Driscoll v. Driscoll, No. 19672

• Court: Supreme Court of South Dakota
• Writing for the Court: STEELE
• Citation: 568 N.W.2d 771,1997 SD 113
• Parties: Helen J. DRISCOLL, Plaintiff and Appellant, v. Robert E. DRISCOLL, III, Defendant and Appellee. . Considered on Briefs
• Decision Date: 18 February 1997
• Docket Number: No. 19672

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568 N.W.2d 771 1997 SD 113 Helen J. DRISCOLL, Plaintiff and Appellant,
v.
Robert E. DRISCOLL, III, Defendant and Appellee. No. 19672. Supreme Court of South Dakota. Considered on Briefs Feb. 18, 1997.
Decided Sept. 10, 1997.

Timothy L. James of James & Associates, Yankton, for Plaintiff and Appellant.

Lee R. Burd, Sioux Falls, for Defendant and Appellee.

STEELE, Circuit Judge.

¶1 Plaintiff and appellant, Helen Driscoll, appeals from an order of the trial court denying a modification of rehabilitative alimony, denying her request to find the defendant, Robert "Mike" Driscoll, in contempt for failure to make payment of alimony, and denying attorney fees. We affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Helen and Mike Driscoll married December 16, 1977; the marriage terminated by decree of divorce entered September 6, 1991. Helen worked until just before the divorce when ill health forced her to quit. Prior to leaving the work force, she gained experience managing an art gallery, practicing law and teaching. Mike, also an attorney, is the former dean of the University of South Dakota School of Law. Helen now lives in California, and, as her health permits, is pursuing a career as a screenwriter. Mike retired in 1993 and serves as a director of the American Colloid Company.

¶3 At the time of the divorce, the court incorporated a stipulation and agreement between Helen and Mike into the judgment and decree of divorce. Pursuant to this stipulation and agreement, Helen was awarded rehabilitative alimony in the amount of $2,625 per month for a period of five years, subject to reduction on a sliding scale based on changes in Helen's future employment situation.

¶4 Two paragraphs of the stipulation and agreement are of particular importance to this appeal. Paragraph 10 of the stipulation and agreement deals with the value of the American Colloid Company stock and provides:

It is expressly stipulated and agreed that an increase in the value of stock in American Colloid Company shall never be raised by the Plaintiff or deemed by the Court to be a material change in circumstances which might otherwise justify a modification of the terms of the Judgment and Decree of Divorce.

Paragraph 17 deals with Helen's health and reads as follows:

It is expressly stipulated and agreed that a change in the health of the Plaintiff shall never be raised by her or deemed by the Court to be a material change of circumstances which might otherwise justify a modification of the terms of the Judgment and Decree of Divorce.

¶5 Since the divorce, Helen's health has seriously deteriorated, making employment difficult. Additionally, Mike's stock in American

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Colloid has substantially increased in value. Helen has suffered through an automobile accident and an injury involving a shopping cart which have contributed to the deterioration of her health. She has also undergone a number of surgeries.

¶6 Helen has used a good portion of the property settlement to relocate from an apartment in a bad neighborhood to a house which she purchased in a better location for $295,000. She has invested an additional $150,000 in improvements to that house as it was in poor condition at the time of purchase. Her mortgage payment is over $1,100 per month and the real estate taxes are approximately $4,000. She receives approximately $600 in rent per month from an apartment attached to the garage of the home.

¶7 Since the divorce, Mike's net worth has increased due to the increase in value of the American Colloid stock, stock splits, and large stock gifts. His current income is approximately the same as it was at the time of the divorce; however, it is largely unearned. He now draws from the South Dakota Retirement System, receives stock dividends and works part time on the American Colloid Board of Directors.

¶8 Due primarily to Helen's continued health problems which prevent her working for extended periods of time in a day, she requested a modification or extension of the rehabilitative alimony agreed to in the stipulation, which was incorporated into the judgment and decree of divorce.

ISSUES

¶9 Three issues are presented for review:

1. Did the trial court abuse its discretion by refusing to extend or modify rehabilitative alimony when there has been a change of circumstances because of Helen's deteriorating health?

2. Did the trial court err by refusing to hold Mike in contempt for failing to make alimony payments?

3. Did the trial court abuse its discretion by denying Helen's request for attorney fees?

STANDARD OF REVIEW

¶10 "We will not disturb an award of alimony unless the trial court clearly abused its discretion." Saxvik v. Saxvik, 1996 SD 18, p 9, 544 N.W.2d 177, 179 (citing Steffens v. Peterson, 503 N.W.2d 254 (S.D.1993)). The standard of review with regard to award of attorney fees is also abuse of discretion, looking at the totality of the circumstances. Kappenman v. Kappenman, 522 N.W.2d 199 (S.D.1994). We review the trial court's findings as to contempt under a clearly erroneous standard. Taecker v. Taecker, 527 N.W.2d 295, 298 (S.D.1995).

ISSUE ONE

¶11.Did the trial court abuse its discretion by refusing to extend or modify rehabilitative alimony when there has been a change of circumstances?

¶12 An important fact which must be considered in this case is that the parties agreed at the time of the stipulation that...