APPEAL FROM THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT BROWN COUNTY, SOUTH DAKOTA HONORABLE TONY PORTRA Judge.
The opinion of the court was delivered by: Meierhenry, Justice
CONSIDERED ON BRIEFS ON FEBRUARY 17, 2009
[¶1.] Edward Walker appeals from the divorce judgment from Debra Walker. Edward argues that the circuit court abused its discretion (1) by denying Edward's request for alimony, (2) by awarding the 2002 Chevrolet Trailblazer to Debra and requiring Edward to pay the debt against the vehicle, and (3) by denying Edward's claim for attorney fees from Debra. We affirm issues (1) and (2) and reverse and remand issue (3).
[¶2.] We review a circuit court's award or denial of alimony, division of property, or the award or denial of attorney fees under the abuse of discretion standard. Billion v. Billion, 1996 SD 101, ¶14, 553 NW2d 226, 230 (citations omitted). "We find an abuse of discretion when discretion is exercised 'to an end or purpose not justified by, and clearly against, reason and evidence.'" Novak v. Novak, 2006 SD 34, ¶3, 713 NW2d 551, 552 (quoting Godfrey v. Godfrey, 2005 SD 101, ¶11, 705 NW2d 77, 80). When reviewing a divorce appeal, we will not overturn the circuit court's findings of fact unless they are clearly erroneous. Id. "When applying [the abuse of discretion] standard, we do not inquire whether we would have made the same decision. Instead, we decide only whether the circuit court could reasonably reach the conclusion it did in view of the applicable law and the circumstances of the case." Maxner v. Maxner, 2007 SD 30, ¶12, 730 NW2d 619, 622 (citing Zepedav. Zepeda, 2001 SD 101, ¶20, 632 NW2d 48, 55).
[¶3.] This marriage was the third marriage for Edward and the second marriage for Debra. They were both approximately forty-four years of age at the time they married in March of 1997. They both had children from a prior marriage but none together. The couple remained married for eleven years.
[¶4.] Both parties were employed during the marriage. Debra worked as a counselor at Northern State University. Edward was last employed with Dakota, Minnesota, and Eastern Railroad until a motorcycle accident in 2005 left him paralyzed from mid-chest down. At the time of trial, Edward no longer worked as a result of the accident. The trial court found that Edward received $2,552*fn1 a month from his railroad retirement account. Debra's monthly income at time of trial was $2,519 per month.
[¶5.] Prior to the marriage, the parties entered into an antenuptial marital property agreement wherein the parties expressed their "desire to fix and determine the rights of each of them in any and all property." The agreement recited the parties' wishes to "retain . . . all of his or her estate to the same extent as if each of the parties had remained single." Edward's premarital estate consisted of $20,704 of property assets and $19,582 of debt. Debra's premarital estate was $931,965 of property assets and $8,978 of debt. Most of Debra's premarital property came from the property settlement from her first marriage. The parties waived any claim to each other's premarital property, to alimony or to attorney's fees should the marriage end in divorce. The waiver provision in the agreement provided as follows:
The parties hereto expressly further agree to and with each other, that if they should become separated or divorced, also in connection with any actions brought by either party against the other for separation, divorce, or annulment of the marriage, that neither party shall apply to the Court for any legal expenses, attorney's fees, alimony, temporary alimony, support, or for a property settlement in connection therewith and in [the] case of any separation or divorce or annulment of the marriage whether such separation be voluntary or by legal action, such party hereby waives as against the other any rights or claims for alimony, temporary or permanent, support, property settlement, legal expenses, and attorney's fees to the extent allowed by law. (Emphasis added.)
[¶6.] The agreement also acknowledged that any "jointly owned assets" acquired by the parties during the marriage would "be divided equitably between the parties as of the date of the separation, or divorce or annulment." The parties did acquire assets during the marriage that were subject to equitable division. Those assets included approximately twenty-eight acres of land near Hill City, South Dakota. This property sold prior to the divorce for $308,000, and the proceeds were held in escrow to be divided as part of the divorce. They had also acquired ten acres of land in Louisiana, and timeshares in Florida and Utah. Most of the money to purchase the properties came from Debra's premarital assets. Debra contributed approximately $175,000 to purchase the Hill City property, and Edward contributed approximately $7,000. Debra also provided $30,000 to purchase the Louisiana property and $22,000 to purchase the timeshares in Florida and Utah. At the time of the divorce, the parties owned a 2002 Chevrolet Trailblazer vehicle and a 2005 handicap equipped van. The couple also had other personal property that was not in dispute on appeal.
[¶7.] In dividing the marital property, the circuit court awarded each party one-half of the proceeds from the sale of the Hill City property. The court ordered that the Louisiana property and the timeshares in Florida and Utah be sold and the proceeds divided equally between the parties. Edward received the handicap van and Debra the Trailblazer. The loan on both vehicles was assigned to Edward.
[¶8.] Edward requested alimony in the form of a lump-sum payment of at least $400,000. In his proposed findings of fact and conclusions of law, Edward suggested that Debra fund the lump-sum payment partially with her half of the proceeds from the sale of the Hill City property and the remainder with her pre-marital assets. The court denied Edward's request for alimony and for attorney fees. Edward appeals. He claims that the circuit court abused its discretion by not ...