Brosnan v. Brosnan
2013 SD 81
| S.D. | 2013Background
- Elizabeth and Jesse married in 2003 and have two minor children.
- Divorce in 2009 awarded Elizabeth sole legal custody and primary physical custody with visitation to Jesse; no moving restriction.
- Children required therapy; J.J.B. diagnosed with ADHD and other issues; J.E.B. with generalized anxiety disorder.
- Elizabeth began a relationship with Jonnathan Audiss in 2010, married him in 2011, and planned to relocate the family to California in 2012.
- Jesse opposed relocation; a two-day hearing was held; circuit court found relocation to be in the best interests of the children and awarded Elizabeth $3,500 in attorney fees.
- Jesse appeals arguing evidentiary errors, abuse of discretion on relocation, and fee awards.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Evidentiary ruling on pre-divorce evidence | Brosnan argues admissible to show current context and stability. | Brosnan contends pre-divorce evidence is inadmissible, prejudicial, relitigates divorce issues. | Court did not abuse discretion; evidence used for background and current context, not relitigation. |
| Relocation to California in best interests | Elizabeth proved best interests by stability, primary caregiver status, and employment in California. | Jesse argues relocation disrupts stability and overemphasizes new family unit. | Circuit court did not abuse its discretion; relocation in children’s best interests. |
| Parental fitness as a relocation factor | Fitness considered; Elizabeth fit; Jesse historically not fit but improving. | Fitness should reflect past unfitness and ongoing risk; overemphasized. | Court properly weighed fitness as part of a balanced analysis. |
| Stability and the 'family unit' language | Family unit context allowed; relocation can benefit family as a whole. | Harm to stability and continuity if move occurs. | Court treated family unit as one factor among several; not an abuse of discretion. |
| Attorney fees for relocation-related litigation | SDCL 15-17-38 permits fees in custody-related matters including relocation. | Fees improper where relocation is not a custody dispute. | Fees awarded to Elizabeth; court did not abuse discretion. |
Key Cases Cited
- Hogen v. Pifer, 757 N.W.2d 162 (2008 SD 96) (relocation factors; parental fitness considered)
- Fuerstenberg v. Fuerstenberg, 591 N.W.2d 798 (1999 SD 35) (guideposts for best interests factors)
- Zepeda v. Zepeda, 632 N.W.2d 48 (2001 SD 101) (balanced consideration of factors in custody decisions)
- Fortin v. Fortin, 500 N.W.2d 229 (1993 SD) (family unit considerations; stability vs. new unit)
- Beaulieu v. Birdsbill, 815 N.W.2d 569 (2012 SD 45) (recognizes broad factor analysis in relocation)
- Schieffer v. Schieffer, 826 N.W.2d 627 (2013 SD 11) (stability and subfactors in relocation analysis)
- Kreps v. Kreps, 778 N.W.2d 843 (2010 SD 12) (balance of factors in best interests)
- Maxner v. Maxner, 730 N.W.2d 619 (2007 SD 30) (purpose and scope of parental fitness considerations)
- Driscoll v. Driscoll, 568 N.W.2d 771 (1997 SD 113) (attorney fees analysis in domestic relation cases)