Swier Law Firm Secures South Dakota Supreme Court Win in Divorce Case

Posted on Jul 06, 2015

On July 1, 2015, the South Dakota Supreme Court ruled in favor of firm client Grant Rush in Rush in Rush. In reversing the decision ot the circuit court, the Supreme Court found that personal jurisdiction existed for Mr. Rush's divorce proceeding in Tripp County.

Julie and Grant Rush were married in 1990 in Pennsylvania. Julie, Grant, and their two sons resided together in Pennsylvania until as late as June 2012. Shortly thereafter, Grant left the marital home and moved into his mother’s home in Winner, South Dakota. Julie and the children continued to reside at the marital home in Pennsylvania.

On July 25, 2012, Julie filed a “Uniform Support Petition” in Pennsylvania seeking child and spousal support. The Pennsylvania court 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[.]”

After Julie filed her Pennsylvania support case, Grant filed for a divorce in Tripp County alleging that he was a resident of Winner for purposes of personal jurisdiction. The circuit court dismissed Grant's divorce action “for lack of jurisdiction and on the grounds of the forum non conveniens doctrine.” On appeal, Grant argued that he was a resident of South Dakota at the time he filed for a divorce in Tripp County and that the circuit court incorrectly dismissed his divorce action. 

In finding for Grant, the Supreme Court noted that (1) Grant obtained a South Dakota driver’s license on August 3 and registered to vote in the state on August 6; (2) Grant moved to South Dakota on or around June 29, 2012, and resided in South Dakota for over 45 days before he commenced his divorce action; (3) Grant began to receive his mail in Winner on July 1; (4) Grant obtained a South Dakota telephone number on July 5, opened a South Dakota bank account with First Fidelity Bank of Winner, and made a deposit on July 9; and (5) Grant also found employment at Community Connections in Winner and introduced a copy of his first paycheck from Community Connections for the pay period of July 24 to August 6. The Supreme Court stated, "[t]here is substantial evidence . . . that Grant established actual residency in South Dakota . . . for purposes other than obtaining a divorce. Therefore, the circuit court erred when it concluded that it did not have personal jurisdiction over the parties in this proceeding."

The Supreme Court also upheld its long-standing position that the doctrine of forum non conveniens prevented the circuit court from dismissing Grant's divorce action. "No margin within [South Dakota law] grants our courts the means to dismiss divorce actions, properly commenced first in South Dakota, in favor of another state’s jurisdiction.”

The Supreme Court's decision can be read here.

Swier Law Firm's Brooke Swier Schloss and Scott Swier represented the prevailing party before the Supreme Court.