CourtListener 901981•Lovejoy v. Lovejoy
Testo completo
#25311, #25321-aff in pt, rev in pt & rem-JKK
2010 SD 39
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
* * * *
MICHAEL LOVEJOY, Plaintiff and Appellant,
v.
MILDRED M. LOVEJOY, Defendant and Appellee.
* * * *
APPEAL FROM THE CIRCUIT COURT
OF THE FIRST JUDICIAL CIRCUIT
CLAY COUNTY, SOUTH DAKOTA
* * * *
HONORABLE GLEN W. ENG
Judge
* * * *
GREGORY T. BREWERS of
Strange, Farrell, Johnson & Brewers, PC Attorneys for plaintiff
Sioux Falls, South Dakota and appellant.
CRAIG K. THOMPSON Attorney for defendant
Vermillion, South Dakota and appellee.
* * * *
CONSIDERED ON BRIEFS
ON MARCH 22, 2010
OPINION FILED 05/12/10
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KONENKAMP, Justice
[¶1.] In this divorce appeal, the husband challenges the custody decision,
the general and rehabilitative alimony awards, the debt division, and the attorney’s
fee award. By notice of review, the wife appeals the attorney’s fee award. We find
no abuse of discretion in the custody and visitation decision, the debt division, and
the attorney’s fee awards. As to the award of general and rehabilitative alimony,
we reverse and remand because (1) the circuit court’s findings fail to explain how it
computed the husband’s ability to pay alimony, (2) the wife’s expenditures
supporting her claim for alimony include children’s expenses which must be
excluded, and (3) the rehabilitative alimony award lacks a limitation period.
Background
[¶2.] Mike and Mildred (Millie) Lovejoy were married on February 14, 1992.
Millie had two children from a previous relationship: Misty, born August 16, 1989,
and Joey, born February 14, 1991. Mike adopted Misty and Joey. Millie and Mike
then had two sons, Collin, born January 4, 1996, and Kodie, born April 24, 1998.
Before their marriage, Millie lived in Sioux Falls with her parents. Her formal
education ended at the eighth grade. She suffers from lifelong rheumatoid arthritis.
As the circuit court found, pain and swelling from the arthritis afflicts her hands,
elbows, hips, and feet. Mike is a partner in his family’s farming operation. After
the wedding, Mike, Millie, Misty, and Joey moved into a trailer house on the farm.
They later moved into the main house when Mike’s parents retired, but his parents
kept ownership of the home.
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[¶3.] Mike and Millie decided that Millie would stay home with the children
while Mike farmed and periodically worked as a truck driver. Millie eventually
obtained her general education degree (GED). Once the younger children began
attending school, Millie served as a substitute teacher and later as a daycare
worker in Vermillion. She earned minimum wage. Mike and Millie owned 19 acres
of tillable land of the 1,050 acres Mike farmed. He leased 249 acres from his
parents and the rest from third parties.
[¶4.] In March 2008, Mike sued Millie for divorce alleging irreconcilable
differences or, in the alternative, extreme cruelty. She answered and
counterclaimed on the same grounds. Millie moved for temporary custody of the
minor children, child support, and alimony. Misty was no longer a minor and lived
outside the home. Joey was a senior in high school. Mike also sought custody, but
only of Collin and Kodie. He disinherited Misty and Joey. Temporary custody of
the minor children was granted to Millie, along with child support and temporary
alimony. Dr. Andre Clayborne completed a home study evaluation in February
2009.
[¶5.] Following the divorce trial, but before the court issued findings of fact,
conclusions of law, and a judgment, Mike sought to offer evidence of a debt he failed
to present during trial. Upon granting his request, the court issued findings of fact
and conclusions of law, a judgment and decree of divorce, and a money judgment.
Millie was awarded primary physical custody of the children, general and
rehabilitative alimony, and attorney’s fees. Mike appeals asserting that the court
abused its discretion when it (1) granted Millie primary physical custody of the
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minor children and less visitation than recommended by the custody evaluator, (2)
awarded Millie $1,750 per month in general alimony and $500 per month in
rehabilitative alimony, (3) divided the debts inequitably, and (4) awarded Millie
attorney’s fees and costs. In her notice of review, Millie asserts that the court
abused its discretion when it failed to award all her requested attorney’s fees.*
Because we find no abuse of discretion or clearly erroneous fact findings pertaining
to Mike’s Issues 1 and 4, and Millie’s notice of review issue, we affirm those
questions without discussion. They were decided in accord with well-settled
principles. See Fuerstenberg v. Fuerstenberg, 1999 SD 35, 591 NW2d 798; DeVries
v. DeVries, 519 NW2d 73 (SD 1994).
Analysis and Decision
Alimony
[¶6.] Mike asserts that the court abused its discretion when it awarded
Millie $1,750 per month in general alimony and $500 per month for rehabilitative
alimony. Mike argues that the court improperly considered expenses related to the
children when it awarded Millie general alimony and abused its discretion when it
awarded Millie more than she requested. Mike further contends that the court
failed to consider his ability to pay these two monthly sums.
* Standard of Review: We review a court’s custody decision, property division,
alimony award, and attorney’s fees award under the abuse of discretion
standard. Maxner v. Maxner, 2007 SD 30, ¶¶10-12, 730 NW2d 619, 622
(citations omitted). The court’s findings of fact are reviewed for clear error.
Arneson v. Arneson, 2003 SD 125, ¶13, 670 NW2d 904, 909-10 (citation
omitted). Conclusions of law, however, are reviewed de novo. Id.
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[¶7.] General alimony is intended to assist the recipient in providing for
food, clothing, housing, and other necessities. Zepeda v. Zepeda, 2001 SD 101, ¶21,
632 NW2d 48, 55 (citation omitted). Millie, as the one who sought support, had to
establish her need for alimony and Mike’s ability to pay. See id. (citation omitted).
In deciding whether alimony is warranted, the court should consider: (1) the length
of the marriage; (2) each party’s earning capacity; (3) their financial conditions after
the property division; (4) each party’s age, health, and physical condition; (5) their
station in life or social standing; and (6) the relative fault in the termination of the
marriage. Id.
[¶8.] First, the court did not award Millie more alimony than requested. In
her pretrial brief to the circuit court, Millie asked for “permanent general alimony
in an amount the court finds reasonable, but preferably no less than $1,500 per
month.” (Emphasis added.) Second, even if the court awarded Millie more than she
requested, an alimony award is discretionary, exercisable either upward or
downward. We find no abuse of discretion in the award of general alimony merely
because it was above Millie’s bottom-line suggestion.
[¶9.] Mike complains that the court improperly considered child-related
expenses in awarding general alimony. “[A]limony and child support are separate
concepts” and must not be merged. Schabauer v. Schabauer, 2003 SD 146, ¶17, 673
NW2d 274, 278. An alimony award should reflect “what was required for a suitable
allowance to [the spouse] based upon the analysis of the factors applicable to
awarding alimony.” Id. ¶18. Such award must not consider the children in the
home. Id. ¶17. In Millie’s budget exhibit, she indicated her total monthly expenses
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to be $3,036, with a monthly shortfall of $1,673. Taking into account her education
level and her partially disabling condition from arthritis, Millie established her
need for alimony. Yet there is no question that some of the expenses she listed
included money spent on her children. For example, her monthly cell phone
expenditure of $264 was for five cell phones: one for herself and one for each of the
four children. Millie also admitted at trial that her listed clothing expenditure was
for the children. In its findings of fact, nonetheless, the trial court simply reiterated
Millie’s monthly expenses as she reported them at $3,036. There was no finding on
what her actual expenses were for the purposes of computing alimony, with child
related expenses removed. Thus, the court’s findings in this regard were clearly
erroneous.
[¶10.] We also find problematic the lack of findings to support Mike’s ability
to pay the alimony awarded to Millie. In determining actual income for purposes of
awarding alimony, trial courts should make findings on all the relevant economic
circumstances. In its conclusions of law, however, the court simply listed the factors
relevant to an award of general alimony and stated that “the court has weighed the
same.” But the court made no specific finding on each factor. It never identified the
amount of Mike’s income from farming and trucking. We realize that this is no
simple task, for, as other courts have noted, self-employed individuals have some
“ability to control and regulate their income.” See Ugarte v. Ugarte, 608 So2d 838,
840 (FlaCtApp 1992). And the task is made more complicated here, as the trial
court realized, by the fact that Mike and his father “comingled assets.” Indeed,
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Mike’s claimed net income may be misleading: the court found Mike’s “rental”
arrangement with his family to be “disingenuous.”
[¶11.] In an apparent effort to bridge these difficulties, the circuit court
generally declared that Mike’s “earning capacity is wide” and Mike “has always
been able to provide for his family.” One of its conclusions of law states, “This court
cannot divide property that [Mike] does not own, but it can require that alimony be
paid so [Millie] can live at a level less than poverty.” Yet we have no way of
determining from these findings whether the alimony awards were reasonable. We
afford considerable weight to a circuit court’s exercise of discretion, but we can only
evaluate that discretion by reviewing the court’s detailed findings. Therefore, we
remand for the court to determine Mike’s ability to pay alimony, with explicit
findings on his income.
[¶12.] With respect to rehabilitative alimony, the court awarded Millie “an
additional $500 monthly . . . if she seeks further education within the next three (3)
years or by March 12, 2012.” Mike contends that before trial Millie failed to request
rehabilitative alimony and thus the court abused its discretion when it allowed
Millie to testify about her educational plans. Millie submitted a pretrial brief in
support of her alimony request in which she informed the court that she desired to
obtain additional education. She wanted to attend Western Iowa Technical
Community College to obtain an associate degree in Early Childhood Education.
She listed the costs per credit and the time it would take to obtain the degree. In
total she requested $11,600 in rehabilitative alimony. We find no abuse of
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discretion in the court’s decision to allow evidence on the issue of rehabilitative
alimony.
[¶13.] Mike also asserts that the evidence does not support Millie’s need for
rehabilitative alimony. Millie was the primary caretaker during the marriage, and
by the parties’ agreement she remained home while the two younger children were
not yet school age. Thereafter, she worked for minimum wage. The court found
that Millie’s earning capacity would be limited even if she obtained further
education. We find no abuse of discretion in the court’s decision to award Millie
rehabilitative alimony.
[¶14.] Mike next argues that the language of the court’s award fails to set a
duration for the requirement that he pay rehabilitative alimony. Under the court’s
ruling, if Millie begins her education within three years, Mike is required to pay
Millie an extra $500 a month. But by the terms of the court’s order, these payments
could last as long as it takes Millie to complete her education. This could mean that
if Millie takes a small number of credits over a number of years, Mike could
conceivably be obligated to pay her $500 per month indefinitely. Although Mike did
not object to the court’s findings of fact and conclusions of law in order to give the
court an opportunity to rectify this problem, because we are already remanding for
further consideration, the court is directed to place a limitation on the duration of
the rehabilitative alimony.
Debt Division
[¶15.] After trial, Mike moved the court to allow admission of evidence
related to his sealed grain debt of $44,507.60. Millie objected, and the court held
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two hearings. It ultimately allowed the evidence and then distributed the debt,
allocating $12,250 to Millie. The court found the fact that Mike disclosed this debt
after trial suspicious because the evidence was advantageous to him and he could
have obtained it earlier considering his trial testimony that he knew his computer
accounting system and the farm’s books. Mike does not challenge the overall
distribution of debts. Rather, he claims the court abused its discretion when it
imposed on him 75% of the obligation to repay this particular debt. He maintains
that the omission of the debt evidence was inadvertent and that equity requires an
equal split. He further argues that the court penalized him for “calling to the
court’s attention the inadvertent omission of a valid, existing marital debt[.]”
[¶16.] We review a court’s property division for an abuse of discretion.
Maxner, 2007 SD 30, ¶12, 730 NW2d at 622 (citation omitted). In dividing marital
property, the court is to consider the equity and circumstances of the parties.
Endres v. Endres, 532 NW2d 65, 71 (SD 1995). Here, the circumstances failed to
satisfy the circuit court that the late disclosure was entirely blameless. Considering
the relative circumstances of the parties, we see no abuse of discretion in the court’s
decision to allocate to Mike a greater portion of the omitted sealed grain debt.
[¶17.] Both parties request appellate attorney’s fees. Considering “the
property each party owns; their relative incomes; the nature of their assets, fixed or
liquid; and whether either party unreasonably prolonged the divorce,” each party
will be responsible for their own appellate attorney’s fees. See Zepeda, 2001 SD
101, ¶28, 632 NW2d at 57 (citations omitted).
[¶18.] Affirmed in part, reversed in part, and remanded.
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[¶19.] GILBERTSON, Chief Justice, and ZINTER, MEIERHENRY, and
SEVERSON, Justices, concur.
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