McBride v. Lomheim

• Decision Date: 08 August 1966
• Docket Number: No. 10248,10248
• Citation: 82 S.D. 263,144 N.W.2d 564
• Parties: Anna C. McBRIDE, Plaintiff and Appellant, v. Henry C. LOMHEIM, Defendant and Respondent.
• Court: South Dakota Supreme Court

Page 564

144 N.W.2d 564

82 S.D. 263

Anna C. McBRIDE, Plaintiff and Appellant, v. Henry C. LOMHEIM, Defendant and Respondent.

No. 10248.

Supreme Court of South Dakota.

Aug. 8, 1966.

Neumayr & Jones, Gettysburg, for plaintiff and appellant.

Stephens, Riter, Mayer & Hofer, Pierre, for defendant and respondent.

ROBERTS, Judge.

On June 4, 1942, Anne C. Lomheim, now Anne C. McBride, obtained a divorce from the defendant in the circuit court of Sully County and the exclusive care and custody of the minor daughters, Marcella Anne, ten, Alice, eight, and Charlotte, six. The decree further provided as follows:

'For the purpose of making such payment of costs and attorney's fees, and for the maintenance of the children of the marriage during their minority, and as an allowance to the plaintiff as the wife of the defendant, there is given and granted to the plaintiff all of the interest of the defendant, Henry C. Lomheim, in and to the property of the estate of James C. Lomheim, deceased. The property in which such interest is given to the plaintiff has been inventoried and appraised in the proceedings relating to the estate of said James C. Lomheim, deceased, pending in the County Court of Sully County, S.D., and the list of such property contained in such inventory is hereby referred to, and by this reference made a part of this judgment and decree.'

An order modifying the divorce decree was entered November 23, 1943. The material portions of this order read:

'It further appeared to the Court that the heirs of the said James C. Lomheim have entered into an agreement, in which the plaintiff joined for a division of the property of the estate, and under such agreement for division the share of the defendant in such estate will consist of farm and ranch land described as the West Half and Southeast Quarter of Section 22, Township 115, Range 78, and East Half of Southwest Quarter of Section 28, Township 115, Range 79, in Sully County, South Dakota; and a small residence property in Onida, South Dakota, described as lots 15, 16, and 17 of Block 31, Cole's Addition and Lot 27, Block 15 of Second Addition to Onida. * * * The Court finds that it is necessary that the children of the parties be adequately supported, and that the only means at hand by which they may be supported is from the property which is to come from the James C. Lomheim estate as the share of the defendant therein. The Court further finds that a fair settlement of the support and property matter between the plaintiff and the defendant, is that the plaintiff shall have awarded to her, absolutely, such small residence property in Onida, South Dakota described as Lots 15, 16, and 17 of Block 31, of Cole's Addition to Onida; that all of the remainder of the property should be held charged with the support, maintenance and education of the children of the parties. Accordingly, it is ORDERED that Lots 15, 16, and 17 of Block 31 of Cole's Addition to Onida, South Dakota be awarded to the plaintiff Anna C. Lomheim, otherwise known as Anne C. Lomheim, as her absolute property. It is further ordered that all of the rest and remainder of the share of the defendant Henry C. Lomheim in the estate of James C. Lomheim, deceased, after the obligations of the defendant to such estate are taken care of, * * * shall be assigned to and vested in C. R. Garner of Onida, South Dakota, as trustee, for the support, maintenance and education of the children of the parties hereto. Said C. R. Garner shall have the power and authority, under the supervision of the Court, to manage said property, collect the rents and profits thereof, and under the order of the Court to sell any of such property, and to apply the proceeds of the rents and profits therefrom and from the sale of said property to the support, maintenance and education of the children of the parties hereto.'

The daughter, Marcella Anne, is substantially handicapped. The court found that she has been afflicted with spastic paralysis since birth, has never walked and is an invalid and unable to support herself.

In September 1943, defendant sought a modification of the divorce decree. He asked that 'the Court modify its judgment and decree to the end that there be a more equitable and a fairer distribution of the said property, and that this defendant be given a part thereof' or that in the alternative 'the Court modify said judgment to provide that the proceeds to be derived from the estate of James C. Lomheim, deceased, be placed in trust with some trustee, to be distributed in such amounts and at such times as the Court may require to safeguard said funds for the benefit of the life, health and education of said minor children'. Plaintiff filed an affidavit in opposition to the motion. She therein stated that '(i)f the plaintiff alone were the one to be considered, she could largely take care of herself. But, with a crippled helpless child on her hands and two other small children she is handicapped greatly in earning. The property that will finally be received from the share of the defendant in the James C. Lomheim estate will not be liquid assets that can be readily turned into money, and the income therefrom will be small. The plaintiff has no objection to having any property received from the James C. Lomheim Estate being considered and held as a trust for the care and support of the children. However, the plaintiff asks in connection therewith that the defendant be required to see that the children are adequately provided for by regular payments to be made by the said defendant.' The parties seemingly recognized that the obligation to support the children rested with their parents and that the court was charged with the duty of enforcing such responsibility. On November 23, 1943, the judgment in the...