Goehry v. Goehry, 13930

• Court: Supreme Court of South Dakota
• Writing for the Court: HENDERSON
• Citation: 354 N.W.2d 192
• Parties: Kelly GOEHRY, Plaintiff and Appellee, v. Robert GOEHRY, Defendant and Appellant. . Considered on Briefs
• Docket Number: No. 13930,13930
• Decision Date: 17 February 1984

Page 192

354 N.W.2d 192 Kelly GOEHRY, Plaintiff and Appellee,
v.
Robert GOEHRY, Defendant and Appellant. No. 13930. Supreme Court of South Dakota. Considered on Briefs Feb. 17, 1984.
Decided Aug. 29, 1984.

Page 193

Craig D. Grotenhouse, Rapid City, for plaintiff and appellee.

Reed C. Richards of Richards & Richards, Deadwood, for defendant and appellant.

HENDERSON, Justice.

This is a civil appeal arising from a judgment and decree of divorce entered nunc pro tunc July 13, 1982. Findings of fact and conclusions of law were formally entered after trial to the court. We affirm the alimony award and an award of attorney fees but reverse and remand on the

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property division, holding there was error below.

After twelve years of marriage, Kelly Goehry, plaintiff-appellee (hereinafter, wife) and Robert Goehry, defendant-appellant (hereinafter, husband), filed petition, answer and counterclaim seeking divorce on the basis of extreme mental cruelty. Upon those grounds, both were awarded a divorce.

Wife was awarded the family home, a Subaru automobile and one-half of the personal property acquired during marriage. Husband was awarded the family business known as Bokels Quality Interiors, an automobile, and one-half of the personal property. In addition, husband was ordered to pay wife $400 per month as alimony and to pay all of wife's attorney fees.

By this appeal and briefs, we are confronted with several issues not uncommon to cases of this nature: (1) Did the trial court err in its valuation of property; (2) did the trial court totally ignore the inheritance of husband when making a property division; (3) was the award of alimony an abuse of discretion; (4) should attorney fees have been allowed the wife; and (5) did the property division encompass error to such extent that it constituted an abuse of discretion?

Husband asserts the trial court abused its judicial discretion in the sum awarded wife as alimony, in awarding wife reasonable attorney fees, and in the property division in general. He insists he has been the major contributor to the property acquired during marriage and that the property was not distributed equitably.

At the outset, we reflect that we have historically held that a trial court has broad discretion in these matters and the determination of the trial court will not be set aside or modified unless it clearly appears there was an abuse of discretion. Palmer v. Palmer, 316 N.W.2d 631, 633 (S.D.1982). Though the trial court's discretion is broad, it is not an uncontrolled discretion. It must be soundly and substantially based upon the evidence. Owen v. Owen, 351 N.W.2d 139 (S.D.1984). The trial court's award of alimony and the division of property are considered together on appeal to determine whether the trial court abused its discretion. Krage v. Krage, 329 N.W.2d 878, 879 (S.D.1983) (emphasis supplied); Wallahan v. Wallahan, 284 N.W.2d 21 (S.D.1979); Lien v. Lien, 278 N.W.2d 436 (S.D.1979). Factors to be considered in dividing marital property in divorce proceedings and awarding alimony are: The duration of the marriage; the ages of the parties; their state of health and their competency to earn a living; the value and income-producing capacity of the property of each party; and the contribution of each party to the accumulation of the property. O'Connell v. O'Connell, 340 N.W.2d 700 (S.D.1983). In Krage, this Court listed an additional consideration for alimony, for we declared: "In addition to the factors considered in making a property division, an alimony award is also based upon the respective financial conditions of the parties after the property division and their standard of living." 329 N.W.2d at 879.

The Goehrys had been married twelve years. No children were born into the marriage. At the time of trial, wife...