author: VANDE WALLE, Chief Justice.

text:
    2008 ND 14
    Kandas K. WOLD, Plaintiff, Appellee, and Cross-Appellant v. Kirk R. WOLD, Defendant, Appellant, and Cross-Appellee.
    No. 20060342.
    Supreme Court of North Dakota.
    Jan. 23, 2008.

      H. Malcolm Pippin, Nilles, Ilvedson, Plambeck & Seibo, Ltd., Williston, N.D., for plaintiff, appellee, and cross-appellant.
    Dann E. Greenwood, Greenwood & Ramsey, PLLP, Dickinson, N.D., for defendant, appellant, and cross-appellee.
   VANDE WALLE, Chief Justice.

[¶ 1] Kirk Wold appealed from a judgment granting his spouse, Kandas Wold, a decree of divorce on the grounds of irreconcilable differences, asserting the district court erred in dividing the marital property and in awarding Kandas Wold spousal support. Kandas Wold filed a cross-appeal, asserting the court erred in dividing the marital property and erred in failing to provide security for her spousal support payments. Kandas Wold also requests attorney fees on appeal. We hold the district court’s division of the marital property and award of spousal support are not clearly erroneous. We further hold the district court did not abuse its discretion in refusing to provide security for the spousal support payments. We deny Kandas Wold’s request for attorney fees on appeal, and we affirm the judgment.

I

Facts

[¶ 2] Kirk and Kandas Wold were married on July 28, 1990, and their son was born September 6, 1991. At the time of the marriage, Kandas Wold was employed as a waitress and Kirk Wold was employed as an oil field laborer. In 1991, the parties purchased Panther Pressure Testers (“Panther”), an oil field service business involved in pressure testing oil field equipment. Kirk Wold operated the oil field business and Kandas Wold performed office work for the business. In early June 2003, Kirk Wold moved out of the marital home. He continued to operate the business and another person was hired to do most of the office work previously performed by Kandas Wold.

[¶ 3] Upon granting a decree of divorce, the district court awarded custody of the parties’ son to Kandas Wold with reasonable visitation for Kirk Wold and ordered Kirk Wold to pay child support of $2,102 per month. The court determined the parties had a total net worth of $952,484.90. Of that amount the court awarded $485,165.31 to Kandas Wold and $467,319.59 to Kirk Wold. The court also ordered Kirk Wold to pay spousal support to Kandas Wold of $3,000 per month for 20 years.

II

Property Division

[¶4] Kirk Wold asserts the district court did not make an equitable division of the marital property. He asserts the court erred when it awarded the business to him while awarding some of the business property to Kandas Wold without making appropriate adjustments to the value of the business. Kandas Wold, in her cross-appeal, also asserts the trial court failed to make an equitable division of the property. She asserts the district court valued the business too low and erred in failing to include Cheetah Rentals as part of the marital assets. Kandas Wold asserts Cheetah Rentals “is simply Panther Pressure Testers with a different name and now attempted to be hidden” by Kirk Wold and his girlfriend, who now owns that part of the business.

[¶ 5] Under N.D.C.C. § 14-05-24(1), the district court, upon granting a divorce, must make an equitable distribution of the marital property. The court must ascertain the value of the marital estate and then apply the Ruff-Fiseher guidelines to equitably distribute the property. Lorenz v. Lorenz, 2007 ND 49, ¶ 6, 729 N.W.2d 692. Factors for consideration under those guidelines include:

The respective ages of the parties, their earning ability, the duration of the marriage and conduct of the parties during the marriage, their station in life, the circumstances and necessities of each, their health and physical condition, their financial circumstances as shown by the property owned at the time, its value at the time, its income-producing capacity, if any, whether accumulated before or after the marriage, and such other matters as may be material. The [district] court is not required to make specific findings, but it must specify a rationale for its determination.

Id. at ¶ 6; Fischer v. Fischer, 139 N.W.2d 845, 852 (N.D.1966); Ruff v. Ruff 78 N.D. 775, 52 N.W.2d 107, 111 (N.D.1952). The district court is not required to make specific findings on each Ruff-Fischer factor, but must explain the rationale for its decision. Wagner v. Wagner, 2007 ND 101, ¶ 10, 733 N.W.2d 593.

[¶ 6] We review a district court’s determination regarding the distribution of property as a finding of fact, and we will not reverse unless the district court’s findings are clearly erroneous. Donlin v. Donlin, 2007 ND 5, ¶ 10, 725 N.W.2d 905. A finding of fact is clearly erroneous if it is induced by an erroneous view of the law, there is no evidence to support it, or if, although there is some evidence to support it, on the entire evidence a reviewing court is left with a definite and firm conviction a mistake has been made. Id. (quoting Kautzman v. Kautzman, 1998 ND 192, ¶ 8, 585 N.W.2d 561). A property division need not be equal to be equitable, but a substantial disparity must be explained. Amsbaugh v. Amsbaugh, 2004 ND 11, ¶ 23, 673 N.W.2d 601.

[¶ 7] The parties claim the district court committed several mathematical and accounting errors in valuing the marital estate. Kirk Wold asserts the court erred in using an asset valuation methodology for determining the value of the business and then awarding the building out of which the business was operating and other business property to Kandas Wold without making an appropriate reduction to the value of the business awarded to him. Kandas Wold asserts the court erred by not including in the marital estate the value of rental operations which were originally part of Panther, but which she asserts Kirk Wold unilaterally transferred to Cheetah Rentals, owned and .operated by his girlfriend.

[¶ 8] The district court addressed these valuation matters in its November 18, 2005 memorandum opinion, in its order regarding motions for reconsideration, dated May 22, 2006, and in its corrected findings of fact, conclusions of law, and order for judgment, dated September 19, 2006. The following statements by the court in those documents highlight and explain the court’s reasoning in valuing and distributing the marital property:

Two competing experts valued the business. [Kandas Wold’s] expert [Donald] Kainz used the income approach to come up with market value, and [Kirk Wold’s] expert [Leonard] Sliwoski used the asset approach to come up with market value....
Interestingly, the approach utilized by Kainz valued the business at $640,000.00, whereas the approach utilized by Sliwoski found the value to be $168,000.00.
As concerns the valuation of the parties’ business, Panther Pressure Testers, the Court finds the asset approach utilized by [Kirk Wold’s] expert, Leonard J. Sliwoski, Ph. D., is much more logical as it relates to these facts and this business. This is an oilfield service company which gets most of its success from entrepreneurial activities of the owner-operator. Those include extremely hard work, long and irregular hours, dependability, and most importantly, the trust and contacts in the oilfield of the other persons who can be characterized as “good old oilfield boys.” That trust and network is not easily transferrable, and without tremendous assistance from the seller over a long period of time would dissipate. The Court finds that no knowledgeable buyer would pay much for the business when he could obtain all the “hard assets” for prices close to Sliwoski’s figures.
Thus, based upon Sliwoski’s methodology, the Court finds that the current value of Panther is ... $235,929.00.
In the context of [Kirk Wold’s] Motion for Reconsideration, insofar as it requests reconsideration of the valuation of Panther Pressure Testers based upon claims that certain items of property awarded to [Kandas Wold] were business assets, the Court finds that the values and distributions set forth above are fair and equitable under all the circumstances ....
In effect, [Kirk Wold] asks that a company which annually nets hundreds of thousands of dollars have a valuation of $34,000. Although the Court does not accept the income approach recommended by [Kandas Wold], the Court will not depart from reality to the point of finding that income of that amount can come from an empty bag.
[Kandas Wold] suggests that assets and/or income stream from Cheetah Sales and Rentals, the rental business owned by Ms. Wilson which was formed with assistance of [Kirk Wold], is somehow available for the Court’s distribution in this action. The Court finds that it clearly is not.
The business and profitability of Pan- . ther Pressure Testers has increased significantly since [Kirk Wold] got out of the rental business which was subsequently taken over by Cheetah....
[T]he Court does find that [Kirk Wold] engaged in more outrageous conduct toward [Kandas Wold] during the latter stages of the marriage than that exhibited by [Kandas Wold], The blatant affair, the exclusion of [Kandas Wold] from involvement in what had been a joint family business, the modification of business involvement without notice to [Kan-das Wold] (abandoning the rental business and assistance of Cheetah to step into the void) are all items of fault which the Court can look to as a basis of unequal distribution.
[T]he Court believes the values and distributions set forth in the earlier Order are fair and equitable under all the circumstances and declines to modify the same in piecemeal fashion.

[¶ 9] A district court’s property valuation is a finding of fact subject to the clearly erroneous standard of review. Holden v. Holden, 2007 ND 29, ¶ 9, 728 N.W.2d 312. We presume a district court’s property valuations are correct, and we will not reverse the court’s valuations or division of marital property unless they are clearly erroneous. Id. Generally, the court’s property valuations are not clearly erroneous if they are within the range of the evidence presented. Kostelecky v. Kostelecky, 2006 ND 120, ¶ 9, 714 N.W.2d 845.

[¶ 10] Here, the court’s valuation of the parties’ business at $235,929 is within the valuation range provided by the testimony of the parties’ experts. Considering the parties do not dispute the business is capable of generating net income in excess of $200,000 per year, the court’s valuation seems reasonable, if not modest. However, the court explained that it chose not to place a higher valuation on the business by using an income valuation model, because the business enjoyed “most of its success from entrepreneurial activities of the owner-operator ... not easily transferable.” The court explained it found no reason to add value to the business taking into consideration the rental operations transferred to an outside business entity because “[t]he business and profitability of Panther Pressure Testers has increased significantly since [Kirk Wold] got out of the rental business.” The court explained its award of slightly greater value to Kan-das Wold than to Kirk Wold was justified, because Kirk Wold “engaged in more outrageous conduct,” including “modification of business involvement without notice” to Kandas Wold.

[¶ 11] We are not left with a definite and firm conviction that a mistake has been made by the district court in valuing the marital property. We, therefore, conclude the district court’s distribution of the marital estate is not clearly erroneous.

Ill

Spousal Support

[¶ 12] The district court awarded Kandas Wold spousal support of $3,000 per month for 20 years. Kirk Wold asserts the trial court’s award of spousal support is clearly erroneous, because the evidence does not support a $3,000 per month award of permanent spousal support, rather than a lesser amount of rehabilitative spousal support.

[¶ 13] Under N.D.C.C. § 14-05-24.1, a district court in a divorce case may require one party to pay spousal support to the other for any period of time. The decision whether to award spousal support is a finding of fact and will not be set aside on appeal unless it is clearly erroneous. Lorenz v. Lorenz, 2007 ND 49, ¶ 31, 729 N.W.2d 692. Spousal support awards must be made in consideration of the requesting spouse’s needs and the supporting spouse’s needs and ability to pay. Christianson v. Christianson, 2003 ND 186, ¶ 17, 671 N.W.2d 801. It is not necessary for the court to determine a spouse is disadvantaged by the divorce to award spousal support to that spouse. Sack v. Sack, 2006 ND 57, ¶ 12, 711 N.W.2d 157. Rather, the court must perform a comprehensive analysis under the Ruff-Fischer guidelines in determining the appropriateness of awarding support. Id.

[¶ 14] Permanent spousal support and rehabilitative spousal support are two distinct remedies. Sommer v. Sommer, 2001 ND 191, ¶ 14, 636 N.W.2d 423. Rehabilitative spousal support is appropriate when it is possible to restore a spouse to independent economic status or to equalize the burden of the divorce by increasing that spouse’s earning capacity. Id. Permanent spousal support is generally appropriate when a spouse cannot be equitably rehabilitated to make up for the opportunities lost in the course of the marriage. Id. Even when a spouse is capable of rehabilitation, permanent spousal support may be an appropriate remedy to ensure the parties equitably share the overall reduction in their separate standards of living. Id.

[¶ 15] The district court explained its award of spousal support in its corrected findings of fact:

This is a relatively long-term marriage. [Kirk Wold] has a proven capacity to earn in excess of $200,000 net per year. [Kandas Wold] has earning capacity of less than 10% of that from her labors.
[Kirk Wold] can utilize pre-tax dollars for significant portions of his expenditures, both needed expenditures and discretionary.
[Kandas Wold] has no reasonable capacity or expectation of rehabilitation to a level to allow a continuation of her standard of living without significant and continuing spousal support.
[Kirk Wold] has the capacity for continuation of his current lifestyle and payment of spousal support.
The property distribution in this case was intentionally designed to reduce the cost of living of [Kandas Wold] (home free and clear, potential income from shop, potential income from investments, no other debts).
Notwithstanding that distribution scheme, [Kandas Wold] would still be unable to maintain her pre-divorce standard of living....
To accommodate that standard of living the Court finds that it is necessary to award spousal support from [Kirk Wold] to [Kandas Wold] in the sum of $3,000.00 per month.

[¶ 16] Property division and spousal support are interrelated and intertwined and often must be considered together. Kostelecky v. Kostelecky, 2006 ND 120, ¶ 14, 714 N.W.2d 845. Here, the district court considered the interrelated nature of the property division and the request for spousal support and also took into consideration Kandas Wold’s needs for support and Kirk Wold’s needs and ability to pay support.

[¶ 17] The court found the parties’ 15-year marriage qualified as a “long-term marriage.” At the time of trial, Kandas Wold was working as a bank teller earning about $15,000 per year. However, Kirk Wold was operating the Panther business with income expectations in excess of $200,000 per year. Recognizing the income disparity, the court determined that a spousal support award to Kandas Wold of $3,000 per month was justified to balance the economic burden created by the parties’ separation. We conclude the court’s findings of fact are supported by the record evidence and its spousal support award is not clearly erroneous.

IV

Spousal Support Security

[¶ 18] Kandas Wold asserts the district court erred in refusing to grant her request for some type of security to guarantee Kirk Wold will continue to pay spousal support during his lifetime and that support payments will continue in the event of Kirk Wold’s death.

[¶ 19] Under N.D.C.C. § 14-05-25, a district court may require reasonable security for a maintenance obligation and may employ any remedy applicable to the case to enforce spousal support. Gierke v. Gierke, 1998 ND 100, ¶26, 578 N.W.2d 522. It is within the district court’s discretion to order security for a spousal support obligation. Id. Kandas Wold has not persuaded us the district court abused its discretion in refusing to require Kirk Wold to provide security for payment of spousal support.

V

Attorney Fees

[¶ 20] Kandas Wold has requested attorney fees on appeal. Attorney fees may be awarded in a divorce action when one spouse has a need for them and the other spouse has an ability to pay. Dvorak v. Dvorak, 2005 ND 66, ¶ 32, 693 N.W.2d 646. The district court and this Court have concurrent jurisdiction to award attorney fees for an appeal in a divorce proceeding. Ebach v. Ebach, 2005 ND 123, ¶ 21, 700 N.W.2d 684. When attorney fees are requested on appeal, we often prefer to have the district court determine the appropriateness of awarding fees and remand to the district court for a decision on the issue. However, Kandas Wold requested attorney fees during the trial court proceedings, and the district court denied the request, explaining in its memorandum opinion:

[Kandas Wold’s] counsel has requested additional attorney fees to be paid by [Kirk Wold]. Upon compliance with this Order, both parties should have sufficient liquidity to satisfy their respective counsel without undue hardship. [Kan-das Wold] alleges that the bulk of the fees were occasioned by [Kirk Wold’s] actions in changing attorneys, etc. The Court does not find that to be the case.
No additional fees or costs are awarded to either party.

Under the circumstances and in view of the district court’s explanation for denying attorney fees at the trial proceedings, we deny Kandas Wold’s request for attorney fees on appeal.

VI

Conclusion

[¶ 21] We hold the trial court’s division of marital property and award of spousal support are not clearly erroneous. We further hold the trial court did not abuse its discretion in refusing to impose security for payment of spousal support, and we affirm the judgment.

[¶ 22] DONOVAN FOUGHTY, D.J., CAROL RONNING KAPSNER, and MARY MUEHLEN MARING, JJ., concur. I concur in the result. DALE V. SANDSTROM.

[¶ 23] The Honorable DONOVAN JOHN FOUGHTY, D.J., sitting in place of CROTHERS, J., disqualified.


source: Caselaw Access Project

author: GILBERTSON, Chief Justice.

license: Public Domain

text:
    2007 SD 133
    In the Matter of the ESTATE OF Connie L. PALMER, Deceased.
    No. 24422.
    Supreme Court of South Dakota.
    Considered on Briefs Nov. 6, 2007.
    Decided Dec. 26, 2007.
    Jonathan K Van Patten, Vermillion, South Dakota and David Natvig of Natvig Law Office Kimball, South Dakota, Attorneys for appellant, Linda Wieser.
    Chris A. Nipe of Larson and Nipe Mitchell, South Dakota, Attorneys for ap-pellee Larry Hoeffner.
   GILBERTSON, Chief Justice.

[¶ 1.] On July 10, 2007, Linda L. Wieser (Linda) filed an application in the South Dakota First Judicial Circuit Court for informal probate and appointment of personal representative, in connection with the estate of her deceased sister, Connie L. Palmer (Connie). With the application, Linda submitted a will dated March 21, 2000 and an alleged codicil dated January 23, 2006. On July 24, 2006, Connie’s husband, Larry G. Hoeffner (Larry), filed a petition for intestacy, appointment of heirs and appointment of personal representative. The circuit court entered findings of fact, conclusions of law and judgment for Larry. We affirm.

FACTS AND PROCEDURE

[¶ 2.] Connie and Larry were married for a period of time in the 1980s and later divorced. The two remarried on May 1, 2005. A short time after their re-marriage, Connie was diagnosed with cancer. She died on March 6, 2006.

[¶ 3.] After Connie’s death, her sister Linda presented a will for probate that Connie executed on March 21, 2000. Larry was not mentioned in the will, which will left everything to Linda. Connie had not executed a will subsequent to her marriage to Larry. While Larry did not contest the will’s validity, he asserted that their re-marriage in 2005 rendered the will ineffective, and that Connie’s estate should therefore be distributed according to intestacy statutes.,

[¶ 4.] Along with the probate documents, Linda submitted a typewritten instrument with a typewritten date of January 23, 2006 that Linda alleged to be a codicil to the March 21, 2000 will. Linda claimed that Connie signed the alleged codicil. The only witness to Connie’s signature was Linda. The alleged codicil provides as follows:

IF I AM DECEASED AS THE LAST WILL AND TESTAMENT STATES EVERYTHING IS ABSOLUTELY MY SISTERS (sic) (LINDA L. WIESER.) LARRY HOEFFNER WILL NOT BE ALLOWED TO REMAIN OR TO STAY IN THIS HOUSE. HE HAS A REASONABLE AMOUNT OF TIME TO GATHER HIS PERSONAL BELONGINGS AND TO LEAVE. 2 OR 3 MONTHS. 3 MONTHS AT THE ABSOLUTE MAXINUM. (sic) AT THE TIME OF HIS DEPARTURE HE MUST GIVE TO MY SISTER (LINDA L. WIESER) HIS HOUSE KEYS AND THE GARAGE DOOR OPENERS WHICH I PURCHASED. THE HOME MUST BE LEFT CLEAN OR HE IS RESPONSIBLE FOR LEAVING MY SISTER MONIES (sic) TO HAVE IT CLEANED. I WANT THE GARAGE AS CLEAN AS THE HOUSE WHICH IT WAS WHEN HE MOVED HIS BELONGINGS IN.

(First emphasis added, subsequent emphases original).

[¶ 5.] Linda also submitted a document entitled “Instructions in the Event of My Death” (Instructions). The Instructions were not signed. The first page of the Instructions bears the typewritten date, March 25, 2000. However, this date is crossed out and replaced with a handwritten date of “1/20/06.” At the October 27, 2006 probate hearing, Linda admitted replacing the typewritten date, but was unable to recall when or for what reason. The Instructions direct as follows:

NEXT GO TO MITCHELL FORD. I WILL BE EMPOLYED THERE BECAUSE OF THE DISABILITY OF THE CANCER. I HAVE LIFE INSURANCE AT MITCHELL FORD WORTH $10,000.00 AND A QUITE LARGE SAVINGS ACCOUNT WITH NATIONAL AUTO DEALERS ASSOCIATION. LINDA L. WIESER IS THE BENEFICIARY ON THESE AC-COUTNS. ALL OF THIS MONEY IS LEFT TO LINDA TO DO AS SHE CHOOSES, WHICH I PRAY WILL BE TOTALLY SPENT ON HERSELF ONLY. NEW MUSTANG, PAY OFF GRANDMA’S HOUSE, GO ON VACATION, FUN, FUN THINGS FOR HER TO ENJOY.

(Emphasis added).

[¶ 6J Following the probate hearing, the circuit court entered judgment for Larry along with findings of fact and conclusions of law on December 27, 2006. In its conclusions of law, the court determined that for Larry to show that Connie’s March 21, 2000 will was ineffective, he had the burden to prove there had been a marriage, Connie had died, she had executed no will following the date of the marriage and she left no surviving descendants. Since, there was no dispute between the parties in regard to Larry’s burden, the circuit court concluded that Larry met the burden.

[¶ 7.] The circuit court also concluded that Linda had the burden to prove by “clear and convincing evidence” that the alleged, January 23, 2006 codicil was intended by Connie as a new will or an addition to the existing will, reflecting her testamentary intent after the marriage to Larry. The court then concluded that “based on the totality of the evidence, including the witnesses and the documents ... presented,” Linda did not provide “clear and convincing evidence” that the alleged codicil was intended as a new will, an addition to an existing will or that it “reflected the testamentary intent of Connie ... after her marriage to Larry....”

[¶ 8.] In support of its conclusions, the circuit court entered findings of fact that the alleged 2006 codicil, while part of the probate documents, was not part of the will. The court found it was typewritten and, while signed by Connie, was witnessed only by Linda. The court noted that Linda was the only person who was present when the document was signed and the only person who was aware of its existence. Moreover, the trial court found it significant that after Connie married Larry she went to an attorney to draw up a power of attorney, but that the services of an attorney were not employed in the drafting or execution of this disputed “will.”

[¶ 9.] The circuit court found that the Instructions admitted as Exhibit “B” were of doubtful validity. In this regard, the court cited the multiple dates, the typewritten, unsigned nature of the Instructions and Linda’s admission that she had altered the date on the first page by changing March 25, 2000 to January 11, 2006. The circuit court also found that Linda’s testimony was not credible as to how she came by the will, alleged codicil and Instructions. The court further stated in its findings that various e-mails, submitted by Linda in support of her claim that Connie and Larry were having marital problems and that Connie intended to leave all of her property to Linda, were of questionable validity. Moreover, the court found that Connie’s cancer had taken its toll on her and that at the time the alleged codicil was executed, Connie had received chemotherapy, radiation treatments and blood transfusions and was receiving a battery of drugs and medications that included, morphine, magnesium, calcium, lipitor, 1-thyroxine, diltazem, paroxetine, atenolol, alprozolam, atropine, xalatine, MVT, vitamin C, and morphine IR. Conversely, the court found that Larry lived with Connie and took care of her from the date of their marriage until the date of her death and that Connie considered Larry to be “the love of her life.”

[¶ 10.] The circuit court declared Connie’s estate intestate and awarded it to Larry. The circuit court also appointed Larry personal representative. Linda concedes that she did not object to the circuit court’s findings of fact and conclusions of law, or propose any of her own.

[¶ 11.] On appeal Linda raises the following issue:

Whether the circuit court erred when it concluded that Linda failed to present clear and convincing evidence that Connie intended the alleged, January 23, 2006 codicil, as a new will or an addition to the March 21, 2000 will or that it reflected the testamentary intent of Connie after her marriage to Larry.

STANDARD OF REVIEW

[¶ 12.] In civil cases the trial court is required to enter findings of fact and conclusions of law in all actions not tried before a jury. SDCL 15-6-52(a). Our standard of review when an appellant fails to object to or propose findings of fact and conclusions of law is narrow and well settled. “ ‘The failure of an appellant to object to findings of fact and conclusions of law or to propose his or her own findings, limits review to the question of whether the findings support the conclusions of law and judgment.’ ” Sutera v. Sully Buttes School Dist. 58-2, 1997 SD 27, ¶9, 561 N.W.2d 20, 23 (quoting Premier Bank, N.A. v. Mahoney, 520 N.W.2d 894, 895 (S.D.1994) (quoting Huth v. Hoffman, 464 N.W.2d 637, 638 (S.D.1991))).

ANALYSIS AND DECISION
[¶ 13.] Whether the circuit court erred when it concluded that Linda failed to present clear and convincing evidence that Connie intended the alleged, January 23, 2006 codicil, as a new will or an addition to the March 21, 2000 will or that it reflected the testamentary intent of Connie after her marriage to Larry.

[¶ 14.] Since Linda failed to propose findings of fact and conclusions of law, she argues that the circuit court erred when it concluded she did not meet the burden of proof necessary for her to have the alleged January 23, 2006 codicil probated. She does not contest the court’s findings nor, as set out in our standard of review, will we consider their validity on this appeal.

[¶ 15.] SDCL 29A-2-502 sets out the requirements for a duly executed will. The statute provides in pertinent part:

(a) A will is valid as a holographic will, whether or not witnessed, if the signature and material portions of the document are in the testator’s handwriting.
(b) A will not valid as a holographic will must be:
(1) In writing;
(2) Signed by the testator or in the testator’s name by some other individual in the testator’s conscious presence and by the testator’s direction; and
(3) Signed in the conscious presence of the testator by two or more individuals who, in the conscious presence of the testator, witnessed either the signing of the will or the testator’s acknowledgment of that signature.

SDCL 29A-2-502 (emphasis added).

[¶ 16.] A writing that does not comply as a duly executed will under SDCL 29A-2-502, may still be treated as duly executed and probated if its proponent can establish by clear and convincing evidence that the decedent intended it as “(i) the decedent’s will, (ii) a partial or complete revocation of the will, (iii) an addition to or an alteration of the will, or (iv) a partial or complete revival of a formerly revoked will or of a formerly revoked portion of the will.” SDCL 29A-2-503 (emphasis added). The contestant of a will admitted for probate has “the burden of establishing lack of testamentary intent or capacity, undue influence, fraud, duress, mistake, or revocation.” SDCL 29A-3-407 (emphasis added).

[¶ 17.] Linda concedes that the alleged codicil was not duly executed since it did not comply with the requirements set out under SDCL 29A-2-502. Linda further concedes that since the alleged codicil did not comply with SDCL 29A-2-502, she, as its proponent, had under SDCL 29A-2-503, the burden to demonstrate by clear and convincing evidence that Connie intended the alleged codicil as a new will or addition to the March 21, 2000 will. However, Linda avers that the circuit court’s findings of fact did not provide sufficient support for its conclusion that she failed to meet the burden set forth under SDCL 29A-2-503.

[¶ 18.] Linda suggests that in this case the burden imposed under SDCL 29A-2-503 required her to establish by clear and convincing evidence that (1) the alleged codicil was authentic; (2) testamentary in character; and (3) that Connie possessed testamentary capacity. Linda argues that authenticity was established by the circuit court’s finding that Connie signed the alleged codicil. She then argues that testamentary character was established by the circuit court’s finding that the alleged codicil left everything to Linda and directed Larry to vacate the house. Connie then contends that the circuit court entered no finding that Connie lacked testamentary capacity. Linda thus asserts that the circuit court arrived at its conclusion by erroneously “shifting” the opposite of a will contestant’s burden under SDCL 29A-3-407 — absence of undue influence, fraud or duress — to her as the proponent of a noncomplying will under SDCL 29A-2-503.

[¶ 19.] We agree with Linda’s assessment of the showing required by a proponent of a non-complying will. Further, we agree that the circuit court’s findings can be read to support the existence of an authentic signature by the decedent. However, the issue of testamentary capacity is not altogether clear. The circuit court went into great detail in describing the nature of Connie’s final illness, the treatments she was undergoing and the numerous drugs she was taking at the time. The circuit court found “although she had good days and bad days, she was progressively weakened and was in pain.” Yet, the circuit court stopped short of concluding this deprived her of testamentary capacity. Nevertheless, remand on this point is unnecessary as the court is clear on Linda’s failure in her burden to establish that Connie intended this document to be her last will and testament:

Based upon the totality of the evidence, including the credibility of the witnesses and the documents that they presented to the court, the court finds as a fact that the documents and other evidence presented by Linda Wieser do not constitute clear and convincing evidence that those documents are intended as a will or an addition to an existing will or reflect the testamentary intent of Connie Palmer after her marriage to Larry Hoeffner.

[¶ 20.] The circuit court’s conclusions of law and judgment are supported by the underlying findings which stand procedurally unchallenged. In so holding, we need not address Linda’s claim that the circuit court erroneously transferred a burden to show absence of undue influence, fraud or duress.

[¶ 21.] Affirmed.

[¶ 22.] SABERS, KONENKAMP, ZINTER, and MEIERHENRY, Justices, concur.

      . Connie had no surviving children. Her son died in 1993. However, she had three siblings — Linda, Harry Palmer and Rick Palmer.

      . SDCL 29A-2-301 provides in pertinent part:
      A testator’s surviving spouse who married the testator after the execution of the testator’s will is entitled to receive, as an intestate share, no less than the value of the share of the estate the surviving spouse would have received if the testator had died intestate!.]

      . If the decedent has no surviving descendants, the decedent’s surviving spouse takes the entire intestate estate. SDCL 29A-2-102.

      . At the probate hearing held on October 27, 2006, the alleged codicil, offered by Linda, was admitted as Exhibit "A.”

      . At the October 27, 2006 probate hearing, the alleged ''Instructions” were offered by Linda and admitted as Exhibit ‘‘B.”

      . The final page of the writing includes Connie’s typewritten name and address.

      . The final page indicates yet a third date, typewritten, as the date on which the writing was created, "11th DAY OF JANUARY THE YEAR OF OUR LORD 2006.”

      . Linda testified that she found the March 21, 2000 will, alleged, January 23, 2006 codicil and '‘Instructions” in Connie's safety deposit box on the date of her death, March 6, 2006. Linda, who had a key to the safety deposit box and had signed a signature card, contradicted herself as to whether she had opened the box.
      At one point she testified that while she had had access to the box for a long time, she had never opened it. At another point she testified that she could not remember whether she had been in the box. At still another point she did not deny opening the box on February 22, 2006 — 12 days before Connie died.

      . Linda cites In re Estate of Brooks, 279 Mont. 516, 927 P.2d 1024, 1030 (1996) for the proposition that it is error for the circuit court to require the proponent of a non-complying will to show absence of undue influence, fraud or duress.