Rousseau v. Gesinger, 13712

• Decision Date: 15 October 1982
• Docket Number: No. 13712,13712
• Citation: 330 N.W.2d 522
• Parties: Ann ROUSSEAU, Plaintiff and Appellant, v. Gerald GESINGER, Defendant and Appellee. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 522

330 N.W.2d 522

Ann ROUSSEAU, Plaintiff and Appellant, v. Gerald GESINGER, Defendant and Appellee.

No. 13712.

Supreme Court of South Dakota.

Considered on Briefs Oct. 15, 1982.

Decided Feb. 23, 1983.

Krista Clark, Dakota Plains Legal Services, Eagle Butte, and Yvette Hall War Bonnet, Dakota Plains Legal Services, Mission, for plaintiff and appellant.

Robert Kelley of Johnson & Kelley, Lemmon, for defendant and appellee.

MORGAN, Justice.

This appeal arises from an amended decree of divorce and a denial of a motion for a new trial. Ann Rousseau Gesinger (Rousseau), appellant, brought a contempt action against Gerald Gesinger (Gesinger), appellee, for nonpayment of alimony. The trial court amended the decree of divorce by eliminating alimony and denied Rousseau's subsequent motion for a new trial. Rousseau appeals and we reverse and remand.

Rousseau and Gesinger were divorced on March 8, 1978, after almost twenty-five years of marriage. The couple agreed that Rousseau would have custody of the minor daughter, and that Gesinger would have custody of the four minor sons. The property settlement agreement, which was incorporated into the divorce decree, provided that (1) Gesinger would pay Rousseau $400/month alimony and $150/month child support; (2) Gesinger would receive all of the livestock, farm machinery, tools, equipment, Federal Land Bank stock, grain bins, feed, seed, grains, pickup trucks, automobiles, and nontrust real property (approximately 1500 acres); and (3) Rousseau, in addition to the alimony, received her federal trust land to which she was entitled as an American Indian, "free and clear of any encumbrance or interest" of Gesinger. ¹ The federal trust land was approximately 1700 acres.

At some point after the divorce, the minor daughter went to live with Gesinger, who had remarried. Both parties agreed that Gesinger would then stop paying child support. Subsequently, in October, 1980, Gesinger stopped paying the $400/month alimony. Rousseau brought this action to compel Gesinger to pay the alimony. At the hearing Gesinger petitioned the court to modify the divorce decree by eliminating the alimony. The trial court then amended the divorce decree by eliminating the alimony and further held that Rousseau had entered into an oral lease agreement with Gesinger permitting him to use her federal trust land rent-free. The result is that Rousseau has nothing left from the marriage.

Rousseau appeals ² seeking reinstatement of alimony, reversal of the trial court's holding that there was a "rent-free lease arrangement," and a rehearing on the contempt action. ³

The first issue on appeal addresses the burden of proof during the contempt hearing for Gesinger's failure to pay alimony. There are two burdens of proof here. The plaintiff in such a contempt hearing must establish the four elements of a prima facie case to warrant a finding of contempt for failure to pay alimony. These four elements are: "(1) the existence of an order, (2) knowledge of the order, (3) ability to comply with the order, and (4) willful or contumacious disobedience of the order." Myhre v. Myhre, 296 N.W.2d 905, 907 (S.D.1980). See Hanisch v. Hanisch, 273 N.W.2d 188 (S.D.1979). Rousseau satisfied these elements by her affidavit and testimony at trial.

Gesinger's defense was inability to pay the alimony. With this defense, the burden of proof shifts to the defendant to establish his inability to comply with the court's order. Jameson v. Jameson, 306 N.W.2d 240 (S.D.1981); Talbert v. Talbert, 290 N.W.2d 862 (S.D.1980). The party required to show cause for inability to pay has the burden of proof to meet the prima facie case made by the applicant. 56 Am.Jur.2d Motions, Rules, and Orders Sec. 34 (1971). Thus, the burden shifted to Gesinger to prove his inability to pay.

The trial court did not recognize this shift in burden of proof. The court expressly stated that Gesinger did not have any burden of proof in this proceeding. Since the trial court placed the entire burden of proof on Rousseau, the trial court incorrectly stated the burden of proof in this proceeding.

Even under the correct burden of proof, Gesinger's evidence did not establish his inability to pay. Although proof was requested by Rousseau, Gesinger produced no corroboration of his testimony that he could not pay the alimony. We note "[t]he general rule that the weight of the evidence and the credibility of the witnesses is largely a matter of the trial court's determination[.]" Jameson, 306 N.W.2d at 242; see Bailey v. Bailey, 77 S.D. 546, 95 N.W.2d 533 (1959). In these particular circumstances, however, due to the extreme self-serving nature of his testimony, Gesinger's testimony alone does not meet the burden of proving his inability to pay. The record indicates Gesinger needed to present additional evidence to meet his burden of proof. Such evidence could have taken the form of documentation or testimony. Since Gesinger did not prove his inability to pay, he did not overcome Rousseau's prima facie case establishing a finding of contempt.

The second issue on appeal is whether Gesinger properly petitioned for modification of alimony and met the burden of proof for modification. SDCL 25-5-41 ⁴ permits a trial court to modify its orders concerning alimony. Rousseau questions whether Gesinger should be permitted to petition for modification during a contempt proceeding for failure to pay alimony. Rousseau seeks this court to require an affirmative petition for modification which is separate from a contempt proceeding.

SDCL 25-4-41 does not require a separate, affirmative petition. Although in numerous cases a party initiated the cause of action by seeking modification of alimony, see, e.g., Jameson v. Jameson, 90 S.D. 179, 239 N.W.2d 5 (S.D.1976); Herndon v. Herndon, 305 N.W.2d 917 (S.D.1981); Hanisch, supra, this court has also reviewed cases in which the request for modification was filed in response to the contempt action. Jameson v. Jameson, 306 N.W.2d 240 (S.D.1981); Myhre, supra. Due to the mere five-day notice before trial of the petition for modification, Rousseau did not have an opportunity for discovery to challenge Gesinger's petition for modification. Although this short notice prejudiced Rousseau, South Dakota statutory and case law does not require a petition for modification to be a separate proceeding from a contempt action. SDCL 25-4-41; Jameson, 306 N.W.2d 240 (S.D.1981); Myhre, supra. Consequently, Gesinger was not prohibited from seeking modification of alimony at the contempt proceeding.

In a proceeding for modification of alimony, however, burden of proving a change in circumstances sufficient to warrant modification is upon the party seeking modification. Myhre, supra. At the hearing, the trial court did not recognize that the burden was on Gesinger. Further, even if the court had recognized the burden, the evidence offered by Gesinger falls short of meeting this burden of proof. Since Gesinger failed to meet his burden of proving change in circumstances, the trial court erred in eliminating the alimony payments.

The third issue is whether Rousseau and Gesinger have an oral contract that Gesinger may lease, free of charge, Rousseau's federal Indian trust land. In the divorce decree of these parties, the trial court stated as a finding of fact that Rousseau's separate property includes the Federal Indian trust land. The trial court now attempts to modify the property settlement by stating that Gesinger may lease this land free of charge. The trial court's sole basis for this "lease" is that before the divorce, Gesinger did not pay rent to his wife, Rousseau, for his use of the land.

While allowances for alimony and child support are subject to modification when circumstances change, SDCL 25-4-41, the division of property is not subject to modification. Holt v. Holt, 84 S.D. 671, 176 N.W.2d 51 (1970). The property settlement in a divorce action is designed to settle with finality the property rights of parties as of time of entry of judgment; each party is entitled to their respective property as of that date. Lien v. Lien, 278 N.W.2d 436 (S.D.1979). In the divorce decree, Rousseau retained title to her Federal Indian trust land as an item of the property settlement, "free and clear of all encumbrance or interest by [Gesinger]." Since a lease involves an interest in land, Shaw v. George, 82 S.D. 62, 141 N.W.2d 405 (1966), the trial court's finding below that a "rent-free lease" exists between Rousseau and Gesinger modifies the property settlement. Because modification of a property settlement is precluded, Lien, supra; Holt, supra, the trial court is barred from holding that such a lease exists. ⁵

Considering the numerous errors of law by the trial court, we reverse and remand for a new trial. In view of our remanding for a new...