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Kaberna v. Brown

Supreme Court of South Dakota

May 20, 2015

KAREN BROWN and DAVID BROWN, Defendants and Appellants

Considered on Briefs March 23, 2015.

Page 498


TIMOTHY R. WHALEN, Lake Andes, South Dakota, Attorney for plaintiffs and appellees.

WANDA HOWEY-FOX of Harmelink, Fox & Ravnsborg, Yankton, South Dakota, Attorneys for defendants and appellants.

WILBUR, Justice. GILBERTSON, Chief Justice, and ZINTER, SEVERSON, and KERN, Justices, concur.


Page 499

WILBUR, Justice

[¶1] Karen and David Brown appeal a judgment by the circuit court ordering the partition in kind of real estate in which they owned an undivided one-fourth interest with Karen's siblings and their respective spouses. We affirm.


[¶2] Frank E. Kaberna (Frank E.) and Josephine Kaberna established two trusts, each in their respective names, on December 19, 1996, for the equal disposition of real property, " share and share alike," to their four children: Karen, Frank, Jean, and Don. The two trusts were funded with 533 acres of real property consisting of crop land, pasture land, and a homestead (Homestead). The Homestead consisted of a residence (Homestead Residence), livestock facilities, grain storage, equipment storage, and other assorted buildings. Most of the trust property has been owned by the Kaberna family for over 70 years.

[¶3] Frank E. died in 2000, and Josephine died in 2003. Karen and Don served as successor trustees. In April 2012, the trust property was finally distributed in accordance with the terms of the two trusts. Each of the four children, along with their spouses, received a one-fourth undivided interest in the real property. Don, who died prior to the commencement of the underlying action, is survived by his wife Carol Lynn Kaberna. In the end, the real property subject to this action was owned one-fourth by Frank, one-fourth by Karen and David, one-fourth by Jean and Robert Rademacher, and one-fourth by Carol individually and as the legal representative of Don's estate and trust.

[¶4] Jean is married to Robert Rademacher (Bob). Jean and Bob reside in Huron, South Dakota. Carol lives outside of Wagner, South Dakota, on farmland that she and Don acquired. Frank is unmarried and lives at the Homestead Residence, where he has lived for over 20 years. Frank farms approximately 700 acres of land and stores his farm equipment in the buildings located on the Homestead. He also raises guinea hens, peacocks, geese, and ducks at the Homestead.

[¶5] The Browns own and live on a farm immediately adjacent to the Homestead. The Browns own a second farm, which they are currently selling to their daughter on an installment basis. The Browns operate over 1,100 acres of land. Upon Frank E.'s death in 2000, Karen purchased Frank E. and Josephine's cattle, sheep, and hogs (the Livestock Operation). The Livestock Operation consists of about 150 cattle, 50 sheep, and 15 hogs. The Browns used most of the pasture land surrounding the Homestead for the sheep and cattle. They also used the feedlot, pens, and outbuildings for their Livestock Operation.

[¶6] Upon Josephine's death in 2003, the Browns leased crop and pasture land surrounding the Homestead. Before Don died, Don and Carol met with the Browns and specifically told Karen that they would not reimburse her for the cost of any improvements that she made to the real property, and that if she did make any

Page 500

improvements, she did so at her own peril. The leases further required Karen to maintain and repair the facilities on the leased premises at her own expense. Indeed, the Browns made improvements to some of the property located on the Homestead. The improvements included a new fence, the replacement of old gates, the replacement of loaders at the silo, and the addition of a large livestock chute. The Browns paid for the improvements at a total cost of $41,072.

[¶7] Frank, Jean, Bob, the Estate of Don, and the Donald Kaberna Trust (collectively, " the Plaintiffs" ) brought the underlying partition action against the Browns. At trial, the Browns offered extensive evidence of the antagonistic history between the parties. The circuit court found, " It is abundantly clear . . . that the Kaberna siblings do not get along." The court acknowledged that " evidence of the alleged 'fault' between the parties is not probative of the issues before the [c]ourt, but clearly shows the [c]ourt that a partition of the real property subject of this action is paramount to the well being of the Kaberna family." The Plaintiffs and the Browns both agreed that any partition ordered by the court should be fashioned so that Frank and Karen do not have regular contact with each other.

[¶8] The Plaintiffs retained the services of Bryan Maas (Maas), a certified appraiser from Maas & Associates, Inc., to appraise the real property. Maas appraised the property at a value of $1,600,000.[1] The Browns did not dispute the value of the appraisal. In addition, Maas submitted a partition proposal for dividing the real property (the Maas Plan). The Maas Plan divided the crop and pasture land between the parties and carved out a small, six-acre tract of land for Frank that included the Homestead Residence as well as a ...

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