author:
MEIERHENRY, Justice.
      ZINTER, Justice

text:
    2006 SD 68
    Angela WALKER, Plaintiff and Appellant, v. Jason WALKER, Defendant and Appellee.
    No. 23930.
    Supreme Court of South Dakota.
    Considered on Briefs May 23, 2006.
    Decided July 26, 2006.

      Rev. Caitlin F. Collier, Vermillion, South Dakota, Attorney for plaintiff and appellant.
    John R. Von Wald of Von Wald Law Offices, Selby, South Dakota, Attorney for defendant and appellee.
   MEIERHENRY, Justice.

[¶ 1.] After eleven years of marriage, Angela Walker (Angela) filed for divorce from her husband, Jason Walker (Jason). After a one-day trial, the trial court granted the parties a divorce based upon irreconcilable differences and ordered joint legal custody of the children, but granted primary physical custody to Jason. Angela appeals. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

[¶ 2.] Angela and Jason were married on May 19, 1994, in North Carolina. In March 1995, the couple returned to Jason’s hometown of Selby, South Dakota. They made their home on the farmstead owned by Jason’s parents and great uncle. The couple had a son in 1995 and a daughter in 1999. During the marriage, Jason worked as a truck driver, a farm worker, and a welder. Initially, Angela stayed home with the children and worked a few hours a month at a printer’s office. Later in the marriage, Angela worked at a nursing home.

[¶ 3.] The children enjoyed their life on the farm. They spent significant amounts of time with Jason’s mother and father, the children’s grandparents. They joined their father and grandfather on over-the-road trucking trips and on the tractor for farm chores. They also spent time with their grandmother playing games and swimming at a nearby pool. The children had several pets, including cats, a duck, cattle, and horses.

[¶ 4.] The parties had significant financial difficulties throughout their marriage. They used credit cards to pay for medical bills. Despite financial assistance from friends and family, the couple wrote multiple bad checks. Because Angela signed the checks, she received several criminal citations for insufficient funds.

[¶ 5.] As the relationship between Angela and Jason began to deteriorate, the couple’s arguments became more frequent and more confrontational. In early August of 2004, Jason began to suspect that Angela was having an affair. At Jason’s direction, Angela left the marital home for a period of time. She returned on August 16, 2004, to visit the children, and an argument ensued. According to Angela, Jason pushed her and locked her in the bathroom. After he let her out, he dumped out her purse. When Angela attempted to grab the purse, her fingers became entwined in the purse strings. During the tussle with the purse, one of Angela’s fingers was broken in two places. Angela went to the emergency room, where she was interviewed by Deputy Charles Davidson (Davidson). Davidson testified that Angela did not want to press charges against Jason. Angela told Davidson that her injury was the result of a fight over her purse and that there had been no other physical contact. She also stated that the children were fine with Jason.

[¶ 6.] After the incident, Angela told others that her injury was an accident. Angela, however, proceeded to file a temporary protection order petition, which she later dismissed. Then, on August 20, 2004, Angela filed for divorce “based on irreconcilable differences, or in the altera-tive, extreme mental cruelty.” The court granted Angela temporary custody of the children, and she moved to an apartment in Mobridge, where the children attended school. The children began counseling. After a few months of treatment, the children’s counselor recommended that the son see a male counselor. She also cautioned Angela against bringing an adult male companion into the children’s lives.

[¶ 7.] Angela was unable to find a suitable counselor for her son. She did not feel comfortable with the local male counselor, and she could not afford to take the boy to Aberdeen for counseling. Thus, he did not receive further counseling. Additionally, Angela introduced the children to her male companion, despite the counsel- or’s admonition. Even though the children were living primarily with Angela, they continued to spend time with Jason and his parents.

[¶ 8.] Upon Jason’s request, the court ordered a custody evaluation. The parties agreed that an evaluation would be conducted at Jason’s expense. After the evaluation was completed, Angela asked Jason to stipulate to its admissibility. Jason refused. Because Angela could not afford to pay the evaluator to appear as a witness, she moved the court to order the evaluation admissible or, in the alternative, to grant a continuance. The trial was continued “by agreement of the parties and approval of the court.”

[¶ 9.] Subsequently, a court trial was held. The court heard testimony from Angela, Jason, the children’s counselor, Angela’s male companion, Davidson, Jason’s parents, two of Angela’s friends, Jason’s aunt, and the children’s babysitter. Since the evaluator did not testify, the custody evaluation was not offered as evidence. At the close of the trial, Angela requested that the court find extreme cruelty as grounds for divorce. Jason contested the extreme cruelty claim, but indicated he would agree to Angela’s alternatively pleaded ground of irreconcilable differences. Angela declined to agree to irreconcilable differences. Considering all of the testimony, the trial court determined that Angela failed to prove extreme cruelty. The court asked the parties to submit arguments as to why he should not grant a divorce based on the alternative ground of irreconcilable differences. Ultimately, the court granted the divorce based on irreconcilable differences and awarded the parties joint legal custody of the children, but the court gave primary physical custody to Jason. Angela appeals the trial court’s decision and we consider the following issues:

ISSUES
1. Whether the trial court erred in granting the divorce based on irreconcilable differences.
2. Whether the trial court erred in awarding primary physical custody to Jason.
3. Whether the trial court erred by not admitting the custody evaluation into evidence.

DECISION

Grounds for Divorce

[¶ 10.] Angela contests the grounds upon which the trial court granted the divorce. She claims she should have been granted the divorce based on extreme cruelty. The trial court concluded that Angela failed to submit any credible evidence to establish extreme cruelty, but concluded “there [was] more than sufficient credible evidence to support irreconcilable differences as a ground for divorce.” Angela claims that the trial court ignored her evidence of domestic abuse.

[¶ 11.] We recently reiterated our standard of review in divorce cases in Midzak v. Midzak, wherein we stated:

The trial court’s findings of fact establishing grounds for divorce are not disturbed on appeal absent clear error. “Clear error is shown only when, after a review of all the evidence, ‘we are left with a definite and firm conviction that a mistake has been made.’ ” We give the trial court’s opportunity to judge the credibility of witnesses and to weigh their testimony due regard when reviewing the trial court’s findings of fact. We review the trial court’s application of law to fact under the de novo standard of review, with no deference to the circuit court’s decisions.

2005 SD 58, ¶ 14, 697 N.W.2d 733, 737-38 (citations omitted).

[¶ 12.] After a review of the record in this case, we cannot find that the trial court’s findings of fact were clearly erroneous. SDCL 25-4-4 defines “extreme cruelty” as “the infliction of grievous bodily injury or grievous mental suffering upon the other, by one party to the marriage.” Where there is conflicting evidence, we leave to the trial court the task of determining the credibility of the witnesses and the weight to give to their testimony. In this case, Angela testified that Jason often pinned her down or sat on her during arguments, but she could not point to any specific instance of such activity. At trial and on appeal Angela relies primarily on her broken finger as evidence of domestic abuse and grievous bodily injury. The evidence, however, also revealed that she admitted to others that Jason did not mean to break her finger and that the injury was unintentional. Therefore, the trial court’s findings of fact on the issue of extreme cruelty were not clearly erroneous.

[¶ 13.] Angela also argues that the trial court erred when it granted the divorce on the grounds of irreconcilable differences. Angela admits that she pleaded such grounds in the alternative, but she argues that she made clear to the court at trial that she was no longer asserting irreconcilable differences as grounds for the divorce. Nevertheless, Angela did not move to amend her pleadings at any time prior to, during, or after trial. Thus, the trial court determined that Angela consented to the ground of irreconcilable differences by initially pleading it as an alternative ground for the divorce.

[¶ 14.] A South Dakota statute precludes the divorce of parties on the grounds of irreconcilable differences without the parties’ consent. In relevant part, SDCL 25-4-17.2 provides:

The court may not render a judgment decreeing the legal separation or divorce of the parties on the grounds of irreconcilable differences without the consent of both parties unless one party has not made a general appearance.

We considered the consent requirement of SDCL 25-4-17.2 in Dussart v. Dussart, 1996 SD 41, 546 N.W.2d 109. In Dussart, the plaintiff filed a complaint for divorce based on irreconcilable differences. Id. ¶ 2, 546 N.W.2d at 110. She then served and filed an amended complaint asserting additional grounds based on fault. Id. The trial court granted a divorce based on irreconcilable differences. Id. On appeal, the plaintiff argued that she did not consent to irreconcilable differences because her amended complaint did not allege that ground. Id. ¶ 4, 546 N.W.2d at 110-11. Further, the plaintiff argued that evidence of fault was presented at trial “and thus was tried by implied consent of the parties.” Id.

[¶ 15.] We disagreed, however, and affirmed the trial court. Id. Citing SDCL 25-4-17.2, we acknowledged that “a divorce may not be granted on irreconcilable differences unless both parties consent.” Id. ¶ 5, 546 N.W.2d at 111. We determined, however, that “[n]othing in the record show[ed the plaintiff] legally discarded irreconcilable differences as an alternative basis for the divorce.” Id. The plaintiffs amended complaint was not properly before the court because she did not receive court approval to file the amended complaint, and the record was “replete with evidence of the substantial differences between the parties from which the trial court could conclude irreconcilable differences existed and were consented to by both parties as the basis of the divorce.” Id. Further, “at no time — not during trial, after trial, or even after filing of the judgment — did [the plaintiff] move to have the pleadings conform to the evidence on fault to support her contention the issue was tried by implied consent.” Id. ¶ 6, 546 N.W.2d at 111. The plaintiffs proposed finding on the issue was insufficient to “satisfy the requirement that a motion be made to the trial court to amend the pleadings.” Id.

[¶ 16.] This case presents an issue similar to the issue in Dussart. Here, Angela pleaded irreconcilable differences as an alternative ground for divorce. At trial, however, Angela refused to stipulate to irreconcilable differences. Rather, she steadfastly sought a ruling in her favor on extreme cruelty. Angela did not, however, procedurally withdraw her claim for irreconcilable differences. After trial, Jason submitted a letter which urged the trial court to rely on Dussart and grant the divorce based on the alternative ground of irreconcilable differences pleaded in Angela’s complaint. In its memorandum decision, the court did just as Jason proposed- — relied on Dussart and granted the divorce based on irreconcilable differences. Angela then moved for reconsideration of the grounds. In her brief and at the hearing on the matter, Angela merely argued that the evidence supported a finding of extreme cruelty.

[¶ 17.] Despite knowing that the trial court would not find extreme cruelty, Angela failed to suggest a remedy and failed to provide any argument as to why the Dussart case should not apply. Most importantly, she did not make an oral or written motion to amend her complaint or otherwise withdraw her alternative ground of irreconcilable differences. She simply continued to argue that the evidence established extreme cruelty. She provided no reason why the court could not proceed on the alternative ground as originally pleaded.

[¶ 18.] Unique to this case and different from Dussart is that Angela unequivocally refused to consent to the ground of irreconcilable differences at trial. Like the plaintiff in Dussart, however, Angela did not amend her complaint to remove the ground of irreconcilable differences. Since irreconcilable differences remained as an alternative ground in the pleading, Jason was justified in relying on that pleading. Angela’s change in strategy at trial without prior notice jeopardized Jason’s ability to counter with his own grounds for divorce if he so desired. For example, evidence in the record suggested that he may have been able to counterclaim based on grounds of adultery under SDCL 25-4-2. Since Angela did not “legally discard” irreconcilable differences as an alternative ground for divorce, the trial court did not err by granting the divorce based on irreconcilable differences. By pleading in the alternative, she impliedly consented to irreconcilable differences, thus meeting the requirements of the statute. Therefore, we find that the trial court did not err in granting the divorce based on irreconcilable differences.

Custody

[¶ 19.] Next, Angela argues that the trial court’s determination of custody “did not conform to the evidence presented at trial and was not supported by the law nor the facts.” When determining custody, “ ‘the court shall be guided by consideration of what appears to be for the best interests of the child in respect to the child’s temporal and mental and moral welfare.’ ” Ameson v. Ameson, 2003 SD 125, ¶ 13, 670 N.W.2d 904, 909 (citations omitted). In considering the best interests of the child, “courts should be cognizant of several ‘guiding principles.’ These include parental fitness, stability, primary caretaker, child’s preference, harmful parental misconduct, and separation of siblings.” Id. (citations omitted). A court need not “make a specific finding in each category; indeed, certain elements may not apply in some cases, and, in others, there may be additional relevant considerations. In the end, our brightest beacon remains the best interests of the child.” Zepeda v. Zepeda, 2001 SD 101, ¶ 13, 632 N.W.2d 48, 53 (citation omitted). When considering a custody determination on appeal,

we review a trial judge’s decision for error in incorrectly choosing, interpreting, or applying the law; for clear mistakes in fact findings; and for undue emphasis on matters not materially related to the child’s welfare. We expect that any decision will be balanced and methodical.

Ameson, 2003 SD 125, ¶ 13, 670 N.W.2d at 909.

[¶ 20.] The trial court made numerous detailed findings concerning the best interests of the children. Angela specifically takes issue with the Court’s finding that “Jason has always been extremely involved with the care and nurturing of [the children] as they were growing up” and the statement in the court’s memorandum decision that “over the life of these two children, Jason and Angela have equally shared the role of caretaker.... ” Angela argues that as a stay-at-home mom, she had significantly more contact with the children. She points out that Jason’s job as an over-the-road trucker caused him to be gone frequently. She also points out that Jason has missed the children’s doctor appointments and school conferences.

[¶ 21.] Although Angela’s argument has merit, there also is considerable evidence in the record which supports the trial court’s decision. The trial court recognized that “both Jason and Angela are suitable to have custody of these children.” The court granted the parties joint legal custody and noted that joint physical custody would also be appropriate “except that the parties have had such a contentious separation.” Therefore, the court granted primary physical custody to Jason.

[¶ 22.] Based on the evidence, we cannot say that the trial court’s findings of facts were clearly erroneous nor that its custody determination was an abuse of discretion. The trial court weighed the relative custodial advantages of each parent. The evidence showed that even though Angela was at home most of the time, the children often joined their father for farm work and while he was trucking. Both children also enjoyed spending time with their paternal grandparents. The children have a close relationship with both their father and their paternal grandparents. The couple’s son, who suffered learning disabilities, performed better in the Selby school district with father than in the Mobridge school district with mother. Jason showed no favoritism between the two children; Angela often favored her daughter over her son. Angela unadvisedly introduced the children to her male companion; Jason chose not to date. Finally, Angela stated that she did not want to share custody with Jason and that he should not have any input concerning the children. Jason, however, thought joint custody would benefit the children because they need both parents.

[¶ 23.] The facts support the trial court’s conclusion that it is in the children’s best interests to award physical custody to Jason. The trial court carefully and methodically considered all the evidence, and its findings are not clearly erroneous. The trial court did not abuse its discretion.

Admissibility of Custody Evaluation

[¶ 24.] Finally, we consider Angela’s argument that the trial court erred when it failed to admit the custody evaluation. Angela argues that her financial condition prohibited paying the evaluator to testify at the divorce trial. She asserts that in the context of family law, an exception should be made for custody evaluations in order to help the trial court make the best decision for the child.

[¶ 25.] We normally review evi-dentiary rulings under the abuse of discretion standard. Steffen v. Schwan’s Sales Enters., Inc., 2006 SD 41, ¶ 19, 713 N.W.2d 614, 621. In this case, however, there is no evidentiary ruling to review. While Angela filed a pretrial motion for admission of the custody evaluation, the record contains no ruling on that motion. Further, the record contains no transcript concerning that motion. The record merely contains a notice of a change of the trial date. The transcript of the court trial indicates that Angela never offered the evaluation and the trial court never considered its admissibility.

[¶ 26.] Consequently, the record contains no grant or denial of Angela’s motion. Further, Angela failed to present the custody evaluation at trial in order to preserve the issue for appeal. See Joseph v. Kerkvliet, 2002 SD 39, ¶ 7, 642 N.W.2d 533, 535. As we have stated,

the proponent of the evidence must attempt to present the excluded evidence at trial, and if an objection to the proffered evidence is sustained, the proponent must then make an offer of proof. Such a requirement is strictly applied because a trial judge should be given an opportunity to reconsider [the] prior ruling against the backdrop of the evidence adduced at trial.

Id. (citation omitted). Thus, where a party does not attempt to introduce evidence at trial or make an offer of proof, the issue has not been preserved for appeal. Id. Consequently, we decline to consider Angela’s arguments concerning the custody evaluation.

[¶ 27.] Affirmed.

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

[¶ 29.] ZINTER, Justice, concurs specially.

ZINTER, Justice

(concurring specially).

[¶ 30.] I concur and write to express concern that we appear to be slowly progressing towards failing to enforce that part of SDCL 25-4-17.2 that prohibits a divorce on the ground of irreconcilable differences “without consent of both parties.” Therefore, I disagree with the Court’s broad statement that “[b]y pleading in the alternative, [extreme cruelty and irreconcilable differences, Angela] impliedly consented to irreconcilable differences, thus meeting the requirements of the statute.” See supra ¶ 17. I would not, in future cases, apply such a rule when there is also evidence of conduct reflecting a withdrawal of implied consent. However, in this case, the evidence of consent is strong. Angela had knowledge of the implied consent case law, and she had an opportunity to comply with it or object to its application. But, she did neither.

[¶ 31.] The record reflects that following the trial, the court orally notified the parties that it would not grant a divorce on the basis of extreme cruelty, but it would consider irreconcilable differences. In response, Angela did not withdraw her request for a divorce on that ground. She merely indicated that she would not “like a divorce on those grounds.” (Emphasis added.) The trial court advised the parties to brief the question of how the court should proceed in light of the fact that “we don’t have a divorce.” The parties briefed the issue. Jason relied on the implied consent language of Dussart v. Dussart, 1996 SD 41, 546 N.W.2d 109, but Angela did not address the implied consent issue. Ultimately, the trial court issued a memorandum decision indicating it would grant a divorce on irreconcilable differences based upon the implied consent reasoning of Dussart.

[¶ 32.] Thereafter, Angela failed to do anything to withdraw her consent or even object to the trial court’s proposed disposition based upon implied consent despite language in Dussart recognizing that post-trial conduct may be sufficient. Instead, Angela filed a motion to reconsider simply rearguing her position that she was entitled to a divorce on the ground of extreme cruelty. The trial court granted Angela’s request for reconsideration. And again, at this hearing, Angela failed to do anything to withdraw her consent or object to the trial court’s proposed disposition based upon Dussart. Rather, Angela simply argued facts supporting extreme cruelty without addressing implied consent.

[¶ 33.] Finally, at the court’s direction, Jason proposed findings of fact and conclusions of law. In Finding of Fact # 6, which was ultimately adopted by the court, Jason proposed that as a result of Angela’s failure to amend her complaint, she impliedly consented to the ground of irreconcilable differences. In responding to this proposed finding, Angela, for the third time, did not object to the finding of implied consent. Rather, Angela objected to the finding on the sole ground that she was entitled to a divorce on the basis of extreme cruelty.

[¶ 34.] Thus, it is quite clear that Angela was aware of the need to do something to withdraw her request for a divorce on the ground of irreconcilable differences, she had the opportunity to do so, but failed to do anything. Moreover, although she had the opportunity, she failed to even object to the court’s proposed determination that she had impliedly consented. For these reasons, I concur.

      . Angela presents two additional issues for our consideration: (1) whether the trial court failed to consider evidence of domestic violence when determining the grounds for divorce, and (2) whether the trial court violated the equal protection rights of Angela and the children by failing to admit the custody evaluation. We consider these issues within the other issues presented by Angela.

      . The relevant portion of the transcript provides:
      The Court: After considering all of the evidence that’s been presented, weighing the credibility of the witnesses, I find that the plaintiff has failed to establish extreme cruelty. She is not entitled to a divorce on those grounds. If she would like one on irreconcilable differences, there are grounds for that. Would she like a divorce on those grounds?
      Ms. Collier (Angela’s Attorney): No.
      The Court: Okay. Then the request for a divorce will be denied. We will enter Findings of Fact on that. I will prepare them, and we will proceed however the parties wish to proceed after that. How would you like to proceed, Ms. Collier?
      Ms. Collier: Well, I guess, Your Honor, if there is no divorce, I’m not sure what you do next.
      The trial court then proceeded to determine custody, after which it stated:
      I will issue a written decision which will include the decision on the extreme cruelty matter, and then appropriate orders will be prepared, and we will proceed accordingly, and counsel can do some research on how you want to proceed on the fact that we don’t have a divorce.

      . Earlier, she indicated she was unwilling to "stipulate to irreconcilable differences.” In my view, had Angela maintained this position in the post-trial proceedings, she would not have impliedly consented to a divorce on the grounds of irreconcilable differences. However, as is explained hereafter, Angela’s post-trial conduct precludes her from relying on the consent requirement on appeal.

      . Angela objected to this finding by merely reincorporating her previously filed motion and brief to reconsider, which only argued a factual entitlement to a divorce on the ground of extreme cruelty.


source: Caselaw Access Project

author: KONENKAMP, Justice.

license: Public Domain

text:
    2006 SD 69
    William G. MYERS, Trustee William G. Myers, Living Trust, Dated, Dated 11-25-94, Plaintiff and Appellee, v. Michael R. EICH and Sheri L. Eich, Defendants and Appellants.
    No. 23837.
    Supreme Court of South Dakota.
    Argued on May 24, 2006.
    Decided July 26, 2006.

      Roger W. Hunt of Hunt Law Office, Brandon, South Dakota, Attorney for plaintiff and appellee.
    Thomas K. Wilka of Hagen, Wilka & Archer, P.C., Sioux Falls, South Dakota, Attorneys for defendants and appellants.
   KONENKAMP, Justice.

[¶ 1.] In 1999, William Myers advanced Michael and Sheri Eich $125,000 to redeem their property from foreclosure. The transaction between the parties included a warranty deed and contemporaneous contract for deed. Over the next several years, Myers continued to advance the Eichs money. With one advance, Myers amended the 1999 contract for deed; with another, he had the Eichs execute new warranty deeds. The Eichs, however, could not get ahead and became delinquent on their obligation. Ultimately, Myers informed them that he was going to sell the property. He then brought a forcible entry and detainer action, alleging that he was the fee simple owner of the property and the Eichs were leasing the premises from him. The Eichs, however, asserted that an equitable mortgage existed and Myers was required to proceed by a foreclosure action. The circuit court agreed with Myers and the Eichs appeal. Because the initial transaction bears the central earmarks of an equitable mortgage and should have been so construed, and nothing in the subsequent actions changed the character of the initial transaction, the circuit court abused its discretion in concluding otherwise. We reverse and remand.

Background

[¶2.] Since 1980, Michael and Sheri Eich lived on sixty-four acres they owned in Moody County, South Dakota (the home property). In 1995, the Eichs purchased land next to the home property to operate a truck repair business (the shop property). After the Eichs purchased the shop property, they gave First Bank of South Dakota a mortgage in 1996 using both the shop and home property as collateral.

[¶ 3.] Three years later, the Eichs became delinquent on this mortgage loan and First Bank foreclosed on both properties. During the Eichs’ redemption period a broker contacted William Myers believing that he might assist the Eichs. According to Myers, the broker told him that the Eichs needed $200,000 to redeem their property but were only able to finance $75,000 through First National Bank of Brookings. Myers agreed to provide the additional $125,000 through his trust, William G. Myers Living Trust (WGMLT).

[¶ 4.] The arrangement between Myers and the Eichs was summarized by Myers in a letter to the Eichs. The letter was printed on Myers Real Estate letterhead and was entitled “Instructions to Borrowers.” In the body of the letter, Myers noted that he was a licensed real estate broker. He then described their transaction:

WGMLT is lending you $125,000 to acquire your property from U.S. Bank. In return, you are to repay to WGMLT $135,000.00 plus interest of 14% per an-num in monthly payments of $1,800.04 per month starting on October 1, 1999 for 180 payments.... To provide security to WGMLT for this transaction, WGMLT is purchasing your property above described as Parcel l[the home place] for $1.00 and the above described Parcel 2 [the shop property] from U.S. Bank for $125,000 plus other funds you are furnishing and then selling these two parcels to you for $135,000 on a contract-for-deed (CFD) with 14% interest.

In accord with the letter, Myers prepared and the Eichs signed a warranty deed dated September 1, 1999, purporting to convey the home and shop properties. Contemporaneously, Myers executed a contract for deed, whereby he agreed to re-convey both properties to the Eichs upon their payment of $135,000 in monthly installments of $1,800.04 from October 1, 1999, through September 1, 2014, at a rate of fourteen percent interest per annum. The $135,000 obligation represented $125,000, plus a $10,000 fee Myers charged for the advance.

[¶ 5.] On September 2, 1999, Myers filed the warranty deed with the Moody County Register of Deeds. In the following month, Myers responded to a questionnaire from the Moody County Office of Equalization, regarding an annual assessment to sales ratio. In this questionnaire, he characterized the September 1, 1999 transaction:

This property was in foreclosure and the purchase by [WGMLT] was followed by a sale to [the Eichs] via contract for deed not yet filed. This purchase and resale was simply a security vehicle to secure to WGMLT the money loaned to Eich to redeem the property from foreclosure. Therefore, none of the information requested on the form required by SDCL 10-11-54 thru 60 would be reflective of a true sale or sales price.

The reason the contract for deed was not yet filed, according to Myers, was because the Eichs “had other debts they wanted to clear up.” The Eichs started making their monthly payments on September 29, 1999, as required by the contract for deed. Myers documented the Eichs’ payments in his computer-generated amortization schedule. He explained that the computer program recorded the amount of the Eichs’ payments and date received. The program then calculated the interest paid and principal due after each payment in relation to the total obligation and interest rate charged.

[¶ 6.] The amortization schedule reflected that the Eichs continued to make timely payments from September 1999 until April 2001. In 2001, however, the Eichs began experiencing financial difficulties. They had defaulted on a $25,000 mortgage loan that had been secured through the Farmers Home Administration in 1980 for the home property. Myers agreed to assist them and either paid or assumed the remaining balance, $40,098.74. Thereafter, Myers created an amended contract for deed. In the amended contract, Myers noted that “the Eichs now wish to borrow Forty Thousand Ninety-Eight and 74/100 Dollars ($40,098.74) to pay off a Real Estate Mortgage dated November 17, 1980 ... given by [the Eichs], WROS, to United States of America, acting through the Farmers Home Administration ...” The Eichs signed the amended contract for deed on April 4, 2001, and, on April 24, 2001, Myers recorded this contract along with the original contract for deed dated September 1, 1999. Both the 1999 contract for deed and the 2001 amended contract for deed related to the same tracts, the home and shop properties.

[¶ 7.] With this additional obligation, the new contract for deed increased the Eichs’ monthly payments to $2,353.56, with the same fourteen percent per annum interest rate. Beginning in May 2001, the Eichs paid the new monthly amount. However, in August 2001, the Eichs were again experiencing financial difficulties as a result of an IRS tax lien. Myers agreed to loan them $21,000. In return, Myers charged a $1,000 fee and took a lien on the trucks the Eichs owned. This loan was separate from the arrangement relating to the home and shop properties and was documented by Myers through a separate amortization schedule. Also, the circumstances surrounding this loan are not part of this appeal. However, the fact that Myers loaned the Eichs additional money is relevant in understanding the nature of the parties’ relationship.

[¶ 8.] Returning to the Eichs’ obligation under the amended contract for deed, the Eichs made payments from the latter part of 2001 until December 2002. During all of 2002, however, the amount and timeliness of the payments were inconsistent and irregular. The Eichs would later recount that Myers accepted whatever amount they could pay, and in many instances they paid him by endorsing over company checks. However, the amortization schedules Myers kept show that although multiple payments were received in January 2002, after that date no payments were received until June 2002. From June 2002 until December 2002, the Eichs made payments, but the monthly amounts varied.

[¶ 9.] On January 15, 2003, the amortization schedule shows that Myers advanced a “loan” of $64,800. According to the Eichs, on January 4, 2003, the First National Bank of Brookings sent them notice that it was going to foreclose on a $75,000 mortgage loan they had secured on their property in August 1999. With foreclosure imminent, Myers agreed to have the remaining obligation assigned to WGMLT. This arrangement, unlike the previous instance when Myers advanced the Eichs additional money, did not result in an amended contract for deed. Instead, Myers presented and the Eichs signed two new warranty deeds. The new deeds conveyed the same property as the 1999 deed purported to convey and was filed with the Moody County Register of Deeds on January 15, 2003.

[¶ 10.] The Eichs’ financial difficulties persisted. Myers had not received a payment from them since December 2002. On March 11, 2003, Myers sent the Eichs a letter, stating,

I have been studying the two loans you have with us and trying to come up with some way that you can recover your property and that I can recover my money. So far I don’t have anything to offer except as follows. On the first loan we made to you, after we had paid off the bank twice, paid off FmHA, paid your back real estate taxes and insurance, as of 3/15/03 you will owe us $264,625.89.
I don’t know how to get this from you other than to sell the farm and the shop, and I don’t know if the two of them will bring that amount. One other thought I have had is that I could rent the farm and shop to you for a year at $3,500 per month and see if the picture looks better for you at the end of one year. If we do that I will have to have the rent each month on time....
I need to know your thoughts on this because, as I am sure you know, having $291,418.04 out there with no payments coming in has not put me in a good situation.

The Eichs did not contact Myers in response to this letter, but nonetheless made a payment on April 2, 2003, of $3,500.

[¶ 11.] They continued to make monthly payments through May 2004. However, the amount they paid each month was inconsistent and only equaled $3,500 one other time. In December 2003, Myers mailed the Eichs a copy of the amortization schedule along with the following note:

We had agreed that I would get $3,500 per month on the acreage, the home & the shop. So far this year I have gotten $17,968.30 or an ave[.] of $1,497.36 per month — vs the $3,500.00 we are suppose to get. So far this year it has cost us $15,542.16 in taxes & insurance to own ■this property. That is about $1,295.18 per month. This does not include the $64,800.00 we paid your bank to save the property nor does it include any interest on the money we have in these properties. Can you see why I think there is something wrong with this picture & keep after you to sell trucks that are not bringing in any money & to get us PAID?

The schedule accurately reflects the advances Myers provided the Eichs, including certain instances when he paid the Eichs’ real estate taxes and property insurance. There are other advances on the schedule that Myers later described as expenses he incurred and not obligations of the Eichs. However, the amortization schedule does not distinguish between these expenses and the Eichs’ existing obligation, nor does the record provide clarification.

[¶ 12.] Nonetheless, after receiving this correspondence, the Eichs paid Myers in January, February, and March 2004. No further payments were made. As a result, Myers sent another letter to the Eichs on May 5, 2004. He reminded them that he “was to get a monthly rent of $3,500 and [the Eichs] were to have one year in which to arrange purchase of the properties.” Because insufficient payments had been made, he informed them that he had “no choice but to put the properties on the market” and he hoped that they could buy them.

[¶ 13.] According to the Eichs, they tried everything to obtain financing, but on August 11, 2004, Myers sent them a notice to quit, demanding that they surrender both the home and shop properties. The Eichs hired an attorney, who advised them that the solution was to pay Myers for the properties. Consequently, two purchase agreements were prepared in September 2004. Ultimately, the Eichs could not secure funding and the transactions were never completed. However, Mike Eich’s sister paid Myers $202,000 on October 1, 2004, for the home property. That left the shop property still in question. Myers brought a forcible entry and detainer action. He sought to evict the Eichs, claiming that he owned the shop property and the Eichs were merely leasing it from him. The Eichs counterclaimed for a declaration that they owned the shop property because the arrangement was actually an equitable mortgage.

[¶ 14.] A trial to the court was held in June 2005. Myers contended that he was the fee simple owner of the shop property as evidenced by the 1999 and 2003 warranty deeds. He further asserted that because the Eichs did not dispute his ownership when they drafted the purchase agreements in September 2004, such failure negated any claim they could now make. Lastly, he argued that by paying $3,500 in April 2003, the Eichs entered into a one-year lease agreement with him for the shop property and were in default of that lease.

[¶ 15.] The Eichs argued that the circumstances surrounding their relationship support a conclusion that an equitable mortgage existed, similar to the situation in Adrian v. McKinnie, 2002 SD 10, 639 N.W.2d 529. Although the Eichs signed a warranty deed purporting to convey title to Myers in 1999, they insisted that the purpose was only to secure the funds Myers loaned to them. And the 2003 warranty deeds were executed to provide Myers security for additional loans. Moreover, the Eichs said that their $3,500 payments did not constitute an agreement to enter into a lease because they thought that this was the amount Myers wanted to receive each month. Because they never intended to convey to Myers absolute title of their properties, and the documents surrounding the transactions evince a security arrangement, the Eichs sought a finding that an equitable mortgage existed.

[¶ 16.] The circuit court entered judgment against the Eichs, ruling that certain elements established the absence of an equitable mortgage. First, when the Eichs executed the 2003 warranty deeds, they did so because they knew “of their delinquency and their desire not to have [Myers] foreclose on the contract for deed.” Second, the March 11, 2003 letter from Myers, “clearly sets forth the lease proposal,” and by paying $3,500 it was clear that the Eichs understood they were in a lease arrangement. Third, the Eichs were aware that Myers sold the home property to Mike Eich’s sister and “no action was taken by them at the time to claim that [Myers] did not have title since all he had was an equitable mortgage[.]” Fourth and last, the Eichs initiated purchase agreements through counsel and “if someone else did not own the property a purchase agreement would not be necessary.” Based on these considerations the court distinguished Adrian and entered judgment in favor of Myers for $16,306.28 in back rent on the one-year lease.

[¶ 17.] The Eichs appeal, asserting that (1) “the documents comprising the 1999 transaction constitute an equitable mortgage,” and (2) if the documents did not create an equitable mortgage, “was [Myers] nevertheless required to proceed by a contract for deed foreclosure action?”

Analysis and Decision

[¶ 18.] “Because the recharac-terization of a document is an equitable remedy, a court has discretion to grant or deny it. Englehart v. Larson, 1997 SD 84, ¶ 12, 566 N.W.2d 152, 155. Our standard of review, therefore, is abuse of discretion.” Adrian, 2002 SD 10, ¶ 9, 639 N.W.2d at 533. Nonetheless, “[i]f facts plainly exist to warrant equitable relief and no facts exist to disentitle a party to such relief, then a court is not free simply to ignore the remedy in the name of discretion. Consistency and fairness require courts to decide similar cases similarly.” Id. We review the circuit court’s findings of fact under the clearly erroneous standard of review. Id. ¶ 8 n. 1. Conclusions of law are reviewed de novo. Id.

[¶ 19.] The Eichs contend that the circuit court’s findings of fact are clearly erroneous because “the written memorials that surrounded the transaction illustrate the parties’ intent to enter into a mortgage agreement and not a sale of property.” Specifically, they maintain that 1999 letter from Myers, entitled “Instructions to Borrowers,” evinced an intent to create a security arrangement. The letter stated that WGMLT was “lending” the Eichs $125,000, and explained that the shop and home properties were “purchased” by WGMLT “to provide security to WGMLT for the transaction[.]”

[¶ 20.] Myers, however, insists that the Eichs had no intent “to enter into a security device of any design.” He claims that “[t]hey simply hoped to stay in business long enough so they might someday again own the shop property by buying it from” him. He places particular significance on the fact that the Eichs did not dispute his ownership when they had an attorney draft purchase agreements in September 2004, or when he sold the home property to Mike Eich’s sister for $202,000. With this background, Myers argues that the Eichs are now precluded from asserting that an equitable mortgage exists.

[¶ 21.] “Equity requires that the transaction be treated according to its substance and effect, not its form.” Star Enterprise v. Thomas, 783 F.Supp. 1564, 1568 (D.R.I.1992); see also Brenneman Mech. & Elec., Inc. v. First Nat’l Bank of Logansport, 495 N.E.2d 233, 239 (IncLCt. App.1986); Humble Oil & Refining Co. v. Doerr, 123 N.J.Super. 530, 303 A.2d 898, 905-06 (1973). A purported absolute conveyance may be recharacterized as- a mortgage, depending on the surrounding circumstances and the parties’ intent. Adrian, 2002 SD 10, ¶ 11, 639 N.W.2d at 533; Abberton v. Stephens, 747 S.W.2d 334, 336 (Mo.Ct.App.1988); Brenneman Mech. & Elec., Inc., 495 N.E.2d at 239. One who asserts that an absolute deed is in fact an equitable mortgage must establish by clear and convincing evidence that such deed was intended as security for a debt. Adrian, 2002 SD 10, ¶ 11, 639 N.W.2d at 533 (citing Commercial & Sav. Bank v. Cassem, 33 S.D. 294, 145 N.W. 551, 552 (1914)). Although “[o]ne of the essential elements of a mortgage is debt to be secured,” whether a document was intended as security for a debt depends on the intent of the parties at the inception of the relationship. Abberton, 747 S.W.2d at 336 (examine the parties’ intent when conveyance was executed); American Nat’l Bank v. Groft, 56 S.D. 460, 229 N.W. 376, 379 (1930) (“the broad rule is that whether such transaction is a sale upon a condition or a mortgage depends upon the actual intention of the parties at the time”); 59 CJS Mortgages § 36.

[¶ 22.] In this case, the circuit court found that no equitable mortgage existed, not because the Eichs failed to prove by clear and convincing evidence that the 1999 transaction was intended as a security agreement, but because of the Eichs’ conduct during and after 2003. In the circuit court’s view, the Eichs knew they were in default under the contract for deed and instead of insisting on proceeding through foreclosure they executed the January 2003 warranty deed. Further, the court reasoned that by paying $3,500 in response to the March 11, 2003 letter from Myers, the Eichs accepted the terms of a one-year lease agreement. Finally, the court found determinative the fact that the Eichs failed to assert an “equitable mortgage” when Myers sold the home property to Mike Eich’s sister, or when the purchase agreements were prepared in 2004.

[¶ 23.] By preparing purchase agreements in response to the threat of sale from Myers in 2004, the Eichs did not necessarily jeopardize their right to seek equitable relief. The same is also true with respect to the Eichs’ failure to contest the transfer by Myers of the home property to Mike Eich’s sister for $202,000. Just as we declined in Adrian to read McKin-nie’s complaint hypertechnically, we cannot interpret the Eichs’ conduct in desperation to mean that as a matter of law any claims for equitable relief were forsaken. See 2002 SD 10, ¶ 16, 639 N.W.2d at 535.

[¶24.] While the parties’ conduct and relations after 1999 may be secondary considerations, it was their intent at the inception of their relationship that must be scrutinized to determine whether an equitable mortgage was created. Abberton, 747 S.W.2d at 336; American Nat’l Bank, 56 S.D. 460, 229 N.W. at 379 (“the broad rule is, that whether such' transaction is a sale upon a condition or a mortgage depends on the actual intention at the time”); Pittwood v. Spokane Savings & Loan Soc., 141 Wash. 229, 251 P. 283, 285 (1926) (“character of such transactions ... is fixed at the time of their inception”); 59 CJS Mortgages § 36.

[¶ 25.] To ascertain the parties’ intent at the inception of a transaction, we identify certain elements that, if present, favor a finding that a conveyance, absolute on its face, constitutes an equitable mortgage:

(1) pre-existing debt not extinguished with conveyance;
(2) conveyance made with agreement to re-convey;
(3) property value considerably more than the debt;
(4) property in original transaction not appraised and no discussion of its value in relation to sale price; and
(5) dealings between the parties akin to that of creditor-debtor.

See Stava v. Stava, 222 Neb. 343, 383 N.W.2d 765, 766 (1986) (if debtor and creditor relations continue after conveyance then the transaction is a mortgage); American Nat'l Bank, 56 S.D. 460, 229 N.W. at 379 (strong proof that a transaction was “intended by way of sale, rather than by way of mortgage, is that a preexisting debt was regarded and treated by the parties as extinguished or discharged by the conveyance”); Commercial & Sav. Bank, 33 S.D. 294, 145 N.W. at 553 (“whether a deed, absolute in form, is in fact a mortgage, the question whether the price is adequate is entitled to great weight”); Wilson v. McWilliams, 16 S.D. 96, 91 N.W. 453, 456 (1902); see also Adrian, 2002 SD 10, ¶ 11, 639 N.W.2d at 533; F. Gregorie & Son v. Hamlin, 273 S.C. 412, 257 S.E.2d 699, 702-07 (S.C.1979); 59 CJS Mortgages §§ 36-48.

[¶ 26.] Based on the circumstances surrounding the original transaction and the elements tending to prove an equitable mortgage set forth above, the conveyance of the shop and home properties were in fact security for the $125,000 advanced by Myers. Their relationship did not begin because the Eichs were attempting to sell their property, but because they needed money to redeem their property. Myers, a licensed real estate broker, provided them with the necessary money and then dictated the terms of their arrangement. The Eichs agreed to his conditions. On September 1, 1999, they signed both a warranty deed and a contract for deed prepared by Myers; We recognized in Adrian,

[w]here there is a deed, and contract to re-convey, and oral evidence has been introduced tending to show that the transaction was one of security, and leaving upon the mind a well-founded doubt as to the nature of the transaction, then courts of equity incline to construe the transaction as a mortgage.

2002 SD 10, ¶ 15, 639 N.W.2d at 535 (alteration in original) (quoting Wilson, 16 S.D. 96, 91 N.W. at 456 (citation omitted)); Toulouse v. Chilili Co-op Ass’n, 108 N.M. 220, 770 P.2d 542 (N.M.Ct.App.1989) (“[o]ne test which may be applied in determining the nature of the transaction is whether there exists mutuality and reciprocity of rights between the parties”); F. Gregorie & Son, 257 S.E.2d at 703 (essentially “the mere fact that a contract to reconvey was executed simultaneously with the deed creates in legal effect a mortgage”).

[¶ 27.] The fact that the conveyance and contract for deed were executed on the same day creates a strong doubt on whether this transaction was intended to be a sale. The circumstances surrounding this case present a multitude of additional factors tending to prove an equitable mortgage. First, there is no evidence that Myers ever planned to be the owner of the transferred property after he advanced the $125,000. In fact, the Eichs at all -times retained possession of the premises and continued to be the sole operators of the truck repair business on the shop property. Steckelberg v. Randolph, 404 N.W.2d 144, 149 (Iowa 1987) (retaining possession of transferred property is “inconsistent with theory of absolute conveyance”). Second, before the transaction, no discussions were had with respect to the value-of the property in relation to the consideration provided and Myers did not have the property appraised. Instead, Myers advanced the exact amount the Eichs needed to redeem their property from First Bank of South Dakota and then charged a $10,000 fee for the transaction. See F. Gregorie & Son, 257 S.E.2d at 703-04 (citing 59 CJS Mortgages §§ 40^11). Third, the home and shop properties were valued at approximately $200,000. It defies logic to conclude that the Eichs sold both properties for $125,000, and then also agreed to pay an additional $10,000 as a fee. Pitt-wood, 251 P. at 286 (“where the disparity between the amount of the indebtedness and the value of the property is so great as to necessarily lead to the conclusion that the deed was intended as security, the courts will, without hesitation, so declare”).

[¶ 28.] Further evidence that a sale was not intended is the declaration in the letter from Myers to the Eichs summarizing their arrangement. He specifically stated that the conveyance was intended to provide security for the transaction, and he did not suggest that the $125,000 was consideration for a purported sale. Star Enterprise, 783 F.Supp. at 1567 (“[a]n equitable mortgage exists where there is a manifestation that real property serve as security for the payment of a debt or obligation”); Adrian, 2002 SD 10, ¶11, 639 N.W.2d at 533 (“[o]ne of the essential elements of a mortgage is a debt to be secured”) (quoting American Nat’l Bank, 56 S.D. 460, 229 N.W. at 379); 59 CJS Mortgages § 41. Another strong element present in this case is that the debt was created as a result of the transaction and continued to remain after the transaction. Adrian, 2002 SD 10, ¶ 11, 639 N.W.2d at 533 (citing American Nat’l Bank, 56 SD 460, 229 N.W. at 379 (citing 41 CJ 287; Jones on Mortgages (8thed) §§ 314, 316, 318)); Steckelberg, 404 N.W.2d at 148-49; F. Gregorie & Son, 257 S.E.2d at 702-03; 59 CJS Mortgages § 40. Finally, when a debtor and creditor relationship continues to exist after the transaction, this tends to indicate that the conveyance was intended to be security, not a sale. Stava, 383 N.W.2d at 766; Pitt-wood, 251 P. at 285. Here, the debtor and creditor relationship continued well after the conveyance. The Eichs’ obligation began at $135,000, but as the amortization schedule reflects, Myers advanced them $40,098.74 in 2001 and $64,800 in 2003. After each loan, Myers recorded the transactions in a computerized amortization schedule, which then added the amount to their existing obligation.

[¶ 29.] Considering all the circumstances, there was strong evidence that the absolute conveyance in 1999 was intended as a security for debt, thereby creating an equitable mortgage. However, there were subsequent transactions, two warranty deeds in 2003 and a purported lease agreement, which attempted to alter the nature of the 1999 transaction. According to Myers, the 2003 warranty deeds were executed by the Eichs “because they were fully aware they were persistently delinquent in payments ... under the 1999 contract for deed and they wanted to avoid another foreclosure and the involvement of attorneys.” The Eichs, however, maintain that the new deeds were executed only to provide security for the new loans and that they never intended to convey their property to Myers or become tenants under a lease agreement.

[¶ 30.] What, then, is the significance of the 2003 warranty deeds and purported lease agreement, if the transaction in 1999 amounted to an equitable mortgage? It is well settled that “once a mortgage always a mortgage.” F. Gregorie & Son, 257 S.E.2d at 708; Humble Oil & Refining Co., 303 A.2d at 905-06; Borgerding Inv. Co. v. Larson, 284 Minn. 371, 170 N.W.2d 322, 325 (1969); Hudkins v. Crim, 72 W.Va. 418, 78 S.E. 1043, 1046 (1913); Tant v. Guess, 37 S.C. 489, 16 S.E. 472, 477 (1892); 59A CJS Mortgages § 1000; see also Meyerson v. Werner, 683 F.2d 723, 729 (2dCir.l982) (Pratt, J., concurring in part and dissenting in part). This rule is not flexible. It has been “firmly established from an early day that when the character of a mortgage has attached at the commencement of the transaction, so that the instrument, whatever be its form, is regarded in equity as a mortgage, that character of mortgage must and will always continue.” Humble Oil & Refining Co., 303 A.2d at 905 (citation omitted); see also Borgerding Inv. Co., 170 N.W.2d at 325.

[¶ 31.] When an equitable mortgage exists, “nothing short of the actual payment of the debt, or an express release will operate as a discharge of the mortgage.” Tant, 16 S.E. at 477 (citation omitted); see also 59A CJS Mortgages § 1000. This right cannot be restrained or barred except by methods prescribed in law. A mortgagor’s right to redeem is inseparable to a mortgage relationship. A release “will not be inferred from equivocal circumstances and loose expressions.” Jolivet v. Chaves, 125 La. 923, 52 So. 99, 103 (1910) (citations omitted). The subsequent transactions, therefore, must be closely scrutinized. See American Nat’l Bank, 56 S.D. 460, 229 N.W. at 379 (citing Wilson, 16 S.D. 96, 91 N.W. 453); Jolivet, 52 So. at 103; Tant, 16 S.E. at 476-77.

[¶ 32.] The force of the doctrine of equitable mortgage cannot be avoided in this case merely because a lease agreement existed or the 2003 warranty deeds were executed by the Eichs. Borgerding Investment Co., 170 N.W.2d at 327 (one “cannot by changing the form of the transaction cause a forfeiture of the [party’s] right of redemption”); Tant, 16 S.E. at 476 (“[t]he relation of a mortgagor and mortgagee continued to exist notwithstanding the various changes in the legal title”); see also Meyerson, 683 F.2d at 729 (Pratt, J., concurring in part and dissenting in part) (“New York has long prevented parties to a real estate transaction from avoiding the protections due a mortgagor by disguising the nature of the transaction”). Instead, Myers had the burden of establishing that the Eichs entered into the subsequent transactions with knowledge that they released their right of redemption and that they received fair and adequate consideration for that release. See F. Gregorie & Son, 257 S.E.2d at 708; Hudkins, 78 S.E. at 1047; Jolivet, 52 So. at 103.

[¶ 33.] The record in this case does not show that Myers obtained a release from the Eichs or that the Eichs knew that by conveying their property to him in 2003 they would be waiving any right of redemption. Further evidence that a release was not obtained is that the existing debt was not extinguished after the 2003 conveyance. Instead, the record clearly reflects that after the conveyance, the Eichs continued to make payments to Myers as they had since the 1999 transaction. We place little significance on the purported lease agreement as there was nothing surrounding this transaction that provided an explicit release by the Eichs of their right of redemption. It has long ago been recognized in South Dakota that “[p]arties seeking to take an undue advantage of mortgagors situated as the plaintiff was in this case almost invariably seek to cover up the transaction by inducing the party to whom the loan was really made to take a lease of the property; hence the mere fact of leasing should have but little weight with a court of equity, which seeks to discover the real transaction.” Wilson, 16 S.D. 96, 91 N.W. at 457; see also Adrian, 2002 SD 10, ¶ 16, 639 N.W.2d at 535 n. 2.

[¶ 34.] Because the circumstances surrounding the 1999 transaction created an equitable mortgage and nothing in the record establishes that the Eichs knowingly waived their equitable right to redeem, the 2003 warranty deeds and later purported lease did not alter the form of the transaction. Therefore, the circuit court abused its discretion when it declined the remedy of equitable mortgage. We need not address the Eichs’ second issue because our holding on the first issue is dispositive of the case.

[¶ 35.] Reversed and remanded.

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


author: MEIERHENRY, Justice. ZINTER, Justice KONENKAMP, Justice

text:
    2006 SD 67
    Theodore A. NIST, Plaintiff and Appellee, v. Sally J. NIST, Defendant and Appellant.
    No. 23639.
    Supreme Court of South Dakota.
    Argued on March 21, 2006.
    Decided July 26, 2006.

      Terri L. Williams of Gunderson, Palmer, Goodsell & Nelson, Rapid City, South Dakota, Attorney for plaintiff and appellee.
    Linda Lea M. Viken of Viken Law Firm, Rapid City, South Dakota, Attorney for defendant and appellant.
   MEIERHENRY, Justice.

[¶ 1.] Ted and Sally Nist were divorced by a judgment and decree of divorce entered on January 19, 1996. Nine years later, Ted sought an order amending the judgment to state expressly that Sally is not entitled to a pro rata share of Ted’s pension and survivor benefits under the Foreign Service Act. The trial court granted Ted’s motion and amended the judgment nunc pro tunc. Sally appeals. We reverse and remand.

Factual and Procedukal Background

[¶ 2.] Ted and Sally Nist were married on May 21, 1983. During their marriage, Ted served in the federal Foreign Service. After eleven years of marriage, Ted filed for divorce in September 1994. The matter went to trial on September 29, 1995, before the Honorable Circuit Court Judge Roland Grosshans. The marital assets included Sally’s pension from the Civil Service Pension Program and Ted’s pension from the Foreign Service Pension System. Under federal law, a former spouse has a right to a portion of an ex-spouse’s Foreign Service pension unless that right is expressly limited by a waiver or a judge’s order. Judge Grosshans announced his ruling at the conclusion of the testimony. Referencing the items of the joint property exhibit, Judge Grosshans divided the assets, explicitly awarding Ted’s retirement to Ted and Sally’s retirement to Sally. After the trial, the parties waived the entry of findings of fact and conclusions of law. Subsequently, the parties made several revisions to and finally agreed upon a proposed Judgment and Decree of Divorce. The judgment and decree did not expressly address Sally’s claim to Ted’s Foreign Service pension. Judge Gros-shans signed the judgment and decree on January 19, 1996, nunc pro tunc, September 29,1995.

[¶ 3.] A month later, in February 1996, Ted’s counsel sought to amend the judgment to expressly divest Sally of any claim to Ted’s pension. The parties, however, never reached an agreement, and the judgment was never amended. Ted then asked Sally to sign a waiver of any claim to his pension. Ted signed a waiver of any entitlement to Sally’s pension; however, Sally refused to sign a reciprocal waiver regarding Ted’s pension. Ted did not pursue the matter until some nine years later when he realized, while preparing for retirement, that without an agreement or specific court order, Sally was still entitled to a pro rata share of his Foreign Service pension.

[¶ 4.] Thus, in 2005, Ted moved to modify the judgment and decree of divorce. Ted asked the court to amend the original judgment to include a specific declaration that Sally was not entitled to a portion of his pension. Ted argued that Judge Grosshans, who had retired from the bench, did not intend for Sally to receive those benefits. In response, Sally asserted several defenses to Ted’s motion and filed a motion to dismiss or, in the alternative, for judgment on the pleadings. In addition, Sally requested alimony in the amount of her pro rata share of Ted’s pension should the court grant Ted’s motion to amend. Sally also requested attorney’s fees.

[¶ 5.] On April 19, 2005, the Honorable Circuit Court Judge Thomas L. Trimble held a hearing to consider the parties’ motions. Judge Trimble granted Ted’s motion to amend the judgment and decree of divorce to include a provision specifically stating that Sally was not entitled to a portion of Ted’s Foreign Service pension. Judge Trimble denied Sally’s request for alimony and attorney’s fees and did not address her equitable claims of laches, waiver, estoppel, and res judicata. Sally appeals Judge Trimble’s decision. The case presents the following issue for our consideration:

ISSUE

Whether the trial court erred when it amended, nunc pro tunc, the prior judgment and decree of divorce.

DECISION

Amendment of Judgment

[¶ 6.] Ted’s motion to amend was based alternatively on SDCL 15-6-60(a) or SDCL 15 — 6—60(b), and the parties presented argument concerning both subsections on appeal. It appears from the record that the trial judge amended the judgment under SDCL 15 — 6—60(a). Therefore, we first address the application of Rule 60(a) to the facts of this case.

[¶ 7.] Rule 60(a) provides, in relevant part:

Clerical mistakes in judgments, orders, or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders.

SDCL 15-6-60(a). As we have explained, “clerical corrections include the implementation of what was intended and what the court had accepted as the proper resolution,” but failed “to memorialize [as] part of a decision.” Reaser v. Reaser, 2004 SD 116, ¶ 29, 688 N.W.2d 429, 438 (citations and quotation marks omitted). We review a lower court’s ruling on a Rule 60(a) motion for an abuse of discretion. Cf. Koeher v. Dow Chem. Co., 132 F.3d 1225, 1229 (8thCir.l997) (“We review denials of Rule 60(a) motions for abuse of discretion.”); Blanton v. Anzalone, 813 F.2d 1574, 1577 (9thCir.l987) (“The standard of review for [a] Rule 60(a) claim is abuse of discretion.”); Walsh v. Larsen, 2005 SD 104, ¶ 6, 705 N.W.2d 638, 641 (“The decision to grant or deny a motion under [Rule 60(b) ] rests with the sound discretion of the trial court and will not be disturbed on appeal unless there has been an abuse of discretion.”).

[¶ 8.] The application of Rule 60(a) depends on the characterization of the correction sought; that is, whether the correction is due to a clerical error or whether it involves a judicial decision. A clerical error under Rule 60(a) is a “mistake or omission mechanical in nature,” one “which does not involve a legal decision or judgment by an attorney.” Reaser, 2004 SD 116, ¶ 29, 688 N.W.2d at 438 (citation omitted). Additionally, the error or omission must be apparent from the record. Id. Thus, if the correction is clerical, the rule applies; if the correction is substantive, the rule does not apply. For example, in Wolff v. Weber, we held that Rule 60(a) could not be used to correct a referee’s mistake in applying the child support guidelines. 1997 SD 52, ¶¶ 10-13, 563 N.W.2d 136, 139. In that case, the record revealed that the referee had misread the guidelines. Id. ¶ 11. Instead of using the amount of support for two children, the referee ordered the amount of support listed in the column for one child. Id. We found this mistake was not clerical. Id. ¶ 12. We declined to characterize the child support error as a correction within Rule 60(a). Id. We said:

We find the error here to be one of judicial function rather than a clerical mistake. Determination of a party’s child support obligation requires application of the law to the facts of the case and affects the substantive rights of the parties. Such a process can never be held to be merely clerical. SDCL 15 — 6— 60(a) does not authorize “correction” of a mistake of judicial function.

Id. Thus, even though the record revealed that the referee unintentionally used the wrong figure from the child support guidelines, we characterized the error as a substantive change that could not be corrected with a Rule 60(a) motion. Id. ¶¶ 11-12. Quoting the Supreme Court of Montana, we said: “ ‘The authority of a court to amend its record by a nunc pro tunc order is to make it speak the truth, but not to make it speak what it did not speak but ought to have spoken.’ ” Id. ¶ 13 (quoting Thomas v. Thomas, 189 Mont. 547, 551, 617 P.2d 133, 135 (1980)); see also Reaser, 2004 SD 116, ¶ 29, 688 N.W.2d at 438 (detailing the nature of clerical errors).

[¶ 9.] As with Wolff, the omission in the present case was not a clerical error, but rather was substantive in nature. It involved a judicial function. The judicial function was to determine whether Sally would be able to claim a portion of Ted’s federal pension. Even though Judge Grosshans may have intended to preclude Sally from claiming her entitled portion of Ted’s pension under the Foreign Service Act, his intention is not clear from the record. The record contains the judgment, which merely provided that “the assets and liabilities shall be divided as set forth on the attached property division sheet.” The property division spreadsheet placed Ted’s retirement in the amount of $93,498 in the column marked “Husband” and Sally’s retirement in the amount of $54,758 in the column entitled “Wife.” Similarly, Judge Grosshans’ oral pronouncement gave Ted the cash value of his pension and Sally the cash value of hers. The record contains no other testimony or documentation explaining how the cash value of Ted’s retirement amount was calculated or whether the amount included or excluded Sally’s entitlement. Sally provided Judge Grosshans with a copy of the federal statute that required a court order or spousal agreement to divest Sally of her entitled share. Nevertheless, the judge made no reference of his intention concerning the federal law either in his oral ruling or in the judgment.

[¶ 10.] Judge Trimble attempted to determine Judge Grosshans’ intent from the record and to amend the judgment to reflect that intent. By amending the prior judgment under Rule 60(a), however, Judge Trimble impermissibly made “it speak what it did not speak but [what he thought it] ought to have spoken.” Wolff, 1997 SD 52, ¶ 13, 563 N.W.2d at 139. Similar to the child support obligation in Wolff, Sally’s entitlement to or divestment of Ted’s Foreign Service pension was a judicial function, not a clerical mistake. Consequently, the trial court abused its discretion when it amended the judgment entered by Judge Grosshans.

[¶ 11.] Our holding applies only to the limited issue of whether the judgment can be amended nunc pro tunc pursuant to SDCL 15 — 6—60(a). Whether it can be amended under SDCL 15 — 6—60(b) is not before us. The trial court did not address in the first instance Ted’s claim for relief under SDCL 15 — 6—60(b), Sally’s claim for alimony, or Sally’s equitable defenses of laches, waiver, estoppel, and res judicata. We decline to consider them for the first time on appeal. We, therefore, reverse and remand for the trial court to consider the remaining claims of both parties, including Sally’s claim for attorney fees.

[¶ 12.] Sally is awarded appellate attorney’s fees in the amount of $5,000.00.

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

[¶ 14.] ZINTER, Justice, concurs with a writing.

[¶ 15.] KONENKAMP, Justice, dissents.

ZINTER, Justice

(concurring).

[¶ 16.] There are three critical facts that distinguish this case from those involving oversights, omissions, and clerical mistakes. First, under the Foreign Service Act, Sally possessed a statutory entitlement to a future percentage share of the ultimate Foreign Service benefits regardless of the present “cash value” Judge Grosshans placed upon them for purposes of making a property division. Moreover, prior to making that property division, Judge Grosshans was informed of the Act, which specifically required a court order or spousal agreement to divest Sally of her future proportionate share of the Foreign Service retirement benefits. He was also informed in Sally Nist’s pretrial briefs that she had rights “under federal law, including the survivor’s benefit and a certain percentage.” Therefore, Judge Grosshans’ use of the present cash value and his failure to provide a divestiture clause when he divided the then existing value of the marital estate created uncertainty concerning Sally’s future statutory entitlement under the Foreign Service Act.

[¶ 17.] Second, it is also significant that, within the time to appeal from the judgment, the parties apparently realized the legal effect of the judgment because they began negotiations over a spousal waiver. Yet, for reasons not disclosed in the record, the parties failed to resolve that legal dispute at that time by seeking a clarification from Judge Grosshans. Instead, Theodore waited nine additional years to resurrect the argument in the Rule 60(a) motion that is now before this Court.

[¶ 18.] Finally, this case is unlike those relied upon by the dissent where the judge who rendered the original judgment was asked to correct his or her own judicial oversight. See e.g. Antepenko v. Antepenko, 584 So.2d 836, 838 (Ala.Civ.App.1991) (noting that “[w]hen the correction of such errors through Rule 60(a) is based upon the recollection of the court, it is not subject to contest”). Furthermore, those cases involved relatively easy determinations of oversight. See e.g., Semtner v. Group Health Serv. of Okla., Inc., 129 F.3d 1390, 1392 (10thCir.l997) (involving a “readily ascertainable and undisputed” omission); In re Walter, 282 F.3d 434, 442 (6thCir.2002) (noting that the “bankruptcy court state[d] in clear and unequivocal language that it intended to remove Pruzin-sky entirely from the force of the order, and that the order, as modified, did not reflect that intent”). In contrast, in our case, Judge Trimble was asked to divine what retired Judge Grosshans had intended nine years earlier and was asked to do so without the benefit of his testimony.

[¶ 19.] For all these reasons, it is now impossible to unequivocally categorize Judge Grosshans’ failure to divest Sally of her federal entitlement as a mere oversight, omission, or clerical mistake.

KONENKAMP, Justice

(dissenting).

[¶ 20.] The Court holds that SDCL 15-6-60(a) (Rule 60(a)) cannot be used to add to the parties’ judgment of divorce statutory language reflecting Judge Grosshans’ oral ruling after trial to award the husband his full pension. Contrary to this Court’s constricted view of the rule, however, other “courts have usually taken a liberal approach to the terms ‘clerical mistakes’ and ‘errors’ arising from oversight or omission, in construing Rule 60(a) for application to a particular correction sought to be made in a judgment, order, or other part of the record.” Jean F. Rydstrom, Construction of Rule 60(a) of Federal Rules of Civil Procedure, 13 A.L.R. Fed. 794 § 4 (1972).

[¶ 21.] Surely, there can be no doubt from Judge Grosshans’ announced decision that his intention was to award both spouses their own pensions. The fact that the judgment does not reflect this intention constitutes a simple omission, precisely the kind of error the law allows to be corrected under Rule 60(a). Judge Trim-ble realized this and properly granted the husband’s motion to correct the judgment entered by Judge Grosshans. We are not entitled to reconsider this matter as if the motion had been originally brought before us. On this kind of appeal, our standard of review is most deferential. Unless we can say that Judge Trimble clearly abused his discretion, the decision should stand. Walsh v. Larsen, 2005 SD 104, ¶ 6, 705 N.W.2d 638, 641.

[¶ 22.] All the husband had asked for was that the trial judge’s decision be stated in the judgment. That is what the rule was designed to accomplish. Indeed, Rule 60(a) “enables a court to ensure that its orders, judgments, and other parts of its record of proceedings are an accurate reflection of the true actions and intent of the court and the parties.” 12 James Wm. Moore, Moore’s Federal Practice § 60.02[1] (3ded 2006). “It is axiomatic that courts have the power and the duty to correct judgments which contain clerical errors or judgments which have issued due to inadvertence or mistake.” In the Matter of West Texas Marketing Corp., 12 F.3d 497, 504 (5thCir.l994).

[¶ 23.] Delay in bringing an omission to the attention of the court is not an overriding consideration. Rule 60(a) allows for the correction “at any time” of clerical mistakes and errors arising from oversight or omission. SDCL 15 — 6—60(a); cf Fed R Civ P 60(a). Although this Court ignores the “omission” part of the rule and thus limits the type of error subject to correction in this case, legal scholars take pains to point out that “Rule 60(a) permits the correction of clerical mistakes in judgments, orders, or other parts of the record as well as the correction of errors arising from oversight or omission.” 11 Charles Alan Wright, et al., Federal Practice and Procedure § 2854 (2ded 1995) (emphasis added). Whether the mistake is designated a “clerical error” or an “oversight or omission” is of no import.

[¶ 24.] In reaching the opposite conclusion, this Court reasons that the judgment cannot be corrected because “[e]ven though Judge Grosshans may have intended to preclude [the wife] from claiming her entitled portion of the husband’s pension under the Federal Service Act, his intention is not clear from the record.” Can there really be any doubt what Judge Grosshans intended when he declared that each party was to be awarded the full value of his and her own pension? It is inconceivable to think that while he said that each would get the full value of his or her pension, at the same time, he really meant that they would nonetheless be entitled to a portion of each other’s pensions. Nothing in his oral decision suggests such an incongruous ruling. Indeed, in accord with the judge’s order to both parties to sign any documents necessary to effectuate his ruling, the husband followed through with his understanding of the judge’s decision: he signed a written waiver of any claim to the wife’s pension.

[¶ 25.] Following the divorce trial, the parties agreed upon a proposed judgment and decree of divorce. Judge Grosshans signed the judgment and decree in January 1996. A month later, the husband’s attorney sought to amend the decree to reflect that the wife had no claim to the husband’s pension. However, the parties were unable to agree and the judgment was never amended. When the husband began the retirement process, he realized that certain boilerplate language required under the Federal Service Act governing Foreign Service pensions was missing from the decree. Before the federal government can comply with the decree, this language must be inserted. Adding the language to reflect the decision Judge Grosshans made is purely a mechanical act, a formality. It involves no judicial interpretation and no adjustment for an error of law or fact. It merely corrects an “oversight or omission.”

[¶ 26.] In a variety of circumstances, federal courts have applied Rule 60(a) to correct the type of omission we have here. In Dudley v. Penn-America Ins. Co., 313 F.3d 662 (2dCir.2002), an amended judgment was approved that corrected a judicial oversight arising from the court’s failure to include a monetary award in its original judgment. The same result was sanctioned in Semtner v. Group Health Serv. of Oklahoma, Inc., 129 F.3d 1390 (10thCir.l997) (omission of specific amount of damages may be viewed as a clerical error). Again, in the case of In re Walter, 282 F.3d 434, 440-41 (6thCir.2002), cert. denied, Giannetti v. Pruzinsky, 537 U.S. 885, 123 S.Ct. 118, 154 L.Ed.2d 144, where an order approving settlement failed to strike a party’s name so as to preserve his subsequent rights, the appellate court approved the lower court’s correction under Rule 60(a) to remove the party in accord with the court’s intent.

[¶ 27.] In state divorce proceedings, correcting an error of this type is not uncommon. Trial courts are often called upon to amend an order to add language to conform to the original intent of the court or the parties. See Antepenko v. Antepenko, 584 So.2d 836 (Ala.Civ.App.1991) (omission from decree of award of farm equipment to husband was correctible under Rule 60(a)); Ozment v. Ozment, 11 P.3d 635, 639 (OKCivApp 2000) (QDRO); Brooks v. Brooks, 864 S.W.2d 645, 647 (TexCtApp 1993) (trial court properly corrected divorce judgment to effectuate judge’s intention to grant husband half of wife’s retirement benefits); Spomer v. Spomer, 580 P.2d 1146, 1149-50 (Wyo. 1978) (clarifying order properly entered as correction under Rule 60(a) to resolve whether husband’s obligation under decree to satisfy “mortgage” was intended to serve as property distribution or maintenance). See also Elsasser v. Elsasser, 989 P.2d 106 (Wyo.1999). See other state cases cited in James L. Buchwalter, Amendment of Record of Judgment in State Civil Cases to Correct Judicial Errors and Omissions, 50 A.L.R. 5th 653 (1997).

[¶ 28.] We are not here to decide whether we agree or disagree "with the original decision made by Judge Gros-shans, who is now retired. Our only function is to decide whether Judge Trimble appropriately amended the judgment to facilitate the decision Judge Grosshans made. Under our standard of review, the question is whether Judge Trimble abused his discretion. The record shows that he did not, and therefore his decision should be affirmed.

      . Judge Grosshans stated on the record as follows: "Item 12, FSPS cash value of retirement, $93,498.00 is his.... Item 17, the FSPS cash value retirement, [$]54,758 is hers.” The parties agree that regarding Item 17, Judge Grosshans meant to reference Sally's Civil Service pension.

      . At the hearing on Ted's motion, Judge Trim-ble did not explicitly indicate upon which statute his decision was based. He stated:
      I've read through the transcript of the decision that was rendered by Judge Grosshans, and basically that's what I’m going to render my decision on. It appears to me in that decision that he specifically gives [Ted]’s retirement to [Ted], which is the FSPS, and [Sally]'s retirement to [Sally], which is the CSRS. The amounts were balanced with other properties in there, alimony, number of things were used. But what I see in going through that was ... the one apparent thing about him talking about maybe using that to guarantee the alimony, and the fact that — -just the way he line-itemed the matter out. There's no question in my mind that's exactly what he did. Consequently, I view this as simply enforcing the property settlement dictated by the judge, and the technical language which is required.... The necessity of entering the appropriate language in the decree doesn't alter the property settlement as dictated here by the Court to the parties at the time of the decision. And by adding the language to the decree is only to clarify the decision for purposes of the federal retirement program.
      Following that statement, the following exchange took place between Judge Trimble and Sally's attorney:

        Mrs. Viken: I will want to do proposed findings, Your Honor.
      The Court: Based upon what? There's no findings.
      Mrs. Viken: No, proposed findings on this motion.
      The Court: There’s no testimony.

      Mrs. Viken: Well there’s affidavits and so on.
      The Court: I’m not relying on them. I’m relying on the Courts’ — that's what I’m saying — I'm relying on the decision of the Court, so there's really not a necessity for [findings].
      Judge Trimble’s statements establish that he considered Ted’s motion under SDCL 15 — 6— 60(a) and the amendment of the judgment as clerical.

      . The relevant portions of that statute provide:
      (a) Entitlement to share in benefits ...
      (1)(A) Unless otherwise expressly provided by any spousal agreement or court order governing disposition of benefits under this part, a former spouse of a participant or former participant is entitled ... to a share ... of all benefits otherwise payable to such participant under this part if such former spouse was married to the participant for at least 10 years during service of the participant which is creditable under this sub-chapter with at least 5 of such years occurring while the participant was a member of the Foreign Service.

      (b) Entitlement to survivor benefits ...
      (1) Unless otherwise expressly provided for by any spousal agreement or court order governing survivorship benefits under this part to a former spouse married to a participant or former participant for the periods specified in subsection (a)(1)(a) of this section, such former spouse is entitled to a share ... of all survivor benefits that would otherwise be payable under this part to an eligible surviving spouse of the participant.
      22 USC § 4071j (emphasis added).

      . Sally sought review of the trial court’s denial of attorney fees. The issue of attorney fees would need to be reconsidered by the trial court in light of our ruling to remand the remaining claims.

      . See supra n. 3 (quoting 22 USC § 4071j(a)-(b)).

      . The divorce court's reference to each party’s retirement plan’s cash value was a reference to the present value (at the time of the divorce) of a future stream of estimated retirement benefits, based upon a number of assumptions (including mortality).

      . That Judge Grosshans was given a copy of the federal statute governing Foreign Service pensions is of no significance because he asked the lawyers to draw the judgment for his signature. The fact that the original judgment did not contain the language from the federal statute constituted an oversight.