Schaack v. Schaack, 15555

• Citation: 414 N.W.2d 818
• Decision Date: 04 November 1987
• Docket Number: No. 15555,15555
• Parties: Marlys SCHAACK, Plaintiff and Appellee, v. Paul SCHAACK, Defendant and Appellant.
• Court: Supreme Court of South Dakota

Page 818

414 N.W.2d 818

Marlys SCHAACK, Plaintiff and Appellee, v. Paul SCHAACK, Defendant and Appellant.

No. 15555.

Supreme Court of South Dakota.

Nov. 4, 1987.

Arthur M. Hopper, Austin, Hinderaker, Hackett & Hopper, Watertown, for plaintiff and appellee.

Roger W. Ellyson, Ellyson Law Offices, Watertown, for defendant and appellant.

WUEST, Chief Justice.

Paul M. Schaak (husband) appeals from a judgment and decree of separate maintenance dismissing with prejudice his counterclaim for divorce. We affirm.

Husband is 73 years old. He is hard of hearing and has a severe case of epilepsy which causes seizures and blackouts. He is described as a slow thinker and communicator, but a man who knows what he is talking about. Through pension and retirement programs his income is approximately $1,091 per month.

Marlys Schaak (wife) is 48 years old. In twelve years at the Redfield State Hospital she completed the fifth grade. She earns approximately $31 per week babysitting.

The parties were married in 1971. They lived in a home husband completed building after the marriage. Throughout the marriage the couple borrowed money to pay such expenses as taxes, expenses from automobile accidents, and doctor bills.

In January 1981, on the advice of doctors, husband began living in a nursing home where his medication for epilepsy could be carefully monitored and controlled. Wife visited him in the nursing home every other Sunday until he told her not to return. She does not drive so her ex-husband drove her to the nursing home twice. She testified that husband always visited with her and was not upset during the visits. She did swear at him, though, when he called her at midnight to have her come and release him from the nursing home. She denied that her visits were motivated by a need for money. She did obtain a court order, however, that enabled her to receive $214 per month of his funds.

The nursing home administrator handled husband's finances during the four years that he lived in the home. He testified that wife infrequently visited husband during the week. He knew that some of the visits were for money since he wrote the checks. Although he did not see what upset husband, the administrator did see husband leave the home upset "a couple of times" while wife was still visiting. He was also aware that husband's seizure activity increased when he was upset after visits, but he could not remember whether the visits were from wife.

In December 1984, husband returned home for an overnight visit. When he left the house in the evening husband told wife that he would be back, but he did not return. Instead he began living with an elderly woman. Both he and this woman had a paid caretaker who testified that she once overheard a telephone conversation where wife swore at husband, threatened to rip up two of his checks and sell his house. Wife denied such a conversation, but admitted swearing at him when he refused to come back to live with her or to give her some money.

Wife sold the home in April 1985. She testified that she told husband that she would not sell it if he would come back and live with her. When she sold the home wife testified that on the advice of her attorney she signed the deed as a single person. She used all but $13 of the $11,900 proceeds from the sale to pay the parties' outstanding debts.

After wife sold the house she lived with her ex-husband for fifteen months. She testified that she did so because she had no other place to go. They did not have a sexual relationship and she worked to pay for her food. By the time of the court trial, though, she was living with a daughter.

Wife brought suit seeking a decree of separate maintenance and a reasonable amount of money for support. Husband counterclaimed for a divorce on the grounds of extreme mental cruelty and irreconcilable differences. The trial court concluded that wife was entitled to a decree of separate maintenance on the grounds of extreme cruelty and willful desertion. The court found that wife's actions toward husband did not constitute extreme cruelty and dismissed his counterclaim. Husband contends that the trial court erred in not granting him an absolute divorce on the grounds of extreme cruelty.

Extreme cruelty is defined as "the infliction of grievous bodily injury or grievous mental suffering upon the other, by one party to the marriage." SDCL 25-4-4, 25-4-2. In a marital setting, the definition of extreme cruelty differs according to the personalities of the parties involved. Brandsma v. Brandsma, 318 N.W.2d 318 (S.D.1982).

What might be acceptable and even commonplace in the relationship between rather stolid individuals could well be extraordinary and highly unacceptable in the lives of more sensitive or high-strung husbands and wives. Family traditions, ethnic and religious backgrounds, local customs and standards and other cultural differences all come into play when trying to determine what should fall within the parameters of a workable marital relationship and what will not.

Pochop v. Pochop, 89 S.D. 466, 467-68, 233 N.W.2d 806, 807 (1975). "We must view the evidence in light of the full context of the marriage and not in light of isolated incidents." Rykhus v. Rykhus, 319 N.W.2d 167 (S.D.1982). Consequently, the factual conditions that this court has reviewed to determine whether extreme cruelty existed in a marital setting have been widely varied. Compare Pochop, supra; Palmer v. Palmer, 281 N.W.2d 263 (S.D.1979); Rhykus, supra; Gassman v. Gassman, 296 N.W.2d 518 (S.D.1980).

In addition, in Pochop, supra, we outlined the framework for appellate review of cases where extreme cruelty is at issue:

An appeals court is in a position quite removed from the personalities and the setting of the marriage under attack and must necessarily rely on the judgment of the trial judge who has the benefit of hearing and seeing the principal parties, the children, the neighbors and other witnesses and who knows [sic] the local standards far better usually than can the members of this court. We have recently again said that:

"In cases tried to the court without a jury, findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity the trial court had to judge the credibility of the witnesses." Masek v. Masek, 1975, 89 S.D. 62, 228 N.W.2d 334.

89 S.D. at 467-68, 233 N.W.2d at 807.

In this case we defer to the judgment of the trial court for two reasons. First, husband had great difficulty in testifying and, from our review of the cold record, limited ability to answer the questions asked. Therefore, the trial court allowed wide latitude in questioning husband and the trial court's assessment of credibility and demeanor takes on greater importance. See Pochop, supra.

The second reason why we defer to the trial court in this case is that virtually all of the trial testimony was controverted. Husband testified below and now argues that four basic facts support a finding of extreme cruelty: Wife lived with another man while being married to husband; wife sold all of his property without his knowledge or consent; all contacts with wife in the past five years resulted in arguments which increased his seizure activity; and, wife's only interest in husband is for his money.

Wife, however, disputed these claims or the circumstances surrounding them. Husband, she claimed, gave away part of his property prior to entering the nursing home. She was forced to sell their home after husband began living with the other woman, refused to live with wife, and their joint debts needed payment. Husband's refusal to return to her coupled with her limited earning capacity forced the living arrangements with her ex-husband. She disputed husband's claim that all their contact resulted in arguments and testified that she would willingly live with husband if he would return.

Where findings of the trial court are based on conflicting testimony, as they are in this case, we will not disturb them on appeal. Matter of Estate of Joseph, 304 N.W.2d 419 (S.D.1981). Therefore, having thoroughly reviewed the record in light of our prior holdings on the topic, we cannot say that the trial court was clearly erroneous in finding that wife's actions did not constitute extreme cruelty. Pochop, supra.

The judgment is affirmed.

MORGAN, SABERS and MILLER, JJ., concur.

HENDERSON, J., dissents.

HENDERSON, Justice (dissenting).

Defendant-appellant (Paul) is entitled to meaningful review from this Court. This case is a miscarriage of justice, in my opinion, and I cannot join the majority opinion nor bless the decision of the trial court.

First of all, the trial court's findings and conclusions basing a decree of separate maintenance are bottomed on extreme cruelty and willful desertion. Plaintiff-appellee wife never pleaded willful desertion. She was not before the court on willful desertion. No issue was framed on willful desertion upon which the trial court could predicate a holding for a decree of separate maintenance on the grounds of willful desertion. ¹ On that ground alone, the judgment should be reversed.

As for granting a divorce against Paul, under the state of this record, it appears to be unfounded in fact; rather, the record suggests that Paul is entitled to a divorce on the grounds of extreme cruelty. There is testimony by Paul to establish that wife used profanity against Paul (she admitted this under oath, Trial Transcript, at 78) and it is corroborated by other testimony in the record; wife placed Paul in the nursing home and then took up residency with her ex-husband. ² Yet, incredibly, she then maintains that Paul deserted her. Having placed her ill, elderly husband for four years in the nursing home circa 1979 against his will, wife proceeded to sell his tools, his home, and his vehicle. Trial Transcript, at 21, reveals questioning of Paul through adverse examination:

Q: --why else? What other...