Lanphear v. Lanphear, 12819

• Decision Date: 11 March 1981
• Docket Number: No. 12819,12819
• Citation: 303 N.W.2d 576
• Parties: Ammon LANPHEAR, Plaintiff and Appellant, v. Muriel Joyce LANPHEAR, Defendant and Appellee.
• Court: South Dakota Supreme Court

Page 576

303 N.W.2d 576

28 A.L.R.4th 779

Ammon LANPHEAR, Plaintiff and Appellant, v. Muriel Joyce LANPHEAR, Defendant and Appellee.

No. 12819.

Supreme Court of South Dakota.

Submitted on Briefs April 22, 1980.

Decided March 11, 1981.

Reed C. Richards of Richards & Richards, Deadwood, for plaintiff and appellant.

Ralph C. Hoggatt, Deadwood, for defendant and appellee.

WOLLMAN, Chief Justice.

The issue on this appeal from a judgment and decree of divorce is whether the trial court abused its discretion by awarding defendant, Muriel Joyce Lanphear, $1,000 as her share of a coin collection, $1,000 moving expenses and $200 per month alimony. We affirm.

Plaintiff Ammon Lanphear was fifty-eight years old at the time of trial, October 1978; defendant was sixty years old. They were married in 1975 at the request of plaintiff's dying first wife. Each party maintained separate checking and savings accounts. Their separate property remained separate. They accumulated no joint property.

Defendant quit her $350-a-month job as a priest's housekeeper to move to South Dakota and marry plaintiff. A year after the marriage defendant reinjured her back when plaintiff slammed a door in her face. This injury precluded her from working during the marriage and precluded her from returning to her previous employment. She has spots on her lungs that may be cancerous. She is certified as totally disabled for social security purposes and receives $180 per month in disability payments.

Plaintiff is in good health. He works as a motorman for the Homestake Gold Mine, earning between $10,000 and $11,000 per year.

The trial court awarded defendant $200 per month alimony for as long as she lives, remains unmarried, or until further order of the court. Plaintiff argues that the alimony award is an abuse of the trial court's discretion.

After considering the relative positions of these parties, we conclude that the amount of alimony awarded is not excessive. Defendant was sixty years old at the time of trial. Her physical disability precludes her from returning to the housekeeping work that she performed for twenty years. Her sole income is the $180 per month disability payment. Plaintiff is younger and healthier. He owns real estate. He has a steady job and takes home $850 per month. The $200 per month alimony award was not an abuse of discretion, given the situation of each party relative to the factors pertinent to an award of alimony. Defendant was entitled to an amount of alimony which would allow her to maintain a reasonable standard of living. Hansen v. Hansen, 273 N.W.2d 749 (S.D.1979).

The trial court also awarded defendant $1,000 as her share of a coin collection and $1,000 moving expenses. Plaintiff argues that this award was an abuse of the trial court's discretion. The record indicates, however, that plaintiff complied with the judgment by paying defendant $2,000. The voluntary payment of this award under the judgment precludes our review of that portion of the judgment. Kerr v. Kerr, 74 S.D. 454, 54 N.W.2d 357 (1952).

The judgment is affirmed.

DUNN, MORGAN and FOSHEIM, JJ., concur.

HENDERSON, J., concurs in part and dissents in part.

HENDERSON, Justice (concurring in part, dissenting in part).

I agree that appellant has placed himself in a posture which precludes appellate review of the coin collection and moving expense portions of the judgment by paying same. However, I cannot join my colleagues in affirming the award of $200 per month alimony. Although I have the greatest respect for the hardworking, conscientious trial judges of this state, I owe a responsibility of in-depth review as I pointed out in my dissent in Herrboldt v. Herrboldt, 303 N.W.2d 571 (S.D.1981). Basically, I would reverse the alimony award because (1) I seriously question that appellant has the ability to pay the $200 per month award, (2) the award was based upon what the trial court thought appellee needed and not what appellant ought to pay, and (3) the settled law of this state, as found in Hanks v. Hanks, 296 N.W.2d 523 (S.D.1980), and Guindon v. Guindon, 256 N.W.2d 894 (S.D.1977), may be applied to the facts of this case, as set forth below, and the equities of the case simply reflect that the alimony award was excessive. Necessarily, my conclusion is that there was an abuse of discretion.

This case was tried in one day at the circuit court level. At its conclusion, with testimony fresh in his mind, the trial judge observed: "It would appear that this was a marriage that probably never should have been in the first place, but it was." Appellant married his deceased wife's sister, a divorcee of twenty years. This arose through the deathbed supplication of appellant's wife: "I'd like to have you marry her, if possible, because she needs somebody to take care of her in her older age; I don't want you to stay single and mourn over my death." The marriage was founded upon a sense of obligation, for it was upon these words being stated that appellant expressed to his dying wife that he "had not given it much thought, that we really didn't know each other, but if things were right, why it could be arranged." The record is devoid of any courtship or premarital affection. The circuit court found: "This marriage in its inception was, to say the least, unusual."

Appellant's first wife passed on from this life in June, 1974. His first marriage was a good one, brought forth children, and was happy. Under the above deathbed arrangement, appellee and appellant were married in May, 1975. Appellee had made her home in Montana for many years earning a living as a housekeeper for priests. It is noted that appellee was at the hospital the day before her sister died and her testimony was: "Yes, she'd (the dying sister) asked me, too." This second marriage for appellant created a matrimonial patch of nettles rather than a bed of roses. That both of the litigants were unhappy in this marriage, there can be no doubt. However, appellee's motivation for the marriage was economic. She apparently made no promise to her dying sister. Indeed, her own testimony reveals that she had been diagnosed as having had cancer and her back had been broken some ten to twelve years before this marriage and she knew that appellant had medical benefits furnished by his employer, Homestake Mining Company. She testified that she was financially fit and "I was wanting someone else to take over from there. Yes, I knew he was making money."

The trial court granted a divorce to appellant, finding that there was sufficient grounds for divorce, appellant having pleaded extreme cruelty by the infliction of grevious mental suffering upon him. There can be no doubt that the trial court found appellee to be the party at fault (fault is a factor to be considered in granting alimony, see Hanks and Guindon, supra). From the inception of this marriage, appellee began making derogatory remarks about her deceased sister; this, of course, caused appellant great mental anguish for he had dearly loved his departed wife. Appellee, in the opening days of the marriage, began to disparage appellant's children and berate his departed wife and mother of these children on how badly she had raised the children. Appellee also belittled her departed sister's housekeeping. For a man who had taken her into his home as his wife to care for her and be good to her, these were indeed cruel and inhumane remarks calculated to injure, wound, and sow unhappiness into the home. Appellee, following her course of conduct as a petulant fault finder, nag, and critic, criticized the children's conduct towards appellant and appellant's general upbringing of the children. This language was calculated to drive a wedge between appellant and his children. From this crop of unhappiness, she desires to harvest alimony. Appellant ought not have to pay.

Attempting to put some recreation and verve into their life, appellant enrolled the litigants in square dance lessons. They were instructed to change partners. Appellee visualized this as his yearning for...