Cole v. Cole

HENDERSON, Justice

(concurring in part; dissenting in part).

Although it is somewhat satisfactory to see the alimony award of $400.00 reversed in this case, I would totally reverse any award of alimony. This author’s alimony views have been fully set forth in Martin v. Martin, 358 N.W.2d 793, 800 (S.D.1984) (Henderson, J., concurring in part and dissenting in part); Connelly v. Connelly, 362 N.W.2d 91, 92 (S.D.1985) (Henderson, J., dissenting); Temple v. Temple, 365 N.W.2d 561, 569 (S.D.1985) (Henderson, J., dissenting); Stubbe v. Stubbe, 376 N.W.2d 807, 809 (S.D.1985) (Henderson, J., dissenting); and as recent as the writer of this Court’s opinion in Straub v. Straub, 381 N.W.2d 260 (S.D.1986). In Straub, the ex-husband never disputed the fact that he owed an obligation to support his ex-wife. The amount of alimony was the question considering his reduced income. In Straub, the reasonableness of the ex-wife’s needs and the amount which the ex-husband could and ought to pay was to be considered. Grant v. Grant, 5 S.D. 17, 57 N.W. 1130 (1894).

As I pointed out in Stubbe, I have voted for rehabilitative alimony in Booth v. Booth, 354 N.W.2d 924 (S.D.1984) (alimony restricted to 15 months), and Goehry v. Goehry, 354 N.W.2d 192 (S.D.1984) (wife unable to work and in poor health). As I specially wrote in Saint-Pierre v. Saint-Pierre, 357 N.W.2d 250, 263 (S.D.1984), “[t]o me, rehabilitative alimony is an award of a monthly sum of money to rehabilitate a deserving spouse so that he or she may obtain the skills necessary to fend for himself or herself in life, by education or job training.”

This Court has the power to revise or eliminate the alimony award on appeal. It is a most specific statute, SDCL 25-4-46. Ex-wife here has good health, a decent paying job, $20,000.00 as a lump-sum payment, a good automobile, personal property awarded to her of $5,435.00, a joint savings account award of $1,211.92, and money in a checking account. She has the family residence awarded to her, filled with furniture. With no one to support but herself, she makes this remarkable statement in her brief, through counsel: “Her lot in life now is comparable to a disposable plastic container whose appearance and presumed usefulness are gone.” She is a middle-aged woman, at the age of 47, and life is hers, as she makes it. She can work for a living, as we are all expected to do, and it is preposterous for her to advocate that her life is virtually over, ruined, and destroyed by a divorce. This is emotionalism on her part to win an alimony award in the courts. At her health and at her age, and with her job at a bank, plus the property she has been awarded, if she lives with common sense and an ordinary degree of frugality, she can live very well in Sioux Falls, on her property award and salary. Certainly, as the majority recognizes, her ex-husband does not have to have two jobs, namely, a day job and a night job, to pay her $400.00 per month alimony. If she wants this extra income, let her get the night job together with her present day job. No man should have to work two jobs, that is, day and night, to pay alimony. Were this true, it would not be alimony, it would be slavery. This author’s opinion on alimony is not out of sync with the factors established in Morrison v. Morrison, 323 N.W.2d 877 (S.D.1982), and Guindon v. Guindon, 256 N.W.2d 894 (S.D.1977). We should always *319bear in mind the old case of Grant v. Grant, 57 N.W. 1130, for the principle of the reasonableness of the needs and that which the ex-husband can and ought to pay.

Time spent on earth, years on the Bench, and observation from two decades in the trial practice have brought me to the conclusion that there are usually three stories in these divorce cases: Her side, his side, and the way it really was. Here, it is true that the ex-husband took to drink, for a number of years, but in the last four years of the marriage, his problem with drinking intoxicants had abated if not nearly disappeared. But it is also true that aside from this, this ex-wife and ex-husband simply did not have the chemistry going between them that filled the marriage with love. The parties had a problem talking to one another about matters which arose during the marriage. There was a lack of communication between them and they did seek marriage counseling with the hope that if there was anything left of the marriage, they could put it back together. It was Joanne C. Cole who began to talk to Mrs. Sweeter, her next-door neighbor and friend, about the lack of communication with her husband and that she could not seem to get through to him. Ultimately, the marriage counseling did reveal that this ex-husband and ex-wife simply could not communicate and that it was fruitless to continue with the marriage unless there was some great substantive change. This change never resulted. This failure to communicate manifested itself at office parties where the ex-husband worked, when he would visit with his co-workers while his ex-wife would sit and visit with other people. There did not seem to be that oneness and precious interrelationship which would make a marriage successful and happy. The bottom line is that Rolfe Cole was not singularly the person who precipitated a breakdown in this marriage of 24 years.

Times have changed. See historical growth and evolution of alimony in Connelly, 362 N.W.2d at 92. Women today comprise 52% of the working force in our land. Id. at n. 1. The statute which established husbands as being the head of the house was repealed in this state. See Martin, 358 N.W.2d at 803 n. 3. We do not have a sick and disabled ex-wife in this case nor one without a job or training. We have an individual who has joined the American labor force and participates fully in it, of her own volition, and still would have her ex-husband support her. Under all of the facts and circumstances of this case and the authority conferred by the state legislature under SDCL 24-4-46, I would vacate the alimony award in to to. To that extent, I respectfully dissent to the majority opinion but agree with it in all other respects.