concurring-in-part-and-dissenting-in-part">HENDERSON, Justice

(concurring in part, dissenting in part).

DIVORCE

Appellant-husband should have been granted a divorce from appellee-wife on the grounds of adultery and extreme cruelty; to this extent, I join the majority opinion. The trial court erred in granting the divorce solely to the wife in view of: (a) her admitted adultery and (b) the abandonment of her husband and children, thereby creating a cause of action proving extreme cruelty through the infliction of grievous mental suffering.

The wife should not have been granted a divorce under her counterclaim and I would reverse the decree in this regard. As I view the record, her grounds for divorce were based on her testimony that: (1) her husband kept the family checkbook, (2) he shopped with her, (3) he was slow in completing his daily tasks and repairing things, (4) their home was substandard and her appliances needed repairs, (5) he provided no money for entertainment, (6) she had no telephone or automobile, and (7) he was away from home all day working with his father, which deprived her of her husband’s companionship. One may single out these facts, or combine them, and extreme cruelty is not demonstrated. Finding of Fact VIII entered by the trial court states “[t]hat the [wife] has suffered extreme embarrassment, humiliation and nervous tension as a result of the [husband’s] conduct toward the [wife].” It was on these “facts” that extreme cruelty was predicated.

The wife relies on Pochop v. Pochop, 89 S.D. 466, 233 N.W.2d 806 (1975), wherein this Court conceptually discussed extreme cruelty. The facts which constituted extreme cruelty, as found against the husband in Pochop, are simply not comparable to the facts I have related above. Acts of an extreme and personal nature were found in Pochop; there, examples of grievous mental suffering included (1) repeated and heated outbursts of temper, (2) the suggestion that one of the couple’s children be given up for adoption, (3) excessive sexual demands, and (4) religious conflicts between the spouses. In the now well-known case of Palmer v. Palmer (in which I vigorously dissented), 281 N.W.2d 263, 264 (S.D.1979), *713this Court referred to the Pochopdecision as representing “the outer limits of liberality in sustaining a finding of extreme cruelty[.]” If the facts in Pochopstrained the outer limits of liberality, these facts certainly exceed it.

If, indeed, the wife has established poverty (as the majority opinion’s footnote so suggests), economic hardship is not one of the grounds for divorce in South Dakota. See SDCL 25-4-2. Many marriages are filled with economic hardship. Pertinent, I believe, is the fact that the trial court entered not one finding of fact to indicate that the husband financially mistreated his wife or family or economically deprived them. Yet, it is the poverty syndrome which prompts a divorce decree in her favor. Moreover, no welfare or public assistance was ever received by the parties or their children. There is absolutely no showing of physical mistreatment by the husband toward his wife or family.

A divorce may be granted, however, under SDCL 25 — 4—2(4) for “willful neglect.” SDCL 25-4-15 defines willful neglect as: “[T]he neglect of the husband to provide for his wife the common necessaries of life, he having ability to do so; or it is the failure to do so by reason of idleness, profligacy, or dissipation.” SDCL 25 — 4-17 requires that willful neglect be continuous for one year before it constitutes legal grounds for divorce. Here, the wife did not plead, prove, or brief this “willful neglect” factor. It was not framed in pleadings for the trial court to consider and it is similarly not before us on appeal. Hence, we should not ground an affirmance of the divorce unto the wife as it is not supported in law. What happens, pray tell, to the art of advocacy when an appellate court will permit the elements of the cause of action pled to be proven by the elements of a totally different cause of action which was not pled?

CHILDREN

I also cannot join the majority opinion in affirming the award of the three children unto the wife in view of these aggregate facts:

(a) Her instability and emotional immaturity. (“God damn it, I wish I didn’t have you children.”) (Grabbing a knife and threatening to kill herself in front of the children.) (Depression, tranquilizers, hospitalization.)

(b) Her abandonment of the three children and the family home. (This bespeaks her intention more loudly than her present entreaty to have custody of the children.) Her reasons for leaving her husband were: “I wanted to think. I didn’t want any involvement.” Now — after having left South Dakota with her lover to “sit and think” — she wants custody of the children.

(c) Her perjury at the trial. (This reflects her present character.)

(d) My conviction that the “best interests of the children” would be better served by keeping them in a stable environment — which they now have— and by not placing them with their mother who has absolutely no concrete plans for them. There are no findings of fact as to what the wife will temporally, mentally and morally do for the children. To have uprooted these children from a known environment and familial setting and to place them in an unknown situation was wrong, in my opinion.

Thus, I join the concurrence in part and dissent in part of Justice Dunn on the issue of custody.

PROPERTY SETTLEMENT

The trial court’s property award appears equitable, is not an abuse of discretion, and I therefore agree with the majority opinion and its cited authorities in this regard. Obviously, if the wife does not obtain custody of the children, she should not receive a lien for future child support. I also join the majority opinion pertaining to the award of prejudgment interest thus reversing the trial court on this aspect of the property award. Our law is settled in this area. Furthermore, if the wife has a judgment which awards her a portion of the land, and the legal description thereof is set forth and *714the judgment is filed with the register of deeds, she has a lien of record on the land.

ATTORNEY FEES

Lastly, the wife should be allowed $1,500 in attorney fees for this appeal. A motion for attorney fees on appeal was filed with this Court on March 9, 1981. Said motion was made pursuant to SDCL 15-17-7. These fees could be paid in installments in the same manner, if necessary, as the net equity installment payments which are now being paid into the trust account of the wife’s attorneys. She has little money, if any, to pay attorney fees. Under my theory, the wife prevails on the property settlement award. She was placed in the role of appellee by an appeal taken by her husband and, therefore, is not before this Court of her own choosing. Her counsel is entitled to be reimbursed for his effort. The brief on her behalf was thorough and painstaking. Therefore, I cannot agree with the majority opinion’s denial of attorney fees for the wife.

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