KATHRYN J. SAVAGE v. JAMES A. SAVAGE 2003 SD 46
Annotate this CaseKATHRYN J. SAVAGE
Plaintiff and Appellee,
v.
JAMES A. SAVAGE
Defendant and Appellant.
[2003 SD 46]
South Dakota Supreme Court
Appeal from the Circuit Court of
The Second Judicial Circuit
Minnehaha County, South Dakota
Hon. Judith K. Meierhenry, Judge
CATHERINE V. PIERSOL
Piersol Law Office
Sioux Falls, South Dakota
Attorney for plaintiff and appellee.
LEE R. BURD
Sioux Falls, South Dakota
Attorneys for defendant and appellant.
Considered on Briefs March 26, 2003
Opinion Filed 4/23/2003
#22503
SABERS, Justice
[¶1.] This is an appeal from a decision to extend an alimony award under a divorce decree based on an oral stipulation and agreement of the parties. The trial court determined that a time limited alimony award could be extended based on the trial court’s inherent power to modify an alimony award upon proof of change in circumstances. Jim Savage, the husband and obligor, appeals. We affirm.
FACTS[¶2.] Jim and Kathryn Savage were divorced on February 26, 1997. The divorce decree incorporated an oral Stipulation and Agreement by the parties. The stipulation included an alimony award of five hundred dollars per month to Kathryn:
[u]ntil [Kathryn’s] death, remarriage, or cohabitation, or for a period of five years unless no stated qualifying event has occurred prior to the five year period. However, at the end of the fifth year, should a reputable neurologist determine that plaintiff is unable to work, at that time the alimony shall be re-evaluated.
The reason for this provision was that five years prior to the divorce, Kathryn was diagnosed with multiple sclerosis. The parties and court acknowledged that among the long term effects of the disease was a progressive worsening which might preclude Kathryn from working.
[¶3.] At the time of the divorce, Kathryn was working approximately three days per week as a surgical nurse. At the time of the motion for continuation of alimony, although she continued to work three days per week, the work and the hours created substantial stress and undermined her health. Between the date of divorce and the motion hearing, her pay had increased from approximately $25,000 per year to $35,000 per year. Jim is an anesthetist who at the time of divorce was earning approximately $90,000 per year. At the time of the motion hearing, Jim was residing in Florida with an income ranging between $86,000 and $110,000 per year.
[¶4.] The trial court found that Kathryn’s condition had declined since the divorce. “She experiences more fatigue, loss of stamina, and periodic migraine headaches. She has also developed additional problems with tingling and numbness in her hands and she fears she may need carpal tunnel surgery. She also experiences symptoms as a result of her MS such as memory loss and slow speech.” The evidence also revealed that although Kathryn continues to work, on her days away from work she is largely confined to bed because her body can no longer handle the rigors of her job and she needs her days off to recover. Based on these findings, the trial court granted Kathryn’s motion for continuation of alimony and ordered Jim to continue paying Kathryn $500 per month. Jim appeals, raising the following issues:
1. Whether estoppel prevents the trial court from modifying the support agreement.
2. Whether alimony provisions made by the parties to a divorce and approved by the court without an evidentiary hearing are modifiable.
3. Whether the trial court abused its discretion in finding changed circumstances sufficient to warrant modification of the alimony award.
4. Whether Kathryn’s motion for continuation of alimony was time- barred.
We affirm the trial court on all issues.
STANDARD OF REVIEW
[¶24.] Kathryn has made a motion for appellate attorney fees in the amount of $1,780.80 in accord with our decision in Malcolm v. Malcolm, 365 NW2d 863 (SD 1985). Taking into account all of the factors to be considered under Malcolm for such an award, we determine that Kathryn is entitled to $1,200.00 in attorney fees.
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