*1 MASEK, MASEK, Appellant Respondent
(237 432) (File 1976) 11507. Opinion January No. filed *2 Woods, Fuller, Jr., Shultz & Smith and William G. Taylor, Falls, Sioux and appellant. Evans, Davenport, Hurwitz & Smith and Hoy, Carleton R. Falls,
Sioux for defendant and respondent.
3 JONES, Judge. Circuit of the trial from a decision appealed has
Plaintiff-mother now parties, the two sons of the denying court 8 and 6. ages action, was given of the sons
In the divorce original 24, 1973. That August dated judgment to defendant-father court, and a divided court affirmed. was to this appealed decision Masek, 62, 1975, N.W.2d 334. 228 Masek v. S.D. original appeal who heard the
The members of by them in that viewpoints expressed appeal. adhere to the *3 However, made the issue of which judicata that decision res cir custody entitled the children on the facts and parent was to the date of the trial court deci existing original cumstances on determined that these children are of sion. That decision also 30-27-19(2). years scope tender within the of'SDCL petitioned Prior the the opinion, plaintiff our Circuit County, alleging of Minnehaha a of circumstances Court and decree of divorce as it related praying for modification of the custody of the children. We ruled that this could be petition by ap- heard the trial the of an notwithstanding pendency by from that decision. That was heard the trial court peal petition 8, 1974, plaintiff on March and an adverse decision. Dur- appeals heard, the that this and a ing period appeal being perfected was 4, 1975, hearing April although third was held on the record issues of that third are not before the court on this hearing ap- peal. custody
The for modification of the decree plaintiffs request was on claim primarily parental shortcomings the that her based as established in the divorce since been action have corrected. The trial court found that had improved personal situation, immeasurably and conduct and mental health com- therefor, mended her but held: that,
“Therefore, it is the decision of the absent Court any part the Defendant showing of misconduct on the any
father and absent evidence or that the showing pre- sent and existing adversely award affects the interests and welfare any of the children and absent that the showing interests and welfare of the children would be improved custody, the Motion of Plaintiff is all denied.” things in child obligation courts disputes divorces is set out in 25-4-45: SDCL
“In an action for may, divorce the court before or after judgment, give custody, such direction for the care, and education of the children of the marriage as may seem necessary or proper, may any at time modify vacate or the same.”
The standards for making these decisions are set out 30-27-19: SDCL
“In awarding custody of a minor or in appoint- ing general guardian, the court judge or is to be guided by the following considerations: (1) By appears what to be for the best interests of the
child in to its respect temporal and its mental and welfare; moral and if the child be of a sufficient age *4 to form an intelligent preference, the court or judge may consider that preference determining the question;
(2) As between parents adversely claiming the
custody or guardianship, neither is entitled but, to it as right, of things other if being equal, child years, be of tender it should be given to the mother; if it be of an age to require education and business, preparation for labor or then to the father.”
The issue of whether a decree of divorce should be modified
as
it related to child
has been before this court many
1975,
Millea,
v.
are: Millea
recent cases
Some of the more
times.
(trial
affirmed);
112,
N.W.2d 95
court’s modification
229
89 S.D.
(trial
133, 203
Warder, 1973,
N.W.2d 531
court’s
87 S.D.
v.
Warder
reversed);
change of residence
based on mother’s
modification
(trial
757,
Anderson, 1972,
Notwithstanding prior which will be followed this court principles restatement of the between might litigation cases reduce future change parents. the rule in South Dakota that before a long
It has been 25-4-45 modify a decree of divorce under SDCL there court can Greenleaf, 1894, of circumstances. Greenleaf must be N.W.42. The is a degree change required 6 S.D. Huckfeldt v. and material of circumstances”. “substantial Dornbusch, Hershey v. supra; Dornbusch supra; Warder, Hershey, supra. Warder supra; *5 by to be considered trial courts There is a second factor deciding of change custody requests. That is the welfare and best Wellnitz, interests of the children. v. Wellnitz supra; Wright v. Stahl, Habeck, Ulver, supra; Application of supra; Ulver v. supra; Septka Septka, supra. or person seeking custody modification of the decree has the burden by both proving factors preponderance of the evidence. supra; Dornbusch, Warder, Dornbusch Warder v. supra; supra. To state the rule we have adopted change of cases, the parent seeking modification of custodial rights has the (1) burden of proving there has been a substantial material circumstances since the decree of divorce was (2) entered, and that the welfare and best interests of the children require the modification being sought. Either factor standing will justify alone not a change —both must be present. burden, courts, heavy This is a but the parties and especially the children protected must be from endless and vexatious litiga- tion and the resulting uncertainty flowing therefrom.
Starting with the proposition that the parties cannot relitigate the correctness of the original custody disposition, as must, we we find that the herein has failed to sustain the cases, was, burden of proof her. In falling upon borderline as this we recognize that the parent not having custody might be tempted to relitigate custody issue in the hope that a change in the composition of the Supreme Court might its opin ion. But this would not be fair either parties to the or the children and we will especially be vigilant to avoid rewarding persistence type this of case. action,
At the original trial of the divorce plaintiff of fered evidence that the shortcomings by established defendant’s witnesses had been largely prior corrected to the final divorce The trial hearing. majority court and a of this court found other wise. While the plaintiff’s evidence does show a change in her at conduct, titudes and it primarily establishes a continuation of the reformation urged at the divorce hearing, and falls short showing substantial and material change of circumstances.
7 a presented custody determination original The fact that the of the any way in the burden reduce does not close question a divorce custody provisions seeking modification decree. any inference this with opinion
We not want to end do The trial court parental strengths. is without the plaintiff that therein. join made and we her for the improvements commended by the would merit consideration changes We do feel that these to the fullest extent rights in her visitation enlarging trial court parties. circumstances of the under the possible is affirmed. the trial court The Order of DOYLE, JJ., WINANS concur. COLER, JJ.,
WOLLMAN and dissent. DUNN, Justice, JONES, dis- Judge, sitting Circuit Chief qualified.
WOLLMAN, (dissenting). Justice I would reverse.
If ever existed for awarding reasons children to defendant-father, Masek, 62, in Masek v. as this court held 89 S.D. 334, 228 N.W.2d then as I read the instant record those reasons exist.1 longer no cir- that a substantial or material requirement may modify a a be demonstrated before
cumstances judicially expediency is a created rule of rather order 82 statutory a S.D. requirement. than Perhaps 1. it is time to reexamine findings our rule that necessary of fact are not support proceedings modify to of divorce N.W.2d Weins, an order issued in to provisions the child decree, 15-6-52(a) — , Millea, , e.g., see SDCL Millea 229 S.D.— 95; Christensen, 653, 62; Christensen 85 S.D. 190 N.W.2d Weins v. 620, 228; Foster, 395, 70 S.D. 20 N.W.2d Foster v. 66 S.D. 284 N.W. made, impose requirement and where the trial findings be at least in those cases testimony support court takes of affidavits and exhibits.
344, 146 based Although upon N.W.2d 57.2 the rule is pragmatic, reasons, practical expressed majority opinion well herein case, and in the Huckfeldt it should be to aid applied trial courts statutory duty provide in- carrying out their for the best *7 child, 30-27-19(1), terests of and should the SDCL not be allowed a barrier the performance create mechanistic to fustrate that duty. 30-27-19(2) that, provides other things being
SDCL the equal, years of a tender be given child of should to the mother. may been Although things” “other not have at the equal time defendant-father, custody was I I awarded and that acknowledge Masek, majority am bound in v. opinion the Masek supra, the conditions in capacity that caused that imbalance the of the have, parties to for the best of the in provide interests children least, my opinion at so plaintiff ameliorated that now stands on at least an with equal plane respect defendant-father with to her capacity to children. I apply care for the would the “substantial or 30-27-19(2) material in rule the change” light by holding of SDCL that when a has mother demonstrated that she is as at least capable children as is the father she has caring satisfied rule, judicially By our created test. so the applying trial courts can honor both concerns in legislatively expressed set forth 30-27-19 also SDCL effectuate the which purposes the rule was To attain a adopted position parity achieve. vis-a-vis the substantial, other is a material in circumstances. A number of factors must be considered in determining course, things whether are between equal parties. the Of minor subjected children should be not to shuttlecock existence. Nor should the them pawns courts allow to be used as in a vindictive battle parties between the to a failed marriage. Certainly the trial court should consider the adverse possible effects a change children, might upon have the child or into ac- taking drastically count whether will upset the established liv- Wellnitz, 430, 25 2. disjunctive, We in have stated the rule Wellnitz v. 71 S.D. 458; 85, 177 267; Hershey Hershey, conjunctive, N.W.2d and in the v. 85 S.D. ways in supra. sometimes both the same case. v. may tautological words “substantial” “material” be the sense in which they are used in the rule. will to new and of some duration or entail relocation ing patterns surroundings. unfamiliar spends
In the case evidence reveals that plaintiff instant defend- deal of time with her children their home while good work; spends ant is at estimated that the hours she with plaintiff Indeed, said days them would total a week. it could be two-plus more time with the children than does plaintiff spends living There is to indicate that nothing defendant. the record city would do but continue to reside in the of Sioux Falls anything music college and continue her career as a mother and part-time interstate, Wellnitz, instructor. Thus the of an Wellnitz specter 430, 458, transcontinental, Warder, 71 S.D. 25 N.W.2d Warder 133, 531, intercontinental, 87 S.D. 203 N.W.2d Bolenbaugh or 639, 89 S.D. Bolenbaugh, 237 N.W.2d disruption is not a con- sideration here.
Because the record convinces me that desires purpose providing for the sole for the welfare of her caring children and that is as for as capable she at least them defendant, I denying would reverse the order the petition is custody and trial change of would direct to award plaintiff. of the children to COLER, J., I am state joins authorized to this dissent. STATE, BARR, Respondent v. Appellant
(237 888) (File 15, 1976) No. 11457. January filed Opinion