Rock v. Rock

• Citation: 236 N.W.2d 191,89 S.D. 583
• Decision Date: 12 December 1975
• Docket Number: No. 11456,11456
• Parties: Leann ROCK, Plaintiff and Respondent, v. Gene F. ROCK, Defendant and Appellant.
• Court: Supreme Court of South Dakota

Page 191

236 N.W.2d 191

89 S.D. 583

Leann ROCK, Plaintiff and Respondent, v. Gene F. ROCK, Defendant and Appellant.

No. 11456.

Supreme Court of South Dakota.

Dec. 12, 1975.

Bormann & Buckmeier, Mobridge, for plaintiff and respondent.

William J. Srstka, Jr., Pierre, for defendant and appellant.

COLER, Justice.

Respondent was granted a decree of divorce on her complaint alleging extreme mental cruelty. She was given custody of the minor child of the parties, support for that child, all rights of the parties to certain real estate ordered sold to effect a property distribution and security for support payments and attorney's fees. Appellant, who answered and entered a separate counterclaim, appeals from not only the judgment but also from a separate order arising out of a show cause hearing at which he was held in contempt. We affirm.

Of the seven assignments of error briefed by appellant, all but two, namely, the reasonableness of the trial court's award to respondent of (1) property of the parties and (2) attorney's fees, were waived during oral argument by new counsel who had not been on the brief.

At the time of oral argument, it was represented that further proceedings were pending on matters within the continuing jurisdiction of the trial court seeking modification of portions of the judgment before a different judge. During oral argument appellant challenged the validity of a contempt order issued. We need not consider that issue inasmuch as appellant has returned the child and presumably has purged himself of contempt.

Respondent quite properly pointed out in her brief that the original assignments of error failed to refer to the page of the transcript or portion of the record where the alleged error appears. SDCL 15--29--6 and decisions annotated thereunder. This court, however, is at liberty to rule on the errors assigned where those errors are sufficiently argued and briefed. Schumacher v. R-B Freight Lines Inc., 1950, 73 S.D. 535, 45 N.W.2d 458; Larson v. Underwriters, 1958, 77 S.D. 157, 87 N.W.2d 883.

While appellant, through his attorneys, made a special appearance to challenge the trial court's jurisdiction and, subsequently, filed his answer and separately a counterclaim for divorce, he never appeared before the trial court. At the time scheduled, even when rescheduled at appellant's request, he failed to attend a show cause hearing ordered by the court. He also failed to appear for adverse examination pursuant to either the stipulation entered or a subsequent order issued after he failed to appear in accordance with his stipulation. At the time of trial, appellant had been adjudged in contempt and his whereabouts were not known. As a consequence, the evidence before the trial court was limited to what respondent presented and the cross-examination of her witnesses. However, the case was heard and no default entered as may have been ordered under SDCL 15--6--37(b).

The parties to this action were married on March 10, 1969, and one child, Gerald Alan Rock, was born of the marriage on March 9, 1970. At the time the decree of divorce was entered, respondent was approximately 32 years of age and appellant was approximately 42. Respondent was a high school graduate with some training and experience as a practical nurse and, at the time of the marriage, appellant was pursuing a course of study to become a medical doctor. Shortly after their marriage the parties established themselves in Bismarck, North Dakota, where appellant took his residency in radiology which he completed in January of 1973. Following his accreditation, the family established a residence in Mobridge, South Dakota, where appellant was soon associated with two hospitals in that area.

Though marital difficulty can seldom be traced to a single source, there appears, in this case, to be at the root of that discord an obsession on the part of appellant for frugality at the expense of others in the family though he indulged in few luxuries for himself. What appellant's income was at the time of the marriage through 1970 is not of record. During his residency in Bismarck, appellant was paid between $400 and $500 per month plus calls at the hospital so that his annual income in 1971 was slightly over $10,000. By 1972, his reportable net income for tax purposes reached $44,661. In 1973 he had a known gross income from his profession in excess of $70,000 for some ten months before he terminated his employment with hospitals at Mobridge and Hoven in the fall of 1973 and disappeared, taking with him the child contrary to the orders of the trial court previously entered. Appellant had also received nearly $20,000 in income from the ranch during 1973.

Respondent's earnings during the marriage came from employment as both a waitress and nurses aide. While appellant was taking his residency, respondent's income amounted to $40 to $60 a week which was entirely devoted to living expenses of the family. At that time, appellant's contribution was limited to $20 per week for food. After respondent had discontinued employment, that weekly contribution of appellant continued until it was raised to $150 per month in January 1973 on repeated pleas of respondent. Appellant also contributed toilet articles from the hospital where he interned. Appellant furnished no transportation for his wife and child throughout their marriage. When respondent shopped, regardless of distance or weather conditions, she walked or orde a bicycle. Appellant refused to furnish their rented premises in either Bismarck or Mobridge. He did, however, acquire bodybuilding equipment for himself which he used so religiously so at to require respondent and the children to absent themselves during his exercise. The only other luxury appellant allowed for himself was a hot bath after exercise and the water heater would then be turned off to conserve electricity.

The conservation of appellant's earnings, at the sacrifice of needs of both parties, did provide for funds necessary for initial payments totalling $50,300 over a seven-month period on a contract for deed for a ranch in Potter County, South Dakota, entered into on November 7, 1972, by both parties as joint tenants. This rench, consisting of approximately 2,260 acres, was purchases at a price of $237,300 and at the time of this action that property constituted the principal asset of the parties. The property sold for $310,650 on March 22, 1974, pursuant to the trial court's judgment and the sale was confirmed by the court on that date. In addition thereto, the parties had acquired personal property including a...