## Facts

- Denice Moore and John Moore married in 1975.
- Denice was diagnosed with multiple sclerosis (MS) in 1999.
- John left the marital home in March 2001.
- The parties divorced on December 10, 2003, and the final decree incorporated a negotiated property and support agreement.
- The property settlement awarded Denice about 87% of the marital assets and John about 13%.
- The decree required John (then unemployed) to pay Denice $100 per month in alimony until Denice’s death, remarriage, or age 65.
- On the day before the divorce was finalized, Denice agreed to sell the marital home to Russell Dulany; afterward, she moved for MS treatment and later returned to Pierre, South Dakota.
- Denice and Russell later lived together in the former marital home; Denice worked for Russell’s car dealership and remained on the dealership’s health insurance plan.
- John remarried Luanna Bowen, moved to Austin, Texas, and had limited employment outside the home; Luanna earned substantial income.
- John’s post-divorce funds included inheritance and gifts from his mother.
- In 2006, Denice petitioned to modify alimony, seeking an increase based on worsened health and increased needs and asserting John’s improved ability to pay.
- After hearings, the circuit court increased alimony from $100 per month to $1,500 per month and awarded Denice $1,093.43 in costs.
- John appealed the modification order.

## Issues

1. Whether Denice proved a substantial and material change in circumstances, occurring after the 2003 decree and not contemplated at the time, that justified increasing John’s alimony obligation.
2. Whether the circuit court improperly relied on John’s post-divorce remarriage, his new spouse’s income, and John’s inheritance/gifts when evaluating his ability to pay.
3. Whether Denice’s cohabitation and financial support and benefits connected to Russell affected her need for increased alimony.

## Decision

- The Supreme Court of South Dakota reversed the circuit court’s order increasing alimony from $100 to $1,500 per month.
- The court held the record did not support a legally sufficient post-decree change in circumstances to justify the increase, considering Denice’s financial circumstances and third-party support and the limits on attributing a new spouse’s income to the payor.
- The court remanded for further proceedings consistent with its opinion, which also required reconsideration of the cost award tied to the modification ruling.

## Legal Principles

- A court may modify alimony only upon a showing of a substantial and material change in the parties’ circumstances after entry of the divorce decree.
- The asserted change must be one that was not contemplated when the original decree and settlement were entered.
- The party seeking modification bears the burden of proving changed circumstances and showing that modification is warranted.
- In deciding modification, courts evaluate the recipient’s need and the payor’s ability to pay, based on the parties’ actual financial situations.
- Property division and alimony are connected; where parties negotiated a large property award to one spouse and a small support obligation to the other, later modification cannot function as a reallocation of the original bargain without the required showing of changed circumstances.
- A recipient spouse’s cohabitation and support from a third party may be relevant to whether the recipient’s needs have materially increased.
- A payor’s remarriage does not automatically increase the payor’s alimony obligation; a new spouse’s income is not treated as the payor’s income for purposes of modification, though the payor’s actual resources and expenses remain relevant.

## Conclusion

Moore v. Moore holds that a dramatic increase in alimony requires proof of a substantial, material, and unanticipated change in circumstances after the divorce decree; because the record did not justify increasing John’s obligation from $100 to $1,500 per month—given the parties’ original settlement, Denice’s cohabitation and ongoing support and benefits connected to Russell, and the limits on using John’s remarriage and his new spouse’s income to measure ability to pay—the South Dakota Supreme Court reversed the modification order and remanded.


Moore v. Moore, 763 N.W.2d 536 (2009)