Christians v. Christians

2001 SD 142, 637 N.W.2d 377, 2001 S.D. LEXIS 168

• Court: South Dakota Supreme Court
• Decided: December 5, 2001
• Docket: None
• Status: Published

Opinions

SABERS, Justice (on reassignment).

[¶ 1.] Connie Cutler Christians (Connie) was granted a divorce from her husband Michael Arlo Christians (Michael). Michael appeals raising nine issues. We affirm all issues, except Issue 5, which we remand for recalculation of child support to include alimony.

FACTS

[¶ 2.] Connie and Michael were married on September 18, 1993 in Minnesota. They have one child, Cara, born December 19, 1995. At the time of trial, Connie was 31 years old and Michael was 37. Both Connie and Michael are in good health.

[¶ 3.] Michael is a graduate of South Dakota State University (SDSU) with a B.S. degree in Dairy Production. Michael has held various jobs over the length of the marriage, and, at the time of dissolution, he was making approximately $61,000 per year as a sales representative for De-gussa Huís, a chemical manufacturer.

[¶ 4.] Connie is also a graduate of SDSU with a B.S. degree in Ag Business and Rural Sociology. After graduation, Connie worked at Cenex/Land O’ Lakes beginning in 1991. She quit her job after she married Michael in 1993. In June of 1994, she started working at Norwest Bank in Watertown as a loan officer and earned approximately $28,000 annually. Soon after filing for divorce, she was fired from her position at Norwest Bank. She claims her firing was caused by Michael’s misconduct.

[¶ 5.] Connie filed for divorce on March 26, 1999. She amended her complaint on October 6, 1999, to include numerous causes of action including a count of Intentional Infliction of Emotional Distress.

[¶ 6.] The trial was held on January 20, 25, and February 2, 2000. After hearing the evidence, the trial court: 1) granted Connie a divorce on the basis of extreme cruelty; 2) granted Connie custody of Cara with visitation by Michael pursuant to the court’s expert, Dr. Claybome; 3) divided the marital property; 4) established child support in the amount of $637.00 per month to be paid by Michael; 5) awarded Connie permanent alimony; 6) awarded Connie $8,000 in attorneys’ fees and costs; 7) granted a permanent injunction, restraining Michael from disclosing confidential information of customers of the bank where Connie had worked; 8) directed that all exchanges for child visitation take place through the Family Visitation Center operated by the Woman’s Resource Center in Watertown, South Dakota; 9) awarded Connie $20,000 for intentional infliction of emotional distress; and 10) assessed punitive damages against Michael in the amount of $7,000.

[¶ 7.] Michael appeals the following issues:

1. Whether the trial court erred in dividing the property.

2. Whether the trial court erred in granting permanent alimony.

3. Whether South Dakota law permits a cause of action for intentional infliction of emotional distress based on conduct which occurred after the filing for divorce, but prior to its completion, and if so, whether Connie established the required elements of intentional infliction of emotional distress.

4. Whether the trial court erred when it failed to consider the alimony award when calculating child support.

5. Whether the trial court adopted Dr. Clayborne’s report as stipulated to by the parties.

6. Whether the trial court abused its discretion in granting Connie a divorce based on extreme cruelty.

7. Whether the trial court erred in granting punitive damages of $7,000 to Connie.

8. Whether the trial court erred in allowing Connie to file her proposed findings of fact and conclusions of law after the statutory deadline.

9. Whether the trial court abused its discretion in awarding Connie attorneys’ fees and costs of $8,000.

STANDARD OP REVIEW

[¶ 8.] It is well settled that the trial court has broad discretion with respect to property division and, absent an abuse of discretion, its judgment will not be set aside. Caughron v. Caughron, 418 N.W.2d 791, 792 (S.D.1988); Tate v. Tate, 394 N.W.2d 309, 311 (S.D.1986). “The term ‘abuse of discretion’ refers to a discretion exercised to an end or purpose not justified by, and clearly against reason and evidence.” Paradeis v. Paradeis, 461 N.W.2d 135, 137 (S.D.1990) (citing Bradeen v. Bradeen, 430 N.W.2d 87, 91 (S.D.1988)). All of these issues are reviewed under the abuse of discretion standard.

[¶ 9.] 1. Whether the trial court erred in dividing the property.

[¶ 10.] After calculating all real and personal property owned by Michael and Connie, the trial court determined the couple’s net worth at $537,234.82. Included in this figure, the trial court found Connie’s premarital net worth to be $19,425 and Michael’s premarital net worth to be $277,700.56. After also subtracting a $14,890 line of credit, the court arrived at a marital estate of $254,999.26. This amount was equally divided between the parties with each receiving $127,499.63. Michael contends that his premarital net worth was much higher than that recognized by the trial court. Specifically, he asserts that the trial court undervalued the 320 acres of farmland he inherited.

[¶ 11.] At trial, Michael testified that the farmland, which he inherited prior to the marriage, was worth $229,000. Connie, on the other hand, offered evidence that the value of the farmland was $100,280.

[¶ 12.] This Court has noted: “[i]n making an equitable division of property, the trial court is not bound by any mathematical formula, but is to make an award on the basis of the material factors in the case, having due regard for equity and the circumstances of the parties.” Garnos v. Garnos, 376 N.W.2d 571, 572-73 (S.D. 1985). Although a trial court is not required to accept either party’s proposed valuation, the value must be within the range of evidence presented to the court. Johnson v. Johnson, 471 N.W.2d 156, 162 (S.D.1991); Strickland v. Strickland, 470 N.W.2d 832, 837 (S.D.1991); Studt v. Studt, 443 N.W.2d 639, 641 (S.D.1989).

[¶ 13.] The trial court determined the value of the farmland to be $120,000. This was within “the range of evidence.” See Johnson, supra; Strickland, supra; Studt, supra. While the trial court did not wholly adopt the figures of either party, the court’s final valuation of the farmland was well within its discretion and supported by the conflicting valuations. Paradeis, supra. “This represents another case where we are being asked to fine-tune the handiwork of those to whom the division of martial property has been entrusted. We refuse to do this without a stronger showing than is presented here.” Buseman v. Buseman, 299 N.W.2d 807, 810 (S.D.1980). Therefore, we find no error.¹

[¶ 14.] 2. Whether the trial court erred in granting permanent alimony.

[¶ 15.] The trial court granted Connie permanent alimony with the following distribution schedule: $1,300 the first month, decreasing $200 each month. Once the figure reached $300, the amount of alimony would remain at $300 per month until either party dies or if and when Connie remarries.

[¶ 16.] Factors considered in deciding alimony are: 1) length of the marriage; 2) respective earning capacity of the parties; 3) their respective age, health and physical condition; 4) their station in life or social standing; and 5) relative fault. DeVries v. DeVries, 519 N.W.2d 73, 77 (S.D.1994). Our review of the trial court’s award of alimony is based on the abuse of discretion standard. Id.

[¶ 17.] The trial court took into account that the marriage lasted approximately six years. Over that time period, Connie contributed substantially to the couple’s accumulation of wealth by being the primary caregiver to their daughter as well as maintaining certain assets while Michael was away on business. The court considered the age and health of the parties and determined that they were both of good health and found their physical condition to not affect their ability to earn a living. The court did, however, find that Michael’s earning potential far exceeded that of Connie, as Michael was currently making $61,000 per year and Connie was unemployed.

[¶ 18.] Likewise, Michael was found to be at fault for the dissolution of the marriage. The record is replete with instances where Michael’s treatment of Connie was less than respectful. As the trial court found, Michael attempted to control Connie’s behavior regarding use of their vehicles, her job, social life, and especially with the spending of money. We have often emphasized that relative fault is an important factor in determining whether alimony is warranted. Vander Pol v. Vander Pol, 484 N.W.2d 522, 525 (S.D.1992); Kanta v. Kanta, 479 N.W.2d 505, 511 (S.D.1991). Michael’s fault for the dissolution of the marriage is clear.

[¶ 19.] A review of the factual findings entered by the trial court shows a consideration of all factors and its findings on this issue are supported by the record. Evans v. Evans, 1997 SD 16, ¶ 31, 559 N.W.2d 240, 247 (citation omitted). Thus, the permanent alimony award is affirmed.

[¶ 20.] 3. Whether South Dakota law permits a cause of action for intentional infliction of emotional distress based on conduct which occurred after the filing for divorce, but prior to its completion, and if so, whether Connie established the required elements of intentional infliction of emotional distress.

[¶ 21.] A claim for intentional infliction of emotional distress is a separate and independent tort. In the divorce setting, we have made it clear that the conduct leading to the dissolution of marriage is not grounds for an intentional infliction of emotional distress claim. Pickering v. Pickering, 434 N.W.2d 758, 761 (S.D.1989). Independent torts, however, are actionable.² In Henry v. Henry, this Court acknowledged “that a spouse can bring a civil suit for damages caused by tortious conduct to the other spouse.” 534 N.W.2d 844, 846 (S.D.1995). See also Gassman v. Gassman, 296 N.W.2d 518, 522 (S.D.1980) (recognizing that a civil damage suit for a personal tort would have been a proper remedy); Scotvold v. Scotvold, 68 S.D. 53, 55, 298 N.W. 266, 269 (1941) (recognizing that the common-law rule barring a civil action against one’s spouse had been abrogated by the legislature). Accordingly, after the grounds for divorce are established, a party should not be able to intentionally inflict wrongs on the other party to harass, exploit or embarrass.

[¶ 22.] In recognizing a claim for intentional infliction of emotional distress in this case, we are not injecting a tort recovery for intentional infliction of emotional distress into every divorce action. We are only providing a remedy to an aggrieved party, a remedy available to every other citizen of the state. “Proof under this tort must exceed a rigorous benchmark.” Henry v. Henry, 2000 SD 4, ¶ 6, 604 N.W.2d 285, 288. The conduct necessary to form intentional infliction of emotional distress “must be so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and be regarded as atrocious, and utterly intolerable in a civilized community.” Restatement (Second) of Torts § 46 cmt. d. (1965). That is exactly what the trial court found.

[¶ 23.] The elements for intentional infliction of emotional distress include:

(1) extreme and outrageous conduct by the defendant; (2) that the defendant intended to cause severe emotional distress; (3) there must be a causal connection between the wrongful conduct and the emotional distress; and (4) severe emotional distress must result.

French v. Dell Rapids Community Hospital, Inc., 432 N.W.2d 285, 289 (S.D.1989) (citing Groseth Int’l, Inc. v. Tenneco, 410 N.W.2d 159, 169 (S.D.1987)).

[¶24.] To recover the claimant must meet the necessary elements separate from her grounds for divorce. Connie’s claim stems from Michael’s conduct that occurred after filing for divorce. Michael’s actions caused Connie extreme emotional distress and loss of employment. The trial court extensively considered the evidence supporting Connie’s claim and specifically found:

Michael’s conduct during the pendency of the divorce action was extreme and outrageous — particularly his April 12, 1999, contact with Bev Morrison and his disclosure of financial records of bank customers. Some of his other actions (accusing Connie of child abuse, having [child] repeatedly examined by law enforcement, and repeatedly reporting child abuse to the Department of Social Services) could arguably be a genuine concern for [child] and a legitimate attempt to obtain custody in a divorce action. However, the repeated, excessive nature of these actions, when considered in the light of his entire course of conduct during the marriage, compels the conclusion that they, too, were extreme and outrageous.

[¶ 25.] Michael acted intentionally to cause Connie severe emotional distress.

Michael’s conduct did in fact cause Connie’s distress. The court is aware that a divorce action, particularly one which is hard fought, will likely cause distress to the parties. However, Michael’s actions exceeded anything which could be justified as part of the divorce action and Connie’s stress also exceeded anything which could be attributed to the divorce action. Michael’s reporting of bank customer financial records caused Connie to be reprimanded at work and caused her to question whether she would keep her job. Thereafter, Michael had his contact with Bev Morrison and continued his course of conduct against Connie. As a result, she became more distressed and her job performance slipped badly. Michael’s conduct was a primary cause of Connie’s discharge from the bank, which only increased her emotional distress.

The trial court did not grant damages for intentional infliction of emotional distress for conduct which caused the breakup of the marriage. Michael’s conduct was intentionally hostile and designed to cause as much harm as possible. These actions, which extended over and above the grounds for divorce, and were intended to harm Connie, support the trial court’s award of damages. We affirm.

[¶ 26.] 4. Whether the trial court erred when it failed to consider the alimony award when calculating child support.

[¶ 27.] The trial court awarded child support in the amount of $637 to be paid by Michael per month. The court arrived at this amount by determining Michael’s net monthly income to be $3,633 and, Connie’s net monthly income of $793, based upon full-time employment at the State minimum wage, as she was unemployed; After making the appropriate allowances and calculations, the court arrived at the $637 amount to be paid by Michael. Michael claims that the court erred by failing to take into account the amount of alimony received by Connie in her net monthly income per Peterson v. Peterson, 2000 SD 58, ¶ 9, 610 N.W.2d 69, 70-71. We agree.

[¶ 28.] In Peterson, we determined that alimony payments are deductible from the payor’s income for child support purposes. Id. at ¶ 14. In recognizing so, we determined that alimony is considered “payments made on other support and maintenance orders.” Id. at ¶ 16. See also SDCL 25-7-6.7(6). Thus, Connie’s award of alimony should have been included in the calculation in determining her monthly net income for child support. Peterson, 2000 SD 58 at ¶ 16, 610 N.W.2d at 71. Therefore, we reverse this issue for the trial court to recalculate the child support award.

[¶ 29.] 7. Whether the trial court erred in granting punitive damages of $7,000 to Connie.

[¶ 30.] Punitive damages are awarded for the purpose of deterring the person “against whom they are awarded from repeating the offense and others from committing it.” Grynberg v. Citation Oil & Gas Corp., 1997 SD 121, ¶ 36, 573 N.W.2d 493, 504 (quoting Bogue v. Gunderson, 30 S.D. 1, 137 N.W. 595, 596 (1912)). In Henry I, this Court recognized that:

Of significance is the right to recover for the intentional tort. Our law before today practiced a cruel paradox. Under the guise of promoting family harmony, it permitted the wife beater to practice his twisted frustrations secure in the knowledge that he was immune from civil action except for a divorce, and that any criminal penalty would ordinarily be a modest fine. If nothing else, the knowledge of a monetary judgment with punitive damages may stay such violence.

Henry I, 534 N.W.2d at 847 (quoting Coffindaffer v. Coffindaffer, 161 W.Va. 557, 244 S.E.2d 338, 343-44 (1978)).

[¶ 31.] This Court has set forth five factors for determining appropriate punitive damages. Engels v. Ranger Bar, Inc., 2000 SD 1, ¶ 34, 604 N.W.2d 241, 247. They include: “(1) the amount allowed in compensatory damages; (2) the nature and enormity of the wrong; (3) the intent of the wrongdoer; (4) the wrongdoer’s financial condition; and (5) all of the circumstances attending] to the wrongdoer’s actions.” Id. (citing Wangen v. Knudson, 428 N.W.2d 242, 246 (S.D.1988)). The trial court properly applied these factors to the facts of this case. The trial court did not abuse its discretion in awarding Connie $7,000 in punitive damages.

[¶ 32.] We have considered the remaining issues raised by Michael and find them without merit and affirm the trial court.

[¶ 33.] We affirm all issues except for issue 4, which is remanded for recalculation of the child support award. We award Connie appellate attorneys’ fees of $2,000.00 based on a review of the appropriate factors in Malcolm v. Malcolm, 365 N.W.2d 863, 866 (S.D.1985).

[¶ 34.] GILBERTSON, Chief Justice, concurs. [¶ 35.] KONENKAMP, Justice, concurs specially. [¶ 36.] AMUNDSON, Justice, and MILLER, Retired Chief Justice, concur in part and dissent in part.

1 . Likewise, it was not error for the trial court to give Michael credit for 280 out of the 320 originally inherited acres of farmland. All property may be divided, regardless of its title or origin. Radigan v. Radigan, 465 N.W.2d 483, 486 (S.D.1991). For Michael to claim reversible error for failing to receive only the value of 280 acres is without merit. There is no requirement that the trial court must give Michael credit for the 320 acres he inherited.

Michael cannot "point to any authority which stands for the proposition that a court must give both divorcing parties credit for all their premarital assets in order to make an equitable division of the property." Pellegrín v. Pellegnn, 1998 SD 19, ¶ 19, 574 N.W.2d 644, 648. Because he is unable to show the trial court abused it discretion in its allocation of property for distribution, a remand is not warranted.

2 . SDCL 25-2-1 states that a "husband and wife contract toward each other obligations of mutual respect, fidelity and support.” Significantly, individual property rights are not contracted away through marriage vows. SDCL 25-2-4 states that "neither husband nor wife has any interest in the property of the other excepting their respective rights for support as specifically provided by law.” SDCL 25-2-10, in accord with Art. XXI, § 5, provides that each spouse has individual property rights.

A tort cause of action is clearly a property right. That very issue was addressed by this Court in Scotvold, 68 S.D. at 55, 298 N.W. at 269.

We are unable to discern a basis for holding that a wife has a remedy against her husband for breach of contract or for invasion of property rights but is without remedy against him for a personal tort. Either the statute grants sweeping remedies to the wife as against her husband, or none. We think it intended to grant the wife rights and remedies as against the husband.

Id.