Shevling v. Major (2026 S.D. 27): Enforcing Plain-Language Military Retirement Percentages (No Implied Coverture Reduction) and Applying Statutory Interest Absent Contract

1. Introduction

Parties: Jessica Lyn Shevling (Wife) and Devin Jermaine Major (Husband), married nearly 20 years, both military service members.

Background: While stationed in Okinawa, Japan, the parties executed a notarized separation agreement (July 31, 2020). It included (i) temporary spousal maintenance of $1,500/month “until the divorce is final,” and (ii) a promise that Wife would receive 20% of Husband’s disposable retired pay (10 U.S.C. § 1408), plus provisions relating to a Survivor Benefit Plan (SBP). In the subsequent South Dakota divorce, only selected provisions (including the military retirement and SBP provisions) were incorporated into the February 4, 2021 decree.

Dispute: After Husband retired (Feb. 12, 2024), Wife sought retirement payments and SBP implementation. DFAS (Defense Finance and Accounting Service) rejected Wife’s application because the decree lacked required elements to calculate and implement direct payment. Wife moved for contempt and for modification/clarification.

Key issues on appeal: (1) whether Wife was entitled to Rule 60(b) relief from the property division; (2) whether the circuit court erred by reducing Wife’s agreed 20% retirement share to 16.1% via a coverture fraction; (3) whether interest on maintenance arrears should be 10% statutory rather than 8% contractual; (4) contempt standards given an unclear decree; (5) due process and procedural complaints, including Husband’s claim that testimony should have been taken.

2. Summary of the Opinion

The South Dakota Supreme Court affirmed in part and reversed in part.

  • Reversed: The circuit court erred by (a) reducing Wife’s retirement award from 20% to 16.1% using a coverture calculation, and (b) applying an 8% interest rate to maintenance arrears when the maintenance provision contained no such contractual interest term; the correct rate is the statutory 10% (Category B) rate.
  • Affirmed: Denial of Rule 60(b)(3) relief; denial of contempt (given decree vagueness for retirement and lack of an incorporated maintenance order); maintenance arrears principal calculation; rejection/waiver of the life-insurance-in-lieu-of-SBP request; rejection of due process/bias claim; and rejection of Husband’s complaint that testimony was required at the motion hearing.
  • Remand instructions: Award Wife 20% of Husband’s disposable retired pay (per 10 U.S.C. § 1408 and the parties’ agreement), and apply 10% statutory interest to maintenance arrears.

3. Analysis

A. Precedents Cited

The Court’s reasoning is built on established South Dakota doctrine across four areas: (i) standards of review; (ii) finality of property divisions and Rule 60(b); (iii) contract interpretation of divorce stipulations; and (iv) contempt and due process/waiver principles.

1) Standards of review and deference to circuit courts

  • Estate of Mack (with quotes from Hiller v. Hiller and Gartner v. Temple) supplied the abuse-of-discretion framework for Rule 60(b) rulings, including the definition of abuse of discretion and the layering of “clearly erroneous” review for factual determinations (citing State v. Guthrie).
  • Estate of Olson (quoting Osman v. Karlen & Assocs.) articulated the “definite and firm conviction” standard for clear error and the appellate posture of resolving doubts in favor of the prevailing party’s version of the evidence.

2) Rule 60(b), waiver, and finality of property divisions

  • Hauck v. Clay Cnty. Comm'n supported the Court’s insistence that arguments not raised below are waived—used to confine Wife to the Rule 60(b)(3) basis actually presented to the circuit court (rather than newly framed Rule 60(b)(6) arguments on appeal).
  • Beermann v. Beermann (citing Jeffries v. Jeffries) supplied the controlling principle that a divorce decree incorporating a property settlement is “final and conclusive” and not later modifiable absent fraud or a judgment-defect-type basis. This undercut Wife’s effort to re-open property division simply because she later viewed the deal as unfavorable.

3) Military retirement as marital property; contract-driven interpretation

  • Parker v. Parker (quoting Porter v. Porter) reaffirmed that military retirement benefits are divisible like other marital assets. Parker v. Parker also supplied South Dakota’s modern explanation of the “frozen benefit rule.”
  • Field v. Field was used for the proposition that an error of law in equitable division is per se outside the permissible discretion range.
  • Coffey v. Coffey (quoting Hisgen v. Hisgen) established that divorce stipulations are interpreted as contracts.
  • Suvada v. Muller (quoting Charlson v. Charlson) and Pesicka v. Pesicka anchored the “plain language” approach: read the agreement as a whole; give words their ordinary meaning; do not “construe” what is unambiguous.
  • Fulgium v. Fulgium was cited (via Parker v. Parker) to explain the rationale for freezing the benefit at divorce to prevent a former spouse from sharing in post-divorce pay increases to which they did not contribute.

4) Contempt, procedural waiver, and due process claims

  • Taylor v. Taylor (quoting Keller v. Keller) supplied the four elements of civil contempt and the requirement that an order be clear, specific, and unambiguous to support a contempt finding.
  • Muenster v. Muenster (quoting Driscoll v. Driscoll) supported the clearly erroneous review standard for contempt findings.
  • Colburn v. Hartshorn supported affirmance where any basis exists to uphold the circuit court’s result—used to affirm denial of maintenance-payment contempt because no incorporated “order” existed, regardless of the circuit court’s other reasoning.
  • Reidburn v. S.D. Dep't of Lab. & Reg. (citing In re LAC Mins. (USA), LLC) supported refusal to reach issues raised for the first time on appeal (life insurance in lieu of SBP).
  • Roth v. Farner-Bocken Co. established de novo review for constitutional claims; State v. Good Plume (citing State v. Page) supplied the presumption of judicial impartiality absent a “specific and substantial showing.”
  • Kostel v. Schwartz (citing State v. Boston) supported waiver for failure to cite authority/argue issues adequately on appeal—used against Husband’s unargued issue-list.
  • Trumble v. Trumble supported the proposition that a circuit court may decide certain motion matters on affidavits where no party offers live testimony or objects to that procedure.

B. Legal Reasoning

1) Rule 60(b)(3) relief properly denied: no proven fraud/duress; finality prevails

Wife sought to vacate/modify the property division under Rule 60(b)(3) (fraud/misrepresentation/misconduct/duress). The Supreme Court upheld the circuit court’s finding that Wife provided no non-conclusory evidence of coercion or fraud sufficient to disturb a final property division. The Court emphasized two facts: (i) Wife prepared and filed the pro se divorce materials and (ii) the agreements expressly advised her to obtain counsel (yet she declined). Under Beermann v. Beermann, dissatisfaction with the deal is not a pathway to modification absent fraud or judgment-defect grounds.

2) The core holding: an agreed “20% of disposable retired pay” cannot be reduced by an implied coverture fraction

The Court treated the retirement provision as a contract term incorporated into the decree. The separation agreement awarded Wife “20 percent of [Husband’s] disposable retired pay, as defined in 10 U.S.C. § 1408, from his service with a branch of the armed forces.” Because the phrase is unambiguous, the circuit court could not “improve” it by adding a coverture limitation (i.e., limiting Wife’s share to retirement earned during the marriage).

The circuit court’s 16.1% result came from applying a coverture fraction (238 months of marriage during service ÷ 295 months total service) to the 20% figure. The Supreme Court held that § 1408’s definition of “disposable retired pay” requires certain statutory deductions, but does not require excluding pre-marital service months by default. The agreement itself likewise contained no marital-portion limitation; it referenced disposable retired pay “from his service” generally. Therefore, the coverture reduction contradicted the parties’ plain bargain and was legal error requiring reversal.

Importantly, the Court distinguished between (a) the need to clarify a decree so DFAS can administer payments and (b) the impermissible step of changing the contracted percentage by injecting a new formula. Clarification is allowed to implement the intent; recalculation that reduces the bargained-for percentage is not.

3) Interest on maintenance arrears: statutory 10% applies when the maintenance clause lacks a contractual rate

The circuit court applied an 8% interest rate drawn from the retirement-benefits section of the separation agreement. The Supreme Court rejected that move as a matter of contract interpretation: the 8% term appears only in the retirement provision (section 11), not in the maintenance provision (section 6). Where parties demonstrated they could draft an interest term (and did so for retirement arrears), the absence of such language in section 6 is meaningful.

Because the maintenance arrears were not child support governed by SDCL 25-7A-14, the general statutory post-judgment interest framework applied, requiring the Category B rate (identified in the opinion as 10% per year). The Court reversed and remanded for application of that statutory rate.

4) Contempt: clarity of the underlying order is essential; and contempt requires an “order”

For the retirement payments, the Court affirmed denial of contempt because the decree was insufficiently clear to support a finding of “willful or contumacious” disobedience. The DFAS rejection letter corroborated the practical ambiguity: the order lacked required elements to implement withholding. Under Taylor v. Taylor and Keller v. Keller, contempt cannot rest on an order that does not tell the obligated party “exactly” what to do.

For the $1,500/month maintenance, the Supreme Court affirmed denial of contempt on a different, more fundamental ground: section 6 was never incorporated into the decree. Without an incorporated court “order,” the first element of civil contempt (“existence of an order”) fails. The Court therefore affirmed without reaching the merits of whether Husband actually missed those payments (though it separately affirmed the principal-arrears award).

5) Due process and procedure: no showing of judicial bias; no error in deciding motions without live testimony

Wife’s bias/due process claims failed because the record showed the circuit court accepted and reviewed her exhibits and because appellate courts presume impartiality absent a “specific and substantial showing” to the contrary (State v. Good Plume). Husband’s claim that testimony was required failed under Trumble v. Trumble: he did not offer live testimony or object to resolution on affidavits/record materials.

C. Impact

1) Drafting and enforcing military-retirement divisions in South Dakota

This decision strongly signals that South Dakota courts will enforce the express percentage chosen by parties for military retirement when the agreement is unambiguous—even if a coverture or marital-portion concept might otherwise be common in pension division. If parties want a marital fraction, frozen-benefit formula, or time-rule limitation, they must say so.

2) “Clarification” versus “modification” when DFAS rejects an order

The opinion validates that courts may enter amended/supplemental language to satisfy DFAS’s administrative requirements (e.g., “fixed amount, percentage, formula, or hypothetical” and required data), but they may not use DFAS-compliance work as a backdoor to reduce or rewrite the parties’ substantive bargain.

3) Interest allocation discipline: interest terms are not transferable across clauses

The Court’s interest holding is a contract-interpretation warning: an interest clause in one part of an agreement (retirement arrears) cannot be assumed to apply to a different obligation (maintenance) absent explicit language. In domestic cases involving multiple payment streams, counsel and courts should treat each stream’s interest consequences as separately drafted.

4) Contempt practice: enforceability requires specificity

For contempt, the decision reinforces that a party’s nonpayment may be remedied by clarification and money judgments, but contempt requires an order that is sufficiently definite—especially where federal administration (DFAS) demands particular drafting elements. It also underscores a structural point: contempt is not a mechanism to enforce obligations left outside the decree.

4. Complex Concepts Simplified

  • Rule 60(b)(3): A rule allowing a court to relieve a party from a final judgment if it was affected by fraud, misrepresentation, or misconduct. It is not a tool to renegotiate a deal simply because it later looks unfair.
  • Divorce stipulation as “contract”: When parties settle property issues by agreement, courts interpret the written words the way they interpret contract language: plain meaning controls if unambiguous.
  • Disposable retired pay (10 U.S.C. § 1408): A federal definition used for military retired pay division—generally the gross monthly retired pay minus specified statutory deductions. It is the baseline for what DFAS can treat as divisible.
  • DFAS: The federal agency that administers military pay and retirement payments. DFAS requires court orders to contain specific calculation elements before it can pay a former spouse directly.
  • Frozen benefit rule: A concept (explained in Parker v. Parker) that uses the divorce date as a hypothetical retirement date for calculating a former spouse’s share—preventing the former spouse from sharing in post-divorce increases.
  • Coverture fraction/time rule: A common pension-division method: (months married while earning the pension) ÷ (total months earning the pension). It limits the divisible portion to what was earned during the marriage. This case holds it cannot be implied when the agreement says “20% of disposable retired pay” without such limitation.
  • Civil contempt: A coercive enforcement tool. It requires (1) a clear court order, (2) knowledge, (3) ability to comply, and (4) willful disobedience. If the order is vague, contempt typically fails.
  • SBP (Survivor Benefit Plan): A military benefit that can provide ongoing payments to a designated beneficiary after the retiree’s death; it requires timely elections and specific filings.

5. Conclusion

Shevling v. Major draws a firm line between permissible decree “fixes” to implement DFAS requirements and impermissible judicial rewriting of an unambiguous settlement term. When parties agree that a former spouse receives a fixed percentage of “disposable retired pay”, courts may clarify the order for administration but may not reduce the percentage through an implied coverture fraction. The Court also reinforces that interest follows the specific obligation: absent a contractual interest term, statutory interest applies. Finally, the decision reiterates that contempt requires a clear order—and cannot enforce obligations not incorporated into the decree.