Wall v. Wall
| Decision Date | 30 December 1977 |
| Docket Number | No. 12059,12059 |
| Parties | Helena WALL, Plaintiff and Appellant, v. Lloyd WALL, Defendant and Respondent. |
| Court | South Dakota Supreme Court |
John S. Lovald, of Maher & Lovald, Pierre, for plaintiff and appellant.
Carlyle E. Richards, Aberdeen, for defendant and respondent.
This is an appeal from a judgment of the circuit court granting plaintiff-appellant, Helena Wall, a divorce from defendant-respondent, Lloyd Wall, upon the grounds of extreme mental cruelty. Helena Wall appeals from the division of property and alimony provisions of the judgment. We affirm.
Helena and Lloyd Wall were married August 21, 1970, at Redfield, South Dakota. Helena Wall had been married twice before, and three sons from a previous marriage lived with her. Lloyd Wall had been married once before.
Just prior to their marriage, Lloyd deeded a quarter section of land near Cresbard, South Dakota, to Helena. At the time of the marriage she had $3,000.00 left from a $13,000.00 property settlement given to her by her second husband. She was employed as a cleaning lady, waitress, and kitchen worker at a bowling alley and several restaurants in Redfield. The marriage of Lloyd and Helena was marked by discord and the commencement and dismissal of two divorce actions by Helena. In August, 1973, they entered into a written agreement to live apart for a period of two years. Pursuant to the terms of that agreement Lloyd paid Helena $8,000.00, which was apparently to be applied to pay expenses Helena had incurred in living apart from Lloyd during periods prior to August, 1973. Under the agreement Lloyd conveyed to Helena a quarter section of land near Ipswich, South Dakota, and also paid Helena $450.00 per month for a period of two years to apply on Helena's living expenses in Chicago. For her part, Helena agreed to relinquish any homestead rights she had in the quarter section of land in Faulk County, South Dakota, where Lloyd lived and where the parties had resided during the time they were living together.
When the two-year agreement to live apart expired in August, 1975, Helena returned from Chicago to live with Lloyd in Faulkton. Shortly thereafter she commenced the divorce action from which this appeal arises. On July 20, 1976, the trial court granted Helena a divorce upon the ground of extreme mental cruelty; awarded her $2,400.00 alimony, to be paid in monthly installments of $200.00 for a period of twelve months commencing August 1, 1976; and ordered Lloyd to pay $500.00 on her attorney fees and $1,021.75 for certain doctor and medical bills she had incurred, which were not covered by her insurance.
The issues presented to us on appeal are:
Issue One Did the trial court abuse its discretion, to the detriment of the wife, in the division of the property and in the alimony provisions adjudged?
Issue Two Was the property division or alimony award based upon matters outside the record, which the trial court improperly considered, to the detriment of the wife?
The previous decisions of this court have held that the trial court has broad discretion in the division of property in a divorce action. Pochop v. Pochop, S.D., 233 N.W.2d 806 (1975); and Plageman v. Plageman, 79 S.D. 221, 110 N.W.2d 337 (1961). When dividing the money or property of the parties the trial court must make a fair and just award considering all of the material factors. Kressly v. Kressly, 77 S.D. 143, 87 N.W.2d 601 (1958). 1 The principal factors to be considered by the court in making an equitable division of the property are as follows:
Tyler v. Tyler, S.D., 233 N.W.2d 804, 805 (1975).
In order to review the distribution of the property in the present case we will apply the factors listed above to the facts before us.
Duration of the marriage Helena and Lloyd were married August 21, 1970, and the divorce was granted July 20, 1976. During that time they only lived together about fifteen months. No children were born of the marriage.
Value of the property of each The trial court found that at the time of the trial Lloyd had accumulated the following property:
1. One quarter section of land
in Faulk County, South Dakota
($275.00 per acre) $ 44,000.00 2
2. Equity in house in St. Paul
Minn. 15,000.00
3. Fifty cows with calves 17,500.00
4. Farm machinery 11,300.00
5. 5,000 bushels of grain
($1.70 per bushel) 8,500.00
6. Life insurance policy (cash
value) 2,500.00
7. Cash 5,000.00
8. Miscellaneous (1966 automobile
and 1967 pickup) 2,500.00
-----------------
Total $106,300.00
Lloyd deeded 720 acres of land in Faulk County to his brother, without consideration, in 1973. The trial court found that Lloyd receives the income from the 720 acres of land, but did not find as to the amount received. 3 Lloyd also testified that he receives $400.00 to $500.00 rent per month from his St. Paul property and would be receiving $250.00 per month in social security payments.
The trial court found that at the time of the trial Helena had already received the following property from Lloyd:
1. Two quarter sections of South
Dakota farmland $60,000.00 4
2. $450.00 per month as support
from September 1, 1973, to
August, 1975 10,800.00
3. $300.00 per month as support
from December, 1975, to June
1976 2,100.00
----------------
Total $72,900.00
As noted earlier, at the time of the August, 1973, written agreement between the parties Lloyd paid Helena $8,000.00. The trial court also found that from the time of the marriage of these parties in 1970, until 1974, Lloyd supported Helena's three children by her previous marriage, and that since 1974, Helena has received approximately $75.00 per month child support from a previous husband.
After considering all of the transactions between Lloyd and Helena, the trial court made the following award to Helena:
1. $200.00 per month alimony for
a period of 12 months
commencing August 1, 1976 $2,400.00
2 Payment of Helena's medical
bills and charges not covered
by insurance 1,021.75
3. Payment on Helena's attorney
fees 500.00
---------
Total $3,921.75
Therefore, the total amount of money and property received by Helena from Lloyd, including the award of the trial court in the divorce action, is $84,821.75.
Ages, health, and competency of each to earn Helena is 45 years old, and Lloyd is 47. Both parties are disabled. The trial court found that Helena suffers from a neck and back injury, 5 but lacks two quarters for the purpose of applying for social security disability payments, and Lloyd is totally, permanently disabled by reason of multiple sclerosis and qualifies for $250.00 per month in social security benefits.
In May, 1976, Helena transferred the two quarter sections of land, which Lloyd had given her, to her sons. She receives approximately $2,220.00 net income per year from that land.
Contribution of each to the accumulation of property The trial court found that most of Lloyd's property was accumulated by him prior to his marriage to Helena, and Helena concedes in her brief that there is no dispute over the fact that little was added in terms of property accumulation during the term of the marriage.
Faults and circumstances leading up to the divorce The trial court found that Lloyd's "conduct toward Helena (had) been such in terms of acts and deeds as to cause (Helena) grievous mental suffering," and granted her an absolute decree of divorce from him for extreme mental cruelty.
Based upon the analysis of the principal factors to be considered in making an equitable division of the property, we conclude that the trial court did not abuse its discretion in the alimony provision and division of property made in this case. Lloyd and Helena actually lived together for only fifteen months. Lloyd had accumulated most of his property prior to the marriage. At the time of the trial he had $106,300.00 in property plus the annual income from the 720 acres of Faulk County land owned by his brother. By the time of trial Lloyd had already given Helena $60,000.00 in land, a lump sum of $8,000.00, plus $12,900.00 in support payments during times they lived apart. Helena at the time of trial was disabled by her neck and back injury, but Lloyd was totally and permanently disabled by multiple sclerosis. In light of these considerations we find that the $3,921.75 award by the trial court to Helena was neither inequitable nor unreasonable. Although the divorce was Lloyd's fault, 6 he had already given Helena such a large amount of financial support that the award to Helena under the judgment was clearly within the sound discretion of the trial court. SDCL 25-4-44. 7
"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 . . . ." Pochop v. Pochop, S.D., 233 N.W.2d 806, 807 (1975). Appellant in the case at bar has failed to demonstrate on the record before us an abuse of discretion...
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