Osman v. Keating-Osman, KEATING-OSMA

• Decision Date: 25 May 1994
• Docket Number: D,KEATING-OSMA,No. 18530,18530
• Citation: 521 N.W.2d 655
• Parties: John D. OSMAN, Plaintiff and Appellant, v. Connie R.efendant and Appellee. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 655

521 N.W.2d 655

John D. OSMAN, Plaintiff and Appellant, v. Connie R. KEATING-OSMAN, Defendant and Appellee.

No. 18530.

Supreme Court of South Dakota.

Considered on Briefs May 25, 1994.

Decided Sept. 7, 1994.

Thomas J. Nicholson, Johnson, Eklund, Nicholson, Dougherty & Abourezk, and Barbara Everist, Sioux Falls, for plaintiff and appellant.

Karen L. Crew, Crew & Crew, Sioux Falls, for defendant and appellee.

WUEST, Justice.

John Osman (John) appeals from certain provisions of a decree of divorce from Connie Keating-Osman (Connie). We affirm.

FACTS

John and Connie were married on January 22, 1993. This was the first marriage for both parties, and no children were born of the marriage. Connie had a minor child (Scott, aged 2) from a previous relationship. On June 22, 1993, John filed a complaint seeking a divorce from Connie on grounds of extreme cruelty. Connie answered and counterclaimed, likewise seeking a divorce on the grounds of extreme mental cruelty. The trial court granted a divorce to Connie on grounds of extreme mental cruelty on October 22, 1993. At the time of the divorce, John was age 34 and Connie was age 37. John raises several issues in his appeal which we address separately. Additional facts are set out where applicable.

ISSUE I: DID THE TRIAL COURT ABUSE ITS DISCRETION IN GRANTING A DIVORCE TO CONNIE ON GROUNDS OF EXTREME CRUELTY?

John first argues that the trial court erred in not granting a divorce on grounds of irreconcilable differences. However, SDCL 25-4-17.2 provides in pertinent part: "The court may not render a judgment decreeing the legal separation or divorce of the parties on the grounds of irreconcilable differences without the consent of both parties[.]" We note that according to the testimony, John did engage in tactics designed to persuade Connie to agree to a divorce on grounds of irreconcilable differences. When Connie wanted John to go to marriage counseling in an attempt to save the marriage, John stated that he would go to counseling only if Connie would agree to a divorce on grounds of irreconcilable differences if the counseling did not help. John also told Connie that he would pay $500 on a car repair bill on the condition that Connie agree to an uncontested divorce. These tactics were unsuccessful. As the parties did not agree to a divorce on the ground of irreconcilable differences, granting a divorce on such grounds was not an option for the trial court.

Both parties sought a divorce on grounds of extreme cruelty. "Extreme cruelty is the infliction of ... grievous mental suffering upon the other, by one party to the marriage." SDCL 25-4-4. "In a marital setting the definition of extreme cruelty differs according to the personalities of the parties involved." Schaack v. Schaack, 414 N.W.2d 818, 820 (S.D.1987) (citing Brandsma v. Brandsma, 318 N.W.2d 318, 318 (S.D.1982)). The trial court granted a divorce to Connie on the grounds of extreme mental cruelty. After listening to the testimony of the parties, the court found as a fact that: "[Connie] relied on [John's] marriage promises, and [John] made no attempt to seek counseling or to try and make the marriage work." The court concluded that, "[John] has been guilty of extreme cruelty toward [Connie], by his breach of the marriage contract." Findings of fact are not set aside unless this court finds them to be clearly erroneous; and we must give "due regard" to the opportunity of the trial court "to judge the credibility of the witnesses." Schaack, 414 N.W.2d at 820 (citing Pochop v. Pochop, 89 S.D. 466, 467-68, 233 N.W.2d 806, 807 (1975)). These findings and conclusions are amply supported by our review of the record.

John and Connie met on August 1, 1992 and started dating shortly thereafter. In September they decided to get married, and in October they decided to live together. John moved into Connie's house on or about November 1. Although John wanted to marry in December, Connie convinced him to wait and they were married on January 22, 1993. The newlyweds went on a honeymoon to the Virgin Islands, and the honeymoon quickly ended.

Beginning the day after the return from the honeymoon, and for the entire duration of this brief marriage, John was either impotent or ejaculated prematurely. The couple never had satisfactory sexual relations after the honeymoon. Connie asked John to discuss this with his doctor during his physical exam, to see if there was any physical problem or some way to resolve the problem. According to Connie, John reported that the doctor said there was no physical cause for his impotency or premature ejaculation, that the problem was "in his head." There is some question as to whether John even discussed his impotency and premature ejaculation problems with the physician, as the medical report states: "[John] feels well and has no particular concerns or questions today.... Things are apparently going fairly well for him." That medical report is dated April 20, 1993, approximately two months before John filed for divorce.

Related to John's inability to engage in satisfactory intercourse with his wife were implications that John has homosexual tendencies. John brought into evidence his own medical records showing that in March 1991 he had contracted a case of condyloma (genital warts). When asked by his own attorney whether he was aware that genital warts are often present in homosexual males, John admitted that knowledge; but said that he had contracted genital warts from a female partner. John's attorney asked:

Q: Are you saying that there is no connection between your sexual problems right after the honeymoon and for the duration of the marriage with Connie and any other sexual practice that you might have?

A: I don't believe I have homosexual tendencies.

. . . . .

Q: And do you consider yourself heterosexual?

A: Yes.

The physician's notes state in part that, "I admonished [John] to consider how he got these and take appropriate steps to protect himself and his partners."

Another bizarre problem that John developed rather abruptly at the end of the honeymoon was incessant and inappropriate passing of gas. John admitted that he had this problem, but insisted that it was beyond his control, stating, "I don't think I ever intentionally passed gas in front of people. Gas hits me. It hits me quick. If I can step away I do." Connie testified that John never had this problem before they were married; or that if he did, he must have controlled it because she was unaware of it. Connie also testified that he did it "almost like a controlled thing that he could do ... sort of like a retaliation thing." John could control it for a couple of days, and then if he got upset, it would start again. Connie asked him to please be considerate and use the bathroom for that purpose. But John refused and would pass gas at the dinner table, while watching television, or anywhere in the house he felt like it. If Connie expressed displeasure regarding this situation, John felt that he was being belittled.

Approximately six weeks after the marriage (early March 1993), John suddenly moved out of the house without prior warning or explanation. He returned after about a week, only to move out again on or about May 20 (approximately ten weeks later), according to John's testimony. John testified that he wanted the marriage to work.

According to Connie's testimony, John "insisted that Scotty call him daddy from the time he moved into the house and Scotty has been asking for daddy every since. He always wants to know when daddy is coming home." John stated very strongly that he intended to adopt Scott. When John left, it was distressing to Connie when Scott would ask when "daddy" was coming home.

John's reason for leaving Connie was that she "constantly verbally abused" him, and complained that Connie spoke to him in a "very sharp fashion." John gave two examples, one regarding Connie's displeasure with his passing gas. The other example was in regard to Connie's request that he put a used steel wool pad (for scrubbing dishes) into a plastic cup to avoid rust stains, rather than leaving it on the kitchen counter. John could not recall whether this incident actually took place before or after the marriage. There was no testimony of any physical abuse or that voices were ever raised.

After hearing the testimony, the trial court reacted by stating to John:

I think you could have worked this marriage out[.] Moving out after six weeks to me because of what you say, yelling--I've been married twenty-four years and if I would have moved out every time my wife yelled at me, I would have been divorced about five hundred times. I don't think you tried to make this work.... Like I said, I'm not so much worried about this passing gas or anything like that but I think this marrying, living together for six weeks, walking out, coming back and walking out again and not trying to work it out, to me that's cruelty. I so find and I conclude.

Based on our review of the record, we cannot find that the trial court was clearly erroneous when it granted a divorce to Connie on the grounds of extreme mental cruelty. The trial judge is in the best position to see and hear the evidence and view the personalities of the parties. Schaack, 414 N.W.2d at 820. The trial court was clearly convinced that the fault for the failure of this marriage lay with John. The trial court is affirmed on this issue.

ISSUE II: DID THE TRIAL COURT ABUSE ITS DISCRETION IN MAKING ITS DIVISION OF MARITAL PROPERTY AND DEBT?

In making the property division, the court ordered Connie to return a number of listed items of personal property to John. In particular, there were a number of wedding gifts that John wanted. The other major consideration with regard to marital property division was the division of debt. The court concluded:

[John] shall pay the debt to Citibank Mastercard in the amount of $5,559.57[,] $215.00 [of] which was [Connie...