Simunek v. (Simunek) Auwerter
2011 SD 56
| S.D. | 2011Background
- Mother Ashley Auwerter and Father Jeremiah Simunek, separated after two years of marriage, shared legal custody with Mother having primary physical custody of their child, C.S.S.
- Father moved to obtain primary physical custody; initial plan granted Father liberal parenting time, later modified by agreement to a shared plan with Father as primary when kindergarten began.
- Before kindergarten, Father began dating Stepmother Britni Mendel; Child later began kindergarten in Hot Springs; Mother maintained residence in Rapid City.
- Two child custody Evaluations recommended a shared parenting plan; one evaluator later suggested Father should have primary custody at kindergarten start, prompting a second shared plan.
- As kindergarten approached, Mother sought a modification and another custody evaluation; the third evaluator favored Mother's primary custody, but trial in August 2010 culminated in an order awarding Father primary physical custody.
- Mother appeals alleging the circuit court abused its discretion in awarding Father primary physical custody; the court conducted a Fuerstenberg-based factor review and found Father’s custody best preserved the child’s welfare.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standard of review and abuse of discretion | Mother argues the court abused its discretion in applying factors. | Father contends the court properly weighed best-interest factors with a balanced approach. | No abuse; court properly applied factors. |
| Role of siblings in custodial decision | Mother argues keeping siblings together was controlling. | Father contends separation is a factor to be weighed but not controlling. | Court balanced factors; separation not controlling. |
| Father's fitness given alcohol history | Mother alleged Father’s alcohol use and prior driving record render him unfit. | Father had changed behavior; counselor found him fit despite past issues. | Court found Father fit; no clear error. |
| Conflicting custody evaluations | Mother challenged the court’s choice amid conflicting expert opinions. | Father supports trial court’s discretion to select among experts. | Court did not abuse discretion; chose one satisfactory option. |
Key Cases Cited
- Fuerstenberg v. Fuerstenberg, 1999 S.D. 35, 591 N.W.2d 806 (S.D. 1999) (guides best-interests factor framework and standard of review)
- Kreps v. Kreps, 2010 S.D. 12, 778 N.W.2d 843 (S.D. 2010) (abuse-of-discretion review; upholds factual findings absent clear error)
- Mayer v. Mayer, 397 N.W.2d 638 (S.D. 1986) (siblings should generally be kept together unless compelling circumstances)
- Crouse v. Crouse, 552 N.W.2d 413 (S.D. 1996) (courts weigh multiple factors; no automatic preference for sibling preservation)
- Wise v. Brooks Constr. Servs., 721 N.W.2d 461 (S.D. 2006) (trier of fact may accept all/part/none of expert opinions)
- Sander v. Minnehaha Cnty., 652 N.W.2d 778 (S.D. 2002) (trial court discretion in custody matters amid conflicting testimony)
- Arneson v. Arneson, 670 N.W.2d 904 (S.D. 2003) (difficult choice between two satisfactory parenting options; no automatic reversal)
- Pietrzak v. Schroeder, 759 N.W.2d 734 (S.D. 2009) (best-interests framework considerations; temporal, mental, moral welfare)