, the wife's motivation to work and secure full-time employment is stultified and chilled. Alimony, if unwarranted or excessive, can be a repressive influence rather than a good influence on a person's life.

The trial courts of this state, under SDCL 25-4-41, obtain their power to grant "alimony":

Where a divorce is granted, the court may compel one party to make such suitable allowance to the other party for support during the life of that other party or for a shorter period, as the court may deem just, having regard to the circumstances of the parties represented; and the court may from time to time modify its orders in these respects.

Whereas, the Supreme Court of this state should act as a safety valve for, under SDCL 25-4-46, it is provided that:

[A]ll orders and decrees touching the alimony and maintenance of a spouse ... are subject to revision on appeal in all particulars, including those which are stated to be in the discretion of the court.

Therefore, the legislature has specifically engineered a review procedure and empowered the Supreme Court of this state to revise alimony "in all particulars." Our trial courts are the first breath and the Supreme Court is the last breath on the propriety of alimony awards in this state.

Historically, this Court has taken the position that it will not disturb a decision of the circuit court upon an award of alimony unless there is an abuse of discretion. Wallahan v. Wallahan, 284 N.W.2d 21, 26 (S.D.1979). Although counsel and the Bench might well argue on any given set of facts well into the night as to abuse of discretion or not, unless practicality is breathed into that phrase, we have Equity only from On High. An "abuse of discretion" refers to a discretion exercised to an end or purpose not justified by, and clearly against, reason and evidence. This lesson we are told in Herndon v. Herndon, 305 N.W.2d 917, 918 (S.D.1981). We may safely conclude that although the trial court's discretion is a broad one, and it should be, it is not an uncontrolled discretion. Indeed, it must be soundly and substantially based upon the evidence. Owen v. Owen, 351 N.W.2d 139 (S.D.1984).

With the above general principles and rules of review in mind, I cite a case which sets forth the criteria in awarding alimony, Morrison v. Morrison, 323 N.W.2d 877, 878 (S.D.1982). We held that:

In awarding a support allowance, whether it be specific property, a lump sum of money, or periodic payments, the trial court must consider the following factors:

(1) the length of the marriage; (2) the parties respective earning capacity; (3) their respective financial condition after the property division; (4) their respective age, health and physical condition; (5) their station in life or social standing; and (6) the relative fault of the parties in the termination of the marriage.

With these above factors as a guide, we should examine the facts of this case. Before doing so, reference is made to Martin v. Martin, 358 N.W.2d 793, 801 (S.D.1984) (Henderson, J., concurring in part, dissenting in part), and a polestar case cited in the dissenting opinion therein, Grant v. Grant, 5 S.D. 17, 57 N.W. 1130 (1894). Grant, in an abundance of good sense, ruled that this Court should consider not only what the...