Currier v. Currier, 12688

• Decision Date: 21 February 1980
• Docket Number: No. 12688,12688
• Citation: 296 N.W.2d 713
• Parties: Naomi CURRIER, Plaintiff and Appellant, v. Melvin F. CURRIER, Defendant and Appellee. . Considered on Briefs on
• Court: South Dakota Supreme Court

Page 713

296 N.W.2d 713

Naomi CURRIER, Plaintiff and Appellant, v. Melvin F. CURRIER, Defendant and Appellee.

No. 12688.

Supreme Court of South Dakota.

Considered on Briefs on Feb. 21, 1980.

Decided Sept. 17, 1980.

Keith R. Smit of Morman, Smit, Shepard, Hughes & Wolsky, Sturgis, for plaintiff and appellant.

Joseph H. Neumayr, P.C., Gettysburg, for defendant and appellee.

WOLLMAN, Chief Justice.

Appellant, who was the plaintiff in the trial court, appeals from the provisions of a decree of divorce. We reverse and remand.

The parties were married in 1946. They adopted one child, who at the time of the divorce in 1978 had reached adulthood. Both parties were 54 years of age at the time of the divorce. The trial court entered judgment awarding a divorce to both parties.

The parties' assets consisted of 1480 acres of Sully County farm and ranch land, together with livestock and other personal property. The trial court found that the parties had a net worth of $313,000.

The divorce decree provided that appellant was to receive $3,000 cash within 30 days after the decree was final, alimony in the amount of $800 per month, and one quarter section of land, valued at $47,000, which appellee was to convey to appellant on January 1, 1983. After that date, appellant would be required to lease the quarter section to appellee for three years on a year-to-year prepaid cash-rent basis. Appellee was given the right to purchase the land on the basis of meeting any offers that appellant might receive from third parties. The decree also provided that the conveyance of the quarter section would constitute a material change of circumstances that would require a full review of the question of alimony, including whether any alimony should be continued after January 1, 1983. Finally, the decree provided that appellee was to provide adequate health insurance for appellant and that appellant should have the right to receive social security benefits based upon appellee's entitlement when appellant reached age 62.

During the course of the marriage appellant experienced mental illness, resulting in her hospitalization on several occasions.

Appellant's participation in the farming and ranching operation was typical of that of many housewives. She attended to the household duties and chores, helped to raise her son, and helped on occasion with the farm chores and field tasks.

In Michael v. Michael, 287 N.W.2d 98 (S.D.1980), we restated the principles governing our review of a trial court's division of property in a divorce case:

In reviewing defendant's contention that the trial court erred in making a division of the property, we start with the general proposition that under SDCL 25-4-44 the trial court has broad discretion in making a division of marital property. This court will not set aside or modify a trial court's decision in this regard unless it clearly appears that the trial court abused its discretion in entering its judgment. Price v. Price, 278 N.W.2d 455 (S.D.1979); Lien v. Lien, 278 N.W.2d 436 (S.D.1979); Hansen v. Hansen, 273 N.W.2d 749 (S.D.1979); Kittelson v. Kittelson, 272 N.W.2d 86 (S.D.1978). In making an equitable division of property, a trial court is not bound by any mathematical formula but is to make the award on the basis of the material factors in the case, having due regard for equity and the circumstances of the parties. These factors include the duration of the marriage, the value of the property of each of the parties, the ages of the parties, their health and competency to earn, and the contributions of each of the parties to the accumulation of the marital property. Kressly v. Kressly, 77 S.D. 143, 87 N.W.2d 601 (1958). See also Hansen v. Hansen, supra; Lien v. Lien, supra; Vaughn v. Vaughn, 252 N.W.2d 910 (S.D.1977); Hanson v. Hanson, 252 N.W.2d 907 (S.D.1977).

287 N.W.2d at 99-100 (footnote omitted).

We have here a marriage of some 32 years' duration. Appellant has suffered from emotional problems during much of her married life. She is not equipped by her training, experience or emotional state to engage in any work that would result in more than minimal compensation. Her contribution to the acquisition of the marital property, although not as substantial as that of the parties in other cases we have had under review, was more than de minimis. As we held in Kittelson v. Kittelson, 272 N.W.2d 86 (S.D.1978), the performance by a mother and housewife of the tasks of raising children, preparing meals, washing clothes, and performing related duties constitutes a valuable contribution to the accumulation of farm property. There is no doubt but that appellant's emotional problems substantially incapacitated her from performing these various duties at the level and with the consistency that might be expected of one not so afflicted, and there is no doubt that her periodic hospitalizations caused appellee to incur substantial expenses on appellant's behalf. Nonetheless, appellant is entitled to receive an award that more closely reflects her contributions to the accumulation of the property during the marriage and more closely approximates her needs.

We appreciate the trial court's apparent attempt to provide adequately for an individual who may very well be ill-equipped to manage large amounts of money or property and to preserve as a self-supporting unit appellee's remaining farm and ranch operation. This latter consideration, however, should not be paramount to an adequate, equitable division of the property. Hanson v. Hanson, 252 N.W.2d 907 (S.D.1977).

Even when considered in the light of the award of alimony, the award of property to appellant is modest enough, but when viewed in the light of the trial court's announced intention to review and possibly terminate alimony payments after the conveyance of the land to appellant, the property award does not represent an equitable division. If the trial court desired to frame the decree in terms that would distribute appellant's share of the award in such a way as to insure that it would be safeguarded against appellant's possible ineptitude in managing it, then a mechanism other than that represented by an award of alimony, which at best lacks the permanency of an outright award of property and which in the instant case is almost foreordained to be reduced, should have been employed.

That portion of the judgment and decree of divorce which makes a division of the property and awards alimony is reversed, and the case is remanded to the circuit court for further proceedings. The trial court is directed to make an award to appellant for attorney fees for prosecuting this appeal. ^*

DUNN, MORGAN and FOSHEIM, JJ., concur.

HENDERSON, J., dissents.

HENDERSON, Justice (dissenting).

I respectfully dissent.

The law is well settled in this state that the Supreme Court will not disturb an award of alimony or a division of property unless it clearly appears that the trial court abused its discretion in entering its judgment. Guindon v. Guindon, 256 N.W.2d 894 (S.D.1977); Stenberg v. Stenberg, 90 S.D. 229, 240 N.W.2d 100 (1976); Rock v. Rock, 89 S.D. 583, 236 N.W.2d 191 (1975). This general principle was reannounced in three different cases in this Court as recent as last year: Price v. Price, 278 N.W.2d 455 (S.D.1979); Lien v. Lien, 278 N.W.2d 436 (S.D.1979); Kittelson v. Kittelson, 272 N.W.2d 86 (S.D.1978).

I am of the firm conviction that the trial court made a conscientious, studied and wise effort to reach an equitable property award and to provide adequate alimony for a mentally disturbed woman. Thus, I cannot bring myself to vote for a reversal of the trial court's decision based upon the premise that the trial court clearly abused its discretion.

The root of my dissent is that appellant cannot till, manage, or operate the farm. Appellee can. Thus, she should not be awarded a large acreage of the farm. Appellee can keep this farm together so that it will produce income for both of these litigants. The majority opinion, in effect, kills the goose that lays the golden egg. If the majority opinion would have the trial judge below reallocate and readjudicate the farm acreage, and assuming that I am correct that she cannot manage the land, what will become of the land? Will she sell it? If so, and the unit is dissected, then how will appellant make a living on the farm for either himself or this mentally disturbed woman? An appreciable award of land unto appellant will rupture the only asset of the parties that produces income.

We are all...