S.D. justices uphold ‘extreme-cruelty’ divorce

Capitol News Bureau

A judge’s gavel is shown in a file photo. (Credit: iStock / Getty Images Plus)

PIERRE, S.D. (KELO) — A circuit judge who awarded custody of the children to the father in a divorce case did so because of the mother’s behavior, the South Dakota Supreme Court said.

Tim Evens of Rapid City received a divorce from Rachel Evens of Florence, Montana, on the grounds of extreme cruelty in November 2018 after a five-day trial. They had married in Havre, Montana, in 2005, moved to Rapid City in 2014, and had four minor children at the time of the divorce.

While still married and living in Rapid City, she accepted a position in 2017 as a nurse midwife in Wolf Point, Montana, 375 miles away, and took the children with her during her two-week rotation. One year later, she took a position in Wolf Point, Montana, approximately 760 miles from Rapid City. He filed for divorce in January 2018.

Circuit Judge Jeffrey Connolly found that she had physically and mentally abused him during their marriage. The judge awarded the father primary physical custody of the children and calculated her child support obligation at $1,132 per month.

The judge also ordered a marital property distribution and assessed her $22,705.24 in attorney fees, costs and disbursements that would be credited against his equalization payment.

Rachel Evens, representing herself, appealed the circuit court’s judgment and divorce decree in January 2019. In a decision released publicly Thursday, the Supreme Court ruled unanimously in favor of Tim Evens.

Justice Mark Salter wrote there wasn’t clear error in granting the divorce. “Here, the circuit court made detailed findings of fact and conclusions of law as part of its decision to grant Tim’s request for divorce on the grounds of extreme cruelty.”

On her challenge over custody, Justice Salter concluded: “The circuit court’s comprehensive custody analysis includes over 300 findings directed to determining the children’s best interests. These findings are supported by the record, and we conclude that the court did not abuse its discretion
by granting primary custody to Tim.”

The child-support amount was correctly calculated, according to Justice Salter: “In its findings of fact and conclusions of law, the court properly calculated the parties’ net incomes by including Tim’s retirement and disability income, his business net income, Rachel’s wages from her employment, and the amount of Tim’s FURS retirement income it had awarded to Rachel. The court also
deducted Rachel’s 401k contribution and the cost of health insurance coverage for the children as required by statute.”

As to the judge’s decision to award $15,000 of attorney fees from her to him, Justice Salter said there wasn’t an abuse of discretion: “Issues were also complicated by Rachel retaining four attorneys, each of whom subsequently withdrew, and contesting ‘whether Tim had grounds for divorce.’ The court also noted that Rachel filed ‘a number of frivolous motions’ and demanded ‘a number of needless hearings.’”

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