Korzan v. Korzan

HENDERSON, Justice

(specially concurring).

Judge Ronald Miller’s division of property is not as inequitable as the dissent would have the reader believe. Incorporated into the formal decision (Findings of Fact and Conclusions of Law) dated May 15,1991, is this statement in a Memorandum Opinion dated November 1, 1991:

Concerning contribution to the accumulation or value of assets, the plaintiff contributed as a mother and housewife and would ordinarily be entitled to half the value considering a 27-year marriage. However, she was absent from the home for a little less than half the time during the marriage, and such absence was not a contributing factor and may, in fact, have contributed to an inability to further accumulate equity or assets for the parties: and, as a result, the Court feels the plaintiff is only entitled to one-half of what would ordinarily be half the gain attributable to the value of the real estate during the marriage which means plaintiff’s share of the real estate on dissolution of the marriage is $18,850, which the defendant will pay over a period of seven years in equal monthly installments of $224.40 without interest.

The facts indicate that Suzanne was not a stable marriage partner. Suzanne left the house for years at a time and on fifteen different occasions. Here, Floyd raised the children from his first marriage. These children helped him around the farm before his marriage to Suzanne and, also, after his marriage to Suzanne.

In this case, the major issue seems to be: How does the trial judge award the property Floyd brought into the marriage? In decision after decision before this Court, *694we have held it is in the trial court’s discretion to exclude premarital property. See also, Garnos v. Garnos, 376 N.W.2d 571 (S.D.1985) (15 years of marriage; excluded $570,000 value of gifts from husband’s parents and this Court affirmed); Balvin v. Balvin, 301 N.W.2d 678 (S.D.1981) (29 years of marriage; excluded farm given to husband; this Court affirmed); Andera v. Andera, 277 N.W.2d 725 (S.D.1979) (18 years of marriage; trial court excluded a farm sold by mother of husband — to husband — at below market value).

In light of these decisions and the pattern of conduct of the wife: Leave the home, leave the home, leave the family, leave the family, it is understandable why Judge Miller considered the various equities in excluding the premarital property.

Floyd Korzan was 75 years of age when the Decree of Divorce was entered. Judge Miller found in Finding of Fact No. XXX that: “Floyd’s health is poor because of his heart problems and arthritis.” Per Findings of Fact No. XXIX, Judge Miller found “Suzanne’s health is good.” Judge Miller also found in his Findings of Fact:

VI.
Floyd’s parents gave him the N ½ of Section 21 on 04-05-50. This had been homesteaded by Floyd’s Grandparents.
VII.
Floyd inherited in May 1953, the SW ¼ of Section 22 from his Father.
VIII.
On October 15, 1953, Floyd purchased the S ½ SW ¼ of Section 16 with money his first wife earned while working for the IRS prior to her marriage.
IX.
Floyd’s first wife died in January of 1957.
X.
In June of 1963, Floyd purchased 520 acres from his brother on the terms of $1200 down and $1000 a year for 18 years at no interest.

There is no question Floyd’s contributions far exceed the contributions of Suzanne. Justice Sabers’ percentage thesis falls — perforce. Two other facts militate in Floyd’s favor: When he married Suzanne, he had over 100 cattle; in 1980, he inherited $48,000 from the Helma Estate. All are now gone. Testimony revealed Floyd spent over $40,000 maintaining a separate residence for Suzanne.

We should not seek reasons to reverse. Suzanne bears the burden to establish error committed by Judge Miller (abuse of discretion). Pearson v. Pearson, 312 N.W.2d 34 (S.D.1981). There is no reversible error in this case and I join the majority opinion because it is just.