Lodde v. Lodde

• Decision Date: 20 November 1987
• Docket Number: Nos. 15803 and 15804,s. 15803 and 15804
• Citation: 420 N.W.2d 20
• Parties: Mary Lou LODDE, Plaintiff and Appellee, v. Dean LODDE, Defendant and Appellant. In the Matter of the ESTATE OF Dean W. LODDE, Deceased, Appellant. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 20

420 N.W.2d 20

Mary Lou LODDE, Plaintiff and Appellee, v. Dean LODDE, Defendant and Appellant In the Matter of the ESTATE OF Dean W. LODDE, Deceased Appellant.

Nos. 15803 and 15804.

Supreme Court of South Dakota.

Considered on Briefs Nov. 20, 1987.

Decided Feb. 24, 1988.

Mary Lou Gubbrud of Pruitt, Matthew & Muilenberg, Sioux Falls, for plaintiff and appellee.

Gary B. Ward of Ward and Gering, Viborg, for defendant and appellant.

MILLER, Justice.

This opinion consolidates two appeals, one in a divorce action and one in a probate proceeding. In both cases below the co-executors appealed from orders that modified the decedent's alimony obligation to his former wife; the orders continued the alimony obligation but reduced it from $300 per month to $270. We affirm.

PROCEDURAL HISTORY AND FACTS

Mary Lou Lodde and her husband Dean Lodde were divorced in 1976. Their settlement agreement, which the trial court incorporated into its divorce decree, provided, among other things, that Dean's alimony payment of $300 per month would continue following his death. ¹

Dean died on January 18, 1986. Because Mary Lou was not paid any alimony after Dean's death, she filed affidavits in both the divorce and probate proceeding requesting alimony payments. The co-executors of Dean's estate responded and requested that the divorce decree be modified to eliminate Dean's alimony obligation. ²

Because of Dean's death and the reduction in his assets since the divorce, the trial court concluded that a change in circumstances had occurred. Consequently, the court reduced the alimony payments to $270 per month until Mary's death or remarriage. The trial court also awarded Mary attorney's fees of $538.97.

Both parties have also made requests for appellate attorneys' fees and costs.

ISSUE I

The co-executors' first issue is that the trial court abused its discretion in adjusting the alimony obligation to $270 per month rather than terminating it entirely. Mary, on the other hand, does not argue that the modification was erroneous, but only that it be affirmed.

Generally, in the absence of an agreement between the spouses, the obligation to pay alimony ceases on the death of the obligor spouse. See 1 A. Lindey, Separation Agreements and Ante-Nuptial Contracts Sec. 15.10 A(1) (1987); 2A W. Nelson, Divorce & Annulment Sec. 17.20 (2d ed. 1961); Annot. 39 A.L.R.2d 1406 (1955). Cf. Tyler v. Tyler, 89 S.D. 462, 233 N.W.2d 804 (1975) (In affirming the trial court's award of alimony for the wife's lifetime, the court rejected the husband's contention that the award was an unfair penalty against the husband's heirs.)

In this case, however, Mary and Dean executed an agreement that Dean's alimony obligation was to continue following his death. ³ Because Dean's obligation rested upon a clear agreement between the parties, which was incorporated into the divorce decree, the obligation was enforceable under terms of the agreement. Lindey, supra Sec. 15.10 B(1); Nelson, supra fn. 35; Annot., supra Sec. 5.

Despite a settlement agreement, the trial court may exercise its discretion and modify alimony; the trial court's alimony determination will be upheld unless its discretion was abused. Wilson v. Wilson, 399 N.W.2d 890 (S.D.1987); Moller v. Moller, 356 N.W.2d 909 (S.D.1984). In claiming that this discretion was abused the executors' primary argument is that the income producing ability of the estate is insufficient and that continuing the alimony payments will eventually result in Mary receiving all of the property just as if she were a surviving spouse. At the time Dean and Mary entered into the settlement agreement they could have foreseen that Dean's property might eventually be dissipated if his alimony obligation were extended beyond his death. Thus, the executors essentially argue that they should be relieved of what they now perceive to be Dean's bad bargain. But courts are not required to relieve parties from such bad bargains. Moller, supra. None of the executors' arguments persuade us that the trial court abused its discretion in continuing the alimony obligation in a reduced amount.

ISSUE II

The second issue is whether the trial court abused its discretion in awarding Mary attorney's fees of $538.97. The trial court properly considered the factors to be applied in making such an award. E.g. Temple v. Temple, 365 N.W.2d 561 (S.D.1985) (specifying the factors a trial court is to consider in awarding attorneys' fees).

APPELLATE ATTORNEY'S FEES

Mary is awarded appellate attorney's fees in the amount of $750.00.

The judgment of the trial court is affirmed.

WUEST, C.J., MORGAN and SABERS, JJ., concur.

HENDERSON, J., dissents.

HENDERSON, Justice (dissenting).

This Court has never specifically addressed the issue of a continuance of alimony beyond the death of the husband, either by virtue of a settlement agreement or its nonexistence. Generally, this Court has only expressed that alimony may be modified where a settlement agreement exists. Moller v. Moller, 356 N.W.2d 909 (S.D.1984).

In the absence of an agreement between the spouses, an obligation to pay alimony ceases on the death of the obligor spouse. White v. White, 48 Ohio App.2d 72, 2 Ohio Ops.3d 48, 355 N.E.2d 816 (1975). An obligation to pay alimony terminates on the death of the obligor, unless there is an expression of clear intent to the contrary. Schartle v. Trust Co. Bank, 239 Ga. 248, 236 S.E.2d 602 (1977). It is a general rule that the alimony provisions of a divorce decree do not bind the husband's estate, but it is also well settled that a husband and wife may enter into a separation agreement "calling for the continuation of payments to the wife after the husband's death." Annot., 5 A.L.R.4th 1153, 1157 (1981) (footnote omitted). Was the Lodde agreement a "separation agreement"? ¹ If so, there is no public policy against the requirement of making periodic payments to the wife as a binding provision on the husband's estate. 5 A.L.R.4th, supra. Obviously, common sense dictates that if the estate is unable to pay, then notwithstanding a contractual provision, the provisions of the agreement for the continuance of payments should abate. If there is no need for alimony, even though such a provision has been made part of a separation agreement, alimony payments should abate. There must be a need for alimony and a justification for it. In simple language, should the estate pay alimony? And, under the facts of this case, ought the estate pay alimony? See Straub v. Straub, 381 N.W.2d 260 (S.D.1986); Grant v. Grant, 5 S.D. 17, 57 N.W. 1130 (1894). Note that the majority opinion refers to the agreement as being a "settlement agreement." It does not say that it was a property settlement agreement. Property settlement agreements cannot be set aside by subsequent modification. Blare v. Blare 302 N.W.2d 787 (S.D.1981). So it is a mystery to me as to why the majority opinion camps down, with vigor, upon its rationale that this decedent should be held to a "bad bargain"--notwithstanding (a) if it does not make sense, or (b) it is inequitable, unjust, or unfair, or (c) that the estate simply cannot pay it. We should not be deciding this case on contract principles. This is not a case of a rescission of a contract. As I have often referred to her, we are at the door of the Lady of Equity. Therefore, equitable principles apply and not contract principles.

In this Court, we examine the briefs and the issues confronting us and make decisions based upon those framed issues. We have, of course, decided important constitutional questions, sua sponte. In the case before us, the litigants have framed the issue as an issue of the trial court's discretion. In reducing the award from $300.00 to $270.00, the trial court exercised its discretion and the co-executors strongly assert, on behalf of the estate, that the alimony award should have been totally eliminated; their advocacy, at this level, was presented to the trial judge, so it is fairly before us. Discretion of the trial judge is at issue, not the propriety of the trial judge's decision on contract principles.

This Court can do something about the lower court's decision if it chooses to because it has the unique statutory power to do so under SDCL 25-4-46, which specifically empowers it to revise a trial court's order regarding alimony. See also Kressly v. Kressly, 77 S.D. 143, 87 N.W.2d 601 (1958).

The trial court's decision that Dean Lodde's estate continue to pay alimony to Mary Lodde should be reversed. This rationale is based, inter alia, upon the trial court's failure to pay deference and import to the following schedule of appellee's income sources before and after her ex-husband's death.

                           BEFORE EX  HUSBAND'S DEATH                                 AFTER
                                                                                   EX  HUSBAND'S
                                                                                     DEATH
                         ______________ ______________
                                                            $300  Alimony                  $270
                                                             135  Interest                  135
                                                               0  Social                    306
                                                                  Security
                                                       ____ ____
                                                            $435  Total                    $711
                

Mary was fifty-nine years old at the time of the show cause hearing in June 1986. In August 1986, Mary would turn sixty, and she would then qualify for social security income of $306.00 per month as a divorced widow. Not only did her husband support her during his lifetime, but he was supporting her to the extent of $306.00 per month even though he was dead and buried. This $306.00 per month increased payment should have been taken into consideration by the trial court and it was not, for the trial court gave the estate absolutely no...