Wilson v. Wilson, 15133

• Decision Date: 23 April 1986
• Docket Number: No. 15133,15133
• Citation: 399 N.W.2d 890
• Parties: Thomas O. WILSON, Plaintiff and Appellant, v. Delphia A. WILSON, Defendant and Appellee. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 890

399 N.W.2d 890

Thomas O. WILSON, Plaintiff and Appellant, v. Delphia A. WILSON, Defendant and Appellee.

No. 15133.

Supreme Court of South Dakota.

Considered on Briefs April 23, 1986.

Decided Jan. 21, 1987.

George J. Rice of Rice & Bowen, Aberdeen, for plaintiff and appellant.

Lonald L. Gellhaus of Williams & Gellhaus, Aberdeen, for defendant and appellee.

SABERS, Justice.

Thomas O. Wilson (husband) appeals from an order denying his motion to reduce the amount of alimony he is required to pay Delphia Wilson (wife) pursuant to their judgment and decree of divorce. We affirm.

1. FACTS

Husband and wife were divorced in 1980 after twelve years of marriage. Wife was granted the divorce because of husband's physical abuse and liaison with a younger woman.

At the time of the divorce, husband, a college graduate, was fifty-eight years old and in good health. He earned $30,000 working for the BIA. Wife, a high school graduate, was fifty-seven years old and suffered from various ailments she controlled by medication. During the marriage she worked in several clerical positions.

Neither party came to the marriage with any assets. They accumulated a net worth of $121,637.65, primarily in rental real estate. The trial court divided the bulk of the personal property and automobiles (approximately $25,000) between the parties. Husband was awarded all of the remaining personal property, bank accounts, and real property subject to any encumbrances of record. He was to pay all marital debts. As part of the property division, wife was awarded $16,000, payable $2,000 plus interest per year. In addition, she was awarded monthly alimony of $595, payable at the rate of $275 every two weeks.

In 1985, husband sought to reduce the alimony award because he had retired. His monthly retirement income was $1,100; his prior monthly income was $1,646. He had recently remarried a woman who received $600 per month retirement income. He had retained and was renting the real estate that he received from the property division, although he had placed the property on the market. Wife contended that she was unemployed and dependent on the alimony award. The trial court denied husband's motion to reduce the amount of alimony.

2. HUSBAND'S CONTENTIONS

Husband contends that 1) the trial court abused its discretion by failing to reduce his alimony payments since his income has been reduced by one-third and his alimony obligation constitutes one-half of his retirement income, and 2) alimony payments should be reduced to one-third of his income in accordance with the alimony/income ratio originally established by the trial court.

3. MODIFICATION OF ALIMONY

To warrant a modification of an alimony award, there must be a change of circumstances. Wegner v. Wegner, 391 N.W.2d 690 (S.D.1986). The burden of proving a change in circumstances sufficient to justify modification of an alimony award is upon the party seeking modification. Rousseau v. Gesinger, 330 N.W.2d 522 (S.D.1983). This court will not disturb the decision of the trial court on a question of alimony absent an abuse of discretion. Moore v. Moore, 354 N.W.2d 732 (S.D.1984).

This court has considered whether a reduction of the obligor spouse's income necessitates a reduction of alimony to the dependent spouse in three recent cases. In Moore, supra, at 733, we affirmed a reduction of alimony payments where the obligor spouse established "sufficient specific facts regarding his reduction of income and other circumstances to support ... changed circumstances" and the dependent spouse failed to contest any of the obligor spouse's claims about his income, her employability or her rental arrangement. In Lambertz v. Lambertz, 375 N.W.2d 645, 647 (S.D.1985), we ordered a reduction of alimony in a case where the obligor spouse's income had been reduced by half and he was financially unable to pay the amount of alimony originally ordered. The trial court, on remand, was ordered to reduce the alimony "based upon the needs of [the dependent spouse] and the financial ability of [the obligor spouse]." Finally, in Lampert v. Lampert, 388 N.W.2d 899 (S.D.1986), illness reduced the obligor spouse's income by forty-one percent. Because the obligor spouse still had sufficient funds to pay the alimony and because the dependent spouse needed the money to meet ordinary expenses, we affirmed the order denying a reduction in alimony.

This situation is similar to Lampert. Husband merely alleged that alimony should be reduced because his income was reduced. There was no showing that he was unable to pay the original alimony award from this reduced income or the income generated from the substantial award of rental property he received in the property division. Nor was there any showing that wife's need for alimony had decreased; indeed, her affidavit recites that she is dependent upon alimony. Without a "complete detailed financial position," Lampert, supra, at 903, relief may not be granted. Standing alone, husband's mere reduction in income does not mandate a reduction in alimony.

In view of all the facts and circumstances of this case we hold that the trial court did not abuse its discretion by denying husband's motion to reduce alimony. Accordingly, we need not reach husband's second contention.

Affirmed.

WUEST, C.J., MORGAN, J., and FOSHEIM, Retired Justice, concur.

HENDERSON, J., dissents.

MILLER, J., not having been a member of the court at the time this action was submitted to the court, did not participate.

HENDERSON, Justice (dissenting).

In the Memorandum Decision of June 18, 1985, and the Order of Denial dated July 31, 1985, the trial court issued a conclusory statement that the plaintiff failed to establish sufficient facts for modification.

Not one place in either the said Memorandum Decision or Order of Denial has the trial court set forth any facts, circumstances, testimony, proofs, or piercing/perceptive viewpoints on the factual background of this case. Thus, the Supreme Court, of necessity, must independently review the proof below which consisted of:

(a) Ex-husband's affidavit in support of his Motion for issuance of an Order to Show Cause to modify alimony,

(b) ex-wife's affidavit, and

(c) the hearing at the order to show cause wherein ex-husband testified and ex-wife did not.

Ex-husband is entitled to a reduction of alimony payments because he has established, in the showings recited above, "sufficient specific facts regarding his reduction of income and other circumstances to support ... changed circumstances." Moore v. Moore, 354 N.W.2d 732, 733 (S.D.1984). There can be no doubt that the uncontested testimony reflects that ex-husband's income is a Social Security check of $462.00, $68.00 per month Hormel retirement check (upon which taxes must be paid); and a $580.00 civil service retirement check. These three sources aggregate $1,110.00 monthly.

Ex-husband is now required to pay over one-half of his total net income by virtue of being required to pay $595.00 per month alimony unto his ex-wife. This is lopsided justice and deserves remedial action. Ex-wife's affidavit was skeleton-like and sounded as a general denial except for three salient points: (1) she admits her ex-husband is on retirement; (2) she says she is unemployed (but does not say why) and is totally dependent upon alimony; and (3) she notes that her ex-husband is remarried and she assumes he has other income by virtue of his remarriage, but recites not one fact to back it up.

During testimony at the show cause hearing, counsel for the ex-wife placed great emphasis, through cross-examination, on his new wife's retirement income of $600.00. Apparently, ex-wife's legal point is: Ex-husband's new wife should pay his alimony out of her retirement. This cannot and should not be. She owes no duty under the law to pay her husband's alimony out of her retirement and thus wipe out the fruits of her lifetime labor.

Ex-husband testified that his income is substantially less now; this is a changed circumstance. He also...