Dixon v. Dixon

• Decision Date: 12 January 1988
• Docket Number: No. 15788,15788
• Citation: Dixon v. Dixon, 423 N.W.2d 507 (S.D. 1988)
• Parties: Brenda Lee DIXON, Plaintiff and Appellee, v. Roger Dean DIXON, Defendant and Appellant. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 507

423 N.W.2d 507

Brenda Lee DIXON, Plaintiff and Appellee, v.Roger Dean DIXON, Defendant and Appellant.

No. 15788.

Supreme Court of South Dakota.

Considered on Briefs Jan. 12, 1988.

Decided April 27, 1988.

Linda Lea Viken of Finch, Viken, Viken & Pechota, Rapid City, for plaintiff and appellee.

Jacqueline M. Rasmussen of Nelson & Harding, Rapid City, for defendant and appellant.

MILLER, Justice.

This is an appeal from a judgment amending decree of divorce wherein the trial court increased the amount of child support, required a wage assignment from husband, entered civil judgment against husband as reimbursement for losses sustained in the sale of the property, denied a reduction in alimony, and awarded attorney fees.We affirm in part, and because of the improper utilization of affidavits on certain issues, we reverse in part and remand.

FACTS

Because of the state of the record, it is necessary to segregate this section into two parts (1) undisputed factual background and (2) matters at issue.There are no transcripts or depositions in the record.As will be alluded to later, the disputed facts were submitted to the trial court by way of affidavit and written argument of counsel.

(1) Undisputed Factual Background--From our review of the record and the appellate briefs it appears that the following factual scenario is not in dispute.

Brenda Lee Dixon(wife), and Roger Dean Dixon(husband), were married on November 11, 1967.Two daughters, presently ages eleven and twelve, were born of this marriage.The parties were divorced on January 25, 1985.Husband was, and still is, steadily employed.Husband is now remarried and allegedly contributes to the support of his present wife's children, who are not his own.

The parties, who were represented by counsel in the divorce, entered into a stipulation and agreement which was ultimately accepted and incorporated into the divorce decree by the trial court.Pursuant to this stipulation, the debts and obligations of the parties were divided.Alimony was set at $333 per month from February 1985 to February 1986; commencing March 1986 alimony was to be reduced to $250 per month, with the provision that when, and if, wife received employment and earned a salary over $700 per month, alimony would be reduced to $100 per month.

The parties were granted joint legal custody of the minor children, with physical custody granted to wife subject to a schedule of visitation for husband set out in the agreement.Child support was set at $250 per month per child, with husband and wife each allowed to claim one of the children for purposes of income tax exemptions.Finally, husband was to deposit $10 per month into the children's savings accounts for their post-secondary education.

During the course of the marriage, the parties acquired real property, consisting of the marital home and an adjoining mobile home park.This property was purchased for $95,000 in 1978, on a contract for deed.Under the decree, the title to the real property was transferred to a tenancy in common and placed for sale.¹The relationship established in the stipulation and in the divorce decree was that of the husband in the role of landlord and wife in the role of tenant.Husband was given sole responsibility for the payment of insurance, taxes, and the payments on the contract for deed.Additionally, husband was to collect all rental income from the mobile home park.Accordingly, husband was to assume complete managerial responsibility and to specifically be responsible for all maintenance and repairs to the residence and property.Until the real property was sold, wife and children were granted the exclusive possession and use of the marital home.Husband was also ordered to pay wife $6,500 plus ten percent interest (approximately $120.42 per month for seventy-two months).

Subsequent to the divorce, problems developed.A hearing was held and later, on April 30, 1985, the court entered an order entitled "Terms and Conditions of Occupancy, Maintenance and Use of the Marital Home and Land."Basically, the order specified and clarified the terms provided in the stipulation and agreement, which had been incorporated in the divorce decree.(At this hearing, custody and visitation were also placed at issue and subsequently, on September 3, 1985, the parties stipulated to an order for mediation to resolve visitation conflicts.However, after two sessions, husband cancelled further appointments.)

On August 1, 1986, wife received notice of default on the contract for deed on the real property, with the payment of $1,250 past due since December 20, 1985.The notice advised that unless payment was made within thirty days, the deed holder would foreclose.

(2) Matters at Issue--On August 4, 1986, husband (through new counsel) filed a motion for an order to show cause, requesting an amendment to the decree of divorce seeking the principal care, custody and control of the minor children, or in the alternative an adjustment of the custody and visitation schedule, and a reduction of the alimony payments.Husband also claimed that he should receive some credit for the "free rental" enjoyed by wife for living in the home pending the sale of the property.This motion was supported by a three-page affidavit with two attachments itemizing certain of his income and expenses.The affidavit specifically requested that oral testimony be allowed.(This is the last such request by any party contained in the record.)

Wife then filed a motion for contempt on September 10, 1986.She also filed an affidavit in response to the order to show cause and in support of her own motion for contempt.Following this filing was a flurry of affidavits by both parties making assertions and accusations against each other.

As far as we can tell from the record, no hearing was held on the above specific motions.However, after a hearing held on September 15, 1986, the trial court did enter an interim order requiring husband to quitclaim his interest in the real estate to wife and further giving her absolute authority to sell the property.The court also ordered that it would later determine the amount husband owed wife "as a result of the loss on the sale of the property."(There is no transcript of this hearing.The trial court entered no memorandum decision nor findings and conclusions.Apparently the court assumed that the property would sell for less than the agreed price and that husband was at fault for such.Because of the state of the record, we are not privy to the argument of counsel nor the court's rationale on this interim order.)

After the trial court entered the interim order, wife filed a motion for increase in child support and alimony.Once again, the flurry of affidavits continued with both parties making additional accusations and assertions against each other.Attached to some of the affidavits were various documents, which the parties felt supported their claims.

The record also contains correspondence of counsel to the court, usually in the form of argument on the merits.²

On January 21, 1987, the trial court filed a memorandum decision in which it specifically stated that "the matter has been submitted on affidavits and by way of argument through correspondence with the court.I do not need additional testimony to decide the issues now before the court."The court, which later adopted findings of fact and conclusions of law implementing specific portions of its memorandum decision,

(1) denied husband's request for reduction of alimony and child support,

(2) continued the custody and visitation as previously ordered,

(3) determined that the sale of the real estate was less than what it was worth because of the conduct and "obstreperous behavior" of husband and that he frustrated the sale of the property,

(4) determined that because husband was responsible for the shortfall referred to in (3) wife's equity should have been $12,668, but that she only received $6,333,

(5) because of (3) and (4), ordered a civil judgment against husband for $6,335,

(6) increased child support payments by $59 per month pursuant to the statutory guidelines (SDCL 25-7-7),

(7) granted a wage assignment in the amount of child support and alimony, and

(8) awarded attorney fees of $1500.

On appeal, husband argues (by way of his third lawyer), among other things, that the court received insufficient evidence with regard to the property, the cause of any disrepair, the real estate market and its effect upon the sale price, and received no testimony with regard to this except that contained in conclusionary affidavits of the parties.The other issues were also decided only upon consideration of various affidavits with attachments filed by the parties, the correspondence of counsel with various attachments, and argument of counsel.

DECISION

USE OF AFFIDAVITS

The trial court was confronted with a complex set of greatly disputed facts.Its experience with the parties, the property, the litigation, and the procedural history of the case, may very well have aided it to the extent that it did "not need additional testimony."However, due to the absence of any transcripts and the state of the record, we do not have that luxury.Perhaps additional testimony was not needed for its purposes, but it surely is for ours.Wife argues that husband consented to the procedure by not insisting on oral testimony and by participating in the method of the proceedings.However, that argument does not respond to our need to have the ability to make a meaningful review on appeal.

We begin with the basic premise that "[a]ffidavits are unsatisfactory as forms of evidence; they are not subject to cross-examination, combine facts and conclusions and, unintentionally or sometimes even intentionally, may omit important facts or give a distorted picture of them."Brewster v. F.C. Russell Co., 78 S.D. 129, 132, 99 N.W.2d 42, 44(1959);2A C.J.S.Affidavits...