#24632-a-RWS 

2008 SD 33 

IN THE SUPREME COURT 

OF THE 

STATE OF SOUTH DAKOTA 

* * * * 

STATE OF SOUTH DAKOTA 

EX REL. LORAINA WHITE, Plaintiff and Appellee, 

 v. 

JEFFREY B. BRANDT A/K/A 

JEFFREY BRIAN BRANDT, Defendant and Appellant. 

* * * * 

APPEAL FROM THE CIRCUIT COURT OF 

THE SECOND JUDICIAL CIRCUIT 

MINNEHAHA COUNTY, SOUTH DAKOTA 

* * * * 

HONORABLE KATHLEEN K. CALDWELL 

Judge 

* * * * 

LAWRENCE E. LONG 

Attorney General 

DAVID L. BRAUN 

Special Assistant Attorney General 

Pierre, South Dakota Attorneys for plaintiff 

and appellee. 

MICHAEL B. CREW of 

Crew and Crew 

Sioux Falls, South Dakota Attorneys for defendant 

And appellant. 

* * * * 

ARGUED FEBRUARY 13, 2007 

 OPINION FILED 04/16/08 
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SABERS, Justice 

[¶1.] In 1995, the State of South Dakota ex rel Loraina White obtained a 

default judgment against Jeffrey B. Brandt for child support arrearages. In 2007, 

Brandt submitted a motion to set aside the default judgment under SDCL 15-6-

60(b)(4). The circuit court denied the motion. Brandt appeals. We affirm. 

FACTS 

[¶2.] Brandt and White met in Sioux Falls, South Dakota, where they both 

resided. They began an intimate relationship but never married. They had a child, 

C.B., in March of 1992. In February 1993, White applied for benefits from the 

South Dakota Department of Social Services (DSS) and assigned her right to child 

support payments to the State. 

[¶3.] On August 30, 1993, Brandt was personally served with a summons 

and complaint alleging that he was the father of the child and owed $284 in child 

support per month. The complaint also requested child support arrearages from the 

time of the child’s birth. 

[¶4.] Brandt contacted the Office of Child Support Enforcement (OCSE) and 

met with the OCSE officer assigned to his case. He said he had been making 

support payments to White and requested a DNA test. He also spoke with the legal 

assistant to an attorney with OCSE and again requested DNA testing. Before DNA 

testing could be conducted, White left the state. Brandt received a letter from 

OCSE dated September 3, 1993, informing him that his case was being closed since 
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White had left the state.1 It also informed him that if White returned to South 

Dakota and received assistance, the State would again seek reimbursement. 

[¶5.] In July of 1994, Brandt moved to Tempe, Arizona. On December 21, 

1994, Brandt was personally served at his residence in Arizona with a second 

summons and complaint. This complaint alleged that Brandt owed $368 per month 

in child support, plus arrearages. 

[¶6.] Brandt did not respond to this complaint and a default judgment was 

entered on February 21, 1995. The default judgment declared Brandt the biological 

father of C.B., set his child support at $368 a month, and set the arrearages at 

$12,572.2 Instead of mailing the notice of entry of the default judgment to Brandt’s 

Tempe, Arizona residence, it was mailed to 301 South Willow Street in Sioux Falls, 

South Dakota, his parent’s residence. Brandt learned of this judgment, however, 

because he referenced the order of default judgment in his March 13, 1995, letter to 

the OCSE, in which he again requested DNA testing. OCSE informed Brandt that 

it required a court order for DNA testing because a judgment had been issued. 

Furthermore, Brandt was advised to contact an attorney and that collection of his 

support obligation would continue. 

[¶7.] At some point Brandt moved to Merida, Mexico. One day, Brandt 

received a phone call from a Federal Bureau of Investigation (FBI) agent who 

informed him there was a federal felony warrant for his arrest for failure to pay 

1. In Brandt’s deposition, he testified that, when she left the state, White told 

him that he was not C.B.’s father. 

2. This amount represented past child support arrearages ($12,512) plus the 

State’s recoverable costs and disbursements ($60). 
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child support. Brandt moved to Sioux Falls, South Dakota in August or September 

of 2003. Upon his return, he voluntarily turned himself in to the FBI. 

[¶8.] On September 12, 2003, Brandt pleaded guilty to violating 18 USC § 

228 for failure to pay lawful child support. He was sentenced in November of 2003 

to five years of supervised probation. He was also ordered to pay restitution of 

$49,123.25 for back child support, in payments of not less than $106 a month. 

[¶9.] On September 23, 2003, Brandt petitioned for modification of his child 

support. In his petition, he noted that he was the parent of C.B. After a hearing in 

front of a child support referee, his support obligation was reduced to $320 a month. 

[¶10.] Brandt filed a motion for relief from the default judgment on March 26, 

2007. At the hearing, he argued that the default judgment was void under SDCL 

15-6-60(b)(4). He alleged the judgment was void because the State did not give him 

notice of its application for a default judgment. He argued that he was entitled to 

notice because he made an appearance in the proceeding by requesting a DNA test 

from the OCSE officer and the legal assistant to the attorney for OCSE. The circuit 

court denied his motion. Brandt appeals. 

STANDARD OF REVIEW 

[¶11.] “The decision to grant or deny relief from a default judgment rests with 

the sound discretion of the trial court and we will not disturb the trial court’s 

decision absent an abuse of that discretion.” Roso v. Henning, 1997 SD 82, ¶5, 566 

NW2d 136, 139 (quoting First Fed. Sav. & Loan Ass’n v. Strub, 427 NW2d 836, 838 

(SD 1988). “An abuse of discretion occurs when ‘discretion [is] exercised to an end 

or purpose not justified by, and clearly against, reason and evidence.’” In re L.M.G., 
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2007 SD 83, ¶6, 738 NW2d 71, 73-74 (quoting Miller v. Jacobsen, 2006 SD 33, ¶18, 

714 NW2d 69, 76). The test for an abuse of discretion is not whether we would 

reach the same result, but rather, “whether we believe a judicial mind, in view of 

the law and the circumstances, could reasonably have reached that conclusion.” 

State v. Crawford, 2007 SD 20, ¶13, 729 NW2d 346, 349 (quoting Huber v. Dep’t of 

Pub. Safety, 2006 SD 96, ¶22, 724 NW2d 175, 180). 

[¶12.] Whether the default judgment is void because the State did not 

give Brandt notice of its application for a default judgment as 

provided in SDCL 15-6-55(b)(1). 

[¶13.] Brandt claims he made an “appearance” in this action by requesting 

DNA testing after service of the first summons and complaint. According to him, 

that means the State was obligated to give him notice of its application for a default 

judgment as required by SDCL 15-6-55(b)(1). Since the State did not provide the 

requisite notice, Brandt argues the default judgment is void. 

[¶14.] SDCL 15-6-55(b)(1) provides in relevant part that “[i]f the party 

against whom judgment by default is sought has appeared in the action, he (or, if 

appearing by representative, his representative) shall be served with written notice 

of the application for judgment at least three days prior to the hearing on such 

application.” The specific issue in this case is whether Brandt “appeared” in the 

action. 

[¶15.] Traditionally, in order to “appear” before a court, a party was required 

to file documents or actually appear before the court. “Courts now take an 

expansive view toward the definition of ‘appearance[.]’” Roso, 1997 SD 82, ¶7, 566 

NW2d at 139 (additional citations omitted). Instead of actually appearing or filing 
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documents, one must demonstrate to the opposing party a clear intent to defend 

against the lawsuit. See id. “Not every exchange between parties constitutes an 

appearance.” Nat’l Sur. Corp. v. Shoemaker, 86 SD 302, 311, 195 NW2d 134, 139 

(1972). 

[¶16.] In 1993, after receiving the first summons and complaint, Brandt 

requested DNA testing from the OCSE. He did not go beyond the request and never 

completed the testing while the action was pending, nor did he re-request the DNA 

test. However, the term “appearance” is construed liberally. See Roso, 1997 SD 82, 

¶7, 566 NW2d at 139 (additional citations omitted). In South Dakota, this request 

put the State on notice that Brandt intended to defend against the lawsuit. 

Therefore, this DNA request constituted an appearance in the action. 

[¶17.] On the other hand, when Brandt received the second summons and 

complaint in December of 1994, he did not request testing or even contact OCSE in 

any manner. Brandt argues that the proper service of a second summons and 

complaint did not start a new action. However, SDCL 15-2-30 provides that “[a]n 

action is commenced . . . when the summons is served on him[.]” The second 

summons was served on Brandt in December of 1994. The summons explained that 

Brandt had thirty days to answer the complaint and that failure to do so could 

result in a default judgment as requested in the complaint. No requests or 

“appearances” were made by Brandt after receipt of the second summons and 

complaint in December of 1994. 

[¶18.] Furthermore, the second complaint asked for different relief than the 

first complaint. The first complaint asked for $284 per month in child support, 
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while the second complaint asked for $368 per month in child support. The default 

judgment represented arrearages calculated using the $368 per month figure, not 

the $284 per month, and set the monthly child support obligation at $368. The 

proper service of the second summons and complaint constituted a second action. In 

view of the fact that Brandt did not make an appearance in the second action, no 

notice was necessary before the State applied for a default judgment.3 

[¶19.] Given that the motion for relief is not based on a void judgment, the 

only other avenue for relief from the judgment would be under SDCL 15-6-60(b)(6), 

“[a]ny other reason justifying relief from the operation of the judgment.” However, 

this motion must be made within a reasonable time. Id.; Anderson v. Somers, 455 

NW2d 219, 221 (SD 1990). Waiting twelve years after a default judgment does not 

3. Even if we considered the separate summons and complaints as one 

continuous action, we need not set aside the judgment for lack of notice. 

While an appearance requires notice of intent to take a default judgment to 

be given to the defendant, it does not make the judgment void under South 

Dakota law. Our case law suggests that the judgment is voidable. See 

Brockel v. Brockel, 80 SD 547, 549, 128 NW2d 558, 559 (1964) (noting that 

the failure to give the required notice was “an irregularity and default 

judgment entered without such notice was voidable.”); Peterson v. McMillan, 

70 SD 56, 58, 14 NW2d 97, 98 (1944) (noting that “[t]he judgment having 

been issued without such notice was irregular and voidable.”); see also Effect 

of failure to give due notice, 46 AmJur2d Judgments §288 n6 (updated Nov 

2007) (citing Brockel v. Brockel, 80 SD 547, 128 NW2d 558 (1964)); R.D. 

Hursh, Effect, under Rule 55(b)(2) of the Federal Rules of Civil Procedure and 

similar state statutes and rules, of failure, prior to taking default judgment 

against party who has appeared, to serve 3-day written notice of application 

for judgment, 51 ALR2d 837, §3[a], §3[b] (1957). Additionally, contrary to a 

void judgment, which can be attacked collaterally, Missouri ex rel Stormfeltz 

v. Title Guar. & Sur. Co., 72 F2d 595, 598 (8thCir 1937), a voidable judgment 

cannot be attacked collaterally, but must be challenged upon appeal. Id.; see 

also Voidable Judgments, 47 AmJur2d Judgments §751 (updated Nov 2007). 

In this case, the judgment is voidable, not void, and Brandt must 

demonstrate some reason other than SDCL 15-6-60(b)(4) to receive relief 

from the judgment in this collateral proceeding. 
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constitute “within a reasonable time,” and Brandt cannot obtain relief under this 

portion of the statute. 

[¶20.] Finally, Brandt cannot demonstrate the circuit court abused its 

discretion in refusing to grant relief because the doctrines of laches and judicial 

estoppel prevent him from obtaining relief. For laches to apply, the State has the 

burden of proving: “1) [Brandt] had full knowledge of the facts upon which the 

action was based, 2) regardless of [his] knowledge, [he] engaged in unreasonable 

delay in commencing suit, and 3) allowing [him] to maintain the action would 

prejudice other parties.” Tovsland v. Reub, 2004 SD 93, ¶28, 686 NW2d 392, 402 

(additional citations omitted). Judicial estoppel applies when a party “who by their 

words or conduct take positions inconsistent with their rights, unfairly misleading 

others into detrimental reliance.” A-G-E Corp. v. State, 2006 SD 66, ¶32, 719 

NW2d 780, 789 (additional citations omitted). Generally, “the later position must 

be clearly inconsistent with the earlier one; the earlier position was judicially 

accepted, creating the risk of inconsistent legal determinations; and the party 

taking the inconsistent position would derive an unfair advantage or impose an 

unfair detriment to the opponent if not estopped.” Canyon Lake Park, L.L.C. v. 

Loftus Dental, P.C., 2005 SD 82, ¶34, 700 NW2d 729, 737 (quoting Watertown 

Concrete Products, Inc. v. Foster, 2001 SD 79, ¶12, 630 NW2d 108, 112-13 (citing 

New Hampshire v. Maine, 532 US 742, 750, 121 SCt 1808, 1814-15, 149 LEd2d 968, 

977 (2001))) (additional citations omitted). 

[¶21.] Here, Brandt knew there was a possibility he was not the father as 

early as 1993 and did not contest the paternity. Then, in 2007, Brandt filed a 
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motion for relief, twelve years after the default judgment, alleging that private DNA 

testing excluded him as the father.4 Instead of timely contesting the default, 

Brandt reaffirmed his paternity in two separate legal proceedings – once when he 

pleaded guilty in federal court to failure to pay child support and again when he 

requested modification of his obligation. The position that Brandt was C.B.’s father 

was judicially accepted in both proceedings. Also, the State would suffer an unfair 

detriment if Brandt was not estopped. As it argued at oral argument, it may be 

nearly impossible to find the alleged actual father fifteen years after C.B.’s birth. In 

addition, the State is precluded from seeking all of the back support even if the 

alleged actual father is located. Prior to 2005, SDCL 25-8-5 provided that 

The mother may recover from the father a reasonable 

share of the necessary support of a child born out of 

wedlock. In the absence of a previous demand in writing 

served personally or by registered or certified letter 

addressed to the father at his last known residence, not 

more than six years’ support furnished before bringing an 

action may be recovered from the father. 

Therefore, if the alleged actual father is located, back child support could only be 

awarded for the previous six years. Brandt cannot obtain relief from the default 

judgment due to laches and judicial estoppel. 

[¶22.] A similar result was reached in the North Dakota case, Throndset v. 

L.L.S., 485 NW2d 775 (ND 1992). In that case, the North Dakota Supreme Court 

held that the father could not get relief from a paternity judgment where he did not 

4. As the circuit court noted, the test and its results were unsubstantiated in 

that there was no evidence the materials tested came from the alleged 

individuals. Moreover, there is nothing in the record regarding the test 

results other than a mention of it in Brandt’s affidavit accompanying his 

motion for relief from the default judgment. 
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appear at the hearing nor respond to the summary judgment motion. Id. at 780. 

Nine years later, the father attempted to obtain relief from the judgment. In the 

interim, the father participated in several court proceedings to enforce his child 

support, but did not raise the issue. Finding his request untimely, the court held he 

was estopped from denying paternity and from claiming a defect in the original 

proceeding. Id. 

[¶23.] In summary, Brandt’s request for DNA testing constituted an 

appearance requiring notice of the application for default under SDCL 15-6-55(b)(1). 

However, the proper service of a second summons and complaint started a second 

action and Brandt failed to make an appearance in that action. Therefore, he 

cannot obtain relief for lack of notice. Additionally, Brandt did not submit this 

motion for relief within a reasonable time as required for relief from a default 

judgment under SDCL 15-6-60(b)(6). Finally, Brandt was barred from relitigating 

paternity by the doctrines of laches and judicial estoppel. Brandt has not 

demonstrated that the circuit court abused its discretion when it denied his motion 

for relief from the default judgment. 

[¶24.] Affirmed. 

[¶25.] GILBERTSON, Chief Justice, and KONENKAMP, ZINTER, and 

MEIERHENRY, Justices, concur.