Hanisch v. Hanisch, 12364

• Decision Date: 05 January 1979
• Docket Number: No. 12364,12364
• Citation: 273 N.W.2d 188
• Parties: Marlys HANISCH, Plaintiff and Respondent, v. Leo J. HANISCH, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 188

273 N.W.2d 188

Marlys HANISCH, Plaintiff and Respondent, v. Leo J. HANISCH, Defendant and Appellant.

No. 12364.

Supreme Court of South Dakota.

Argued Oct. 16, 1978.

Decided Jan. 5, 1979.

Donald H. Breit, Sioux Falls, for plaintiff and respondent.

Vance R. Goldammer, of Boyce, Murphy, McDowell & Greenfield, Sioux Falls, for defendant and appellant.

DUNN, Justice (on reassignment).

This is an appeal in a divorce action from an order of the Circuit Court of the Second Judicial Circuit which adjudged the defendant guilty of contempt, modified a property settlement adopted in the original decree, and required defendant to pay plaintiff's attorney fees. Defendant appeals. We affirm in part and reverse and remand in part.

On December 5, 1973, a judgment and decree of divorce terminated the marriage of Leo and Marlys Hanisch and gave custody of their five children to plaintiff wife. The divorce decree adopted a property settlement agreement signed by the parties granting possession of the house to plaintiff and requiring her to be responsible for all mortgage, tax, insurance and repair payments. Defendant retained his one-half interest in the house which was to be sold no later than upon completion of high school by the youngest child, and the proceeds from said sale were to be divided. Either party making capital improvements in the interim were to be given credit for said improvements at the time of the division of the proceeds. The decree also required defendant to pay child support in the amount of $100 per week and to pay certain medical expenses. The decree provided that as each of the first two children attained majority age the child support obligation would be reduced by $20 per week, and as the next two children attained majority age, it would be reduced by $10 per week.

On July 1, 1976, that decree was modified by the court upon plaintiff's application. The modifications required defendant to pay an increased share of medical expenses, increased the child support to $105 per week, forbade defendant to enter the house without plaintiff's permission, and directed him to make certain repairs or improvements to the house within thirty days.

In June of 1977, plaintiff again moved to modify the decree to provide more support. Plaintiff also requested a finding of contempt for defendant's failure to comply with the July 1, 1976 order. A hearing was held, and on December 14, 1977, the court entered findings of fact and conclusions of law and an order which, among other things: (1) adjudged defendant in contempt of court for entering the house without plaintiff's permission, for failing to pay the child support in compliance with the July 1, 1976 order, and for failing to keep his portion of the medical expenses paid and current; (2) terminated defendant's interest in the house and directed him to transfer all of his right, title and interest therein to plaintiff; and (3) ordered defendant to pay plaintiff's attorney fees. It is from these three portions of the September 14, 1977 order that defendant appeals.

Defendant first contends that the court erred in adjudging him to be in contempt of court for failing to obey the July 1, 1976 order. We disagree. The evidence in the record of the defendant's late and vexatious manner of making support payments, his deductions from support payments upon his own determination without further order of the court, his failure to pay medical bills promptly according to the order, and his invasion of the premises through one of the children in direct violation of the order provide sufficient evidence for the trial court's finding of contempt. However, the trial court failed to recite the four elements of contempt in its findings, namely, (1) existence of an order, (2) knowledge of an order, (3) ability to comply with the order, and (4) wilful or contumacious disobedience. In view of our remand for other reasons, the trial court should make a direct finding of fact that the four elements of contempt are present here. Krueger v. Krueger, 1913, 32 S.D. 470, 143 N.W. 368; Hoffman v. Hoffman, 1910, 26 S.D. 34, 127 N.W. 478.

Defendant's second contention on appeal is that the trial court erred in awarding plaintiff all right, title and interest in the house which was previously owned jointly by the parties and in directing defendant to execute a quit claim deed. The joint ownership was confirmed by the stipulated property agreement incorporated in the December 5, 1973 judgment and decree of divorce. We agree.

It is well settled in South Dakota that property rights of parties to a divorce as contained in the decree of divorce cannot be modified in...