Articles Posted in Family Law

by
In this divorce action, the Supreme Court affirmed the circuit court’s valuation of a bank account on a date other than the date of divorce, the decision to recapture into the marital estate the value of home improvements made to a third party’s rental property, and the valuation of Husband’s three business interests. The Court held that the circuit court did not abuse its discretion when it (1) included the value of the bank account from eleven months before trial; (2) included $15,000 of improvements made to Husband's father’s rental property; and (3) valued Husband's business interests. View "Giesen v. Giesen" on Justia Law

Posted in: Family Law

by
The Supreme Court affirmed the the circuit court’s classification and division of property in this divorce case in all but one respect as regards a clerical issue, which the Court remanded for clarification. Husband and Wife held most of their assets separately throughout their eighteen-year marriage. In granting them a divorce, the circuit court classified most of their assets as marital property and divided them equally. The Supreme Court held (1) the circuit court did not abuse its discretion in classifying the parties’ separately held assets as marital property; and (2) Wife was not entitled to relief on her arguments relating to the circuit court’s division and valuation of property with the exception of her argument that the circuit court erred in failing to divide and allocate three liabilities. Because the court’s failure to allocate these debts may have been a clerical error, the Supreme Court remanded the issue for the circuit court’s classification. View "Arendt v. Chamberlain" on Justia Law

Posted in: Family Law

by
The Supreme Court affirmed the order of the circuit court ordering Eryn Winegeart to sell real estate she owned jointly with her former spouse, Weston Winegeart, holding that the court did not err by ordering Eryn to sign a purchase agreement signed by a third party. After the parties underwent mediation, Weston signed an agreement with a real-estate agent to list the jointly owned real estate, and the listing agreement included a commission for the realtor. After the third party signed the purchase agreement, Eryn refused to sign it, asserting that during mediation Weston had orally agreed to sell the property without paying for a realtor. The circuit court found that the parties had not entered into an enforceable oral agreement in regard to realtor fees and ordered Eryn to sign the purchase agreement. The Supreme Court affirmed, holding that the circuit court did not err by entering its order requiring Eryn to sign the purchase agreement. View "Winegeart v. Winegeart" on Justia Law

by
The Supreme Court reversed the circuit court’s order granting full primary physical custody of Father’s minor child to the child’s maternal grandmother (Grandmother), holding that the circuit court erroneously analyzed the custody dispute using the factors set forth in Fuerstenberg v. Fuerstenberg, 591 N.W.2d 798 (S.D. 1999), which apply only in cases between parents. The circuit court applied factors taken from Fuerstenberg to the evidence and awarded Grandmother full physical custody of the child, while granting Father liberal visitation rights. The Supreme Court reversed and remanded the case, holding (1) Grandmother possessed standing as a nonparent seeking custody due to extraordinary circumstances; (2) the circuit court erroneously applied the Fuerstenberg factors; and (3) a clearer examination of the circumstances warranting a grant of custody to grandmother under S.D. Codified Laws 25-5-29 and 25-5-30 was required. View "Howlett v. Stellingwerf" on Justia Law

Posted in: Family Law

by
Sally Richardson alleged that her husband Michael forced her to work as a prostitute during the course of their marriage. Sally also alleged that Michael emotionally, physically, and sexually abused her, causing both humiliation and serious health problems. Sally divorced Michael on the grounds of irreconcilable differences, reserving by stipulation the right to bring other nonproperty causes of action against him. Following the divorce, Sally brought suit against Michael, alleging intentional infliction of emotional distress (IIED). The court, bound by South Dakota Supreme Court precedent in Pickering v. Pickering, 434 N.W.2d 758, (S.D. 1989), dismissed Sally’s suit for failing to state a claim upon which relief can be granted. Pickering held IIED was unavailable as a matter of public policy when it was predicated on conduct leading to the dissolution of marriage. Finding that Pickering was “ripe for reexamination for a number of reasons,” the South Dakota Supreme Court overruled Pickering, and reversed and remanded dismissal of Sally’s suit. View "Richardson v. Richardson" on Justia Law

by
The Supreme Court reversed the judgment of the circuit court granting Father joint custody of the parties’ child and a shared parenting child support cross-credit. At the time of their divorce, Mother and Father stipulated that Mother would have primary physical custody of the parties’ child. Five years later, Father filed a motion for change of child custody, support, and visitation, seeking a shared-parenting custody arrangement and application of a shared parenting child support cross-credit under S.D. Codified Laws 25-7-6.27. The circuit court allowed Father the cross-credit and ordered joint physical custody. In so doing, the court reduced Father’s child support payment to Mother from $442 per month to $25 per month. The Supreme Court reversed, holding that the court’s findings of fact did not support its conclusions of law, namely, that applying the cross-credit was appropriate in this case under the circumstances set forth in section 25-7-6.27. View "Sigler v. Sigler" on Justia Law

Posted in: Family Law

by
The Supreme Court affirmed the judgment of the circuit court in this divorce case awarding Husband his interest in an LLC, requiring Husband to pay twenty-five percent of Wife’s student-loan debt, and ordering Husband to make a cash-equalization payment. Husband appealed the judgment, arguing that the circuit court erred in its division of the marital property. The Supreme Court held that the circuit court (1) did not err in valuing Husband’s interest in an LLC; (2) did not abuse its discretion in awarding Wife one-half the value of the marital assets; and (3) did not abuse its discretion in making Husband responsible for twenty-five percent of Wife’s student-loan debt. View "Richarz v. Richarz" on Justia Law

Posted in: Family Law

by
The Supreme Court affirmed the circuit court’s denial of Mother’s motion for a change of custody in which she sought primary physical custody of the parties’ son. When Mother and Father divorced, they agreed to share legal custody of their son and daughter, with Father having primary physical custody of the son (Son), and Mother having primary physical custody of the daughter. Mother later filed a motion for temporary physical custody of Son after he suffered an asthmatic episode, arguing that Son’s health was imperiled by Father’s long-standing smoking habit. The circuit court denied the motion. The Supreme Court affirmed, holding that the circuit court (1) did not err in determining that Son’s interests were better served by remaining in Father’s physical custody; and (2) did not abuse its discretion by ordering Mother to pay Father’s attorney fees. View "Moulton v. Moulton" on Justia Law

Posted in: Family Law

by
The Supreme Court affirmed the order of the circuit court denying Mother and Stepfather’s (together, Petitioners) petition to have Stepfather adopt Mother’s child without the biological father’s (Father) consent. Petitioners contended that Father’s consent was unnecessary because, among other things, Father had abandoned the child. The circuit court concluded that Petitioners failed to prove by clear and convincing evidence that that Father had abandoned the child. The Supreme Court agreed, holding that the circuit court did not err in determining that Petitioners failed to show by clear and convincing evidence that Father had given up or totally deserted the child. View "In re Adoption of J.Q.P." on Justia Law

Posted in: Family Law

by
The Supreme Court affirmed the circuit court’s issuance of protection orders in favor of Abigail Parker against both her husband Jordan Parker and Jordan’s sister, Jasmyn Bauer. The court (1) the court did not err in granting a protection order against Jordan on the grounds of domestic abuse because the court’s findings supported that Jordan knowingly and willfully engaged in a series of acts that repeatedly harassed Abigail; (2) the court’s findings supported the issuance of a protection order entered against Jasmyn; and (3) none of the parties was entitled to attorneys’ fees pursuant to S.D. Codified Laws 26A-87.3. View "Parker v. Parker" on Justia Law

Posted in: Family Law