*1 513 guidаnce and direction this as “additional It is obvious that court.” the trial court, depicted the recitation as from
trial opinion, not did follow
in the Blare, Blare v. 302 N.W.2d
precedent (S.D.1981). Once the mental we vault property division has been that
hurdle below, is to be we redecided
reversed Krage Krage, our minds
turn (S.D.1983). Property division
N.W.2d together. alimony are to be considered nor
Alimony isolated should not be isolated. It property division be
should precedent in this Court
is well established together. to be considered
that the two are grounded well this rule are
Reasons behind great a award could be so property
in that not or that an alimony justified;
that
alimony justified should be because award meager. is party property division for a
Therefore, disagree heartily with ma- opinion affirming alimony and
jority on thеrefore reverse and remand light of determined in the devel-
issue If
opments property issue. division alimony together, in this
not considered itself, an island unto broken
case becomes away equitable package floating from the — judicial firmament.
without
In the Matter the ESTATE OF CLYDE, A. Geneve
Geneve f/k/a McClure, Deceased. A.
No. 15882.
Supreme Court of South Dakota. March
Considered on Briefs May
Decided *2 previous
and one child from her marriage— (McClure). Frank By the terms of gave Floyd personal her will she prop- erty residence, and a life estate in the subject to defeasance if remarry. he should upon MсClure was to receive the residence termination of life estate. The val- assets, joint name, ue of the or in Geneve’s including $49,000, the residence valued at $63,675.85. Floyd totaled married Pearl Septembеr (Pearl) Clyde in Thomas W. Parliman of Thomas Par-W.
liman, P.C., Falls, petitioner Sioux for
appellant, Clyde, D. Pearl executrix of the Floyd Clyde,
estate of deceased. W. Falls, Domberger, appel-
Kevin Sioux for
lee, McClure, Frank executor of the estate Clyde,
of Geneve A. f/k/a Geneve A.
McClure, deceased.
SABERS, Justice.
The trial court held that elective share
proceedings surviving abated death of
spouse and awarded residence to benefi-
ciary of deceased wife’s will. Estate of
surviving spouse appeals. We reverse.
Facts
Floyd (Floyd) (Geneve) Clyde and Geneve July
were married in 1982. At the time of marriage this second for parties, both Ge- 1. DATE OF VESTING OF RIGHT TO neve owned fee title to a residence in Sioux PETITION FOR ELECTIVE SHARE personal Falls and property, including fur- goods. niture Floyd and household dis- The trial court held that the elective charged bankruptcy prior his debts in proceedings upon Floyd’s share abаted marriage and had nominal assets. death as order for elective share had Floyd Both and Geneve received Social Se- not In reaching become final. this conclu- curity retirement Additionаlly, benefits. applied sion the trial court SDCL 30-5A-3 amendment, Geneve received a pension retirement to its 1986 without stat- Floyd ing worked for a local construction its com- reasons therefor.
pany during part marriage. 1, July Prior to
Geneve poor throughout provided, part: was in health marriage. Floyd took care of her Any proceeding for elective share under primarily needs and was responsible for the provisions or- 30-5A-6 which § housework, yardwork, laundry, and house- payment der for of assets or contribution repairs. hold Geneve died testate on Janu- by performance, has not become final ary 1986. She was by Floyd survived entry pursuant or оf order affirmance (or administration). pas- petition letters of Supreme Court decision 30-6-9, 30-6-8, 30-9-12, and appeal shall abate with- See SDCL sage time for right at the death 30-21-13. such out survival of added) (emphasis surviving sрouse, Reference to these statutes and Legislature amended 30- common sense make it clear no proceeding in any provide that 5A-3 for an petition elective share of the *3 elective share was not order for the
which
еstate
augmented
spouse
of the deceased
spouse
surviving
the
the death of
final at
vests until the first notice to creditors is
surviving
to
of the
inure
the benefit
“shall
published. To interpret these statutes oth
The amended
of
estate.”
version
spouse’s
requesting
erwise would result in
the cir
July
statute became effective
the
cuit court to make a determination under
knowing what,
was
30-5A-5 without
if
claims that the trial court
SDCL
McClurе
surviving
any, property
pass
in effect at
would
to the
applying
in
the statute
correct
through
Floyd’s
spouse
intestacy.3
under a will or
of
death because
the time Geneve’s
arose
petition for аn elective share
right to
McClure contends that SDCL 30-
argues
intent
that the
that time. Pearl
at
5A-3,
to
as it existed
the 1986 amend
to
30-5A-3 should
of the amendment
§
ment,
applicable,
“should be
account of
Floyd made thе election
control because
Floyd
inactivity
delay by
Clyde
the
during
July
and after
1986.1
his lifetime
eq
subsequent to
death.” This
[Geneve’s]
during
governs the time
30-5A-62
SDCL
argument
merit
is without
because
uitable
surviving spouse may petition
which the
the
provide
the statutes do not
circuit court
elective share. At the time of Ge-
for an
fixing
in
discretion
the date
with
on which
throughout
proceed-
death and
these
neve’s
surviving spouse’s right
petition
the
tо
for
provided
election
ings, that statute
that the
Although
an elective share vests.
McClure
filing
petition
a
by
be made
“within
could
Floyd,
quick
point
to
named as
is
out
publication of
months
the first
will,
two
after
in
did not file a
executor
Geneve’s
filing
for
Al-
notice to creditors
claims.”
petition
probate
for
will
of Geneve’s
within
court,
though
(as
the
allows the circuit
statute
days
knowledge
of
of her death
thirty
discretion,
30-8-11),
extend the time for
in its
to
by
did
required
SDCL
McClure
beyond
noth-
period,
probate
election
the two-month
for
of the
petition
not
court
ing
any
in
or
statute
responsi
other
1986. The
until October
will
petition
petition
a
tо
filed
for
allows
the executor to file the
bility of
before
However,
The
publication
probate
Floyd
of the notice to creditors.
is clear.
after
act,
eight
publication
delayed
is
first
of notice
creditors
for
failed
forcing
production of
ordinarily
days
fil-
within several
after the
months before
ing
petition
probate
will
SDCL 30-6-2.
the will. See
Although
is earlier with the
it
distribution whichever
is clear from
1986 amendment
legislative
probate proceedings
was
of SDCL 30-5A-3 that the
intent
courts which
clerk of
making
provide
of
the elec
that the benefit
pending
pending
or if none are
with
are
death,
petitioner’s
not
tion survivе the
apply
we will
county
courts
in which the
clerk of
for the
legislative
retroactively
a
enactment
un
his
was
at
death....
decedent
domiciled
legislative
is
should
less there
clear
intent that it
filing
Upon
рetition
of
for election the
operate.
Minneapolis
Nat. Bank
so
First
of
may
is vested and
not be
to such election
Ranch,
(S.D.1986); Matter
Kehn
2. FEE
surviving spouse.
final
death of the
Floyd
awarded
originally
The trial court
The amendment was effective on the date
in the residence owned
one-half interest
a
death and therefore vested the
order,
The amended
by
in fee
Geneve.
per
selection in his estate
the amendment.
the terms of
Geneve’s
conformed
which
life estate in
will,
Floyd a
the resi-
gave
MILLER,
(dissenting).
Justice
subject to termination
dence which
affirm.
remarriage.
upon his
appears
majority opin-
It
to me that the
original
Pearl claims error in the
complicates
simple
ion
by
otherwise
issues
argues
equity
that the facts and
order and
straining to
a
avoid definitive answer as to
estate,
court to
require this
award
which version of SDCL 30-5A-3
inwas
share,
of his elective
as beneficial survivor
applicable
effect and
to the facts of this
interest
in the residence. Pеarl
the fee
*4
case.
Floyd’s
that
contributions to the
claims
death,
At the time of Geneve’s
30-5A-3
Geneve,
other,
marriage to
financial and
provided
Floyd’s right
to an elective
However,
require
equitable
this
award.
as
share abated
his death. Under the
out,
points
undisputed
all
the
30-5A-3,
right
1986 amendment to
his
to
marriage
of the
facts and circumstances
an elective share
have
inured to the
were before thе trial court when it ren
benefit of his estate.
original
equitable
dered the
decision. The
proceed
in an elective
determination
share
majority
The
holds that under SDCL 30-
ing is within the discretion of the trial
5A-6, the elеctive share does not “vest”
court and will not be overturned absent an
publication
until
of the first notice to credi-
30-5A-6;
of
abuse
that discretion. SDCL
disagree.
my opinion, 30-5A-6,
In
tors.
30-5A-8.
“Proceeding
share,—
entitled
for еlective
procedural
Time limit” is a
statute which
We reverse and remand to reinstate the
merely implements
rights
the
which had
findings
trial court’s
of fact and conclu-
sections,
prior
spe-
“vested” under the
and
31,
sions of
dated March
law
1987 because
cifically 30-5A-3.
proceedings
did not abate but inured to
the benefit of
estate.
majority holding,
Under the
30-5A-6 is
totally ignores
read in isolation and
HENDERSON, JJ.,
MORGAN and
language
significancе
language
concur.
of 30-5A-3. We must read both 30-5A-3
together
determining
and 30-5A-6
WUEST, C.J., concurs in result.
legislative
deciding
intent and in
this case.
MILLER, J., dissents.
(S.D.
315
Hoxeng,
State v.
N.W.2d 308
1982);
Springs
Independent
Hot
Sch.
WUEST,
(concurring
Chief Justice
in the
Dist. No. 10 v. Fall River Landowners
result).
Ass’n.,
(S.D.1978).
262
33
N.W.2d
I concur in
the result of the
majority’s holding ignores
and re-
opinion. However, the 1986 amendment to
language
opinion, spe-
verses earlier
in its
applies.
The amendment’s
cifically
application
that no retroactive
can
application relates to the finalization of the
(see
given
page
be
to 30-5A-3
footnote
by vesting
order of selection
in the estate
1), by
reality giving
appli-
it retroactive
surviving spouse
property
select-
through
interpretation
its
cation
of 30-5A-
surviving spouse
ed when the
prior
dies
the order
becoming
otherwise
final. Be-
cause
Geneve died
to the effective
The 1986 amendment
30-5A-3 cannot
date,
the amendment has
given
application,
no relevance
under the
retroactive
Applying
whatsoever.
authority
majority.
the amendment to
See foot-
by
cited
this case is
application.
not a retroactive
1
Bank Minne-
citing
note
Nat.
First
of
practical
procedural
Ranch,
Its
effect is
Estate,
Duster v. (1934) (Supreme cannot Court
N.W. 145
give effect to a statute under retroactive guise interpreting prior law amended of
thereby).
Thus, an share elective of lack irrespective on his death
abated comply, compliance, ability with the guidelines 30-5A-6. To hold
procedural give a necessarily retroac-
otherwise would application to the 1986 amendment
tive Further, the estate been
30-5A-3. had timely appropriately
commenced
(which certainly Floyd’s ability, within neglected or he held the will and
since probate) it for and had the
refused to offer typical, timely
probate proceeded in the
manner, question no for us there improperly
to resolve. The has inac-
rewarded estate
tion. JONES, Marie
Julie Plaintiff Appellee, JONES,
Mark Edward Defendant Appellant.
Nos. 15734.
Supreme Court of South Dakota.
Considered Briefs Oct. May
Decided 22, 1988.
Rehearing Denied June