Wichman v. Shabino
| Decision Date | 09 July 2014 |
| Docket Number | No. 26835.,26835. |
| Parties | Mary Ann WICHMAN a/k/a Mary Ann Tetherow and Sandra Shabino n/k/a Sandra Wichman, Plaintiffs and Appellants, v. Brian SHABINO, Defendant. |
| Court | South Dakota Supreme Court |
OPINION TEXT STARTS HERE
Paul W. Tschetter, Meghann M. Joyce of Boyce, Greenfield, Pashby & Welk, LLP, Sioux Falls, South Dakota, Attorneys for plaintiffs and appellants.
[¶ 1.] To purchase a home, Brian Shabino and Sandra Wichman, formerly Sandra Shabino, borrowed money from Sandra's mother, Mary Ann Wichman. When Brian and Sandra divorced, as part of the divorce decree, Brian had the responsibility of paying the remaining debt on the home. He failed to repay Mary Ann, and she brought suit for breach of contract, unjust enrichment, and enforcement of the divorce decree. The circuit court ruled that part of Mary Ann's breach of contract claim was barred by the statute of limitations and that she could not enforce the divorce decree. Mary Ann appeals.
[¶ 2.] During their marriage, Brian and Sandra borrowed $15,000 from Sandra's mother, Mary Ann, to use as a down payment on the purchase of their marital home. They agreed to a loan schedule, which required Brian and Sandra to make monthly payments of $200 beginning July 1, 1999, and ending June 1, 2007. In the summer of 2002, Brian and Sandra stopped making payments on the loan. At that time, the remaining balance due was $10,239.
[¶ 3.] On July 31, 2003, Sandra and Brian divorced. The decree of divorce apportioned to Brian the marital home as well as the remaining debt to Mary Ann.1 Brian never paid her.
[¶ 4.] In the fall of 2012, Mary Ann brought this action for breach of contract, unjust enrichment, and enforcement of Brian and Sandra's divorce decree. Mary Ann moved for summary judgment, but later withdrew it to add Sandra as a party plaintiff. Mary Ann then renewed her summary judgment motion. Brian, who appeared pro se, responded that Mary Ann's breach of contract claim was barred by the statute of limitations and that Mary Ann could not enforce the divorce decree. After briefing and arguments from counsel, the circuit court denied Mary Ann's motion for summary judgment to enforce the divorce decree. But the court granted her summary judgment on the breach of contract claim in part, allowing her to recover seven installments on the loan that would have come due within six years before the commencement of suit, plus pre-judgment interest on that amount.2
[¶ 5.] Mary Ann appeals, asserting that the circuit court erred in (1) reconsidering, sua sponte, its initial grant of summary judgment in her favor, (2) holding that Mary Ann could not enforce the terms of the divorce decree, and (3) applying the six-year statute of limitations to this action. 3 We review these issues de novo. See Holsti v. Kimber, 2014 S.D. 21, ¶ 8 n. 2, 845 N.W.2d 923, 927 n. 2 (citations omitted).
[¶ 6.] Mary Ann argues that the circuit court erred in reconsidering its initial grant of summary judgment in her favor.4 She contends that although Brian filed a timely response to her complaint with the circuit court, he failed to serve a copy of that response on opposing counsel within thirty days after the complaint was served on him in accordance with SDCL 15–6–5(a). Similarly, she asserts that Brian's response did not conform to the South Dakota Rules of Civil Procedure under SDCL 15–6–8(b) ().
[¶ 7.] Mary Ann does not contend that Brian's allegedly insufficient answer unduly prejudiced her. Nor does she suggest that the insufficiency would deprive the circuit court of jurisdiction. She only asserts a general objection that Brian's answer was inadequate. But the record reveals that Brian's answer adequately apprised Mary Ann of his denials to her complaint. In response to Count 1 of Mary Ann's complaint, which sought to enforce the divorce decree, Brian stated that Mary Ann was not a party to the divorce, and therefore, could not enforce the decree. In his responsive pleading to Count 2, the breach of contract claim, Brian stated that “breach of contract laws in South Dakota have a 6 year statute of limitations.” His answer then cited SDCL 15–2–13, which sets forth the statute of limitations for breach of contract claims. Further, Brian resubmitted this defense by oral argument at the summary judgment hearing. Finally, the record reveals that the circuit court gave Mary Ann adequate time to respond to Brian's answer. We find no error in the court's handling of this process.
[¶ 8.] Mary Ann's second alleged error is that Brian did not submit a proper motion to dismiss, based on the statute of limitations, under SDCL 15–6–7(b).5 At a June 2013 hearing, the circuit court entertained this argument from Mary Ann, but ultimately rejected it. The court found that Brian had made an oral motion to dismiss that he not only argued, but presented in his answer. Additionally, the court gave Mary Ann adequate time to respond to Brian's motion to dismiss. The court indicated that Brian, a pro se defendant, had filed an answer asserting the statute of limitations as a defense, argued the same during the summary judgment hearing, and advanced a similar argument in writing following the hearing.6 We see no error with the circuit court's ruling on this issue.
[¶ 9.] The final error Mary Ann asserts is that Brian did not properly respond to her initial motion for summary judgment. SDCL 15–6–56(c) provides in part:
[A] judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
While Brian did not dispute any of the material facts alleged by Mary Ann, he did raise the statute of limitations as a defense in both his answer and during the summary judgment hearing. Because the court concluded that Mary Ann was not yet entitled to a judgment as a matter of law, it did not err in withdrawing its order so that the parties could brief the statute of limitations issue.
[¶ 10.] In awarding Mary Ann only seven installments of the loan, the circuit court ruled that the loan agreement was controlled by the statute of limitations for breach of contract rather than the limitations period for enforcement of a divorce decree. As a result, Mary Ann could not obtain a judgment on the earlier loan installments because a cause of action on those was barred by the statute of limitations. Mary Ann argues that the circuit court erred in determining that she could not enforce Brian and Sandra's divorce decree to recover the entirety of the debt.
[¶ 11.] A breach of contract action is subject to a six-year statute of limitations. SDCL 15–2–13. Enforcement of a divorce decree, however, is subject to a twenty-year statute of limitations. SDCL 15–2–6. To obtain the amount Brian owed her, Mary Ann sought to enforce Brian and Sandra's divorce decree, which allocated the remaining loan payments on the house to Brian. Mary Ann argues that she is eligible to enforce the terms of Brian and Sandra's divorce decree because the debt owed to her was listed in the decree. The circuit court concluded that Mary Ann was not a party to the divorce decree, and therefore, her claim was subject to the six-year statute of limitations for breach of contract. While part of Mary Ann's claim against Brian is barred under the breach of contract statute of limitations, her entire claim can advance if she can enforce the divorce decree. Accordingly, Mary Ann asks us to consider two possible avenues to allow her to enforce the terms of the decree so that the twenty-year statute of limitations applies.
[¶ 12.] Mary Ann first contends that Sandra can enforce the divorce decree on behalf of Mary Ann against Brian because Sandra was a party to the divorce decree and could be liable to Mary Ann for the outstanding debt. Both Mary Ann and Sandra are parties to this suit. To support her position, Mary Ann points to a North Dakota case: Recovery Resources, LLC v. Cupido, 818 N.W.2d 787 (N.D.2012). Cupido involved a statutory right to collect a debt under N.D.C.C. §§ 14–07–08(3) and 14–07–10 for medical expenses incurred during a marriage.7 The wife claimed that her divorce action discharged her from paying her husband's debt incurred during their marriage because their divorce decree had made him responsible for paying that obligation. The North Dakota Supreme Court rejected this argument, ruling that “[a] court's division of debts in a divorce action does not affect the rights of third-party creditors.” Cupido, 818 N.W.2d at 791. The court concluded that the wife remained liable for her husband's debt. Id. at 792. The court did note, however, that the wife was not precluded from taking action later against her ex-husband to enforce the divorce decree. Id.
[¶ 13.] Nothing in Cupido supports Mary Ann's assertion that Sandra can enforce the divorce decree as a plaintiff so that Mary Ann can be paid under the divorce decree. In Cupido, both the divorced husband and wife were defendants who were sued to collect a contractual debt. The court's language does not suggest that the wife could have joined with the creditor to enforce a divorce decree and extend the statute of limitations period to sue her former husband. In the instant case, Sandra is not suing for money unpaid to her. Nor is Sandra suing Brian to indemnify herself because she paid Mary Ann the debt. Sandra was joined as a party plaintiff as a maneuver around the statute of limitations so that Mary Ann can recover the outstanding debt from Brian. Sandra can obtain...
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Davidson v. Davidson
...1008, 483 N.E.2d 1140, 1142 (1985) (placing a six-year statute of limitations on claims from divorce decrees); Wichman v. Shabino, 851 N.W.2d 202, 205 (S.D. 2014) (recognizing a limitations period of 20 years to enforce a divorce decree); Abrams v. Salinas, 467 S.W.3d 606, 611 (Tex. App. 20......