Dixon v. Dixon

HENDERSON, Justice

(concurring in part, dissenting in part).

I agree with that aspect of the majority decision which reverses in part and remands in part the lower court’s decision. I concur that the child custody and property division be reversed and remanded for oral testimony, deeper reflection, and more extensive findings of fact and conclusions of law.

However, I cannot agree that the child support should be affirmed for the reason that this Court has reversed the child custody determination. Therefore, when new and/or different testimony is taken below, as distinguished from trial by affidavit, a totally new/different determination, hypothetically, could be made by the trial judge. In appellant’s brief, he exhorts the issue of child custody be remanded “to the trial court for the receipt of evidence and testimony with regard to this issue and the best interests of the children.” It is illogical to affirm a money award of child support because the essence of the majority opinion is to return this case for a proper evidentia-ry hearing.

When oral testimony is heard, it is possible that the father is awarded custody of the children. Hence, we cannot bind the trial court to child support in a certain amount of dollars to be awarded unto mother by father.

We are saying in one breath to the trial judge, open the door and your mind by oral testimony on the child support issue, and yet we are affirming the lower court on award of money for child support unto the mother.

As I understand the decision, the properly division is not being affirmed; if it is not being affirmed, it is being reversed, for, indeed, there is a remand for a redetermi-nation. The majority opinion characterizes *513this as “additional guidance and direction to the trial court.” It is obvious that the trial court, from the recitation as depicted in the majority opinion, did not follow the precedent of Blare v. Blare, 302 N.W.2d 787 (S.D.1981). Once we vault the mental hurdle that the property division has been reversed and is to be redecided below, we turn our minds to Krage v. Krage, 329 N.W.2d 878 (S.D.1983). Property division and alimony are to be considered together.

Alimony should not be isolated nor should the property division be isolated. It is well established precedent in this Court that the two are to be considered together. Reasons behind this rule are well grounded in that a property award could be so great that alimony was not justified; or that an alimony award should be justified because the property division for a party is meager. Therefore, I disagree heartily with the majority opinion on affirming alimony and would therefore reverse and remand that issue to be determined in light of the developments on the property division issue. If not considered together, alimony in this case becomes an island unto itself, broken away from the equitable package — floating without judicial firmament.