Evans v. Evans

SABERS, Justice

(concurring in part, dissenting in part).

[¶ 53] I would reverse and remand not only Issue 2 relating to insurance, but also Issues 1 and 3, relating to child support and alimony-

[¶ 54] The trial court’s perspective was so narrow in determining child support and alimony that one would think it was allocating its own money. The Supreme Court approves and affirms despite Ed’s gross annual income of $485,000. Maybe for South Dakota standards, this is so much money the court system is incapable of putting things in the proper perspective.

[¶ 55] The amount of child support determined by the trial court ($3,505) is only 8.7% of Ed’s monthly income, which amount will terminate in 1999.

[¶ 57] After the first 6 months of alimony at $2,500 per month, the trial court set alimony at $1,000 per month for 5 years. $1,000 per month represents a mere 2.5% of Ed’s monthly income.

[¶ 57] The trial court found that Cyndy “would be able to earn $25,000 per year within 3 to 5 years, after retraining and reentering the work force.” Apparently, the trial court found this to be fair and the majority affirms. How can this be fair when under the best scenario for her, her annual income will be $25,000 and his annual income will probably be upwards of $485,000, which the trial court acknowledged:

[T]he husband has a vastly superior earning capacity. At the present time he is earning approximately $485,000 per year and that can be expected to increase over the next twenty years. In contrast the wife is unemployed at the present time and after a period of training can be expected to earn only $20,000 with increases to $25,-000 after three to five years. After that time it is unlikely that her earnings would increase any more than the rate of infla*251tion. There is a great disparity in the earning capacity of the parties.

The trial court, and the majority, attempt to justify the alimony award by noting Cyndy’s additional income from investment of property distribution assets. This does not narrow the gulf between her income and Ed’s income; on the contrary, the court ignores the fact that Ed, too, will realize an increased income from investment of his property distribution assets. “[T]he award of alimony [is] wholly inadequate in amount and duration, especially considering ... the permanent disparity in the earning ability of the two parties.” Johnson v. Johnson, 471 N.W.2d 156, 165 (S.D.1991) (Sabers, J., concurring specially).

[¶ 58] The trial court was even more narrow in eliminating expenses for tennis and tennis tournaments from the family budget. It is obvious from the record that tennis activities constituted the major recreational, entertainment and social events for this family all year round. Tennis may seem like a luxury rather than a necessity from the perspective of an average South Dakota income, but not for this family. According to statute, the trial court must consider the actual needs and standard of living of the children:

For a combined net income above the schedule in § 25-7-6.2, the child support obligation shall be established at an appropriate level, taking into account the actual needs and standard of living of the child.

SDCL 25-7-6.9 (emphasis added). That standard of living is not what we think it ought to be — it is the standard of living set by the parties themselves; what may seem extravagant to an outsider was commonplace in this family.

[¶ 59] For the trial court to make Cyndy’s continued participation in Kelsey’s tennis events contingent on her invading the capital of her property distribution is shortsighted from a family standpoint and lopsided from a financial standpoint. This prevents Cyndy from continuing the active and supportive role which she always played in her daughters’ tennis activities. In contrast, Ed can choose to participate and contribute without ever even considering the need to invade the capital of his property distribution. It is not fair to unduly hamper Cyndy’s support of the children’s activities, when Ed can do so by simply expending pocket change.6

[¶ 60] I would reverse and remand as indicated above.

. For example, approximately one week before trial, Ed bought a new automobile for Kelsey, then 14 years old:

Q. What kind of car did you select?
A. She selected a Nissan Pathfinder.
Q. And what did you pay for that car?
A. Traded in her, the convertible that she had, a used convertible, and paid $20,-000.00.
Q. What was the total purchase price of that car?
A. Twenty thousand plus the trade-in of the Pontiac Sunbird, which I think had a trade-in value of, like, seven thousand something.
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A. Anticipating that [Cyndy] will pay for the insurance out of the child support that I pay her.
In other words, the decision of the trial court and the majority sanctions and approves Ed’s sole purchase of this car from marital funds while Cyndy is expected to cover the insurance from child support funds.
Ed can buy a 14 — year-old girl a $27,000 car with marital funds with impunity which amount exceeds two years of alimony.