#27235-rev & rem-LSW

2015 S.D. 56

                         IN THE SUPREME COURT
                                 OF THE
                        STATE OF SOUTH DAKOTA

                                 ****
GRANT RUSH,                              Plaintiff and Appellant,

     v.

JULIE RUSH,                              Defendant and Appellee.


                                 ****

                  APPEAL FROM THE CIRCUIT COURT OF
                      THE SIXTH JUDICIAL CIRCUIT
                     TRIPP COUNTY, SOUTH DAKOTA

                                 ****

               THE HONORABLE KATHLEEN F. TRANDAHL
                              Judge

                                 ****

BROOKE D. SWIER SCHLOSS
SCOTT R. SWIER of
Swier Law Firm, Prof. LLC
Avon, South Dakota                       Attorneys for plaintiff
                                         and appellant.


STEPHANIE E. POCHOP
KELSEA K. SUTTON of
Johnson Pochop & Bartling, LLC
Gregory, South Dakota                    Attorneys for defendant
                                         and appellee.

                                 ****

                                         CONSIDERED ON BRIEFS
                                         ON APRIL 20, 2015

                                         OPINION FILED 07/01/15
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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


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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


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relates to at least some of the issues that would be addressed in this divorce

proceeding[.]” The court found that private interest and 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).




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                                      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 mailing a copy of the

summons, two copies of the notice and admission of service, conforming

substantially to the form provided for in § 15-6-4(j), and a return envelope, postage

prepaid, addressed to the sender.” SDCL 15-6-4(i). See also Parsley, 2007 S.D. 58,

¶ 22, 734 N.W.2d at 819 (“A summons is properly served upon a defendant in any


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action by mailing a copy of the summons and two copies of the notice and admission

of service, assuming a copy of the admission of service is signed and returned by the

party being served.”).

[¶10.]       Grant filed for a divorce and mailed a copy of the summons, two copies

of the notice and admission of service, and a return envelope, postage prepaid,

addressed to him on July 30, 2012, in compliance with SDCL 15-6-4(i). Julie signed

the admission of service on August 17, 2012. Therefore, this divorce action was

commenced on August 17, 2012—not on July 30, 2012. An action is not commenced

under SDCL 15-6-4(i) when a plaintiff merely mails a copy of the summons and

complaint to the defendant. Instead, an action is commenced either when the

defendant is personally served or the defendant signs the admission of service. See

SDCL 15-2-30 (“An action is commenced as to each defendant when the summons is

served on him . . . .” (emphasis added)).

[¶11.]       The plain language of SDCL 15-6-4(i) confirms that Grant’s divorce

action commenced on August 17, 2012. That statute indicates that if the defendant

does not sign the admission of service within 20 days of mailing, the plaintiff must

secure personal service. See SDCL 15-6-4(i) (“The notice and admission of service

shall set forth that the failure to sign and return the admission of service within

twenty days after the date of mailing without good cause will result in the court

ordering the person so served to pay the costs of personal service.” (emphasis

added)). The practical effect of this requirement is that service is not perfected until




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the defendant signs the admission of service or is personally served. * “We have

recognized that ‘proper service of process is no mere technicality: that parties be

notified of proceedings against them affecting their legal interests is a “vital

corollary” to due process and the right to be heard.’” JAS Enters., Inc. v. BBS

Enters., Inc., 2013 S.D. 54, ¶ 13, 835 N.W.2d 117, 123 (quoting R.B.O. v. Priests of

the Sacred Heart, 2011 S.D. 86, ¶ 7, 807 N.W.2d 808, 810). “Service of process

advises a party that ‘a legal proceeding has been commenced’ and warns ‘those

affected to appear and respond to the claim.’” Id. (quoting R.B.O., 2011 S.D. 86, ¶ 9,

807 N.W.2d at 810). Simply placing the summons and complaint in the mail under




*     Other jurisdictions, in construing statutes similar to SDCL 15-6-4(i), have
      reached the same conclusion that an action is not commenced by mailing the
      summons and complaint. See Young v. Mt. Hawley Ins. Co., 864 F.2d 81, 82
      (8th Cir. 1988) (per curiam) (agreeing with the majority position that “if the
      acknowledgment form is not returned, the formal requirements of mail
      service are not met and personal service must be obtained”); Coons v. St. Paul
      Cos., 486 N.W.2d 771, 775 (Minn. Ct. App. 1992) (holding that an action is
      not commenced until the defendant acknowledges the receipt of the summons
      and complaint); Langowski v. Altendorf, 812 N.W.2d 427, 433 (N.D. 2012)
      (“[S]ervice . . . is complete at the time of actual delivery and not when a
      summons is placed in the mail[.]”). The Coons decision involved a Minnesota
      statute substantially similar to SDCL 15-6-4(i). The court agreed that the
      statute “makes it clear that mailing a summons and complaint does not
      commence the action.” Coons, 486 N.W.2d at 775 (quoting 1 David Herr &
      Roger S. Haydock, Minnesota Practice § 3.3 (1985)). Furthermore, the court
      noted that “[b]ecause the defendant is accordingly given the power to let the
      statute of limitations run before acknowledging receipt, or even simply to not
      acknowledge receipt, service by mail should be avoided at any time near the
      end of the period of limitations.” Id. (quoting 1 Herr & Haydock, supra, §
      3.3). The court further warned that “[b]ecause effective service under rule
      4.05 requires the cooperation of defendants, plaintiffs should secure the
      cooperation of defendants before attempting service, or else plaintiffs should
      choose another method of service.” Id.

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SDCL 15-6-4(i) does not notify or warn a defendant of proceedings against him.

Therefore, the circuit court erred when it concluded that the divorce action

commenced when Grant mailed Julie a copy of the summons on July 30, 2012.

Instead, the divorce action was commenced when Julie signed the admission of

service on August 17, 2012. As a result, in order to confer personal jurisdiction on

the circuit court under SDCL 25-4-30, Grant must have been a resident of South

Dakota on August 17, 2012.

Residency

[¶12.]       The Legislature has not defined “resident” as it is used in SDCL 25-4-

30. In Parsley, we said that “[i]t follows that the residence must be an actual

residence as distinguished from a temporary abiding place[.]” 2007 S.D. 58, ¶ 17,

734 N.W.2d at 818 (quoting Snyder v. Snyder, 35 N.W.2d 32, 33-34 (Iowa 1948)).

Importantly, the residence “must not be a residence solely for the purpose of

procuring a divorce[.]” Id. (quoting Snyder, 35 N.W.2d at 34); see also Yost v. Yost,

72 N.W.2d 689, 694-95 (Neb. 1955) (recognizing the principle that a plaintiff does

not establish residency for purposes of a divorce action when the sole purpose for

the residency is to obtain the divorce).

[¶13.]       In Parsley, we upheld the circuit court’s conclusion that the plaintiff,

Duane Parsley, was a resident of South Dakota. 2007 S.D. 58, ¶ 19, 734 N.W.2d at

818-19. In that case, “[t]he circuit court heard abundant evidence that Duane had

lengthy ties to South Dakota[.]” Id. ¶ 19, 734 N.W.2d at 818. The plaintiff

introduced evidence that he listed Jones County, South Dakota, as his county of

residence when filing federal income tax returns. Id. ¶ 18, 734 N.W.2d at 818.


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Duane had acquired real property in South Dakota “with intentions of constructing

and establishing a home for his family.” Id. He had registered vehicles in South

Dakota, obtained a South Dakota driver’s license, and registered to vote. Duane

further testified and introduced evidence of his participation in community

activities and organizations in South Dakota. We concluded that these facts

supported the circuit court’s finding of residency and that “there is nothing to

indicate that Duane established this residency for purposes of obtaining a divorce.”

Id. ¶ 19, 734 N.W.2d at 818-19.

[¶14.]       Likewise, Grant has demonstrated that he was a resident of South

Dakota on August 17, 2012. Similar to Parsley, Grant obtained a South Dakota

driver’s license on August 3 and registered to vote in the state on August 6. The

record further shows that Grant moved to South Dakota on or around June 29,

2012, and resided in South Dakota for over 45 days before he commenced this

action. Grant began to receive his mail in Winner, South Dakota, on July 1. Grant

obtained a South Dakota telephone number on July 5 and opened a South Dakota

bank account with First Fidelity Bank of Winner and made a deposit on July 9.

Grant also found employment at Community Connections in Winner, South Dakota.

He introduced a copy of his first paycheck from Community Connections for the pay

period of July 24 to August 6.

[¶15.]       The circuit court expressed concern that Grant may have attempted to

establish residency for the sole purpose of obtaining a divorce in South Dakota

under more favorable child support laws. Unlike Pennsylvania, South Dakota has

no provision requiring that Grant support his adult children. But, simply because


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of that fact, Grant should not be prevented from obtaining residency in South

Dakota. There is substantial evidence in the record that Grant established actual

residency in South Dakota by August 17, 2012, 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.

[¶16.]       2.     Whether the circuit court erred in dismissing Grant’s
                    divorce action based on the doctrine of forum non
                    conveniens.

[¶17.]       Having concluded that the circuit court had personal jurisdiction to

hear the divorce action, we next consider whether the circuit court erred in

dismissing the divorce action under the doctrine of forum non conveniens. The

court stated, “There is a pending, first-filed family law action in that state 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 if it were to be tried in

Tripp County, South Dakota.” Thus, the court concluded, “Under the forum non

conveniens doctrine, Pennsylvania is the more appropriate and convenient forum

for this divorce matter.”

[¶18.]       In Lustig v. Lustig, 1997 S.D. 24, ¶ 12, 560 N.W.2d 239, 244, we said

that “[n]o margin within SDCL 15-5-11(3) and [SDCL] 25-4-30.1 grants our courts

the means to dismiss divorce actions, properly commenced first in South Dakota, in

favor of another state’s jurisdiction.” We reaffirmed this conclusion in Langdeau v.

Langdeau, 2008 S.D. 44, ¶ 18, 751 N.W.2d 722, 729. The record is clear that there

is no pending divorce proceeding in Pennsylvania. At most, there is a pending

support action. The rule in Lustig and Langdeau plainly states that “[c]ircuit courts


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may not refuse to hear divorce proceedings properly commenced first in South

Dakota, in favor of another state’s jurisdiction.” Langdeau, 2008 S.D. 44, ¶ 18, 751

N.W.2d at 729 (emphasis added) (citing Lustig, 1997 S.D. 24, ¶ 14, 560 N.W.2d at

245).

[¶19.]       We further reject Julie’s argument that Rothluebbers v. Obee, 2003

S.D. 95, 668 N.W.2d 313, controls our application of the forum non conveniens

doctrine in this case. Julie contends that we should apply Rothluebbers to this case

instead of Lustig and Langdeau. In Rothluebbers, we stated that “the doctrine of

forum non conveniens is alive and well in the State of South Dakota.” Id. ¶ 7, 668

N.W.2d at 317. But Rothluebbers involved a personal injury action rather than a

divorce action. Based on that distinction, we expressly stated in Rothluebbers that

Lustig did not control the application of the forum non conveniens doctrine because

“Lustig was a divorce and child custody case.” Id. ¶ 6 n.2, 668 N.W.2d at 317 n.2

(acknowledging that circuit courts may not “dismiss divorce actions, properly

commenced first in South Dakota, in favor of another state’s jurisdiction” (quoting

Lustig, 1997 S.D. 24, ¶ 12, 560 N.W.2d at 244)). Consequently, because Grant

properly commenced the divorce action in South Dakota and no divorce action had

ever been commenced in Pennsylvania, the circuit court erred by dismissing this

action.

[¶20.]       We reverse and remand.

[¶21.]       GILBERTSON, Chief Justice, and ZINTER, SEVERSON, and KERN,

Justices, concur.




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