Hanson v. Hanson, s. 13490

• Decision Date: 21 April 1982
• Docket Number: Nos. 13490,13491,s. 13490
• Citation: 318 N.W.2d 355
• Parties: Sonja HANSON, Plaintiff and Appellee, v. Verlyn L. HANSON, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 355

318 N.W.2d 355

Sonja HANSON, Plaintiff and Appellee, v. Verlyn L. HANSON, Defendant and Appellant.

Nos. 13490, 13491.

Supreme Court of South Dakota.

April 21, 1982.

Ross H. Oviatt of Oviatt, Green, Schulz & Roby, Watertown, for plaintiff and appellee.

William E. Coester, Milbank, for defendant and appellant.

WOLLMAN, Chief Justice.

Appellant Verlyn Hanson appeals from the judgment of divorce and order appointing receiver. Appellee Sonja Hanson seeks review of that part of the judgment and order awarding appellee $150 per month support for each child during minority and has filed a motion for an award of attorney fees on appeal. We affirm the judgment and grant the motion.

The parties were married in 1958. At the time judgment of divorce was entered two of their five children were minors. From the time of their marriage until 1977 the parties and their children lived in a farm home in Grant County, where they were engaged in general farming and ranching. While appellee resided on the farm with appellant she performed the household chores, reared the children, and performed physical labor in the fields and outbuildings. In 1977 appellee moved to Milbank, both because of marital discord and in order to place the children in a preferred public school district. Appellee has been afflicted with multiple sclerosis since 1971; the disease has been in remission since 1976. She also suffers from a faulty heart valve.

At the time of their marriage the parties owned little property. Through their joint efforts during marriage they accumulated considerable real and personal property. The trial court found that all property should be divided equally between the parties as tenants in common, subject to all debts. The court appointed a receiver to take possession of and sell all real and personal property not awarded specifically to each party.

Custody of the minor children was given to appellee. Appellant was required to pay $150 per month child support for each child, as well as nominal alimony.

In the first six issues presented for our consideration, appellant asserts that the trial court abused its discretion in a variety of ways in ordering the sale of the parties' real and personal property. The trial court had denied appellant's motion for a stay of execution of the judgment of divorce so far as it pertained to the sale of the property and appointment of a receiver during the pendency of this appeal. Thereafter, the trial court entered its orders approving the receiver's report of sale of the parties' personal and real property. Appellant did not appeal from either order. SDCL 15-26A-3. An order confirming a sale is a final appealable order. Casey v. Smith, 36 S.D. 36, 153 N.W. 918 (1915). In Anderson v. Kennedy, 264 N.W.2d 714 (S.D.1978), we said:

According to general rules of mootness adopted by this court, absence of an actual controversy between the litigating parties is reason for an appellate court to dismiss an appeal for mootness (citations omitted). An appeal will be dismissed as moot if, pending the appeal, an event occurs which makes a determination of it unnecessary or renders it clearly impossible for the appellate court to grant effectual relief (citations omitted).

264 N.W.2d at 716.

Because appellant failed to appeal from the trial court's order confirming the sale of the real and personal property, appellant waived any objections to the property disposition and has thus acquiesced in the sales. We hold, therefore, that the question whether the trial court abused its discretion in initially ordering the sale is moot.

Appellant urges that the sale of the farmhouse was void under SDCL 43-31-1 inasmuch as the trial court lacked jurisdiction to confirm the sale of his homestead. We do not agree. SDCL 25-4-44 provides:

Where a divorce is granted for an offense of either husband or wife, the courts shall in such action have full power to make an equitable division of the property belonging to either or both, whether the title to such property is in the name of the husband or the wife. In making such division of the property the court shall have regard for equity and the circumstances of the parties.

Whatever doubt may have existed after this court's decisions in Meile v. Meile, 70 S.D. 115, 15 N.W.2d 453 (1944); a...