866 N.W.2d 556
S.D.2015Background
- Grant and Julie Rush lived in Philadelphia with two adult disabled sons until Grant moved to Winner, South Dakota around June 29, 2012. Julie and sons stayed in Pennsylvania.
- On July 25, 2012 Julie filed a Pennsylvania support petition; on July 30, 2012 Grant filed for divorce in Tripp County, SD and mailed the summons and admission-of-service forms to Julie.
- Julie signed the admission of service on August 17, 2012. The circuit court construed service timing and dismissed Grant’s SD divorce for lack of personal jurisdiction and, alternatively, under forum non conveniens.
- The circuit court found Grant lacked many indicia of South Dakota residency (no prior SD property, recent move, no initial SD license/voter registration, described as an "escape"). The court also pointed to the pending Pennsylvania support action.
- The Supreme Court held the action was commenced when Julie returned the admission (Aug 17, 2012), found sufficient evidence Grant was a SD resident by that date, and concluded the trial court erred both on personal jurisdiction and on dismissing under forum non conveniens because no Pennsylvania divorce had been filed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether SD court had personal jurisdiction (residency at commencement) | Grant: He was a SD resident when the action commenced (had moved, obtained SD license, voter registration, bank account, employment). | Julie: Service/mail date (July 30) controls and Grant lacked residency indicia then; residency was a divorce-forum-shopping attempt. | Action commenced when admission of service was signed (Aug 17); Grant had established residency by that date — jurisdiction exists. |
| Whether SD court properly dismissed under forum non conveniens | Grant: SD is proper forum; divorce properly commenced here first. | Julie: Pennsylvania (first-filed support action) is more appropriate forum given overlapping issues and contacts. | Dismissal on forum non conveniens was erroneous — controlling precedent forbids declining to hear a divorce properly commenced in SD when no competing divorce was filed elsewhere. |
Key Cases Cited
- Parsley v. Parsley, 734 N.W.2d 813 (S.D. 2007) (residency requires actual residence not temporary or solely to obtain divorce)
- JAS Enters., Inc. v. BBS Enters., Inc., 835 N.W.2d 117 (S.D. 2013) (service of process is fundamental to due process and notice)
- Lustig v. Lustig, 560 N.W.2d 239 (S.D. 1997) (court may not dismiss divorce properly commenced in SD in favor of another state)
- Langdeau v. Langdeau, 751 N.W.2d 722 (S.D. 2008) (reaffirming Lustig rule against dismissing SD-filed divorces for forum reasons)
- Rothluebbers v. Obee, 668 N.W.2d 313 (S.D. 2003) (forum non conveniens applies in personal injury context; distinguished from divorce cases)
- Young v. Mt. Hawley Ins. Co., 864 F.2d 81 (8th Cir. 1988) (mail-service acknowledgment not effective service if acknowledgment not returned)
- Coons v. St. Paul Cos., 486 N.W.2d 771 (Minn. Ct. App. 1992) (statute with similar mail-service rule does not commence action until defendant acknowledges receipt)