The
SD Supreme Court handed down two decisions this morning:
- Administration of inmate’s Holographic Will upheld;
- Military Retirement pay, including disability benefits,
adjudicated in divorce proceeding – In opinion dated December 7, Pearl
Harbor Day, substantial relief accorded to Green Beret Husband;
Summaries
follows:
ESTATE
OF HUBERT, 2022 S.D. 73: Inmate at SD’s
women’s penitentiary left holographic will which the SD Supreme Court
previously examined in Estate of Hubert, 2016 S.D. 74 (Hubert I). The dispute in this case is between the
long-time friends and the inmate’s brother.
The inmate’s will gave the her long-time friends basically everything
subject to 3 conditions and appointed the friends as personal
representatives. The will disinherits
all of testator’s family except for a discretionary portion to be allocated to
her brother. Inmate’s will also provides
for the care of the testator’s pet bird Cocky and purports to allocate money to
the ACLU for the purpose of funding litigation “to
correct injustices at SDWP [South Dakota Women’s Penitentiary] in Pierre.” On remand from Hubert I,
the trial court ultimately approved the proposed disposition set forth by the
inmate’s long-time friends and ruled against the inmate’s brother on his
assertions. The SD Supreme Court
affirmed in a unanimous (5-0) ruling, with opinion authored by Chief Justice
Jensen. Circuit Judge Klinger sat on this case, in lieu of Justice Myren.
COOK
v. COOK, 2022 S.D. 74: The trial court
adjudicated a divorce proceeding between H & W, ages 79 & 78 at the
time of trial. This was “lengthy marriage,”
with H having acquired military retirement pay which included disability
payments -- as a result of his service as a Green Beret in the U.S. Army
Special Forces. H appeals the trial
court’s ruling which ordered him to pay W $1,500 per month permanent alimony
and which ordered him to pay W cash of $201,130 which payment was designed to
equalize assets and which would compensate W for assets which H allegedly “had
dissipated in violation of SDCL 25-4-33.1,” during the pendency of the
proceeding. The SD Supreme Court
reversed and remanded, awarding H substantial relief on appeal. A major part of this decision involves
treatment of military retirement pay which includes a portion for disability
benefits. (NOTE: I recommend attorneys who are called upon to deal
with military benefits in the future read this decision carefully before
undertaking to make arguments.) The
Court holds that the trial court inappropriately treated $117,405 as marital
property because this amount was clearly shown to be allocated to H as
disability payments which are, as a matter of federal law, separate
property. The Court also holds that the
trial court’s handling of the remaining portion of H’s military retirement pay
was not in accordance with the principles established in SD law. Additionally, the Court reverses and remands
the issue of alimony because of the impact to be realized after “division
of property” is
accomplished. As to the assertion that H
dissipated assets, the Court finds that the lower court’s ruling is “clearly
erroneous.” Requests for appellate attorney fees, made by
both H & W, were denied. The Court’s
ruling is unanimous (5-0) with opinion authored by Chief Justice Jensen.
These decisions may be accessed at
http://ujs.sd.gov/Supreme_Court/opinions.aspx .
