Goeden v. Goeden

2024 S.D. 51

• Court: South Dakota Supreme Court
• Decided: August 28, 2024
• Docket: 30321
• Status: Published

Opinion

#30321-a-PJD 2024 S.D. 51

IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA

****

REGINA GOEDEN, Plaintiff and Appellee,

v.

WAYNE G. GOEDEN, Defendant and Appellant.

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

THE HONORABLE DOUGLAS E. HOFFMAN Judge

JEFFREY R. BECK Sioux Falls, South Dakota Attorney for defendant and appellant.

SCOTT D. KADING LAURA T. BEATCH of Kading, Kunstle & Goodhope, LLP Sioux Falls, South Dakota Attorneys for plaintiff and appellee.

CONSIDERED ON BRIEFS MARCH 19, 2024 OPINION FILED 08/28/24 #30321

DEVANEY, Justice

[¶1.] In this divorce proceeding, Wayne Goeden challenges the circuit court’s

determination that the parties’ premarital agreement is void and unenforceable and

further challenges the court’s rulings related to the valuation and division of

marital property. Wayne also claims the court erred in its treatment of his

veterans’ disability benefits and that it improperly granted Regina Goeden a divorce

based on extreme cruelty. We affirm.

Factual and Procedural Background

[¶2.] Regina and Wayne began dating in approximately 2013. Both had

been married previously and have adult children from prior relationships. Regina

was employed full time as an analyst at Edward Jones, and Wayne was employed

full time as an IT project manager with Midco. At some point in the relationship,

they began living together in a home owned by Wayne, and in 2015, they became

engaged. However, during the summer of 2016, Wayne physically assaulted

Regina, and she ended the relationship. Regina called law enforcement about the

abuse after her daughter and son-in-law saw bruises on Regina’s body, and Wayne

was charged with domestic assault. Ultimately, Wayne pled guilty to disorderly

conduct and completed a six-month anger management program.

[¶3.] In early 2017, Regina and Wayne reconciled, and Regina moved back

into Wayne’s home. They again became engaged, and at some point, the parties

discussed the topic of executing a premarital agreement. According to Regina,

Wayne did not mention wanting a premarital agreement before the first or current

proposal. She claimed that he brought it up for the first time after they set a June

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2017 wedding date. She further claimed that she felt pressured to agree because

she was living with him, had sold her vehicle and furniture at Wayne’s direction,

and was dependent on him. Wayne, however, claimed that the premarital

agreement was Regina’s idea because he expressed reluctance to marry her in light

of how his previous marriage had ended and because Regina had lied about him

abusing her in 2016. It is undisputed that Wayne printed a premarital agreement

(Agreement) template from the internet and that Regina signed it in front of a

notary nine days before their June 22, 2017 wedding.

[¶4.] The Agreement provides that property owned solely by either party

would be treated as separate property unless the property is shared property or

there is proof of shared legal ownership. It further provides that jointly acquired or

jointly held property, however or whenever acquired, will be treated as shared

property. The Agreement states that upon dissolution of their marriage, neither

party would make a claim to the other’s retirement account and that Wayne would

receive the $189,000 in equity he brought into the marriage and Regina would

receive the $5,000 in cash she brought into the marriage. Thereafter, “all

remaining property will be valued and divided equally regardless of either parties

[sic] salary or contribution to the marriage.”

[¶5.] The Agreement refers to and includes separate asset disclosure

statements (Schedules A1 and A2) for Wayne and Regina. Under the provisions

outlined above, the property in these schedules is deemed to be the separate

property of each party. Regina testified that Wayne completed her schedule and

listed $15,000 in premarital assets, representing her personal property and $5,000

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cash on hand. But according to Regina, she did not have $5,000 cash on hand, and

when she asked Wayne about this amount, he told her he included it to do her a

favor. Wayne’s schedule identified $189,000 in assets comprising his home equity, a

pickup, a car, a boat, a motorcycle, a flatbed trailer, miscellaneous items, personal

property, and cash on hand. Neither party’s schedule identified their respective

retirement accounts or balances. Wayne’s schedule also did not disclose his Health

Savings Account (HSA) or personal bank account. At the time of their marriage in

June 2017, Wayne’s retirement account was valued at approximately $95,500, and

he had $8,710 in his HSA and $14,424 in his bank account. Regina’s retirement

account was valued at $14,256.

[¶6.] Shortly after the couple married, Wayne sold his home and placed the

proceeds, $87,000, in his personal Wells Fargo account. Wayne and Regina

purchased a new home and placed it in joint tenancy. They used $60,000 from

Wayne’s proceeds of the sale of his home for the down payment on the new home.

In May 2018, Wayne added Regina to his personal Wells Fargo account as an

authorized user, and she began depositing her paychecks into that account. The

parties then used that account to pay for marital expenses, though Wayne argued

that Regina spent more than she contributed and that he personally paid for a

majority of the parties’ expenses.

[¶7.] Wayne is a veteran, and after the marriage, he applied for and was

approved to receive disability payments for hearing loss and inner ear dysfunction

caused by his premarital military service. After approval, he received an initial

lump-sum payment of $39,676.02 in December 2018. He deposited that payment in

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the joint Wells Fargo account. However, he claimed that he used $37,000 of that

amount to finish a basement remodeling project in their home. He further claimed

that he deposited his $3,100 monthly disability benefit in the joint Wells Fargo

account, but he used a majority of this amount each month to make payments

toward the principal on the couple’s mortgage. He alleged that he made $53,250 in

payments toward the mortgage principal using his disability benefits.

[¶8.] In February 2021, Wayne opened a new Wells Fargo account in his

name only and transferred $18,000 from the joint account into this personal

account. He claimed that he opened this new account because he was concerned

with how Regina was spending money, including money that she was giving to her

brother. According to Wayne, Regina’s brother abused substances and Regina

enabled him, which “caused an insurmountable obstacle in the marriage.” After

opening his separate account, Wayne began depositing his monthly disability

benefits into this account; however, he continued to deposit his paychecks into the

joint account.

[¶9.] In May 2021, Wayne and Regina began seeing a counselor. Wayne

claimed that the counselor gave them specific issues to work on to improve their

relationship, including better communication and trust, having sex more often, and

Regina having better boundaries with her brother. Regina did not recall having a

specific conversation with their counselor about sex; however, she claimed that if

they did not have sex every other day, Wayne’s “mood would not be good[.]” At trial,

a recording of Wayne screaming at Regina on May 14, 2021, was played for the

court. Regina testified that she recorded the exchange to show Wayne at a later

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time how he talks to her. On the recording, Wayne can be heard berating Regina,

seemingly at the top of his lungs, for not having sex with him this week and that he

“made crystal clear how this was unacceptable.” As he repeated his scolding that

“this is unacceptable,” Regina can be heard quietly apologizing.

[¶10.] In September 2021, Wayne and Regina separated, and on September

27, Regina filed for divorce, alleging irreconcilable differences and extreme cruelty

as grounds. Wayne answered and counterclaimed for a divorce on the same

grounds. Wayne also sought enforcement of the Agreement as it relates to the

division of the parties’ property and debts.

[¶11.] Although Wayne and Regina separated, they continued to live together

in the marital home. Shortly thereafter, Regina obtained a temporary protection

order against Wayne based on allegations of domestic abuse and Wayne moved out

of the house. The circuit court denied Regina a permanent protection order at a

December 2021 hearing because of insufficient evidence to sustain a finding of

domestic abuse, and after a hearing in January 2022, the court granted Wayne’s

motion for exclusive possession of the marital home. The court also ordered that he

be responsible for all financial obligations, maintenance, and upkeep for the marital

home. Regina then moved out of the home and lived with family until she obtained

a rental home.

[¶12.] The circuit court held a three-day divorce trial in January 2023, during

which Regina, her daughter, an appraiser, and Wayne testified. Following the trial,

the court issued a memorandum decision and the parties submitted proposed

findings of fact and conclusions of law. The court thereafter issued findings of fact

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and conclusions of law, which incorporated its memorandum decision, and issued a

judgment and decree of divorce.

[¶13.] In its decision, the circuit court made observations about Wayne’s and

Regina’s personal characteristics and “found Regina to be the more credible

witness” because her “demeanor and general testimony gave the [c]ourt confidence

in her integrity as a witness[.]” The court therefore indicated that “to the extent

that her version of an event varied from that given by Wayne, the [c]ourt accepts

Regina’s testimony as correct.” The court noted an “area of divergent testimony”

being “the genesis of the Prenuptial Agreement entered into evidence[.]” In its later

analysis of the law governing premarital agreements, the court voided the

Agreement, determining based on the totality of the circumstances surrounding its

execution that Regina did not execute it voluntarily and that it was unconscionable.

[¶14.] As part of its classification and division of the parties’ property, the

circuit court noted that the parties had been married for five and a half years, that

no children were born during the marriage, and that at the time of trial, Regina was

52 and Wayne was 55. The court also noted that Regina has an associate degree in

paralegal studies but has not worked in that field, and Wayne has three degrees—

associate, bachelor, and masters. The court found that while both suffer from

certain health conditions, “[n]either parties’ condition adversely affects their

employability.” However, the court determined that “Wayne’s capacity to earn an

income is twice Regina’s, such that hers is marginal and his is comfortable” because

Wayne receives approximately $9,000 in net monthly income, including his

disability benefits, while Regina receives approximately $2,750 per month.

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[¶15.] After stating that Wayne and Regina’s “marriage was intended to be a

partnership and the accumulation of their assets was the fruit of those joint efforts,

in which each party contributed in earnest[,]” the circuit court found that they

contributed equally to their accumulation of assets by working full time and

contributing their earnings to the marriage. The court further found that both

parties worked within the home to keep it clean, maintained, and improved. The

court accepted Regina’s expert’s testimony that the fair market value of the home is

$589,000 rather than Wayne’s evidence that the City of Sioux Falls assessed the

home in November 2022 at $499,000.

[¶16.] The circuit court awarded Wayne the marital home and gave him a

$60,000 credit for the amount he invested from the proceeds of the sale of his

separately owned home for the down payment. The court did not award Wayne the

$100,000 credit he claimed for labor he provided toward the basement remodel. The

court also rejected Wayne’s request for a $29,976 credit for anticipated realtor and

closing costs, finding no evidence that Wayne intended to sell the marital home.

[¶17.] The circuit court valued Regina’s Kia Optima at $14,500 and Wayne’s

Kia Telluride at $38,000, minus a $20,000 loan, and awarded each party their

respective vehicles. The court, however, noted that as a result, Wayne received

$3,500 more in equity with respect to the marital vehicles than Regina. The court

also noted, after awarding the parties their respective bank account balances, that

Wayne received $4,000 more in equity in these accounts than Regina. In regard to

the parties’ retirement accounts, the court did not include the premarital values in

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the marital estate; rather, the court considered only the growth in value during the

marriage, $35,000 for Regina and $155,000 for Wayne.

[¶18.] While the parties were separated and a temporary restraining order

(TRO) was in place with respect to their finances, Wayne used $15,900 from his

HSA to prepay for an elective eye surgery. 1 He claimed that he had received

permission in a prior hearing before a different judge to use his HSA funds for this

procedure. At the time of trial, the HSA contained only $1,490. Regina argued that

Wayne intentionally depleted the value of this marital asset. The circuit court

found that Wayne violated the TRO by using $15,900 from his HSA to prepay for

the elective eye surgery. The court found that the HSA had a balance of $8,700

prior to the marriage, and after adding back $15,900 to the $1,490 account balance

at trial and deducting the $8,700 premarital sum, the court attributed the

remaining $8,680 to the value of Wayne’s share of the marital estate.

[¶19.] The circuit court also found that Wayne violated the TRO when he

used funds from his separate Wells Fargo account to gift $8,000 to religious

organizations and prepay $5,000 for a mission trip. The court rejected Wayne’s

argument that it was required to disregard these amounts spent because they were

made from his VA disability benefits deposited into this account. The court

explained that Wayne could not establish that these amounts he spent were from

his VA disability benefits rather than marital funds because he opened his separate

bank account with $18,000 in marital funds and then commingled his disability

1. Under SDCL 25-4-33.1, an automatic temporary restraining order is in effect upon personal service of the summons and complaint for divorce on the defendant.

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benefits with those marital funds. Therefore, the court added $13,000 to Wayne’s

share of the marital estate, representing amounts he expended from marital funds

in violation of the TRO.

[¶20.] The circuit court similarly determined that because Wayne

commingled his lump sum disability payment and monthly disability benefits into

the joint marital account prior to opening the separate account in February 2021,

those benefits lost their exclusionary status. The court therefore denied Wayne’s

request for a $37,000 credit for what he claimed he spent on the basement remodel

and a $53,235 credit representing what he claimed were disability benefits used for

principal mortgage payments.

[¶21.] After making the above determinations and deeming the distribution

of the parties’ personal property to be “a wash[,]” the circuit court concluded that

the value of the assets awarded to Wayne from the marital estate exceeded the

value of the assets awarded to Regina by $440,000. The court thus ordered Wayne

to make a $220,000 cash equalization payment to Regina. The court also awarded

Regina a divorce for extreme cruelty, finding that Wayne inflicted grievous mental

suffering upon Regina throughout the marriage. The court did not award alimony,

because neither party made such a request, and the court ordered that each party

be responsible for their respective attorney fees and costs.

[¶22.] Wayne appeals, asserting multiple issues that are restated as follows:

1. Whether the circuit court erred in declaring the premarital agreement void.

2. Whether the circuit court abused its discretion and committed clear error in its valuation and division of the marital estate.

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3. Whether the circuit court abused its discretion and committed clear error in its treatment of Wayne’s disability benefits.

4. Whether the circuit court erred in granting Regina a divorce on grounds of extreme cruelty.

Analysis and Decision

1. Whether the circuit court erred in declaring the premarital agreement void.

[¶23.] On appeal, Wayne challenges both the circuit court’s finding that

Regina did not voluntarily execute the Agreement and the determination that the

Agreement was unconscionable. Because we conclude that Wayne has not shown

the court erred in its unconscionability determination, we address only that ruling.

[¶24.] Under SDCL 25-2-21(a), “[a] premarital agreement is not enforceable if

the party against whom enforcement is sought proves that:

...

(2) The agreement was unconscionable when it was executed and, before execution of the agreement, that party:

(i) Was not provided a fair and reasonable disclosure of the property or financial obligations of the other party;

(ii) Did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and

(iii) Did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party.

“An issue of unconscionability of a premarital agreement shall be decided by the

court as a matter of law.” Id. This Court reviews questions of law de novo;

therefore, the circuit court’s determination of unconscionability is given no

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deference. In re Eichstadt, 2022 S.D. 78, ¶ 19, 983 N.W.2d 572, 580 (quoting

Smetana v. Smetana, 2007 S.D. 5, ¶ 7, 726 N.W.2d 887, 891). However, the court’s

findings of fact are reviewed under the clearly erroneous standard of review. In re

Estate of Smid, 2008 S.D. 82, ¶ 27, 756 N.W.2d 1, 10 (reviewing the court’s findings

related to its unconscionability determination for clear error).

[¶25.] Here, the circuit court determined that the Agreement was

unconscionable at the time it was executed because it “did not make any provisions

for [Regina’s] retirement” and Regina’s retirement plan “was not adequate to

provide for her retirement.” The court further determined that Regina “did not get

a fair and reasonable disclosure of the property or financial condition of [Wayne]”;

“did not voluntarily expressly waive in writing any right to the disclosure of said

property, or financial obligations”; and “did not or reasonably could [sic] have had

adequate knowledge of the nature and extent of [Wayne’s] property or financial

obligations” via the “disclosure by [Wayne] or through independent knowledge.”

[¶26.] On appeal, Wayne does not assert that the Agreement provided for

Regina or that the circuit court erred in concluding otherwise. 2 He also does not

argue that the court clearly erred in its finding under SDCL 25-2-21(a)(2)(ii) that

Regina did not voluntarily and expressly waive in writing the right to disclosure of

2. In Eichstadt, this Court explained that when considering whether the agreement was unconscionable when it was executed, “the circuit court could consider, as part of its examination of the circumstances surrounding the execution of the Agreement, the actual terms of the Agreement, including that it made no provision for [the other spouse] regardless of how many years the couple would be married.” 2022 S.D. 78, ¶ 42, 983 N.W.2d at 588.

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his property. Rather, Wayne’s appellate arguments seem directed at the adequacy

of the circuit court’s findings under SDCL 25-2-21(a)(2)(i) and (iii).

[¶27.] As it pertains to these two subsections, Wayne contends the circuit

court erred in finding the agreement unconscionable because, in his view, “Regina

had reasonable disclosure of what the assets were” and “adequate knowledge of [his]

property.” As support, Wayne directs us to certain emails entered into evidence at

trial, which he claims establish that his 401k balance was disclosed to Regina

during a meeting they had with a financial planner.

[¶28.] While Regina mentioned the parties’ retirement accounts in a June 7

email to Wayne, this email does not refer to Regina and Wayne meeting with a

financial planner, nor does the email show that Regina knew the balance of Wayne’s

401k. Rather, the email refers to a conversation she had with her coworker

regarding “the 401K thing” and her belief that Wayne was “okay with the 401K

ROTH[.]” The email ends with a statement from Regina that she would bring home

information for him to let her know what would be best to “do for both our employer

plans.” Further, although Wayne contends Regina had an adequate knowledge of

his property, he has not established clear error in the circuit court’s finding that

while Regina knew he had a 401k, she did not know the extent and nature of its

value. Wayne also has not directed this Court to any evidence that Regina was

aware of his HSA or bank account balances, which were similarly not disclosed by

Wayne prior to Regina executing the Agreement. 3 As the Court in Sanford v.

3. Wayne testified that “[t]here was no need” to list his bank account balance on his property schedule because he could “literally go back to that day and pull (continued . . .) -12- #30321

Sanford noted, “[i]t does not fall upon a spouse to assume the role of detective in an

attempt to ferret out the existence and value of the other spouse’s assets.” 2005

S.D. 34, ¶ 42, 694 N.W.2d 283, 294.

[¶29.] Wayne further argues that “the beginning number [of his retirement

account] was immaterial” because “[b]oth parties elected to waive any future claim

to not only the premarital values of their 401k accounts but any growth that

occurred on the account.” In his view, it would be “unjust” to invalidate the

Agreement because “Regina sold [him] on not wanting his money and had him draft

a prenuptial agreement to prove that she did not want it.” 4

[¶30.] Aside from the fact that Wayne’s argument in this regard focuses only

on his retirement account and not his other undisclosed assets, Wayne cites no

authority to support his claim that he did not need to disclose his retirement

account as an asset simply because the parties intended the Agreement to waive a

future claim to each other’s retirement accounts. On the contrary, Wayne had the

burden of disclosing all of his assets in a manner that was precise enough to give

Regina “a reasonable approximation of the magnitude of [his] net worth.” See id. ¶¶

________________________ (. . . continued) up a Wells Fargo statement that shows the day before marriage what it was in the account.” He further testified that he did not list his HSA balance because he “didn’t know HSA’s were divisible[.]”

4. Although Wayne also argues that invalidating the agreement would “reward Regina for her fraudulent inducement to convince [him] to enter the agreement and marry her,” he did not assert a claim for fraudulent inducement below. Therefore, we decline to address it on appeal. “We have repeatedly stated that we will not address for the first time on appeal issues not raised below.” Hiller v. Hiller, 2015 S.D. 58, ¶ 23, 866 N.W.2d 536, 544 (citation omitted).

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42–44, 694 N.W.2d at 294–95. Because Wayne has not established clear error in

the circuit court’s findings under SDCL 25-2-21(a)(2), we affirm the circuit court’s

decision voiding the Agreement as unconscionable.

2. Whether the circuit court abused its discretion and committed clear error in its valuation and division of the marital estate.

[¶31.] Wayne advances multiple arguments related to the circuit court’s

valuation and equitable division of the marital estate in the event this Court

affirms the circuit court’s determination invalidating the Agreement. He contends

the court erred in including the parties’ respective retirement accounts in the

marital estate when their testimony indicated an intent to exclude those accounts

from consideration. 5 He further contends that the court erred in failing to give him

full credit for $87,000 he received in premarital proceeds from the sale of his home. 6

In regard to their marital home, Wayne asserts the court erred in denying him a

5. He also argues at multiple points in his appellate brief that the circuit court abused its discretion and clearly erred in not giving the parties “full credit” for “the values of their respective premarital assets,” including “the cash and bank accounts that existed at the time of marriage.” In his view, he should have received a $213,424 credit and Regina should have received a $15,000 credit. However, it is well settled that “[a] court is not required to ‘give both divorcing parties credit for all their premarital assets in order to make an equitable division of property.’” Muenster v. Muenster, 2009 S.D. 23, ¶ 16, 764 N.W.2d 712, 717 (citation omitted).

6. Wayne advances other arguments for the first time on appeal, or for the first time in his reply brief. It is well settled that “[a] party may not raise an issue for the first time on appeal, especially in a reply brief when the other party does not have the opportunity to answer.” Ellingson v. Ammann, 2013 S.D. 32, ¶ 10, 830 N.W.2d 99, 102 (citation omitted). Therefore, we decline to address whether the circuit court failed to apply a $500 credit for a motorcycle he sold prior to their marriage and whether the court erred in valuing the marital home at the time of the divorce.

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$100,000 credit for the labor he provided during the basement remodel that

increased the value of the marital home; a $29,976 credit to offset the future sale

costs for the home; and a $10,686 credit for property taxes due for the tax period

when Regina was still living in the home. Additionally, he argues the court erred

when determining he violated the TRO by spending $15,900 from his HSA for eye

surgery. Finally, he contends the court abused its discretion in dividing the marital

estate equally because, in his view, Regina contributed only 1.1% to the

accumulation of marital assets.

[¶32.] As recently stated,

This Court reviews the circuit court’s division of marital property for an abuse of discretion. Osdoba v. Kelley-Osdoba, 2018 S.D. 43, ¶ 10, 913 N.W.2d 496, 500. The court’s classification of property as marital or non-marital is also reviewed for an abuse of discretion. Green v. Green, 2019 S.D. 5, ¶ 21, 922 N.W.2d 283, 290. “An abuse of discretion occurs when discretion is exercised to an end or purpose not justified by, and clearly against, reason and evidence.” Id. ¶ 11, 922 N.W.2d at 288 (citation omitted).

Cook v. Cook, 2022 S.D. 74, ¶ 19, 983 N.W.2d 180, 188. However, we review a

circuit court’s valuation of the particular assets under the clearly erroneous

standard of review. Dunham v. Sabers, 2022 S.D. 65, ¶ 63, 981 N.W.2d 620, 642.

Notably, “[t]he trial court’s findings of fact are presumptively correct and the

burden is upon appellant to show error.” Id.

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A. Inclusion of the retirement accounts in the marital estate

[¶33.] Wayne argues that the court erred in not excluding the parties’

respective retirement accounts from the marital estate because, in his view, there

existed an “express contract that should be enforced.” More specifically, he cites the

law governing express contracts, including SDCL 53-1-3, and argues that the court

erred as a matter of law in including the parties’ 401k and retirement accounts in

the marital estate in light of Regina’s testimony at trial that she told Wayne she did

not want any part of his retirement account and would not make a claim for his

retirement account if they were to get divorced, and his agreement to the same.

[¶34.] Wayne did not assert to the circuit court that under SDCL 53-1-3 the

parties entered into an express contract (other than the written premarital

agreement) regarding their retirement accounts. Rather, he argued more generally

that the court should, regardless of the validity of the Agreement, exclude the

parties’ respective premarital assets, including the retirement accounts, based on

the parties’ testimony that they had agreed not to go after each other’s retirement

accounts. Because the existence of an express contract under SDCL 53-1-3 was not

raised to the circuit court, Wayne cannot assert that claim for the first time on

appeal. See Hiller v. Hiller, 2015 S.D. 58, ¶ 23, 866 N.W.2d 536, 544 (noting our

general rule “that we will not address for the first time on appeal issues not raised

below” (citation omitted)). We note, however, that the circuit court did consider, as

related below, which assets to exclude as premarital when ultimately dividing the

parties’ property.

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B. Proceeds from sale of Wayne’s premarital home

[¶35.] Wayne presented evidence that he received approximately $87,000 in

proceeds from the sale of the home he owned personally. He testified that he

deposited the entire amount in his personal Wells Fargo account in February 2018,

which became the couple’s joint account in May 2018. The court gave Wayne a

$60,000 credit, noting that the parties had agreed that such amount reflected what

Wayne personally contributed to the down payment on their marital home. Wayne

does not dispute that the remaining $27,000 was eventually commingled with

marital funds in an account that was indiscriminately used for marital expenses.

He thus has not shown the court clearly erred in treating this commingled amount

as shared property.

C. Credits related to the valuation of the marital home

[¶36.] Wayne argues the circuit court erred in failing to give him a $100,000

credit for his contribution as the general contractor on the basement remodel

project. He notes that this Court has recognized that a spouse’s performance of

domestic duties constitutes a valuable contribution to the marital estate. See, e.g.,

Endres v. Endres, 532 N.W.2d 65, 71 (S.D. 1995). He then argues that the same

should be true for his contribution as a general contractor on the remodel project,

which he claims increased the value of the marital home by approximately

$100,000. Although Wayne’s argument attempts to parse out and place a dollar

amount on his contribution to the value of this asset, he has not shown the court

erred in finding that both parties through their joint, though not identical, efforts

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contributed to the maintenance and improvement of the marital home. In

particular, the court found that both parties worked full-time and contributed their

earnings to the marriage, and both worked within the home to clean, maintain, and

improve it. The record supports these findings and the court’s corresponding denial

of a $100,000 credit.

[¶37.] In regard to the value of the marital home, Wayne further argues that

the circuit court failed to address his request for a $10,686 credit reflecting property

taxes on the marital residence incurred during the parties’ marriage but payable

after divorce. In his view, “[t]he taxes need to be included as a line item in the

marital estate” as a debt to Wayne and thus a credit to the value of the marital

home.

[¶38.] It is unclear from a review of the record whether Wayne requested the

circuit court award him a $10,686 credit for property taxes incurred during the

marriage. During the trial, the parties referred to multiple joint property exhibits,

but there is only one in the record for this Court to review. On that exhibit, the

property taxes are not identified, which Wayne acknowledged during his direct

testimony. However, he also answered “Yes” in response to a question about

whether he is asking the court to “allocate” $10,000 in “costs and fees that [the

appraiser] talked about with the sales tax, recording fees, and the back taxes” that

Wayne will “have to pay as the one who takes that house.” Wayne then testified

that “[t]he taxes alone are 6000 a year[,]” referring to taxes on the house. But

during closing argument, his attorney requested $5,343 for “the back sales taxes”;

he did not request $10,000 or any other amount for property taxes incurred during

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the marriage. Finally, Wayne’s proposed findings and conclusions do not propose

that he receive a credit for $10,000 or any other amount for property taxes incurred

during the marriage. Rather, he proposed that he be “given credit for the sales tax

and closing costs” that he contends would be incurred upon a sale of the marital

home, in the amount of $5,343. (Emphasis added.) Because it is not clear from this

record that Wayne specifically argued to the circuit court that he should receive a

$10,686 credit against the value of the marital home for property taxes incurred

during the marriage, Wayne has failed to establish error as it relates to a credit for

such taxes.

[¶39.] Wayne also argues that the circuit court erred in denying him credit

for $29,976 in anticipated realtor and closing costs related to the sale of his home.

He does not challenge the court’s finding that he did not express any intent to sell

the home. However, he relies on this Court’s prior determination that “even if sale

of the home [was] not immediately contemplated, it [is] reasonable for the [circuit]

court to consider the net value of the house to the party who received it.” Osdoba v.

Kelley-Osdoba, 2018 S.D. 43, ¶ 14, 913 N.W.2d 496, 501 (alterations in original)

(quoting Abrams v. Abrams, 516 N.W.2d 348, 351 (S.D. 1994)). But we did not hold

in Osdoba that a circuit court must take into account the cost of selling a home

when valuing it for purposes of a property division. Moreover, while the Court in

Osdoba referred to decisions from other courts regarding the notion that a court

may consider the net value, one of those decisions, Zeigler v. Zeigler, declined to

adopt a per se rule that the costs of sale must be deducted. See 530 A.2d 445, 550

(Pa. Sup. Ct. 1987). As the court in Zeigler explained, an intention to sell “is not

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easily susceptible of proof.” Id. Further, “the proper amount to deduct for costs of

sale would be a matter of speculation” because “[a]lthough it is common practice to

employ the services of a realtor in selling a home, it is not uncommon for an owner

to undertake a sale without the assistance of a realtor.” Id. Finally, there is not a

standard, universal commission, and “although realty transfer taxes are routinely

split equally between buyer and seller, the practice is not universal.” Id.

[¶40.] Here, because of the lack of evidence of an intention to sell and the

uncertainties of what costs would exist in the future if and when Wayne did sell,

Wayne has not shown the circuit court erred in declining to give him credit for the

potential costs associated with selling the home.

D. Recapture of marital value of HSA amounts spent

[¶41.] Wayne argues that a different judge at a hearing in July 2022 gave

him “authority to schedule his eye procedure” and indicated that if Wayne spent the

money, it would not be a marital asset. He thus claims it was error for this circuit

court judge to reverse course “[b]y clawing back the payment[.]” 7 In declining to

accept wholesale Wayne’s claim that a different judge at a prior hearing authorized

the expenditure, the circuit court noted the absence of a transcript from that July

2022 hearing. The record on appeal likewise does not contain a transcript of that

hearing. There is also no order in the record issued after the July 2022 hearing

7. Wayne characterizes the circuit court’s ruling as similar to a transfer between spouses to a qualified domestic relations order (QDRO). He thus requests that if this Court upholds the “HSA claw back” then “the matter should be remanded to order the transfer of HSA funds to be performed via a QDRO.” But the court did not order that Wayne access his HSA funds for the cash equalization payment or transfer HSA funds to Regina.

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giving Wayne the authorization he claims he was given. As such, there is no way

for this Court to review the propriety of Wayne’s claim that he had permission to

expend $15,000 while the TRO was in effect. Therefore, this Court’s “presumption

is that the circuit court acted properly.” Graff v. Children’s Care Hosp. and Sch.,

2020 S.D. 26, ¶ 16, 943 N.W.2d 484, 489 (quoting Baltodano v. N. Cent. Health

Servs., Inc., 508 N.W.2d 892, 894–95 (S.D. 1993)).

E. Equal division of the marital estate

[¶42.] Wayne argues that the circuit court abused its discretion in “making a

50/50 equalization” when, in his view, the evidence shows that his financial and

non-financial contributions to the marriage far exceeded Regina’s. More

specifically, he asserts that during the parties’ short marriage, he took care of all

activities necessary to maintain the marital home and the parties’ vehicles. He

further claims he did all the grocery shopping, cooked most of the meals, and did

most of the laundry and house cleaning. In regard to Regina’s financial

contributions, Wayne contends she “spent more than she contributed on personal

items or gifts that did not benefit the marital estate.” He further notes that Regina

received $500 per month from him after the parties separated.

[¶43.] In making an equitable division of the marital estate, “the law does not

require perfection that would approach mathematical certainty.” Osdoba, 2018 S.D.

43, ¶ 18, 913 N.W.2d at 502 (citation omitted). Therefore, “there is no rigid formula

that must be followed, nor any fixed percentage to which either party is entitled.”

Id. ¶ 19 (citation omitted). However, the circuit court should consider the following

factors:

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(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.

Id. (citation omitted). “The trial court must make the division of property on the

basis of these principal factors while having due regard for equity and the

circumstances of the parties.” Huffaker v. Huffaker, 2012 S.D. 81, ¶ 20, 823 N.W.2d

787, 792 (citation omitted).

[¶44.] Here, while the marriage was short and there was a disparity in the

parties’ financial contributions during the marriage, the circuit court considered all

the factors attendant to dividing the parties’ property with due regard for equity

and the parties’ circumstances. In particular, the court noted that the parties’

assets are not income producing and “that Wayne’s capacity to earn an income is

twice Regina’s[.]” The court further considered that they both contributed their

earnings to the marriage and both worked within the home to maintain and

improve it. Notably, the court gave Wayne credit for, or otherwise did not include in

the marital estate, the premarital value of his HSA and retirement account. The

court also gave him credit for $60,000 from the sale of the premarital home that he

contributed to the purchase of the marital home.

[¶45.] Although Wayne disagrees with the circuit court’s view of Regina’s

contributions during the marriage, Wayne does not address the court’s finding that

the parties intended the marriage to be a partnership, a finding that is supported

by the record. As this Court repeatedly states, when dividing property in a divorce

proceeding, the court is not required to follow a rigid formula and the parties are

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not entitled to any fixed percentage. Dunham, 2022 S.D. 65, ¶ 40, 981 N.W.2d at

637. We therefore conclude Wayne has not established the circuit court abused its

discretion in equally dividing the marital estate.

3. Whether the circuit court abused its discretion and committed clear error in its treatment of Wayne’s disability benefits.

[¶46.] Wayne argues that the circuit court “failed to recognize that the

veteran’s disability payments [he] began receiving for his service-connected

disability were not military retirement pay and under federal law were not divisible

as a material asset.” On the contrary, the court specifically noted that Wayne

received VA disability benefits; therefore, the court did not treat the benefits as

military retirement pay. Further, the court did not fail to recognize that VA

disability benefits are not divisible in a divorce. Rather, the court quoted the

governing federal regulation and this Court’s holding in Cook that VA disability

benefits are excluded from division in a divorce. See 2022 S.D. 74, ¶ 23, 983 N.W.2d

at 188 (noting that federal law “prohibits state courts from treating military

disability benefits, received after the waiver of military retirement pay, as marital

property subject to division”). Therefore, the circumstances here are unlike those at

issue in Cook, wherein the circuit court concluded that the husband’s VA disability

benefits were marital property subject to division. See id. ¶ 25, 983 N.W.2d at 189–

90.

[¶47.] However, Wayne argues that the circuit court nevertheless erred when

it failed to exclude from the marital estate the following amounts he claims were

expended using his VA disability benefits: (1) $37,000 of his initial lump sum

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disability benefit used on the basement remodel project; (2) $53,200 from his

monthly benefit amount used to make payments toward the principal on the parties’

marital home; and (3) $13,000 from his personal Wells Fargo account opened in

February 2021. He does not dispute that the first two amounts were spent from

funds in the parties’ joint Wells Fargo account. He also does not dispute that he

opened his separate account from which he spent the $13,000, with $18,000 from

the parties’ joint account. 8 Rather, he claims that the court improperly treated

these expenditures as marital property subject to division when, in his view, they

can be traced to his VA disability benefits.

[¶48.] Although Wayne argues that he can trace the $37,000, $53,235, and

$13,000 payments to his disability benefits, he has not directed this Court to any

evidence, such as banking records or other documentation, connecting those

payments to his disability benefits. This is problematic because without evidence

that these expenditures were from Wayne’s disability benefits, it is unclear how this

Court could conclude that the circuit court treated Wayne’s VA disability benefits as

marital property in violation of federal law. However, this Court has not before

examined whether VA disability benefits lose their exclusionary status when they

are commingled with marital assets or monies. We therefore address that question

in determining whether the court erred here.

8. Without any evidentiary support, Wayne argues that the $18,000 he took from the joint account represents “VA monies remaining” in that account. There is nothing in the record showing that Wayne segregated his VA benefits from other funds in the parties’ joint account.

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[¶49.] After recognizing that Wayne’s VA disability benefits are not subject to

division, the circuit court quoted cases from other courts for support of its

determination that by inextricably commingling his VA benefits with marital money

or marital assets, Wayne’s VA benefits lost their exempt status. For example, in

Bischoff v. Bischoff, the Kentucky court examined whether the trial court erred in

concluding that the parties’ residence was marital property when the defendant

claimed that the payments on the residence were made solely from the defendant’s

disability benefits. 987 S.W.2d 798, 799 (Ky. Ct. App. 1998). The court noted that

the defendant’s “disability payment funds had been co-mingled with [his wife’s]

earnings and the proceeds of the tobacco enterprise to purchase the property[.]” Id.

at 800. Therefore, the court concluded that “the exemption applicable to the

disability payments does not extend to property purchased with those funds.” Id. at

799. Similarly, the court in Stacy v. Stacy noted that disability payments that

would otherwise be exempt when deposited in the veteran’s own account “may lose

their separate character when they are comingled with the marital assets.” 144

N.E.3d 899, 905 (Mass. Ct. App. 2020).

[¶50.] Here, Wayne deposited his initial lump sum disability benefit payment

and subsequent monthly payments, up to February 2021, in the parties’ joint Wells

Fargo account in which both parties were also depositing their paychecks. Thus, it

is not possible to determine whether the funds used from that account to pay

$37,000 on the basement remodel project and $53,235 toward the principal of the

mortgage were from Wayne’s VA disability benefits or the parties’ marital funds.

And although after February 2021, Wayne deposited his monthly VA disability

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benefits into his personal account, that account was opened with $18,000 from the

parties’ joint account. Therefore, the $13,000 he spent from that account could have

been the parties’ marital funds rather than his VA disability benefits. Because the

circuit court did not operate under the incorrect impression that Wayne’s VA

disability benefits are subject to division in a divorce and Wayne has not produced

sufficient evidence to trace the $37,000, $53,235, and $13,000 expenditures to his

VA disability benefits, Wayne has not established that the circuit court erroneously

treated his VA disability benefits as divisible marital property. 9

4. Whether the circuit court erred in granting Regina a divorce on grounds of extreme cruelty.

[¶51.] Wayne argues the circuit court erred when it overruled his objection to

the court’s consideration of the 2016 incident when granting Regina a divorce based

on extreme cruelty. He claims that this premarital incident cannot provide the

grounds for termination of the marriage. However, the court did not rely solely on

their premarital conduct in granting Regina a divorce on the ground of extreme

cruelty. Moreover, although the 2016 incident occurred prior to the parties’

marriage, the conduct was relevant to the court’s consideration of the personalities

of the parties involved. As this Court stated, [i]n a marital setting, the definition of

extreme cruelty differs according to the personalities of the parties involved.” Evens

9. However, the circuit court erred in its finding that: “All subsequent deposits of his VA disability benefits deposited in Wells Fargo account 4934 up to the date of dissolution then also became marital assets.” Although such a determination is too broad, Wayne has not established prejudice because the circuit court only considered $13,000 spent from his personal account, which is less than the $18,000 in marital funds Wayne deposited into that account before spending the $13,000.

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v. Evens, 2020 S.D. 62, ¶ 22, 951 N.W.2d 268, 277 (quoting Scherer v. Scherer, 2015

S.D. 32, ¶ 15, 864 N.W.2d 490, 496).

[¶52.] However, Wayne further argues that the evidence does not establish

extreme cruelty because Regina initiated contact with him after the 2016 incident

to rekindle their romance. He also claims that during their marriage, he took care

of the household, paid all the bills, cooked all the meals, and was a very loving and

caring person to Regina. He directs this Court to her social media posts detailing

the special way he treated her.

[¶53.] SDCL 25-4-4 defines “[e]xtreme cruelty” as “the infliction of grievous

bodily injury or grievous mental suffering upon the other, by one party to the

marriage.” “The evidence must be viewed ‘in the light of the full context of the

relationship between the parties and not in the narrow light of isolated incidents[.]’”

Brandsma v. Brandsma, 318 N.W.2d 318, 318 (S.D. 1982) (citation omitted). See

also Evens, 2020 S.D. 62, ¶ 22, 951 N.W.2d at 277.

[¶54.] Here, the circuit court found that Wayne’s evidence of Regina’s social

media posts praising Wayne and professing her love for him did not discredit

Regina’s claims that he was emotionally abusive toward her. Rather, the court

found credible Regina’s testimony that she made the posts in an attempt to pacify

his demands for praise. The court also accepted as credible Regina’s testimony that

Wayne would call her names and that Wayne used her past experiences of abuse to

injure her emotionally. Finally, the court relied on Regina’s audio exhibit depicting

Wayne berating her during the marriage for not having sex with him. To the court,

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Wayne’s verbal abuse of Regina as depicted in this video is “abhorrent” and

“appalling.”

[¶55.] Wayne discounts the video evidence, claiming that the recording does

not provide an accurate picture. He further asserts the circuit court ignored

testimony that called into doubt Regina’s credibility. However, Wayne’s arguments

in this regard ignore that “[t]he credibility of the witnesses, the weight to be

accorded their testimony, and the weight of the evidence must be determined by the

circuit court and we give due regard to the circuit court’s opportunity to observe the

witnesses and the evidence.” Hiller v. Hiller, 2018 S.D. 74, ¶ 22, 919 N.W.2d 548,

555 (citation omitted). Wayne has not shown that the circuit court’s finding of

extreme cruelty is clearly erroneous.

Appellate Attorney Fees

[¶56.] Regina has submitted a request for an award of $8,796.02 in appellate

attorney fees pursuant to SDCL 15-26A-87.3 and SDCL 15-17-38. Such fees are

authorized in divorce cases in the circuit court and likewise on appeal. As the

prevailing party, we award Regina $4,398 in appellate attorney fees.

[¶57.] Affirmed.

[¶58.] JENSEN, Chief Justice, and KERN, SALTER, and MYREN, Justices,

concur.

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