Lanphear v. Lanphear

303 N.W.2d 576, 28 A.L.R. 4th 779, 1981 S.D. LEXIS 237

• Court: South Dakota Supreme Court
• Decided: March 11, 1981
• Docket: 12819
• Status: Published

Opinions

WOLLMAN, Chief Justice.

The issue on this appeal from a judgment and decree of divorce is whether the trial court abused its discretion by awarding defendant, Muriel Joyce Lanphear, $1,000 as her share of a coin collection, $1,000 moving expenses and $200 per month alimony. We affirm.

Plaintiff Ammon Lanphear was fifty-eight years old at the time of trial, October 1978; defendant was sixty years old. They were married in 1975 at the request of plaintiff’s dying first wife. Each party maintained separate checking and savings accounts. Their separate property remained separate. They accumulated no joint property.

Defendant quit her $350-a-month job as a priest’s housekeeper to move to South Dakota and marry plaintiff. A year after the marriage defendant reinjured her back when plaintiff slammed a door in her face. This injury precluded her from working during the marriage and precluded her from returning to her previous employment. She has spots on her lungs that may be cancerous. She is certified as totally disabled for social security purposes and receives $180 per month in disability payments.

Plaintiff is in good health. He works as a motorman for the Homestake Gold Mine, earning between $10,000 and $11,000 per year.

The trial court awarded defendant $200 per month alimony for as long as she lives, remains unmarried, or until further order of the court. Plaintiff argues that the alimony award is an abuse of the trial court’s discretion.

After considering the relative positions of these parties, we conclude that the amount of alimony awarded is not excessive. Defendant was sixty years old at the time of trial. Her physical disability precludes her from returning to the housekeeping work that she performed for twenty years. Her sole income is the $180 per month disability payment. Plaintiff is younger and healthier. He owns real estate. He has a steady job and takes home $850 per month. The $200 per month alimony award was not an abuse of discretion, given the situation of each party relative to the factors pertinent to an award of alimony. Defendant was entitled to an amount of alimony which would allow her to maintain a reasonable standard of living. Hansen v. Hansen, 273 N.W.2d 749 (S.D.1979).

The trial court also awarded defendant $1,000 as her share of a coin collection and $1,000 moving expenses. Plaintiff argues that this award was an abuse of the trial court’s discretion. The record indicates, however, that plaintiff complied with the judgment by paying defendant $2,000. The voluntary payment of this award under the judgment precludes our review of that portion of the judgment. Kerr v. Kerr, 74 S.D. 454, 54 N.W.2d 357 (1952).

The judgment is affirmed.

DUNN, MORGAN and FOSHEIM, JJ., concur. HENDERSON, J., concurs in part and dissents in part.