Lodde v. Lodde

420 N.W.2d 20, 1988 S.D. LEXIS 32, 1988 WL 13398

• Court: South Dakota Supreme Court
• Decided: February 24, 1988
• Docket: 15803 and 15804
• Status: Published

Opinions

MILLER, Justice.

This opinion consolidates two appeals, one in a divorce action and one in a probate proceeding. In both cases below the co-executors appealed from orders that modified the decedent’s alimony obligation to his former wife; the orders continued the alimony obligation but reduced it from $300 per month to $270. We affirm.

PROCEDURAL HISTORY AND FACTS

Mary Lou Lodde and her husband Dean Lodde were divorced in 1976. Their settlement agreement, which the trial court incorporated into its divorce decree, provided, among other things, that Dean’s alimony payment of $300 per month would continue following his death.¹

Dean died on January 18,1986. Because Mary Lou was not paid any alimony after Dean’s death, she filed affidavits in both the divorce and probate proceeding requesting alimony payments. The co-executors of Dean’s estate responded and requested that the divorce decree be modified to eliminate Dean’s alimony obligation.²

Because of Dean’s death and the reduction in his assets since the divorce, the trial court concluded that a change in circumstances had occurred. Consequently, the court reduced the alimony payments to $270 per month until Mary’s death or remarriage. ‘The trial court also awarded Mary attorney’s fees of $538.97.

Both parties have also made requests for appellate attorneys’ fees and costs.

ISSUE I

The co-executors’ first issue is that the trial court abused its discretion in adjusting the alimony obligation to $270 per month rather than terminating it entirely. Mary, on the other hand, does not argue that the modification was erroneous, but only that it be affirmed.

Generally, in the absence of an agreement between the spouses, the obligation to pay alimony ceases on the death of the obligor spouse. See 1 A. Lindey, Separation Agreements and Ante-Nuptial Contracts § 15.10 A(l) (1987); 2A W. Nelson, Divorce & Annulment § 17.20 (2d ed. 1961); Annot. 39 A.L.R.2d 1406 (1955). Cf. Tyler v. Tyler, 89 S.D. 462, 233 N.W.2d 804 (1975) (In affirming the trial court’s award of alimony for the wife’s lifetime, the court rejected the husband’s contention that the award was an unfair penalty against the husband’s heirs.)

In this case, however, Mary and Dean executed an agreement that Dean’s alimony obligation was to continue following his death.³ Because Dean’s obligation rested upon a clear agreement between the parties, which was incorporated into the divorce decree, the obligation was enforceable under terms of the agreement. Lindey, supra § 15.10 B(l); Nelson, supra fn. 35; Annot., supra § 5.

Despite a settlement agreement, the trial court may exercise its discretion and modify alimony; the trial court’s alimony determination will be upheld unless its discretion was abused. Wilson v. Wilson, 399 N.W.2d 890 (S.D.1987); Moller v. Moller, 356 N.W.2d 909 (S.D.1984). In claiming that this discretion was abused the executors’ primary argument is that the income producing ability of the estate is insufficient and that continuing the alimony payments will eventually result in Mary receiving all of the property just as if she were a surviving spouse. At the time Dean and Mary entered into the settlement agreement they could have foreseen that Dean’s property might eventually be dissipated if his alimony obligation were extended beyond his death. Thus, the executors essentially argue that they should be relieved of what they now perceive to be Dean’s bad bargain. But courts are not required to relieve parties from such bad bargains. Moller, supra. None of the executors’ arguments persuade us that the trial court abused its discretion in continuing the alimony obligation in a reduced amount.

ISSUE II

The second issue is whether the trial court abused its discretion in awarding Mary attorney’s fees of $538.97. The trial court properly considered the factors to be applied in making such an award. E.g. Temple v. Temple, 365 N.W.2d 561 (S.D.1985) (specifying the factors a trial court is to consider in awarding attorneys’ fees).

APPELLATE ATTORNEY’S FEES

Mary is awarded appellate attorney’s fees in the amount of $750.00.

The judgment of the trial court is affirmed.

WUEST, C.J., MORGAN and SABERS, JJ., concur. HENDERSON, J., dissents.

1 . Specifically, the settlement agreement stated: ‘It is further agreed by the parties hereto that said payments of alimony shall continue following the death of Defendant [Dean] in the event his death should occur prior to Plaintiffs death or her remarriage."

2 . One of the co-executors was Mary and Dean’s daughter.

3 .The agreement indicated that its sole purpose was “to adjust and settle the issues of alimony, division of property and assumption of financial obligations ..." In addition to the alimony provisions, Dean paid Mary $45,000 as a property settlement. In return, Mary gave up all her rights to marital property in Florida, in Davis, South Dakota, and in the family residence.