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MARTY K. SYRSTAD v. MICHAEL J. SYRSTAD
Date: 01-27-2022
Case Number: 2021 ND 209
Judge: Patricia J. DeVaney
Court:
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
On appeal from The CIRCUIT COURT OF THE THIRD JUDICIAL CIRCUIT BROOKINGS COUNTY, SOUTH DAKOTA
Plaintiff's Attorney: ROBERT A. CHRISTENSON
Defendant's Attorney:
Pierre, SD – Best Divorce Lawyer Directory
Pierre, SD – Best Divorce Lawyer Directory
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Description:
Pierre, SD - Divorce lawyer represented Plaintiff accused of alienation of affection and child sex abuse.
In 1993, when Marty was 14 years old, she began dating Michael's son,
Jeremy Syrstad, and while the two were dating, she would spend a significant
amount of time at the Syrstad home. Marty claimed that during this time, Michael
"began to touch [her] body, kiss [her] on the lips, hug [her,] and hold [her] around
her waist.†She explained in her deposition that anytime she would go to the
Syrstad home to see Jeremy, Michael would be physically affectionate with her.
She also claimed that Michael "would comment about [her] appearance and
development as a young woman going through puberty†and "would pull [her] over
to him to sit on [his] lap or knee.â€
[¶3.] According to Marty, whenever Michael was near her, he would ask her
to "give [him] some love,†which to Marty meant a hug and kiss. She further
asserted that if she stayed in close proximity to him, he would put his arm around
her waist and draw her to his hips or groin; would "often†"brush, squeeze, cup or
caress†Marty's breasts; and would "place his hand on [her] low back and slide it
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down to brush, squeeze, cup or caress†her bottom. Marty also claimed that Michael
would make comments to her, such as: "Oh my God, you are so beautifulâ€; "Wow,
you are really getting some curves girlâ€; "Damn your [sic] hot, I want me some of
thatâ€; "Damn, my son is the luckiest man alive to get to hold youâ€; and "You can be
his wife and still be my girlfriend.†If family members or friends commented about
Michael's behavior, he would say, "It's all good, she's my girlâ€; or "We keep i[t] all in
the family.â€
[¶4.] Marty revealed more specifically the circumstances of two incidents
with Michael that occurred while she was a minor. On one occasion at Michael's
lake house where Michael, Jeremy, Marty, and others consumed alcohol, Michael
helped Marty get into bed. She claimed that she was intoxicated at the time and
that when Michael helped her, he unhooked her bra and removed it, and after
laying her in bed, he unbuttoned and removed her pants and "patted†her bottom.
Marty described another occasion that occurred while she was sitting closest to
Michael in a pickup he was driving home from a street dance. Michael's wife and
Jeremy were also in the pickup, and Marty claimed that as Michael was driving, he
"held his right hand on the inside of [her] thigh and rubbed up until the back of [his]
hand was against [her] vagina[.]â€
[¶5.] In 1997, Marty turned 18, and on October 16, 1999, Marty married
Jeremy. When Marty was 21 years old, she had sexual intercourse with Michael.
She explained that she was working at a local bar as a bartender and Michael was
at the bar drinking. After the bar closed, she left with Michael, and after the two
drove around town talking, they had sexual intercourse. She agreed it was
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consensual and testified that thereafter she and Michael had sexual intercourse
approximately a dozen times until the spring of 2002 when Marty was
approximately seven months pregnant with her second son.
[¶6.] Although Marty did not continue her sexual relationship with Michael
after 2002, she began to struggle with nightmares and overwhelming fears that
Michael could be the father of her second son. Eventually, in the spring of 2005,
Marty told Jeremy about the affair she had with Michael in 2001 and 2002. She
also told him that she was concerned Michael was the father of their son. Although
Jeremy "was furious†and "absolutely livid,†the two decided to "work through
whatever destruction†the affair caused. They also confirmed via DNA testing that
Jeremy is the father of their son, not Michael.
[¶7.] From 2005 to 2015, Marty and Jeremy attended marriage counseling
and went to marriage retreats. Marty testified that they stopped all contact with
Michael, and Jeremy decided to "cut†his entire side of his father's "family out of his
life because he was desperately trying to save and salvage [their] marriage.†In
addition to working through the fact that Marty had an affair with Jeremy's father,
the two also worked on issues related to Jeremy's alcoholism and the couple's loss of
their relationship with the Syrstad family and friends. She explained that "[i]t was
[their] intention to stay married[,]†and they fought hard "to save it.†However,
according to Marty, she and Jeremy "could not seek appropriate help†to save the
marriage because "there was a huge white elephant in the middle of [their]
relationship†that "at the time†they "could not identify, could not acknowledge[.]â€
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Ultimately, in 2015, the couple separated, and in March 2015, Jeremy filed for and
obtained a divorce.
[¶8.] After the divorce, Marty continued individual counseling one hour
every week or every other week, but she did not believe she was getting the care or
counseling she needed. She sought treatment at an inpatient facility that
specializes in mental and emotional care, and in the summer of 2017, Marty
checked herself into The Meadows, a trauma treatment facility in Wickenburg,
Arizona. Marty claimed that while at The Meadows, she began "the journey to
understand†she had been sexually abused as a child by Michael and that this
earlier abuse may have been the cause of her later behaviors and resulting marital
and mental health issues. Then, according to Marty, in 2018, she "actually realized
the impact (depression, anxiety, loss of relationship) on her life [from] Michael's
inappropriate acts toward her†after "she heard a sexual abuse victim share his
story[.]â€
[¶9.] In February 2019, Marty brought suit against Michael alleging a claim
for alienation of affection and later amended her complaint to add a claim for child
sex abuse under SDCL 26-10-25. Michael filed a motion to dismiss both claims,
alleging that neither was timely commenced. The circuit court determined that
Marty's alienation of affection claim accrued in 2015 based on Marty's allegation in
her complaint that she and Jeremy had "lived together and were happy from the
time of their marriage until . . . 2015.†The court thereafter dismissed this claim
because Marty failed to bring suit within three years as required under SDCL 15-2-
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14(3).0F
1 The court did not dismiss the child sex abuse claim, commenced in 2019,
because it determined, based on the facts alleged in Marty's complaint, that she was
not on inquiry notice of her claim until she obtained treatment in 2017.
[¶10.] After conducting discovery, including taking Marty's deposition,
Michael filed a motion for summary judgment, again asserting that Marty failed to
timely commence her suit alleging child sex abuse. Relying on her deposition
testimony, Michael noted that Marty was aware of his alleged acts that occurred
when she was a child and was further aware in 2005 that her relationship with him
caused problems between her and Jeremy. Therefore, he claimed that the
undisputed material facts showed that she was on inquiry notice in 2005, when she
told Jeremy about her affair with Michael, to seek out information regarding her
injury and its cause. In response, Marty asserted that despite her knowledge of her
affair with Michael, "there [was] nothing [she] could have inquired into†regarding
the child sex abuse "because she was unaware that [Michael] was the cause of her
condition[.]†In her view, the record established that "[t]he objective fact that
triggered the statute of limitations surfaced†during her treatment at The Meadows
in 2017 when she began her journey of understanding how Michael's earlier acts
toward her were abusive and how they affected her.
1. SDCL 15-2-14 provides:
Except where, in special cases, a different limitation is
prescribed by statute, the following civil actions other than for
the recovery of real property can be commenced only within
three years after the cause of action shall have accrued:
. . .
(3) An action for personal injury.
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[¶11.] The circuit court issued a memorandum decision after a hearing on
Michael's motion. Relying on Rodriguez v. Miles, 2011 S.D. 29, 799 N.W.2d 722, the
circuit court determined that Marty was on inquiry notice of her claim "as early as
2002 but as late as 2005 when she disclosed the affair to her husband and began the
long road of attempting to salvage her marriage†because these facts would "cause a
reasonably prudent person to seek out information regarding her injuries and its
cause.†Because Marty filed her amended complaint more than three years after
2005, the circuit court granted Michael's motion for summary judgment and
dismissed Marty's child sex abuse claim as untimely under SDCL 26-10-25.
[¶12.] Marty appeals, alleging the circuit court erred in granting summary
judgment.
Standard of Review
[¶13.] When summary judgment is granted on a statute of limitations
defense, the same well-settled rules governing summary judgment review apply.
Strassburg v. Citizens State Bank, 1998 S.D. 72, ¶ 5, 581 N.W.2d 510, 513. "We
review de novo a circuit court's entry of summary judgment.†Tammen v. Tronvold,
2021 S.D. 56, ¶ 17, 965 N.W.2d 161, 168. Summary judgment is proper "if the
pleadings, depositions, answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine issue as to any material
fact and that the moving party is entitled to a judgment as a matter of law.†SDCL
15-6-56(c). We view the evidence and all reasonable inferences in a light most
favorable to the nonmoving party and resolve reasonable doubts against the moving
party. Strassburg, 1998 S.D. 72, ¶ 5, 581 N.W.2d at 513. Our task on appeal is to
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"determine whether the moving party has demonstrated the absence of any genuine
issue of material fact and entitlement to judgment on the merits as a matter of law.â€
Bernie v. Cath. Diocese of Sioux Falls, 2012 S.D. 63, ¶ 7, 821 N.W.2d 232, 237
(citation omitted).
Analysis and Decision
[¶14.] Marty contends that while she "knew a problem existed in her
marriage because of [her] sexual association with Michael as an adult,†the circuit
court erred in concluding that the undisputed facts showed she was on inquiry
notice of the child sex abuse and its connection to her injury more than three years
prior to her bringing suit against Michael. She claims that the record contains no
evidence that she was aware of the child sex abuse or its impact on her life until her
treatment at The Meadows in 2017. Marty asserts that it was not until she was
engaged in this treatment that she came to understand that she had been the
victim of sexual abuse as a child and that it was the cause of her later trauma,
emotional pain, and mental health issues.
[¶15.] In response, Michael and the dissent focus on the fact that Marty was
aware of Michael's acts toward her when she was a child and knew in 2005 that her
relationship with him caused marital problems between her and Jeremy. Both the
dissent and Michael contend that these undisputed facts put Marty on inquiry
notice to seek out information about her injury and its cause, and therefore, the
circuit court properly granted summary judgment dismissing Marty's claim of child
sex abuse under SDCL 26-10-25.
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[¶16.] "While we often distinguish between the moving and non-moving party
in referring to the parties' summary judgment burdens,†the focus of the inquiry is
different when a motion for summary judgment is based on the affirmative defense
that a cause of action is time-barred. Zephier v. Cath. Diocese of Sioux Falls, 2008
S.D. 56, ¶ 6, 752 N.W.2d 658, 662. As this Court explained in Zephier,
SDCL 26-10-25 is an affirmative defense, and the burden of
proof to establish affirmative defenses is on the party who seeks
to rely on it. Clancy v. Callan, 90 S.D. 115, 118, 238 N.W.2d
295, 297 (1976) (citing Lang v. Burns, 77 S.D. 626, 97 N.W.2d
863, 865 (1959)). The burden of production, however, shifts. "In
summary judgment proceedings, where the defendant asserts
the statute of limitations as a bar to the action, and
presumptively establishes the defense by showing the case was
instituted beyond the statutory period, the burden then shifts to
the plaintiff to establish the existence of material facts in
avoidance of the statute of limitations[.]†Conway v. Conway,
487 N.W.2d 21, 23 (S.D. 1992).
Id. ¶ 9, 752 N.W.2d at 663–64; accord One Star v. Sisters of St. Francis, 2008 S.D.
55, ¶ 12, 752 N.W.2d 668, 675. "Generally, a statute of limitations question is left
for the jury; however, '[d]eciding what constitutes accrual of a cause of action' is a
question of law and reviewed de novo. In reviewing under this standard, '[w]e give
no deference to the trial court's conclusions of law.'†One Star, 2008 S.D. 55, ¶ 12,
752 N.W.2d at 675 (quoting Peterson v. Hohm, 2000 S.D. 27, ¶ 8, 607 N.W.2d 8, 11).
[¶17.] Because the circuit court granted Michael summary judgment on the
affirmative defense that Marty failed to timely commence suit under SDCL 26-10-
25, we must first examine whether the court properly determined that Michael
presumptively established that Marty brought her claim beyond the statutory
period. Under SDCL 26-10-25:
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Any civil action based on intentional conduct brought by any
person for recovery of damages for injury suffered as a result of
childhood sexual abuse shall be commenced within three years
of the act alleged to have caused the injury or condition, or three
years of the time the victim discovered or reasonably should have
discovered that the injury or condition was caused by the act,
whichever period expires later. However, no person who has
reached the age of forty years may recover damages from any
person or entity other than the person who perpetrated the
actual act of sexual abuse.
(Emphasis added.) In determining when a claimant "discovered or reasonably
should have discovered†the causation of an alleged injury or condition, see id., the
question is whether the plaintiff became aware of facts that would have prompted
"a reasonably prudent person to seek out information regarding his or her injury or
condition and its cause[,]†see Rodriguez, 2011 S.D. 29, ¶ 9, 799 N.W.2d at 725
(citation omitted). As the Court in Zephier explained, "one having actual notice of
circumstances sufficient to put a prudent person on inquiry about a particular fact,
and who omits to make such inquiry with reasonable diligence, is deemed to have
constructive notice of the fact itself sufficient to start the running of the statute of
limitations.†2008 S.D. 56, ¶ 14, 752 N.W.2d at 665. "Inquiry notice is determined
by an objective standard.†Rodriguez, 2011 S.D. 29, ¶ 11, 799 N.W.2d at 727.
[¶18.] In this case, the circuit court, Michael, and the dissent fail to
appreciate the significance of the unique fact that the conduct forming the basis of
Marty's lawsuit against Michael (inappropriate sexual touching of a child by a
trusted individual) evolved into consensual adult sexual conduct between a fatherin-law and daughter-in-law. As Marty explained in her statement of disputed facts,
while she "was haunted by the incident of having sex with the father of her husband
when she was an adult,†"how [Michael] groomed [her] while [she] was a minor is an
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entirely separate matter, a matter she never correlated to the cause of her problems
as an adult†until she entered treatment. The dissent nevertheless concludes that
Marty was on inquiry notice that Michael's behavior toward her when she was a
child was the cause of her later injuries because she underwent "ten years of
marital counseling with Jeremy[.]†(Emphasis omitted.) But the record does not
support the assumptions upon which the dissent's conclusion rests because there is
no evidence in the record that, during the years of marital counseling, the alleged
child sex abuse was discussed.
[¶19.] In light of the distinct difference between child sex abuse and an adult
consensual sexual relationship, the undisputed evidence that Marty told Jeremy in
2005 about her adult affair with Michael, a disturbing situation in and of itself, and
that the two thereafter went to marriage counseling for several years does not
presumptively show that Marty was aware she was the victim of child sex abuse or
that she reasonably should have discovered that her injury or condition was caused
by the abuse more than three years before she commenced suit. As we have held in
our prior cases involving child sex abuse, SDCL 26-10-25 gives "victims time to
discover the causal relationship between the sexual abuse and the resulting injury.â€
Bernie v. Blue Cloud Abbey, 2012 S.D. 64, ¶ 3, 821 N.W.2d 224, 226. Therefore, the
discovery of "the injuries in and of itself will not suffice to commence the statutory
period regarding discovery of the causal connection between the acts of abuse and
the plaintiffs' injuries. 'Rather, there must be discovery of some tie linking the acts
of abuse to the injury.'†Zephier, 2008 S.D. 56, ¶ 10, 752 N.W.2d at 664 (citation
omitted) (concluding that defendants failed to make a presumptive showing because
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defendants did not introduce evidence showing that plaintiffs should have
reasonably discovered that their injury or condition was caused by child sex abuse
more than three years before commencing suit). As this Court has explained,
Imagine being pricked on the arm with a pin. At first, such an
intrusion would be disturbing, but with time might seem
uneventful. Now imagine the pin carried a dreaded affliction,
only discoverable after years of incubation. Such is often the
nature of childhood sexual abuse. Many children only realize
years later the true significance of the abuse they endured,
especially in cases where the molestation occurred at the hands of
family members or other trusted individuals. For some children,
sexual violation is so traumatic it becomes psychologically selfconcealing, if only to preserve sanity. For this reason, our
Legislature enacted SDCL 26-10-25 creating a discovery rule for
adult survivors of child sex abuse.
Stratmeyer v. Stratmeyer, 1997 S.D. 97, ¶ 13, 567 N.W.2d 220, 222–23 (emphasis
added).
[¶20.] Here, a review of the record does not show any evidence that Marty
was aware, prior to attending in-patient treatment in June 2017, that she had been
the victim of child sex abuse and that there was a causal connection between
Michael's earlier conduct of sexually grooming her when she was a child and the
injuries that manifested much later in life. Rather, Marty's deposition testimony
and the affidavit of her therapist evince just the opposite. Marty testified that
despite ten years of marriage counseling, she and Jeremy were never able to
identify the true issue that would have allowed them to obtain appropriate help to
keep their marriage together.1F
2 She further testified that it was not until she sought
2. The dissent's reliance on Marty's use of the phrase "huge white elephant†is
misplaced. She did not use that phrase to indicate her understanding of the
nature and impact of Michael's behavior and acts toward her from its
(continued . . .)
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treatment in 2017 for her anxiety and depression that she understood she had been
sexually abused as a child by Michael and that this earlier abuse may have been the
cause of her later behaviors and resulting marital and mental health issues. Her
therapist, in his affidavit, stated that in his opinion, the abuse Marty suffered at
the hands of Michael "became psychologically self-concealing†and that Marty "only
realized years later the true significance of the sexual abuse and damages resulting
from the abuse,†with the "initial realization occurring at The Meadows on June 6,
2017.†In a subsequent affidavit, he attested that although Marty "acknowledged to
her husband that she had sex with his father she did not acknowledge it was abuse
nor did she connect it with the childhood abuse that had already occurred.â€
[¶21.] Michael offered no evidence disputing this evidence. However, Michael
claims that Marty was on inquiry notice of her claim under SDCL 26-10-25 because
she testified that Michael's acts of child sex abuse toward her "have 'never' been out
of her mind[.]†The dissent suggests the same conclusion based on the same
testimony. However, the dissent and Michael mischaracterize Marty's deposition
testimony. Marty did not testify that she "never†stopped thinking about the child
sex abuse from the time that it happened. Rather, she explained, in response to
Michael's counsel asking her to put her damages into context, that her treatment
counselors at The Meadows (starting in 2017) had asked her "to go back to day one,
________________________
(. . . continued)
inception. Rather, when Marty referred to a "huge white elephant in the
middle of [their] relationship†that neither she nor Jeremy could identify, she
was responding to a line of questioning focusing on how her consensual affair
with her father-in-law led to a series of events that impacted Jeremy's
relationship with his family, his job, and their marriage.
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as far back as [she could] remember.†In doing so, she thought about her past and
about everything that had happened to her. She explained that after this process of
evaluating her life, her relationship with Michael is something that "never goes out
of [her] mind†and her "life is forever changed because of the inappropriate
relationship with Mike Syrstad.†When Marty's deposition testimony is viewed in
this context—that her reflection and realization occurred during her treatment at
The Meadows—it does not support Michael's argument that Marty was aware since
2005 of facts that would prompt "a reasonably prudent person to seek information
about the problem and its cause.†See Zephier, 2008 S.D. 56, ¶ 14, 752 N.W.2d at
665 (citation omitted).
[¶22.] A review of this Court's past cases, in which we determined that a
plaintiff was on inquiry notice of the child sex abuse cause of action, reveals distinct
differences from the circumstances here. Our past cases involved plaintiffs who
either openly acknowledged that they had been abused as children and had
experienced adverse effects as a result of the abuse, or plaintiffs who had either
sought counseling because of the abuse or were advised by counselors that their
problems stemmed from childhood abuse. On appeal, this Court was able to
identify in each case specific evidence showing that it was undisputed that the
plaintiffs knew of the child sex abuse (the problem) and were aware of its causal
connection to their subsequent behavioral and mental health problems long before
they decided to commence litigation against the perpetrators.
[¶23.] For example, in One Star, two plaintiffs brought suit against various
defendants in 2005 for acts of abuse that occurred more than 40 years prior at the
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hands of priests, brothers, and sisters of a religiously run boarding school. 2008
S.D. 55, ¶ 2, 752 N.W.2d at 672. One defendant, the Sisters of St. Francis, Denver
Colorado (Sisters), filed a motion for summary judgment against both plaintiffs'
claims asserting that neither timely commenced suit. Id. ¶ 8, 752 N.W.2d at 673.
The circuit court denied summary judgment; however, on appeal, we reversed.
[¶24.] We determined that "Sisters [had] presumptively established that One
Star was on inquiry notice of the relationship between his condition and its cause
when he responded [by letter] to [a] newspaper advertisement in May of 2001â€
soliciting information on abuse suffered by former students of the boarding school.
Id. ¶ 19, 752 N.W.2d at 677. One Star stated in his letter that he knew what was
done to him at the boarding school and that it affected him "in a bad way [his]
whole life . . . .†Id. In regard to the other plaintiff, Sorace, the Court determined
that "Sisters [had] also presumptively established that Sorace commenced her case
more than three years after she was on actual or inquiry notice that her injuries
were caused by the abuse†because during counseling in 1995, Sorace's mental
health counselor advised her that "her anger issues were connected to the sexual
abuse†and encouraged her to seek professional help to treat her injuries. Id. ¶ 21,
752 N.W.2d at 677–78. We determined that at that point, "Sorace possessed actual
knowledge of a causal connection to her anger management problem†and was "on
inquiry notice to seek information about the problem and its cause.†Id. ¶ 21, 752
N.W.2d at 678. See also Rodriguez, 2011 S.D. 29, ¶¶ 10, 11, 799 N.W.2d at 726–27
(undisputed that plaintiff knew of the sexual abuse and its effects more than three
years prior to commencing suit); Iron Wing v. Cath. Diocese of Sioux Falls, 2011
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S.D. 79, ¶ 5, 807 N.W.2d 108, 110 (plaintiff testified that he was aware of the anger
and hatred the sexual abuse had caused since his junior year of high school).
[¶25.] In contrast, here, the record does not contain undisputed evidence that
Marty should have been on inquiry notice, prior to 2017, that Michael's behavior
toward her when she was a child was sexually abusive, or that this behavior was
the cause of her later problems. Genuine issues of material fact exist regarding
whether Marty could have reasonably believed until 2017 that the consensual adult
extramarital affair with Michael and the concern that he might be the father of one
of her children were the events that precipitated the breakdown of Marty's marriage
and caused her emotional injuries, rather than the alleged sex abuse that occurred
when she was a child. When viewing the record in a light
Outcome:
Reversed and remanded.
Plaintiff's Experts:
Defendant's Experts:
Comments:
About This Case
What was the outcome of MARTY K. SYRSTAD v. MICHAEL J. SYRSTAD?
The outcome was: Reversed and remanded.
Which court heard MARTY K. SYRSTAD v. MICHAEL J. SYRSTAD?
This case was heard in <center><h5><b> IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA </b>
<br></h5>
<font color="green"><i><h4>On appeal from The CIRCUIT COURT OF
THE THIRD JUDICIAL CIRCUIT
BROOKINGS COUNTY, SOUTH DAKOTA </i></font></center></h4>, SD. The presiding judge was Patricia J. DeVaney.
Who were the attorneys in MARTY K. SYRSTAD v. MICHAEL J. SYRSTAD?
Plaintiff's attorney: ROBERT A. CHRISTENSON. Defendant's attorney: Pierre, SD – Best Divorce Lawyer Directory
Tell MoreLaw About Your Litigation Successes and MoreLaw Will Tell the World.
Re: MoreLaw National Jury Verdict and Settlement
Counselor:
MoreLaw collects and publishes civil and criminal litigation information from the state and federal courts nationwide. Publication is free and access to the information is free to the public.
MoreLaw will publish litigation reports submitted by you free of charge
Info@MoreLaw.com - 855-853-4800.
When was MARTY K. SYRSTAD v. MICHAEL J. SYRSTAD decided?
This case was decided on January 27, 2022.
Pierre, SD - Divorce lawyer represented Plaintiff accused of alienation of affection and child sex abuse.
In 1993, when Marty was 14 years old, she began dating Michael's son,
Jeremy Syrstad, and while the two were dating, she would spend a significant
amount of time at the Syrstad home. Marty claimed that during this time, Michael
"began to touch [her] body, kiss [her] on the lips, hug [her,] and hold [her] around
her waist.†She explained in her deposition that anytime she would go to the
Syrstad home to see Jeremy, Michael would be physically affectionate with her.
She also claimed that Michael "would comment about [her] appearance and
development as a young woman going through puberty†and "would pull [her] over
to him to sit on [his] lap or knee.â€
[¶3.] According to Marty, whenever Michael was near her, he would ask her
to "give [him] some love,†which to Marty meant a hug and kiss. She further
asserted that if she stayed in close proximity to him, he would put his arm around
her waist and draw her to his hips or groin; would "often†"brush, squeeze, cup or
caress†Marty's breasts; and would "place his hand on [her] low back and slide it
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down to brush, squeeze, cup or caress†her bottom. Marty also claimed that Michael
would make comments to her, such as: "Oh my God, you are so beautifulâ€; "Wow,
you are really getting some curves girlâ€; "Damn your [sic] hot, I want me some of
thatâ€; "Damn, my son is the luckiest man alive to get to hold youâ€; and "You can be
his wife and still be my girlfriend.†If family members or friends commented about
Michael's behavior, he would say, "It's all good, she's my girlâ€; or "We keep i[t] all in
the family.â€
[¶4.] Marty revealed more specifically the circumstances of two incidents
with Michael that occurred while she was a minor. On one occasion at Michael's
lake house where Michael, Jeremy, Marty, and others consumed alcohol, Michael
helped Marty get into bed. She claimed that she was intoxicated at the time and
that when Michael helped her, he unhooked her bra and removed it, and after
laying her in bed, he unbuttoned and removed her pants and "patted†her bottom.
Marty described another occasion that occurred while she was sitting closest to
Michael in a pickup he was driving home from a street dance. Michael's wife and
Jeremy were also in the pickup, and Marty claimed that as Michael was driving, he
"held his right hand on the inside of [her] thigh and rubbed up until the back of [his]
hand was against [her] vagina[.]â€
[¶5.] In 1997, Marty turned 18, and on October 16, 1999, Marty married
Jeremy. When Marty was 21 years old, she had sexual intercourse with Michael.
She explained that she was working at a local bar as a bartender and Michael was
at the bar drinking. After the bar closed, she left with Michael, and after the two
drove around town talking, they had sexual intercourse. She agreed it was
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consensual and testified that thereafter she and Michael had sexual intercourse
approximately a dozen times until the spring of 2002 when Marty was
approximately seven months pregnant with her second son.
[¶6.] Although Marty did not continue her sexual relationship with Michael
after 2002, she began to struggle with nightmares and overwhelming fears that
Michael could be the father of her second son. Eventually, in the spring of 2005,
Marty told Jeremy about the affair she had with Michael in 2001 and 2002. She
also told him that she was concerned Michael was the father of their son. Although
Jeremy "was furious†and "absolutely livid,†the two decided to "work through
whatever destruction†the affair caused. They also confirmed via DNA testing that
Jeremy is the father of their son, not Michael.
[¶7.] From 2005 to 2015, Marty and Jeremy attended marriage counseling
and went to marriage retreats. Marty testified that they stopped all contact with
Michael, and Jeremy decided to "cut†his entire side of his father's "family out of his
life because he was desperately trying to save and salvage [their] marriage.†In
addition to working through the fact that Marty had an affair with Jeremy's father,
the two also worked on issues related to Jeremy's alcoholism and the couple's loss of
their relationship with the Syrstad family and friends. She explained that "[i]t was
[their] intention to stay married[,]†and they fought hard "to save it.†However,
according to Marty, she and Jeremy "could not seek appropriate help†to save the
marriage because "there was a huge white elephant in the middle of [their]
relationship†that "at the time†they "could not identify, could not acknowledge[.]â€
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Ultimately, in 2015, the couple separated, and in March 2015, Jeremy filed for and
obtained a divorce.
[¶8.] After the divorce, Marty continued individual counseling one hour
every week or every other week, but she did not believe she was getting the care or
counseling she needed. She sought treatment at an inpatient facility that
specializes in mental and emotional care, and in the summer of 2017, Marty
checked herself into The Meadows, a trauma treatment facility in Wickenburg,
Arizona. Marty claimed that while at The Meadows, she began "the journey to
understand†she had been sexually abused as a child by Michael and that this
earlier abuse may have been the cause of her later behaviors and resulting marital
and mental health issues. Then, according to Marty, in 2018, she "actually realized
the impact (depression, anxiety, loss of relationship) on her life [from] Michael's
inappropriate acts toward her†after "she heard a sexual abuse victim share his
story[.]â€
[¶9.] In February 2019, Marty brought suit against Michael alleging a claim
for alienation of affection and later amended her complaint to add a claim for child
sex abuse under SDCL 26-10-25. Michael filed a motion to dismiss both claims,
alleging that neither was timely commenced. The circuit court determined that
Marty's alienation of affection claim accrued in 2015 based on Marty's allegation in
her complaint that she and Jeremy had "lived together and were happy from the
time of their marriage until . . . 2015.†The court thereafter dismissed this claim
because Marty failed to bring suit within three years as required under SDCL 15-2-
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14(3).0F
1 The court did not dismiss the child sex abuse claim, commenced in 2019,
because it determined, based on the facts alleged in Marty's complaint, that she was
not on inquiry notice of her claim until she obtained treatment in 2017.
[¶10.] After conducting discovery, including taking Marty's deposition,
Michael filed a motion for summary judgment, again asserting that Marty failed to
timely commence her suit alleging child sex abuse. Relying on her deposition
testimony, Michael noted that Marty was aware of his alleged acts that occurred
when she was a child and was further aware in 2005 that her relationship with him
caused problems between her and Jeremy. Therefore, he claimed that the
undisputed material facts showed that she was on inquiry notice in 2005, when she
told Jeremy about her affair with Michael, to seek out information regarding her
injury and its cause. In response, Marty asserted that despite her knowledge of her
affair with Michael, "there [was] nothing [she] could have inquired into†regarding
the child sex abuse "because she was unaware that [Michael] was the cause of her
condition[.]†In her view, the record established that "[t]he objective fact that
triggered the statute of limitations surfaced†during her treatment at The Meadows
in 2017 when she began her journey of understanding how Michael's earlier acts
toward her were abusive and how they affected her.
1. SDCL 15-2-14 provides:
Except where, in special cases, a different limitation is
prescribed by statute, the following civil actions other than for
the recovery of real property can be commenced only within
three years after the cause of action shall have accrued:
. . .
(3) An action for personal injury.
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[¶11.] The circuit court issued a memorandum decision after a hearing on
Michael's motion. Relying on Rodriguez v. Miles, 2011 S.D. 29, 799 N.W.2d 722, the
circuit court determined that Marty was on inquiry notice of her claim "as early as
2002 but as late as 2005 when she disclosed the affair to her husband and began the
long road of attempting to salvage her marriage†because these facts would "cause a
reasonably prudent person to seek out information regarding her injuries and its
cause.†Because Marty filed her amended complaint more than three years after
2005, the circuit court granted Michael's motion for summary judgment and
dismissed Marty's child sex abuse claim as untimely under SDCL 26-10-25.
[¶12.] Marty appeals, alleging the circuit court erred in granting summary
judgment.
Standard of Review
[¶13.] When summary judgment is granted on a statute of limitations
defense, the same well-settled rules governing summary judgment review apply.
Strassburg v. Citizens State Bank, 1998 S.D. 72, ¶ 5, 581 N.W.2d 510, 513. "We
review de novo a circuit court's entry of summary judgment.†Tammen v. Tronvold,
2021 S.D. 56, ¶ 17, 965 N.W.2d 161, 168. Summary judgment is proper "if the
pleadings, depositions, answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine issue as to any material
fact and that the moving party is entitled to a judgment as a matter of law.†SDCL
15-6-56(c). We view the evidence and all reasonable inferences in a light most
favorable to the nonmoving party and resolve reasonable doubts against the moving
party. Strassburg, 1998 S.D. 72, ¶ 5, 581 N.W.2d at 513. Our task on appeal is to
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"determine whether the moving party has demonstrated the absence of any genuine
issue of material fact and entitlement to judgment on the merits as a matter of law.â€
Bernie v. Cath. Diocese of Sioux Falls, 2012 S.D. 63, ¶ 7, 821 N.W.2d 232, 237
(citation omitted).
Analysis and Decision
[¶14.] Marty contends that while she "knew a problem existed in her
marriage because of [her] sexual association with Michael as an adult,†the circuit
court erred in concluding that the undisputed facts showed she was on inquiry
notice of the child sex abuse and its connection to her injury more than three years
prior to her bringing suit against Michael. She claims that the record contains no
evidence that she was aware of the child sex abuse or its impact on her life until her
treatment at The Meadows in 2017. Marty asserts that it was not until she was
engaged in this treatment that she came to understand that she had been the
victim of sexual abuse as a child and that it was the cause of her later trauma,
emotional pain, and mental health issues.
[¶15.] In response, Michael and the dissent focus on the fact that Marty was
aware of Michael's acts toward her when she was a child and knew in 2005 that her
relationship with him caused marital problems between her and Jeremy. Both the
dissent and Michael contend that these undisputed facts put Marty on inquiry
notice to seek out information about her injury and its cause, and therefore, the
circuit court properly granted summary judgment dismissing Marty's claim of child
sex abuse under SDCL 26-10-25.
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[¶16.] "While we often distinguish between the moving and non-moving party
in referring to the parties' summary judgment burdens,†the focus of the inquiry is
different when a motion for summary judgment is based on the affirmative defense
that a cause of action is time-barred. Zephier v. Cath. Diocese of Sioux Falls, 2008
S.D. 56, ¶ 6, 752 N.W.2d 658, 662. As this Court explained in Zephier,
SDCL 26-10-25 is an affirmative defense, and the burden of
proof to establish affirmative defenses is on the party who seeks
to rely on it. Clancy v. Callan, 90 S.D. 115, 118, 238 N.W.2d
295, 297 (1976) (citing Lang v. Burns, 77 S.D. 626, 97 N.W.2d
863, 865 (1959)). The burden of production, however, shifts. "In
summary judgment proceedings, where the defendant asserts
the statute of limitations as a bar to the action, and
presumptively establishes the defense by showing the case was
instituted beyond the statutory period, the burden then shifts to
the plaintiff to establish the existence of material facts in
avoidance of the statute of limitations[.]†Conway v. Conway,
487 N.W.2d 21, 23 (S.D. 1992).
Id. ¶ 9, 752 N.W.2d at 663–64; accord One Star v. Sisters of St. Francis, 2008 S.D.
55, ¶ 12, 752 N.W.2d 668, 675. "Generally, a statute of limitations question is left
for the jury; however, '[d]eciding what constitutes accrual of a cause of action' is a
question of law and reviewed de novo. In reviewing under this standard, '[w]e give
no deference to the trial court's conclusions of law.'†One Star, 2008 S.D. 55, ¶ 12,
752 N.W.2d at 675 (quoting Peterson v. Hohm, 2000 S.D. 27, ¶ 8, 607 N.W.2d 8, 11).
[¶17.] Because the circuit court granted Michael summary judgment on the
affirmative defense that Marty failed to timely commence suit under SDCL 26-10-
25, we must first examine whether the court properly determined that Michael
presumptively established that Marty brought her claim beyond the statutory
period. Under SDCL 26-10-25:
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Any civil action based on intentional conduct brought by any
person for recovery of damages for injury suffered as a result of
childhood sexual abuse shall be commenced within three years
of the act alleged to have caused the injury or condition, or three
years of the time the victim discovered or reasonably should have
discovered that the injury or condition was caused by the act,
whichever period expires later. However, no person who has
reached the age of forty years may recover damages from any
person or entity other than the person who perpetrated the
actual act of sexual abuse.
(Emphasis added.) In determining when a claimant "discovered or reasonably
should have discovered†the causation of an alleged injury or condition, see id., the
question is whether the plaintiff became aware of facts that would have prompted
"a reasonably prudent person to seek out information regarding his or her injury or
condition and its cause[,]†see Rodriguez, 2011 S.D. 29, ¶ 9, 799 N.W.2d at 725
(citation omitted). As the Court in Zephier explained, "one having actual notice of
circumstances sufficient to put a prudent person on inquiry about a particular fact,
and who omits to make such inquiry with reasonable diligence, is deemed to have
constructive notice of the fact itself sufficient to start the running of the statute of
limitations.†2008 S.D. 56, ¶ 14, 752 N.W.2d at 665. "Inquiry notice is determined
by an objective standard.†Rodriguez, 2011 S.D. 29, ¶ 11, 799 N.W.2d at 727.
[¶18.] In this case, the circuit court, Michael, and the dissent fail to
appreciate the significance of the unique fact that the conduct forming the basis of
Marty's lawsuit against Michael (inappropriate sexual touching of a child by a
trusted individual) evolved into consensual adult sexual conduct between a fatherin-law and daughter-in-law. As Marty explained in her statement of disputed facts,
while she "was haunted by the incident of having sex with the father of her husband
when she was an adult,†"how [Michael] groomed [her] while [she] was a minor is an
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entirely separate matter, a matter she never correlated to the cause of her problems
as an adult†until she entered treatment. The dissent nevertheless concludes that
Marty was on inquiry notice that Michael's behavior toward her when she was a
child was the cause of her later injuries because she underwent "ten years of
marital counseling with Jeremy[.]†(Emphasis omitted.) But the record does not
support the assumptions upon which the dissent's conclusion rests because there is
no evidence in the record that, during the years of marital counseling, the alleged
child sex abuse was discussed.
[¶19.] In light of the distinct difference between child sex abuse and an adult
consensual sexual relationship, the undisputed evidence that Marty told Jeremy in
2005 about her adult affair with Michael, a disturbing situation in and of itself, and
that the two thereafter went to marriage counseling for several years does not
presumptively show that Marty was aware she was the victim of child sex abuse or
that she reasonably should have discovered that her injury or condition was caused
by the abuse more than three years before she commenced suit. As we have held in
our prior cases involving child sex abuse, SDCL 26-10-25 gives "victims time to
discover the causal relationship between the sexual abuse and the resulting injury.â€
Bernie v. Blue Cloud Abbey, 2012 S.D. 64, ¶ 3, 821 N.W.2d 224, 226. Therefore, the
discovery of "the injuries in and of itself will not suffice to commence the statutory
period regarding discovery of the causal connection between the acts of abuse and
the plaintiffs' injuries. 'Rather, there must be discovery of some tie linking the acts
of abuse to the injury.'†Zephier, 2008 S.D. 56, ¶ 10, 752 N.W.2d at 664 (citation
omitted) (concluding that defendants failed to make a presumptive showing because
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defendants did not introduce evidence showing that plaintiffs should have
reasonably discovered that their injury or condition was caused by child sex abuse
more than three years before commencing suit). As this Court has explained,
Imagine being pricked on the arm with a pin. At first, such an
intrusion would be disturbing, but with time might seem
uneventful. Now imagine the pin carried a dreaded affliction,
only discoverable after years of incubation. Such is often the
nature of childhood sexual abuse. Many children only realize
years later the true significance of the abuse they endured,
especially in cases where the molestation occurred at the hands of
family members or other trusted individuals. For some children,
sexual violation is so traumatic it becomes psychologically selfconcealing, if only to preserve sanity. For this reason, our
Legislature enacted SDCL 26-10-25 creating a discovery rule for
adult survivors of child sex abuse.
Stratmeyer v. Stratmeyer, 1997 S.D. 97, ¶ 13, 567 N.W.2d 220, 222–23 (emphasis
added).
[¶20.] Here, a review of the record does not show any evidence that Marty
was aware, prior to attending in-patient treatment in June 2017, that she had been
the victim of child sex abuse and that there was a causal connection between
Michael's earlier conduct of sexually grooming her when she was a child and the
injuries that manifested much later in life. Rather, Marty's deposition testimony
and the affidavit of her therapist evince just the opposite. Marty testified that
despite ten years of marriage counseling, she and Jeremy were never able to
identify the true issue that would have allowed them to obtain appropriate help to
keep their marriage together.1F
2 She further testified that it was not until she sought
2. The dissent's reliance on Marty's use of the phrase "huge white elephant†is
misplaced. She did not use that phrase to indicate her understanding of the
nature and impact of Michael's behavior and acts toward her from its
(continued . . .)
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treatment in 2017 for her anxiety and depression that she understood she had been
sexually abused as a child by Michael and that this earlier abuse may have been the
cause of her later behaviors and resulting marital and mental health issues. Her
therapist, in his affidavit, stated that in his opinion, the abuse Marty suffered at
the hands of Michael "became psychologically self-concealing†and that Marty "only
realized years later the true significance of the sexual abuse and damages resulting
from the abuse,†with the "initial realization occurring at The Meadows on June 6,
2017.†In a subsequent affidavit, he attested that although Marty "acknowledged to
her husband that she had sex with his father she did not acknowledge it was abuse
nor did she connect it with the childhood abuse that had already occurred.â€
[¶21.] Michael offered no evidence disputing this evidence. However, Michael
claims that Marty was on inquiry notice of her claim under SDCL 26-10-25 because
she testified that Michael's acts of child sex abuse toward her "have 'never' been out
of her mind[.]†The dissent suggests the same conclusion based on the same
testimony. However, the dissent and Michael mischaracterize Marty's deposition
testimony. Marty did not testify that she "never†stopped thinking about the child
sex abuse from the time that it happened. Rather, she explained, in response to
Michael's counsel asking her to put her damages into context, that her treatment
counselors at The Meadows (starting in 2017) had asked her "to go back to day one,
________________________
(. . . continued)
inception. Rather, when Marty referred to a "huge white elephant in the
middle of [their] relationship†that neither she nor Jeremy could identify, she
was responding to a line of questioning focusing on how her consensual affair
with her father-in-law led to a series of events that impacted Jeremy's
relationship with his family, his job, and their marriage.
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as far back as [she could] remember.†In doing so, she thought about her past and
about everything that had happened to her. She explained that after this process of
evaluating her life, her relationship with Michael is something that "never goes out
of [her] mind†and her "life is forever changed because of the inappropriate
relationship with Mike Syrstad.†When Marty's deposition testimony is viewed in
this context—that her reflection and realization occurred during her treatment at
The Meadows—it does not support Michael's argument that Marty was aware since
2005 of facts that would prompt "a reasonably prudent person to seek information
about the problem and its cause.†See Zephier, 2008 S.D. 56, ¶ 14, 752 N.W.2d at
665 (citation omitted).
[¶22.] A review of this Court's past cases, in which we determined that a
plaintiff was on inquiry notice of the child sex abuse cause of action, reveals distinct
differences from the circumstances here. Our past cases involved plaintiffs who
either openly acknowledged that they had been abused as children and had
experienced adverse effects as a result of the abuse, or plaintiffs who had either
sought counseling because of the abuse or were advised by counselors that their
problems stemmed from childhood abuse. On appeal, this Court was able to
identify in each case specific evidence showing that it was undisputed that the
plaintiffs knew of the child sex abuse (the problem) and were aware of its causal
connection to their subsequent behavioral and mental health problems long before
they decided to commence litigation against the perpetrators.
[¶23.] For example, in One Star, two plaintiffs brought suit against various
defendants in 2005 for acts of abuse that occurred more than 40 years prior at the
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hands of priests, brothers, and sisters of a religiously run boarding school. 2008
S.D. 55, ¶ 2, 752 N.W.2d at 672. One defendant, the Sisters of St. Francis, Denver
Colorado (Sisters), filed a motion for summary judgment against both plaintiffs'
claims asserting that neither timely commenced suit. Id. ¶ 8, 752 N.W.2d at 673.
The circuit court denied summary judgment; however, on appeal, we reversed.
[¶24.] We determined that "Sisters [had] presumptively established that One
Star was on inquiry notice of the relationship between his condition and its cause
when he responded [by letter] to [a] newspaper advertisement in May of 2001â€
soliciting information on abuse suffered by former students of the boarding school.
Id. ¶ 19, 752 N.W.2d at 677. One Star stated in his letter that he knew what was
done to him at the boarding school and that it affected him "in a bad way [his]
whole life . . . .†Id. In regard to the other plaintiff, Sorace, the Court determined
that "Sisters [had] also presumptively established that Sorace commenced her case
more than three years after she was on actual or inquiry notice that her injuries
were caused by the abuse†because during counseling in 1995, Sorace's mental
health counselor advised her that "her anger issues were connected to the sexual
abuse†and encouraged her to seek professional help to treat her injuries. Id. ¶ 21,
752 N.W.2d at 677–78. We determined that at that point, "Sorace possessed actual
knowledge of a causal connection to her anger management problem†and was "on
inquiry notice to seek information about the problem and its cause.†Id. ¶ 21, 752
N.W.2d at 678. See also Rodriguez, 2011 S.D. 29, ¶¶ 10, 11, 799 N.W.2d at 726–27
(undisputed that plaintiff knew of the sexual abuse and its effects more than three
years prior to commencing suit); Iron Wing v. Cath. Diocese of Sioux Falls, 2011
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S.D. 79, ¶ 5, 807 N.W.2d 108, 110 (plaintiff testified that he was aware of the anger
and hatred the sexual abuse had caused since his junior year of high school).
[¶25.] In contrast, here, the record does not contain undisputed evidence that
Marty should have been on inquiry notice, prior to 2017, that Michael's behavior
toward her when she was a child was sexually abusive, or that this behavior was
the cause of her later problems. Genuine issues of material fact exist regarding
whether Marty could have reasonably believed until 2017 that the consensual adult
extramarital affair with Michael and the concern that he might be the father of one
of her children were the events that precipitated the breakdown of Marty's marriage
and caused her emotional injuries, rather than the alleged sex abuse that occurred
when she was a child. When viewing the record in a light
Reversed and remanded.
About This Case
What was the outcome of MARTY K. SYRSTAD v. MICHAEL J. SYRSTAD?
The outcome was: Reversed and remanded.
Which court heard MARTY K. SYRSTAD v. MICHAEL J. SYRSTAD?
This case was heard in <center><h5><b> IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA </b> <br></h5> <font color="green"><i><h4>On appeal from The CIRCUIT COURT OF THE THIRD JUDICIAL CIRCUIT BROOKINGS COUNTY, SOUTH DAKOTA </i></font></center></h4>, SD. The presiding judge was Patricia J. DeVaney.
Who were the attorneys in MARTY K. SYRSTAD v. MICHAEL J. SYRSTAD?
Plaintiff's attorney: ROBERT A. CHRISTENSON. Defendant's attorney: Pierre, SD – Best Divorce Lawyer Directory Tell MoreLaw About Your Litigation Successes and MoreLaw Will Tell the World. Re: MoreLaw National Jury Verdict and Settlement Counselor: MoreLaw collects and publishes civil and criminal litigation information from the state and federal courts nationwide. Publication is free and access to the information is free to the public. MoreLaw will publish litigation reports submitted by you free of charge Info@MoreLaw.com - 855-853-4800.
When was MARTY K. SYRSTAD v. MICHAEL J. SYRSTAD decided?
This case was decided on January 27, 2022.