2016 S.D. 96
MICHAEL F. COFFEY, Defendant and Appellant. DEBRA R. TECH COFFEY, Plaintiff and Appellee,
CONSIDERED ON BRIEFS ON AUGUST 29, 2016
FROM THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT MCCOOK
COUNTY, SOUTH DAKOTA THE HONORABLE TIMOTHY W. BJORKMAN Judge
ZAHRBOCK KOOL of Lockwood & Zahrbock Kool Law Office
Attorneys for plaintiff and appellee.
MICHAEL E. UNKE Salem, South Dakota Attorney for defendant
Debra R. Tech Coffey sought a divorce from Michael F. Coffey.
They entered into a stipulation and agreement (Agreement) to
resolve all issues and divide their property and debt.
Paragraph 2 of the Agreement awarded the marital home to
Michael, divided responsibility for the two mortgages on the
home, and declared that should the home be sold, the proceeds
from the sale would first be used to pay off any sum
remaining on the mortgages.
Michael sold the home in April 2015 and used the proceeds of
the sale to pay off both mortgages. He requested
reimbursement from Debra for the mortgage debt assigned to
her. She refused to reimburse him. Michael filed a motion for
an order to show cause, asking the circuit court to hold
Debra in contempt and enter a judgment against her for the
amount he paid on her mortgage plus interest. The circuit
court denied his motion. Michael appeals. We affirm.
Michael and Debra married on February 14, 1987. On February
18, 2010, they entered into the Agreement, which divided
their property and debt. Debra's counsel drafted the
Agreement. This case concerns the first two sections of
Paragraph 2 of the Agreement:
Defendant shall be awarded the marital residence . . . . The
Plaintiff will be responsible for the 1st mortgage at Bank of
America and shall have the length of the loan to either pay
it off or refinance it. Plaintiff will save and hold harmless
the Defendant from any liability on said mortgage. Defendant
will be responsible for the second at Service First Credit
Union and shall have the length of the loan to either pay it
off or refinance it. Defendant will save and hold harmless
the Plaintiff from any liability on said mortgage. Defendant
agrees to be responsible for the taxes and insurance on said
If Defendant would sell the home prior to the 1st or 2nd
mortgage being paid in full, then upon sale of the home these
mortgages will be paid in full first out of the proceeds of
February 23, 2010, the circuit court signed a judgment and
decree of divorce, which incorporated the Agreement.
On April 10, 2015, Michael sold the home and used the
proceeds from the sale to extinguish both mortgages. He
immediately sought reimbursement from Debra for the $56,
040.35 he paid to satisfy the remaining balance on the first
mortgage. Debra refused to pay him.
On August 17, 2015, Michael filed a motion for an order to
show cause, seeking to have Debra held in contempt. He
requested judgment against Debra in the amount of $56, 040.35
plus prejudgment interest accrued from the date of sale and
attorney's fees. In November 2015, with the parties'
consent, the court held a hearing on the interpretation of
the contract but did not address the contempt portion of the
motion because notice was inadequate. The court told the
parties if it determined the contract was ambiguous, it would
hold a hearing to take evidence of the parties' intent
and on the issue of contempt. On December 28, 2015, the court
issued a memorandum decision and order denying Michael's
motion. The court held: (1) the Agreement was unambiguous,
and its plain meaning did not require Debra to reimburse
Michael; (2) reimbursement would constitute an improper
modification of the property division; and (3) because Debra
had no duty to reimburse Michael, she was not in contempt.
We restate Michael's issues as follows:
1. Whether the circuit court erred in its interpretation of
the Agreement as unambiguous and not requiring reimbursement.
2. Whether the circuit court erred in holding that an order
for reimbursement would constitute an impermissible