Johnson v. Johnson

291 N.W.2d 776, 1980 S.D. LEXIS 283
CourtSouth Dakota Supreme Court
DecidedApril 30, 1980
Docket12600
StatusPublished
Cited by73 cases

This text of 291 N.W.2d 776 (Johnson v. Johnson) is published on Counsel Stack Legal Research, covering South Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Johnson v. Johnson, 291 N.W.2d 776, 1980 S.D. LEXIS 283 (S.D. 1980).

Opinions

MORGAN, Justice.

This is an appeal from an Eighth Judicial Circuit Court final order enforcing an alimony provision of a Wyoming decree of divorce granted to the appellant, Donald Keith Johnson, from the appellee, Muriel Eunice Johnson, which required appellant to guarantee monthly sum payments to ap-pellee. We reverse in part, affirm in part, and remand to the trial court.

Having been previously married and divorced, the parties remarried in March of 1974. On June 18,1977, they entered into a separation and property settlement agreement. Appellant drafted the agreement, entitled “TO WHOM IT MAY CONCERN,” and both parties signed it. Then on July 11, 1977, appellant obtained an uncontested divorce in Crook County, Wyoming. The Wyoming court approved the agreement and repeated its language in the divorce decree.

The portion of the agreement which forms the basis of the current dispute reads as follows:

I, Donald Keith Johnson, do hereby agree to pay to Muriel Eunice Johnson the sum of Sixty Thousand Dollars, in cash, immediately, and subsequently Fifteen Hundred Dollars a month, for the rest of her natural life; such monthly sum to be guaranteed by annuties [sic] or securities, beyond my lifetime.

The divorce decree ordered appellant “to pay to [appellee] the sum of $60,000.00 in cash, immediately and subsequently Fifteen Hundred Dollars ($1,500.00) a month, for the rest of her natural life; such monthly sum to be guaranteed by annuities and securities, beyond [appellant’s] lifetime.”

During December 1977 appellant executed a will containing, among other provisions, the following:

THIRD: I am obligated to provide my former wife, MURIEL E. JOHNSON, with an annuity of One Thousand Five Hundred Dollars ($1,500.00) a month for the rest of her natural life. I recognize that obligation and authorize my Executor to establish a trust to fund it, and at the death of Muriel E. Johnson the balance of such trust is to be paid in equal shares to my five children, namely, SUSAN KLINE, LYNDA FLANNERY, NANCY HANSON, LORENE JOHNSON and GUSTAV JOHNSON, or to their children by right of representation should any of them die before my former wife, MURIEL E. JOHNSON.

[778]*778In conformity with SDCL Chapter 15-16A, the Uniform Enforcement of Foreign Judgments Act, appellee, through her attorney, filed in the office of the clerk of courts of Lawrence County, South Dakota, an affidavit for filing foreign judgment and an exemplified copy of the judgment and decree entered by the Wyoming court. In conjunction therewith appellee requested that the trial court order appellant to show cause why he should not be required to guarantee the monthly $1,500.00 payments, which to that date he had not done.

The trial court signed and filed an order to show cause and then held a hearing on the matter. At the hearing appellant appeared by and through his attorney, as did appellee through hers, and the court heard no oral testimony. Relying on the judgment and decree of divorce entered by the Wyoming court, the affidavits and briefs submitted and filed by counsel, and the oral arguments given by counsel, the trial court ordered “that the monthly payments be forthwith guaranteed by an annuity or trust which shall be funded by securities or other assets transferred by [appellant] in an amount calculated to be sufficient to meet the required payments . . . .” It is from this order that appellant appeals.

This court recognizes the rule that a trial court’s rulings and decisions are presumed to be correct, and this court will not seek reasons to reverse. Lytle v. Morgan, 270 N.W.2d 359 (S.D.1978); Shaffer v. Honeywell, 249 N.W.2d 251 (S.D.1976); Custer County Bd. of Ed. v. State Com’n on E. & S. Ed., 86 S.D. 215, 193 N.W.2d 586 (1972). This presumption does not exist, however, when the appellate review is based entirely on a written record. National Surety Corporation v. Shoemaker, 86 S.D. 302, 195 N.W.2d 134 (1972); Brewster v. F. C. Russell Company, 78 S.D. 129, 99 N.W.2d 42 (1959); Credit Management Service v. Wendbourne, 76 S.D. 80, 72 N.W.2d 926 (1955). In this case there is no presumption that the lower court is correct, so this court’s review of the record is the same as the trial court’s.

Appellant argues that he should not have been required to forthwith guarantee all monthly payments to appellee. It is undisputed between the parties that any payments due during appellee’s lifetime and after appellant’s death must be guaranteed, but they disagree as to when the guarantee is to be made and what additional payments, if any, the guarantee is to cover. Appellant argues that the guarantee is to be established at the time of his death for any payments due thereafter, while appel-lee argues that appellant is to guarantee all payments now.

“The primary rule in the construction of contracts is that the court must, if possible, ascertain and give effect to the mutual intention of the parties.” Huffman v. Shevlin, 76 S.D. 84, 89, 72 N.W.2d 852, 855 (1955). In order to determine the intent of the parties in this case, we must interpret their agreement as written. Kansas City Life Ins. Co. v. Wells, 133 F.2d 224 (8th Cir. 1943). We are not modifying the agreement which they made, since modification of an agreement is not included in the interpretation of it. Chaffee v. Chaffee, 19 Wash.2d 607, 145 P.2d 244 (1944).

Also, a contract must be construed as a whole, not just a detached portion of it. City of Sioux Falls v. Henry Carlson Co., 258 N.W.2d 676 (S.D.1977); Eberle v. McKeown, 83 S.D. 345, 159 N.W.2d 391 (1968); Bedell v. Steele, 71 S.D. 609, 28 N.W.2d 369 (1947). The latter portion of the provision currently in question cannot be detached and construed without regard to the entire provision.

Although both parties agree that no ambiguity exists in the provision, even though they reach different conclusions as to its meaning, determination whether or not words used in a contract are ambiguous is usually a question of law to be decided by the court. Jensen v. Pure Plant Food Intern., Ltd., 274 N.W.2d 261 (S.D.1979); Employers Liability Assurance Corporation v. Morse, 261 Minn. 259, 111 N.W.2d 620 (1961). In addition, an ambiguity is not of itself created simply because the parties [779]*779differ as to the interpretation of the contract. Burns v. Burns, 169 Colo. 79, 454 P.2d 814 (1969); Brunton v. International Trust Co., 114 Colo. 298, 164 P.2d 472 (1945).

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Bluebook (online)
291 N.W.2d 776, 1980 S.D. LEXIS 283, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-johnson-sd-1980.