APPEAL FROM THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT CLAY COUNTY, SOUTH DAKOTA, HONORABLE GLEN W. ENG Judge.
The opinion of the court was delivered by: Konenkamp, Justice
CONSIDERED ON BRIEFS ON MARCH 22, 2010
[¶1.] In this divorce appeal, the husband challenges the custody decision, the general and rehabilitative alimony awards, the debt division, and the attorney's fee award. By notice of review, the wife appeals the attorney's fee award. We find no abuse of discretion in the custody and visitation decision, the debt division, and the attorney's fee awards. As to the award of general and rehabilitative alimony, we reverse and remand because (1) the circuit court's findings fail to explain how it computed the husband's ability to pay alimony, (2) the wife's expenditures supporting her claim for alimony include children's expenses which must be excluded, and (3) the rehabilitative alimony award lacks a limitation period.
[¶2.] Mike and Mildred (Millie) Lovejoy were married on February 14, 1992. Millie had two children from a previous relationship: Misty, born August 16, 1989, and Joey, born February 14, 1991. Mike adopted Misty and Joey. Millie and Mike then had two sons, Collin, born January 4, 1996, and Kodie, born April 24, 1998. Before their marriage, Millie lived in Sioux Falls with her parents. Her formal education ended at the eighth grade. She suffers from lifelong rheumatoid arthritis. As the circuit court found, pain and swelling from the arthritis afflicts her hands, elbows, hips, and feet. Mike is a partner in his family's farming operation. After the wedding, Mike, Millie, Misty, and Joey moved into a trailer house on the farm. They later moved into the main house when Mike's parents retired, but his parents kept ownership of the home.
[¶3.] Mike and Millie decided that Millie would stay home with the children while Mike farmed and periodically worked as a truck driver. Millie eventually obtained her general education degree (GED). Once the younger children began attending school, Millie served as a substitute teacher and later as a daycare worker in Vermillion. She earned minimum wage. Mike and Millie owned 19 acres of tillable land of the 1,050 acres Mike farmed. He leased 249 acres from his parents and the rest from third parties.
[¶4.] In March 2008, Mike sued Millie for divorce alleging irreconcilable differences or, in the alternative, extreme cruelty. She answered and counterclaimed on the same grounds. Millie moved for temporary custody of the minor children, child support, and alimony. Misty was no longer a minor and lived outside the home. Joey was a senior in high school. Mike also sought custody, but only of Collin and Kodie. He disinherited Misty and Joey. Temporary custody of the minor children was granted to Millie, along with child support and temporary alimony. Dr. Andre Clayborne completed a home study evaluation in February 2009.
[¶5.] Following the divorce trial, but before the court issued findings of fact, conclusions of law, and a judgment, Mike sought to offer evidence of a debt he failed to present during trial. Upon granting his request, the court issued findings of fact and conclusions of law, a judgment and decree of divorce, and a money judgment. Millie was awarded primary physical custody of the children, general and rehabilitative alimony, and attorney's fees. Mike appeals asserting that the court abused its discretion when it (1) granted Millie primary physical custody of the minor children and less visitation than recommended by the custody evaluator, (2) awarded Millie $1,750 per month in general alimony and $500 per month in rehabilitative alimony, (3) divided the debts inequitably, and (4) awarded Millie attorney's fees and costs. In her notice of review, Millie asserts that the court abused its discretion when it failed to award all her requested attorney's fees.* Because we find no abuse of discretion or clearly erroneous fact findings pertaining to Mike's Issues 1 and 4, and Millie's notice of review issue, we affirm those questions without discussion. They were decided in accord with well-settled principles. See Fuerstenberg v. Fuerstenberg, 1999 SD 35, 591 NW2d 798; DeVries v. DeVries, 519 NW2d 73 (SD 1994).
[¶6.] Mike asserts that the court abused its discretion when it awarded Millie $1,750 per month in general alimony and $500 per month for rehabilitative alimony. Mike argues that the court improperly considered expenses related to the children when it awarded Millie general alimony and abused its discretion when it awarded Millie more than she requested. Mike further contends that the court failed to consider his ability to pay these two monthly sums.
* Standard of Review: We review a court's custody decision, property division, alimony award, and attorney's fees award under the abuse of discretion standard. Maxner v. Maxner, 2007 SD 30, ¶¶10-12, 730 NW2d 619, 622 (citations omitted). The court's findings of fact are reviewed for clear error. Arneson v. Arneson, 2003 SD 125, ¶13, 670 NW2d 904, 909-10 (citation omitted). Conclusions of law, however, are reviewed de novo. Id.
[¶7.] General alimony is intended to assist the recipient in providing for food, clothing, housing, and other necessities. Zepeda v. Zepeda, 2001 SD 101, ¶21, 632 NW2d 48, 55 (citation omitted). Millie, as the one who sought support, had to ...