#26411-a-DG

2013 S.D. 27

                         IN THE SUPREME COURT
                                 OF THE
                        STATE OF SOUTH DAKOTA

                                ****
MICHELE K. ROSETH
n/k/a MICHELE K. HOLIEN,                 Plaintiff and Appellee,

     v.

CALVIN A. ROSETH,                        Defendant and Appellant.

                                ****

                 APPEAL FROM THE CIRCUIT COURT OF
                    THE THIRD JUDICIAL CIRCUIT
                 CODINGTON COUNTY, SOUTH DAKOTA

                              ****
                  THE HONORABLE RONALD K. ROEHR
                              Judge

                                ****


THOMAS M. FRANKMAN
TIMOTHY M. GEBHART of
Davenport, Evans, Hurwitz
 & Smith, LLP
Sioux Falls, South Dakota                Attorneys for plaintiff
                                         and appellee.

RAYMOND D. RYLANCE of
Wiles & Rylance, LLP
Watertown, South Dakota
and
DAVID L. GANJE
Rapid City, South Dakota                 Attorneys for defendant
                                         and appellant.

                                ****
                                         CONSIDERED ON BRIEFS
                                         ON FEBRUARY 12, 2013

                                         OPINION FILED 03/27/13
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GILBERTSON, Chief Justice

[¶1.]        Calvin Roseth and Michele Holien entered into an agreement

regarding payment of their children’s post-high school educational expenses as part

of their divorce. Calvin and Michele’s youngest child Jason pursued a double major

in college and took five years to complete his undergraduate degree. Additionally,

during Jason’s fifth year of college, Jason was accepted into several two-year

master’s degree programs in the field of music performance. At the end of Jason’s

senior year of college, Calvin began disputing his obligation to continue paying his

share of Jason’s educational expenses. Michele argued that the terms of the parties’

agreement required Calvin to pay his share of Jason’s expenses for Jason’s fifth

year of college, as well as for Jason’s first year of graduate school. The circuit court

found that the parties’ agreement was unambiguous, and ordered Calvin to pay his

share of the expenses associated with Jason’s fifth year of undergraduate studies

and Jason’s first year of graduate school. Calvin appeals.

                                        FACTS

[¶2.]        Calvin and Michele divorced in 1997. As part of their divorce, Calvin

and Michele entered into a Stipulation and Agreement (the Agreement) on July 15,

1997. The Agreement was incorporated into the parties’ Judgment and Decree of

Divorce. Paragraph 19 of the Agreement provides:

             In the event either child of the parties enrolls as a full time
             student in a recognized and accredited institution of higher
             education or vocational training within nine months following
             graduation from high school, each party shall pay his or her pro-
             rata share of room, board, tuition, fees, and books, until
             completion of said course of study or age 25, whichever first
             occurs. The pro-rata share of each parent shall be equal to the


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              percentage which would be utilized for calculation of child
              support if the same were to be calculated at that time.

[¶3.]         Calvin and Michele had three children during their marriage. The

parties’ oldest daughter attended Augustana College for approximately two-and-a-

half years, and their other daughter obtained a four-year degree from Northern

State University. Calvin and Michele paid their respective shares of the girls’ room,

board, tuition, fees, and books (educational expenses) during those years. Jason

Roseth is the parties’ youngest child. He was born on September 5, 1988. Calvin’s

payment of his pro-rata share 1 of Jason’s educational expenses is the subject of this

appeal.

[¶4.]         Jason graduated from high school in the spring of 2007. In the fall of

2007, Jason began attending Augustana College in Sioux Falls, South Dakota, as a

music major with an emphasis on trombone performance. Jason’s career goal was

to become a professional musician and to play professionally in a symphony. On the

advice of his instructor, Vance Shoemaker, Jason added accounting as a second

major during his sophomore year of college. 2 Shoemaker recommended that Jason

add a second major because it was difficult for music performance majors to get a

job and make a career out of performing. In accordance with the terms of the




1.      At the time of this dispute, Calvin’s pro-rata share of Jason’s educational
        expenses was 71 percent, and Michele’s pro-rata share was 29 percent.

2.      Calvin was unaware of Jason’s addition of the accounting major, as the two
        had not been in contact for several years.


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Agreement, Calvin paid his pro-rata share of Jason’s educational expenses during

Jason’s freshman, sophomore, junior, and senior years of college. 3

[¶5.]         On May 5, 2011, Calvin received a letter from Michele updating Calvin

on Jason’s plan to continue his education. Up until this point, Calvin believed

Jason would be graduating from Augustana College with a degree in music in May

2011. In the letter, Michele informed Calvin that Jason would not be graduating in

May 2011. Instead, Michele informed Calvin that: Jason was registered for the first

summer session at Augustana College; Jason would be attending Augustana

College in the fall to complete a fifth year of undergraduate studies; and Jason

planned to attend graduate school following his graduation in May 2012. After

receiving Michele’s letter, Calvin requested a copy of Jason’s transcript. Upon

reviewing Jason’s transcript, Calvin believed Jason should have been able to

graduate from Augustana College in May 2011 with a music major.

[¶6.]         In order to receive an undergraduate degree from Augustana College, a

student must complete a total of 130 credit hours. Approximately 60 of these

credits are general education requirements (core classes) that all students must

complete. To obtain a bachelor of arts in music, 45 of the 130 credits must be in

music. 4 Further, to obtain a degree in accounting, a student must complete 31



3.      By the end of the spring 2011 semester (Jason’s senior year of college), Calvin
        had made all payments except for a payment of $412.72, which was his pro-
        rata share of expenses that stemmed from some of Jason’s spring 2011
        accompaniment and book/supply costs and a portion of Jason’s summer book
        costs.

4.      There are certain music classes that satisfy the 45-credit requirement.


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credits, plus 14 additional hours of supporting credits, for a total of 45 credits.

Thus, for a student to graduate with a double major in music and accounting, the

student must complete a total of 150 credits.

[¶7.]         By the end of the spring of 2011, Jason had completed 141 credit

hours. Seventy of those credits were in music, and Jason admitted that as of May

2011 he had completed all courses required to obtain his music major. However,

despite having more credits than necessary for a music degree, Jason was not

eligible for graduation in May 2011 because he had not completed three core classes

he was required to complete in order to obtain a bachelor’s degree. Specifically,

Jason still needed to complete a speech course, a religion course, and a capstone

course in order to be eligible for graduation. The capstone course, which students

typically took during their senior year, was offered every fall semester, interim,

spring semester, and summer session. Additionally, the speech and religion courses

were offered each semester, and Jason could have taken these courses any year. 5

Calvin believed Jason chose not to take these required courses in order to prolong

his education.

[¶8.]         Ultimately, Jason completed the required speech and religion courses

during the summer session in 2011. During the fall of 2011, Jason took 6 credits

that were required for his accounting major, and 6 credits that were music electives.

The music electives were not required in order for Jason to obtain his bachelor’s

degree. Calvin believed Jason took these credits in order to maintain his status as a


5.      At the hearing, Sharon Neish (the Assistant Registrar at Augustana College)
        clarified that the religion course could be taken any time after a student’s
        first year of college.

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full-time student, which was a condition of Calvin’s payment of Jason’s educational

expenses pursuant to Paragraph 19 of the Agreement. Further, although the

capstone course was offered during the summer session, fall semester, and interim,

Jason did not complete the required capstone course until the spring 2012 semester.

In addition to the 3-credit capstone course, Jason took 4 credits that were required

for his accounting major, and 5 credits of unrequired music electives during the

spring of 2012. Jason graduated from Augustana College in May 2012 after

completing a total of 167 credits.

[¶9.]        On June 3, 2011 (after Jason finished his senior year at Augustana),

Calvin filed a motion requesting a determination that he had satisfied his obligation

to pay his pro-rata share of Jason’s educational expenses. Alternatively, if the

circuit court determined that he had not satisfied his obligation as of May 2011, he

requested that the circuit court determine his obligation for continued payment of

Jason’s educational expenses. At the same time, Calvin deposited his share of

Jason’s summer 2011 educational expenses with the clerk of courts. The parties

later agreed that Calvin would not be required to pay any additional money to the

clerk of courts during the pendency of the action. On March 13, 2012 (during the

spring semester of Jason’s fifth year at Augustana), Michele filed a motion

requesting that the circuit court enforce Paragraph 19 of the Agreement.

[¶10.]       The circuit court held a hearing on April 5, 2012, to address the

parties’ motions. Calvin testified that he understood the phrase “course of study”

within Paragraph 19 of the Agreement to mean an undergraduate degree with a

single major. Calvin argued that because Jason should have completed his “course


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of study” by graduating with a music major in May 2011 (but intentionally

prolonged his graduation by putting off three core classes), Calvin was no longer

obligated to pay his pro-rata share of the educational expenses Jason incurred after

May 2011. Alternatively, Michele testified that “course of study” was not intended

to be confined to an undergraduate degree in a single major, but instead included

an undergraduate degree with multiple majors and also included graduate school.

Thus, Michele argued that Calvin was obligated to pay his pro-rata share of Jason’s

educational expenses for the summer 2011 session, the fall 2011 semester, the

spring 2012 semester, and the first year of Jason’s two-year master’s degree

program. 6

[¶11.]         In addition to their own testimony and testimony from Jason, during

the hearing both parties presented testimony from witnesses 7 in support of their

respective understandings of Paragraph 19 of the Agreement. The circuit court

reserved ruling on objections to the admission of various parol evidence during the

hearing, subject to its later determination of whether or not Paragraph 19 of the

Agreement was ambiguous. Ultimately, the circuit court determined that



6.       As Jason will turn 25 before his second year of graduate school, Michele
         admits that Calvin is not obligated to pay for Jason’s second year of graduate
         school pursuant to Paragraph 19 of the Agreement.

7.       Sharon Neish, the Assistant Registrar at Augustana College, testified that a
         “course of study” was one major leading towards a bachelor’s degree. Vance
         Shoemaker, a music instructor at Augustana College, testified that Jason’s
         “course of study” was music performance, and that Jason could not complete
         his “course of study” and achieve his goal of being a professional musician
         without attending graduate school. Shoemaker also testified that the
         accounting major was necessary to Jason’s “course of study” due to the
         difficulties associated with making a career out of music performance.

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Paragraph 19 of the Agreement was unambiguous and that all parol evidence was

consequently inadmissible. Further, the circuit court concluded that the phrase

“course of study” was broad and was not restricted to an undergraduate degree or

one major. As a result, the circuit court granted Michele’s motion. On June 15,

2012, the circuit court entered an order (along with findings of fact and conclusions

of law) requiring Calvin to pay his pro-rata share of Jason’s educational expenses

for the summer 2011 session, the fall 2011 semester, the spring 2012 semester, and

for Jason’s graduate school until Jason turned 25. The circuit court also ordered

Calvin to pay the $412.72 he owed from the spring of 2011, along with some other

expenses. Calvin appeals, arguing the circuit court erred in concluding that

Paragraph 19 of the Agreement obligated him to pay his pro-rata share of Jason’s

educational expenses for the summer 2011 session, Jason’s fifth year of

undergraduate studies, and Jason’s first year of graduate school.

                            ANALYSIS AND DECISION

[¶12.]       Whether the circuit court erred in determining that Paragraph
             19 of the Agreement was unambiguous, and that Calvin was
             required to pay his pro-rata share of Jason’s educational
             expenses for the summer 2011 session, Jason’s fifth year of
             college at Augustana, and Jason’s first year of graduate school.

[¶13.]       “Contractual stipulations in divorce proceedings are governed by the

law of contracts.” Duran v. Duran, 2003 S.D. 15, ¶ 7, 657 N.W.2d 692, 696 (quoting

Pesika v. Pesika, 2000 S.D. 137, ¶ 6, 618 N.W.2d 725, 726). “Contract interpretation

is a question of law reviewable de novo.” Pankratz v. Hoff, 2011 S.D. 69, ¶ 10 n.1,

806 N.W.2d 231, 235 n.1 (quoting Ziegler Furniture & Funeral Home, Inc. v.

Cicmanec, 2006 S.D. 6, ¶ 14, 709 N.W.2d 350, 354). “Because we can review the

contract as easily as the trial court, there is no presumption in favor of the trial
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court’s determination.” Id. (quoting Ziegler Furniture, 2006 S.D. 6, ¶ 14, 709

N.W.2d at 354). Further, “whether the language of a contract is ambiguous is a

question of law for the court, which is reviewable de novo.” LaMore Rest. Grp., LLC

v. Akers, 2008 S.D. 32, ¶ 31, 748 N.W.2d 756, 765 (citing All Star Constr. v. Koehn,

2007 S.D. 11, ¶ 33, 741 N.W.2d 736, 744).

[¶14.]       “In determining the proper interpretation of an agreement

incorporated into a divorce decree, a court must seek to ascertain and give effect to

the intention of the parties.” Kier v. Kier, 454 N.W.2d 544, 547 (S.D. 1990) (citing

Malcolm v. Malcolm, 365 N.W.2d 863, 865 (S.D. 1985)). Further, “[i]n determining

the intention of the parties, the Court must look to the language that the parties

used.” Id. (quoting Malcolm, 365 N.W.2d at 865). “When the meaning of

contractual language is plain and unambiguous, construction is not necessary.”

Pesika, 2000 S.D. 137, ¶ 6, 618 N.W.2d at 726 (citing Alverson v. Nw. Nat.’l. Cas.

Co., 1997 S.D. 9, ¶ 8, 559 N.W.2d 234, 235). This is because “the intent of the

parties can be derived from within the four corners of the contract.” Vander Heide

v. Boke Ranch, Inc., 2007 S.D. 69, ¶ 37, 736 N.W.2d 824, 835 (citing Spring Brook

Acres Water Users Ass’n, Inc. v. George, 505 N.W.2d 778, 780 n.2 (S.D. 1993)).

However, “[i]f a contract is found to be ambiguous the rules of construction apply.”

Pesika, 2000 S.D. 137, ¶ 6, 618 N.W.2d at 726.

[¶15.]       “A contract is not rendered ambiguous simply because the parties do

not agree on its proper construction or their intent upon executing the contract.”

Vander Heide, 2007 S.D. 69, ¶ 37, 736 N.W.2d at 836 (quoting Pesika, 2000 S.D.

137, ¶ 10, 618 N.W.2d at 727). Instead, “a contract is ambiguous only when it is


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capable of more than one meaning when viewed objectively by a reasonably

intelligent person who has examined the context of the entire integrated

agreement.” Id. (quoting Pesika, 2000 S.D. 137, ¶ 10, 618 N.W.2d at 727). If a

writing is found to be ambiguous, parol evidence “is admissible to explain the

instrument.” LaMore Rest. Grp., 2008 S.D. 32, ¶ 30, 748 N.W.2d at 764 (quoting

Jensen v. Pure Plant Food Int’l Ltd., 274 N.W.2d 261, 264 (S.D. 1979)). However,

“parol or extrinsic evidence may not be admitted to vary the terms of a written

instrument or to add or detract from the writing.” Arrowhead Ridge I, LLC v. Cold

Stone Creamery, Inc., 2011 S.D. 38, ¶ 13, 800 N.W.2d 730, 734 (quoting Brookings

Mall, Inc. v. Captain Ahab’s, Ltd., 300 N.W.2d 259, 262 (S.D. 1980)). Thus, parol

evidence “is resorted to where the ambiguity may be dispelled to show what the

parties meant by what they said but not to show that they meant something other

than what they said.” Id. (quoting Brookings Mall, 300 N.W.2d at 262).

[¶16.]         The outcome of this case essentially hinges upon the interpretation of

the phrase “course of study” as used within Paragraph 19 of the Agreement. The

circuit court concluded Paragraph 19 of the Agreement was unambiguous, and gave

the phrase “course of study” a broad construction. On appeal, both parties argue

that the phrase “course of study” is unambiguous 8 and that the plain meaning of

the phrase reinforces their divergent interpretations of Paragraph 19 of the

Agreement. As a matter of law, we disagree. Instead, we find that the phrase



8.       Michele argues in the alternative that even if the phrase “course of study” as
         used within Paragraph 19 of the Agreement is ambiguous, parol evidence
         supports Michele’s claim that “course of study” was not meant to be limited to
         the completion of an undergraduate degree with a single major.

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“course of study” as used within Paragraph 19 of the Agreement is ambiguous. 9 As

a result, parol evidence is admissible to explain the meaning of Paragraph 19 of the

Agreement.

[¶17.]         Although the circuit court ultimately excluded all parol evidence, the

circuit court allowed parol evidence to be presented at the parties’ motions hearing

subject to the circuit court’s later ruling on the admissibility of the evidence. Thus,

this Court has a sufficient record from which we can determine the meaning of

“course of study” as used within Paragraph 19 of the Agreement. At the hearing,

Calvin testified that age 25 was used in Paragraph 19 of the Agreement to allow the

parties’ children to take a break from their undergraduate studies and still be able

to receive payments from Calvin and Michele if they later resumed those studies

before turning 25.

[¶18.]         In contrast, Michele testified the parties used the language requiring

each parent to pay his or her pro-rata share of the children’s educational expenses

“until completion of said course of study or age 25, whichever first occurs” in

Paragraph 19 of the Agreement based upon the ambitions of the parties’ oldest

daughter, who entered college in 1998 as a biology major. Michele testified that the

parties’ oldest daughter had always intended to go to medical school and become a



9.       In Calvin’s reply brief, he argues that if Paragraph 19 of the Agreement is
         found to be ambiguous, this Court should apply the rule of construction that
         requires any ambiguities in a contract to be construed against the party that
         drafted the contract. Calvin asserts that Michele drafted Paragraph 19 of the
         Agreement, and thus any ambiguity should be construed against her.
         However, the circuit court made no findings on this issue, and from the
         record it is unclear who drafted Paragraph 19 of the Agreement. Thus,
         Calvin’s argument does not affect our resolution of this case.

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physician. With their daughter’s goals in mind, Michele testified that the parties

used the phrase “course of study” with the intent that the parties would pay for

their daughter to complete her education. Further, Michele explained that the

parties agreed to use age 25 in Paragraph 19 of the Agreement because they knew a

degree in medicine required several years of schooling beyond an undergraduate

education. The parties’ oldest daughter was 17 at the time she entered college in

1998. Given that medical school typically takes four years, the parties’ oldest

daughter would have turned 25 during her final year of medical school. Thus,

Michele argues that Paragraph 19 of the Agreement was intended to encompass

more than an undergraduate education.

[¶19.]       As additional support for her understanding of Paragraph 19 of the

Agreement, Michele offered evidence that in December 1998, Calvin proposed that

the parties change the age limit in Paragraph 19 of the Agreement from 25 to 23.

Michele did not agree to the change. In September 1999, Calvin again requested

that the age limit in Paragraph 19 of the Agreement be changed. The second time

he requested changing the age limit from 25 to 22. Michele also rejected this

proposal. Michele asserts that this evidence supports her claim that the parties’

obligations under Paragraph 19 of the Agreement were not limited to their

children’s undergraduate educations. Michele asserts that Calvin’s attempt to

lower the age limit suggests that Calvin changed his mind about wanting to pay for

the children’s educational expenses beyond the undergraduate level.

[¶20.]       Overall, we conclude that the parol evidence presented at the hearing

supports Michele’s claim that “course of study” as used within Paragraph 19 of the


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Agreement includes graduate school. Therefore, under Paragraph 19 of the

Agreement, Calvin is obligated to pay his pro-rata share of Jason’s master’s degree

program educational expenses until Jason turns 25.

[¶21.]       Next, we reject Calvin’s claim that the phrase “course of study” as used

within Paragraph 19 of the Agreement is limited to the completion of one major.

Upon reviewing the parol evidence introduced by Michele, there is no indication

that the parties meant for the phrase “course of study” to be limited to a single

major. Further, at the hearing, Shoemaker testified that he recommended Jason

add an accounting major because it was difficult to make a career out of performing

music. Additionally, Shoemaker testified he recommended a double major to every

music performance major he ever worked with because the field was so competitive.

Thus, Shoemaker believed a double major was a necessary component of a “course

of study” in music performance. In light of this testimony, we conclude that the

phrase “course of study” as used within Paragraph 19 of the Agreement was not

limited to a single major, and that Jason’s accounting major was encompassed

within Jason’s “course of study” in music performance.

[¶22.]       We also reject Calvin’s claim that he is not obligated under Paragraph

19 of the Agreement to pay for Jason’s educational expenses associated with the

2011 summer session, the fall 2011 semester, and the spring 2012 semester because

Jason should have been able to graduate with a music major in May 2011. Instead,

we conclude that the courses Jason took during the summer of 2011, the fall of

2011, and the spring of 2012 were all part of Jason’s “course of study” in music

performance. As discussed above, the phrase “course of study” as used within


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Paragraph 19 of the Agreement includes Jason’s accounting major. Because the

accounting credits Jason took during his fifth year at Augustana were all required

in order for Jason to complete his accounting major, these credits were part of

Jason’s “course of study” in music performance. In addition, Jason was required to

complete the speech, religion, and capstone courses in order to receive his

undergraduate degree from Augustana College, making these credits part of Jason’s

“course of study” in music performance.

[¶23.]       Further, although the music electives Jason took during his fifth year

at Augustana were not required, these credits were nonetheless part of Jason’s

“course of study” in music performance. At the hearing, Shoemaker explained that

practice was essential to a “course of study” in music performance. He testified that

these additional music credits were beneficial to Jason because they gave him more

practice and allowed him to improve his playing abilities. Therefore, we conclude

that Calvin is required to pay his pro-rata share of Jason’s educational expenses for

the 2011 summer session, the fall 2011 semester, and the spring 2012 semester, as

the credits Jason completed during these terms were part of his “course of study” in

music performance.

                                  CONCLUSION

[¶24.]       The phrase “course of study” as used within Paragraph 19 of the

Agreement is ambiguous, making parol evidence admissible to explain the meaning

of Paragraph 19 of the Agreement. The parol evidence presented at the parties’

motions hearing establishes that Paragraph 19 of the Agreement was intended to

include graduate school and was not limited to an undergraduate education. In


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addition, Calvin is obligated to pay his pro-rata share of Jason’s educational

expenses for the summer 2011 session and Jason’s fifth year of college at

Augustana, as the credits Jason completed during this time period were part of his

“course of study” in music performance. Therefore, we affirm.

[¶25.]       KONENKAMP, ZINTER, SEVERSON, and WILBUR, Justices, concur.




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