Johnson v. Johnson, 17282

Citation471 N.W.2d 156
Decision Date20 March 1991
Docket NumberNo. 17282,17282
PartiesSteven L. JOHNSON, Plaintiff and Appellee, v. Susan J. JOHNSON, Defendant and Appellant. . Considered on Briefs
CourtSupreme Court of South Dakota

Kay F. Nikolas, Sisseton, for plaintiff and appellee.

Roger W. Ellyson, Ellyson Law Offices, Watertown, for defendant and appellant.

AMUNDSON, Justice.

Susan J. Johnson appeals the judgment and decree of divorce entered August 30, 1990. We affirm in part, reverse in part, and remand.

FACTS

Susan J. Johnson (wife) and Steven L. Johnson (husband) were married July 11, 1981. Their first child was born in 1981, and their second in 1985. Wife did not work outside the home during the marriage; she stayed home to raise the children and maintain the family home. Prior to marriage, she obtained a high school diploma and attended one year of vocational school. Husband obtained a college degree in mortuary science and was a licensed funeral director for five years before the parties' marriage. Throughout the marriage, husband continued to work in the family funeral home and furniture business where he had worked since high school.

At the time of the marriage, husband owned a twenty-five percent (25%) interest in the family funeral home and furniture business. During the marriage he purchased an additional fifty-seven percent (57%) interest, thus, at the time of trial he owned an eighty-two percent (82%) interest in the corporation. Husband's father later became incapacitated, and husband has been running both the funeral home and furniture store since 1985. When the parties were married, husband also owned a house in which they lived during the marriage, a car, and various furnishings and personal property, which assets were contributed to the marital estate. Wife contributed a car and some personal property to the marital estate, on which the court placed no value.

The breakdown of the marriage resulted from the inability of the parties to cope with medical problems and normal business stresses, resulting in chemical abuse and violence by both husband and wife. Husband is a manic depressive, however, his illness is controlled with medication and psychiatric counseling. Wife suffers from borderline personality disorder, a genetic disorder which causes violent and abrupt mood swings, resulting in a great deal of stress on the sufferer and family. There is no cure for this disorder, but wife is involved in counseling. Since her teenage years, this disorder has led her to alcohol abuse and bulimia in attempts to cope. The court found that husband was aware of wife's bulimia prior to their marriage. Wife's bulimia and addiction to alcohol became more severe after the birth of the second child in 1985. Husband began using cocaine due to stresses at home and at the business, and this led to both parties becoming regular users. The care of the children and the home suffered accordingly.

Early in 1989, at the urging of the family minister, husband had wife hospitalized for treatment of her alcohol abuse and eating disorder. This was the beginning of a series of hospitalizations and treatments in numerous institutions which uniformly ended in failure due to wife's continued bulimia and use of alcohol, and due to husband's facilitation of her continued use of cocaine. Her conduct caused husband and the children to leave the family's home at one point, and resulted in prosecution of wife for several episodes of criminal behavior. Both husband and wife have physically assaulted each other on occasion.

Husband commenced this action for divorce in January 1990. Prior to trial, husband and wife stipulated that they had irreconcilable differences. After trial, the court awarded wife $75,000 and her car, and awarded the balance of the property to husband. Wife was also awarded rehabilitative alimony of $4,000 per year for four years. The children were placed in husband's custody, and no child support was ordered. Wife was allowed eight hours of supervised visitation twice a month, plus visitation on an alternating basis for birthdays and holidays. Wife was also awarded attorney fees. Additional details are discussed below in the analysis of each issue raised by wife's appeal.

ISSUES

1. Does the trial court's division of property constitute an abuse of discretion?

2. Is the trial court's valuation of Johnson Furniture and Funeral Home, Inc. clearly erroneous?

3. Does the trial court's award of rehabilitative alimony evidence an abuse of discretion?

4. Does the restricted visitation ordered by the trial court constitute an abuse of discretion?

5. Does the trial court's award of only a portion of wife's attorney fees demonstrate an abuse of discretion?

ANALYSIS
1. Property Division.

Wife argues that the division of the marital assets is inequitable because husband was awarded nearly all of what was a substantial marital estate. Husband responds that the award properly restored to him the value of pre-marital assets, and that wife made no direct contribution to the marital property. It is well settled that this court will not disturb a division of property unless it clearly appears that the trial court abused its discretion. Fox v. Fox, 467 N.W.2d 762, 766 (S.D.1991); Studt v. Studt, 443 N.W.2d 639, 642 (S.D.1989). See Estate of Donahue, 464 N.W.2d 393, 395 (S.D.1990) (defining abuse of discretion standard). This clear abuse of discretion standard likewise governs our review of awards of alimony, visitation, and attorney fees. Fox, 467 N.W.2d at 766; Shoop v. Shoop, 460 N.W.2d 721, 725, 726 (S.D.1990). The exercise of the trial court's discretion in dividing the property of divorcing parties is, however, limited by SDCL 25-4-44 1 and SDCL 25-4-45.1. 2 Fox, 467 N.W.2d at 766.

In Ryken v. Ryken, 461 N.W.2d 122, 126 (S.D.1990) (Ryken II ), we reiterated that the principal factors to be considered in making a property division are: "(1) the duration of the marriage; (2) the value of the property; (3) the ages of the parties; (4) their competence to earn a living; (5) the contribution of each party to accumulation of property; and (6) the income-producing capacity of the parties' assets." In considering these factors, the trial court is to be guided by principles of equity. Ryken v. Ryken, 440 N.W.2d 300, 304 (S.D.1989) (Ryken I ); Cooper v. Cooper, 299 N.W.2d 798, 799-800 (S.D.1980) (Henderson, J., dissenting). The record in this case demonstrates that the trial court's division of property specifically took into consideration most of the relevant factors noted above, and it is unnecessary to reiterate each of the trial court's findings here. However, the record does not reflect an appropriate consideration of wife's contribution to the accumulation of property during the marriage. We have consistently held that the duties performed as a mother and housewife constitute a valuable contribution to the marital property. See, e.g., Garnos v. Garnos, 376 N.W.2d 571, 573 (S.D.1985). Although the trial court made reference to this consideration in passing, we find that consideration was more perfunctory than real.

Wife's primary point of contention in regard to the property division is that husband was improperly awarded a disproportionately large share of the marital estate. Her point is well taken. The trial court awarded wife $75,000 cash, payable in three equal annual installments without interest. 3 Husband was awarded the balance of the property valued at $420,803.02, and was responsible for debts of $7,862.65, a net award of $412,940.37.

We begin by noting that the trial court's division of property is not bound by any mathematical formula. Baltzer v. Baltzer, 422 N.W.2d 584 (S.D.1988). The trial court found that husband was the sole source of the marital assets and income, and that he would have been just as financially successful if he had not married. This is not one of the factors delineated by this court for consideration in making an equitable division of marital assets, nor will this court adopt such a factor as appropriate in this case. Husband contends that the award was not disproportionate because approximately $20,000 represents the value of his premarital assets. The record on this matter is conflicting because, although the trial court found husband to have owned a house, car, and a variety of personal property prior to the marriage, these assets were included in the valuation of the marital estate. This matter must be resolved by the trial court on remand. Further, the $20,000 amount is but a fraction of a percent of husband's property award.

The division of property appears to have minimized, if not totally disregarded, the relative earning capacity of the parties. It was undisputed that husband's annual reported income is in excess of $90,000, and that he has unreported income which is siphoned from the business as he himself testified, and that wife's ability to support herself is uncertain and her current income is zero. 4 The trial court did find that in order for wife to hold a job she will need additional education and "extensive specialized counseling for a minimum of two years with an estimated cost of $500.00 to $800.00 per day in order for [wife] to be employable." 5 While husband was ordered to maintain the existing medical insurance for the next four years, wife is required to pay the deductible, and there was a serious question raised as to the coverage that would be provided by insurer.

The property division essentially forecloses any possibility that wife can become self-sufficient within the next four years, although it contemplates such a time period by the award of rehabilitative maintenance of $4,000 per year for a four-year period. This property division appears to have disregarded the circumstances of both parties and the principles of equity. Possibly the trial court felt that wife's trustee could manage her $25,000 per year for three years to provide wife with her...

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