Rush v. Rush, No. 27235.

CourtSupreme Court of South Dakota
Writing for the CourtWILBUR, Justice.
Citation866 N.W.2d 556
PartiesGrant RUSH, Plaintiff and Appellant, v. Julie RUSH, Defendant and Appellee.
Docket NumberNo. 27235.
Decision Date01 July 2015

866 N.W.2d 556

Grant RUSH, Plaintiff and Appellant
v.
Julie RUSH, Defendant and Appellee.

No. 27235.

Supreme Court of South Dakota.

Considered on Briefs April 20, 2015.
Decided July 1, 2015.


866 N.W.2d 557

Brooke D. Swier Schloss, Scott R. Swier of Swier Law Firm, Prof. LLC, Avon, South Dakota, Attorneys for plaintiff and appellant.

866 N.W.2d 558

Stephanie E. Pochop, Kelsea K. Sutton of Johnson Pochop & Bartling, LLC, Gregory, South Dakota, Attorneys for defendant and appellee.

Opinion

WILBUR, Justice.

¶ 1.] Grant Rush filed an action for divorce in Tripp County, South Dakota. The circuit court dismissed the action for lack of personal jurisdiction and, alternatively, on the basis of the forum non conveniens doctrine. We reverse and remand.

Background

[¶ 2.] Julie and Grant Rush were married on January 6, 1990, in Montgomery County, Pennsylvania. They have two adult sons, both of whom are alleged to be disabled. Julie, Grant, and their two sons resided together in Philadelphia, Pennsylvania, until as late as June 29, 2012. Shortly after June 29, 2012, Grant left the marital home without notice to Julie or their children and moved into his mother's home in Winner, South Dakota. Julie and the children continued to reside at the marital home in Pennsylvania.

[¶ 3.] On July 25, 2012, Julie filed a “Uniform Support Petition” in Pennsylvania seeking child and spousal support. Pennsylvania law authorizes child support for disabled adult children. The circuit court in this action stated, “In a significant difference from South Dakota law, under Pennsylvania law[,] parents may have an ongoing legal duty to provide child support for an adult child who has a physical or mental condition at the time the child reaches 18 and that prevents the adult child from becoming self-supporting [.]” On July 30, 2012, five days after Julie filed her Uniform Support Petition, Grant filed for a divorce in Tripp County, South Dakota. Grant alleged that he was a resident of Winner, South Dakota, for purposes of personal jurisdiction. Grant mailed a copy of the summons and complaint, as well as notices of admission of service, to Julie the same day he filed for a divorce—July 30, 2012. Julie signed an admission of service on August 17, 2012.

[¶ 4.] On April 4, 2014, Julie filed a motion to dismiss the divorce action for lack of personal jurisdiction. The circuit court conducted a hearing on May 6, 2014, and issued findings of fact and conclusions of law on October 2, 2014. The court dismissed the divorce action “for lack of jurisdiction and on the grounds of the forum non conveniens doctrine.” In support of dismissal for lack of personal jurisdiction, the court found “Grant was unable to credibly establish many of the primary hallmarks of true South Dakota residency at the time he filed for divorce in this state.” At the time Grant filed for a divorce on July 30, 2012, Grant did not own any real property in South Dakota. He did not have a South Dakota issued driver's license nor was he registered to vote in South Dakota. There was no evidence that Grant had any long-term plans to move to South Dakota before he filed for divorce. He did not advise important creditors, such as his medical care providers, that he was moving to South Dakota. The financial affidavit he filed with his divorce complaint indicated he was unemployed at the time he filed for divorce. Characterizing Grant's move to South Dakota, the court stated, “Grant's move ... was sudden and part of an ‘escape plan’ that he kept from his wife.”

[¶ 5.] Furthermore, the circuit court found, “Under the forum non conveniens doctrine, Pennsylvania is the more appropriate and convenient forum for this divorce matter.” The court noted that there is “a pending, first-filed family law action in [Pennsylvania] where there is clear jurisdiction over both parties, and it relates to at least some of the issues that would be addressed in this divorce proceeding[.]” The court found that private interest and

[866 N.W.2d 559

public interest factors “clearly point in favor of trial in the alternative forum and support the conclusion that South Dakota is an inconvenient forum for this divorce action.” The court concluded, “In consideration of justice, fairness and convenience to the parties, the witnesses and the courts, this [c]ourt is declining to exercise jurisdiction in this divorce action on the basis of South Dakota's forum non conveniens doctrine.” Grant appeals and raises the following two issues for our review:

1. Whether the circuit court erred in dismissing Grant's divorce action for lack of personal jurisdiction.
2. Whether the circuit court erred in dismissing Grant's divorce action based on the doctrine of forum non conveniens.

Standard of Review

[¶ 6.] “We review findings of fact ‘under the clearly erroneous standard of review.’ ” Pieper v. Pieper, 2013 S.D. 98, ¶ 12, 841 N.W.2d 781, 785 (quoting Schieffer v. Schieffer, 2013 S.D. 11, ¶ 15, 826 N.W.2d 627, 633). “The trial court's findings of fact are presumed correct and we defer to those findings unless the evidence clearly preponderates against them.” Parsley v. Parsley, 2007 S.D. 58, ¶ 15, 734 N.W.2d 813, 817 (quoting City of Deadwood v. Summit, Inc., 2000 S.D. 29, ¶ 9, 607 N.W.2d 22, 25). “Conclusions of law, however, are reviewed de novo, with no deference to the court's ruling.” Leonhardt v. Leonhardt, 2014 S.D. 86, ¶ 15, 857 N.W.2d 396, 400 (citing Summit, 2000 S.D. 29, ¶ 9, 607 N.W.2d at 25).

Analysis

¶ 7.] 1. Whether the circuit court erred in dismissing Grant's divorce action for lack of personal jurisdiction.

[¶ 8.] Grant argues that he was a resident of South Dakota at the time he filed for a divorce in Tripp County, South Dakota, and that the circuit court clearly erred when it dismissed his divorce action for lack of personal jurisdiction. SDCL 25–4–30 provides:

The plaintiff in an action for divorce or separate maintenance must, at the time the action is commenced, be a resident of this state, or be stationed in this state while a member of the armed services. Subsequently, the plaintiff need not maintain that residence or military presence to be entitled to the entry of a decree or judgment of divorce or separate maintenance.

(Emphasis added.)

Commencement of Action

[¶ 9.] In order for the circuit court to have personal jurisdiction over this divorce action, Grant must have been a resident of South Dakota “at the time the action [was] commenced.” Id. An action is commenced in this state when the summons is served on the defendant.

SDCL 15–2–30. Generally, service of process is made by delivering a copy of the summons to the defendant personally. See SDCL 15–6–4(d)(8). However, “[n]otwithstanding any other provision of law, a summons may be served upon a defendant in any action by...

To continue reading

Request your trial
2 practice notes
  • State ex rel. Tegegne v. Andalo, No. 27196.
    • United States
    • Supreme Court of South Dakota
    • July 1, 2015
    ...Father presented conflicting evidence on the question whether Father provided food for the children. After listening to the testimony of [866 N.W.2d 556both parties, the referee examined Father's receipts and found that Mother's assertions were not credible. The referee noted that the recei......
  • Dunham v. Sabers, 29558-SRJ
    • United States
    • Supreme Court of South Dakota
    • October 26, 2022
    ...not satisfy his evidentiary burden to support his requested credit for in-kind support contributions. See Tegegne, 2015 S.D. 57, ¶ 20, 866 N.W.2d at 556 (finding sufficient evidence to support an award for in-kind contributions when the father presented receipts for food purchases). Dunham'......
2 cases
  • State ex rel. Tegegne v. Andalo, No. 27196.
    • United States
    • Supreme Court of South Dakota
    • July 1, 2015
    ...Father presented conflicting evidence on the question whether Father provided food for the children. After listening to the testimony of [866 N.W.2d 556both parties, the referee examined Father's receipts and found that Mother's assertions were not credible. The referee noted that the recei......
  • Dunham v. Sabers, 29558-SRJ
    • United States
    • Supreme Court of South Dakota
    • October 26, 2022
    ...not satisfy his evidentiary burden to support his requested credit for in-kind support contributions. See Tegegne, 2015 S.D. 57, ¶ 20, 866 N.W.2d at 556 (finding sufficient evidence to support an award for in-kind contributions when the father presented receipts for food purchases). Dunham'......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT