Taylor v. Taylor, #28550

• Court: Supreme Court of South Dakota
• Writing for the Court: JENSEN, Justice
• Citation: 928 N.W.2d 458
• Parties: Bruce Jerome TAYLOR, Plaintiff and Appellant, v. Kathleen Faye TAYLOR, Defendant and Appellee.
• Docket Number: #28550
• Decision Date: 15 May 2019

928 N.W.2d 458

Bruce Jerome TAYLOR, Plaintiff and Appellant,
v.
Kathleen Faye TAYLOR, Defendant and Appellee.

#28550

Supreme Court of South Dakota.

CONSIDERED ON BRIEFS ON FEBRUARY 19, 2019
OPINION FILED May 15, 2019

DANIEL J. NICHOLS of Nichols & Rabuck, P.C., Sioux Falls, South Dakota, Attorneys for plaintiff and appellant.

RHONDA C. LOCKWOOD of Lockwood & Zahrbock-Kool Law Office, P.C., Sioux Falls, South Dakota, Attorneys for defendant and appellee.

JENSEN, Justice

¶1.] Bruce Taylor appeals the circuit court’s division of marital property and the awards of spousal support and attorney fees to Kathleen Taylor in an action for divorce. Bruce also appeals contempt orders levied against him in the proceedings. We affirm in part, reverse in part, and remand.

Facts & Procedural History

[¶2.] Bruce and Kathleen were married on June 6, 1987, and were both fifty-four years old at the time of trial. Two children were born during the marriage. The parties had ongoing health problems, but both were working. Bruce initially worked as a carpenter before starting a home construction business, Taylor Made Homes. Kathleen worked in administrative positions for a Sioux Falls television station and later at a bank. At trial, the court found Bruce was earning $15,000 and Kathleen was earning $44,000, annually. The parties’ marital assets exceeded $1,000,000 and included a home and over $500,000 in retirement and savings accounts.

[¶3.] The parties agreed that the marriage began to deteriorate in 2000. Sometime in 2013, Bruce began an affair with another woman. In March 2014, Bruce suffered a stroke. After being released from the hospital, Bruce left the marital home and moved in with his paramour. Bruce filed for divorce on May 27, 2014. After the separation, Kathleen began working more hours at her job. Initially, Bruce paid Kathleen $2,000 monthly, but later stopped providing support.

[¶4.] In August 2014, Kathleen served Bruce with interrogatories and requests for production of documents. Kathleen also made repeated requests for a valuation of Taylor Made Homes and an identification and valuation of personal property in Bruce’s possession. Kathleen filed a motion to compel discovery after Bruce failed to answer discovery for eleven months. Kathleen also motioned for appraisals of Taylor Made Homes and Bruce’s personal property,

[928 N.W.2d 463

as well as temporary child support and spousal support. After the motions were filed, Bruce’s first attorney moved to withdraw indicating that Bruce was "unresponsive to repeated requests for information and assistance on this case."

¶5.] A hearing was held September 14, 2015, and Bruce’s attorney was permitted to withdraw. Bruce failed to appear or otherwise respond to Kathleen’s motions. The circuit court granted Kathleen’s motion to compel and ordered Bruce to obtain appraisals of the personal property and the business. Kathleen presented an affidavit in support of her motion for support, showing that she had paid over $150,000¹ in marital expenses during 2014 and 2015, while Bruce had only paid $17,000 over that same time. She also presented evidence that Bruce had received $100,000 in death benefits from his mother’s life insurance policy and would eventually inherit more than $1,000,000. Kathleen claimed she had insufficient income to pay necessary expenses and did not have knowledge of Bruce’s income. She requested monthly child support of $1,000 and monthly spousal support of $2,000. The court orally granted both motions. The written order signed by the court differed from the oral order, requiring that Bruce pay $3,000 for spousal support rather than $2,000. A trial was scheduled for December 4, 2015.

[¶6.] Bruce appeared at the time set for trial, without counsel. He explained that he was unaware of the first hearing and was in the process of retaining an attorney. The court granted Bruce’s request to continue the trial but found Bruce in contempt of the court’s prior orders, including the order for interim support. Bruce was ordered to comply with the orders. The court also advised Bruce that if he failed to obtain appraisals consistent with the orders, the court would accept Kathleen’s valuations. The written order reiterated this admonition.

[¶7.] In March 2016, Kathleen brought a second motion for contempt alleging Bruce had failed to pay interim support and comply with the other pretrial orders. That same month, Bruce’s second attorney moved for, and was granted, permission to withdraw. At the hearing on Kathleen’s motion, Bruce appeared and claimed that he was unable to pay the support obligations but failed to provide any financial information to the court. Bruce claimed he had not filed tax returns for the last several years and did not have the money to hire an accountant to prepare the past tax returns. Kathleen disputed this claim. She reiterated that Bruce had received $100,000 in life insurance benefits following his mother’s death, but had made other purchases with this money, rather than pay support. The court again found Bruce in contempt and ordered that Bruce could purge the contempt by selling the recently purchased property so that he could pay an accountant to complete his taxes. The court also ordered Bruce to return several items of marital property to Kathleen. The court scheduled a trial date for September 8, 2016.

[¶8.] In July 2016, Bruce retained a third attorney and moved the court to reconsider interim support. He also sought to continue the September trial date. Bruce submitted an affidavit claiming that health complications following his stroke limited his ability to work and he was unable to pay Kathleen support. However, he provided no documentation showing his earnings. The affidavit also claimed that Kathleen did not need support because she

[928 N.W.2d 464

had access to marital funds in the parties’ savings and retirement accounts. Despite his failure to comply with the prior contempt order to sell certain property, Bruce claimed he needed to access marital funds to pay for the preparation of the prior years’ tax returns and the appraisals. Following the hearing, the court maintained the September trial date to consider the issues of grounds for the divorce and child custody but rescheduled the issues of support and property division for trial on November 29. The court deferred ruling on Bruce’s motions to access the marital funds and for relief from the support and contempt orders.

¶9.] On September 30, Bruce again requested the court reconsider interim support and contempt orders. At this time, he filed a supplemental affidavit, along with completed individual tax returns for the years 2014 and 2015, showing earnings of just over $15,000 each year. At a hearing on October 13, the court permitted Bruce and Kathleen to each withdraw $20,000 from the marital savings account. Only Bruce withdrew $20,000. The court reserved ruling on the interim support and contempt issues until trial.

[¶10.] The weekend before trial, Bruce provided Kathleen with completed tax returns for the years 2009 through 2013 and an appraisal of his personal property. Evidence at trial showed Bruce failed to list or appraise several items of personal property. Bruce also admitted he failed to appraise Taylor Made Homes because he believed the business had no value.

[¶11.] At trial, Bruce testified he did not have sufficient income to pay interim or permanent spousal support. He presented evidence that he had given Kathleen over $35,000 since the separation but admitted no support had been paid for over a year. Bruce also admitted he had failed to return items of personal property to Kathleen as ordered by the court. Bruce testified that he sold a tractor in compliance with a court’s second contempt order but used the money to pay his attorney fees and repair his truck rather than hire an accountant as ordered.

[¶12.] Shortly after trial, the court granted a divorce, finding Bruce at fault due to extreme cruelty. The decree also resolved the child custody issues, but reserved ruling on the other unresolved issues. On June 7, 2017, the court filed a memorandum decision resolving the remaining issues. The court divided the marital property, awarding net assets valued at $661,666 to Kathleen and $463,957 to Bruce. The court calculated child support under the guidelines and ordered Bruce to pay $244 monthly. Consistent with these calculations, the court also reconsidered the interim child support order, determining that Bruce owed $12,544 in back child support. The court did not reconsider the interim spousal support order, calculating the $3,000 monthly interim support order through the date of the court’s ruling. The court deducted the $35,470 Bruce had paid to Kathleen and determined that Bruce owed $28,530 for back support under the interim order.² The court also ordered Bruce to pay monthly spousal support of $1,000 for five years and an unspecified amount of attorney fees to Kathleen.

[¶13.] Bruce raises several issues on appeal which we consolidate as follows:

1. Whether the circuit court abused its discretion in dividing the assets.

2. Whether the circuit court abused its discretion in determining issues of child support and spousal support.

[928 N.W.2d 465

3. Whether the circuit court erred in finding Bruce in contempt of court.

4. Whether the circuit court’s award of attorney fees to Kathleen was an abuse of discretion.

Standard of Review ...