Pengra v. Pengra

HENDERSON, Justice

(concurring in part, dissenting in part).

I concur in that part of the opinion which affirms the trial court. I dissent to that part of the opinion which reverses the trial court.

Relief requested by the appellee, Robert M. Pengra, was to reduce an alimony payment; having considered the record, and conducted hearings (of which we do not have fully before us), the trial court reduced the alimony from $725 per month to $594.50 per month. This is a diminution in alimony of $130.50 and this case has spawned another alimony appeal to this Court. See dissent of this writer in Bradeen v. Bradeen, 430 N.W.2d 87, 90, (S.D.1988) for the continued proliferation of alimony appeals to this Court. Trial court decided, exercising its discretion, that each party should be responsible for their own attorneys fees. Note, in the majority opinion, that we did not have a record transcribed on the hearings below. Therefore, this Court should especially put its faith in the trial judge’s observation of the parties in court and their statements, under oath or otherwise, rather than to second-guess the trial court. Appellant, Ruth W. Pengra, who prevails in this appeal, owed a duty, under the settled law of this state, to come before the Supreme Court of this state with a full record. She did not. See State v. Jones, 416 N.W.2d 875, 878 (S.D.1987).

This Court has decried fine-tuning property awards. See Michael v. Michael, 287 N.W.2d 98, 100 (S.D.1980). Should this holding not likewise apply to alimony? If it does not, the deluge of alimony appeals, now confronting us each month, will become a flood which suffocates our academic input in all other cases of import which are presented to this Court. The trial court was apparently disappointed and frustrated that Ruth W. Pengra, appellant, failed to submit a revised statement of monthly expenses which she was asked to furnish. The trial court’s memorandum decision mentioned this and an Amended Judgment and Decree of Divorce was filed two days after the memorandum decision. In other words, this alimony recipient refused to obey the trial judge and come clean with her monthly expenses. Appel-lee’s withholding of economic information was revealed by a Supplemental Affidavit in which appellee exposed that appellant *758had shielded $4,056 of income as a deduction for maintenance of an “office-in-the-home” and that she had additionally shielded $2,058 as tax-exempt income. This is precisely why she was reticent in providing this information to the trial court, which the trial court had requested in February 1987. The trial court decided that this home office deduction was not an actual out-of-pocket payment; the trial court concluded that her income had increased since the original entry of the Judgment and Decree of Divorce. This was correct. An alimony award may be modified upon a mere change in circumstance. Wilson v. Wilson, 399 N.W.2d 890 (S.D.1987).

Historically, this Court has held that it will not disturb an award of alimony unless it clearly appears that the trial court abused its discretion. Cole v. Cole, 384 N.W.2d 312 (S.D.1986). Here, we have an incomplete record and yet we decide to hold for the alimony recipient when it was her responsibility to provide a complete record. I see no statement in the majority decision holding that this trial court clearly abused its discretion.

Work. Work. Work to pay alimony when you are middle-aged. Work for it when you grow old. Here, this professor had discussed with his ex-wife, Ruth, that when he grew older, he wanted to reduce his workload. This subject was discussed on several occasions prior to the time that the parties entered into the stipulation con-cemmg alimony. This professor does not challenge that he should pay reasonable alimony. What is reasonable, that is the question. This professor does not dispute that he agreed to take a nine-month versus a twelve-month employment contract. As he attained the age of sixty, he wanted to reduce his workload. That is his business, not the business of the courts. Courts should not be able to tighten the screws on any man as he attains the age of sixty and require him to put in the same type of day as when he was forty or fifty. The findings of fact and conclusions of law are clearly buttressed by the record herein establishing an increase in income of appellant and a callous disregard for the truth in shielding her income to the trial court on her income tax returns.* Appellant, Ruth W. Pengra, never honestly displayed to the court the amount of her disposable income.

With all of the record, representations, conferences, hearings, and exhibits, the trial judge decided that attorneys fees should be awarded to neither party. No abuse of this discretion has been shown. Gross v. Gross, 355 N.W.2d 4 (S.D.1984).

Finding of Fact II finds an increase of appellant’s income based upon a review of the income tax returns; Finding of Fact III reflects appellant’s earned income was $3,600 per year when the parties signed their stipulation on October 11, 1983; Finding of Fact IV reflects for the year, 1985, gross income of $6,324 and a deduction of $4,056 for maintenance of an “office in home” and an ultimate net income of only $463; Finding of Fact V reflects tax-exempt income for the year, 1985, of $2,053, thus when the o£flce-in-the-home deduction is added to the exempt interest deduction, appellant would have an unadjusted gross income, exclusive of alimony, in excess of $8,900, which is obviously substantially more than the stipulation of $3,600 in October 1983; Finding of Fact VI reflects that the appellant out and out refused to submit a monthly statement of her income and expenses to provide thfe court with a present financial condition; therefore, the trial court entered judgment, after entering a memorandum decision. Her delay and deceit is rewarded and, under the state of this record, the decision of the majority is a miscarriage of justice.