Radigan v. Radigan, 16930

Decision Date18 September 1990
Docket NumberNo. 16930,16930
Citation465 N.W.2d 483
PartiesWilliam J. RADIGAN, Jr., Plaintiff and Appellant, v. Margaret R. RADIGAN, Defendant and Appellee. . Considered on Briefs
CourtSouth Dakota Supreme Court

James E. McCulloch of Minick, Nelson & McCulloch, Vermillion, for plaintiff and appellant.

Lee M. McCahren, Vermillion, for defendant and appellee.

SABERS, Justice.

Husband appeals judgment of divorce.


William and Margaret Radigan lived with their three children in Germany, where William, a major in the Air Force, was stationed. They separated in 1987 after nearly twenty years of marriage and Margaret returned to the United States with the two younger children and settled in Ohio. Before Margaret left Germany, she and William signed a "Property Settlement and Child Custody Agreement" (agreement) prepared by William's attorney. This agreement provided that William would pay Margaret $500 per month in child support and $500 per month in alimony, and that William would retain exclusive possession of his military pension. For the next thirty months, William performed his support obligations under the agreement.

William filed for divorce in South Dakota because he is a South Dakota resident. Trial was held in Vermillion on June 20, 1988, and divorce was granted on October 10, 1989. The trial court rejected the agreement and entered a divorce judgment which increased William's child support obligation to $750 per month and awarded Margaret $500 per month rehabilitative alimony for five years and one-third of William's military pension.

William claims the trial court abused its discretion:

(1) By rejecting the agreement signed in Germany;

(2) By ordering the $750 monthly child support payments to continue until both children reach majority;

(3) By failing to credit the pre-judgment alimony against William's post-judgment alimony obligation;

(4) By awarding Margaret a percentage of William's eventual pension rather than a sum certain based on William's current retirement eligibility; and,

(5) By awarding attorney fees to Margaret.


South Dakota courts "may make an equitable division of the property" in a divorce action. SDCL 25-4-44. The payment of alimony may also be compelled "as the court may deem just," SDCL 25-4-41, and child support obligations are set "as may seem necessary or proper" to the court, SDCL 25-4-45. An agreement between the parties on any of these matters is one relevant factor for the court's consideration, but such an agreement does not control the court's exercise of its discretion in light of all relevant factors. McGee v. McGee, 415 N.W.2d 812, 813-814 (S.D.1987); Shoop v. Shoop, 58 S.D. 593, 600, 237 N.W. 904, 907 (1931). The trial court's determinations will not be disturbed on appeal unless the court has abused its discretion by reaching a result "clearly against[ ] reason and evidence." Gross v. Gross, 355 N.W.2d 4, 7 (S.D.1984); Herndon v. Herndon, 305 N.W.2d 917, 918 (S.D.1981).

Here reason and evidence support the trial court's decision to reject the agreement the Radigans signed in Germany and to make a property division and a child support award inconsistent with its terms. The record shows that William physically abused Margaret on several occasions, that Margaret, unrepresented by an attorney and living as a dependent in an environment controlled by William and William's military employers, signed an agreement giving William one hundred percent ownership of the only major marital asset and that Margaret viewed her signature as a precondition for getting out of Germany. Under these circumstances, we cannot say the trial court abused its discretion in rejecting the agreement.

William suggests in the alternative that the agreement must stand either because he relied on it to his detriment when he made pre-judgment support payments to Margaret, or because Margaret became estopped from challenging it when she accepted those payments. We fail to perceive either detrimental reliance or estoppel in view of the low probability that any court would have awarded Margaret less than the agreement. See Meyer v. Meyer, 76 S.D. 268, 271, 77 N.W.2d 559, 560, reh'g denied (1956).


The Radigans' son will turn eighteen in March, 1991, and their daughter will turn eighteen in March, 1995. Under the terms of the divorce judgment, William is ordered to pay $750 per month in child support "until both children reach the age of majority or until further Order of the Court."

The court may not impose on William a duty to support his children beyond the age of eighteen, or nineteen if they are still in high school. SDCL 25-5-18.1; Birchfield v. Birchfield, 417 N.W.2d 891, 895 (S.D.1988). William argues that "in effect" the court ordered him to pay child support for his son up to the age of twenty-two because the amount of child support continues undiminished until daughter reaches eighteen. However, the judgment does not allocate child support between son and daughter. The judgment simply awards $750 per month for the support of the minor children, and thus there is no violation of SDCL 25-5-18.1.

Had the statutory child support guidelines at SDCL 25-7-6.2 been in effect at the time of the Radigans' divorce, William's monthly obligation for his two minor children would exceed $900. William is presently benefitted by the court's child support award of $750 per month, as long as his obligation extends to both children. However, if $750 per month proves to be more than the statutory guidelines permit at the time the older child reaches majority, then William's payment should be modified to reflect the appropriate guideline amount for one child.

On this basis, we find no abuse of discretion in the court's child support award.


William paid Margaret $1,000 a month for thirteen months between the signing of the agreement and trial. In a separate Stipulation and Order entered at the time of trial, William agreed to continue these payments until judgment, provided the court would credit the alimony portion of his pre-judgment payments against any lump sum alimony the judgment might award to Margaret. William continued the $1,000 monthly payment for an additional seventeen months until entry of the judgment awarding Margaret $750 monthly in child support and $500 monthly in rehabilitative alimony for five years. William argues that the $250 per month by which his pre-judgment payments to Margaret exceeded the child support award, totaling $7,500 over thirty months, should be applied to the rehabilitative alimony award in accordance with the Stipulation and Order.

However, the Stipulation and Order promises to credit William's pre-judgment alimony payments only against an award of permanent alimony reduced to a "lump sum." The trial court awarded no such alimony to Margaret, but instead granted her rehabilitative alimony in periodic payments over a limited period of time. This type of alimony fell outside the scope of the stipulation entered into with the court's approval, and the court ordered the rehabilitative alimony with full knowledge of the prior payments and the stipulation.

In awarding alimony, the trial court must consider the length of the marriage, the parties' respective earning capacities, the effect of the property division, the age and physical condition of the parties, their accustomed standard of living, and the degree of relative fault. Baltzer v. Baltzer, 422 N.W.2d 584, 587 (S.D.1988); Cole v. Cole, 384 N.W.2d 312, 316 (S.D.1986). In addition, the award of rehabilitative alimony must be designed to meet an educational need or plan of action whose existence finds some support in the record. Ryken v. Ryken, 440 N.W.2d 300, 303 (S.D.1989).

Taking these factors into account, we find that the award of $500 per month in alimony for five years in addition to the pre-judgment payments was not an abuse of discretion.


A military pension is property subject to division. Gibson v. Gibson, 437 N.W.2d 170, 171-172 (S.D.1989). In this case, it is the principal property to be divided.

Using the formula for dividing military pensions approved as a guideline in Hautala v. Hautala, 417 N.W.2d 879, 880 n. 1 (S.D.1988), the trial court arrived at a percentage (33 1/3%) of William's pension to which it held Margaret was entitled. The court ordered this percentage to be applied to whatever retirement benefits William eventually collects, whenever he chooses to retire.

William objects to the open-ended nature of this property division. He would like to remain in the military a few more years in order to attain a higher base pay and to become eligible for a higher percentage of that base pay upon retirement. He claims that it is inequitable that he should have to share with Margaret any additional benefits he acquires on his own between divorce and retirement. He wants his property obligation to Margaret to be reduced to a sum certain by applying Margaret's percentage only to the monthly retirement amount he was eligible to receive on the day of the divorce.

In those states which follow a "dual property" regime, any portion of a pension not attributable to employment during the marriage is not subject to division as a matter of law. 3 Rutkin Family Law and Practice, Sec. 37.07[a] (1990). Even in many "all property" regimes, where the disposition of either spouse's property is theoretically at the court's discretion, there is a preference for dividing only the portion of a pension which accrued during the marriage as being the more equitable approach. Id. See also In re Marriage of Oler, 451 N.W.2d 9 (Iowa App.1989); Kilbride v. Kilbride, 172 Mich.App. 421, 432 N.W.2d 324 (1988).

South Dakota is an "all property" state. Under SDCL 25-4-44, all property of either or both divorcing spouses is subject to equitable division by the court, regardless of title or origin.


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