GILBERTSON, Chief Justice.
[¶ 1.] On August 15, 2014, the circuit court granted a divorce to Everett Thomas MacKaben Jr. (Tom) and Annette MacKaben because of irreconcilable differences. In dividing the property, the circuit court determined that a sizable tax lien on the marital home was Tom's nonmarital debt. The court also awarded spousal support of $1,000 per month to Annette for a period of 10 years to follow the sale of the marital home. Tom appeals, asserting that the circuit court abused its discretion in assigning him sole responsibility for most of the tax lien, in not specifying that the spousal support terminates in the event of his own death, and in setting the amount and duration of the support award. We affirm.
[¶ 2.] Tom and Annette met in 1999 and married on September 18 of that year. At the time of trial, Tom was 53 years old and Annette was 45 years old. The parties have one child together, who was 13 years old at the time of trial. Tom has a high-school-level education and was largely self-employed during the marriage. He owned and operated a small construction company called Bear Paw Construction and sometimes served as a hunting guide. Annette has a Bachelor of Science degree in animal science from South Dakota State University. Aside from Tom recovering from surgery on his bicep, the parties were otherwise in good health at the time of the divorce. Although Annette worked outside of the home for a short time after the marriage, Tom successfully encouraged Annette to discontinue her employment in order to assist in his construction business by tracking financial information and records.
[¶ 3.] The parties struggled financially from the beginning of the marriage. Tom came into the marriage with existing child-support obligations and owing $40,000 to his previous wife. More importantly, however, Tom did not reliably keep accurate business records, nor was Annette able to do the bookkeeping. The parties did not timely file income-tax returns from 2000 to 2006. They filed their 2005, 2006, and 2007 returns in 2007 after they sought to refinance the debts on the marital home. The parties eventually filed their 2003 and 2004 returns as well. During this time, Tom accumulated several judgments against his construction business, including one default judgment, and failed to pay excise taxes. Annette's mother loaned the parties $20,000 to satisfy and settle one of these judgments. Without Annette's knowledge, Tom also incurred a significant amount of credit card debt and allowed the
[¶ 4.] By 2011, the parties' economic situation had deteriorated to such an extent that they sought out Consumer Credit Counseling Services (CCCS). CCCS obtained a credit report on the parties, and Annette first learned that their personal tax returns had not been filed for three tax years and that the Internal Revenue Service (IRS) had placed a tax lien on their home totaling nearly $50,000.
[¶ 5.] Annette filed for divorce in December 2013. Thereafter, the parties separated, and Tom stopped living at the marital home. The parties agreed that they would share legal custody of their child, that Annette would have primary physical custody, and that Tom would get reasonable and liberal visitation. The parties also agreed to sell the marital home. Tom continued paying the monthly mortgage, insurance, and tax payments on the home; the monthly payment to CCCS; Tom's business insurance; and the parties' health insurance. The parties also agreed on the division of personal property and non-IRS debts. Additionally, Tom has been making $500 payments to the IRS every month under a debt-repayment plan.
[¶ 6.] After the parties separated, Annette initially worked part-time driving a school bus, but later found full-time employment as a paraprofessional with the Meade County School District. Annette has also received additional training enabling her to drive charter busses during the summer months and for school trips.
[¶ 7.] The circuit court granted each of the parties a divorce on the grounds of irreconcilable differences on August 15, 2014. The court adopted the parties' own personal-property division but ordered Tom to pay $10,000 to Annette in order to equalize the division. As for the marital home, the court ordered that it be sold. However, the court concluded that while the underlying tax liability was a marital debt, the interest and penalties were Tom's nonmarital debt. As a result, the court ordered Tom to pay $22,187 to Annette after the sale of the home; that any proceeds remaining after paying the mortgage, costs of sale, and tax lien go toward satisfying this award; that Tom receive any additional proceeds totaling up to $5,000; and that any remaining proceeds be shared equally. The circuit court also ordered Tom to continue paying $2,500 per month to cover the mortgage, insurance, and property tax on the home. Finally, the court ordered Tom to pay Annette $1,000 per month in spousal support for a
[¶ 8.] Tom raises seven issues on appeal. Additionally, Annette requests appellate attorney fees.
[¶ 9.] We review a circuit court's division of property for abuse of discretion. Huffaker v. Huffaker, 2012 S.D. 81, ¶11, 823 N.W.2d 787, 790. We also review a circuit court's spousal-support determinations for abuse of discretion. Hagedorn v. Hagedorn, 2012 S.D. 72, ¶9, 822 N.W.2d 719, 722. "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.'" Gartner v. Temple, 2014 S.D. 74, ¶7, 855 N.W.2d 846, 850 (quoting Arneson v. Arneson, 2003 S.D. 125, ¶14, 670 N.W.2d 904, 910). "Pursuant to an abuse of discretion standard of review, factual determinations are subject to a clearly erroneous standard." Id. ¶ 8, 855 N.W.2d at 850 (quoting State v. Guthrie, 2002 S.D. 138, ¶5, 654 N.W.2d 201, 203). However, the circuit court's conclusions of law are reviewed de novo. Id.
[¶ 11.] Tom asserts that the circuit court's findings of fact, conclusions of law, and divorce decree are only entitled to limited deference because they were all drafted by Annette's counsel. In support of this assertion, Tom offers a single dissenting opinion stating: "[W]e cited with approval a case suggesting that appellate courts should scrutinize more carefully and give less weight to findings prepared by counsel than those findings prepared by trial judges themselves." Kreps v. Kreps, 2010 S.D. 12, ¶48, 778 N.W.2d 835, 848 (Konenkamp, J., dissenting). According to Tom, the circuit court altered only a single finding of fact, added one conclusion of law, and omitted Annette's proposed conclusions of law regarding attorney fees.
[¶ 12.] We decline Tom's invitation to hold that findings and conclusions prepared by a party at the court's request are only entitled to limited deference as a general rule. SDCL 15-6-52(a) specifically empowers a circuit court to "direct counsel for the prevailing party to prepare findings[.]" After the opposing party has been given an opportunity to respond to the
[¶ 14.] Next, Tom asserts the circuit court should have specifically addressed whether Tom's spousal-support obligation terminates in the event that his death occurs prior to the conclusion of the 10-year obligation. However, this issue is not ripe for review.
[¶ 16.] We do not reach this issue because of our decision on Issue 2.
[¶ 18.] The circuit court attempted to divide the marital estate into equal
[¶ 19.] Tom first asserts that the circuit court failed to give sufficient weight to Annette's treatment of the parties' tax problem. The circuit court found that in 2011, after attending credit counseling, Annette learned that the parties' income-tax returns had not been filed for three previous tax years and that the marital home had been encumbered by a tax lien of nearly $50,000. Although Tom acknowledges that "Annette's testimony provides some basis in the record for that finding[,]" he argues that "if Annette really was unaware of any issue, it could only be because she willfully stuck her head in the sand[.]" According to Tom, Annette should have realized the parties had a tax problem because Annette testified she believed the parties had been granted extensions for previous tax years, including an eight-year extension for the 2000 return; because the parties filed six tax returns at once in 2008; because Annette was generally aware of the parties' financial difficulties throughout the marriage; and other miscellanea. Additionally, Tom points out that after both parties learned of the problem, they allowed their outstanding tax liability to continue accruing interest and penalties for over a year before taking any steps to directly address the tax lien.
[¶ 20.] An appeal is not an opportunity to simply relitigate credibility determinations. "We give deference to the [circuit] court on judging the credibility of the witnesses and weighing their testimony." Hill v. Hill, 2009 S.D. 18, ¶26, 763 N.W.2d 818, 826. Any "[d]oubts about whether the evidence supports the [circuit] court's finding of fact are to be resolved in favor of the successful party's version of the evidence and of all inferences fairly deducible therefrom which are favorable to the court's action." Gartner, 2014 S.D. 74, ¶8, 855 N.W.2d at 850 (quoting Estate of Olson, 2008 S.D. 97, ¶9, 757 N.W.2d 219, 222). During the divorce proceedings, under cross-examination by Tom's counsel, Annette testified as follows:
The circuit court was not required to disbelieve Annette's testimony simply because Tom concludes she should have known better. While the content of Tom's assertions provides circumstantial evidence that might help prove Annette's awareness of a tax problem at the trial level, Tom has not proved by "a clear preponderance of the evidence" that Annette was aware of the parties' tax problem. See id. (quoting Olson, 2008 S.D. 97, ¶9, 757 N.W.2d at 222). Because Tom has fallen short of leaving us "with a definite and firm conviction that a mistake has been committed[,]" id. (quoting Olson, 2008 S.D. 97, ¶9, 757 N.W.2d at 222), we are not persuaded that the circuit court "failed to give sufficient weight" to Annette's treatment of the parties' tax problem.
[¶ 21.] Next, Tom asserts that the circuit court's finding that Annette's efforts after learning of the tax lien "set[] the stage for a return to solvency" is clearly erroneous. According to Tom, "[t]he primary thing that set the stage for the family's financial solvency was not Annette preparing tax returns, but rather the fact that Tom started working the coal mine in 2011 and earned a higher and more consistent income than at any other time during the marriage." We fail to understand how this finding, even if erroneous, undermines the circuit court's conclusion that the interest and penalties on the unpaid tax liability was Tom's nonmarital debt. The circuit court determined the interest and penalties on the unpaid debt was nonmarital because Tom was responsible for the imposition of those amounts, not because of Annette's role in remedying the situation.
[¶ 22.] Finally, Tom asserts the circuit court erred by attributing all payments made on the parties' IRS debt to principal. The parties initially owed the IRS an unpaid tax liability of $33,455. This tax liability generated an additional $44,376 in interest and penalties. However, the parties were credited with $23,661 in payments to the IRS. The circuit court applied the entirety of this credit toward the $33,455 underlying tax liability, leaving the interest and penalties unaffected. According to Tom, "Annette should be responsible for half of the interest accumulated on the unpaid taxes, even if penalties and interest on the penalties are made Tom's responsibility." Thus, the essence of Tom's argument is that the circuit court abused its discretion by categorizing the interest and penalties on the IRS tax liability as Tom's nonmarital debt. We disagree that the circuit court abused its discretion in this regard.
[¶ 23.] The Nebraska Supreme Court decided a substantially similar case in Meints v. Meints, 258 Neb. 1017, 608 N.W.2d 564 (2000). In Meints, over the course of seven years, a "husband incurred a federal income tax liability of $19,162.31, plus an additional $11,235.36 in statutory penalties for late filing, for a total Internal Revenue Service (IRS) liability amounting to $30,397.67." Id. at 567. During those same years, "the husband and the wife filed separate income tax returns." Id. However, the husband testified—and the wife did not dispute—that he "spent the funds that he failed to withhold from his income for IRS tax purposes on family expenses[.]" Id. Consequently, the "district court did not treat the tax liability incurred by the husband as a marital debt and proceeded to divide the remaining marital estate accordingly." Id. at 566.
[¶ 24.] Although the facts of the present case are not identical to those presented in Meints, we think they are sufficiently analogous to apply the same principles. Like the Nebraska Supreme Court, the circuit court here concluded the underlying tax liability was a marital debt while the accrued interest and penalties were Tom's nonmarital debt.
Additionally, the circuit court also found that "Tom's failure to file income taxes was willful as well as negligent and as a result the parties incurred a significant amount of penalties and interest that they should not have incurred had Tom managed their financial affairs properly." Tom has not convinced us that the circuit court clearly erred in its relevant factual findings. Therefore, like the Nebraska Supreme Court in Meints, we must likewise conclude that Annette is "innocent" and should not suffer the consequences of Tom's concealed mismanagement of the family's finances—i.e., the interest and penalties portion of the tax lien.
[¶ 25.] In light of the foregoing, the circuit court's application of the parties' $23,661 credit was proper. Tom has not asserted that any portion of this credit was paid out of his nonmarital funds. Therefore, it was proper for the circuit court to apply half of the credit toward each of the parties' shares of the underlying tax liability
[¶ 27.] Tom asserts that the mortgage, insurance, and property-tax payments on the marital home should have been proportional to the allocation of the asset between the parties. Although the circuit court ordered Tom to make the foregoing payments on the home, the court ordered the first $5,000 of any net proceeds obtained from the sale of the home to be paid to Tom and any remaining proceeds to be equally divided between the parties. Annette argues that she remained equally obligated on the debt even though the circuit court "simply ordered Tom to pay the entire mortgage" instead of having "Tom pay half of the mortgage debt and Annette pay half of the mortgage debt with alimony that Tom paid to her[.]"
[¶ 28.] As Tom points out, we reviewed an analogous property division in Foley v. Foley, 429 N.W.2d 42 (S.D.1988). In Foley, a husband and wife divorced, and the circuit court ordered the husband to make monthly payments of $518 for "the house payment, consisting of principal, interest and insurance" and $176 "for utilities, food, and necessaries[.]" Id. at 43. The court did not identify whether it considered these payments a portion of the property settlement or an award of spousal or child support, but the awards were set to terminate upon the later occurrence of the parties' youngest child reaching age 18 or finishing high school. Id. at 43-44. While the court determined that the parties would retain joint title to the marital home, the court decided the wife would receive 70% of the net proceeds from the sale of the home and the husband would receive the remaining 30%. Id. at 44. The court ordered the home be sold if the wife remarried or upon the later occurrence of the parties' youngest child reaching age 18 or finishing high school. Id. After the home was eventually placed on the market for sale, the wife petitioned for modification, which the circuit court granted.
[¶ 29.] On appeal of the modification, we commented on the circuit court's distribution of the mortgage and insurance payments. We said:
[¶ 30.] We think Foley is inconsistent with the discretion given to circuit courts to equitably divide marital property in divorce proceedings. Foley itself was a split decision, and it appears that we have never relied on Foley for the notion that a party's responsibility for preventing foreclosure on the marital home must be proportional to that party's interest in the asset. Such a rule ignores the equity court's larger function of dividing the total of marital property. A court is not required to equally divide each individual asset; rather, the overall division of the entirety of the marital assets must be equitable. To the extent that Foley suggests otherwise, it is overruled. In light of the larger property division, requiring Tom to pay an extra $1,250 per month to preserve the one asset that would be used first to satisfy his tax debt to the IRS was not an abuse of discretion.
[¶ 32.] In addition to disputing the circuit court's categorization of the interest and penalties as his nonmarital debt, Tom asserts "the manner in which the [c]ircuit [c]ourt attempted to accomplish this goal fails in its purpose because it does not account for the likelihood that the parties would make payments on the debt before the sale of their home." According to Tom, "[a]ny findings regarding the amount of proceeds from the home sale that will go towards the IRS lien are clearly erroneous" because the circuit court could not have known whether and by how much the tax lien would change by the time of sale. Tom asserts that he has been making $500-per-month payments on the tax lien under a settlement agreement with the IRS. Thus, Tom concludes that "[t]o properly accomplish the objective of making [him] responsible for $44,375 of the IRS debt, it is necessary to use a formula that accounts for payments on the debt made by each party before the home sells." We disagree.
[¶ 33.] Tom ignores the larger picture of the entire property division. Tom's burden on appeal is not to prove merely that one aspect of the actual property division deviated from the circuit court's intended property division. Rather, Tom must convince us that the property division, as executed, was an abuse of discretion. Although a circuit court must "have regard for equity and the circumstances of the parties" when dividing the marital estate, SDCL 25-4-44, "[i]n the division of property rights, there is no rigid formula that must be followed, nor any fixed percentage to which either party is entitled." Clement v. Clement, 292 N.W.2d 799, 801 (S.D.1980) (citation omitted). When a circuit court divides property, "the law does not require perfection that would approach a mathematical certainty." Pellegrin v. Pellegrin, 1998 S.D. 19, ¶24, 574 N.W.2d 644, 649. In this case, the circuit court did not abuse its discretion by declining to adopt a formula that would account for potential, minor variations in the amount of Tom's tax-lien obligations. Considering the property division as a whole, Tom's monthly obligation to make the tax payment would only affect the overall property division marginally if at all.
[¶ 35.] Tom asserts the circuit court abused its discretion in ordering Tom to pay Annette $1,000 per month in spousal support for a period of 10 years beginning on the first day of the month following the sale of the home. Tom argues the court abused its discretion in two respects. First, Tom argues that the circuit court clearly erred by concluding Annette's income potential would never approach Tom's. Second, because the 10-year period does not begin until the home sells, Tom argues that the effect of the circuit court's order "was to essentially extend Tom's alimony obligation by a month for every month the home remains unsold." According to Tom, "having the period run from
[¶ 36.] The circuit court's evaluation of the parties' earning capacities was not clearly erroneous. Tom asserts that "[t]he alimony award is . . . based on the erroneous factual finding that Annette's `income potential despite her degree will never approach Tom's.'" The reason for this, Tom suggests, is that "[t]here was no evidence suggesting [Annette] could not become qualified to drive equipment at a coal mine, or similarly drive trucks that service the oil fields in North Dakota." However, Tom offers no authority for the proposition that a spouse seeking support must move to another state and seek out a particular occupation or necessarily risk having its income potential be imputed to that spouse.
[¶ 37.] Even if we agreed that the circuit court clearly erred in its findings on the parties' respective earning capacities, Tom would not necessarily prevail. A circuit court that grants a divorce "may compel one party to make such suitable allowance to the other party for support during the life of that other party or for a shorter period, as the court may deem just, having regard to the circumstances of the parties represented[.]" SDCL 25-4-41. Relevant circumstances include "the parties' (1) length of marriage; (2) earning capacity; (3) financial condition after the property division; (4) age, health, and physical condition; (5) station in life or social standing; [and] (6) relative fault in the termination of the marriage." Scherer v. Scherer, 2015 S.D. 32, ¶10, 864 N.W.2d 490, 494. While spousal support "will not be awarded in such an amount as would allow a [spouse] capable of work to sit in idleness, [neither] will it be denied merely because [the spouse] may be able to obtain employment and support [him-or] herself." Guindon v. Guindon, 256 N.W.2d 894, 898 (S.D.1977). Thus, earning capacity is but one factor a court should consider in determining an award of spousal support.
[¶ 38.] In this case, the circuit court's findings on the relevant factors
[¶ 39.] Although Tom argues that "having the [support] period run from an undetermined point in the future (whenever the home sells) cannot be reasonably justified[,]" he offers no authority for the conclusion that such an arrangement is inherently unreasonable. In this case, such an arrangement only benefited him. Neither the total amount Tom is required to pay, nor the total amount Annette receives in support, is changed by this arrangement; the only difference is when Tom is required to pay certain amounts. By delaying the start of the 10-year period, the circuit court merely gave Tom the benefit of only having to pay $2,500 per month while the home was on the market rather than $3,500 per month. In contrast, Annette receives no additional benefit from this arrangement. Although she is permitted to live in the home prior to sale, she is deprived of the flexibility that accompanies a cash payment of spousal support during that time. Tom can hardly complain about such an arrangement. The circuit court has discretion to "compel one party to make such suitable allowance to the other party for support during the life of that other party or for a shorter period[.]" SDCL 25-4-41 (emphasis added). The circuit court did not abuse its discretion by ordering Tom to pay spousal support for a period of 10 years following the sale of the parties' home.
[¶ 41.] Annette requested reimbursement of appellate attorney fees. SDCL 15-26A-87.3 permits us to grant appellate attorney fees "where such fees are permissible at the trial level." Grynberg Expl. Corp. v. Puckett, 2004 S.D. 77, ¶ 33, 682 N.W.2d 317, 324 (quoting Hentz v. City of Spearfish, Dep't of Pub. Works, Office of Planning & Zoning, 2002 S.D. 74, ¶ 13, 648 N.W.2d 338, 342). Therefore, "if appropriate, in the interests of justice, [this Court] may award payment of [appellate] attorneys' fees in all cases of divorce, annulment of marriage, determination of paternity, custody, visitation, separate maintenance, support, or alimony." SDCL 15-17-38. Here, not only does Tom receive more in the division of marital property and debts, his income is substantially greater than Annette's. As noted above, the circuit court found that Tom's expected income is between $96,000 and $120,000 per year, whereas Annette's is only between $20,000 and $24,000 per year. Therefore, we conclude that Tom should pay Annette's appellate attorney fees in the amount of $7,587.49.
[¶ 42.] We decline Tom's invitation to alter the standards of review applicable to this case. Whether the circuit court erred by not specifically stating that Tom's support obligation to Annette terminates in
[¶ 43.] ZINTER, SEVERSON, WILBUR, and KERN, Justices, concur.