Moore v. Moore

354 N.W.2d 732, 1984 S.D. LEXIS 372

• Court: South Dakota Supreme Court
• Decided: September 12, 1984
• Docket: 14393
• Status: Published

Opinions

FOSHEIM, Chief Justice.

Marjorie Moore (wife) appeals from an order granting Frederick Moore (husband) a reduction in alimony payments and denying wife attorney fees. We affirm in part and reverse in part.

The parties were divorced in 1981. On August 22, 1983, a hearing was held on husband’s motion to reduce alimony payments and wife’s show cause contempt proceeding.¹ The husband's affidavit claimed and the court found: 1) that husband’s income had been reduced by about $60.00 per week; 2) that wife was an unemployed able-bodied woman capable of being gainfully employed; and, 3) that wife lived in a rent-free apartment. The court reduced wife’s alimony by $75.00 per month.

Wife claims the trial court abused its discretion by failing to recognize husband’s burden of proof on his motion for reduction in alimony payments. She cites Rousseau v. Gesinger, 330 N.W.2d 522 (S.D.1983), as authority. In Rousseau, however, the trial court expressly stated the husband bore no burden of proof. Id. There is no indication in this record that the trial court misapplied that burden.

Wife also puts misplaced emphasis on her conclusion that husband’s October, 1982, income reduction was too remote to be considered. A fair reading of husband’s affidavit shows that while his income was first reduced in October, 1982, about ten months before the hearing, his income continued to be about $60.00 per week less than it was at the time divorce judgment was entered.²

The general rule is “the weight of the evidence and the credibility of the witnesses is largely a matter of the trial court’s discretion.” Jameson v. Jameson, 306 N.W.2d 240, 242 (S.D.1981). This court will not disturb the decision of the trial court on questions of alimony and child support absent an abuse of discretion. Herndon v. Herndon, 305 N.W.2d 917 (S.D.1981). “The term ‘abuse of discretion’ refers to ‘a discretion exercised to an end or purpose not justified by, and clearly against, reason and evidence.’ ” Id. at 918.

Even though husband’s conclusory allegations regarding wife’s ability to be gainfully employed and her living circumstances alone would not support a modification of the decree; Rousseau, supra, at 525; in our opinion, he established sufficient specific facts regarding his reduction of income and other circumstances to support the trial court’s finding of changed circumstances.

Wife next contends the trial court abused its discretion in failing to make any provision whatsoever for her attorney fees. We agree. In her affidavit, wife stated she was unemployed and unable to pay attorney fees, sheriff costs, and other expenses incident to the proceedings. See Jones v. Jones, 334 N.W.2d 492, 494 (S.D.1983); citing Peshek v. Peshek, 297 N.W.2d 323 (S.D.1980). Husband, in his affidavit, admitted wife was unemployed. Husband is earning approximately $1,100.00 per month with monthly expenses of approximately $525.00. He was in arrearages on his alimony payments. It took these proceedings to collect the delinquencies. Based on that record, the trial court should have awarded wife her attorney fees. Lien v. Lien, 278 N.W.2d 436 (S.D.1979); Jones, supra at 495.

The reduction of alimony payments is affirmed. The cause is reversed and remanded to the trial court to determine and allow a reasonable attorney fee based on the factors announced in Lien, supra.

Attorney’s fees of $500.00 are awarded to wife on this appeal.

MORGAN, J., concurs. HENDERSON, J., concurs specially. WOLLMAN, J., concurs in part and dissents in part. DUNN, Retired Justice, participating. WUEST, Circuit Judge, acting as Supreme Court Justice, not participating.

1 . Husband was in arrearages on his alimony payments, but brought them up to date the day after the hearing. That matter is not before us on this appeal.

2 . Husband’s affidavit in support of his motion for reduction of alimony dated March 16, 1983, stated:

That when your affiant returned to work at the Metz Baking Company in October of 1982 he found that his earnings would amount to $6.65 per hour which is considerably less than he was earning when the divorce decree was entered; further, he no longer gets the Sunday pay at Metz Baking Company which amounted to $10.00 per week. In other words, your affiant’s net earnings are between $60.00 and $70.00 less than they were when the judgment was entered.” (Emphasis added).