Peterson v. Peterson

Decision Date24 May 1988
Docket NumberNo. 16070,16070
PartiesJaney PETERSON, Plaintiff and Appellant, v. Gregory A. PETERSON, Defendant and Appellee. . Considered on Briefs
CourtSouth Dakota Supreme Court

Karen E. Schreier of Hagen & Wilka, P.C. Sioux Falls, for plaintiff and appellant.

Gary Pashby of Boyce, Murphy, McDowell & Greenfield, Sioux Falls, for defendant and appellee.

BRADSHAW, Circuit Judge.

Janey Peterson (Janey) appeals from a judgment terminating her right to receive alimony from Gregory A. Peterson (Gregory), and increasing from $500 to $665 the amount of child support Gregory is obligated to pay each month. In addition, Janey has petitioned this court for attorney fees on appeal. We affirm the trial court and deny Janey's request for attorney fees.


Janey and Gregory were married on August 12, 1967. Megan, who is now 14 years old, and Ryan, now 11 years old, were born to this marriage. The marriage lasted for seventeen years until, because of Gregory's misfeasance, Janey instituted an action for divorce.

On May 2, 1985, Janey was granted a divorce. The judgment and decree of divorce gave custody of Megan and Ryan to Janey, decreeing that Gregory pay $250 per month, per child, for the support of the children. The trial court concluded further that Janey should receive one-half of the property amassed during the marriage through the joint efforts of the parties, and 30 per cent of the property which had been donated to Gregory by his father. Janey also received, as part of the property award, $115,063 in cash. She thus obtained a total property award, after deducting liabilities, of $329,858. Finally, the court decree provided the following language:

(Gregory) is ordered to pay to (Janey) as alimony the sum of $1,000 per month for a seven-year period starting with the first month after the entry of judgment herein, ... after said seven-year period, (Gregory) shall pay to (Janey) $500 per month, ... for an additional 10 years unless during this last 10-year period (Janey) dies or remarries, at which time this portion of the alimony shall cease. (emphasis supplied)

Gregory petitioned the trial court to amend its divorce judgment and extinguish his duty to provide alimony when he learned that Janey had remarried on August 1, 1987. Janey resisted and countered with a motion to adjust upward the amount of child support Gregory was required to pay.

The trial judge granted both motions. Gregory's monthly child support obligation increased from $500 to $665 and, pursuant to our ruling in Marquardt v. Marquardt by Rempfer, 396 N.W.2d 753 (S.D.1986), his obligation to pay alimony was cancelled.

Janey has asked us to review these two lower court rulings, contending, first, that the trial court misconstrued Marquardt, and, second, that the trial court misinterpreted SDCL 25-7-7 when it failed to include certain items in Gregory's gross income in determining support.

As with all appeals, it is necessary, at the outset, to delineate the applicable standard of review. It is settled law in South Dakota that this court will not disturb an award of alimony or child support, or a division of property, unless it clearly appears that the trial court abused its discretion. Guindon v. Guindon, 256 N.W.2d 894 (S.D.1977). We have often said this court must " 'not ... determine whether [we] would have made an original like ruling, but whether we think a judicial mind, in view of the law and the circumstances of the particular case, could reasonably have reached such a conclusion.' " Havens v. Henning, 418 N.W.2d 311, 312 (S.D.1988) (quoting Davis v. Kressly, 78 S.D. 637, 107 N.W.2d 5 (1961)). With this standard in mind, we embark upon an analysis of the issues in this case.


Janey seeks an affirmative resolution of this issue by advancing three alternative assertions:

(1) That the language of the trial court's alimony award indicates by implication that Gregory's duty to pay alimony would not cease if Janey remarried during the initial seven years following the parties' divorce;

(2) That the alimony award was an integral part of the property settlement segment of the divorce decree; and

(3) That extraordinary circumstances exist, i.e., Janey's new husband is unable to support her, which require the perpetuation of her alimony payments.

These contentions will be addressed seriatim.

In Marquardt, supra, we opined that " '[p]roof that the spouse receiving spousal support payments has remarried establishes a prima facie case requiring the court to terminate the support payments unless [the recipient of the support payments can show] extraordinary circumstances which justify continuation of the payments.' " 396 N.W.2d at 754 (quoting Bauer v. Bauer, 356 N.W.2d 897, 898 (N.D.1984)). By adopting this stance, we rejected the automatic termination rule espoused in Voyles v. Voyles, 644 P.2d 847 (Alaska 1982), and other cases. 1 These automatic termination jurisdictions have allowed alimony to continue, despite remarriage, if the parties' agreement or the decree of the court expressly provided that the flow of alimony was to remain unimpeded by the recipient spouse's remarriage. Janey urges us to adopt this exception in this case.

We must repeat, in order to fully comprehend the gist of Janey's argument, the succeeding pertinent language of the alimony award:

(Gregory) is ordered to pay to (Janey) as alimony the sum of $1,000 per month for a seven-year period starting with the first month after the entry of judgment herein, ... After said seven-year period, (Gregory) shall pay to (Janey) $500 per month, ... for an additional 10 years unless during this last 10-year period (Janey) dies or remarries, at which time this portion of the alimony shall cease. (emphasis supplied)

Since this language fails to provide that alimony payments will end if Janey remarries during the first seven years, Janey maintains that "it clearly implies that remarriage does not operate to terminate alimony during the first seven years." (emphasis supplied) This assertion is without merit.

Janey's reliance on the Voyles exception is misplaced because the Voyles exception, by its terms, applies only where there is an express statement that alimony is to survive notwithstanding the remarriage of the recipient spouse. Silence in a divorce decree or a voluntary agreement, as to the occurrence of remarriage, falls short of a specific declaration that alimony will endure in the event the recipient spouse remarries. Ehrenworth v. Ehrenworth, 187 N.J.Super. 342, 454 A.2d 895 (1982); Lord v. Shaw, supra. Thus, the parties to a divorce must, to avail themselves of the Voyles deviation, point to either a statement in an agreement or divorce decree which provides that the payor spouse will pay alimony, irrespective of the recipient spouse's remarriage, or evidence that the parties intended that the alimonial obligation would survive past the date of the payee spouse's remarriage. Here, since Janey has shown neither the amount of evidence required nor an agreement that alimony would continue after her remarriage, her argument must collapse.

Next, Janey argues that the alimony award was an intrinsic part of the property settlement segment of the divorce decree. It is well settled in this state that allowances of alimony and support money for the wife and children of a marriage are subject to revision and amendment when conditions change. See, e.g., Matthews v. Matthews, 71 S.D. 115, 22 N.W.2d 27 (1946). However, this rule does not apply insofar as property rights of the parties are concerned. See Holt v. Holt, 84 S.D. 671, 176 N.W.2d 51 (1970). Consequently, Janey asserts that the alimony award is, in fact, part of the property settlement; therefore, it cannot be modified. We refuse to countenance this contention on the basis of the facts before us.

In Lien v. Lien, 420 N.W.2d 26 (S.D.1988) (Lien II ), 2 we held that payments, though denominated as "support," were, in fact, part of a property division between the parties. As such, they were not terminable under Marquardt. We reached that conclusion due to the husband's insistence, at trial, that the payments be labeled "support" so that he could avoid the adverse tax consequences attendant to a total cash award of property.

It is apparent from a reading of Lien II, supra, that when deciding whether an award of alimony is, in reality, a portion of a property settlement, a court must scrutinize the language of the divorce decree, the circumstances encompassing it, and the end sought to be achieved by the parties. 3 After conducting this examination in the present case, we are left with the conviction that the alimony award was not a disguised property settlement.

Here, the divorce decree provided that Janey receive the parties' right, title, and interest in and to Karen's, Inc. (a retail store), the family residence, the personal property situated within the home, a 1978 station wagon, and $115,063 to be paid in cash within six months of the date of the decree. This amounted to a total property award of $329,858. The cash award was, in the trial judge's words, necessary to "effectuate the property division."

Based on this language, it is obvious that this money, not the periodically paid alimony, was an integral part of the property settlement necessary to accomplish an equitable division of property. The wording of the divorce decree, coupled with the circumstances of the divorce, indicates that the monthly payments made by Gregory to Janey were for her support and were not meant to accomplish an equitable property division. Thus, this contention of Janey's must also fail.

In her brief, Janey also attempts to label her alimony "rehabilitative." As such, she says, it may not be terminated. Since we are of the opinion that the rule in Marquardt, sup...

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