Parsley v. Parsley

Decision Date20 June 2007
Docket NumberNo. 24201.,24201.
PartiesDuane H. PARSLEY, Plaintiff and Appellee, v. Luz Dominguez PARSLEY, Defendant and Appellant.
CourtSouth Dakota Supreme Court

James E. Carlon, Carlon Law Office, Pierre, South Dakota, Attorney for plaintiff and appellee.

David W. Siebrasse, Attorney at Law, Pierre, South Dakota, Attorney for defendant and appellant.

GILBERTSON, Chief Justice.

[¶ 1.] Duane Parsley (Duane) commenced a divorce action against Luz Dominguez Parsley a/k/a Luz Gutter Parsley (Luz) in the South Dakota Sixth Judicial Circuit by summons and complaint served, along with notices of admission of service, via first-class United States Mail on September 24, 2004. Luz signed an admission of service on September 28, 2004. She filed no answer. On December 14, 2004, Duane filed an affidavit and application for default judgment. On December 22, 2004, the circuit court entered a decree of divorce incorporating by reference the parties' September 21, 2004 "Stipulation and Agreement."

[¶ 2.] On October 28, 2005, Luz filed a motion to vacate the divorce decree. The circuit court heard the matter on November 23, 2005, and December 15, 2005. The circuit court issued its memorandum decision denying Luz's motion on February 23, 2006, which was incorporated by reference into its findings of fact and conclusions of law entered on March 31, 2006 (the incorporated decision). The circuit court's order denying the motion was entered on May 24, 2006. We affirm.

FACTS AND PROCEDURE

[¶ 3.] Duane Parsley was an officer and fighter pilot in the United States Air Force, serving on temporary assignment in Paraguay, when he met Luz Gutter. The two became involved in a relationship. Duane returned to Luke AFB, near Phoenix, Arizona. In 1991, Luz moved to Arizona to continue the relationship with Duane. They were married on December 24, 1992. A son was born to the couple on August 11, 1993.

[¶ 4.] Duane was promoted to the rank of Lieutenant Colonel in 1993. Duane also purchased a house in Litchfield, Arizona in 1993. At or around the same time he transferred to reserve status and began flying F-16s out of Sioux Falls, South Dakota with the South Dakota Air National Guard. Duane retired from the Air Force in 1997 after more than twenty-five years of service.

[¶ 5.] In 1996, before retiring, Duane signed an IRS Form 2058, certificate of legal residence, for purposes of designating the state for which income taxes were to be withheld if applicable. Duane designated Draper, South Dakota as his "legal residence/domicile." Though he had maintained a home with Luz and their son in Arizona for several years, Duane had significant ties to South Dakota. As his Air Force career neared its end, Duane prepared to establish a home for the family near Draper.

[¶ 6.] Duane was born in Rapid City, South Dakota. Until his father, a bomber pilot based at Ellsworth AFB, South Dakota, was transferred, Duane spent much of each summer in Draper working on the family homestead where his grandparents lived. During his time in the Air Force, Duane continued to have friends and relatives in the Draper area and would frequently travel back there to visit. In or around 1996, Duane purchased a house and several lots across the street from his cousin's welding shop in Draper, with intentions of building a new home following his retirement.

[¶ 7.] After Duane retired from the Air Force, he began working as a pilot for United Airlines. Duane was assigned to Chicago, Illinois for eighteen months, followed by Los Angeles, California. When Duane was not working, he spent his time between Arizona and South Dakota. When traveling between his assignment and South Dakota, Duane would catch "jump seats" into and out of Pierre or Rapid City, South Dakota.

[¶ 8.] Duane joined the Draper American Legion in 1997.1 His plans of building a home on the lots in Draper changed when he acquired the family homestead outside of town. Duane established his voter registration in Jones County, South Dakota on August 31, 2000, and soon thereafter began constructing a new home on the family homestead property. Duane constructed the home himself with occasional help from Luz as well as other family and friends. Though the home took over four years to complete, it was livable while under construction and Duane began using it as his residence in 2001.

[¶ 9.] During the marriage, Duane's Air Force duties required him to travel frequently. Following his retirement, Duane was away from Arizona much of the time while flying for United Airlines or while establishing the family's new home in South Dakota. Luz also traveled a considerable amount. She too would travel to South Dakota, enough so that she eventually registered to vote in the state. She also made frequent trips to Paraguay to visit relatives and assist in her family's business ventures there.

[¶ 10.] During the course of the marriage, Duane and Luz had an increasingly contentious disagreement over money. Specifically, the two conflicted over Luz's use of funds that Duane was providing her each month and depositing for her in a retirement account. Over time, Luz sent substantial amounts of money to her family in Paraguay. The money allegedly was put into various investments and business activities. However, there was little or no accounting for the use of the money or income returned from these investment activities. Much of the money was apparently used by her family members to acquire property or establish business ventures exclusive to any interest of Luz.

[¶ 11.] After several attempts at marriage counseling and reconciliation, the two eventually decided to divorce. Duane's attorney began drawing up a stipulation and agreement in the summer of 2004. The stipulation provided that Duane and Luz would retain their respective individually held property. Luz was to receive any interest she might have in property or assets in Paraguay, as well as approximately $15,000 in a retirement account that Duane had established in her name. At the time, Duane was earning about $100,000 per year aggregate between his Air Force pension and United Airlines salary. The stipulation provided that Duane would pay Luz $1,500 in monthly alimony. It also provided that Duane would have full custody of the couple's son with South Dakota's statutory visitation provisions governing Luz's visitation rights.

[¶ 12.] In July 2004, Duane and his son flew to Asuncion, Paraguay at Luz's request to meet with her to inspect some investment condominiums. Luz asked Duane if he would like to buy the property. When Duane declined, Luz told him to change the stipulation provision providing for monthly alimony and instead replace it with a lump sum payment of $45,000, so she could purchase the condominiums. Duane agreed and contacted his attorney to make the change.

[¶ 13.] Duane and Luz signed the revised stipulation on September 21, 2004, (the Stipulation) before a Maricopa County Notary Public. Luz was served with a summons and divorce complaint, along with notices of admission of service, via first-class mail on September 24, 2004. Luz signed an admission of service on September 28, 2004. Luz did not file an answer and following Duane's affidavit and application for default judgment, the circuit court entered its decree of divorce incorporating the Stipulation. On October 28, 2005, Luz filed a motion to vacate the divorce decree. The circuit court heard the matter on November 23, 2005, and December 15, 2005. The circuit court denied Luz's motion. In so doing, the circuit court stated in its incorporated decision and findings that it found Duane was a credible witness and that Luz, on the other hand, was not credible.

[¶ 14.] On appeal, Luz raises five issues:

1. Whether the circuit court erred in concluding it had subject matter and personal jurisdiction over the parties, enabling it to enter a decree of divorce in South Dakota.

2. Whether the circuit court erred in finding that Luz was properly served with the summons and complaint, thereby satisfying the statutory notice requirements and conferring to the circuit court jurisdiction over Luz for the purpose of entering a decree of divorce.

3. Whether the circuit court erred in concluding that Duane did not perpetrate a fraud upon Luz or the court.

4. Whether the circuit court erred by not finding that the Stipulation was unconscionable in its provision for Luz.

5. Whether the circuit court abused its discretion by not awarding Luz attorney fees in light of its decision as to jurisdiction in regard to child custody.

STANDARD OF REVIEW

[¶ 15.] "We review findings of fact deferentially, applying the clearly erroneous standard." Zepeda v. Zepeda, 2001 SD 101, ¶ 19, 632 N.W.2d 48, 55 (citations omitted). "Clear error is shown only when, after a review of all the evidence, 'we are left with a definite and firm conviction that a mistake has been made.' The trial court's findings of fact are presumed correct and we defer to those findings unless the evidence clearly preponderates against them." City of Deadwood v. Summit, Inc., 2000 SD 29, ¶ 9, 607 N.W.2d 22, 25 (citations and quotations omitted). Further, "[a]bsent clear proof of error, we must defer to the judge's firsthand perception of the witnesses and the significance the judge gave to their testimony." Zepeda, 2001 SD 101, ¶ 19, 632 N.W.2d at 55 (citation omitted). "Conclusions of law are reviewed under a de novo standard, giving no deference to the circuit court's conclusions of law." City of Deadwood, 2000 SD 29, ¶ 9, 607 N.W.2d at 25 (citations omitted). We review a circuit court's ruling as to the allowance or disallowance of costs and attorney fees in a divorce action under the abuse of discretion standard. Strickland v. Strickland, 470 N.W.2d 832, 839 (S.D.1991) (citing Pochop v. Pochop, 89 S.D. 466, 233 N.W.2d 806 (1975)).

ANALYSIS AND DECISION

[¶ 16.] 1. Whether the...

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