Price v. Price, 12538

• Decision Date: 03 May 1979
• Docket Number: No. 12538,12538
• Parties: Donna M. PRICE, Plaintiff and Appellant, v. Thomas R. PRICE, Defendant and Respondent.
• Court: South Dakota Supreme Court

Page 455

278 N.W.2d 455

Donna M. PRICE, Plaintiff and Appellant, v. Thomas R. PRICE, Defendant and Respondent.

No. 12538.

Supreme Court of South Dakota.

Argued March 20, 1979.

Decided May 3, 1979.

William J. Ellingson, Flandreau, for plaintiff and appellant.

John A. Shaeffer, Flandreau, for defendant and respondent.

DUNN, Justice.

This is an appeal from a judgment of the trial court granting Donna Price (plaintiff) a divorce from Thomas Price (defendant). Plaintiff appeals from the property division, alimony, and child support provisions of the judgment. We reverse and remand.

The parties were married on November 23, 1957. Five children were born of the marriage, i. e., Steven, Julie, Laurie, Lisa, and Thomas. Their ages at the time of the divorce trial were 19, 17, 16, 11, and 6, respectively. At the time the judgment was rendered, plaintiff was thirty-five years of age and defendant was thirty-seven years of age. Both parties were in reasonably good health. Plaintiff was employed part-time as a waitress in a cafe in Flandreau, South Dakota, and defendant was employed at Sioux Valley Power Electric Association in Colman, South Dakota, and farmed a section of land west of Flandreau. The parties' home was located on ten acres of land about one mile west of Flandreau and adjacent to the land that defendant farmed.

Plaintiff filed for divorce on July 25, 1977. The trial court entered a temporary order on August 9, 1977, awarding custody of the three youngest children to plaintiff and providing that defendant pay $350 per month for their support. A trial was held to the court on March 6, 1978, and judgment was entered on May 10, 1978. The trial court granted plaintiff a divorce upon the ground of extreme cruelty and awarded custody of the three youngest children to her subject to reasonable visitation rights of defendant. Plaintiff was awarded her personal property and a 1971 automobile. Defendant was awarded the family home, the acreage, his personal property, the farm equipment, a gold wedding band, and the checking and savings accounts. Defendant was to maintain health insurance for the benefit of the children and life insurance naming the children as beneficiaries until the youngest child reached the age of majority. Defendant was to be responsible for the marital debts incurred prior to the separation, plus the children's medical costs which were approved by defendant. The trial court further gave defendant the option of paying plaintiff a lump sum property settlement, plus child support, or, in the alternative, alimony and child support. Defendant chose to pay alimony and child support. Plaintiff appeals from the trial court judgment and contends that by providing a judgment in the alternative to defendant the trial court abused its discretion in effectively denying plaintiff a property settlement and reasonable child support.

In our review of these matters, we are cognizant of the fact that the trial court has broad discretion, and we will not modify or set aside the judgment of the trial court unless it clearly appears that the court has abused its discretion. Hansen v. Hansen, 1979, S.D., 273 N.W.2d 749; Kittelson v. Kittelson, 1978, S.D., 272 N.W.2d 86. The inequities in this divorce decree, however, require a remand for several reasons.

The plaintiff was turned out of the family home after twenty years of marriage with the responsibility of raising defendant's three minor children under a decree providing: (1) that plaintiff receive an automobile valued at $1,500 out of the total jointly-earned assets of $43,454.12; (2) that plaintiff be awarded $50 per child per month as child support; (3) that plaintiff be awarded $400 per month alimony, decreasing $100 per month as each child reaches majority; and (4) that plaintiff pay her own attorney fees and other debts incurred from the date of separation. All this in spite of the fact that defendant was earning take-home pay of almost $1,000 per month from his employment at Sioux Valley, plus income from farming a section of land. In addition, defendant has some $4,000 built up in retirement benefits from Sioux Valley and also has an automatic savings account with Sioux Valley in the amount of $4,000. In contrast, plaintiff has no home, no cash, accumulated debts of some $800 since the separation, and an earning capacity of $50 per week as a waitress. And she has the responsibility of furnishing food, clothing, lodging and education for the three minor children. Under these circumstances, we find that there was an abuse of discretion by the trial court.

In passing on the judgment entered, we would give a word of caution as to the optional terms offered to the defendant by the trial court. It should be noted that plaintiff was given no options in this unusual judgment, and defendant was permitted to pick the method that was best for him. Actually, the first option offered to the defendant of paying plaintiff a lump sum payment of $18,000, plus child support of $100 per month per minor child would have provided for plaintiff's immediate needs far better than the second because it would have enabled her to at least make a down payment on a house in which to raise the family and it provided for child support in a more reasonable amount. Even option one is inadequate in terms of the settlement of jointly-earned property, in alimony not based upon need and earning capacities of the parties, and in not providing attorney fees for the plaintiff. In any event, the plaintiff was given no option, and we have to deal with the judgment as entered.

The trial court is authorized to make an equitable division of the property belonging to the parties, and it must have regard for equity and the circumstances of the parties in making such property division. SDCL 25-4-44. In this regard, we have enumerated the principle factors to be considered by the trial court as follows: the duration of the marriage, value of the property, the ages of the parties, the state of health of the parties, the competency to earn a living, the contribution of each party to the accumulation of the property, and the income-producing capacity of the parties' assets. Hansen v. Hansen, supra; Kittelson v. Kittelson, supra; Wall v. Wall, 1977, S.D., 260 N.W.2d 644; Hanson v. Hanson, 1977, S.D., 252 N.W.2d 907; Stenberg v. Stenberg, 1976, S.D., 240 N.W.2d 100; Kressly v. Kressly, 1958, 77 S.D. 143, 87 N.W.2d 601.

The parties had been married for twenty years, and during that time five children were born as issue of the marriage. The parties were still young and in reasonably good health, although there is evidence that plaintiff is in need of surgery on her leg. The record indicates that defendant's take-home pay, excluding farm income, is $976.23 per month whereas plaintiff's gross income is $50.88 per week. Defendant's earning capacity is clearly greater than that of plaintiff, especially due to the fact that plaintiff did not finish her high school education due to the marriage and she has had no vocational training.

The parties were married at a very young age, and they came into the marriage with no property of any substance. Therefore, the property existing at the time of the divorce trial was accumulated during the course of the marriage. Defendant contributed to the accumulation of the property through his salary earnings and labor on the farm. Plaintiff contributed as many mothers and housewives do, i. e., by raising the five children, cooking the family's meals, washing their clothing, etc. The record also...