Evens v. Evens, #28879

• Decision Date: 04 November 2020
• Docket Number: #28879,#29160
• Citation: 2020 S.D. 62
• Parties: TIMOTHY JOHN EVENS, Plaintiff and Appellee, v. RACHEL JOANNA EVENS, Defendant and Appellant.
• Court: South Dakota Supreme Court

2020 S.D. 62

TIMOTHY JOHN EVENS, Plaintiff and Appellee, v. RACHEL JOANNA EVENS, Defendant and Appellant.

#28879

#29160

SUPREME COURT OF THE STATE OF SOUTH DAKOTA

CONSIDERED ON BRIEFS APRIL 20, 2020

November 4, 2020

#28879, #29160-a-MES

APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY, SOUTH DAKOTA

THE HONORABLE JEFFREY R. CONNOLLY Judge

MITCHELL D. JOHNSON

Rapid City, South Dakota

DAVID M. DILLON

Rapid City, South Dakota

Attorneys for plaintiff

and appellee.

RACHEL EVENS

Florence, Montana

Pro se defendant and appellant.

SALTER, Justice

[¶1.] Rachel Evens appeals the circuit court's judgment and decree of divorce entered on the grounds of extreme cruelty as well as its determinations regarding child custody, property division, child support, and attorney fees and costs. Rachel also appeals the court's subsequent contempt order against her. We affirm.

Background

[¶2.] Rachel Evens and Tim Evens were married in 2005 and have four minor children. At the time of their marriage, the couple lived in Havre, Montana, where Tim owned and operated a carpet cleaning business, known as Tim Evens Carpet Care. Tim also worked for the Havre Fire Department and had previously retired from the Havre Police Department. Rachel began working for Tim's carpet cleaning business prior to their marriage. Tim later incorporated the business and gave Rachel a 90% ownership interest.

[¶3.] Rachel obtained her master's degree in nursing and completed training to become a certified nurse midwife while the family resided in Havre. She remained a stay-at-home mother until the parties moved to Rapid City in 2014, where she took a position as a nurse midwife with the Native Women's Health Clinic. The parties sold the equipment for their carpet cleaning business before moving from Montana but retained the name Tim Evens Carpet Care, Inc., and started a similar business under the same name in South Dakota. After he moved to Rapid City, Tim retired from the Havre Fire Department and became a stay-at-home father. He completed some carpet cleaning and restoration work as his schedule allowed.

[¶4.] Rachel's employment with the Native Women's Health Clinic ended in April 2017, and she subsequently accepted a nurse midwife position in Wolf Point, Montana, which is 375 miles away from Rapid City. Rachel brought the parties' four children along during her two-week rotation, which was a significant source of marital stress. Tim objected to the children's long absences from him and alleged the children were unsupervised for long periods of time, including overnights, while Rachel worked.¹ When Rachel's employment in Wolf Point ended one year later, she took a position in Big Fork, Montana, approximately 760 miles away from Rapid City.

[¶5.] Tim commenced this divorce action in January 2018, alleging irreconcilable differences or, in the alternative, extreme cruelty. Tim also requested primary physical custody of the children, equitable division of the parties' assets, and child support.

[¶6.] On March 6, 2018, Tim moved for interim custody of the children and exclusive possession of the parties' Rapid City home.² That same day, Rachel sought and obtained an ex parte temporary protection order based on her allegations that Tim had physically and sexually assaulted her. Rachel removed the children from their schools in Rapid City and took them to Montana. Followingan evidentiary hearing on March 23, 2018, the court found that Rachel's testimony was not credible and denied her request for a permanent protection order. The court also awarded Tim interim custody of the children and exclusive possession of the Rapid City marital home.

[¶7.] Rachel requested another evidentiary hearing regarding interim custody, which the circuit court allowed. However, the court did not change its ruling and again granted Tim interim custody, citing concerns about what the court later described as Rachel's "combative and aggressive actions and words directed towards both Tim and the children . . . ." The court did order reasonable parenting time for Rachel, but unfortunately, their efforts to exchange the children were often contentious and reflected an elevated level of conflict.

[¶8.] The facts as later found by the circuit court following trial describe in direct terms Rachel's conduct concerning two specific exchanges. The first occurred on August 12, 2018. Rachel had the children with her in Big Fork, Montana, and advised Tim she would not bring the children to the designated mid-point location for the exchange. Tim elected to travel the entire 750 miles from Rapid City to Big Fork to get the children, but when he arrived and asked the children to gather their things and get in his vehicle, Rachel told the children to go watch a movie in the basement of her home. For the next 75 minutes, Rachel prevented Tim's departure by taking the keys to his vehicle and physically engaging him by pushing and pulling him inside of her house and in the presence of the children. The court relied upon the facts of the August 12 incident to support its finding that "Rachel is thedominant player between the parties. She will resort to physical confrontation, manipulation, and aggression to get what she wants."

[¶9.] The circuit court also related the facts of a similar incident which occurred on September 3, 2018. Although Rachel had brought the children to the mid-point exchange location in Big Timber, Montana, she told them they did not have to return to Rapid City with their father. She then advised Tim that she had unilaterally enrolled the children in school in Big Fork and that they would begin attending the next day. Tim sought the assistance of a local sheriff's deputy, but they were unable to locate Rachel in Big Timber. She was eventually located at a home in Helena, Montana. Rachel ultimately yielded and exchanged the children after contact with the court. Tim finally started out for Rapid City from Helena at 7:00 p.m. and arrived home at 3:50 a.m. on September 4. Three of the children had school that day and boarded the bus at 6:45 a.m.

[¶10.] During this pretrial period, Rachel was represented by four different attorneys, each of whom subsequently moved to withdraw shortly after noting their appearances. Rachel represented herself at trial and on appeal.

[¶11.] Following a five-day court trial in November 2018, the circuit court granted Tim a divorce on the grounds of extreme cruelty, finding that Rachel had physically and mentally abused him during their marriage. The court cited instances in which Rachel had berated Tim, assaulted him physically, and referred to him in demeaning and incendiary terms. In an October 2017 incident, the couple was with other members of Rachel's family for dinner at a restaurant when Rachel loudly accused Tim of extramarital affairs, causing other patrons to take notice.

After dinner, Rachel told Tim she was going out to find a man to satisfy her, only to return later to taunt him by advising him she had succeeded in her effort. The court also accepted the testimony of several witnesses who confirmed that Rachel was demeaning and disrespectful to Tim. Both before the divorce action and during its pendency, Rachel accused Tim of raping her, failing to pay taxes and hunting without a license, all of which the court determined were unsupported by the evidence.

[¶12.] The court assessed the children's best interests and awarded Tim primary physical custody of the children, allowing Rachel parenting time which generally aligned with the South Dakota Parenting Guidelines. The court calculated Rachel's child support obligation at $1,132 per month.

[¶13.] With regard to marital property, the circuit court awarded Tim the marital home in Rapid City as well as all interest in the carpet restoration businesses.³ The court further ordered that "the parties shall execute and deliver any such instruments (e.g. Deeds, Certificates of Title and Stock Certificates) as may be required in order to carry out the intentions and provisions of the court orders within 30 days after the court's judgment and decree of divorce." The court ordered the sale of the former marital home and development lots the parties owned in Havre with the net proceeds to be split equally after deducting mortgage payments and costs Tim had incurred prior to the sales.

[¶14.] The circuit court designated Tim's Montana Police Officer's Retirement Pension as a non-marital asset, reasoning that it was earned entirely before the parties' marriage. The court allocated Tim's pension through the Montana Firefighters Unified Retirement System (FURS) between the parties through the use of a coverture fraction, resulting in Rachel receiving a fixed sum of $799.83 per month for 342 months which represents Tim's remaining life expectancy.⁴ The court further ordered the parties' gold coin collection to be split equally, and ordered Tim to pay Rachel an equalization payment of $256,378 within 120 days of the sale of the home and development lots in Havre. Finally, the court determined that Rachel had unnecessarily increased the cost of litigating the case and ordered her to reimburse Tim $15,000 for attorney fees. The court also assessed costs and disbursements against Rachel in the amount of $7,705.24. The total amount of $22,705.24 was credited against Tim's equalization payment.

[¶15.] Rachel appealed the circuit court's judgment and decree of divorce in January 2019. Tim subsequently asked the court to find Rachel in contempt for "failing to execute and deliver a quitclaim deed" for the Rapid City marital home and "failing to sign, deliver, and transfer stock certificates to Tim Evens Carpet Care, Inc. . . . ." In addition, Tim alleged that Rachel failed to "sign, [and] deliver the certificates of title and transfer ownership" in several motorcycles, trailers, snowmobiles, and a camper awarded to Tim, and failed to provide Tim with half of the gold coins.

[¶16.] Rachel responded by asking the...