#27235-rev & rem-LSW

2015 S.D. 56

IN THE SUPREME COURT

OF THE

STATE OF SOUTH DAKOTA

* * * *

GRANT RUSH, Plaintiff and Appellant,

v.

JULIE RUSH, Defendant and Appellee.

* * * *

APPEAL FROM THE CIRCUIT COURT OF

THE SIXTH JUDICIAL CIRCUIT

TRIPP COUNTY, SOUTH DAKOTA

* * * *

THE HONORABLE KATHLEEN F. TRANDAHL

Judge

* * * *

BROOKE D. SWIER SCHLOSS

SCOTT R. SWIER of

Swier Law Firm, Prof. LLC

Avon, South Dakota Attorneys for plaintiff 

and appellant. 

STEPHANIE E. POCHOP

KELSEA K. SUTTON of

Johnson Pochop & Bartling, LLC

Gregory, South Dakota Attorneys for defendant 

and appellee.

* * * *

CONSIDERED ON BRIEFS 

ON APRIL 20, 2015

OPINION FILED 07/01/15
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WILBUR, Justice

[¶1.] Grant Rush filed an action for divorce in Tripp County, South Dakota. 

The circuit court dismissed the action for lack of personal jurisdiction and, 

alternatively, on the basis of the forum non conveniens doctrine. We reverse and 

remand.

Background

[¶2.] Julie and Grant Rush were married on January 6, 1990, in 

Montgomery County, Pennsylvania. They have two adult sons, both of whom are 

alleged to be disabled. Julie, Grant, and their two sons resided together in 

Philadelphia, Pennsylvania, until as late as June 29, 2012. Shortly after June 29,

2012, Grant left the marital home without notice to Julie or their children and 

moved into his mother’s home in Winner, South Dakota. Julie and the children 

continued to reside at the marital home in Pennsylvania. 

[¶3.] On July 25, 2012, Julie filed a “Uniform Support Petition” in

Pennsylvania seeking child and spousal support. Pennsylvania law authorizes child 

support for disabled adult children. The circuit court in this action stated, “In a 

significant difference from South Dakota law, under Pennsylvania law[,] parents 

may have an ongoing legal duty to provide child support for an adult child who has 

a physical or mental condition at the time the child reaches 18 and that prevents 

the adult child from becoming self-supporting[.]” On July 30, 2012, five days after 

Julie filed her Uniform Support Petition, Grant filed for a divorce in Tripp County, 

South Dakota. Grant alleged that he was a resident of Winner, South Dakota, for 

purposes of personal jurisdiction. Grant mailed a copy of the summons and 
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complaint, as well as notices of admission of service, to Julie the same day he filed 

for a divorce—July 30, 2012. Julie signed an admission of service on August 17, 

2012. 

[¶4.] On April 4, 2014, Julie filed a motion to dismiss the divorce action for 

lack of personal jurisdiction. The circuit court conducted a hearing on May 6, 2014, 

and issued findings of fact and conclusions of law on October 2, 2014. The court 

dismissed the divorce action “for lack of jurisdiction and on the grounds of the forum 

non conveniens doctrine.” In support of dismissal for lack of personal jurisdiction, 

the court found “Grant was unable to credibly establish many of the primary 

hallmarks of true South Dakota residency at the time he filed for divorce in this 

state.” At the time Grant filed for a divorce on July 30, 2012, Grant did not own any 

real property in South Dakota. He did not have a South Dakota issued driver’s

license nor was he registered to vote in South Dakota. There was no evidence that 

Grant had any long-term plans to move to South Dakota before he filed for divorce. 

He did not advise important creditors, such as his medical care providers, that he 

was moving to South Dakota. The financial affidavit he filed with his divorce 

complaint indicated he was unemployed at the time he filed for divorce. 

Characterizing Grant’s move to South Dakota, the court stated, “Grant’s move . . .

was sudden and part of an ‘escape plan’ that he kept from his wife.”

[¶5.] Furthermore, the circuit court found, “Under the forum non conveniens

doctrine, Pennsylvania is the more appropriate and convenient forum for this 

divorce matter.” The court noted that there is “a pending, first-filed family law 

action in [Pennsylvania] where there is clear jurisdiction over both parties, and it 
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relates to at least some of the issues that would be addressed in this divorce 

proceeding[.]” The court found that private interest and public interest factors 

“clearly point in favor of trial in the alternative forum and support the conclusion 

that South Dakota is an inconvenient forum for this divorce action.” The court 

concluded, “In consideration of justice, fairness and convenience to the parties, the 

witnesses and the courts, this [c]ourt is declining to exercise jurisdiction in this 

divorce action on the basis of South Dakota’s forum non conveniens doctrine.” 

Grant appeals and raises the following two issues for our review:

1. Whether the circuit court erred in dismissing Grant’s 

divorce action for lack of personal jurisdiction.

2. Whether the circuit court erred in dismissing Grant’s 

divorce action based on the doctrine of forum non 

conveniens.

Standard of Review

[¶6.] “We review findings of fact ‘under the clearly erroneous standard of 

review.’” Pieper v. Pieper, 2013 S.D. 98, ¶ 12, 841 N.W.2d 781, 785 (quoting 

Schieffer v. Schieffer, 2013 S.D. 11, ¶ 15, 826 N.W.2d 627, 633). “The trial court’s 

findings of fact are presumed correct and we defer to those findings unless the 

evidence clearly preponderates against them.” Parsley v. Parsley, 2007 S.D. 58, 

¶ 15, 734 N.W.2d 813, 817 (quoting City of Deadwood v. Summit, Inc., 2000 S.D. 29, 

¶ 9, 607 N.W.2d 22, 25). “Conclusions of law, however, are reviewed de novo, with 

no deference to the court’s ruling.” Leonhardt v. Leonhardt, 2014 S.D. 86, ¶ 15, 857 

N.W.2d 396, 400 (citing Summit, 2000 S.D. 29, ¶ 9, 607 N.W.2d at 25).
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Analysis

[¶7.] 1. Whether the circuit court erred in dismissing Grant’s

divorce action for lack of personal jurisdiction.

[¶8.] Grant argues that he was a resident of South Dakota at the time he 

filed for a divorce in Tripp County, South Dakota, and that the circuit court clearly 

erred when it dismissed his divorce action for lack of personal jurisdiction. SDCL 

25-4-30 provides:

The plaintiff in an action for divorce or separate maintenance 

must, at the time the action is commenced, be a resident of this 

state, or be stationed in this state while a member of the armed 

services. Subsequently, the plaintiff need not maintain that 

residence or military presence to be entitled to the entry of a 

decree or judgment of divorce or separate maintenance.

(Emphasis added.) 

Commencement of Action

[¶9.] In order for the circuit court to have personal jurisdiction over this

divorce action, Grant must have been a resident of South Dakota “at the time the 

action [was] commenced.” Id. An action is commenced in this state when the 

summons is served on the defendant. SDCL 15-2-30. Generally, service of process 

is made by delivering a copy of the summons to the defendant personally. See 

SDCL 15-6-4(d)(8). However, “[n]otwithstanding any other provision of law, a 

summons may be served upon a defendant in any action by mailing a copy of the 

summons, two copies of the notice and admission of service, conforming 

substantially to the form provided for in § 15-6-4(j), and a return envelope, postage 

prepaid, addressed to the sender.” SDCL 15-6-4(i). See also Parsley, 2007 S.D. 58, 

¶ 22, 734 N.W.2d at 819 (“A summons is properly served upon a defendant in any 
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action by mailing a copy of the summons and two copies of the notice and admission 

of service, assuming a copy of the admission of service is signed and returned by the 

party being served.”).

[¶10.] Grant filed for a divorce and mailed a copy of the summons, two copies 

of the notice and admission of service, and a return envelope, postage prepaid, 

addressed to him on July 30, 2012, in compliance with SDCL 15-6-4(i). Julie signed 

the admission of service on August 17, 2012. Therefore, this divorce action was 

commenced on August 17, 2012—not on July 30, 2012. An action is not commenced

under SDCL 15-6-4(i) when a plaintiff merely mails a copy of the summons and 

complaint to the defendant. Instead, an action is commenced either when the 

defendant is personally served or the defendant signs the admission of service. See 

SDCL 15-2-30 (“An action is commenced as to each defendant when the summons is 

served on him . . . .” (emphasis added)).

[¶11.] The plain language of SDCL 15-6-4(i) confirms that Grant’s divorce 

action commenced on August 17, 2012. That statute indicates that if the defendant 

does not sign the admission of service within 20 days of mailing, the plaintiff must 

secure personal service. See SDCL 15-6-4(i) (“The notice and admission of service 

shall set forth that the failure to sign and return the admission of service within 

twenty days after the date of mailing without good cause will result in the court 

ordering the person so served to pay the costs of personal service.” (emphasis 

added)). The practical effect of this requirement is that service is not perfected until 
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the defendant signs the admission of service or is personally served.* “We have 

recognized that ‘proper service of process is no mere technicality: that parties be 

notified of proceedings against them affecting their legal interests is a “vital 

corollary” to due process and the right to be heard.’” JAS Enters., Inc. v. BBS 

Enters., Inc., 2013 S.D. 54, ¶ 13, 835 N.W.2d 117, 123 (quoting R.B.O. v. Priests of 

the Sacred Heart, 2011 S.D. 86, ¶ 7, 807 N.W.2d 808, 810). “Service of process 

advises a party that ‘a legal proceeding has been commenced’ and warns ‘those 

affected to appear and respond to the claim.’” Id. (quoting R.B.O., 2011 S.D. 86, ¶ 9, 

807 N.W.2d at 810). Simply placing the summons and complaint in the mail under 

 

* Other jurisdictions, in construing statutes similar to SDCL 15-6-4(i), have 

reached the same conclusion that an action is not commenced by mailing the 

summons and complaint. See Young v. Mt. Hawley Ins. Co., 864 F.2d 81, 82 

(8th Cir. 1988) (per curiam) (agreeing with the majority position that “if the 

acknowledgment form is not returned, the formal requirements of mail 

service are not met and personal service must be obtained”); Coons v. St. Paul 

Cos., 486 N.W.2d 771, 775 (Minn. Ct. App. 1992) (holding that an action is 

not commenced until the defendant acknowledges the receipt of the summons 

and complaint); Langowski v. Altendorf, 812 N.W.2d 427, 433 (N.D. 2012) 

(“[S]ervice . . . is complete at the time of actual delivery and not when a 

summons is placed in the mail[.]”). The Coons decision involved a Minnesota 

statute substantially similar to SDCL 15-6-4(i). The court agreed that the 

statute “makes it clear that mailing a summons and complaint does not 

commence the action.” Coons, 486 N.W.2d at 775 (quoting 1 David Herr & 

Roger S. Haydock, Minnesota Practice § 3.3 (1985)). Furthermore, the court 

noted that “[b]ecause the defendant is accordingly given the power to let the 

statute of limitations run before acknowledging receipt, or even simply to not 

acknowledge receipt, service by mail should be avoided at any time near the 

end of the period of limitations.” Id. (quoting 1 Herr & Haydock, supra, §

3.3). The court further warned that “[b]ecause effective service under rule 

4.05 requires the cooperation of defendants, plaintiffs should secure the 

cooperation of defendants before attempting service, or else plaintiffs should 

choose another method of service.” Id.
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SDCL 15-6-4(i) does not notify or warn a defendant of proceedings against him. 

Therefore, the circuit court erred when it concluded that the divorce action 

commenced when Grant mailed Julie a copy of the summons on July 30, 2012. 

Instead, the divorce action was commenced when Julie signed the admission of 

service on August 17, 2012. As a result, in order to confer personal jurisdiction on 

the circuit court under SDCL 25-4-30, Grant must have been a resident of South 

Dakota on August 17, 2012.

Residency

[¶12.] The Legislature has not defined “resident” as it is used in SDCL 25-4-

30. In Parsley, we said that “[i]t follows that the residence must be an actual 

residence as distinguished from a temporary abiding place[.]” 2007 S.D. 58, ¶ 17, 

734 N.W.2d at 818 (quoting Snyder v. Snyder, 35 N.W.2d 32, 33-34 (Iowa 1948)). 

Importantly, the residence “must not be a residence solely for the purpose of 

procuring a divorce[.]” Id. (quoting Snyder, 35 N.W.2d at 34); see also Yost v. Yost, 

72 N.W.2d 689, 694-95 (Neb. 1955) (recognizing the principle that a plaintiff does 

not establish residency for purposes of a divorce action when the sole purpose for 

the residency is to obtain the divorce).

[¶13.] In Parsley, we upheld the circuit court’s conclusion that the plaintiff, 

Duane Parsley, was a resident of South Dakota. 2007 S.D. 58, ¶ 19, 734 N.W.2d at 

818-19. In that case, “[t]he circuit court heard abundant evidence that Duane had 

lengthy ties to South Dakota[.]” Id. ¶ 19, 734 N.W.2d at 818. The plaintiff 

introduced evidence that he listed Jones County, South Dakota, as his county of 

residence when filing federal income tax returns. Id. ¶ 18, 734 N.W.2d at 818. 
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Duane had acquired real property in South Dakota “with intentions of constructing 

and establishing a home for his family.” Id. He had registered vehicles in South 

Dakota, obtained a South Dakota driver’s license, and registered to vote. Duane 

further testified and introduced evidence of his participation in community 

activities and organizations in South Dakota. We concluded that these facts 

supported the circuit court’s finding of residency and that “there is nothing to 

indicate that Duane established this residency for purposes of obtaining a divorce.” 

Id. ¶ 19, 734 N.W.2d at 818-19.

[¶14.] Likewise, Grant has demonstrated that he was a resident of South 

Dakota on August 17, 2012. Similar to Parsley, Grant obtained a South Dakota 

driver’s license on August 3 and registered to vote in the state on August 6. The 

record further shows that Grant moved to South Dakota on or around June 29, 

2012, and resided in South Dakota for over 45 days before he commenced this 

action. Grant began to receive his mail in Winner, South Dakota, on July 1. Grant 

obtained a South Dakota telephone number on July 5 and opened a South Dakota 

bank account with First Fidelity Bank of Winner and made a deposit on July 9. 

Grant also found employment at Community Connections in Winner, South Dakota. 

He introduced a copy of his first paycheck from Community Connections for the pay 

period of July 24 to August 6.

[¶15.] The circuit court expressed concern that Grant may have attempted to 

establish residency for the sole purpose of obtaining a divorce in South Dakota 

under more favorable child support laws. Unlike Pennsylvania, South Dakota has 

no provision requiring that Grant support his adult children. But, simply because
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of that fact, Grant should not be prevented from obtaining residency in South 

Dakota. There is substantial evidence in the record that Grant established actual 

residency in South Dakota by August 17, 2012, for purposes other than obtaining a 

divorce. Therefore, the circuit court erred when it concluded that it did not have 

personal jurisdiction over the parties in this proceeding.

[¶16.] 2. Whether the circuit court erred in dismissing Grant’s

divorce action based on the doctrine of forum non 

conveniens.

[¶17.] Having concluded that the circuit court had personal jurisdiction to 

hear the divorce action, we next consider whether the circuit court erred in 

dismissing the divorce action under the doctrine of forum non conveniens. The 

court stated, “There is a pending, first-filed family law action in that state where 

there is clear jurisdiction over both parties, and it relates to at least some of the 

issues that would be addressed in this divorce proceeding if it were to be tried in 

Tripp County, South Dakota.” Thus, the court concluded, “Under the forum non 

conveniens doctrine, Pennsylvania is the more appropriate and convenient forum 

for this divorce matter.” 

[¶18.] In Lustig v. Lustig, 1997 S.D. 24, ¶ 12, 560 N.W.2d 239, 244, we said

that “[n]o margin within SDCL 15-5-11(3) and [SDCL] 25-4-30.1 grants our courts 

the means to dismiss divorce actions, properly commenced first in South Dakota, in 

favor of another state’s jurisdiction.” We reaffirmed this conclusion in Langdeau v. 

Langdeau, 2008 S.D. 44, ¶ 18, 751 N.W.2d 722, 729. The record is clear that there 

is no pending divorce proceeding in Pennsylvania. At most, there is a pending 

support action. The rule in Lustig and Langdeau plainly states that “[c]ircuit courts 
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may not refuse to hear divorce proceedings properly commenced first in South 

Dakota, in favor of another state’s jurisdiction.” Langdeau, 2008 S.D. 44, ¶ 18, 751 

N.W.2d at 729 (emphasis added) (citing Lustig, 1997 S.D. 24, ¶ 14, 560 N.W.2d at 

245).

[¶19.] We further reject Julie’s argument that Rothluebbers v. Obee, 2003 

S.D. 95, 668 N.W.2d 313, controls our application of the forum non conveniens

doctrine in this case. Julie contends that we should apply Rothluebbers to this case 

instead of Lustig and Langdeau. In Rothluebbers, we stated that “the doctrine of 

forum non conveniens is alive and well in the State of South Dakota.” Id. ¶ 7, 668 

N.W.2d at 317. But Rothluebbers involved a personal injury action rather than a 

divorce action. Based on that distinction, we expressly stated in Rothluebbers that

Lustig did not control the application of the forum non conveniens doctrine because 

“Lustig was a divorce and child custody case.” Id. ¶ 6 n.2, 668 N.W.2d at 317 n.2

(acknowledging that circuit courts may not “dismiss divorce actions, properly 

commenced first in South Dakota, in favor of another state’s jurisdiction” (quoting 

Lustig, 1997 S.D. 24, ¶ 12, 560 N.W.2d at 244)). Consequently, because Grant 

properly commenced the divorce action in South Dakota and no divorce action had 

ever been commenced in Pennsylvania, the circuit court erred by dismissing this

action.

[¶20.] We reverse and remand.

[¶21.] GILBERTSON, Chief Justice, and ZINTER, SEVERSON, and KERN, 

Justices, concur.