CONSIDERED ON BRIEFS ON FEBRUARY 19, 2019
FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT
MINNEHAHA COUNTY, SOUTH DAKOTA, THE HONORABLE JOHN PEKAS
J. NICHOLS of Nichols & Rabuck, P.C. Sioux Falls, South
Dakota Attorneys for plaintiff and appellant.
C. LOCKWOOD of Lockwood & Zahrbock-Kool Law Office, P.C.
Sioux Falls, South Dakota Attorneys for defendant and
Bruce Taylor appeals the circuit court's division of
marital property and the awards of spousal support and
attorney fees to Kathleen Taylor in an action for divorce.
Bruce also appeals contempt orders levied against him in the
proceedings. We affirm in part, reverse in part, and remand.
& Procedural History
Bruce and Kathleen were married on June 6, 1987, and were
both fifty-four years old at the time of trial. Two children
were born during the marriage. The parties had ongoing health
problems, but both were working. Bruce initially worked as a
carpenter before starting a home construction business,
Taylor Made Homes. Kathleen worked in administrative
positions for a Sioux Falls television station and later at a
bank. At trial, the court found Bruce was earning $15, 000
and Kathleen was earning $44, 000, annually. The parties'
marital assets exceeded $1, 000, 000 and included a home and
over $500, 000 in retirement and savings accounts.
The parties agreed that the marriage began to deteriorate in
2000. Sometime in 2013, Bruce began an affair with another
woman. In March 2014, Bruce suffered a stroke. After being
released from the hospital, Bruce left the marital home and
moved in with his paramour. Bruce filed for divorce on May
27, 2014. After the separation, Kathleen began working more
hours at her job. Initially, Bruce paid Kathleen $2, 000
monthly, but later stopped providing support.
In August 2014, Kathleen served Bruce with interrogatories
and requests for production of documents. Kathleen also made
repeated requests for a valuation of Taylor Made Homes and an
identification and valuation of personal property in
Bruce's possession. Kathleen filed a motion to compel
discovery after Bruce failed to answer discovery for eleven
months. Kathleen also motioned for appraisals of Taylor Made
Homes and Bruce's personal property, as well as temporary
child support and spousal support. After the motions were
filed, Bruce's first attorney moved to withdraw
indicating that Bruce was "unresponsive to repeated
requests for information and assistance on this case."
A hearing was held September 14, 2015, and Bruce's
attorney was permitted to withdraw. Bruce failed to appear or
otherwise respond to Kathleen's motions. The circuit
court granted Kathleen's motion to compel and ordered
Bruce to obtain appraisals of the personal property and the
business. Kathleen presented an affidavit in support of her
motion for support, showing that she had paid over $150,
in marital expenses during 2014 and 2015, while Bruce had
only paid $17, 000 over that same time. She also presented
evidence that Bruce had received $100, 000 in death benefits
from his mother's life insurance policy and would
eventually inherit more than $1, 000, 000. Kathleen claimed
she had insufficient income to pay necessary expenses and did
not have knowledge of Bruce's income. She requested
monthly child support of $1, 000 and monthly spousal support
of $2, 000. The court orally granted both motions. The
written order signed by the court differed from the oral
order, requiring that Bruce pay $3, 000 for spousal support
rather than $2, 000. A trial was scheduled for December 4,
Bruce appeared at the time set for trial, without counsel. He
explained that he was unaware of the first hearing and was in
the process of retaining an attorney. The court granted
Bruce's request to continue the trial but found Bruce in
contempt of the court's prior orders, including the order
for interim support. Bruce was ordered to comply with the
orders. The court also advised Bruce that if he failed to
obtain appraisals consistent with the orders, the court would
accept Kathleen's valuations. The written order
reiterated this admonition.
In March 2016, Kathleen brought a second motion for contempt
alleging Bruce had failed to pay interim support and comply
with the other pretrial orders. That same month, Bruce's
second attorney moved for, and was granted, permission to
withdraw. At the hearing on Kathleen's motion, Bruce
appeared and claimed that he was unable to pay the support
obligations but failed to provide any financial information
to the court. Bruce claimed he had not filed tax returns for
the last several years and did not have the money to hire an
accountant to prepare the past tax returns. Kathleen disputed
this claim. She reiterated that Bruce had received $100, 000
in life insurance benefits following his mother's death,
but had made other purchases with this money, rather than pay
support. The court again found Bruce in contempt and ordered
that Bruce could purge the contempt by selling the recently
purchased property so that he could pay an accountant to
complete his taxes. The court also ordered Bruce to return
several items of marital property to Kathleen. The court
scheduled a trial date for September 8, 2016.
In July 2016, Bruce retained a third attorney and moved the
court to reconsider interim support. He also sought to
continue the September trial date. Bruce submitted an
affidavit claiming that health complications following his
stroke limited his ability to work and he was unable to pay
Kathleen support. However, he provided no documentation
showing his earnings. The affidavit also claimed that
Kathleen did not need support because she had access to
marital funds in the parties' savings and retirement
accounts. Despite his failure to comply with the prior
contempt order to sell certain property, Bruce claimed he
needed to access marital funds to pay for the preparation of
the prior years' tax returns and the appraisals.
Following the hearing, the court maintained the September
trial date to consider the issues of grounds for the divorce
and child custody but rescheduled the issues of support and
property division for trial on November 29. The court
deferred ruling on Bruce's motions to access the marital
funds and for relief from the support and contempt orders.
On September 30, Bruce again requested the court reconsider
interim support and contempt orders. At this time, he filed a
supplemental affidavit, along with completed individual tax
returns for the years 2014 and 2015, showing earnings of just
over $15, 000 each year. At a hearing on October 13, the
court permitted Bruce and Kathleen to each withdraw $20, 000
from the marital savings account. Only Bruce withdrew $20,
000. The court reserved ruling on the interim support and
contempt issues until trial.
The weekend before trial, Bruce provided Kathleen with
completed tax returns for the years 2009 through 2013 and an
appraisal of his personal property. Evidence at trial showed
Bruce failed to list or appraise several items of personal
property. Bruce also admitted he failed to appraise Taylor
Made Homes because he believed the business had no value.
At trial, Bruce testified he did not have sufficient income
to pay interim or permanent spousal support. He presented
evidence that he had given Kathleen over $35, 000 since the
separation but admitted no support had been paid for over a
year. Bruce also admitted he had failed to return items of
personal property to Kathleen as ordered by the court. Bruce
testified that he sold a tractor in compliance with a
court's second contempt order but used the money to pay
his attorney fees and repair his truck rather than hire an
accountant as ordered.
Shortly after trial, the court granted a divorce, finding
Bruce at fault due to extreme cruelty. The decree also
resolved the child custody issues, but reserved ruling on the
other unresolved issues. On June 7, 2017, the court filed a
memorandum decision resolving the remaining issues. The court
divided the marital property, awarding net assets valued at
$661, 666 to Kathleen and $463, 957 to Bruce. The court
calculated child support under the guidelines and ordered
Bruce to pay $244 monthly. Consistent with these
calculations, the court also reconsidered the interim child
support order, determining that Bruce owed $12, 544 in back
child support. The court did not reconsider the interim
spousal support order, calculating the $3, 000 monthly
interim support order through the date of the court's
ruling. The court deducted the $35, 470 Bruce had paid to
Kathleen and determined that Bruce owed $28, 530 for back
support under the interim order. The court also ordered Bruce
to pay monthly spousal support of $1, 000 for five years and
an unspecified amount of attorney fees to Kathleen.
Bruce raises several issues on appeal which we consolidate as
1. Whether the circuit court abused its discretion in
dividing the assets.
2. Whether the circuit court abused its discretion in
determining issues of child support and spousal support.
3. Whether the circuit court erred in finding Bruce in
contempt of court.
4. Whether the circuit court's award of attorney fees to
Kathleen was an abuse of discretion.
"Our standard of review is well-settled. We review the
trial court's determination of child support, alimony[, ]
and the division of property under an abuse of discretion
standard." Hill v. Hill, 2009 S.D. 18, ¶
5, 763 N.W.2d 818, 822. "Abuse of discretion refers to a
discretion exercised to an end or purpose not justified by,
and clearly against, reason and evidence." Godfrey
v. Godfrey, 2005 S.D. 101, ¶ 11, 705 N.W.2d 77, 80.
An abuse of discretion "is a fundamental error of
judgment, a choice outside the range of permissible choices,
a decision, which, on full consideration, is arbitrary or
unreasonable." Thurman ...