Herndon v. Herndon

305 N.W.2d 917, 1981 S.D. LEXIS 275

• Court: South Dakota Supreme Court
• Decided: May 20, 1981
• Docket: 13052
• Status: Published

Opinions

WUEST, Circuit Judge.

This is an appeal from an order denying a reduction in child support payments and termination of alimony. We affirm.

The parties hereto were divorced in 1973 after seventeen years of marriage. There is no transcript of the original trial or any findings of fact and conclusions of law inasmuch as they were waived. It does appear that neither party had much property when they were married. After the marriage, appellant finished his training as a chiropractor and commenced a practice which he maintained with the help of appellee until the divorce. They accumulated property worth $200,000, which the trial court divided nearly equally. The decree further awarded appellee custody of the two sons with child support payments of $250 per child per month, and the additional sum of $600 per month for alimony. In addition, the court ordered a college trust fund of $20,000 per child, which was established. Appellee contributed $26,000 to the trust fund, and appellant contributed $14,000. In 1974 appellant applied for a termination of alimony and reduction in child support. The reduction in alimony was denied; however, the child support for the oldest boy was eliminated because he had married. In 1976 appellant again applied for a termination of alimony and a reduction in child support. Appellant asserted as changed circumstances for termination of alimony and reduction in child support payments appel-lee’s employment income; appreciation of the assets awarded to appellee by the divorce decree; appellant’s reduction in income; and appellant’s health problems involving the use of his hands.

Appellant has severe osteoarthritic changes at the base of both thumbs at the metacarpal trapezoidal joint which is aggravated by his profession, in which he has to do a great deal of manipulation and massage. The thumbs remain swollen and his work causes increasing pain. X rays show that there has been loss of cartilage so that bone is rubbing on bone at the base of both thumbs. His physician has recommended fusion or locking the joint at the base of the thumb on each hand with two pins, and the building of a bone bridge with bone from another part of the body. This surgery would disable appellant from his profession for at least a year. This condition was urged as a changed circumstance at the 1974 hearing, the 1976 hearing, and at the last hearing now on appeal. As a result of the 1976 hearing, the court reduced the alimony payments to $250 per month but left the child support payment at $250. Neither party appealed.

As changed circumstances since the 1976 hearing, appellant has alleged appreciation of appellee’s property awarded in the divorce decree; rental income of appellee’s property and employment income of appel-lee; redaction of appellant’s income; and sale of appellant’s practice due to the condition of his hands. Appellant now lives in Arizona and no longer practices, although he has Arizona and California licenses. Evidence introduced at the most recent hearing established that there was no change in the condition of appellant’s hands since 1974. Appellant maintained his practice until 1979, when it was sold.

The trial court held that there had not been a sufficient change of circumstances since 1976 to justify a reduction in support payments and termination of alimony. This Court has consistently held that there must be a change of circumstances to justify a change in alimony and child support payments. Blare v. Blare, 302 N.W.2d 787 (S.D.1981); Guindon v. Guindon, 256 N.W.2d 894 (S.D.1977); Jameson v. Jameson, 90 S.D. 179, 239 N.W.2d 5 (1976). This Court does not sit as a trier of fact and will not disturb the decision of the trial court on questions of alimony and child support unless there is an abuse of discretion. Stenberg v. Stenberg, 90 S.D. 229, 240 N.W.2d 100 (S.D.1976); Guindon v. Guindon, supra.

The term “abuse of discretion” refers to “a discretion exercised to an end or purpose not justified by, and clearly against, reason and evidence.” Root v. Bingham, 26 S.D. 118, 120, 128 N.W. 132, 133 (1910), quoting from Murray v. Buell, 74 Wis. 14, 41 N.W. 1010 (1889).

Applying these principles to the case at bar, we are unable to say that the trial court abused its discretion. The condition of appellant’s hands has remained unchanged since the hearings in 1974 and 1976. It is true that appellee’s property has appreciated since 1976, but this has resulted largely through inflation, which has also affected the cost of rearing appellant’s son. It is true that appellant has sold his practice and that he is not presently practicing his profession, resulting in reduced income; however, appellant has Arizona and California licenses, and there was some testimony that he may re-establish a practice in Sioux Falls. A person cannot voluntarily reduce his income in order to avoid alimony and support payments. Simmons v. Simmons, 67 S.D. 145, 290 N.W. 319 (1940). The evidence in this case does not show that appellant is unable to maintain a practice; to the contrary, it shows that appellant did continue practicing from 1974 until 1979.

The order is affirmed. Appellee’s motion for attorney fees and costs is denied.

WOLLMAN, C. J., and MORGAN and FOSHEIM, JJ., concur. HENDERSON, J., dissents. WUEST, Circuit Judge, sitting for DUNN, Justice, disqualified.