#30253-a-SRJ
2023 S.D. 64
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
…
DONITA K. WEBER, Plaintiff and Appellee,
v.
IVAN R. WEBER, Defendant and Appellant.
…
APPEAL FROM THE CIRCUIT COURT OF
THE FIRST JUDICIAL CIRCUIT
DAVISON COUNTY, SOUTH DAKOTA
…
THE HONORABLE PATRICK T. SMITH
Judge
…
DAVA A. WERMERS
Mitchell, South Dakota Attorney for defendant
and appellant.
ROSE ANN WENDELL
Pierre, South Dakota Attorney for plaintiff and
appellee.
…
CONSIDERED ON BRIEFS
NOVEMBER 7, 2023
OPINION FILED 12/6/23
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JENSEN, Chief Justice
[¶1.] Ivan and Donita Weber were married in 2019 and divorced less than
four years later. Prior to marrying Ivan, Donita owned farmland having a
substantial value. During the marriage, the parties co-mingled and jointly titled
most of their assets, including the farmland. Ivan and Donita worked on and made
improvements to the farm before selling it and most of the accompanying assets for
roughly $2.5 million. Donita filed for divorce in May 2022. At the conclusion of the
divorce trial, the circuit court treated most of the parties’ property as marital but
awarded Donita a much larger share. The circuit court did not order or discuss
either party’s need for spousal support because neither party sought it. Ivan
appeals arguing that the circuit court abused its discretion in dividing the marital
assets and in failing to award him spousal support. We affirm.
Factual and Procedural Background
[¶2.] Donita and Ivan Weber met in October 2016, after Donita’s son invited
Ivan to hunt on their family farm. At the time, Donita lived on the farm in Hyde
County and was recently widowed after her first husband, Elroy, had died from
cancer. Ivan lived in Rapid City and worked as a welder and truck driver. Ivan
was married but divorced in 2018.
[¶3.] Donita and Ivan began dating in 2018. Shortly thereafter, Ivan moved
to Donita’s farm in Hyde County. They were married on February 12, 2019. Prior
to their marriage, Ivan owned approximately $90,000 in assets including a mobile
home and a small welding shop in Meade County. The mobile home and welding
shop were sold and converted into cash shortly before Ivan and Donita married.
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Donita owned considerable assets before the marriage, including her family farm
estimated to be worth nearly $2 million.
[¶4.] Donita testified that she worked on the farm daily and assisted Ivan
while he was learning the operations of the farming business. Prior to their
marriage, Donita built a new house on the farm which became the couple’s main
residence. Donita also brought most of the machinery, property, and cattle into the
marriage.
[¶5.] Ivan also worked on the family farm during the marriage. His labors
included working cattle, moving bales, and building a 50x80 foot shop. He replaced
flooring, installed a sump pump, and completed landscaping projects on the main
residence. He also updated an old house on the farm by installing a water heater,
sump pump, and added new exterior steps. In addition, he made several repairs to
a barn located on the farm and continued his welding business. The welding
business made minimal income during the marriage.
[¶6.] In addition to their farming activities, Donita and Ivan bought and
sold cattle, and produced calves each year from a herd of stock cattle. Over the
course of their marriage, they sold 272 head of cattle for a total of $276,919.43 and
deposited most of the receipts from these sales into the couple’s joint banking and
investment accounts. The remaining funds were used to purchase a motorhome. 1
1. The circuit court expressed concerns with the purchase of the motorhome.
The court found that Ivan had purchased the motorhome to “assist a friend”
who was going through a divorce by paying a portion of the purchase price by
check and the rest in cash to minimize the apparent value of the motorhome.
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[¶7.] Donita and Ivan titled most of their assets jointly, including several
bank accounts and the family farm. However, Donita kept two quarters of land that
she inherited from her father in her own name. Ivan did not contribute to this
property, and it was kept separate throughout the entirety of their marriage.
[¶8.] Although Donita had not planned to sell the family farm, the couple
began discussing the option of selling farm assets to set them up for an early
retirement. Ivan and Donita initially sold most of their farm-related personal
property at auction. The proceeds from the auction totaled $327,139. They
subsequently held a land auction, selling all the jointly owned real property, which
they held in a revocable trust. The net proceeds from the land auction totaled
$2,222,581.25. The proceeds from both auctions were deposited into jointly held
bank accounts. As a result of the auction sales, Ivan and Donita incurred a capital
gains tax liability of approximately $200,000.
[¶9.] After the sale of their assets, Donita and Ivan began traveling. They
also purchased real property in Mitchell for $130,000 and a home and a double-wide
trailer in Watertown. Ivan and Donita stipulated that the value of the home and
double-wide trailer in Watertown was $320,000. The parties also retained 40 acres
of land in Hyde County.
[¶10.] Donita began expressing concerns about Ivan’s spending habits. Ivan
also conveyed disapproval to Donita when she made two loans to her children which
totaled $46,000. Due to their disagreements, along with an emerging rift between
Ivan and Donita’s children, Donita and Ivan separated in May 2022.
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[¶11.] After their separation, Donita removed funds from their jointly held
bank accounts and transferred the funds into accounts held solely in her name. She
also filed for divorce, claiming irreconcilable differences. During the pendency of
their divorce proceedings, the circuit court ordered Donita to pay Ivan $100,000 as
an interim property division settlement, subject to further reallocation at the
resolution of the case. 2
[¶12.] At the time of trial, Donita was 57 years old and Ivan was 55. Neither
party was working, and the court found both to be in relatively good health.
However, the court noted that Ivan had recently undergone multiple surgeries to
address pain in his elbows and knee. Ivan also testified that the day before trial he
fell and tore a tendon in his knee and required urgent medical care. The extent of
this injury, and whether it might impact his future employability, was unknown.
Ivan testified that he expected to be able to return to work as a truck driver or
welder at some point. He also testified that he planned to develop the Mitchell
property into retail stores and storage buildings. Donita testified that once the
divorce was finalized, she intended to open a retail store in Watertown.
[¶13.] Following the trial, the circuit court issued a memorandum decision,
findings of fact and conclusions of law, and a judgment and decree of divorce on
December 29, 2022. The court treated all the assets owned by the parties as marital
property, except for the farmland Donita inherited from her father. The court
2. Prior to receiving this payment, Ivan also received $35,000 from Donita to
purchase a skid steer loader. However, Ivan did not purchase the skid steer
and claimed he used the $35,000 to cover his living expenses while the
divorce was pending.
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divided the marital property so that Donita received most of the assets and all the
parties’ debt. The total assets Donita received were valued at $2,326,771, less the
debt of $240,000. This debt included the total capital gains tax liability of $200,000.
Ivan received assets with a value of $391,856. 3 The circuit court also ordered
Donita to make an equalization payment of $300,000 to Ivan.
[¶14.] Ivan appeals and raises the following issues:
1. Whether the circuit court abused its discretion in its
division of property.
2. Whether the circuit court abused its discretion in
declining to award Ivan spousal support.
Standard of Review
[¶15.] This Court reviews a circuit court’s determinations of the division of
property and spousal support under an abuse of discretion standard. Taylor v.
Taylor, 2019 S.D. 27, ¶ 14,
928 N.W.2d 458, 465 (quoting Hill v. Hill,
2009 S.D. 18,
¶ 5,
763 N.W.2d 818, 822). “Abuse of discretion refers to a discretion exercised to an
end or purpose not justified by, and clearly against, reason and evidence.”
Id.
(quoting Godfrey v. Godfrey,
2005 S.D. 101, ¶ 11,
705 N.W.2d 77, 80). “An abuse of
discretion ‘is a fundamental error of judgment, a choice outside the range of
permissible choices, a decision, which, on full consideration, is arbitrary or
unreasonable.’”
Id. (quoting Thurman v. CUNA Mut. Ins. Soc’y,
2013 S.D. 63, ¶ 11,
836 N.W.2d 611, 616).
3. The court treated the $100,000 interim property division payment made by
Donita as a part of the $391,856 of marital property that Ivan received.
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Analysis
1. Division of property.
[¶16.] “South Dakota is an ‘all property state,’ meaning all property of the
‘divorcing parties is subject to equitable division by the circuit court, regardless of
title or origin.’” Ahrendt v. Chamberlain, 2018 S.D. 31, ¶ 10,
910 N.W.2d 913, 918
(quoting Halbersma v. Halbersma,
2009 S.D. 98, ¶ 9,
775 N.W.2d 210, 214). “Before
dividing property, the court must classify it as marital or nonmarital.” Id. ¶ 8.
(citing Nickles v. Nickles,
2015 S.D. 40, ¶ 32,
865 N.W.2d 142, 153). “The court
should consider the following factors when classifying and dividing property: (1) the
duration of the marriage; (2) the value of the property owned by the parties; (3) the
ages of the parties; (4) the health of the parties; (5) the competency of the parties to
earn a living; (6) the contribution of each party to the accumulation of the property;
and (7) the income-producing capacity of the parties’ assets.” Dunham v. Sabers,
2022 S.D. 65, ¶ 40,
981 N.W.2d 620, 637 (quoting Ahrendt,
2018 S.D. 31, ¶ 10,
910
N.W.2d at 918). A circuit court has broad discretion in classifying the property;
however, “[o]nly where one spouse has made no or de minimis contributions to the
acquisition or maintenance of an item of property and has no need for support[ ]
should a court set it aside as [nonmarital] property.” Ahrendt,
2018 S.D. 31, ¶ 10,
910 N.W.2d at 918) (second and third alterations in original) (quoting Anderson v.
Anderson,
2015 S.D. 28, ¶ 6,
864 N.W.2d 10, 14).
[¶17.] “When a divorce is granted, the courts may make an equitable division
of the property belonging to either or both, whether the title to such property is in
the name of the husband or the wife.” SDCL 25-4-44. “In making such division of
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the property, the court shall have regard for equity and the circumstances of the
parties.” Id. “A trial court’s division of property is not bound by any mathematical
formula.” Endres v. Endres,
532 N.W.2d 65, 71 (S.D. 1995) (citing Korzan v.
Korzan,
488 N.W.2d 689, 693 (S.D. 1992)).
[¶18.] Ivan asserts that the circuit court abused its discretion when dividing
the marital property because it failed to consider several relevant factors. Ivan
argues that he made significant contributions to the marital property, and although
he did not assist in acquiring most of the property, he was instrumental in
increasing its value. Ivan also claims that his poor health and lack of education
severely limit his future ability to earn an income. He argues that the
accumulation of these factors required the court to award him a greater share in the
marital estate. He further argues that the circuit court did not provide sufficient
findings or provide adequate reasoning for its property division and asserts that
“[a]ssigning an arbitrary amount without rationale is [an] abuse of discretion[.]”
[¶19.] Donita responds that the circuit court properly considered the relevant
factors before dividing their marital property. She argues that the short length of
their marriage and their disproportionate contributions to the accumulation of
property are the two critical factors that particularly support the circuit court’s
property division. Donita acknowledges that Ivan made some contribution to the
property’s increased value, but argues he had no role in acquiring most of the
property. Donita also claims that Ivan’s contributions to the farm are overstated
because they added minimal value to the property and market appreciation was the
most significant factor in the farm’s increased value. Donita also maintains that
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Ivan’s excessive spending was more harmful than any of the contributions he made
to the marital property.
[¶20.] In awarding a larger share of the marital estate to Donita, the circuit
court found that Donita owned most of the property prior to marrying Ivan. The
court also categorized Donita and Ivan’s less than four-year marriage as a “short
marriage.” It further found that Donita and Ivan were of similar age and health,
and therefore found neither of these factors to weigh in favor of either party.
Additionally, the court found that Ivan had a greater earning capacity due to his
experience as a welder.
[¶21.] The court’s findings are supported by the record, and when considering
these factors together, the court appropriately exercised its discretion in
determining that Donita was entitled to a significantly greater share of the marital
estate. Ivan’s contention that the court did not adequately consider his
contributions to the marital property overlooks the court’s specific findings noting
Ivan’s contributions to the marital property during the marriage. Further, his
contributions and any market appreciation during the four-year marriage, as well
as the $90,000 Ivan brought into the marriage, are noticeably modest relative to the
over $2 million in assets that Donita brought into the marriage.
[¶22.] Ivan also argues that the court’s failure to provide a calculation for
how it determined to award a significant disparity of property to Donita in its
property division was an abuse of discretion. However, “[a] trial court’s division of
property is not bound by any mathematical formula.” Endres, 532 N.W.2d at 71
(citing Korzan,
488 N.W.2d at 693). Moreover, “[t]he law requires an equitable, not
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necessarily equal, division of assets.” Halbersma, 2009 S.D. 98, ¶ 7,
775 N.W.2d at
214. See also MacKaben v. MacKaben,
2015 S.D. 86, ¶ 33,
871 N.W.2d 617, 628–29.
In considering the relevant factors, the court reasoned that an equal division of
property would be inequitable because it would entitle Ivan to $850,000 in
equalization payments. Instead, the court awarded Ivan an equalization payment
of $300,000, in addition to the more than $391,856 in marital assets Ivan was
awarded. The court’s decision is supported by the record, and we cannot say the
circuit court abused its discretion in dividing the marital property.
2. Spousal support.
[¶23.] Donita asks this Court to not consider Ivan’s spousal support
arguments because he failed to request spousal support or present any evidence
regarding this issue to the circuit court. Ivan responds that he sufficiently
preserved the issue of spousal support at trial. He argues that he offered testimony
concerning his need for spousal support by discussing his current health concerns
and their impact on his ability to earn future wages. Additionally, he argues that
he did not propose findings of fact and conclusions of law relating to spousal support
because the need only arose once the court’s property division left him with less
assets than what could support his daily needs.
[¶24.] A party’s failure to argue an issue to the circuit court waives their
ability to argue it on appeal. In re M.S., 2014 S.D. 17, ¶ 17 n.4,
845 N.W.2d 366,
371 n.4 (quoting In re Estate of Smid,
2008 S.D. 82, ¶ 43 n.15,
756 N.W.2d 1, 15
n.15 (Konenkamp, J., dissenting)). Furthermore, “[i]t is well established that ‘we
will not review a matter on appeal unless proper objection was made before the
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circuit court.’” Osdoba v. Kelly-Osdoba, 2018 S.D. 43, ¶ 23,
913 N.W.2d 496, 503
(quoting Halbersma,
2009 S.D. 98, ¶ 29,
775 N.W.2d at 219). “An objection must be
sufficiently specific to put the circuit court on notice of the alleged error so it has the
opportunity to correct it.”
Id. (quoting Halbersma,
2009 S.D. 98, ¶ 29,
775 N.W.2d
at 220).
[¶25.] Although Ivan’s initial answer and counterclaim raised the issue of
spousal support, at the start of trial, Ivan’s attorney affirmatively relinquished any
issue except the division of property by stating that “the parties are agreeing to
irreconcilable differences for the grounds for the divorce, so then I believe the only
issue here is going to be property division.” A review of the record shows that Ivan
did not request spousal support or present any specific testimony relating to this
issue. Additionally, Ivan’s proposed findings of fact and conclusions of law did not
address spousal support and once the court entered its findings of fact and
conclusions of law, Ivan did not object to the absence of any findings relating to
spousal support. Thus, Ivan wholly failed to present any issue concerning spousal
support to the circuit court and has waived any such claim for review on appeal.
[¶26.] Finally, both Ivan and Donita move for appellate attorney fees
pursuant to SDCL 15-26A-87.3 and SDCL 15-30-6. Given this Court’s disposition of
the case, we decline to award Ivan any attorney fees and award $5,000 in appellate
attorney fees to Donita.
Conclusion
[¶27.] The circuit court did not abuse its discretion when making its property
division and equalization determination. Therefore, we affirm.
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[¶28.] KERN, SALTER, DEVANEY, and MYREN, Justices, concur.
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