author: SABERS, Justice

text:
    2001 SD 74
    Jackie SCHLUMBOHM, Grievant and Appellee, v. CITY OF SIOUX FALLS, Respondent and Appellant.
    Nos. 21626, 21647.
    Supreme Court of South Dakota.
    Argued April 26, 2001.
    Decided June 13, 2001.

      Thomas K. Wilka of Hagen, Wilka & Archer, P.C., Sioux Falls, SD, Attorneys for grievant and appellee.
    R. Shawn Tornow, Chief Assistant City Attorney, Sioux Falls, SD, Attorney for respondent and appellant.
   SABERS, Justice

[¶ 1.] Sioux Falls Police Officer Jackie Schlumbohm was terminated for conduct unbecoming an officer, committing a criminal act and wantonly offensive conduct, for events related to her operation of a motor vehicle while under the influence of alcohol. The Civil Service Board (Board) found just cause for discipline but reduced the termination to a suspension. City appeals contending the Board abused its discretion. We affirm.

FACTS

[If 2.] Schlumbohm was employed as a police officer with the City of Sioux Falls (City). Days after completing her one-year probationary period, Schlumbohm was involved in a serious one-car accident. Schlumbohm had been at a Sioux Falls bar where she claimed she consumed between three and four mixed drinks. After spending a few hours at the bar Schlumbohm left in her personal vehicle.

[¶ 3.] Traveling northbound on 1-229, Schlumbohm was driving well in excess of the posted speed limit. Additionally, she was swerving in and out of traffic while cutting off and passing vehicles traveling within the speed limit. Eyewitness estimates placed her speed around ninety miles per hour. There was also disputed testimony that Schlumbohm made an obscene gesture to an occupant of a vehicle she passed.

[¶ 4.] While attempting to exit the freeway, Schlumbohm lost control of her vehicle, hit a sign, swerved into the ditch, swerved back toward the road and finally rolled her car into the opposite ditch. Schlumbohm was transported to the hospital where a blood test revealed her blood alcohol content to be .154 percent, well over the legal limit of .10 percent. Schlumbohm pled guilty to driving under the influence.

[¶ 5.] The City terminated Schlum-bohm for conduct unbecoming an officer, committing a criminal act and wantonly offensive conduct to the public. Schlum-bohm appealed that decision to the Board arguing the termination was not warranted and that the discipline was more severe than other prior disciplinary actions. The Board found that the City had just cause for disciplining Schlumbohm. However, the Board reduced her disciplinary sanction from a termination to six-month suspension without pay and another six-month suspension unless accompanied by another officer while performing her duties.

[¶ 6.] The circuit court affirmed the Board’s decision. City appeals raising the following issues:

1. Whether the circuit court erred in failing to find the Board abused its discretion by finding just cause for disciplinary action, but ordering that the termination be reduced to a suspension.
2. Whether the Board committed error by admitting and considering evidence regarding prior unrelated disciplinary actions.
3. Whether the circuit court erred in ruling that the City failed to preserve for appeal its argument that Board improperly ordered reinstatement to a position that did not exist.

By notice of review, Schlumbohm raises one issue:

1. Whether the facts, as found by the Board, are sufficient to constitute conduct unbecoming an officer.

STANDARD OF REVIEW

[¶ 7.] We review the Civil Service Board’s decision under the Administrative Procedures Act, SDCL ch. 1-26. Fact-findings will be overturned only if they are “clearly erroneous in light of all the evidence.” Sopko v. C & R Transfer Co., Inc., 1998 SD 8, ¶ 6, 575 N.W.2d 225, 228. Questions of law are reviewed de novo. Id.

[¶ 8.] 1. WHETHER THE CIRCUIT COURT ERRED IN FAILING TO FIND THE BOARD ABUSED ITS DISCRETION BY FINDING JUST CAUSE FOR DISCIPLINARY ACTION, BUT ORDERING THAT THE TERMINATION BE REDUCED TO A SUSPENSION.

[¶ 9.] City maintains that the Board acted arbitrarily and failed to conform to Ordinance 30-50 and exceeded its discretionary powers contrary to SDCL 1-26-36(2) and (6). The assertion of error is that the Board failed to enter specific findings of fact to support a reduction in the discipline Schlumbohm received and, therefore, acted improperly when it rejected the discipline imposed by the chief of police.

[¶ 10.] SDCL 9-14-14 is the source of authority for the Board. That statute provides in relevant part:

Any municipality may adopt an ordinance establishing a civil service system for its municipal employees, policemen and firemen, and providing for the appointment of a civil service board, prescribing its powers, duties and compensation, and providing for the suspension or removal of any employee, policeman or fireman for cause, subject to review and affirmance, reversal or modification of such action by the civil service board at a hearing.

[¶ 11.] The City has adopted ordinances establishing and enumerating the powers of the Board. The two ordinances relevant here are 30-49 and 30-50. Ordinance 30^49 entitles the Board to investigate “the determination of the question of whether such removal, ... was or was not made for race, color, creed, disability, or political or religious reasons and was or was not made in good faith for cause.” (Emphasis added). Additionally, Ordinance 30-50 vests the Board with the authority to reinstate the employee if the removal violated the provisions of Ordinance 30-49 or was not made in good faith for cause. Furthermore, the Board is given the discretion to modify the discipline imposed:

After investigation into the discharge, removal, suspension or reduction of a person in the civil service, the civil service board may, if in its estimation the evidence is conclusive, affirm the removal, or if it shall find the removal, suspension, or demotion was made for race, color, creed, disability or political or religious reasons or was not made in good faith for cause, shall order the immediate reinstatement or reemployment of such person in the office, place, position, or employment from which such person was removed, suspended, demoted or discharged. Such reinstatement may be retroactive with pay from the time of such removal, suspension, demotion or discharge. The board upon such inves tigation, in lieu of affirming the removal, suspension, demotion, or discharge, may modify the order of removal, suspension, demotion, or discharge by directing a suspension without pay for a given period and subsequent restoration of duty or demotion in classification, grade, or pay. The findings of the board shall be certified in writing to the director, and shall be forthwith enforced by such office.

Ordinance 30-50 (emphasis added).

[¶ 12.] City asserts that the Board acted arbitrarily by reducing Schlumbohm’s termination to a suspension. In reviewing the findings made by the Board, we do not “judge witness credibility, a matter left to those presiding first hand.” Green v. City of Sioux Falls, 2000 SD 33, ¶ 16, 607 N.W.2d 43, 47. However, whether the facts support the conclusion that just cause existed for discipline is a matter of law fully reviewable. Id. ¶ 21. The facts and conclusions entered by the Board tend to support the reduction to a suspension. Contrary to the City’s argument, they appear to be the result of a reasoned consideration and not an arbitrary act constituting an abuse of discretion. The Board is vested with the power to determine whether just cause existed and whether the discipline is excessive. A finding of just cause does not require the Board to uphold the disciplinary action taken by the chief of police. Here, despite the scarcity of findings to support the reduction to a suspension, the record itself supports the Board’s decision. However, in the future, the Board should make specific findings to justify its decision to modify disciplinary decisions.

[¶ 13.] As recognized by another court addressing a similar issue:

We are mindful of the commission’s power to modify penalties and the considerable discretion provided it.... That discretion is, however, ‘not without bounds,’ and the commission may not modify a penalty without providing a reasonable explanation for doing so. It is well to remember that the power to modify is at its core the authority to review and, when appropriate, to temper, balance, and amend.

Police Com’r of Boston v. Civil Service Comm., 39 Mass.App.Ct. 594, 659 N.E.2d 1190, 1193 (1996).

[¶ 14.] An abuse of discretion is “discretion exercised to an end or purpose not justified by, and against, reason and evidence.” Bland v. Davison County, 1997 SD 92, ¶ 5, 566 N.W.2d 452, 455 (citations omitted). The Board’s conclusion number 7 demonstrates the consideration which the Board gave to its recommendation for a reduced sanction.

When considering the City’s long standing policy of progressive discipline, the totality of Grievant’s actions and conduct on July 18, 1999, along with her prior record as a law enforcement officer, this board under the authority given it by the Ordinances of Sioux Falls, and based upon the evidence received at the hearing, in lieu of affirming the discharge of Grievant does hereby modify the discharge ...

[¶ 15.] An examination of the record reveals the Board rightfully found just cause for the discipline of Schlumbohm for her irresponsible actions. In Schroeder v. Dept of Social Services, we recognized that findings of fact and conclusions of law are required for meaningful appellate review. 529 N.W.2d 589, 591 (S.D.1995). On this record, the Board and the circuit court met this requirement. We decline City’s invitation to review the record in the first instance, as that request exceeds the scope of proper appellate review. Under this standard of review, even if our view of the proper punishment may have been different, we are not convinced the Board acted arbitrarily or abused its discretion in modifying the original discipline. Therefore, we affirm the circuit court on issue 1.

[¶ 16.] 2. WHETHER THE BOARD COMMITTED ERROR BY ADMITTING AND CONSIDERING EVIDENCE REGARDING PRIOR UNRELATED DISCIPLINARY ACTIONS.

[¶ 17.] At the disciplinary hearing, Schlumbohm offered evidence of several prior unrelated disciplinary actions. City contends that the Board abused its discretion in admitting this evidence concerning prior discipline for DUI, other alcohol related offenses and traffic accidents. City asserts that the Board improperly used this evidence as comparative disciplinary information. We reject City’s contention.

[¶ 18.] Schlumbohm advanced three theories of admissibility: 1.) sex discrimination; 2.) impeachment of Chief Quiring’s testimony that Schlumbohm would no longer be capable of performing her duties; and 3.) that the discipline imposed was arbitrary, capricious and excessive. In response, the City objected arguing that the introduction of such evidence was irrelevant and immaterial and not supported by any evidence of excessive discipline. The Board adjourned, returned minutes later and allowed the introduction of disciplinary actions that took place after Chief Quiring took office.

[¶ 19.] We cannot say that the Board abused its discretion by admitting this evidence. Prior unrelated disciplinary action may be relevant when determining if the discipline was arbitrary or motivated by improper reasons. In Jager v. Ramona Bd. of Educ., 444 N.W.2d 21, 26 (S.D.1989), comparative evidence was utilized to establish if the discipline imposed was arbitrary and capricious. Evidence that an individual “was treated more harshly than other individuals” is a relevant consideration. Id. This rationale has been applied to law enforcement officers as well. See Vukovich v. Civil Service Comm’n, 832 P.2d 1126, 1128 (Colo.App.1992) (upholding disciplinary action because the comparative evidence was sufficiently distinguishable to support the discipline imposed).

[¶ 20.] 3. WHETHER THE CIRCUIT COURT ERRED IN HOLDING THAT THE CITY FAILED TO PRESERVE FOR APPEAL ITS ARGUMENT THAT THE BOARD IMPROPERLY ORDERED REINSTATEMENT TO A POSITION THAT DID NOT EXIST.

[¶ 21.] The circuit court determined, and City concedes, that this issue had not been presented to the Board. The City maintains, that in this instance, our rule requiring an argument to be raised below before it is heard on appeal should be forgiven.

[¶ 22.] We have often stated:

An issue may not be presented for a first time on appeal. The appellant must affirmatively establish a record on appeal that shows the existence of error. He [or she] must show that the trial court was given an opportunity to correct the grievance he [or she] complains about on appeal. Husky Spray Service, Inc. v. Patzer, 471 N.W.2d 146, 153-54 (S.D.1991) (quoting Cooper v. Cooper, 299 N.W.2d 798, 800 (S.D.1980) (citations omitted) (alterations in original)). “[W]e will not review a matter on appeal unless proper objection was made before the trial court. Objections must be made to the trial court to allow it to correct its mistakes.” Id. at 154 (quoting Johnson v. John Deere Co., 306 N.W.2d 231, 239 (S.D.1981) (citations omitted)). “Since our function is that of review, issues not presented to the trial court are not before us on appeal.” Id. (quoting Chipperfield v. Woessner, 84 S.D. 13, 166 N.W.2d 727, 730 (1969)).

[¶ 23.] The trial court found that the proper procedure would have been for the City to present this issue to the Board. Therefore, the City’s failure constituted waiver of this issue on appeal. City asserts this procedural bar is inapplicable because the Board has no method for raising post-trial hearings and no evidence of positions available had been presented to the Board. In the future, we suggest a motion to the Board before a party asserts that it was barred from challenging the propriety of the order.

[¶ 24.] Therefore, we affirm the circuit court in all respects and need not address Schlumbohm’s assertion of error.

[¶ 25.] MILLER, Chief Justice, and AMUNDSON, KONENKAMP, and GILBERTSON, Justices, concur.

      . Factually, the City maintains the Board failed to find the facts sufficient to constitute conduct unbecoming an officer. The City is mistaken. The findings and conclusion demonstrate that the Board did find Schlumbohm "was disciplined for just cause ... as a result of her actions on July 18, 1999, in which she exhibited unacceptable decision making in operating her vehicle in a reckless manner as an off-duty police officer.” This finding is sufficient for conduct unbecoming an officer. Additionally, the Board and the circuit court specifically rejected a finding of "wantonly offensive conduct” on this record. Contrary to the City's argument, the facts detailed here do not rise to the level of those contained in Green, 2000 SD 33, 607 N.W.2d 43 (affirming the termination of an officer who taunted members of the public, abused a prisoner, and damaged private property).

      . Schlumbohm makes the point that this was not a simple slap on the wrist and that financially, the six-month suspension without pay resulted in a loss in excess of $15,000, which she claims is forty times greater than the average financial penalty for Dili.


source: Caselaw Access Project

author: ROEHR, Circuit Judge SABERS, Justice

license: Public Domain

text:
    2001 SD 75
    Laurie Jean Bryant HARKSEN, As Administrator of the Estate of John C. Harksen, a/k/a J.C. Harksen, Deceased, Plaintiff and Appellee, v. Gene PESKA, Defendant and Appellant, and Ruth Martens Lamont, Steven M. Johnson, Dave R. Johnson, Robert A. Warder and Joann Warder, Robert A. Warder, Trustee, and Robert A. Warder, Individually, Defendants and Appellees, and Everett P. Howe, Warren Carter Johnson and E. Ashworth, Gordon O. Gavin and Donna J. Gavin, Scott L. McCaskell and Sharla P. McCaskell, Judith Goudy and Betty Peska, Defendants.
    No. 21602.
    Supreme Court of South Dakota.
    Considered on Briefs on Feb. 13, 2001.
    Decided June 13, 2001.

      Robert Warder, Rapid City, SD, Attorney for appellees.
    Kenneth R. Dewell of Viken, Viken, Pe-chota, Leach and Dewell, Rapid City, SD, Attorneys for defendant and appellant Peska.
   ROEHR, Circuit Judge

[¶ 1.] The trial court found Gene Peska (Peska) in civil contempt of court and entered a specific permanent injunction. Peska appeals. We affirm, in part, and reverse and remand, in part.

FACTS

[¶ 2.] This matter has been before this Court on a previous occasion. Harksen v. Peska, 1998 SD 70, 581 N.W.2d 170. Additional facts are set forth in that opinion.

[¶ 3.] Peska purchased seven and one-half acres of land in a tract in the Black Hills. The entire tract was subject to restrictive covenants, which will expire in 2023. These covenants prohibited Peska from building a residence on his land. Nevertheless, Peska built a cabin on his land; he also constructed a primitive dirt road on the land to provide access to the cabin. John Harksen (Harksen), a neighboring landowner, began an action against Peska. The trial court issued a mandatory injunction requiring Peska to remove his cabin. On appeal, this Court found removal of the cabin to be too harsh a penalty, reversed and remanded, and directed the trial court to modify the injunctive relief.

[¶ 4.] After our remand, the trial court held a hearing on modification of the in-junctive relief. After the hearing, the trial court proposed its own findings of fact, conclusions of law, and modified permanent injunction. The proposed modified permanent injunction ordered Peska to comply with the restrictive covenants and ordered:

that Gene Peska shall not make any additions or changes to the exterior of the cabin or to the rest of the property and Gene Peska is hereby enjoined from making any additions or changes to the exterior of the cabin or to the rest of the property for the remaining period of the covenants.

Peska objected to the trial court’s proposed findings, conclusions, and modified injunction. He also proposed three different injunctions as alternatives to the trial court’s proposal. Each of Peska’s proposed injunctions would have enjoined him from making any additions or changes to the exterior of the cabin and to the rest of the property, “save routine and general maintenance and repairs as reasonably necessary.” Two of his proposals would also have allowed Peska “to complete his road providing ingress and egress from the residence by application of gravel or similar road-building material.” The trial court entered its own findings, conclusions, and modified permanent injunction, as originally proposed, and provided notice to Peska’s attorney. The trial court also refused Peska’s objections and each of Pes-ka’s proposed injunctions.

[¶ 5.] In the summer of 1999, after entry of the modified permanent injunction, Peska improved the road on his land. He graded the roadbed, cut ditches adjacent to the road, and spread approximately eighty tons of gravel on the road, forming a two-inch gravel base.

[¶ 6.] Robert A. Warder (Warder), one of the defendants and a neighboring landowner, signed and filed an affidavit seeking an adjudication of civil contempt. The trial court issued an order to show cause. At the show cause hearing, the trial court found Peska to be in civil contempt and issued a specific permanent injunction enjoining and restraining Peska from any and all use or occupancy of the property for the remaining term of the restrictive covenants.

[¶ 7.] Peska then moved for an order allowing him to perform eleven itemized actions on the property, each of which Peska characterized as repairs and maintenance. The trial court denied the motion without a formal hearing.

ISSUES

[¶ 8.] Peska raises the following issues: Was Peska in civil contempt of court for his conduct relating to the modified permanent injunction?
Did the trial court have the authority to issue the specific permanent injunction as punishment for Peska’s civil contempt of court?
Did the trial court abuse its discretion in denying Peska’s motion to allow the repairs and maintenance?

STANDARD OF REVIEW

[¶ 9.] As to the first issue, we will not set aside a trial court’s findings of fact unless they are clearly erroneous. Mid-Century Ins. Co. v. Lyon, 1997 SD 50, ¶ 4, 562 N.W.2d 888; Shedd v. Lamb, 1996 SD 117, ¶ 17, 553 N.W.2d 241. We review conclusions of law under a de novo standard, with no deference to the trial court’s conclusions of law. Mid-Century, 1997 SD 50, ¶ 4, 562 N.W.2d 888; Shedd, 1996 SD 117, ¶ 17, 553 N.W.2d 241.

[¶ 10.] As to the second and third issues, the appropriate remedy or punishment for contempt of court, and any reconsideration thereof, lies within the sound discretion of the trial court. “ ‘Abuse of discretion’ is discretion not justified by, and clearly against, reason and evidence. The test is whether a judicial mind, in view of the law and circumstances, could reasonably have reached the conclusion.” Nelson v. Nelson Cattle Co., 513 N.W.2d 900, 906 (S.D.1994).

DECISION

ISSUE ONE

[¶ 11.] Was Peska in civil contempt of court for his conduct relating to the modified permanent injunction?

[¶ 12.] The required elements for a finding of civil contempt “are (1) the existence of an order; (2) knowledge of the order; (3) ability to comply with the order; and (4) willful or contumacious disobedience of the order.” Thomerson v. Thomerson, 387 N.W.2d 509, 512-513 (S.D.1986).

[¶ 13.] Peska acknowledges the existence of the modified permanent injunction and his ability to comply with it. Peska argues that the trial court’s findings with regard to knowledge and disobedience of the injunction are clearly erroneous.

[¶ 14.] The second requirement of a contempt finding is that Peska have knowledge of the existence of the modified permanent injunction. The trial court found that Peska was duly served through counsel with the modified permanent injunction and knew its contents. Peska admits personal knowledge of the modified permanent injunction. However, he denies any knowledge that his objections to the trial court’s proposed findings were overruled. Thus, he argues, he did not know that his work on the road was a violation of the modified permanent injunction.

[¶ 15.] Peska’s admission of personal knowledge of the injunction satisfies the requirements of the second element. It is not necessary that he also have knowledge that his objections were overruled. Even if it were necessary, such knowledge is implicit in the entry of the modified permanent injunction. Peska knew of the trial court’s proposals, and he knew that after he made his objections, the trial court’s proposed injunction was entered without change, exactly as it had been proposed. Obviously, the trial court had overruled Peska’s objections.

[¶ 16.] The fourth requirement of a contempt finding is Peska’s willful or contumacious disobedience of the modified permanent injunction. The trial court found that the terms of the injunction were clear and unambiguous, that the blading and graveling of the roadway was a violation of the injunction, and, that Peska through counsel objected to the trial court’s proposed findings, conclusions, and injunction because he knew it would prevent him from blading and graveling the roadway.

[¶ 17.] Peska asserts that the modified permanent injunction is ambiguous. We have previously stated:

To form the basis for a subsequent finding of contempt, an order must state the details of compliance in such clear, specific, and unambiguous terms that the person to whom it is directed will know exactly what duties or obligations are imposed upon him.

Karras v. Gannon, 345 N.W.2d 854, 859 (S.D.1984).

[¶ 18.] Peska does not explain how he believes the injunction is ambiguous. We have reviewed the terms of the modified permanent injunction and find them to be clear and unambiguous. Moreover, Pes-ka’s objections and his own proposed injunctions show that he knew exactly what duties or obligations were being imposed on him.

ISSUE TWO

[¶ 19.] Did the trial court have the authority to issue the specific permanent injunction as punishment for Pes-ka’s civil contempt of court?

[¶ 20.] As punishment for Peska’s contempt, the trial court entered a specific permanent injunction prohibiting Peska from using or occupying the property for the remaining term of the restrictive covenants. Peska argues that the trial court abused its discretion by ordering unauthorized, punitive sanctions in a civil contempt proceeding.

[¶ 21.] We detailed the difference between civil contempt and criminal contempt in Brummer v. Stokebrand, 1999 SD 137, 601 N.W.2d 619. The trial court and the parties to this action properly characterize this case as one of civil contempt. Warder, a neighboring landowner, began the contempt proceedings with an affidavit seeking an order requiring Peska to show cause why he should not be found in contempt and why the trial court should not enter an order enforcing the restrictive covenants and the modified permanent injunction.

[¶ 22.] The purpose of civil contempt is to compel compliance with the court’s order. Its sanction is coercive. State, Fall River County v. Dryden, 409 N.W.2d 648, 650 (S.D.1987); Kairas v. Gannon, 345 N.W.2d at 856. The sanction becomes coercive when the contemnor is allowed to purge himself of contempt. Without it, the sanction is merely punitive. Other jurisdictions have held that the ability to purge is a requirement of a civil contempt sanction. Parisi v. Broward County, 769 So.2d 359 (Fl.2000); In re M.B., 101 Wash.App. 425, 3 P.3d 780, (2000); Meyer v. Meyer, 414 A.2d 236, 239 (Me 1980); State v. Roll, 267 Md. 714, 298 A.2d 867 (1973).

[¶ 23.] The trial court’s specific permanent injunction is punitive, not coercive. It further modifies or supplants the modified permanent injunction, rather than seeking to enforce it. It enjoins Pes-ka from any and all use of the property, rather then coercing removal of the road and future compliance with the modified permanent injunction. It denies Peska the right to purge himself and come into compliance with the modified permanent injunction. It exceeds the trial court’s authority in a civil contempt proceeding. We reverse and remand for proceedings to determine what Peska can do to purge the contempt and the timeframe in which he can do so.

ISSUE THREE

[¶ 24.] Did the trial court abuse its discretion in denying Peska’s motion to allow the repairs and maintenance?

[¶ 25.] We do not reach this issue.

[¶ 26.] We affirm as to Issue One and reverse and remand as to Issue Two.

[¶ 27.] MILLER, Chief Justice, and AMUNDSON, and GILBERTSON, Justices, concur.

[¶ 28.] SABERS, Justice, concurs specially.

[¶ 29.] ROEHR, Circuit Judge, for KONENKAMP, Justice, disqualified.

SABERS, Justice

(concurring specially).

[¶ 30.] I concur with the majority opinion’s reversal because the permanent punitive injunction was too harsh. However, I would strongly urge this Court, especially in light of the prior history of this appeal, to provide guidance to the trial court concerning acceptable civil sanctions. Otherwise, this case may be back for a third time.

[¶ 31.] On remand, I would recommend that reasonable repairs and maintenance be allowed on the premises. To hold otherwise would be to condone waste on this structure. In fact, mandating waste on this structure until 2023 is punitive and contrary to the analysis of the majority opinion. At any rate, the majority opinion’s decision not to address reasonable repairs and maintenance should not be viewed as approval of the trial court’s decision in that respect, but just the opposite.


author: PER CURIAM.

text:
    2001 SD 78
    Matthew G. CROTHERS, Plaintiff and Appellee, v. Linda S. CROTHERS, Defendant and Appellant.
    No. 21453.
    Supreme Court of South Dakota.
    Considered on Briefs on Jan. 8, 2001.
    Decided June 20, 2001.

      Richard L. Bode, Rapid City, SD, Attorney for plaintiff and appellee.
    John H. Mairose, Rapid City, SD, Attorney for defendant and appellant.
   PER CURIAM.

[¶ 1.] Linda S. Crothers appeals from an order vacating the modified judgment and decree of divorce entered by the court on February 19,1999. We affirm.

FACTS

[¶ 2.] Linda and Matthew were divorced on June 17,1997 after sixteen years of marriage. The judgment and decree of divorce incorporated the parties’ stipulation, child custody and property settlement agreement.

Section 12 of this stipulation provided:

(12) Retirement:
Plaintiff shall keep his retirement funds with the United States Air Force, free and clear of any claim by Defendant.
Defendant shall keep her retirement account with Spiegel, free and clear of any claim by Plaintiff.

Section 14 of this stipulation provided:

(14) Reasonableness of Agreement:
Each party acknowledges that this Agreement has been entered into of his or her own volition, with full knowledge of the facts and full information as to the legal rights and liabilities of each. Both parties acknowledge that they have had legal counsel or the opportunity to consult legal counsel, and that each believes the foregoing Agreement to be reasonable under the circumstances.

Linda and Matthew initialed each page of the agreement and signed and dated its final page before a notary public.

[¶ 3.] On June 15, 1998, Linda filed a motion to set aside judgment pursuant to SDCL 15 — 6—60(b) seeking a one-half share of Matthew’s military retirement. Linda alleged that at the time she signed the stipulation, she was unrepresented, emotionally distraught, and not informed that she was entitled to any portion of the military retirement.

■[¶ 4.] This motion was served by mail upon Debra D. Watson, Matthew’s attorney in the divorce proceedings. She advised Linda that she no longer represented Matthew and had no idea where he was living. On August 4, 1998 the motion was remitted to the Duval County Sheriffs office in Florida. The original return says it was served on Matthew on August 18, 1998.

[¶ 5.] On February 18, 1999, following two hearings where Matthew did not appear, the trial court entered a modified judgment and decree of divorce. Linda was granted 50 percent of Matthew’s military retirement. The court found that her acquiescence to the original stipulation was the result of exceptional circumstances, including mistake, inadvertence and excusable neglect.

[¶ 6.] On August 11, 1999 Matthew filed a motion to set aside the modified judgment and decree of divorce. In his supporting affidavit he said that his first knowledge of the proceedings came after the modified judgment and decree of divorce was filed. While the court file reflected that he had been served, he never lived at the address on the original return and never received the motion and notice.

[¶ 7.] After hearing the testimony of Linda and Matthew, the trial court prepared a memorandum decision which was incorporated into the findings of fact and conclusions of law. It held that service of process was necessarily included within the one year time period of SDCL 15 — 6— 60(b). It also held:

The facts indicate that the Defendant in this matter voluntarily signed the divorce agreement in question. Defendant is a high school graduate, with some college experience, and was suffering from no physical or emotional impediments at the time that she entered into this agreement, to-wit: she was under no medical care, and she missed no work. Essentially, the Defendant has realized that she did not get the better end of this bargain and, thus, wants the court to bail her out of this situation. The fact that she had no attorney is of no consequence. There was nothing preventing the Defendant from taking action to protect her rights at the initial proceeding, and Defendant has not shown the requisite “exceptional circumstances” required for the court to give relief. Thus, Defendant’s Motion to Modify the Initial Judgment and Decree is denied.

ISSUE

[¶ 8.] Did the trial court err in ruling that Linda failed to timely file and serve the motion to set aside judgment pursuant to SDCL 15 — 6—60(b)(1)?

[¶ 9.] Pursuant to SDCL 15 — 6—60(b)(1) a court may relieve a party from a final judgment for mistake, inadvertence, surprise, or excusable neglect if the motion is made not more than one year after the judgment was entered.

[¶ 10.] In this case, the original judgment and decree of divorce was “entered” (filed) on June 17, 1997. Linda filed her motion to set aside judgment on June 15, 1998. On that same day, it was mailed to Matthew’s attorney in the divorce proceeding who advised that she no longer represented him and had no idea where he lived. Two months later, and outside of SDCL 15 — 6—60(b)(l)’s one year limitation, the trial court found that Matthew was served. It acknowledged, however, that service was on Matthew’s ex-girlfriend and “likely invalid” under SDCL 15 — 6^4(e):

If the defendant cannot be found conveniently, service may be made by leaving a copy at his dwelling house in the presence of a member of his family over the age of fourteen years, or if the defendant resides in the family of another, with a member of such age of the family with which he resides.

[¶ 11.] Linda concedes that Williams Sendees v. Sherman, 492 N.W.2d 122, 127 (S.D.1992) answers the question of whether service under SDCL 15 — 6—60(b)(1) must be made within a year after judgment:

A civil action in South Dakota is commenced when service is made upon the adverse party SDCL 15-6-3; 15-2-30; 15-2-31. SDCL 15 — 6—60(b) requires a motion to amend the judgment be made within a reasonable time, at most one year after the judgment. Such a motion is made — the action on that motion is commenced — when it is served upon the adverse party. SDCL 15-6-3.

In this case, the court found that the motion was served upon Matthew two months after the end of the one year period of SDCL 15 — 6—60(b)(1).

[¶ 12.] Under SDCL 15-6-5(b), in part,

Whenever under this chapter service is required or permitted to be made upon a party represented by an attorney, the service shall be made upon the attorney unless service upon the party himself is ordered by the court.

Linda contends that service of the motion on Matthew’s attorney of record in the divorce proceeding which was within the one year period satisfies 15 — 6—60(b)(1). This attorney, however, immediately notified Linda that she no longer represented Matthew and did not know his whereabouts. Consequently, “[t]he presumption of law is that the attorney-client relationship ceases with the termination of the litigation for which the attorney was retained.” Finck v. Finck, 354 N.W.2d 198, 201 (S.D.1984). Service on Matthew’s former attorney was ineffective in this case.

[¶ 13.] The trial court correctly determined that service must be effectuated within the one year period of SDCL 15-6-60(b)(1) and that it had not been done in this case. Nevertheless trial court held a full hearing in this matter and disposed of the motion on its merits. Linda has little cause to complain on this issue.

ISSUE

[¶ 14.] Did the trial court' abuse its discretion in denying Linda’s motion to reopen her divorce and property settlement to allow for a division of military retirement as marital property?

[¶ 15.] SDCL 15-6-60(b)(l) authorizes relief from a final judgment based on mistake, inadvertence, surprise, or excusable neglect. Two requirements must be met: 1) exceptional circumstances constituting the excusable neglect (or the other statutory grounds); and 2) a probable meritorious defense. Clarke v. Clarke, 423 N.W.2d 818 (S.D.1988). In addition, the motion must be timely. The motion is addressed to the sound discretion of the trial court. Id. This Court is more inclined to reverse a judgment taken by default than one where the merits have been reached. Id.

[¶ 16.] In Clarke, wife was able to show excusable neglect: 1) her emotional state of mind was caused by her husband’s infidelity which he did not deny; 2) her drinking enhanced the disarray of the marriage; and, 3) husband assured her that he would take care of her. Clarke, 423 N.W.2d at 821. These factors cumulatively illustrated exceptional circumstances constituting excusable neglect. Id. In addition, wife filed her motion within five weeks of entry of a default judgment.

[¶ 17.] Linda relies on Clarke and contends that her divorce should have been vacated to divide military benefits because she was distraught, unrepresented, and lacked knowledge that she was entitled to any portion of the retirement.

[¶ 18.] The record, however, belies Linda’s claim. While she testified that she was distraught over the divorce and wor-tied about not receiving custody of the children, she did not consult a doctor, did not seek counseling, was not on any medication and missed no work. She did not obtain legal counsel claiming she had no money and yet she earned the same amount that Matthew did. She also claimed ignorance regarding military benefits. Linda, however, came from a military family and had been in the military herself, Throughout the majority of the marriage Matthew was career military and at the time of the divorce Linda knew he was receiving military retirement and disability. She admitted that she was not threatened or intimidated into signing the stipulation and admits that the timing of her motion is on the “far end” of being reasonable, although a one year limitation applies in her case. In addition, the judgment was entered pursuant to the parties’ signed stipulation.

[¶ 19.] Linda’s situation is far more analogous to that in Klein v. Klein, 500 N.W.2d 236, 240-241 (S.D.1993) where this Court said:

First, Cristen did not receive a “default” judgment against Kevin. The judgment was entered pursuant to the Stipulated Agreement signed by both parties. In Jeffries v. Jeffries, 434 N.W.2d 585, 588 (S.D.1989), we discussed a similar stipulated divorce agreement and stated that “[I]n the absence of fraud, free deliberate choices are not subject to relief under Rule 60(b).” Id. at 588. We went on to add: “We know of no law suggesting that because a husband is not represented by counsel, a property settlement signed by him is voidable.” Id. at 589.
Second, Kevin made little, if any, showing of excusable neglect. What little evidence Kevin provided was controverted by testimony from Cristen and another witness. The trial court judged the credibility of the witnesses and concluded Kevin had failed to prove excusable neglect. SDCL 15-6-52(a). Insurance Agents, Inc. v. Zimmerman, 381 N.W.2d 218 (S.D.1986). The trial court’s findings were not clearly erroneous and will not be set aside. Proceedings for Dep. in Court of Monies, 417 N.W.2d 187 (S.D.1987).

The same is true in Linda’s case.

[¶ 20.] Linda failed to serve her motion in a timely matter. Her own testimony describing her situation at the time of the divorce does not show circumstances that rise to the exceptional level of excusable neglect.

[¶ 21.] Affirmed.

[¶ 22.] MILLER, Chief Justice, SABERS, AMUNDSON, KONENKAMP and GILBERTSON, Justices, participating.

      . In this case the trial court did divide the retirement pay on Linda’s motion. However, when Matthew objected because of lack of notice the matter was heard and the trial court vacated its earlier modification of the judgment and decree of divorce.


author: KONENKAMP, Justice.

text:
    2001 SD 79
    WATERTOWN CONCRETE PRODUCTS, INC., a South Dakota Corporation, Plaintiff and Appellee, v. Thomas FOSTER, Executor of the Estate of Ramsey Marlowe Foster, Deceased, Defendant and Appellant.
    No. 21688.
    Supreme Court of South Dakota.
    Considered on Briefs May 29, 2001.
    Decided June 20, 2001.

      J. Douglas Austin of Austin, Hinderaker, Hopper, Strait & Bratland, Watertown, SD, Attorneys for plaintiff and appellee.
    Robert M. Ronayne of Ronayne and Wein, Aberdeen, SD, Attorneys for defendant and appellant.
   KONENKAMP, Justice.

[¶ 1.] This is a creditor’s action against an estate. Probate proceedings were commenced before the effective date of the Uniform Probate Code (UPC), but this action was brought after the code's effective date. The question is which law applies. We affirm the trial court’s conclusion that the plain language of SDCL 29A-8-101 requires that this action be governed by the UPC.

A.

[¶ 2.] Ramsey Marlowe Foster died on August 6, 1993. His sons, Thomas and Rodney Foster, were appointed co-executors. In August 1995, while probate proceedings were still open, Rodney placed an order for concrete with Watertown Concrete Products, Inc. He told the company’s bookkeeper to bill him for the concrete and deliver it to his girlfriend’s property. Rodney placed another order at Water-town Concrete in September 1995. Seven concrete deliveries were made to a parcel of property held by the estate. Rodney was feeding cattle on that parcel. The concrete was used to create a driveway leading to the feed bunks. He had the concrete billed to the Ramsey Marlowe Foster Estate at his home address. Thomas, Rodney’s brother and co-executor, later admitted that he knew concrete was being delivered to the property, but denied knowing that it was being billed to the estate.

[¶ 3.] The Watertown Concrete employee who took the September order testified that Rodney described the property as “his place.” Rodney did not own it, but he anticipated that he would eventually receive it as his inheritance. He failed to explain that he was a co-executor and that another executor had to concur with his order. Although the company employee had never taken a concrete order from an estate before, she did not require any written proof of authority. She simply followed her boss’s instructions to “handle every customer the same.”

[¶ 4.] In February 1996, Rodney filed for bankruptcy. Because Watertown Concrete had not received payment for the concrete it had delivered, it submitted two separate proofs of claim in bankruptcy court. One claim related to the August order delivered to the property owned by Rodney’s girlfriend, the other, to the September order delivered to the estate property. Attached to the September proof of claim was the following explanation:

Concrete for which this claim is being made was all ordered by Rodney Foster, co-personal representative of the estate of R. [Marlowe] Foster. The claimant, Watertown Concrete Products, Inc., has been unable to determine whether or not the R. [Marlowe] Foster Estate will accept responsibility for payment of the outstanding ... bill, thus the reason for the protective filing.

The bankruptcy trustee objected to both claims, asserting that the September order was the responsibility of the estate and the August order was for a site not owned by Rodney.

[¶ 5.] At the same time, the estate maintained that it was not liable because Rodney was only a co-executor and he had incurred estate debts without Thomas’s authority. The estate also contended that the concrete served no estate business purpose. After negotiations with the trustee, Watertown Concrete withdrew its claim for the September deliveries. In its order, the bankruptcy court noted that Watertown Concrete had agreed that the claim for the September deliveries was “a claim against the R. [Marlowe] Foster estate.” On August 6, 1996, Watertown Concrete brought this collection proceeding against the estate, seeking its unpaid bill for the September deliveries. After a bench trial, the circuit court found against the estate and entered judgment for $4,592.64 plus interest. The estate appeals.

B.

[¶ 6.] The estate contends that SDCL 30-8-15 (now repealed) prohibited an executor from binding an estate on obligations made without the written concurrence of the co-executor. Conversely, Watertown Concrete argues that SDCL 30-8-15 is inapplicable because the provisions of South Dakota’s UPC govern this dispute. See SDCL 29A-1-101. The transitional rules governing the application of UPC provisions to particular proceedings are set out in SDCL 29A-8-101. The determination of which law applies presents a question of statutory interpretation reviewable de novo on appeal. Maryott v. First National Bank of Eden, 2001 SD 43, ¶ 17, 624 N.W.2d 96, 102 (citations omitted); Faircloth v. Raven Industries, Inc., 2000 SD 158, ¶ 4, 620 N.W.2d 198, 200 (citations omitted).

[¶ 7.] Under the facts of this case, SDCL 29A-8-101(b)(3) is the applicable provision:

This code [the UPC] applies to any proceedings in court commenced on or after July 1, 1995, regardless of the date of the decedent’s death. Notwithstanding the repeal of Titles 29 and 30, the provisions of prior law continue to apply to any proceedings pending on July 1, 1995, except to the extent that the court, following a petition therefor, orders that the procedures prescribed in this code be made applicable[.]

(emphasis added). According to this statute, the UPC applies to “any proceedings in court” which were commenced after the UPC’s effective date. This date is determinative regardless of the decedent’s date of death. It is undisputed that Watertown Concrete’s collection action commenced on August 6, 1996, more than one year after the UPC’s effective date. Consequently, the plain language of the statute requires application of the UPC and not prior law. See South Dakota Subsequent Injury Fund v. Federated Mutual Ins. Inc., 2000 SD 11, ¶ 17, 605 N.W.2d 166, 169 (citations omitted).

[¶ 8.] The estate relies on the date that Thomas and Rodney Foster were appointed co-executors to make its point that SDCL 30-8-15 should be applied. Since Thomas and Rodney were named co-executors on March 21, 1994, the estate argues that the second sentence of SDCL 29A-8-101 (b)(3) is triggered and prior law should govern this pending probate ease. Thus, the estate urges us to interpret the statute as requiring application of the UPC only when a probate proceeding is commenced after July 1, 1995. This interpretation stands at odds with the statutory language “any proceedings in court.” See SDCL 29A — 8—101 (b)(3). The code defines “proceeding” as including “action[s] at law and suit[s] in equity.” SDCL 29A-1-201(37). Watertown Concrete did not file a claim in the probate case; instead, it brought an action to collect money due. This separate proceeding was commenced on August 6, 1996, so the action is governed by the UPC.

[¶ 9.] Under South Dakota’s UPC, the term “personal representative” includes executors, administrators, successor personal representatives, and special administrators. See SDCL 29A-1-201(34). Generally, when two or more persons are appointed, a concurrence of the majority is required for all acts involving the administration or distribution of the estate. SDCL 29A-3-717. There is, however, a specific statutory exception to this rule. If a person dealing with a co-representative is “actually unaware” that other representatives exist, that person is “as fully protected as if the person with whom they dealt [had] been the sole personal representative.” See SDCL 29A-3-.717. Watertown Concrete offered undisputed evidence that it had no knowledge of Rodney’s status as a co-executor; therefore, it was protected as if Rodney had been the sole representative. See SDCL 29A-3-717.

C.

[¶ 10.] When a party successfully maintains a certain position in a legal proceeding, judicial estoppel precludes that party from later assuming a contrary position simply because that party’s interests have changed, especially if the change works to the prejudice of one who acquiesced in the position formerly taken by that party. New Hampshire v. Maine, — U.S. -, -, 121 S.Ct. 1808, 1814, 149 L.Ed.2d 968, -, — L.Ed. - - (2001)(citing Davis v. Wakelee, 156 U.S. 680, 689, 15 S.Ct. 555, 558, 39 L.Ed. 578 (1895)). The estate contends that Watertown Concrete’s position in this action is inconsistent with its posture in the bankruptcy case. See Federal Land Bank of Omaha v. Johnson, 446 N.W.2d 446, 447 (S.D.1989) (citations omitted); see also State v. St Cloud, 465 N.W.2d 177, 180 (S.D.1991).

[¶ 11.] This Court has not specifically enumerated its standard of review for questions of judicial estoppel. We have, however, recognized that in reviewing the application of the doctrine of equitable estoppel, we are presented with a fully reviewable mixed question of law and fact. See Crouse v. Crouse, 1996 SD 95, ¶ 14, 552 N.W.2d 413, 417 (equitable estop-pel is reviewed de novo) (citations omitted). Judicial estoppel should be reviewed in the same manner. Accord Kelsey v. Waste Management of Alameda County, 76 Cal.App.4th 590, 90 Cal.Rptr.2d 510, 514-515 (1999)(judicial estoppel reviewed de novo).

[¶ 12.] Judicial estoppel cannot be reduced to an equation, but courts will generally consider the following elements in deciding whether to apply the doctrine: 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. New Hampshire, — U.S. at -, 121 S.Ct. at 1815, 149 L.Ed.2d at -; see also Gesinger v. Gesinger, 531 N.W.2d 17, 21 (S.D.1995); see also St. Cloud, 465 N.W.2d at 180. The core question here is whether Watertown Concrete took inconsistent positions. See New Hampshire, — U.S. at -, 121 S.Ct. at 1815, 149 L.Ed.2d at -. See also St. Cloud, 465 N.W.2d at 179.

[¶ 13.] In its initial claim for payment on the September deliveries, Watertown Concrete represented that it “[had] been unable to determine whether or not the R. [Marlowe] Foster Estate [would] accept responsibility for payment.” Thus, it labeled its claim a protective filing. When the bankruptcy trustee objected, Water-town Concrete responded by explaining that the estate denied responsibility, thus it believed the claim was viable. After this, however, Watertown Concrete withdrew the claim on the September deliveries. The bankruptcy court recognized that the reason for withdrawal of the claim was that it was “in fact, a claim against the R. [Marlowe] Foster Estate.” This position was consistent with the one Watertown Concrete asserted in the present case. As there was no inconsistency in positions, grounds for judicial estoppel have not been established. See Gesinger, 531 N.W.2d at 21-22.

D.

[¶ 14.] The estate urges us to remand to the circuit court because the findings that were entered “were devoid of any actual findings which might aid a reviewing Court.” The estate relies on SDCL 15-6-52(a), which requires the circuit court to “find the facts specially and state separately its conclusions of law.” The purpose of requiring specific findings is to ensure meaningful appellate review. See Linard v. Hershey, 516 N.W.2d 304, 306 (S.D.1994) (citations omitted). In this appeal, the underlying facts were largely undisputed, leaving only legal questions to resolve. Therefore, the absence of detailed factual findings in no way hampered our review and remand for more specific findings would be unnecessary.

[¶ 15.] Affirmed.

[¶ 16.] MILLER, Chief Justice, and SABERS, AMUNDSON, and GILBERTSON, Justices, concur.

      . That transaction is not at issue in this appeal. Rodney’s liability for this concrete order was discharged in bankruptcy.

      . On December 4, 1996, Rodney Foster was removed as co-executor of his father’s estate.

      . See also United States v. Hook, 195 F.3d 299, 305 (7th Cir.1999) (citations omitted).