Marko v. Marko
816 N.W.2d 820
S.D.2012Background
- Allison Marko filed for divorce from James Marko in 2010, seeking irreconcilable differences or extreme mental cruelty.
- The trial court awarded temporary joint legal custody with Allison’s sole physical custody and set parenting time for Jim under SD guidelines.
- Emmy, a teenage employee’s associate, moved into Jim’s home; she developed a close role with the Marko children, particularly Ashley, raising conduct concerns.
- Jim admitted non-exclusive dating with Emmy; Allison alleged Emmy’s interference with parenting and a pattern of undermining Allison’s authority.
- The judge learned of a prior Emmy-related divorce case and disclosed potential disqualification; Jim moved for his disqualification but the judge stayed on the case.
- The court ultimately granted Allison a divorce on extreme mental cruelty, awarded her sole custody, and conditioned Jim’s visitation on no contact with Emmy; property division reserved for later.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Judicial disqualification required? | Marko asserts the judge’s prior Emmy case created bias. | Marko argues appearance of partiality mandates recusal. | No; court held no disqualification required. |
| Visitation restrictions valid? | Marko contends restrictions infringe parenting time. | Marko argues restrictions were improper in light of marital fault. | Restrictions upheld; visitation conditioned on no Emmy contact. |
| Extreme mental cruelty proven? | Allison sought relief on extreme mental cruelty. | Jim contends insufficient evidence for extreme mental cruelty. | Extreme mental cruelty proven; divorce affirmed. |
Key Cases Cited
- Caperton v. A.T. Massey Coal Co., Inc., 556 U.S. 868 (U.S. 2009) (due-process fairness and disqualification standards)
- Liteky v. United States, 510 U.S. 540 (U.S. 1994) (appearance of impartiality; preexisting opinions not always bias)
- Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847 (U.S. 1988) (appearance of partiality; objective standard)
- Ex parte Am. Steel Barrel Co., 230 U.S. 35 (U.S. 1913) (recusal principles in early landmark decision)
- List v. State, 2009 S.D. 73, 771 N.W.2d 646 (S.D. 2009) (recusal standards in SD context)