Wolff v. Wolff

• Decision Date: 13 February 1984
• Docket Number: No. 14261,14261
• Citation: 349 N.W.2d 656
• Parties: Robert J. WOLFF, Plaintiff and Appellee, v. Arla WOLFF, Defendant and Appellant. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 656

349 N.W.2d 656

Robert J. WOLFF, Plaintiff and Appellee, v. Arla WOLFF, Defendant and Appellant.

No. 14261.

Supreme Court of South Dakota.

Considered on Briefs Feb. 13, 1984.

Decided June 20, 1984.

Timothy T. Weber of Weber & Kallenberger, Eureka, for plaintiff and appellee.

Jauane J. Bleau, Vermillion, for defendant and appellant.

FOSHEIM, Chief Justice (on reassignment).

The trial court judgment granted both parties a divorce. Arla Wolff (Appellant) appeals from that part of the judgment which divided the property and granted custody of the child to her husband, Robert J. Wolff. We reverse.

Arla and Robert were married in 1975. One child, a son, was born in 1977. However, Arla has two children from a previous marriage. In August of 1980, Appellant left the marital home in Eureka, South Dakota, and enrolled at the University of South Dakota at Vermillion. She testified Robert was a heavy drinker and had numerous affairs with other women.

The parties' son remained with his father in Eureka until November of 1980, when he joined his mother in Vermillion. After returning to Eureka for Christmas in December, Arla and the son returned to the University for the 1981 spring term. The son was returned to his father at Eastertime. He has continued since then to reside in Eureka with his father. Appellant left school in 1981, and found employment with Northwestern Bell in Sioux Falls. In 1982, she resumed living with a man with whom she had cohabited prior to her marriage to Robert. Since prior to trial, however, she had been living with her parents in Omaha, Nebraska.

At the divorce trial, Arla conceded she had associated infrequently with the son during the preceding two years. She claimed, however, that this infrequency was caused by Robert preventing her from talking to their son on the telephone and because appellee refused to let her take the child from Eureka at different times. The last time she tried, Robert beat her severely.

Since the summer of 1982 Robert and another woman have been living in the home as husband and wife. This woman's child also resides in the household. She testified that the parties' son has seen her and Robert in bed together.

The testimony shows that from the fall of 1978 to the winter of 1980, appellee had an ongoing homosexual relationship with a juvenile who moved into the home after the separation. Some of these homosexual acts were performed in the presence of the boy. Appellee admitted allowing this person to babysit his son. The father had another boarder who entertained his out-of-town girlfriend in his room on weekends and for a week or two at a time. Although appellee has demonstrated a capacity for extreme violence, there is no evidence that he has physically abused this child.

The parties' son was not interviewed by the court. Home studies, however, were conducted on both homes. The trial court found that both parties were fit and proper persons to have custody of the child, but concluded that it was in the child's best interest that Robert be granted custody.

Arla contends that the trial court abused its discretion in granting custody to Robert. In addressing this contention we are mindful that the trial court has broad discretion in custody determinations. Haskell v. Haskell, 324 N.W.2d 423 (S.D.1982). Its decision will be reversed only upon a clear showing of abuse of discretion. Hansen v. Hansen, 327 N.W.2d 47 (S.D.1982).

The primary consideration in custody determination is the best interest of the child. SDCL 30-27-19; Haak v. Haak, 323 N.W.2d 128 (S.D.1982). With regard to the live-in relationship between Robert and his girlfriend, we have recognized that the harmful effect of parental misconduct committed in the presence of a child old enough to perceive the misconduct is self-evident. Nauman v. Nauman, 336 N.W.2d 662 (S.D.1983); Rivers v. Rivers, 322 N.W.2d 864 (S.D.1982); Spaulding v. Spaulding, 278 N.W.2d 639 (S.D.1979). Furthermore, maintaining and exposing the child to an active male homosexual, plus another boarder carrying on open girlfriend liaisons is not conducive to raising this boy in a wholesome home environment. While the mother's nomadic existence in the past has not been exemplary, she was living in a stable home with her parents at the time of trial. From our review of the record, we conclude awarding custody to the father was an abuse of discretion.

The trial court found marital assets of $44,401. Of these assets, Arla was awarded $7,200 as her half of the equity in the marital home, a 1978 Ford Thunderbird, items she owned before the marriage, and the personal property she had in her possession at the time the divorce was granted. Appellant contends the trial court abused its discretion in dividing the property in two specific areas.

During the course of the marriage Robert accumulated fifty shares of stock of the Wolff Company, the family business for which he worked. The trial court treated twenty-five of the fifty shares as marital property and considered the remaining twenty-five as gifts. The testimony concerning the ownership of the shares of stock was conflicting and confusing, and we find no error in the trial court's resolution of this issue.

The trial court concluded that Arla had depleted marital assets more than she contributed to them. Arla contends that this conclusion is unsupported by the evidence. We disagree. Arla incurred substantial expenses while going to school, which to a large degree Robert was responsible for paying. In addition to incurring substantial school and personal expenses Arla persuaded Robert to invest $15,000 with a mortgage on the unencumbered marital home in a concert promotion venture. This investment proved ill-advised because the promoter absconded with the money. Also, the evidence indicates that Arla made no substantial contribution to the acquisition of marital property prior to her departure from the marital home in 1980.

Both Arla and Robert were 32 years of age at the time of trial. Both are in good health. Arla has five semesters of college; Robert has two years of college. As indicated above, Robert is employed in the family business in Eureka. At the time of trial, Arla was working as a sales representative for an Omaha, Nebraska, firm, earning between $500 and $750 a month.

In Hansen v. Hansen, 273 N.W.2d 749 (S.D.1979), we listed the following seven factors to be considered in the distribution of assets: (1) duration of the marriage; (2) value of the property; (3) ages of the parties; (4) health of the parties; (5) competency of the parties to earn a living; (6) contributions of each party to the accumulation of the property; and (7) income producing capacity of the parties' assets.

It is settled law that trial courts have broad discretion in making divisions of property and their decisions will not be set aside absent a clear abuse of discretion. See, e.g., Watt v. Watt, 312 N.W.2d 707 (S.D.1981); O'Connor v. O'Connor, 307 N.W.2d 132 (S.D.1981). After reviewing the evidence and taking into consideration the factors set forth in Hansen, we conclude there was no clear abuse of discretion concerning the division...