Palmer v. Palmer, 13371
| Decision Date | 19 January 1982 |
| Docket Number | No. 13371,13371 |
| Citation | 316 N.W.2d 631 |
| Parties | Karon Kay PALMER, Plaintiff and Appellant, v. Donald Leroy PALMER, Defendant and Appellee. . Considered on Briefs |
| Court | South Dakota Supreme Court |
James L. Waggoner and Hermon B. Walker of Walker, Lysaught & Waggoner, Ltd., Rapid City, for plaintiff and appellant.
John T. Hughes of Morman, Smit, Shepard, Hughes & Wolsky, Sturgis, for defendant and appellee.
The marriage of the parties was dissolved by a judgment for divorce in favor of Donald Palmer, the defendant. The plaintiff, Karon Palmer, appeals. We affirm in part, reverse in part, and remand.
When the parties were married on November 10, 1973, neither owned a substantial amount of real or personal property. The plaintiff entered the marriage with approximately $900, and she was employed for a brief time during the marriage and contributed her earnings to the maintenance of the family. The evidence indicates that plaintiff did considerable work in caring for the family's livestock and doing farm chores and that she also was responsible for all housekeeping chores, the completion of which understandably suffered. The farm, about twelve acres of land near Sturgis, South Dakota, was purchased by the parties during their marriage from funds advanced by the defendant's parents. The plaintiff had custody of two minor children from a previous marriage, but this was the first marriage for the defendant. A daughter, Cindy Rae Palmer, was born to the Palmers on September 25, 1978.
At the request of the trial court, a social worker from the South Dakota Department of Social Services conducted a home study and submitted recommendations concerning custody of the child. That recommendation favored the mother.
The Palmers' marriage began to deteriorate after approximately one year. The evidence discloses a course of extreme verbal abuse by the plaintiff toward the defendant, a sample of which was received in evidence in the form of a tape recording. These hysterical tirades often resulted in the plaintiff being slapped or otherwise physically abused by the defendant. Plaintiff claimed that after one of these fights she required medical attention. The plaintiff also complained that the defendant at times stayed away from the family home, but the trial court found such absences were apparently precipitated by the plaintiff's emotional explosions and were used by the defendant to escape them. The facts also reveal that on one occasion the plaintiff threw their daughter, Cindy, at the defendant when the child was seven or eight months old saying, "she couldn't stand [the child] anyway, it had [defendant's] blood in it."
The basic issues presented are whether the trial court abused its discretion in the following areas: granting a divorce to the defendant on his counterclaim of extreme cruelty; dividing the property; failing to award the plaintiff alimony and attorney's fees; awarding custody of the minor child to the defendant.
The trial court's finding that a cause of action for divorce exists in favor of the defendant and against the plaintiff on the ground of extreme cruelty is supported by the evidence, detailed above, of the degrading and persistent verbal abuse which the plaintiff directed at the defendant. These findings will not be upset unless they are clearly erroneous. SDCL 15-6-52(a). We cannot conclude the trial court clearly erred.
The trial court has broad discretion in dividing the property, awarding alimony, and allowing attorney's fees in a divorce action and the determination of the trial court will not be set aside or modified unless it clearly appears there was an abuse of discretion. In determining whether there has been an abuse of discretion, the property division and alimony award are considered together. Wallahan v. Wallahan, 284 N.W.2d 21 (S.D.1979). In Wallahan, at 24, we stated:
In making an award of alimony and an equitable division of property the trial court must consider the duration of the marriage, the ages of the parties, their state of health and their competency to earn a living, the value and income-producing capacity of the property of each party, and the contribution of each party to the accumulation of the property.
Notwithstanding that plaintiff's temperament made it difficult, if not impossible, for the defendant to live with her the record shows that she brought funds into the marriage and did considerable work which contributed to their $60,000 accumulated net worth. The trial court's...
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