Studt v. Studt

HENDERSON, Justice

(specially concurring in part, dissenting in part).

Via a remand, this case will be redecided by the trial court, who heard all of the evidence, without benefit of taking new evidence. To a very limited extent, I agree with the remand.

I.

Reviewing this case, it becomes very apparent that the trial judge made an equitable decision and that he should, substantively and spiritually, be affirmed, with the exception of an error in the valuation of some personal property. The majority opinion finds no error in the valuation of real property. Therefore, some discrepancies in bank accounts and insurance policies must be reexamined as well as the value of certain grain. In my opinion, although this might change the figures, it does not trigger a broad reshifting of an award of assets. A valuation of marital assets might well produce different arithmetic but it does not destroy a well-founded judicial conceptualization of an award to each party. Obviously, the trial court must redetermine value of personal property incorrectly evaluated, but it does not have to reevaluate every item of personal property which was correctly evaluated. There is no reason to march the troops up the hill to again march them down.

Therefore, I perceive the role of the trial judge, insofar as an award of marital assets is concerned, to be minor, as distinguished from major, legal surgery. Essentially, I am specially concurring on Issues I and II in the majority opinion, expressing that there has been no abuse of discretion; rather, there are some technical computations to be made. Appellant would have us reach for abuse of discretion in the award, and it is simply not there. Booth v. Booth, 354 N.W.2d 924, 927 (S.D.1984).

II.

There has been no abuse of discretion by the trial court on rehabilitative alimony. It is noted by this writer that the majority attributes the trial judge with careful consideration in awarding rehabilitative alimony. Although the majority opinion takes no position on the rehabilitative alimony award as being “excessive or insufficient,” I do. An award of $400 per month for a period of three years under the circumstances of this case * is no abuse of discretion. Such an award amounts to $14,400 in three years. It appears that the trial judge adequately considered all factors in deciding an amount of rehabilitative alimony and a period of years. I specially concur on rehabilitative alimony to additionally express that Rebecca has a far better education than Roger. She deserted the Presho family farmhold to go to Pierre, our State capital. She has excellent health, and is competent to earn a good living, both as an employee for the State of South Dakota or in private enterprise. She can further enhance her vocational skills which are now marketable. The trial judge generously helped her in this regard and the limited mistakes in personal property evaluations should not trigger a new conceptualization. True, the alimony must be considered together with the property award. Krage v. Krage, 329 N.W.2d 878 (S.D.1983). How*646ever, the errors in the personal property-should spawn more cash for the appellant; hence, the trial court could logically consider a diminution in rehabilitative alimony. Nonetheless, the conceptualization on the rehabilitation alimony award is marked by the trial court’s “careful consideration” in that respect.

III.

As to child support, the majority’s analysis utilizes an unconstitutionally narrow interpretation of SDCL 25-7-7, particularly where the trial court’s child support award is measured against the guidelines provided in that statute. This Court’s standard of review of child support awards cannot be so tightly constricted. See, e.g., Peterson v. Peterson, 434 N.W.2d 732, 739-41 (S.D.1989) (Henderson, J., concurring in part, concurring in result in part); Feltman v. Feltman, 434 N.W.2d 590, 593-94 (S.D.1989) (Henderson, J., dissenting); Donohue v. Getman, 432 N.W.2d 281, 283-85 (S.D.1988) (Henderson, J., specially concurring); Bruning v. Jeffries, 422 N.W.2d 579, 582-84 (S.D.1988) (Henderson, J., concurring in result). Such guidelines should be just that, guidelines. Tesch v. Tesch, 399 N.W.2d 880, 884 (S.D.1987). There was no abuse of discretion in the child support award. It appears the trial court carefully considered the average net income of these parties, and based the child support on that income. I would not require the trial judge to jump through a depreciation or C.P.A. hoop when his decision makes sense in the first instance. The abuse of discretion test (old settled caselaw) was not abolished by the child support guidelines, Bruning, supra. Therefore, I would not remand the child support award on that issue.

She has worked in the State Library in the State capital and a banking institution. Father is a farmer. He dropped out of high school in the ninth grade to devote himself to the family farm. His record, his work ethic, is one of working mornings, days, and late nights to make the family farm a producing unit. Per testimony, he had a reputation of being easygoing, nonviolent and loving to his family. She dubbed him, per testimony, a workaholic. Her conduct was tumultuous in the home, and she eventually kicked the windshield out of a pickup. Ultimately, she employed a psychologist, reflecting that she desired to be liberated. She refused marriage counseling and opted for personal counseling with her psychologist.