Martin v. Martin, 14280

CourtSupreme Court of South Dakota
Citation358 N.W.2d 793
Docket NumberNo. 14280,14280
PartiesBarbara MARTIN, Plaintiff and Appellant, v. Eugene L. MARTIN, Defendant and Appellee. . Considered on Briefs
Decision Date20 March 1984

Daryl L. Hecht of Crary, Huff, Clem, Raby & Inkster, P.C., North Sioux City, for plaintiff and appellant.

Glenn A. Fingerson of Fingerson & Severson, Huron, for defendant and appellee.

WOLLMAN, Justice.

Plaintiff, Barbara Martin, was granted a divorce from defendant, Eugene Martin, on the ground of extreme cruelty. She appeals from certain provisions of the judgment. We affirm in part and reverse and remand in part.

Plaintiff, who is presently thirty-seven years of age, and defendant, who is forty-one, were married on September 4, 1967. Plaintiff, who had just graduated with an associate nursing degree, then became employed as a nurse at Sacred Heart Hospital in Yankton, while defendant started his third year of law school at the University of South Dakota.

Following defendant's graduation from law school in the spring of 1968, the parties moved to Huron, where defendant became associated with a law firm and plaintiff obtained a nursing position at St. John's Hospital. Defendant was inducted into the United States Army in late 1969. During the period of defendant's basic training, plaintiff lived with her parents in Jefferson, South Dakota, and was employed as a nurse at St. Luke's Hospital in Sioux City, Iowa. Following the completion of defendant's basic training, he was stationed at Ft. McClellan, Alabama. Plaintiff joined him there, where she worked as a nurse in Anniston, Alabama, from March of 1970 until November of 1971.

Following defendant's release from active duty, the parties returned to Huron, where defendant resumed his law practice and plaintiff resumed her nursing career at St. John's Hospital, where she worked until December of 1971, when she obtained a position as a nurse with a local doctor, for whom she worked until June of 1973, when she was forced to terminate her employment because of complications associated with her pregnancy. Following the birth of their second child, plaintiff did not return to work outside the home for several years. When she did decide to seek reemployment, she was unable to find a position as a nurse in a clinic.

Two children were born to the marriage, the first on June 4, 1972, and the second on December 27, 1973. (Because the parties entered into a stipulation and agreement, approved by the trial court, regarding the custody of the children, no issue regarding custody is presented to us on this appeal.)

Defendant accepted an appointment as a judge of the circuit court in March of 1979.

(We take judicial notice of the fact that he was re-elected to an eight-year term in the November 1982 general election.)

Plaintiff alleged, and the trial court found, that defendant had conducted himself towards plaintiff in a manner that constituted the infliction of emotional cruelty. According to plaintiff's testimony, defendant ignored her emotional needs and was difficult to communicate with. The parties sought marriage counseling from March until June of 1982, which apparently was unsuccessful. In August of 1982, defendant refused plaintiff's request that he resume counseling. Defendant informed plaintiff that he chose not to change in any way and that if she wanted to live with him she would have to live with him the way he was. The parties separated in late of August of 1982. At the time of the separation plaintiff had been accepted for enrollment in a medical assistant training program in Watertown. It was plaintiff's understanding that her tuition and support for herself and her children would be paid by defendant. After she had moved herself and the children to Watertown, however, plaintiff was informed by defendant that any money expended on plaintiff's training would be deducted from her share of the property division in the divorce action. Plaintiff then decided that she would not go through with the training program and instead tried to find a position as a nurse in Watertown and the surrounding area, as well as in Sioux Falls and in Sioux City. At the time of trial, January 28, 1983, plaintiff had been actively seeking employment since November of 1982 with no success, due to a lack of nursing positions. She testified that several of the hospitals that she had contacted had informed her that they will hire only someone who has had experience within the last five years. Plaintiff herself has been away from nursing in a clinic situation for some nine and a half years and in a hospital position for eleven and one-half years. Accordingly, plaintiff enrolled in a home study refresher course in nursing offered by South Dakota State University. The refresher course involves fifty hours of home study, followed by one hundred hours of clinical work in a hospital under the supervision of a registered nurse.

Plaintiff testified that she anticipated that it would take her some three months to complete the refresher course. She also testified that a registered nurse with an associate degree could expect to work forty hours per week and earn from $7.00 to $8.00 per hour.

In her opening brief to this court, filed on October 27, 1983, plaintiff states that she only recently found a job at a Sioux City, Iowa, nursing home, where she earns $6.50 per hour.

At the time of the marriage, plaintiff owned a small amount of furniture and some personal effects. In addition, she had received a cash wedding gift from her father in the amount of $300.00. The income from her employment at the hospital in Yankton was used for the couple's living expenses during defendant's final year of law school. Thereafter, plaintiff's income was pooled with defendant's and utilized for living expenses.

Plaintiff owns a remainder interest in two tracts of land in Union County, South Dakota, from which she presently receives no income. One of the tracts is held in trust, subject to a life estate in plaintiff's grandmother, who at the time of trial was some 81 years of age. Upon the death of plaintiff's grandmother, the land is to be sold and the net sale proceeds remaining after payment of bequests in the amount of $1,500.00 are to be divided among plaintiff and her two brothers and her sister. This tract consists of some 70 untillable acres, 20 acres of which were described by defendant as an "an absolute jungle" that would have to be cleared in order to be utilized as farmland. Defendant testified that he thought the 70 acre tract was worth $2,000.00 per acre. Plaintiff had no opinion regarding the value of the land, other than the fact that several years ago farm land in the area was selling for between $1,500.00 and $2,000.00 an acre. Defendant introduced as an exhibit a computation

by a certified public accountant, based upon current rates used for federal estate tax purposes, that showed the present value of the remainder interest in this land as having a total value of $100,115.40, based upon a value of $2,000.00 per acre

The same accounting firm prepared an exhibit which showed plaintiff's one-fourth interest in the other tract of land as having a present value of $16,871.43.

Prior to trial, plaintiff, as a result of discussions with defendant concerning her post-separation expense, living and retraining and expenses, withdrew $6,550.00 from the parties' joint savings account. Also, the parties divided their personal property.

The trial court found that the parties had accumulated an equity of $20,000.00 in their personal residence and held a certificate of deposit in the amount of $9,130.00. Defendant's HR-10 retirement account had a value of some $31,350.00, although the present value, after deducting the income tax due on early withdrawal, was $14,137.00 at time of trial. His state judicial retirement account had grown to some $12,600.00 at time of trial (although the trial court valued at $11,402.01, which was the balance in the account as of September 1982). The money in this account is available to defendant only if he leaves his position as circuit court judge. The trial court found that the only outstanding liabilities of the parties, other than the mortgage on their residence, were 1982 income and real estate taxes totaling $2,050.00.

Plaintiff testified that her health was fairly good, although she does have back problems resulting from a degenerating cervical disc. Her testimony in this regard was borne out by copies of medical reports that she introduced into evidence. Defendant did not dispute that plaintiff suffers from a degenerative disease of her cervical spine.

Plaintiff testified that she has difficulty lifting anything over twenty-five pounds in weight and that any grasping with her left hand results in pain. In her opinion, this restriction in her physical ability would limit her availability to work as a nurse in a hospital setting, such as in an intensive care unit.

A June 18, 1982, medical report indicated that plaintiff's CAT scan showed a very small bulging centrally of the L5-S1 disc.

The trial court's findings refer to the medical report regarding the herniated disc at the L5-S1 level, but make no reference to the problem with her cervical spine. The trial court found that with the exception of the back problem plaintiff was in good health. The trial court found that defendant was in good health.

The trial court ordered defendant to pay child support in the amount of $250.00 per month per child, including the two months of the year when he is to have custody of the children pursuant to the agreement of the parties.

                The trial court divided the property as follows
                Plaintiff's Share                Defendant's Share
                -------------------              -------------------
                Personal property    $11,000.00  Residence (equity)              $20,000.00
                  (divided prior to              Personal property                    5,000

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