ROBERT A. SCHERER, Plaintiff and Appellant,
BETTY J. SCHERER, Defendant and Appellee
Considered on Briefs March 23, 2015.
As Corrected May 28, 2015.
APPEAL FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT MINNEHAHA COUNTY, SOUTH DAKOTA. THE HONORABLE KATHLEEN CALDWELL, Retired Judge.
STACY F. KOOISTRA, STEVEN J. MORGANS, SHARLA V. SVENNES of Myers & Billion LLP, Sioux Falls, South Dakota, Attorneys for plaintiff and appellant.
GREGORY T. BREWERS of Strange, Farrell, Johnson & Brewers, PC, Sioux Falls, South Dakota, Attorneys for defendant and appellee.
SEVERSON, Justice. GILBERTSON, Chief Justice, and ZINTER, WILBUR and KERN, Justices, concur.
[¶1] Robert and Betty obtained a divorce on July 29, 2014. Robert appeals the circuit court's determination of marital assets, division of property, and alimony award to Betty. He also appeals the court granting Betty a divorce on the grounds of extreme cruelty. We reverse in part and remand.
[¶2] Robert Scherer and Betty Scherer met through mutual friends in 1997. They began living together in 2000 and were married in 2002. At the time of the divorce both Robert and Betty were 60 years old. This was Robert's second marriage. He has two adult children from the first marriage. Betty had two previous marriages and has one adult son from her first marriage. When they married, both parties were employed and each owned their own homes, which they sold in order to buy a new home together. Betty worked as a licensed practical nurse until 2005 when she was forced to retire and go on social security disability due to repeated back injuries. Robert entered the marriage with what the court characterized as a " fledgling business." He also worked as a firefighter until his retirement in 2005. At the time of the marriage, and thereafter, the parties agreed to maintain separate bank accounts. The circuit court found that this was primarily due to Robert wanting to keep his finances separate. They divided financial responsibilities. Robert paid their house payment, utilities, and car expenses, while Betty bought groceries, clothes, and items for inside and outside the home.
[¶3] The main dispute in this divorce is the inclusion of three businesses--Scherer Corrugating and Machine, Inc., Scherer Design Engineering, Inc., and Scherer Properties, LLC--in the marital estate. The court found that Robert made several financial transactions in the year before he separated from Betty, which showed a pattern of trying to minimize the marital estate. Robert sold 50% of Scherer Properties, LLC for $100,000 to his son in December of 2010. No appraisal was done at the time of the sale. The appraised value at the time of the divorce was $1,695,000. In January of 2011, Robert sold 40% of Scherer Corrugating and Machine, Inc. to his son and one of his employees for $1,025,000 each. He guaranteed a $500,000 loan for each of them, and the son and employee each gave Robert a promissory note for the additional $525,000. At the time of the divorce, Scherer Design and Scherer Corrugating had an appraised value of $2,673,000. The court noted that " no credible evidence of the value of any property owned by either party at the time of their marriage" was offered.
[¶4] After including Robert's remaining interests in the businesses in the marital estate, the court found that the value of the net marital estate totaled $5,081,715. It awarded Robert more than half of the marital estate, including the businesses. In order to effect an equitable division, the court ordered him to pay cash to Betty in the amount of $2,000,000. He was to pay the sum of $500,000 immediately and the balance at a rate of ...