Midzak v. Midzak

• Decision Date: 11 May 2005
• Docket Number: No. 23280.,23280.
• Citation: 2005 SD 58,697 N.W.2d 733
• Parties: Sylvia F. MIDZAK, Plaintiff and Appellee, v. Andrew Z. MIDZAK, Defendant and Appellant.
• Court: South Dakota Supreme Court

697 N.W.2d 733

2005 SD 58

Sylvia F. MIDZAK, Plaintiff and Appellee, v. Andrew Z. MIDZAK, Defendant and Appellant.

No. 23280.

Supreme Court of South Dakota.

Considered on Briefs February 15, 2005.

Decided May 11, 2005.

Angela M. Colbath, Rapid City, South Dakota, Attorney for plaintiff and appellee.

Paul Winter, Winter & Koch, Rapid City, South Dakota, Attorney for defendant and appellant.

GILBERTSON, Chief Justice.

[¶ 1.] Wife sought and was granted divorce on the grounds of extreme emotional cruelty. Wife was awarded the marital home, along with most of the marital assets. The trial court awarded no alimony at the time of the divorce, but reserved the right to award alimony in the future if the circumstances of the parties required it. Primary physical custody of the parties' minor child was awarded to Husband contingent on finding a suitable place to live. No award of child support was made. Husband appealed the grant of the divorce on the grounds of extreme emotional cruelty, the division of marital assets, the future award of alimony, and the failure to award child support. We affirm in part and reverse and remand in part.

FACTS AND PROCEDURE

[¶ 2.] Sylvia Midzak (Sylvia) and Andrew Midzak (Andrew) were married in 1980. At the time of the marriage, Andrew had served in the United States Air Force for four years and was twenty-two; Sylvia was twenty-one. Over the next sixteen years, Andrew's career required the family to move to several different duty stations, with the family eventually settling in Rapid City, South Dakota. During the marriage the parties had three children, Nicholas born in 1983, Joseph born fifteen months later, and G.M. born in 1988. Sylvia began operating a craft business from the family home after the birth of the parties' last child. Sylvia began working outside the home in 2000, and eventually began working three part-time jobs.

[¶ 3.] After twenty years of service in the Air Force, Andrew retired with a full pension in the fall of 2000. In March of 2001, Andrew took a job overseas in Hungary as a flight controller, a job that paid approximately $81,000 per year. The contract position was intended to last approximately two years. Testimony was given at trial by Andrew and by Nicholas that the family discussed and agreed that the purpose behind Andrew taking the position in Hungary was to make enough money to pay for the college education of all three children.

[¶ 4.] Andrew returned to Rapid City three times for visits during the two and one-half year period he was employed in Hungary, and the family traveled to Hungary for one visit. In October 2003, Andrew returned from Hungary at the conclusion of the contract term. Andrew was unemployed at the time he returned, but had been offered another air controller position in Turkey at a salary of $100,000. Andrew offered testimony at trial that he was unable to obtain comparable employment in the Rapid City area. Andrew's only local employment opportunities were as a common laborer at a starting wage of nine dollars and fifty cents per hour.

[¶ 5.] On November 13, 2003, Sylvia filed for divorce alleging irreconcilable differences or in the alternative extreme emotional cruelty. Andrew denied the allegation of extreme emotional cruelty, and contested the divorce. Trial on the matter was held on January 29, and February 6, 2004. At trial, Andrew appeared pro se and Sylvia was represented by counsel. The following exchange occurred just prior to the conclusion of Sylvia's case-in-chief:

THE COURT: When is the last time you told your wife that you loved her?

ANDREW: Probably three years ago.

THE COURT: When is the last time you told your husband you loved him?

SYLVIA: I told him last summer.

ANDREW: Well, see, that's a contradiction here—

THE COURT: No, there is no contradiction.

ANDREW: There are emails about being forced to come over to Hungary to spend some time with me—

THE COURT: For purposes of the divorce, I've heard absolutely enough.

MS. COLBATH: I have no other evidence on any issue.

ANDREW: Sir, when you say for purposes of the divorce, you're making a decision on the divorce?

THE COURT: I'm going to let you testify, but I just want you to know that what I have heard so far is I believe that your personality and your demeanor and your response to your wife is in fact authoritarian in nature and I believe that from what I have seen in the courtroom this afternoon on the topics we have discussed, that you and your wife have met the requirements of the law to establish there has been grievous mental suffering inflicted upon her by you, so I'm going to let you continue, you can testify to convince me that I am wrong, but I have a feeling, sir, that your testimony will be more of the fact that she's wrong and her perceptions are incorrect and she has misunderstood.

ANDREW: I have always suggested or tried to benefit the family by my directions and suggestions.

THE COURT: I think I'll hear you tell me that again, because you tell me that in your questioning of all the witnesses.

ANDREW: Is there any sense for me to stand up?

THE COURT: Well, that's up to you. I'm just telling you what I have seen in four hours leads me to conclude that they have definitely in my mind now established the statutory grounds for divorce.

ANDREW: Does that somehow finalize the child support—

THE COURT: No—

ANDREW: Custody?

THE COURT: No, not at all ...

[¶ 6.] The trial judge then engaged in a conversation with Sylvia's counsel as to exhibits, and Sylvia's proposed alimony and property award. Andrew then asked the trial court if he could continue cross-examining Sylvia:

ANDREW: Do I still have questioning for her or not?

THE COURT: I think I have heard enough. You haven't given your testimony.

[¶ 7.] Andrew elicited testimony from his two oldest children, and then gave his own testimony. As Andrew gave his testimony, the court transitioned him from testifying about the facts surrounding the marriage to the matter of marital assets and valuations.

[¶ 8.] The trial court turned to the matter of reviewing financial exhibits and establishing valuations on property. The trial court indicated at that time that the $5,000 Sylvia removed from a joint checking account prior to filing for divorce for purposes of purchasing a new car was included in the property list, and the new car would be listed as well. However, in the trial court's findings of fact and conclusions of law neither asset was listed.

[¶ 9.] The trial court did not include Andrew's retirement pay as a marital asset, but instead allocated $570.00 of the total monthly benefit of $968.31 to Sylvia, leaving $376 per month for Andrew. The trial court then included inheritance gifts of $20,000 made to Andrew by his mother in the list of marital assets.

[¶ 10.] In its written findings of fact and conclusions of law, the trial court stated it had awarded the marital home to Sylvia, as Andrew had unequivocally ceded numerous items of property to Sylvia during the proceedings. The trial court's final division of the marital assets as contained in the findings of fact and conclusions of law resulted in an award of $128,100 to Sylvia and $57,000 to Andrew.

[¶ 11.] The trial court awarded custody of the minor child G.M. to Andrew, but no child support was awarded. The award of physical custody was conditioned on Andrew finding a suitable place to reside in Rapid City. The need for a new residence was created by the trial court's decision to award the marital home to Sylvia. The trial court did calculate Sylvia's living expenses and income, including the $570.00 awarded per month from Andrew's retirement pay. No similar calculation was undertaken for Andrew's living expenses.

[¶ 12.] In its conclusions of law, the trial court held that Andrew had inflicted grievous mental suffering upon Sylvia during the marriage, and granted Sylvia's petition for divorce. The court then reserved the right to grant an award of alimony in the event that the parties' circumstances changed. The court held its division of property was fair and equitable as a matter of law, and that Andrew made a free and voluntary waiver to any claim of much of the marital property.

[¶ 13.] Andrew appealed raising four issues for our review:

1. Whether it was error for the trial court to state from the bench during the trial that the court had tentatively decided the question of granting the divorce in favor of Sylvia before hearing Andrew's case-in-chief.

2. Whether the trial court abused its discretion in distributing the marital property.

3. Whether it was error to reserve the right to award alimony to Sylvia.

4. Whether it was error for the trial court not to order child support.

STANDARD OF REVIEW

[¶ 14.] The trial court's findings of fact establishing grounds for divorce are not disturbed on appeal absent clear error. Hybertson v. Hybertson, 1998 SD 83, ¶ 8, 582 N.W.2d 402, 404 (citing Osman v. Keating-Osman, 521 N.W.2d 655, 657 (S.D.1994)). "Clear error is shown only when, after a review of all the evidence, `we are left with a definite and firm conviction that a mistake has been made.'" New Era Mining Co. v. Dakota Placers, Inc., 1999 SD 153, ¶ 7, 603 N.W.2d 202, 204 (citing Rabenberg v. Rigney, 1999 SD 71, ¶ 4, 597 N.W.2d 424, 425 (quoting Cleveland v. Tinaglia, 1998 SD 91, ¶ 16, 582 N.W.2d 720, 724.)). We give the trial court's opportunity to judge the credibility of witnesses and to weigh their testimony due regard when reviewing the trial court's findings of fact. Meldrum v. Novotny, 2002 SD 15, ¶ 18, 640 N.W.2d 460, 463 (citing Langerman v. Langerman, 336 N.W.2d 669, 670 (S.D.1983)). We review the trial court's application of law to fact under the de novo standard of review, with no deference to the circuit court's decisions. Mundlein v. Mundlein, 2004 SD 25, ¶ 5, 676 N.W.2d 819, 821 (citing City of Deadwood v. Summit, Inc., 2000 SD 29, ¶ 9, 607 N.W.2d 22, 25) (citations omitted).

[¶ 15.] Our standard of review...