MacKaben v. MacKaben

• Decision Date: 04 November 2015
• Docket Number: No. 27238.,27238.
• Parties: Annette MacKABEN, Plaintiff and Appellee, v. Everett Thomas MacKABEN, Jr., Defendant and Appellant.
• Court: South Dakota Supreme Court

871 N.W.2d 617

Annette MacKABEN, Plaintiff and Appellee,

v.Everett Thomas MacKABEN, Jr., Defendant and Appellant.

No. 27238.

Supreme Court of South Dakota.

Considered on Briefs Aug. 31, 2015.

Decided Nov. 4, 2015.

Patricia A. Meyers, Rapid City, South Dakota, Attorney for plaintiff and appellee.

Kyle Krause, Rapid City, South Dakota, Attorney for defendant and appellant.

GILBERTSON, Chief Justice.

[¶ 1.] On August 15, 2014, the circuit court granted a divorce to Everett Thomas MacKaben Jr. (Tom) and Annette MacKaben because of irreconcilable differences. In dividing the property, the circuit court determined that a sizable tax lien on the marital home was Tom's nonmarital debt. The court also awarded spousal support of $1,000 per month to Annette for a period of 10 years to follow the sale of the marital home. Tom appeals, asserting that the circuit court abused its discretion in assigning him sole responsibility for most of the tax lien, in not specifying that the spousal support terminates in the event of his own death, and in setting the amount and duration of the support award. We affirm.

Facts and Procedural History

[¶ 2.] Tom and Annette met in 1999 and married on September 18 of that year. At the time of trial, Tom was 53 years old and Annette was 45 years old. The parties have one child together, who was 13 years old at the time of trial. Tom has a high-school-level education and was largely self-employed during the marriage. He owned and operated a small construction company called Bear Paw Construction and sometimes served as a hunting guide. Annette has a Bachelor of Science degree in animal science from South Dakota State University. Aside from Tom recovering from surgery on his bicep, the parties were otherwise in good health at the time of the divorce. Although Annette worked outside of the home for a short time after the marriage, Tom successfully encouraged Annette to discontinue her employment in order to assist in his construction business by tracking financial information and records.

[¶ 3.] The parties struggled financially from the beginning of the marriage. Tom came into the marriage with existing child-support obligations and owing $40,000 to his previous wife. More importantly, however, Tom did not reliably keep accurate business records, nor was Annette able to do the bookkeeping. The parties did not timely file income-tax returns from 2000 to 2006. They filed their 2005, 2006, and 2007 returns in 2007 after they sought to refinance the debts on the marital home. The parties eventually filed their 2003 and 2004 returns as well. During this time, Tom accumulated several judgments against his construction business, including one default judgment, and failed to pay excise taxes. Annette's mother loaned the parties $20,000 to satisfy and settle one of these judgments. Without Annette's knowledge, Tom also incurred a significant amount of credit-card debt and allowed the parties' medical insurance to lapse, resulting in a large, uninsured medical debt for their child.

[¶ 4.] By 2011, the parties' economic situation had deteriorated to such an extent that they sought out Consumer Credit Counseling Services (CCCS). CCCS obtained a credit report on the parties, and Annette first learned that their personal tax returns had not been filed for three tax years and that the Internal Revenue Service (IRS) had placed a tax lien on their home totaling nearly $50,000.¹ However, because the IRS was not actively pursuing repayment of the debt, the parties decided to focus their available funds on paying down their short-term obligations first. Over the subsequent year and a half, the parties' short-term debt was reduced to approximately $3,000. During this time, the parties' income increased significantly because Tom went to work as an equipment operator at a coal mine in Wyoming. Although Tom put in substantial overtime, on his days off he continued to take on small construction projects and guide hunting groups.² The parties' tax returns have been timely filed since Annette assumed control of the parties' finances in 2011.

[¶ 5.] Annette filed for divorce in December 2013. Thereafter, the parties separated, and Tom stopped living at the marital home. The parties agreed that they would share legal custody of their child, that Annette would have primary physical custody, and that Tom would get reasonable and liberal visitation. The parties also agreed to sell the marital home. Tom continued paying the monthly mortgage, insurance, and tax payments on the home; the monthly payment to CCCS; Tom's business insurance; and the parties' health insurance. The parties also agreed on the division of personal property and non-IRS debts. Additionally, Tom has been making $500 payments to the IRS every month under a debt-repayment plan.

[¶ 6.] After the parties separated, Annette initially worked part-time driving a school bus but later found full-time employment as a paraprofessional with the Meade County School District. Annette has also received additional training enabling her to drive charter busses during the summer months and for school trips.

[¶ 7.] The circuit court granted each of the parties a divorce on the grounds of irreconcilable differences on August 15, 2014. The court adopted the parties' own personal-property division but ordered Tom to pay $10,000 to Annette in order to equalize the division. As for the marital home, the court ordered that it be sold. However, the court concluded that while the underlying tax liability was a marital debt, the interest and penalties were Tom's nonmarital debt. As a result, the court ordered Tom to pay $22,187 to Annette after the sale of the home; that any proceeds remaining after paying the mortgage, costs of sale, and tax lien go toward satisfying this award; that Tom receive any additional proceeds totaling up to $5,000; and that any remaining proceeds be shared equally. The circuit court also ordered Tom to continue paying $2,500 per month to cover the mortgage, insurance, and property tax on the home. Finally, the court ordered Tom to pay Annette $1,000 per month in spousal support for a period of 10 years following the sale of the home.

[¶ 8.] Tom raises seven issues on appeal. Additionally, Annette requests appellate attorney fees.

1. Whether the circuit court's findings of fact, conclusions of law, and decree are only entitled to limited deference.

2. Whether the circuit court was required to specify whether Tom's spousal-support obligation terminates upon his death.

3. Whether a spousal-support obligation that extends past the death of the obligor is an abuse of discretion.

4. Whether the circuit court abused its discretion by determining that the interest and penalties on the parties' IRS tax liability was Tom's nonmarital debt.

5. Whether the circuit court abused its discretion by ordering Tom to pay all mortgage, insurance, and property-tax payments on the marital home until its sale.

6. Whether the circuit court's decree effectively executed its division of the parties' IRS debt.

7. Whether the circuit court abused its discretion in determining the amount and duration of spousal support.

8. Whether Annette should be awarded appellate attorney fees.

Standard of Review

[¶ 9.] We review a circuit court's division of property for abuse of discretion. Huffaker v. Huffaker, 2012 S.D. 81, ¶ 11, 823 N.W.2d 787, 790. We also review a circuit court's spousal-support determinations for abuse of discretion. Hagedorn v. Hagedorn, 2012 S.D. 72, ¶ 9, 822 N.W.2d 719, 722. "An abuse of discretion ‘is a fundamental error of judgment, a choice outside the range of permissible choices, a decision, which, on full consideration, is arbitrary or unreasonable.’ " Gartner v. Temple, 2014 S.D. 74, ¶ 7, 855 N.W.2d 846, 850 (quoting Arneson v. Arneson, 2003 S.D. 125, ¶ 14, 670 N.W.2d 904, 910 ). "Pursuant to an abuse of discretion standard of review, factual determinations are subject to a clearly erroneous standard." Id. ¶ 8, 855 N.W.2d at 850 (quoting State v. Guthrie, 2002 S.D. 138, ¶ 5, 654 N.W.2d 201, 203 ). However, the circuit court's conclusions of law are reviewed de novo. Id.

Analysis and Decision

[¶ 10.] 1. Whether the circuit court's findings of fact, conclusions of law, and decree are only entitled to limited deference.

[¶ 11.] Tom asserts that the circuit court's findings of fact, conclusions of law, and divorce decree are only entitled to limited deference because they were all drafted by Annette's counsel. In support of this assertion, Tom offers a single dissenting opinion stating: "[W]e cited with approval a case suggesting that appellate courts should scrutinize more carefully and give less weight to findings prepared by counsel than those findings prepared by trial judges themselves." Kreps v. Kreps, 2010 S.D. 12, ¶ 48, 778 N.W.2d 835, 848 (Konenkamp, J., dissenting). According to Tom, the circuit court altered only a single finding of fact, added one conclusion of law, and omitted Annette's proposed conclusions of law regarding attorney fees.

[¶ 12.] We decline Tom's invitation to hold that findings and conclusions prepared by a party at the court's request are only entitled to limited deference as a general rule. SDCL 15–6–52(a) specifically empowers a circuit court to "direct counsel for the prevailing party to prepare findings [.]" After the opposing party has been given an opportunity to respond to the proposed findings, "the court shall make or enter such findings and conclusions as may be proper." SDCL 15–6–52(a). The opposing party is free to argue on appeal that a particular finding or conclusion is improper. As indicated above, see supra ¶ 9, we already review a circuit court's conclusions of law de novo—i.e., they receive no deference on appeal. Gartner, 2014 S.D. 74, ¶ 8, 855 N.W.2d at 850. Tom offers no compelling reason for us to abandon our well-established standards of review regarding a circuit court's findings of fact (clearly erroneous) or decisions in property...