Fink v. Fink, 12777

• Decision Date: 01 October 1980
• Docket Number: No. 12777,12777
• Citation: 296 N.W.2d 916
• Parties: Shirley A. FINK, Plaintiff and Appellant, v. Bernard L. FINK, Defendant and Appellee.
• Court: South Dakota Supreme Court

Page 916

296 N.W.2d 916

Shirley A. FINK, Plaintiff and Appellant, v. Bernard L. FINK, Defendant and Appellee.

No. 12777.

Supreme Court of South Dakota.

Argued March 19, 1980.

Decided Oct. 1, 1980.

Doyle D. Estes of Gunderson, Farrar, Aldrich, Warder & DeMersseman, Rapid City, for plaintiff and appellant; Michael B. DeMersseman, Rapid City, on brief.

Allen G. Nelson of Bangs, McCullen, Butler, Foye & Simmons, Rapid City, for defendant and appellee.

WOLLMAN, Chief Justice.

Plaintiff appeals from the property award provisions of the judgment entered in her action for divorce. We affirm.

The parties were married on January 31, 1975. Plaintiff, who had been married twice before, was thirty-six at the time; defendant, who had had three prior marriages, was forty-four. Plaintiff had custody of three of her children from a prior marriage and was receiving $100 a month child support. At the time of the marriage, plaintiff owned a residence in Sioux City, Iowa, an automobile, and other personal property and cash, having a net value of $24,000. Defendant had a net worth at the time of $48,000.

During the year prior to the marriage, defendant had been seriously injured in a natural gas explosion. Although he had filed a claim for damages prior to the marriage, settlement of his claim did not occur until some seven months after plaintiff had commenced her action for divorce.

During 1975 and 1976 plaintiff earned a total of $16,000 from her employment, most of which the trial court found she utilized to make mortgage payments on her residence in Sioux City and for various other personal needs and family necessities.

In July of 1975, the parties decided to purchase the property that defendant had resided upon in Union County, South Dakota, for several years prior to his marriage to plaintiff. Defendant made the downpayment on the property and utilized the proceeds of a $6,000 loan to make improvements upon the property. The trial court found that the value of plaintiff's labor performed in improving the property totaled $3,750.

In March of 1977, the parties sold the Union County property, realizing a profit of some $30,000. Shortly thereafter the parties purchased on a contract for deed real property near Nemo, South Dakota, known as the 4-T Guest Ranch, utilizing the $30,000 gain from the Union County sale as well as $5,000 that plaintiff realized from the sale of a mobile home.

In addition to the cash downpayment made on the purchase of the 4-T Guest Ranch, defendant assigned to the contract vendor his interest in his claim for personal injuries in the explosion case. In accordance with this agreement, the settlement proceeds of approximately $93,000, received in June of 1978, were placed in a savings account held jointly with the contract vendor. In September and December of 1978, defendant made payments on the contract out of this joint account in the amount of some $32,000.

Plaintiff assisted defendant in operating the 4-T Guest Ranch during June of 1977. Following an altercation with defendant, plaintiff left defendant on or about July 4, 1977, after writing a check in the amount of $1,500 on the 4-T Guest Ranch checking account. Plaintiff returned to the ranch in August of 1977 and resided there periodically until December of that year, at which time she moved to North Sioux City, South Dakota.

The trial court awarded plaintiff the personal property and cash that she had in her possession at the time of trial, totaling $14,400, and awarded defendant the personal property in his possession, having a value of $46,000. In addition, the trial court awarded plaintiff $8,750, which represented the amounts that the trial court found plaintiff had contributed to the improvement of the Union County property and to the purchase of the 4-T Guest Ranch property.

We recently 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).

Michael v. Michael, 287 N.W.2d 98, 99-100 (S.D.1980) (footnote omitted).

Plaintiff contends that the trial court failed to award her an equitable share of the jointly acquired marital assets, arguing that the trial court almost totally ignored plaintiff's contribution to the accumulation of those assets. It appears from the findings of fact, however, that the trial court made a detailed analysis of the respective contributions of the parties. A review of the record satisfies us that the findings are not clearly erroneous and that the trial court did not abuse its discretion in dividing the property.

This was not a long-term marriage during which both of the parties contributed substantially towards the accumulation of the jointly owned assets. Cf. Michael v. Michael, supra; Price v. Price, 278 N.W.2d 455 (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). No children were born of the marriage. Plaintiff is in good health and is capable of employment. She has had one year of business college. At the time of trial she was earning approximately $8,400 per year, in addition to receiving child support in the amount of $100 per month from a former husband. Defendant continues to suffer from the bodily injuries he received in the 1974 explosion. He will be required to undergo at least one additional operation for skin grafts and to straighten a finger on his right hand. Although he is able to do manual labor during the summer months,...