Ver Meer v. Ver Meer

• Decision Date: 29 April 1976
• Docket Number: No. 11536,11536
• Parties: Shirley VER MEER, Plaintiff and Respondent, v. John VER MEER, Jr., Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 571

241 N.W.2d 571

90 S.D. 351

Shirley VER MEER, Plaintiff and Respondent, v. John VER MEER, Jr., Defendant and Appellant.

No. 11536.

Supreme Court of South Dakota.

April 29, 1976.

Sam D. Sechser and Roger A. Schiager, Sioux Falls, for defendant and appellant.

Derald W. Wiehl and John C. Quaintance, May, Johnson & Burke, Sioux Falls, for plaintiff and respondent.

DOBBERPUHL, Circuit Judge.

The Plaintiff and the Defendant were married on July 31, 1949, at Sioux Falls, South Dakota, and were husband and wife until the divorce was granted on April 19, 1974. Four children were born as issue of the marriage, two of the children of legal age and two of the children of ages fifteen and twelve. The trial court found in Number IV of the findings:

'That the wrongful acts committed by Defendant against Plaintiff consisted of degrading the Plaintiff, rejecting the food and meals, accusing the Plaintiff and the children of conspiring against him; and that he denied her funds and told her that the children were her problem.'

Finding Number V of the trial court:

'That the wrongful acts committed by Plaintiff against Defendant for some time prior to the commencement of this action consisted of refusal to properly prepare meals and to maintain the home and living conditions in any semblance of a normal manner of propriety; that Plaintiff spent great amounts of time away from the home, many of which absences were unaccounted for; caused and incurred abnormally heavy long distance telephone bills for calls to relatives and elsewhere; mortgaged the automobiles of the parties without Defendant's knowledge or consent; registered on two occasions at a motel under a fictious (sic) name; allowed abnormal food spoilage in the kitchen; as well as refusing to remove pet excretions from the living areas for abnormal periods of time; all of said acts on the part of the Plaintiff towards the Defendant being greater in weight and degree and, therefore, established that Defendant suffered the greater amount of extreme cruelty.'

On that basis the trial court awarded to the Defendant husband on his cross-complaint a divorce. He also awarded custody of the two minor children to the plaintiff wife and provided for their support, and made a division of property. The court awarded the Plaintiff wife alimony in the sum of One Dollar ($1.00) per year.

When this appeal was taken, the court on a hearing to show cause, brought by the Plaintiff for attorneys' fees, ordered the Defendant to pay attorneys' fees to the Plaintiff's attorneys in the total sum of Seven Hundred and Fifty Dollars ($750.00) for the purpose of making the appeal. Defendant in his appeal presents five assignments of error. Number One: Did the Court err in requiring the Defendant to pay alimony in the sum of One Dollar ($1.00) per year to the Plaintiff wife when the Defendant husband had been awarded the decree of divorce from the Plaintiff based upon extreme cruelty and conduct by the Plaintiff towards the husband? The answer to that question is found in SDCL 25--4--41:

'Where a divorce is granted for an offense of the husband, the court may compel him to provide for the maintenance of the children of the marriage, and to make such suitable allowance to the wife for her support during her life or for a shorter period, as the court may deem just, having regard to the circumstances of the parties represented; and the court may from time to time modify its orders in these respects.'

This Court dealt with this statute in Bernard v. Barnard, 1952, 74 S.D. 449, 54 N.W.2d 351; in that case a divorce to the husband by the Court because of extreme cruelty of the wife. Pursuant to a stipulation, the husband agreed to pay the wife Eighty Dollars ($80.00) per month for her support and the Court ordered the husband to pay that Eighty Dollars ($80.00) to the wife. Three years later, the husband brought an Order to Show Cause seeking to have the judgment by the Court modified by striking the support payment. The Court, acting upon the request, modified the judgment to a payment of Sixty Dollars ($60.00) per month, but did not strike the payment in its entirety. The husband appealed and this Court held that alimony is statutory in origin and authority for such allowance is granted when the divorce is for the offense of the husband, and the Court does not have equitable powers for granting alimony. The...