In re Estate of Hoffman

• Decision Date: 16 October 2002
• Docket Number: No. 22165, No. 22324.
• Citation: In re Estate of Hoffman, 2002 SD 129, 653 N.W.2d 94 (S.D. 2002)
• Parties: In the Matter of the ESTATE OF Cheryl D. HOFFMAN.
• Court: South Dakota Supreme Court

653 N.W.2d 94

2002 SD 129

In the Matter of the ESTATE OF Cheryl D. HOFFMAN.

Nos. 22165, 22324.

Supreme Court of South Dakota.

Argued August 28, 2002.

Decided October 16, 2002.

Michael J. Schaffer of Davenport, Evans, Hurwitz & Smith, Sioux Falls, South Dakota, Attorneys for appellant Jack Ehrich.

Drew C. Johnson, Aberdeen, South Dakota, Attorney for appellee Bruce Hoffman.

Scott Kuck, Aberdeen, South Dakota, Attorney for Children.

KONENKAMP, Justice.

[¶ 1.] By statute in South Dakota, an automatic restraining order forbids divorcing spouses from transferring, encumbering, concealing, dissipating, or disposing of any marital asset. While her divorce was pending, the wife, knowing that she was terminally ill, conveyed real and personal marital property held in joint tenancy to herself as a tenant in common. She did this to prevent her estranged spouse from receiving all the marital property as a surviving joint tenant. When her will was later probated, the circuit court invalidated the conveyances as a violation of the statutory restraining order. Then, after the estate appealed, the court appointed two additional personal representatives opposed to the appeal, who would thereafter seek to dismiss it. Because our statutory divorce restraining order does not explicitly prohibit a spouse's conversion of property from joint tenancy to tenancy in common, we reverse and remand with directions. And because a circuit court does not have authority to effectively abort a pending appeal, we reverse that decision as well.

Background

[¶ 2.] After twenty years of marriage, Cheryl Hoffman sued Bruce Hoffman for divorce on October 14, 1999. In accord with SDCL 25-4-33.1, upon the filing and service of the summons and complaint for divorce, the parties were restrained from "transferring, encumbering, concealing or in any way dissipating or disposing of any marital assets, without the written consent of the other party or an order of the court." Cheryl was diagnosed as having terminal cancer shortly after the divorce began. On November 20, 1999, she executed a last will and testament, naming her four children as beneficiaries of all her property. She died on June 13, 2000, while the divorce was still pending.

[¶ 3.] One day before her death, Cheryl quitclaimed to her father, Jack Ehrich, her interests in (a) two parcels of real property of which she and her husband were joint tenants and (b) all the farm livestock, grain, equipment, and machinery, as well as miscellaneous personal property of which she and Bruce were joint owners. Then Jack Ehrich immediately quitclaimed all the property back to her. A bill of sale was drawn up and signed to memorialize these arrangements, and the deeds were recorded on the morning after her death. The effect of these successive "straw transactions" was to extinguish Cheryl and Bruce's joint tenancy in these properties, converting their ownership to that of tenants in common. Cheryl wanted her children to inherit from her directly, thus preventing Bruce from obtaining all the property through right of survivorship. To ensure that her wishes were followed, Cheryl named her father, Jack Ehrich, as the person to assume, after her death, the duties of her estate's personal representative.

[¶ 4.] In the probate proceeding, Bruce Hoffman sought an order nullifying the straw transactions, arguing that the initial transfer to Jack Ehrich violated the statutory restraining order. Ehrich responded that the straw transactions violated neither the letter, the spirit, nor the purpose of the temporary restraining order. The court ruled that the initial part of the straw transactions conveying property from Cheryl Hoffman to Jack Ehrich violated the temporary restraining order. Accordingly, the court vacated the transactions. The estate, through its personal representative, now appeals that order. See 15-26A-3.

[¶ 5.] While the question of the straw transactions was still pending on appeal, Bruce sought to remove Jack Ehrich as personal representative of the estate. Although finding no cause to remove Ehrich, the circuit court, on its own motion, ordered the appointment of Travis and Kayla Hoffman, the two adult children of Cheryl and Bruce Hoffman, as co-personal representatives. The court ruled that all decisions affecting the estate were to be taken by majority vote. As all four children testified that they did not wish to inherit their mother's property interests immediately, but preferred, instead, that their father inherit the whole of them, the effect of appointing Travis and Kayla Hoffman would be a decision to abandon the estate's appeal of the order invalidating the straw transactions. All four children had earlier signed a written objection to the appeal. The estate then appealed the order appointing Travis and Kayla Hoffman, arguing that the circuit court had neither authority nor jurisdiction in the matter.

[¶ 6.] We consolidated the two appeals and now consider the following issues: (1) Did the straw transactions dissolving the joint tenancy violate the statutory divorce restraining order prohibiting the parties from transferring, encumbering, concealing or in any way dissipating or disposing of marital assets? (2) Did the circuit court have authority to appoint two additional estate representatives if such order would interfere with the subject matter currently on appeal? Statutory interpretation is a legal question reviewed without deference to the trial court's decision. Ridley v. Lawrence County Comm'n, 2000 SD 143, ¶ 5, 619 N.W.2d 254, 257 (citations omitted). Likewise, a question of jurisdiction or legal authority is also an issue of law to be reviewed de novo. State ex rel. LeCompte v. Keckler, 2001 SD 68, ¶ 6, 628 N.W.2d 749, 752 (citations omitted). Therefore, we review the two issues on appeal de novo.

Analysis and Decision

1. The Straw Transactions

[¶ 7.] This case requires us to examine statutory language to decide whether Cheryl's straw transactions converting property held in joint tenancy to a tenancy in common violated the automatic restraining order in SDCL 25-4-33.1. Where possible, we give words and phrases in a statute their plain meaning and effect. See Faircloth v. Raven Industries, Inc., 2000 SD 158, ¶ 6, 620 N.W.2d 198, 201 (citations omitted). When the language of a statute is clear, certain, and unambiguous, there is no need for interpretation: our sole function is to declare the meaning of the statute as clearly expressed. Zoss v. Schaefers, 1999 SD 105, ¶ 6, 598 N.W.2d 550, 552 (citation omitted).

[¶ 8.] According to SDCL 43-4-1, "Transfer is an act of the parties, or of the law, by which the title to property is conveyed from one living person to another." To decide to what extent property rights have been transferred from one person to another here, we examine the intent of the parties to the conveyance. See Mamalis v. Bornovas, 112 N.H. 423, 297 A.2d 660, 662 (1972) (citations omitted). The circuit court looked solely to the first transfer of the property from Cheryl to her father and disregarded the reconveyance of the property from her father back to Cheryl. When we view the two transfers together, we see that Cheryl intended to dissolve the joint tenancy and to hold title to the property as a tenant in common. She did not intend to convey the property to a third person permanently. Viewed holistically, the straw transactions did not transfer title of the property "from one living person to another."

[¶ 9.] A joint tenancy exists when the four unities of time, title, interest, and possession are present. See Zulk v. Zulk, 502 N.W.2d 116, 118 (S.D.1993) (citations omitted). Destruction of one of the four unities terminates a joint tenancy and converts it into a tenancy in common. See Schimke v. Karlstad, 87 S.D. 349, 208 N.W.2d 710, 711 (1973). Under South Dakota law, a joint tenant with right of survivorship has the right to unilaterally terminate the joint tenancy at any time without the knowledge or consent of the other joint tenants. Id. A joint tenancy can be dissolved in several ways. Matter of Estate of Steed, 521 N.W.2d 675, 682 (S.D.1994) (citations omitted); see also W.W. Allen, Annotation, What Acts by One or More of Joint Tenants Will Sever or Terminate the Tenancy, 64 ALR2d 918 (1959). Although its use is becoming outmoded, one common law method for terminating a joint tenancy is to arrange a "straw" transaction, in which the grantor conveys the property to a third party who immediately conveys it back to the grantor.¹ See Wendy Evans Lehmann, J.D., Annotation, Severance or Termination of Joint Tenancy by Conveyance or Divided Interest Directly to Self, 7 A.L.R.4th 1268 (1981).

[¶ 10.] If a joint tenant has the unilateral right to sever a joint tenancy, then what effect did the statutory restraining order have in this instance? SDCL 25-4-33.1 provides, in part:

Upon the filing of a summons and complaint for divorce or separate maintenance by the plaintiff, and upon personal service of the summons and complaint on the defendant, a temporary restraining order shall be in effect against both parties until the final decree is entered, the complaint dismissed, or until further order of the court:

(1) Restraining both parties from transferring, encumbering, concealing or in any way dissipating or disposing of any marital assets, without [either (a)] the written consent of the other party or [(b)] an order of the court, except as may be necessary in the usual course of business or for the necessities of life . . .

This measure obviously prohibits spouses from transferring assets while a divorce is pending, but courts interpreting similar language in temporary restraining orders have found that the purpose is not to freeze the parties' estate plans, but to forbid either party from dissipating marital property and removing marital assets from the jurisdiction of the court.² [¶ 11.] Although this is an issue of first impression in...