Schabauer v. Schabauer

2003 SD 146, 673 N.W.2d 274, 2003 S.D. LEXIS 174

• Court: South Dakota Supreme Court
• Decided: December 17, 2003
• Docket: None
• Status: Published

Opinions

MEIERHENRY, Justice.

[¶ 1.] Alexander Schabauer (Alex) appeals the alimony provisions in his divorce decree from Terri Schabauer (Terri). We reverse and remand.

FACTS

[¶ 2.] Alex and Terri were married in 1989 and subsequently had two children, now ages nine and eleven.’ For most of the marriage, the couple lived in Rapid City where Alex worked as a cardiologist specializing in vascular medicine. Terri served primarily as a homemaker and mother although she did have some intermittent part-time employment as a social worker.

[¶ 3.] As time went on, the demands of Alex’s heavy patient load began to take a toll on his time and his marriage. Alex eventually hired &■ nurse practitioner to assist him in his work, but training her only increased the demands on his time. Moreover, the time Alex spent with the assistant and his wishes to socialize and spend time with her outside of work caused Terri to suspect that they were having an affair.

[¶ 4.] In late 2001, the parties separated and Terri commenced a separate maintenance action against Alex. Alex counterclaimed for divorce. The case was tried on September 5 and 6, 2002. On September 26, the trial court entered findings of fact, conclusions of law and a divorce decree granting Terri a divorce on the grounds of extreme cruelty. The parties entered into a shared parenting arrangement under SDCL 25-7-6.14¹ and the divorce decree imposed a net monthly child support obligation on Alex of $1,473 including tuition for private school and daycare expenses for a YMCA program. The marital property was evenly distributed and each party was awarded assets valued at $222,330. As part of the property distribution, the marital home was to be sold and the first $134,335 in net sale proceeds was to be awarded to Terri. Remaining proceeds were to be divided evenly between the parties. The divorce decree also contained the following provision on alimony: “that [Alex] shall pay [Terri] $2,450.00 a month alimony for twelve years unless [Terri] shall sooner remarry or die[.]” Alex appeals.

ISSUE

[¶ 5.] Did the trial court abuse its discretion in its alimony award?

[¶ 6.] Alex argues that the trial court erred in its alimony award. The standards for reviewing alimony awards are well established:

Our standard of review for the trial court’s alimony determination is abuse of discretion. “In determining whether there was an abuse of discretion, we ask, ‘whether a judicial mind, in view of the law and the circumstances of the particular case, could reasonably have reached such a conclusion’.” We will not set aside the trial court’s findings of fact unless they are clearly erroneous.

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A party requesting alimony has the burden of proving [a] need for support and that [a] former spouse “has sufficient means and abilities to provide for part or all of that need.” The factors that must be considered in determining the need for, amount and duration of alimony are: (1) length of the marriage; (2) respective earning capacity of the parties; (3) their respective age, health and physical condition; (4) their station in life or social standing; and (5) relative fault in the divorce.

Dejong v. Dejong, 2003 SD 77, ¶¶ 5-7, 666 N.W.2d 464, 467-68 (citations omitted).

[¶ 7.] The trial court entered the following findings on the factors applicable to determining alimony:

Length of the Marriage

[¶ 8.] The court found that the parties were married for thirteen years and were in an exclusive dating relationship for a number of years before that.

Respective Earning Capacity of the Parties

[¶ 9.] The court found that, as a doctor, Alex generated annual income of a quarter of a million dollars or more. In addition, the court found that Alex was the beneficiary of significant family investments held by his parents over which he had no control. The court declined to treat these investments as marital property subject to division.

[¶ 10.] The court found that Terri, with her master’s degree in social work and her minor in archeology, was capable of earning less than one-fifth of the income earned by Alex. The record reflects that, in the fall of 2001, Terri began working for the State Archeology Research Center for $9.25 an hour or a gross of approximately $19,240 per year.

The Age, Health and Physical Condition of the Parties

[¶ 11.] The record reflects that both parties are approximately thirty-seven years of age. The court found that although both parties had minor ailments or disabilities, they were not factors affecting the alimony award.

The Parties’ Station in Life or Social Standing

[¶ 12.] The court found that the parties lived in a marital home valued at a quarter of a million dollars and that them standard of living had steadily increased with their income. The court found maintenance of Terri’s standard of living an important factor in the alimony award observing that, unless a substantial award was made, Terri would be unable to maintain any semblance of her former lifestyle and that her declining lifestyle would be “readily apparent to the children.”

The Parties’ Relative Fault in the Divorce

[¶ 13.] Fault was also a consideration in the alimony award. The trial court found Alex at fault in the breakdown of the marital relationship based upon the low priority he placed on the marriage and family life and based upon his inability or unwillingness to change. Although the trial court did not find any infidelity on Alex’s part, it did find that, in essence, he abandoned the marriage by his course of conduct and with actions that raised a reasonable suspicion of marital misconduct.

[¶ 14.] There is ample eviden-tiary support in the record for all of the trial court’s findings of fact. The findings concerning the length of the marriage, the respective earning capacity of the parties, the maintenance of their stations in life or social standing and their relative fault in the termination of the marriage support the award of alimony to Terri. Aex argues that an abuse of discretion is established when Terri’s alimony is compared with awards in similar cases. However, when considering alimony awards, we review each case on its own facts and will not reverse absent an abuse of discretion. Johnson v. Johnson, 471 N.W.2d 156, 162 (S.D.1991).

[¶ 15.] Aex argues that the following finding of fact establishes that the trial court impermissibly awarded alimony as a form of child support:

Relationship between Aimony and Child Support. This is not a standard or factor which has been addressed by South Dakota decisions directly. However as a matter of fiscal reality, it is an extremely important factor. The statutes pertaining to child support particularly address greater than guideline income by providing that the Court shall set support at an appropriate level considering the actual needs and standards of living of the children. The Court finds that either a significant alimony award or a substantial child support deviation is necessary for [Terri] to meet the chil-drens’ needs and maintain the lifestyle to which they are accustomed and which they will readily enjoy with [Aex], If granted in terms of child support, the payments would not be tax deductible while as alimony they are a tax (and medicare) deduction for [Aex] and a taxable income to [Terri]. At [Aex’s] tax bracket, each thousand dollars of child support has an additional tax and medicare burden of approximately four hundred dollars. Whereas, if the thousand dollars is paid as alimony, [Aex] will not pay the additional four hundred dollars, and [Terri’s] taxes will not include medicare or social security and will be at a markedly lower tax rate. The court’s analysis of the relative disposable incomes of the parties establishes that the stability of income established by an alimony award will have marked tax advantages for the parties and provide a more evenly balanced and stable basis for adjusting child support during the childrens’ minority years. Essentially, the Court finds that the use of alimony allows [Terri] to maintain, not improve, her standard of living and to, include the children therein. It seems the far more equitable approach even without consideration of the marked tax savings it generates.

[¶ 16.] This finding clearly reflects the trial court’s linkage of the issues of alimony and child support because of the tax advantages of one award over the other. The linkage of the two issues is also apparent in the trial court’s finding that:

Based upon the foregoing and the evidence relating to the cost of living and expenses associated with all aspects of the post divorce lifestyles of the parties, the Court determines that an alimony award of [$2,450] per month for a period of twelve years is essential for [Terri] to maintain her social standing, standard of living, and to allow the children to have the same standard of living in both homes, (emphasis added).

[¶ 17.] This Court has long cautioned against confusing alimony and child support awards. The issue arose before this Court in Price v. Price, 278 N.W.2d 455 (S.D.1979). In Price, this Court condemned the inequities in the property division, alimony and child support awards in that case, but did not reverse on the basis of the inequities alone. Rather, the Court proceeded to separately review the property division and child support awards based upon the factors and considerations applicable to each. It was in the context of its review of the child support award that the Court also considered the propriety of the trial court’s linkage of alimony and child support in directing that, as each child reached the age of majority, the husband’s alimony obligation should be reduced by $100 per month. On that issue, this Court wrote that:

Although we recognize that awarding alimony and child support payments are in the trial court’s discretion, we must stress that alimony and child support are separate concepts. Child support provides for the maintenance of the children while alimony represents a suitable allowance to a party for his/her support. The amount of the alimony award should not be governed by the number of minor children that are in the household, rather the amount should reflect what is required after an analysis of the factors presented in [Guindon v. Guindon, 256 N.W.2d 894 (S.D.1977)] for a suitable allowance to plaintiff. Inasmuch as the alimony award fluctuated with the child support, we must remand the alimony award to the trial court for further consideration based solely upon a suitable allowance to plaintiff independent of the child support consideration. We must also remand the child support award to the trial court for similar reasons, i.e., it appears that the trial court did not primarily consider the maintenance of the minor children in setting the amount of child support at $100 per month per minor child and then, in the alternative, set the amount at $50 per month per minor child accompanied with decreases in alimony of $100 per month as each child reached the age of majority. Each question must be considered separately, and defendant’s parental responsibility to provide for the maintenance of his children on the basis of the Guindon factors should not be interwoven with his marital obligation to plaintiff to provide a suitable allowance for her support.

Price, 278 N.W.2d at 458-59 (some citations omitted)(emphasis added). See also Watson-Wojewski v. Wojewski, 2000 SD 132, ¶ 21, 617 N.W.2d 666, 671 (on claim that part of child support award was de facto alimony, held that the child support statutes do not authorize an alimony windfall contained in the rhetoric of child support).

[¶ 18.] The alimony and child support awards here violate the principles set forth in Price. The amount of Terri’s alimony should not have been governed by the presence of children in her household or their needs and standard of living. Rather, the amount should have reflected what was required for a suitable allowance to Terri based upon an analysis of the factors applicable to awarding alimony. Similarly, the trial court did not primarily consider the maintenance of the children or their actual needs and standard of living in setting Alex’s child support obligation. See SDCL 25-7-6.9 (where parents’ combined income is above child support schedule, establishment of support obligation must reflect consideration of children’s actual needs and standard of living). Alimony and child support must be considered separately, and Alex’s parental responsibility to provide for the maintenance of his children on the basis of the factors applicable to setting child support should not have been interwoven with his marital obligation to provide a suitable allowance for Terri’s support. Compounding the problem here was the trial court’s focus on the tax considerations involved in alimony and child support awards. Yet, tax considerations are not a recognized factor in awarding alimony or child support.

[¶ 19.] Terri argues that this Court’s recent decision in Peterson v. Peterson, 2000 SD 58, 610 N.W.2d 69 links the issues of child support and alimony. In Peterson, this Court held that a recipient spouse’s alimony must be included as part of his or her income and must be deducted from the payor spouse’s income in calculating child support according to the statutory guidelines contained in SDCL eh 25-7. This is far different than increasing alimony as a form of child support because of tax considerations as was done here. In addition, our acceptance of the linkage or combination of alimony and child support would actually make compliance with Peterson more difficult. Courts would be required to determine the portion of a combined alimony/child support award that should be considered as income to the recipient spouse and as a deduction by the payor spouse in calculating child support. Use of the total alimony award containing sums actually intended for the support of the children would falsely inflate the income of the recipient in the. child support equation in violation of the economic realities stressed by the dissent. Thus, the dissent’s advocacy of linked or combined alimony/child support awards leads to potential results that are administratively problematic.

[¶ 20.] Another administrative problem posed by the linkage of alimony and child support arises from the role fault plays in the alimony determination. As previously set forth, the parties’ relative fault in the termination of the marriage is an appropriate factor to consider in awarding alimony. Dejong, supra. It is not, however, an appropriate factor to consider in awarding child support. The obligation to support a child is not premised on one party or the other’s fault in the events leading to the termination of the marriage. Linking or combining alimony and child support in the same award would permit the issue of fault to creep into the child support determination. This is not acceptable.

[¶ 21.] Based upon the foregoing, the alimony and child support awards must be reversed and remanded for reevaluation in conformity with both Price and Peterson. On remand, the trial court should calculate a suitable allowance for alimony for Terri independent of any child support consideration and based solely upon the factors applicable to determining alimony. Price, supra. Once alimony is determined, the trial court must calculate child support in accord with the applicable guidelines and statutory requirements with appropriate adjustments to the parties’ incomes for the amount of alimony in accord with Peterson, supra. The trial court’s reevaluation must be based upon the appropriate factors applicable to the particular award under consideration.

Appellate Attorney’s Fees

[¶22.] Terri’s counsel has filed a motion for an award of appellate attorney’s fees accompanied by an itemized statement of costs incurred and legal services rendered per Malcolm v. Malcolm, 365 N.W.2d 863 (S.D.1985). The motion is denied.

[¶ 23.] Reversed and remanded.

[¶ 24.] GILBERTSON, Chief Justice, and ZINTER, Justice, concur. [¶ 25.] SABERS, Justice, dissents. [¶ 26.] KONENKAMP, Justice, disqualified.

1 . With regard to shared parenting, SDCL 25-7-6.14 provides in pertinent part:

[S]hared responsibility means a parenting plan whereby each parent provides a suitable home for the child of the parties, the court order allows the child to spend at least one hundred twenty days in a calendar year in each home, and the parents share the duties, responsibilities, and expenses of parenting.