Cole v. Cole

384 N.W.2d 312, 1986 S.D. LEXIS 226
CourtSouth Dakota Supreme Court
DecidedMarch 12, 1986
Docket14911
StatusPublished
Cited by71 cases

This text of 384 N.W.2d 312 (Cole v. Cole) is published on Counsel Stack Legal Research, covering South Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cole v. Cole, 384 N.W.2d 312, 1986 S.D. LEXIS 226 (S.D. 1986).

Opinions

HERTZ, Acting Justice.

Rolfe H. Cole, Jr. (Rolfe), the appellant herein, appeals from a judgment and decree of divorce awarded to Joanne C. Cole (Joanne), the appellee. We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

STATEMENT OF FACTS

Rolfe and Joanne Cole were married on December 1, 1961, in Centerville, South Dakota. One child was born of this union, Timothy, who, at all times pertinent to this action, had attained the age of majority. At the time of trial, Rolfe was 44, and Joanne was 45 years of age. Both parties enjoy good health.

Neither one of the Coles brought any discernable assets into the marriage. As such, both parties agree that whatever they acquired during their 24 years of marriage was as a result of their joint efforts.

Except for the seven year period between 1965 and 1972 when she remained at home to care for Timothy, Joanne has always worked on a full- or part-time basis. She is currently a secretary at Western Bank in Sioux Falls, South Dakota and earns approximately $733.07 take-home pay per month. Rolfe’s present income from the Dakota Livestock Company is $20,150 per year, or approximately $1,250 take-home pay per month. Additionally, Rolfe is employed on a part-time basis at the Westward Ho Country Club from which he earns $3,524.02 per year. The trial court made a finding that Rolfe’s net monthly income totals approximately $1,500.

The parties’ divisible assets included a house in Sioux Falls, which is presently valued at $69,000 and subject to a first mortgage in the amount of $35,037.46. The trial court awarded Joanne the marital residence with its attendant indebtedness.

The Coles also jointly owned a farm consisting of 160 acres in Lincoln County, South Dakota, which they purchased on a contract for deed in 1975. The down payment of $28,800 was paid by Rolfe’s father, Rolfe Hi Cole, Sr. (Rolfe, Sr.). Although there is no written evidence characterizing this money as a loan, Rolfe and his father insist that the down payment was not a gift and that the $28,800 debt which is owed to Rolfe, Sr., is expected to be paid in full plus 8% interest per annum. No principal or [314]*314interest payments had been made at the time of trial.

The Lincoln County property is leased to Rolfe’s brother for farming purposes. The farm property was valued by Joanne’s appraiser at $128,000, whereas Rolfe’s appraiser valued it at $116,000. The trial court adopted Joanne’s appraisal, and awarded the farm property to Rolfe subject to the balance on the contract for deed and the $28,800 indebtedness owed to Rolfe, Sr.

The trial court also ordered Rolfe to pay Joanne a lump sum payment of $20,000 as a further property settlement. Additionally, the trial court awarded Joanne $400 per month in the form of alimony until she remarries or dies.

According to the briefs and record herein, the Coles marital problems began in the early 1970’s as a result of Rolfe’s excessive drinking. He has since rectified this problem. Thereafter, the parties had trouble communicating. Joanne testified that Rolfe admitted to having an extra-marital affair in 1978, but he denied this allegation at trial.

It appears, however, that Rolfe’s relationship with Connie Sweeter (Connie), a divorcee and neighbor of the Coles, has generated the most conflict between the parties. Both Rolfe and Connie testified that they were just good friends and not lovers.

However, the testimony of Joanne and another neighbor, Lola Heyer, depicted Rolfe’s close association with Ms. Sweeter as something more than a friendship. They testified, respectively, that while the Coles were still living together, Rolfe spent many afternoons at Connie’s home while Joanne was at work; that Rolfe did numerous household chores for Connie while neglecting the same ones at his own home; that Rolfe would ignore Joanne at neighborhood gatherings and spend all of his time with Connie; and that Rolfe often sided with Connie in arguments between she and Joanne, (inasmuch as they started out as good friends), and forced Joanne to apologize.

At this writing, Rolfe’s relationship with Connie is still in existence. The record reflects that he often took Connie and her children out to various places. Ms. Sweeter testified, however, that she and Rolfe have only gone out alone together approximately four or five times. She also stated that Rolfe had purchased gifts for her upon occasion.

The Coles separated in May of 1984, and commencement of this action followed shortly thereafter. The issues herein will be separately stated and so treated.

I

WHETHER THE TRIAL COURT MADE AN EQUITABLE DIVISION OF THE MARITAL PROPERTY?

A divorce court must consider equity and the circumstances of the parties when it divides the marital property. SDCL 25-4-44. This court reviews a trial court’s findings of fact under the “clearly erroneous” standard and will overturn a trial court’s conclusions of law only when the trial court has erred as a matter of law. Temple v. Temple, 365 N.W.2d 561, 565 (S.D.1985).

Generally, fault will not be taken into account with regard to an award of property. SDCL 25-4-45.1. Thus, the principal factors to be considered in a division of property pursuant to divorce are: the length of the marriage; the value of the property; the age and health of the parties; their respective competency to earn a living; the contributions of each party to the accumulation of the property; and the income producing capacity of the parties’ assets. Clement v. Clement, 292 N.W.2d 799 (S.D.1980).

The trial court has broad discretion with respect to property division, and its judgment will not be set aside unless it clearly appears that the trial court abused its discretion. Temple, 365 N.W.2d at 565. Although the trial court’s discretion is broad, it is not uncontrolled, and must be soundly and substantially based upon the evidence. Goehry v. Goehry, 354 N.W.2d 192, 194 (S.D.1984). This court’s review is limited [315]*315to a determination of whether there was an equitable property division. Temple, 365 N.W.2d at 565; Krage v. Krage, 329 N.W.2d 878 (S.D.1983).

With the foregoing principles in mind, we now turn to the distribution of marital assets in the case at bar. The trial court divided the marital property as follows:

Joanne Rolfe
Farm Equity $64,163.00
Residence Equity $33,963.00
IRA 1,319.45 17,304.66
Automobile 2,900.00
Boat & Trailer 1,500.00
Checking Account 200.00 1,500.00
Joint Savings Account 1,211.92
Lump Sum Payment 20,000.00
Profit Sharing 30.65

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Pellegrin v. Pellegrin
1998 SD 19 (South Dakota Supreme Court, 1998)
Priebe v. Priebe
1996 SD 136 (South Dakota Supreme Court, 1996)
Grode v. Grode
1996 SD 15 (South Dakota Supreme Court, 1996)
Kappenman v. Kappenman
522 N.W.2d 199 (South Dakota Supreme Court, 1994)
Abrams v. Abrams
516 N.W.2d 348 (South Dakota Supreme Court, 1994)
Horton v. Horton
503 N.W.2d 248 (South Dakota Supreme Court, 1993)
Bell v. Bell
499 N.W.2d 145 (South Dakota Supreme Court, 1993)
Kappenmann v. Kappenmann
479 N.W.2d 520 (South Dakota Supreme Court, 1992)
Sjomeling v. Sjomeling
472 N.W.2d 487 (South Dakota Supreme Court, 1991)
Fox v. Fox
467 N.W.2d 762 (South Dakota Supreme Court, 1991)
Radigan v. Radigan
465 N.W.2d 483 (South Dakota Supreme Court, 1991)
Gustafson v. Gustafson
453 N.W.2d 852 (South Dakota Supreme Court, 1990)
Schmidt v. Schmidt
444 N.W.2d 367 (South Dakota Supreme Court, 1989)
Miller v. Miller
444 N.W.2d 45 (South Dakota Supreme Court, 1989)
Studt v. Studt
443 N.W.2d 639 (South Dakota Supreme Court, 1989)
Ryken v. Ryken
440 N.W.2d 300 (South Dakota Supreme Court, 1989)
Gibson v. Gibson
437 N.W.2d 170 (South Dakota Supreme Court, 1989)
Adam v. Adam
436 N.W.2d 266 (South Dakota Supreme Court, 1989)
Peterson v. Peterson
434 N.W.2d 732 (South Dakota Supreme Court, 1989)
Jeffries v. Jeffries
434 N.W.2d 585 (South Dakota Supreme Court, 1989)

Cite This Page — Counsel Stack

Bluebook (online)
384 N.W.2d 312, 1986 S.D. LEXIS 226, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cole-v-cole-sd-1986.