Evans v. Evans, s. 19604

• Decision Date: 04 December 1996
• Docket Number: Nos. 19604,19626,s. 19604
• Citation: 1997 SD 16,559 N.W.2d 240
• Parties: Edwin E. EVANS, Plaintiff and Appellee, v. Cynthia S. EVANS, Defendant and Appellant. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 240

559 N.W.2d 240

1997 SD 16

Edwin E. EVANS, Plaintiff and Appellee, v. Cynthia S. EVANS, Defendant and Appellant.

Nos. 19604, 19626.

Supreme Court of South Dakota.

Considered on Briefs Dec. 4, 1996.

Decided Feb. 19, 1997.

Mark V. Meierhenry of Danforth, Meierhenry & Meierhenry Sioux Falls, for plaintiff and appellee.

Lee R. Burd, Sioux Falls, for defendant and appellant.

GILBERTSON, Justice.

¶1 Cynthia (Cyndy) Evans and Edwin (Ed) Evans both appeal issues arising from the circuit court's division of property and awards of child support and alimony, and attorney's fees. We affirm, except to reverse and remand to the trial court for an appropriate discounting of the valuation of the insurance policies together with a corresponding equitable property adjustment, addressed under issue two, infra.

FACTS AND PROCEDURE

¶2 Ed and Cyndy were married in June 1973, following completion of Ed's first year of law school. Cyndy had completed her college degree and worked full time from the beginning of the marriage until the parties moved to Sioux Falls in June 1977. At that time Cyndy was expecting her first child. She did not return to the work force.

¶3 The parties' lifestyle was such that they belonged to a country club, had household help, and dined out frequently. They generally took two family vacations a year. The record reflects Ed worked many hours, including evenings and some weekends, and was often required to be out of town for days to weeks at a time. Cyndy volunteered her time in community, church, and school-related activities.

¶4 The parties have two children, Ashley and Kelsey, who were ages 17 and 14, respectively, at the time of the divorce trial. They attend parochial school and participate in many school and extracurricular activities. They drive late model cars and wear the best brand-named clothing. Cyndy has largely been responsible for coordinating the children's activities. While Ed was not available as much as Cyndy, he, too, took an active interest in their children, assisting them with their homework and driving them to out-of-town functions.

¶5 In 1990, the parties began construction of a new home in Sioux Falls which ultimately cost considerably more money than had been originally planned. Around this time, Cyndy discontinued her volunteer activities and devoted her time instead to tennis and other personal interests. The parties admit they had problems with communication; the marriage began to deteriorate. In 1993, Cyndy invited a twenty-seven-year-old male tennis friend to move into the family's residence without discussing it with Ed and without his knowledge. When Ed learned of his wife's house guest, he left home for a few days but returned at the children's request. He attempted to improve his relationship with Cyndy, but she showed little interest in his attempts and spent evenings out with her friends, returning home in the early morning hours. Ed moved into a separate bedroom to show his displeasure, but the couple did not discuss their problems. By the summer of 1994, Cyndy had ceased attending family vacations, preferring instead to spend time with her friends at Lake Okoboji, while Ed and the children took family vacations without her. In the fall of 1994, Ed learned Cyndy was having an affair with a man who owned a home in Lake Okoboji. Although Cyndy initially denied the affair, she eventually admitted it was true. Upon learning this, Ed moved out of the parties' home.

¶6 Ed and Cyndy attempted a reconciliation, Cyndy promising to discontinue the affair and Ed promising to spend less time at work and more time with Cyndy and the children. Ed returned home, bought Cyndy a new car that she wanted, planned a family vacation in Jamaica for Thanksgiving, and purchased tickets for a concert Cyndy wanted to attend in Minneapolis. Within four days of Ed's return home, Cyndy announced she did not intend to stop seeing other men. Ed left home for the last time.

¶7 He continued spending time with Cyndy however, and the family went on the planned vacation and to the concert and shopping trips in Minneapolis. Ed continued to provide spending money and paid the household expenses. He reduced his hours at work. Ed sought counseling and encouraged Cyndy to attend counseling sessions with him, or alone. She refused. Ed eventually gave up trying to reconcile the marriage.

¶8 During this period of separation, Ed paid Cyndy $10,000 per month to support her and their children. She stated they could not live on this amount. Ed suggested she sell the house. Cyndy refused and Ed filed the divorce action.

¶9 The trial court heard the matter over a four-day period, October 30-31, 1995, and on December 12-13, 1995. The trial court determined issues involving child support, property division, alimony award, and attorney fees. On February 16, 1996, the trial court awarded Ed a divorce on grounds of adultery and dismissed Cyndy's counterclaim. Both parties appeal the judgment of the trial court.

¶10 Cyndy raises three issues as follows:

1. Whether the trial court abused its discretion in failing to consider the children's actual needs and standard of living in setting child support?

2. Whether the trial court erred by transferring ownership of insurance policies from the parties to the children, thereby excluding the property from the marital assets?

3. Whether the trial court erred in determining the amount of alimony awarded?

¶11 Ed raises two issues by Notice of Review:

1. Whether the trial court erred in awarding rehabilitative alimony?

2. Whether the trial court erred in awarding attorney fees?

¶12 We will address each issue seriatim.

ANALYSIS AND DECISION

¶13 1. Whether the trial court abused its discretion in failing to consider the children's actual needs and standard of living in setting child support?

¶14 SDCL 25-7-6.2 provides guidelines that trial courts must follow in setting child support amounts. However, where the parties' income exceeds the statutory guidelines, SDCL 25-7-6.9 provides the child support obligation "shall be established at an appropriate level, taking into account the actual needs and standard of living of the child." In Jones v. Jones, 472 N.W.2d 782, 785 (S.D.1991), we held establishment of child support obligations above the statutory guidelines was within the trial court's discretion, taking into account the child's actual needs and standard of living. Accord Earley v. Earley, 484 N.W.2d 125, 127-28 (S.D.1992), cert. denied , 506 U.S. 895, 113 S.Ct. 272, 121 L.Ed.2d 200 (1992). See also Bloom v. Bloom, 498 N.W.2d 213, 217 (S.D.1993) ("the trial court may calculate support by mathematical extrapolation, but it is not obligated to do so.... [T]he essential inquiry remains the actual needs and standard of living of the children." (Emphasis in original.)).

¶15 Cyndy sought $5,000 per month in child support, however, she produced an exhibit which listed expenses of $4,410 per month. Itemized, this figure included:

                $  400  for food
                   580  for vehicle expense
                   110  per month for medical expense
                   550  per month for educational expense
                   500  per month for vacations
                   100  per month for dining out
                   550  for entertainment and allowances
                   200  for clothing purchases
                  1300  for tennis expenses (Kelsey only) (clothes, supplies, lessons
                          tournament travel)
                    60  for piano lessons
                    25  for beauty shop expenses
                    25  for cosmetics expenses
                    10  for newspapers and subscriptions
                ------
                $4,410
                

¶16 The trial court ruled at an interim hearing that $1,300 per month for tennis expenses was clearly excessive and Ed would not be required to pay this expense. In so doing, the trial court noted:

[W]hile the parties may jointly decide that they want the children to participate in tennis activities to that extent, that needs to be a joint decision of the parties including a joint decision as to how that will be paid for. If the parties mutually agree that they want to provide those kind of opportunities for the girls they are certainly entitled to do so but the court will not force husband to engage in that kind of expenditures. The decision in [Ochs v. Nelson, 538 N.W.2d 527 (S.D.1995) ] was that the child should be allowed to participate in some of the father's high standard of living and did not mandate that the child be permitted to engage in all of the father's high standard of living. (Emphasis in original.)

See Bloom, 498 N.W.2d at 218 (trial court did not abuse its discretion in failing to find a cello, designer clothing, ballet lessons and language camps did not constitute children's needs in determining amount of child support obligation).

¶17 Subtracting the $1,300 per month tennis expense from Cyndy's itemized living expenses for the children leaves a balance of $2,185 per month. The trial court ordered Ed to pay child support in this amount, plus pay $500 per month in allowances directly to the children, and $600 per month for their tuition at parochial school, and provide health insurance for each child, for a total child support obligation of $3,505 per month. ¹ The trial court noted that Ed had agreed to pay the children's allowances, parochial school tuition, medical insurance, and college expenses. The trial court noted this child support award still provided a "luxurious lifestyle" for the two girls. ²

¶18 On appeal, Cyndy notes the amount of Ed's child support obligation, as determined by the trial court, is approximately 12% of his $25,000 net monthly income. Cyndy argues the trial court made two errors: 1) it applied the wrong legal standard by focusing on the children's needs rather than their standard of living; and 2) it substituted its personal judgment of what the children's standard of living should be, for the standard set by the parties themselves during their marriage.

¶19 In the trial court's memorandum decision, it cited "the needs of the children and the father's ability to pay" as the...