Connelly v. Connelly

362 N.W.2d 91, 1985 S.D. LEXIS 220

Opinions

FOSHEIM, Chief Justice.

Bernetta M. (wife) and James Keith (husband) Connelly were divorced after twenty-two years of marriage. Husband appeals. We affirm.

Husband claims the court’s decision to grant wife a divorce; alimony of $1,500 per month; and possession of the home until July 1, 1984, all lack sufficient evidentiary support.

The record indicates wife fulfilled traditional family responsibilities. She gave up her teaching career, and cared for the home and children. She was frugal when the family started out with little money, and she worked outside the home when necessary to supplement the family income. She cared for husband at home after his 1977 heart attack. Husband also had a drinking' problem. The trial court found wife suffered worry, anxiety, and emotional distress. We cannot conclude that the findings of fact and conclusions of law of the trial court granting wife a divorce were clearly erroneous'. SDCL 15-6-52(a).

Husband assails wife’s claims concerning his alcohol problem, contending the evidence does not show a use of intoxicating liquor which meets the requirements of SDCL 25-4-16. Habitual intemperance was not alleged, or found, as a ground for the divorce. Husband’s drinking habit could nevertheless be a factor which the court could consider in finding grievous mental suffering upon the wife pursuant to SDCL 25-4-4. See, Phutzenreuter v. Phutzenreuter, 76 S.D. 276, 77 N.W.2d 563 (1956); Baker v. Baker, 252 Iowa 1161, 110 N.W.2d 236 (1961); Lawler v. Lawler, 175 N.W.2d 103 (Ia.1970); Knapton v. Knapton, 28 Mich.App. 316, 184 N.W.2d 207 (1970).

Husband argues the alimony award should be governed by Hanks v. Hanks, 296 N.W.2d 523 (S.D.1980) rather than Guindon v. Guindon, 256 N.W.2d 894, 898 (S.D.1977). Wife’s conduct can hardly be compared with the wife’s misconduct in Hanks, supra. (Wife in Hanks left 4 children, ages 8-18, for an indefinite period to pursue an adulterous relationship). In addition, the wife in Hanks, supra, was fully employed at the time of trial. Mrs. Connelly is unemployed. Despite her educational level, the trial court found her re-entry into the job market will be difficult and require preparation. The evidence indicates husband has health problems and consequently may be forced into early retirement. The trial court obviously took this into consideration. The judgment provides that in the event husband retires at age 55 or older, wife’s alimony will be decreased to one-third of his retirement benefits, excluding social security. The alimony award was compatible with the evidence concerning husband’s earning capacity.

Husband’s claim the court erred in allowing wife sole occupancy of the home is moot since the house was sold July 4, 1984. See, Matter of Silver King Mines Permit Ex-5, 315 N.W.2d 689, 690 (S.D.1982); Rapid City Journal v. Circuit Court, etc., 283 N.W.2d 563, 565 (S.D.1979).

Wife’s request for appellate attorney fees of $1,275.00 meets the considerations of Peshek v. Peshek, 297 N.W.2d 323 (S.D. 1981) and Lien v. Lien, 278 N.W.2d 436 (S.D.1979), and is granted.

The judgment is affirmed.

WOLLMAN and MORGAN, JJ., and WUEST, Circuit Judge, acting as a Supreme Court Justice, concurs. HENDERSON, J., dissents.