Johnson v. Johnson

JOHNSON, Plaintiff Keith Donald Appellant, JOHNSON, Defendant

Muriel Eunice Appellee.

No. 12600.

Supreme Dakota. Court South

Argued Jan. 1980. April 1980.

Decided

pellee. part, part, We reverse in affirm in and remand to the trial court. Having previously been married and di- vorced, parties remarried in March of 18,1977, they 1974. On June entered into a separation property agree- and settlement ment. agreement, drafted the CONCERN,” entitled “TO WHOM IT MAY parties signed and both July it. Then on 11, 1977, appellant obtained an uncontested in County, Wyoming. divorce Crook The Wyoming approved repeated language and its in divorce decree. dispute

forms the basis of the current reads as follows: I, Johnson, hereby Donald Keith do pay to Muriel Eunice Johnson the sum Dollars, cash, Sixty of imme- Thousand diately, subsequently Fifteen Hun- month, dred Dollars a for the rest of her life; natural such sum to be securities, guaranteed by annuties [sic] beyond my lifetime. appellant

The divorce decree ordered “to $60,000.00 pay [appellee] the sum of cash, immediately subsequently Fifteen ($1,500.00) month, Hundred Dollars life; the rest of her natural such guaranteed by sum to be annuities and se- curities, [appellant’s] lifetime.” beyond During December 1977 exe- containing, among provi- other cuted a will Evans, Davenport, Hayes Robert E. sions, following: Smith, Falls, plaintiff Hurwitz & Sioux obligated provide my THIRD: I am appellant; Heege of Robert C. Daven- JOHNSON, wife, former MURIEL E. Falls, Evans, Smith, port, Hurwitz & Sioux with an of One Thousand Five on brief. ($1,500.00) Hundred Dollars a month for Jackson, Lynn, Haven L. Stuck of Shultz recognize the rest of her natural life. Lebrun, Rapid City, & for defendant and obligation my and authorize Execu- appellee. it, tor to trust to fund and at establish a the death of Muriel E. Johnson the bal- MORGAN, Justice. paid equal ance of such trust is to be appeal Eighth This is an from an children, Judicial my namely, shares to five SU- enforcing Circuit Court final order an ali- KLINE, FLANNERY, SAN LYNDA mony provision Wyoming HANSON, LORENE JOHN- NANCY JOHNSON, granted appellant, divorce to the Donald or to SON and GUSTAV Johnson, appellee, Keith Muriel by right representation their children Johnson, required appellant any my Eunice should of them die before former wife, guarantee monthly sum MURIEL E. JOHNSON. conformity Chapter Appellant argues 15- he with SDCL should not have 16A, Foreign been to forthwith Enforcement Uniform Act, appellee. It is undis- appellee, through her Judgments attor- any puted between the office of clerk courts ney, filed in the during appellee’s ments due lifetime and Dakota, County, an affi- of Lawrence South guaranteed, death must be filing foreign judgment davit guarantee they disagree but as to when the copy judgment and de- exemplified to be made and what additional is Wyoming court. In by the cree entered ments, to guarantee if the is cover. appellee requested conjunction therewith argues guarantee the is to that appellant to the court order show that trial be at the time of his death for established why not cause he should be thereafter, any payments while $1,500.00 guarantee payments, the argues lee is to that which to date he had not done. payments now. an signed court and filed order The trial hearing on to show cause and then held primary rule construc “The in the hearing appellant ap- must, At the matter. the is the tion of contracts court peared by attorney, his did through possible, give as the ascertain and effect hers, through and the court heard parties.” mutual intention of the Huffman 89, 852, Relying judg- Shevlin, 84, the testimony. oral on no v. 76 S.D. 72 N.W.2d (1955). the in by ment and of divorce entered 855 In order to determine the court, case, of we must Wyoming parties affidavits and briefs tent the the agreement counsel, interpret their as written. Kan by filed and the oral submitted and Wells, counsel, City 224 trial sas Life Ins. Co. v. 133 F.2d arguments given by (8th 1943). modifying not Cir. We are be ordered “that made, agreement they since modifi guaranteed by an or forthwith of is cation an not included by shall be funded securities or trust which interpretation it. v. of Chaffee Chaf by [appellant] transferred in an other assets fee, 607, (1944). 244 19 Wash.2d 145 P.2d be sufficient meet amount calculated to . . . .” It is required payments Also, a contract must be construed appellant appeals. order that whole, just portion as a not of it. a detached Co., City Henry of v. Carlson Sioux Falls recognizes the rule that a This court (S.D.1977); 676 v. 258 N.W.2d Eberle are rulings pre decisions trial court’s McKeown, 345, 83 159 391 N.W.2d correct, sumed to and this court will not Steele, 609, (1968); v. 28 Bedell 71 S.D. Lytle Morgan, seek v. reasons reverse. (1947). N.W.2d 369 The latter (S.D.1978); 270 359 Shaffer provision currently in question cannot (S.D.1976); Honeywell, 249 N.W.2d 251 regard and construed without detached on County Custer Bd. of Ed. State Com’n provision. to the entire 215, Ed., 586 E. & S. 86 S.D. 193 N.W.2d exist, (1972). not presumption Although parties agree This both that no however, provision, review is appellate ambiguity when the exists in the even though reach as entirely they based on a written record. Nation different conclusions Shoemaker, meaning, or Surety Corporation al 86 S.D. to its determination whether 302, ambiguous F. in a (1972); 195 Brewster v. not words used contract are N.W.2d 134 129, by usually question 99 N.W.2d of law to be decided Company, C. Russell 78 S.D. is (1959); Pure Plant In Management 42 Service v. the court. Jensen v. Food Credit 80, tern., Ltd., Wendbourne, 926 274 N.W.2d 261 Em 72 N.W.2d Corporation v. (1955). presumption ployers Liability In Assurance this case there is no correct, Morse, so Minn. 111 N.W.2d lower court (1961). addition, as not court’s review of the record is the same parties simply trial itself created because court’s. reflect, permitted not nor are we interpretation of the con does as to the differ Burns, speculate, purchase what effect the of an- 169 Colo. Burns v. tract. nuity deposit security or of sufficient would (1969); Brunton v. International P.2d 814 298, 164 Co., approached have on a net worth which P.2d 472 Trust Colo. $2,000,000.00 years ago differ to the two and which though even as So here, provision history steady at issue showed a increase. Inas- interpretation of the we ambiguity to exist. much as we have determined that are we find no interpretation presented question with a Although placed a semicolon is to modification, per- we rather than do provision, of the controverted ward the end balancing valid to look to a any ceive reason words, are the punctuation, not the “[t]he equities may may not result construing a contract. controlling guide remaking par- in our for the meaning the words is clear the If the ties; which, reached, would be a a result according interpret a contract court will modification, interpretation. an Flow- not regard the meaning and without to their Flowers, (Ala.1976); ers v. 334 856 So.2d the want of them.” punctuation marks or 551, 95 N.W.2d Knapp Breeding, v. Drilling Bruhlmey v. Anderson & Kerr Co. (1959). 535 574, 580, er, 136 803 134 Tex. S.W.2d (1940). appellant’s have examined final We making the specific That no time for funding argument provided that he has provi forth in the guarantee of the is set testamentary disposi guarantee by the a import. It has been held sion is of little not, however, fulfill the tion. It does circumstances the time in that under such interpreted it. It agreement as we have Papaioan one. volved is to be a reasonable now, guarantee payment fails to the 596, 139 Britz, App.Div. 285 N.Y.S.2d nou v. indeed, readily changed the will can at just (1955). to determine what In order prior It as any time to testator’s death. time is amount of time is when a reasonable suffi sures that estate will be essence, we must look at the not of the assumption bequest, fund the an cient to case. circumstances of each individual indulge in. A will does not that we cannot Shevlin, supra; First Nat. Huffman v. obligation by appellant assumed satisfy the Wagner, Bank of Yankton agreement. in the 213 N.W. 3 to The order of the trial court is reversed Reading required the in conformi is not appellant the extent that the giving the the the above rules and under ty guarantee with to arguments the of both become due alimony agreement maximum benefit to that shall the parties. that the parties, during we hold the lifetime of both affirmed, however, incorporating require ap it that the the extent is to order guarantee only pay such to forthwith de- pellant required forthwith is enti monthly alimony which the would be posit guarantee ments to a death, during during appellee’s lifetime and after his may tled her ments that fall due by death, an or de said by purchasing either but after lifetime compliance in such amount with positing guarantee in trust securities to be made actuarily satisfy requirements the opinion. as will this by the trial guarantee approved to be the this court to Finally, appellee has moved court. or an- attorney’s fees either incurred allow An appeal. ticipated for defense of argues require that to him with the motion. was included is in itemized bill payments the forthwith to motion “for the reason Appellant resists the shareholder equitable. principal He is the motion is grounds that such upon a the business and highway in a construction Court, is for improperly brought before sheet is net worth on his balance substantial to the Defendant relief that was denied The record purposes. business the court, agree interpret that we must does not further in the trial Respondent therefor, a written and that modification grounds sentence as or the need establish is not to be included in of the sentence proper is a inequitable, and would be poorly it. The sentence is interpretation of Supreme Court.” in the item costs wrong. If The semicolon punctuated. gives power the court the SDCL 15-17-7 punctuation without add- we corrected attorneys’ fees payment order would not cure ing deleting words we judg- case, and after both before divorce I also by the sentence. problem presented however, fees, be “war- must ment. The meaning agree it is clear necessary.” ranted and sentence which must words utilized recently this issue in addressed We have attempting give ef- when be considered Holforty Holforty, two cases. parties. mutual intent fect (S.D.1978), and Wallahan N.W.2d 810 majority finding that disagree with the (S.D.1979). Wallahan, N.W.2d 21 Al- ambiguity exists in sentence. no said: Holforty though this court and We have stated that during appellee’s lifetime and after jurisdiction have concurrent circuit court guaranteed, they disa- lant’s death are in a action require the husband divorce made guaranty as to be gree to when enable the wife to pay allowance to payments, and what additional However, appeal. side of an present her is to guaranty cover. fact-finding and we body, we are not interprets the sentence to mean Appellee is in far better feel the trial court that monthly payments after the cash that attorney on position pass to hear and fees she payment guaranteed are to be until Accordingly, the in the first instance. dies, death, and the beyond appellant’s even trial court for a case remanded to the be soon as guaranty is to established as amount for determination a reasonable possible after divorce. resisting expenses for attorney fees and interprets the sentence (Citations omitted.) appeal. only mean that those Lien, also Lien v. at 812. See payable appellant’s may be after (S.D.1979). 278 N.W.2d guaranteed be and that death are to Wallahan, supra at we As we did in provided “im- guaranty does not have to that case to the trial court so it remand the “forthwith,” any specific or at mediately,” can “determine reasonable amount Apparently appellant contends that time. appeal [appellee’s] attorneys’ fees deathbed, just his if somehow he could on thereof, any, [appellant] if and the guaranty, expiring, before establish pay.” should satisfy requirement. this would that the matter to the We therefore remand ambiguity The trial court found that no disposition trial accordance interpreted the sentence as existed and opinion. with this arriving at his decision the pellee did. the sen- judge possibly trial that conceded WOLLMAN, J.,C. HENDERSON and ambiguous if so the rule of tence was and FOSHEIM, JJ., concur. ambiguity be require law would that GROSSHANS, Judge, against dissents. construed the scrivener. Circuit ambiguity majority finds no Now the also GROSSHANS, Judge, sitting for Circuit yet with a third up to exist and comes DUNN, J., disqualified. interpretation of the same sentence. GROSSHANS, Judge (dissenting). Circuit Dic- Webster’s Third New International judge. I would affirm the trial tionary ambiguity as “the condition defines meanings, admitting two or more of the I that court’s review way than one being in more court’s. understood record is the same as the trial of a consistently fy guaranty by held the establishment has . Our court .” rea- ambiguous testamentary majority when it is trust but the language is being understood capable go enough guar- to hold him to the sonably far Case, sense. Piechowski imposed upon guar- more than one himself. The anty he Newton v. Erick- 255 N.W.2d applied by majority, even as anty, son, 41 N.W.2d penniless becomes worthless to- appellee years dies from now morrow issue in conform- Reading the sentence at prior appellant. but rules, I would find foregoing ity with ambiguous. To illus- sentence is that the affirm the I believe that this court should only necessary to it is trate appears to me that the ma- trial court. It three apply questions three to each departs jority blithely ignores logic and (1) is: What is to interpretations, legal precedent in order long-standing from monthly sum (2) When is the guaranteed? litigating parties por- give each of the (3) term of What is the guaranteed? to be they seek. I submit that tion of that guaranty? easy, sleep will not nor rest but this decision answer these Appellee and the trial court will rise from precedent set here sum; (1) The questions as follows: wonder, the the ashes like that bird of forthwith, being subsequent to the cash (2) creating another heir phoenix, maiden after the de- reasonably soon payment and years which will haunt this court cree; (3) the entire remainder of come. life, death. beyond appellant’s even lee’s as fol- questions these Appellant answers sum, (1) The

lows: for the re- appellant’s death life; (2) at the time of appellee’s

mainder of death; (3) appellee’s death.

death to answers these majority of this court (1) monthly sum

questions as follows: for the appellant’s death life, (2) applicable; her

remainder of forthwith, subsequent to the cash being of Melvin Matter of the ESTATE In the reasonably after the de- payment soon KRANIG, Deceased. cree; (3) death to No. 12686. death, applicable. pellee’s that an it is obvious

Since Dakota. Supreme Court of South capable exist in that the sentence 25, Argued Feb. 1980. three interpreted to have at least being meanings, the sentence should reasonable 30, 1980. April Decided strongly against interpreted most it and inasmuch as he drafted City of uncertainty to exist. caused the Co., 258 Henry Carlson Falls

Sioux v. American Jones Co., 384, (1973); 209 N.W.2d 1

Oil 87 S.D. Heaton, N.W. 281

Evans

(1930); Kropuenske, Weisser used the word

226 N.W. 760 He shallow, mean- It is not a

“guaranteed.” appreciates the

ingless majority word. The attempt to satis-

shallowness of

Case Details

Case Name: Johnson v. Johnson

Court Name: South Dakota Supreme Court

Date Published: Apr 30, 1980

Citation: 291 N.W.2d 776

Docket Number: 12600

Court Abbreviation: S.D.