*1 HANSEN, Judy E. Plaintiff Appellant, HANSEN,
Larry E. Defendant Appellee. 13623.
No. Dakota. May 1982.
Argued Dec.
Decided Johnson, May, Doyle W. Wiehl of
Deraid Becker, P.C., Falls, plaintiff & Sioux appellant. Woods, Fuller, Taylor G. William Smith, P.C., Falls, for de- & Sioux Shultz appellee. fendant WOLLMAN, Justice. appeal modify- is an from an order custody provisions of a divorce
ing the child We affirm. The children’s mother and father The mother received cus- divorced children, tody Jeremy, Donovan and stipulation agreement to a pursuant her the time between and the From and chil- the divorce to the mother Falls, lived in Sioux moved to The mother and children then received work City, where the mother Sioux job training. cooperated weekends, spend the children sum- *2 preferred Hurley sys- that the school vacations, holidays they with their fa- mer class- tem, sports program, its and small Hurley, outside Da- his farm ther at sizes, system. to the Phoenix school posi- a the mother secured room In kota. Phoenix, favorably of spoke a in both children company a broker with tion as mother, they telling were definite in it more difficult move made Arizona. This preference of their to live spend time with their the trial children to for the their father. with di- modified the job has her to The mother’s by granting custody the father decree 6:00 a.m. and return vorce for work around leave mother granting children and the p.m. year, Last school the chil- 5:00 after rights. visitation school, reasonable ready which got themselves a.m., since they 8:30 at started The mother contends that the trial 3:30, they 2:15 and at from school dismissed jurisdiction have declined over should court until their mother themselves care of took Arizona custody proceedings because There is work. no evidence from returned more convenient forum. We disa was the tardy for school were ever that children Custody Child Although the Uniform gree. they alone. while any got or in trouble a trial court to de Act allows Jurisdiction few of the mother live a An aunt uncle if it finds that it is an jurisdiction cline Phoenix home. blocks from the forum,1 numerous factors pre inconvenient us from trial concluding clude large father runs a farm- The children’s was an inconvenient forum or court grandparents, The children’s ing operation. a more for would be convenient relatives, Arizona live close to the as other as well um.2 fiancee, Appellee’s farm. who does father’s home, has living outside the been not work 26-5-7 provides: years father for several with compe- state which A this court of supportive of the father re- and has been custody matters has to child tent decide custody of the children. ceiving The custody make a child de- jurisdiction financially than the mother. off
is better by initial or de- termination were ten twelve at the if it is in the interest of the children cree best The custody hearing. that a court of this assume of state par- jurisdiction with their father at that because the child and living Both were begun ents, school in Both the child and at least one contest- Hurley. time and or connection with they ant, significant children stated have farm, state, is available in this enjoyed working on their father’s there fiancee, concerning the liked their father’s evidence state substantial (2) provides: If another state has a closer connection 1. SDCL 26-5-22 family or with the child with the child jurisdiction under this A court which has contestants; more of the and one or chapter to make an initial or modification If substantial jurisdiction may decline to exercise its decree care, protection, present or child’s future making if it finds time before personal relationships training, is more make a forum to inconvenient that custody it is an state; readily available in another circum- determination agreed an- another If have and that court stances of the case appropriate appropriate. forum. a more forum is no less other state is which Moses, in 2. We note that Winkelman provides: SDCL 26-5-23 (S.D.1979), we held that California determining fo- if it is an inconvenient appropriate than forum South Da was a more rum, if it is shall consider court in a child matter. In that kota state as- another interest of the child that however, resided in the child had California may purpose jurisdiction. For this it sume years been abducted factors, the last five and had following in- take account into brought to South Dakota with her father and cluding: approval. out court recently notice and (1)If was the another state is or state; child’s home care, protection, court, The child’s faced with difficult training, relationships. of determining task which custody, apparently gave receive substan- provision provided the trial court with preference tial consideration to the adequate jurisdiction. basis to assume We "have children. held that children had lived South Dakota *3 preference, while not controlling, may be They spent until 1978. had a substantial by a trial in determining considered time amount of in this state on their fa- Gillaspie Gillaspie, matters. 272 v. subsequent to ther’s farm and at the 795 (citing 30-27-19). SDCL just hearing they spent of the decisions, For similar see In re Marriage summer with their father on the farm and Kramer, (1978); 177 Mont. 580 439 P.2d going Hurley. Family, were to school in Bare, re Marriage friends, the children were and teachers of 1973); Heller, (Iowa v. Guldeman 151 provide available to “substantial evidence (N.D.1967). The trial boys bright, found that the two com- care, protection, training, and rela- municative, understanding, and mature for tionships.” 26-5-7. The children’s He ages. also found that their deci- comparable connections with this state stay sion to with their father appeared to to, to, their connections with superior not intelligent be an and well-reasoned one that Arizona. the product was not of coaching. Under that her next contends the circumstances of this we cannot pref residence and change of say judge’s reliance on the not con live with their do erence preferences inappropriate. children’s circumstanc change of a substantial stitute say We also cannot of the modification permit es sufficient abused his discretion in modifying cus- de of the divorce custody provisions initial tody provisions of the divorce custody provisions initial cree. Since Appellant’s request attorney fees is stipulation and parents’ were based denied. in Kolb v. recent decision agreement, our makes it 279 Kolb, 324 N.W.2d is affirmed. The order whether to determine unnecessary for us circum change of there was a substantial FOSHEIM, C.J., and and DUNN MOR- provides decision The Kolb stances. GAN, JJ., concur. is based on when the HENDERSON, J., in result. concurs party seeking parties, agreement of a sub to show HENDERSON, (concurs Justice in re- also change of circumstances. stantial sult). (S.D. Haskell, 324 N.W.2d Haskell v. opinion the result of this I concur in 1982). citing v. language Kolb disapprove of regard The trial court’s decision Kolb, (S.D.1982) (Hender- custody will be ing only upon reversed son, J., concurring part dissenting and showing of abuse a clear of discretion. part). 4—45; Haskell, supra; Matter of SDCL 25— considering and testimo- After affidavits Ehlen, (1981). subsequent to facts to the ny pertaining opinion charac judge in his memorandum decree, the trial court entered fifteen find- loving and caring both as terized law, of fact and five conclusions of ings record parents. leads us Our review of which is contained in Conclusion essence to the same conclusion. the two 5: of Law provided by parents environments other, different
quite from each there are been a substantial and There generalizations superiori no valid about the material of circumstances since ty of either environment. the Decree of Divorce was and best interests of the chil- the welfare Larry requiring, dren so Hansen be- SHAULL, Individually Walter as proper person to ing a fit and have the Randy Shaull, Ad Litem Guardian children, he custody of the is the proper Minor, Highmore, Hyde both of custody and it shall person to have be Appellants, Plaintiffs and accordingly. awarded to him Therefore, ease should be reviewed un- HART, Individually by Ben test set forth in two-prong three der through his Guardian Ad Litem Richard including Engels Engels
recent cases Hart, parents, Hart and Richard which holds: Hart, Hughes County, Lois seeking modification of cus- [T]he Dakota; Peterson, Minor, Ross Indi rights has the todial burden of proving by vidually through his Guardi preponderance *4 Litem, Peterson, par an Ad Lee there has been substantial and material ents, Lee Peterson and Catherine Peter change of circumstances since the decree Hyde son, of divorce the wel- Appellees. Defendants and interests of the children fare and best require being sought. the modification No. 13548. 489, Engels, (S.D.1980) (cit
ing Menning Menning, 828, (S.D.1978)). also,
829-30
Sneesby
Argued May
Davis,
Under the of In Re Estate of Ho
belsberger, 85 S.D.
(1970), findings of fact and conclusions clearly
of law are not erroneous. This was
a classic case of where country boys two put city (streets Phoenix) in the take the country couldn’t out of the the rock
boys. family farm was Tearfully, boy
their existence. one told judge he would return to his moth
er’s circumstances and away run to return to Yes, facts subsequent
Phoenix. to a decree meaningful.