Henrichs v. Henrichs

MILLER, Justice

(dissenting).

I dissent. I would reverse on the property division and attorney fee issues and remand for further consideration.

PROPERTY DIVISION

Although the raw monetary figures may indicate that an equitable division of the marital property was made, an examination of the record reveals a most inequitable result. Marvella ended up with a marginal cafe business (which she does not want) and no home (which she wants). Jerry continues with his viable, successful business, plus the marital home and a place for his horses.

It should be remembered that the house was substantially paid for by Marvella from the proceeds of the settlement of the personal injury suit.1 As noted by the majority, from the settlement proceeds she, among other things, paid off the mortgage on the home ($31,215), in addition to paying over $1,000 on Jerry’s business VISA account and placing over $5,000 in their bank accounts. Further, she apparently is the person who did all of the fixing and remodeling on the house and took care of it, in addition to performing the typical wifely and motherly functions for the family.

Marvella asserted that she should receive both the home and the adjoining property (Jerry agreed that she should have the home) because she did not want to be required to see Jerry constantly driving through the yard and working and playing with his horses. I disagree with the majority’s characterization of her testimony as an “ultimatum.” She did state that if she could not have the land behind the house she could “just as well give up the house as well.” She seemed to reason that it would be unfair for her to have to maintain all the property for the benefit of his horses.2 She strongly asserted many good reasons why she should receive all of the property encompassing the marital residence. The sole reason asserted by Jerry (for receiving the adjoining property) was that he needed or wanted it to work with his horses — a fun, yet very expensive hobby.

To give Jerry a home for his horses and at the same time to deny Marvella the marital home is not only an abuse of discretion but is also manifestly unfair. Are not the priorities somewhat confused here?

Further, the trial court gave Marvella the cafe in Ramona. Big deal!! Even considering its property value, the trial court decision overlooks the cafe’s marginal worth. Although characterized as a going concern, the cafe is hardly a money-making venture (for example, for the first six months of 1986 it made a $208 profit3 ($24 per month)). Considering the great amount of work and large number of hours (approximately twelve hours per day) required by Marvella to work in the business, coupled with the minimal returns therefrom, it clearly appears that she did not receive an appropriate share of the marital property. If the cafe has the worth Jerry suggests, perhaps he should take it (after all, it was his idea to purchase it in the first place) — or perhaps it should be sold with the proceeds appropriately divided (although it should be observed that Marvella has been unsuccessful in her attempts to sell the cafe).

*578Further, I believe that unless the property is reallocated in an equitable manner, the sum of $500 is an inadequate amount for alimony, considering all of the foregoing.

ATTORNEY FEES

As the majority states, the trial court’s findings do not clearly address the settled factors to be considered in awarding attorney fees. We have been prevented from having a meaningful appellate review. I would remand for an appropriate consideration, findings and ruling under our previously established guidelines.

I am authorized to state that Justice MORGAN joins in this dissent.

. Jerry argues that it was a joint award, because he was involved in the accident. However, he agrees that she, not he, was the one who was injured.

. When asked why she objected to Jerry having the back area for the horses, she said:

A Lack of privacy mostly. If he doesn't want to be included in the other responsibilities of the place, I do all the mowing and spraying and fixing and cleaning and everything else of the yard and whether I am inside the house, the kitchen windows are all facing the area where they are riding and roping and if I am out in the yard, they are all right there within like I say, 100 steps of the yard.

.In calculating profit there has been no deduction for a salary for Marvella. Therefore, she has, in reality, worked for almost no compensation.