Schwab v. Schwab

• Decision Date: 10 February 1993
• Docket Number: No. 17990,17990
• Citation: 505 N.W.2d 752
• Parties: Shirley SCHWAB, Plaintiff and Appellee, v. William G. SCHWAB, Defendant and Appellant. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 752

505 N.W.2d 752

Shirley SCHWAB, Plaintiff and Appellee, v. William G. SCHWAB, Defendant and Appellant.

No. 17990.

Supreme Court of South Dakota.

Considered on Briefs Feb. 10, 1993.

Decided Aug. 25, 1993.

Thomas P. Tonner of Tonner, Tobin & King, Aberdeen, for plaintiff and appellee.

Drew C. Johnson of Maloney, Kolker, Fritz, Hogan & Johnson, Aberdeen, for defendant and appellant.

WUEST, Justice.

William G. Schwab (William) appeals a judgment and decree of divorce from Shirley Schwab (Shirley). We affirm in part and reverse and remand in part.

FACTS

The parties were married in 1971. Three children were born during the marriage. The oldest has reached the age of majority. The remaining two children are ages fourteen and eleven.

At the beginning of the marriage, the parties lived and worked in Minneapolis, Minnesota. As they began having children, they moved to South Dakota to raise their children. They put in long hours caring for the family and developing a restaurant and bar business. While Shirley worked primarily in the home, she also provided child care, kept books for the businesses and performed day care services for additional income.

In 1982, the family moved to Missouri where William had secured employment with a frozen food company. Shirley continued to care for the children and performing day care services. In 1984, William injured his back when a gust of wind swung the door of his delivery truck against his spine. He was required to undergo surgery and the family moved to Aberdeen, South Dakota.

William's back surgery failed to enable him to return to work. Eventually, he obtained total disability status with his workers' compensation carrier and with social security. At that time, William received a lump sum settlement of approximately $30,000. Half of the settlement was designated for future medical expenses.

After William's disability and the parties' return to South Dakota, Shirley started work outside the home, operating her own cleaning service.

William's injury seemed to change his personality and, as time went on, he became difficult to live with. He became lethargic and "ornery," occupying his time with hunting, fishing and golf. As a result, the parties experienced a strain in their marital relationship. Eventually, Shirley sued for divorce. After trial, the court entered its findings of fact, conclusions of law and decree of divorce. The decree granted Shirley an absolute divorce from William, divided the marital property, awarded custody of the minor children to Shirley and set William's visitation rights and child support obligations. William appeals.

ISSUE ONE

DID THE TRIAL COURT ABUSE ITS DISCRETION IN AWARDING ALIMONY

TO SHIRLEY AND IN DENYING WILLIAM'S REQUEST FOR ALIMONY?

The divorce decree requires William to maintain health insurance on the entire family through his former employer. The coverage is to be extended to Shirley. William is able to procure the insurance at a monthly cost of $328. He contends this constitutes an indirect award of alimony to Shirley and that the award was an abuse of the trial court's discretion.

'The amount and length of alimony payments is ... left to the discretion of the trial court.' This court will not disturb an award of alimony unless it clearly appears that the trial court abused its discretion. In awarding alimony, the trial court must consider the following factors: 'the length of the marriage, the respective earning capacity of the parties; their respective financial condition after the property division; their respective age, health and physical condition; their station in life or social standing; and the relative fault in the termination of the marriage.'

Studt v. Studt, 443 N.W.2d 639, 643 (S.D.1989) (citations omitted).

In this instance, the parties were married for twenty-one years. Both parties have a high school education and little other training or technical experience. Although William has been declared disabled and unable to work for purposes of workers' compensation and social security, he does receive monthly disability benefits of $1,680 per month. $453 of that amount is paid directly to Shirley for the benefit of the minor children. This leaves William with an income of $1,227 per month. Shirley's 1991 adjusted gross income from her cleaning business was $874 per month.

Shirley was awarded the parties' marital home, subject to the debt thereon, leaving her with an equity of $10,900. Shirley was also awarded $5,281 in personal property, her cleaning business and a car, both of which the trial court found had no value. William was awarded a boat and three vehicles with an equity of $5,745, $3,040 in personal property and required to pay medical bills totaling $1,350.

Shirley is forty-two years of age and William is forty-six. Although William is totally disabled, there is no evidence of any physical infirmity or ill health on Shirley's part. The trial court specifically found that, "both parties have about the same education and station in life and social standing." Finally, with regard the parties' relative fault in the termination of the marriage, the trial court found:

Shirley testified that after William was injured, his personality changed, and he became difficult to live with; he became lethargic; he became ornery and that this conduct added together made it impossible to live with him. Shirley is entitled to a divorce under mental cruelty. Shirley also testified that William had on at least two occasions physically accosted her and that on at least three occasions Shirley had to step between William and the children for fear of physical retribution to the children.

* * * * * *

William has counterclaimed on the grounds of sexual abandonment, and that claim is denied.

William argues that application of the foregoing factors establishes his entitlement to alimony from Shirley rather than the result reached by the trial court. In support of his argument, William asserts that, because of his disability, he has no capacity to earn a living and that Shirley was awarded the only income producing property, i.e., the cleaning business.

Despite the fact that William is disabled, he does have an income, i.e., $1,227 per month in disability benefits. Moreover, this court has never considered an alimony obligor's disability, in and of itself, sufficient cause to terminate an alimony obligation. See, e.g., Paradeis v. Paradeis, 461 N.W.2d 135 (S.D.1990); Lampert v. Lampert, 388 N.W.2d 899 (S.D.1986); Herndon v. Herndon, 305 N.W.2d 917 (S.D.1981). The inquiry in such cases is the effect the illness or inability to work has on the financial ability of the obligor to pay. See, Id.

Here, William's disability has little effect on his financial ability to provide health insurance for Shirley. Under the child support provisions of the divorce decree, he would be required to provide health insurance for the children in any event. Shirley gave unrefuted trial testimony that William's insurance is a family policy and there is no change in cost whether two or twenty-two family members are carried on the policy. Thus, William is able to provide the health insurance for Shirley, suffering no financial detriment to himself but at a great financial benefit to her. We find no abuse of discretion.

William's contention concerning the award of income producing property to Shirley is meritless. Neither party in this case was awarded income producing property of any significance. Shirley was awarded her cleaning business. However, the only significant asset of the business, other than Shirley herself, is a cleaning contract with a local church. The contract is unassignable. Therefore, even had the business been awarded to William, it would have been valueless in the absence of Shirley.

William also argues that Shirley was at fault in the termination of the marriage for withholding marital relations and that this factor requires that Shirley pay him alimony. In Brown v. Brown, 47 S.D. 168, 197 N.W. 153 (1924), this court found that although the wife had refused to sleep with her husband, she was entitled to a divorce when it was the husband's actions that had led to the refusal of marital relations. The same is true in the instant case. The trial court found William at fault in the termination of the marriage because he had become difficult, lethargic, ornery and impossible to live with. Although Shirley never specifically identified this as the reason for curtailing marital relations, it is clearly a reasonable inference. Thus, contrary to William's assertions, the element of fault in this case does not support an award of alimony to William.

ISSUE TWO

DID THE TRIAL COURT ABUSE ITS DISCRETION IN DIVIDING THE

MARITAL PROPERTY?

"A trial court has broad discretion with respect to property division and we will not set aside its judgment unless a clear abuse of discretion is shown." Studt, 443 N.W.2d at 642. William asserts the trial court abused its discretion in the property division by inaccurately valuing the marital assets. We disagree.

This court has previously held that '[e]xactitude is not required of the trial court in the valuation of assets in a dissolution proceeding; it is only necessary that the value arrived at lies within a reasonable range of figures.' The only time this court will interfere with a trial court's valuations is when they are clearly erroneous or where assets are completely overlooked by said court. In the absence of a stipulation as to the value of marital assets, the parties must 'produce hard evidence as to those values other than their own personal opinions.' The trial court, however, is not required to accept either party's proposed valuation.

Studt, 443 N.W.2d at 641 (citations omitted).

No "hard evidence" of property values was submitted by either party. The trial court was free to accept or reject either parties' proposed valuations. See, Studt, supra. The trial court specifically...