Trumble v. Trumble

#30966-aff in pt & rem-JMK

                             IN THE SUPREME COURT
                                     OF THE
                            STATE OF SOUTH DAKOTA

                                    …

JACQUELINE M. TRUMBLE,                       Plaintiff and Appellant,

      v.

ERIC TRUMBLE,                                Defendant and Appellee.

                                    …

                  APPEAL FROM THE CIRCUIT COURT OF
                     THE SECOND JUDICIAL CIRCUIT
                  MINNEHAHA COUNTY, SOUTH DAKOTA

                                    …

                      THE HONORABLE JOHN PEKAS
                               Judge

                                    …


ALEX S. HALBACH
ROBERT D. TRZYNKA of
Halbach Szwarc Law Firm
Sioux Falls, South Dakota                    Attorneys for plaintiff and
                                             appellant.


A. RUSSELL JANKLOW
ERIN SCHOENBECK BYRE of
Johnson, Janklow & Abdallah, LLP
Sioux Falls, South Dakota                    Attorneys for defendant and
                                             appellee.

                                    …

                                             CONSIDERED ON BRIEFS
                                             AUGUST 26, 2025
                                             OPINION FILED 11/12/25
#30966

KERN, Justice

[¶1.]         The Plaintiff, Jacqueline M. Trumble (Wife), filed for divorce against

Defendant, Eric Trumble (Husband). The couple owned a large residential property

in Canada (Canadian Property) which burned to the ground during the pendency of

their divorce proceedings. During discovery, Wife disclosed an insurance policy

with a $2 million Canadian Dollar (CAD)1 coverage limit for the property and

represented that it was the sole policy covering the premises. The parties

subsequently entered a stipulation and agreement entitling Wife to the Canadian

Property and the related insurance policy proceeds upon divorce. After the

agreement was signed, the circuit court entered a divorce decree based on

irreconcilable differences and incorporated the agreement.

[¶2.]         Nearly seven months later, Husband became aware that Wife was

receiving $4 million CAD in insurance proceeds, not the $2 million CAD originally

disclosed. Husband filed a motion for relief from the order on the grounds of fraud

under SDCL 15-6-60(b)(3) based upon Wife’s alleged fraudulent concealment of an

additional insurance policy. After a hearing, the circuit court granted Husband

relief from the judgment and found Wife committed fraud by failing to disclose

assets. Pursuant to the terms of the parties’ stipulation and agreement and the

court’s statutory authority under SDCL 25-4-77, the court ordered that the

undisclosed proceeds be split evenly between the parties. Wife appealed and moved

for a stay and supersedeas undertaking allowing the insurance proceeds to be

expended to rebuild the home. Husband objected. The court stayed the original



1.      The Canadian Dollar is the official currency of Canada.
                                           -1-
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order and allowed Wife, under certain terms and conditions, to use the undisclosed

insurance proceeds to rebuild the Canadian Property. Wife’s appeal from the

original order challenges the circuit court’s determination that she committed fraud

under SDCL 15-6-60(b)(3) and the court’s order requiring an equal division of the

undisclosed insurance proceeds. We affirm in part, and remand for further

proceedings.

                       Factual and Procedural Background

[¶3.]          After a 28-year marriage, Wife initiated divorce proceedings against

Husband on May 31, 2023. Two days later, on June 2, the parties’ largest marital

asset, a waterfront property on a remote island in Canada, burned to the ground.

Wife was living in the Canadian Property at the time of the fire, and many of her

personal belongings were lost in the fire. Husband was living in Sioux Falls at the

parties’ other residence at the time, where most of his personal belongings were

kept.

[¶4.]          On August 9, 2023, Husband filed his answer and counterclaim to the

divorce proceedings. As discovery began, Wife disclosed through an email to

Husband and his counsel on October 15, 2023, an insurance policy covering the

Canadian Property issued by National Insurance Company. The term of policy

coverage was from February 3, 2023, through February 3, 2024, covering the

damages caused by the fire. The policy produced was a “replacement cost value”

policy, meaning the insurance proceeds would cover the cost to repair or replace the

damaged or destroyed property up to policy limits. The limits on the National

Insurance policy appeared to be $2 million CAD, and the policy was solely in Wife’s


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name. Because he was not a named insured, Husband had no authority to access

information related to the policy and he relied solely on Wife’s representations.

[¶5.]        Husband’s counsel sought additional information through

interrogatories and requests for production of documents regarding the insurance

policy over the next four months. Counsel emailed Wife’s counsel multiple times,

requesting that Wife produce the information and threatening to file a motion to

compel if discovery was not forthcoming. Wife’s counsel maintained that Husband

and his counsel had “ALL of the documents he has requested” relating to the

insurance policy. In a January 3, 2024 email, Wife’s counsel reaffirmed the

proposition that the insurance company would “rebuild the home at $2 million

Canadian.”

[¶6.]        Dissatisfied with this representation, on February 12, 2024, Husband

filed a motion to compel discovery and a motion to place the insurance proceeds in a

trust account or with the court. The circuit court set a motion hearing date. The

hearing was never held, however, because the parties reached a settlement

agreement prior to the hearing. The circuit court, on March 25, 2024, entered a

judgment and decree of divorce based on irreconcilable differences which

incorporated the parties’ stipulation and agreement equitably dividing the marital

estate.

[¶7.]        The portions of the stipulation and agreement relevant to the issues

herein are set forth below:

             4. Disclosure of Property. The Parties agree that they have
                disclosed the existence of all property, in whatever form,
                owned by either or both of them, and that this Agreement is
                based upon a full knowledge of all property. Should an item

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                of property be discovered in the future or should a party have
                failed to disclose the existence of an item of property, the
                Parties shall share equally in the value of that property, or
                the party who does not receive the undisclosed item shall
                receive an equivalent value in cash or other property.

             …

             27. Representation of the Parties. Both Parties are aware of
                their discovery rights and the foregoing terms of this
                Agreement are based upon the representations of the Parties
                to each other that they have made a thorough and complete
                disclosure of their assets, liabilities and overall financial
                position, and each acknowledges that this Agreement is
                being executed in reliance on the validity of said information.

[¶8.]        The agreement entitled Wife to the Canadian Property and any

insurance proceeds related to the claim due to the fire, while Husband kept the

Sioux Falls residence and all his personal belongings. During negotiations, the

parties valued the Canadian Property at $2.8 million CAD—$800,000 CAD more

than the insurance policy limits.

[¶9.]        Two months after the parties signed the agreement, on May 22, 2024,

Wife hired a Canadian company to conduct a geotechnical assessment on the

property. An appraiser then used this assessment to generate a reconstruction cost

analysis which estimated the cost to rebuild the Canadian Property at

$3,305,105.79 CAD. Relying on this assessment, Wife contracted with R Simard

Contracting, a residential builder whom Wife had worked with before, to

reconstruct the home at a cost of $4,039,821.

[¶10.]       Almost seven months after the divorce decree was entered, on October

14, 2024, Husband filed both a motion for relief from the order on the grounds of

fraud pursuant to SDCL 15-6-60(b) (Rule 60(b)) and a motion for an order to show


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cause “as to whether [Wife] misrepresented the value of the Canadian Property’s

insurance proceeds and violated the Parties[’] Stipulation and Agreement.”

Husband alleged that Wife had presented an inactive and fraudulent insurance

policy during their negotiations, and that the true and active policy had actual

limits of at least $4 million CAD. Husband asserted he “became aware through

different channels that [Wife] was not receiving that $2,000,000 in insurance

proceeds but was actually receiving in excess of $4,000,000.” One day later, on

October 15, Wife forwarded to Husband an email from a Toronto Dominion (TD)

Insurance employee addressing the resolution of an insurance policy claim. The

claim discussed in the email, however, referenced a policy with limits of $4 million

CAD, not $2 million CAD. On October 31, 2024, Wife substituted her counsel of

record with her current counsel.

[¶11.]       The court held a hearing on Husband’s motion for relief on December

2, 2024. The parties stipulated to dismiss the motion and affidavit seeking an order

to show cause, but the court heard oral argument on the motion for relief under

Rule 60(b). The court took no testimony on the Rule 60(b) motion and made no

formal findings of fact. The court indicated that it would enforce the stipulation

and agreement because it found evidence of fraud. The court also ordered the

parties to produce any undisclosed insurance policies and share equally in any

proceeds exceeding the earlier valuation of $2 million CAD.

[¶12.]       Following the hearing, Wife’s counsel emailed the court to inquire

about whether the court would be making findings of fact. The court replied there




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“was no testimony so the Court does not require Findings of Fact or Conclusions of

Law” under SDCL 15-6-52(a).

[¶13.]       The circuit court, on December 23, 2024, signed an amended written

order finding Wife “committed fraud, failed to disclose or omitted assets, and/or

intentionally concealed assets by producing information and representing to both

Defendant and his counsel an incorrect insurance limit for the [Canadian

Property].” Based on this finding, the court ordered Wife to produce within 30 days

every insurance policy in effect for the Canadian Property at the time of the fire. It

further ordered that any insurance proceeds exceeding $2 million CAD be equally

divided between the parties in accordance with SDCL 25-4-77 and the parties’

stipulation and agreement, and that Wife place all excess proceeds in her counsel’s

trust account. Lastly, the court ordered Wife pay Husband’s attorney fees and costs

in bringing the motion, which totaled $3,169.01.

[¶14.]       Wife filed a notice of appeal on January 13, 2025. Wife then filed a

motion for a supersedeas undertaking, seeking an order staying the matter until

the appeal was finalized and allowing the insurance proceeds, which were

contractually obligated to R Simard for the reconstruction, be utilized for that

purpose. Husband objected to a stay and asked that the court order Wife to post a

monetary bond equivalent to half of the undisclosed insurance proceeds or deposit

the same in her attorney’s trust account. The circuit court concluded that because

the order contemplated distribution of proceeds from an insurance claim, SDCL 15-




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26A-31 applied.2 In considering an appropriate bond, the court granted the stay

and ordered Wife to file a supersedeas undertaking which required that she use any

insurance proceeds to rebuild the house, refrain from committing waste, and deposit

any excess proceeds after the home was rebuilt into her counsel’s trust account.3

Wife appeals, raising several issues, which we revise and restate as follows:

               1.    Whether the circuit court clearly erred in finding Wife
                     committed fraud under Rule 60(b).

               2.    Whether the circuit court abused its discretion in
                     granting Rule 60(b) relief.

                                 Standard of Review

[¶15.]         Our well-established rule provides that “[t]he circuit court’s decision to

grant or deny relief under Rule 60(b) will not be disturbed on appeal unless the

circuit court abused its discretion.” Estate of Mack, 

, 

, 879 (quoting Hiller v. Hiller, 

, ¶ 21, 

). When

reviewing a Rule 60(b) motion, “[t]he trial court’s discretion is to be exercised

liberally in accord with legal and equitable principles in order to promote the ends

of justice.” Williams Servs. v. Sherman, 

 (S.D. 1992) (citation

omitted). “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


2.       SDCL 15-26A-31 provides: “If the appeal is from any judgment or order not
         expressly covered by this chapter the bond required by § 15-26A-25 shall be
         conditioned in such amount and form as the circuit court directs.”

3.       After the circuit court granted Wife’s motion for a supersedeas bond and a
         stay pending appeal, Husband filed a motion with this Court pursuant to
         SDCL 15-26A-39, seeking the approval of a monetary bond or cash security
         equal to the amount of the undisclosed insurance proceeds. We denied the
         motion.
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#30966

arbitrary or unreasonable.” Estate of Mack, 

, 17 N.W.3d at 879

(citation modified) (quoting Gartner v. Temple, 

, ¶ 7, 

).

[¶16.]       As an initial matter, the parties disagree over whether the clearly

erroneous or de novo standard of review applies to our review of the circuit court’s

factual findings. Husband argues we should review the circuit court’s findings for

clear error. Wife contends we should review the findings de novo because the circuit

court made its decision based solely on documentary evidence.

[¶17.]       SDCL 15-6-52(a) provides: “[f]indings of fact, whether based on oral or

documentary evidence, may not be set aside unless clearly erroneous[.]” (Emphasis

added.) In 2000, the Legislature added the phrase “whether based on oral or

documentary evidence” to the rule in response to the Court’s well-settled practice of

reviewing de novo findings based on documentary evidence. 2000 S.D. Sess. Laws

ch. 91, § 1; see Peterson v. Evangelical Lutheran Good Samaritan Soc’y, 

, 

. After the 2000 amendment, we have regularly

reviewed findings based on documentary evidence for clear error. See Stockwell v.

Stockwell, 

, 

, 59–60; Gluscic v. Avera St. Luke’s,

, ¶ 15, 

; Faulk v. Faulk, 

, ¶ 9, 

.

[¶18.]       Accordingly, while we acknowledge the differing views of the parties,

we adhere to the standard articulated in SDCL 15-6-52(a) as amended, which

requires us to review the circuit court’s factual findings for clear error. Under the

clearly erroneous standard:


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             The question is not whether this Court would have made the
             same findings that the trial court did, but whether on the entire
             evidence we are left with a definite and firm conviction that a
             mistake has been committed. This Court is not free to disturb
             the lower court’s findings unless it is satisfied that they are
             contrary to a clear preponderance of the evidence. Doubts about
             whether the evidence supports the court’s findings of fact are to
             be resolved in favor of the successful party’s “version of the
             evidence and all inferences fairly deducible therefrom which are
             favorable to the court’s action.”

Estate of Mack, 

, 17 N.W.3d at 879 (quoting Estate of Olson, 

, ¶ 9, 

).

                                       Analysis

             1.     Whether the circuit court clearly erred in finding
                    Wife committed fraud under Rule 60(b).

[¶19.]       SDCL 15-6-60(b) provides: “On motion and upon such terms as are

just, the court may relieve a party or his legal representative from a final judgment,

order, or proceeding for the following reasons: . . . (3) Fraud (whether heretofore

denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an

adverse party[.]” “The purpose of Rule 60(b) is ‘to preserve the delicate balance

between the sanctity of final judgments and the incessant command of a court’s

conscience that justice be done in light of all the facts.’” Corcoran v. McCarthy, 

, ¶ 14, 

 (quoting Elliott v. Cartwright, 

, ¶ 7,

). “The motion shall be made within a reasonable time,” and

for reasons of fraud, “not more than one year after the judgment, order or

proceeding was entered or taken.” SDCL 15-6-60(b). “The burden of establishing

fraud rests on the party who seeks to rely on it for affirmative relief or as a defense

to an action.” Jennings v. Jennings, 

 (S.D. 1981).


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[¶20.]       Three types of conduct may result in relief under Rule 60(b)(3):

misconduct, fraud, or misrepresentation. We recognize two types of fraud in the

Rule 60(b)(3) context: fraud upon the court and fraud between the parties. Fraud

upon the court is the “species of fraud which does, or attempts to, defile the court

itself.” Corcoran, 

, ¶ 16, 778 N.W.2d at 147–48 (quoting Gifford v.

Bowling, 

, 

 (1972)). Examples include

“bribery of judges, employment of counsel to ‘influence’ the court, bribery of the jury,

and the involvement of an attorney (an officer of the court) in the perpetration of

fraud.” Gifford, 

 (citation omitted).

[¶21.]       Because we have not previously been called upon to define fraud

occurring between the parties in the Rule 60(b) context, we look to the federal

courts for guidance. See Nooney v. StubHub, Inc., 

, ¶ 8 n.1, 

, 499 n.1. The Eighth Circuit and the South Dakota District Court both

follow the majority rule that “the movant must show, with clear and convincing

evidence, that the opposing party engaged in a fraud or misrepresentation that

prevented the movant from fully and fairly presenting its case.” Boddicker v.

Esurance Inc., 

 (citation modified) (quoting U.S. v. Metro.

St. Louis Sewer Dist., 

 (8th Cir. 2006)). Moreover, the moving

party must establish scienter by demonstrating “that the misrepresentation was

knowing and intentional.” Smith v. Clarke, 

, 724–25 (8th Cir. 2006);

U.S. v. Lee, No. 4:97-cr-00243-02, 

 at *9 (E.D. Ark. July 2, 2020)

(requiring the moving party “to demonstrate that any misrepresentation was




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intentional and that any fraud was deliberate”) (citing Dukes v. City of Minneapolis,

 (8th Cir. 2009) (per curiam)).

[¶22.]       Here, the circuit court found that “[Wife] intentionally concealed or

omitted assets pursuant to SDCL 25-4-77 and committed fraud pursuant to SDCL

15-6-60(b).” Wife’s concealment of the $4 million CAD policy prevented a full and

fair division of marital assets and hindered Husband’s ability to present a defense

to Wife’s claims. The Canadian Property was the couple’s largest marital asset, and

an undisclosed policy that effectively doubled the value of the property certainly

would have affected the division of marital assets between the parties. Based on

our review of the record, we conclude that this finding is adequately supported by

the affidavits and attached exhibits contained within the record and is not clearly

erroneous.

[¶23.]       During divorce proceedings, Wife produced the $2 million CAD policy

in response to Husband’s request for any relevant insurance policies. At the time,

she represented that this was the sole insurance policy on the Canadian Property,

and that Husband had “everything” he needed to evaluate the claim. Throughout

the discovery process, Wife and Wife’s counsel repeatedly refused to provide any

additional information related to insurance policies on the Canadian Property.

Instead, Wife and Wife’s counsel affirmatively represented on several occasions that

the $2 million CAD policy was the applicable policy. Wife’s counsel specifically

stated: “[Wife] has provided directly to [Husband], ALL of the documents he has

requested. He has everything! The insurance company will rebuild the home at $2

million Canadian.”


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[¶24.]       Husband relied on these direct representations by Wife and her

counsel, and the parties subsequently negotiated the stipulation and agreement

based upon the $2 million CAD insurance policy provided by Wife, which had policy

limits lower than the $4 million CAD policy later discovered. Based on these

representations alone, Husband presented sufficient evidence for the circuit court to

find that Wife concealed or failed to disclose assets.

[¶25.]       In her affidavit, Wife does not directly address Husband’s claim that

she failed to disclose a second policy on the property, or that she fraudulently

concealed a policy with limits $2 million CAD higher than the policy produced on

October 15, 2023. Wife instead avoids the accusation and asserts that Husband was

aware that the value of the insurance claim was still unsettled, and therefore failed

to exercise due diligence before signing the agreement. Wife relies on Jeffries v.

Jeffries to assert that the stipulation was an arms-length transaction in which

Husband failed to proceed with due diligence by signing the stipulation before he

had all of the necessary information. 

 (S.D. 1989). In Jeffries,

we held that “no unique confidential relationship existed” between husband and

wife, and that “each spouse must assume equal responsibility for ascertaining such

nature and value” of marital assets. 

 But Wife overlooks the very next phrase in

which we make clear that “we do not intend to grant to estranged spouses any

license to hide or misrepresent the value of any marital assets, nor will any such

practice be condoned.” 

[¶26.]       We reiterated the Jeffries holding in Pekelder v. Pekelder:

             [Jeffries] does not grant a license to hide or misrepresent the
             value of marital assets. Rather, it holds that divorcing spouses

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             living apart and negotiating a property settlement bear equal
             responsibility for ascertaining the nature and value of their
             marital assets.

, ¶ 10, 

 (citation modified). We held in Pekelder

that the wife “fulfilled her responsibility to ascertain the nature and value of the

marital assets by retaining counsel and negotiating through him and by relying on

his request for production of documents” and other exchanges of information about

assets. Id. ¶ 11.

[¶27.]       Likewise, Husband herein fulfilled his responsibilities by relying on

Wife’s representations and the evidence provided to him during discovery. Husband

hired counsel and repeatedly requested production of the policy through

interrogatories and requests for production. Wife and her counsel made several

representations that the policy was the active policy and had been fully disclosed.

Once Husband and his counsel began discovery procedures to ascertain the value of

all marital assets, Wife had a continuing obligation to make full disclosure of those

assets. See id. ¶ 12, 

. The evidence is undisputed that she failed

to do so.

[¶28.]       We note that at the hearing, the parties relied solely on affidavit

evidence. As a general rule, affidavits are an unsatisfactory form of evidence in

that “they are not subject to cross-examination, combine facts and conclusions and,

unintentionally or sometimes even intentionally, omit important facts or give a

distorted picture of them.” Estate of Eberle, 

 (S.D. 1993) (citing

Bloom v. Bloom, 

 (S.D. 1992)). Proof by affidavit can also impair the

ability of this Court to meaningfully review the record on appeal. Dixon v. Dixon,


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 (S.D. 1988). “Nevertheless, we have left the ultimate

determination of whether issues of fact should be resolved by affidavit in the sound

discretion of the trial courts[.]” Bloom, 

.

[¶29.]       SDCL 15-6-43(e) provides: “[w]hen a motion is based on facts not

appearing of record the court may hear the matter on affidavits presented by the

respective parties, but the court may direct that the matter be heard wholly or

partly on oral testimony or depositions.” “[T]here are many cases where no oral

testimony need be received and the trial court, in the exercise of sound discretion,

may permit the trial of an issue of fact, involved in the motion, on non-oral

testimony. However, the trial court in exercising this discretion must be cautious to

prevent a circumvention of justice.” Dixon, 

 (internal citation

omitted).

[¶30.]       The court reviewed affidavits by Husband and Wife, along with

discovery material related to Wife’s alleged fraudulent conduct which, critically, she

did not deny. The court, in the exercise of its discretion, was free to require oral

testimony or depositions, but did not do so. Instead, the court ruled on the Rule

60(b) motion based on the contents of the record before it.

[¶31.]       While affidavits may not have been the best available form of proof in

this case, neither party offered live testimony nor objected to the court’s reliance on

the affidavits. From our review, the record supports the circuit court’s finding by

clear and convincing evidence that Wife intentionally concealed or withheld an

additional insurance policy covering the couple’s largest marital asset during

negotiations, thereby depriving Husband of the ability to fully and fairly assess the


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value of the marital assets before signing the settlement agreement. The court did

not clearly err in entering such finding.

             2.     Whether the circuit court abused its discretion in
                    granting Rule 60(b) relief.

[¶32.]       “The circuit court’s decision to grant or deny relief under Rule 60(b)

will not be disturbed on appeal unless the circuit court abused its discretion.”

Estate of Mack, 

, 17 N.W.3d at 879 (quoting Hiller, 

,

¶ 21, 

). Wife argues that, after granting Rule 60(b) relief, the

circuit court erred by treating the insurance proceeds as separate from the

Canadian property. She urges this Court to adopt a rule that treats property

casualty insurance proceeds to replace damaged marital property as indivisible

from the property itself.

[¶33.]       However, the circuit court’s order for a supersedeas undertaking,

entered after Wife appealed, stayed the distribution of any insurance proceeds and

instead ordered that because the proceeds were contractually obligated for the

rebuilding of the home, they could be expended. The court also ordered Wife to

refrain from committing waste, and to deposit any excess proceeds after the home

was rebuilt into her counsel’s trust account. Given the terms of this latter order, it

is unclear what, if any, insurance proceeds exist to be equitably divided between the

parties. As such, it is doubtful that a justiciable controversy remains as to the

original order directing the parties to divide the proceeds greater than $2 million

CAD, as that order appears to be moot. “A moot case is one in which there is no real

controversy or which seeks to determine an abstract question which does not rest on

existing facts or rights, with the result that any judicial determination would have

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no practical or remedial effect.” Netter v. Netter, 

, 

,

791 (citations omitted). We therefore remand the case to the circuit court for

further proceedings to effectuate the Rule 60(b) relief under the current

circumstances and determine the appropriate division of the parties’ assets.

Appellate Attorney Fees

[¶34.]       Both Husband and Wife moved this Court for their appellate attorney

fees. We award such fees and costs to Husband in the amount of $6,253.66, plus

printing costs in the amount of $37.17.

[¶35.]       JENSEN, Chief Justice, and SALTER, DEVANEY, and MYREN,

Justices, concur.




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