Balvin v. Balvin

WOLLMAN, Chief Justice.

The trial court granted a divorce to both Dolores Balvin (appellant) and David Balvin (appellee). Dolores appeals from those portions of the judgment relating to property division, alimony award and attorney fees. We affirm in part, reverse in part, and remand.

The parties were married December 27, 1950. The marriage resulted in five children, all of whom are now of legal age.

At the time of the parties’ marriage, Dolores was teaching school and David was employed by his father, a farmer. Neither party had much property at the time they were married, and they lived with appellee’s parents for about a year. The parties then moved into a house that they had built on one acre of land that was given to David by his parents. This house was built utilizing $5,000 loaned to David by his parents. *680David testified that this loan was never repaid. Nine years later the parties moved into a house located on the family farm. At some point during the marriage, David took over his father’s farming operation. Dolores taught school for approximately ten and one-half years during the' twenty-six years that the parties were married and living together.

At the time of the divorce action, both parties were in poor health. Dolores is disabled for social security purposes and probably will not be able to return to full-time employment. She receives about $310 per month in social security and disability insurance payments. David has had problems with colitis, ulcers and a bad back.

The trial court found that the parties had accumulated the following property:

1) The family farm, including 156 acres of land, the house and some outbuildings, which the trial court found was a gift to David from his parents and not the joint work product of the marriage.
2) Certain improvements to the land and buildings, which were the result of the mutual efforts of the parties.
3) Farm machinery, soybeans and miscellaneous household items worth approximately $52,900, all acquired through the mutual efforts of the parties.
4) Assets of just over $30,000, represented by David’s checking and savings accounts and receivables, less outstanding checks and debts.
5) Assets of approximately $15,000, represented by Dolores’ savings account, cash on hand and receivables.

The trial court allowed the parties to retain their own savings accounts and other liquid assets. With regard to the division of property, the trial court awarded Dolores $7,700, to be paid immediately, and $2,000 per year for twelve years, without interest. The trial court also awarded Dolores various personal property and alimony of $1,000 per year until her death or remarriage, with the payments to begin thirteen years hence. The trial court directed that the parties pay their own attorney fees and costs.

The trial court’s finding that the family farm was a gift to David is not clearly erroneous. It was therefore within the trial court’s discretion whether or not to consider the family farm as part of the property to be divided. Buseman v. Buseman, 299 N.W.2d 807 (S.D.1980); Clement v. Clement, 292 N.W.2d 799 (S.D.1980); Andera v. Andera, 277 N.W.2d 725 (S.D. 1979).

Dolores contends that the evidence does not support the following finding of the trial court:

That certain improvements were made to the homestead in the line of providing outbuildings and grain storage facilities, which were acquired by the mutual efforts of the parties, but that the value of these improvements is offset by the fact that [Dolores] obtained and completed a college education during the course of the marriage at the mutual expense of the parties.

Our function on appeal is to ascertain whether or not there is evidence from which the trial court could make such a finding of fact. Estate of Podgursky, 271 N.W.2d 52 (S.D.1978). We find no evidence to support the finding that Dolores obtained and completed a college education during the course of the marriage at the mutual expense of the parties. Indeed, David himself directs us to no evidence supporting this finding. Accordingly, we must reverse and remand for further proceedings to determine how these improvements to the homestead should be divided.

Dolores contends that the trial court erred in deferring the property division payments without requiring David to pay interest. The rules regarding interest on deferred property division payments were set forth in Lien v. Lien, 278 N.W.2d 436 (S.D.1979), where we stated:

[I]f for the convenience of the husband he is permitted to make a property division by paying his wife her share of the marital property in cash in installments [,]... as a general rule any deferred payments *681should bear interest at the going rate; otherwise, the wife is not actually receiving the property division to which the court has determined she is entitled.
There can be exceptions to this rule. A trial judge can properly set an interest rate on deferred payments at a rate lower than the going rate if the lower rate is an integral part of the overall plan for property division.

278 N.W.2d at 444.

The trial court awarded Dolores $7,700 immediately and $2,000 per year for the next twelve years, without interest. Although it appears that Dolores is receiving $31,700, when the time value of money is taken into consideration the present value of that amount is substantially less, depending on the discount rate that is applied. We are unable to determine from the findings of fact and conclusions of law whether or not the absence of interest on the deferred property division payments was an integral part of the overall plan for property division, given the length of time over which these payments are to be made and the present value of those payments. Therefore, we remand to the trial court for a determination whether Dolores should receive interest on the deferred property division payments.

Dolores contends that the trial court erred in not requiring David to pay her attorney fees and costs. An award of attorney fees and costs rests in the sound discretion of the trial court. Hansen v. Hansen, 273 N.W.2d 749 (S.D.1979). We conclude that the trial court did not abuse its discretion in requiring the parties to pay their own attorney fees and costs.

We have reviewed Dolores’ remaining contentions and find them to be without merit.

We affirm those portions of the judgment relating to alimony and attorney fees. The property division portion of the judgment is reversed, and the case remanded to the trial court for further proceedings consistent with this opinion.

DUNN, MORGAN and FOSHEIM, JJ., concur. HENDERSON, J., concurs in part, dissents in part, and concurs specially in part.