Jones v. Jones

• Decision Date: 20 January 1983
• Docket Number: No. 13785,13785
• Citation: 334 N.W.2d 492
• Parties: Dianne F. JONES, Plaintiff and Appellee, v. Robert E. JONES, Defendant and Appellant. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 492

334 N.W.2d 492

Dianne F. JONES, Plaintiff and Appellee, v. Robert E. JONES, Defendant and Appellant.

No. 13785.

Supreme Court of South Dakota.

Considered on Briefs Jan. 20, 1983.

Decided May 18, 1983.

Lee R. Burd, Sioux Falls, for plaintiff and appellee.

Robert L. Harris, Sioux Falls, for defendant and appellant.

FOSHEIM, Chief Justice.

This is an action for a divorce and property distribution. We reverse and remand.

This action was originally commenced on February 15, 1981. On May 5, 1981 the court entered a judgment and decree of divorce upon default of defendant (Robert E. Jones), which provided that plaintiff (Dianne F. Jones) have custody of the parties' children, subject to reasonable visitation rights of defendant, and that defendant pay child support to plaintiff in the amount of $361.00 per month. Defendant was also ordered to provide health and life insurance to plaintiff for the benefit of the children and to pay a $1,500.00 property settlement. Alleging failure to comply with the Soldiers and Sailors Relief Act, defendant moved to reopen the matter for defense on the merits. That motion was granted.

Plaintiff resides at Sioux Falls, South Dakota and defendant is an active duty member of the United States Air Force stationed in Michigan. They were married in January 1969 at the Ellsworth Air Force Base, Rapid City, South Dakota. They have three children, ages 10, 6 and 5 at the time of the divorce. The parties separated in December of 1979, at which time plaintiff and the children moved to Sioux Falls. Neither party has disabilities. Plaintiff is not employed and is attending college. Defendant has a gross income of $1,230.00 per month plus a food and housing allowance which raises his total gross pay to about $1,450.00. His disposable income is $1,187.00 per month.

When the parties separated they had accumulated personal property worth approximately $16,360.00. Prior to the divorce trial, they divided that property between themselves, whereby defendant received approximately $11,115.00 in value and plaintiff received about $5,245.00. Defendant assumed and agreed to pay all the marital debts.

The court awarded the parties joint legal custody of the minor children; physical custody was granted to plaintiff and the children were directed to reside with her. Defendant was to have the children in his care for up to three periods of two weeks each for a total of six weeks each summer. Any additional visitation must be arranged on one week's advance notice to plaintiff and exercised within the city limits where plaintiff resides. Defendant was directed to pay the sum of $200.00 per month, per child, to plaintiff. These payments are to continue even when the children are in defendant's care. In addition, defendant was directed to maintain all military and private insurance policies upon his life in force at the time of trial, naming the children as beneficiaries.

Additionally, defendant was directed to pay to plaintiff the sum of $2,000.00 as an additional property settlement at the rate of $100.00 per month commencing June 1 1982. Plaintiff was also granted $162.00, representing unpaid child support through the time of trial. Defendant was further directed to pay plaintiff $1,500.00 towards her attorney's fees and expenses.

Defendant claims that the trial court erred when it adopted the findings of fact and conclusions of law prepared by plaintiff's counsel which varied substantially from the trial court's memorandum opinion issued several weeks earlier.

At the conclusion of the evidence the court asked counsel to submit written final arguments on certain issues found to be pertinent by the court. Counsel for both parties did this on January 11, 1982. On January 14, 1982, the court expressed an outline of its findings and conclusions and stated:

The plaintiff's attorney should prepare proposed Findings of Fact and Conclusions of Law consistent with this opinion and refer to the opinion for facts found therein and conclusions stated as provided by Rule 52a.

Forty days later, on February 22, 1982, plaintiff's counsel submitted proposed findings of fact and conclusions which, by accompanying letter, admittedly were at variance with the court's memorandum decision previously announced. A copy of these proposed findings and conclusions were served on defendant. Defendant, in turn, submitted alternative proposed findings of fact and conclusions of law. On March 3, 1982, the court adopted the findings of fact and conclusions of law proposed by plaintiff.

It is the prerogative of the trial court to re-think a decision from the bench or a memorandum decision. Apparently the court intended to do just that because he directed counsel for both parties to submit further written formal arguments on some issues. A trial court's memorandum decision is not reviewable by this court. O'Connor v. O'Connor, 307 N.W.2d 132 (S.D.1981); Connelly v. Sherwood, 268 N.W.2d 140 (S.D.1978). In Connelly, at 142, we said:

As its name implies, a memorandum opinion is merely an expression of the trial court's opinion of the facts and law. Christiansen v. Strand, 1966, 82 S.D. 416, 147 N.W.2d 415. Any expression of opinion or views by the trial judge extraneous to his decision in the manner and form contemplated by law is of no binding force and effect as a matter of law either upon the trial judge himself or anyone else. Western Bldg. Co. v. J.C. Penney Co., 1932, 60 S.D. 630, 245 N.W. 909. Because the memorandum opinion is not binding, our review is limited to the trial court's findings of fact and conclusions of law.

See also Wall v. Wall, 260 N.W.2d 644 (S.D.1977); Christiansen v. Strand, 82 S.D. 416, 147 N.W.2d 415 (1966). Accordingly the trial court did not err in adopting a version of findings of fact and conclusions of law more favorable to plaintiff than his memorandum opinion earlier indicated.

Defendant next contends the trial court abused its discretion in awarding plaintiff's attorneys fees as reasonable in the amount of $1,500.00 when no evidence was introduced at the trial from either party concerning such fees. SDCL 15-17-7 grants the trial court power to order payment of attorney's fees in divorce cases where such an allowance "shall seem warranted and necessary." We have repeatedly held that this allowance rests in the sound discretion of trial court and will not be interferred with by this court, unless it appears there was err in the exercise thereof. Pochop v. Pochop, 89 S.D. 466, 233 N.W.2d 806 (1975); Foss v. Foss, 83 S.D. 574, 163 N.W.2d 354 (1968); Kuehn v. Kuehn, 74 S.D. 521, 55 N.W.2d 70 (1952); Baron v. Baron, 71 S.D. 641, 28 N.W.2d 836 (1947).

In order to decide what is a reasonable attorney's fee, the trial court must consider the visible elements before him, namely the amount and value of the property involved, the labor and time involved, the skill required to draw the pleadings and try the case, the discovery procedures utilized, the existence of complicated legal problems and whether written briefs were required. DeWitt v. DeWitt, 86 S.D. 59, 191 N.W.2d 177 (1971). "After determining what constitutes a reasonable fee in the case, the trial judge in a divorce case has to make the further decision of what portion of the wife's attorney fees should be allowed as costs and thereby paid by the husband." Lien v. Lien, 278 N.W.2d 436, 443 (S.D.1979) (citations omitted). ¹ "Where trial attorney's fees are involved, the trial court should consider the need of the wife for the allowance and the ability of the husband to pay." Peshek v. Peshek, 297 N.W.2d 323, 324 (S.D.1980) (citation omitted); Prentice v. Prentice, 322 N.W.2d 880 (S.D.1982). On an appeal to this court these elements are also considered. Rykhus v. Rykhus, 319 N.W.2d 167 (S.D.1982); Lien, supra.

Although the allowance of attorney's fees rests in the sound discretion of the trial court, its authority to enter a valid order for payment is conditioned upon compliance with procedural due process and fundamental fairness. A notice of motion for counsel fees is ordinarily required. In accord with this general rule an award of counsel fees made without proper application and without notice to defendant was set...