Hilbrands v. Hilbrands
| Decision Date | 26 May 1988 |
| Docket Number | No. 16048,16048 |
| Citation | 429 N.W.2d 750 |
| Parties | Ann L. HILBRANDS, Plaintiff and Appellee, v. Marvin J. HILBRANDS, Defendant and Appellant. . Considered on Briefs |
| Court | South Dakota Supreme Court |
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.
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.
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.
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.
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.
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.
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.
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 of joint injury which can cause "a profound increase in pain and muscle spasm, and profoundly reduce the capacity of the joint to function." Id.
There is nothing in the medical records which disputes Wife's testimony of pain, swelling, and other problems associated with the elbow injury. Further, Husband did not present any evidence to rebut the medical reports, or Wife's own testimony concerning her health problems. Nor did Husband present any evidence to support his claim that Wife's condition could have been improved by following physicians' orders and with exercise.
In light of Wife's limited training and experience and medical problems we are not left with a firm conviction that a mistake was made by the trial court in finding that she was unable to return to her previous employment. Smith, supra.
The trial court has broad discretion in making a division of marital property and its judgment will not be set aside absent a clear abuse of discretion. Goehry v. Goehry, 354 N.W.2d 192 (S.D.1984). SDCL 25-4-44 requires the trial court to consider equity and the circumstances of the parties when dividing marital property. The principal factors to be considered when making the property division are: "the length of the marriage; the value of the property; the age and health of the parties; their respective competency to earn a living; the contributions of each party to the accumulation of the property; and the income producing capacity of the parties' assets." Cole v. Cole, 384 N.W.2d 312, 314 (S.D.1986).
The parties were married for approximately fourteen years. They had accumulated virtually all their assets during the course of the marriage, and contributed equally to the accumulation of the property. The age, health, and competency to earn a living of the respective parties was discussed above.
The parties' major assets were:
House $45,000.00
1982 Cutlass 3,500.00
1986 Van 16,000.00
IRA (Husband) 23,000.00
IRA (Wife) 1,071.00
Promissory Note from Roger Hilbrands 7,135.75
Refund cash Van 1,447.00
Wife was awarded the marital home, subject to a $15,000 mortgage, the 1982 Cutlass, her IRA, and $10,000 of Husband's IRA. Husband was awarded the 1986 van, the remaining $13,000 of his IRA, and the promissory note from his son. The award to Wife appears to far exceed the award to Husband. The award of the marital home to Wife creates this disparity. However, this disparity is substantially offset by several considerations and certain findings of the trial court.
The trial court found that all of the self-employment Social Security payments for the janitorial business were...
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...trial court's findings unless we are left with a definite and firm conviction that a mistake has been made. Id. (citing Hilbrands v. Hilbrands, 429 N.W.2d 750 (S.D.1988)). ¶14 This Court will not disturb a trial court's division of property, the award or denial of alimony, the award of chil......
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