#23787-a-JKM 

2006 SD 34 

IN THE SUPREME COURT 

OF THE 

STATE OF SOUTH DAKOTA 

* * * * 

SHELLY NOVAK, Plaintiff and Appellee, 

 v. 

BRANDON G. NOVAK, Defendant and Appellant. 

* * * * 

APPEAL FROM THE CIRCUIT COURT OF 

THE FIRST JUDICIAL CIRCUIT 

YANKTON COUNTY, SOUTH DAKOTA 

* * * * 

HONORABLE GLEN W. ENG 

Judge 

* * * * 

WANDA L. HOWEY-FOX of 

Harmelink and Fox Attorneys for plaintiff 

Yankton, South Dakota and appellee. 

MELISSA B. NICHOLSON of 

Nicholson & Peterson Attorneys for defendant 

Sioux Falls, South Dakota and appellant. 

* * * * 

 CONSIDERED ON BRIEFS 

 ON FEBRUARY 13, 2006 

 OPINION FILED 04/05/06 
-1- 

#23787 

MEIERHENRY, Justice 

[¶1.] In this divorce case, the trial court included as part of the marital 

estate farm property inherited by the husband during the marriage. The trial court 

awarded one-half of the farm property to the wife, and the husband appeals. We 

affirm. 

FACTS 

[¶2.] Brandon and Shelley Novak were married on August 20, 1988. Over 

the course of their marriage, the couple had five children. Approximately nine 

years into their marriage, Brandon inherited farm property from his great uncle on 

his mother’s side of the family. The family had owned the farm for over one 

hundred years. Seven years after Brandon inherited the property, Shelley sued for 

divorce. After hearing the evidence at trial, the court ordered the division of the 

marital assets and liabilities and awarded both parties, as tenants in common, the 

real estate inherited by Brandon, which consisted of 389 acres of farm land near 

Verdigre, Nebraska. Brandon appeals from the trial court’s judgment and decree of 

divorce. He argues that the trial court erred by granting Shelley a one-half interest 

in the farm. 

DECISION

[¶3.] We review a trial court’s division of marital property under the abuse 

of discretion standard. Godfrey v. Godfrey, 2005 SD 101, ¶11, 705 NW2d 77, 80. 

We find an abuse of discretion when discretion is exercised “to an end or purpose 

not justified by, and clearly against, reason and evidence.” Id. (citation omitted). 

Our inquiry is not whether we would have made the same decision, but “whether ‘a 
#23787 

-2- 

judicial mind, in view of the law and the circumstances of the particular case, could 

have reasonably reached such a conclusion.’” Id. (citation omitted). In an appeal of 

a divorce decree, we uphold findings of fact unless they are clearly erroneous. Id.

[¶4.] When a trial court grants a divorce, SDCL 25-4-44 allows the court to 

equitably divide the marital estate regardless of the ownership of the property. The 

statute provides: 

When a divorce is granted, the courts may make an equitable 

division of the property belonging to either or both, whether the 

title to such property is in the name of the husband or the wife. 

In making such division of the property, the court shall have 

regard for equity and the circumstances of the parties. 

SDCL 25-4-44. We have identified certain factors for a trial court to consider when 

dividing marital property. Billion v. Billion, 1996 SD 101, ¶18, 553 NW2d 226, 231. 

The factors also apply to the trial court’s determination of whether to include 

inherited property in the marital estate. Id. ¶21, 553 NW2d at 232. The factors to 

be considered are: (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.

[¶5.] Only where one spouse has made no or de minimis contributions to the 

acquisition or maintenance of an item of property and has no need for support, 

should a court set it aside as “non-marital” property. Id. Consequently, inherited 

property “is not ipso facto excluded from consideration in the overall division of 
#23787 

-3- 

property.” Id. ¶20, 553 NW2d at 232 (citations omitted). Likewise, a donor’s intent 

is not determinative. Godfrey, 2005 SD 101, ¶19, 705 NW2d at 81. 

[¶6.] Brandon claims that the trial court did not adequately address the 

seven factors before including the farm in the marital estate. He claims that it was 

his great uncle’s intent that the farm remain in the family and that the history of 

the family farm should weigh in favor of excluding it from the marital estate. The 

history of the farm involves over one hundred years of ownership by Brandon’s 

mother’s family. At some point the ownership vested in the great uncle. Because 

the great uncle had no children, the uncle relied on Brandon to help him with the 

farm work. While working together, the two developed a close relationship, 

described by Brandon as a “father-son” relationship. It is this relationship, along 

with the great uncle’s intention of keeping the farm in the family, which Brandon 

asserts prompted his uncle to leave the land to him, rather than other members of 

Brandon’s family such as the great uncle’s niece (Brandon’s mother). Additionally, 

Brandon claims that Shelley had little, if any, involvement in or control of the farm 

and that she made no contribution to its accumulation or improvement. Thus, 

Brandon argues that the trial court abused its discretion by awarding Shelley onehalf of the farm inherited by Brandon. 

[¶7.] Consequently, our task is to determine whether it was an abuse of 

discretion for the trial court to include the farm, valued at close to $200,000, in the 

marital estate. The couple’s total assets, including the farm, were valued at 

$266,741; their indebtedness was $70,696. Thus, the farm was the major asset in 

the marital estate. Had the court set aside the farm as inherited property belonging 
#23787 

-4- 

 

only to Brandon, the marital debt would have exceeded the assets, and Shelley 

would have been left with no assets while Brandon would have retained an asset 

valued at approximately $200,000.1

[¶8.] The trial court was faced with deciding what was equitable under the 

circumstances. In making the decision, the court took evidence concerning all of the 

seven relevant factors. At the time of trial, Shelley was 36 and Brandon was 37. 

The couple had been married for over 16 years and had five children, the oldest 

born in 1989 and the youngest born in 1996. Both parties received post-high school 

education—Brandon a two-year auto mechanic program and Shelley a four-year 

criminal justice program. During the marriage, Shelley worked several jobs before 

attending school, after which she worked as a jail officer. Brandon worked in 

manufacturing, as a postal carrier, and for the National Guard. Brandon’s monthly 

gross income was $3,298, while Shelley’s monthly gross income was $1,235. Neither 

claimed any health problems, and therefore both were competent to earn a living. 

[¶9.] The only asset which produced income was the farm. As the trial court 

stated when announcing his decision, “[t]he primary consideration here as everyone 

knows is the farmstead, or the farm.” The court acknowledged that the great uncle 

transferred title to Brandon and that the intent was to keep the farm in the family. 

Nevertheless, other evidence persuaded the court to consider it as marital property 

and award one-half to Shelley. The trial court entered findings of fact as follows: 

1. Brandon’s proposed property distribution divided the assets $34,409 to 

Shelley and $222,102 to him. His proposal did not indicate how the 

indebtedness should be divided, but at trial Brandon offered to assume the 

majority of the debt.
#23787 

-5- 

46.

Neb

. . . 

The primary asset for division in this divorce action is the 

raska real estate. 

50. The Nebraska real estate was transferred to [Brandon]’s 

name. 

51. The stated intent of the transfer was to keep the real 

estate in [Brandon]’s name. 

52. At the time of the transfer, the parties’ had been married 

ten (10) years. 

53. [Brandon]’s great uncle gave [Shelley] $10,000.00 even 

though no monies were given to any of the other in-laws 

with the exception of [Brandon]’s father, Larry Novak. 

54. The gift of the monies to [Shelley] by [Brandon]’s great 

uncle reflects that [Brandon]’s great uncle thought highly 

of the Plaintiff. 

55. The Court also looks at the operation of the Nebraska real 

estate. 

56. This is not a situation where the real estate is all suitable 

for row crops. 

57. Part of the real estate is an acreage, part of the real estate 

is crop ground, part of the real estate is hay land and part 

of the real estate is pasture. 

58. The money from the Nebraska real estate was not kept 

separate. 

59. No attempt was made by [Brandon] to segregate the 

money. 

60. The money received from the Nebraska real estate was 

used for various things including purchasing items used 

in the marriage. 

61. The Court has adopted the Defendant’s valuation of the 

Nebraska real estate in the amount of $200,000.00. 

62. When the Court is dealing with a long term marriage, all 

of the parties’ assets are to be considered. 

63. The parties have been married over sixteen (16) years. 

64. The Nebraska real estate is not an asset of recent origin, 

and thus, is not an asset which would not be subject to 

distribution. 

65. [Brandon]’s inheritance was received in 1998 during the 

course of the parties’ marriage and the Court believes 

that [Brandon]’s great uncle believed that the parties’ 

marriage would continue. 

[¶10.] Weighing in Shelley’s favor was the timing of the inheritance, that is, 

ten years into a sixteen year marriage. The court also noted the great uncle’s 
#23787 

-6- 

relationship with Shelley and the couple’s use of farm assets for marital needs. 

Further, the court considered evidence of Shelley’s involvement with the farm, 

which consisted of more than de minimis involvement. 

[¶11.] Without the inclusion of the inherited property, Shelley would have 

received nothing but debt from the marriage. Because the trial court divided the 

inherited property, he denied Shelley any alimony. The trial court explained: 

I am not awarding alimony. The court looks at it in two ways: 

One, the court has divided the debt equally. That debt includes 

the education debt. The court believes that by requiring Mr. 

Novak to pay for part of that education debt, he is in effect 

paying an alimony because it’s—she’s already had the education. 

He in effect has to help provide her with that by paying half of 

the debt. In addition, the court by dividing the inheritance, 

believes that it’s probably more than any alimony would ever be 

considered by this court. 

Sympathetic to Brandon’s desire to keep the farm in the family, the trial court gave 

Brandon six months from the date of the divorce decree to purchase Shelley’s 

interest in the farm for $93,801. 

[¶12.] As we said in Billion, “Only in the case where one spouse has made no 

or de minimis contributions to the acquisition or maintenance of an item of property 

and has no need for support, should a court set it aside as ‘non-marital’ property.” 

1996 SD 101, ¶21, 553 NW2d at 232. In order to reverse the trial court here, we 

would have to find that the court exercised its discretion “to an end or purpose not 

justified by, and clearly against, reason and evidence.” Godfrey, 2005 SD 101, ¶11, 

705 NW2d at 80. Based upon the record, we are unable to reach that conclusion. 

Therefore, the court’s judgment is affirmed, and Shelley is awarded appellate 

attorney’s fees as requested in the amount of $1,625. 
#23787 

-7- 

[¶13.] Affirmed. 

[¶14.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, and 

ZINTER, Justices, concur.