Johnson v. Johnson

GROSSHANS, Circuit Judge.

John Johnson (John) appeals the provisions of a divorce decree relating to the alimony award. He does not contend that Bobbie Johnson (Bobbie) is not entitled to alimony, just not so much for so long. Bobbie requests her attorney fees and costs on the appeal. We affirm on all issues.

FACTS

At the time of trial, John was 49 years old and Bobbie was 45. They had been married since November of 1973, almost 20 years. They have one adult child. Prior to the marriage Bobbie completed high school and received a degree from a business college. John holds a Ph.D. in electrical engineering from the University of Nebraska. Bobbie did not work outside the home during the first two-thirds of the marriage. She loved being a housewife and homemaker for John and their daughter. In 1986, she began searching for outside employment. She was able to find various minimum wage type jobs in telemarketing, animal caretaking and working with the parent of a learning disabled child. Apparently, she likes this type of work and she hopes to attend college, obtain a four year degree, and work with learning disabled children. John had completed his education before the marriage. His career has progressed well and presently he is Director of Technical Services at Citibank at an annual salary of $109,000.00.

Neither John or Bobbie have any serious health problems. She can not do any strenuous lifting, but does not plan on doing any in any event. Although he drank on an almost daily basis, it was not always to a point of intoxication. He never lost work, nor did his drinking affect his career advancement. After a second DUI conviction in 1991, he entered an out-patient treatment program. It was during treatment that John told Bobbie that he was not sure if he ever loved her. He apparently had his drinking under control at the time of trial. There was no physical or verbal abuse during the marriage. As the trial court observed, “he really has no complaints at all about her as a wife.... ” It appears as though John and Bobbie essentially just got tired of each other and decided to go their separate ways. The trial court did not consider fault to be a significant issue in the case. Whatever fault existed was attributed to John.

Their disparate earning ability presents the primary problem facing the trial court. Caughron v. Caughron, 418 N.W.2d 791 (S.D.1988). The trial court was looking at a 45 year old woman who had been a homemaker, wife, and mother for 20 years. She had held a few minimum wage type jobs in the later years. John had a steadily increasing income and was earning around $125,000.00 all inclusive per year at time of trial. If Bobbie attends college and obtains a degree she will be entering the work force at age 50. She has only 15 years remaining for her career. He has the same 15 years plus the past 25 years. In effect, her earning capacity stalled when she married. His was enhanced because he was able to enjoy the benefits Bobbie provided as a full-time wife, homemaker and mother.

During the marriage they accumulated assets worth $372,486 and were essentially debt free except for the home mortgage. Bobbie was awarded 49% of the assets and they were almost all liquid — that is, easily converted to cash. Athough John was the one who “brought home the bacon” the trial court found that Bobbie had made an equal contribution because of her having fulfilled the *121traditional role of housewife, mother and homemaker. In so doing, she did forego employment opportunities. Kappenman v. Kappenman, 479 N.W.2d 520, 523 (S.D.1992).

In determining alimony, the trial court in its oral decision and written findings and conclusions considered the appropriate deci-sional criteria per Stubbe v. Stubbe, 376 N.W.2d 807 (S.D.1985). They both had enjoyed an upper middle class standard of living. They were frugal.

The trial court’s opinion was that John “has the ability to pay more alimony than Bobbie needs.” The trial court awarded Bobbie $2,500 per month for five years. That was to help her get through the school years. If she does not do so the alimony amount is decreased to $2,000 per month. Then, when her marketability in the labor force has increased, the alimony will be reduced to $2,000 per month for ten years. Thereafter, apparently when she has made some progress in her new career it will decrease to $1,000 per month until Bobbie attains the age of 65. At that point it is set at $100 per month. In other words, it is open for appropriate review by the court at that time in their life when they are considering retirement.

In light of the evidence before the trial court the alimony award was appropriately tailor-made to suit the needs and abilities of the parties and realistic under all the circumstances. Fox v. Fox, 467 N.W.2d 762, 767 (S.D.1991). The award was well-reasoned and in conformance with the evidence. An alimony award will not be disturbed absent a clear abuse of discretion. Parsons v. Parsons, 490 N.W.2d 733, 736 (S.D.1992).

Bobbie timely filed her request for appellate attorney fees and costs in the sum of $2,187.20. DeVries v. DeVries, 519 N.W.2d 73, 78 (S.D.1994). Her request is accompanied by a verified, itemized statement of costs incurred and legal services rendered as required by Malcolm v. Malcolm, 365 N.W.2d 863 (S.D.1985). Considering the criteria as outlined in Senger v. Senger, 308 N.W.2d 395, 398 (S.D.1981), we hold that Bobbie is entitled to recover her costs. Each party is responsible for their own attorney fees.

MILLER, C.J., and SABERS and AMUNDSON, JJ., concur. HENDERSON, Retired Justice, who was' a member of the Court at the time this action was submitted, concurs in part and dissents in part. GROSSHANS, Circuit Judge, for WUEST, J., disqualified. KONENKAMP, J., who was not a member of the Court at the time this action was submitted did not participate.