Connelly v. Connelly
Connelly v. Connelly
Opinion of the Court
Bernetta M. (wife) and James Keith (husband) Connelly were divorced after twenty-two years of marriage. Husband appeals. We affirm.
Husband claims the court’s decision to grant wife a divorce; alimony of $1,500 per month; and possession of the home until July 1, 1984, all lack sufficient evidentiary support.
The record indicates wife fulfilled traditional family responsibilities. She gave up her teaching career, and cared for the home and children. She was frugal when the family started out with little money, and she worked outside the home when necessary to supplement the family income. She cared for husband at home after his 1977 heart attack. Husband also had a
Husband assails wife’s claims concerning his alcohol problem, contending the evidence does not show a use of intoxicating liquor which meets the requirements of SDCL 25-4-16. Habitual intemperance was not alleged, or found, as a ground for the divorce. Husband’s drinking habit could nevertheless be a factor which the court could consider in finding grievous mental suffering upon the wife pursuant to SDCL 25-4-4. See, Phutzenreuter v. Phutzenreuter, 76 S.D. 276, 77 N.W.2d 563 (1956); Baker v. Baker, 252 Iowa 1161, 110 N.W.2d 236 (1961); Lawler v. Lawler, 175 N.W.2d 103 (Ia. 1970); Knapton v. Knapton, 28 Mich.App. 316, 184 N.W.2d 207 (1970).
Husband argues the alimony award should be governed by Hanks v. Hanks, 296 N.W.2d 523 (S.D. 1980) rather than Guindon v. Guindon, 256 N.W.2d 894, 898 (S.D. 1977). Wife’s conduct can hardly be compared with the wife’s misconduct in Hanks, supra. (Wife in Hanks left 4 children, ages 8-18, for an indefinite period to pursue an adulterous relationship). In addition, the wife in Hanks, supra, was fully employed at the time of trial. Mrs. Connelly is unemployed. Despite her educational level, the trial court found her re-entry into the job market will be difficult and require preparation. The evidence indicates husband has health problems and consequently may be forced into early retirement. The trial court obviously took this into consideration. The judgment provides that in the event husband retires at age 55 or older, wife’s alimony will be decreased to one-third of his retirement benefits, excluding social security. The alimony award was compatible with the evidence concerning husband’s earning capacity.
Husband’s claim the court erred in allowing wife sole occupancy of the home is moot since the house was sold July 4, 1984. See, Matter of Silver King Mines Permit Ex-5, 315 N.W.2d 689, 690 (S.D. 1982); Rapid City Journal v. Circuit Court, etc., 283 N.W.2d 563, 565 (S.D. 1979).
Wife’s request for appellate attorney fees of $1,275.00 meets the considerations of Peshek v. Peshek, 297 N.W.2d 323 (S.D. 1981) and Lien v. Lien, 278 N.W.2d 436 (S.D. 1979), and is granted.
The judgment is affirmed.
Dissenting Opinion
(dissenting).
Perhaps the origin and existence of alimony should be mentioned, however briefly, in order to understand not only this dissent but my past dissents on alimony in this Court. Literally, alimony signifies nourishment or sustenance. It is a monetary provision which the law may afford to a wife from her husband’s estate so that she may have food, clothing, habitation, and other necessaries for support. Bradley v. Superior Court, 48 Cal.2d 509, 310 P.2d 634 (1957). The term “alimony” is derived from the Latin word “alimonia,” see Eaton v. Davis, 176 Va. 330, 10 S.E.2d 893 (1940), and, in its origin, was a method by which the spiritual courts of England enforced the duty of support owed by the husband to the wife; however, this was only during such time as they were legally separated pending the marriage relation. Evolution in domestic relations law has swept this concept into oblivion. Obviously, even in the days of womanhood obtaining over one-half of the jobs in America, it is not for a woman to bask in luxury nor to enjoy fripperies.
The trial courts of this state, under SDCL 25-4-41, obtain their power to grant “alimony”:
Where a divorce is granted, the court may compel one party to make such suitable allowance to the other party for support during the life of that other party or for a shorter period, as the court may deem just, having regard to the circumstances of the parties represented; and the court may from time to time modify its orders in these respects.
Whereas, the Supreme Court of this state should act as a safety valve for, under SDCL 25-4-46, it is provided that:
[A]ll orders and decrees touching the alimony and maintenance of a spouse ... are subject to revision on appeal in all particulars, including those which are stated to be in the discretion of the court.
Therefore, the legislature has specifically engineered a review procedure and empowered the Supreme Court of this state to revise alimony “in all particulars.” Our trial courts are the first breath and the Supreme Court is the last breath on the propriety of alimony awards in this state.
Historically, this Court has taken the position that it will not disturb a decision of the circuit court upon an award of alimony unless there is an abuse of discretion. Wallahan v. Wallahan, 284 N.W.2d 21, 26 (S.D. 1979). Although counsel and the Bench might well argue on any given set of facts well into the night as to abuse of discretion or not, unless practicality is breathed into that phrase, we have Equity only from On High. An “abuse of discretion” refers to a discretion exercised to an end or purpose not justified by, and clearly against, reason and evidence. This lesson we are told in Herndon v. Herndon, 305
With the above general principles and rules of review in mind, I cite a case which sets forth the criteria in awarding alimony, Morrison v. Morrison, 323 N.W.2d 877, 878 (S.D. 1982). We held that:
In awarding a support allowance, whether it be specific property, a lump sum of money, or periodic payments, the trial court must consider the following factors:
(1) the length of the marriage; (2) the parties respective earning capacity; (3) their respective financial condition after the property division; (4) their respective age, health and physical condition; (5) their station in life or social standing; and (6) the relative fault of the parties in the termination of the marriage.
With these above factors as a guide, we should examine the facts of this case. Before doing so, reference is made to Martin v. Martin, 358 N.W.2d 793, 801 (S.D. 1984) (Henderson, J., concurring in part, dissenting in part), and a polestar case cited in the dissenting opinion therein, Grant v. Grant, 5 S.D. 17, 57 N.W. 1130 (1894). Grant, in an abundance of good sense, ruled that this Court should consider not only what the wife should have, but what the husband can and ought to pay. We shall now address the facts. Without understanding the facts, the reader is caught up in an iridescent cloud of sheer theory. Facts can dissipate a rainbow.
The parties were married 22 years. Husband’s earning capacity is good. For several years, he has been an office manager of an insurance adjustment company. His after-tax income in 1982 was $40,374.42; in 1981, his after-tax income was $41,865.99. His income can fluctuate greatly depending upon hail, casualty, and act-of-God losses which can generate business. Wife is a college graduate with a Bachelor’s Degree in English, a minor in Education, and has renewed her certificate to teach in South Dakota. She earned her Master’s Degree, all financed by her husband, in Selective Studies from the University of South Dakota in 1982, apparently fortifying herself to teach full time or to earn a living in the Humanities. Husband purchased a car for her so that she could drive to and from the State University, a distance of approximately 60 miles. Wife, although it appears in proceedings subsequent to the appeal, and therefore technically not before this Court, apparently secured a position after the divorce trial and earns upwards to $1,000.00 per month.
Although the majority opinion points out that wife was granted a divorce from husband, it does not mention that husband was also granted a divorce from wife on the grounds of extreme cruelty in that she inflicted grievous mental suffering upon him. Husband testified that wife was belligerent, arrogant, and self-righteous. She repeatedly told him their life-style was “superficial.” Wife was a true believer in the women’s liberation movement. Although claiming that she was a traditional housewife and mother, she absented herself from her home and actively took part in the following organizations: Board Member of Citizens Against Rape and Domestic Violence, Domestic Violence Coordinator, Representative at Women’s Network, counsels at St. Lamberts, started the “Tough Love” Group, Women’s Political Caucus, Parents Anonymous, Domestic Hot Line, Volunteer at Children’s Inn, Outstanding Volunteer for Crisis Intervention, Caring Parents, Family Violence Task Force, and sat through a publicized trial known as the Ridenour Trial (writing an editorial and letters).
Notwithstanding the display of her “liberation” and her desire for “freedom,” she insisted in alimony of $2,400.00 per month at the trial level but was awarded $1,500.00. In fairness to her, four children were raised in this marriage and, like all mothers, she made a sacrifice for these children and sublimated herself thereby to the career of her husband, the breadwinner. She should not be turned out into the cold, penniless, to fend for herself. As I have detailed above, she has received one-half of all of the real and personal property in this marriage and has a wonderful education upon which to build her own career — a career which she wanted more than marriage. It is difficult to understand how she can have it both ways, that is, a career wherein she is totally independent and yet
Not only is the award of alimony excessive, it is geared to a mathematical formula in the future. This formula, namely “Plaintiff shall receive alimony equal to one-third of Defendant’s retirement income, excluding Social Security benefits” (Finding of - Fact 15), cannot consider the conditions that exist at the time defendant retires at the age of 55. It is a projection of alimony in the future without knowing what the facts are in the future. When husband retires at the age of 55, his health could be far worse than it is now; the wife’s income could be far greater than it is now. This is but one hypothesis. It is, in effect, an anticipatory judgment.
I further dissent upon the basis that this is an “open-ended” alimony award. The award has no specified period of time and fails to take into consideration whether she should become married in the future. It is true that wife is not as young as the wife in Hanks v. Hanks, 296 N.W.2d 523, 527-28 (S.D. 1980). But we did therein state:
Our principal and strongest objection to the award is the failure of the trial court to provide for termination of the payments upon appellee’s remarriage.... The trial court should have anticipated that a woman of appellee’s age and education would enter into another marriage.
This Court should reverse and remand this ease with instructions to modify the alimony award for the reason that it is excessive, open-ended, and is geared to a rigid mathematical formula in the future without regard to the facts which could exist in the future; and, particularly, that an award of alimony, if any, consider her present employment and the evaluation factors under Morrison and Guindon.
. According to the 1980 Federal Census, of which I take judicial notice, males 16 years and over comprised 48% of the working force, 81,-732,090; females 16 years and over comprised 52% of the working force, 89,482,168. Source: 1980 Census, United States Summary, Ch. C,
. An alimony modification proceeding is apparently being held in abeyance pending the outcome of this appeal.
. She testified: “I think as far as where we were at, we were not working on the same things or going towards the same goals or talking about the same issues.”
Reference
- Full Case Name
- Bernetta M. CONNELLY, Plaintiff and Appellee, v. James Keith CONNELLY, Defendant and Appellant
- Cited By
- 19 cases
- Status
- Published