#28565-a-DG
2019 S.D. 7

                          IN THE SUPREME COURT
                                  OF THE
                         STATE OF SOUTH DAKOTA


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CHARLOTTE M. ANDERSEN,                        Plaintiff and Appellee,

      v.

ARTHUR S. ANDERSEN,                           Defendant and Appellant.

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                  APPEAL FROM THE CIRCUIT COURT OF
                    THE FOURTH JUDICIAL CIRCUIT
                  LAWRENCE COUNTY, SOUTH DAKOTA

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                  THE HONORABLE MICHELLE K. COMER
                               Judge

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CASSIDY M. STALLEY
THOMAS E. BRADY of
Lynn, Jackson, Shultz & Lebrun, P.C.          Attorneys for defendant
Rapid City, South Dakota                      and appellant.


MICHAEL K. SABERS
TRAVIS B. JONES of
Clayborne, Loos & Sabers, LLP                 Attorneys for plaintiff
Rapid City, South Dakota                      and appellee.

                                       ****

                                              ARGUED ON
                                              NOVEMBER 13, 2018
                                              OPINION FILED 01/23/19
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GILBERTSON, Chief Justice

[¶1.]        Charlotte Andersen sued for divorce from her husband, Arthur

Andersen. At a scheduled bench trial, the parties informed the circuit court that all

issues associated with the divorce, including property division, had been stipulated

to. The parties read the stipulation into the record and the court orally bound the

parties to the stipulation. Most notably, the parties agreed that the judgment and

decree of divorce would be entered nunc pro tunc, or that it be retroactively applied,

to March 1, 2018, and apply retroactively to December 31, 2017. Before the decree

could be entered, Art passed away. The circuit court later dismissed the divorce

action, holding it no longer had jurisdiction to enter a decree of divorce because

Art’s death had dissolved the marriage. Art’s estate appeals the court’s order. We

affirm.

                           Facts and Procedural History

[¶2.]        Arthur and Charlotte were married on October 16, 2004. After ten

years of marriage, Charlotte filed for divorce on January 27, 2015, alleging

irreconcilable differences.

[¶3.]        A bench trial was held on November 15, 2017. At that time, the

parties informed the court that they had reached a stipulation on all issues related

to the divorce. The court asked that the stipulation be read into the record and

requested that the parties “pay very specific attention, and if you can’t hear, ask for

clarification, because at the end [of the reading,] I’m going to ask both of you if this

is, in fact, your agreement, and I will bind you to this agreement orally today.”




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[¶4.]        The parties claimed the stipulation agreement covered all material

facts, the grounds for divorce, the division of property, alimony, and attorney fees.

The agreement asked that a “decree of divorce [be] entered in favor of both parties

against the other on the ground of irreconcilable differences.” Most notably,

however, the agreement asked that the decree of divorce not be entered until

March 1, 2018, and be nunc pro tunc to December 31, 2017.

[¶5.]        After the reading of the stipulation into the record, the court canvassed

the parties to confirm the agreement:

             The Court: Thank you. Ms. Andersen, is this, in fact, your
             agreement?
             Ms. Andersen: Yes, it is.
             The Court: And do you agree to be bound by this agreement?
             Ms. Andersen: Yes, I do.
             The Court: And, therefore, do you agree to waive your right to
             a trial that was set for today?
             Ms. Andersen: Yes.
             The Court: Thank you. Mr. Andersen, is this, in fact, your
             agreement?
             Mr. Andersen: Yes.
             The Court: And do you agree to be bound by the terms of this
             agreement?
             Mr. Andersen: Yes.
             The Court: And do you agree to give up the trial that was set
             for today?
             Mr. Andersen: Yes.

[¶6.]        On November 20, 2017, the parties filed a written stipulation that was

signed by both parties. The written stipulation was nearly word-for-word to what

was read orally to the circuit court and it noted that all terms “were agreed to in

open [c]ourt on November 15, 2017.” The stipulation also provided that “[t]he

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parties agree that such Judgment and Decree of Divorce shall be entered nunc pro

tunc on December 31, 2017. Such Judgment and Decree of Divorce shall be filed on

March 1, 2018, or as mutually agreed.” The parties filed affidavits consenting to the

jurisdiction of the circuit court and to a judgment and decree of divorce from each

other on the grounds of irreconcilable differences.

[¶7.]        On February 20, 2018, Art passed away before the judgment and

decree of divorce was signed and entered by the circuit court. On February 23,

2018, Charlotte filed a motion to dismiss pursuant to SDCL 25-4-1 and requested an

emergency hearing. To respond to Charlotte’s motion Art’s sister Tena Haraldson

was appointed special administrator of Art’s estate. Haraldson filed a suggestion of

death with the circuit court and moved to substitute herself, as special

administrator of Art’s estate, in place of Art in the divorce action.

[¶8.]        On March 1, 2018, Haraldson submitted a proposed judgment and

decree of divorce to the circuit court requesting that the court sign it nunc pro tunc

to December 31, 2017. Haraldson also filed a corresponding motion and brief in

support of the motion. A motions hearing was held on March 13, 2018. The circuit

court granted Charlotte’s motion to dismiss, relying on this Court’s holding in

Larson v. Larson, 89 S.D. 575, 235 N.W.2d 906, 907 (1975), “that death abates

jurisdiction of this Court” in a divorce action.

[¶9.]        Art’s estate appeals the circuit court’s order, raising the following

issues:

             1.     Whether the circuit court erred in holding that it could
                    not enter a judgment and decree of divorce nunc pro tunc
                    after Art’s death when the parties had previously adopted
                    a stipulated divorce agreement.

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             2.     Whether a stipulated property settlement is enforceable
                    as a contract independent of the entry of a divorce decree
                    after a party’s death in a divorce action.

                                Standard of Review

[¶10.]       On appeal, a circuit court’s “[c]onclusions of law are given no deference

and are reviewed de novo.” Zwart v. Penning, 2018 S.D. 40, ¶ 8, 912 N.W.2d 833,

836 (quoting Surat Farms, LLC v. Brule Cty. Bd. of Comm’rs, 2017 S.D. 52, ¶ 12,

901 N.W.2d 365, 369). We review a circuit court’s findings of fact for clear error. Id.

                                Analysis & Decision

             1.     Whether the circuit court erred in holding that it could not enter
                    a judgment and decree of divorce nunc pro tunc after Art’s death
                    when the parties had previously adopted a stipulated divorce
                    agreement.

[¶11.]       This Court has addressed the definition and purpose of a nunc pro tunc

judgment:

             ‘Nunc pro tunc’ judgment is a judgment entered to make the
             record speak the truth and the function of such entry is to
             correct the judicial records insofar as they fail to record a
             judgment by the court; where the court has acted and its action
             has not been recorded, an entry ‘nunc pro tunc’ is proper and
             fully authorized. ‘Nunc pro tunc’ means ‘now for then’ and when
             applied to entry of a legal order or judgment, it normally refers,
             not to a new or de novo decision, but to the judicial act
             previously taken, concerning which the record is absent or
             defective, and the later record-making act constitutes but later
             evidence of the earlier effectual act.

In re B.A.R., 344 N.W.2d 90, 94 (S.D. 1984) (citations omitted) (italics added).

[¶12.]       Art’s estate argues that a judgment and decree of divorce can be

entered nunc pro tunc following the death of a party under the facts of this case.

The estate claims this is because, at the time of Art’s death, all issues had been


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stipulated to, adjudicated, and accepted by the circuit court. In response, Charlotte

relies on SDCL 25-4-1, which provides that: “[m]arriage is dissolved only: (1) By the

death of one of the parties; or (2) By the judgment of a court of competent

jurisdiction decreeing a divorce of the parties. The effect of such judgment is to

restore the parties to the state of unmarried persons.” She asserts that under

SDCL 25-4-1, her marriage to Art ended when Art passed away, and after that

time, the circuit court lacked jurisdiction to enter a nunc pro tunc decree of divorce.

Charlotte also claims that this Court’s decision in Larson controls and that Art’s

death abated jurisdiction of the circuit court to adjudicate the divorce action.

[¶13.]       In Larson, this Court addressed the issue whether a circuit court has

the power to enter a nunc pro tunc decree of divorce when one party to the divorce

action dies during the course of proceedings. 89 S.D. at 576, 235 N.W.2d at 907.

There, Wife filed a divorce action against Husband in 1973; a trial was held in 1974.

Id. Before the trial, the parties orally stipulated between counsel that the grounds

of divorce would not be contested and that fault would not be taken into

consideration for property division. Id. At the conclusion of trial, the judge asked

each counsel to prepare memoranda proposing an acceptable division of property.

Id. The judge then stated: “But there will be a divorce. The only thing for me to

decide now is the financial arrangements and I’ll do that after five days from now so

you will have the decision within about two weeks from now.” Id.

[¶14.]       After trial, a motion from one of the parties and a five-week absence of

the judge for a judicial training delayed the entry of the decree of divorce. Id.

Before the decree was entered, Husband passed away. Id. Ultimately, the trial


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court entered a nunc pro tunc order granting Wife a divorce. Id. at 579, 235 N.W.2d

at 909. We reversed, stating “that the suit for divorce abated upon the death of

[Husband] and that at his death [Wife] became his widow.” Id. at 911. We

reasoned that because no final decision as to the divorce had been made under

South Dakota law, there were still judicial acts to complete, so the division of

property and the entry of the nunc pro tunc divorce decree was invalid. Id.

[¶15.]       Art’s estate argues that the facts in Larson are distinguishable from

this case. It notes that in Larson, the parties could not reach an agreement on the

division of property, so they went to trial. At the end of trial, the judge in Larson

asked counsel to prepare memoranda proposing an acceptable property division

because those issues had not yet been decided. Therefore, at the time Husband

died, the division and award of property still remained an issue in the case. Here,

however, in Art’s estate’s view, all issues in the divorce, including the grounds of

divorce and division of property, had been stipulated orally to the circuit court,

acknowledged by the court, placed in writing, and signed by the parties. Thus, the

estate avers that there were no judicial acts left to be completed, and that a nunc

pro tunc order could have been entered by the circuit court.

[¶16.]       Although Larson features different factual circumstances, the central

holding controls the result here. In Larson and in this case, the circuit court had

not completed all of the necessary judicial acts to grant a divorce. Without reaching

that terminal point, the intervening death of a spouse ends the marriage by

operation of law and deprives the circuit court of the authority to grant a divorce—

much less a divorce nunc pro tunc to a date before the party’s death. The fact that


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the final judicial act was forestalled in Larson by contested property division issues

rather than the agreed-upon passage of time in this case is inconsequential.

[¶17.]       The estate’s position ignores the paramount importance and finality of

a judgment. SDCL 15-6-54(a) provides that “‘Judgment’ as used in this chapter

includes a decree and means the final determination of the rights of the parties in

an action or proceeding. A judgment shall not contain a recital of pleadings, the

report of a referee, or the record of prior proceedings.” (Emphasis added.)

Webster’s Dictionary defines final in a number of ways, including as something that

is: (1) “not to be altered or undone”; (2) “of or relating to a concluding court action or

proceeding”: (3) “coming at the end; being the last in a series, process, or progress”;

and (4) “of or relating to the ultimate purpose or result of a process.”

[¶18.]       Here, the parties’ agreement as to the terms of the divorce and

property division was orally placed on the record in circuit court, acknowledged by

the court, memorialized in writing, and signed by the parties. It provided for the

circuit court’s jurisdiction to enter a judgment and decree of divorce on March 1,

2018, nunc pro tunc to December 31, 2017. The circuit court orally bound the

parties to the agreement. But regardless of the comprehensiveness of the parties’

agreement, it was in no way final. After the stipulation was entered into the record,

the parties, and especially the circuit court, had the power to alter or even undo the

agreement. Most importantly, the agreement by itself did not have the power to

accomplish the ultimate purpose of this litigation: to end the marriage “[b]y the

judgment of a court of competent jurisdiction decreeing a divorce of the parties”

under SDCL 25-4-1.


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[¶19.]       The parties’ stipulation agreement and the words of the court binding

the parties to the agreement were not final. The important and final judicial act of

actually entering a judgment and decree of divorce was left to be completed before

Art’s death. Art’s death ended the marriage and abated the jurisdiction of the

circuit court to enter a nunc prop tunc decree. The circuit court did not err in

refusing to enter a decree of divorce nunc pro tunc.

             2.     Whether a stipulated property settlement is enforceable as a
                    contract independent of the entry of a divorce decree after a
                    party’s death in a divorce action.

[¶20.]       Art’s estate argues that even if we hold that the circuit court did not

err, the parties’ stipulation is still enforceable on its own as a valid contract.

Charlotte counters that her and Art’s divorce was a condition precedent to the

enforceability of the terms of the stipulation as a contract.

[¶21.]       SDCL 53-1-2 provides that the “[e]lements essential to existence of a

contract are: (1) Parties capable of contracting; (2) Their consent; (3) A lawful object;

and (4) Sufficient cause or consideration.” SDCL 20-2-4 defines a condition

precedent as “one which is to be performed before some right dependent thereon

accrues, or some act dependent thereon is performed.” This Court has expounded

on the nature of a condition precedent:

             A condition precedent is a contract term distinguishable from a
             normal contractual promise in that it does not create a right or
             duty, but instead is a limitation on the contractual obligations of
             the parties.

             A condition precedent is a fact or event which the parties intend
             must exist or take place before there is a right to performance.
             A condition is distinguished from a promise in that it creates no
             right or duty in and of itself but is merely a limiting or
             modifying factor. If the condition is not fulfilled, the right to
             enforce the contract does not come into existence.
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Jennings v. Rapid City Reg’l Hosp., Inc., 2011 S.D. 50, ¶ 8, 802 N.W.2d 918, 921

(quoting Johnson v. Coss, 2003 S.D. 86, ¶ 13, 667 N.W.2d 701, 705-06).

[¶22.]         Art’s estate claims that the stipulation agreement meets all the

elements of a contract. It notes that both parties were capable of contracting

because the circuit court canvassed the parties as to their capabilities during trial.

Each party stated that they were “of firm mind” and “sign[ed] the stipulation free of

duress or compulsion.” Art’s estate asserts that the lawful object of the contract

was not only a divorce, but also the division of property. It cites SDCL 25-2-10 1 and

SDCL 25-2-13 2 for the proposition that a married couple may enter into a

transaction of property from one to another. It also states that Art’s death did not

render the lawful object of property division a nullity. Finally, Art’s estate points to

the terms of the stipulation as proof of sufficient cause or consideration. If the

decree of divorce and stipulation would have been executed, Charlotte would have

received an equal share of the marital property, including a $550,000 equalization

payment.

[¶23.]         Because we agree with the circuit court’s conclusion that Art’s death

deprived it of jurisdiction to act, we express no opinion regarding the enforceability,

1.       SDCL 25-2-10 provides:
               Either husband or wife may enter into any engagement or
               transaction with the other, or with any other person, respecting
               property, which either might, if unmarried, subject, in
               transactions between themselves, to the general rules which
               control the actions of persons occupying confidential relations
               with each other, as prescribed by law.

2.       SDCL 25-2-13 provides that “[a] husband and wife cannot by any contract
         with each other alter their legal relations, except as to property . . . .”

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in any subsequent action, of the stipulated property settlement agreement as an

independent contract.

[¶24.]      KERN, JENSEN, and SALTER, Justices, concur.




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