Clark v. Clark

#24695, #24703-a-SLZ

2008 SD 59

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

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DENISE A. CLARK, Plaintiff and Appellee,

v.

BRIAN E. CLARK, Defendant and Appellant.

* * * *

APPEAL FROM THE CIRCUIT COURT OF
THE SIXTH JUDICIAL CIRCUIT
HUGHES COUNTY, SOUTH DAKOTA

* * * *

HONORABLE LORI S. WILBUR
Judge

* * * *

DAVID W. SIEBRASSE of
Siebrasse Law Office Attorney for plaintiff
Pierre, South Dakota and appellee.

AL ARENDT of
Arendt Law Office Attorney for defendant
Pierre, South Dakota and appellant.

* * * *

CONSIDERED ON BRIEFS
ON APRIL 21, 2008

OPINION FILED 07/02/08
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ZINTER, Justice

[¶1.] Brian E. Clark appeals the circuit court’s award of permanent alimony

to Denise A. Clark. By notice of review, Denise appeals the circuit court’s denial of

attorney fees. We affirm.

I.

[¶2.] Brian and Denise were married in 1989. At that time, Denise was

twenty-two years-old and employed at K-Mart. Brian was twenty-six years-old and

also employed at K-Mart. The couple moved from Cheyenne, Wyoming, to Pierre,

South Dakota in 1989. They had two children: SAC and ZAC, who were seventeen

and fourteen years of age at the time of trial.

[¶3.] In the fall of 2005, Denise, who had one year of college, quit her job at

a medical clinic where she was earning an annual income of $34,000 in a secretarial

position. She took a replacement secretarial position with the local school system.

Her new monthly take-home pay was approximately $1,400 (annual gross income of

$24,336). There is no dispute that Denise took this voluntary reduction in income to

spend more time with the parties’ children.

[¶4.] Brian has a bachelor’s degree in business administration and twenty

years experience in retail management. In 2005 and 2006, he was working as an

assistant manager at K-Mart, earning approximately $42,000 a year. The Clarks’

income totaled $69,032 in 2005. Brian subsequently lost his job at K-Mart for “non-

performance,” and at the time of trial, he was earning $809 per month ($9,700 per

year) as a sales representative for an insurance company. He testified that after his

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termination at K-Mart, he had submitted approximately thirty applications for

employment but had no offers.

[¶5.] In April of 2006, Denise initiated this divorce after she discovered that

Brian had been having an extramarital affair. The disclosure came to light when

the woman with whom he was having the affair was murdered by her husband.

Shortly thereafter, the murderer accused Brian of the offense. As a result, law

enforcement extensively interviewed both Brian and Denise concerning intimate

details of their lives. The murder and affair also received extensive media coverage.

[¶6.] At trial, Brian did not contest: adultery as the ground for divorce; the

award of custody of the children to Denise; and a child support obligation of $604

per month. Further, the parties stipulated to the division of all assets and

liabilities, except for a pickup truck. 1 This included a stipulation that Denise be

awarded the marital residence, which had an appraised value of $104,562 and an

outstanding mortgage. Denise also received her retirement account and two

vehicles. Brian received his retirement account in the amount of $19,218, a car, a

1. Prior to trial, Brian’s mother died. Denise requested the court to utilize the
expected value of that inheritance in making a division of the marital
property. The court recognized that Brian would inherit one-third of the
property, estimated at approximately $270,000. The court also recognized
that although Brian could not force a division of assets held in joint tenancy
with other siblings, it was likely that he would receive an additional
$28,014.77. The court ruled, however, that Denise made no contribution to
the acquisition of this inheritance, “and thus the same is non-marital
property and will not be included . . . in the determination of the property
distribution.” The court only considered Brian’s prospective inheritance “in
determining the alimony award in light of [Denise’s] demonstrated need for
financial support after the divorce.”

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boat, other personal property, and marital debt. The property division resulted in a

61% net share to Denise, and a 39% net share to Brian.

[¶7.] With respect to the ability to pay alimony, the circuit court found that

Brian’s termination from K-Mart was “due to his voluntary actions of harassing

behavior and comments to subordinates.” The court found that his annual rate of

pay at the time of his termination was $42,000, and that since his termination from

K-Mart, he earned less than minimum wage. The court noted that Brian’s income

for 2006, which included over three month’s employment with K-Mart, was only

$10,739. The court found, however, that: (1) “[t]here are numerous jobs in the

Pierre/Ft. Pierre area for which [Brian] is qualified and which pay over $40,000 per

year”; (2) Brian was under-employed because, according to the South Dakota Labor

Market Information Center, the average salary in South Dakota for an individual

with a bachelor’s degree was $40,568, and for an individual with a bachelor’s degree

or higher and work experience it was $74,637; and (3) the unemployment rate for

South Dakota in June of 2007, was three percent. Thus, the circuit court ultimately

found that Brian was “malingering with regard to finding employment at a position

commensurate with his education and work experience.”

[¶8.] With respect to Denise’s need for alimony, the court found that

Denise’s take-home pay, not including child support, was approximately $1,400 per

month. Her expenses and necessities were $1,237 per month. These expenses did

not include the home mortgage payment of $650 and the costs related to what the

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parties have described as “extracurricular” activities, 2 which Denise estimated at

$762 per month. The court found that because Denise’s take-home pay was only

$1,400 per month excluding child support, Brian needed to provide $650 per month

in spousal support to enable Denise to maintain the home and her middle-income

standard of living. The court denied Denise’s motion for attorney fees.

Alimony

[¶9.] A circuit court’s award of alimony is reviewed under the abuse of

discretion standard. Dejong v. Dejong, 2003 SD 77, ¶5, 666 NW2d 464, 467. “The

term ‘abuse of discretion’ refers to a discretion exercised to an end or purpose not

justified by, and clearly against reason and evidence.” Johnson v. Johnson, 2007 SD

56, ¶16, 734 NW2d 801, 806 (citations omitted).

[¶10.] As the party requesting alimony, Denise had the burden of proving her

need for support and that Brian had “sufficient means and abilities to provide for

part or all of that need.” Dejong, 2003 SD 77, ¶7, 666 NW2d at 467 (citations

omitted). The following factors are also considered:

(1) the length of the marriage; (2) the parties respective earning
capacity; (3) their respective financial condition after the
property division; (4) their respective age, health and physical
condition; (5) their station in life or social standing; and (6)
relative fault of the parties in the termination of the marriage.

Morrison v. Morrison, 323 NW2d 877, 878 (SD 1982); Dejong, supra.

[¶11.] The Clarks were married for sixteen years. Brian admitted fault for

the divorce. Both Denise and Brian are of equivalent age and are in good health.

2. Some of these expenses related to the extracurricular school needs of the
children and some appear to be ordinary household expenses.

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With respect to financial condition and earning capacity, the circuit court found that

Denise was earning approximately $24,000 per year. The court found that Brian

was earning $42,000 at the time of his termination from K-Mart, and that since his

termination his annual income was $10,739 (in 2006). However, the court also

found Brian under-employed and malingering with regard to finding post-

separation employment that was equivalent to his pre-termination wage. The court

finally noted that Brian was about to receive a substantial inheritance. The court

did not divide or consider it a marital asset, and only used it in considering Brian’s

financial condition after the divorce. See supra n1.

[¶12.] On appeal, Brian’s initial brief suggested that he had living expenses

of $1,200 per month, making the payment of alimony unaffordable. In his reply

brief, however, Brian explicitly acknowledged that he does “not argue, or set forth a

request that he not be required to pay alimony because he [is] unable to afford it.”

Appellant’s reply brief, p1. Therefore, we assume that he had sufficient means and

ability to pay the requested support.

[¶13.] With respect to Denise’s need for support, she argues that without

spousal support she would be unable to support herself in the middle income

standard of living that she enjoyed during the sixteen-year marriage. She points

out that prior to the divorce, the parties’ annual income totaled approximately

$69,000 and she relied upon Brian as the primary financial provider for many of the

family’s living expenses. After the divorce, Denise notes that she will earn only

$24,000. And, without spousal support, Denise testified that she would not be able

to afford the $650 mortgage and basic living obligations.

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[¶14.] Brian argues that the circuit court improperly mixed the need for child

support with the need for alimony. In Schabauer v. Schabauer, 2003 SD 146, ¶17,

673 NW2d 274, 278, this Court noted “that alimony and child support are separate

concepts. Child support provides for the maintenance of the children while alimony

represents a suitable allowance to a party for his/her support.” Because that circuit

court considered the number of children and the children’s standard of living in

making an award of alimony, we reversed noting, “the amount of [wife’s] alimony

should not have been governed by the presence of children in her household or their

needs and standard of living.” Id. ¶18. “Rather, the amount should have reflected

what was required for a suitable allowance to [wife] based upon an analysis of the

factors applicable to awarding alimony.” Id. This Court instructed:

Alimony and child support must be considered separately, and
[husband’s] parental responsibility to provide for the
maintenance of his children on the basis of the factors
applicable to setting child support should not have been
interwoven with his marital obligation to provide a suitable
allowance for [wife’s] support.

Id.

[¶15.] In this case, the circuit court did not make the error that occurred in

Schabauer. In its conclusions of law, the circuit court limited its consideration to

the proper factors. The circuit court stated:

Based upon the length of the marriage, [Brian’s] fault in the
breakdown of the marriage, [Denise’s] previous dependence on
[Brian] to maintain her middle class standard of living and
social station in life, the higher earning capacity of [Brian], the
value of the inheritance [Brian] will receive, 3 the limited

3. Although the circuit court considered the prospective inheritance under the
financial condition standard, we see nothing improper about that
(continued . . .)
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earning potential of [Denise], and the need for [Denise] to
receive financial assistance to maintain her in the home and
present standard of living, [Brian] shall pay to [Denise]
permanent alimony of $650[.]”

This reasoning reflects that the court did not interweave alimony and child support.

[¶16.] Brian, however, argues that in addition to Denise’s monthly living

expenses of $1,237, she improperly included $572 in extracurricular expenses that

were not recurring. Brian argues that of these expenses, only $200 are monthly

recurring expenses, and the remaining expenses represent one-time expenditures

that should not be considered in the need for alimony. Brian also argues that

Denise’s child support should be considered as income in determining Denise’s need

for alimony.

[¶17.] Brian’s arguments, however, fail to acknowledge that under

Schabauer, neither the children’s needs nor their child support should be considered

in determining Denise’s need for spousal support. Spousal support should reflect

the amount required for a suitable allowance based upon an analysis of the factors

applicable to alimony. Schabauer, 2003 SD 146, ¶18, 673 NW2d at 278. This record

of the appropriate factors reflects that with $1,237 in ongoing expenses, $200 in

non-objected to extracurricular expenses, and a $650 mortgage payment, Denise has

$2,087 in monthly expenses with only $1,400 in monthly income to pay those

___________________
(. . . continued)
consideration. Indeed, the parties’ respective financial condition after the
property division is a proper consideration in determining spousal support.
Morrison, 323 NW2d at 878.

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expenses. 4 Thus, the $650 spousal support was necessary to pay the mortgage,

maintain the marital home, and maintain Denise’s standard of living. Considering

Denise’s financial situation together with Brian’s fault and conceded ability to pay,

the circuit court did not abuse its discretion in ensuring that Denise would enjoy the

same standard of living that she enjoyed prior to the divorce. Billion v. Billion,

1996 SD 101, ¶41, 553 NW2d 226, 235 (providing, “[s]tandard of living remains an

important factor after a divorce.”) (citing Ochs v. Nelson, 538 NW2d 527, 531 (SD

1995)).

Attorney Fees

[¶18.] By notice of review, Denise argues that the circuit court erred in

denying her request for attorney’s fees. For this Court to overturn the circuit

court’s determination, “the record must show an ‘abuse’ of discretion, not merely one

which might have been made differently if done so as the initial fact finder.”

Iversen v. Wall Bd. of Educ., 522 NW2d 188, 193 (SD 1994). When determining an

award of attorney fees, the circuit court considers: “(1) the amount and value of the

property involved, (2) the intricacy and importance of the litigation, (3) the labor

and time involved, (4) the skill required to draw the pleadings and try the case, (5)

the discovery utilized, (6) whether there were complicated legal problems, (7) the

time required for the trial, and (8) whether briefs were required.” Ryken v. Ryken,

4. Brian does not contend that the court’s finding regarding Denise’s take-home
pay of $1,400 was clearly erroneous. Although Brian does suggest that
Denise’s take-home pay was $1,504 per month, the record reveals that $1,504
was Denise’s take-home pay for only one month during which Denise worked
over-time.

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461 NW2d 122, 128 (SD 1990) (additional citation omitted). Another factor a circuit

court considers is “whether either party unreasonably prolonged the divorce.”

Zepeda v. Zepeda, 2001 SD 101, ¶28, 632 NW2d 48, 57. See also Schwab v. Schwab,

505 NW2d 752, 756 (SD 1993). In reviewing all factors, we observe that the case

was not complicated or intricate, the pleadings were routine, briefing was not

required, Brian admitted fault, and the actual litigation primarily involved a

dispute over a pickup and alimony. Under these circumstances, we see no abuse of

discretion by the circuit court.

[¶19.] Denise also moved this Court for appellate attorney fees. Considering

that Brian appealed to this Court essentially only arguing a discretionary issue,

which required Denise to incur attorney fees on appeal, we award Denise $1,500.

[¶20.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, and

MEIERHENRY, Justices, concur.

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