Green v. Green, 010919 SDSC, 28541-a-DG

Docket Nº:28541-a-DG
Opinion Judge:GILBERTSON, CHIEF JUSTICE
Party Name:KATHRYN M. GREEN, Plaintiff and Appellee, v. SCOTTY J. GREEN, Defendant and Appellant.
Attorney:MICHELE LEWON of Kollars & Lewon, PLC Sioux City, Iowa Attorneys for plaintiff and appellee. REBECCA A. NELSON of Rawlings, Ellwanger, Mohrhauser, Nelson & Roe, LLP Sioux City, Iowa Attorneys for defendant and appellant.
Judge Panel:KERN and SALTER, Justices, and ELSHERE, Circuit Court Judge, concur. ELSHERE, Circuit Court Judge, sitting for JENSEN, Justice, disqualified.
Case Date:January 09, 2019
Court:Supreme Court of South Dakota
 
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2019 S.D. 5

KATHRYN M. GREEN, Plaintiff and Appellee,

v.

SCOTTY J. GREEN, Defendant and Appellant.

No. 28541-a-DG

Supreme Court of South Dakota

January 9, 2019

CONSIDERED ON BRIEFS ON NOVEMBER 12, 2018

APPEAL FROM THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT UNION COUNTY, SOUTH DAKOTA THE HONORABLE TAMI BERN Judge

MICHELE LEWON of Kollars & Lewon, PLC Sioux City, Iowa Attorneys for plaintiff and appellee.

REBECCA A. NELSON of Rawlings, Ellwanger, Mohrhauser, Nelson & Roe, LLP Sioux City, Iowa Attorneys for defendant and appellant.

GILBERTSON, CHIEF JUSTICE

[¶1.] Scotty J. Green (Scotty) appeals from a judgment and decree of divorce from his wife Kathryn M. Green (Kathy). Scotty asserts the circuit court abused its discretion in awarding attorney fees, calculating child support, and dividing property. We affirm.

Facts and Procedural History

[¶2.] Kathy and Scotty were married November 21, 2003, in Elk Point. During the marriage, Kathy and Scotty adopted two biological siblings, B.S.G. and B.M.G., in Iowa. B.S.G. was born in 2002, and B.M.G. was born in 2003. Both children were considered to have special needs because of their biological mother's drug use. Kathy and Scotty received an adoption subsidy for each child, which was set to be paid monthly until the children reach the age of majority.

[¶3.] After living a short time in Scotty's pre-marital home, the couple purchased a home in Dakota Dunes on Sagebrush Pass. They later built another home in Dakota Dunes on Bluestem Trail (marital home). During the marriage, Kathy worked at HyVee in Sioux City, Iowa, as a pharmacy tech and later as a personal shopper. At the time of trial, her wages were $19.25 per hour, and she worked an average of 32 hours per week. Scotty was employed as the Director of Operations for a McDonald's franchise in Sioux City. After working in that position for 30 years, Scotty was earning approximately $140, 000 per year. In 2014, the franchise was sold due to the owners' divorce. Scotty had been approved by McDonald's to own his own restaurant but was not offered one at the time of the sale. As a result, Kathy and Scotty began to search for other franchise opportunities.

[¶4.] Eventually, Scotty and Kathy and three other couples formed their own limited liability company: OCSC, LLC. OCSC signed a franchise agreement to own and operate an Old Chicago restaurant in Sioux City. Scotty and Kathy invested $148, 250 in OCSC between 2014 and 2017. Scotty was employed as an owner-operator of the restaurant at a salary of $116, 000 per year. As owners, Kathy and Scotty were required to personally guarantee much of the OCSC debt, including debt related to the franchise agreement, the lease, and operating loans.

[¶5.] During the marriage, the parties argued over spending money, OCSC, and the proper way to raise their children. In October 2016, Scotty moved out of the marital home. On October 5, 2016, Kathy filed for divorce. She also filed for a protection order on October 13, 2016. A hearing was held on December 19, 2016, and the circuit court dismissed the protection order. On January 6, 2017, the court released a temporary order awarding the couple joint legal custody of the children. Kathy was awarded primary physical custody, possession of the marital home, $1, 357 per month in child support, and $1, 300 per month in spousal support.

[¶6.] In February 2017, Scotty was terminated from his position with OCSC due to performance-based issues. Scotty's employment agreement contained a non-compete clause that prohibited him from working in another restaurant within a 250-mile radius for two years after termination. Despite Scotty's termination, he and Kathy retained their ownership interest in OCSC. In May 2017, Scotty found new employment working at Home Depot at a wage of $16 per hour.

[¶7.] Also in February 2017, Kathy filed an application for order to show cause as to why Scotty should not be held in contempt for failure to make timely support payments. Scotty filed a resistance to the application. Kathy moved to continue the hearing on the application for order to show cause and later moved to dismiss the application on April 5, 2017, before a hearing was held. Kathy's counsel drafted a second application in May 2017 that was never filed. In March 2017, Scotty filed an application for an emergency hearing and for the appointment of a custody evaluator. Kathy filed a resistance to the application, and Scotty filed a response, but the parties ultimately resolved the issue without a hearing. In July 2017, Scotty filed an application for modification of child support claiming a downward change in income. A hearing was held on August 29, 2017, and the court granted Scotty's application.

[¶8.] Shortly before trial, Scotty and Kathy agreed to and signed a parenting plan providing for joint legal custody and shared physical care of their children. The parties agreed that the children would alternate weeks with the parties and be exchanged on Sunday evenings. The circuit court adopted the parenting plan. All other matters proceeded to a bench trial before the circuit court on...

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