Giesen v. Giesen, 2018 SD 36: Divorce action where husband challenged circuit court’s valuation of his three business interests, the valuation of a bank account on a date other than the date of divorce, and the decision to recapture into the marital estate the value of home improvements made to a third party’s rental property. Starting with the date of the valuation of the bank account, the South Dakota Supreme Court held that the trial court’s decision to value the bank account 11 months before trial based on the record evidence that husband’s monthly account balances declined once wife could no longer obtain detailed statements—approximately eleven months prior to trial. Husband could not explain the steady decline in the account balance and, therefore, the circuit court did not abuse its discretion when it relied on the last complete bank statement.
As to improvements that were made on husband’s father’s rental property, the trial court properly considered evidence and testimony finding that husband had indeed made substantial improvements to his father’s rental property. As husband had spent approximately $15,000.00 on said improvements, the South Dakota Supreme Court affirmed the trial court’s decision to recapture that amount into the marital estate.
Lastly, as to the value of husband’s business interests, the South Dakota Supreme Court held that husband failed to show that the trial court erred in valuing said business interests and, moreover, record evidence existed to support the trial court’s decision not to apply the marketability discount. The trial court’s holdings were affirmed, and wife was awarded $7,518.90 in appellate attorney fees.
State v. Abdo, 2018 SD 34: Criminal defendant challenges the circuit court’s denial of a motion to suppress; denial of new trial when the circuit court found him guilty of aggravated assault and guilty of the lesser-included offense of simple assault; and that the circuit court abused its discretion in certain evidentiary rulings and that the evidence is insufficient to support the jury’s verdict. Defendant was at the home of a friend when law enforcement entered the home and seized him. Defendant argued that law enforcement needed a warrant to enter said home, especially given that he had been staying there for approximately two weeks prior, kept his belongings there, and had his own bedroom. The court held that law enforcement had consent from a third party with common authority over the premises, including Defendant’s room since Defendant was merely an overnight guest and that the third party had authority over Defendant’s purported bedroom.
Defendant further asserted that he was entitled to a new trial, arguing the jury did not follow the court’s instructions. Defendant argued that the jury was not supposed to be able to find him guilty of both Aggravated Assault and Simply Assault. The South Dakota Supreme Court held that a finding of guilty on the lesser offenses as well as on the major offenses creates per se no inconsistency in conclusions. When that happens, the conviction and sentence on the lesser charge must be vacated, which is what occurred. Thus, the trial court properly denied Defendant’s request to declare a mistrial.
Lastly, Defendant argued that the jury’s verdict was based upon mere suspicion or possibility of guilty and not “hard evidence.” The South Dakota Supreme Court, having reviewed the record evidence, found that said evidence supported a jury’s finding of guilt beyond a reasonable doubt. The court also denied Defendant’s arguments related to certain evidentiary rulings.
Estate of Fox, 2018 SD 35: Decedent passed away, and his longtime girlfriend filed an application for informal probate and for appointment as personal representative. The day after the clerk of courts issued the letters of appointment and statement admitting the will to informal probate, the circuit court entered an order revoking them. Girlfriend appealed the circuit court’s revocation. The South Dakota Supreme Court held that the clerk’s appointment fully and conclusively established girlfriend as personal representative. However, the trial court had yet to determine the rights of the parties as it related to the probate of decedent’s will, and the appointment of a personal representative as the matter was stayed pending appeal. The trial court had not determined whether the clerk’s appointment was void for girlfriend’s failure to state that the original of the decedent’s will was in the possession of the circuit court. Thus, even if the circuit court was without authority to revoke the clerk’s appointment, the circuit court had yet to finally determine the rights of the parties as it related to the probate of the decedent’s will and the appointment of the personal representative. As such, the circuit court’s order revoking the letters of appointment and clerk’s statement did not end the particular action in which it was entered and leave nothing further for the court pronouncing it to do in order to completely determine the rights of the parties as to that proceeding. Until further proceedings determine such rights, the South Dakota Supreme Court did not have appellate jurisdiction.