Herrboldt v. Herrboldt, 12948

• Decision Date: 11 March 1981
• Docket Number: No. 12948,12948
• Parties: Esther A. HERRBOLDT, Plaintiff and Appellee, v. Melvin R. HERRBOLDT, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 571

303 N.W.2d 571

Esther A. HERRBOLDT, Plaintiff and Appellee, v. Melvin R. HERRBOLDT, Defendant and Appellant.

No. 12948.

Supreme Court of South Dakota.

Submitted on Briefs Oct. 22, 1980.

Decided March 11, 1981.

Richard D. Hagerty of Hagerty Law Offices, Yankton, for plaintiff and appellee.

John P. Blackburn of Blackburn Law Offices, for defendant and appellant; Michael D. Stevens, on brief.

MORGAN, Justice.

The trial court granted Esther A. Herrboldt (appellee) a divorce from Melvin R. Herrboldt (appellant), awarded appellee $200 per month alimony, and made a property division. It is from the property division that appellant appealed. We affirm.

Appellant and appellee were married in 1949. Four children were born as issue of the marriage. All of the children had attained the age of majority at the time of the divorce. Since appellant stipulated to the reason for the divorce, the trial was conducted to establish the parties' various properties and their values.

The parties had been married for twenty-nine years. At the time of the marriage appellant had $500 that he used to purchase a tractor. Appellee entered the marriage with a house full of new furniture, several head of livestock, and about $1,000 in cash. During the course of the marriage the parties accumulated substantial property, on which the trial court placed values and then divided between the parties.

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. This court will also "accept the evidence including any reasonable inferences which are favorable to the trial court's determination."

Hanks v. Hanks, 296 N.W.2d 523, 524 (S.D.1980) (citations omitted).

In a divorce action, the trial court has total jurisdiction of the parties' property. Miller v. Miller, 83 S.D. 227, 157 N.W.2d 537 (1968). "The trial court has broad discretion in making a division of property ... and this court will not be set aside or modify its decision unless it clearly appears that the court abused its discretion." Wallahan v. Wallahan, 284 N.W.2d 21, 24 (S.D.1979); Lien v. Lien, 278 N.W.2d 436 (S.D.1979); Hansen v. Hansen, 273 N.W.2d 749 (S.D.1979); Kittelson v. Kittelson, 272 N.W.2d 86 (S.D.1978).

" 'When dividing the money or property of the parties the trial court must make a fair and just award considering all the material factors.' " Hanks, supra, at 527 (citations omitted); Hanson v. Hanson, 252 N.W.2d 907 (S.D.1977). "In making an ... equitable division of property the trial court must consider the duration of the marriage, the ages of the parties, their state of health and their competency to earn a living, the value and income-producing capacity of the property of each party, and the contribution of each party to the accumulation of the property." Wallahan, supra, at 24; Lien v. Lien, supra; Hansen v. Hansen, supra; Kittelson v. Kittelson, supra; Stenberg v. Stenberg, 90 S.D. 229, 240 N.W.2d 100 (1976). "The trial court must make the division of property on the basis of these principal factors while having due regard for equity and the circumstances of the parties." Hansen, supra, at 751; Kittelson v. Kittelson, supra; Hanson v. Hanson, supra; Miller v. Miller, supra.

Appellant's issues involve the trial court's valuations of some of the properties. This court, however, will not attempt to place valuations on the assets, since that task is within the province of the trial court, and this court will not sit as the trier of fact. Hanks v. Hanks, supra; Hansen v. Hansen, supra; Kittelson v. Kittelson, supra; Guindon v. Guindon, 256 N.W.2d 894 (S.D.1977); Stenberg v. Stenberg, supra.

This court's standard of review, with regard to the valuation of the property, is whether the trial court divided the assets in an equitable manner. Hansen v. Hansen, supra; Kittelson v. Kittelson, supra; Guindon v. Guindon, supra; Stenberg v. Stenberg, supra. The only time that this court will interfere with the valuations as determined by the trial court is when the trial court has made a clearly erroneous valuation finding, Hansen v. Hansen, supra, or "where assets are completely overlooked by the trial court or minimized by mortgages which may or may not be legitimate liens against the marital property." Kittelson, supra, at 88.

In determining the valuations of the properties, the trial court is not bound by the valuations set forth by the parties. Hanks v. Hanks, supra. In determining the valuations to be used in making the property division, the trial court need only set the values at a figure that lies within a reasonable range of figures, and it need not be an exact amount. Id. "As to the trial court's allocation of assets and debts ... we (have) 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.' " Hanks, supra, at 526.

This court's scope of review is not to place valuations on the property, but only to be sure that the trial court did not abuse its discretion. The record supports the trial court's findings as to valuations, and there appears to be no abuse of discretion on the part of the trial court. The trial court need not be exact in determining the values, but rather, it need only be within a plausible range of figures.

We therefore affirm the trial court's property division in this case.

WOLLMAN, C. J., and DUNN, J., concur.

HENDERSON and FOSHEIM, JJ., dissent.

HENDERSON, Justice (dissenting).

Appellate review, in depth, is indispensable to the orderly administration of justice. Without it, our trial courts would be the courts of last resort. It should be remembered that trial courts in our state work independently and have no self-regulating capacity to provide uniformity among their decisions. Litigation is often fevered and combative. From these arenas of social struggle, hundreds of cases filter into this Court on a yearly basis with anguished cries that "I have been aggrieved." Petitions for redress denominated appeals are commonplace in the law of domestic relations and each petition must be separately and reflectively considered. Were appellate review treated superficially or the decisions of trial courts simply rubber-stamped, great divergences in practice and variations in results would arise between these courts of first impression, which would effectively nullify the concept of "equal justice for all."

It is not enough to bless old decisions of this Court and assume the comfortable posture that the trial court did not abuse its discretion. Although the trial court has a broad discretion in making a division of property, it is judicial discretion, not an uncontrolled one, and its exercise must have a sound and substantial basis in the testimony. SDCL 25-4-44; Fink v. Fink, 296 N.W.2d 916 (S.D.1980); Hansen v. Hansen, 273 N.W.2d 749 (S.D.1979). We owe a duty to breathe life into that rule. The correct examination of each case provides a basis for the future prediction of the application of judicial power.

It is with these thoughts in mind that I address this appeal. Throughout this dissent, I shall refer to Esther A. Herrboldt, plaintiff-appellee, as "wife" and Melvin R. Herrboldt, defendant-appellant, as "husband."

Husband has appealed from the division of property and alimony portion of the decree of divorce. Immediately following are the three separate legal issues formally presented by husband on appeal which cannot be brushed aside by the majority's characterization that husband's "issues involve the trial court's evaluations of some of the properties."

Issue 1: The testimony at trial does not support the value and liabilities as adopted by the trial court. The values adopted by the trial court were not the values as of the day of trial; the trial court omitted certain debts of the parties in arriving at the net marriage estate; and the trial court placed too high a value on the parties' real estate, allegedly ignoring comparable real estate sold within thirty days of the time of trial.

Issue 2: The trial court erred by giving husband full credit for the value of the trucking business and assets when the undisputed testimony reflected that he only owned one-half of the business. Further, husband was only allowed to deduct one-half of the allowable trucking expenses.

Issue 3: The trial court erred by failing to take into consideration all mortgages encumbering the land.

Basically, husband contends that the lower court's decision should be reversed and the case remanded for a more accurate, equitable division on the marital property. I agree for the reasons assigned below.

Let us examine the rulings of the primary decision-maker to determine if they were correct. A factual setting is in order. Husband and wife were married for twenty-nine years. At the conclusion of their marital life, they had accumulated considerable property with sizeable indebtedness. Both are in good health and are capable of earning a living. Wife is forty-nine years of age and husband is forty-eight. Husband has an eighth-grade education and wife has two years of college at the University of South Dakota at Springfield. Wife has held a teaching certificate and has kept books in the past and was employed as a motel clerk when this action was commenced. Throughout the marriage, husband and wife operated a farming operation. Wife did not always work on the farm full-time, but did work at other part-time jobs. Husband and the parties' son, Dwayne, operate a trucking operation. Husband and wife both actively participated in the farming operation.

The trial court made the following award per the divorce decree (emphasis supplied):

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