Hilbrands v. Hilbrands, No. 16048

• Court: Supreme Court of South Dakota
• Writing for the Court: SABERS; WUEST; HENDERSON; HENDERSON
• Citation: 429 N.W.2d 750
• Parties: Ann L. HILBRANDS, Plaintiff and Appellee, v. Marvin J. HILBRANDS, Defendant and Appellant. . Considered on Briefs
• Decision Date: 26 May 1988
• Docket Number: No. 16048

Page 750

429 N.W.2d 750 Ann L. HILBRANDS, Plaintiff and Appellee,
v.
Marvin J. HILBRANDS, Defendant and Appellant. No. 16048. Supreme Court of South Dakota. Considered on Briefs May 26, 1988.
Decided Oct. 5, 1988.

Arthur M. Hopper of Austin, Hinderaker, Hackett & Hopper, Watertown, for defendant and appellant.

David R. Gienapp of Arneson, Issenhuth and Gienapp, Madison, for plaintiff and appellee.

SABERS, Justice.

Husband appeals the division of marital property and trial court findings that: 1) medical problems prevent wife from working and 2) he has greater earning capacity.

Facts

Marvin (Husband) and Ann (Wife) were married in 1972. This was a second marriage for both parties. Both have adult children from prior marriages only. Wife has an eleventh grade education and her employment experience consists of waitressing, janitorial work, and part-time sales of Mary Kay cosmetics. Husband has worked as an insurance agent and realtor. Currently, he does janitorial work and is employed with the local school district.

In 1973, the parties started a janitorial business. Both Husband and Wife worked in the business evenings and weekends. In 1983, Husband began driving buses and doing yard work during the day for the school district.

Page 751

In 1984, Wife injured her elbow. She testified that she has experienced continuing pain and limitation of movement and was eventually forced to quit working in the janitorial business in October 1986. Wife filed for divorce in November 1986.

A trial was held on July 8, 1987. Upon stipulation of the parties, the trial court granted each party a divorce on grounds of irreconcilable differences. The Hilbrands had gross marital assets of $103,003.75 and liabilities of $32,831.00. The trial court awarded Wife assets valued at $64,808.00 and Husband assets valued at $38,195.75. The distribution of liabilities resulted in a net award of $49,427.60 to Wife and $20,745.15 to Husband. No alimony was awarded to either party.

At the time of trial, Husband was sixty-one years old and Wife was forty-eight years old. Husband was earning approximately $714 per month from his school job and one janitorial account. Wife was not employed and had no income other than alleged sporadic sales of cosmetics.

1. WERE FINDINGS OF FACT CLEARLY ERRONEOUS?

Husband contends that the trial court erred in finding that health problems prevent Wife from returning to any of her previous employment. Additionally, Husband disputes the trial court's finding that his capacity to earn significantly exceeded that of Wife's. Findings of fact are reviewed under the clearly erroneous standard and will not be overturned unless the reviewing court is left with a firm conviction that a mistake has been made. Smith v. Sponheim, 399 N.W.2d 899 (S.D.1987). Husband claims both factual findings should be overturned on appeal as clearly erroneous.

A. Husband's Earning Capacity

The record indicates that Wife's education and employment background limit any potential future employment to minimum wage positions. The record further reveals that her income from sales of cosmetics has been minimal.

In contrast, Husband has been both an insurance agent and a realtor. His janitorial business consists of only one account, but he has been bidding for other accounts. The business has had up to four or five active accounts. Husband also earns approximately $6,360 per year from his school district work.

Husband argues that because he is thirteen years older than Wife and is "rapidly approaching the age of retirement," his earning capacity is no better than Wife's. This argument ignores the respective educational and employment backgrounds of the parties, as well as Wife's medical problems. Even in the absence of Wife's medical problems, the evidence in the record is sufficient to support the trial court's finding that Husband's earning capacity significantly exceeded Wife's, and we cannot say it was clearly erroneous.

B. Wife's Medical Problems

Wife testified that she sustained an elbow injury which resulted in continuing pain and disability. She claims she is unable to grip with either the thumb or index finger of her right hand due to the injury. She also testified that she sustained a weight loss of forty-two pounds and weighed eighty-eight pounds at the time of trial. It is not clear whether this weight loss was connected to the elbow injury. She testified that the pain and immobility in her hand worsened over a period of two years until she was unable to continue her janitorial work. She claimed the injury also prevented her from returning to waitressing. Wife testified that her inability to use her right hand made the application of makeup or even opening tubes of makeup impossible, thereby hampering sales demonstrations of cosmetics.

Husband contends Wife's own testimony indicates she is able to sell cosmetics, as she testified that she sold cosmetics during the period of her claimed disability. However, there was also testimony from which the trial court could conclude that because of her medical problems the sale of cosmetics would never be a regular or reliable source of income for her.

Page 752

Husband also argues that there is no medical evidence in the record which supports Wife's claimed disability. Although Wife did not present expert medical testimony at trial, she had several physicians' reports admitted as exhibits. The various medical records reveal that at least two physicians believed that Wife was prone to or was exhibiting signs of reflex sympathetic dystrophy. Lawyers' Medical Cyclopedia, Sec. 15.25 defines reflex sympathetic dystrophy as a complication...