Kappenmann v. Kappenmann, s. 17276

• Decision Date: 20 May 1991
• Docket Number: 17288,Nos. 17276,s. 17276
• Parties: Darlene L. KAPPENMANN, Plaintiff and Appellee, v. Larry J. KAPPENMANN, Defendant and Appellant. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 520

479 N.W.2d 520

Darlene L. KAPPENMANN, Plaintiff and Appellee, v. Larry J. KAPPENMANN, Defendant and Appellant.

Nos. 17276, 17288.

Supreme Court of South Dakota.

Considered on Briefs May 20, 1991.

Decided Jan. 8, 1992.

Richard A. Johnson, Pruitt, Matthews, Muilenburg, Sioux Falls, for plaintiff and appellee.

Thomas K. Wilka, Hagen & Wilka, P.C., Sioux Falls, for defendant and appellant.

GROSSHANS, Circuit Judge.

Larry Kappenman (Larry) appeals provisions of a divorce decree relating to child custody, alimony and an award of partial attorney fees. Darlene Kappenman (Darlene), by filing a notice of review, appeals from certain provisions of the property distribution and the trial court's failure to award her permanent alimony and all of her attorney fees. We affirm on all issues.

FACTS

Larry is 41 years old and Darlene is 43. They were married 20 years ago, at Montrose, South Dakota. Darlene graduated from the University of South Dakota in 1970 with a four-year secretarial degree. In 1971, Larry graduated from the University of South Dakota with a two-year nursing degree. Larry later attended Creighton University and obtained an anesthesia certificate. He is employed as a nurse anesthetist and earns in excess of $68,000 per year. Darlene worked in a variety of bookkeeping and secretarial positions until she gave birth to their first children, twins, in 1980. Her employment was interrupted from time to time as Larry pursued his professional career. Eventually he secured employment at Sioux Valley Hospital in Sioux Falls where they have lived for many years. They have three children. The twins, Brad and Todd, are now almost eleven, and their daughter, Leslie, is almost eight.

Darlene suffered some hearing loss as a result of childhood meningitis. She lost all ability to hear during her pregnancy with the twins. As a result, she receives social security disability benefits of about $390 per month for herself, and $180 per month for the children. Since the birth of the twins and her total hearing loss, she has devoted her time to being a full-time wife and mother. Despite Larry's encouragement, she has not learned sign language. Although she is a good lip reader, there is guesswork involved. According to Larry, she isolates herself and does not easily make friends. Dr. Bill Arbes, a clinical psychologist, testified that it is necessary for Darlene to participate in some deaf education classes and get involved with the Woman's Center so she can pursue career goals for herself.

At the time of the marriage neither party had significant assets. During the course of the marriage, they accumulated assets having a value in excess of $500,000. This includes four tracts of farmland which Larry farmed, various investment accounts and personal property including farm machinery. Except for a mortgage on some of the farmland, they are almost debt free. Larry is presently vested in a retirement plan at the hospital which will bring him about $451 per month at his normal retirement date in the year 2015. There is no evidence of the present cash value of this asset.

Larry and Darlene were involved in an automobile accident in 1987. Apparently she was the more severely injured of the two. They both have potential claims pending. It appears that Darlene has rejected a $10,000 offer of settlement. There is no other evidence of the value of these pending claims. Darlene and Larry were granted a divorce in 1989.

Custody of the children was the focal point of what the trial court termed a most "acrimonious dispute." It would serve no constructive purpose to set forth at length the petty bickering and fighting these parties engaged in during the pendency of the proceedings concerning their children. The trial court concluded that each party was entitled to a divorce on the grounds of extreme mental cruelty, with Larry being more at fault than Darlene. The court followed the recommendations of two experts and determined that custody of the children would be joint with Darlene the primary custodian. Larry was given liberal and specific visitation rights.

In its property distribution the court awarded Larry his retirement account and Darlene her personal injury claim. Darlene received additional assets valued at $226,000. Larry received assets worth $276,000. During the pendency of the action, Darlene established a checking account in which she deposited her social security checks and interim child support. The trial court considered this account a marital asset and awarded it to Larry.

Darlene sought permanent alimony of $700 to $1000 per month. Larry contended that she should receive nothing due to the fact she received assets worth $226,000. The trial court rejected both positions and awarded Darlene rehabilitational alimony of $500 per month for five years.

Darlene sought recovery of all of her costs, including attorney fees and appraisal fees. Out of those total costs she was awarded $2500.

ISSUES

By Appellant, Larry:

1. Does the trial court's award of actual physical custody of the children to Darlene constitute an abuse of discretion?

2. Does the trial court's award of rehabilitation alimony of $500 per month for five years to Darlene constitute an abuse of discretion?

3. Does the trial court's award of partial attorney fees to Darlene constitute an abuse of discretion?

By Appellee, Darlene:

1. Does the trial court's refusal to award permanent alimony to Darlene constitute an abuse of discretion?

2. Did the trial court's refusal to award Darlene an interest in Larry's retirement account and failure to consider his personal injury claim constitute an abuse of discretion?

3. Did the trial court's refusal to award Darlene all of her costs, including appraisal fees constitute an abuse of discretion?

4. Did the trial court's award of $50,000 more of the assets including Darlene's post-separation checking account to Larry constitute an abuse of discretion?

DECISION:

All of the issues presented by the parties are subject to the abuse of discretion standard. "The term, 'abuse of discretion' refers to a discretion exercised to an end or purpose not justified by, and clearly against, reason and evidence." Gross v. Gross, 355 N.W.2d 4, 7 (S.D.1984).

CHILD CUSTODY

The primary consideration in deciding the custody of a child is determining the best interests of the child. SDCL 30-27-19; Nauman v. Nauman, 445 N.W.2d 38 (S.D.1989). The trial court is vested with broad discretion in deciding questions of child custody and its decision will be reversed only upon a clear showing of an abuse of that discretion. Madsen v. Madsen, 456 N.W.2d 551 (S.D.1990). The trial court's decision, based on its first hand opportunity to gauge the credibility of the parties, must be given appropriate deference. Saint-Pierre v. Saint-Pierre, 357 N.W.2d 250 (S.D.1984).

Larry contends that the trial court did not expressly state in its findings of fact and conclusions of law that it would be in the best interests of the children to be in Darlene's custody. The trial court's memorandum decision was incorporated into its findings by reference. It is clear from the memorandum decision that the trial judge applied the proper standard. He based his decision in part on the recommendations of the two experts who concluded that it would be in the best interests of the children if joint custody were granted with Darlene being the primary custodian. Dr. Arbes testified; Renae Turbak presented a home study report, which was the result of a pre-trial request originally made, and later objected to, by Larry. Such a request falls within the ambit of Schmitz v. Schmitz, 351 N.W.2d 143 (S.D.1984) and therefore was properly admitted into evidence over his objection. It cannot be said that the trial court's decision was clearly against reason and the evidence. Therefore, the trial court did not abuse its discretion.

ALIMONY

Larry and Darlene both contend that the trial court abused its discretion in awarding Darlene rehabilitation alimony of $500 per month for five years. Larry contends she should get nothing because she received a large property settlement. Darlene contends she should have permanent alimony.

The factors set forth in Ryken v. Ryken, 440 N.W.2d 300 (S.D.1989) are to be considered by the trial court in making an award of alimony. See also, Baltzer v. Baltzer, 422 N.W.2d 584 (S.D.1988). The trial court evaluated those factors and went on to temper its award by referring to Wallahan v. Wallahan, 284 N.W.2d 21, 27 (S.D.1979): "alimony [should] not be denied merely because [spouses] may be able to obtain employment and support [themselves];" neither should alimony be allowed to spouses who are capable of employment so that they can sit by in idleness.

In this case, neither party presented evidence specifically directed at rehabilitation. Obviously then, there is no plan for rehabilitation on the record. The issue is, whether the record supports such an award. In Hautala v. Hautala, 417 N.W.2d 879 (S.D.1988) this court maintained:

[T]he issue is not the name placed on alimony, but whether the record supports the award.

This court has consistently held that rehabilitative alimony is proper where it is necessary 'to enable the supporting spouse to refresh or enhance the job skills he or she needs to earn a living.'

The purpose of rehabilitative alimony is to put a spouse in a position to upgrade his or her economic marketability. Bradeen v. Bradeen, 430 N.W.2d 87 (S.D.1988). During their marriage, Darlene supported the family by devoting her time to being a full-time wife and mother. In so doing, she did forego employment opportunities.

The trial court further found that although Darlene is deaf, she could be gainfully employed if she would pursue vocational rehabilitation. The trial court noted "[t]hat she is in need of alimony to assist her in achieving an ability to sustain herself and to improve and refresh her job skills based on her...