author: ZINTER, Justice.

text:
    2008 SD 39
    James W. OLSON, In His Capacity as the Personal Representative of the Elda L. Carlson Estate, Plaintiff and Appellant, v. The Glenn E. OLSON ESTATE and Wayne A. Olson, In His Capacity as the Personal Representative of the Glenn E. Olson Estate, Defendants And Appellees.
    No. 24649.
    Supreme Court of South Dakota.
    Considered on Briefs April 21, 2008.
    Decided June 4, 2008.
    Thomas E. Alberts, Avon, SD, for plaintiff and appellant.
    Craig K. Thompson, Vermillion, SD, for defendants and appellees.
   ZINTER, Justice.

[¶ 1.] Glenn E. Olson and his sister Elda L. Carlson died in a single-car accident. Elda’s Estate subsequently sought recovery of a claimed loss of prospective inheritance from Glenn’s Estate. Elda’s Estate contended Glenn was negligent, and Elda’s wrongful death beneficiaries were entitled to recover the prospective inheritance that Elda would have received from Glenn’s Estate had she survived the car accident and died later. This claim was asserted even though Glenn’s will expressly disinherited Elda if she did not survive Glenn for thirty days. The circuit court granted summary judgment in favor of Glenn’s Estate, concluding that the prospective inheritance claim never vested and was too remote and speculative. We affirm.

I.

[¶ 2.] On August 3, 2002, Glenn Olson was operating an automobile owned by his sister Elda, who was a passenger. Glenn and Elda were involved in a single-car accident causing their deaths. Glenn died testate. Under his will, much of Glenn’s estate passed to Elda, and some passed to Glenn’s “nephews and nieces ... in equal shares, share and share alike ... all of which shall be subject to a life estate in my sister, Elda Carlson.” Glenn’s will further provided, however, that if a beneficiary died within thirty days of Glenn’s death, the beneficiary was deemed to have predeceased him.

[¶3.] Elda’s Estate brought this suit claiming under both survivorship and wrongful death causes of action. The complaint stated the suit was brought “for the benefit of [Elda’s] estate and decedent’s surviving next of kin.” With respect to wrongful death, the complaint asserted that: the accident was caused by Glenn’s negligence; Elda (age sixty-eight) had a life expectancy of fifteen years; her premature death deprived her nieces and nephews of comfort, society, counsel and enjoyment, valued at a minimum of $100,000; and because of Glenn’s negligence, Elda’s Estate’s beneficiaries were deprived of the benefits of Glenn’s will, in an amount of approximately $250,000.

[¶ 4.] Elda’s Estate argued that a jury question existed whether, but for Glenn’s negligence, Elda would have outlived Glenn by more than thirty days, thereby entitling Elda’s wrongful death beneficiaries to claim the share of Glenn’s Estate. Elda’s Estate acknowledged that Elda did not survive Glenn by thirty days and was therefore disinherited under the will’s common disaster clause. Elda’s Estate argued, however, that the common disaster clause should not be enforced because a jury should determine whether Glenn intended the clause to disinherit Elda when Glenn caused her death.

[¶ 5.] The circuit court granted summary judgment, concluding that “under South Dakota law, [ ] [Elda] had, at best, a future contingent interest that never vested.” The circuit court also concluded the claim was too speculative. Elda’s Estate appeals asserting that Elda’s prospective inheritance is a recoverable element of damages in a wrongful death action brought by Elda’s Estate on behalf of Elda’s wrongful death beneficiaries. In reviewing the summary judgment, we “determine whether the moving party demonstrated the absence of any genuine issue of material fact and [established] entitlement to judgment on the merits as a matter of law.” Behrens v. Wedmore, 2005 SD 79, ¶ 18, 698 N.W.2d 555, 565.

II.

Prospective Inheritance

[¶ 6.] Elda’s Estate’s recovery is governed by South Dakota’s wrongful death statute. SDCL 21-5-7 provides, “[i]n every action for wrongful death the jury may give such damages as they may think proportionate to the pecuniary injury resulting from such death to the persons respectively for whose benefit such action shall be brought.” Elda’s Estate’s sole authority for one estate’s recovery of a prospective inheritance against another estate under a wrongful death statute is a Delaware unpublished trial court opinion, Wilgus v. Estate of Law, 1996 WL 769335 (Del.Super.Ct.1996).

[¶ 7.] In Wilgus, Law was driving a car in which Wilgus was a passenger. Both Law and Wilgus were killed in an accident when Law failed to yield the right of way to another vehicle. Wilgus’s estate brought a wrongful death action seeking damages for loss of prospective inheritance. Law’s estate contended that as a matter of law, claims for prospective inheritance were prohibited. Wilgus extensively analyzed the issue, citing the authorities allowing and disallowing a wrongful death recovery for prospective inheritance. Applying Maryland law, the Wilgus court concluded that the Maryland wrongful death statute allowed recovery if there was sufficient proof of a lost inheritance:

[L]oss of inheritance is clearly a pecuniary loss and is recoverable under the applicable wrongful death statute, provided that there is sufficient evidence to support properly such damages and avoid excess speculation. This approach permits recovery by those parties who are able to offer sufficient proof of a prospective inheritance, while denying recovery to those who make general or unverifiable claims.

Id. at *7 (emphasis added). The decision in O’Toole v. United States, 242 F.2d 308 (3rdCir.1957), cited in Wilgus, indicated commentators generally agree that when proved, a loss of prospective inheritance is recoverable. Id. at 312, citing McCormick, Damages 350 (1935); 5 Sutherland, Damages § 1265 (4th ed. 1916); Sedgwick, Measure of Damages § 574a (9th ed. 1920).

[¶8.] In this case, we need not decide whether recovery of a prospective inheritance will be recognized in South Dakota. The question need not be decided because, even if recognized, Elda could not have proved that she had such a claim. She had no claim to a prospective inheritance because Glenn’s will contained a common disaster clause expressly providing that Elda was entitled to no inheritance unless she survived Glenn by thirty days, a fact that did not occur. Therefore, under Glenn’s will, Elda was considered to have predeceased Glenn, and Elda was entitled to no inheritance. Thus, Elda’s Estate could prove no loss of prospective inheritance as a matter of law.

[¶ 9.] Although Elda’s Estate contends that the common disaster clause should be set aside to create a prospective inheritance expectancy, Elda’s Estate cites no authority supporting that request. There is also no support for the argument that summary judgment was improper because a jury question exists regarding Glenn’s intent to apply the common disaster clause to Elda. We have consistently provided that in construing wills, “[if] the intent is clear from the language used, that intent controls.” In re Estate of Klauzer, 2000 SD 7, ¶ 9, 604 N.W.2d 474, 477.

[¶ 10.] Glenn’s will contained a common disaster clause that was clearly expressed. Furthermore, these clauses are universally understood to apply in accidents like the one that occurred in this case. As the circuit court recognized:

[Glenn] did, by putting that clause in his will, address and indicate that he did foresee the possibility of a common disaster. While he may not have specifically seen this, he clearly indicated his intent that if they were to die in a common disaster ... that it was not to go to [Elda], but was to go on to the surviving heirs.

We agree and apply the unambiguous language of the clause without resorting to extrinsic evidence of intent. Id. ¶ 14, 604 N.W.2d at 478. Applying the language of the common disaster clause, Elda had no claim to a prospective inheritance under Glenn’s will. Therefore, her estate’s wrongful death claim, even if recognized, fails as a matter of law.

Appellate Attorney Fees

[¶ 11.] The personal representative of Glenn’s Estate moved for appellate attorney fees from the personal representative of Elda’s Estate. An award of appellate attorney fees is permissible if the attorney fees are otherwise allowable and if they are accompanied by a verified, itemized statement of the legal services rendered. Schaefer ex rel. S.S. v. Liechti, 2006 SD 19, ¶ 20, 711 N.W.2d 257, 264; Stratmeyer v. Engberg, 2002 SD 91, ¶ 29, 649 N.W.2d 921, 928. This motion is accompanied by an itemized and verified statement of the costs incurred, and the personal representative of Elda’s Estate has not objected to the motion. We award attorney fees in the amount of $3,000.

[¶ 12.] Affirmed.

[¶ 13.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, and MEIERHENRY, Justices, concur.

      . The will provided: "I further direct that if any of the beneficiaries named in this Will shall die within thirty (30) days of the date of my death, that this Will shall be construed as if such beneficiary had predeceased.”

      . The survival claim was settled. Thereafter, the circuit court's wrongful death ruling became a final judgment subject to appeal.

      . Wilgus cited the following cases allowing recovery:

        Bodrug v. United States, 10th Cir, 832 F.2d 136, 138-39 (1987) (applying Utah law); O’Toole v. United States, 3d Cir, 242 F.2d 308 (1957) (applying Delaware law); Moss v. Beechcraft, Inc., W.D. Mo., 562 F.Supp. 873 (1983) (applying Missouri law); Schaefer v. American Family Mut. Ins. Co., Wisc. Supr., [192 Wis.2d 768,] 531 N.W.2d 585 (1995); Kulawik v. ERA Jet Alaska, d/b/a ERA Helicopters, Inc., Alaska Supr., 820 P.2d 627 (1991); Regan v. Long Island R.R.Co., N.Y.App.Div., [128 A.D.2d 511,] 512 N.Y.S.2d 443 (1987); Sheahan v. Northeast Ill. Regional Commuter R.R. Corp., Ill.App. Ct., [146 Ill.App.3d 116, 100 Ill.Dec. 114,] 496 N.E.2d 1179 (1986); Yowell v. Piper Aircraft Corp., Tex.Supr., 703 S.W.2d 630 (1986); Ford v. Board of County Commissioners, Colo.Ct.App., 677 P.2d 358 (1983); Reynolds v. Willis, Del.Supr., 209 A.2d 760 (1965) (approving O'Toole); Salinas v. Kahn, Ariz.Ct.App., [2 Ariz.App. 181,] 407 P.2d 120 (1965), modified, [2 Ariz.App. 348,] 409 P.2d 64; Frazier v. Ewell Engineering & Contracting Co., Fla.Supr., 62 So.2d 51 (1953 [1952]); Van Wie v. United States, D.C. Iowa, 77 F.Supp. 22 (1948) (applying Iowa law); Luis v. Cavin, Cal.Ct.App., [88 Cal.App.2d 107,] 198 P.2d 563 (1948); Adams v. Severance, N.H.Supr., 41 A.2d 233 (1945); Denton v. Midwest Dairy Products Corp., Ill.Ct.App., [284 Ill.App. 279,] 1 N.E.2d 807 (1936); Nordlund v. Lewis & Clark R. Co., Or.Supr., [141 Or. 83,] 15 P.2d 980 (1932); Denver & R. G.R. Co. v. Spencer, Colo.Supr., [27 Colo. 313,] 61 P. 606 (1900).

        Wilgus, at *6, n. 9. O’Toole v. United States, 242 F.2d 308 (3rdCir.1957), cited above, recognized additional authorities and states permitting a prospective inheritance claim, including:

        Florida, United States v. Compania Cubana De Aviacion, SA, 5th Cir., 1955, 224 F.2d 811; Dina v. Seaboard Air Line R. Co., 1925, 90 Fla. 558, 106 So. 416 ... Missouri, Bagley v. St. Louis, 1916, 268 Mo. 259, 186 S.W. 966 (brothers and sisters of deceased may recover their probable shares of accumulations) ... Texas, International-Great Northern R. Co. v. Acker, Tex.Civ.App. 1939, 128 S.W.2d 506, 525 (children may recover for loss of prospective accumulations); Utah, Parmley v. Pleasant Valley Coal Co., 1924, 64 Utah 125, 228 P. 557 (child recovered lost inheritance); Spiking v. Consolidated Ry. & Power Co., 1908, 33 Utah 313, 339, 93 P. 838, 847; and Wisconsin, Tidmarsh v. Chicago, M. & St. P. Ry. Co., 1912, 149 [147] Wis. 590, 136 N.W. 337.

        Id. at 313, n. 1.

      . Wilgus cited the following cases as adhering to the minority rule denying recovery:

        Wilson v. United States, E.D. Va., 637 F.Supp. 669, 673 (1986) (applying Virginia law); Baker v. Slack, Mich.Supr., [319 Mich. 703,] 30 N.W.2d 403 (1948); Hodkinson v. Parker, S.D.Supr., [70 S.D. 272,] 16 N.W.2d 924 (1944); Baltimore & P.R. Co. v. Golway, D.C.Cir., 6 App.D.C. 143 (1895). But see Brown v. Department of State Highways, Mich.Ct.App., [126 Mich.App. 392,] 337 N.W.2d 76, 77 (1983) (noting that it is an open question whether the Baker decision retained its viability after the amending of Michigan’s wrongful death statute).
      1996 WL 769335, *6, n. 9. See also Alden v. Maryanov, 406 F.Supp. 547, 551 (D.Md.1976).

      . Wilgus cited the following secondary authority and statute, also allowing recovery:
      Speiser, RECOVERY FOR WRONGFUL DEATH AND INJURY § 3.40; 22A Am.Jur. 2d Death § 244 (1988); Annotation, Wrongful Death Damages for Loss of Expectancy of Inheritance from Decedent, 91 A.L.R.2d 477 (1963 and suppl.1996). At least one state has codified loss of prospective inheritance as a recoverable element of damages. See Ohio Rev.Code Ann. § 2125.02 (Anderson 1996).
      1996 WL 769335 at *6, n. 9.


source: Caselaw Access Project

author: TRANDAHL, Circuit Judge.

license: Public Domain

text:
    2008 SD 45
    NORTH AMERICAN TRUCK & TRAILER, INC., Plaintiff and appellant, v. M.C.I. COMMUNICATION SERVICES, INC., d/b/a Verizon Business Services, Defendant and appellee.
    No. 24669.
    Supreme Court of South Dakota.
    Considered on Briefs March 28, 2008.
    Decided June 11, 2008.

      Daniel K. Brendtro, Brendtro Law Offices, Sioux Falls, South Dakota, Attorney for plaintiff and appellant.
    Daniel R. Fritz, Lynn, Jackson, Shultz & Lebrun, PC, Sioux Falls, South Dakota, Attorneys for defendant and appellee.
   TRANDAHL, Circuit Judge.

[¶ 1.] North American Truck & Trailer, Inc. (NATT) appeals from an order of judgment dismissing its claim for fraud and deceit against M.C.I. Communication, Inc. d/b/a Verizon Business Services (MCI). We reverse and remand.

FACTS AND PROCEDURAL HISTORY

[¶ 2.] NATT is a South Dakota corporation with its principal place of business in Sioux Falls, South Dakota. MCI is a Delaware corporation with its principal place of business in New York, New York. MCI provided telecommunication services to NATT for several years, including 2003 and 2004.

[¶ 3.] On April 27, 2007, NATT filed this lawsuit against MCI. NATT’s complaint contained only one count, which was entitled “Fraud & Deceit.” NATT alleged that in 2003 and 2004 MCI engaged in a pattern of overcharging it for various telecommunications services and that MCI did so intentionally or with reckless disregard. NATT further alleged that it was unaware of the overcharging and to its detriment paid the amounts due. NATT attached to its complaint an eight-page spreadsheet that was intended to explain or summarize the alleged overcharges.

[¶4.] MCI filed a motion to dismiss pursuant to SDCL 15 — 6—12(b)(5) on the basis that NATT’s complaint did not plead fraud and deceit with sufficient particularity as required by SDCL 15 — 6—9(b). The parties briefed the issue, and a hearing was held on August 27, 2007, before the trial court. The trial court took the matter under advisement and issued a letter opinion dated August 28, 2007, granting MCI’s motion. NATT objected to the order of judgment proposed by MCI, and also moved the court to reconsider its decision. The court declined both requests and entered an order of judgment dismissing the complaint on September 6, 2007.

[¶ 5.] NATT raises two issues on appeal:

Whether NATT’s complaint stated a claim of fraud and deceit with sufficient particularity as required by SDCL 15-6 — 9(b).
Whether the trial court erred in denying NATT’s objection to the order of judgment.

STANDARD OF REVIEW

[¶ 6.] “A motion to dismiss under SDCL 15 — 6—12(b) tests the legal sufficiency of the pleading, not the facts which support it. For purposes of the pleading, the court must treat as true all facts properly pled in the complaint and resolve all doubts in favor of the pleader.” Nygaard v. Sioux Valley Hosp. & Health Sys., 2007 SD 34, ¶ 9, 731 N.W.2d 184, 190 (citing Guthmiller v. Deloitte & Touche, LLP, 2005 SD 77, ¶ 4, 699 N.W.2d 493, 496). “The motions are viewed with disfavor and seldom prevail.” Id. (citing Elkjer v. City of Rapid City, 2005 SD 45, ¶ 6, 695 N.W.2d 235, 238). “Pleadings should not be dismissed merely because the court entertains doubts as to whether the pleader will prevail in the action.” Thompson v. Summers, 1997 SD 103, ¶ 7, 567 N.W.2d 387, 390. Further, “[t]he rules of procedure favor the resolution of cases upon the merits by trial or summary judgment rather than on failed or inartful accusations.” Id. “The court accepts the pleader’s description of what happened along with any conclusions reasonably drawn therefrom.” Id. ¶ 5. “[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Id. ‘We review the circuit court’s ruling de novo, with no deference to its determination.” Nygaard, 2007 SD 34, ¶ 9, 731 N.W.2d at 190 (citing Elkjer, 2005 SD 45, ¶ 6, 695 N.W.2d at 238).

ANALYSIS AND DECISION

[¶ 7.] Whether NATT’s complaint stated a claim of fraud and deceit with sufficient particularity as required by SDCL 15-6-9(b).

[¶ 8.] SDCL 15 — 6—9(b) requires that “[i]n all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other condition of mind of a person may be averred generally.” Additionally, “[t]his Court has required that a pleading based on fraud as a basis of recovery of damages must allege all the essential elements of actionable fraud to be sufficient.” Holy Cross Parish v. Huether, 308 N.W.2d 575, 576 (S.D.1981) (citing Voeller v. Geisler, 77 S.D. 96, 86 N.W.2d 395 (1957)). The essential elements of actionable fraud are:

[T]hat a representation was made as a statement of fact, which was untrue and known to be untrue by the party making it, or else recklessly made; that it was made with intent to deceive and for the purpose of inducing the other party to act upon it; and that he did in fact rely on it and was induced thereby to act to his injury or damage.

Northwest Realty Co. v. Colling, 82 S.D. 421, 433, 147 N.W.2d 675, 683 (1966).

[¶ 9.] In this case, the trial court held that NATT “overlooked the essential element of adequately stating a claim for fraud and deceit — the requirement that the claim be stated with sufficient particularity.” The trial court found that “[NATT] provides no factual allegations in support of these contentions ... [NATT] merely makes bald, conclusory allegations pertaining to the allegedly fraudulent conduct of Verizon. Again, without supporting such a claim with particular facts, the claim cannot lie.” (Emphasis added). However, in applying Rule 9(b), “focusing exclusively on its ‘particularity’ language ‘is too narrow an approach and fails to take account of the general simplicity and flexibility contemplated by the rules.’ ” Christidis v. First Pennsylvania Mortg. Trust, 717 F.2d 96, 100 (3rd Cir.1983) (quoting 5 C Wright & A. Miller, Federal Practice and Procedure § 1298, at 407 (1969)). In addition, “Rule 9(b) does not require nor make legitimate the pleading of detailed evidentiary matter.” Denny v. Carey, 72 F.R.D. 574, 578 (D.C.Pa.1976) (citations omitted). In other words, the rules do not require a plaintiff to “plead fraud with complete insight before discovery is complete.” Gunderson v. ADM Investor Serv., Inc., 230 F.3d 1363, *3 (8th Cir.2000)(unpublished opinion).

Since fraud embraces a wide variety of potential misconduct, Rule 9(b) requires slightly more notice than would be forthcoming under Rule 8. But the requirement of Rule 9(b) is met when there is sufficient identification of the circumstances constituting fraud so that the defendant can prepare an adequate answer to the allegations.

Denny, 72 F.R.D. at 578. (citations omitted) (emphasis added). Accordingly, we conclude that the trial court subjected NATT’s averments of fraud to too strict a standard.

[¶ 10.] In South Dakota, a civil pleading based on fraud is sufficiently particular if it alleges “all of the essential elements of actionable fraud.” Holy Cross Parish, 308 N.W.2d at 576 (citing Voeller, 77 S.D. 96, 86 N.W.2d at 395). In (Guthmiller, 2005 SD 77, ¶ 12, 699 N.W.2d at 498, this Court applied the “elements test” to determine whether the plaintiffs deceit claim alleged fraud with sufficient particularity. In doing so, the Court first examined the elements of the tort claim of deceit, which are:

A representation made as a statement of fact, which is untrue and intentionally or recklessly made
1. With intent to deceive for the purpose of inducing the other party to act upon it;
2. Reliance upon the untrue statement of fact;
3. Resulting in injury or damage.

Id. ¶ 12 (citing Grynberg v. Citation Oil and Gas Corp., 1997 SD 121, ¶24, 573 N.W.2d 493, 502; Holy Cross Parish, 308 N.W.2d at 576; SDCL 20-10-1.). Then, in determining if the deceit count of the complaint in that case was sufficiently particular, the Court set forth the allegations as therein provided:

1. That the appraisals submitted by the defendants were overvalued;
2. That the appraisals were given to the plaintiffs with knowledge that the plaintiff would rely on them; and,
3. That the plaintiffs reliance would be to his financial detriment;
4. That the appraisals were given with a reckless disregard for whether the appraisals were fair or not;
5. That the plaintiff believes that the representation that the appraisals were independent were false.

Based on this pleading, the Court held that “the allegations in Count 1, considering the pleader’s description of what happened along with any conclusions reasonably drawn therefrom, were adequate to survive a motion to dismiss.” Id. ¶ 13; see also Holy Cross Parish, 308 N.W.2d at 576; Norwest Bank Black Hills, N.A. v. Rapid City Teachers Fed. Credit Union, 433 N.W.2d 560, 562-563 (S.D.1988).

[¶ 11.] Similarly, a review of the complaint in this case demonstrates that NATT adequately addressed each element of fraud:

A. Representation made as a statement of fact.
Defendant sent bills to NATT which purported to contain the proper charges to be paid by NATT for telecommunication service.
B. Untrue and known to be untrue by the party making it, or else recklessly made.
The billing statements were erroneous and inflated.
C. With intent to deceive and for the purpose of inducing the other party to act upon it.
Defendant acted recklessly or intentionally in compiling and preparing these billing statements and the erroneous figures.
D. Reliance.
NATT paid the total amount allegedly due, relying on these billing statements as if they were true.
E. Damages.
NATT overpaid for telecommunication services because the amounts due were greater than the amounts which NATT had agreed to pay.
NATT estimates it was financially damaged in the year 2003 by being overcharged at least $18,945.76 ... and in 2004 by overpaying at least the same amount, $18,945.76.
In addition, NATT incurred expenses of at least $12,000 to hire consultants to try and reconcile the amounts billed with the amounts that should have been billed.

[¶ 12.] Applying the standard by which we review the sufficiency of the pleadings, we hold that NATT’s complaint satisfies the “elements test” and the requirement of SDCL 15 — 6—9(b). NATT adequately delineated the acts and transactions constituting the alleged fraud to fairly apprise MCI of NATT’s claim. Accordingly, we reverse the order of judgment dismissing the cause of action for fraud and deceit against MCI and remand for further proceedings. In light of this disposition, we need not reach the second issue.

[¶ 18.] Reversed and remanded.

[¶ 14.] GILBERTSON, Chief Justice, and KONENKAMP, ZINTER and MEIERHENRY, Justices, concur.

[¶ 15.] TRANDAHL, Circuit Judge, for SABERS, Justice, disqualified.

      . South Dakota Codified Law 15-6-9(b) is identical to Federal Rule of Civil Procedure 9(b).

      . While South Dakota uses the "elements test” to determine the sufficient particularity of a pleading, we recognize that many federal courts, including the courts of the Eighth Circuit, use the “newspaper test” under the same circumstances. See e.g. United States ex rel. Joshi v. St. Luke's Hosp., Inc., 441 F.3d 552, 556 (8th Cir.2006)(“To satisfy the particularity requirement of Rule 9(b) ... the complaint must identify the 'who, what, where, when, and how' of the alleged fraud”). We decline to adopt that test.

      . In addition, Exhibit A attached to the complaint, an eight page spreadsheet which summarized the charges and alleged overcharges NATT incurred from MCI, provided particularity regarding the "representations” made and the alleged "untrue” or "reckless” nature of those representations.


author: KONENKAMP, Justice.

text:
    2008 SD 43
    In the Matter of the ADMINISTRATION OF the C.H. YOUNG REVOCABLE LIVING TRUST Agreement Dtd. 12-9-94; as Amended 12-21-94.
    No. 24528.
    Supreme Court of South Dakota.
    Considered on Briefs on Jan. 7, 2008.
    Decided June 11, 2008.
    James R. Davies, Alexandria, South Dakota, Attorney for appellant CorTrust Bank-Trustee for C.H. Young Revocable Trust.
    E. Steeves Smith of Tinan, Smith and Bucher, Mitchell, South Dakota, Attorneys for appellees Estate of Alice Young and Reginald D. Young.
   KONENKAMP, Justice.

[¶ 1.] A trust instrument allocated all but eighty acres of land to specific beneficiaries. One beneficiary believed that the trustor intended to assign the eighty acres to him. When a petition to modify the trust was submitted, the circuit court denied it on grounds of laches and expiration of the statute of limitations. We conclude that the doctrine of laches precludes reforming or modifying the trust instrument because the aggrieved beneficiary, while knowing of the problem, took no action to petition the court for over ten years.

Background

[¶2.] C.H. Young (Cy) and his wife, Alice L. Young, had five children: Robert, Reginald, Keith, William, and Linda. On December 9, 1994, Attorneys Jack Theeler and Don Peterson met with Cy, Alice, and Robert at the nursing home where Cy resided. In this meeting, Cy finalized the provisions of his C.H. Young Revocable Living Trust Agreement. These provisions were explained to Cy, and he affirmed his designation of beneficiaries. Because numerous legal descriptions were required for the properties placed in trust, a color-coded map had been prepared so that Cy could point out the property he wanted to go to each of his children. At the end of this meeting, the trust was executed. It provided that after Cy’s death Alice would receive the income from the trust properties during her lifetime. Upon her death, the property would go to the specified beneficiaries. Cy was designated as the Trustee, with Robert as the successor Trustee. The trust document was later amended to make corrections not relevant to this appeal.

[¶3.] Cy died on July 17, 1995, and Robert became the Trustee. In January 1996, Robert learned that an eighty-acre tract of land he believed had been assigned to him was not so designated in the trust. The lawyers informed Cy’s family that this tract would be distributed according to the trust’s residual clause. Robert attempted, through Attorney Theeler, to have the residuary heirs quitclaim this “disputed” land to him. These efforts failed. Nevertheless, in January 1996, Robert allocated this tract to himself in the South Dakota Inheritance Tax Report and paid the inheritance tax on this property.

[¶ 4.] During the next ten years, Robert managed the trust and provided for Alice with the income from the trust properties as Cy intended. She died on July 23, 2006. Robert then petitioned for court supervision of the trust, approval of his final accounting, permission to resign, and for appointment of a successor trustee. Reginald and the Estate of Alice (Objectors) opposed Robert’s petition. While the Objectors did not challenge Robert’s resignation, they resisted the appointment of CorTrust Bank as the successor Trustee. They believed a conflict would exist because Robert was a member of the bank’s trust committee. The court accepted Robert’s final accounting, granted his request to resign, and assigned CorTrust Bank as the successor Trustee. But Robert was specifically prohibited from engaging in any administration of the trust by Cor-Trust Bank.

[¶ 5.] On January 3, 2007, the new Trustee petitioned to modify the terms of the trust. It asserted that Cy intended to grant Robert the disputed eighty-acre tract and that designation to Robert was inadvertently omitted. After a hearing, the circuit court ruled that the statute of limitations on the petition had expired and that the doctrine of laches applied. The Trustee appeals.

Analysis and Decision

[¶ 6.] According to the Trustee, the evidence is “clear, convincing and un-controverted” that Cy wanted Robert to receive the disputed land, and therefore, under SDCL ch 55-3, the terms of the trust should be modified. A court may modify the dispositive terms of a trust under SDCL 55-3-26 “if, because of circumstances not anticipated by the trustor, modification ... of the trust would substantially further the trustor’s purposes in creating the trust.” Similarly, “the court may reform the terms of the trust to conform to the trustor’s intention if the failure to conform was due to a mistake of fact or law and the trustor’s intent can be established.” SDCL 55-3-28.

[¶ 7.] The controlling question here is not what Cy intended or whether the circumstances warrant modification or reformation. Rather, we must determine whether the circuit court erred when it denied the Trustee’s petition because it was filed too late, due both to laches and the expiration of the statute of limitations. We conclude that the laches question is dispositive. We review de novo the court’s ruling on the question of laches. See FB & I Bldg. Products, Inc. v. Superior Truss & Components, 2007 SD 13, ¶ 12, 727 N.W.2d 474, 478 (questions of law reviewed de novo); Tovsland v. Reub, 2004 SD 93, ¶ 14, 686 N.W.2d 392, 398 (citations omitted).

[¶ 8.] In its findings of fact, the circuit court found that the “evidence was clear that Robert was put on notice early on that the trust did not do what he believed his father’s intent was.” Robert attempted to have the other beneficiaries agree to change the trust, but they refused. Failing that, he had the option to seek reformation by petitioning the court. Yet, this was not done until January 3, 2007, when the new Trustee was appointed. Thus, the court concluded that, in not timely petitioning for reformation, Robert disadvantaged the other beneficiaries. As the court noted, Alice, Cy’s widow, had been present at times when these matters were discussed and “would have had knowledge of [Cy’s] intent and also would have had the ability to provide insight in this matter.” Thus, Robert’s inaction “resulted in a long period of time passing without correcting” what Robert thought was “the correct distribution of the property, especially by waiting until after the death of Alice on July 23, 2006.” Consequently, the court concluded that Robert had “a responsibility to act; he [could not] sit and hope that at some point in the future the situation [would] be corrected.”

[¶ 9.] In ruling that the doctrine of laches applied, the court found that Robert had “full knowledge of the facts upon which the action [was] based; regardless of this knowledge, he engaged in an unreasonable delay before this petition was brought; and allowing the petition for reformation to proceed would prejudice the other beneficiaries.” The court declared that “[t]he delay of at least ten years between the time the supposed drafting error was discovered and ... initiating an action to remedy said error ... on January 3, 2007, was certainly more than unreasonable delay.”

[¶ 10.] SDCL 55-3-26 and SDCL 55-3-28 are codifications of the common law equitable power of courts to modify the terms of a trust instrument when necessary to serve the original intention of the trustor. See, e.g., Ike v. Doolittle, 61 Cal.App.4th 51, 70 Cal.Rptr.2d 887, 907 (1998). Laches is an equitable defense. Hyde v. Liebelt, 394 N.W.2d 888, 893 (S.D.1986) (Wuest, C.J., dissenting). For laches to bar recovery in this case, the Objectors were required to show that Robert (1) had full knowledge of the facts upon which the action was based, (2) regardless of this knowledge, he engaged in an unreasonable delay before seeking relief in court, and (3) that it would be prejudicial to proceed with the petition to modify the trust. See Conway v. Conway, 487 N.W.2d 21, 24 (S.D.1992) (citing Golden v. Oahe Enterprises, Inc., 90 S.D. 263, 277, 240 N.W.2d 102, 110 (1976)) (additional citations omitted).

[¶ 11.] Robert, as both beneficiary and Trustee, was on notice of the purported discrepancy in the trust instrument. There is no dispute that in January 1996 Robert learned that the trust had not assigned the disputed land to him. Yet he allocated this land to himself in the South Dakota Inheritance Tax Report. Knowing of this purported oversight, Robert tried to have the residual heirs quitclaim the property to him. They refused. Still, no effort was made to modify the terms of the trust in court until more than ten years later, after Alice had passed away. She was involved in or at least present during the preparation and execution of the trust documents and may have been able to cast light on Cy’s intent. Thus, not only was the delay unreasonable, it prejudiced the beneficiaries. It hindered the court’s ability to ascertain Cy’s true intent. We see no error in denying the petition. All the elements of laches were present.

[¶ 12.] Affirmed.

[¶ 13.] GILBERTSON, Chief Justice, and SABERS, ZINTER, and MEIERHENRY, Justices, concur.

       Although the current Trustee (and appellant) is CorTrust Bank, it was assigned to be the Trustee only after the final accounting in 2006. Robert was the Trustee during all rele-vanl times in this case. Therefore, when speaking of the Trustee's actions, the fact that CorTrust Bank is the current Trustee is of no significance.


author: MYREN, Circuit Judge.

text:
    2008 SD 46
    In the Matter of the ESTATE of M. Ardeth SERBOUSEK, Deceased.
    No. 24610.
    Supreme Court of South Dakota.
    Considered on briefs on Feb. 11, 2008.
    Decided June 11, 2008.

      A1 Arendt of Arendt Law Office, Pierre, South Dakota, Attorney for appellants Pamela Faz & Robert Serbousek.
    Charles P. Schroyer of Schmidt, Schroyer, Moreno, Lee & Bachand, PC, Pierre, South Dakota, Attorneys for appellee Eric U. Serbousek.
   MYREN, Circuit Judge.

[¶ 1.] The personal representatives for the estate of M. Ardeth Serbousek appeal the circuit court’s order denying the admission of a holographic codicil to Serbou-sek’s will. We reverse and remand.

ANALYSIS

[¶ 2.] At evidentiary hearings held in April and May of 2007, the circuit court heard evidence regarding a holographic document created by M. Ardeth Serbousek (Ardeth). Because the holographic document was found in one of Ardeth’s pillows, it has become known as the “pillow note.” At the conclusion of the hearing, the circuit court found that the “pillow note” was handwritten by Ardeth, but concluded that it was not a valid codicil to Ardeth’s will. In making that determination, the circuit court restricted its analysis to the contents of the “pillow note” and did not consider any extraneous circumstances.

[¶ 3.] We have consistently followed a two-step analysis regarding the assessment of purported holographic wills. First, we determine whether the writing complies with the statutory requirements for a holographic will. SDCL 29A-2-502. Second, we analyze whether the writing was executed with testamentary intent and demonstrated testamentary character. Estate of Martin, 2001 SD 123, 635 N.W.2d 473; Estate of Pierce, 531 N.W.2d 573 (S.D.1995). Each case must be considered separately on its own facts and the decedent’s intention “must be determined in the light of the words used in the writing, and any extraneous circumstances bearing upon the question of intention.” In re Zech’s Estate, 70 S.D. 622, 626, 20 N.W.2d 229, 231 (1945) (emphasis added). Extraneous circumstances that are admissible to show intent can include oral statements of the decedent. SDCL 19-16-34. In re Congdon’s Estate, 74 S.D. 306, 51 N.W.2d 877 (1952); Scott v. Liechti, 70 S.D. 89, 15 N.W.2d 1 (1944). We reverse and remand because the circuit court did not consider the extraneous circumstances bearing upon the question of Ardeth’s intention and incorrectly applied the clear and convincing evidence standard set forth in SDCL 29A-2-503.

[¶ 4.] The following extraneous circumstances were established by a preponderance of the evidence through the undisputed testimony of the numerous witnesses. These undisputed facts were relevant to the question of whether the “pillow note” was created with testamentary intent and contained testamentary character and should have been considered by the circuit judge.

[¶ 5.] In May of 2000 Ardeth executed a Last Will and Testament that had been prepared at her request by her attorney. In that will she left a specific parcel of land in Sully County (70-acre parcel) to three of her grandsons, “with hopes that my grandsons will continue to use said land for hunting enjoyment.” In that will she left the remainder of her property to her seven children equally.

[¶ 6.] On July 20, 2000, Ardeth executed a declaration of irrevocable family trust which named her seven children and their issue as beneficiaries of the trust. At the same time Ardeth transferred all real property that she owned into the trust, except the 70-acre parcel. The purpose of this trust was to shield the trust property in the event that Ardeth incurred significant medical or care expenses as she aged.

[¶ 7.] On May 15, 2002, Ardeth created a codicil to her will. This codicil was written entirely in her own handwriting except for a notation on the bottom that read: “Witness: Patricia de Hueck Pierre SD 57501 5/15/02.” This handwritten codicil provided that her daughter Mary Pease was not to take under the will until she had returned specified personal property that Ardeth believed was in her possession.

[¶ 8.] In August 2005 Ardeth executed a typewritten codicil that had been prepared by an attorney at her request. This codicil altered her will by designating three of her children as her co-personal representatives.

[¶ 9.] In the middle of August 2005 Ar-deth fell and broke her shoulder. This injury required medical care and hospitalization. Ardeth left the hospital and entered transitional care in September 2005 and then lived the remainder of her life with her daughter Mary Pease.

[¶ 10.] During the last months of her life, Ardeth told several of her children that she was concerned that the 70-acre parcel had been devised in her will to only three of her grandchildren. She explained that her other eleven grandchildren were growing up and some were also becoming interested in hunting. Ardeth expressed similar concerns to her brother, Gerald Vrooman. Ardeth told Larry Serbousek that she wanted to have a change made in her will. Around the same time, Ardeth told her daughter Janette Byer that she wanted to change her will. Ardeth asked Janette to make an appointment with an attorney around Thanksgiving. Ardeth wanted the appointment to take place around Thanksgiving so that her other daughter (Colleen Sandall from Texas) could accompany her to the appointment. Colleen had taken Ardeth to the attorney on a prior occasion. Ardeth asked Colleen if she would accompany her to the attorney’s office over Thanksgiving. Colleen agreed.

[¶ 11.] Janette Byer, Larry Serbousek, and Mary Pease all testified that Ardeth signed her legal documents as “M. Ardeth Serbousek.” Janette Byer, Colleen San-dall, and Pamela Faz all testified that Ar-deth was of sound mind and capable of forming testamentary intent through the day of her death. No one testified to the contrary on either point.

[¶ 12.] Ardeth knew that her death was approaching. On her final day she met with a funeral director and made final arrangements for her funeral. She even went so far as to write a check to pay for the funeral. Later that same day, November 9, 2005, Ardeth died while at the doctor’s office for a routine appointment.

[¶ 13.] At some point prior to her death, Ardeth drafted a handwritten document that read:

Oct 2006
Please help me change will. I must make right for Dad and all you kids and grandkids. I’m afraid time is short. I want 70 acres equal for all our children. Try to save for hunting for all interested grandkids. Thank you for taking good care of me. I’m sorry for not always being nice. I love you all.
Mom
M. Ardeth Serbousek

[¶ 14.] Ardeth placed that note in one of her pillows. She then placed a yellow “stick-it” note in a book entitled Chicken Soup for the Soul Celebrates Grandmothers. Ardeth’s daughter Janette Byer had given her this book during her recuperation from the fall. This book was significant to Ardeth and Janette because Janette and her daughter had spent time reading the book to Ardeth. The yellow “stick-it” note read: “Check in my pillow.”

[¶ 15.] After Ardeth died, the family was advised that no probate would be necessary because of the trust. Because of that advice and a number of family health emergencies, no action was taken to initiate a probate proceeding until nearly a year after Ardeth’s death.

[¶ 16.] All of Ardeth’s belongings had been gathered, but most had not been distributed. On October 16, 2006, Janette Byer was paging through Chicken Soup for the Soul Celebrates Grandmothers. On page 75 she found the yellow “stick-it” note that read: “Check in my pillow.” Mary Pease was present when Janette found the note.

[¶ 17.] Ardeth had two pillows at the time of her death. Colleen Sandall had taken one of the pillows with her to Texas. Janette Byer had kept the other pillow in her home in Pierre. Upon finding the “stick-it” note, Janette went and retrieved the pillow. She gave it to Mary Pease who discovered the “pillow note” inside.

[¶ 18.] Six of Ardeth’s seven children (Janette Byer, Robert Serbousek, Larry Serbousek, Colleen Sandall, Pamela Faz, and Mary Pease) and Ardeth’s brother Gerald Vrooman testified that the “pillow note” was in Ardeth’s handwriting. The only child of Ardeth that testified that it was not her handwriting was her son, Charles Serbousek. The circuit judge resolved this factual dispute and found that the “pillow note” was in Ardeth’s handwriting.

[¶ 19.] Charles Serbousek and his son, Eric Serbousek, were the only heirs that opposed the admission of the “pillow note.” Each of Ardeth’s children, except Charles, testified that they believed the “pillow note” expressed Ardeth’s intention to change her will to leave the 70-acre parcel to all of her children for the benefit of all of her grandchildren. This included the parents of her other two grandsons who would have received a one-third interest in the 70-acre parcel under the will. Those two grandsons did not object to the admission of the “pillow note,” even though it effectively eliminated their ownership interest in the 70-acre parcel.

CONCLUSION

[¶ 20.] Ardeth’s “pillow note” is entirely written in her handwriting and is signed. It fulfills the formality require-merits for a holographic will. Estate of Nelson, 250 N.W.2d 286, 287 (S.D.1977). Ardeth’s testamentary intent and the testamentary character of the document are established by the document and the extraneous circumstances.

[¶ 21.] During the final weeks of her life Ardeth spoke to several of her children and her brother and repeatedly expressed her intention to change her will. She arranged to have an appointment scheduled to meet with an attorney so that she could change her will. Ardeth had previously created a holographic codicil to her will. Ardeth knew that death was rapidly approaching. Ardeth hoped and intended to meet with an attorney to change her will. As a precaution, Ardeth handwrote the “pillow note” to accomplish her intentions in case she died before she was able to meet with the attorney. Ardeth’s testamentary intent is established by her expressed intention to change her will, by her request in the “pillow note” for help in changing her will, and by her acknowl-edgement of her imminent death (“time is short).” It is further established by the fact that she used the same signature she used to sign her legal documents.

[¶ 22.] The “pillow note” alters one paragraph of Ardeth’s Will. Consequently, it can and should be read in conjunction with and in relation to that will. When read in that context, there can be no doubt about which seventy acres Ardeth was addressing. Although her note is brief, when it is read in the light of her contemporaneous conversations about her concerns, it is clear that she intended to change her will so that the seventy-acre parcel would be shared equally among her children with the hope that all of her grandchildren could enjoy hunting on the land.

[¶ 23.] The circuit court’s order is reversed and the case is remanded with instructions that the “pillow note” be admitted into probate and interpreted to devise the 70-acre parcel to Ardeth’s seven children equally.

[¶ 24.] Reversed and remanded.

[¶ 25.] GILBERTSON, Chief Justice, SABERS, KONENKAMP and MEIERHENRY, Justices, concur.

[¶ 26.] MYREN, Circuit Judge, for ZINTER, Justice, disqualified.

      . SDCL 29A-2-502 provides:
      (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.
      (c)Intent that the document constitute the testator’s will can be established by extrinsic evidence, including, for holographic wills, portions of the document that are not in the testator’s handwriting.

      . The October 2006 date was obviously a clerical error by Ardeth given that the trial court found that the note was in her handwriting. Infra, ¶ 18.


author: GILBERTSON, Chief Justice.

text:
    2008 SD 44
    Deann Leslie LANGDEAU, Plaintiff and Appellant, v. Jeffrey Jay LANGDEAU, Defendant and Appellant. Jeffrey Jay Langdeau, Petitioner and Appellee, v. Deann Leslie Langdeau, Respondent and Appellant.
    Nos. 24546, 24547, 24593.
    Supreme Court of South Dakota.
    Considered on Briefs Feb. 12, 2008.
    Decided June 11, 2008.

      Patricia A. Carlson, Pierre, South Dakota, Attorney for plaintiff and appellant.
    Jamie L. Damon, Pierre, South Dakota, Attorney for defendant and appellee.
   GILBERTSON, Chief Justice.

[¶ 1.] This appeal arises from issues related to simultaneous divorce proceedings brought in the South Dakota Sixth Judicial Circuit Court and the Lower Brule Sioux Tribe Reservation Tribal Court. On May 2, 2007, the circuit court entered an order dismissing the divorce complaint (# 24546) and temporary protection order (# 24547) filed by Deann Langdeau (Deann). On June 18, 2007, the circuit court entered an order recognizing tribal court orders dated May 11, 2007, associated with the tribal court divorce petition of Jeffrey Jay Lang-deau (Jay). We affirm in part, reverse in part and reverse and remand in part.

FACTS AND PROCEDURE

[¶ 2.] Deann and Jay were married on May 12, 1998. Deann is a non-Indian. Jay is an enrolled member of the Lower Brule Sioux Tribe (LBST). The couple resided together on fee land within the external boundaries of the Lower Brule Sioux Tribe Reservation (the “Reservation”) from January 1998 until February 22, 2007. Two children, ages nine years and six years, were born of the marriage and were either enrolled or eligible for enrollment in the LBST.

[¶ 3.] Deann left the Reservation with the children on February 22, 2007 and took up residence with her mother in Onida, South Dakota. On February 27, 2007, Deann filed a petition for divorce with the circuit court in Lyman County. On the same day, Jay was served with the summons and complaint. On February 28, 2007, Deann filed a petition and affidavit in Sully County for a domestic abuse protection order against Jay. In her affidavit, Deann alleged multiple occasions in which Jay physically abused or endangered her and the children. On the same day, the circuit court signed an ex parte temporary protection order, requiring Jay to have no contact with Deann or the children. Jay filed for divorce in tribal court on February 28, 2007. Deann received service of Jay’s tribal divorce petition on the same day. Additionally on February 28, the tribal court entered an ex parte order on Jay’s ex parte motion for interim relief. The order established a visitation schedule with the children for Jay and directed Deann to provide Jay with copies of certain financial documents and to return a specified amount of cash to their bank account.

[¶ 4.] Jay filed a motion to dismiss the circuit court’s ex parte temporary protection order for lack of jurisdiction. Following a March 16, 2007 hearing in Sully County, the circuit court denied Jay’s motion, but established its own visitation schedule. On April 5, 2007, a second hearing in regard to the temporary protection order was held; after which, the temporary protection order was dismissed in Sully County and reissued in Lyman County. The reissued order was entered in Lyman County on April 6, 2007.

[¶ 5.] Jay filed motions in Lyman County to dismiss Deann’s divorce action and the temporary protection order for lack of jurisdiction and to enforce the visitation schedule established earlier by the tribal court. A motions hearing was conducted on April 10 and 11, 2007; after which, the circuit court dismissed the divorce action and the circuit court’s ex parte temporary protection order in Lyman County. The circuit court adjudged that under the Uniform Child Custody Jurisdiction Act, the court did not have jurisdiction over the divorce and child custody because for most of the six months preceding Deann’s divorce petition, the children had lived within the external boundaries of the Reservation. Further adjudging South Dakota to be an inconvenient forum and thereby declining jurisdiction, the circuit court determined the Reservation to be the home of the parties and therefore, the appropriate forum for the divorce and all related matters. The circuit court’s order was entered on May 2, 2007 without memorandum opinion, findings of fact or conclusions of law.

[¶ 6.] On April 11, 2007, Jay filed with the tribal court, a petition and affidavit for ex parte order of protection against Deann. On the same day, the tribal court issued the ex parte order of protection, including notice of hearing to be held April 12, 2007, which was served upon Deann. On April 12, 2007, by way of special appearance, Deann filed a petition and motion contesting the adequacy of service of process and notice for the April 12 hearing. In the alternative, Deann requested a continuance.

[¶ 7.] On April 13, 2007, the tribal court entered an ex parte temporary order of protection against Deann. The order required Deann to have no contact with Jay. It also reiterated the provisions of the tribal court’s February 28, 2007 ex parte order for interim relief pertaining to Jay’s visitation with the children and demand for Deann’s return of cash and documents. See supra ¶ 3. On April 19, 2007, the tribal court renewed its ex parte temporary order of protection including the provisions from the earlier ex parte order for interim relief. A hearing date on the ex parte order was set for May 2, 2007.

[¶ 8.] At the May 2, 2007 tribal court hearing, Deann appeared through legal counsel and requested a continuance. The tribal court denied Deann’s request and proceeded forward by issuing an order of protection and granting in part Jay’s earlier motion for interim relief as to visitation. The interim-relief order set out that Jay’s visitation should occur each weekend, beginning with 6:00 p.m. on Friday, May 4, 2007. However, while the schedule provided that the oldest child was supposed to be returned to Deann the following Sunday at 4:00 p.m., it required the youngest child to remain with Jay. According to the order, the remaining issues raised by Jay’s ex parte motion for interim relief were scheduled for hearing on May 15, 2007.

[¶ 9.] The tribal court orders directed Deann and Jay to exchange the children in the parking lot of Oahe, Inc. in Pierre, South Dakota. The first exchange did not occur as planned. The tribal court then entered amended orders on May 11, 2007, which set out the lobby of the Pierre Police Department as the exchange location commencing Friday, May 11, 2007 at 6:00 p.m. Jay alleged that Deann did not show up for this exchange at the appointed time and place.

[¶ 10.] On May 21, 2007, Jay filed with the circuit court a motion to recognize the tribal court’s amended orders of May 11 and to obtain authorization to have South Dakota law enforcement enforce the tribal court orders. The circuit court heard the matter on June 4, 2007 and thereafter, entered its order recognizing the tribal court’s May 11, 2007 orders. No corresponding memorandum opinion, findings of fact or conclusions of law were entered. Subsequent to the proceedings giving rise to the issues in this case, Jay was granted a default divorce judgment by the tribal court.

[¶ 11.] We consider five issues raised by Deann on appeal:

1. Whether the circuit court erred when it concluded that based on the residency of the parties and the children that it did not have jurisdiction to hear the child custody and divorce proceedings where Deann filed for divorce in Lyman County five days after moving off the Lower Brule Sioux Tribe Reservation, taking up residence in South Dakota.
2. Whether under SDCL 26-5B-204(a), the circuit court is required to exercise temporary emergency jurisdiction as to child custody when a pri-ma facie case has been made that children or a parent have been subjected to abuse or mistreatment.
3. Whether the circuit court abused its discretion when, without entering findings of fact and conclusions of law, it declined jurisdiction after Deann alleged abuse and mistreatment as a basis for temporary emergency jurisdiction, pursuant to SDCL 26-5B-207(b).
4. Whether the circuit court abused its discretion when, without entering findings of fact and conclusions of law, it dismissed its temporary protection order.
5. Whether the circuit court abused its discretion when, without entering findings of fact and conclusions of law, it recognized the May 11, 2007 tribal court protection order and order for interim relief.

STANDARD OF REVIEW

[¶ 12.] We review a circuit court’s decision whether to exercise jurisdiction over child custody and divorce actions under the abuse of discretion standard. See generally, Regalado v. Mathieson, 2004 SD 87, ¶ 5, 684 N.W.2d 67, 70 (reiterating this Court’s application of the abuse of discretion standard to circuit court decisions declining jurisdiction in favor of more convenient forums under the predecessor act to our currently enacted Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA)) (citing Ford v. Ford, 2002 SD 147, ¶ 7, 655 N.W.2d 85, 86; Fuerstenberg v. Fuerstenberg, 1999 SD 35, ¶ 16, 591 N.W.2d 798, 804 (citation omitted)), see also Lustig v. Lustig, 1997 SD 24, ¶ 5, 560 N.W.2d 239, 241 (citations omitted).

Questions of law, including statutory construction, we review de novo. As the questions here are primarily matters of statutory interpretation, we review them under the de novo standard. A court’s failure to consider the factors relevant to the principle of inconvenient forum under the [UCCJEA] is an abuse of discretion.

Lustig, 1997 SD 24, ¶ 5, 560 N.W.2d at 241 (internal citations omitted).

The purpose of statutory construction is to discover the true intention of the law which is to be ascertained primarily from the language expressed in the statute. The intent of a statute is determined from what the legislature said, rather than what the courts think it should have said, and the court must confine itself to the language used. Words and phrases in a statute must be given their plain meaning and effect. When the language in a statute is clear, certain and unambiguous, there is no reason for construction, and the Court’s only function is to declare the meaning of the statute as clearly expressed. Since statutes must be construed according to their intent, the intent must be determined from the statute as a whole, as well as enactments relating to the same subject. But, in construing statutes together it is presumed that the legislature did not intend an absurd or unreasonable result.

US West Communications, Inc. v. Pub. Utilities Comm’n of State of South Dakota, 505 N.W.2d 115, 123 (S.D.1993) (internal citations omitted).

ANALYSIS AND DECISION

[¶ 13.] 1. Whether the circuit court erred when it concluded that based on the residency of the parties and the children that it did not have jurisdiction to hear the child custody and divorce proceedings where Deann filed for divorce in Lyman County five days after moving off the Lower Brule Sioux Tribe Reservation, taking up residence in South Dakota.

[¶ 14.] In cases where the issue of child custody is incidental to that of divorce, and the circuit court has jurisdiction, the court may decline to exercise jurisdiction over child custody while retaining it over the divorce. SDCL 26-5B-207(d); Lustig, 1997 SD 24, ¶ 13, 560 N.W.2d at 244 (quoting predecessor statute to SDCL 26-5B-207). However, the circuit court’s decision whether to exercise jurisdiction as a convenient forum requires independent consideration of each issue and separate determinations. Lustig, 1997 SD 24, ¶ 14, 560 N.W.2d at 245 (where the divorce action was properly commenced in South Dakota, holding that the circuit court’s determination that it was an inconvenient forum to hear the incidental child custody issue was not a ground for the same determination as to the encompassing divorce action) (citing SDCL 25-4-30; 15-7-2(9)). Divorce jurisdiction is not controlled per se by the UCCJEA; in fact a circuit court errs when it dismisses a divorce proceeding based on the jurisdictional requirements of the UCCJEA. Id. (clarifying the extent of the jurisdictional scope of the UCCJEA’s predecessor, the Uniform Child Custody Jurisdiction Act (UCCJA)) (citations omitted). Therefore, we will address the issues of child custody and divorce separately in reviewing the circuit court’s decision to dismiss the February 22, 2007 complaint brought by Deann in Lyman County.

The Circuit Court’s Dismissal Of The Child Custody Proceeding For Lack Of Jurisdiction Due To The Residency Of The Children

[¶ 15.] As a preliminary matter, for the circuit court to act as a forum for a child custody determination, it must establish jurisdiction under SDCL 26-5B-201. This statute provides:

(a)Except as otherwise provided in § 26-5B-204, a court of this state has jurisdiction to make an initial child-custody determination only if:
(1)This state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state;
(2) A court of another state does not have jurisdiction under paragraph (1), or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under § 26-5B-207 or 26-5B-208, and:
(A) The child and the child’s parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence; and
(B) Substantial evidence is available in this state concerning the child’s care, protection, training, and personal relationships;
(3) All courts having jurisdiction under paragraph (1) or (2) have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under § 26-5B-207 or 26-5B-208; or
(4) No court of any other state would have jurisdiction under the criteria specified in paragraph (1), (2), or (3).
(b) Subsection (a) is the exclusive jurisdictional basis for making a child-custody determination by a court of this state.
(c) Physical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child-custody determination.

SDCL 26-5B-201 (emphasis added).

[¶ 16.] “A court of this state shall treat a tribe as if it were a state of the United States for the purpose of applying [the general provisions and enforcement sections of the UCCJEA].” SDCL 26-5B-104(b).

[¶ 17.] While we would normally expect the circuit court to enter findings of fact contemporaneous with an order adjudging it to have no jurisdiction to hear child custody proceedings, in this case there is no dispute as to the material facts. Jay is an enrolled member of the LBST. The mutual children of Deann and Jay are either enrolled or eligible for enrollment in the LBST. The children resided within the exterior boundaries of the LBST for all but the last five days of the six month period preceding Deann’s February 27, 2007, Lyman County divorce complaint. Consequently, we find no error in the circuit court’s order dismissing the child custody proceeding for lack of jurisdiction due to the residency of the children.

The Circuit Court’s Dismissal Of The Divorce Proceeding For Lack Of Jurisdiction Due To The Residency Of The Parties

[¶ 18.] Circuit courts may not refuse to hear divorce proceedings properly commenced first in South Dakota, in favor of another state’s jurisdiction. Lustig, 1997 SD 24, ¶ 14, 560 N.W.2d at 245 (citing SDCL 25-4-30; SDCL 15-7-2(9)). Circuit court’s have subject matter jurisdiction over all divorce actions. Parsley v. Parsley, 2007 SD 58, ¶ 17, 734 N.W.2d 813, 818 (citing SDCL 16-6-9(4)). For the circuit court to exercise personal jurisdiction over the parties in a divorce action, the plaintiff must be a resident of this state at the time the divorce action is commenced. Id. (citing SDCL 25-4-30). See also Wells v. Wells, 451 N.W.2d 402, 404 (S.D.1990) (“A state where only one spouse is domiciled has this power because domicile creates a relationship with a state, and ‘[e]ach state as a sovereign has a rightful and legitimate concern in the marital status of persons domiciled within its borders’ ”) (citing Williams v. State of North Carolina, 317 U.S. 287, 298, 63 S.Ct. 207, 213, 87 L.Ed. 279 (1942)). “[T]he residence must be an actual residence as distinguished from a temporary abiding place, and, further than this, it must not be a residence solely for the purpose of procuring a divorce[.]” Parsley, 2007 SD 58, ¶ 17, 734 N.W.2d at 818 (citation omitted).

[¶ 19.] Our opinion in Wells is instructive on the divorce issue. In that case, both spouses were enrolled members of the Crow Creek Sioux Tribe and resided on the Crow Creek Sioux Tribe Reservation. Id. at 402. The wife left the reservation in April 1987 and settled in Rapid City, South Dakota the following July. The husband immediately filed for divorce in tribal court, but could not effect valid service of process pursuant to SDCL 1-1-25. Id. at 402, 403. In August 1987, the wife commenced divorce proceedings in circuit court, which was later dismissed because wife was unable to effect valid service of process pursuant to tribal law. Id. at 403. Accepting his method of service of process, the tribal court granted the husband a default judgment in November 1987. In March 1988, the wife commenced new divorce proceedings in circuit court and obtained valid service of process. The husband appeared specially; contesting jurisdiction on grounds that there was no longer a case in controversy subsequent to the tribal divorce judgment and that South Dakota had no subject matter jurisdiction. The circuit court rejected the husband’s jurisdictional claims. The court concluded that it had concurrent subject matter jurisdiction and it refused to recognize the tribal court divorce because of the husband’s failure to comply with personal service requirements of SDCL 1-1-25.

[¶ 20.] On appeal the husband argued that South Dakota’s jurisdictional claim was an infringement on tribal sovereignty. Id. at 404-05. In rejecting his argument we considered the test set out by the United States Supreme Court in Williams v. Lee, 358 U.S. 217, 79 S.Ct. 269, 3 L.Ed.2d 251 (1959) (Lee Infringement Test). We observed that the Lee Infringement Test was derived from facts that encompassed a single transaction involving an Indian, which occurred on a reservation and that the purpose for the Test is to protect tribal sovereignty in the realm of disputes involving Indians that take place entirely on a reservation, i.e. “[reservation affairs.” Id. at 405 (quoting Lee, 358 U.S. at 223, 79 S.Ct. at 272, 3 L.Ed.2d 251).

[¶ 21.] Comparing the purpose of the Lee Infringement Test with the facts in Wells we concluded that once the wife left the reservation and took up residence in Rapid City, the state acquired an interest in the matter. Therefore, the divorce could not be characterized as exclusively a reservation affair. We held that “without a proper tribal court divorce, the state court is merely exercising its own concurrent jurisdiction over the marriage of one of its domiciliaries.” Id.

[¶ 22.] We now contrast the facts of Wells with those of the instant case. Deann is a non-Indian. Notwithstanding the fact that she left the Reservation five days before filing for divorce in Lyman County, as a non-Indian living within the State of South Dakota, she was at all times relevant, a resident of this state. Unlike Wells, where the parties both were enrolled members of a tribe and the State did not acquire jurisdiction over the dissolution until one of them left the reservation, here Deann was a resident of South Dakota and the State at all times had both subject matter and personal jurisdiction over the dissolution of her marriage to Jay. See id. at 406 n. * (citing Byzewski v. Byzewski 429 N.W.2d 394 (N.D.1988) (holding in a case where non-Indian husband and Indian wife resided on an Indian reservation that state court had subject matter jurisdiction over the marital dissolution)).

[¶ 23.] As there were concurrent divorce proceedings pending in the circuit and tribal courts, what then becomes determinative to the situs of the adjudication is the procedural history. Deann filed for divorce in Lyman County on February 27, 2007. Jay received valid service of process on the same day. Jay filed for divorce in tribal court on February 28, 2007. Deann received valid service of process on the same day. Since Deann’s complaint filed in Lyman County was first and it was properly commenced, the circuit court may not refuse to hear the divorce proceeding. See Lustig, 1997 SD 24, ¶ 14, 560 N.W.2d at 245 (citing SDCL 25-4-30; 15-7-2(9)). Consequently, we conclude the circuit court erred when it concluded it had no jurisdiction and dismissed the divorce proceedings.

[V24J 2. Whether under SDCL 26-5B-204(a), the circuit court is required to exercise temporary emergency jurisdiction as to child custody when a prima facie case has been made that children or a parent have been subjected to abuse or mistreatment.

[¶ 25.] The affidavit filed by Deann in support of her petition for a domestic abuse protection order, refiled in Lyman County, included allegations that on multiple occasions Jay physically abused or endangered her and the children. Deann argues that her allegations stated a prima facie case of mistreatment and abuse that required the circuit court to exercise temporary emergency jurisdiction over the child custody proceedings pursuant to SDCL 26-5B-204(a).

[¶ 26.] SDCL 26-5B-204(a) is an additional basis under which the circuit court has jurisdiction over child custody beyond that established by the residency of the children and the parties under SDCL 26-5B-201. See supra ¶ 15 (reciting SDCL 26-5B-201). SDCL 26-5B-204(a) provides:

A court of this state has temporary emergency jurisdiction if the child is present in this state and the child has been abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse.

[¶ 27.] When the circuit court is found to have jurisdiction over child custody, as a matter of discretion, it may yield jurisdiction to another, more appropriate forum pursuant to SDCL 26-5B-207(a). In its order dismissing Deann’s divorce complaint, the circuit court referenced this statute when it stated that it “declines jurisdiction because South Dakota is an inconvenient forum.... ” SDCL 26-5B-207(a) provides:

A court of this state which has jurisdiction under this chapter to make a child-custody determination may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum. The issue of inconvenient forum may be raised upon motion of a party, the court’s own motion, or request of another court.

(Emphasis added).

[¶ 28.] In the absence of ambiguity, there is no need for statutory construction. US West Communications, Inc., 505 N.W.2d at 123 (citation omitted). Jurisdiction pursuant to SDCL 26-5B-204(a) may be declined in favor of a more appropriate forum under SDCL 26-5B-207(a). See Lustig, 1997 SD 24, ¶ 14, 560 N.W.2d at 245 (opining that “[l]aws must be read in consonance with the entire statutory scheme”) (citing DeSmet Ins. Co. v. Gibson, 1996 SD 102, ¶ 8, 552 N.W.2d 98, 101). Thus, the circuit court did not violate SDCL 26-5B-204(a) when it declined to exercise temporary emergency jurisdiction over the child custody matter because under SDCL 26-5B-207(a) it had authority to conclude it was an inconvenient forum as compared to the Lower Brule Sioux Tribal Court.

[¶29.] 3. Whether the circuit court abused its discretion when, without entering findings of fact and conclusions of law, it declined jurisdiction after Deann alleged abuse and mistreatment as a basis for temporary emergency jurisdiction, pursuant to SDCL 26-5B-207(b).

[¶ 30.] In lieu of a provision requiring the circuit court to exercise temporary emergency jurisdiction pursuant to SDCL 26-5B-204(a), Deann argues that her affidavit in support of her petition for a domestic abuse protection order constituted a prima facie case of mistreatment and abuse, thus requiring the circuit court to conduct an evidentiary hearing into her claims and enter findings of fact and conclusions of law before yielding jurisdiction to the tribal court pursuant to SDCL 26-5B-207(a). Deann avers that 26-5B-207(b) supports her position that findings were required. That subsection provides in part:

Before determining whether it is an inconvenient forum, a court of this state shall consider whether it is appropriate for a court of another state to exercise jurisdiction. For this purpose, the court shall allow the parties to submit information and shall consider all relevant factors, including:
(1) Whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child;

SDCL 26-5B-207(b) (emphasis added).

[¶ 31.] “The [UCCJEA] was designed to produce jurisdictional certitude for the sake of children. Deferring a child custody dispute to another forum can ‘assure that the best interests of the child ... are not subordinated to the parents’ interest in obtaining the best terms of the divorce.’ ” Lustig, 1997 SD 24, ¶ 14, 560 N.W.2d at 245 (citation omitted). Although, declining jurisdiction pursuant to the inconvenient forum provision is discretionary and “[t]he dominant purpose of the ... provision is to encourage restraint in the exercise of jurisdiction” id. ¶ 7 (citation omitted), the deference we extend to the circuit court in reviewing its use of this discretion imposes a solemn responsibility. Fuerstenberg, 1999 SD 35, ¶ 23, 591 N.W.2d 798, 807 (where the circuit court failed to enter findings on material disputed facts, reversing the court’s decision to modify custody and remanding for a more systematic consideration of the traditional factors relevant to the best interests of the child) (citing Michelson v. United States, 335 U.S. 469, 480, 69 S.Ct. 213, 221, 93 L.Ed. 168 (1948)). Compare Regalado, 2004 SD 87, ¶¶ 6-10, 684 N.W.2d at 70-71 (affirming the circuit court’s decision to decline jurisdiction as an inconvenient forum on reliance of its findings of fact that appeared on review “to be supported by the record and all reasonable inferences drawn therefrom”).

[¶ 32.] In this case, Deann alleged serious incidents of physical abuse and child endangerment in her affidavit in support of her petition for domestic abuse protection. Deann alleged that Jay physically abused her and that he abused alcohol to the extent that he endangered the children. Deann stated that while under the influence Jay would drive with the children and that on one occasion he enlisted an 11-year-old child to drive him and their two children home from Lower Brule, South Dakota. Deann also alleged that on yet another occasion, Jay disciplined their oldest child by shooting her with a BB gun.

[¶ 33.] As we observe, SDCL 26-5B-207(b) provides that the circuit court “shall consider” factors including “[w]hether domestic violence has occurred and is likely to continue in the future[.]” We conclude the Legislature, when it enacted this section of the UCCJEA, intended the circuit court to enter the findings of fact and conclusions of law that we relied upon during appellate review under the predecessor UCCJA, before yielding jurisdiction over child custody to another forum. Accordingly, on this issue, we remand to the circuit court for findings of fact and conclusions of law and evidentiary proceedings satisfactory for the entry thereof.

[¶ 34.] 4. Whether the circuit court abused its discretion when, without entering findings of fact and conclusions of law, it dismissed its temporary protection order.

[¶ 35.] Deann also argues that the circuit court was required to enter findings of fact and conclusions of law before dismissing its temporary protection order. However, she fails to cite any authority to support her position. Therefore, this issue is waived on appeal. See State v. Pellegrino, 1998 SD 39, ¶22, 577 N.W.2d 590, 599 (failure to cite supporting authority on appeal is a violation of SDCL 15-26A-60(6) and the issue is thereby waived) (citing State v. Knoche, 515 N.W.2d 834, 840 (S.D.1994); State v. Dixon, 419 N.W.2d 699, 701 (S.D.1988)).

[¶ 36.] 5. Whether the circuit court abused its discretion when, without entering findings of fact and conclusions of law, it recognized the May 11, 2007 tribal court protection order and order for interim relief.

[¶ 37.] Deann avers that pursuant to SDCL 1-1-25, the tribal court’s May 11, 2007 amended protection order and amended order for interim relief are not entitled to recognition in South Dakota. SDCL 1-1-25 provides:

No order or judgment of a tribal court in the State of South Dakota may be recognized as a matter of comity in the state courts of South Dakota, except under the following terms and conditions:
(1) Before a state court may consider recognizing a tribal court order or judgment the party seeking recognition shall establish by clear and convincing evidence that:
(a) The tribal court had jurisdiction over both the subject matter and the parties;
(b) The order or judgment was not fraudulently obtained;
(c) The order or judgment was obtained by a process that assures the requisites of an impartial administration of justice including but not limited to due notice and a hearing;
(d) The order or judgment complies with the laws, ordinances and regulations of the jurisdiction from which it was obtained; and
(e) The order or judgment does not contravene the public policy of the State of South Dakota.
(2) If a court is satisfied that all of the foregoing conditions exist, the court may recognize the tribal court order or judgment in any of the following circumstances:
(a) In any child custody or domestic relations case; or
(b) In any case in which the jurisdiction issuing the order or judgment also grants comity to orders and judgments of the South Dakota courts; or
(c) In other cases if exceptional circumstances warrant it; or
(d) Any order required or authorized to be recognized pursuant to 25 U.S.C., § 1911(d) or 25 U.S.C., § 1919.

(Emphasis added).

[¶ 38.] Deann submits that she did not have an opportunity to be heard or offer evidence before the tribal court entered its amended orders on May 11, 2007. She contends that the amended orders were effectively a child custody determination as to the youngest child since they provided that following the first visitation exchange, that child was to remain with Jay.

[¶ 39.] A circuit court will recognize a tribal court order under the principle of comity. First Nat’l Bank of Philip v. Temple, 2002 SD 36, ¶ 16, 642 N.W.2d 197, 203 (citing Wells, 451 N.W.2d at 403). However, the party seeking recognition must first establish that the tribal court order complies with SDCL 1-1-25. Id. (citing Mexican v. Circle Bear, 370 N.W.2d 737 (S.D.1985)). Such recognition will be accorded only if the statutory elements prerequisite to granting comity under SDCL 1-1-25 are established by clear and convincing evidence. Gesinger v. Gesinger, 531 N.W.2d 17, 19 (S.D.1995) (citing One Feather v. O.S.T. Pub. Safety Com’n., 482 N.W.2d 48, 49 (S.D.1992)).

[¶ 40.] From the record, it appears that the tribal court had scheduled a hearing for May 15, 2007 to consider the status of the protection order and the order for interim relief issued on May 2, 2007. The record reveals that legal counsel for Deann and Jay exchanged several e-mails wherein Deann’s legal counsel attempted to arrange a continuance of the May 15 hearing. The record is unclear as to whether the tribal court conducted a hearing on May 15, and there is no transcript in the record of any other hearing addressing the status of the orders after May 2, 2007. See In re J.D.M.C., 2007 SD 97, ¶40, 739 N.W.2d 796, 808-09 (where the circuit court’s findings of fact failed to address a material issue at the trial in which an Indian tribe was seeking recognition of a tribal court order, holding that when the tribal court issued a memorandum opinion, but the record included no transcript of its proceedings, there was no way to determine on appeal whether the matter before the tribal court had been “fully and fairly litigated”). However, Jay’s petition for recognition reveals that on May 11, 2007, his legal counsel had a conference with the tribal court in which legal counsel informed the tribal court that Deann had not complied with the original visitation schedule. According to the petition, the tribal court then signed the orders as amended and they were entered on May 11, 2007.

[¶ 41.] The language of SDCL 1-1-25(1) unambiguously sets out that among other conditions for recognition of a tribal court order, the party seeking recognition must establish by “clear and convincing evidence” that “[t]he order or judgment was obtained by a process that assures the requisites of an impartial administration of justice[.]” In this case, the complete record of the tribal court proceeding is lacking. Moreover, Deann alleges that in contravention of South Dakota public policy she was not accorded due process by the tribal court and that Jay’s petition for recognition indicates there was an ex parte communication between his legal counsel and the tribal court that precipitated the May 11, 2007 amended orders. We conclude that under these circumstances the Legislature, when it enacted SDCL 1-1-25, intended the circuit court to enter findings of fact and conclusions of law for appellate review, before granting recognition to a tribal court order under the principle of comity. See J.D.M.C, 2007 SD 97, ¶ 49, 739 N.W.2d at 813. Accordingly, on this issue, we remand to the circuit court for appropriate evidentiary proceedings along with findings of fact and conclusions of law.

[¶ 42.] Affirm in part, reverse in part, and reverse.and remand in part.

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

      . While there is no dispute that the oldest child was enrolled in the LBST, the record is conflicting as to the enrollment status of the youngest child.

      . Deann had an older child from a previous relationship who had been living with Jay, Deann and the younger children prior to Deann’s departure from the marital domicile. This older child was also named in the temporary protection order as a person with whom Jay was to have no contact.

      . There is no documentation in the record pertaining to the April 12, 2007 tribal court hearing.

      . The visitation provisions were also included in the tribal court’s order of protection.

      . Why this exchange did not occur is disputed by the parties. Each claim that the other did not show up for the exchange.

      . The pertinent part of SDCL 26-5B-207 that is functionally equivalent to that part of its predecessor statute, SDCL 26-5A-7 of the former Uniform Child Custody Jurisdiction Act, quoted in Lustig provides as follows:

        A court of this state may decline to exercise its jurisdiction under this chapter if a child-custody determination is incidental to an action for divorce or another proceeding while still retaining jurisdiction over the divorce or other proceeding.

      SDCL 26-5B-207(d) (emphasis added).

      . SDCL 15-7-2 provides in pertinent part:
      Any person is subject to the jurisdiction of the courts of this state as to any cause of action arising from the doing personally, through any employee, through an agent or through a subsidiary, of any of the following acts:

      (9) With respect to any action for divorce, separate maintenance, or spousal support the maintenance in this state of a matrimonial domicile at the time the claim arose or the commission in this stale of an act giving rise to the claim, subject to the provisions of § 25-4-30;....

      . SDCL 25-4-30 provides:
      The plaintiff in an action for divorce or separate maintenance must, at the time the action is commenced, be a resident of this state, or be stationed in this state while a member of the armed services, and in order that each party be entitled to the entry of a decree or judgment of divorce or separate maintenance, that residence or military presence must be maintained until the decree is entered.

        . SDCL 15-26A-60(6) mandates that the appellant brief shall contain “[a]n argument [and that t]he argument shall contain the contentions of the party with respect to the issues presented, the reasons therefore, and the citations to the authorities relied on."

      (Emphasis added).

      . We have observed that the United States Supreme Court recognizes comity as:
      The extent to which the law of one nation, as put in force within its territory, whether by executive order, by legislative act, or by judicial decree, shall be allowed to operate within the dominion of another nation, depends upon what our greatest jurists have been content to call 'the comity of nations.' Although the phrase has been often criticized, no satisfactory substitute has been suggested.
      'Comity,' in the legal sense, is neither a matter of absolute obligation on the one hand, nor of mere courtesy and good will upon the other. But it is the recognition which one nation allows within its territory to the legislative, executive, or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens or of other persons who are under the protection of its laws.

        Kwongyuen Hangkee Co. v. Stair Fireworks, 2001 SD 113, ¶ 8, 634 N.W.2d 95, 96 (quoting Hilton v. Guyot, 159 U.S. 113, 163-64, 16 S.Ct. 139, 143, 40 L.Ed. 95 (1895)).

      . Deann also argues in the alternative that if this Court were to conclude that the statutory elements prerequisite to recognition under SDCL 1-1-25(1) had been established by clear and convincing evidence, the tribal court orders would still not be entitled to comity under SDCL l-l-25(2)(b), because she alleges that the LBST refused to serve Jay with the circuit court’s temporary protection order. We need not address that argument under the circumstances of our holding, as it is not necessary given the unambiguous language of SDCL 1 — 1—25(2)(a).