Wallahan v. Wallahan, 12522

Decision Date26 September 1979
Docket NumberNo. 12522,12522
PartiesMary Jane WALLAHAN, Plaintiff and Respondent, v. Franklin J. WALLAHAN, Defendant and Appellant.
CourtSouth Dakota Supreme Court

Fred M. Winkler of Lynn, Jackson, Shultz, Ireland & Lebrun, Rapid City, Curtis D. Ireland of Lynn, Jackson, Shultz, Ireland & Lebrun, Rapid City, on brief, for plaintiff and respondent.

Ronald W. Banks of Nelson, Harding, Banks, Fitzgerald & Johnson, Rapid City, William G. Porter of Costello, Porter, Hill, Nelson, Heisterkamp & Bushnell, Rapid City, on brief, for defendant and appellant.

HALL, Circuit Judge.

The defendant, Franklin J. Wallahan, has appealed from the portion of the judgment of the circuit court regarding child support, alimony, property division and attorneys' fees in this divorce action. We affirm that judgment and remand the case to the trial court for a determination of plaintiff's request for allowance of attorneys' fees incurred in defending this appeal.

The parties were married in June of 1956 and at the time of trial each was forty -three years old, in good health, 1 and had been married for twenty-one years. Plaintiff, Mary Jane Wallahan, is a registered nurse with a degree in nursing and defendant is a lawyer. Plaintiff had been employed as a registered nurse in Omaha, Nebraska, for approximately one year prior to the marriage. Defendant, at the time of the marriage, was working at the stockyards in the daytime and at a service station in the evenings. Neither party then had any property, except that defendant owned a DeSoto automobile and each of the parties had a few dollars cash.

In the fall of 1956 the parties moved to Vermillion so that defendant could resume his college studies. He had previously attended college for one quarter, but his education was interrupted by a tour in the Armed Forces. During the time between the fall of 1956, when defendant reentered college, and June of 1961, when he was awarded his law degree, plaintiff supported defendant and herself through her employment as a registered nurse at hospitals in Yankton and Vermillion. Plaintiff provided income not only for the household expenses but also for some of defendant's educational expenses. Defendant was able to pay part of his college expenses through the G.I. Bill, but these benefits ran out in 1959.

After defendant's graduation from law school, the parties moved to Minneapolis, Minnesota. Defendant was employed for one year as a law clerk for a Minnesota judge and became associated with a Minneapolis law firm upon the completion of his one-year clerkship. While the parties were living in Minneapolis plaintiff gave birth to the parties' second child, a daughter, born March 21, 1962. The first daughter was born on April 5, 1958, while the parties were still living in Vermillion. The third child, a son, was born on November 28, 1964, in Rapid City.

Although plaintiff did not work during her pregnancy in Minneapolis, she did return to work on a part-time basis after the second child was five months old, and she worked on a full-time basis for the last two months the parties lived in Minneapolis.

The parties moved to Rapid City, South Dakota, during the summer of 1963, and defendant has been practicing law there since that time. At the time of this move they had not achieved any significant accumulation of property. After the parties moved to Rapid City, plaintiff discontinued her employment as a registered nurse and has not been gainfully employed outside the home since 1963. This termination of her employment was by a mutual agreement of the parties and due to the fact that there were two small children to be cared for.

The move to Rapid City proved to be the turning point in defendant's financial affairs. It is undisputed that defendant worked very hard and that he was ambitious, capable and successful in his law practice. The parties' assets were all accumulated during the twenty-one years that the parties were married and can be attributed mainly to defendant's hard work and prudent investment.

Plaintiff contributed to the success of the family and accumulation of property by being a good mother and housekeeper and by assisting defendant in the social obligations of a lawyer and politician. She also made a substantial monetary contribution by financing defendant's education.

The trial court found that the adjusted gross income of defendant from 1972 through 1976 was as follows:

                1972 .. $154,857.62
                1973 .. $101,159.20
                1974 .. $ 73,695.04
                1975 .. $119,709.60
                1976 .. $102,938.12

The parties stipulated to the values of nearly all their assets, and the trial court determined that defendant's net worth was $437,564.00. The trial court awarded plaintiff $194,861.26 in cash and other assets. 2

Defendant was awarded all the remaining property.

Custody of the two minor children was granted to plaintiff with child support in the amount of $500.00 per month for each, such child support to continue for each child until that child is eighteen or otherwise becomes emancipated. Prior to the time this appeal was argued the youngest child was, by agreement of the parties, transferred to the custody of defendant and the child support payment for this child was discontinued. The child for whom support payments are being made will be eighteen in March of 1980, and the payments will then terminate.

Plaintiff was granted alimony in the sum of $700.00 per month until either party dies or until plaintiff remarries.

The trial court awarded plaintiff attorneys' fees of $5,500.00, plus sales tax at the rate of 5.5%, and her costs of $1,377.71.

Finally, the trial court allowed plaintiff to remain the owner of term life insurance policies in the amount of $300,000.00 on the life of defendant. The court left it up to plaintiff to decide whether she will maintain these policies in force at her expense or transfer them to defendant.

After a one-day trial, counsel submitted briefs and the trial court thereafter filed a memorandum opinion directing plaintiff's counsel to prepare findings of fact and conclusions of law consistent therewith. The court refused the fifty-one findings of fact proposed by defendant and adopted those proposed by plaintiff.

Defendant's appeal presents eighty-one assignments of error, which can be condensed into the following issues:

1. Whether the trial court's findings of fact are insufficient to support the alimony allowance;

2. Whether the trial court failed to fully consider federal income tax consequences in making the property division and alimony award;

3. Whether the trial court committed prejudicial error by not reducing the values of three Keogh retirement funds to their "present value" to determine defendant's net worth;

4. Whether the division of property and the alimony award are clearly erroneous and an abuse of the trial court's discretion;

5. Whether the child support allowance is clearly erroneous and an abuse of the trial court's discretion;

6. Whether the award to plaintiff of $300,000.00 term life insurance on defendant's life is clearly erroneous and an abuse of the trial court's discretion;

7. Whether the award of attorneys' fees to plaintiff is clearly erroneous and an abuse of the trial court's discretion.

In making an award of alimony and an equitable division of property the trial court must consider the duration of the marriage, the ages of the parties, their state of health and their competency to earn a living, the value and income-producing capacity of the property of each party, and the contribution of each party to the accumulation of the property. Lien v. Lien,278 N.W.2d 436 (S.D.1979); Kittelson v. Kittelson, 272 N.W.2d 86 (S.D.1978); Kressly v. Kressly, 77 S.D. 143, 87 N.W.2d 601 (1958). Defendant contends that the trial court failed to make findings of fact with regard to plaintiff's earning capacity and her contribution to the accumulation of the property and that consequently, the alimony award and property division must fail.

Findings of fact should consist of ultimate facts rather than evidentiary facts. Riley v. Jorgenson, 35 S.D. 91, 150 N.W. 771 (1915); Davison v. Kellar, 35 S.D. 285, 152 N.W. 106 (1915); Tschetter v. Ray, 28 S.D. 604, 134 N.W. 796 (1912); Smith v. Cleaver, 25 S.D. 351, 126 N.W. 589 (1910). "It is not necessary or proper in a finding to state the evidentiary or probative facts upon which the ultimate facts stated in the findings are based." Riley v. Jorgenson, 35 S.D. at 93, 150 N.W. at 772. Defendant's proposed findings of fact are lengthy and detailed and consist almost entirely of evidentiary, rather than ultimate facts. The trial court properly refused to adopt them. On the other hand, plaintiff's findings of fact, adopted by the trial court, consist of statements of ultimate fact which adequately cover all the required factors. We are satisfied that the trial court considered each of the necessary factors and that no significant deficiency exists in the findings.

Defendant contends the trial court erred in making the property division and alimony award without recognizing the resulting federal tax ramifications and defendant's contingent liabilities. More specifically, defendant claims that (1) the court did not give full consideration to the imposition of capital gains tax which will arise from the court's order that plaintiff be awarded the parties' residence; (2) the court did not consider the availability to plaintiff of social security benefits; and (3) the court did not consider defendant's contingent liabilities of $384,000.00 in apportioning the property between the parties.

The trial court in its Memorandum Decision stated "the taxation problem is involved and . . . deserves careful consideration by this court in order to preserve the assets of the parties," and in Finding of Fact No. X stated:

The Court finds that the property transfer which will, all things considered, result in the least immediate...

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