Malcolm v. Malcolm
365 N.W.2d 863
S.D.
1985
Check Treatment

*1 MALCOLM, Plaintiff , Appellan t MALCOLM, Defendant Appellee. 14661. No. Dakota.

Supreme Court South on Briefs Feb.

Considered Carr,

Roger A. Coffield of Zastrow & Pluimer, Fourche, plaintiff Belle appellant. Morman, Smit, Shepard Shep-

John H. ard, Hughes Wolsky, Sturgis, & for defend- appellee. ant and WOLLMAN, Justice. appeal by

This is an Sharon R. Malcolm request from an order that denied her defendant, held in G. for his failure to make under the terms of a entered into that ordered the amount of month. We reverse and remand. *2 Sturgis in parties employment were divorced in November Hills and secured

The They stipulated Sharon of 1979. a bank in Montana. with Because of custody would and of two mortgage have care in payments, default the the children, (born Lyle minor October National Bank the Black First of Hills indi- (born 1, 1969), 1966), Lisa and proceedings cated that foreclosure would pay support child the that Kirk would commenced. In of Kirk be per per month. amount of $112.50 executed, gave prepared, to the Sharon following agreement: stipulation parties The also entered into a incor- AGREEMENT divorce, pro- porated in decree of the vided, things, among other that Sharon was signing In consideration for the deed to to remain to be entitled and reside the Hills, First National Bank Black parties the until such residence owned Malcolm, Sturgis, S. Dak. Sharon R. children younger time as the of the two conveying any interest she has in real age eighteen of Sharon reached the or until estate address of with 1826 La- remarried, event occurred first. whichever Zelle, Sturgis, I, S. Dak. Kirk G. parties agreed the The further rental Malcolm, hereby agree pay to to Sharon apartment from the the furnished base- Malcolm, of the sum $Two Hundred ment of over the residence would be turned every Dollars month until she remarries payments to on the on to be daughter, or their Lisa Pauline the on the residence held eighteen, age attains the of whichever First Bank of the Hills in National Black first, occurs dated Sturgis, pay any deficiency to with Kirk day January, 12th of payments the event rental not s/ Malcolm mortgage payment. sufficient to cover Kirk G. Malcolm provided The also February 11, signed Sharon parties joint would remain owners quit claim deed to conveying the First Na- sold, residence the property until was at Bank tional of the Black Hills the residence proceeds which time the of remain- the sale stipulation described and property costs, payment after of all the mort- return for indebtedness, gage promissory and a note delivery the bank released be equally divided mortgage on the residence. Kirk remained parties, subject further to an additional to the liable bank on other debts. There- payment $1,750.00 to Kirk in return for after, Kirk payments per made of $200.00 assumption outstanding his of certain in- to month Sharon or her then landlord debtedness. to addition of child support provided further he through that made to Sharon the Meade support amount of child be in- should County Clerk of office. Court’s percentage creased the same of any monthly discontinued the $200.00 pay increase in that Kirk might thereafter August payments at which time receive. change Because of a of circum- he increased the child support $50.00 stances, Lyle began residing Kirk in with payments through County made August of custody portion 1980. The office, bringing Clerk Court’s pay- the decree of divorce was amended accord- per ments a total of $200.00 month. ingly August Thereafter, Kirk voluntarily monthly raised support his On the basis of the affidavits and exhib- payments for Lisa accordance hearing its introduced at the on the order divorce decree from per month to why to show cause Kirk should per month ultimately required monthly as a resi- per $150.00 month. allowance, dental the trial court concluded

In late position terminated his with the attempt First National Bank part Black fix an support for Lisa at tal residence was to $200.0& terminate month. remarriage date of her attaining or Lisa’s age eighteen, whichever occurred first. contends that the trial court intended that the January Had treating erred in 12, 1982, agreement be limited to a modifi- agreement modify sup- ment as an cation of the child obligation, the than port rather as a contract easily have been written carry out the terms *3 provide. to so property as incorporated in the divorce decree.. We Another determining test to be agree. meaning of a contract is the construc- actually placed tion by the contract parties’ rights respec to their by as evidenced their subsequent property interests in their tive were irrevo § behavior. 17 Am.Jur.2d 274 Contracts cably by the terms of the divorce (1964); (Second) Restatement of Contracts by decree and could not later be modified § (1981). 202 See, e.g., Gesing court order. Rousseau v. er, (S.D.1983). Sharon, 330 N.W.2d 522 If the intention of the is clear course, convey was entitled to her intérest writing, from the then it necessary property. We conclude that the con proper for the court to consider all the for convey sideration her her circumstances surrounding the execution interest to the bank the satisfaction of writing subsequent and the acts of promise was Kirk's to substi parties. Muller, Janssen v. 38 S.D. monthly payment by way tute a 611, 162 N.W. 393. giv The construction housing allowance for Sharon’s en themselves to the con interest in the residence. We reach this acts, tract as shown if reason conclusion for several reasons. able, great weight will be accorded usually adopted by will be the court.

First, determining proper interpretation of a contract the court must Shevlin, 89, supra, v. 76 S.D. at Huffman give seek to ascertain and effect to the 72 N.W.2d at 855. parties. intention of the Chord v. Pacer above, As indicated after the execution Corp., (S.D.1982); 224 326 N.W.2d John 12, 1982, January and the Johnson, (S.D.1980); son v. 291 N.W.2d 776 February began making 1982 Shevlin, 76 S.D. 72 N.W.2d Huffman month to Sharon’s (1955). determining 852 the intention of then landlord. These were made a court must look to the lan support payments in addition guage used. Johnson v. making through that Kirk was Johnson, supra; Benner, Berry v. 81 S.D. County per- Clerk Court’s office. Kirk’s (1966). 139 N.W.2d 285 As the 12, 1982, January formance of the states, quite clearly ment the $200.00 period ment over a of seventeen months monthly payments are to continue until thus interpretation consistent with the age eigh Sharon remarries or Lisa reaches monthly payments that the were in teen, whichever should occur If first. housing the nature of a allowance addi- parties had intended monthly payments independent obligation tion to and of his support, set level of child there support payments. make child provide would have been no reason tel Finally, if ambiguity there is an they should terminate Sharon’s re j 12, 1982, January agreement, that am marriage. provides The decree of divorce biguity against should be construed obligation that Kirk’s inasmuch as it was he who terminates drafted the when “each child reaches 18 years agreement. age, City Henry or Sioux Falls v. marries otherwise becomes Co., Inc., emancipated.” By (S.D. stipula the terms of the Carlson 258 N.W.2d 676 1977); Co., tion and Jones v. 87 American Oil however, right Sharon’s to live in the mari- 209 1 N.W.2d FOSHEIM, WUEST, conclude, therefore, C.J., the trial Circuit Acting Justice, holding January Judge,

court erred specially. par- concur was intended support. to fix the amount of ties WUEST, Acting (concurring spe- Justice the order inas- we reverse cially). modify attempted as it the child much ease, concur the result in this decree in support portion of the divorce contempt cannot to col- be used interpreta- accordance with trial court’s housing due lect the allowance be- tion entered, cause no order was which has however, mean, This does not could, However, been violated. the court upon remand Sharon should entitled to opinion, my enter an order based enforce the supplemental agreement action of a the divorce means which, violated, later appro- if could under above, pointed proper As out citation. priate circumstances be enforced *4 rights ty tempt. terms of the 1979 decree. There divorce majority opinion regard- after, any rights modification of ing attorney future allowances for fees. A only by way occur bilateral judges pos- decision indicates are ment of the as manifested special expertise fixing sessed attor- Inasmuch valid contractual Hetland, ney fees. See Scott v. interpreted we have that; 552, 215 N.W. 778 I doubt private agreement as an con enforceable but, event, any the future we should tract between the Sharon will be type have some basis for evidence or required to commence a civil action for reaching a resorting conclusion rather than may whatever amounts be due her under “ballpark” figures. that contract. I am authorized to state Chief Jus- The trial court awarded Sharon joins special tice in this concur- FOSHEIM attorney fees the order to show rence. proceedings. appeal, cause asks we increase this to include award attorney bring

reasonable fees incurred note, however, appeal. this that no fees,

separate motion for attorney nor an thereof,

itemized statement in has appeal. been filed in connection with CO., INC., ARCON CONSTRUCTION we have little which to Corporation, Hardrives, Minnesota any appellate attorney base award of fees. Inc., Corporation, a Minnesota Plain- Accordingly, we will limit our award to Appellees, tiffs and $500.00. Following the date of the remittitur DAKOTA DEPARTMENT OF SOUTH action, in this we will not consider a re TRANSPORTATION, Defendant quest attorney appeal fees on domes Appellant. tic relations cases unless there submitted No. 14510. separate motion, accompanied by to us counsel's verified statement of itemized of South Dakota. legal costs incurred and services rendered. Argued Feb. appealed The order from is reversed and April 3, the case is remanded to the circuit court. HENDERSON, JJ.,

MORGAN and

cur.