Dussart v. Dussart, No. 19010

• Court: Supreme Court of South Dakota
• Writing for the Court: KONENKAMP; MILLER
• Citation: 1996 SD 41,546 N.W.2d 109
• Parties: Stacy DUSSART, Plaintiff and Appellant, v. Michael R. DUSSART, Defendant and Appellee. . Considered on Briefs
• Decision Date: 15 September 1995
• Docket Number: No. 19010

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546 N.W.2d 109 1996 SD 41 Stacy DUSSART, Plaintiff and Appellant,
v.
Michael R. DUSSART, Defendant and Appellee. No. 19010. Supreme Court of South Dakota. Considered on Briefs Sept. 15, 1995.
Decided April 17, 1996.

Lelia L. Hood of Wurm and Hood, Prof. L.L.C., Rapid City, for plaintiff and appellant.

Mitchell D. Johnson, Rapid City, for defendant and appellee.

KONENKAMP, Justice.

¶1 Stacy A. Dussart appeals from a decree of divorce, challenging the sufficiency of her rehabilitative alimony award, as well as the trial court's refusal to award attorney fees. We affirm in part, reverse in part, and remand.

FACTS

¶2 Michael R. Dussart and Stacy were married approximately ten years at the time they were divorced. Stacy's complaint sought a divorce on irreconcilable differences. Later, after Michael had answered the complaint and without seeking leave of court to amend, Stacy served and filed an amended complaint. This amended complaint alleged additional grounds for divorce based on fault. Following trial, a divorce was granted on irreconcilable differences and Stacy was awarded rehabilitative alimony of $200 per month for thirty-six months

ISSUES

¶3 I. Did the trial court err in granting Stacy a divorce on the basis of irreconcilable differences rather than upon fault?

¶4 Stacy argues the trial court should have granted her a divorce on the grounds of emotional cruelty and adultery; she did not consent to a "no-fault" divorce and her amended complaint did not aver irreconcilable differences. She also claims Michael should be deemed to have admitted fault as alleged in her amended complaint because he filed no amended answer and

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because evidence of fault was presented at trial and thus was tried by implied consent of the parties. We disagree.

¶5 True, a divorce may not be granted on irreconcilable differences unless both parties consent. Osman v. Keating-Osman, 521 N.W.2d 655, 656 (S.D.1994); SDCL 25-4-17.2. In this case, however, Stacy's own original complaint sought a divorce on the grounds of irreconcilable differences. Nothing in the record shows Stacy legally discarded irreconcilable differences as an alternative basis for the divorce: her amended complaint was not properly before the court. In granting the divorce, the trial court expressly ruled on the basis of Stacy's original complaint alleging irreconcilable differences. The record is replete with evidence of the substantial differences between the parties from which the trial court could conclude irreconcilable differences existed and were consented to by both parties as the basis of the divorce.

¶6 Issues tried by implied consent are to be treated as if they were regularly raised by the pleadings. Wasserburger v. Consolidated Mgmt. Corp., 502 N.W.2d 256, 261 (S.D.1993). Yet at no time--not during trial, after trial, or even after filing of the judgment--did Stacy move to have the pleadings conform to the evidence on fault to support her contention the issue was tried by implied consent. As no such motion was made, Stacy's argument that SDCL 15-6-15(b) permits amendments to pleadings even after judgment is misplaced. Stacy did make a proposed finding on this point, but that does not satisfy the requirement that a motion be made to the trial court to amend the pleadings. We have consistently adhered to the principle that a complaining party must give the trial court an opportunity to consider claimed irregularities and rule on them. See Miller v. Hernandez, 520 N.W.2d 266, 271-72 (S.D.1994). Stacy failed to do so here.

¶7 Likewise, her argument that Michael should be deemed to have admitted fault based on his failure to respond to her amended complaint assumes she properly pleaded fault as an issue for trial. Stacy never sought or received court approval to file an amended complaint as required by SDCL 15-6-15(a). We find no abuse of discretion in awarding a divorce on irreconcilable differences.

¶8 II. Did the court abuse its discretion in awarding only $200 a month in rehabilitative alimony?

¶9 Stacy argues she is entitled to substantially more rehabilitative alimony. Our standard of review in challenges to such awards was recently reiterated in DeVries v. DeVries, 519 N.W.2d 73, 77 (S.D.1994). A trial court is vested with discretion in awarding alimony and its decision will not be disturbed unless it clearly appears the trial court abused its discretion. Id. Trial courts must consider the following factors when setting an alimony award: (1) the length of the marriage; (2) the parties' respective ages and health; (3) the earning capacity of each party; (4) their financial situations after the property division; (5) their station in life or social standing; and, (6) the relative fault in the termination of the marriage. Id. A trial court's findings on these factors must support its legal conclusions. See, e.g., Fox v. Fox, 467 N.W.2d 762 (S.D.1991) (where trial court's findings justified award of alimony, no abuse of discretion occurred in determining wife was entitled to alimony). As often stated, an abuse of discretion exists only where discretion has been "exercised to an end or purpose not justified by, and clearly against, reason and evidence." DeVries, 519 N.W.2d at 75.

¶10 A review of the findings of fact and conclusions of law entered by the trial court in support of its judgment demonstrates the court considered all the necessary factors, including the duration of the marriage, the traditional roles assumed by Stacy as homemaker and mother, and by Michael as a career military member. Findings were also made on Stacy's ability to attain only minimum wage employment if she obtains no additional education, and her desire for further education in the dietary field. The court also considered the health of the parties, noting that Michael is in good health

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and that Stacy is in fair health, and suffers from damage to her sciatic nerve.

¶11 Stacy's appeal is based upon her belief the trial court's award of $200 per month for thirty-six months is inadequate, because she will not be self-sufficient in three years. Her brief portrays her perceived need for additional support, but does not demonstrate any particular manner in which the trial court's discretion was abused in setting the amount of alimony. Stacy's claim for rehabilitative alimony is based on her plan to obtain additional education as a dietitian. At trial, she testified her proposed...