Moulton v. Moulton
2017 SD 73
| S.D. | 2017Background
- Jack and Melissa Moulton divorced in 2011; by stipulation they shared legal custody of two children, with Jack having primary physical custody of Adam and Melissa of Marissa.
- In 2013 Melissa moved to Williston, North Dakota for work; parties modified custody by stipulation: Jack primary physical custody of Adam; Melissa primary for Marissa.
- Melissa later sought a change of custody for Adam after an asthmatic episode, arguing Jack’s long‑standing smoking endangered Adam and that the custody evaluator supported her.
- The circuit court held evidentiary hearings, found many factors favored Jack (stability, primary caretaker, parental fitness, parental misconduct concerns for Melissa), discounted the custody evaluation, and denied Melissa’s motion for temporary physical custody of Adam.
- The court also ordered Melissa to pay $15,120 of Jack’s attorney fees; Melissa appealed as to custody and the fee award.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Adam’s best interests required shifting primary physical custody to Melissa | Melissa: Jack’s smoking endangered Adam; custody eval favored her; no compelling reason to keep siblings separated | Jack: Adam is bonded, has stability in Sioux Falls; move to ND would disrupt school, friends, extended family; Melissa violated prior court order and was less credible | Court: Affirmed — best interest factors overall favor Jack; no clear error in denying change of custody |
| Whether Melissa’s relocation and prior stipulation invoked substantial‑change‑of‑circumstances requirement | Melissa argued circumstances warranted change | Jack argued prior stipulation controlled and relocation consequences already addressed | Court: Substantial‑change rule inapplicable because existing arrangement arose from stipulation, and best interests may be considered anew |
| Weight of custody evaluation recommending Melissa | Melissa: evaluator supports change | Jack: evaluator biased/imbalanced; court may reject recommendations | Court: Court permissibly gave little weight to evaluator and relied on trial evidence |
| Whether the court abused discretion by ordering Melissa to pay Jack’s attorney fees | Melissa: fee award improper | Jack: fee request reasonable; Melissa has greater income and actions increased cost | Court: Fee award reasonable and not an abuse of discretion; affirmed |
Key Cases Cited
- McCarty v. McCarty, 867 N.W.2d 355 (S.D. 2015) (best‑interest analysis is the primary guide in custody decisions)
- E.M.H. v. People ex rel., 873 N.W.2d 485 (S.D. 2015) (standard of review for custody findings)
- Roth v. Haag, 834 N.W.2d 337 (S.D. 2013) (lists factors courts may consider in custody decisions)
- Kolb v. Kolb, 324 N.W.2d 279 (S.D. 1982) (explains substantial‑change‑of‑circumstances rule for custody modifications)
- Fuerstenberg v. Fuerstenberg, 591 N.W.2d 798 (S.D. 1999) (parental misconduct considered when harmful effect on child is shown or is self‑evident)
- Schieffer v. Schieffer, 826 N.W.2d 627 (S.D. 2013) (factors for parental fitness and exemplary modeling)
- Kreps v. Kreps, 778 N.W.2d 835 (S.D. 2010) (trial court not bound to follow custody evaluation recommendations)
- Clough v. Nez, 759 N.W.2d 297 (S.D. 2008) (appellate review standard for factual findings)
- Aguilar v. Aguilar, 877 N.W.2d 333 (S.D. 2016) (clarifies clearly erroneous standard for custody findings)
- Hewitt v. Felderman, 841 N.W.2d 258 (S.D. 2013) (attorney‑fee award reviewed for abuse of discretion)
- Brosnan v. Brosnan, 840 N.W.2d 240 (S.D. 2013) (standards for awarding attorney fees in domestic cases)
- Voelker v. Voelker, 520 N.W.2d 903 (S.D. 1994) (factors court should consider when deciding whether to award attorney fees)