Hersrud v. Hersrud

• Decision Date: 28 November 1983
• Docket Number: 13950,Nos. 13938,s. 13938
• Citation: 346 N.W.2d 753
• Parties: James Robert HERSRUD, Plaintiff and Appellant, v. Katherine May HERSRUD, Defendant and Appellee. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 753

346 N.W.2d 753

James Robert HERSRUD, Plaintiff and Appellant, v. Katherine May HERSRUD, Defendant and Appellee.

Nos. 13938, 13950.

Supreme Court of South Dakota.

Considered on Briefs Nov. 28, 1983.

Decided April 11, 1984.

Linda Lea M. Viken of Finch & Viken, Rapid City, for plaintiff and appellant.

Richard Helsper of McCann, Martin & Mickelson, Brookings, for defendant and appellee.

MORGAN, Justice.

This is the second appeal from the property division in a divorce decree that terminated a five-year marriage. The husband brought the action for divorce against the wife on grounds of extreme cruelty and the wife counterclaimed against the husband for a divorce on the same grounds. The trial court heard the evidence, formulated findings of fact and conclusions of law, and granted each party a divorce from the other. On this appeal we affirm the decision of the trial court.

The trial court found that the husband purchased the Big Thunder Gold Mine, a tourist attraction in Keystone, in 1969, prior to the marriage and during the marriage this property was improved and additional real estate was purchased. The trial court found that the total increase in the value of the marriage assets was approximately $30,000. The trial court further found that both parties contributed their earnings to the marriage and each contributed equally toward their education expenses and the gold mine. The trial court concluded that each party could keep the items of personal property in his or her possession and determined that husband would pay wife $15,000 for her one-half share of the increased value of the marriage assets. The marriage assets included the increased value of the mine and the real property which were awarded to husband because they could not be equitably divided.

Husband appealed from the portion of the judgment which divided the personal property and the part of the judgment which ordered him to pay wife $15,000 for her share of appreciated marriage assets. Wife also served a notice of review concerning the trial court's personal property disposition and the $15,000 settlement payment. This court remanded the matter to the trial court for entry of findings of fact and conclusions of law on property valuation, as required by Guindon v. Guindon, 256 N.W.2d 894 (S.D.1977) and SDCL 25-4-44. Pursuant to this court's order of remand, the trial court entered additional findings and conclusions on June 30, 1983. The parties stipulated and the trial court found that the personal property and debts were equitably divided except for corporate assets and liabilities, a campground membership and interests in real estate owned at the time of the divorce. On this appeal, our review is limited to whether the trial court equitably divided these assets.

It is settled law in South Dakota that this court will not disturb a property division unless it clearly appears that the trial court abused its discretion in entering its judgment. Ostwald v. Ostwald, 331 N.W.2d 64 (S.D.1983); Hrdlicka v. Hrdlicka, 310 N.W.2d 160 (S.D.1981); Guindon, supra.

On appeal the husband questions whether the evidence showed a $30,000 increase in the value of the marital assets during the course of the marriage. The trial court subtracted the assets held at marriage ($8,000 real estate equity) from those held at the time of the divorce ($38,600 real estate equity), approximated the increase in value at $30,000, divided that amount in half and awarded the wife $15,000. This court has affirmed a trial court's use of this approach for the valuation of encumbered assets when the findings are based on evidence submitted by the parties and the trial court's valuations are within the range of the parties' estimates.

Here the trial court's valuation of the business was within the range of the parties' estimates; we do not require exactitude in valuation. Krage v. Krage, 329 N.W.2d 878 (S.D.1983). The valuation need only be within a reasonable range. Hanks v. Hanks, 296 N.W.2d 523 (S.D.1980). The husband responded at trial that the gold mine was worth $47,000 at the time of the marriage. The trial court adopted that figure and then found $39,000 in liabilities and arrived at $8,000 as the net equity at that time. The husband testified at trial that at the time of the divorce the business was worth $105,000. The wife's appraiser set the value of the business property at $112,000. Husband contends that the trial court allowed the wife's appraiser to employ the wrong valuation approach in that he compared the real property to similar properties and valued the...