Guinter v. Guinter

• Decision Date: 09 May 1949
• Docket Number: 9027.
• Citation: 37 N.W.2d 452,72 S.D. 554
• Parties: GUINTER v. GUINTER.
• Court: South Dakota Supreme Court

37 N.W.2d 452

72 S.D. 554

GUINTER v. GUINTER.

No. 9027.

Supreme Court of South Dakota

May 9, 1949

Lacey & Perry of Sioux Falls, for appellant.

Bailey Voorhees, Woods & Fuller of Sioux Falls, for respondent.

SMITH Presiding Judge.

The question for decision is whether the trial court abused its discretion in refusing to modify the permanent allowance provided for the wife in a decree of divorce.

The parties were married in July 1933 and were divorced in May 1943 because of the fault of the husband. No children resulted from the marriage. While they had not succeeded in accumulating much during their marriage, the husband had advanced to the rank of captain in the United States Army and they had thus achieved security, and were able to maintain a comfortable home and a car on the $316 he then received each month from the government. Pursuant to a stipulation of the parties the decree required the husband to pay the wife $100 per month during her life, and to assure his performance by making an allotment from his pay.

In May 1948 upon the grounds that the circumstances of the parties had so changed as to reduce the amount necessary for the support of the wife and to increase the economic burdens of the husband the husband sought an order discontinuing the wife's allowance. After hearing, the trial court denied the application and the husband has prosecuted this appeal.

The record reveals intervening changes in the circumstances of the parties as follows:

The husband has remarried and is not only supporting a second wife but is contributing an unrevealed amount to the support of her daughter. He has advanced to the rank of a major and his pay to $420.50 per month. In addition he is furnished government quarters for himself and family. If he is transferred to a post where such quarters are not available, he will be entitled to a monthly allowance for quarters of $105 from the government. It is estimated that in twelve years he will be entitled to retirement on a basis of at least $178.75 per month.

The husband testifies: '* * * that the cost of living for your affiant and his family has increased greatly during the past several years, and that at the present time your affiant is encountering great difficulty in living on his net income after the payment of alimony.'

The wife has not remarried. She has been regularly employed for several years. Whether she had been so employed during the period of separation which preceded the decree is not clear from the record. Her pay scale was increased from $130 per month to $155 in November 1947. Her affidavit states 'that she is working simply because she is compelled to and is working with difficulty in view of the present state of her health. She is suffering from an arthritic condition in her spine * * *. She is working despite these handicaps because she is obliged to support her parents as her father's health has become such that he is no longer able to work so that a large part of her earnings are consumed in the support of her parents * * *.'

In addition to some small savings plaintiff has acquired title to a home in Sioux Falls which was purchased in 1945 for $6700 by her parents. Her showing states 'the property was conveyed to deponent to avoid probate expense upon the death of her parents because of their advanced age, * * *.' She further states 'that her parents do have some small savings but if it were not for the support which deponent gives them such savings would be quickly consumed because of the inability of her father to work.' She and her parents live in the described home.

These facts must be considered in the light of settled principles. In Tuttle v. Tuttle, 26 S.D. 545, 128 N.W. 695, 697, it was said: 'Permanent alimony is that provision which the law makes for the support of the wife, or of her who was the wife, out of the estate of the husband after separation, in lieu of his common-law obligation to support her as his wife if they should have continued living together. She was entitled to and had his support out of all he possessed, including earnings. When he has broken up that relation, so that she can no longer partake jointly with him of such support, the law sets apart to her enough of his estate, including earnings, to make an equivalent of what she is denied by his fault. Less than that would be to put a premium upon the husband's abandonment of his wife.' In Vert v. Vert, 3 S.D. 619, ...