Weekley v. Weekley, No. 20844

Decision Date29 December 1999
Docket Number No. 20844, No. 20864.
Citation604 N.W.2d 19,1999 SD 162
PartiesTristina A. WEEKLEY, Plaintiff and Appellant, v. Todd P. WEEKLEY, Defendant and Appellee.
CourtSouth Dakota Supreme Court

Linda Lea M. Viken of Viken, Viken, Pechota, Leach & Dewell, Rapid City, South Dakota, Attorneys for plaintiff and appellant.

David M. Dillon, Rapid City, South Dakota, Attorney for defendant and appellee.

SABERS, Justice.

[¶ 1.] Tristina Weekley made a motion to modify child support and eliminate alimony. In response, Todd Weekley filed a motion to dismiss. The trial court granted Todd's motion to dismiss the proposed modification of child support, but denied Todd's motion to dismiss the proposed modification of alimony. Tristina appealed and Todd filed a notice of review. We affirm.


[¶ 2.] Tristina and Todd Weekley were married April 6, 1985 in Rapid City, South Dakota. In August, they moved to California where they resided for the next nine years. They had one child, Taylor A. Weekley, who was born November 25, 1990.

[¶ 3.] On June 16, 1994, while still residing in Contra Costa County, California, the parties entered into a "Marital Settlement Agreement." This agreement divided the community property, addressed custody and visitation, child support, alimony and attorney's fees. Pursuant to those terms, Tristina received primary physical custody of Taylor and relocated to Rapid City, South Dakota. In exchange, she obligated herself to pay: (1) $570 per month in spousal support to Todd, (2) $330 per month in child support to Todd, (3) 75% of travel costs incurred for Taylor to go to California for visitation, (4) the medical insurance premium for both Taylor and Todd, as long as he is eligible to be covered under her plan, plus 75% of all uncovered medical expenses for Taylor, and (5) 100% of her own child care expenses as well as 50% of child care expenses incurred by Todd.1 The spousal support was to continue until the "death of either party, remarriage of husband, or further order of Court, whichever occurs first." Tristina further agreed that Todd would be reimbursed for his attorney fees from their 1994 income tax refund.

[¶ 4.] The Agreement also set forth:

H. Dissolution of Marriage Action:
In the event that either party, at any time in the future, elects to file a dissolution of marriage action, this Marital Settlement Agreement entered into herein shall be incorporated and made a part of said Judgment of Dissolution of Marriage. The terms and conditions of this Marital Settlement Agreement in all aspects shall apply to that dissolution of marriage of [sic] action, and the provisions of this Marital Settlement Agreement shall be adopted and become a part of any Judgment of Dissolution of Marriage so filed.

F. Jurisdiction.

The parties hereby agree and consent to California being the State having jurisdiction over issues regarding the minor child. The parties expressly waive the right to petition in any jurisdiction other than California regarding issues of the minor child. In the event that a party shall file a petition and/or legal action in a State other than California regarding issues of the minor child, said party hereby agrees to pay the costs incurred by the other party for attorney's fees and transportation costs in traveling to that jurisdiction to litigate any such action that has been filed. This provision does not apply to any legal action filed in California regarding the minor child.

[¶ 5.] On October 17, 1994, the parties received a Judgment of Legal Separation from the Contra Costa County, California. The terms of the Marital Settlement Agreement were incorporated into the Judgment of Legal Separation.

[¶ 6.] Tristina moved back to Rapid City with her daughter, Taylor. She is employed with Regional West Center for Behavioral Health as a Registered Nurse and Clinical Education Coordinator. Even though she earns $50,872 per year, Tristina and Taylor live with Tristina's parents due to her financial obligations to Todd.

[¶ 7.] Todd has been domiciled in California since the legal separation was entered into. He has not worked since December 1989. He was involved in an automobile accident in August 1992 and claims that his inability to work stems from the accident. Tristina is unaware of any medical report which supports Todd's claim of inability to work. Therefore, she alleges that he is "voluntarily unemployed." Apparently, his only income is the alimony and child support payments from Tristina.

[¶ 8.] On January 16, 1996, Tristina filed for a divorce in Rapid City, South Dakota. Todd was personally served at his mother's home in Rapid City while he was visiting from California. In his answer, Todd denied that the court had jurisdiction over child support or custody issues and asserted that the doctrine of res judicata controlled all issues.

[¶ 9.] After some negotiations, Todd and Tristina signed a Stipulation and Agreement in January of 1997. This Stipulation, drafted by Tristina's present lawyer, recognized the parties' Marital Settlement Agreement:

The parties acknowledge that they entered into a `Marital Settlement Agreement' on June 16, 1994 and that subsequent to that agreement on October 25, 1994 a Judgment and Decree of Legal Separation was issued by the Superior Court of California, County of Contra Costa. The Agreement was based upon facts and circumstances then existing and contained provisions relating to custody, support, property and debt division.

The purpose of the Stipulation was to secure a divorce in South Dakota and to allow Tristina to litigate whether the jurisdiction clause, Section F, of the Marital Settlement Agreement was binding:

The parties stipulate and agree that Plaintiff herein, Tristina Weekly, [sic] will be allowed to argue to the Court that the Jurisdiction provision should not be incorporated in the final agreement, notwithstanding the other terms of the Marital Settlement Agreement. Defendant herein, Todd Weekley, will be allowed to argue that whether or not the jurisdiction remains in California, he is entitled to the benefits of the provision relating to attorney's fees. The parties will present argument to the Court and agree to be bound by the Court's decision on that provision. All other provisions of the Marital Settlement Agreement shall be incorporated and become a Judgment of this Court as a part of the final Judgment and Decree of Divorce. Neither party waives any rights they may have to seek a subsequent modification, appropriate under the law, of any of the terms of the agreement as incorporated into the Judgment and Decree of Divorce.

(emphasis added).

[¶ 10.] After the parties submitted briefs and gave oral arguments, the trial court held that Section F did not violate public policy and was binding. On December 16, 1997, a Judgment and Decree of Divorce was entered granting the parties a divorce on the grounds of irreconcilable differences. The divorce decree incorporated the Stipulation, which partially incorporated the Marital Settlement Agreement, and specially incorporated Section F. This order was not appealed.

[¶ 11.] On August 24, 1998, Tristina filed a "Verified Motion to Modify Child Support and to Eliminate Alimony." Todd was personally served on August 26, 1998 again at his mother's home in Rapid City while he was visiting from California. In response, Todd filed a motion to dismiss on September 10, 1998.

[¶ 12.] On September 23, 1998, the trial court granted Todd's motion to dismiss the modification of child support, but denied his motion to dismiss Tristina's motion to eliminate alimony. Tristina appeals raising one issue:

Whether the trial court erred in granting Todd's motion to dismiss the proposed modification of child support.

Todd filed a notice of review pursuant to SDCL 15-26A-22 and raises one issue:

Whether the trial court erred when it denied his motion to dismiss Tristina's proposed modification of alimony.

Tristina also made a timely motion for an award of appellate attorney fees in the amount of $4,864.62.


A motion to dismiss under SDCL 15-6-12(b) tests the legal sufficiency of the pleading, not the facts which support it. For purposes of the pleading, the court must treat as true all facts properly pled in the complaint and resolve all doubts in favor of the pleader. `Our standard of review of a trial court's grant or denial of a motion to dismiss is the same as our review of a motion for summary judgment - is the pleader entitled to judgment as a matter of law?'

Steiner v. County of Marshall, 1997 SD 109, ¶ 16, 568 N.W.2d 627, 631 (quoting Stumes v. Bloomberg, 1996 SD 93, ¶ 6, 551 N.W.2d 590, 592) (internal citations omitted). Furthermore, "[c]ontractual stipulations in divorce proceedings are governed by the law of contracts. The interpretation of a contract is a matter of law for a court to decide." Beermann v. Beermann, 526 N.W.2d 127, 129 (S.D.1995) (quoting Estate of Thomas v. Sheffield, 511 N.W.2d 841, 843 (S.D.1994) (quoting Seablom v. Seablom, 348 N.W.2d 920, 924 (N.D. 1984))).


[¶ 14.] Tristina strenuously argues that South Dakota, not California, has jurisdiction to modify the child support order. She claims that when Todd signed the Stipulation, he agreed to allow South Dakota to enter child support and alimony orders. She further argues that the Uniform Interstate Family Support Act (UIFSA) does not apply to this case for three reasons: (1) Todd did not object to the South Dakota trial court entering a support order; (2) neither the Stipulation nor the Marital Settlement Agreement reserves the question of child support to California courts; and (3) the California child support order was terminated when the Decree of Legal Separation was entered. Alternatively, she argues that if UIFSA did...

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