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Brosnan v. Brosnan

Supreme Court of South Dakota

November 21, 2013

ELIZABETH ANN BROSNAN n/k/a ELIZABETH A. AUDISS, Plaintiff and Appellee,
v.
JESSE JOHN BROSNAN, Defendant and Appellant.

ARGUED ON OCTOBER 1, 2013

APPEAL FROM THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT UNION COUNTY, SOUTH DAKOTA THE HONORABLE CHERYLE W. GERING Judge

ELIZABETH ROSENBAUM Sioux City, Iowa Attorney for plaintiff and appellee.

ALEX HAGEN of Cadwell, Sanford, Deibert & Garry, LLP Sioux Falls, South Dakota Attorneys for defendant and appellant.

OPINION

WILBUR, Justice

[¶1.] The circuit court granted a motion to relocate brought by Elizabeth (Brosnan) Audiss (Elizabeth). Jesse Brosnan (Jesse) appeals. We affirm.

FACTS AND PROCEDURAL BACKGROUND

[¶2.] Jesse and Elizabeth were married in 2003. From this marriage, two children were born: J.J.B., a son, and J.E.B., a daughter.

[¶3.] The couple divorced in 2009. Judge Arthur L. Rusch awarded the divorce to Elizabeth on the grounds of extreme cruelty based on incidences of domestic violence committed by Jesse. Because of the couple's inability to work together to raise the children, Judge Rusch awarded sole legal custody of the children to Elizabeth. Judge Rusch also awarded primary physical custody of the children to Elizabeth and granted visitation to Jesse. The divorce decree did not contain a moving restriction.

[¶4.] Both of the children had issues requiring therapy. J.J.B. was diagnosed with attention deficit hyperactivity disorder (ADHD) and oppositional defiance disorder. Prior to the divorce, J.J.B. had been seen by many medical providers and had been hospitalized in a children's psychiatric ward. Jesse often disagreed with the medical professionals, who prescribed medication to treat J.J.B.'s ADHD.[1] Additionally, J.E.B. was diagnosed with generalized anxiety disorder.

[¶5.] In April 2010, Elizabeth began a relationship with Jonnathan Audiss (Jonnathan), whom Elizabeth had met when they were both in junior high school in Martin, South Dakota. Jonnathan moved to Sioux City, Iowa, to live with Elizabeth. While in Sioux City, Jonnathan worked in the construction industry as a construction manager.

[¶6.] Elizabeth and Jonnathan were married on February 12, 2011.[2] Approximately one year after the marriage, Jonnathan was terminated from his job. After briefly looking for a job in the Sioux City area, Jonnathan accepted a position at a construction equipment rental company, which was a short distance from a house that Jonnathan owned in Murietta, California.

[¶7.] In mid-February 2012, Elizabeth sent Jesse a notice of intent to relocate to California and indicated that she, Jonnathan, and the children intended to move to California in March 2012. On February 29, 2012, Elizabeth sent Jesse an email and indicated that she intended to move "in less than 2 weeks." In response, Jesse filed an application for a temporary restraining order and preliminary injunction seeking to enjoin Elizabeth's departure.

[¶8.] A two-day hearing on Elizabeth's motion to relocate was held in April 2012. The circuit court issued a memorandum decision in May 2012 and provided the factors it believed to be critical in determining whether Elizabeth had met her burden in establishing that the relocation request was in the best interests of the children. The circuit court determined that it was in the best interests of the children to move to California, but delayed its final decision because it was concerned with whether Jonnathan could financially provide for the family in California. As a result, the circuit court required Elizabeth to submit evidence of two months of income showing that Jonnathan was earning what he had testified he expected to earn in California. At a second hearing in July 2012, Elizabeth presented evidence that Jonnathan had received the anticipated income from his employer in California.

[¶9.] In August 2012, the circuit court entered its findings of fact and conclusions of law, incorporating both the May 2012 memorandum decision and the evidence from the hearing in July 2012, and determined that the relocation was in the best interests of the children. The circuit court also concluded that both parties were reasonable in their respective positions regarding the relocation motion and neither party unreasonably increased the time spent on the case. The circuit court awarded Elizabeth $3, 500 in attorney fees.

[¶10.] Jesse presents the following issues in this appeal:

I. Whether the circuit court erred in (i) failing to exclude exhibits and testimony that related back to pre-divorce events, and (ii) relying on that inadmissible evidence to re-litigate issues previously adjudicated by Judge Rusch.
II. Whether the circuit court abused its discretion in granting Elizabeth's motion to relocate to California with the children.
III. Whether the circuit court erred in ordering Jesse to pay Elizabeth's attorney fees arising from Elizabeth's relocation motion.

Additionally, Elizabeth and Jesse filed motions with this Court each requesting appellate attorney fees pursuant to SDCL 15-26A-87.3. The ...


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