#29660-aff in pt & rev in pt-SRJ

2023 S.D. 24

IN THE SUPREME COURT

OF THE

STATE OF SOUTH DAKOTA

* * * *

JOSEPH DANIEL LeFORS, Plaintiff and Appellant,

v.

KRISTA MAE LeFORS, Defendant and Appellee.

* * * *

APPEAL FROM THE CIRCUIT COURT OF

THE FOURTH JUDICIAL CIRCUIT

MEADE COUNTY, SOUTH DAKOTA

* * * *

THE HONORABLE KEVIN KRULL

Judge

* * * *

HOLLIE L. SMITH of

Clayborne, Loos & Sabers, LLP

Rapid City, South Dakota Attorneys for plaintiff and

appellant.

DEBRA D. WATSON

Rapid City, South Dakota Attorney for defendant

and appellee.

* * * *

ARGUED

FEBRUARY 15, 2022

REASSIGNED 03/29/2023

OPINION FILED 05/24/23
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JENSEN, Chief Justice (on reassignment).

[¶1.] Joseph Daniel LeFors commenced a divorce action against Krista Mae 

LeFors after seventeen years of marriage. Krista filed a counterclaim for separate 

maintenance and asked that the divorce be postponed until the parties had been 

married for twenty years, allowing her to become eligible to receive lifetime 

TRICARE health care coverage, as well as other military service member and 

family benefits. Following a trial, the circuit court granted Krista a decree of 

separate maintenance, awarded her permanent alimony, and made an equitable 

division of marital property. Joseph appeals. We affirm in part, reverse in part, 

and remand.

Facts and Procedural History

[¶2.] Joseph and Krista were married on June 4, 2002, shortly after both 

graduated from high school. Joseph joined the military in 2002 while Krista worked 

at different positions for the first few years of marriage. Their son was born in 

2006, and their daughter was born in 2009. The parties separated on January 7, 

2019. At the time of the separation, Joseph continued his military service while 

Krista was primarily responsible for child care and maintaining the home, and 

worked part-time as a substitute teacher.

[¶3.] Joseph commenced an action for divorce in January 2019. He 

requested the court to divide the marital property and order joint legal and physical 

custody of the children. Krista answered and subsequently filed a counterclaim for 

divorce based on irreconcilable differences. Krista sought an equitable division of 

the property, requested spousal support, and alleged fault against Joseph in the 
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form of extreme cruelty. Krista also requested primary physical custody of the 

children and child support from Joseph.

[¶4.] Following a hearing, the circuit court entered a temporary order 

establishing custody and support that required Joseph to pay child support of $600

per month and ordered that Krista and the children could remain in the home. 

Joseph was granted access to the home to remove specified items.

[¶5.] On October 4, 2019, Krista filed a motion for contempt alleging that 

Joseph had violated the automatic temporary restraining order by terminating the 

insurance coverage on her vehicle. She also alleged Joseph failed to pay amounts 

previously ordered by the court and removed items from the marital home in 

violation of the circuit court’s order. In her affidavit, she claimed that after the 

court ordered child support, Joseph “got mad” and quit paying car payments, car 

insurance, and credit card bills and removed her cell phone from his account. 

Joseph responded to Krista’s motion and filed an application alleging Krista should 

be held in contempt for failing to file the parties’ 2018 tax return, failing to pay her 

share of the child custody evaluator fee, and interfering with his parenting time.

[¶6.] On December 2, 2019, Krista filed a motion to amend her counterclaim 

to allege a claim for separate maintenance under SDCL 25-4-40 on the grounds of 

extreme cruelty and, alternatively, to request a divorce on the same grounds. 

Following a hearing on January 14, 2020, the court granted Krista’s motion to 

amend her counterclaim and did not find either party in contempt. However, the 

court ordered Joseph to make all payments necessary to prevent the repossession of 
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Krista’s vehicle and again required him to pay $200 within seven days so Krista 

could file the 2018 income tax return.

[¶7.] The circuit court held a two-day court trial on the complaint and 

counterclaim. Krista testified that troubles in the marriage began in 2012. She 

testified that Joseph drank a lot and was physically abusive when he was drunk. 

Krista explained that she never reported these incidents to the authorities because 

she did not want to jeopardize Joseph’s military career. She stated that she stopped 

working from 2010 to 2015, at Joseph’s request, so that she could stay home with 

the children. When their daughter started first grade, Krista began working as a 

substitute teacher, but Joseph told her he did not want her to work too many hours. 

Krista testified about the help she provided to Joseph to further his career, 

including taking classes and tests for him when he was in college and attending 

social events to help him meet new people. To be able to follow him on his 

assignments, she testified, she gave up going to school and developing a career. 

Kathy Knudson, Krista’s mother, testified that she believed Joseph had a drinking 

problem that caused the breakup of the marriage. Knudson also testified that she 

provided Krista with over $25,000 since the separation to help with Krista’s 

financial struggles. Joseph denied that he abused alcohol during the marriage or 

physically abused Krista.

[¶8.] Krista requested the circuit court to delay the entry of a divorce decree 

and enter an order for separate maintenance for a period of approximately two 

years. She explained that establishing a period of separate maintenance before the 

divorce would keep the parties married for twenty years and ensure her eligibility 
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for various lifetime benefits available to military dependents, including TRICARE 

health benefits. With TRICARE, Krista would have access to the pharmacy on the 

military base and would not have copays for any prescriptions. Krista also testified 

that she would be eligible for lower interest rates on her debts because she would 

fall under the Servicemembers Civil Relief Act. Additionally, Krista would be able 

to purchase lower cost groceries at the base commissary and make purchases at the 

base exchange without paying sales tax. She testified that if the divorce occurred 

before twenty years of marriage, she would not be able to go on the base to use those 

benefits, even if the children were on Joseph’s health insurance plan.

[¶9.] Following the trial, the circuit court entered findings of fact and 

conclusions of law and granted a decree of separate maintenance. The court also 

stated an intention to “enter a Decree of Divorce on or about June 30, 2022,” a date 

more than twenty years after the marriage. The court stated that it would retain 

jurisdiction to enter a divorce decree at a later date. The court explained the 

purpose of the period of separate maintenance:

to provide her with affordable medical benefits, access to the 

base for the children’s health care and reduced cost for groceries, 

clothing and other necessities which Joseph is otherwise unable 

to pay or would result in substantial financial strain. Granting 

a separate maintenance will also allow Krista the benefit of the 

Servicemember’s Civil Relief Act resulting in lower interest on 

her credit cards making it easier for her to manage the debt.

[¶10.] The circuit court found “that Joseph has inflicted emotional and 

physical abuse on Krista during the marriage constituting extreme cruelty as 

defined in SDCL § 25-4-4.” The circuit court awarded joint legal custody but named 

Krista the primary physical custodian. Noting that this was “a high conflict 
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situation[,]” the court specified that, to avoid conflict, Krista would be responsible 

for making decisions regarding “the children’s education and health care[.]”

[¶11.] The circuit court found that Krista made valuable contributions to the 

marital estate through her role as a wife, homemaker, and mother. In finding that 

Krista sacrificed her education and employment to support Joseph’s military career, 

the court found Joseph’s gross monthly income was $6,664.31, including base pay 

and housing allowance, while Krista’s gross monthly income was $829.

[¶12.] In dividing the marital assets, the court found the parties had more 

debts than assets. The car driven by Krista was purchased during the marriage, 

but the debt against it exceeded its value. The court assigned that vehicle to Krista 

and ordered Joseph to make the car loan and insurance payments on the vehicle. 

The court also determined that “[d]ue to the substantial disparity in income, the 

Court has given Krista more value in property and Joseph more debt in order to 

make an equitable division of the assets and liabilities . . . .” Excluding Joseph’s 

retirement, he was awarded assets valued at $38,287 and debts of $76,893, a net 

value of negative $38,606. Krista was awarded assets valued at $41,000 and debts 

of $30,433, a net value of $10,567.

[¶13.] The court also divided Joseph’s Thrift Savings Plan (TSP) and his 

military retirement as marital property. Finding that “[r]etirement is deemed 

received in lieu of higher earnings and is divisible as property[,]” the circuit court 

equally divided the TSP as of the date of entry of the decree of separation and 

equally divided “the marital portion of Joseph’s military retirement[,]” which it 

specified Krista would receive “following the granting of the divorce on or about 
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June 30, 2022.” Additionally, the circuit court specified that “Joseph shall not take 

any action to reduce Krista’s military benefits and, if he does so by transferring it to 

VA disability or a civil retirement plan, he shall pay her the difference.” The circuit 

court also required Joseph “to enroll in the Spousal Benefit Plan (SBP) within one 

year following the divorce and pay the cost therefor so that Krista’s military 

benefits will continue during her lifetime in the event of his untimely death.”

[¶14.] After dividing the property, the court found that “Krista has a need for 

alimony as reflected in her substantial budget shortage” and that Joseph has the 

ability to pay spousal support. The circuit court ordered Joseph to pay permanent 

alimony of $750 per month to Krista. The circuit court set Joseph’s child support 

obligation at $1,057 per month. Additionally, the circuit court found that Joseph 

owed child support arrears of $4,200.

[¶15.] Following the entry of the decree of separate maintenance, Joseph filed 

a verified motion to clarify the court’s findings and a motion for reconsideration. 

Among his many arguments in the motion for reconsideration, Joseph argued that 

the circuit court had no statutory authority to make an equitable division of 

property before entering a divorce. He asked the court to divide the “assets at the 

time the Divorce Decree will be entered in June 2022.” Krista resisted Joseph’s 

motion to clarify and motion to reconsider.

[¶16.] Joseph appealed before the circuit court ruled on his motion to 

reconsider alimony, and the circuit court later ruled it lacked jurisdiction to 
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consider the motion because of the appeal. Joseph raises three issues, which we 

restate as follows:1

1. Whether the circuit court abused its discretion in 

granting separate maintenance.

2. Whether the circuit court erred by dividing the property 

between the parties when granting separate maintenance.

3. Whether the circuit court abused its discretion in 

awarding Krista permanent alimony in the amount of 

$750 per month.

Analysis

1. Grant of separate maintenance.

[¶17.] The standard of review in separate maintenance actions is abuse of 

discretion. Cady v. Cady, 79 S.D. 500, 505, 114 N.W.2d 102, 104 (1962). “An abuse 

of discretion is ‘a fundamental error of judgment, a choice outside the reasonable 

range of permissible choices, a decision . . . [that], on full consideration, is arbitrary 

or unreasonable.’” Coester v. Waubay Twp., 2018 S.D. 24, ¶ 7, 909 N.W.2d 709, 711 

(alteration and omission in original) (quoting Wald, Inc. v. Stanley, 2005 S.D. 112, 

¶ 8, 706 N.W.2d 626, 629). A circuit court can order separate maintenance on any

1. After this Court heard oral arguments, Krista filed a motion for appellate 

attorney fees with this Court. “SDCL 15-26A-87.3 sets forth the substantive 

and procedural requirements for an award of appellate attorney’s fees.” 

Wagner v. Brownlee, 2006 S.D. 38, ¶ 20, 713 N.W.2d 592, 598. SDCL 15-26A87.3(2) requires that “[t]he motion must be served and filed prior to 

submission of the action on its merits[.]” Krista’s request for appellate 

attorney fees was not timely and is denied.
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grounds which would be grounds for divorce.2 “A decree of separate maintenance 

does not dissolve the marital bond. The primary purpose of obtaining separate 

maintenance is to enforce the [spouse’s] duty of support.” Klinger v. Klinger, 79 

S.D. 182, 184, 109 N.W.2d 633, 634 (1961).

[¶18.] The circuit court ordered separate maintenance on the grounds of 

extreme cruelty. In doing so, the court expressed its intention to delay entry of a 

divorce to ensure, under what is known as the 20/20/20 benefits rule, that Krista 

would receive “lifetime [TRICARE] health insurance coverage at minimal cost, 

Commissary and Base Exchange privileges and a Base ID allowing her access to 

medical facilities for the children.”3

[¶19.] Joseph argues that by entering a decree of separate maintenance and 

ordering him not to take any action that would prevent Krista from being eligible 

under the 20/20/20 benefits rule, the court not only required him to remain married, 

but effectively forced him to work for the United States Air Force until he reaches 

2. SDCL 25-4-40 provides:

An action for separate maintenance may be maintained without 

request for divorce, upon any grounds which would be grounds 

for divorce, and in such cases the court shall have power to 

award temporary alimony, suit money, and permanent support 

for a spouse and the children of the parties, or any of them, by 

the other spouse.

3. The “20/20/20 benefits rule” classifies an unremarried former military spouse 

as a “dependent” of a member or former member of a uniformed service, if 

they were married for at least twenty years, the service member performed at 

least twenty years of service creditable for retirement pay, and there is at 

least a twenty-year overlap of the marriage and the military service. 10 

U.S.C. § 1072(2)(F) (2023). Dependents of active duty members or retired 

members may enroll in TRICARE. 32 CFR § 199.17 (2023).
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twenty years of service. Joseph also asserts that ordering the parties to remain 

married precludes him from intimate relations with another woman lest he be 

discharged by the Air Force for adultery.4 He contends these rulings infringe on his 

rights to remarry and leave the service.5 Lastly, Joseph argues that financial 

reasons were insufficient to justify the court denying his request for divorce and 

ordering separate maintenance.

[¶20.] Separate maintenance is a particular proceeding by which a circuit 

court may order a person to provide support to a spouse and/or children. See SDCL 

25-4-40. The statute permits the entry of separate maintenance on the same 

grounds as a divorce but does not otherwise define the instances in which a decree 

of separate maintenance is appropriate. The statute also does not impose a 

specified length of time for which a decree of separate maintenance may be entered. 

Additionally, SDCL 25-4-39 permits the court to order separate maintenance when 

a divorce is denied. “Though judgment of divorce is denied, the court may in an 

4. Adultery is not an enumerated offense under the Uniform Code of Military 

Justice (UCMJ), but it is punishable as conduct that is prejudicial to good 

order and discipline or discrediting to the armed forces under UCMJ Article 

134, which is designated as the “General Article.” See United States v. 

Mason, 42 M.J. 584, 585 (A. Ct. Crim. App. 1995) (noting adultery may be 

charged under Article 134); 10 U.S.C. § 934, art. 134 (2023).

5. Joseph argues that he has a right to marry that includes the right of divorce. 

The United States Supreme Court has recognized that the right to marry is a 

fundamental right. Obergefell v. Hodges, 576 U.S. 644, 675, 135 S. Ct. 2584, 

2604, 192 L. Ed. 2d 609 (2015). Joseph provides no authority for the 

proposition that there is a fundamental right to divorce, and we need not 

resolve the issue here because both parties contemplate ultimately ending 

their marriage through divorce. Suffice it to say that the Legislature may 

regulate how a marriage is created and how it is dissolved. Maynard v. Hill, 

125 U.S. 190, 205, 8 S. Ct. 723, 726, 31 L. Ed. 654 (1888).
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action for divorce provide for maintenance of a spouse and the children of the 

parties, or any of them, by the other spouse.” SDCL 25-4-39. A plain reading of 

these statutes demonstrates a legislative intention to provide courts with discretion 

to determine when the remedy of separate maintenance may be appropriate, 

including in instances when a divorce decree is denied.

[¶21.] Based on the parties’ circumstances, the circuit court determined that 

a period of separate maintenance, before entry of a divorce, was appropriate to 

ensure long-term financial stability for Krista and the children, consistent with 

what they were accustomed to during the marriage.6 Further, there is no instance 

in this record where Joseph expressed to the circuit court that he had any intention 

to seek a discharge from the Air Force prior to twenty years of service. Instead, the 

evidence in the record demonstrates that Joseph has every incentive to continue his 

service until the twenty-year mark, and to do so not only benefits Krista and the 

children but also himself. Based upon our review of the particular circumstances of 

this case, we find no abuse of discretion in the court’s decision to deny the entry of a 

divorce decree until after twenty years of marriage and grant a decree of separate 

maintenance.

6. The court’s decision is also consistent with the expressed legislative intention 

for a married person to support their spouse and children. “A person shall 

support himself or herself and his or her spouse out of his or her property or 

by his or her labor.” SDCL 25-7-1. “While an action for divorce is pending, 

the court may in its discretion require one spouse to pay as alimony any 

money necessary to support the other spouse . . . .” SDCL 25-4-38. “The 

parents of a child are jointly and severally obligated for the necessary 

maintenance, education, and support of the child in accordance with their 

respective means.” SDCL 25-7-6.1.
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2. Division of property upon granting separate 

maintenance.

[¶22.] Joseph argues the circuit court had no authority to divide the marital 

estate as part of an order for separate maintenance. He contends that South 

Dakota law only allows a division of marital property as part of a divorce decree. 

Joseph argues the court was limited to awarding alimony and child support as part 

of its separate maintenance order.

[¶23.] Krista acknowledges that the separate maintenance statutes do not 

reference a court’s authority to divide property but argues that other statutes 

contemplate a court’s ability to divide marital property in a legal separation. She 

cites SDCL 25-4-75 and SDCL 25-4-79, which contemplate the division of marital 

assets in a decree of “legal separation.”

[¶24.] “Questions of statutory interpretation and application are reviewed 

under the de novo standard of review with no deference to the circuit court’s 

decision.” Long v. State, 2017 S.D. 78, ¶ 5, 904 N.W.2d 358, 361 (quoting Deadwood 

Stage Run, LLC v. S.D. Dep’t of Revenue, 2014 S.D. 90, ¶ 7, 857 N.W.2d 606, 609). 

“Questions of law are reviewed de novo.” Billman v. Clarke Mach., Inc., 2021 S.D. 

18, ¶ 22, 956 N.W.2d 812, 819 (quoting Kuhle v. Lecy Chiropractic, 2006 S.D. 16, 

¶ 16, 711 N.W.2d 244, 247). “In interpreting statutes, ‘we give words their plain 

meaning and effect, and read statutes as a whole.’” Fraternal Ord. of Police, 

Vermillion Lodge No. 19, Yankton Police Officers’ Ass’n v. City of Yankton, 2020 S.D. 

52, ¶ 20, 949 N.W.2d 412, 417 (quoting Reck v. S.D. Bd. of Pardons & Paroles, 2019 

S.D. 42, ¶ 11, 932 N.W.2d 135, 139). “When the language in a statute is clear, 

certain and unambiguous, there is no reason for construction, and the Court’s only 
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function is to declare the meaning of the statute as clearly expressed.” Id. (quoting 

State v. Armstrong, 2020 S.D. 6, ¶ 16, 939 N.W.2d 9, 13).

[¶25.] In a divorce, SDCL 25-4-44 explicitly authorizes the courts to “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.”

[¶26.] In addition to the entry of a divorce, the Legislature has created a 

separate remedy of legal separation. SDCL 25-4-17.2 provides that when a divorce 

is filed and a “court finds that there are irreconcilable differences, which have 

caused the irremediable breakdown of the marriage, it shall order the dissolution of 

the marriage or a legal separation.” The statutes addressing a legal separation 

contemplate that a court is authorized to divide property. See SDCL 25-4-75 

(providing authorization for a “court that has entered an original decree of marital 

annulment, dissolution, or legal separation and determined a division of the 

property” to reopen a case to consider omitted marital assets); SDCL 25-4-79 

(providing a “court of this state that has entered an original decree of marital 

annulment, dissolution, or legal separation and determined the division of property 

has exclusive, continuing jurisdiction over the subsequent motions for omitted 

assets”). In contrast, the remedy of separate maintenance, provided for in SDCL 

25-4-39 and SDCL 25-4-40, is distinct from a legal separation, and there is no 
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authority allowing a circuit court to equitably divide a marital estate when granting 

separate maintenance.7

[¶27.] SDCL 25-4-39 states that a “court may in an action for divorce provide 

for maintenance of a spouse and the children of the parties, or any of them, by the 

other spouse” when a “divorce is denied[.]” SDCL 25-4-40 also creates a cause of 

action for separate maintenance. Neither statute authorizes a court in a decree of 

separate maintenance to divide the marital assets. Rather, SDCL 25-4-40 by its 

plain language limits the court’s “power to award[ing] temporary alimony, suit 

money, and permanent support for a spouse and the children of the parties[.]”8

7. Other jurisdictions have also recognized the distinction between legal 

separation and separate maintenance. See Ariail v. Ariail, 369 S.E.2d 146, 

147 (S.C. Ct. App. 1988) (“An action for a legal separation, or limited divorce, 

and an action for separate maintenance are not the same.”). Legal 

separation, originally referred to as divorce from bed and board (a mensa et 

thoro), has no effect on the spouses’ marital bonds, but it does change their 

legal status and relieves each spouse of certain rights and obligations 

traditionally associated with marriage, such as cohabitation and consortium. 

Brewer v. Brewer, 129 S.E.2d 736, 737 (S.C. 1963) (cited in 24 Am. Jur. 2d 

Divorce and Separation § 5 (West 2023)). Conversely, separate maintenance 

developed as a legal mechanism to enforce a husband’s duty to support his 

wife under the marital contract. 41 Am. Jur. 2d Husband and Wife § 166 

(West 2023). In Bueter v. Bueter, this Court granted an order for separate 

maintenance because in light of “[t]he husband owing this duty of 

maintenance to the wife, we perceive[d] no good reason why she may not, 

independent of any other ground, maintain an action against him for its 

enforcement.” 1 S.D. 94, 45 N.W. 208, 211 (1890). As used in our statutory 

scheme, separate maintenance is not intended to effectuate a legal 

separation; it merely provides separated spouses a cause of action to enforce 

the other spouse’s duty of support until such time as the parties reconcile or 

obtain a judicial decree of divorce.

8. Krista also cites SDCL 43-4-22(17) which exempts real estate transfer fees 

for deeds filed with the register of deeds “[p]ursuant to a decree of divorce, 

annulment, or separate maintenance” to support her claim that the court has 

the authority to divide the marital assets. This provision exempts any real 

 (continued . . .)
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[¶28.] Krista’s counterclaim alleged a claim for separate maintenance under 

SDCL 25-4-40 on the grounds of extreme cruelty. Krista alternatively sought a 

divorce on the grounds of extreme cruelty in her counterclaim, while Joseph sought 

a divorce on the grounds of irreconcilable differences. In its findings of fact and 

conclusions of law, the circuit court awarded “Krista a Decree of Separate 

Maintenance pursuant to SDCL 25-4-40[.]” The court effectively denied Joseph’s 

request for a divorce, stating an intention “to enter a Decree of Divorce on or about 

June 30, 2022” and retaining “jurisdiction to ensure compliance herewith and to 

enter the Judgment and Decree of Divorce.” However, the entry of the decree and 

the division of the marital property were premised solely on the court’s decision to 

award Krista “a Decree of Separate Maintenance from [Joseph] on the grounds of 

extreme cruelty[.]”

[¶29.] The circuit court was without authority to enter an equitable division 

of the marital property in the separate maintenance proceeding. In the absence of 

statutory authority to make a property division in a decree of separate 

maintenance, the circuit court abused its discretion in equitably dividing the 

marital property. “[A] circuit court abuses its discretion when it makes an error of 

law.” People ex rel. D.S., 2021 S.D. 63, ¶ 20, 967 N.W.2d 1, 6 (citation omitted). 

________________________ 

(. . . continued)

estate transfer fees that occur arising out of a separate maintenance 

proceeding, but the statute does not authorize a court to make an equitable 

division of property as a part of a separate maintenance proceeding. Instead, 

this provision recognizes the possibility that a transfer of undivided marital 

property may occur in a separate maintenance proceeding. See SDCL 25-7-1 

(“A person shall support himself or herself and his or her spouse out of his or 

her property or by his or her labor.”).
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Therefore, we reverse the property division and remand the case for an evidentiary 

hearing to equitably divide the property when the divorce decree is entered.9

3. Permanent alimony.

[¶30.] Joseph argues that the circuit court abused its discretion in awarding 

permanent alimony because the court failed to consider the parties’ financial 

condition after the division of property. He notes the disparity in the property 

division and that after dividing the property he is obligated to pay over $76,000 in 

marital debt, while Krista is responsible for $30,000 in debt, $25,000 of which is 

owed to her mother. Joseph asserts that the award of $750 per month of permanent 

alimony is inconsistent with the property division and that the circuit court’s 

findings are more consistent with rehabilitative alimony because Krista should be 

9. Apart from the lack of authority to divide the assets in the separate 

maintenance decree, Joseph claims the circuit court abused its discretion in 

dividing the marital assets. To provide guidance on remand, we note two 

concerns in the circuit court’s division of Joseph’s military retirement. First, 

the court ordered that Krista would be “entitled to 50% of the marital portion 

of Joseph’s military retirement which shall be transferred to her via a 

Military Qualifying Order following the granting of the divorce on or about 

June 30, 2022.” This determination was not only premature, but also failed 

to consider that the military retirement may appreciate as a result of postseparation contributions by Joseph. The questions involving the valuation of 

this asset and whether Joseph’s post-separation contributions should be 

treated as a marital asset require consideration of the appropriate legal 

factors and a contemporaneous valuation of the marital asset at the time of 

division. See Dunham v. Sabers, 2022 S.D. 65, ¶ 39, 981 N.W.2d 620, 636–37; 

Parker v. Parker, 2023 S.D. 5, ¶ 11 n.2, 985 N.W.2d 58, 62 n.2. The second 

area of concern is the court’s order that “Joseph shall not take any action to 

reduce Krista’s military benefits and, if he does so by transferring it to VA 

disability . . . he shall pay her the difference.” This order is contrary to our 

recent decision in Cook v. Cook, 2022 S.D. 74, ¶ 26, 983 N.W.2d 180, 190, 

holding that federal law preempts a state court from indemnifying the other 

spouse when the military spouse converts all, or a portion of, military 

retirement to military disability.
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able to return to college to increase her income once she has lifetime health 

insurance coverage.

[¶31.] Joseph also argues that he does not have sufficient means to pay 

spousal support after the property division. Joseph contends that the court only 

considered Krista’s need for support without considering his ability to pay support 

to Krista, particularly after being ordered to pay most of the parties’ debt, including 

the debt on Krista’s vehicle. Joseph asserts that Krista failed to meet her burden 

“to establish her need for alimony and [Joseph’s] ability to pay.” Lovejoy v. Lovejoy, 

2010 S.D. 39, ¶ 7, 782 N.W.2d 669, 672.

[¶32.] “We review alimony determinations under the abuse of discretion 

standard.” Leedom v. Leedom, 2020 S.D. 40, ¶ 11, 947 N.W.2d 143, 147 (quoting 

Haanen v. Haanen, 2009 S.D. 60, ¶ 12, 769 N.W.2d 836, 841). “[W]hen a party 

requests permanent alimony they must establish that they have a need for support 

and that their spouse has sufficient means and abilities to provide for part or all of 

the need.” Kolbach v. Kolbach, 2016 S.D. 30, ¶ 16, 877 N.W.2d 822, 828 (alteration 

in original) (quoting Fox v. Fox, 467 N.W.2d 762, 767 (S.D. 1991)). As it relates to 

the issues raised by Joseph on appeal, we have stated that “[t]he court’s equitable 

division of property and spousal support are to be considered jointly because ‘an 

award of more assets can eliminate or reduce the need for spousal support[.]’” Id. 

(second alteration in original) (quoting Walker v. Walker, 2009 S.D. 31, ¶ 11, 765 

N.W.2d 747, 751). “The symbiotic relationship between property division and 

spousal support requires consideration of the two together, as an award of more 

assets can eliminate or reduce the need for spousal support and vice versa.” Scherer
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v. Scherer, 2015 S.D. 32, ¶ 10, 864 N.W.2d 490, 494 (quoting Terca v. Terca, 2008 

S.D. 99, ¶ 28, 757 N.W.2d 319, 326). “Therefore, ‘[t]he trial court’s award of alimony 

and the division of property are considered together on appeal to determine whether 

the trial court abused its discretion.’” Id. (alteration in original) (quoting Krage v. 

Krage, 329 N.W.2d 878, 879 (S.D. 1983)).

[¶33.] While it is not apparent from the court’s findings that the court 

considered Joseph’s ability to pay support to Krista, based upon our determination 

that the court did not have authority to divide the parties’ assets in the decree of 

separate maintenance, we need not consider Joseph’s claims of error in the court’s 

decision awarding Krista $750 of spousal support. Our guiding principles require 

the circuit court to consider the question of spousal support in light of the property 

division. Therefore, the issue of spousal support, including Joseph’s claims 

concerning his ability to pay permanent alimony, should be addressed anew on 

remand at the time the divorce decree is entered and the marital property is 

divided.

Conclusion 

[¶34.] We affirm the circuit court’s decree of separate maintenance, but the 

court lacked authority to equitably divide the marital property as part of the decree 

of separate maintenance. We reverse the court’s property division and remand to 

the circuit court for an evidentiary hearing to divide the marital assets at the time a 

divorce decree is entered. We also remand the spousal support award and direct the 

court to consider the question of spousal support while dividing the parties’ assets 

as part of a divorce decree.
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[¶35.] KERN, SALTER, DEVANEY, and MYREN, Justices, concur.