Prentice v. Prentice

• Decision Date: 18 May 1982
• Docket Number: No. 13599,13599
• Citation: 322 N.W.2d 880
• Parties: Janice K. PRENTICE, Plaintiff and Appellant, v. Delton L. PRENTICE, Defendant and Appellee. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 880

322 N.W.2d 880

Janice K. PRENTICE, Plaintiff and Appellant, v. Delton L. PRENTICE, Defendant and Appellee.

No. 13599.

Supreme Court of South Dakota.

Considered on Briefs May 18, 1982.

Decided Aug. 11, 1982.

Thomas P. Tonner of Maynes, Tonner, Maynes & Tobin, Aberdeen, for plaintiff and appellant.

Charles A. Wolsky of Morman, Smit, Shepard, Hughes & Wolsky, Sturgis, for defendant and appellee.

WUEST, Circuit Judge.

This is an appeal from a divorce action. The trial court granted a divorce to both parties, and there is no appeal from that part of the judgment. The wife (appellant) does appeal the trial court's decision on child custody, division of the property, and denial of attorney fees. We affirm in part, reverse and remand in part.

The parties were married on June 6, 1973, and three children were born to this marriage. Appellant testified that she was thirty-two years of age, was a licensed practical nurse, and was employed as an LPN prior to the marriage. The husband (appellee) testified he was thirty-five years of age and had a degree from Northern State College. Following their marriage, the couple lived for a short time in Alaska, but soon returned to a farm near Wessington, South Dakota. They resided there until January of 1981 when appellant filed for a divorce and moved with her three children to Aberdeen, South Dakota. There she obtained employment as office manager for the Family Health Center at St. Luke's Hospital, earning approximately $1,000 per month. She and the children live in a rented house. The children are cared for in a day care center when she is working.

Appellant first contends the trial court erred in awarding custody of the children to appellee. The trial court found each parent to be a fit and proper person to have custody of the children and visitation rights. Although both parents demonstrated a very strong love and concern for the children's welfare, the trial court awarded custody of the children to their father.

Prior to July 1, 1977, the law provided that, all things being equal, the mother was entitled to custody of a child of tender years. However, the law was amended so neither parent would be given preference over the other in determining custody. SDCL 30-27-19(2). The legislature desired neither parent to be given custodial preference due to their sex. Martin v. Martin, 306 N.W.2d 648 (S.D.1981). Now the court is to be guided by what appears to be in the best interests of the child with respect to its temporal, mental, and moral welfare. If the child be of a sufficient age to form an intelligent preference, the court or judge may consider that preference in determining the question. SDCL 30-27-19(1).

In reviewing a trial court's decision on custody, we cannot substitute our judgment for its decision unless there has been a clear abuse of discretion. Palmer v. Palmer, 316 N.W.2d 631 (S.D.1982); Hanks v. Hanks, 296 N.W.2d 523 (S.D.1980). We note the rationale provided by the trial court in awarding custody to the father in this case: (1) they (the children) enjoyed their life on the farm and were learning to take responsibility in caring for the animals they had as pets; (2) they had a close relationship with their paternal grandparents who lived nearby and who expressed a willingness to help raise them; (3) there would be no father figure for any of the children if the children were allowed to remain in Aberdeen; and (4) the appellant worked forty hours per week which left her little time with the children and too much time for them with babysitters. After reviewing the trial court's rationale and the entire record, we cannot hold the trial court clearly abused its discretion in awarding custody to the father, although we may have ruled differently as trial judges.

Second, appellant claims the trial court abused its discretion in making an equitable division of the property, particularly as it related to the farm. The evidence disclosed the farm, a quarter section, was purchased from appellee's grandmother by appellee's father in 1968 for $10,000, payable at the rate of $1,000 per year, plus interest. He had the land deeded to his son, the appellee, and to his daughter, Glenda, who now resides in Alaska. Appellee's father testified he did not intend to make a gift of this land until his death, but, when appellee returned to South Dakota to farm, possession was given to appellee. When appellee took possession of the land his father had previously paid $6,000, plus interest, on this property. Since that time, appellee has paid the balance of $4,000, plus interest, and taxes; he has farmed the land and taken all of the proceeds therefrom. Appellee's sister, having made no contributions of principal, interest, or taxes, has received no part of the proceeds from the land.

The trial court observed in its memorandum opinion, which was incorporated by reference as a part of the findings of fact and conclusions of law, that:

It appears that this land was either a gift from his father before the marriage and property which he brought into the marriage subject to the rights that his sister, Glenda, may have, or it is still property of the defendant's father, Lowell Prentice, subject to the rights of the two children. In either case, it is not property which was acquired during the marriage.

Thus, the trial court did not consider this property when it made a division of the property.

This court will not set aside a division of property unless there is a clear abuse of discretion. Clement v. Clement, 292 N.W.2d 799 (S.D.1980); Hanson v. Hanson, 252 N.W.2d 907 (S.D.1977); Stenberg v. Stenberg, 240 N.W.2d 100 (S.D.1976). We said in Clement :

Although the trial judge should consider the fact that the defendant inherited certain property, he is not bound to set it aside for the defendant and may consider it as part of the property to be divided. The statute is specific that title does not control the distribution of the property in a divorce action.

Id., at 801. While we can appreciate the trial court's difficulty in making an equitable division of this property between appellant and appellee, it is clear that appellant and her husband, in addition to paying the balance due on the farm, improved the real property by drilling a well costing approximately $5,300, constructing a pole barn costing approximately $3,000, and improving the residence by approximately $5,000. In addition, appellee testified the market value of the land was $350 per acre at the time of trial. Moreover, appellant helped on the farm after they took possession, worked as a secretary, and conducted a plant business. Thus, appellant contributed to the partial payment and the improvements upon this farm by her work and industry. Given these facts, we believe the trial court abused its discretion in failing to consider this farm property in making an equitable division.

Lastly, appellant contends the trial court's refusal to award her attorney fees is error. After determining what constitutes a reasonable fee in a divorce case, the trial court must then decide what portion of the attorney fees should be allowed as costs and thereby...