Cook v. Cook

Decision Date07 December 2022
Docket Number#29810
Parties Alice Marie COOK, Plaintiff and Appellee, v. Vernon Roy COOK, Defendant and Appellant.
CourtSouth Dakota Supreme Court

DAVA A. WERMERS, Mitchell, South Dakota, Attorney for defendant and appellant.

ROSE ANN WENDELL, Pierre, South Dakota, Attorney for plaintiff and appellee.

JENSEN, Chief Justice

[¶1.] The circuit court granted Alice Cook and Vernon Cook a divorce on the grounds of irreconcilable differences. The court equitably divided the marital property and ordered Vernon to pay Alice a cash payment of $201,830. The cash equalization payment included $140,000 for marital assets that the court found Vernon had dissipated in violation of SDCL 25-4-33.1. The court also ordered Vernon to pay Alice permanent alimony of $1,500 per month. Vernon appeals, arguing that the circuit court abused its discretion by including his military retirement pay and veteran disability benefits as marital assets subject to equitable division and clearly erred in finding that he dissipated marital assets in violation of SDCL 25-4-33.1. Vernon also claims the circuit court's alimony award was an abuse of discretion. We reverse and remand.

Facts and Procedural History

[¶2.] Vernon and Alice were married on July 12, 1993. The parties separated in April 2019 after Alice left the marital home in Lyman County. At the time of trial, Vernon was 79 years old and in reasonably good physical health but had significant mental health conditions. Alice was 78 years old and had health issues that included possible dementia.

[¶3.] Prior to their marriage, Vernon served in the U.S. Army Special Forces (Green Beret). He concluded his military career in 1979. Vernon suffers from severe and chronic post-traumatic stress disorder

(PTSD) and major depression stemming from combat military service in Vietnam. He suffered nightmares and daymares, often lashing out at Alice in anger and isolating himself in his bedroom for days on end. Vernon had previously been determined to be 100% combat-related disabled because of these conditions.

[¶4.] Throughout their lengthy marriage, Alice was a homemaker and emotionally and physically supported Vernon as he suffered with his disability. She worked outside the home as a waitress for a short time early in their marriage. Vernon received veteran service related benefits during the marriage and was also employed as a union representative, assisting federal employees. He retired from this work years before the divorce. Vernon and Alice had no debt and lived a comfortable lifestyle. Vernon enjoyed buying gifts for Alice and provided financial support to her family throughout the marriage.

[¶5.] At the time of trial, Vernon and Alice owned a home and an unimproved lot in Lyman County. The court found Vernon received the following monthly income: $1,553 in social security benefits, $1,877 in combat-related special compensation, $481.41 in military retirement pay, and $3,227.58 in military disability benefits for a total of approximately $7,140. Alice received $550 per month in social security benefits.

[¶6.] In May 2019, Alice filed a complaint for separate maintenance alleging she feared for her safety living with Vernon. In accord with SDCL 25-4-33.1, the summons Alice served with the complaint included a temporary restraining order prohibiting the parties from "transferring, encumbering, concealing or in any way dissipating or disposing of any marital assets, without the written consent of the other party or an order of the Court, except as may be necessary in the usual course of business or for the necessities of life."

[¶7.] After separating from Vernon, Alice initially stayed with her grandson. She then rented a small home in Oacoma that was in poor condition. At the time of trial, Alice lived in a trailer bought by Alice's daughter, Michelle Schoeppner (Shelly), and Shelly's husband. Shelly remodeled the trailer with the hope that Alice would be able to reimburse her for the home. During the parties’ separation, Alice had little money to provide for necessities, and her family assisted her financially and physically. Shelly testified that Alice needed a daily in-home caretaker and she and her husband were taking turns staying with Alice.

[¶8.] Alice sought interim spousal support in May 2019, claiming her monthly expenses were $2,145. In her application, Alice alleged that Vernon had become hostile, ordered her out of the marital home, took away her vehicle, and threatened to cut her off from financial support. Prior to a hearing, the parties stipulated to the entry of an order for Vernon to pay Alice $1,000 a month in spousal support and to make an additional one-time payment of $1,950 for Alice's apartment rent and deposit.

[¶9.] Alice obtained a protection order against Vernon in January 2020 requesting the court to remove him from the home so that she could return. Vernon agreed to the entry of a protection order but did not admit to the allegations contained in Alice's petition. Vernon was ordered out of the home. Later, Alice voluntarily moved out of the home and Vernon moved back in.

[¶10.] Subsequently, Alice filed a motion seeking an increase in interim spousal support. Alice claimed monthly expenses of approximately $1,700. Following an evidentiary hearing, the circuit court ordered Vernon to pay Alice $2,500 per month for interim support beginning June 1, 2020. The court also ordered Vernon to pay Alice an additional $10,000 payment that was ultimately credited to him in the final property division.

[¶11.] In March 2020, Alice moved to amend the complaint for separate maintenance to a complaint for divorce. At the start of trial on March 19, 2021, Vernon agreed to Alice's motion to amend her complaint for a divorce on the grounds of irreconcilable differences. Vernon and Shelly testified at the trial. Alice was unable to attend the trial and did not testify. Vernon detailed his mental health issues and described the parties’ marriage and separation. Vernon also testified about his and Alice's finances and banking, explaining that they each had personal bank accounts and a joint bank account. Shelly's testimony focused on Vernon's treatment of Alice, Alice's deteriorating health, and Alice's financial needs.

[¶12.] The circuit court found that the joint bank account had a balance of $126,000 at the time of the separation and that the account balance was approximately $10,000 at the time of trial.1 Vernon was unable to provide a specific accounting of this spending. In July 2019, Vernon withdrew almost $29,000 from the account that he was unable to explain. However, the evidence showed that Vernon paid $25,000 for the purchase of a boat that month.

Vernon also explained that he used cash to pay for regular purchases and usually carried approximately $500 for gas, meals, and other basic living expenses. Vernon also testified that Alice had withdrawn money from the joint bank account at the time of the separation and that he had given Alice money to purchase a car during the separation. Vernon claimed he was also forced to replace items of significant value, such as leather recliners and a riding lawn mower, that Alice had taken from the marital home.

[¶13.] Vernon acknowledged that in addition to the purchase of the boat, he purchased a pickup for $35,000 in November 2019. When Vernon was questioned whether he believed these purchases were an appropriate use of the money under the restraining order, Vernon stated, "I didn't care.... By that time I was pretty fed up."

[¶14.] The circuit court entered findings of fact and conclusions of law and a decree granting a divorce on the grounds of irreconcilable differences. The court also entered amended findings of fact and conclusions of law in response to Vernon's post-trial objections. The court divided the parties’ marital property and, for the most part, adopted Vernon's valuation of the parties’ assets. The court awarded Vernon the marital home while Alice received the unimproved lot. The court also divided the other marital property in existence at the time of trial and ordered Vernon to pay Alice $61,830 to equalize the value of the property divided between them.2

[¶15.] The circuit court also determined that Vernon had spent up to $280,000 in what the court deemed to be marital assets in violation of SDCL 25-4-33.1. The court found that Vernon's "massive cash spending, without receipts" was unfair to Alice as she "scrimped and saved" and that Vernon's spending had been largely frivolous. The circuit court acknowledged that some of Vernon's expenditures were for necessities and to replace items Alice took from the marital home, but ultimately awarded Alice an additional sum to reflect Vernon's dissipation of the marital assets.

[¶16.] In calculating the sum that Vernon had spent, the court considered the $116,000 difference between the bank account balance in April 2019, and the account balance at the time of trial. Additionally, the circuit court found that Vernon failed to account for more than $164,000 that he received from his social security, military retirement, and disability benefits in the twenty-three months after the entry of the temporary restraining order, and when adding these amounts, the court determined that Vernon had spent $280,000 in violation of the court order. Based upon its findings, the court ordered Vernon to pay an additional cash equalization payment of $140,000 to Alice. The circuit court ordered Vernon to pay Alice a total property cash equalization payment of $201,830 ($140,000 plus $61,830) within ninety days after the entry of the divorce decree.

[¶17.] In awarding Alice permanent alimony of $1,500 per month, the court found that Vernon financially supported the couple during their 28-year marriage but recognized Alice's contributions as a homemaker and supportive companion to Vernon along with her willingness to endure Vernon's behavior caused by his...

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