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Moore v. Moore

March 11, 2009



The opinion of the court was delivered by: Miller, Retired Justice


[¶1.] Denice Moore (Denice) brought this action seeking to increase the amount of alimony she receives from her ex-husband, John Moore (John). After hearings, the circuit court increased the monthly alimony payments from $100 to $1,500. She was also awarded costs in the amount of $1,093.43. John appeals. We reverse and remand.


[¶2.] John and Denice were married in 1975.*fn1 In 1999 Denice was diagnosed with Multiple Sclerosis (MS). In March 2001 John left the marital home, retired from his employment, and moved to Iowa to care for his mother, before moving to Florida and ultimately to Texas.

[¶3.] John and Denice were divorced on December 10, 2003. Prior thereto, they entered into a property settlement, which was incorporated into the final decree of divorce. The agreement and ultimate decree of divorce gave approximately 13% of the marital assets to John and 87% to Denice. John, who was then unemployed, also agreed to pay $100 per month in alimony. These payments were to continue until Denice's death, remarriage, or until she reached the age of 65.

[¶4.] The day before the divorce was finalized, Denice entered into an agreement to sell the marital home to Russell Dulany (Russell). Soon thereafter, she moved to Iowa to be closer to her children and to receive MS treatment. Russell assisted her with the move. Several months later, Russell helped Denice return to Pierre, South Dakota. Since then they have cohabitated in the former marital home.*fn2

[¶5.] Denice was employed by Russell's car dealership until March 2007, when her illness prevented her from further employment there.*fn3 She continued to receive a salary from Russell's car dealership during a time when she was employed by the Pierre Chamber of Commerce as well as while she lived and worked in Iowa. At the time of the current modification hearings, Denice continued to be on the car dealership's health insurance plan.

[¶6.] Since the divorce, John has remarried, moved to Austin, Texas, and has had minimal employment outside of the home. His new wife, Luanna Bowen, earns a substantial income, which allows John to be, what he terms, a "house husband." His primary source of income since the divorce has been from an inheritance he received from his mother as well as gifts given to him by her before her death.

[¶7.] Denice initiated the petition for alimony modification in late 2006. The first hearing was held on July 17, 2007. However, the proceedings were postponed after Denice revealed bank records relevant to her expenses, which had been previously undisclosed.

[¶8.] On August 16, 2007, Denice began receiving a special treatment for MS called Tysabri. Among other changes, she then modified her expense budget to include the Tysabri treatment. At the time of the January 2008 modification hearing, Denice was unable to quantify the cost to her of the Tysabri treatment. Her insurance provider had not yet determined the amount of these costs it would cover. Additionally, she was waiting for a response from the Department of Social Security regarding disability payments.

[¶9.] The final trial court hearing was held January 17, 2008. Denice offered evidence of Luanna's income and financial holdings*fn4 as evidence of John's ability to pay increased alimony. The trial court ultimately increased John's monthly alimony payment from $100 to $1,500. Denice also requested costs and attorney's fees. The trial court denied attorney's fees but ultimately granted costs in the amount of $1,093.43.

[¶10.] John appeals, raising two issues:

1. Whether the trial court abused its discretion by increasing the alimony payments from $100 to $1,500 per month.

2. Whether the trial court abused its discretion in granting taxation of costs in the amount of $1,093.43.


A circuit court's decision regarding whether to modify an alimony award is reviewed under the abuse of discretion standard. "An abuse of discretion is a discretion exercised to an end or purpose not justified by, and clearly against, reason and evidence." We review the circuit court's findings of fact under the clearly erroneous standard and conclusions of law de novo.

Lowe v. Schwartz, 2007 SD 85, ¶9, 738 NW2d 63, 66-67 (citations omitted). [¶11.] "Our task in reviewing a trial court's decision is not to determine whether we would make the same decision, but whether, in view of the circumstances of the case and the applicable law, the trial court could have reasonably reached the conclusion it did." Olson v. Olson, 1996 SD 90, ¶9, 552 NW2d 396, 399 (quoting Havens v. Henning, 418 NW2d 311, 312 (SD 1988)).


[¶12.] Circuit courts may from time to time modify a divorce award of support lasting for a lifetime or shorter duration, giving consideration for the parties' change in circumstances, as provided by SDCL 25-4-41. We have held that circuit courts have continuing jurisdiction to modify permanent alimony as circumstances may require.

Saxvik v. Saxvik, 1996 SD 18, ¶11, 544 NW2d 177, 180.

When the trial court considers evidence as to a change in circumstances, it must be careful to confine its review to changes occurring since the time of the divorce . The court is not to reflect on whether the decree was "equitable" when entered, but only whether the economic circumstances of the parties have changed since the award such that the original award is now either insufficient or excessive. The role of trial courts in modification proceedings is not to relieve a party of his or her bad bargain. "[T]he original decree is . . . res judicata except in cases of changed circumstances subsequently arising, and proceedings for modification cannot be used to review the equities of the original decree."

Olson , 1996 SD 90, ¶11, 552 NW2d at 399-400 (citations omitted) (emphasis added).

[¶13.] "The change in circumstances refers to a change in the necessities of the recipient and the financial ability of the obligor." Horr v. Horr, 445 NW2d 26, 28 (SD 1989) (citing Dougherty v. Dougherty, 76 SD 318, 77 NW2d 845 (1956); Guinter v. Guinter, 72 SD 554, 37 NW2d 452 (1949)) (emphasis added). Although the change need not be substantial, mere proof of a change is insufficient to mandate modification. Saxvik, 1996 SD 18,

ΒΆ21, 544 NW2d at 182. "The burden of proving such a change in circumstances is on the party seeking modification ." Paradeis v. Paradeis, 461 NW2d 135, 137 (SD 1990) (citing Wegner v. Wegner, 391 NW2d 690 (SD 1986)) (emphasis added). And, we reiterate that we ...

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