Hanks v. Hanks, s. 12744

• Decision Date: 03 September 1980
• Docket Number: 12745,Nos. 12744,s. 12744
• Parties: Curtis W. HANKS, Plaintiff, Appellant and Appellee on Cross-Appeal, v. Margaret HANKS, Defendant, Appellee and Appellant on Cross-Appeal.
• Court: South Dakota Supreme Court

Page 523

296 N.W.2d 523

Curtis W. HANKS, Plaintiff, Appellant and Appellee on Cross-Appeal, v. Margaret HANKS, Defendant, Appellee and Appellant on

Cross-Appeal.

Nos. 12744, 12745.

Supreme Court of South Dakota.

Argued Feb. 27, 1980.

Decided Sept. 3, 1980.

John R. Kabeiseman of Brady, Kabeiseman, Reade, Abbott & Johnson, Yankton, for plaintiff, appellant and appellee on cross-appeal.

William Taylor of Woods, Fuller, Shultz & Smith, Sioux Falls, for defendant, appellee and appellant on cross-appeal.

MORGAN, Justice.

This appeal and cross-appeal goes to every facet of the decree of divorce entered herein in favor of Curtis W. Hanks (appellant) and against Margaret Hanks (appellee), which decree also awarded custody of their minor children to appellee and set child support payments, divided the property of the parties, and awarded appellee alimony payments for life. Appellant contests the custody, support, property division, and alimony provisions. Appellee contests the award of the decree to appellant, the support, property division, and alimony provisions. We affirm in part, reverse in part, and remand.

The parties were married in 1958 while both were students at the University of South Dakota in Vermillion. Upon graduation from law school in January of 1962, appellant returned to his home town of Lemmon, South Dakota, and set up a law practice. Appellee remained in Vermillion to complete her degree, which she did by August of 1962 whereupon she, too, moved to Lemmon. Four children were born as issue of the marriage, the oldest being eighteen and the youngest eight at the time of the divorce trial. ¹ The award of the decree to appellant was based on the trial court's finding that appellee was guilty of an adulterous relationship with one Robert Seeley. The problems that led to the divorce court will be discussed where appropriate to our disposition of the various issues.

Upon this court's review of the trial court's findings, due regard must be given to the opportunity of the trial court to judge the credibility of the witnesses and to weigh their testimony, and the court's findings will not be set aside unless they are clearly erroneous. SDCL 15-6-52(a); Spaulding v. Spaulding, 278 N.W.2d 639 (S.D.1979); Isaak v. Isaak, 278 N.W.2d 445 (S.D.1979); Holforty v. Holforty, 272 N.W.2d 810 (S.D.1978). This court will also "accept the evidence including any reasonable inferences which are favorable to the trial court's determination." Isaak v. Isaak, 278 N.W.2d at 446.

The first issue we deal with, raised by appellee in her cross-appeal, is the propriety of the decree on the grounds of her adulterous conduct. The record discloses that within a few months after entry of the The defendant could only have contracted a second marriage under authority of the divorce granted to the plaintiff. He does not come into court with clean hands when the relief he requests, if granted, would make him a bigamist. One in his position cannot accept the benefit of a judgment and then be heard to assert its nullity and invalidity.

decree appellee remarried. To reverse the trial court and remand with directions to vacate the decree would automatically make appellee a bigamist. We would hesitate to do so even if her contentions were correct. As this court stated in Brockel v. Brockel, 80 S.D. 547, 553, 128 N.W.2d 558, 561 (1964):

We therefore hold that appellee is estopped from attacking the decree of divorce granted to appellant on the grounds of her adulterous conduct.

We next consider the award of custody of the three children, then ages thirteen, ten, and eight, to appellee. In awarding the custody of minor children the trial court has broad discretionary powers and this court will not interfere with that discretion unless there is a clear case of abuse presented by the record. Spaulding v. Spaulding, supra; Isaak v. Isaak, supra; Holforty v. Holforty, supra; Kester v. Kester, 257 N.W.2d 731 (S.D.1977).

In deciding the issue of child custody, the trial court must give primary consideration to the best interests of the children based on all the facts and circumstances. This decision is to be made relative to their temporal, mental, and moral welfare. Isaak v. Isaak, supra; Miller v. Miller, 245 N.W.2d 501 (S.D.1976); Masek v. Masek, 89 S.D. 62, 228 N.W.2d 334 (1975).

Appellant points out that during the period that appellee had in effect abandoned her family and moved to Minneapolis he, with the aid of a housekeeper, had afforded the children a good home environment, and that the arrangement would continue if he were awarded custody. The trial court met with the children individually in camera. While its findings of fact state that the children expressed a desire to live with their mother, the transcript of that session does not support that finding. We would view the children's responses as inconclusive, as one might expect from children of that age in that setting.

Appellant argues strenuously that appellee's marital misconduct is one of the reasons that she should not have received custody. Yet this court has held that marital misconduct does not necessarily make one an unfit parent so as to preclude that person from having custody of his children, when no evidence has been introduced to show that such conduct had a demonstrable effect upon the children. Kester v. Kester, supra; Hershey v. Hershey, 85 S.D. 85, 177 N.W.2d 267 (1970); Wiesner v. Wiesner, 80 S.D. 114, 119 N.W.2d 920 (1963).

In Kester this court went on to say that "we feel that one seeking to take custody from a mother has a burden of showing a harmful effect on the children caused by the mother's conduct." 257 N.W.2d at 734. There is nothing in the record to suggest that the children in this case were harmed in any way by appellee's marital misconduct, nor can we say that in reviewing the entire record the trial court erred in its decision to award custody to appellee. It is an exceedingly difficult issue in every contested case. The trial judge was in a far better position to assess the situation than we are in reviewing the cold record.

Subsequent to the entry of the decree and prior to oral argument the sixteen-year-old daughter (thirteen at the time of trial), by agreement, went to live with appellant. Upon remand we direct that the appropriate steps be taken to formalize the transfer of the custody of the sixteen-year-old and adjust the support payments accordingly.

With respect to the issues of property division, neither party is satisfied. Appellant argues that he has a negative net worth, or at best, a maximum of $20,000. He argues that he received property that was of less value than the encumbrances on it and additionally was saddled with $20,000 of unsecured debts accumulated by the parties.

He argues that he is simply incapable of supporting the financial burden imposed by the decree. Appellee on the other hand asserts that she was not awarded enough because appellant has a net worth of $80,000 to $90,000, and a gross income of $50,000 per annum.

As to the trial court's determination of valuation, granted there is some difference between the valuations placed on the property by the parties; however, the trial court is not bound to accept either as correct. The evidence was in conflict. Appellant had testified in deposition that the home should be worth $130,000, but he conditioned that on its being in a larger town than Lemmon. While the trial court's valuation was above appellant's trial valuation of $80,000, it was considerably below the $130,000 valuation claimed by appellee.

The only evidence regarding valuation of the property came from the parties themselves. ² The principal difference was with respect to the value of the family home and the value of the law practice. We have said: "(W)e will not attempt to place a valuation on the assets because that task is within the province of the trier of fact." Kittelson v. Kittelson, 272 N.W.2d 86, 88 (S.D.1978). Where the parties come into the trial court without even a stipulation as to the values, then they had better be prepared to produce hard evidence as to those values other than their own personal opinions. Based upon the lack of such evidence in this record, we are not going to say that the trial court was in error in the valuations that it set. "Exactitude is not required of the trial court in the valuation of assets in a dissolution proceeding; it is only necessary that the value arrived at lies within a reasonable range of figures." Johnson v. Johnson, 277 N.W.2d 208, 211 (Minn.1979).

As to the trial court's allocation of assets and debts, in Kittelson, supra, we said: "In reviewing the division of property . . . we take cognizance of the fact that the trial court has broad discretion in making such division . . . and we will not modify or set them aside unless it clearly appears that the trial court abused its discretion." 272 N.W.2d at 88.

In dividing the property herein the trial court awarded appellee a 1976 automobile, $10,000 cash payable over three years, the personal property in her possession, and such household furnishings as were necessary to furnish a comfortable home for herself and the children. It also required that she assume an indebtedness of $5,000 which she had incurred in her quest to further her education after she had left the home. The trial court awarded appellant the family home, three lots in Lemmon, the law practice, a 1971 pickup, a 1977 automobile, the personal property in his possession, and the balance of the home furnishings after appellee had selected what she needed. The trial court also made appellant liable for all the debts accumulated by the parties except the $5,000 debt of appellee, which indebtedness apparently amounts to about $20,000 over and above the secured debts. In addition to the valuation problems, the division was further complicated by the nature and location of the assets that had been accumulated. The law practice...