Cooper v. Cooper

299 N.W.2d 798, 1980 S.D. LEXIS 459

• Court: South Dakota Supreme Court
• Decided: December 17, 1980
• Docket: 12884
• Status: Published

Opinions

FOSHEIM, Justice.

Plaintiff commenced this action for divorce on the grounds of extreme mental and physical cruelty. Defendant’s answer contained a general denial and a counterclaim for divorce. The trial court granted a divorce to the plaintiff. The defendant appeals from the property provisions of the judgment. We affirm.

At the time of trial, plaintiff was aged 50 and the defendant was 53 years of age. The parties, married on November 17, 1972, each had grown children by previous marriages. At the time of the marriage, the defendant was employed as a heavy equipment operator for a construction company. He owned a home in Canistota, South Dakota, subject to a mortgage for .$2,500.00. Plaintiff owned an 800 acre farm in Charles Mix County that she and her previous husband had operated until his death in 1968. She also had over one hundred head of cattle, farm machinery, some shares of Broken Arrow Ranch stock, and approximately $18,000.00 in her checking account. That account became a joint checking account after the marriage. To this account, plaintiff deposited $5,000.00 from the proceeds of an insurance policy on the life of her former husband and, in 1977, she deposited an additional $20,250.00 from the sale of Broken Arrow Ranch stock. She did considerable work on the farm, operating machinery and helping with the livestock. The evidence indicates that she was a better farm manager and operator than was the defendant.

During the marriage, the parties spent between $7,000.00 and $9,000.00 for repairs, improvements and payments on the Canis-tota house. At the time of the divorce, the unpaid balance on the mortgage was about $300.00.

At the time of trial, there were 60 cows, four bulls, four horses, 1,500 bushels of oats, 350 bushels of corn, machinery, and a savings and farm checking account. Between the time of the parties’ separation and the date of trial, the plaintiff sold corn and cattle for approximately $68,000.00. From that amount, $37,000.00 was applied towards expenses and payment of a note at the bank, leaving a balance of $31,000.00, which is in bank accounts. Plaintiff also paid off a bank loan of $20,000.00 plus interest, which was obtained by the parties in 1973. During the period of the marriage, plaintiff made land payments each year of $1,500.00; three from the joint account and the balance from her own funds.

In 1974, the plaintiff deeded a quarter of her land in Brule County to the defendant and herself in joint tenancy. At the time of trial, there was a mortgage against that and another quarter in the unpaid amount of $23,000.00. The home of the defendant in Canistota was then worth between $18,-000.00 and $20,000.00.

The basic issue on appeal is whether the trial court properly considered all of the necessary factors in making the property division, including the land transferred in joint tenancy.

The judgment provided that plaintiff pay the defendant the sum of $12,000.00. The defendant was granted ownership of the Canistota home, as improved, and all his personal effects. The defendant was directed, however, to deed to the plaintiff all of his interest in the Brule County quarter of land held in joint tenancy, subject to the encumbrances thereon which plaintiff was to assume. The plaintiff was granted sole ownership of all the farm land, machinery, equipment, livestock and other remaining property of the parties. The parties were directed to pay their own attorneys’ fees.

In reviewing the distribution of the property, we must remember that a trial court “is not bound by any mathematical formula but shall make such award from the material factors before [it] having due regard for equity and the circumstances of the parties.” Kressly v. Kressly, 77 S.D. 143, 150, 87 N.W.2d 601, 605 (1958). The principal factors to be considered by the trial court are: (1) the duration of the marriage; (2) the value of the property; (3) the ages of the parties; (4) the health of the parties; (5) their competency to earn a living; (6) the contribution of each party to the accumulation of the property; and (7) the income-producing capacity of the parties’ assets. Clement v. Clement, 292 N.W.2d 799 (S.D.1980); Hansen v. Hansen, 273 N.W.2d 749 (S.D.1979); Wall v. Wall, 260 N.W.2d 644 (S.D.1977). The trial court, upon considering such factors, has broad discretion in making a division of property and that division will not be set aside or modified unless it clearly appears that the trial court abused its discretion. Clement v. Clement, supra; Price v. Price, 278 N.W.2d 455 (S.D.1979); Wall v. Wall, supra.

The court found that, partly due to the poor management on the part of the defendant and partly due to economic conditions, there were no gains made in the net worth of the parties’ farming operation, except for appreciation of the farm land. The defendant contends that the court should have considered the enhancement of the value of the real estate. However, unlike cases such as Lien v. Lien, 278 N.W.2d 436 (S.D.1979), where the parties accumulated property during the course of a long marriage, the parties here were married about six and one-half years. While the defendant was involved in the management of the farm, the operation showed an annual loss. The real estate was not accumulated during the course of the marriage and the defendant contributed nothing to the appreciated land values, which resulted entirely from inflation rather than increased productivity.

The defendant’s next argument concerns the one-half interest in the quarter section of land held in joint tenancy. The trial court determined the value of this farm land at $48,000.00. One-half of that value, or $24,000.00, less one-half of the outstanding mortgage in the amount of $11,500.00, left the defendant with a $12,-500.00 equity. The trial court awarded defendant $12,000.00 cash, plus his Canistota property as improved. The trial court had full power to make a division of the property belonging to either or both parties regardless of the name in which title was vested. SDCL 25-4-44.¹ It appears that the defendant did, in fact, receive his share of the joint tenancy property in the form of cash.

The final issue is whether the trial court abused its discretion in refusing to award attorneys’ fees to the defendant. SDCL 15-17-7² grants the trial court power to order payment of attorneys’ fees in divorce cases where such an allowance seems warranted and necessary to the court. The defendant failed to request attorneys’ fees or costs at trial; on the contrary, his proposed conclusions of law as well as his proposed judgment and decree requested that “[ejach of the parties . . . pay their [sic] own attorney fees.” He thus made no showing of necessity to the trial court.

An issue may not be presented for a first time on appeal. In re Estate of Grimes, 87 S.D. 187, 204 N.W.2d 812 (1973); Fales v. Kaupp, 83 S.D. 487, 161 N.W.2d 855 (1968). The appellant must affirmatively establish a record on appeal that shows the existence of error. He must show that the trial court was given an opportunity to correct the grievance he complains about on appeal. Estate of Assmus, 254 N.W.2d 159 (S.D.1977). This he has failed to do.

Considering all the factors involved, we cannot conclude that the trial court abused its discretion. Clement v. Clement, supra; Hansen v. Hansen, 273 N.W.2d 749 (S.D.1979); Kittelson v. Kittelson, 272 N.W.2d 86 (S.D.1978). The judgment is affirmed.

WOLLMAN, C. J., and DUNN and MORGAN, JJ., concur. HENDERSON, J., dissents.

1 . SDCL 25 4 44 provides:

Where a divorce is granted for an offense of either husband or wife, the courts shall in such action have full power to make an equitable division of the property belonging to either or both, whether the title to such property is in the name of the husband or the wife. In making such division of the property the court shall have regard for equity and the circumstance of the parties.

2 . SDCL 15-17-7 provides:

The court may allow attorneys’ fees as costs for or against any party to an action only in the cases where the same is specifically provided by statute, but nothing herein shall abridge the power of the court to order payment of attorneys’ fees in all cases of divorce, annulment of marriage, or for separate maintenance and alimony, where the al-lowant of the same before or after judgment shall seem warranted and necessary to the court. Nor shall anything herein abridge the power of the court to allow attorneys’ fees from trusts administered through the court.