Malcolm v. Malcolm

Decision Date06 February 1985
Docket NumberNo. 14661,14661
PartiesSharon R. MALCOLM, Plaintiff and Appellant, v. Kirk G. MALCOLM, Defendant and Appellee. . Considered on Briefs
CourtSouth Dakota Supreme Court

Roger A. Coffield of Carr, Zastrow & Pluimer, Belle Fourche, for plaintiff and appellant.

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

WOLLMAN, Justice.

This is an appeal by Sharon R. Malcolm from an order that denied her request that defendant, Kirk G. Malcolm, be held in contempt for his failure to make payments under the terms of a property settlement agreement entered into by the parties and that ordered Kirk to pay child support in the amount of $200.00 per month. We reverse and remand.

The parties were divorced in November of 1979. They stipulated that Sharon would have care and custody of their two minor children, Lyle (born October 14, 1966), and Lisa (born April 1, 1969), and that Kirk would pay child support in the amount of $112.50 per child per month.

The parties also entered into a stipulation and property settlement agreement, incorporated in the decree of divorce, that provided, among other things, that Sharon was to be entitled to remain and reside in the residence owned by the parties until such time as the younger of the two children reached the age of eighteen or until Sharon remarried, whichever event occurred first. The parties further agreed that the rental from the furnished apartment in the basement of the residence would be turned over to Kirk, to be applied on the payments on the mortgage on the residence held by First National Bank of the Black Hills in Sturgis, with Kirk to pay any deficiency in the event the rental payments were not sufficient to cover the mortgage payment.

The agreement also provided that the parties would remain joint owners of the residence until the property was sold, at which time the proceeds of the sale remaining after payment of all costs, the mortgage indebtedness, and a promissory note of the parties be divided equally between the parties, subject further to an additional payment of $1,750.00 to Kirk in return for his assumption of certain outstanding indebtedness.

The agreement further provided that the amount of child support should be increased by the same percentage of any increase in pay that Kirk might thereafter receive. Because of a change of circumstances, Lyle began residing with Kirk in August of 1980. The custody portion of the decree of divorce was amended accordingly on August 25, 1980. Thereafter, Kirk voluntarily raised his monthly support payments for Lisa in accordance with the divorce decree from $112.50 per month to $129.40 per month and ultimately to $150.00 per month.

In late 1981, Kirk terminated his position with the First National Bank of the Black Hills in Sturgis and secured employment with a bank in Montana. Because of a default in the mortgage payments, the First National Bank of the Black Hills indicated that foreclosure proceedings would be commenced. In January of 1982, Kirk prepared, executed, and gave to Sharon the following agreement:


In consideration for signing a deed to the First National Bank of the Black Hills, Sturgis, S. Dak. by Sharon R. Malcolm, conveying any interest she has in real estate property with address of 1826 LaZelle, Sturgis, S. Dak. 57785, I, Kirk G. Malcolm, hereby agree to pay to Sharon R. Malcolm, the sum of $Two Hundred Dollars every month until she remarries or their daughter, Lisa Pauline Malcolm, attains the age of eighteen, whichever occurs first, this agreement is dated the 12th day of January, 1982.

s/ Kirk G. Malcolm

Kirk G. Malcolm

On February 11, 1982, Sharon signed a quit claim deed conveying to the First National Bank of the Black Hills the residence described in the stipulation and property settlement agreement. In return for the delivery of the deed, the bank released the mortgage on the residence. Kirk remained liable to the bank on other debts. Thereafter, Kirk made payments of $200.00 per month to Sharon or her then landlord in addition to the payment of child support that he made to Sharon through the Meade County Clerk of Court's office.

Kirk discontinued the $200.00 monthly payments in August of 1983, at which time he increased by $50.00 the child support payments made through the Meade County Clerk of Court's office, bringing those payments to a total of $200.00 per month.

On the basis of the affidavits and exhibits introduced at the hearing on the order to show cause why Kirk should not be required to pay $200.00 monthly as a residental allowance, the trial court concluded that the January 12, 1982, agreement was an attempt on the part of the parties to fix child support for Lisa at $200.00 per month.

Sharon contends that the trial court erred in treating the January 1982 agreement as an agreement to modify child support payments rather than as a contract between the parties to carry out the terms of the property settlement agreement as incorporated in the divorce decree. We agree.

The parties' rights to their respective interests in their property were irrevocably fixed by the terms of the divorce decree and could not later be modified by court order. See, e.g., Rousseau v. Gesinger, 330 N.W.2d 522 (S.D.1983). Sharon, of course, was entitled to convey her interest in the property. We conclude that the consideration for her agreement to convey her interest to the bank for the satisfaction of the mortgage was Kirk's promise to substitute a $200.00 monthly payment by way of housing allowance for Sharon's property interest in the residence. We reach this conclusion for several reasons.

First, in determining the proper interpretation of a contract the court must seek to ascertain and give effect to the intention of the parties. Chord v. Pacer Corp., 326 N.W.2d 224 (S.D.1982); Johnson v. Johnson, 291 N.W.2d 776 (S.D.1980); Huffman v. Shevlin, 76 S.D. 84, 72 N.W.2d 852 (1955). In determining the intention of the parties, a court must look to the language that the parties used. Johnson v. Johnson, supra; Berry v. Benner, 81 S.D. 610, 139 N.W.2d 285 (1966). As the agreement quite clearly states, the $200.00 monthly payments are to continue until Sharon remarries or Lisa reaches age eighteen, whichever should occur first. If the parties...

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