Guindon v. Guindon, 11871

Decision Date17 August 1977
Docket NumberNo. 11871,11871
Citation256 N.W.2d 894
PartiesCharlean R. GUINDON, Plaintiff and Appellant, v. Fred V. GUINDON, Defendant and Respondent.
CourtSouth Dakota Supreme Court

Richard W. Sabers of Dana, Golden, Moore & Rasmussen, Sioux Falls, for plaintiff and appellant.

Steve Jorgensen of Willy, Pruitt, Matthews & Jorgensen, Sioux Falls, for defendant and respondent.

ZASTROW, Justice.

Appellant, Charlean R. Guindon, appeals the temporary alimony and property settlement awarded her in a divorce action against the respondent, Fred Guindon. We reverse and remand for further proceedings.

The appellant and respondent had been married for twenty-eight years prior to their divorce. Although three children were born to the marriage only one is a minor. The respondent was the senior member of a three-man veterinary clinic. Periodically, appellant was employed as a clerk in her husband's veterinary clinic. Neither party had much property at the time of marriage, nor had either party received any substantial gifts or inheritances during the marriage. The testimony at trial revealed that the appellant had helped support the respondent while he was attending veterinary school and had actively assisted her husband in amassing their personal wealth. At the time of the trial, the appellant was completing her final year of college and intending to obtain a teaching certificate.

After a review of the evidence submitted to the court, findings of fact, conclusions of law and a divorce decree were entered. The court awarded a divorce to the appellant on the grounds of comparative rectitude. 1 The judgment, after granting a divorce to the appellant, provided: (1) $400 per month alimony until appellant completed her college education, not exceeding two years; (2) the respondent was to pay all taxes and one-half of the maintenance expenses on the family residence; (3) the appellant was to have use of the residence until their minor son reaches his majority or the appellant completes her college education, at which time the house would be sold and the proceeds divided equally between the appellant and respondent; (4) the respondent was obligated to pay $150 per month child support; (5) the appellant received all of the personal property presently located in the family residence, a 1973 Pontiac Grand Ville, and 2000 shares of Investor's Mutual, Inc.; (6) the respondent was to keep in effect a $35,000 permanent life insurance policy and have as beneficiaries the appellant and their minor son; after the minor son reaches his majority, his name as beneficiary was to be removed and the appellant was to remain as the sole beneficiary until she died or remarried; and (7) $1,300 in attorney fees was awarded to the appellant in addition to prior fees awarded by an interim court order.

The respondent was awarded a 1974 Pontiac Ventura, 548 shares in Investor's Stock Fund, Inc., shares in IDS McCollock Oil Exploration Stock, a 1974 Detroiter Mobile Home (subject to a mortgage), farm acreage valued at $8,000, livestock valued at $700, various equipment valued at $2,000, a 1973 pickup with veterinary equipment box, and one-half interest in the family residence.

The appellant claims that she should have been granted larger and lengthier alimony payments and a larger property settlement. The appellant specifically contends that the trial court abused its discretion in establishing low values for various assets which were awarded to the respondent, and in not including as assets of the marriage (1) the respondent's shares of stock in the professional veterinary corporation, (2) his one-third share in a real estate partnership, and (3) twelve tons of hay and oats. Finally, the appellant submits that the trial court wrongly concluded and required the respondent to assume a "debt" when it was in fact a note payable to the respondent.

It is settled law in South Dakota that this reviewing court will not disturb an award of alimony or a division of property unless it clearly appears that the trial court abused its discretion in entering its judgment. SDCL 25-4-41; SDCL 25-4-44; SDCL 15-6-52(a); Rock v. Rock, 1975, S.D., 236 N.W.2d 191; Stenberg v. Stenberg, 1976, S.D., 240 N.W.2d 100.

This court does not "sit as a trier of fact, and thus we will not attempt to place a valuation on any of the assets involved in the property settlement. Rather, our review is limited to whether the trial court divided the assets in an equitable manner." Stenberg v. Stenberg, supra. However, the trial court must place a value upon all of the property held by the parties and make an equitable distribution of that property. The evidence presented shows that the veterinary clinic corporation did own business equipment and inventory and that the corporate shares did have some value. The real estate investment partnership clearly held an equitable interest of $15,000 or more in the lot and building it leased to the veterinary clinic corporation. 2 However, the trial court failed to place any value upon the respondent's interest in the corporation or partnership.

The trial court made no finding of fact that the debt owed by Dr. Lounsberry was or was not an asset of the respondent. The respondent did not directly dispute the appellant's assertion that Dr. Lounsberry owed the respondent $8,000. Instead, he stated: "Maybe she's right. Maybe she's wrong." He did, however, testify that Dr. Lounsberry had paid $3,750 in 1974 and $850 "last year." The evidence of the amount and current status of the obligation was in dispute and necessitated a determination and finding of fact by the trial court. 3

Applying the previously stated rules, we conclude from examining the record that the trial court did not abuse its discretion in the values assigned to the assets set forth in the findings of fact and conclusions of law; but by not valuing as assets the respondent's corporate shares in the veterinary clinic and respondent's interest in the real estate investment partnership, in failing to make a finding of fact regarding the obligation of Dr. Lounsberry, and in not including those assets, the property division made by the judgment must be considered an abuse of discretion. We will not set a value upon these assets, for that is the responsibility of the trial court that has had the opportunity to hear the testimony and observe the witnesses.

For these reasons, the judgment as it relates to the division of marital property is reversed and the matter is remanded to the trial court with directions for the inclusion and valuation of the assets omitted and for the equitable division of the marital property as thereby supplemented.

The appellant's contention that the amount and length of time of alimony is inadequate is a more difficult problem to pass upon. The alimony here was not granted as part of the property division; 4 rather, it appears to have been an attempt by the trial court to fulfill its responsibility to equitably adjust the economic resources of the parties and allow them to reconstruct their lives in a reasonable manner. Alimony will not be awarded in such an amount as...

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68 cases
  • Endres v. Endres, 18812
    • United States
    • Supreme Court of South Dakota
    • June 26, 1995
    ...marital property is an abuse of discretion. Gibson, 437 N.W.2d at 171; Prentice v. Prentice, 322 N.W.2d 880 (S.D.1982); Guindon v. Guindon, 256 N.W.2d 894 (S.D.1977). This Court has consistently recognized the principal factors to be considered in making an equitable property division as: (......
  • Saint-Pierre v. Saint-Pierre, SAINT-PIERR
    • United States
    • Supreme Court of South Dakota
    • November 13, 1984
    ...trial. On remand, the trial court should make whatever adjustment, if any, that is necessary to correct this oversight. Guindon v. Guindon, 256 N.W.2d 894 (S.D.1977). The trial court did not err in refusing to place a value on the good will component of plaintiff's individual professional c......
  • Moller v. Moller, s. 14433
    • United States
    • Supreme Court of South Dakota
    • October 24, 1984
    ...the 1977 divorce decree and the 1983 modification hearing which warranted alimony adjustment. Herndon, supra. See also, Guindon v. Guindon, 256 N.W.2d 894 (S.D.1977); Jameson, Wife is unemployed and suffers from rheumatoid arthritis, inhalent allergies and a hearing loss. Although she submi......
  • Stemper v. Stemper, 15232
    • United States
    • Supreme Court of South Dakota
    • October 22, 1986
    ...of his brief. In exercising its discretion, the trial court considered all of the relevant factors as required by Guindon v. Guindon, 256 N.W.2d 894, 898 (S.D.1977), generally as 1. Length of marriage--29 years 2. Their respective earning capacity--Husband's annual gross income exceeds $32,......
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1 books & journal articles
  • The Homesteading Rights of Deserted Wives: a History
    • United States
    • University of Nebraska - Lincoln Nebraska Law Review No. 99, 2021
    • Invalid date] . . . include . . . (6) the relative fault of the parties in the termination of the marriage." (quoting Guindon v. Guindon, 256 N.W.2d 894, 898 (S.D. [261] John, supranote 50, at 155. [262]But seeKamanski, 9 Pub. Lands Dec. 186, 186 (1889) (adjudicating case with regard to a desert......

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