Henle v. Larson

846 determining sufficiency of the evi-

dence, determining limited to HENLE, our review is Appellant, Scott Plaintiff and whether there is evidence in the record v. which, believed, if will sustain a guilt beyond a reasonable doubt. v. LARSON, State Angela Defendant Hanson, 135, 139 Appellee. 307, Virginia, 443 U.S. See also Jackson No. 16830. 2781, (1979); 99 L.Ed.2d 560 S.Ct. 61 In re 358, 1068, Winship, 397 U.S. 90 S.Ct. Supreme Court of South Dakota. Here, (1970). admittedly, L.Ed.2d 368 26, there was no evidence the record to Considered on Briefs 1990. review, extent, majority and to that has 6, Decided March posed by misstated the issue Lee. The question is not whether there was suffi- uphold

cient evidence in the record to

conviction, presupposes for that the exist-

ence of evidence and no evidence was ad- rather, proceeding;

mitted in this the issue any

is whether there was evidence in the

record which to convict him—and there Thompson City was not. See

Louisville, 624, U.S. S.Ct. (1960). police

L.Ed.2d reports

were not entered into evidence. IV,

Article section 2 of the South Dakota

Constitution and the Fifth and Fourteenth

Amendments of the United States Constitu- (cid:127) tion that no shall be de-

prived liberty process due without

law. Where there is no evidence in the conviction,

record to it is void comport pro-

because does with due Thompson,

cess of law. 362 U.S. at here, We,

80 S.Ct. at 628. confront a cir- Wiater,

cumstance People similar to (1963):

A.D.2d N.Y.S.2d 464 sworn,

No one was no evidence was tak-

en, discussion, largely but after a be- appellant’s counsel,

tween the Court and

during which counsel made no admis-

sions, in very abrupt and cavalier man-

ner the appellant Court decided that

guilty pronounced ... sentence. proceeding Wiater court found such a every concept

“defied process,” of due id.

241 N.Y.S.2d at and I pro- believe the

ceedings in the instant case do likewise. I

would reverse. on, parties’ relationship time went

As In April deteriorated. mother and out of the home and into moved an (Reede). apartment with Michelle Reede month, paternity next in lieu of a ac- tion, stip- mother and father entered into a approved by the ulation circuit court con- cerning paternity, support and child stipulation provided physical legal mother would have both custody of Eric.

After mother and Eric moved Reede, boyfriend Reede’s and mother’s Mother, boyfriend own also moved in. boyfriend apart- and Eric lived in Reede’s 1, 1988, July ment until when mother and boyfriend married. After the mar- riage, apart- the three their own moved into ment. present proceed-

Father commenced the ing August to obtain of Eric in hearing A 1988. on father’s motion to change was conducted late Au- early September. The trial gust and Falls, Irvine, plaintiff L. Julie Sioux subsequently entered of fact and appellant. determining conclusions of law Falls, Hattervig, Sioux for defen- Karen in Eric’s best interests for custo- be appellee. dant and dy judgment to remain with mother. A accordingly appeal entered and this SABERS, (on reassignment.) Justice followed. (father) appeals the trial Henle Scott change of his motion to cus- court’s denial ISSUE ONE son, Eric. tody four-year-old of his We affirm. DID THE TRIAL ITS COURT ABUSE IN DETERMINING THAT DISCRETION

FACTS REQUIRED A ERIC’S BEST INTERESTS (mother) DENIAL FATHER’S MOTION TO OF Angela Branson Father and They CHANGE CUSTODY? married. conceived have never been teenagers in Eric while were both that the trial court Father contends high school. Eric was born denying his motion abused its discretion birth, After his resided in of moth change because paternal grandmother. the home of Eric’s parenting skills and her dishon er’s lack of finish school that Father went on to esty. Normally, “[wjhen is not dropped out of school spring but mother par proceeding, contested in a divorce graduate. change seeking subsequent of custo ent a proving by prepon dy Eric later moved in with has the burden of Mother and that the best inter grandmother. derance of the evidence Eric’s maternal October require a and welfare of the children the two moved with father into their ests custody.” Shoop Shoop, pro- change Father worked and apartment. own Here, how family’s financial while N.W.2d vided the ever, Eric was de original custody of pri- remained home and assumed paterni- through stipulation responsibility for child care. termined mary ty proceeding pro- rather than in a divorce mother’s theft laundry of some from a Nevertheless, ceeding. we have held laundromat. Mother denied much of this “a of a minor child conduct based and rebutted father’s evidence testimony concerning filthy an order entered as a result of a with condi- paternity governed by action should be tions his mother’s home where he factors, planned to if principles applied and and fol- live with Eric he should be lowed, awarded custody in divorce cases where Sambeek, involved.” Pribbenow Van The trial all of testimony court heard the (S.D.1988). Thus, 418 N.W.2d be- pertaining to these matters and entered its custody cause was not contested the findings Although recognized of fact. paternity proceeding, change to achieve a that mother had demonstrated a lack of custody prov- father had the burden of parenting past, skills the it attributed evidence, ing, by preponderance of the problem immaturity, to her the fact that Eric’s best interests and welfare re- that she pregnant young age became at a quired change. Shoop, supra. the while still in really school and that she required was not to establish a substantial didn’t how to know care for an infant. The change Kolb, in circumstances. Kolb v. parenting also found that her problem skills was curable as she matures by training and and counseling.

The trial court has broad discretion resolving motions for a in custo The trial court specifically found that dy only upon and this court will reverse a mother did good parenting not have skills showing of an Shoop, during abuse discretion. the time she and Eric lived with supra. An Nevertheless, abuse of discretion refers to a Reede. it found Eric discretion purpose exercised to an end or accidents, had had no serious illnesses or justified by, not against, and sincerely reason that mother loves Eric and that Herndon, and evidence. Herndon v. 305 she and good primary Eric have bonding. Although the trial court during found that stay Reede, mother and Eric’s with mother This modification proceeding heavily “probably” exposed had the child to sexual Unfortunately, contested. as in Williams husband, behavior present with her it en- Williams, (S.D. 425 N.W.2d tered no this behavior had 1988), “the concentrated more on any demonstrable effect on Eric and we demeaning each other’s they conduct than find no record evidence that issue, did in addressing the real namely the finding.1 such a best interests of During [child].” hearing, presented father extensive testi The trial court found thing that the best mony roommate, from mother’s former Mi happened that has to mother is that she Reede, chelle boyfriend. and her These has married and has an opportunity to ma- variety witnesses raised a allegations develop ture and stability. It also found during mother’s care of Eric that because working mother is baby-sit- at they living time were with Reede. The ting in the home she will be spend able to allegations generally related to instances more time with Eric than father who would which mother left Eric unattended put day-care while have to during day. she went out late in evening; Additionally, the trial court found that boyfriend’s and her commission of sexual mother and her husband were ex- presence; misconduct in Eric’s pecting a child who would be Eric’s half failure properly that, to cook ap Eric or to sibling possible, if the two should him; propriately discipline and, finally, together. live parent "[I]mmoral conduct one does not it does not follow that the automatically parent render that unfit to have parent is an unfit to have require [child] an award of that an award of to that is not parent." to the Shoop, other in the best interest and welfare of the child. N.W.2d at 724. Madson, Madson v. 43-44 [W]here there is no evidence of a demonstra- parent’s ble effect of a [sexual] misconduct separate Eric there was from his future half sib- The trial court did find that However, it ling. father. argument “much bad” about Father bases this on the that, living because he was also found hearing fact the time of the on this mother, living his future circumstances matter, and, yet the child was not born uncertain and it was unknown where were therefore, opportuni- there had not been an year. The be in six months or a he would ty for a to form bond child and although father was court also found that Eric.2 willing pri- to have apparently to sacrifice It is a matter of settled that: law yet he had to do so mary had not siblings require best interests of “[T]he result, and, really appreciate as a together be raised whenever problems. Finally, the trial the attendant possible.” Mayer Mayer, despite that there court found that the fact 638, principle is “[T]his clearly problems in were no identifiable way in by no diluted the fact that one father, transferring custody to there was a sibling.” is a half Id. at 644. We problem in terms of the effect of a previously recognized and held that custody upon the child. of require the best interests of the child findings of fact in a The trial court’s showing compelling reasons before a proceeding shall not modification separation siblings upheld. will be clearly unless erroneous. be set aside Miller, Miller v. Yarnall, 460 N.W.2d 161 Ya rnall 1989); Adam, Adam v. standard, accept this we Under (S.D.1989). “When the trial court con including any version of the evidence cludes that the child’s best [in] which are reasonable inferences therefrom separate siblings, to it must interest determination. favorable to trial court’s Further, credibility adequate findings of the witness make of fact and con Id. weight and the to be accorded their es regarding clusions of law this crucial by testimony is a matter for determination consequence custody arrange the trial court. Id. Olson, ment.” Olson v. 438 N.W.2d (S.D.1989)[.J in

Applying this standard case, cannot that the above Madsen, stant we state Madsen v. findings of fact are erroneous. Nor (S.D.1990) added). (emphasis in- state, findings, can we the basis these stance, found court its discretion in that the trial abused by continuing interests were served best change custody. father’s motion to denying custody with mother. Since was appropriately weighed

The trial court mother, continued with there would be no past parenting deficiencies mother’s and, hence, separation siblings there was stability opportunity to skills with the for the trial to enter no need provided by marriage against mature support separation. Accordingly, we uncertainty in future father’s and con find no reversible error in the trial court’s in Eric’s inter cluded that it would be best compelling sepa- failure to find reasons to custody to remain with mother. ests for sibling. rate Eric from his unborn half represents a reasoned choice between This supporting Based on a motion and affida- alternatives and does not con the available v. Mal- vit accordance Malcolm represent an of discretion. stitute or abuse (S.D.1985), colm, 365 N.W.2d 863 we award appellate attorney’s fees. mother $500

ISSUE TWO Affirmed. DID THE TRIAL COURT ERR IN FIND REA-

FAILING TO COMPELLING MILLER, C.J., MORGAN, Retired TO SEPARATE ERIC FROM HIS SONS Justice, concur. HALF SIBLING? FUTURE HENDERSON, JJ., WUEST and argues the trial court failing compelling erred in to find reasons dissent. child, Jordan,

2. The was born on

HERTZ, Judge, acting Although Circuit as a Su- sexual indiscretion. mother de- Justice, misconduct, nied the preme having Court been found probably as a fact that exposed the court at the time mother had member of this case considered, the child to boy- sexual behavior with her participate. was generally

friend. This is indicative of HENDERSON, (dissenting). Justice irresponsible mother’s and carefree atti- tude toward the and care of Eric. custody disputes, parent’s In child “[a] appears that her conduct was not in the moral conduct is a valid consideration best interests of Eric. determining parental Langer fitness.” irresponsible Mother’s conduct is also Langerman, man v. demonstrated in the series of (S.D.1983). Here, incidents stay with Ree- Eric, which she two-year-old left exposed de the child to not one but proper home without supervision or su no relationships ongoing two illicit on an basis. pervision at all. simply She would leave boyfriend When Reede’s boy and mother’s him alone! It is further evinced friend apartment, moved into Reede’s failure cook or nutritious meals mother, required to live with his anoth for the child and discipline her failure to or er woman and two men to whom the properly supervise boy. simply women were not married. Illicit cohab would not feed him when hungry! he was generally itation is not conducive to the The detrimental effect of such child care on temporal, mental and moral welfare of a youngster’s physical and mental well-be See, 30-27-19(1). child. SDCL ing, accompanied by potential the actual so, Even this Court has held that where child, danger for to the is obvious. “It is there is no evidence of a demonstrable ef the trial court’s duty to see that the chil upon child, fect of sexual misconduct “it dren protected every at turn.” Yar does not parent follow that the is an unfit Yarnall, (S.D. nall v. to have and that an award 1990), quoting Jasper Jasper, from parent of to that is not in the best N.W.2d As we held interest and welfare of the child.” Madson Spaulding v. Spaulding, 278 N.W.2d Madson, 313 N.W.2d at 43-44. Accord: (S.D.1979), parent, where a “by irre Kester, (S.D. Kester v. sponsible conduct, indicates that [his or] 1977). However, this Court has also held her would be detrimental to the that the harmful effect of sexual miscon welfare of the custody may be is, duct in front of a child “self evident ... parent].” awarded to the [other if it is presence committed in the of a child In contrast with irresponsibili- mother’s enough old recognize to see and impro ty, the record reflects that father has been prieties.” Madson, 313 N.W.2d at 44. a much more stable individual. He is a Madson, In a child observed his mother’s worker, good has maintained steady em- sexual indiscretions on two occasions. ployment since school and has been though Even only the child was two at the diligent paying his child obli- time of the first occurrence and four at the gations exercising his visitation rights. second, time of the the child was able to He shows a keen interest in Eric. Father relate the details of the sexual acts to his lives with his own mother in a four bed- fact, father. This Court found that in con- room home where Eric would have his own junction with the profligate mother’s life room. planned Father has on how to care style, and the undesirable home environ- Eric, intending for to enroll him in pre- ment, sufficient to reverse the trial court’s during day school and to be at home finding that the mother was a fit evenings with him in the night. From standpoint of Father’s mother and his sister are also conduct, very this case is similar available to caring assistance in to Madson. the child. The only allegation mother could Eric, like Madson, the child in against raise father complaints was that years two old at the time of his mother’s have been against filed his mother’s resi- at least three she left dog manure in band. On occasions of for accumulation dence However, night estab- or for an yard. the record the child home late at the back have a father or his mother period lishes that of time without so much as extended they keep yard in the where kennel area confirming presence anyone to look dogs. complaints Two were filed two after him. She has failed to look after the past department in the sev- city health child’s nutritional needs and to exercise the manure, concerning dog both years eral supervision necessary in discipline or rais in the time allot- which were corrected ing young boy. has made admissions She found, agree, and I ted. The trial court involving of unlawful conduct the theft of consider- these two incidents are minor untruthful, property. lacking is can case, particularly in this when com- ations testimony dor even before the trial irrespon- immoral and pared with mother’s court, as demonstrated the trial court’s sible behavior. expression. The trial court found that her awarding custody, the trial In mother serious, honesty may long-term lack of be a great weight the fact that gave minor problem. awarding married, to be a perceiving had she children, guided by the trial court must be stabilizing influence in her life. The trial appears what to be the best interests be- gave deference to mother court also temporal, the child’s men living was not married and not cause father tal and moral welfare. 30-27-19. SDCL However, ad- home. whatever his own Peterson, Peterson v. consid- vantage gained from these appears trial court sim that the by the fact severely diminished erations ply did not address these factors decid convict- husband has been feelings. personal ed the case on ed a series of recent theft offenses. weight compels of these factors the conclu of these convictions occurred after last custody sion that the trial court’s determi decision this matter and trial court’s .in nation has neither a sound nor a substan county jail. in the resulted in confinement clearly in and is tial basis the record Nauman, See, N.W.2d 662 Nauman v. 336 against reason and evidence. Herndon v. (S.D.1983) may taken of (judicial notice be Herndon, (S.D.1981). N.W.2d 917 record, public citing matters of or official expressed I that trial in note the 19-10-2-(2)). It is unknown what SDCL that, run, long the child the record effect this conviction has had exact father; further, however, life, may into be better off with the calls Eric’s was, much question the trial court’s determination there “not bad with Notwithstanding, could the better home that mother father.” stepfather’s was, (on record) environment. The and social that he “a reflected good for the general old-fashioned,” conduct cannot be held the little bit belief of Eric. care, best interests under a mother’s children than under the care of are better nourished held, para- repeatedly have As we “[t]he statutory authori a father. South Dakota deciding the issue mount consideration ty precedent are to the absolute con custody is the best interests of the of child 30-27-19(2) trary. provides, SDCL “[a]s Nauman, 445 N.W.2d child.” Nauman v. claiming parents adversely (S.D.1989). Applying this stan- 38 at guardianship, neither or case, I that the the instant believe dard to the other in given preference over shall be clearly abused its discretion determining custody.” legisla state Our continuing custody with mother. years” the “tender expressly ture revoked repeatedly has exhibited an irre- Mother ch. 194. This rule. 1979 S.D.Sess.L. See attitude sponsible and cavalier legislature’s agreed was the state Court has this exposed him the child. She has the care of Prentice, int ention. Prentice with to not her own illicit cohabitation (S.D.1982); Martin v. Martin N.W.2d 880 man her roommate’s as well. another but Pe See also exposed the child to her sexual She further (S.D. Peterson, 449 N.W.2d 835 boyfriend, now her hus- terson v. relations with appears to this author that the FEES ATTORNEY’S by heavily more influenced trial court was appel- filed Both motions for by personal convictions than statute or attorney's late fees. Both motions are ac- personal infused precedent. His conviction companied by itemized statements of costs case, error, law, spawned in this and has legal incurred and services rendered as re- catastrophic consequence. Malcolm, quired by Malcolm v. precedent and the factual scenario Under Pribbenow, supra, In modifi case, obligated are to reverse the we involving parents, cation case unwed trial court’s determination. attorney father filed a motion for fees in conclusion, reaching this we mindful of appeal. curred on This observed Court obligation give deference to the trial our provides “SDCL 15-17-7 that attor of its court’s decision because first ney fees cases of domestic relations and gauge credibility opportunity hand paternity actions are allowable.” Pribbe Nauman, supra. parties. How now, 418 630. “The allowance ever, fact the trial court’s must attorney fees rests the sound discre support concerning the its conclusion best tion of the court.” Id. Jasper Jasper, interests of the child. in awarding ap The factors considered (S.D. 1984). In this in pellate attorney fees in a domestic relations stance, findings concerning the trial court’s property case are: “the owned each exposure mother’s lack of candor and her party; incomes; their relative whether the weighed of Eric to sexual misconduct when requesting party’s property is in fixed or against nothing its there is assets; liquid party and whether either un father, wrong simply fail to reasonably spent increased the time on the that it be in its conclusion Eric’s best Senger Senger, case.” interest to continue his with moth (S.D.1981). Applying these factors to thought subjective er. A that a mother case, we should award no attor given preference totally against should be — ney’s fees. Mother approximately earns statutory the decisions law of this per Father, babysitting. $324 month who wrongfully judge A state —was elevated. regularly pays per sup a $130 month child According cannot bend the law to his will. port obligation, earns an hour for an $6 ly, I conclude that the trial court per income of week. $150 Mother lives in a abused its discretion its determi apartment rented while father lives with nation. Id. paternal grandmother. argues also liquid have no fixed or assets. Further compel- erred in that there were no more, my theory pre under she is not the ling separate siblings reasons to half where Thus, vailing party. she should not recov siblings one of the was an unborn child. attorney’s McGee, er fees. McGee majority opinion determined that since guilty is the custody was to be continued with Mother party and comes into this Court with un hence, separation siblings, no Stach, clean hands. Stach v. there was no need for the trial court to support separation.

enter I dis- agree. my Given to reverse conclusion WUEST, I am authorized to state that Mother, trial court’s award I J., joins writing. appropriate would find it to remand this matter to the trial to consider

present bond half

brother and what called the we have “cru- consequence”

cial of a award that destroy Madsen, that bond.

N.W.2d at 553.

Case Details

Case Name: Henle v. Larson

Court Name: South Dakota Supreme Court

Date Published: Mar 6, 1991

Citation: 466 N.W.2d 846

Docket Number: 16830

Court Abbreviation: S.D.