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Allison Marko v. James Marko

June 27, 2012



The opinion of the court was delivered by: Konenkamp, Justice



[¶1.] In this divorce appeal, the father asserts that the trial judge (1) should have disqualified himself; (2) abused his discretion in restricting visitation; and (3) erred in granting the mother a divorce on grounds of extreme mental cruelty.


[¶2.] Allison Marie and James (Jim) Joseph Marko married on September 26, 1998. Three children were born of the marriage: Ashley on October 2, 2001, Caden on January 14, 2006, and Carson on January 8, 2008. Allison, a dental assistant, has always been the primary wage earner for the family, working full time and earning nearly twice what Jim earned. Jim has held several positions over the years, but none full time. He worked part time for an ambulance service as an EMT. He has an associate's degree in law enforcement, but has served only as a volunteer reserve police officer. Jim testified that he presently works as a seasonal employee in the construction industry and operates a snow plow in the winter. When there is no work, he "fall[s] back on unemployment" compensation benefits.

[¶3.] In 2007, while Jim was working part time at a restaurant, he struck up a friendship with a sixteen-year-old female coworker, K.S. At the time, Jim was attending training to become an EMT. K.S. expressed a similar interest, and Jim invited her to ride to training with him. K.S. would later testify that she and Jim, on two occasions, drove to Lake Alvin and had sexual intercourse. Jim was then thirty-two years old and K.S. was a high school junior. When K.S. told her parents about her relationship with Jim, they contacted the authorities. The matter was investigated, but K.S. was at the age of consent, so no charges were brought. See SDCL 22-22-1(5). When Allison learned of Jim's infidelity, she called K.S., who confirmed her sexual liaison with Jim. Allison was pregnant with Carson at the time.

[¶4.] In March 2010, the Marko family was eating at a restaurant when an eighteen-year-old employee, Emmy, passed out and hit her head. Jim, as an EMT, gave assistance. Emmy later located Jim on Facebook and sent him a message thanking him for his help. She offered to babysit the Marko children, and she was invited to dinner to become better acquainted. Not long afterwards, Emmy called Jim in the middle of the night to say that her boyfriend had assaulted her and she had nowhere to go. She came to the Marko home and spent the night. After that, she began spending more time with the family.

[¶5.] Allison and Jim's relationship was deteriorating. Jim asked Allison to attend marital counseling. But having previously attended couples' counseling with Jim, Allison opted to see a therapist individually. She had decided to end the marriage. In July 2010, Allison brought a divorce action on grounds of irreconcilable differences or, in the alternative, extreme cruelty. Jim moved out of the marital home and into a nearby apartment. The children remained with Allison.

[¶6.] Allison soon petitioned the circuit court for a temporary protection order, asserting that Jim was harassing her. The order was granted, but was later allowed to expire. By stipulation, a temporary order was entered providing that Jim and Allison would have joint legal custody of the children, with primary physical custody for Allison, and parenting time for Jim consistent with South Dakota's guidelines. See SDCL ch. 25-4A (Appendix A, South Dakota Parenting Guidelines).

[¶7.] In October 2010, Emmy moved in with Jim. She had graduated from high school, obtained part-time employment, and started college in Sioux Falls. Jim and Emmy shared monthly expenses and the same bed. And although they conceded there might be kissing and hand holding on occasion, in court they denied any sexual relations. Jim explained that they were not an "exclusive dating couple."

[¶8.] Emmy developed a close relationship with the Marko children, Ashley in particular. Then nine years old, Ashley considered Emmy her "best friend."

Ashley's relationship with her mother, conversely, became increasingly strained. She blamed her mother for the divorce. According to Allison, Ashley acted out and became derisive following visits with Jim and Emmy. At one point, after having sought Emmy's advice, Ashley wrote a letter to Allison telling her, "You hurt me a lot . . . . I had to go through all that pain and stress. . . . You really need to leave

Dad alone. I look out for daddy a lot just like he does for me." She warned her mother "to stay away," calling her a "loser," amid other insults. In a separate note ...

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