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Kolbach v. Kolbach

Supreme Court of South Dakota

March 30, 2016

CHRISTINA KOLBACH, Plaintiff and Appellee,
JOSEPH KOLBACH, Defendant and Appellant

         Considered on Briefs February 16, 2016

Page 823


         RICK A. RIBSTEIN, JENNIFER GOLDAMMER of Ribstein & Hogan Law Firm, Brookings, South Dakota, Attorneys for plaintiff and appellee.

         RICK L. RAMSTAD of Crew & Crew, PC, Sioux Falls, South Dakota, Attorneys for defendant and appellant.

         ZINTER, Justice. GILBERTSON, Chief Justice, and KERN, Justice, concur. SEVERSON and WILBUR, Justices, concur in part and dissent in part.


Page 824

          ZINTER, Justice

          [¶1] In this divorce case, Joseph Kolbach appeals the circuit court's decisions regarding custody of the children, relocation of the custodial parent, division of property, award of alimony, and award of attorney's fees. We affirm the circuit court's custody and relocation decisions. The alimony award is reversed, and the property division is remanded for revision in accordance with this opinion.

         Facts and Procedural History

          [¶2] Christina and Joseph Kolbach married in July 2007. They have two children, six-year-old Kiana and five-year-old Kipp. Joseph also has an eleven-year-old child (Amelia) from a prior marriage. Amelia lives with her mother in Sioux Falls. Joseph regularly exercises parenting time with Amelia, including alternating weekends.

          [¶3] Joseph is a successful businessperson. He began working in the wind energy business when he was eighteen. In 1999, he founded Energy Maintenance Systems (EMS). In 2008, he sold EMS for approximately $33 million. In 2008, Joseph purchased the Buffalo Ridge Resort in Gary, South Dakota and began remodeling and restoring the property. The resort opened in 2009.

          [¶4] Christina graduated from college in 2004. Prior to marrying Joseph, she worked in Fort Worth, Texas for an import-export business. During their marriage, Christina worked as Joseph's personal assistant for a time and assisted in the remodeling of the Buffalo Ridge Resort. Christina's primary role was being a homemaker and caretaker of the children.

          [¶5] In June 2013, Christina and the children left the marital residence and Christina filed for divorce. She sought divorce on the grounds of irreconcilable differences and extreme cruelty. Joseph answered and filed a counterclaim on the same grounds. In July 2014, Christina notified Joseph of her intent to relocate to Sioux Falls with the children. Joseph filed an objection. The parties' divorce trial began on August 13. The trial continued on August 14 and 15. Sometime around August 18, Christina moved with the children to Sioux Falls and enrolled Kiana in a school that utilizes a Spanish-immersion curriculum. Joseph filed a motion to restrain Christina's relocation. The trial resumed

Page 825

on September 16 and 30, and the court declined to rule on the relocation issue until the close of evidence in the divorce trial. The trial concluded on October 1, 2014.

          [¶6] In its judgment and decree, the court awarded joint legal custody of the children with primary physical custody to Christina. The court also allowed Christina to continue to reside in Sioux Falls. The court awarded Christina certain property that, together with a $1,050,000 cash equalization payment, equaled 11.98% of the parties' net assets. The court also ordered Joseph to pay $1,000 per month in permanent alimony and $70,000 in attorney's fees and costs. Joseph appeals each of these rulings.


         Child Custody

          [¶7] Joseph argues that the circuit court abused its discretion in awarding primary physical custody to Christina. Joseph contends the court's review of the traditional child custody factors[1] was incomplete and its findings were inconsistent with the record. See Severson v. Hutchinson, 2013 S.D. 70, ¶ 16, 838 N.W.2d 72, 76 (stating that a circuit court abuses its discretion in a child custody determination when its " review of the traditional factors bearing on the best interests of the child[ren] is scant or incomplete" ).

          [¶8] The circuit court's review of the traditional child custody factors was not scant, incomplete, or inconsistent with the record. The court ordered a child custody evaluation by a licensed social worker. The custody evaluator conducted a thorough evaluation of the familial situation and addressed the best interests of the children under each of the traditional factors. The custody evaluator recommended joint legal custody with Christina having primary physical custody. The court found the evaluator's testimony and report professional and helpful. The court ultimately adopted the custody evaluator's recommendation. The court also addressed each of the traditional factors in its memorandum opinion.[2] The circuit ...

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