Klein v. Klein, 17837

• Decision Date: 08 October 1992
• Docket Number: No. 17837,17837
• Parties: Cristen Kay KLEIN, Plaintiff and Appellee, v. Kevin George KLEIN, Defendant and Appellant. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 236

500 N.W.2d 236

Cristen Kay KLEIN, Plaintiff and Appellee, v. Kevin George KLEIN, Defendant and Appellant.

No. 17837.

Supreme Court of South Dakota.

Considered on Briefs Oct. 8, 1992.

Decided May 19, 1993.

Thomas E. Adams of Voelker and Adams, Deadwood, for plaintiff and appellee.

Jerry C. Rachetto, Deadwood, for defendant and appellant.

MILLER, Chief Justice.

Kevin Klein ("Kevin") appeals a judgment and decree of divorce and several orders implementing that divorce decision. We affirm the trial court in all respects.

FACTS

Kevin and Cristen Klein ("Cristen") were married in late July 1988. Kevin had just completed a divorce from his first wife and had recently gone through bankruptcy. Kevin is a licensed plumber and owns his own plumbing business. Cristen is a college graduate and was working for the county's centennial commission when she married Kevin.

After approximately six months of marriage they decided to have a baby. At that time, they discussed how the child should be raised and agreed Cristen should quit working until the child was old enough to go to school (i.e., approximately five years old). After Cristen gave birth she quit her job and stayed at home to care for Devin, their only child.

Cristen testified that as soon as she got pregnant, Kevin seemed to lose all interest in her. He went "downtown" every evening and often didn't come home at all. The birth of Devin did not help. Finally, Cristen confronted Kevin and told him he had to decide whether he was going to be a husband and a father or whether he was going to continue going out every night. About three days later, Kevin told Cristen he wanted a divorce.

Kevin told Cristen to hire an attorney to draft an agreement. He said he would pay $1,000 per month alimony for five years so she wouldn't have to work while raising Devin. He also said he would pay $500 per month child support. Later, Kevin told her he could only afford to pay $800 per month alimony and $500 per month child support. Cristen agreed to accept $800 per month alimony and suggested that after two years her credit card debt and home mortgage would be paid and then the alimony could be reduced to $500 per month.

Cristen's attorney Thomas Adams drafted a "Stipulation and Property Settlement Agreement" (hereinafter "Stipulated Agreement") which provided that Cristen would keep the house and remain solely responsible for all outstanding debt on it. Kevin would keep his plumbing business. ¹ Cristen remained solely responsible for credit card debt in her name. ² Cristen was allowed to keep the 1976 MG automobile she brought into the marriage and Kevin agreed to supply Cristen with a four-wheel drive vehicle in the winter. Kevin was allowed to keep the new Dodge Talon sports car they had recently purchased using Cristen's credit. Kevin was obligated to make the payments on the sports car and provide insurance. If Kevin failed to make a payment Cristen had the right to repossess the automobile in order to protect her credit rating.

Cristen filed for divorce on June 5, 1991. Cristen's attorney mailed a copy of the Stipulated Agreement to Kevin on June 12, 1991. A cover letter to the Stipulated Agreement stated:

You should review these documents carefully, particularly the Stipulation and Property Settlement Agreement as it does set out your legal rights and responsibilities. If you have any questions regarding this or any other matter in the divorce action, you are advised to seek your own legal counsel.

The cover letter also stated "If the documents met [sic] with your approval, the same can be signed at my office located in Lead ..." Cristen testified that Kevin came to the house and read through her copy. They discussed the Stipulated Agreement and he raised no objections to it. She testified that he wanted to sign the document immediately because he wanted to make sure he got the sports car.

On June 14, 1991, Kevin went to Thomas Adam's office and wanted to sign the agreement. Kevin indicated to Adam's secretary, a notary public, that he had read the document and understood its contents. He then signed the Stipulated Agreement and his signature was notarized. The paperwork was processed and on August 14, 1991 the trial court entered a divorce decree based on the Stipulated Agreement.

On October 22, 1991, Kevin filed a "Motion to Adjust Child Support." The trial court denied the motion on January 31, 1992 finding that "pursuant to SDCL 25-7-6.10 the Court will allow deviation from the schedule provided in SDCL 25-7-6.2 on the basis of the prior agreement of the parties, the extra income of the Defendant and the financial condition of the parties."

On October 23, 1991, Kevin filed a "Motion to Vacate Judgment and Decree of Divorce" based on SDCL 15-6-60 and requested relief on the grounds of "mistake, advertence [sic], surprise and excusable neglect." He supported his motion to vacate with an affidavit in which he alleged he had signed the Stipulated Agreement without reading it and "his emotional state of mind after the marriage break-down prevented him from taking the necessary action to protect his legal rights...."

After hearing the testimony and judging the credibility of the witnesses, the trial court concluded Kevin had "failed to show that he entered into the Stipulation and Property Settlement Agreement for any reason of mistake, advertence [sic] surprise or excusable neglect." The trial court also found Kevin had "failed to show any emotional instability to support a vacation of the Judgment and Decree of Divorce." Last, the trial court found Kevin had failed to show the Stipulated Agreement was "so inequitable as to let this Court conclude that he would have reached a better settlement had this matter been tried, rather than be settled by stipulation." The trial court denied Kevin's motion to vacate the judgment and decree of divorce.

On November 20, 1991, Kevin filed a motion to eliminate the alimony payments on the grounds that he "did not agree to the alimony terms and conditions stated in the Property Settlement Agreement." Cristen resisted the motion to eliminate alimony on the grounds that Kevin had not proven, or even alleged, a change in circumstances. The trial court denied the motion and found Kevin had not shown any change in circumstances.

On January 13, 1991, Kevin filed a motion requesting the trial court to stay all payments under the agreement pending appeal and to set an amount for a supersedeas bond to guarantee such payment. Cristen objected because it would leave her with no means of support during the appeal. She also filed a motion for interim support. The trial court decided to grant the motion for a stay and set the supersedeas bond at $10,000. The trial court also ruled Cristen was entitled to interim support in the amount of $500 per month and specifically ordered this interim support would not be credited towards the alimony amount on appeal.

Cristen filed a motion requesting attorney's fees in the amount of $1,917.12. The trial court awarded Cristen the full amount of her request.

After the trial court ruled on all the motions, Kevin returned the sports car to Cristen and claimed he was no longer liable to make payments on it. On February 7, 1992, Cristen filed a motion with the trial court requesting an order compelling Kevin to comply with the Stipulated Agreement and continue making the car payments. Cristen further noted that since the car was worth less than the amount owed, Kevin was placing her in a position of being responsible for a $3,000 deficiency. On February 11, 1992, Kevin filed a notice of appeal to this Court. Subsequently, Kevin filed a response in the circuit court to Cristen's motion concerning the car payments. He contended the trial court had no jurisdiction to address the motion to compel payment because his notice of appeal eliminated the trial court's jurisdiction. The trial judge concluded that the dispute over the car payments was a "trivial matter" and therefore he retained jurisdiction. See Ryken v. Ryken, 440 N.W.2d 307 (S.D.1989) (trial court retains jurisdiction over trivial matters while case is on appeal). The trial court ordered Kevin to continue his payments and bring the automobile insurance up to date.

DECISION

We write specially to remind appellate counsel of their obligation to state the facts "fairly, with complete candor, and as concisely as possible." SDCL 15-26A-60(5). We recognize that sometimes, in the throes of zealous advocacy, the facts are inadvertently distorted. However, the facts set forth in Kevin's briefs appear to go beyond inadvertent distortion. For example, at page ten in his brief, Kevin states, "There is no dispute that Kevin was emotionally unstable at the time he executed the Property Agreement." It is simply incomprehensible for Kevin to claim it was undisputed he was emotionally unstable at the time in question. His emotional condition was the primary factual dispute and his testimony was contradicted by testimony from Cristen and other witnesses. The trial court specifically stated that Kevin had failed to prove any emotional instability.

The same disingenuousness is displayed in Kevin's brief where he states: "There is no dispute that Kevin did not read or understand the Stipulation." Cristen testified that Kevin came to her house and read the Stipulated Agreement in her presence. Linda Gorton, who notarized Kevin's signature on the Stipulated Agreement, testified that she always asks if the person has read the document and understands it. A fact is not undisputed merely because one party believes their version of the facts is the truth. Those statements in Kevin's briefs go beyond artful manipulation of the facts.

Even more troublesome is Kevin's contention that: "There is no dispute that Kevin's father had been recently killed in a tragic Homestake Mine accident." The settled record does not contain any indication that the trial court was...