The South Dakota Supreme Court weighs in on when a divorce can be issued on fault based grounds of extreme cruelty. A father in a divorce case was awarded custody of his children, attorneys’ fees and sanctions the hard way.
Bad Marriages in the Badlands
Rachel Evens and Tim Evens were married in 2005 and have four children. Tim owned and operated a carpet cleaning business, known as Tim Evens Carpet Care. Rachel began working for Tim’s carpet cleaning business and Tim gave her a 90% ownership interest.
Then things went bad.
Rachel obtained a domestic violence injunction based on allegations that Tim physically and sexually assaulted her. She removed the children from their schools in Rapid City and took them to Montana. But after an evidentiary, the court found her testimony was not credible and denied the injunction.
When Tim traveled 750 miles to get the children, Rachel prevented Tim’s departure by taking the keys to his vehicle and physically engaging him by pushing and pulling him inside of her house and in front of the children.
Rachel was represented by four different attorneys, each of whom quickly moved to withdraw
Rachel physically and mentally abused Tim, loudly accusing Tim of extramarital affairs at a restaurant, causing patrons to take notice. After dinner, Rachel told Tim she was going out to find a man to satisfy her, only to return later to taunt him by advising him she had succeeded in her effort.
Rachel falsely accused Tim of raping her, failing to pay taxes and hunting without a license, all of which the court determined were unsupported by the evidence
Tim commenced a divorce alleging irreconcilable differences or, in the alternative, extreme cruelty. Tim also requested primary physical custody of the children, equitable division of the parties’ assets, and child support
Florida Fault and Extreme Cruelty
I’ve written about no fault divorce before. No-fault laws are the result of trying to change the way divorces played out in court. In Florida no fault laws have reduced the number of feuding couples who felt the need to resort to distorted facts, lies, and the need to focus the trial on who did what to whom.
Unlike South Dakota, Florida abolished fault as grounds for filing a divorce. Gone are the days when you had to prove adultery, desertion or extreme cruelty.
The only ground you need to file for divorce in Florida is to prove your marriage is “irretrievably broken.” Additionally, the mental incapacity of one of the parties, where the party was adjudged incapacitated for the prior three year, is another avenue.
Supreme Court of the Black Hills
The Supreme Court of South Dakota found that the family judge had 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.
Specifically, the court found that Rachel had physically abused Tim, including hitting, slapping, and kneeing him, as well as spitting in his face. The court also found Rachel had mentally abused Tim by calling him several names, including “stupid, dumb” and a “prick of a man.”
Rachel also told Tim that she was going to find someone else to satisfy her while also accusing him of having extramarital affairs and leveling unsupported allegations that he had committed serious criminal misconduct.
The court credited testimony from several witnesses who relayed derogatory comments Rachel made about Tim to her family, the parties’ children, and their friends.
This behavior, the court found, had continued throughout the marriage with more frequent, escalating incidents over time. As a result, the court found that “Rachel’s conduct toward Tim during this marriage has caused Tim great pain, anxiety, stress, grievous mental and physical suffering and constitutes extreme cruelty.
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 South Dakota Supreme Court opinion is here.