Jameson v. Jameson

• Decision Date: 22 March 1976
• Docket Number: Nos. 11632--11634,s. 11632--11634
• Parties: Carolyn S. JAMESON, Plaintiff, Respondent and Cross-Appellant, v. G. Malcolm JAMESON, Defendant, Appellant and Cross-Respondent.
• Court: South Dakota Supreme Court

Page 5

239 N.W.2d 5

90 S.D. 179

Carolyn S. JAMESON, Plaintiff, Respondent and Cross-Appellant, v. G. Malcolm JAMESON, Defendant, Appellant and Cross-Respondent.

Nos. 11632--11634.

Supreme Court of South Dakota.

Argued Dec. 15, 1975.

Decided Feb. 20, 1976.

Rehearing Denied March 22, 1976.

M. T. Woods of Woods, Fuller, Shultz & Smith, Sioux Falls, for plaintiff, respondent and cross-appellant.

Gerald L. Reade of Brady, Kabeiseman, Light & Reade, Yankton, for defendant, appellant and cross-respondent.

DUNN, Chief Justice.

Defendant has appealed from an order of the circuit court, dated January 20, 1975, denying his petition to modify the provisions of a divorce decree and from a subsequent order denying a motion to vacate the January 20th order. Plaintiff has cross appealed from the same orders which denied her an award of attorney fees. We affirm.

Plaintiff Carol Jameson was awarded a divorce from defendant G. Malcolm Jameson in an uncontested proceeding on December 15, 1971. The parties entered into and signed a stipulation and agreement covering child support for the three minor children of the marriage and alimony for the plaintiff. The stipulation and agreement was incorporated into the judgment and decree of divorce by the circuit court.

On November 7, 1974, defendant filed a petition to amend the divorce decree. He sought to have the alimony and child support portion of the decree modified because it was too great an economic harship for him. Defendant subsequently filed two amended petitions to modify the decree.

Trial was to the court on November 26, 1974. After hearing the evidence, the court issued an order on January 20, 1975, denying defendant's amended petition to modify the decree. On February 14, 1975, the court filed an order denying defendant's motion to vacate its January 20, 1975 order. The February 14th order also affirmatively denied plaintiff's application for attorney fees.

Defendant has made many assignments of error on this appeal. We feel that only two merit a full discussion in this opinion.

The primary issue before this court is whether the circuit court erred in denying defendant's amended petition for relief from the support and alimony provisions of the divorce decree. In South Dakota there can be no modification of a divorce decree unless there can be shown some change of circumstances affecting one or both parties to the original action. SDCL 25--4--41 provides as follows:

'Where a divorce is granted for an offense of the husband, the court may compel him to provide for the maintenance of the children of the marriage, and to make such suitable allowance to the wife for her support during her life or for a shorter period, as the court may deem just, having regard to the circumstances of the parties represented; and the court may from time to time modify its orders in these respects.'

This change of circumstances rule has been used consistently by this court in cases such as the one at bar. See Matthews v. Matthews, 1946, 71 S.D. 115, 22 N.W.2d 27; Guinter v. Guinter, 1949, 72 S.D. 554, 37 N.W.2d 452; Kerr v. Kerr, 1952, 74 S.D. 454, 54 N.W.2d 357; Dougherty v. Dougherty, 1956, 76 S.D. 318, 77 N.W.2d 845.

The record reveals that prior to the divorce the defendant was a medical doctor in general practice at the Donahoe Clinic in Sioux Falls. At some unspecified time in the past, defendant had become romantically involved with Kay Christensen whom he married shortly after the divorce decree was entered. Although it was plaintiff who filed for the divorce, defendant was the one who desperately wanted out of the marriage.

Defendant resigned from the Donahoe Clinic before the divorce and moved to Yankton where he is presently residing with his wife, Kay. Plaintiff is a homemaker and continues to reside with the three children at the family home in Sioux Falls.

Under the terms of the stipulation and agreement, plaintiff was given custody of the three children. She was to have the home in Sioux Falls and was to receive $1,430 out of the first $2,300 which defendant earned each month. In addition, she was to receive 50% Of any of the defendant's earnings which exceeded $2,300 per month. Defendant agreed to pay her income tax, the family's medical expenses, and assume college expenses for each of the three children.

Defendant earns approximately $40,000 per year. His present wife, Kay, is a surgical nurse and earns approximately $8,000 per year. Defendant's contention is that the divorce decree should have been modified by the circuit court because he cannot adequately live on the money which he is allowed to retain after paying the alimony and child support, plus plaintiff's income tax.

At trial there was no effort made by defendant to show a change of circumstances regarding plaintiff except to insinuate that she should go to work and partially support the family. There is no indication that her role as a homemaker has changed. The children are still at home. She has the usual increasing expenses of a growing family, as well as a general battle with inflation.

The defendant has changed location, but his income is almost identical to that at the time of the decree. His wife, Kay, is employed full time and is making a modest income.

The real claim is that the defendant signed an unconscionable agreement in the first instance, and the trial court should have relieved him of his bad bargain. This agreement is a harsh one, especially where he agrees to pay plaintiff 50% Of any monthly income over $2,300, tax free. After paying taxes at this income level, he...