Schieffer v. Schieffer, #26101-a-DG

CourtSouth Dakota Supreme Court
Writing for the CourtGILBERTSON
Citation2013 S.D. 11
PartiesCARMEN COLETTE SCHIEFFER, Plaintiff and Appellant, v. KEVIN VICTOR SCHIEFFER, Defendant and Appellee.
Decision Date23 January 2013
Docket Number#26101-a-DG

2013 S.D. 11

CARMEN COLETTE SCHIEFFER, Plaintiff and Appellant,
KEVIN VICTOR SCHIEFFER, Defendant and Appellee.



OPINION FILED: January 23, 2013



Viken Law Firm
Rapid City, South Dakota

Attorneys for plaintiff
and appellant.

Boyce, Greenfield, Pashby & Welk, LLP
Sioux Falls, South Dakota

Attorneys for defendant
and appellee.

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GILBERTSON, Chief Justice

[¶1.] On July 12, 2011, the trial court granted Kevin Schieffer and Carmen Schieffer a divorce on grounds of irreconcilable differences. In its judgment and decree of divorce, the trial court denied Carmen's request to relocate to New York City with the minor children, granted Kevin and Carmen joint legal and physical custody of the minor children, implemented a custody schedule, ordered Kevin to pay Carmen child support, resolved the disputed property issues, and denied Carmen's request for attorney fees. Carmen appeals various aspects of the trial court's decision. We affirm.


[¶2.] Kevin and Carmen met in 1999. From 1999 to 2007, Kevin and Carmen were involved in an "on again, off again," long distance relationship, with Kevin primarily residing in Sioux Falls, South Dakota, and Carmen living various places including New York City, New York. While in New York City, Carmen was employed as a vice president of an international insurance and investment company. Kevin worked as the CEO of Dakota, Minnesota, and Eastern Railroad (DM&E) in Sioux Falls. Kevin was also a shareholder of DM&E.

[¶3.] Kevin amassed a considerable amount of wealth throughout his career, acquiring much of his wealth as a result of the sale of DM&E in October 2007. Kevin was required to continue working for DM&E during a period of transition as part of the sale. However, after completing the transition in October 2008, Kevin ceased working for DM&E. Neither Kevin nor Carmen has worked outside of the home since that time.

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[¶4.] In 2007, the parties learned Carmen was pregnant. Kevin and Carmen then married on September 22, 2007.1 The parties' daughter (AC-AS) was born on March 6, 2008. AC-AS was born with Down syndrome. In addition, AC-AS was born with a heart defect that required her to have surgery in New York City shortly after her birth. As a result, Carmen and AC-AS lived in New York City for approximately the first five months of AC-AS's life. Carmen and AC-AS then moved to Sioux Falls to live with Kevin.

[¶5.] AC-AS has received various services and therapies to help treat the symptoms of her Down syndrome since her birth. These services include physical therapy, occupational therapy, speech therapy, music therapy, etc. Some of these services are provided by the State of South Dakota.2 However, Kevin and Carmen have continuously supplemented these services with "private pay" therapy services. Typically, AC-AS participates in at least 12 hours of therapist-led therapy sessions each week. Additionally, Carmen has pursued alternative treatments for AC-AS. For example, AC-AS is on a special diet and takes various vitamins and supplements daily.

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[¶6.] On October 15, 2009, Carmen formally notified Kevin that she intended to relocate from Sioux Falls to New York City because she believed facilities in New York City could provide AC-AS with better therapy services and educational opportunities. At the time, Carmen was pregnant with the parties' son (AE-VS). Kevin resisted the proposed relocation. As a result, Carmen filed a complaint on December 14, 2009, in which she sought separate maintenance, custody, child support, permission to relocate, and attorney fees. In response, Kevin objected to the proposed relocation and counterclaimed for a declaratory judgment based on the parties' prenuptial agreement.

[¶7.] The trial court held a hearing on February 11-12, 2010, to address the interim issues of child support, visitation, and attorney fees. After the hearing, the trial court entered a memorandum decision and interim order to establish the rights and obligations of the parties until the occurrence of a trial, which was originally set for July 2010, but was later moved to November 2010. Kevin and Carmen's son AE-VS was born on May 4, 2010.

[¶8.] On October 11, 2010, Kevin amended his answer and counterclaim, seeking a divorce from Carmen on the grounds of irreconcilable differences. Prior to their divorce trial, Kevin and Carmen stipulated to the enforceability of their prenuptial agreement. The parties' divorce trial was held on November 15-19, 2010. At trial, Kevin and Carmen disputed various issues. Some of the more significant issues included: whether New York City could provide better services to AC-AS than Sioux Falls; whether AC-AS participated in an appropriate amount of therapy; and whether the type and quantity of supplements AC-AS was taking was

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appropriate. Over the course of the trial and prior hearings, the parties and more than 15 experts provided testimony regarding these and other issues.

[¶9.] On March 4, 2011, the trial court entered extensive findings of fact and conclusions of law based on the evidence presented at both the February 2010 hearing and the November 2010 trial. However, both parties moved for reconsideration/clarification/amendment of the trial court's findings. The trial court addressed these motions at a hearing held on May 23, 2011. On July 12, 2011, the trial court entered an order on the parties' motions for reconsideration, a judgment and decree of divorce, and amended findings of fact and conclusions of law.

[¶10.] The trial court's amended findings of fact and conclusions of law consisted of 161 findings and 47 conclusions that were incorporated by reference into the judgment and decree of divorce. This Court addresses only those portions of the judgment and decree of divorce that are relevant to this appeal. In its judgment and decree of divorce, the trial court granted Kevin a divorce based upon irreconcilable differences and denied Carmen's request to relocate to New York City. The trial court ordered Kevin to pay Carmen $3,971,973.90 to satisfy the $5 million total she was entitled to under the prenuptial agreement. In addition, the trial court awarded Kevin and Carmen joint legal and physical custody of AC-AS and AE-VS. The trial court also adopted a modified version of the custody schedule proposed by Dr. Price (Kevin's expert).

[¶11.] With regard to AC-AS's therapy, the trial court ordered that the State-provided therapy granted to AC-AS under her IEP would be the minimum amount of therapy AC-AS would receive. The trial court also ordered that the

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recommendations of AC-AS's doctor (Dr. Blake) would control matters in which the parties disagreed about the healthcare needs of the children, including disputes about additional therapy for AC-AS. Further, the trial court ordered that Kevin be permitted to take part in determining the appropriate financial terms for certain services Carmen specifically wanted AC-AS to participate in, assuming Dr. Blake found these services to be appropriate.

[¶12.] Additionally, the trial court rejected Carmen's request for child support of more than $25,000 per month. In Carmen's reply brief and Exhibit 423, Carmen clarifies that approximately $9,200 of the $25,000 total is attributable to costs associated with the children's actual needs and standard of living ("base" child support), while the remaining costs of $15,800 are attributable to AC-AS's special needs. In rejecting Carmen's child support request, the trial court instead ordered Kevin to pay Carmen "base" child support of $2,815 per month. The trial court also ordered Kevin to pay for health insurance for the children, 95 percent of AC-AS's therapy costs, 95 percent of the supplemental costs associated with AC-AS's special needs, 95 percent of the children's uncovered medical expenses, 95 percent of the nanny expenses incurred until AC-AS entered preschool, and 95 percent of private school tuition (if applicable). Finally, the trial court denied Carmen's request for attorney fees of more than $370,000. Carmen appeals several of the trial court's determinations.


[¶13.] "[This Court] review[s] child custody decisions under the abuse of discretion standard of review." Simunek v. Auwerter, 2011 S.D. 56, ¶ 8, 803 N.W.2d

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835, 837 (citing Fuerstenberg v. Fuerstenberg, 1999 S.D. 35, ¶ 22, 591 N.W.2d 798, 807). In addition, the trial court's decisions regarding child support and the division of property are reviewed for an abuse of discretion. Hill v. Hill, 2009 S.D. 18, ¶ 5, 763 N.W.2d 818, 822 (citing Billion v. Billion, 1996 S.D. 101, ¶ 14, 553 N.W.2d 226, 230). Further, "[a] circuit court's ruling on the allowance or disallowance of costs and attorney fees is also reviewed by this Court under the abuse of discretion standard of review." Terca v. Terca, 2008 S.D. 99, ¶ 18, 757 N.W.2d 319, 324 (citing Eccleston v. State Farm Mut. Auto. Ins. Co., 1998 S.D. 116, ¶ 20, 587 N.W.2d 580, 583).

[¶14.] "An abuse of discretion is 'a discretion...

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