(concurring in part and dissenting in part).
[¶ 20.] I dissent as to the award of alimony to Louise.
[¶ 21.] The trial court explained that it did not award alimony because it did not have enough evidence establishing the need for alimony. This lack of evidence to support a showing of alimony is critical to this ease. “[W]hen a party requests permanent alimony they must establish that they have a need for support and that their spouse has sufficient means and abilities to provide for part or all of the need.” Fox v. Fox, 467 N.W.2d 762, 767 (S.D.1991).
[¶ 22.] However, Louise did not ask for a ruling on alimony at the time of trial. Instead, she advocated leaving the issue open. Her attorney stated: “So I think it ought to be left open to see how this thing falls out before we make a ruling on it, and that you should award at least a small amount of alimony.” The trial court agreed to save the issue for another day as follows:
Well, the Court agrees with [Louise] on the point that maybe it would be best to leave it open. I don’t know what you’re going to come up with on a figure as to what [Gary] is going to owe [Louise]. With that, I want to have some sort of plan as to how that’s going to be paid. You know, the Court doesn’t want to have to force a sale, but at the same time, [Louise] has to find a place to live, and she will not be required to do that until such time as there are sufficient monies in the settlement paid to her that will allow her to do that.
And until that’s submitted, the matter of alimony will be kept open.
Certainly, the trial court made it clear that further evidence was required in order to establish Louise’s need for alimony, but ultimately none was forthcoming.
[¶ 23.] Louise did make a motion to reopen the case, but did not specifically mention her wish for alimony. A hearing was held, but again the subject of alimony barely came to light. In fact, Gary’s attorney first brought up the issue, arguing that there was no evidence presented on which to base an alimony award. Gary’s attorney pointed out that there was still nothing in the record that would indicate what Louise’s needs were. Shortly thereafter, Gary’s attorney asked if the trial court was going to award alimony. *878The trial court stated that there were insufficient facts on which to do so. During this whole hearing, Louise’s attorney remained silent on the issue of alimony. This was so even in the face of arguments by Gary’s attorney against alimony, and the court’s previous demands for further information and a plan to support any award of alimony.
[¶ 24.] Thus, Louise did not establish that she has “a need for support and that [her] spouse has sufficient means and abilities to provide for part or all of the need.” Fox, 467 N.W.2d at 767. In fact, she did not even attempt to put on more evidence to support her position after the trial court had made it clear that there needed to be “some sort of plan” as to how the alimony would be paid. Based on this record, then, how can there be an abuse of discretion when a party is put on notice that additional evidence is needed to resolve the issue of alimony and none is forthcoming? The trial court should be affirmed on this issue because to do otherwise amounts to a retrial at the appellate level. An award of alimony by this court constitutes this court acting as a trial court which I choose not to do on this record.