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201 4 S.D. 45 IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA * * * * MARY ANN WICHMAN a/k/a MARY ANN TETHEROW and SANDRA SHABINO n/k/a SANDRA WICHMAN , Plaintiffs and Appellants ,

v. BRIAN SHABINO , Defendant

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* * * * APPEAL FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT MINNEHAHA COUNTY, SOUTH DAKOTA * * * * THE HONORABLE SUSAN M. SABERS Judge * * * *

PAUL W. TSCHETTER MEGHANN M. JOYCE of Boyce, Greenfield, Pashby & Welk, LLP Sioux Falls , South Dakota Attorneys for plaintiffs and appellants

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* * * * CONSIDERED ON BRIEFS ON APRIL 28 , 2014 OPINION FILED 

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- KONENKAMP, Justice [¶ 1. ] To purchase a home, Brian Shabino and Sandra Wichman, formerly Sandra Shabino, borrowed money from Sandra’s mother , Mary Ann Wichman. When Brian and Sandra divorced, as part of the divorce decree , Brian had the
respons ibility of paying the remaining debt on the home. He failed to re pay Mary Ann, and she brought suit for breach of contract, unjust en richment, and enforcement of the divorce decree . The circuit court ruled that part of Mary Ann’s breach of contract claim was barred by the statute of limitations and that she could not enforce the divorce decree . Mary Ann appeals. Background [¶ 2. ] During their marriage , Brian and Sandra borrowed $15,000 from Sandra’s mother, Mary Ann, to use as a down payment o n the purchase of their marital home. The y agreed to a loan schedule, which required Brian and Sandra to make monthly payments of $200 beginning July 1, 1999, and ending June 1, 2007. In the summer of 2002, Brian and Sandra stopped maki ng payments on the loan. At that time, the remaining balance due was $10,239. [¶ 3. ] On July 31, 2003, Sandra and Brian divorced. The decree of divorce apportioned to Brian the marital home as well as the remaining debt to Mary Ann. 1 Brian never paid her

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. As part of the divorce decree , Brian was required to pay Sandra an equalization payment of $16,270

. Brian made that payment; however, he mistakenly believed that the payment also covered the remainder of the loan to Mary Ann.# 26 835

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- [¶ 4. ] In the fall of 2012, Mary Ann brought this action for breach of contract, unjust enrichment, and enforcement of Brian and Sandra’s divorce decree . Mary Ann moved for summary judgment, but later withdrew it to add Sandra as a party plaintiff. M ary Ann then renewed her summary judgment motion. Brian , who appeared pro se, responded that Mary Ann’s breach of contract claim was barred by the statute of limitations and that Mary Ann could not enforce the divorce decree

. After briefing and arguments from counsel, the circuit court denied Mary Ann’ s motion for summary judgment to enforce the divorce decree

. But the court granted her summary judgment on the breach of contract claim in part, allowing her to recover seven installments on the loan that w ould have come due within six years before the commencement of suit, plus pre

- judgment interest on that amount. 2 [¶ 5. ] Mary Ann appeals, asserting that the circuit court erred in (1) reconsidering , sua sponte, its initial grant of summary judgm ent in her favor , (2) holding that Mary Ann could not enforce the terms of the divorce decree , and (3) applying the six

- year statute of limitations to this action. 3 We review these issues de novo. See Holsti v. Kimber , 2014 S.D. 21, ¶ 8 n.2, 845 N.W.2d 9 23, 927 n.2 (citation s omitted).

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. Th e claim for unjust enrichment was dismissed. 3

. Brian submitted no appellate brief in this appeal. “ W e will not automatically treat an appellee’s failure to file a brief as a confession of error, but may do so at our discretion.” In re Guardianship of Gallop , 453 N.W.2d 616, 617 (S.D. 1990) (citations omitted)

. “[F]ailure of the appellee to file a brief does not automatically translate to victory for the appellant. Appellant still has the burden of showing that the findings of fact are clearly erroneo us or that the conclusions of law are incorrect.” Hawkins v. Peterson , 474 N.W.2d 90, 92 (S.D. 1991).# 26 835

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- 1. Reconsidering Motion for Summary Judgment [¶ 6. ] Mary Ann argues that the circuit court erred in reconsidering its initial grant of summary judgment in her favor

. 4 She contends that although Brian filed a tim ely response to her complain t with the circuit court , he failed to serve a copy of that response on opposing counsel within thirty days after the complaint was served on him in accordance with SDCL 15

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- 5(a). Similarly, she asserts that Brian’s response d id not conform to the South Dakota Rules of Civil Procedure under SDCL 15

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- 8(b) (“ A party shall state in short and plain terms his defenses to each claim asserted and shall admit or deny the averments upon which the adverse party relies. ”)

. [¶ 7. ] Mary Ann does not contend that Brian’s allegedly insufficient answer unduly prejudiced her. Nor does she suggest that the insufficiency would deprive the circuit court of jurisdiction. She only asserts a general objection that Brian’s answer was inadeq uate. But the record reveals that Brian’s answer adequately apprised Mary Ann of his denials to her complaint. In response to Count 1 of Mary Ann’s complaint, which sought to enforce the divorce decree, Brian stated that Mary Ann was not a party to the d ivorce, and therefore, could not enforce the decree . In his responsive pleading to Count 2, the breach of contract claim, Brian stated that

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. After listening to argument at the summary judgment hearing, the circuit court initially granted an order in Mary Ann ’ s favor and requested further briefing on the issue of prejudgment interest. S hortly after the hearing, however, the court withdrew that order and requested further briefing on whether part of Mary Ann’s claim was barred by the statute of limitations. Mary Ann subsequently withdrew h er motion for summary judgment and amended her complaint to include Sandra as a party. She then renewed her motion for summary judgment.# 26 835

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- “breach of contract laws in South Dakota have a 6 year statute of limitations.” His

answ er then cited SDCL 15

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- 13 , which sets forth the statute of limitations for breach of contract claims

. Further, Brian resubmitted this defense by oral argument at the summary judgment hearing. Finally , the record reveals that the circuit court gave Mary Ann adequate time to respo nd to Brian’ s answer. We find

no error in the court’s handling of this process. [¶ 8. ] Mary Ann’s second alleged error is that Brian did not submit a proper motion to dismiss , based on the statute of limitations, under SDCL 15

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- 7(b). 5 At a June 2013 hearing, the circuit court entertained this argument from Mary Ann, but ultimately rejected it. The court found that Brian had made an oral motion to dismiss that he not only arg ued, but presented in his answer. Additionally, the court gave Mary An n adequate time to respond to Brian’s motion to dismiss. The court indicated that Brian, a pro se defendant, had filed an answer asserting the statute of limitations as a defense, argued the same during the summary judgment hearing, and advanced a similar argument in writing following the h earing. 6 W e

see no error with the circuit court’s ruling on this issue

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. SDCL 15

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- 7(b) provides in part: (1) An application to the court for an order shall be by motion which, unless made dur ing a hearing or trial, shall be made in writing, shall state with particularity the grounds therefor, and shall set forth the relief or order sought. The requirement of writing is fulfilled if the motion is stated in a written notice of the hearing of th e motion.
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. Mary Ann also acknowledges that on July 2, 2013, Brian filed a renewed motion for dismissal based on the statute of limitations defense.# 26 835

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- [¶ 9. ] The final error Mary Ann asserts is that Brian did not properly respond to her initial motion for summary judgment. SDCL 15

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- 56( c) provides in part: [A] judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and th at the moving party is entitled to a judgment as a matter of law. While Brian did not dispute any of the material facts alleged by Mary Ann, he did raise the statute of limitations as a defense in both his answer and during the summary judgment hearing. Because the court concluded that Mary Ann was no t yet entitled to a judgment as a matter of law, it did not err in withdrawing its order so that the parties could brief th e statute of limitations issue.
2. Enforcement of Divorce Decree [¶ 10. ] I n awarding Mary Ann only seven installments of the loan, the circuit
court ruled that the loan agreement was controlled by the statute of limitations for breach of contract rather than the limitations period for enforcement of a divorce decree. As a resul t, Mary Ann could not obtain a judgment on the earlier loan installments because a cause of action on those was barred by the statute of limitations. Mary Ann argues that the circuit court erred in determining that she could not enforce Brian and Sandra’s divorce decree to recover the entirety of the debt

. [¶ 11. ] A breach of contract action is subject to a six

- year statute of limitations. SDCL 15

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- 13. E nforcement of a divorce decree , however, is subject to a twenty

- year statute of limitations. SDCL 15

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- 6. To obtain the amount Brian# 26 835

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- owed her, Mary Ann sought to enforce Brian and Sandr a’s divorce d ecree , which allocated the remaining loan payments on the house to Brian. Mary Ann argues that she is eligible to enforce the terms of Brian and San dra’s divorce decree because the debt owed to her was listed in the decree. The circuit court concluded that Mary Ann was not a party to the divorce decree, and therefore, her claim was subject to the six

- year statute of limitations for breach of contract

. While part of Mary Ann’s claim against Brian is barred under the breach of contract statute of limitations, her entire claim can advance if she can enforce the divorce decree. Accordingly, Mary Ann asks us to consider two possible avenues to allow her to enforce the terms of the decree so that the twenty

- year statute of limitations applies. [¶ 12. ] Mary Ann first contends that Sandra can enforce the divorce decree on behalf of Mary Ann against Brian because Sandra was a party to the divorce dec ree and could be liable to Mary Ann for the outstanding debt

. Both Mary Ann and Sandra are parties to this suit. To support her position , Mary Ann points to a North Dakota case: Recovery Res ources , LLC v. Cupido , 818 N.W.2d 787 (N.D. 2012). Cupido invol ved a statutory right to collect a debt under N.D.C.C. §§ 14

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- 08(3)
and 14

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- 10 for medical expenses incurred during a marriage. 7 The wife claimed

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. N.D.C.C. § 14

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- 10 provides: The parties to a marriage are mutually liable to any person who in g ood faith supplied either party with articles necessary for their support. Such persons may recover the reasonable value from either party except in the cases when by law one party is not liable for the support of the other. (continued . . .)# 26 835

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- that her divorce action discharged her from paying her husband’s debt incurred during the ir marriage beca use their divorce decree had made h im responsible for paying that obligation . The North Dakota Supreme Court rejected this argument , ruling that “ [ a ] court’s division of debts in a divorce action does not affect the rights of third

- party creditors.” Cupi do , 818 N.W.2d at 791. The court concluded that the wife remained liable for her husband’s debt. Id. at 792. The court did note, however, that the wife was not precluded from taking action later against her ex

husband to enforce the divorce decree

. Id. [¶ 13. ] N othing in Cupido supports Mary Ann’s assertion that Sandra can enforce the divorce decree as a plaintiff so that Mary Ann can be paid under the divorce decree. In Cupido , both the divorced husband and wife were defendants who were sued t o collect a contractual debt

. The court’s language does not suggest that the wife could have joined with the creditor to enforce a divorce decree and extend the statute of limitations period to sue her former husband

. In the instant
case, Sandra is not s uing f or money unpaid to her. Nor is Sandra suing Brian to indemnify herself because she paid Mary Ann the debt. Sandra was joined as a party plaintiff as a maneuver around the statute of limitations so that Mary Ann

can recover the outstanding debt from Brian

. Sandra can obtain no relief as a party

__________________ (. . . continued) N.D.C.C. § 14

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- 08(3) provid es: The husband and wife are liable jointly and severally for any debts contracted by either, while living together, for necessary household supplies of food, clothing, and fuel, medical care, and for shelter for themselves and family, and for the educati on of their minor children.# 26 835

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- to this suit. Contrary to Mary Ann’s claim, there is a difference in allowing Sandra to indemnify herself against a suit from Mary Ann, and allowing her to join as a plaintiff in a suit against Brian. Mary Ann cites no case law to support the result she seeks . The circuit court acknowledged this distinction and ruled accordingly. [¶ 14. ] Mary Ann argues in the alternative that she holds a vested equitable interest to enforce the terms of the divorc e decree. For support, she cites Fox v.
Burden , 1999 S.D. 154, 603 N.W.2d 916

. 8 In Fox , a divorce stipulation was signed by both Burden and Fox and incorporated into the divorce decree. Id. ¶ 2, 603 N.W.2d at 918. As part of the stipulation , Fox agreed to change the name of the beneficiary on his $100,000 insurance policy from Burden to his minor children. Id. When Fox unexpectedly passed away ten days after the divorce decree was entered, no change had been made to his will or life insurance policy. Id. ¶ 3. Burden applied for and received the $100,000 proceeds from Fox ’s life insurance policy. Id. Nearly eight years later, however, Fox ’s daughter Shanna discovered the provision in the di vorce decree naming her and her brother Micha el as the benef iciaries to Fox ’s life insurance policy. Id. ¶ 6, 603 N.W.2d at 919. We conclude d that Shan n a had a superior right over Burden to the life insurance proceeds and could enforce the divorce decree because there was a specific reference to the insurance pol icy in the decree. Id. ¶ 23, 603 N.W.2d at 922

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. We also noted that Burden and Fox

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. While part of Fox was abrogated by Wehrkamp v. Wehrkamp , 2009 S.D. 84 ¶ 6, 773 N.W.2d 212 , 214 (abrogating Fox in part, which “mistakenly noted that . . . the contract statute of limitations applied to enforcement of the [div orce] stipulation.”), the rest of the decision remains intact

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- had incorporated the insurance policy into the divorce decree for the purpose of protecting the financial welfare of their children. Id. ¶ 21, 603 N.W.2d at 922. [¶ 15. ] Mary Ann also cites Wehrkamp v. Wehrkamp , where we held that

“ when it comes to the limitations period for enforcement of [a divorce] agreement, if it is incorporated into the divorce decree, such agreement merges into the decree and becomes part of the judgment.” 2009 S.D. 84, ¶ 7, 773 N.W.2d at 214

- 15. In that case , the daughter of a divorced husband and wife sought to enforce a stipulation in the divorce decree that required her father to pay for her college
expenses. Id. ¶ 1, 773 N.W.2d at 2 13 . T his C ourt applied the twenty

- year divorce decree statute of limitations, determining that the daughter could enforce that provision, which was incorporated into the decree. Id. ¶ 7, 773 N.W.2d at 215. [¶ 16. ] In the present case, the circuit court concluded that Mary Ann could not enforce the divorce decree to receive the unpaid money owed by Brian. The court distinguished We h r kamp and Fox , noting that those cases involved the parent s ’ children as third

- party beneficiaries. More important , however, th e obligations in Wehr kamp and Fox were explicitly incorporated into the divorce decree. In contrast, there is no evidence that the pre - existing debt obligation to Mary Ann was incorporated into Brian and Sandra’s divorce decree. Instead, the d ecree merely indicated how the marital assets and debts would be equitably divided as provided by law

. See Muenster v. Muenster , 2009 S.D. 23, ¶ 16, 764 N.W.2d 712, 717 (S.D. 2009) ; see also SDCL 25

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- 44 (“ When a divorce is granted, the courts may make an equ itable division of the property[.]”). There is nothing that distinguishes the debt to Mary Ann from the other liabilities in the divorce# 26 835

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- decree. Moreover, Mary Ann cites no authority to support her position that a third

party creditor can use a divor ce decree to extend a statute of limitations period for a
pre - existing debt obligation where that obligation is not specifically incorporated
into the decree

. 9 Therefore, because Mary Ann was not a party to the divorce decree , and because the debt Brian o wed was not incorporated into the decree , the circuit court was correct in ruling that Mary Ann could not enforce the decree.
3. Statute of Limitations [¶ 17. ] With Mary Ann unable to enforce Sandra and Brian’ s divorce decree, h er remaining clai m against Brian is for breach of contract , subject to a six

- year statute o f limitations under SDCL 15

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. Accordingly , the circuit court awarded Mary Ann the sum of seven installments on the loan. The loan agreement provided that each installment payme nt was to be made at the start of each month, beginning July 1, 1999, and ending June 1, 2007. Each installment required a payment of $200, except for the final installment, which required a payment of $777.50. The contract did not contain an acceleratio n clause.

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. Mary Ann does cite one case from Texas: Stine v. Stewart , 80 S.W.3d 586 (Tex. 2002 ) (per curiam) . The facts in Stine are somewhat similar to ours

. In Stine , a mother

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- law brought a third

- party beneficiary breach of contract action against her son

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- law based on an agreement incident to the divorce from her daughter. Id. at 588. The Texas court noted that the agreement acknowledged the debt owed and thus created a new obligation. Id. a t 591. Notably in that case, however, the Texas Supreme Court recognized that a third party could not enforce a divorce decree when the agreement “merely allocated responsibility for any . . . fees as part of the division of their marital property.” Id. (citing Brown v. Fullenweider , 52 S.W.3d 169, 170 (Tex. 2001) )

. Moreover, unlike Stine , there is nothing in Sandra and Brian’s divorce decree that treats the debt owed to Mary Ann as distinct from all other assets and liabilities. See id. Accordingly, S tine appears to support the circuit court’s conclusion.# 26 835

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- [¶ 18. ] In determining the amount Mary Ann could recover from Brian, the circuit court treated each installment on the loan as a separate cause of action so that each installment had its own limitations period. The court then determined Mary Ann was entitled to seven installments on the loa n beginning on December 1, 2006, and ending June 1, 2007. All payments owed before December 1, 2006, were barred by the statute of limitations . The general rule is that when money is owed in an inst allment contract, “[a] separate cause of action arises on each installment, and the statute of limitations run s separately against each, except where the creditor has a right to accelerate payments . . . .” 31 Samuel Williston & Richard Lord , A Treatise o n the Law of Contracts § 79:17 (4th e d. 199 3); see also City of Lincoln v. Hershberger , 725 N.W.2d 787, 791 (Neb. 2007) (noting that “ where an obligation is payable by installments, the statute of limitations runs against each installment individual ly from the time it becomes due”)

. Because the loan agreement did not contain an acceleration clause, the court was correct in determining that Mary Ann could recover only the last seven unpaid installments on the loan. The right to sue on a ll the earlier insta llments had expired under the statute of limitations, and therefore the court did not err in ruling that Mary Ann could not recover those installments. [¶ 19. ] Affirmed

. [¶ 20. ] GILBERTSON, Chief Just ice, and ZINTER, SEVERSON, and WILBUR , Justices, concur.