Meinders v. Meinders

HENDERSON, Justice

(dissenting).

I would reverse and remand.

The decree of divorce, entered on February 15, 1980, provided, inter alia:

That plaintiff is entitled to alimony in the sum of $750.00 per month commencing February 1, 1980 [sic] and payable on the first of each month thereafter until plaintiff’s youngest child, Mark Lewis, reaches the age of 18 years or is emancipated, whichever occurs first. At that time the Court will reassess alimony as the needs and abilities of the parties dictate. That said alimony payments shall be paid through the Minnehaha County Clerk of Courts.

Less than one year prior to the entry of this decree, this Court stated in Price v. Price, 278 N.W.2d 455, 458 (S.D.1979):

Although we recognize that awarding alimony and child support payments are in the trial court’s discretion, we must stress that alimony and child support are separate concepts.

We also stated in Price at 459:

Inasmuch as the alimony and award fluctuated with the child support, we must remand the alimony award to the trial court for further consideration based solely upon a suitable allowance to plaintiff independent of the child support consideration.

True, plaintiff’s child, Mark Lewis, was not the child of defendant. True, defendant was not required by the decree to support plaintiff’s child. And true, defendant owed no legal obligation whatsoever to support this child. Why, then, did the trial court patently intertwine the payment of alimony with the child’s attainment of eighteen years of age or his emancipation? There is no doubt that the express monthly payment of $750 alimony, under the decree, will terminate when defendant’s stepson fulfills one of these two conditions. Such an alimony award is contrary to Price and not a factor which should be considered. In determining the amount of alimony payments, this Court has expressed the factors to be considered in Hanks v. Hanks, 296 N.W.2d 523 (S.D.1980), and Guindon v. Guindon, 256 *408N.W.2d 894 (S.D.1977). A stepson’s attainment of majority or emancipation is not one of the factors to be considered and the trial court’s judgment in this regard is oppressive, wrong, and contrary to the settled,law of this state. It appears that the trial court mixed together an alimony and property settlement award. In a circuitous way, the trial court either awarded child support unto plaintiff requiring defendant to pay support for a minor to whom he owed no legal obligation and/or provided a property settlement by making a very high monthly alimony award.

It strikes me that an alimony award of $750 per month for a marriage that lasted approximately five years is excessive and, under the circumstances of this case, constitutes an abuse of discretion. A trial court’s discretion is a judicial discretion, not an uncontrolled one, and its exercise must have a sound and substantial basis in the testimony. SDCL 25-4-44; Fink v. Fink, 296 N.W.2d 916 (S.D.1980); Hansen v. Hansen, 273 N.W.2d 749 (S.D.1979). Defendant proposed a finding of fact concerning plaintiff’s obtainment of a college degree, which required three years of college study during the five-year marriage and enabled her to secure favorable employment. No finding of any kind was entered with respect thereto as the trial court chose to ignore this critical factor. Rather, the trial court riveted in on defendant’s resources. Therefore, it must be assumed that the trial court did not consider plaintiff’s recent educational pursuits at all which most certainly bears upon “the competency to earn a living.” The majority -opinion accepts the factual proposition that “the health of the parties was good.” If, indeed, plaintiff enjoys good health and has a good education, why does she require a $750 monthly alimony award? Alimony should not be awarded for sympathy or for the able-bodied and well-educated who refuse to work. “Alimony is not a matter of right. When the wife has the ability to earn a living, it is not [proper legal policy] to give her a perpetual lien on her divorced husband’s future income.” Morgan v. Morgan, 59 Wash.2d 639, 642, 369 P.2d 516, 518 (1962). See also Young v. Young, 371 Mich. 447, 124 N.W.2d 264 (1963); Miles v. Miles, 185 Or. 230, 202 P.2d 485 (1949); Schwent v. Schwent, Mo.App., 209 S.W.2d 546 (1948); Branson v. Branson, 190 Okl. 347, 123 P.2d 643 (1942). It is good to work and the courts should not harbor those who spurn it.

It was during plaintiff’s college life, which was time framed within her married life, that she drifted into alcoholism. She graduated from Sioux Palls College in 1978 and was treated at the Mandan, North Dakota, Alcoholic Rehabilitation Center that same year. Prior to the parties’ marriage, plaintiff had lived for many years in the Orient and, from 1968 to 1974, worked in bars from Hickom AFB Club, Hawaii, to the Sky Lane Inn and Sansa Bar, Aurora, Colorado. Defendant first met plaintiff at said Sansa Bar. Six months later the parties were married. Plaintiff had suffered a previous broken marriage. In September of 1979, plaintiff attempted suicide. I question highly that defendant should solely bear the blame for this suicide attempt in light of the circumstances of plaintiff’s life prior to this marriage and the circumstances of this marriage. There is no finding of fact to buttress the majority opinion’s finding to this effect. Although plaintiff’s attempt on her own life was foiled, this dramatic episode should not be considered as a sympathy factor or any other factor in arriving at an alimony award.

Finally, I take general exception to the majority opinion’s expression that defendant caused plaintiff to refrain from employment during the marriage. For, indeed, Finding of Fact XIII duly entered by the trial court provides: “That plaintiff is unemployed and has been unemployed for years and has been unable to secure employment.”

The alimony award of $750 per month cries out for reversal; the mixing of the alimony award with the child’s emancipation and/or property award clouds the lower court’s rationale to such an extent that it deviates from the settled law of this state. I would therefore also reverse the property award so that it may be adjudicated with a *409fresh viewpoint towards equity. Lacking companions or associates in my dissent, I issue my solitary cry.