Kuehn v. Kuehn, 9298

• Citation: 74 S.D. 521,55 N.W.2d 70
• Decision Date: 13 October 1952
• Docket Number: No. 9298,9298
• Parties: KUEHN v. KUEHN.
• Court: Supreme Court of South Dakota

Page 70

55 N.W.2d 70

74 S.D. 521

KUEHN v. KUEHN.

No. 9298.

Supreme Court of South Dakota.

Oct. 13, 1952.

As Amended Oct. 16, 1952.

Davenport, Evans, Hurwitz & Smith, Sioux Falls, for plaintiff and respondent.

T. R. Johnson, Sioux Falls, for defendant and appellant.

HANSON, Circuit Judge.

The trial court granted the plaintiff, wife, a divorce for an offense of the defendant. That issue was not contested by the defendant at the trial and no appeal is taken therefrom. Defendant's appeal questions whether or not the property division and alimony provisions are equitable and whether or not the trial court erred in fact findings relative thereto.

The parties to this action were married in October, 1934. At the time both were well educated, in good health, and enjoyed comparable social and economic backgrounds as members of prominent families. The marriage was without issue. Following the marriage the defendant was employed in wholesale companies owned by members of his family. This employment terminated in July, 1946, upon the liquidation of such companies. The defendant's salary from 1934 to 1946 varied from $225 to $250 per month. During this period of time the marriage was apparently a happy and congenial one.

In 1938 the plaintiff became afflicted with diabetes. This necessitated for her a regimented schedule of exercise, rest, diet, tests and medication. The doctors referred to the plaintiff's condition as fragile, unpredictable or severe. The plaintiff was able to take the required tests, administer insulin, and properly control her diet so that such affliction was in no manner a disrupting force to the marriage. The plaintiff's condition, however, was aggravated by nervous strain and worry and the trial court found that such condition would prevent her from pursuing any gainful employment.

In 1941 the parties purchased a home in Sioux Falls for $8,250. Title to the same was in joint tenancy. The trial court found that both parties contributed to the purchase of their home and that its present value was $20,000 and the furniture and contents were of the value of $3,500.

With the exception of a small venture in a soap business the defendant was not gainfully employed from July, 1946, to April, 1949. In April, 1949, the defendant purchased the Century Equipment and Supply Company of Sioux Falls, which he still owns and operates. The income from that business has been nominal, due largely to the defendant's intemperate use of intoxicating liquors. The trial court found that for at least five years past the defendant has been guilty of habitual intemperance in the use of intoxicating liquors to the extent of disqualifying him from properly attending to business, and that the same was the sole cause for the disruption of this marriage.

[1, 2] It would serve no useful purpose to here detail all the facts or separately consider all of the assigned errors respecting the findings made by the trial court. Characteristically the evidence in this case was not entirely harmonious and the trial judge was required to resolve the resultant conflicts. In this regard the court has repeatedly stated: 'The judge of the trial court had the parties before him and heard the witnesses testify and he had better opportunity than this court to determine the weight to be given to the evidence submitted. Where there is a conflict of evidence, and there is no clear preponderance of evidence against the findings of the trial court, its findings will not be disturbed by this court'. Habeck v. Habeck, 51 S.D. 455, 214 N.W. 846, 847. We have carefully reviewed the entire record in this case which shows that each finding of the trial court is founded upon substantial evidence. There is no clear preponderance of the evidence against those findings, therefore, there is no error respecting the same.

From 1938 to 1948 the plaintiff received various sums of money and property by way of inheritances. During this period she contributed over $16,000 for family purposes, reduction of the mortgage on the home, and purchase of securities. To partially compensate the plaintiff for such contributions the defendant, in July 1950, transferred certain shares of stock and property interests to the plaintiff, having an agreed valuation of approximately $13,000. The court found that including the assets transferred to plaintiff by the defendant, and including the half interest in the home and its contents, the plaintiff at the time of trial had assets totalling approximately $52,000. That with the exception of a Buick automobile, the half interest in the home, and the securities transferred to her by the defendant, the plaintiff's assets were acquired by her through inheritance and services performed by her for members of her family. The court further found that the defendant had total assets amounting to $63,559.66, including a half interest in the home and furniture, the Century Equipment & Supply Company, insurance policies, bonds and securities. Practically all of the defendant's assets were acquired during the marriage of the parties and by their joint efforts. These assets are subject only to a debt of $5,000 due defendant's father. In addition to those assets the defendant is one of two residuary beneficiaries of the Nellie Rogers Carter estate. The residuary portion of the estate was valued at $50,000 in 1928. However, it is subject to the use of defendant's mother who is now 68 years of age.

The division of property made by the trial court simply allowed the parties to retain their respective property and assets, subject to the following adjustments, viz.: The plaintiff was granted the sole ownership of the house and its contents; the defendant was required to pay plaintiff the sum of $3,000 as further reimbursement for the cash contributions made by her during the marriage; and the defendant was given title to the Buick automobile.

The court further found that plaintiff's prospective income from investments will amount to $1,987.40 annually and to...