Ryken v. Ryken

• Decision Date: 26 April 1989
• Docket Number: 16224,Nos. 16213,s. 16213
• Citation: 440 N.W.2d 300
• Parties: Patti Rae RYKEN, Plaintiff and Appellee, v. Larry L. RYKEN, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 300

440 N.W.2d 300

Patti Rae RYKEN, Plaintiff and Appellee, v. Larry L. RYKEN, Defendant and Appellant.

Nos. 16213, 16224.

Supreme Court of South Dakota.

Argued Jan. 9, 1989.

Decided April 26, 1989.

Arthur L. Rusch of Bogue, Weeks, Rusch & Billings, Vermillion, for plaintiff and appellee.

John E. Burke, Sioux Falls, for defendant and appellant.

HENDERSON, Justice.

PROCEDURAL BACKGROUND

Appellee Patti Rae Ryken (Patti Rae) commenced this divorce action in December 1985 after three and one-half years of marriage to appellant Larry L. Ryken (Larry). Larry also sought divorce, by counterclaim. The circuit court for Yankton County granted divorce to both parties on the grounds of irreconcilable differences, and also granted Patti Rae divorce for extreme cruelty. The trial court divided the parties' property, and awarded Patti Rae both $25,000 in permanent alimony and $625 per month for forty-eight months as rehabilitative alimony. She also was awarded $6,500 in attorney's fees and $4,000 in appraiser's fees. ¹ Larry appeals (Appeal No. 16213), alleging that the trial court erred regarding division of property and its awards of rehabilitative alimony, attorney's fees, and appraiser's fees. In turn, Patti Rae argues, through notice of review (Appeal No. 16224), that the trial court's awards of attorney's, accountant's and appraiser's fees were too low.

We reverse the trial court's awards of property, alimony, and fees, holding: 1) that rehabilitative alimony was unjustified on this record; 2) that the trial court's property division was an abuse of discretion; and, 3) that Patti Rae's awards of attorney's, appraiser's, and accountant's fees were inadequate.

FACTS

Patti Rae and Larry met in the Fall of 1981. She had been married twice before. Her first marriage, of twelve years' duration, ended in 1981 and produced three children. Her second marriage, also in 1981, lasted a month. Larry, widowed in October 1981, also had three children, whose acquaintance with Patti Rae's children brought the parties together. They married on June 15, 1982, after Patti Rae signed an antenuptial agreement by which both parties gave up any claim on the personal or real property of the other. This agreement made no provision for Patti Rae's support in any form. It also stated that both owned real property, a patent untruth.

At the time of the marriage, Patti Rae owned only an inexpensive car, her clothing, and personal effects. Her education consisted of one year of college, and her work history was limited to part-time sales positions. Her first husband paid her $300 per month in child support. Larry, on the other hand, was a college graduate and owned, among other things, the Yankton Livestock Company and three-quarters of a partnership in the R & R Cattle Company. The trial transcript contains testimony by Larry which indicated that his net worth, at the start of the marriage, was roughly 2.5 million dollars although, at another point in the transcript, he estimated his net worth to be one million dollars at that time.

Immediately before and during the marriage, the parties spent money lavishly. He bought a diamond necklace, appraised at $24,000, and gave it to her to wear. The couple went out for dinner three nights a week, and traveled extensively. Larry's financial records were unreliable, as evidenced by his claim that a check for $24,090 drawn on a Yankton Livestock account, recorded as an expenditure on "feed for calves" in company records, was actually used to pay an old friend for fifty gold Krugerrand coins. Larry left the running of his household to Patti Rae, who paid the expenses with Larry's money. Her own income was limited to her monthly child support payments, which she used to pay off a $9,000 debt to her father. She did, however, occasionally work without pay for Yankton Livestock, entertain for business purposes, and accompany Larry on business trips.

Deterioration set into the marriage. Larry physically and verbally abused Patti Rae, apparently motivated by jealousy. In December 1985, she left him. Curiously, Larry's children initially went with her. After she departed, Larry hired a housekeeper, to whom he paid $175 a week. Prior to her departure, Patti Rae assembled approximately $4,000 to $4,500 in cash at their house. She also took various items of furniture, and a 1985 Cadillac registered to Yankton Livestock, which she used regularly. Larry later alleged that she or her friends made off with his fifty Krugerrands, but this she denied. This divorce proceeding followed.

DECISION

I. REHABILITATIVE ALIMONY

The trial court directed Larry to pay $625 in rehabilitative alimony for 48 months, plus 7% interest on unpaid installments. He argues that the award constitutes an abuse of discretion. We agree.

The factors to be considered in awarding alimony are: 1) The length of the marriage; 2) the respective earning capacity of the parties; 3) their respective financial condition after the property division; 4) their respective age, health, and physical condition; 5) their station in life or social standing; and 6) the relative fault in the termination of the marriage. Caughron v. Caughron, 418 N.W.2d 791, 793 (S.D.1988); Tesch v. Tesch, 399 N.W.2d 880, 884 (S.D.1987). The marriage here was short in duration (separation in three and one-half years). The parties are both relatively young (Larry was 44 at trial, Patti Rae was 37), and in reasonably good health. Both, during their marriage, lived well and Patti Rae is no worse off regarding employment than she was before. Indeed, the record indicates that she has a part-time sales job at a health food store, as she did at the time of her marriage. She has gone into business for herself, although this business was just breaking even at the time of trial.

There is little indication on this record that rehabilitative alimony is justified. Rehabilitative alimony must be designed to enable a spouse "to obtain the educational skills she needs to fend for herself in life." Tesch, 399 N.W.2d at 885. There is no testimony that Patti Rae was seeking any rehabilitation. There was no discussion of educational plans. No findings of fact or conclusions of law support rehabilitation. Her vocational inadequacy can be attributed to her twelve-year first marriage, a liability that cannot be laid at Larry's door. As in Wilson v. Wilson, 434 N.W.2d 742 (S.D.1989), the trial court gave little or no consideration "to the factor of relinquishment of professional or vocational skills." Wilson, at 745. Even Patti Rae's pleadings and briefs are couched in terms of support, not rehabilitation. At trial, Patti Rae's exhibits showed her monthly income, excluding support from Larry, to be $750, $300 of which was child support from her earlier husband. Her monthly expenses, however, are $1,670.

The vast disparity in these parties' earning abilities, property holdings, needs, and Patti Rae's financial circumstances might well reflect a support award (which was prayed for), but an award of rehabilitative alimony is not, on this record, supportable. In Shafer v. Shafer, 283 S.C. 205, 320 S.E.2d 730 (1984), a rehabilitative alimony award was reversed because there was no factual finding regarding any rehabilitative goal to be served, and the duration bore no reasonable relationship to the wife's educational timetable. Here, no such goal or timetable exists. This award is clearly against reason and evidence, and thus is an abuse of discretion. Straub v. Straub, 381 N.W.2d 260, 261 (S.D.1986); Herndon v. Herndon, 305 N.W.2d 917 (S.D.1981). We therefore reverse the trial court's award of rehabilitative alimony. We remand for reconsideration of a support award.

II. PROPERTY DIVISION

As alimony and property division must be considered together, Krage v. Krage, 329 N.W.2d 878, 879 (S.D.1983), it is obvious that reconsideration of the property awarded to these parties is warranted, given our decision regarding rehabilitative alimony. However, the property division in this case is defective and self-contradictory in and of itself. Thus, it would require reversal even absent error regarding rehabilitative alimony.

It is the trial court's obligation to equitably divide property belonging to either or both of the parties, be the title in the name of the husband or the wife, having regard for equity and the circumstances of the parties. SDCL 25-4-44. Principal factors to be considered by the trial court in making such a division are: 1) The duration of the marriage; 2) the value of the property; 3) the ages of the parties; 4) their competence to earn a living; 5) the contribution of each party to accumulation of property; and 6) the income-producing capacity of the parties' assets. Cooper v. Cooper, 299 N.W.2d 798, 799-800 (S.D.1980); Wallahan v. Wallahan, 284 N.W.2d 21, 24 (S.D.1979). This Court has consistently acknowledged that the performance by a housewife and mother of typically domestic duties constitutes a valuable contribution to the accumulation of marital property. Garnos v. Garnos, 376 N.W.2d 571, 573 (S.D.1985). However, the duration of this marriage was short, and most of the property the trial court determined to be marital property was accumulated before the marriage, by Larry. Here, the trial court awarded Patti Rae $25,000 in "permanent alimony," $7,500 for a car, $12,500 for a bracelet, approximately $4,000 in cash, furniture, and clothing.

Larry argues that this award is unjustified because 1) Patti Rae signed an antenuptial agreement waiving any claim to his property; 2) his net worth decreased by at least $1,000,000 during the marriage, so no property was accumulated; 3) the trial court made no specific finding of what marital property actually accumulated; and 4) requiring Larry to repurchase a bracelet from Patti Rae was an abuse of discretion. Patti Rae argues that her award was too small.

Considering the antenuptial agreement first, we agree that the trial court...