*1 cir person under similar sonably prudent supra; Eby, similarly. to act LODDE, cumstances Lou Plaintiff Shoemaker, Griffin, supra; Martin v. Appellee, (Wis.App. Wis.2d proceeding knew suit was Wilson her and as she testified without LODDE, Defendant and Dean to, in her had own decided Appellant. words, other bat “let the four [defendants] that she had tle The court found it out.” Matter OF Dean In the of the ESTATE seriously suit and we do not not taken LODDE, Deceased, Appellant. W. reasonably of a to be act find Nos. 15803 and exceptional nor an circum prudent person, support vacation of so as stance Supreme Court of South Dakota. jurisdic under the judgment. Wilson was of her Dakota law virtue tion of South on Considered Briefs Nov. complaint. to the answer 24, 1988. Decided Feb. lackadaisi- condone Wilson’s We cannot toward a lawsuit. cal attitude Further, will not reward a defendant we allowing other in the weeds
who lies ex- to “battle it out.” These
defendants negate any
pressed attitudes assertions neglect. Ad- part of
defendant’s excusable support va-
ditionally, this record does not prong on the basis the second
cation
the test. ren judgment herein was trial on wherein
dered after a the merits court determined Wilson fraud In her
perpetrated Petersons. offer incumbent on Wilson to
motion was Al allegations to the of fraud. defense defense it is sufficient that the level, require more prima
rise to a facie pleadings. assertions raised
than bare alle no
Wilson offered facts to
gation Peter- that she had not defrauded law, hold, as a
sons. We matter of re not meet with
Wilson did her burden
spect neglect to excusable and a meritori
ous defense. Therefore it was an abuse vacate the
discretion for the trial court to grant
judgment and trial. a new from is appealed order vacation case is remanded
reversed reinstate the
direction to the trial court to
original judgment.
All the Justices concur.
marriage.
‘The trial court also awarded
Mary attorney’s fees of $538.97.
parties
Both
have also
requests
for
appellate attorneys’ fees and costs.
Pruitt,
Mary Lou Gubbrud of
Matthew &
I
ISSUE
Muilenberg,
Falls,
plaintiff
Sioux
and
The co-executors’ first issue is that
appellee.
the trial court abused its discretion in ad
justing
alimony obligation
per
to $270
Gary
Gering,
B.
ofWard Ward and
Vi-
terminating
rather than
entirely.
it
borg,
appellant.
for defendant and
Mary,
hand,
on
other
argue
that the
erroneous,
modification was
but
MILLER, Justice.
only that it be affirmed.
appeals,
consolidates two
Generally, in the absence of an agree
one in
in probate
a divorce action and one
spouses,
ment between the
obligation
proceeding. In
cases
co-ex-
both
below the
pay alimony
ceases
appealed
ecutors
from orders that modified
obligor spouse.
Lindey,
See A.
Separa
alimony obligation
the decedent’s
Agreements
tion
Ante-Nuptial
and
Con
wife;
former
the orders continued the ali-
A(l) (1987);
Nelson,
tracts
15.10
2A W.
§
obligation
mony
but reduced
from $300
(2d
Divorce &
17.20
Annulment
ed.
§
per month to $270. We affirm.
1961);
Annot.
guments persuade us that separation into a and wife enter continuing ali- in its discretion abused “calling for the continuation amount. mony obligation a reduced after the husband’s payments to the wife 1153, Annot., 5 A.L.R.4th 1157
death.”
omitted).
(1981) (footnote
the Lodde
Was
II
ISSUE
1
agreement”?
If
“separation
a
tri
second issue is whether the
so,
public policy against
there is no
awarding
its discretion
al court abused
making periodic payments
requirement of
The trial
Mary attorney’s fees of $538.97.
binding provision on
as a
wife
to be
properly considered the factors
A.L.R.4th, supra.
5
husband’s estate.
E.g.
making
an
applied
such
award.
that if
Obviously, common sense dictates
(S.D.
Temple Temple,
v.
N.W.2d 561
365
pay, then notwith-
is unable to
the estate
1985)(specifying the factors a trial court
provi-
provision, the
standing a contractual
fees).
attorneys’
awarding
to consider
agreement for the continuance
of the
sions
If there is no
payments should abate.
FEES
APPELLATE ATTORNEY’S
pro-
a
alimony, even
need for
attorney’s
appellate
Mary is awarded
part
separation
of a
vision has been
in the amount of $750.00.
fees
should
alimony payments
agreement,
trial court is af-
judgment
of the
There must be a need
abate.
firmed.
simple
In
lan-
for it.
justification
pay alimony?
guage, should
the estate
C.J.,
WUEST,
MORGAN and
ought And,
facts of this
under the
JJ.,
SABERS,
concur.
v.
See Straub
alimony?
pay
(S.D.1986);
Straub,
Grant
260
381 N.W.2d
HENDERSON, J., dissents.
Grant,
1130
57 N.W.
5 S.D.
HENDERSON,
(dissenting).
Justice
opinion refers to the
majority
Note that
agree-
being
“settlement
specifically
ad
has never
Court
prop-
say that it was a
It does not
of alimo ment.”
the issue of a continuance
dressed
agreement. Property set-
husband,
erty settlement
either
ny beyond aside
agreements
be set
cannot
agreement or its
tlement
by virtue of a settlement
Blare,
subsequent modification. Blare
Generally, this Court
nonexistence.
(b)
distinguished from
Sup-
spousal
O'Kelly,
Spousal
maintenance
1. See M.
Entitlements
property settlement.
Divorce,
of a
in the nature
port
61 N.D. Law Rev.
After
Ordinarily, post-marital
distributions
(1985),
expression
considerable confu-
subject
judicial
Id. at
separa-
modification.
blurring
are not
sion can be avoided
(a) alimony
inquiries
in the sense of
tion of
So
mys-
it is a
AFTER
BEFORE
EX-HUS-
EX-HUS-
tery
why
as to
majority
me
BAND’S
BAND’S
down,
camps
vigor, upon
its rationale
DEATH
DEATH
decedent should be held
ato “bad
Alimony
$300
$270
(a)
bargain” notwithstanding
if it does not
Interest
—
-0-
Social
Security
sense,
(b)
inequitable,
or
it is
unjust,
make
unfair,
(c)
or
simply
Total
$435
$711
fifty-nine years
old
the time
it.
cannot
We should not
deciding
the show cause
June 1986.
principles.
this case on contract
This is not
August 1986, Mary
sixty,
would turn
case
a rescission
a contract. As I
qualify
and she would then
for social secur-
have often referred to
ity
income of
as a di-
Therefore,
Lady
Equity.
door
vorced
widow. Not
did
husband
equitable principles apply and not contract
*4
lifetime,
during
her
but he was
principles.
supporting
to
per
the extent
$306.00
month even
he was dead and bur-
Court,
In this
the
examine
briefs and
per
ied. This
pay-
$306.00 month increased
confronting
the issues
us and make deci-
ment should have been taken into consider-
sions based
those framed issues. We
not,
by
ation
trial
the
court and it was
have,
course,
important
decided
constitu-
gave
the trial court
the
absolutely
estate
questions,
sponte.
tional
sua
In the case
no
totally
changed
credit for this
new
us,
litigants
before
the
have framed the
circumstance.
as an
issue
issue of the trial court’s discre-
provisions
Rooted in the
separa
In reducing
tion.
the award from $300.00
Loddes,
tion
between the
$270.00,
to
the trial court
its
exercised
dis-
trial
Supreme
court and
adjudicates
Court
cretion and the
strongly
co-executors
as-
a
$30.00
dimunition in the alimo
sert,
on behalf of the
that the alimo-
ny obligation.
findings
Per the
of fact and
ny
totally
award should
eliminat-
law,
conclusions of
recog
trial court
ed;
level,
their advocacy, at
nized that
changed
there were
circumstanc
presented
judge,
fairly
to the trial
so it is
es. A modification seems to have been
before us. Discretion of the
judge
by
appellee’s
determined
to
reference
issue,
propriety
not the
of the trial
needs,
totally disregarding
claimed
while
judge’s
principles.
decision on contract
capability
greatly
current
a
reduced
Unjust
produce
estate to
income.
is the
result,
net
in contradiction to our statute
something
This Court can do
about the
requires alimony
just,
which
awards to be
if
to
lower court’s decision
it chooses
be-
given only where the
of both
circumstances
unique
power
statutory
cause
parties are considered. A ritual recitation
25-4-46,
specif-
to do so under SDCL
which
required
par
to
courts are
relieve
empowers
ically
it to revise
trial court’s
Moller,
bargains, per
ties from bad
regarding alimony.
Kressly
order
See also
suffice,
as the scales
Kressly,
S.D.
was warranted. husband was at the time This is the issue be of the of discretion? divorce. The abuse separation Lodde’s pro- itself good bargain bargain. us. Not bad fore vides, inter alia: property, at the time Dean Lodde’s $136,- approximately was valued at Agreement 14. This has been entered total, appellee-Mary was 000. Of this upon representations into based $45,000, leaving decedent awarded parties each of the con- $91,000. of ex-husband’s At time cerning their assets and liabilities later, had dwin- his estate years nine in the event a material variation $71,000. years, ex-hus- In his last dled to said assets and liabilities to make money forced borrow band was represented and the amounts actual ex-wife, to his alimony payments thereof may later found to be generated income The records shows. exist, parties agree appro- inadequate hopelessly priate pursued remedies tax needs. His 1985 for his own even rights, including enforce each’s [sic] $10,000, excess of return indicated loss the relief of [sic], recission modifica- farming opera- from a small which resulted damages. tion and/or town of variety store little tion and a security payments social $306.00 are death, the Davis, After his South Dakota. material, indeed larger than the $35,000, roughly had liabilities original alimony payments. Mary leaving in the estate. a net *5 into requesting came court the was, as and store income from his farm payments be continued after ex-husband’s above, to break even. insufficient noted death, been, as indeed should have Lodde, in Mary to contrast her ex-hus- until she received security her social mon- efforts, desperate band’s chose to sit back ey. requested She had never modification her alimony, dip- and live off interest and grounds alimony on the that the $300.00 ping her from reserves the payments were too low. drug- award as needed. in a She worked court, Opin- The its Memorandum trial years, store for mon- two when needed ion, appellee’s expenses mini- found to be a ey immediately quit after the but a month. Her income mum $700.00 (or job going was fired for not to be security and social would from interest work, trial). testimony differed on this at As, the approximately a month. $430.00 funds, mismanaged She had her but still at opined, the had worth estate $20,000 least invested at time of trial. $40,000, eight percent return on and an addition, eligible she was to become to yield would over $260.00 that amount receive monthly from social securi- $306.00 invading corpus month without contributions, ty, six based Dean’s estate, pay to the estate was ordered months after court ordered the estate month, alimony Mary to each mak- pay to alimony. continue to It is of inter- is ing up her income shortfall. This that, 1986, est at the time of absurd, Arriv- in the context of case. attorney neither nor her appellee-Mary figure was an arithmetic at this $270.00 bothered to look into this added source of upon sound rationale. gymnastic, not based is, itself, income. This of cir- $10,000 by loss reflected a The evidence justify cumstances which a reduction would Af- year death. before ex-husband alimony. original in her di- Neither the even. barely death, his broke store ter separation agreement vorce nor the decree wages. pay herself could not daughter His made any reference to this entitlement. It holdings undi- was an of the estate's Part impossible argue is to these future $22,- at in land valued half-interest vided payments by had been them in considered basis for is no reasonable There very differ- These circumstances could the estate opinion that court’s trial ent from those where this Court pay- alimony enough to cover held earn military pay retirement to been have the es- court’s assessment factor ments. considered court al- seems to matter, tate’s value the record silent on the
25 figure blood), easy because that reached her daughters adult have the statu- any correlation work with rather than tory obligation her, to support provided In sum: The co-executors of the evidence. in SDCL 25-7-28. Failure of the child to open keep are to provide support is a 1 Class misde- alimony until Lodde dies.2 off (SDCL 25-7-29). meanor is, There there- despite fact that she now fore, no risk helpless that a Mary Lodde income, alimony, greater even without than will public charge, become a a concern that death, paid he she had before Dean’s when many courts have justify used to alimony co-executors, alimony. The one her past. in the Connelly See v. Connelly, 362 appellee’s daughter, put are thus whom 91, (S.D.1985) N.W.2d 92 (Henderson, J., position They in the slaves: dissenting). She has two daugh- married work her until must benefit her ters support is, one whom point they are freed from their majority opinion, her in the daughter Appellee’s servitude. guise of is, co-executor. The court’s choice really reap any from the estate’s benefit surely, the least seeing efficient means of costs, reimbursing her for administration Lodde’s needs. arrange- is obvious that the court’s estate, ment will devour the assets of the court, given great The trial while leeway heir, per to which she was an Dean Lodde’s in exercising regarding its discretion alimo- income, lack Given the estate’s will. ny, can be reversed where that discretion is imposed by alimony, and the costs burden Cole, clearly abused. Cole v. 384 N.W.2d administering appellee, even (S.D.1986); Goehry Goehry, supposed get beneficiary, will not her have, We way, entirely as the estate con- will past, reduced cases where a years. sumed in a Of what few worth will drastically husband’s income was reduced. then? award be Wilson, See Wilson v. 399 N.W.2d majority Tyler Tyler, (S.D.1987). Here, go cites did far (1975), for the S.D. enough. *6 proposition after death is not greater Appellee has income than the penalty against an unfair the ex-husband's years She six estate. has lived for without true, Perhaps heirs. as the hus- was working, choosing instead to live on her Any was band still alive. harm interest, alimony, award speculative heirs was as the could ex-wife (equal to one-third the marital estate’s very predecease well the ex-husband. No property, the elective share she could have Here, controversy case there. arose claimed Dean’s death remained harm, Tyler, see the uncertain all its married). training, She has received work problems manifestations. The cre- terrible problems, no severe health and could (in ated for the heirs one of co-executor) have worked had she chosen to. Her chil defeating whom is include grown. great dispari scheme of dren There is no distribution ex-husband’s will, holding open ty remaining for an extend- her assets and those period, ed the chil- liquid; and inconvenience to Her the estate. assets are Clark, Jr., generally trial, dren. See Shortly H.H. are not. after the estate’s Law Domestic Relations the United eligible security pay she for social became States, 17.6, (2d at 293 ed. This greater § than the she had ments Court, statutorily charged to look to the (a windfall). receiving along all Her equities, should dismiss concerns worked ex-husband Dean seems have out-of-hand. grave himself I Lampert situation warned of in v. Lam incapable If truly Lodde is work 899,904 (S.D.1986) pert, N.W.2d problems because her back “bad (Henderson, J., dissenting). Any (refuted by colds” flesh and her own ployment. absolutely she This record reflects that offered any no evidence of serious effort to find em- to her detriment due to circumstances was mismanagement. See inaction and own Nauman,
Nauman v.
(S.D.1982) (where neglect an ex-husband’s interests
of his was not con business modification). Here, for
sidered a basis Equity
shoe on the other foot. is a is
two-way The estate should street. of her.
been freed nothing
It there is in life that is said that
is certain other than death and taxes. Dakota,
Now, it is in South taxes alimony. the folly case illustrates award- alimony until permanent recipient the facts not call where do type
it. An of this justifiable award is
where, example, one party disabled Tyler, done in
Here, served to make award totally dependent others, though only forty-nine years old. From a viewpoint, society
policy lady both and the off if
herself would be better she had been
encouraged, initially, to enter job mar-
ket, retrained, get potential. and use her Munyon, Alimony:
See Sackett & C.K. R.S.
A Concepts Retreat Traditional from Spousal Support, Drake L.Rev.
319 (1985-86). *7 LIEN,
Barbara J. Barbara J. n/k/a Porter, Appellee, Plaintiff and LIEN,
Bruce H. Defendant Appellant.
No. 15814.
Supreme Court of South Dakota.
Argued Jan.
Decided Feb. Costello, Porter, Carpenter of
Edward C. Hill, Bushnell, Rapid Heisterkamp City, & plaintiff appellee.