Kolb v. Kolb

person during search of the an investigato- unreasonable unless it falls within one of * * * ry stop. authority The limited the “jealously carefully drawn,”1 emphasized [Terry] search was Court “strictly exceptions circumscribed”2 justification when it said sole of the requirement. ‘[t]he warrant A heavy burden is ** * protection the police search is the prove the State exception. such Ar- nearby, officer and others and it must Sanders, 753, kansas v. U.S. S.Ct. scope therefore be confined in to an intru- 2586, (1979). 61 L.Ed.2d 235 The State has reasonably designed guns, sion to discover offered no support evidence to its warrant- clubs, knives, or other hidden instruments less search of the automobile. The orders ” officer.’ police for assault of Peo- to suppress were therefore properly granted 461, ple Long, v. 413 Mich. and should be affirmed. (1982). Michigan The court stated that entry officer’s into the vehicle cannot I am hereby authorized to state that Jus- justified set principles under forth in tice joins DUNN in this dissent. Terry pat- a limited authorized person suspected down search of a of crimi- activity,

nal not the search of an area.

This, course, is in line with what the Supreme

United States court said Ybarra 93-94, Illinois,

v. 444 U.S. 100 S.Ct. (1979): 62 L.Ed.2d 238 Terry exception case created an cause, the requirement of probable KOLB, Appellant, Karie L. Plaintiff and exception scope’ whose ‘narrow ‘has been careful to maintain.’ Myron KOLB, A. Defendant Terry can be Nothing understood Appellee. generalized allow a ‘cursory search or, indeed, weapons’ any search whatever No. 13557. for anything weapons. but The ‘narrow Supreme Court of South Dakota. scope’ Terry exception does not permit a for weapons frisk on less than April Considered Briefs 1982. suspicion reasonable belief or directed at Sept. Decided 1982. person (footnote to be frisked [.] omitted, added) emphasis opinion

The conference also cites State

Strickland in support approval

warrantless search of the ear. But Strick- justified

land the warrantless search of the exceptions

vehicle on recognized the war- arrest,

rant requirement: search incident to plain doctrine, view and the automobile

exception. exceptions, None of those recognized exception, other

in this case.

Under Fourth Amendment of the VI,

United States Constitution and Art. 11 of the South Dakota Constitution a

§ per

warrantless search and seizure is se States, 493, 499, Terry, 1882; 1. Jones v. United 357 U.S. U.S. at Min S.Ct. 1253, 1257, cey Arizona, S.Ct. 2 L.Ed.2d 1514 437 U.S. 98 S.Ct. 2413-14, 57 L.Ed.2d 290

FOSHEIM, Chief Justice. (appellant) Myron Karie L. Kolb A. (appellee) Kolb were divorced in December September girls 1979. In twin were marriage. their The divorce decree born of twins, appellant custody of the awarded rights by appellee pur- visitation subject to agree- separation property suant to a appeal ment. This is from order decree, switching modified the divorce cus- tody appellee. We affirm. to At the time of the divorce both Aberdeen, employed were and resided 1980, appel- Dakota. In October of South boyfriend, lant to with her moved Texas in Aberdeen with her leaving children following appellant mother. The month where she Mississippi, took the children to weeks, living. was then After about seven appellant moved the twins to her father’s they home in Florida where remained with- January out her until 1981. She then Mississippi returned the children to where 1, 1981, they they resided until March when orig- all came Appellant back Aberdeen. inally marry testified planned she her boyfriend and have the children live with them, although frequent his work involved out-of-state moves. later testified She plans her she changed had and that did not marry, intend to or to move out of Brown County. changed, appellee

When was employed position in the same he held at Appellee time of divorce. testified marry girlfriend that he intends to his living. Appellant’s whom he is frequent moving appellee’s the children rendered vis- privileges itation difficult exercise and have precipitated seems to the motion to modify the Appellee’s girl- divorce decree. appellee friend testified that after she and are married she wishes to assist in the care Tonner, Thomas Maynes, M. Tobin of of the twins. Tobin, Aberdeen, Maynes plaintiff & appellant. Appellant claims evidence does not establish a substantial of circum- Kolker, Maloney, Julie M. Johnson of required modify judg- stances the divorce Fritz, Johnson, Aberdeen, Hogan for de- & ment. appellee. fendant and allows a court stipulation 25-4-451 order based on SDCL custody provisions vacate or modify parties. Hershey, supra; Moser v. Mos er, judgment. predates That statute state S.D. 72; Stahl, Wright v. hood. Civil Code CL § parent seeking modification § 25-4-45, rights, pursuant custodial Masek, dissent supra, his by preponder has the burden a proving of N.W.2d at Justice Wollman wrote: (1) ance of the that there been evidence has Although upon the rule pragmat- is based change substantial material of cir a and ic, reasons, practical expressed well in the cumstances since the divorce decree was majority opinion herein in the and Huck- welfare best (2) entered and the and the case, it applied feldt should be to aid trial require of the modifi interests the children in carrying courts their statutory out Either itself being sought. cation factor provide duty to for the interests of best justify is not cus change sufficient of child, 30-27-19(1), the and should tody present. Sneesby v. must be —both not be allowed to a mechanistic create Davis, (S.D. 1981); Engels 565 308 N.W.2d barrier to frustrate the of performance (S.D. Engels, 1980); 489 Ma 297 N.W.2d duty. that Masek, sek v. 432 237 N.W.2d S.D. Notwithstanding proclama- our continued Huckfeldt,

(1976); Huckfeldt v. 82 S.D. adherence, tions of we have occasion 146 N.W.2d 57 “The of rule that the rule than indicated is less absolute. ‘changed statutory, circumstances’ is not supra, In at Wright, we but a creature Its judicial expediency. said, judgment or entered in a decree “[a] court, purpose protect parties, is to the the judicata suit for divorce is res as to the and the continuing children from vexatious put questions necessarily issue or and litigation questions custody.” Huck actually properly involved and tried and feldt, supra at 59. (emphasis added.) determined the suit.” Implicit tempered expression in that is that custody Our modification decisions issue, questions of fact put not necessari- generally distinguish do not between involved, ly properly actually and tried or findings of judgment based on evidence and determined, judicata. and not res and a parental fitness and interests judgment agree which on a custody rests Wallace, 26 S.D. Wallace findings existing ment or ma absent (1910) (cited approval N.W. with terial It the custody evidence. seems to be Wright, supra), acknowledged that we consensus of that these decisions the custody judicata decree is not res when it is relitigate orig cannot the correctness of the shown “some facts are dis- material inal custody disposition because an award of closed were at the time the which unknown custody, basis, regardless judica- of its rendered, res decree or not have been was could as existing ta to conditions when made. ascertained with the reasonable dili- use of Masek, supra; Hershey v. Hershey, 85 S.D. gence, and then to the extent and in Huckfeldt, 177 N.W.2d 267 su respect changes." the warranted such Wellnitz, pra; added). application Wellnitz v. 25 (emphasis specific agree N.W.2d 458 Conversely an in Anderson v. An- exception found relating derson, ment between parents (1970), divorced 85 S.D. custody pre separation property custody the of their children does not where a and modifying referring clude the court from the decree was to four executed require, Findings as circumstances and we ad and have children. of fact conclusions granted hered to the substantial of circum of law were waived. A decree principle though original stances divorce for the fault of the moth- even husband a marriage may In an tion of the children of as 1. SDCL25-4-45 reads: action for divorce may, give necessary may judgment, proper, the court or after seem time before custody, care, modify such direction for the educa- the same. vacate or When, however, in the as property settlement approved er and were pertinent custody to the issue facts gave which custody agreement to the at the time not disclosed court children. mother of the four minor rendered, original custody decree However, given birth to a the mother had not prior held that a decree is courts have child, the de- the child of not judicata as to those facts not before res fendant, before one month approximately Stewart, Thus, court. Stewart agreement was separation property (1963), 86 Idaho 383 P.2d con- She signed and the divorce heard. affecting facts that where stated complaint in her pregnancy cealed the child's existed at the time of welfare interrogatories. It later in her answer but not entry decree were knew the defendant was not clear whether court, especially in de disclosed Anderson, we said: pregnancy. cases, may fault these facts be considered plaintiff At the divorce custody in a determination. subsequent custody signed a having Boone, Accord, v. 153 Boone 150 F.2d referred to the which Hester, (1945); v. 272 Ala. 133 Perez parties, of these there exists four children Henkell, (1961); v. 224 199 Henkell So.2d cir- special in of the birth another child Weath Ark. 273 402 S.W.2d permit the cumstances which should (Okl. P.2d Weatherall, 450 erall v. go previous Court to determi- behind Annot., 1969). generally, A.L.R.2d See custody nation in these matters. Mil- Miller, ler Wis.2d instance, Suppose, appear it for should Court, dis- the without Wisconsin that, the judge, to the first unknown adjudicata [sic], carding the rule of res a child confined to regularly had been condi- recognized special that there exist periods of time or other- long closet for go permit tions which should Court facts made wise abused but those are in previous behind its determination these judge. Surely known the second it custody matters. is judge could not be said that the second Id. The was re- 179 N.W.2d at 2-3. case powerless merely to act because the cir- versed and remanded. When it came back the cumstances the same that in 86 appeal, greater abuse the environment no is (1972), we that “the acted held Moreover, worse than before. evidence and that there proper within its discretion of the abusive environment that existed competent support evidence to sufficient (but prior hearing the first unknown custody.” his in changing action the that judge hearing) who conducted Newsome, App. properly by judge Newsome 42 N.C. could be the considered (1979) (emphasis conducting hearing deciding the 256 S.E.2d 854-55 second disposition what of the case would be original), Supreme the North Carolina of child. best interest Court stated: re- The stated reason behind the often While above authorities involve noted quirement that there must be a they relate facts unlike those us all before decree circumstances before concept whether doctrine prevent relitigation can be modified is to judicata original when res is invoked ante- of conduct and circumstances that all custody disposition was made without assumes, It prior custody date the order. We believe that a factual ab- facts. therefore, liti- decree, that such conduct has been occurs alike when the divorce sence gated court has entered a that a on a solely separation as in this rests that judgment based on conduct. based some agreement or when it party facts, prevents rule the dissatisfied from facts but devoid other material to anoth- presenting existing concerning those circumstances the best interests then circumstance, er hopes court in the con- either different children. Under concerning will be ... has not clusions drawn. evidence child litigated been and to that extent should not the court as a basis for the original divorce adjudicated deemed in a subsequent decree, are judicata not res as to the best modification hearing. children, interests of the as indicated in Wright, supra, may be considered anew stress, It is well recognized that ani- in a subsequent custody modification hear- mosities, and exigencies economic ing free from the substantial change of frequently proceedings surround divorce circumstances constraints. The modifica- may provide not setting suitable tion hearing then becomes the first mean- custody agreement solely based on the ingful opportunity for the trial court best interests of the children. Paramount fully hear and decide all unlitigated matters may be an urgent desire by one or both of custody. The record before us reveals no or, to end the marriage as in Harms evidence offered the time of the divorce Harms, 323 Ill.App. 55 N.E.2d 301 concerning custody. adopted The court (1944), parents may use custody as a separation agreement which was dictated means of bargaining over whether ap- into the record counsel. Thus facts per- plication for divorce will be contested. A tinent to child custody were put not custody disposition resting on such synthet- issue, involved, tried or determined ic moorings permitted should not be to frus- court as a original basis for the divorce subsequent trate a best interest review af- decree. The hearing, modification on the ter the dust from the marital dissolution hand, other was an in-depth inquiry focus- has at least somewhat settled. As is noted ing directly on the best interests of the Annot., (1950): 9 A.L.R.2d children. original When the decree is based Opposing social interests must be bal- on an of the parties, the modifi- in determining anced to what extent an hearing cation should be free from the sub- may award of custody regarded as stantial change of circumstances constraints being subject reopening to for considera- as this is the first meaningful opportunity tion of in matters existence but not con- for a trial court fully to hear and decide all proceedings, sidered in the original the unlitigated custody. matters of Conse- state being in safeguard- interested alike quently appellee required prove was not to ing the child, welfare of the innocent change of affecting circumstances the wel- victim of parents’ mishaps, marital fare of the children. The trial court must and in insuring that litigation be conduct- be free in this of type case to consider and ed in an orderly manner to a definite any custody balance adverse effect a modi- conclusion. children, may now have the fication Under ordinary principles judica- of res original the regardless dispo- of basis ta, judgment decree, a fraud, absent leads us to the discretion sition. This test. conclusive between the parties, only not 25-4-45 has been held to therein, as to matters decided but those in leave discretion the trial court to broad which might have been properly decided. parent which in a determine divorce action A bald application of these principles given of their children shall be seem, would in fraud, the absence of will be that decision reversed for a preclude relitigation a by either of the Sneesby, of discretion. supra; clear abuse parents, parties to the divorce action in Huckfeldt, supra; supra. We can Engels, which custody awarded, was of matters the modification not conclude order here which presented could have been a clear abuse of discretion. was court, and subsequent so to bar considera- tion of matters in existence at the time of of the trial court The order is affirmed. original proceeding though even not WOLLMAN, MORGAN, JJ., DUNN and considered therein. concur.

We perti now conclude that facts nent to child custody, put HENDERSON, J., which were not in part concurs in involved, issue or tried and determined in part. dissents

HENDERSON, (concurring living. that Justice Evidence was introduced dissenting in part, part). neglect report child made to had been Department Dakota of South Social Serv- aspect majority I concur with that pick up ices for failure of the mother appeal. which addresses the case on decision babysitter. Thereupon, twins from a said of therein con- I to all the dicta dissent Department took Luke’s the twins St. state new law in this which creating tained was run- Hospital Aberdeen as one child open shall, language, sweeping with its ning developed a fever and an ear infection. the merits of relitigation on door wide physical The trial court indicated existing prior custody as to facts child facilities of the in Aberdeen and the father divorce. entry of a decree of presence grandmothers two of Aberdeen provided a more for the suitable situation THE CASE than to have in a living twins them small note, the decision As reader will camps. trailer construction material changing the deci- addressed to principally change and substantive of circumstances party to law of this state. Each sional was found. for the twins’ Equating options issues. briefed three identical This appeal interests, the opted best trial court for cus- Court, new law sponte, sua creates tody my specially in the father. concur- and which argued not briefed nor has issue ring opinion Spaulding Spaulding, law impact on the settled profound (S.D. 1979), I expressed this state. “[fjather that the must be com- and mother relate appeal Essentially, issues pared provide as to who the better could Findings Fact and Conclusions educational, moral, physical, emotional, trial court and as to Law entered my It is temporal, mental benefits.” by the evi- they are supported whether compelled opinion that trial court was dence; lastly, whether there comparison reposed when it custo- to use circum- material and substantial father dy contending in the of the two stances, well as interests as the best Law II parents, for Conclusion of declares: considered, required modi- children Defendant “That both Plaintiff and Any decision fication of divorce decree. persons for the proper fit and is, pure by beyond this Court these issues marriage.” minor of this the two children simple, powerful and dicta. But the dicta can, this law and engulfs and the case on We use settled holding of to de- in this state oft-approved principles issues. Instead, dicta, we by reverse cide this case. Under forth two-fold test set well-es- certainly modify law and previous Sneesby Engels, v. Davis v. Engels and tablished cases. this case be Lest washed right- cited in the majority, the trial court dicta, I wish ashore in a tidal wave of fully placed the daughters twin my legal why I express reasons as would father. Thirteen findings of fact and six affirm the trial court. conclusions of law were entered after both parties presented affidavits, all, testimony, two-prong and First of I stand behind argument. oral Engels. the rec- reading Sneesby fair forth in test set ord and formal trial very decision of the court from pronouncements These are recent reflects that the hinged trial court its I in them in 1980 and deci- believed this Court. sion on the Secondly, irresponsibility now. mother 1981 and I believe in them and her failure to father, sought maintain a stable home it that the who appears for the twins. modification, proving The father’s met environment the burden of and employment stable; record were more requirements Sneesby two set forth the mother was employed when the this Engels. preponder divorce And he did decree was entered but unemployed Warder, when ance of the evidence. Warder v. these proceedings occurred and was being 87 203 531 Huck S.D. N.W.2d supported by a Huckfeldt, male friend with whom she v. 146 feldt 82 S.D. N.W.2d Third, showing a trial court has broad to circumstances of the af discretion in of minor awarding custody upon ter the decree was entered. Based children and this will not interfere Court evidence, this the trial court entered find with that clear case of discretion absent a ings of fact conclusions of law deter abuse. Holforty Holforty, v. mining there was a substantial and material (S.D. 1978). exercising this discre change of circumstances after the divorce tion, the supported by trial court must be decree was entered. This Court’s review is sound and substantial basis in the record. findings limited to the trial court’s of fact Haskell, (S.D. Haskell v. 279 N.W.2d 903 and conclusions law. O’Connor v. O’Con 1979). As demonstrated cir nor, (S.D. 1981); Connelly mother, cumstances of the father and it Sherwood, (S.D. 1978). 268 N.W.2d 140 appears that the trial court did have a It findings is the of fact which are to be sound and substantial basis for its decision Wall, appeal. considered on Wall v. in the record. We have honored this discre (S.D. 1977). repeat: N.W.2d 644 I the three principle tion upon based the trial court’s fact, briefed pertain findings issues opportunity to observe the demeanor of the law, conclusions of and evidence. Conse parties and judge witnesses and their credi quently, indulge this Court should not Yet, bility. this Court has not hesitated in holdings posed which do not address issues appellate conscientiously review duty to the trial court level or in the briefs. indeed, if, the record to determine a trial Addressing sweeping the merits of a deci- judge supportable was not in his conclusions (all dicta), sional law I see no reason upon based the submitted evidence. Hines expressing departure past from our Hines, 464, 104 N.W.2d 375 decisions when one the history reviews I expressed my As dissent in Herrboldt v. facts, issues, this case. If briefs Herrboldt, (S.D. 1981), 303 N.W.2d 571 presented fairly fully raise the appellate superficial “Were review treated dicta, could, issue created in the this Court ly simply or the decisions of trial courts meritoriously judicial analysis, and with ad- great divergencies prac rubber-stamped, judicate thereupon. absolutely There are tice and variations in results would arise “special quot- conditions” in case as impression, between these courts of first ed in in the majority. Anderson Not once effectively nullify concept which would ” does the trial court or the briefs touch of ‘equal justice for all.’ Id. at 573. This findings pertaining evidence or or issues an opinion August filed as recent as Anderson, findings “special conditions.” In 18, 1982, reversing a child award in law were waived. of fact and conclusions of Haak Haak, (S.D.1982), N.W.2d 128 bar, came on for trial the case at case based upon an abuse of discretion. Given the 19, 1979, parties being on November both precedent of this Court and state of personally counsel and represented record, join I majority opinion for court, evi- open present. Thereupon, there was no clear abuse of discretion. settle- property and a dence was adduced THE DICTA the record. was dictated in ment proceedings judge, upon based The trial If the majority opinion’s theoretical findings fact stipulation, entered and (all sound, stance by way dicta) this on December and conclusions of law case is proper not the vehicle to embark extensive, drafted, well They were upon judicial a new journey. The facts in out, thought and dealt thorough, well this case which involve modification of with of the chil- 11, great divorce detail decree entered on December dren, thereof, support, the visitation do not in any way pertain to facts prior Rather, parties. great to the and fitness of the What dan- decree. the evidence then, submitted to pertained ger, guard- the trial court all in this Kolb are we facts subsequent to the ing against? destroy decree. Counsel for Would we the art of parties both evidentiary restricted their advocacy holding? with a new Are not in circum- upon entitled to make deci- relied as a material parties to a lawsuit Brim v. lawyers shall their modification. sions as to whom stances to obtain See Struthers, in them? Do not trial 271 P.2d 441 repose confidence 44 Wash.2d education, experience, duty judges (1954). litigants have wis- owe a Counsel and parties upon? apple dom to draw Are not enti- is come forward. One bite of the (and particularly tled to some discretion enough. Litigants permitted should not be here, thoughtfully done) where it was as to sleep on the facts. Courts have their custody? whom shall have Gentlemen of open litigate doors divorce and custo- Bench, tried, this Kolb case was dy the Bar and reliti- They permit matters. should not Thus, determined, litigated. gation the lan- litigants. Litigation at the whim of Wright, majority opin- cited in the guage must have some if were repose. But fraud ion, Hence, inapposite. superimpose perpetrated is on the trial court or duress state, rule in this like a bolt out of the used parties new one of the in a child Furthermore, blue, the New- improper. custody agreement, I going would sanction majority inapplica- some case cited in the behind the ap- decree of divorce. I also Here, prove ble there is no evidence that here. rule that the decree would preclude to the issue were pertinent prior “facts consideration of misconduct. Swindle, majority’s I with the agree not disclosed.” See Swindle 242 Ark. (1967); Merrill, statement “While the above noted authori- S.W.2d Merrill v. before us Cal.App.2d (1959); ties involve facts unlike those 334 P.2d 583 Carney * * majority Franklin, point It is at this 207 Ga. S.E.2d leap analysis. Baker, opinion begins flawed Baker v. 119 Utah before the point is: that the facts were P.2d 192 trial court when this decree was entered. I do not wish to see the trial courts in this is, therefore, mooring.” “synthetic There state inundated with contested child custo us, academics, disregard dy

Let for sake of modification hearings springing from this opinion. Kolb case and continue our stroll An agreement through shallow, always synthetic, the world of dicta and follow it is not meaning we, less, fraudulent, duress, through impact. to its decisional Do under made or “un- rule, not, improve litigated.” this new our lot these More than often these child not, custody agreements prepared child modification cases? I think within the the language majority opinion superb system in the is too confines of a adversarial broad, encompassing. Certainly, carefully judge. too all I scrutinized able trial would not relitigation closing, adopting favor a on the merits I am we are fearful stress, of child custody based upon litigation animosi- rule which will foster in an al ties, and economic exigencies. (Ordinarily, judicial ready system overburdened and a these produce conditions a divorce in the rule which has a than the rule lesser value instance.) first regards As Hershey Hershey,* conditions announced in cited in which were or could have and should have majority opinion, Application been brought Heintz, attention of trial 99 N.W.2d 794 previous court at the custody hearing brush, majority With too wide a does the trial, I would not allow urged these to be or paint. great Robert Ruark once wrote * Hershey, 85 S.D. at 177 N.W.2d at citing previous Supreme recognized jurisdic- five South Dakota “that in some We further cases, expressly we stated: an tions a court’s determination based judicata as to is not res long jurisdiction It has been the rule in this changed apply” the rule of does not conditions judicata applies that the doctrine of res authority. and renounced that line of Id. Ac- part giving of a divorce decree direction cord, Anderson, Anderson v. 118 N.E.2d 214 for the and care of the children of (Ohio App. 1954). marriage jurisdiction and that the inquire court cannot be invoked to same or other facts into the existing at the time or prior to the former decree. novel “Something called of Value.” His proverb

theme came from a Basuto away

African “If a man Tribe: does way

his throws living traditional customs,

away his he first good had better something

make certain has of value to he

replace prece- When we them.” cast aside

dent, good this pretty yardstick. is a Smith, Gen., Pierre,

Mark Asst. Atty. plaintiff appellee; V. Mark Meierhen- Gen., Pierre, ry, Atty. on brief. Legal

Jeff Larson of Dakota Plains Serv- ices, Sisseton, for appellant. defendant and Dakota, STATE of South Plaintiff Appellee, PER CURIAM. Cloud, Appellant, Dwight was convicted Dwight CLOUD, Defendant degree of third burglary and sentenced to Appellant. years penitentia- three in the South Dakota ry. We affirm. No. 13568. 18, 1980, appellant On December

Supreme Court of South Dakota. removing seen an the box of a item from pickup parked by that owner Jim had Pitzel Submitted on Briefs Feb. 1982. pub. pickup regular Sisseton The box had Sept. 15, Decided sidewalls, sideboards; but tailgate Pitzel, upright position. in an who missing several from discovered items box, anyone pickup given permis- had not sion any pickup to remove item from missing box. The items were later found in operated an by appellant. automobile For purposes appeal, have stipulated that appellant did remove items pickup from the uncovered truck box of the permission. without Pitzel’s single appeal issue on whether open, appellant’s reaching into the uncov pickup truck constitutes ered box 22-32-8 entry a “structure” under SDCL .* provides: 22-32-8 person who enters or remains in

Any unoccupied structure, with intent therein, guilty crime commit degree degree burglary. third Third bur- glary felony. is Class * Appellant dispute does not the definition of N.W.2d 725 entry. Peck, See State v. 82 S.D.

Case Details

Case Name: Kolb v. Kolb

Court Name: South Dakota Supreme Court

Date Published: Sep 15, 1982

Citation: 324 N.W.2d 279

Docket Number: 13557

Court Abbreviation: S.D.