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2013 S.D. 27

IN THE SUPREME COURT

OF THE

STATE OF SOUTH DAKOTA

* * * *

MICHELE K. ROSETH

n/k/a MICHELE K. HOLIEN, Plaintiff and Appellee,

v.

CALVIN A. ROSETH, Defendant and Appellant.

* * * *

APPEAL FROM THE CIRCUIT COURT OF

THE THIRD JUDICIAL CIRCUIT

CODINGTON COUNTY, SOUTH DAKOTA

* * * *

THE HONORABLE RONALD K. ROEHR

Judge

* * * *

THOMAS M. FRANKMAN

TIMOTHY M. GEBHART of

Davenport, Evans, Hurwitz

 & Smith, LLP

Sioux Falls, South Dakota Attorneys for plaintiff

and appellee.

RAYMOND D. RYLANCE of

Wiles & Rylance, LLP

Watertown, South Dakota

and

DAVID L. GANJE

Rapid City, South Dakota Attorneys for defendant

and appellant.

* * * *

CONSIDERED ON BRIEFS

ON FEBRUARY 12, 2013

OPINION FILED 03/27/13
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GILBERTSON, Chief Justice

[¶1.] Calvin Roseth and Michele Holien entered into an agreement 

regarding payment of their children’s post-high school educational expenses as part 

of their divorce. Calvin and Michele’s youngest child Jason pursued a double major 

in college and took five years to complete his undergraduate degree. Additionally, 

during Jason’s fifth year of college, Jason was accepted into several two-year 

master’s degree programs in the field of music performance. At the end of Jason’s

senior year of college, Calvin began disputing his obligation to continue paying his 

share of Jason’s educational expenses. Michele argued that the terms of the parties’

agreement required Calvin to pay his share of Jason’s expenses for Jason’s fifth 

year of college, as well as for Jason’s first year of graduate school. The circuit court 

found that the parties’ agreement was unambiguous, and ordered Calvin to pay his 

share of the expenses associated with Jason’s fifth year of undergraduate studies

and Jason’s first year of graduate school. Calvin appeals. 

FACTS

[¶2.] Calvin and Michele divorced in 1997. As part of their divorce, Calvin 

and Michele entered into a Stipulation and Agreement (the Agreement) on July 15, 

1997. The Agreement was incorporated into the parties’ Judgment and Decree of 

Divorce. Paragraph 19 of the Agreement provides: 

In the event either child of the parties enrolls as a full time 

student in a recognized and accredited institution of higher 

education or vocational training within nine months following 

graduation from high school, each party shall pay his or her prorata share of room, board, tuition, fees, and books, until 

completion of said course of study or age 25, whichever first 

occurs. The pro-rata share of each parent shall be equal to the 
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percentage which would be utilized for calculation of child 

support if the same were to be calculated at that time. 

[¶3.] Calvin and Michele had three children during their marriage. The 

parties’ oldest daughter attended Augustana College for approximately two-and-ahalf years, and their other daughter obtained a four-year degree from Northern 

State University. Calvin and Michele paid their respective shares of the girls’ room, 

board, tuition, fees, and books (educational expenses) during those years. Jason 

Roseth is the parties’ youngest child. He was born on September 5, 1988. Calvin’s 

payment of his pro-rata share1 of Jason’s educational expenses is the subject of this 

appeal. 

[¶4.] Jason graduated from high school in the spring of 2007. In the fall of 

2007, Jason began attending Augustana College in Sioux Falls, South Dakota, as a

music major with an emphasis on trombone performance. Jason’s career goal was 

to become a professional musician and to play professionally in a symphony. On the 

advice of his instructor, Vance Shoemaker, Jason added accounting as a second 

major during his sophomore year of college.2 Shoemaker recommended that Jason 

add a second major because it was difficult for music performance majors to get a 

job and make a career out of performing. In accordance with the terms of the 

 

1. At the time of this dispute, Calvin’s pro-rata share of Jason’s educational 

expenses was 71 percent, and Michele’s pro-rata share was 29 percent. 

2. Calvin was unaware of Jason’s addition of the accounting major, as the two 

had not been in contact for several years. 
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Agreement, Calvin paid his pro-rata share of Jason’s educational expenses during 

Jason’s freshman, sophomore, junior, and senior years of college.3 

[¶5.] On May 5, 2011, Calvin received a letter from Michele updating Calvin 

on Jason’s plan to continue his education. Up until this point, Calvin believed 

Jason would be graduating from Augustana College with a degree in music in May 

2011. In the letter, Michele informed Calvin that Jason would not be graduating in 

May 2011. Instead, Michele informed Calvin that: Jason was registered for the first 

summer session at Augustana College; Jason would be attending Augustana

College in the fall to complete a fifth year of undergraduate studies; and Jason 

planned to attend graduate school following his graduation in May 2012. After 

receiving Michele’s letter, Calvin requested a copy of Jason’s transcript. Upon 

reviewing Jason’s transcript, Calvin believed Jason should have been able to 

graduate from Augustana College in May 2011 with a music major.

[¶6.] In order to receive an undergraduate degree from Augustana College, a 

student must complete a total of 130 credit hours. Approximately 60 of these 

credits are general education requirements (core classes) that all students must 

complete. To obtain a bachelor of arts in music, 45 of the 130 credits must be in 

music.4 Further, to obtain a degree in accounting, a student must complete 31 

 

3. By the end of the spring 2011 semester (Jason’s senior year of college), Calvin 

had made all payments except for a payment of $412.72, which was his prorata share of expenses that stemmed from some of Jason’s spring 2011 

accompaniment and book/supply costs and a portion of Jason’s summer book 

costs. 

4. There are certain music classes that satisfy the 45-credit requirement. 
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credits, plus 14 additional hours of supporting credits, for a total of 45 credits. 

Thus, for a student to graduate with a double major in music and accounting, the 

student must complete a total of 150 credits. 

[¶7.] By the end of the spring of 2011, Jason had completed 141 credit 

hours. Seventy of those credits were in music, and Jason admitted that as of May 

2011 he had completed all courses required to obtain his music major. However, 

despite having more credits than necessary for a music degree, Jason was not

eligible for graduation in May 2011 because he had not completed three core classes 

he was required to complete in order to obtain a bachelor’s degree. Specifically, 

Jason still needed to complete a speech course, a religion course, and a capstone 

course in order to be eligible for graduation. The capstone course, which students 

typically took during their senior year, was offered every fall semester, interim, 

spring semester, and summer session. Additionally, the speech and religion courses 

were offered each semester, and Jason could have taken these courses any year.5 

Calvin believed Jason chose not to take these required courses in order to prolong

his education. 

[¶8.] Ultimately, Jason completed the required speech and religion courses 

during the summer session in 2011. During the fall of 2011, Jason took 6 credits 

that were required for his accounting major, and 6 credits that were music electives. 

The music electives were not required in order for Jason to obtain his bachelor’s 

degree. Calvin believed Jason took these credits in order to maintain his status as a 

 

5. At the hearing, Sharon Neish (the Assistant Registrar at Augustana College) 

clarified that the religion course could be taken any time after a student’s 

first year of college. 
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full-time student, which was a condition of Calvin’s payment of Jason’s educational 

expenses pursuant to Paragraph 19 of the Agreement. Further, although the 

capstone course was offered during the summer session, fall semester, and interim, 

Jason did not complete the required capstone course until the spring 2012 semester. 

In addition to the 3-credit capstone course, Jason took 4 credits that were required 

for his accounting major, and 5 credits of unrequired music electives during the

spring of 2012. Jason graduated from Augustana College in May 2012 after 

completing a total of 167 credits. 

[¶9.] On June 3, 2011 (after Jason finished his senior year at Augustana), 

Calvin filed a motion requesting a determination that he had satisfied his obligation

to pay his pro-rata share of Jason’s educational expenses. Alternatively, if the 

circuit court determined that he had not satisfied his obligation as of May 2011, he 

requested that the circuit court determine his obligation for continued payment of 

Jason’s educational expenses. At the same time, Calvin deposited his share of 

Jason’s summer 2011 educational expenses with the clerk of courts. The parties 

later agreed that Calvin would not be required to pay any additional money to the 

clerk of courts during the pendency of the action. On March 13, 2012 (during the 

spring semester of Jason’s fifth year at Augustana), Michele filed a motion 

requesting that the circuit court enforce Paragraph 19 of the Agreement. 

[¶10.] The circuit court held a hearing on April 5, 2012, to address the 

parties’ motions. Calvin testified that he understood the phrase “course of study” 

within Paragraph 19 of the Agreement to mean an undergraduate degree with a 

single major. Calvin argued that because Jason should have completed his “course 
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of study” by graduating with a music major in May 2011 (but intentionally 

prolonged his graduation by putting off three core classes), Calvin was no longer 

obligated to pay his pro-rata share of the educational expenses Jason incurred after 

May 2011. Alternatively, Michele testified that “course of study” was not intended 

to be confined to an undergraduate degree in a single major, but instead included 

an undergraduate degree with multiple majors and also included graduate school. 

Thus, Michele argued that Calvin was obligated to pay his pro-rata share of Jason’s 

educational expenses for the summer 2011 session, the fall 2011 semester, the

spring 2012 semester, and the first year of Jason’s two-year master’s degree 

program.6 

[¶11.] In addition to their own testimony and testimony from Jason, during 

the hearing both parties presented testimony from witnesses7 in support of their

respective understandings of Paragraph 19 of the Agreement. The circuit court 

reserved ruling on objections to the admission of various parol evidence during the 

hearing, subject to its later determination of whether or not Paragraph 19 of the 

Agreement was ambiguous. Ultimately, the circuit court determined that 

 

6. As Jason will turn 25 before his second year of graduate school, Michele 

admits that Calvin is not obligated to pay for Jason’s second year of graduate 

school pursuant to Paragraph 19 of the Agreement. 

7. Sharon Neish, the Assistant Registrar at Augustana College, testified that a 

“course of study” was one major leading towards a bachelor’s degree. Vance 

Shoemaker, a music instructor at Augustana College, testified that Jason’s 

“course of study” was music performance, and that Jason could not complete 

his “course of study” and achieve his goal of being a professional musician 

without attending graduate school. Shoemaker also testified that the

accounting major was necessary to Jason’s “course of study” due to the 

difficulties associated with making a career out of music performance. 
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Paragraph 19 of the Agreement was unambiguous and that all parol evidence was

consequently inadmissible. Further, the circuit court concluded that the phrase 

“course of study” was broad and was not restricted to an undergraduate degree or 

one major. As a result, the circuit court granted Michele’s motion. On June 15, 

2012, the circuit court entered an order (along with findings of fact and conclusions 

of law) requiring Calvin to pay his pro-rata share of Jason’s educational expenses 

for the summer 2011 session, the fall 2011 semester, the spring 2012 semester, and 

for Jason’s graduate school until Jason turned 25. The circuit court also ordered 

Calvin to pay the $412.72 he owed from the spring of 2011, along with some other 

expenses. Calvin appeals, arguing the circuit court erred in concluding that

Paragraph 19 of the Agreement obligated him to pay his pro-rata share of Jason’s 

educational expenses for the summer 2011 session, Jason’s fifth year of

undergraduate studies, and Jason’s first year of graduate school. 

ANALYSIS AND DECISION

[¶12.] Whether the circuit court erred in determining that Paragraph 

19 of the Agreement was unambiguous, and that Calvin was 

required to pay his pro-rata share of Jason’s educational 

expenses for the summer 2011 session, Jason’s fifth year of 

college at Augustana, and Jason’s first year of graduate school.

[¶13.] “Contractual stipulations in divorce proceedings are governed by the 

law of contracts.” Duran v. Duran, 2003 S.D. 15, ¶ 7, 657 N.W.2d 692, 696 (quoting 

Pesika v. Pesika, 2000 S.D. 137, ¶ 6, 618 N.W.2d 725, 726). “Contract interpretation 

is a question of law reviewable de novo.” Pankratz v. Hoff, 2011 S.D. 69, ¶ 10 n.1, 

806 N.W.2d 231, 235 n.1 (quoting Ziegler Furniture & Funeral Home, Inc. v. 

Cicmanec, 2006 S.D. 6, ¶ 14, 709 N.W.2d 350, 354). “Because we can review the 

contract as easily as the trial court, there is no presumption in favor of the trial 
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court’s determination.” Id. (quoting Ziegler Furniture, 2006 S.D. 6, ¶ 14, 709 

N.W.2d at 354). Further, “whether the language of a contract is ambiguous is a 

question of law for the court, which is reviewable de novo.” LaMore Rest. Grp., LLC 

v. Akers, 2008 S.D. 32, ¶ 31, 748 N.W.2d 756, 765 (citing All Star Constr. v. Koehn, 

2007 S.D. 11, ¶ 33, 741 N.W.2d 736, 744). 

[¶14.] “In determining the proper interpretation of an agreement 

incorporated into a divorce decree, a court must seek to ascertain and give effect to 

the intention of the parties.” Kier v. Kier, 454 N.W.2d 544, 547 (S.D. 1990) (citing 

Malcolm v. Malcolm, 365 N.W.2d 863, 865 (S.D. 1985)). Further, “[i]n determining 

the intention of the parties, the Court must look to the language that the parties 

used.” Id. (quoting Malcolm, 365 N.W.2d at 865). “When the meaning of 

contractual language is plain and unambiguous, construction is not necessary.” 

Pesika, 2000 S.D. 137, ¶ 6, 618 N.W.2d at 726 (citing Alverson v. Nw. Nat.’l. Cas. 

Co., 1997 S.D. 9, ¶ 8, 559 N.W.2d 234, 235). This is because “the intent of the 

parties can be derived from within the four corners of the contract.” Vander Heide 

v. Boke Ranch, Inc., 2007 S.D. 69, ¶ 37, 736 N.W.2d 824, 835 (citing Spring Brook 

Acres Water Users Ass’n, Inc. v. George, 505 N.W.2d 778, 780 n.2 (S.D. 1993)). 

However, “[i]f a contract is found to be ambiguous the rules of construction apply.” 

Pesika, 2000 S.D. 137, ¶ 6, 618 N.W.2d at 726.

[¶15.] “A contract is not rendered ambiguous simply because the parties do 

not agree on its proper construction or their intent upon executing the contract.”

Vander Heide, 2007 S.D. 69, ¶ 37, 736 N.W.2d at 836 (quoting Pesika, 2000 S.D. 

137, ¶ 10, 618 N.W.2d at 727). Instead, “a contract is ambiguous only when it is 
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capable of more than one meaning when viewed objectively by a reasonably 

intelligent person who has examined the context of the entire integrated 

agreement.” Id. (quoting Pesika, 2000 S.D. 137, ¶ 10, 618 N.W.2d at 727). If a 

writing is found to be ambiguous, parol evidence “is admissible to explain the 

instrument.” LaMore Rest. Grp., 2008 S.D. 32, ¶ 30, 748 N.W.2d at 764 (quoting 

Jensen v. Pure Plant Food Int’l Ltd., 274 N.W.2d 261, 264 (S.D. 1979)). However, 

“parol or extrinsic evidence may not be admitted to vary the terms of a written 

instrument or to add or detract from the writing.” Arrowhead Ridge I, LLC v. Cold 

Stone Creamery, Inc., 2011 S.D. 38, ¶ 13, 800 N.W.2d 730, 734 (quoting Brookings 

Mall, Inc. v. Captain Ahab’s, Ltd., 300 N.W.2d 259, 262 (S.D. 1980)). Thus, parol 

evidence “is resorted to where the ambiguity may be dispelled to show what the 

parties meant by what they said but not to show that they meant something other 

than what they said.” Id. (quoting Brookings Mall, 300 N.W.2d at 262). 

[¶16.] The outcome of this case essentially hinges upon the interpretation of 

the phrase “course of study” as used within Paragraph 19 of the Agreement. The 

circuit court concluded Paragraph 19 of the Agreement was unambiguous, and gave 

the phrase “course of study” a broad construction. On appeal, both parties argue 

that the phrase “course of study” is unambiguous8 and that the plain meaning of 

the phrase reinforces their divergent interpretations of Paragraph 19 of the 

Agreement. As a matter of law, we disagree. Instead, we find that the phrase 

 

8. Michele argues in the alternative that even if the phrase “course of study” as 

used within Paragraph 19 of the Agreement is ambiguous, parol evidence 

supports Michele’s claim that “course of study” was not meant to be limited to 

the completion of an undergraduate degree with a single major. 
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“course of study” as used within Paragraph 19 of the Agreement is ambiguous.9 As 

a result, parol evidence is admissible to explain the meaning of Paragraph 19 of the 

Agreement. 

[¶17.] Although the circuit court ultimately excluded all parol evidence, the 

circuit court allowed parol evidence to be presented at the parties’ motions hearing 

subject to the circuit court’s later ruling on the admissibility of the evidence. Thus, 

this Court has a sufficient record from which we can determine the meaning of 

“course of study” as used within Paragraph 19 of the Agreement. At the hearing,

Calvin testified that age 25 was used in Paragraph 19 of the Agreement to allow the 

parties’ children to take a break from their undergraduate studies and still be able 

to receive payments from Calvin and Michele if they later resumed those studies 

before turning 25. 

[¶18.] In contrast, Michele testified the parties used the language requiring 

each parent to pay his or her pro-rata share of the children’s educational expenses

“until completion of said course of study or age 25, whichever first occurs” in 

Paragraph 19 of the Agreement based upon the ambitions of the parties’ oldest 

daughter, who entered college in 1998 as a biology major. Michele testified that the 

parties’ oldest daughter had always intended to go to medical school and become a 

 

9. In Calvin’s reply brief, he argues that if Paragraph 19 of the Agreement is 

found to be ambiguous, this Court should apply the rule of construction that 

requires any ambiguities in a contract to be construed against the party that 

drafted the contract. Calvin asserts that Michele drafted Paragraph 19 of the 

Agreement, and thus any ambiguity should be construed against her. 

However, the circuit court made no findings on this issue, and from the 

record it is unclear who drafted Paragraph 19 of the Agreement. Thus, 

Calvin’s argument does not affect our resolution of this case.
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physician. With their daughter’s goals in mind, Michele testified that the parties 

used the phrase “course of study” with the intent that the parties would pay for 

their daughter to complete her education. Further, Michele explained that the 

parties agreed to use age 25 in Paragraph 19 of the Agreement because they knew a 

degree in medicine required several years of schooling beyond an undergraduate 

education. The parties’ oldest daughter was 17 at the time she entered college in 

1998. Given that medical school typically takes four years, the parties’ oldest

daughter would have turned 25 during her final year of medical school. Thus, 

Michele argues that Paragraph 19 of the Agreement was intended to encompass 

more than an undergraduate education. 

[¶19.] As additional support for her understanding of Paragraph 19 of the 

Agreement, Michele offered evidence that in December 1998, Calvin proposed that 

the parties change the age limit in Paragraph 19 of the Agreement from 25 to 23. 

Michele did not agree to the change. In September 1999, Calvin again requested 

that the age limit in Paragraph 19 of the Agreement be changed. The second time 

he requested changing the age limit from 25 to 22. Michele also rejected this 

proposal. Michele asserts that this evidence supports her claim that the parties’ 

obligations under Paragraph 19 of the Agreement were not limited to their 

children’s undergraduate educations. Michele asserts that Calvin’s attempt to 

lower the age limit suggests that Calvin changed his mind about wanting to pay for 

the children’s educational expenses beyond the undergraduate level. 

[¶20.] Overall, we conclude that the parol evidence presented at the hearing 

supports Michele’s claim that “course of study” as used within Paragraph 19 of the 
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Agreement includes graduate school. Therefore, under Paragraph 19 of the 

Agreement, Calvin is obligated to pay his pro-rata share of Jason’s master’s degree 

program educational expenses until Jason turns 25. 

[¶21.] Next, we reject Calvin’s claim that the phrase “course of study” as used 

within Paragraph 19 of the Agreement is limited to the completion of one major. 

Upon reviewing the parol evidence introduced by Michele, there is no indication 

that the parties meant for the phrase “course of study” to be limited to a single 

major. Further, at the hearing, Shoemaker testified that he recommended Jason 

add an accounting major because it was difficult to make a career out of performing 

music. Additionally, Shoemaker testified he recommended a double major to every 

music performance major he ever worked with because the field was so competitive. 

Thus, Shoemaker believed a double major was a necessary component of a “course 

of study” in music performance. In light of this testimony, we conclude that the 

phrase “course of study” as used within Paragraph 19 of the Agreement was not 

limited to a single major, and that Jason’s accounting major was encompassed 

within Jason’s “course of study” in music performance. 

[¶22.] We also reject Calvin’s claim that he is not obligated under Paragraph 

19 of the Agreement to pay for Jason’s educational expenses associated with the 

2011 summer session, the fall 2011 semester, and the spring 2012 semester because 

Jason should have been able to graduate with a music major in May 2011. Instead, 

we conclude that the courses Jason took during the summer of 2011, the fall of

2011, and the spring of 2012 were all part of Jason’s “course of study” in music 

performance. As discussed above, the phrase “course of study” as used within 
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Paragraph 19 of the Agreement includes Jason’s accounting major. Because the 

accounting credits Jason took during his fifth year at Augustana were all required 

in order for Jason to complete his accounting major, these credits were part of 

Jason’s “course of study” in music performance. In addition, Jason was required to

complete the speech, religion, and capstone courses in order to receive his 

undergraduate degree from Augustana College, making these credits part of Jason’s 

“course of study” in music performance. 

[¶23.] Further, although the music electives Jason took during his fifth year 

at Augustana were not required, these credits were nonetheless part of Jason’s 

“course of study” in music performance. At the hearing, Shoemaker explained that 

practice was essential to a “course of study” in music performance. He testified that 

these additional music credits were beneficial to Jason because they gave him more 

practice and allowed him to improve his playing abilities. Therefore, we conclude 

that Calvin is required to pay his pro-rata share of Jason’s educational expenses for 

the 2011 summer session, the fall 2011 semester, and the spring 2012 semester, as 

the credits Jason completed during these terms were part of his “course of study” in 

music performance. 

CONCLUSION

[¶24.] The phrase “course of study” as used within Paragraph 19 of the 

Agreement is ambiguous, making parol evidence admissible to explain the meaning 

of Paragraph 19 of the Agreement. The parol evidence presented at the parties’ 

motions hearing establishes that Paragraph 19 of the Agreement was intended to 

include graduate school and was not limited to an undergraduate education. In 
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addition, Calvin is obligated to pay his pro-rata share of Jason’s educational

expenses for the summer 2011 session and Jason’s fifth year of college at 

Augustana, as the credits Jason completed during this time period were part of his 

“course of study” in music performance. Therefore, we affirm. 

[¶25.] KONENKAMP, ZINTER, SEVERSON, and WILBUR, Justices, concur.