*1 ADAM, Roland A. Plaintiff Appellee, ADAM, Defendant Appellant.
No. 16026.
Supreme Court of South Dakota. 1,
Considered on Briefs Dec. 1988.
Decided Feb. 1989. Covey
Kathleen F. Trandahl of Law Of- fice, Winner, appellant. for defendant and Whalen, Andes, Michael J. Lake plaintiff appellee.
SABERS, Justice. (Roland)
Roland Adam obtained divorce grounds on the and was award- child, custody ed of the minor Ralandi. (Lou Anne) appeals. Anne Adam We affirm.
Facts Roland and Lou Anne were married on August divorce, 1980. At the time of twenty-nine Roland wás and Lou Anne was thirty-five. good Both were in health. The *2 267 married, traveled from Sioux marriage, who was during the child had one parties nearly every for a the time of di- to Platte weekend Ralandi, at Falls who was five stay from a children months. Sterk would period Anne had two of three Lou vorce. marriage. sister, previous Lou Anne’s best with his who was addition, numerous In there were friend. gas compa a employed with Roland was phone Lou long distance calls between Dakota, Platte, earning an ny in South Sterk, originally Lou Anne Anne and which $13,000. approximately salary net annual attempted hide. There was also testimo- part-time employed as a Lou Anne was he the ny from minor son that saw Sterk’s Hospi Community Memorial at Platte cook rejected The kissing party. at a court two per week. earning approximately $80 tal extra-marital af- Lou Anne’s denial receiving per month also $200 was She fair, not previous finding testimony her was support from her husband. that child property by The court divided the credible.
$16,226 Anne and property in to Lou ex- found that the child was The court cus $7,807.50 Roland received to Roland. relationship by the posed to and affected party Neither was award tody of Ralandi. finding This Anne and Sterk. between Lou support.* alimony present or child ed Anne that Lou often based on evidence was by preponderance of a The court parties she the child to the where took it in Ralandi’s best that was the evidence testified that meet Sterk. Roland would This custody to Roland. interests to award overnight an him that on the child told upon finding Roland’s was based alone, slept in the car camping trip she had needs, physical child’s he cared for the that slept in a tent Anne and Sterk while Lou School, Sunday and took her to church scared her. Ro- experience this and that her, and was involved shared activities with the child had de- also testified that land teaching necessary school skills. “icky.” friends as Lou Anne’s scribed knowledge a of her Roland showed wide ex- testimony that Ralandi was There was interests, testimo- needs and and was foul lan- gestures and posed to obscene Roland, others, provid- that he ny from and h¿r Anne and Lou guage from both predictable and home envi- a more stable ed addition, there was evidence friends. for her. ronment away attempt to run would that Ralandi contrast, Lou the court found that time came for when the feign sickness present good environment Anne did not Anne, and that to Lou to return her Roland preoccupation of her for the child because wetting to bed while the child resorted friends, interests, and other involve- with mother, that but custody of the relationship. adulterous There ment an care. in the father’s problems lessened that Lou Anne circumstantial evidence was finding 1. Was affair with in an extra-marital was involved clearly erroneous? (Sterk). evi- This included Mervin Sterk under the are reviewed Findings of fact often saw one another dence that two They will not clearly erroneous standard. present. not parties, where Roland was at are left with unless we be overturned night party party an all video One mistake that a and firm conviction definite Anne, Ralandi, Sterk, Lou attended Hilbrands, v. made. Hilbrands has been occasion, Sterk and On another others. Cole, v. Cole the residence spent night Anne at Lou (S.D.1986); Temple v. that There evidence friend. of Sterk’s (S.D.1985). The N.W.2d 561 Temple, 365 during days left Roland for three Lou Anne correct presumptively fact are findings of motel. stayed at a Mitchell she which challenger to upon the the burden is during hunting to be deer claimed Sterk Agents, Inc. Sterk, error. Insurance show that time. The evidence showed this * support pay in accordance child should support because was not awarded Child earnings exceeded future pay support. SDCL 25-7-7 if her present means to lacked the Anne per However, month. $600 the sum of provided the court
Zimmerman, (S.D.1986); provide N.W.2d for each these needs. The court Temple, supra. finding based this on evidence that Roland provided physical better Ralandi’s necessary It is not in divorce social needs and that her behavior was adultery. cases to show a direct act of adjusted better while in his care. The find- (S.D. Rykhus Rykhus, N.W.2d based, ing part, was also on Ralandi’s 1982). may Adultery be inferred from the *3 exposure to the affair Lou Anne between proven circumstances which when lead nat and Sterk. While marital misconduct does urally fairly and to such a conclusion. parent, not make one an unfit evidence that Though Rykhus, supra. Lou Anne and the misconduct has a harmful effect on the relationship, Sterk denied such a the court 25-4-45.1; child will be considered. SDCL found their was not credible. Haak, Madson, supra; Madson v. 313 regard given opportuni Due must be to the (S.D.1981); Hanks, N.W.2d 42 Hanks v. ty judge credibility of the trial court to the (S.D.1980). 296 523 N.W.2d The trial court weigh of and to their the witnesses testimo exposure that Ralandi’s to this rela- Watt, ny. Rykhus, supra; v. 312 Watt tionship had and would continue to have a (S.D.1981). Further, N.W.2d 707 must we harmful effect on her. There is sufficient accept the evidence most favorable to the support evidence the record to these decision, any and reasonable inferences findings and we are not convinced that a Isaak, therefrom. drawn Isaak v. 278 Hilbrands, mistake supra. was made. (S.D.1979); 445 N.W.2d Schutterle Schutterle, (S.D.1977). N.W.2d Separating b. the siblings. clearly The trial court was not erroneous The best of interests the child re granting the divorce to Roland on the quire showing compelling a of reasons be grounds of as there was sufficient separating siblings fore in custody matters. support circumstantial to evidence the find Mayer, supra. showing a is neces Such ing.
sary
half-siblings.
Mayer,
even for
Id.
girls,
half-sisters,
Custody
2.
the two
Ralandi
to
who were
were
of
father.
years apart in age
strong,
two
and shared a
that the
claims
evidence was
common
of
bond
childhood. No
support
finding
insufficient
to
the
that
separate
reasons were shown to
the sib
awarding custody to Roland was in the
result,
lings. As a
Mayer
court held
argues
best interests of the child. She also
that it was an
of
abuse
discretion for the
that the
require compelling
best interests
separate
trial court
to
the children in
separate
reasons to
the child from the oth-
awarding custody.
siblings.
er
Mayer Mayer,
(S.D.1986).
She claims that there were
Here,
age
an
difference
no compelling
separate
reasons to
the child
years
nine
between Ralandi and her
from her half-brother and half-sister. The
half-sibling.
closest
John was fourteen
trial
court has broad
discretion
years old and interested in
rid
horseback
custody of
minor
child and we will not
ing, fishing, bowling,
wrestling.
Sheri
reverse
unless clear abuse of discretion is
years
was sixteen
occupied
old and
shown on the record. Mellema v. Melle
boyfriends
friends
part-time
and a
job.
ma,
Mayer,
N.W.2d 827
There was no
evidence
shared activities
supra;
Haak,
Haak v.
Evidence right 11611-46 Once the of cross-examination has substantially been 3. cross-examination Was exercised, fairly the allowance of fur- improperly restricted. ther cross-examination is discretionary. 81 A court officer conducted a home service (1976). Am.Jur.2d Witnesses § *4 study and made recommendations concern- permitted impeach Anne’s counsel was to indi- ing custody to the court. One of the The the witness. court determined that study stated viduals interviewed Lou Anne’s counsel accomplishing was not concerns Lou that she had serious with anything by continuing, further except ar- obtaining custody Anne of Ralandi and that gument. Counsel failed to make an offer reputations for Anne’s friends had proof of to show otherwise and the record swapping. drinking, partying, and wife On does not that the trial reveal court abused Lou Anne’s counsel es- cross-examination restricting in its discretion the cross-exami- knowledge that the tablished witness’ nation. hearsay persons from on information based AFFIRMED. reveal, she would not but whose names honest and truthful. Lou believed were this line of
Anne’s counsel continued with
WUEST, C.J., and MORGAN and
questioning
until curtailed
the trial
JJ.,
MILLER,
concur.
court:
HENDERSON, J., concurring
getting any-
THE COURT: We are not
specially.
questions.
I’ll
where with this line of
you to cut it off.
ask
HENDERSON,
(concurring spe-
Justice
painting guilt by as-
She’s
[COUNSEL]:
cially).
sociation.
depicted
to the facts
in the
addition
accepted
THE
I’ve
that as ob-
COURT:
opinion,
are certain addition-
majority
there
objection.
jectionable.
sustained the
I’ve
support Judge
crucial to
al facts which are
I
intend to consider it. And so
don’t
separating
insofar as
these
Kern’s decision
consequently,
getting
are
nowhere.
we
reasons)
siblings (compelling
arguing
are
just
You’re
with her. We
(best
girl
interests of the
custody of this
going
get anywhere
not
to
with harass-
child) to her father. Such facts include:
the entire ... com-
ment. We will cover
1)
complaining that her mother
Child
munity by
you’re done. I
the time
would
her;
forgot to feed
suggest
drop
questioning
line of
we
2)
complaining many
on
occasions
Child
something
go
on to
else.
get
not
a full meal
that she would
party
right
A
cross-exam
has the
to
sandwich;
get only a
would
but
preparation
persons
ine all
involved
3)
complaining that her “mama
Child
report relating to custo
of a court service
lies”;
Schmitz,
dy.
351 N.W.2d
Schmitz
4)
she
to
expressing that
wanted
Child
Krebs,
989,
A.D.2d
Krebs v.
night;
Daddy every
stay with
(1981);
443 N.Y.S.2d
Wunsch
5)
drawing pictures exhibiting
29,
Wunsch,
Child
248 Wis.
and half-sister was from judge responsibility. circuit his viewed school; high commonality Compelling sepa of inter- here reasons existed to rate a ests not shared. brother two sisters. Doan Cf. Nelson, Thi Hoang Anh v. splitting custody Justification for the (Iowa 1976). can be of the circum- because my special stances of each case. In concur-
rence in Mayer, 397 N.W.2d at cited split-
the majority, I cited situations where
ting custody compelling. could One of be “inability
those reasons was the either
parent of the care for all children.”
Here, mother, lifestyle, this because of her girl.
was unable to care for this little Even girl recognized
the little that she could not
survive on lies and sandwiches. She knew wrong
it was to duck down a car and to
hide behind a tree. She so detested her life