Blare v. Blare, s. 13043

• Decision Date: 25 February 1981
• Docket Number: Nos. 13043,13110,s. 13043
• Citation: 302 N.W.2d 787
• Parties: Barbara Ann BLARE, Plaintiff and Appellant, v. Vada N. BLARE, Defendant and Appellee.
• Court: South Dakota Supreme Court

Page 787

302 N.W.2d 787

Barbara Ann BLARE, Plaintiff and Appellant, v. Vada N. BLARE, Defendant and Appellee.

Nos. 13043, 13110.

Supreme Court of South Dakota.

Argued Nov. 25, 1980.

Decided Feb. 25, 1981.

Wesley W. Buckmaster of Stephens, Quinn, Carr, Tschetter & Buckmaster, Belle Fourche, for plaintiff and appellant.

John H. Shepard of Morman, Smit, Shepard, Hughes & Wolsky, Sturgis, for defendant and appellee.

FOSHEIM, Justice.

Two appeals taken from separate orders entered by the trial court in the above-entitled divorce action were consolidated. The first appeal is from an order that dissolved proceedings initiated by appellant to vacate or modify the judgment. The second appeal seeks review of an order that modified the visitation provisions of the divorce judgment entered in September of 1977. We affirm in part and reverse in part and remand.

Appellant and appellee were married in 1959, to which union four children were born. During their marriage, they acquired a ranch, consisting of approximately 4,000 acres in Custer County, a residence in Sturgis, and considerable livestock and other personal property.

In 1975, the parties sold their ranch on a contract for approximately $423,000.00, with a $123,000.00 down payment. The deferred balance was payable over fifteen years at 7.7% interest. The divorce action instituted by appellant in 1976 requested child support, alimony and a division of the marital property. At the divorce trial, both parties appeared in person and with counsel. A stipulation covering child custody, child support, alimony and a division of the property was dictated into the record by counsel for appellee. This stipulation was never reduced to a formal writing. The divorce decree adopted the terms of the agreement, except that the alimony allowance was reduced from $250.00 to $200.00 per month.

The divorce judgment awarded custody of the two daughters to appellant. Appellee was granted custody of the two sons. The decree further provided:

(7) Defendant shall pay, by way of property settlement, child support for Emily and Sally Blare, and alimony (in) the sum of $700.00 per month, the first payment will become due and payable to the Meade County Clerk of Courts the 1st day of October, 1977, and a like amount the 1st day of each month for a period of 158 months or until the total sum of $111,300 has been paid.

(8) In addition to the foregoing amount, Defendant shall pay annually to the Meade County Clerk of Courts, for Plaintiff's use and benefit, the sum of $1,500 the first payment of which shall become due and payable on or before the 15th day of December, 1977, and a like sum the 15th day of each December thereafter until thirteen (13) annual installments have been paid for a total amount of $19,500. The unpaid balance, if any, under this provision shall terminate upon Plaintiff's death. Should Plaintiff remarry, Defendant's obligation under this provision shall thereupon terminate, provided Defendant has paid seven (7) annual installments, which number of installments Defendant shall be required to make whether or not Plaintiff is remarried.

(9) From the monthly payment set forth in Paragraph 7 of this Decree, $200 of each payment shall be designated as child support, and $200 additional dollars of each payment shall be allocated for and designated as alimony, which designation shall be retroactive to the first day of January, 1977, and shall apply from that time at the rate of $200 per month to the periodic payments made by the Defendant to the Plaintiff during pendency of these proceedings. This designation shall not, however, be considered as a limitation upon, or a credit toward any financial obligations imposed upon the Defendant under the terms of this Judgment and Decree.

While the divorce action was pending, appellant moved to Denver, Colorado, for medical treatment. In February of 1980, appellant commenced show cause proceedings under SDCL 15-6-60(b) ¹ to vacate, or in the alternative, modify the divorce judgment as it related to interest, child support, and alimony. She also requested attorney fees and court costs.

In appeal #13110, appellant concedes that SDCL 15-6-60(b) imposes a one-year limit on §§ (1), (2), and (3), thereof, but seeks to bring herself within SDCL 15-6-60(b)(6) to which the one-year limitation does not apply, provided the motion is made within a reasonable time. Appellant relies heavily on Zundel v. Zundel, 146 N.W.2d 896, 901 (N.D.1966), wherein the North Dakota Supreme Court addressed the relief available under Rule 60(6)(b) of the Federal Rules of Civil Procedure with this quote from 3 Barron & Holtzoff, Federal Practice and Procedure § 1329, at 417:

'This broad language (of 60(b)(6)) gives the court ample power to vacate judgments whenever such action is appropriate to accomplish justice. Of course, this power is not provided in order to relieve a party from free, calculated and deliberate choices he has made. The party remains under a duty to take legal steps to protect his interests. But if it is unjust that a judgment be enforced, Rule 60(b)(6) provides an avenue for escape from the judgment, unhampered by detailed restrictions, and the courts have used this clause in a wide variety of situations.'

The North Dakota Supreme Court has held that the rule is remedial in nature and should be liberally construed and applied. Kinsella v. Kinsella, 181 N.W.2d 764 (N.D.1970); Sioux Falls Construction Co. v. Dakota Flooring, 109 N.W.2d 244 (N.D.1961).

Appellee argues that the reasons expressed by appellant to set aside the judgment actually relate to SDCL 15-6-60(b)(1), (2) and (3), which are limited to one year after the judgment is entered, and that her petition does not come within SDCL 15-6-60(b)(6).

Appellant urges mistakes and negligence of counsel as reasons for justifying relief. She contends that the reasonable time requirement of SDCL 15-6-60(b) depends upon the circumstances and that she was not informed of the deficiencies in the judgment by the attorney who represented her in the divorce action. She also claims that the proceedings to vacate were commenced within a few months after contacting her new counsel. For these reasons, appellant contends, she did not freely and deliberately enter into the settlement agreement. Appellant, however, does not claim that she was coerced into the stipulation and concedes that fraud was not involved.

It appears from the record that appellant was specifically asked by the trial judge at the divorce hearing if she fully understood the proceedings. She answered in the affirmative. The court also inquired whether she understood that this was dispositive of all of her property rights in the matter and that the stipulation was a final and complete settlement of all matters. Again, plaintiff responded in the affirmative.

As pointed out in Ackermann v. United States, 340 U.S. 193, 71 S.Ct. 209, 95 L.Ed. 207 (1950), in the absence of fraud, free deliberate choices, even though formed upon erroneous advice, are not subject to relief under Rule 60(b)(6).

SDCL 15-6-60 is essentially a restatement of the early policy in this state. National Surety Corp. v. Shoemaker, 86 S.D. 302, 195 N.W.2d 134 (1972). In the absence of fraud or other reasons that would apply to any judgment, a divorce decree that divides or allots property or provides for payment of a gross sum in lieu thereof is a final and conclusive adjudication and cannot be subsequently modified. Holt v. Holt, 84 S.D. 671, 176 N.W.2d 51 (1970); Van Diepen v. Van Diepen, 73 S.D. 366, 43 N.W.2d 499 (1950). Without such a showing, appellant's petition cannot prevail, and it is unnecessary to consider whether her motion to vacate was made within a reasonable time after rendition of the judgment.

The proceedings instituted by appellant to set aside the judgment were in the original action. She contends that if the judgment cannot be set aside, her showing was nevertheless sufficient to establish a change in circumstances sufficient to justify an increase in the monthly alimony and child support payments.

When a divorce is granted, SDCL 25-4-41 authorizes the trial court to modify its order compelling one party to make suitable allowance to the other party for support. ² An alimony award is determined independently of child support considerations, Price v. Price, 278 N.W.2d 455 (S.D.1979), and despite the fact that a property division was made. Lien v. Lien, 278 N.W.2d 436 (S.D.1979). The authority to modify the alimony award is not affected by the fact that the original divorce judgment was based on an agreement between the parties. Connolly v. Connolly, 270 N.W.2d 44 (S.D.1978); Simmons v. Simmons, 67 S.D. 145, 290 N.W. 319 (1940).

As noted above, however, the divorce decree directed appellee to pay, by way of property settlement, child support for Emily and Sally Blare and alimony in the sum of $700.00 per month for a period of 159 months or until the total sum of $111,300.00 has been paid; of this amount, $200.00 of each payment was designated as child support, and an additional $200.00 was allocated as alimony. That was a gross sum award. In Holt v. Holt, supra, we held that when a gross or lump sum is allowed the wife as alimony, finality attaches, and the fact that the court chooses to make it payable in installments over a fixed period (usually for the benefit of the payor) does not destroy its finality or alter the rule. In Holt, we quoted with approval from Ziegenbein v. Damme, 138 Neb. 320, 323, 292 N.W. 921, 923 (1940), as follows:

'Obviously, the purpose of both the court and the parties, in providing for or in accepting a gross allowance of alimony, is to define and fix with finality the scope of the rights and the obligations of the parties.... (I)t is our view that an unqualified allowance in gross, in a divorce decree, whether payable immediately in full or periodically in installments, and whether intended solely as a...