Shevling v. Major

#31196, #31203-aff in pt & rev in pt-RG
2026 S.D. 27

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

JESSICA LYN SHEVLING, Plaintiff and Appellant
(#31196); Plaintiff and Appellee
(#31203),

v.

DEVIN JERMAINE MAJOR, Defendant and Appellee
(#31196); Defendant and
Appellant (#31203).

APPEAL FROM THE CIRCUIT COURT OF
THE FIRST JUDICIAL CIRCUIT
CHARLES MIX COUNTY, SOUTH DAKOTA

THE HONORABLE BRUCE V. ANDERSON
Judge

JESSICA LYN SHEVLING
Dayton, Ohio Pro se appellant (#31196)
Pro se appellee (#31203).

DEVIN JERMAINE MAJOR
Winchester, California Pro se appellee (#31196)
Pro se appellant (#31203).

CONSIDERED ON BRIEFS
MARCH 17, 2026
OPINION FILED 05/13/26
#31196, #31203

GUSINSKY, Justice

[¶1.] Jessica Shevling and Devin Major were married for nearly 20 years at

the time of their divorce. Both parties served in the military during their marriage.

Before their divorce, the parties signed a separation agreement in July 2020 with

various conditions, including the condition that Shevling would receive

$1,500/month maintenance payments until their divorce was finalized, and the

condition that Shevling would receive a 20% share of Major’s military retirement

pay when he retired. Portions of the separation agreement were incorporated into

the divorce decree in February 2021. Major subsequently failed to pay several

months of the support payments and did not pay Shevling any of the required

retirement payments. Shevling sought to hold Major in contempt of court and

sought modification of the divorce decree. The circuit court declined to hold Major

in contempt of court and denied Shevling’s modification request, but it reduced

Shevling’s share of Major’s retirement pay from 20% to 16.1%. Shevling and Major

both filed separate appeals that we consolidated by order. We affirm in part and

reverse in part.

Factual and Procedural History

[¶2.] Jessica Shevling (Wife) and Devin Major (Husband) were married on

April 14, 2001, in Maryville, Missouri, and both were serving in the armed forces at

the time.1 Wife’s service with the U.S. Navy ended in 2002, but she resumed her

military service in 2020 as a commissioned U.S. Air Force officer. In July 2020,

1. Two children were born of their marriage, and both are now over the age of
eighteen.
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Husband and Wife were both stationed as active-duty service members in Okinawa,

Japan, when they decided to separate.

[¶3.] The parties negotiated a separation agreement on July 31, 2020, and

had the agreement notarized through the military Judge Advocate General’s office

in Okinawa. Husband had legal counsel, and Wife proceeded unrepresented despite

being advised to obtain her own counsel. The relevant provisions of the separation

agreement read:

6. Maintenance. The Husband agrees to pay to the Wife, as
and for her maintenance and support, One Thousand Five
Hundred Dollars ($1,500.00) per month payable in equal
monthly installments commencing on the first day of the month
following the date of this Agreement, and continuing on the first
day of each succeeding month, until the earlier of the death of
either party or the divorce is final.

[. . .]

11. Military Retirement Benefits. The Husband agrees to
pay the Wife, as a further equitable division of their property
rights, 20 percent of his disposable retired pay, as defined in 10
U.S.C. Sec. 1408, from his service with a branch of the armed
forces:

(a) Said payments shall be made to the Wife when the
Husband receives said retired pay and shall be made to
the Wife until her or the Husband dies. [. . .]

(d) The Wife’s portion of said gross retired pay shall be
paid directly to her by the payer thereof from the
disposable retired pay of the Husband each month, if such
direct payments are legally permissible. All amounts due
hereunder to the Wife and not paid directly to the Wife by
the payer of the Husband’s retired pay shall be paid
directly by the Husband to the Wife monthly within 10
days of the receipt of the payment of retired pay by the
Husband. All payments not so paid by the Husband to
the Wife shall bear interest at the rate of 8% per annum
from the due date until paid. The Wife and Husband
understand that, due to regulations governing the

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disbursement of disposable retired pay to former spouses,
the amount of retired pay paid directly to the Wife may be
less than the amount the Husband is obligated to pay
hereunder to the Wife.

(e) “Gross retired pay” as used herein shall mean the
total and full amount of retired pay due the Husband
without any deductions or diminutions as is otherwise
provided in 10 U.S.C. Sec. 1408 for calculating “disposable
retired pay.”

[. . .]

12. Military Survivors Benefit Program. Upon the
Husband’s retirement from the Armed Forces, the Husband
shall elect to participate in the military sponsored Survivors
Benefit Program and shall designate the Wife as the beneficiary
thereof at the maximum rate available in the event the Wife
survives the Husband. The Husband shall execute such
documents to this end as may be required, however, the Wife
agrees to pay either directly to the program or to the Husband
any and all costs or fees associated with participating in this
benefits program.

[. . .]

15. Legal Representation. In connection with this
Agreement, the Husband has had the benefit of the advice of the
Legal Assistance Office Camp Foster, Okinawa, Japan[,]
independent counsel of his own selection. The Wife has been
advised to select and obtain counsel to represent her in
this matter.

[¶4.] During the separation, Wife moved to Charles Mix County and

instituted a pro se divorce proceeding on October 15, 2020. Wife filed a summons

and complaint and attached a copy of the July 2020 separation agreement. In

January 2021, the parties submitted a stipulation and settlement agreement to the

court. The stipulation and settlement agreement incorporated sections 10,2 11, and

2. Section 10 of the separation agreement related to military privileges of
Husband and Wife’s two children. It is not relevant to this appeal.
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12 from the July 2020 separation agreement. Both parties agreed to abide by these

provisions. The circuit court incorporated the stipulation and settlement agreement

and entered a decree of divorce which was filed on February 4, 2021. At the time

the divorce decree was entered, Husband had not paid Wife the $1,500/month

maintenance payments in accordance with section 6 of the separation agreement for

several months. He did, however, make a $2,500 payment to Wife in November

2020.

[¶5.] Husband later retired from the military on February 12, 2024.

Pursuant to the February 2021 decree of divorce and the incorporated separation

agreement, Wife was to be awarded a portion of Husband’s military retirement and

be designated as a recipient of his Survivor’s Benefit Plan (SBP). Husband’s first

payment to Wife would have been due when he received his first retirement check

in March 2024, but Husband did not make any of the required 20% payments in

accordance with section 11 of the separation agreement and section 10 of the

stipulation and settlement agreement.

[¶6.] On October 4, 2024, Wife filed a motion and affidavit for an order to

show cause, alleging Husband had failed to comply with the stipulation and

settlement agreement because he had not paid her 20% of his disposable retired pay

for the last seven months. She also alleged he had not completed the paperwork for

the SBP. In response, Husband first asserted that Wife did not provide sufficient

information for the SBP election. Further, he argued that Wife did not properly

apply for retirement benefits with the Defense Finance and Accounting Service

(DFAS)—a Department of Defense agency that handles finance and accounting

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services for military personnel—to determine an accurate dollar amount owed and

to initiate automatic payments from DFAS. On November 4, 2024, the circuit court

granted the order to show cause and scheduled a hearing. The hearing was

continued several times before being set for February 26, 2025.

[¶7.] Before the hearing, in January 2025, Wife filed several pro se motions.

The first was another motion and affidavit for an order to show cause, requesting an

additional three months (ten months total) of retirement payments. On the same

day, Wife filed a motion to modify the divorce decree, alleging she had “contacted

the [DFAS] to set up direct payment[,] but they require[d] the divorce decree to

provide” additional information as to the percentage the former spouse is awarded

and the member’s years of creditable service.

[¶8.] Wife attached to this motion a letter from DFAS dated October 11,

2024. The letter demonstrated that Wife had contacted DFAS and submitted an

application for payment of a portion of Husband’s retirement pay. Wife’s

application was rejected, however, and she was informed that the previous court

order regarding military retirement was insufficient and did not meet legal

requirements for disbursement. The letter stated: “Your application cannot be

approved for the following reason(s): You must complete and submit the . . . DD

Form 2293. The form may be obtained through our website . . . . The court order

did not provide all the necessary elements required to calculate the division of the

retirement.”

[¶9.] The DFAS letter went on to describe the definition of “disposable pay”

as it was revised in 2018, stating DFAS needed a “certified copy of an amended

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order” which provides Husband’s “high-3” amount3 at the time of divorce, years of

creditable service at the time of divorce, and a fixed amount or percentage that Wife

is awarded. As it related to the SBP election, the letter explained: “If your divorce

decree specifies that you are to be designated as a former spouse beneficiary for the

[SBP], you must make a ‘deemed election’ for SBP coverage within one year of the

date of your divorce or other court order requiring SBP coverage[.]” Wife was

instructed to submit a DD Form 2656-10 to DFAS in order to make the SBP

election.

[¶10.] After Wife’s pro se motions were filed, the February 26, 2025 hearing

was rescheduled for April because Husband’s counsel had a conflict. The circuit

court instructed Husband and his counsel to inform Wife that the hearing date had

been changed. But because of Husband’s counsel’s failure to include Wife on an

email thread, Wife did not receive notice that the hearing was rescheduled. Wife

traveled from Ohio to South Dakota to appear at the hearing in February 2025.

When Wife was informed that the hearing had been rescheduled and that

Husband’s counsel was at fault for her lack of notice, the circuit court advised her

that she could move for reimbursement of travel costs, which she did. The court

later awarded her $900 in travel costs for this trip. Again, during this hearing, the

3. The high-3 amount is determined under the provisions of federal statutory
law. See Parker v. Parker, 2023 S.D. 5, ¶ 9, 985 N.W.2d 58, 61 (citing 10
U.S.C. § 1407(b)). For regular service, the high-3 amount is generally
calculated as the quotient of “(A) the total amount of monthly basic pay to
which the member was entitled for the 36 months (whether or not
consecutive) out of all the months of active service of the member for which
the monthly basic pay to which the member was entitled was the highest,
divided by (B) 36.” 10 U.S.C. § 1407(c)(1).
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court encouraged Wife to obtain counsel and told her that it “would be helpful to

your efforts here, but it’s up to you.”

[¶11.] In March 2025, Husband filed a motion to dismiss Wife’s motion to

modify the divorce decree, arguing “[t]he divorce property division is final and not

modifiable[.]” In his affidavit in support, Husband represented that he had

consulted with DFAS, and that DFAS needed a court order submitted along with a

DD Form 2293—the form Wife needed to complete which specified the value or

percentage from the formula that matches the court order.

[¶12.] In April 2025, Wife filed another pro se motion for modification of the

property division, alleging she was now entitled to 42% of Husband’s retirement pay

instead of the 20% awarded via divorce decree. She claimed this was so “based on

the military calculation of retirement pay to former spouses.” She again reiterated

her claim that Husband had not paid her several $1,500/month maintenance

payments owed under the July 2020 separation agreement. She further alleged

Husband engaged in “fraudulent conduct and unconscionable actions” related

primarily to child custody and living arrangements, and that this was grounds to

modify the property division in the stipulation agreement.

[¶13.] A hearing was held on all pending motions on April 23, 2025. Husband

was represented by legal counsel, and Wife, pro se, appeared remotely. At the

hearing, Wife asked the court to modify the 20% retirement allotment in the

stipulation agreement, “given [Husband’s] actions, and how he changed everything

that [she] had agreed to and the relationship during . . . [their] marriage, during the

separation and after the divorce have been due to the [sic] not following court

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orders.” Husband objected, insisting that it was well-established that property

division agreements could not be modified. The court agreed and denied Wife’s

motion to modify the division.

[¶14.] On the contempt issue, the court found that the underlying order was

“vague, mostly because it was done on a pro se basis. And it’s insufficient presently

to form the basis of a contempt motion.” Because the order was vague, Husband

“didn’t know how much [he was obligated to pay Wife out of his retirement pay] and

couldn’t comply with the order. . . . The order is simply too vague and convoluted at

this time for [the court] to find that he willfully and contumaciously disobeyed a

court order.”

[¶15.] On the issue of the missed $1,500/month maintenance payments,

Husband argued that the parties waived support in the divorce decree, and that he

has paid all the support owed in the separation agreement. Wife replied that

Husband did not make payments from October 2020 to February 2021. The court

made the same finding as it did in relation to the missed retirement payments—

that Husband could not be held in contempt because the order was vague and

unclear. But the court noted that it had “to decide if [Wife] gets any undue balance

on the [$1,500/month].”

[¶16.] On July 24, 2025, the circuit court entered an order and a written

memorandum decision. It emailed its decision, including its findings of fact and

conclusions of law, to both parties and specified that “[t]his email is intended as

notice of entry of the [c]ourt’s decision and will be printed and filed by the Clerk.”

In its decision, the circuit court did not hold Husband in contempt of court for

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nonpayment, as it was Wife’s “obligation to get a proper [c]ourt order for deduction

from the Department of Defense.” The court also noted the “complicated nature of

calculating the retirement pay portion awarded to Wife” and that “questions as to

the amount and calculation thereof and the lack of clarity in this [c]ourt’s decree”

existed at the time Husband was expected to make payments.

[¶17.] The court stated: “It was the parties’ intent that the Wife was to

receive 20 percent of the amount allowed under § 1408, as may be calculated by the

Department of Defense. No further interpretation needs to be made in order to

resolve this issue. The Wife will receive 20 percent of the current amount allowed

as per § 1408, including any additions thereto by cost-of-living adjustments or

otherwise as deemed appropriate or allowable under 10 U.S.C. 1408.”

[¶18.] The court then awarded Wife “a percentage of the marital portion of

[Husband’s] disposable military retired pay, which is computed by multiplying 20

percent (20%) times the fraction, the numerator of which is 238 months of marriage

during [Husband’s] creditable military service, divided by [Husband’s] total number

of months of creditable service, which is 295 months.” This calculation reduced

Wife’s share of Husband’s disposable retirement pay from 20% to 16.1%. The court

then directed DFAS to calculate Husband’s disposable retired pay in accordance

with 10 U.S.C. § 1408. In the meantime, it ordered Husband to immediately start

paying 20% of his current retirement payments, and that the amounts would be

later adjusted for any over or under payment.

[¶19.] With regard to back-due maintenance and support, the court found

husband owed $5,000, computed by adding five months of missed payments and

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subtracting the credited $2,500 payment in November 2020. The court ordered

Husband to pay 8% interest on the missed payments. With regard to the SBP

election, the court found the parties agreed in section 12 of their separation

agreement that Husband would enroll in the SBP and designate Wife as his

beneficiary. It then gave Husband 30 days to file the paperwork necessary to get

the benefits in place, allowing Wife to file further motions for relief if such

paperwork was not filed.

[¶20.] On Wife’s motion to modify the property distribution due to fraud and

coercion, the court found:

[T]here has been no fraud and . . . both parties are at fault in the
current situation. Wife was the one who prepared the divorce
papers and submitted them to the [c]ourt, and she was the one
who would have been notified, upon reading the South Dakota
Unified Judicial System pro se forms, that she needed to seek
legal assistance in making sure that her decree was proper and
correct for her to be able to receive her share of Husband’s
retirement benefits. This she did not do.

[¶21.] Wife filed a notice of appeal in Appeal No. 31196. On August 25, 2025,

Husband filed a motion for a new trial, a Rule 60(b) motion for relief from judgment,

and a notice of appeal. Husband’s appeal was docketed as Appeal No. 31203.4 We

entered an order consolidating the appeals. In appeal No. 31196, Wife raises the

following issues for our review:

1. Whether the circuit court abused its discretion when it
denied Wife’s motion to vacate the divorce decree.

2. Whether the circuit court erred in calculating Wife’s share
of Husband’s retirement payment.

4. Husband’s counsel withdrew from the case in September 2025.
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3. Whether the circuit court erred in applying an 8% interest
rate to Husband’s maintenance and support arrearages.

4. Whether the circuit court erred in calculating Husband’s
maintenance and support arrearages.

5. Whether the circuit court committed clear error in
dismissing Wife’s motions for contempt of court.

6. Whether the circuit court abused its discretion by denying
Wife’s request for a universal life insurance policy instead
of a Survivor Benefit Plan.

7. Whether the circuit court violated Wife’s due process
rights under the Fourteenth Amendment.

[¶22.] In Appeal No. 31203, Husband raises one issue for our review: whether

the circuit court abused its discretion in declining to take testimony at the April

2025 motions hearing.

Analysis

Wife’s Appeal No. 31196

1. Whether the circuit court abused its discretion when
it denied Wife’s motion to vacate the divorce decree.

[¶23.] “The circuit court’s decision to grant or deny relief under Rule 60(b)

will not be disturbed on appeal unless the circuit court abused its discretion.”

Estate of Mack, 2025 S.D. 7, ¶ 13, 17 N.W.3d 874, 879 (quoting Hiller v. Hiller, 2015

S.D. 58, ¶ 21, 866 N.W.2d 536, 543). “An abuse of discretion ‘is a fundamental error

of judgment, a choice outside the range of permissible choices, a decision, which, on

full consideration, is arbitrary or unreasonable.’” Id. (quoting Gartner v. Temple,

2014 S.D. 74, ¶ 7, 855 N.W.2d 846, 850). “Pursuant to an abuse of discretion

standard of review, factual determinations are subject to a clearly erroneous

standard.” Id. (quoting State v. Guthrie, 2002 S.D. 138, ¶ 5, 654 N.W.2d 201, 203).

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Under the clearly erroneous standard, “we will only reverse when we ‘are left with a

definite and firm conviction that a mistake has been made’ after [undertaking] a

thorough review of the evidence.” Estate of Olson, 2008 S.D. 97, ¶ 9, 757 N.W.2d

219, 222 (citation modified). In reviewing findings for clear error:

The question is not whether this Court would have made the
same findings that the trial court did, but whether on the entire
evidence we are left with a definite and firm conviction that a
mistake has been committed. This Court is not free to disturb
the lower court’s findings unless it is satisfied that they are
contrary to a clear preponderance of the evidence. Doubts about
whether the evidence supports the court’s findings of fact are to
be resolved in favor of the successful party’s “version of the
evidence and of all inferences fairly deducible therefrom which
are favorable to the court’s action.”

Id. (quoting Osman v. Karlen & Assocs., 2008 S.D. 16, ¶ 15, 746 N.W.2d 437, 442–

43).

[¶24.] In May 2025, Wife moved the circuit court under Rule 60(b)(3)5 “to

reconsider its dismissal of the contempt motion and to modify the property division

set forth in the divorce decree.” The motion was brought on grounds of “fraud,

misrepresentation, misconduct, and duress, and in accordance with SDCL 25-4-41,

which mandates an equitable distribution of marital property.” These complaints

primarily arose out of Husband’s failure to pay Wife her portion of his retirement

and the $1,500/month support payments. Wife attached voluminous records to her

5. On appeal, Wife argues the application of Rule 60(b)(6). Because her motion
in front of the circuit court was made under Rule 60(b)(3), however, we
consider her arguments under that subsection. See Hauck v. Clay Cnty.
Comm’n, 2023 S.D. 43, ¶ 4 n.4, 994 N.W.2d 707, 709 n.4 (“Arguments not
raised at the trial level are deemed waived on appeal.” (citation omitted)).
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motion, including many text messages and documented communications between

Husband and Wife.

[¶25.] The circuit court considered Wife’s motion and her attached exhibits

and addressed them in its July 24, 2025 decision. In its decision, the court found

that “there has been no fraud and that both parties are at fault in the current

situation. . . . Some of the problems that are currently in front of the [c]ourt are due

to these errors on behalf of the Wife. She cannot now get relief because of her own

pro se legal work deficiencies.” Thus, the court found no coercion or fraud to justify

relief.

[¶26.] On the record before us, this finding was not clearly erroneous. Other

than conclusory arguments, Wife did not present any evidence indicating Husband

coerced Wife into signing either the separation or stipulation agreement. In fact,

Wife was the one who prepared the pro se forms and filed for divorce in Charles Mix

County. The court’s finding is further supported by the fact that, by the court’s own

admission, the court’s previous order was unclear and did not provide Husband or

DFAS with proper direction in how to divide Husband’s retirement. Denying Wife’s

motion for Rule 60(b) relief was not a choice outside the range of permissible

choices.

[¶27.] In a similar argument, Wife argues the property division was

procedurally and substantively unfair based on the amount of assets awarded to her

and the fact that she agreed to accept only 20% of Husband’s retirement,

demonstrating what she claims is a “clear imbalance in asset distribution.” In front

of the circuit court, Wife sought modification of the order to award her 40% or 42%

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of Husband’s military retirement instead of 20%. On appeal, she argues for the first

time that she should be awarded “fifty percent of [Husband’s] total military

retirement.” In an affidavit, Wife claims that she “conceded substantial rights

during the divorce proceedings” while “unrepresented by counsel and under

significant duress.” She further claims these “concessions were made without

informed legal advice and under circumstances that did not allow for fair

negotiation.”

[¶28.] The circuit court recognized these concerns, but concluded:

Wife was the one who prepared the divorce papers and
submitted them to the [c]ourt, and she was the one who would
have been notified, upon reading the South Dakota Unified
Judicial System pro se forms, that she needed to seek legal
assistance in making sure that her decree was proper and
correct for her to be able to receive her share of Husband’s
retirement benefits.

[¶29.] With respect to the July 2020 separation agreement, section 15

confirms Wife was informed she should obtain her own independent counsel. Wife

voluntarily chose to forego the option to obtain legal counsel of her own. Nothing in

the record indicates the parties did not enter both the July 2020 separation

agreement and the divorce stipulation agreement freely and knowingly. “Absent

fraud or some other reason which would apply to any judgment, a divorce decree

which incorporates a property settlement agreement is a final and conclusive

adjudication and is not subject to later modification.” Beermann v. Beermann, 526

N.W.2d 127, 129 (S.D. 1995) (citing Jeffries v. Jeffries, 434 N.W.2d 585, 588 (S.D.

1989)). The circuit court did not abuse its discretion in refusing to grant Wife Rule

60(b) relief or modify the property division.

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2. Whether the circuit court erred in calculating Wife’s
share of Husband’s retirement payment.

[¶30.] In its July 24, 2025, order, the circuit court found that it needed to

“enter an amended or supplemental decree to comply with the parties’ initial intent

as laid out in their stipulation and agreement in the divorce decree and the

incorporated separation agreement.” This was so because the original order was

unclear and did not allow for DFAS to properly calculate the share of Husband’s

retirement pay that Wife was entitled to.

[¶31.] “We have treated ‘military retirement benefits . . . like any other asset

of the marriage and . . . subject to equitable distribution.’” Parker v. Parker, 2023

S.D. 5, ¶ 18, 985 N.W.2d 58, 63 (quoting Porter v. Porter, 1996 S.D. 6, ¶ 9, 542

N.W.2d 448, 450). We review the division of marital assets upon divorce for an

abuse of discretion, but “an error of law in a circuit court’s equitable division of

property ‘is never within the [discretionary] range of permissible choices and

necessarily constitutes an abuse of discretion.’” Id. (alteration in original) (quoting

Field v. Field, 2020 S.D. 51, ¶ 15, 949 N.W.2d 221, 224).

[¶32.] “Divorce stipulations are governed by the rules of contract; their

interpretation is a matter of law for the courts to decide.” Coffey v. Coffey, 2016 S.D.

96, ¶ 8, 888 N.W.2d 805, 808 (quoting Hisgen v. Hisgen, 1996 S.D. 122, ¶ 4, 554

N.W.2d 494, 496). “Matters of contract interpretation are questions of law reviewed

de novo, and ‘[w]hen interpreting a contract, this Court looks to the language that

the parties used in the contract to determine their intention.’” Suvada v. Muller,

2022 S.D. 75, ¶ 28, 983 N.W.2d 548, 558 (alteration in original) (quoting Charlson v.

Charlson, 2017 S.D. 11, ¶ 16, 892 N.W.2d 903, 908). “In order to ascertain the

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terms and conditions of a contract, we examine the contract as a whole and give

words their plain and ordinary meaning.” Id. (citation omitted). “When the

meaning of contractual language is plain and unambiguous, construction is not

necessary.” Coffey, 2016 S.D. 96, ¶ 9, 888 N.W.2d at 809 (quoting Pesicka v.

Pesicka, 2000 S.D. 137, ¶ 6, 618 N.W.2d 725, 726).

[¶33.] Wife argues the circuit court erred when it “reduc[ed Wife’s] agreed

20% share of [Husband’s] military retirement pay to [16.1%].” Wife claims the court

ignored the separation agreement and instead applied the “frozen benefit rule” to

reduce the payment. The “frozen benefit rule” is a change enacted by congressional

amendments under the National Defense Authorization Act for Fiscal Year 2017.

We recently explained the rule in Parker v. Parker:

Under the frozen benefit rule, the date of divorce serves as a
hypothetical retirement date for the purpose of calculating the
former spouse’s equitable share of a military spouse’s
retirement, the rationale being that it would be inequitable for
the former spouse to receive a share of the retired pay based
upon pay increases that occurred between the date of divorce
and the member’s actual date of retirement “to which the former
spouse made no contribution.”

2023 S.D. 5, ¶ 23, 985 N.W.2d at 64 (quoting Fulgium v. Fulgium, 203 A.3d 33, 40

(Md. Ct. Spec. App. 2019)).

[¶34.] Here, the language of the agreement reads: “the Husband agrees to

pay the Wife, as a further equitable division of their property rights, 20 percent of

his disposable retired pay, as defined in 10 USC § 1408, from his service with a

branch of the armed forces[.]” In the circuit court’s decision, the court recognized

both that the parties agreed to Wife’s 20% share of Husband’s military retirement,

and that 10 U.S.C. § 1408 instructs the court and governs what constitutes

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“disposable retired pay” when calculating this amount. The circuit court then

applied a coverture calculation6 to the agreed upon 20% figure to calculate the

marital portion of Husband’s retirement pay, finding that “Wife’s share of the

retirement based upon ‘disposable retired pay’ is not just simply 20 percent of what

Husband is currently receiving, but rather she gets a percentage of his retirement

that was earned during the marriage.”

[¶35.] The court found Husband served 238 months during the parties’

marriage, and that his total number of months of creditable service was 295

months. To determine the marital portion of Husband’s retirement pay subject to

division, the court divided the fraction, the numerator of which is 238 months of

marriage during service, and the denominator of which is the member’s total

months of creditable service, 295 months. Then, to determine Wife’s share, the

circuit court multiplied the fraction by the 20% figure agreed upon by the parties.

The application of this formula resulted in a figure equal to 16.1%. This

computation comports with the frozen benefit rule in that it limits Wife’s share to

Husband’s retirement pay by freezing the award at the date of the judgment. But

the circuit court’s coverture calculation goes further than the frozen benefit rule and

also limits Wife’s share to the retirement pay earned during the marriage, thereby

excluding Husband’s creditable service months earned during his service but prior

to the parties’ marriage. This application does not comport with section 11 of the

parties’ signed agreement.

6. A coverture calculation is a general method of determining the marital
portion of a pension or retirement benefit.
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[¶36.] The plain and unambiguous language of the parties’ agreement awards

Wife “20 percent of [Husband’s] disposable retired pay, as defined in 10 USC § 1408,

from his service with a branch of the armed forces[.]” The term “disposable retired

pay” is defined in 10 U.S.C. § 1408 as “the total monthly retired pay to which a

member is entitled” less amounts for statutory deductions inapplicable in this case.

10 U.S.C. §1408(4)(A)–(B). The section does not require the court to apply a

coverture calculation to exclude months of creditable service earned prior to the

marriage.

[¶37.] According to the letter Wife received from DFAS, in order for DFAS to

calculate the amount that must be withheld from the retiring spouse’s retirement

check, DFAS simply needs a divorce decree or property settlement order specifying

“[a] fixed amount, a percentage, a formula or a hypothetical that the former spouse

is awarded[.]” Here, that percentage was the 20% the parties agreed to, and

nothing in section 11 of the agreement limits Wife’s share of Husband’s disposable

retired pay to amounts earned during the marriage. The plain language of the

agreement awards Wife 20% of Husband’s disposable retired pay “from his service

with a branch of the armed forces,” and the failure to account for Husband’s

creditable pre-marital service was error. We reverse and remand to the circuit

court with instructions to award Wife 20% of Husband’s disposable retirement pay.

3. Whether the circuit court erred in applying an 8%
interest rate to Husband’s maintenance and support
arrearages.

[¶38.] The same rules of contract interpretation discussed above apply to the

court’s application of contractual interest rates to Husband’s arrearages, and we

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again review these applications de novo. Suvada, 2022 S.D. 75, ¶ 28, 983 N.W.2d at

558.

[¶39.] Wife argues the circuit court misinterpreted the separation agreement

and misapplied an 8% interest rate to Husband’s maintenance and support

arrearages. Instead of applying the 8% interest rate, Wife claims the court should

have applied the statutory 10% interest rate under SDCL 54-3-16. Under SDCL 54-

3-5.1: “Interest is payable on all judgments and statutory liens, . . . exclusive of

support debts or judgments under § 25-7A-14, at the Category B rate of interest as

established in § 54-3-16 from and after the date of judgment[.]” Here, the judgment

for maintenance and support was not covered under SDCL 25-7A-14 as a support

debt or judgment providing for the “support and maintenance of a child” as defined

in SDCL 25-7A-1. Rather, it was a temporary spousal support and maintenance

provision to provide Wife with $1,500/month while the divorce was pending. As

such, the arrearages would be subject to the standard Category B statutory rate of

10% per year. SDCL 54-3-16(2). Instead of applying the Category B rate, the

circuit court applied an 8% interest rate that it deemed to be the contractual rate.

[¶40.] But the 8% interest rate that the circuit court used is referenced only

in section 11 of the parties’ July 2020 separation agreement—the section titled

“Military Retirement Benefits.” There is no mention of an interest rate in section 6

titled “Maintenance,” the provision under which Wife seeks the $1,500/month back-

due payments. In the plain language of the parties’ July 2020 separation

agreement, they did not agree to an interest rate on maintenance arrearages. As

demonstrated by their agreement in section 11, if the parties had intended to agree

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to an interest rate on maintenance arrearages, they could have done so. The terms

of section 6 of the separation agreement are unambiguous, and no provision

requires an 8% interest rate be applied to missed support payments. We reverse

and remand with instructions to apply the statutory 10% interest rate to such

arrearages.

4. Whether the circuit court erred in calculating
Husband’s maintenance and support arrearages.

[¶41.] Under section 6 of the separation agreement, the court found Husband

owed Wife $5,000, calculated by five missed support payments of $1,500—October

2020, November 2020, December 2020, January 2021, and February 2021—

subtracted by the $2,500 payment in November 2020. Wife claims the circuit

court’s grant of $5,000 in missed support payments was “arbitrary and lacked any

factual and legal basis.” Instead, she claims, the circuit court should have awarded

her $8,133.63 based on her detailed spreadsheet and bank statements. The

additional monies Wife claims she is owed come from alleged retained COVID

stimulus checks and federal tax refunds. Husband’s retention of these payments,

she alleges, constitutes “unjust enrichment,” and that the proper remedy would be

to credit Wife with a portion of these funds.

[¶42.] But the circuit court found “no evidence and [saw] no argument in the

record as far as any obligation to reimburse each other for COVID stimulus

payments. If there was an issue in that regard, it needed to be included in the

divorce stipulation.” The issue Wife presented to the circuit court was confined to

whether Husband owed Wife any of the $1,500/month maintenance payments in

accordance with their separation agreement. The court addressed that issue by

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calculating Husband’s arrearages and awarding Wife $5,000 plus interest. Wife

cites no authority on appeal and presented no evidence to the circuit court to

support the assertion that the court was required to consider stimulus payments or

tax returns when calculating the amount owed under the provisions of the

agreement, and we decline to read such a requirement into the parties’ agreement.

The circuit court did not err in calculating Husband’s maintenance and support

arrearages.

5. Whether the circuit court committed clear error in
dismissing Wife’s motions for contempt of court.

[¶43.] “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.” Taylor v. Taylor, 2019

S.D. 27, ¶ 39, 928 N.W.2d 458, 470–71 (citation modified). “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.” Id. (omission in original) (quoting Keller v. Keller, 2003 S.D. 36, ¶ 9, 660

N.W.2d 619, 622). “To form the basis for a subsequent finding of contempt, an order

must state 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.” Id. (quoting Keller, 2003 S.D. 36, ¶ 10, 660 N.W.2d at 622).

“We review a trial court’s findings as to contempt under a clearly erroneous

standard.” Muenster v. Muenster, 2009 S.D. 23, ¶ 15, 764 N.W.2d 712, 717 (quoting

Driscoll v. Driscoll, 1997 S.D. 113, ¶ 10, 568 N.W.2d 771, 773).

[¶44.] With regard to Husband’s obligation to pay Wife 20% of his disposable

retirement pay, it is undisputed that a court order existed requiring Husband to pay

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Wife. It is also undisputed that Husband was aware of this order and had the

ability to comply with the order. Thus, the only relevant element here is whether

Husband’s actions amounted to willful or contumacious disobedience of the order.

[¶45.] Wife argues the circuit court erred in dismissing her contempt motions,

alleging she presented significant evidence identifying Husband’s missed

maintenance payments and retirement arrears. She highlights Husband’s “pattern

of noncompliance” and alleges the circuit court dismissed these contempt counts

“without findings or hearings.” But the circuit court addressed Wife’s motion for

contempt both at the April 2025 hearing and in its July 2025 order. The circuit

court found, “due to the disputes and legitimate questions that arose as to the

actual amount that [Husband] owed, as well as problems with the [d]ecree wife

prepared pro se, that he is not in contempt of [c]ourt as his actions are not willful or

contumacious.” The court also found it relevant that, upon Wife’s application to

DFAS to honor the decree, she was informed the order was incomplete and

insufficient to begin withholding Husband’s retirement pay.

[¶46.] The terms and details of compliance in the first court order requiring

Husband to pay Wife 20% of his retirement pay were not “clear, specific and

unambiguous” as is required for a finding of contempt. Taylor, 2019 S.D. 27, ¶ 39,

928 N.W.2d at 471. The incomplete and insufficient nature of the court’s original

judgment is further highlighted by the current disputes over what is owed and how

to calculate such payments. Based on the incomplete decree, it was not clearly

erroneous to find Husband did not willfully or contumaciously disobey the court’s

order.

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[¶47.] With regard to the back due support and maintenance payments, the

circuit court also found Husband had not willfully or contumaciously disobeyed the

court’s order. But here, there was no court “order” as it related to the back due

maintenance payments. Husband agreed to pay Wife $1,500/month in accordance

with the terms of section 6 of the July 2020 separation agreement, but only sections

10, 11, and 12 were incorporated into the stipulation agreement and divorce decree.

The first element of civil contempt is “the existence of an order.” Id. Here, no such

order exists. Because we conclude no court “order” existed to support a contempt

motion on the $1,500/month payments, we need not address the merits of the issue

and accordingly affirm the court’s order denying Wife’s motion to hold Husband in

contempt on the maintenance payments. See Colburn v. Hartshorn, 2013 S.D. 92, ¶

11, 841 N.W.2d 267, 270 (“[I]f there is any basis to support the court’s ruling,

affirmance of its decision is proper[.]”).

6. Whether the circuit court abused its discretion by
denying Wife’s request for a universal life insurance
policy instead of a Survivor Benefit Plan.

[¶48.] Wife argues the circuit court should have awarded her a universal life

insurance plan in lieu of the SBP that the parties agreed to in both the separation

agreement and the stipulation agreement. In the record before us, the only mention

Wife makes of a universal life insurance policy is in a proposed conclusion of law

filed on June 17, 2025: “I respectfully request that the [c]ourt . . . [s]ubstitute

financial protection in the form of a life insurance policy on [Husband’s] life, in lieu

of the Survivor Benefit Plan coverage not effectuated by [Husband], as authorized

by this Order.” Wife did not mention nor make any argument related to this

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request in her motion briefs or during the April 2025 hearing, and the circuit court

did not have the opportunity to consider the request. “It is a general rule of

procedure that an appellate court does not address issues parties raise for the first

time on appeal[.]” Reidburn v. S.D. Dep’t of Lab. & Reg., 2024 S.D. 19, ¶ 26, 5

N.W.3d 834, 840 (citing In re LAC Mins. (USA), LLC, 2017 S.D. 44, ¶ 14, 900

N.W.2d 283, 289). As a result, this issue is waived, and we decline to address it.

7. Whether the circuit court violated Wife’s due process
rights under the Fourteenth Amendment.

[¶49.] The Fourteenth Amendment of the United States Constitution

guarantees that no State shall “deprive any person of life, liberty, or property,

without due process of law[.]” U.S. Const. amend. XIV, § 1. We review alleged

constitutional violations de novo. Roth v. Farner-Bocken Co., 2003 S.D. 80, ¶ 44,

667 N.W.2d 651, 665. Wife makes a host of claims related to the circuit court’s

alleged bias against her. She claims primarily that the circuit court did not

consider her submitted exhibits and that the court selectively applied interest rates

based on her status as a pro se litigant. These errors, on her account, “deprived

[her] of a meaningful opportunity to be heard” and violated her Fourteenth

Amendment right to a fair and impartial hearing.

[¶50.] On the record before us, however, we find no such evidence of bias.

The hearing transcript evidences the circuit court’s willingness to accept Wife’s

evidence, including the large packet of exhibits which it received on the morning of

the April 2025 motions hearing. The court again referred to the exhibits Wife

submitted after the motions hearing in its memorandum decision: “[t]his [c]ourt has

reviewed Wife’s Exhibit 27 submitted to the [c]ourt on June 16, 2025. . . . This chart

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is confusing to the [c]ourt, but her interest calculations appear to be correct.” The

circuit court did not disregard Wife’s evidence as “too complicated” as she argues in

her brief. Rather, the court recognized the patently difficult task of calculating the

amount Wife was owed, indicating “[t]he [c]ourt is unable to decipher exactly how

Wife reached [the amounts she claims she is owed in Exhibit 27].” “We presume our

trial judges act impartially unless a specific and substantial showing can be made to

the contrary.” State v. Good Plume, 2011 S.D. 27, ¶ 6, 799 N.W.2d 717, 719 (citing

State v. Page, 2006 S.D. 2, ¶ 16, 709 N.W.2d 739, 750). No such specific and

substantial showing has been made in this case, and we conclude the circuit court

did not violate Wife’s due process rights under the Fourteenth Amendment.

Husband’s Appeal No. 31203

[¶51.] Husband identifies several issues on appeal in the “Statement of Legal

Issues” section of his brief.7 He makes argument on only one, however. “Failure to

cite relevant supporting authority [on appeal] is a violation of SDCL 15-26A-60(6)

and is deemed a waiver.” Kostel v. Schwartz, 2008 S.D. 85, ¶ 34, 756 N.W.2d 363,

377 (footnote omitted) (citing State v. Boston, 2003 S.D. 71, ¶ 27, 665 N.W.2d 100,

109). By failing to make any argument on these issues, Husband has waived them

on appeal. Accordingly, we address the one issue argued in his briefing: whether

the circuit court abused its discretion in declining to take testimony at the April

2025 motions hearing.

7. Husband was represented by counsel throughout the proceedings, but his
counsel withdrew after the notice of appeal was filed.
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[¶52.] Husband claims that he was denied the opportunity to present exhibits

and evidence at the April 2025 hearing, and that “[t]hese actions constitute due

process violations.” Similarly, Husband argues the circuit court violated his due

process rights when it “failed to require sworn testimony and did not review [his]

exhibits, resulting in a ruling unsupported by the record.” On the record before us,

however, Husband did not submit exhibits to the court ahead of the April 2025

hearing as Wife did. He instead presented only one affidavit for the court’s

consideration. He cannot now argue that the court did not consider exhibits which

he simply did not present to it.

[¶53.] In regard to his claim that the circuit court should have taken sworn

testimony, Husband did not offer live testimony, nor did he object to the court’s

reliance on the evidence in the record. See, e.g., Trumble v. Trumble, 2025 S.D. 65,

¶ 31, 27 N.W.3d 919, 928 (underscoring the circuit court’s discretion in declining to

require oral testimony where “neither party offered live testimony nor objected to

the court’s reliance on affidavits”). The circuit court did not abuse its discretion in

declining to take sworn testimony at the April 2025 motions hearing.

Conclusion

[¶54.] We conclude the circuit court erred both when it reduced Wife’s share

of Husband’s retirement pay from the agreed upon 20% to 16.1% and when it

applied an 8% interest rate instead of the statutory 10% interest rate to Husband’s

maintenance arrearages. We reverse and remand with instructions to award Wife

20% of Husband’s disposable retired pay in accordance with section 11 of the

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separation agreement and to apply the statutory 10% interest rate to Husband’s

maintenance arrearages. We affirm on all other issues.

[¶55.] JENSEN, Chief Justice, and SALTER, DEVANEY, and MYREN,

Justices, concur.

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