Stemper v. Stemper

SABERS, Justice

(dissenting).

The trial court did not abuse its discretion in awarding alimony of $600 per month. The amount of alimony to be awarded rests in the sound discretion of the trial court and this court will not interfere with such an award unless the same is based on a clear abuse of discretion. See e.g., Cole v. Cole, 384 N.W.2d 312, 315 (S.D.1986); Straub v. Straub, 381 N.W.2d 260, 261 (S.D.1986); Stubbe v. Stubbe, 376 N.W.2d 807, 808 (S.D.1985); Goehry v. Goehry, 354 N.W.2d 192, 194 (S.D.1984); Krage v. Krage, 329 N.W.2d 878, 879 (S.D.1983); Rykhus v. Rykhus, 319 N.W.2d 167, 170 (S.D.1982); Palmer v. Palmer, 316 N.W.2d 631, 633 (S.D.1982); Hanks v. Hanks, 296 N.W.2d 523, 527 (S.D.1980). Such is the settled law of this State which Husband recognizes at page twelve of his brief.

In exercising its discretion, the trial court considered all of the relevant factors as required by Guindon v. Guindon, 256 N.W.2d 894, 898 (S.D.1977), generally as follows:

1. Length of marriage — 29 years
2. Their respective earning capacity— Husband’s annual gross income exceeds $32,000; Wife earns $14,000. Husband’s pension plan is an employer contribution plan for which no deduction is taken from his earnings whereas Wife’s State pension plan requires her personal contributions and deductions taken from her earnings. Husband’s employer also maintains a thrift plan to which Husband contributes $6 weekly, which is invested for Husband by the employer. Another major difference exists in their respective health plans. They never used her State plan because Husband’s plan “paid for everything, eyeglasses, teeth, emergency room, whatever, it paid 100 percent.”
3. Respective financial condition after property division — Wife $24,251; Husband $28,232.
4. Their respective age, health, and physical condition — Both are approximately 50 years old and in good health and physical condition except for Husband’s alcohol problem.
5. Their station in life or social standing — Trial court found no significant differences.
6. Relative fault of the parties and the termination of the marriage — Trial court found that the fault lay almost entirely with Husband.

Another important factor is the trial court’s finding that the actual cost to Husband of the alimony payment of $600 per month would be 69 percent, or $414 per month based on the tax consequences as testified to by a certified public accountant.

Despite these reasoned considerations, the majority opinion concludes:

We find that dividing the retirement fund or pension plan as marital property at the time of the divorce in effect destroys Kenneth’s future livelihood and means of complying with the alimony award. The trial court’s error was fur*410ther compounded because it considered the retirement fund, which was already a part of the property division, in awarding alimony out of Kenneth’s future income or earning capacity.

I have serious questions not only about this second sentence but wholly fail to see how the dividing of the retirement fund or pension plan as marital property “in effect destroys Kenneth’s future livelihood and means of complying with the alimony award.”

The majority opinion reverses the alimony award and orders its elimination. In my opinion, this is error and I dissent. I would affirm the trial court in all respects except only that I would impose a constructive trust on the present value of the pension rather than a judgment.

I am authorized to state that Circuit Judge Konenkamp joins in this dissent.