#29100-a-DG 2020 S.D. 45
IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA
****
ANNA MOECKLY and ROGER SCOTT ORR, Personal Representatives of THE SHARON L. ORR-HANSON ESTATE, Plaintiffs and Appellees,
v.
BENNET G. HANSON a/k/a BEN G. HANSON, Defendant and Appellant.
APPEAL FROM THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT CLAY COUNTY, SOUTH DAKOTA
THE HONORABLE TAMI BERN Judge
ROBERT B. DECK of Deck Law, PLC Sioux City, Iowa Attorneys for plaintiffs and appellees.
MICHAEL A. HENDERSON of Swier Law Firm, Prof. LLC Sioux Falls, South Dakota Attorneys for defendant and appellant.
CONSIDERED ON BRIEFS APRIL 20, 2020 OPINION FILED 07/29/20 #29100
GILBERTSON, Chief Justice
[¶1.] Personal representatives for the estate of Sharon Orr-Hanson brought
a partition action for property owned by Sharon and her husband, Bennet Hanson.
The circuit court held the property was owned as tenants in common and ordered
partition. Hanson appeals, arguing the property was held as joint tenants and
should go to him alone as the surviving joint tenant. We affirm.
Facts and Procedural History
[¶2.] Bennet Hanson (Hanson) and Sharon Orr-Hanson (Sharon) were
married in December 1994. The day of their wedding, Hanson and Sharon entered
into an antenuptial contract, which stated in relevant part that “[i]n the event of
death of either party, any property, real or personal, jointly held by the parties
acquired either prior to marriage or thereafter, shall be that of the survivor.” The
couple lived in Sioux City, Iowa for three years before moving to Burbank, South
Dakota.
[¶3.] They purchased the following described property in Burbank in 1996
“as joint tenants with right of survivorship and not as tenants in common:”
Lot 13 of the Ponderosa Addition and Ponderosa Drive, Parts of Lot 1, Section 2 and Lot 1, Section 3, Township 91 North, Range 51 West of the 5th P.M., and Accretion thereto, Clay County, South Dakota.
In 1998, Hanson and Sharon purchased the lot next door as joint tenants with right
of survivorship as well:
Lot 14 of the Ponderosa Addition and Ponderosa Drive, Parts of Lot 1, Section 2 and Lot 1, Section 3, Township 91 North, Range 51 West of the 5th P.M., and the Accretion thereto, Clay County, South Dakota.
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[¶4.] In December 2006, Craig Thompson, an attorney licensed in South
Dakota, drafted a warranty deed for Hanson and Sharon that conveyed Lot 14 to
themselves. The deed did not contain any language that it would be held as joint
tenants. In April 2007, Thompson drafted another warranty deed, entitled
“Corrective Warranty Deed.” The corrective deed did not correct anything except to
add Lot 13 to the already transferred Lot 14. The corrective deed also contained no
language that the property would be held as joint tenants. In May 2007, Hanson
and Sharon sold Lot 14.
[¶5.] Sharon was diagnosed with pancreatic cancer in October 2016 and
passed away in February 2017. Anna Moeckly, Sharon’s granddaughter, and Roger
Scott Orr, Sharon’s son from her first marriage, acting as personal representatives
(collectively, the Personal Representatives) of her estate, opened a probate in Polk
County, Iowa, where Sharon had been living between her cancer diagnosis and her
death. Sharon’s will stated in relevant part:
I give, devise and bequeath my one-half interest in and to my current residence which is located at 32193 Ponderosa Drive, Burbank South Dakota, to my children, . . . in equal shares, share and share alike, they to have and to hold the same absolutely and forever in fee.
The Personal Representatives opened an ancillary probate in Clay County, South
Dakota to deal with Sharon’s one-half interest in the Burbank property, which they
believed to be held as tenants in common.
[¶6.] In March 2017, Hanson asked Thompson to draft an affidavit for
termination of joint tenancy under SDCL 21-44-27 and gave Thompson the 1996
deed for Lot 13 to base the affidavit on. At that time, Thompson did not remember
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about the 2006 and 2007 deeds he had drafted and proceeded to draft the affidavit
to sever the joint tenancy. However, on May 1, 2017, after the affidavit had been
filed, Thompson sent Hanson a letter indicating that it had come to his attention
that the corrective deed changed the interests in Lot 13 to a tenancy in common, so
the affidavit to sever joint tenancy would have no effect.
[¶7.] The Personal Representatives brought this partition action to have the
property sold and the proceeds split evenly based on the belief that the property was
owned as tenants in common. Both Hanson and the Personal Representatives made
motions for summary judgment. The only dispute of consequence between the
motions was whether the property was held as joint tenants with rights of
survivorship or as tenants in common. The circuit court considered the motions at
separate hearings and denied them both, finding that the issue of how the land was
held was a disputed fact.
[¶8.] Hanson also made a motion to amend the pleadings to add a third-
party complaint against Moeckly, challenging Sharon’s will for undue influence and
lack of testamentary capacity. The circuit court determined that the amendment
would be futile, as Moeckly would not be liable to Hanson for any of Moeckly’s
claims against him in the partition action. In denying the motion, the court noted
that Hanson’s claim would be better brought in the probate matter because “[t]he
contest of a will is not a logical third-party complaint in this action for partition[.]”
The court also denied the motion based on “undue delay, bad faith on the part of the
moving party, and unfair prejudice to the unmoving party.”
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[¶9.] The parties originally set the case for a jury trial, but the Personal
Representatives made a motion to strike Hanson’s jury demand, and the circuit
court granted the motion because partition is an equitable action. The circuit court
later denied Hanson’s motion for reconsideration on that issue as well.
[¶10.] At the partition hearing, Moeckly, Thompson, and Hanson testified.
The court granted Hanson’s motion to exclude expert testimony from Thompson as
irrelevant, so Thompson testified only as to his drafting of the deeds and affidavit
and his interactions with Hanson and Sharon. Thompson recalled a conversation
with Hanson and Sharon in which they asked Thompson to draft the 2006 deed and
stated that they wanted to change the way the property was held to a tenancy in
common. Thompson further testified that he had minimal interactions with Hanson
in the process of drafting the wills, and that he did not remember specifically when
he would have met with Hanson and what the conversations had specifically
entailed. Hanson’s testimony expressed a different recollection of his and Sharon’s
interactions with Thompson. Hanson claimed the conversation regarding changing
the manner in which the property was held to a tenancy in common never
happened, and that he and Sharon met with Thompson at least once before each
deed was signed.
[¶11.] The circuit court held that the corrective deed terminated the joint
tenancy and created a tenancy in common. The court found Thompson’s and
Moeckly’s testimony credible, but found Hanson’s testimony not credible. The court
also found that after Sharon’s death, Hanson provided Thompson the 1996 deed,
rather than the 2007 corrective deed, in an attempt to fraudulently terminate
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Sharon’s estate’s interest when he knew the 2007 deed had changed title in the
property to tenants in common. Because partition was impractical, the circuit court
ordered the property sold and the proceeds divided between the one-half interests
held by Hanson and Sharon’s estate.
[¶12.] Hanson filed motions for a new trial and for relief from judgment and
order. Hanson also filed a motion for clarification of the memorandum opinion.
Hanson claims he never received notice that the court had extended the time to
respond to the motion for a new trial, so presumed that it had been denied by
operation of law and filed a notice of appeal. The circuit court determined that the
notice of appeal removed any jurisdiction it had over those motions. The circuit
court also granted a stay of judgment pending appeal. Hanson’s appeal raises three
issues:
1. Whether the circuit court erred in concluding the corrective deed severed the joint tenancy.
2. Whether the circuit court erred in concluding a jury trial was not appropriate.
3. Whether the circuit court based its decision on issues not properly before the court.
Analysis and Decision
[¶13.] Partition actions are equitable actions reviewed for abuse of discretion.
Gartner v. Temple, 2014 S.D. 74, ¶ 7, 855 N.W.2d 846, 850. A circuit court’s “factual
determinations are subject to a clearly erroneous standard.” Id. ¶ 8, 855 N.W.2d at
850 (quoting State v. Guthrie, 2002 S.D. 138, ¶ 5, 654 N.W.2d 201, 203). “We give
no deference to the circuit court’s conclusions of law, however, and review them
under a de novo standard.” Id.
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1. Whether the circuit court erred in concluding the corrective deed severed the joint tenancy.
[¶14.] Hanson argues that the circuit court erred in deciding that the
corrective deed severed the joint tenancy on Lot 13 and created a tenancy in
common. He emphasizes that the court never found that the four unities for joint
tenancy were destroyed and argues that the court’s reliance on SDCL 43-2-12, and
43-2-16 is misplaced. SDCL 43-2-12 provides: “A joint tenancy interest is one
owned by several persons in equal shares, by a title created by a single will or
transfer, when expressly declared in the will or transfer to be a joint tenancy, or
when granted or devised to personal representatives or trustees as joint tenants.”
SDCL 43-2-16 provides: “An interest in common is one owned by several persons not
in joint ownership or partnership.”
[¶15.] Hanson argues that SDCL 43-2-17 is the more relevant statute, but
that it is only concerned with interests at the time of creation, and he asserts that
the corrective deed did not create new interests. SDCL 43-2-17 provides: “Every
interest created in favor of several persons in their own right is an interest in
common . . . unless declared in its creation to be a joint interest, as provided in §§
43-2-12 to 43-2-14, inclusive.”
[¶16.] In South Dakota, a “joint tenancy exists when the four unities of time,
title, interest, and possession are present.” In re Estate of Hoffman, 2002 S.D. 129,
¶ 9, 653 N.W.2d 94, 98. A joint tenancy can be dissolved by destruction of one of the
four unities. Id. But a joint tenancy can also be severed if the joint tenants agree,
expressly or as implied from the parties’ conduct, to hold the title as tenants in
common. Zulk v. Zulk, 502 N.W.2d 116, 118 (S.D. 1993). The circuit court found
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intent to sever the joint tenancy within the corrective deed, as an agreement
between the parties. Sharon’s bequeathing a one-half interest in the property in
her will further supported the court’s finding.
[¶17.] Hanson’s response is that a deed is not the same as a contract, and
that the will, executed a decade after the deed was drafted, says nothing of Sharon’s
intent in 2007. More important than those issues, though, is the fact that joint
tenancy language does not appear in the corrective deed. Hanson focuses on a
general rule that silence does not serve as evidence of intent. He cites to multiple
out of state cases from different areas of the law stating as much. See, e.g., Horner
v. Jeffrey, 823 F.2d 1521, 1537 (Fed. Cir. 1987) (reaffirming that silence is not
evidence of Congressional intent); Van Houdnos v. Evans, 807 F.2d 648, 655 (7th
Cir. 1986) (holding silence in response to a discriminatory remark was not evidence
of discriminatory intent); Youngs v. Conley, 505 S.W.3d 305, 314 (Mo. Ct. App. 2016)
(providing that silence was not evidence of intent by an offeree to accept an offer
and create a contract).
[¶18.] Hanson also cites In re Estate of Potthoff, a decision from the Nebraska
Supreme Court that stated that “in order to be effective, ‘the act of severance must
clearly and unequivocally signify an intent to sever.’” 733 N.W.2d 860, 866 (Neb.
2007) (quoting 7 Richard Powell & Michael Allen Wolf, Powell on Real Property §
51.04[1] at 51-16 (2001)). But Hanson failed to acknowledge that same case’s
statement that while courts vary in determining what severs a joint tenancy, “most
courts agree that a joint tenancy may be severed when title to the property is
changed.” Id. “Such a change may result from a conveyance of a joint tenant’s or
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tenants’ full interest to a third party or directly to himself, herself, or themselves as
grantee or grantees[.]” Id.
[¶19.] In South Dakota, a joint tenancy must be expressly declared in the
property transfer. SDCL 43-2-12. If it is not expressly declared, the interest
created is a tenancy in common. SDCL 43-2-17. Hanson argues that SDCL 43-2-17
does not apply here because it involves creation of interests and he believes the
corrective deed did not create an interest. But changing the property interest by
transfer, even to oneself, creates a new interest. The corrective deed’s lack of
express declaration of a joint tenancy results in a tenancy in common.
[¶20.] Hanson additionally argues that any evidence of intent here, being
primarily based on Thompson’s testimony, is unsupported and speculative. He
claims that the court’s finding of intent is based on mischaracterization of the facts,
and that any statements about fraud by Hanson are “nonsensical” and “ludicrous.” 1
The Personal Representatives respond that Thompson was clear and honest in his
testimony about what he did and did not remember regarding conversations with
Hanson, the deeds, and the affidavit to sever the joint tenancy, and that the
findings are far from clearly erroneous. It is the circuit court’s role to judge the
credibility of witnesses, and “due regard shall be given to” those determinations.
1. Hanson’s counsel makes several assertions in the briefs that the circuit court acted in a “ludicrous” or improper manner and specifically attacked some of the court’s findings as “nonsensical.” After the proceedings below, Hanson’s counsel also filed a motion for a new trial accusing the judge of unfairness in not disclosing a prior work relationship with Thompson. The attacks on the judge’s fairness and credibility are unwarranted and unprofessional. They show an absence of the respect due to judges and all those who serve in our legal system. See, e.g., In re Discipline of Dorothy, 2000 S.D. 23, 605 N.W.2d 493; In re Discipline of Eicher, 2003 S.D. 40, 661 N.W.2d 354.
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SDCL 15-6-52(a). We will not overturn the court’s credibility determination based
on this record.
[¶21.] Finally, Hanson argues that severing the joint tenancy would violate
Hanson’s and Sharon’s antenuptial contract. He cites primarily to Miska v. Miska,
a Minnesota case in which a married couple entered an antenuptial agreement
requiring the husband to transfer a one-half interest in property to the wife as a
joint tenant with right of survivorship, and a subsequent quit-claim deed on the
property did not contain the joint tenancy language. No. A06-1393, 2007 WL
2106506, at *1 (Minn. Ct. App. July 24, 2007). Minnesota recognizes joint tenancies
“only through express declaration[,]” but the court determined that the absence of
that language in the deed was a drafting error that did not sever the joint tenancy.
Id. at *3. In that situation, the antenuptial agreement and deed were filed the
same day, which supported a finding that the parties intended not to change the
joint tenancy. Id. The case is not instructive here, where two different deeds were
made within a few months that did not include joint tenancy language, and where
the record shows Sharon proceeded to make her will under an assumption that her
interest in Lot 13 was as a tenant in common.
[¶22.] The Personal Representatives assert that the antenuptial contract’s
survivorship provision applied only to jointly held property, which Lot 13 no longer
was. Hanson argues that the term “jointly held” is not limited to property held in
joint tenancy, citing cases from multiple states. See Hoxie v. Page, 23 F. Supp. 905,
911-12 (D. R.I. 1938) (noting jointly held could mean tenancy in common); In re
Estate of Serovy, 711 N.W.2d 290, 294 (Iowa 2006) (including tenancy in common as
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jointly held property when interpreting Iowa’s Medicaid recovery statute); In re
Snortland’s Estate, 311 N.W.2d 36, 38 (N.D. 1981) (describing a tenancy in common
as jointly held property). Hanson also argues that the corrective deed did not
modify the antenuptial contract, and the contract should not be interpreted to be
meaningless. See Estate of Fisher v. Fisher, 2002 S.D. 62, ¶ 14, 645 N.W.2d 841,
846 (providing that “[a] contract should not be interpreted in a manner that renders
a portion of it meaningless”). See also Story v. Shircliffe, No. 2009-CA-000699-MR,
2010 WL 2428137, at *6 (Ky. Ct. App. June 18, 2010) (stating documents not
mentioning an antenuptial agreement did not amend the agreement).
[¶23.] The relevant section of the antenuptial agreement states: “In the event
of death of either party, any property, real or personal, jointly held by the parties
acquired either prior to marriage or thereafter, shall be that of the survivor.” The
antenuptial agreement also states that it is governed by Iowa law. Thus, we apply
Iowa law in addressing this issue. See, e.g., SDCL 25-2-18 (“Parties to a premarital
agreement may contract with respect to: . . . The choice of law governing the
construction of the agreement . . .”); Dunes Hosp., L.L.C. v. Country Kitchen Int’l,
Inc., 2001 S.D. 36, ¶ 10, 623 N.W.2d 484, 488 (“We have generally recognized that
parties may agree to be bound by the law of a particular state.”). “Jointly held
property” is defined in an Iowa statute as “property held in the name of two or more
persons under an arrangement in which all holders have concurrent interests and
under which the last surviving holder is entitled to the whole of the property.” Iowa
Code § 633E.2(5). This section of the antenuptial agreement, when applying Iowa
law, confirms survivorship rights for property held in joint tenancy at the death of
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one party. Even though this language is arguably superfluous, adopting Hanson’s
asserted interpretation of the agreement would require an expansion beyond the
language contained therein.
[¶24.] Antenuptial contracts are interpreted in the same way as any other
contract. Peet v. Monger, 56 N.W.2d 589, 593-54 (Iowa 1953). The central issue is
determining the parties’ intent. Walsh v. Nelson, 622 N.W.2d 499, 503 (Iowa 2001).
To determine that intent, “the antenuptial contract . . . must be taken by its four
corners and studied as a whole.” Peet, 56 N.W.2d at 593. Intent will be determined
through the language of the contract and surrounding circumstances. In re Estate
of Ascherl, 445 N.W.2d 391, 392 (Iowa Ct. App. 1989). Iowa law does not allow
antenuptial agreements to be amended, only “revoked, abandoned, or the rights
thereunder waived.” In re Marriage of Hansen, No. 17-0889, 2018 WL 4922992, at
*5 (Iowa Ct. App. Oct. 10, 2018).
[¶25.] While the corrective deed could not modify the antenuptial agreement,
here, the agreement states only that jointly held property be given to the survivor
upon the other’s death. Nowhere in the agreement does it state that property is
required to be held jointly. Hanson argues that the contract “contemplates that
whenever the parties acquire property together . . . that property must go to the
surviving spouse.” 2 But the agreement does not state that. It does not mandate
2. In support of his argument, Hanson refers to section seven of the antenuptial contract, which states:
Each party agrees that in the event that the marriage relationship shall result in separation, termination by dissolution, or cease by death of one of the parties, that he or she (continued . . .) -11- #29100
that property be acquired jointly, or that once property is acquired jointly its status
cannot be changed to a tenancy in common.
[¶26.] Therefore, the court did not err in determining that the antenuptial
agreement did not preclude Hanson and Sharon from holding Lot 13 as tenants in
common. The court also correctly concluded that without express language in the
deed, Hanson and Sharon did not hold Lot 13 as joint tenants, and partition is thus
appropriate. See SDCL 43-2-12, -17.
2. Whether the circuit court erred in concluding a jury trial was not appropriate.
[¶27.] Hanson next argues that the circuit court erred in concluding that this
was an equitable action so that Hanson was not entitled to a jury trial. Hanson
urges that the issue of whether the joint tenancy had been severed is a factual
question, requiring a jury’s determination before the parties could move into the
partition action.
________________________ (. . . continued) shall make no claim to any separate property of the other except as otherwise provided herein. Each party hereby waives all rights of dower, courtesy, homestead, distributive share, right of election against a will, widow’s allowances, any spousal rights to separate property which may accrue in dissolution, and any other marital right arising by virtue of statute or otherwise, in and to the separate property the other party now owns or may hereafter acquire directly with or from the proceeds of earnings from property presently owned by each party or acquired by inheritance or descent.
However, this section only relates a waiver of each party’s claim to the other’s separate property already owned or acquired after the marriage with separate funds. It does not restrict the manner in which property acquired with marital funds may be held.
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[¶28.] Hanson primarily cites to Kenny v. McKenzie, to support his argument,
relying on the statement that “only those issues which arise upon controverted facts
which are the foundation of a legal right or title require a jury trial when not
waived.” 25 S.D. 485, 127 N.W. 597, 601 (S.D. 1910). He argues there are
controverted facts here that require a jury trial.
[¶29.] However, Hanson’s argument ignores the fact that the right to a jury
trial does not exist for all civil cases. Granite Buick GMC, Inc. v. Ray, 2014 S.D. 78,
¶ 7, 856 N.W.2d 799, 802. Where the pleadings request equitable relief, or where
the legal relief is incidental, the decision to grant or deny a jury trial is at the trial
court’s discretion. 3 Id. “[D]isputed questions of fact can be involved in either legal
or equitable actions.” Id. ¶ 11, 856 N.W.2d at 804. “Therefore, the mere existence
of a dispute of fact does not dictate whether a claim is equitable or is one at law to
which the jury trial attaches.” Id. The question in determining if an action is at
law or equitable “is whether the ‘subject’ of the action ‘is the type of case in which
the movant would have been entitled to a jury trial in the common-law courts.’” Id.
¶ 9, 856 N.W.2d at 803 (quoting State v. One 1969 Blue Pontiac Firebird, 2007 S.D.
63, ¶ 18, 737 N.W.2d 271, 276).
[¶30.] This has been a partition action from the start, and partition is an
equitable proceeding. See Gartner, 2014 S.D. 74, ¶ 7, 855 N.W.2d at 850. Hanson
was not entitled to a jury trial, and the circuit court did not abuse its discretion in
denying one.
3. Even if a jury trial is granted, “unless the parties agree to a binding jury in an equitable action, the jury verdict is [only] advisory.” Granite Buick, 2014 S.D. 78, ¶ 7, 856 N.W.2d at 802.
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3. Whether the circuit court based its decision on issues not properly before the court.
[¶31.] Finally, Hanson argues that the circuit court’s decision should be
reversed because it relied in part on findings about Sharon’s mental competency
and possible undue influence in creating her will. Hanson argues that because the
court denied his motion to amend the pleadings, finding those issues improper to
raise in a partition action, it could not properly make those findings. Hanson cites
no authority in this portion of the brief. As such, he has waived the issue. State v.
Patterson, 2017 S.D. 64, ¶ 31, 904 N.W.2d 43, 52.
[¶32.] Even so, the issue is without merit. While the circuit court did
determine that the issues were not appropriate to bring as a third-party claim in
this partition action, Hanson’s counsel spent a significant amount of time cross-
examining Moeckly about her participation in making Sharon’s will shortly before
her death and questioned Moeckly about whether Sharon had ever been declared
incompetent. The line of questioning strongly hinted at the issue of undue
influence, and Hanson’s counsel specifically brought up undue influence in his
closing argument. Based on that testimony, it was not unreasonable for the court to
make its limited findings that Sharon “was mentally competent and had the
testamentary capacity to execute the Will[,]” and that “[t]here is no evidence that
she was susceptible to influence . . . in the drafting of her Will.” Further, the
findings had minimal effect on the issue of how the property was held.
Conclusion
[¶33.] The circuit court did not err in concluding that the corrective deed
severed Hanson’s and Sharon’s joint tenancy and created a tenancy in common.
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There was no express language of joint tenancy in the corrective deed, and the
antenuptial contract did not prevent Hanson and Sharon from holding the property
as tenants in common. Further, the court did not err in refusing Hanson’s request
for a jury trial in this equitable action. Hanson has waived the issue of the circuit
court’s findings regarding undue influence and testamentary capacity, but even so,
the findings were not clearly erroneous and had minimal effect on the outcome. The
circuit court’s decision is affirmed.
[¶34.] KERN, JENSEN, SALTER, and DEVANEY, Justices, concur.
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