*1 story. only consider one side of That is way things
.not we do America.
I would reverse the trial and re-
quire trial court to remand this case for i.e., a proceedings, hearing
further before
the Water Resources Board which would process. is not
avail due This because of
any “clearly rule. erroneous” SDCL 1-26- empowers reviewing court to “remand proceedings”
the ease for further if there rights prejudiced been substantial be- findings
cause of administrative which are
(1) statutory in violation of constitutional or (2)
provisions proce- or made unlawful I
dure. find that both exist before this
Board. ROGERS,
Olivia Plaintiff and
Appellant, ROGERS, Appellee.
Irvin Defendant and
No. 14089.
Supreme Court of South Dakota. Sept.
Considered on 1983. Briefs
Decided
130 a February appellee signed
On Execute document entitled “Contract to Will,” part: in which states by agree- intend That the this provide to for the execution of a ment in all the farm land owned Will which may in which have an the husband or he death, of will be interest at the time his bequeathed devised to the and children parties. any nor other instru- Neither document ap- prevents in the record appearing parties’ pellee disposing from of during appellee’s farmland lifetime. 16, 1982, appellant August signed an On support in of a to vacate affidavit motion set decree of and aside the and Williams, Battey H. Gellhaus Russell alleges in which she that she had divorce Aberdeen, plaintiff ap- Battey, for & (who attorney her trial is not advised pellant. attorney accept that she appeal) would Tonner, Maynes, Maynes L. Joe settlement on the condition that all reduced Aberdeen, Tobin, defendant Maynes & pass parties’ the real estate would to the appellee. appellee if died discontinued four sons operation. alleges The the farm affidavit WOLLMAN, Justice. more once been that than court’s appeal This is an from the trial attorney appellee that assured her trial to vacate denying appellant’s order motion deprive their children would not be able We and decree of divorce. by disposing the farm it and that reverse remand. question there was the farmland no in Appellant appellee married were boys. the further go would With children, only one 1949 had seven being papers” assurance that “the were action whom was minor when this divorce prepared, appellant executed the 29, January commenced in 1980. On agreement. 1982, a settlement entered into sons, appellant’s present who was One negotiated on that had been during discussions Paragraph attorneys. their behalf agreement, and when she executed the agreement provided part: VIII support appellant’s filed an affidavit agrees The to execute husband judgment, stating motion vacate Last keep force at all times a valid that his wanted he had understood mother Testament, being that Will terms manner “the land be vested such a any of the predeceases if the husband death, pass it his father’s marriage, any and all children of the boys.” death farm land at the time of his owned respective would be transferred motion, appellant’s the trial Pursuant to surviving children. court issued an order show cause on 13, September matter was sub- en- the trial court On court on and a divorce, mitted to the trial affidavits a judgment tered and decree of trial, following transcript of the divorce incorporated portion verbatim that ap- order agree- which entered the VIII of the settlement pealed ment set forth from. above. argues
Appellant
cy,
that because she was
85 S.D.
178 N.W.2d
(1970).
surprised when she learned that her attor
See also
Courtesy
Gilliland v.
Mo
tors, Inc.,
ney
prevent
nothing
had done
her hus
S.D.
galls v.
72
36 N.W.2d
S.D.
apparently complete,
mentation was
could
(1949);
Johnson,
54
669
Jones v.
S.D.
appellant have
an opportunity
to exam
(1928).
688
N.W.
really understand,
ine it and
sur
“mistake,” “inadvertence,”
terms,
prise,
the result was
what her
not
“surprise,”
neglect”
and “excusable
as
attorney had assured her it would be.
15-6-60(b)(l)
used in
have no fixed
SDCL
agree
We
appellee
cannot
question
must be determined
meaning;
any
negligence
appellant’s
mistake or
presented
from the facts
circumstances
attorney
failing
accomplish
trial
Northland,
Badger
case. See
Inc.
each
intended result
in this
should
divorce
be
Boom, supra.
v.
Der
Van
appellant
imputed to
and should bar her
judgment.
Inasmuch as the motion
relief
to vacate
from
from
“[T]he
affidavits,
attorney
on the basis of
or
negligence
was submitted
mistake
will
unhampered
imputed
a
our review
evidence “is
not
client as
bar to
be
(1)
judge
act or
the rule that
who has
relief where
omission of the
(2)
attorney
is
is
observed
demeanor
witnesses
excusable
the defendant
position
weigh
intelligently
appellant]
in a better
is free from ne
himself [here
matter,
(citations omitted)”
appellate
glect
the evidence than
court.”
Agen
Burgard,
Davis v. Interstate Motor Carriers
79 S.D.
Ackerman
order,
15-6-60(b) provides
part:
judgment,
proceeding
* SDCL
"On mo
a final
from
Mistake,
(1)
upon
just,
following
as are
tion and
such terms
the court
the
ence,
reasons:
inadvert
may
party
legal
surprise,
representative
neglect;
relieve
or his
or excusable
..."
(1961).
case,
Finally, we consider
action of
In this
109 N.W.2d
Appeals
will
case
remanding
not
negligence
appellant’s
Court
is free from
her because she
court with
imputed to
to the trial
directions that
neglect. As we have indi-
permitted
unexcusable
to amend her com-
wife be
cated,
agreement was
the settlement
alimony,
de-
plaint
pray for
layman. Ac-
by a
readily understandable
respond
permitted to
thereto
fendant be
appellant
chargea-
is not
cordingly, because
upon the
hearing
and that a
be conducted
right,
she not
own
neglect
ble with
that issue.
merits of
claiming any surprise.
barred from
60.02, T.R.C.P., provides:
Rule
contends that
Appellee
motion and
such terms
“On
seeking relief from the
estopped from
just,
may
party
are
the court
relieve a
A
party to
divorce
judgment.
divorce
legal
a final
representative
or his
*4
the
accepted
judg
the benefits of
has
who
proceeding
the
judgment, order or
for
held to be
may
given
in a
case be
following
[Emphasis
...”
in
reasons:
validity
challenging the
of
estopped from
original.]
in
especially true
This is
those
the decree.
underlined
The
vests
party
attempting
in which the
who
cases
to
respect
a broad
with
court
discretion
has remarried in re
to attack the decree
imposition
the
of
must
conditions which
upon the decree. See Hanks v.
liance
by one
seeks
from a
be met
who
relief
(S.D.1980);
Hanks,
523
N.W.2d
Brock
296
Rule
It is
judgment
final
under
60.02.
Brockel,
S.D.
Q. I show has over twelve Rogers, you Mrs. what 8% she plaintiff’s payment on the first month that been marked as Exhibit first (the parties agreed, had [Property No. Settlement vacates house house); (f) ment], effect, get if you you ask have had that he would opportunity per alimony; (g) read and examine month $200 $300 agreement? monthly this for who is to support child a lad 3, 18 on 1984. turn A. Yes. Appellant, apparently, changed counsel
Q. your if you signature And I’ll ask time) (for began first questioning appears thereon? contents her Last Will of ex-husband’s A. Yes. Appellant to va- and Testament. refused Q. ex- property Was this to va- agreed that she cate house had plained you? $2,000 of the cate. She made no re-tender Yes. A. $30,000 attorney’s fees nor the cash. Q. you fully Do the nature understand to restore the fruits She never offered of the settlement? received, to include the contract that she A. Yes. goods family car of the household and all keep Appellant Q. And it meet and furniture. wants your does with satisfac- has, portion everything isolate one tion? that she contract, litigate Appellant’s it. I ship over well taken. appel- at the estopped, equity, under floats or maintain that she is late level sinks surprise under part neglect cannot rescind doing so. She and/or excusable under SDCL 15- e-eoobxi).1 part and affirm the she wants. the contract Although Appellant-wife, she knew the contents of through counsel, appellee’s Last Will and Testament all dur- Finding approved by drafted of Fact ing the of 1982 and had an attor- court, summer provides: which it, ney kept review fruits of That the have freely and vol- contract, refused to move from the house untarily Custody, entered into a Child agreed, question provi- and did not Support Child and Property Settlement concerning the Will sions Last and Testa- 29, 1982, dated January language or the Contract to Execute which “Property is entitled language in her a Will as set forth civil Agreement” and it is their mutual de- contract, denominated sire and intention that this Agreement. the basis the settlement and form determination respective all of their An issue was made of the fact that the rights, obligations, and arising duties Execute a Will was not dated Contract To out relationship, their marital sub- days until six after the ject approval by (Empha- this Court. divorce. The Contract to Execute a Will is mine.) supplied sis in the exact same form and the exact same appel- as was first submitted to Also, appellant-wife, through her coun- on lant’s counsel June almost sel, Finding had drafted ap- of Fact eight prior entry months proved court, provides: Judgment and Final Decree of Divorce. 8. That filing to Execute a Will Contract original Agreement, which is just a mere clerical act as the terms part marked Exhibit and made a hereof and conditions had been to and dis- thereto, specific reference many through cussed times the entire set- if the same force and effect as herein set negotiations. tlement detail, length forth at constitutes a yet attorney equitable
Enter another on fair, just behalf of settlement and August indicating respective determination all attorney delving rights, obligations arising that this was now into this and duties relation, considering entirely reopen- case and and the out their marital ing hereby approves such specifically of divorce. This Court *7 thereof, ultimately picture Agreement faded from the and and all of the terms present appellate by the refer- appeared adopts counsel on her and the same above part Findings of these behalf. ence thereto as mine.) (Emphasis supplied of Fact. September appellee On greeted with an Order to of Law 6 was likewise draft- Show Cause Conclusion counsel, through set her and judgment by appellant, vacate and aside the entered ed alia, states, Property Although ap- herein on inter Settle- claimed, fair, just pellant by pleadings, “constitutes a that the ment mistake, set settlement and determination judgment equitable should be aside for and inadvertence, rights, obligations or of the surprise, duties excusable ne- of ” * * * arising marriage out of their glect, her trial counsel admitted before the Property the “terms” of the Set- trial court that mistake and inadvertence and that hereby adopted, “are helpful decisions in this Court were not tlement * * * ” with the damaging by her cause. This admission this Court “same force is grounds legal sponte, with such like a volca- 1. Fraud or mistake as a means to set aside this sua Appellant judgment inapposite; pleaded and her sons have not accused it was not or no. appellee attorney upon erupt, his with fraud. relied below and this Court cannot or husband, of the and the wife length set at files has effect as if herein forth knowledge to the full business and and in detail.” husband, nature, and the affairs of the Judgment and Final respect With extent, separate proper- of his and value Divorce, by appellant’s Decree of drafted of the here- ty, and her, counsel, by approved by ap- approved to; this and rea- fair counsel, adopted by pellee and his mine.) (Emphasis supplied sonable. court, Paragraph judg- VIII of said Appellant seeks to disavow her written con- provides: ment now, affidavit, by tract and tries to influ- agrees to execute and The husband believing ence the courts of this state into Last keep in force at all times a valid type represen- that there has been some Testament, being that Will and the terms was, tation her own which predeceases any of the if the husband is, supposedly damaging to her and the marriage, any and all children got marriage. sons of the The father farm land owned at the time of his death agreed farm. to will the farm to his He respective would be transferred to his surviving equal children in shares. He did surviving children. right so. She has no to come forward and husband, predeceased If a child has father, he, say that taken leaving body, issue his or advantage attorney. of her share of the deceased child under the boys right had no more to the farmland equally among Will is to be divided girls; boys right than the have no (Emphasis issue of such deceased child. girls rightful oust of their inheritance mine.) supplied by one affidavits authored son and the language language This is identical only try mother to not to rewrite the terms which was submitted on June absolutely im- of a written contract but to as included pose upon he will a father how distribute VIII, Agreement, Paragraph law, worldly goods. right, What identified and re- which was as Exhibit boy his mother have to force a does ceived in evidence. property in a manner con- man to will his pertinent provisions There are other trary his written contract and a he will judgment (Property she saw and to? prepared which extenso) ment is set forth which are The answer: none. This Justice hazards deserving appellate consideration. Par- ground that she seeks a deed to the farm ticularly, Paragraph I refer to XI of the beyond to insure that it is the father’s provided: “Each of the control. With a commitment to her of parties expressly certifies that each of $120,000 payments plus alimony of $300 agreement upon them has entered into this month, per the father needs economic mature consideration and the advice breathing room to make the commitments. separate counsel.” Said XI oath, she admitted before the trial Under (her counsel was the court, at the time divorce was scrivener) which, contains it- read the granted, that she Settle- self, estop coming wife now it, Agreement, that she understood attacking forward and this decree. This that she was satisfied. Is an oath *8 language is as follows: Moreover, meaningful pointed or not? Prop- to the execution of this Consent judge out to the that there had been exten- Agreement erty Settlement has not been negotiations relating property sive duress, fraud, or obtained undue and that she had executed instruments of person; represen- any conveyance Proper- no in with the accordance influence of telling act been made to include by ty Agreement, tations Settlement except party judge either to the other as here- that she had “sold home the farm” to her ex-husband. expressly forth; in set the wife has had located on $32,000 hand, books, records, in and with the full to the and With the access plus Yet, the furniture the ali- entire fruits bargain. automobile and of her her sup- mony support, and the child she now wants plication is heard a knock on the door of pro- to rescind the contract because of one equity. Her hands are unclean and I would son, liking of and a not to the herself vision open the door.
notwithstanding fully her ex-husband has neglect Excusable meaning. has no fixed and, importantly, most on the performed concept This is a which has repeatedly been (the Testament) very item Last Will and Certainly, voiced in this Court. as men of “surprise.” did “sur- that she claims When law, in right reason we have the grounds rescinding prise” become negotia- consider that there were extensive The written instrument this state? case; tions in that there were grounds for rescission this state are: represented by experienced, most able law- (1) party rescinding If consent of the or yers; believed, and that the as did any party jointly contracting with lawyers, property settlement given by him mistake or obtained was fair, just, equitable, was as did the trial fraud, duress, through or undue in- presided court which over this action. There fluence exercised or with the con- simply neglect part no excusable on her party to whom he nivance of the as Appellant, or that of her counsel. in actu- rescinds, party any or of other ality, claiming that there ais different jointly interested with such agreement. equated How is this with ne- party; glect? neglect by There appellant’s is no (2) party through If fault of the as to former counsel. I have reviewed the affi- rescinds, whom he the consideration davits on file herein which the Order obligation fails in whole or in for his predicated. Appellant to Show Cause was part; “neglect” and her son do not use the word (3) entirely If the consideration becomes “negligence.” transcript of the di- cause; any void from proceedings a) testimony vorce reveals her
(4) If it is ren- such consideration before negotiations that there had been extensive him
dered to fails a material re- settlement, b) dealing with the cause; spect opportunity that she had an to read and Property examine the (5) By parties. consent of all the other ment, c) SDCL 53-11-2. her, fully explained d) below, it, I agree The trial court the nature of the that she understood set- held that VIII of the tlement, e) fully that she was satisfied with written in sim- f) agreement, signed that she ple, unambiguous language, that she could agreement. Having understand. testified under oath majority’s position I find the on the es- that she understood this document and hav- issue, toppel considering the fruits of the ing signed a document that she understood possesses, prepos- to be contract which she it, such how can an affidavit overcome majority pooh-poohs terous. The the bene- held, strong The trial evidence? flowing appellant apparently fits as be- agree, except representations, I that no money prop- “in ing only the nature of agreement, were made. set forth arises, where, by erty.” estoppel “An con- signed to that ef- She a written document acts, party induced to duct or has been all of the fect. She swore under oath that position alter or do that which he would property terms met with her done, prejudice.” to his not otherwise have satisfaction. As to how this can Crawford, 75 S.D. mystery Willadsen v. surprise, claim is a total now (1953). Appellee 60 N.W.2d al- relying upon surprise to not me. She is position by tered his a written contract. only try (by stipulation) to set aside a tried Iverson, *9 forth in 87 S.D. culminating divorce case in a decree but As set Iverson v. (1973), 628, 631-32, 213 710 also a civil contract where she retains N.W.2d 138 (8) judgment; Willadsen, princi- 692; 60 N.W.2d doctrine ... is bottomed “[t]he (9) dealing Iverson, and is 213
ples
morality and fair
N.W.2d 708.
It
justice.
the ends of
intended to subserve
If, indeed, the heart of the majority opin-
fair be-
is
accomplish that which
seeks to
Property
ion is that the
is
a statement
tween man and man.” Such
in question
fully
ment
does not
reflect the
majori-
theory
self-destructing to the
understanding
parties
and that is the
estoppel.
ty’s position on
why
reason
and decree of
supporting this dis
Bibliography of law
vacated,
perforce
divorce should be
so
it
(rescission statute);
(1)
sent:
SDCL 53-11-2
subsequently
can be
modified to reflect
(S.D.
Weber,
(2)
there immedi- family farm appellee to deed siblings, male see
ately to the
VIII of Judgment Paragraph VIII of Divorce, supra. Pinal Decree of OWEN, Appellee, Harry L. Plaintiff and opinion permit majority impose “terms” that “are court to seeking to rescind a just.” Appellant is OWEN, Marilyn Defendant terms, in by “surprise.” Those Appellant. necessitate a return my opinion, would No. 14278. $32,000 cash, personal the extensive obtained to include property which she Dakota. Supreme Court South automobile, alimony that she and all of the Briefs Feb. now amount to has received which must Considered dollars, and upon thousands of thousands 3, 1984. Decided quo in status before place signed. has had She house, amount to and that would use of a dollars, An also. thousands
several not meet just terms that are does
award of dissent, nor aspect of this
the substantive into majority it lift the rationale
does bail It is an academic plausible work.
out. has not equity
Appellant desires but under the equity. takes benefits
done She validity. Having disputes its
decree but contract, she of her
enjoyed the fruits from de- equitably estopped
should be origin. Stability should
nouncing its
accorded contract, as the
ment, private civil as well controversy has decree for this
divorce litigants the interest of decided and
been