Tuttle v. Tuttle

399 N.W.2d 876, 1987 S.D. LEXIS 206

• Court: South Dakota Supreme Court
• Decided: January 14, 1987
• Docket: 15183
• Status: Published

Opinions

MORGAN, Justice.

In this divorce action the former husband contends that the trial court abused its discretion in dividing the parties’ property. We affirm.

The parties were married in January 1980 and were granted a divorce in September 1985. The circuit court granted the former wife a divorce on the grounds of extreme cruelty and divided the parties’ property. Neither party was awarded support.

At the time of the trial in August 1985 the former wife was fifty-one years old and had five adult children. The former husband’s age is not revealed in the record. Neither party claims any ill health or disabilities. Both parties had been married before.

At the time they were married, the wife paid several of the husband’s debts amounting to approximately $6,000.

The wife’s income was derived from the grocery store she operated, which netted approximately $12,000 annually. Before their marriage the husband had been a Webster city policeman and had done some construction and carpentry work. During the marriage the husband worked some in the grocery store. Although he received no salary for his work in the grocery store, the wife provided the husband with approximately $45 a week spending money. He admitted they lived comfortably while they were married. Since the divorce he has been employed as a maintenance man at a nursing home.

During their marriage the wife financed several business ventures, including a game arcade, a detective and security agency, a photo machine business, a laundromat, and the construction of an apartment. The most significant venture, a detective agency operated by the former husband, consumed $45,000 of the former wife’s savings. Several loans from this venture remain. Of the several business ventures, only the apartment and the laundromat remain. The husband claims he put $10,000 of labor into the laundromat and apartment. The laundromat has net income of $900 per month. The wife now rents her home and receives rent of $250 monthly.

Initially, we observe that some of the husband’s argument is based on his view of the facts rather than the facts as they were found by the trial court. Cf. In re J.S.N., 371 N.W.2d 361 (S.D.1985) (attorney’s brief misstated findings and conclusions). However, the former husband’s counsel does not argue that any of the trial court’s findings are clearly erroneous. For this reason we will look solely at the facts as found by the trial court to determine whether the court abused its discretion in dividing the property.

Although the trial court made a variety of findings as to various dollar amounts involved in this marriage, the effect of the court’s distribution of assets and liabilities was essentially as follows:

HUSBAND WIFE

Net worth before divorce $ 20,000 $173,344

Net worth after divorce:

Assets (store, house, auto) - $118,000

Clark property $ 8,000 -

New York property -0- -

Apartment - $ 30,000

Laundromat - $ 25,00o¹

Total assets $ 8,000 $173,000

Liabilities:

Security Bank ($17,135.88) $ 8,567.94 $ 8,567.94

N.W. Bristol Bank ($14,368.44) 7,184.22 7,184.22

Ron Ells ($14,488.04) 7,244.02 7,244.02

Marilyn Brown ($12,000.00) 6,000.00 6,000.00

Electrical Contractor ($357.00) 178.50 178.50

HUSBAND WIFE

Evies’ Superette ($1,000.00) $500.00 $500.00

Lumber Company ($1,042.86) 521.43 521.43

Total liabilities $ 30,196.11 $ 30,196.11²

Net Worth (after divorce) -$22,196.11 $142,803.00

This division of property left the parties with essentially the same income property as when they entered the marriage, except for the laundromat and apartment, which were added onto the wife’s grocery store.

Neither party disputes the factors that should be considered in dividing property in a divorce. They are:

(1) the duration of the marriage;

(2) value of the property owned by the parties;

(3) age of the parties;

(4) health of the parties;

(5) competency of the parties to earn a living;

(6) contribution of each party to the accumulation of the property;

(7) income-producing capacity of the property owned by the parties.

E.g. Cooper v. Cooper, 299 N.W.2d 798, 799-800 (S.D.1980).

The husband’s primary objection is that the wife received all of the income property while he is still obligated to pay one-half of the debt. The husband’s contention that he also should have been awarded some of the personal property is based on his assumption that the assets of the parties increased during the marriage.

The home and grocery store, as income-producing property, were the wife’s at the beginning of the marriage. And the apartment and the laundromat are attached to the grocery store. Although the husband claims $10,000 worth of labor in these, his former wife also paid $6,000 of his debts when they were married and used up her savings in their ill-fated business ventures. Additionally, though wife received all the income property, the trial court found that her net worth declined by approximately $30,000 during their marriage and that she contributed $150,000 (apparently in income and assets) to the marriage. Thus, any assertion by the husband that the parties “accumulated” any personal or income property is untrue; the assets simply changed form, and, in fact, decreased. Moreover, the husband’s contribution in labor was more than offset by the wife’s contribution to the marriage.

This marriage lasted only five years. The husband is able to earn his own income. He contributed little to the income of the parties compared to the wife’s contribution. Yet, he contributed equally to the decline in his wife’s net worth while he lived comfortably with her. These factors lead us to conclude that the trial court did not abuse its discretion in requiring the husband to share in the debts while awarding the wife the assets she brought into the marriage. See, e.g., Samuelson v. Samuelson, 383 N.W.2d 867 (S.D.1986); Temple v. Temple, 365 N.W.2d 561 (S.D.1985).

The judgment is affirmed.

WUEST, C.J., SABERS, J., and FOSHEIM, Retired Justice, concur. HENDERSON, J., dissents. MILLER, J., not having been a member of the court at the time this action was submitted to the court, did not participate.

1 . Although the trial court separately accounted for the husband’s labor in improving the apartment and laundromat, the value of these assets necessarily must include the labor costs allocated to them. Therefore, we do not consider the husband's contribution in labor as separate from the value of these assets.

2 . Although the trial court did not make a finding as to the last four debts, the husband in his brief admitted that these debts existed. Appellant’s Brief at 4. This admission is binding on the husband. Cf. Reichert v. Reichert, 77 S.D. 258, 90 N.W.2d 403 (1958) (admission in brief of controverted fact binding on party).