De Witt v. De Witt

• Decision Date: 26 October 1971
• Docket Number: No. 10891,10891
• Citation: 86 S.D. 59,191 N.W.2d 177
• Parties: Elmer DE WITT, Plaintiff and Appellant, v. Frances DE WITT, Defendant and Respondent.
• Court: South Dakota Supreme Court

Page 177

191 N.W.2d 177

86 S.D. 59

Elmer DE WITT, Plaintiff and Appellant, v. Frances DE WITT, Defendant and Respondent.

No. 10891.

Supreme Court of South Dakota.

Oct. 26, 1971.

Charles Poches, Jr., Fort Pierre, for plaintiff and appellant.

Keith A. Tidball, Pierre, for defendant and respondent.

HERTZ, Circuit Judge.

Defendant was granted a decree of divorce upon her cross-complaint. Plaintiff appeals from that portion of the decree awarding defendant wife, in addition to other property, the sum of $15,000 cash, together with attorney fees in the sum of $2,500 and costs of $85. Plaintiff contends both the cash award and attorney fees are grossly excessive.

The trial court found that plaintiff and defendant were married on August 4, 1958; that there were no children born of this marriage; that plaintiff was guilty of extreme cruelty; that defendant supported herself and four children by a former marriage during the entire period of the marriage. By written stipulation of the parties, the ownership and value of the property were agreed to be as follows: Plaintiff was the owner of 600 acres of land, with a value of $60,000. Plaintiff was the owner of 320 acres of this land prior to the marriage to the defendant, and acquired the additional 280 acres by inheritance from his father's estate during the term of the marriage. Plaintiff was also the owner of farm machinery, a 1969 Ford Torino automobile, cash on hand, stock in the Black Hills Development Company, certain livestock, all of the value of $28,033.93. The total of plaintiff's property was valued at $88,033.93. Plaintiff and defendant were owners in joint tenancy of a residence in Pierre, South Dakota, of the stipulated value of $8,500. Defendant owned an automobile valued at $100. It was further stipulated that defendant has employment with the Federal Government with a GS--3 rating, and that her take home pay from this employment amounts to $130 every two seeks. It was further stipulated that plaintiff paid all expenses of the farming and ranching operation out of his own income, and that defendant, who was employed all during the term of the marriage, bought her own groceries, and supported the children by a previous marriage and herself. Based on the foregoing, the trial court awarded to defendant wife the residence in Pierre, South Dakota, valued at $8,500, together with all of the personal property located therein; certain shares of stock in the Black Hills Development Company, valued at $750, and $15,000 in cash. The division of the property to defendant represented approximately 25 percent of the property of the plaintiff.

After the marriage on August 4, 1958, defendant wife resided one day at the farm and ranch home of the plaintiff located in Hyde County, South Dakota, three weeks in an apartment at Highmore, South Dakota, about one month with a friend of defendant in Pierre, South Dakota, and thereafter in the residence in Pierre which was purchased and paid for by plaintiff. Plaintiff, on the other hand, continued his residence at the ranch home in Hyde County during the 12 years of the marriage, and made weekend visits of various duration to the defendant in Pierre.

Defendant urges that by the use of all of her income towards the maintenance of the residence in Pierre and in the support of herself and the four children by a previous marriage (none of whom presently resides with defendant), she thereby directly contributed to the assets acquired and held by the plaintiff, and by reason thereof is entitled to participate in a division of plaintiff's property.

Defendant is 45 years old, is in fair health, and has a gross annual income of approximately $5,000 which includes retirement and hospitalization. Plaintiff is 67 years old, a rancher with a gross income in 1969 of $2,777.76.

SDCL 25--4--44 provides:

'Where a divorce is granted for an offense of either husband or wife, the courts shall in such action have full power to make an equitable division of the property belonging to either or both, whether the title to such property is in the name of the husband or the wife. In making such division of the property the court shall have regard for equity and the circumstances of the parties.'

A trial court has discretionary authority to make both the allowance to the wife for her support and an equitable division of the property of the parties. We may not disturb the trial court's determination unless it clearly appears that court has abused its discretion. Peterson v. Peterson, 71 S.D. 314, 24 N.W.2d 35, 37; Meyer v. Meyer, 76 S.D. 268, 77 N.W.2d 559. The various factors which must be considered by the trial court in the making of an equitable division of the property are well settled and need not be repeated here. See Kressly v. Kressly, 77 S.D. 143, 87 N.W.2d 601; Peterson v. Peterson, supra; Swenson v. Swenson, 1970, S.D., 181 N.W.2d 864; Schroeder v. Schroeder, 74 S.D. 385, 53 N.W.2d 293; and Meyer v. Meyer, supra.

In the present case, the divorce was granted to the defendant on her cross-complaint for an offense of the plaintiff. On the record before this court, however, it can reasonably be concluded that defendant's conduct, in some measure at least, contributed to the marital difficulties of the parties and is a factor to be considered in the making of a division of the property. Meyer v. Meyer, Kressly v. Kressly, and Swenson v. Swenson, supra. In Kressly v. Kressly, supra, cited with approval in Swenson v....