on Briefs February 16, 2016
FROM THE CIRCUIT COURT OF THE THIRD JUDICIAL CIRCUIT DEUEL
COUNTY, SOUTH DAKOTA. THE HONORABLE RONALD K. ROEHR, Retired
RIBSTEIN, JENNIFER GOLDAMMER of Ribstein & Hogan Law
Firm, Brookings, South Dakota, Attorneys for plaintiff and
RAMSTAD of Crew & Crew, PC, Sioux Falls, South Dakota,
Attorneys for defendant and appellant.
Justice. GILBERTSON, Chief Justice, and KERN, Justice,
concur. SEVERSON and WILBUR, Justices, concur in part and
dissent in part.
[¶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
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
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
[¶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 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. The circuit