Lowe v. Schwartz

2006 SD 48, 716 N.W.2d 777, 2006 S.D. LEXIS 80, 2006 WL 1668761
CourtSouth Dakota Supreme Court
DecidedJune 7, 2006
Docket23749
StatusPublished
Cited by9 cases

This text of 2006 SD 48 (Lowe v. Schwartz) 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
Lowe v. Schwartz, 2006 SD 48, 716 N.W.2d 777, 2006 S.D. LEXIS 80, 2006 WL 1668761 (S.D. 2006).

Opinions

ZINTER, Justice.

[¶ 1.] Mary C. Lowe failed to appeal from a final judgment and decree of divorce. Instead, she moved to vacate and modify the judgment under SDCL 15 — 6— 60(b). The trial court denied the motion. We affirm.

[778]*778Facts and Procedural History

[¶ 2.] Lowe and Karl M. Schwartz were married on August 23, 1997. At the time of the marriage, Lowe was a business consultant, and Schwartz was a member of the Coast Guard. Their 1997 federal income tax return reported that Lowe made $101,093 and that Schwartz had wages of $28,019.

[¶ 3.] In April 1998, approximately seven months after the marriage, Schwartz retired from the Coast Guard and began to receive monthly retirement benefits. After Schwartz’s retirement, Lowe’s income paid the vast majority of the household expenses. However, in June 2000, Lowe suffered a heart attack and was diagnosed with arteriosclerotic cardiovascular disease. Because of the stress of her job, Lowe was unable to continue working as a business consultant earning a substantial income.

[¶ 4.] Prior to Lowe’s diagnosis, the marital relationship had begun to deteriorate. Although Lowe and Schwartz attended counseling, they were unable to rehabilitate the marriage. In August 2003, Lowe filed for divorce alleging extreme cruelty and neglect.

[¶ 5.] At trial, it was established that after her illness, Lowe became self-employed, selling “beanie babies and beads” over the Internet. It was also established that during the course of the marriage Lowe’s net worth declined from $365,000 to $80,000. In comparison, Schwartz entered the marriage with virtually no assets and left the marriage with relatively little except his retirement. At the time of the divorce, he was earning between $2,200 and $2,500 per month as a truck driver. He was also receiving $1,359 per month from his Coast Guard retirement.

[¶ 6.] After considering the circumstances of the parties, the trial court granted the divorce on the grounds of extreme cruelty, divided the marital assets, and awarded Lowe alimony in the amount of $135 per month. The trial court requested that Lowe’s attorney prepare conforming findings of fact and conclusions of law. When Lowe’s attorney failed to prepare them, Schwartz’s attorney prepared proposed findings and conclusions. The trial court’s ultimate findings, conclusions, and judgment ordered that: 1) Lowe was entitled to alimony in the amount of $135 per month from Schwartz’s retirement benefit; 2) the $135 was to be used for Coast Guard survivor medical benefits (insurance); however, Schwartz was not entitled to any of the Coast Guard former spouse protection annuity; 3) Schwartz was to cooperate in completing the paperwork necessary to convert the Coast Guard “survivor benefit plan” to a “former spouse protection” plan for medical benefits only; 4) in the event Lowe was not eligible to receive the Coast Guard surviv- or medical benefits, Schwartz was not obligated to provide any alternative insurance or other monetary payment other than the $135; 5) Lowe was to satisfy a $4,300 judgment she had previously obtained against Schwartz;1 and 6) any of Schwartz’s property, that was subject to execution under the judgment was to be released.

[¶ 7.] Lowe did not object to the trial court’s findings of fact and conclusions of law, and she did not appeal the trial court’s final judgment. Instead, Lowe filed a motion to vacate and modify the judgment under SDCL 15 — 6—60(b). The trial court denied Lowe’s motion. Lowe appeals, raising the following issues:

[779]*7791) Whether Lowe was entitled to relief from the judgment on the ground that the value of Schwartz’s retirement plan was not considered a marital asset.
2) Whether Lowe was entitled to relief from the judgment on the ground that there was insufficient evidence to support the trial court’s findings of fact and conclusions of law.

Analysis and Decision

[¶ 8.] “The decision to grant or deny a motion under SDCL 15 — 6—60(b) rests with the sound discretion of the trial court and will not be disturbed on appeal unless there has been an abuse of discretion.” Walsh v. Larsen, 2005 SD 104, ¶ 6, 705 N.W.2d 638, 641 (quoting Porter v. Porter, 1996 SD 6, ¶ 4, 542 N.W.2d 448, 449 (citing Hrachovec v. Kaarup, 516 N.W.2d 309, 311 (S.D.1994))).

Rule 60(b)

[¶ 9.] Lowe’s motion alleges that Schwartz’s retirement plan was not considered a marital asset and that there was insufficient evidence to support some of the trial court’s findings of fact and conclusions of law. Before considering these underlying arguments, we must address the availability of Rule 60(b) relief. In considering the availability of Rule 60(b) relief, we note that each of Lowe’s underlying arguments could have been raised on a direct appeal. Lowe, however, did not appeal. Instead, she sought the “extraordinary remedy” of Rule 60(b) relief. See People ex rel. D.G., 2004 SD 54, ¶ 7, 679 N.W.2d 497, 500.

[¶ 10.] Rule 60(b), however, “is not a substitute for an appeal. It does not allow relitigation of issues that have been resolved by the judgment. Instead it refers to some change in conditions that makes continued enforcement inequitable.” Sjomeling v. Stuber, 2000 SD 103, ¶ 14, 615 N.W.2d 613, 616 (quoting 11 Charles A. Wright et al., Federal Practice and Procedure § 2863 (2d ed 1995)). See also United States v. Young, 806 F.2d 805, 806 (8thCir.1986) (“Rule 60(b) is not available as a substitute for appeal.”). Therefore, “[a]n appeal from a Rule 60(b) decision does not bring the original judgment up for review, but only the decision on the request for relief from the judgment under Rule 60(b).” Chester v. St. Louis Hous. Auth., 820 F.2d 259, 260 (8thCir.1987) (quoting Fox v. Brewer, 620 F.2d 177, 179-80 (8thCir.1980)).

[¶ 11.] Lowe’s motion was premised on SDCL 15-6-60(b)(l), which provides:

On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons:
(1) Mistake, inadvertence, surprise, or excusable neglect[.]

The intent of this rule is to “preserve the delicate balance between the sanctity of final judgments and the incessant command of a court’s conscience that justice be done in light of all the facts.” Action Carrier, Inc. v. United Nat’l Ins. Co., 2005 SD 57, ¶ 14, 697 N.W.2d 387, 391 (quoting Upper Plains Contracting Inc. v. Pepsi Americas, 2003 SD 3, ¶ 16, 656 N.W.2d 323, 328 (quoting Colton Lumber Co. v. Siemonsma, 2002 SD 116, ¶ 10, 651 N.W.2d 871, 874)).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Estate of Mack
2025 S.D. 7 (South Dakota Supreme Court, 2025)
Hiller v. Hiller
2015 SD 58 (South Dakota Supreme Court, 2015)
Rabo Agrifinance, Inc. v. Rock Creek Farms, Finnemans
2013 SD 64 (South Dakota Supreme Court, 2013)
Geier v. Geier
2013 S.D. 24 (South Dakota Supreme Court, 2013)
Lowe v. Schwartz
2007 SD 85 (South Dakota Supreme Court, 2007)
Glover v. Krambeck
2007 SD 11 (South Dakota Supreme Court, 2007)

Cite This Page — Counsel Stack

Bluebook (online)
2006 SD 48, 716 N.W.2d 777, 2006 S.D. LEXIS 80, 2006 WL 1668761, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lowe-v-schwartz-sd-2006.