Hautala v. Hautala

417 N.W.2d 879, 1988 S.D. LEXIS 3, 1988 WL 271

• Court: South Dakota Supreme Court
• Decided: January 6, 1988
• Docket: 15632
• Status: Published

Opinions

SABERS, Justice.

Bernard Hautala appeals a divorce decree claiming the trial court committed reversible error in allowing hearsay testimony about his military pay, in considering nongarnishable income in computing child support and alimony, and in awarding Phyllis rehabilitative alimony.

Facts

Bernard and Phyllis had been married almost nineteen years at the time of trial. Bernard was a Master Sergeant in the United States Air Force with over nineteen years of active service. Phyllis worked sporadically at minimum wage jobs after their children were born. They were both high school graduates. Bernard had fifty-seven semester hours of college. Phyllis had recently completed an adult education course in computers and two college level courses. They have three sons, who were aged sixteen, fifteen, and eight at the time of trial.

The principal marital assets were the marital residence, valued by the court at $54,000, household furnishings, and Bernard’s military retirement. Bernard was only a few months from achieving twenty years in the service, making him eligible for retirement. However, his then current duty assignment in Germany required him to remain in the Air Force for a period beyond twenty years.

The trial court found that Phyllis suffered chronic health problems, but that these problems did not disable her or prevent her from working full time. Phyllis was unemployed, but had been seeking employment. She was also interested in pursuing further education, but had not decided on a specific goal.

The trial court determined that each party was entitled to a divorce but that Bernard was marginally more at fault as a result of an extramarital relationship.

The trial court awarded legal custody of the three boys to both parties, with physical custody to Phyllis. She was given possession of the residence until the youngest son becomes an adult. At that time the equity in the home is to be divided equally. Bernard was ordered to pay $690 per month in child support and $210 per month for ten years as rehabilitative alimony. Using a formula which considered length of military service, length of marriage, and the overlap of the two, the trial court awarded Phyllis 42% of each of Bernard’s future military retirement payments.¹ Bernard does not challenge the property division which includes this 42% of future retirement payments.

1. TESTIMONY ON MILITARY PAY ALLOWANCES AND ENTITLEMENTS FROM A MILITARY AUDITOR.

Sergeant Ames, a military auditor from Ellsworth Air Force Base, was called by Phyllis to testify about specific military pay allowances and entitlements which Bernard was receiving. Bernard claims that Sergeant Ames’ testimony was hearsay which was either inadmissible or admissible only under SDCL 19-16-28 or SDCL 19-16-35. If admissible under these statutes, Bernard argues that Ames’ testimony should have been excluded because Phyllis did not give him advance notice of her intent to present this testimony. He disputes Ames’ testimony concerning the amounts of the entitlements, claiming changes in residence and marital status will alter the amounts received. This contention goes primarily to credibility not admissibility. Phyllis contends that even if the admission of Sergeant Ames’ testimony was error, it was harmless error because the trial court’s findings are substantiated by Bernard’s testimony. In his reply brief, Bernard also contends that Phyllis waived this argument because of a failure to cite any authority for her argument.

We find little merit in Bernard’s argument. Sergeant Ames’ testimony is closer to expert testimony than inadmissible hearsay. Admissibility of expert opinion testimony is within the discretion of the trial court. SDCL 19-15-2; Matter of J.L.H., 316 N.W.2d 650 (S.D.1982). Because of Sergeant Ames’ position, training, and experience, his testimony was beneficial in aiding the court’s understanding of military payments.

2. CONSIDERATION OF NONGAR-NISHABLE MILITARY PAY ALLOWANCES AS INCOME FOR COMPUTING CHILD SUPPORT AND ALIMONY.

Initially, Bernard argues that SDCL 25-7-7 states that income for child support includes amounts from specific enumerated sources and that none of these enumerated sources include the terms assigned to specific military pay allowances. SDCL 25-7-7 states that sources of income “include”: “(1) Compensation paid to an employee for personal services, whether called salary, wages, commissions, bonus or other designations.” (emphasis added) The wording of the statute appears to be purposefully broad and nonrestrictive to encompass any compensation paid, regardless of what it is called. Additionally, nothing in this section of the statute indicates that the listing of general categories of income is exclusive. The use of the word “include” suggests a legislative intent to encompass other, unlisted sources of income.

Bernard next argues that federal law and regulations make certain military pay categories exempt from garnishment and such sums should not be considered as income to him in computing child support and alimony awards. To accept Bernard’s argument would mean that regardless of how much income a party receives, such sums cannot be considered if those sums could not be garnished at their source in the future.

Regulations promulgated pursuant to 42 U.S.C. § 659 (1975) (which provides for enforcement of support obligations of federal employees) clearly state that military pay designated “basic allowance for quarters” and “basic allowance for subsistence” are not garnishable. 5 C.F.R. § 581.104(h)(2) (1980). The record shows that the trial court did include the monthly sums for quarters and rations paid to Bernard in calculating his net income. However, the federal laws and regulations cited above are not in conflict with our state statutes on child support. In Rose v. Rose 481 U.S. -, 107 S.Ct. 2029, 95 L.Ed.2d 599 (1987), a disabled veteran, whose income consisted of veterans’ and other federal benefits, appealed a finding of contempt for failure to pay child support on the grounds of preemption of federal law. The veteran argued, as one basis for preemption, that federal law prohibits garnishment of veterans’ disability benefits and thereby embodies a congressional intent that such benefits “not be subject to any legal process aimed at diverting funds for child support^] ” (emphasis in original) 107 S.Ct. at 2038. The Court stated “ [WJhile it may be true that these funds are exempt from garnishment or attachment while in the hands of the Administrator, we are not persuaded that once these funds are delivered to the veteran a state court cannot require that veteran to use them to satisfy an order of child support.” 107 S.Ct. at 2039. The Court noted that the purpose of these federal laws was to avoid sovereign immunity problems, not to shield income from valid support orders.

Bernard’s Leave and Earnings Statement (“the military equivalent of a pay stub.” 3 Rutkin, Family Law and Practice § 4306 (1987)) was before the trial court as his Exhibit # 2. The pay allowances, both designation and amount, were presented to the trial court. Although Bernard disputes the continuing amounts and the garnishability of certain of these pay allowances, he does not dispute that he is paid these sums. Therefore, the trial court was correct in including these items of compensation as income under SDCL 25-7-7.

3. REHABILITATIVE ALIMONY OF $210 PER MONTH FOR 120 MONTHS.

We have discussed the issue of rehabilitative alimony in numerous cases. In determining alimony and division of property, the trial court must consider: (1) the length of the marriage; (2) the respective earning capacity of the parties; (3) the financial condition of each, after the division of the property; (4) the respective age, health, and physical condition of the parties; (5) the station in life and social standing of each; and (6) the relative fault of each in the termination of the marriage. Booth v. Booth, 354 N.W.2d 924 (S.D.1984); Goehry v. Goehry, 354 N.W.2d 192 (S.D.1984).

The trial court found that:

(1) the parties had been married almost 19 years at the time of trial;

(2) Bernard’s net income was $1,900.00 per month and he had a better income-earning potential; Phyllis was presently unemployed and would only be able to earn income at a minimum wage without enhancement and rehabilitation of her skills;

(3) an equal division of the equity of the home after the youngest child reaches his majority was appropriate; personal property was to be divided to give Bernard approximately $2,600 and Phyllis approximately $6,700 (which included a vehicle for her use and one for the use of the children); Phyllis was entitled to 42% of Bernard’s future retirement payments;

(4) both parties were 41 years of age at the time of trial and Phyllis’ health was fair because of chronic health problems;

(5) the parties had a middle class status and both enjoyed an upper middle class social standing as a result of his military rank;

(6) Bernard bears a greater fault for the termination of the marriage.

Bernard contends that the trial court’s award of “reimbursement” or “restitutional” alimony must be set aside because Phyllis did not contribute to Bernard’s professional advancement. Bernard uses these terms interchangeably. Bernard does not cite any reference to nor does the record disclose any reference to “reimbursement” alimony. The trial court consistently refers to “rehabilitative” alimony in its findings of fact and conclusions of law. However, the judgment refers to “rehabilitative and restitutional alimony.” Although we urge the use of careful and consistent language, the issue is not the name placed on alimony, but whether the record supports the award.

This court has consistently held that rehabilitative alimony is proper where it is necessary “to enable the supporting spouse to refresh or enhance the job skills he or she needs to earn a living.” Saint-Pierre, supra at 262; see Tesch, supra; Booth, supra; Goehry, supra; Martin v. Martin, 358 N.W.2d 793, 799 (S.D.1984).

The trial court heard testimony that the skills and experience which Phyllis may have possessed years earlier were outdated. Two witnesses who were familiar with Phyllis’ background and the present labor market testified that Phyllis would not be able to obtain better than minimum wage employment without further training or education.

The trial court was also aware that the $900 per month in alimony and child support was insufficient to cover the expenses of Phyllis and the three boys. Phyllis would have to earn approximately $479 per month to meet current expenses.²

Bernard cites Stemper v. Stemper, 403 N.W.2d 405 (S.D.1987), modified on rehearing, 415 N.W.2d 159 (S.D.1987), in support of his argument that the trial court improperly considered his retirement income in awarding alimony. First, both Bernard and Stemper wholly fail to point out where or how the respective trial courts supposedly “improperly considered retirement income in awarding alimony.” Secondly, Stemper has been modified. For these and other reasons (see my dissenting opinion in Stemper at 409-10, joined by Judge Konenkamp), Stemper ⅛ authority should be and is severely limited. Phyllis is to receive 42% of the retirement payments as part of the property division. Bernard testified that he could not retire from the military before March of 1988 and that his inclination was to retire at that time. The findings of fact and conclusions of law, based upon extensive testimony at trial, indicate that the trial court presumed that Bernard would remain employed past 1988, either with the Air Force or with a civilian employer. The alimony award would not be paid from the retirement fund, but from his salary, unless he were not employed at all during the remaining eight years of the alimony award (i.e., if he were unemployed continually to age fifty-one). In Nauman v. Nauman, 320 N.W.2d 519 (S.D.1982), this court distinguished the inability to pay support obligations from a simple lack of funds. Nauman makes it clear that support obligations will not be eliminated simply because the responsible party chooses not to work or refuses to work.³

Phyllis has filed a separate motion for attorney fees, tax and costs. It is verified and itemized as required by Malcolm v. Malcolm, 365 N.W.2d 863 (S.D.1985). In determining the award of attorney fees, we consider factors such as the property owned by each party, their relative incomes, the liquidity of assets, and whether either party unreasonably increased the time spent on the case. Storm v. Storm, 400 N.W.2d 457 (S.D.1987). In light of these factors we award Phyllis $1,255.64 attorney fees.

WUEST, C.J., and MORGAN and MILLER, JJ., concur. HENDERSON, J., concurs in part and dissents in part.

1 . In arriving at a figure of 42%, the court utilized the following formula: length of marriage (projected) length of military service x ½.

The trial court's actual calculation was

226 months of marriage

271 months of military service = 83% divided by ½ is roughly 42%. A similar formula is proposed in 3 Rutkin, Family Law and Practice § 43.14[3]. However, under the Rutkin formula, Phyllis would be entitled to 60% of each retirement payment. Although these or similar formulas are not to be applied mechanically, they are permitted if used as a guideline. Tesch v. Tesch, 399 N.W.2d 880, 884 (S.D.1987); Saint-Pierre v. Saint-Pierre, 357 N.W.2d 250, 257 (S.D.1984); Krage v. Krage, 329 N.W.2d 878, 879 (S.D.1983).

2 . The rehabilitative alimony awarded is far from excessive. As the trial court noted this “is not an amount that will allow her to stay home. It will be an amount that will assist her in obtaining education, but not enough that she will be able to stay at home and go to school full time. She will be required to work.” Because the alimony award is needed to meet basic expenses, Phyllis will be able to continue her education through evening classes only if she earns more than minimum wage — an unlikely prospect without further education or training. This Catch-22 renders the alimony more "subsistence” than "rehabilitative.”

3 . A major thrust of Justice Henderson’s dissent is that this alimony award should terminate upon Phyllis’ remarriage.

1. This argument was never raised as an issue in the trial court or in Bernard’s briefs on appeal. If an argument is waived by failure to cite authority, Corbly v. Matheson, 335 N.W.2d 347 (S.D.1983), certainly waiver exists where no argument is made.

2. Obviously the reason the argument was not made was that it was considered premature. Phyllis has not remarried. If she does, the question can be considered and decided. See Marquardt v. Marquardt, 396 N.W.2d 753 (S.D.1986).

3.This simply is not an issue on appeal in this case. As Justice Wuest stated in Swanson v. Dep’t of Commerce, 417 N.W.2d 385 (S.D.1987): " [w]e should stick to the issues on appeal.”