Jameson v. Jameson

• Citation: 1999 SD 129,600 N.W.2d 577
• Decision Date: 29 September 1999
• Docket Number: No. 20506.,Issue No. 5 Reassigned August 16, 1999.,20506.
• Parties: Carolyn S. JAMESON, Plaintiff and Appellant, v. G. Malcolm JAMESON, Defendant and Appellee.
• Court: Supreme Court of South Dakota

600 N.W.2d 577

1999 SD 129

Carolyn S. JAMESON, Plaintiff and Appellant, v. G. Malcolm JAMESON, Defendant and Appellee.

No. 20506.

Supreme Court of South Dakota.

Considered on Briefs January 14, 1999.

Issue No. , 1999.

Decided September 29, 1999.

Lee R. Burd, Sioux Falls, South Dakota, Attorney for plaintiff and appellant.

John E. Burke, Sioux Falls, South Dakota, Attorney for defendant and appellee.

[¶ 1.] AMUNDSON, Justice, delivers the majority opinion of the Court on Issues 1 and 2, holding that due to our determination of these issues, we find Issues 3 and 4 to be without merit.

[¶ 2.] KONENKAMP, Justice, delivers the majority opinion of the Court on Issue 5.

AMUNDSON, Justice.

[¶ 3.] Carolyn Jameson appeals circuit court's decision (1) modifying alimony; (2) eliminating other support obligations; (3) awarding only partial interest on the judgment; (4) refusing to hold Dr. G. Malcom Jameson in contempt; and (5) failing to award attorney fees. We reverse and remand in part and affirm in part.

FACTS

[¶ 4.] Carolyn and Malcom Jameson were divorced December 15, 1971, after twenty years of marriage. The parties entered into and signed a stipulation and agreement which was adopted in the divorce decree. That stipulation was approved by this Court in Jameson v. Jameson, 90 S.D. 179, 239 N.W.2d 5 (1976) (Jameson I). Since the time of divorce, the parties have been involved in prolonged litigation spanning nearly three decades which has resulted in three appeals to this Court and various appearances in the lower courts. See id.; 306 N.W.2d 240 (S.D.1981); and 332 N.W.2d 721 (S.D.1983).

[¶ 5.] The circumstances surrounding the divorce were that "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 divorce, defendant was the one who desperately wanted out of the marriage." Jameson I, 90 S.D. at 182,239 N.W.2d at 6. A continuing theme throughout the divorce agreement was that Carolyn and the three children were to continue as if there had never been a divorce.¹ This Court noted that:

Plaintiff, however, can scarcely be faulted in her insistence on a standard of living for herself and family that is commensurate with that she could have expected as the wife of a medical doctor. She had not precipitated the marital crisis in any way, and she sought only to salvage what she could from a very unhappy experience. She drove a hard bargain, but the defendant accepted it and it was incorporated into the divorce decree.

Id. at 7.

[¶ 6.] Since 1976 this divorce agreement has been interpreted by the courts a variety of times. The original divorce agreement called for a "baseline" support amount of $1,430, plus half of Dr. Jameson's earnings beyond his then current earnings. In 1979 this was interpreted as paying fifty percent of any monthly income over $2,300, tax free.²

[¶ 7.] The agreement was again interpreted by order dated June 9, 1980, when the trial court determined that Carolyn should receive one-eighth of Dr. Jameson's earnings beyond $3,050 per month, in addition to the baseline of $1,430 per month.³ This formula has been in place since 1981.

[¶ 8.] In 1995 the parties again ended up in court over the amount of alimony due. In 1996 the trial court determined that since the parties have always used W-2 income as the income against which to determine "additional earnings" beyond $3,050, alimony was to be calculated based on Dr. Jameson's W-2 income. This decision was not appealed.

[¶ 9.] To bring us to the facts precipitating the present case, Dr. Jameson retired December 31, 1996, at the age of 70. In 1995 and 1996 Dr. Jameson failed to pay full support. In 1997, following retirement, Dr. Jameson unilaterally ceased paying all alimony. Dr. Jameson did this without filing any type of modification action with the trial court, as had been the past practice. In May 1997 Carolyn commenced a contempt action for failure to pay alimony and to determine and collect arrearages. Dr. Jameson subsequently filed a motion seeking to have alimony terminated due to a change in circumstances. Dr. Jameson claimed that he had retired; therefore, he no longer had any W-2 income and, consequently, he no longer owed alimony, even though there was no provision in the stipulation providing such relief. [¶ 10.] The matter was heard by the trial court on July 22, 1997. A letter decision was issued December 23, 1997. Findings of fact and conclusions of law and an additional letter decision and order were issued February 26, 1998. Under the order, the trial court awarded Carolyn arrearages for alimony for the years 1995 and 1996 in the amount of $5,854.00, plus interest in the sum of $873.30. For 1997 the court found a change in circumstances and modified the alimony award. The court reduced alimony from approximately $2,400 per month to $1,400 per month and applied this figure retroactively to January 1, 1997. The court ordered that $1,400 per month be paid in alimony from and after January 1, 1998, as the total financial obligation of Dr. Jameson to Carolyn. The court also ordered Dr. Jameson to pay $1,110 as reimbursement for dental expenses incurred in 1997. The trial court denied the request to award attorney fees.

[¶ 11.] Carolyn appeals the modification, raising the following issues:

1. Whether the trial court's modification of alimony was proper.

2. Whether it was proper for the trial court to eliminate previous requirements that Dr. Jameson pay income taxes due on alimony, to pay taxes and insurance on Carolyn's home, and to pay Carolyn's medical, dental and hospital costs not covered by insurance, when those issues were not being raised or litigated.

3. Whether the trial court erred in failing to award full interest on the alimony arrearages due for 1997.

4. Whether Dr. Jameson should have been held in contempt for failure to pay the sums due pursuant to the orders of the court.

5. Whether the trial court should have required Dr. Jameson to contribute to Carolyn Jameson's attorney fees, tax and costs.

DECISION

[¶ 12.] 1. Whether trial court's modification of alimony was proper.

[¶ 13.] SDCL 25-4-41 gives the trial court the discretion to modify alimony. We review the trial court's decision to modify an alimony award under the abuse of discretion standard. Gunn v. Gunn, 505 N.W.2d 772, 774 (S.D.1993). "`An "abuse of discretion" is discretion exercised to an end or purpose not justified by, and clearly against, reasoning and evidence.' " Id. (quoting Horr v. Horr, 445 N.W.2d 26, 28 (S.D.1989)).

[¶ 14.] To justify a change in alimony payments there must be a change of circumstances. Lampert v. Lampert, 388 N.W.2d 899, 902 (S.D.1986). In a proceeding for modification of alimony, the burden of proving a change in circumstances sufficient to warrant modification is upon the party seeking modification. Rousseau v. Gesinger, 330 N.W.2d 522, 525 (S.D.1983).

[¶ 15.] Dr. Jameson asserts his circumstances have changed due to a reduction in income brought on by retirement. The trial court agreed, stating that "the defendant's situation [has] changed. He is now retired and his income is now less. This is a change."

[¶ 16.] While retirement can be a change in circumstances, it is not automatic. See Gunn, 505 N.W.2d at 774

; Wilson v. Wilson, 399 N.W.2d 890, 891 (S.D.1987); Lampert, 388 N.W.2d at 903; cf. Lambertz v. Lambertz, 375 N.W.2d 645, 647 (S.D.1985) (finding that forced retirement from the Air Force, which reduced his income by approximately half, was a sufficient change in circumstances warranting a reduction in alimony). A decrease in earning, by itself, does not show a change of circumstances. Wilson, 399 N.W.2d at 891; Lampert, 388 N.W.2d at 903. For example, in Lampert, illness reduced obligor's income by forty-one percent. Lampert, 388 N.W.2d at 903. However, because the obligor spouse still had sufficient funds to pay the alimony and because the dependent spouse continued to need the money to meet ordinary expenses, a reduction in alimony was denied. Id. In assessing change of circumstances, the trial court must consider a change in the necessities of the recipient and the financial ability of the obligor. Olson v. Olson, 1996 SD 90, ¶ 10, 552 N.W.2d 396, 399; Gunn, 505 N.W.2d at 774. The obligor spouse who claims inability to pay must produce complete and detailed evidence of his financial position showing an inability to pay. Wilson, 399 N.W.2d at 891; Lampert, 388 N.W.2d at 903. Carolyn argues the trial court abused its discretion because it only considered the reduction in income and failed to consider both the financial ability of obligor and the necessities of the recipient. We agree. Upon review, the record is devoid of proof that Dr. Jameson is financially unable to meet his alimony obligations. Furthermore, there was no showing that Carolyn's need for alimony had decreased; in fact, the evidence showed she was dependent upon the alimony. See Wilson, 399 N.W.2d at 891.

[¶ 17.] The record reveals that at trial Dr. Jameson testified he had an IRA valued at $700,000 from which he received $4,000 per month income, a stock portfolio valued at about $110,000, a residence valued at $180,000, and received social security benefits of $1,500 per month.

[¶ 18.] Carolyn, on the other hand, owned a house worth $120,000, which she had remortgaged for $63,701. She received social security of $465 per month and has a small income from a part-time business selling stationary cards. Furthermore, Carolyn had borrowed $3,000 from her insurance policy and charged $20,300 on credit cards in the past year due to Dr. Jameson's unilateral decision to stop making alimony payments. The trial court mentioned it was distressed with Carolyn's mismanagement of her finances. While there is no question that Carolyn's financial management has not been a picture of prudent financial investment, there is simply no authority...