Ryken v. Ryken

HENDERSON, Justice

(concurring in part, dissenting in part).

I concur on Issue 1, namely, that the trial court did not have authority to enter an order of contempt herein.

I respectfully dissent to this Court’s decision on Issue 2. In Ryken v. Ryken, 440 N.W.2d 300, handed down April 26, 1989 {Ryken I), this Court reversed and remanded for reconsideration the trial court’s award of rehabilitative alimony and division of property, which must be considered together, under Krage v. Krage, 329 N.W. 2d 878 (S.D.1983). The present majority’s decision that the trial court did not abuse its discretion in refusing to credit the temporary support towards the rehabilitative alimony is premature, as the status of both alimony and property division is undecided. The trial court’s discretion cannot be meaningfully considered in these circumstances. This issue should be decided, in equity, with reference to the matters to be reconsidered pursuant to Ryken I. Specifically, this Court’s decision in Ryken I has mooted the sentence in the current majority opinion which reads: “The trial court did not abuse its discretion in refusing to credit the temporary support towards the rehabilitative alimony.”

An old maxim of equity, being apropos here, is as follows: “Equity delights to do Justice and not by halves.”