Kittelson v. Kittelson, 12273

• Decision Date: 04 January 1979
• Docket Number: No. 12273,12273
• Citation: 272 N.W.2d 86
• Parties: Doris M. KITTELSON, Plaintiff and Appellant, v. Gilbert L. KITTELSON, Defendant and Respondent.
• Court: South Dakota Supreme Court

Page 86

272 N.W.2d 86

Doris M. KITTELSON, Plaintiff and Appellant, v. Gilbert L. KITTELSON, Defendant and Respondent.

No. 12273.

Supreme Court of South Dakota.

Argued June 9, 1978.

Decided Nov. 30, 1978.

Rehearing Denied Jan. 4, 1979.

Steve L. Jorgensen of Willy, Pruitt, Matthews & Jorgensen, Sioux Falls, for plaintiff and appellant.

Dale E. Bradshaw of Loucks, Oviatt, Bradshaw, Green & Schulz, Watertown, for defendant and respondent.

DUNN, Justice (on reassignment).

This is an appeal from a judgment of the trial court granting Doris Kittelson a divorce from Gilbert Kittelson upon the grounds of extreme cruelty. Doris Kittelson appeals from the property division and alimony provisions of the judgment. We reverse and remand.

Gilbert and Doris Kittelson were married at Watertown, South Dakota, on February 11, 1951. Four children were born as the issue of the marriage, and all four children were of legal age at the time of the divorce trial.

Following their marriage, the parties moved to a rented farm west of Watertown where they resided until 1959, at which time they moved back to Watertown to enable their children to attend the public schools there. Gilbert continued to farm and commute back and forth between the house in town and the farm. Over the years, the parties purchased 483 acres of land in joint tenancy for the farm operation. In 1970, Gilbert began a loose partnership with his two sons for the purpose of dairy farming. The partnership assets included essentially all of the farm operation, including land, equipment and livestock. All farm income was funneled into "Kittelson Dairy Farm," and the living costs and salaries for the partners and their families came out of this "pot" in no particular manner but, rather, as it was needed. In April of 1974, Gilbert moved out of the family home in town. Approximately two years later, Doris filed for divorce.

At the time of the divorce trial, Gilbert was 46 years old and Doris was 45 years old. Gilbert was in reasonably good health, but Doris was hindered by a physical disability consisting of a limp as the result of a bone infection suffered as a child.

On May 13, 1977, the trial court granted Doris a divorce upon the ground of extreme cruelty. The lower court entered judgment directing that Doris be given title to the home in Watertown subject to a mortgage, all household goods and furnishings contained in the home, a 1973 automobile free and clear of liens and encumbrances, and a life insurance policy. Gilbert was awarded all of the farmland, together with the equipment and livestock, and was directed to pay the premiums on the life insurance policy given to Doris, alimony of $300 per month to be reduced by $100 per month when the house mortgage is satisfied, and Doris' attorney fees of $2,500.

In reviewing the division of property and award of alimony, we take cognizance of the fact that the trial court has broad discretion in making such division and granting such award, and we will not modify or set them aside unless it clearly appears that the trial court abused its discretion. Wall v. Wall, 1977, S.D., 260 N.W.2d 644; Hanson v. Hanson, 1977, S.D., 252 N.W.2d 907; Stenberg v. Stenberg, 1976, S.D., 240 N.W.2d 100.

With regard to the division of property, we have enumerated the principal factors to be considered by the trial court as follows: the duration of the marriage, value of the property, the ages of the parties, the parties' state of health and competency to earn a living, the contribution of each party to the accumulation of the property, the faults and circumstances leading up to the divorce, and the income-producing capacity of the parties' assets. Wall, supra ; Hanson, supra ; Stenberg, supra ; Kressly v. Kressly, 1958, 77 S.D. 143, 87 N.W.2d 601. The trial court must make the division of property on the basis of these principal factors while having due regard for equity and the circumstances of the parties. Hanson, supra ; SDCL 25-4-44.

Regarding the first factor, the Kittelsons had been married for nearly 26 years at the time of the divorce trial. Four children were born as issue of the marriage and were all of legal age at the time of the trial.

Our standard of review as to valuation of property is limited to whether the trial court divided the property in an equitable manner, and we will not attempt to place a valuation on the assets because that task is within the province of the trier of fact. Guindon v. Guindon, 1977, S.D. 256 N.W.2d 894; Stenberg, supra.

The record indicates that Gilbert had two different financial statements. The first such statement was incorporated in an FHA loan application in 1975 in which Gilbert declared his net worth to be $216,584. A second statement drawn by Gilbert for the divorce proceedings shows a net worth of $107,832.17, which is further decreased because of a partnership arrangement to a figure of $86,416.08. The trial court accepted the latter figure as to the value of the marital assets. Ordinarily, we will not disturb these findings of the trial court as to the valuation of marital assets. The exceptions to this rule would be where assets are completely overlooked by the trial court or minimized by mortgages which may or may not be legitimate liens against the marital property.

The exhibits relied upon by the trial court fail to break down the mortgages outstanding on the 483 acres of marital property as opposed to those mortgages on 480 additional acres purchased in the sons' names since 1970. It further fails to disclose whether the mortgages outstanding against the marital property were present prior to the financial arrangement for purchasing the additional 480 acres out of partnership assets. Thus we feel that the trial court failed to fully scrutinize the question of valuation.

We first note the fact that Gilbert's placing of all the farm assets into a partnership in 1970 without any contribution from the sons does not preclude the trier of fact from tracing the marital assets and proceeds therefrom prior to the divorce trial. We further note that the testimony reveals that the 483 acres of mortgaged property alone are valued at $144,900 with a net worth of $77,900 after a deduction for outstanding mortgages. Thus, establishing the bona fide mortgages against the marital property is a necessary element in determining net worth.

It would seem imperative in this divorce action that the marital assets and proceeds therefrom be traced on the date when Gilbert placed all the farm assets into a partnership in 1970 without any contribution from the sons. Once these assets are traced, they should be valued as of the date the divorce was granted. We already know that the down payment on the additional 480 acres purchased and placed in the sons' names was made from partnership assets. Whether there was a mortgage or additional mortgage placed on the marital property to complete the purchase is not revealed...