Dussart v. Dussart

MILLER, Chief Justice

(concurring in part and dissenting in part).

[¶ 25] I dissent as to issue two.

[¶26] I believe the trial court abused its discretion in limiting rehabilitative alimony to merely $200 per month. Rehabilitative alimony is appropriate where a lump-sum or short-term award of support is necessary to permit a spouse to achieve economic self-sufficiency or to improve or refresh job skills. Parsons v. Parsons, 490 N.W.2d 733, 738 (S.D.1992); Saint-Pierre v. Saint-Pierre, 357 N.W.2d 250, 261 (S.D.1984). Rehabilitative alimony is awarded to enable a former spouse “ ‘to obtain the educational skills she needs to fend for herself in life.’ ” Ryken v. Ryken, 440 N.W.2d 300, 303 (S.D.1989) (quoting Tesch v. Tesch, 399 N.W.2d 880, 885 (S.D.1987)).

[¶ 27] The trial court does not seem to have acknowledged the disparity in the parties’ post-divorce income. After alimony and child support deductions, Michael will have approximately $1,530 per month net income for his sole support. In contrast, including alimony, child support, and earnings, Stacy must support herself and her two children on a net monthly income of $1,281. I cannot agree that an alimony award which essentially covers tuition and book expenses will ensure Stacy’s self-sufficiency. Her basic living expenses while a student should also be considered when setting rehabilitative alimony. The trial court’s award fails to equitably apportion income between the parties during this transitional period.

[¶28] I am particularly troubled by the trial court’s miserly alimony award, because I believe factors relevant to setting alimony weigh heavily in favor of Stacy. While the parties are about the same age, their health is quite different. Michael is in good health, whereas, Stacy has sciatic nerve damage that causes her pain and limits the kind of physical labor she can perform. Stacy also has clinical depression, which she treats with medication.

[¶ 29] The earning capacity of the parties is sharply divergent. Without additional education and training, the court found Stacy “is primarily limited to essentially minimum wage jobs.” Assuming a forty-hour work week at the minimum wage of $4.25 per hour, Stacy’s annual earning capacity is $8,840. Meanwhile, the trial court found Michael’s earnings are in the “upper $30,000 to $40,000 range.” Likewise, the social standing of the parties after their divorce is very different. Michael is a gunnery sergeant in the United States Marines. Stacy is a manual laborer, currently performing part-time work in a school cafeteria.

[¶ 30] Additionally, the trial court’s conclusion that the parties were equally at fault in the termination of the marriage is contrary to the evidence presented to the court. Michael admitted to having five affairs during the course of the marriage. Stacy testified that she first became aware of Michael’s infidelity when she was pregnant with their second child and he advised her that she *114should have a syphilis test. Later in this pregnancy, Stacy opened a love letter addressed to Michael that referred to sexual encounters Michael had with another woman. Stacy also received numerous telephone calls from women who were interested in dating Michael and expressed surprise that he was married. Shortly before their separation and divorce, Stacy found a cross-stitch picture that another woman had recently given to Michael. It featured two intertwined hearts and read: “Two hearts in love beat as one. I’ll love you forever. Love Cindy.” Michael was removed from his post as a Marine recruiter due to a temper outburst and an affair he had with still another woman in the fall of 1993. Stacy testified that Michael was verbally abusive, telling her she never did anything right and was fat, ugly, and stupid. Michael admitted to calling Stacy names on occasion.

[¶ 31] Except for a claim that he was unfaithful with a prostitute, Michael did not dispute the extramarital affairs that Stacy described. Michael claimed Stacy did not give him enough attention. He contended she was affectionate and loving only when she wanted something from him. Referring to one of his affairs, Michael testified, “I know it was wrong, but I wasn’t getting any attention at home, and I figured — at one point, I figured life was too short for that kind of mediocrity.”

[¶ 32] I cannot agree that Stacy’s alleged inattentiveness and “mediocrity” was on par with Michael’s persistent and unabashed infidelity. Even acknowledging that we review a cold record, it is inconceivable that Michael experienced the same humiliation and betrayal that Stacy felt as a result of his blatant unfaithfulness.

[¶33] Michael’s deviousness went beyond his numerous affairs and spilled into the parties’ finances. As the majority notes, he had a secret bank account during the marriage. After telling his wife he wanted a divorce, he conveniently used funds from this secret account to pay his own attorney fees. Michael hid these marital funds while he was earning $30,000 to $40,000 per year and Stacy was working seventeen hours a week for $6.00 per hour.

[¶34] Finally, when awarding rehabilitative alimony, the trial court should consider a spouse’s foregone opportunities to enhance or improve professional or vocational skills. Parsons, 490 N.W.2d at 735. Although Michael testified that he wanted his wife to pursue education and a career during their marriage, he later stated he did not want his children “raised by a baby-sitter.” He told his wife, “Look, if we have kids right away, you’ve got to be home with them.” Stacy testified that she was prevented from pursuing an education and job training because of her husband’s insistence that she remain at home with the children.

[¶ 35] Based on the evidence presented, I believe it was against reason and evidence to award only $200 per month in rehabilitative alimony. Stacy, who will be raising the couple’s children while working toward a new career, should not live in near poverty while her former husband lives in relative comfort.

[¶ 36] I concur as to all remaining issues.

[¶ 37] I am authorized to state that Justice SABERS joins in this writing.