Erickson v. Erickson

#30011-aff in pt & rev in pt-MES

                           IN THE SUPREME COURT
                                   OF THE
                          STATE OF SOUTH DAKOTA

                                      ****

MICHAEL R. ERICKSON,                         Plaintiff and Appellant,

      v.

TARA J. ERICKSON,                            Defendant and Appellee.

                                      ****

                   APPEAL FROM THE CIRCUIT COURT OF
                      THE SECOND JUDICIAL CIRCUIT
                   MINNEHAHA COUNTY, SOUTH DAKOTA

                                      ****

                  THE HONORABLE DOUGLAS E. HOFFMAN
                                Judge

                                      ****


TRESSA ZAHRBOCK KOOL of
Lockwood & Zahrbock Kool Law Office
Sioux Falls, South Dakota                    Attorneys for plaintiff and
                                             appellant.


THOMAS H. FRIEBERG
AUSTIN J. FELTS of
Frieberg, Nelson & Ask
Beresford, South Dakota                      Attorneys for defendant
                                             and appellee.

                                      ****

                                             CONSIDERED ON BRIEFS
                                             FEBRUARY 15, 2023
                                             OPINION FILED 12/28/23
#30011

SALTER, Justice

[¶1.]        Former spouses, Michael Erickson and Tara Erickson, executed a

Stipulation and Agreement (the Agreement) in 2020 to settle issues associated with

their divorce action. The circuit court accepted the Agreement and incorporated it

into a judgment and decree of divorce. Believing the Agreement authorized it, Tara

has claimed the parties’ two minor children as dependents when filing her federal

income tax returns since 2018. However, in 2022, Michael cited what he believed to

be contrary language in the Agreement and asserted for the first time that he was

entitled to claim the children as dependents. He moved to enforce the Agreement

and hold Tara in contempt. Tara subsequently moved to “modify” the divorce

decree and Agreement, asserting the language Michael identified contained a

mistake. She also sought an award of attorney fees.

[¶2.]        The circuit court determined that the provision of the parties’

Agreement upon which Michael was relying was the result of a drafting error.

Consequently, the court denied Michael’s requests for relief and granted Tara’s

motion to revise the text of the Agreement and for attorney fees. We affirm in part,

reverse in part, and remand for further proceedings.

                        Factual and Procedural History

[¶3.]        Michael originally commenced this divorce action as a pro se plaintiff

in June 2018. Both parties ultimately engaged counsel to assist them. Sioux Falls

attorneys James Billion and Nichole Carper assisted Michael and Tara,

respectively. The parties undertook negotiations and a mediation session in an

attempt to resolve issues relating to property division and the custody of their two


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minor children. Michael and Tara eventually executed the Agreement, with the

stated purpose of settling “the issues of custody, child support, division of property,

assumption of financial obligations, and alimony . . . .” The Agreement was

incorporated into the circuit court’s judgment and decree of divorce, which was filed

in April 2020.

[¶4.]        A single provision in the Agreement is at the center of this appeal.

Paragraph 2.g. reads, “For tax year 2018 and each year after that, Plaintiff shall be

entitled to claim [the two minor children] as dependents and head of household for

Federal, State, or Local tax purposes.” (Emphasis added.) As indicated, Michael

was the plaintiff in the divorce action, and Tara was the defendant. But

notwithstanding paragraph 2.g., Tara claimed both of the children as dependents in

the 2018, 2019, and 2020 tax years, all without any objection from Michael.

[¶5.]        However, in February 2022, Michael filed a motion through different

counsel to enforce paragraph 2.g. of the Agreement and to find Tara in contempt for

violating the circuit court’s judgment and decree of divorce. Tara, also represented

by a new attorney, responded and filed a motion to amend the judgment and decree

of divorce “to clarify that . . . Tara Erickson[ ] is entitled to claim the minor children

as dependents for purposes of tax filing.” Tara’s supporting brief invoked the circuit

court’s authority to grant relief from judgments contained in SDCL 15-6-60(a) (Rule

60(a)) and SDCL 15-6-60(b) (Rule 60(b)). Tara also requested an award of attorney

fees.

[¶6.]        In Tara’s view, her claiming the children as dependents reflected the

actual intent and understanding of the parties at the time the Agreement was


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executed. She offered several arguments that the Agreement itself, when read as a

whole, revealed that the use of the word “Plaintiff” was a “mistake[.]”

[¶7.]         First, she argued that paragraph 2.g. reflected a legal impossibility

because it also purported to grant head of household status to Michael—something

Tara asserted is contrary to federal tax law which, she claimed, does not allow a

“non-custodial parent to claim head of household filing status[.]” Second, she

argued that the designations of Plaintiff and Defendant only appear in paragraph

2.g. while the Agreement otherwise refers to the parties as Father and Mother,

supporting the conclusion that Tara’s counsel at the time “failed to catch the

inadvertent reference to Plaintiff[.]” Finally, Tara pointed to a notation in an

attached joint property exhibit stating, “credit card debt 2018 taxes; Tara had the

children more than 50% of the time during 2018, she is entitled to claim the

children on her tax return.”

[¶8.]         At the subsequent motions hearing, Tara also offered extrinsic

evidence regarding the parties’ discussions and negotiations leading up to the

execution of the Agreement. For instance, the court found that emails between the

original attorneys revealed that Tara’s lawyer insisted that her client should either

be able to claim the children as dependents or be “made whole” in the event Michael

was to claim the children because he could make greater use of claiming the

children as dependents given his higher income. 1



1.      The parties exchanged a draft of the Agreement that included a provision
        stating Michael, designated as the “Plaintiff,” could claim the children as
        dependents and file for head of household, subject to certain requirements.
        In essence, Michael could pay for tax preparation services for himself as well
                                                              (continued . . .)
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#30011

[¶9.]          Recalling her representation of Tara during these discussions, Nichole

Carper testified that “honestly, [ ] from my understanding of everything and the

way we proceeded through everything mother would claim the kids. There was

never any issue on that.” Regarding the language to the contrary in paragraph 2.g.,

Carper stated, “[I]t’s so easy to make that mistake, and unfortunately that language

just didn’t get caught.” 2

[¶10.]         In addition, Tara offered evidence of the parties’ conduct in the years

following the execution of the Agreement and divorce. This included the fact that

Tara claimed the children as dependents in 2018, 2019, and 2020 with no objection

from Michael. Tara also introduced evidence of unrelated parenting disputes

between the parties and characterized Michael’s motion as “retaliation” for these

disagreements, stating, “Apparently, he had not reviewed the provision until our

recent disputes.”




________________________
(. . . continued)
         as Tara in order to demonstrate the relative value of claiming the children as
         dependents based on each party’s respective income. Using this information,
         Michael could then claim the children as dependents if he paid Tara for the
         value she would have received by claiming them. However, the designations
         for the parties varied within the draft provision, and, critically, it was not
         fully incorporated into the Agreement. The part of this draft language
         designating “the Plaintiff” as entitled to claim the children as dependents
         was incorporated into paragraph 2.g., but the balance of the draft provision
         containing the “tax benefit maximizing” language, which referred to the
         parties as “Mother” and “Father,” was not.

2.       Carper explained that the misstep was likely due to the fact that she
         represents many mothers who are plaintiffs in divorce actions and that her
         office used a stipulation and agreement from a different divorce as a template
         when drafting the Agreement.

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#30011

[¶11.]        As it related to Michael’s motion for contempt, Tara denied that she

“willfully ignored the court’s order by filing your tax return in 2018, ‘19 and ‘20

claiming the children and head of household status[.]” Tara further offered that she

“was told over, and over, and over by Nichole” that she could claim the children as

dependents.

[¶12.]        For his part, Michael asserted that the Agreement unambiguously

granted him the right to claim the children as dependents and file as head of

household. Based on his view that the Agreement lacked ambiguity, he argued that

no extrinsic evidence should be considered to determine the parties’ intent behind

the Agreement.

[¶13.]        Notwithstanding this position, Michael’s prior attorney, James Billion,

testified about his recollection of the parties’ negotiations. According to Billion,

which party would claim the children as dependents “was always an issue from the

outset . . . .” Billion recalled the discussions with Carper, but he was unsure about

the accuracy of paragraph 2.g. stating, “I can’t speak with a hundred percent

certainty that the exemption issue at hand is, is not a clerical error, although I do

know with a hundred percent certainty that throughout the course of the

proceedings and the negotiations that the item was addressed at various times.”

[¶14.]        Responding to Tara’s argument that he took no action to enforce his

view of the Agreement in the 2018, 2019, and 2020 tax years, Michael explained

that he was attempting to not “rock the boat” with Tara in light of their other

ongoing disagreements. He maintained that he always understood that the

Agreement entitled him to claim the children as dependents.


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#30011

[¶15.]         As for his contempt motion, Michael did not offer evidence other than

the fact that Tara had claimed the children as dependents. He offered a related

argument claiming that Tara was further acting in defiance of the divorce decree by

not cooperating with his demand to file the necessary paperwork to enable him to

claim the children as dependents. 3 In closing remarks, Michael’s current attorney

argued that Tara “needs to be held to this agreement.”

[¶16.]         At the conclusion of the hearing, the circuit court ruled in Tara’s favor

on each of the motions before it. Starting with the motion to clarify the decree and

the corresponding Agreement, the court determined that the “evidence is crystal

clear, and beyond clear and convincing that [the disputed provision] was a mistake.”

The court further ruled that “all the surrounding circumstances, all of the exhibits,

all of the evidence and testimony, establishes really beyond any reasonable doubt

that there is a typo in the stipulation and in paragraph 2.g. The word plaintiff was

supposed to be defendant, and [ ] everybody overlooked it, and missed it because it

wasn’t even ever really a debatable issue.” 4




3.       Because Tara has the children more than 50% of the time, she is considered
         the custodial parent and would have to complete an IRS Form 8332 in order
         to allow Michael to claim the children as dependents. See Armstrong v.
         Comm’r, 

 (8th Cir. 2014); see also 26 U.S.C. 152(e)
         (describing procedure for custodial parent releasing claim to dependent
         exemption).

4.       As part of its determination that paragraph 2.g. contained a mistake, the
         circuit court noted that the additional authority for the “Plaintiff” to file a tax
         return as the head of household reflected a legal impossibility because
         Michael could not, in any event, claim head of household status under federal
         law. Michael has not challenged the court’s determination in this regard.

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#30011

[¶17.]        The circuit court continued, “It was intended by all parties . . . that

mother was going to retain her right to claim the children under federal law, and

when her lawyer goofed up and didn’t correct that error in the final draft, [Michael]

figured, [‘]well, I’m not going to tell anybody about this.[’] And [ ] [‘]I may use it to

my advantage someday.[’]” As part of this analysis, the court discounted Michael’s

contrary evidence and found that his testimony was not credible.

[¶18.]        The court then explained its procedural path for correcting the

Agreement:

              [W]e’re operating under Rule 60(b). If we were going under
              60(b)(1), we would be limited to one year [ ] and I think that if
              we have to go under 60(b)(1), I think that father’s delay in
              raising the issue tolls the running of that statute of repose until
              the mistake was discovered by the party that was prejudiced by
              that, which was discovered by her when brought to her attention
              by the father . . . and, otherwise, I still believe that we are
              operating under 60(b)(6).

[¶19.]        Consistent with the circuit court’s reasoning on the motion to amend

the Agreement, the court denied Michael’s motion for contempt, describing the

motion as “essentially frivolous” and finding that Tara “did not make any willful or

contumacious decision to disobey the judgment and decree of divorce. She was

doing in good faith [what] she understood the agreement to be.”

[¶20.]        Finally, the circuit court granted Tara’s motion for attorney fees. The

court reasoned that “[w]e shouldn’t be here, and she shouldn’t have to pay for it.

[Michael] tried to take advantage of the situation, and he should have to pay for it.”

In its order approving the final attorney fees amount, the court described the fee

request of $4,803.43 as reasonable and incorporated Tara’s attorney’s affidavit,



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which also summarily described the fees as “reasonable.” There were no additional

findings regarding the reasonableness of the attorney fees.

[¶21.]         Michael appeals, asserting several issues for review, restated as

follows:

               1.     Whether it was necessary for the circuit court to rely upon
                      Rule 60(b) in order to interpret and clarify the divorce
                      decree.

               2.     Whether the circuit court erred when it concluded that
                      the parties’ Agreement was ambiguous.

               3.     Whether the circuit court clearly erred when it found that
                      the parties intended in their Agreement to allow Tara to
                      claim the children as dependents for tax purposes.

               4.     Whether the circuit court abused its discretion when it
                      granted Tara’s request for attorney fees.

                                Analysis and Decision

Application of Rule 60(b)

[¶22.]         The circuit court invoked Rule 60(b) as the means of considering the

parties’ conflicting claims about the meaning of paragraph 2.g. The parties’

arguments on appeal similarly treat the Rule 60(b) issue as a necessary predicate to

reaching the textual interpretation issue. 5 But we are reluctant to simply accept

that premise and condition our ability to reach the merits of this appeal upon the

outcome of a Rule 60(b) analysis.




5.       In addition to Rule 60(b), Tara’s arguments before the circuit court cited Rule
         60(a), which allows relief from judgments containing clerical mistakes. The
         circuit court relied upon Rule 60(b) only, and Tara has not argued on appeal
         that the court erred by not using Rule 60(a) as a basis for its decision.

                                            -8-
#30011

[¶23.]       We have not previously confronted the question whether a basis for

relief from an order or judgment under Rule 60(b) is necessary for a circuit court to

clarify a divorce decree based upon a stipulation between the parties. In Divich v.

Divich, we referenced Rule 60(b) principles, as the parties had, and held that the

circuit court abused its discretion by concluding the parties’ divorce stipulation was

ambiguous, but our analysis turned on contract principles, not an application of

Rule 60(b). 

, ¶¶ 8–11, 

, 760–62. We applied the same

essential contract rules in Roseth v. Roseth to interpret a stipulation incorporated

into the parties’ divorce decree regarding funding for their children’s education,

without any reference to Rule 60(b). 

, ¶¶ 13–17, 

, 142–

43.

[¶24.]       We begin our inquiry into the court’s authority by noting the

importance of an order’s clarity. In addition to setting out the terms under which

the parties to litigation must abide, an order’s ultimate utility depends upon its

enforceability. As we have often held, a court may not use its civil contempt power

to enforce an order or judgment unless the “order . . . state[s] the details of

compliance in such clear, specific and unambiguous terms that the person to whom

it is directed will know exactly what duties or obligations are imposed upon her.”

Evens v. Evens, 

, 

, 283 (quoting Keller v. Keller,

, ¶ 9, 

).

[¶25.]       Consequently, it is natural that courts would, from time to time, find it

necessary to clarify the meaning of their orders or judgments, whether these are the

product of a court’s own deliberative effort or an agreement of the parties that the


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#30011

court incorporates. But there is a distinction between this sort of clarification and a

modification of the order from its intended meaning to something new and different:

               A “motion for clarification” is just what the name implies: a
               request for an explanation from the trial court as to the meaning
               of a prior, allegedly unclear, order. A “motion for clarification”
               does not seek to persuade the trial court that a prior judgment
               should be changed, modified, or invalidated. If it does seek to do
               any of those things, then it is not a “motion to clarify” a
               judgment, but a motion to alter, amend, or vacate a judgment
               ....

Muellen v. Ritter, 

 (Ala. Civ. App. 2012) (citations omitted).

[¶26.]         Here, the parties did not seek relief from the divorce decree by

changing or modifying it; they sought clarification regarding its meaning. 6 And for

this reason, we hold that the circuit court was authorized to interpret and clarify

the decree, which incorporated the Agreement, without the need to invoke Rule

60(b). 7 The Supreme Judicial Court of Maine has stated a practical set of rules that

we find particularly instructive here:

               When a settlement agreement is incorporated into a divorce
               judgment, the settlement agreement becomes part of the
               judgment of the divorce court. If the divorce judgment is
               ambiguous, the court has the inherent and continuing authority
               to construe and clarify its judgment, but it cannot under the
               guise of a clarification order make any material change that will
               modify the property division provided by the original
               judgment. . . . When we review an order purporting to clarify a


6.       Though styled a motion to “modify,” Tara’s actual arguments make clear that
         she was seeking to clarify—not substantively change—the original
         stipulation which the circuit court incorporated into the decree.

7.       Though state courts lack authority under federal law to “award dependent
         exemptions . . ., once the parties have stipulated to a [dependent tax
         exemption] provision and incorporated it into their divorce agreement, the
         court has authority to approve or reject the agreement.” Jacobson v.
         Jacobson, 

, ¶ 13, 

, 214–15.

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#30011

               divorce judgment, we will affirm that order if the court’s prior
               judgment was ambiguous as a matter of law . . . and . . . the
               court’s construction of its prior judgment is consistent with its
               language read as a whole and is objectively supported by the
               record.

Greenwood v. Greenwood, 

, 360–61 (Me. 2000) (cleaned up). 8

[¶27.]         In this case, then, our first task is to consider whether the parties’

Agreement contains an ambiguity. If it does not, there is no need for construction,

and we must simply apply the text. Coffey v. Coffey, 

, ¶ 9, 

 (citing Pesicka v. Pesicka, 

, ¶ 6, 

).

However, if the Agreement is ambiguous, we must use our well-settled rules of

construction to determine its meaning. 

 Our test for ambiguity is more than a

function of the parties’ disagreement:

               A contract is not rendered ambiguous simply because the parties
               do not agree on its proper construction or their intent upon
               executing the contract. Rather, a contract is ambiguous only
               when it is capable of more than one meaning when viewed
               objectively by a reasonably intelligent person who has examined
               the context of the entire integrated agreement.

 (quoting Dowling Fam. P’ship v. Midland Farms, 

, ¶ 13, 

).

Ambiguity within the Agreement

[¶28.]         “Contractual stipulations in divorce proceedings are governed by the

law of contracts[.]” Roseth, 

, 

 (quoting Duran v.

Duran, 

, ¶ 7, 

). Generally, “[t]he ‘existence of a


8.       The Greenwood court also held that the “intent of the divorce court” controls
         in the effort to resolve an ambiguity “in a divorce judgment,” though “the
         intent of the parties” is relevant in determining the court’s intent. 

 n.4.

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#30011

valid contract is a question of law[,]’ which is reviewed de novo.” Koopman v. City of

Edgemont, 

, 

, 927–28 (quoting Behrens v.

Wedmore, 

, ¶ 20, 

).

[¶29.]       “If in dispute, however, the existence and terms of a contract are

questions for the fact finder.” 

 (quoting Behrens, 

, ¶ 20, 

). “We review the circuit court’s findings of fact under the clearly erroneous

standard of review.” Wiseman v. Wiseman, 

, 

.

In reviewing factual determinations for clear error, we will only set the circuit

court’s factual determination aside “if we are left with a definite and firm conviction

that a mistake has been made.” In re Estate of Eichstadt, 

, 

, 580 (quoting Action Mech., Inc. v. Deadwood Hist. Pres. Comm’n, 

, ¶ 12, 

).

[¶30.]       Whether this case involves a purely legal determination of the

existence of a contract or a factual question relating to disputed contract terms

turns largely upon what evidence the court could consider. Ordinarily, we would

read the text of an agreement as a whole and give effect to its terms as a matter of

law. Coffey, 

, ¶ 8, 

. However, where the text reveals

an ambiguity, courts may consider extraneous, or parol, evidence “to show what the

parties meant by what they said but not to show that they meant something other

than what they said.” Roseth, 

, 829 N.W.2d at 142–43 (quoting

Arrowhead Ridge I, LLC v. Cold Stone Creamery, Inc., 

, 

).




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[¶31.]          Here, the Agreement contained a conspicuous ambiguity. Though

paragraph 2.g. purported to allow Michael as “the Plaintiff” to claim the children as

dependents and file as head of household “[f]or tax year 2018 and each year

thereafter,” other text contained in the parties’ joint property exhibit expressed a

different intent. The joint property exhibit was incorporated as part of the

Agreement and included an entry that stated Tara “is entitled to claim the children

on her tax return” in 2018—the same year identified in paragraph 2.g. as the

commencement for claiming the children as dependents. This conflict results in a

genuine ambiguity concerning which party was entitled to claim the children as

dependents.

[¶32.]          Reading the exhibit’s “more than 50% of the time” rationale together

with the “Custody” section of the Agreement—providing that Tara would continue

to have the children more than 50% of the time—further reveals the ambiguity. A

reasonable interpretation of the notation on the schedule of the Agreement is that

having the children more than 50% of the time entitles that parent to claim the

children as dependents in each successive year, 9 creating tension with paragraph

2.g. 10




9.        This view corresponds with federal law. See 

(e)(B) (providing
          that if, among other things, a “child is in the custody of 1 or both of the child’s
          parents for more than one-half of the calendar year, such child shall be
          treated as being the qualifying child” for dependent exemption purposes).

10.       The Agreement’s use of “Plaintiff” in paragraph 2.g. and “Mother” and
          “Father” elsewhere does not, itself, constitute an ambiguity, but it could be
          relevant to whether paragraph 2.g. accurately reflected the parties’ intent.

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Factual inquiry into the parties’ intent

[¶33.]        With an ambiguity established, the circuit court was authorized to

consider parol evidence in order to determine whether the parties intended that

Tara would claim the children as dependents. The court’s corresponding analysis

focused upon the testimony and the evidence the parties presented. As a result, we

will apply our deferential clear error standard of review and “give due regard to the

[trial] court’s opportunity to observe the witnesses” and determine “[t]he credibility

of the witnesses.” Stockwell v. Stockwell, 

, 

(first alteration in original) (citation omitted); see also Peterson v. Issenhuth, 

, ¶ 15, 

 (“On review, this Court defers to the circuit court,

as fact finder, to determine the credibility of witnesses and the weight to be given to

their testimony.” (quoting Hubbard v. City of Pierre, 

, ¶ 26, 

)).

[¶34.]        Performing its quintessential fact-finding role, the court weighed the

conflicting parol evidence concerning the parties’ intent and found:

              The actions of the parties, the credible testimony of Tara and
              the certainty with which Carper acknowledged that a mistake
              was made in the drafting of paragraph 2.g. of the Stipulation
              and Agreement are all consistent with the parties believing and
              intending that Tara would be entitled to claim the minor
              children as dependents and file with head of household status.

[¶35.]        The circuit court expressly rejected Michael’s contrary factual

assertions and made an adverse credibility determination:

              Michael testified that he knew that the Stipulation and
              Agreement allowed him to claim the minor children as
              dependents and for head of household filing purposes but did not
              mention it in 2018, 2019 or 2020 because he did not want to


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#30011

             “rock the boat[.]”[ ] Michael’s testimony in this regard is not
             credible.

[¶36.]       This finding takes on additional significance when considered with the

operative text of paragraph 2.g., which pairs the claiming of the children as

dependents with the federal income tax head of household status:

             For tax year 2018 and each year after that Plaintiff shall be
             entitled to claim [the two minor children] as dependents and
             head of household for Federal, State, or Local tax purposes.

(Emphasis added.)

[¶37.]       This provision can only be interpreted as an acknowledgement that the

same person was “entitled to claim” the children as dependents and the head of

household designation. But, as Tara alleges and Michael does not dispute, Michael

is ineligible to claim head of household status, supporting the circuit court’s view

that he was also not the person entitled to claim the children as dependents. See 

(b) (definition of head of household).

[¶38.]       Under the circumstances presented here, the circuit court’s finding

that the parties intended the Agreement to allow Tara to claim the children as

dependents was not clearly erroneous. And though the parties and the court relied

upon Rule 60(b), rather than simply interpreting its own judgment, any error was

not consequential because it did not prevent the court from undertaking the correct

inquiry regarding the Agreement. See Bunkers v. Jacobson, 

, ¶ 23,

 (“Where a judgment is correct, this court will not reverse

although it was based on incorrect reasons or erroneous conclusions.” (quoting

Poindexter v. Hand Cnty., 

, ¶ 16, 

)).



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Motion for Contempt

[¶39.]       “The purpose of the civil contempt power is to force a party to comply

with orders and decrees issued by a court in a civil action.” Metzger v. Metzger,

, 

, 718 (citation omitted). “For this reason, civil

contempt is coercive in nature” and “seeks to compel the person to act in accordance

with the court’s order, rather than to punish for past conduct.” Hiller v. Hiller, 

, ¶ 20, 

 (cleaned up). “The required elements for . . .

civil contempt are (1) the existence of an order; (2) knowledge of the order; (3)

ability to comply with the order; and (4) willful or contumacious disobedience of the

order.” Taylor v. Taylor, 

, 

 (alteration in

original) (quoting Keller, 

, ¶ 9, 

). The circuit court’s

findings regarding civil contempt are reviewed for clear error. Metzger, 

, 958 N.W.2d at 719.

[¶40.]       The circuit court determined, and we have now agreed, that the

Agreement was ambiguous, and it was not clear as to who should be able to claim

the children as dependents for tax purposes. This determination alone is sufficient

to support the circuit court’s finding that Tara did not willfully disobey the order.

See Keller, 

, ¶ 10, 

 (holding that an order must be

“clear, specific and unambiguous” to support a finding of contempt).

Motion for Attorney Fees

[¶41.]       “The circuit court’s allowance or disallowance of attorney’s fees is

reviewed for abuse of discretion.” Nickles v. Nickles, 

, ¶ 34, 

. “The court, if appropriate, in the interests of justice, may award payment


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of attorneys’ fees in all cases of divorce, annulment of marriage, determination of

paternity, custody, visitation, separate maintenance, support, or alimony.” SDCL

15-17-38.

[¶42.]       “A two-step process is typically used” when awarding attorney fees in

divorce, support, or alimony cases, which reflects the court’s obligation to first

“determine what constitutes a reasonable attorney fee” and then “determine the

necessity for such a fee.” Nickles, 

, ¶ 34, 

 (quoting

Huffaker v. Huffaker, 

, 

). The first step,

regarding the reasonableness of the fee award, considers “(1) the amount and value

of the property involved, (2) the intricacy and importance of the litigation, (3) the

labor and time involved, (4) the skill required to draw the pleadings and try the

case, (5) the discovery utilized, (6) whether there were complicated legal problems,

(7) the time required for the trial, and (8) whether briefs were required.” 

 The

second step has its own unique considerations apart from the reasonableness of the

award and considers the necessity of the award by examining “the parties’ relative

worth, income, liquidity, and whether either party unreasonably increased the time

spent on the case.” 

[¶43.]       Regarding these factors, “[t]he trial court is required to make specific

findings . . . .” Smetana v. Smetana, 

, ¶ 20, 

(quoting Crisman v. Determan Chiropractic, Inc., 

, ¶ 30, 

). Here, the circuit court made sufficient factual findings to support the

determination that the award of attorney fees was necessary. However, the court

made no findings regarding the factors relating to the reasonableness of the


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attorney fees aside from describing the fees as modest. Therefore, we vacate the

award of attorney fees and remand for further proceedings. 11

                                      Conclusion

[¶44.]         Though the case did not implicate Rule 60(b), the circuit court,

nevertheless, possessed authority to clarify its own judgment. Because the

Agreement was ambiguous, the court could properly consider parol evidence, and its

factual determination that the parties intended to allow Tara to claim the children

as dependents was not clearly erroneous; nor was its related conclusion that the

Agreement should have been written to allow Tara to claim the children as

dependents. As a result, the court’s determination that Tara did not deliberately

violate the court’s order was equally supportable. However, the court did not make

the required findings of fact to support its award of attorney fees. Therefore, we

affirm in part, reverse in part, and remand for further proceedings.

[¶45.]         JENSEN, Chief Justice, and KERN, DEVANEY, and MYREN,

Justices, concur.




11.      Tara also requests an award of appellate attorney fees, which we decline in
         the exercise of our discretion.

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