In the Matter of the GUARDIANSHIP OF Andrew Paul JANKE. Lillian Paige JANKE, Plaintiff and Appellee, v. James Allen JANKE, Defendant and Appellant.
Nos. 17870, 17921
Supreme Court of South Dakota
Decided May 12, 1993
207
Argued Nov. 17, 1992.
Richard L. Ericsson of Ericsson, Ericsson & Leibel, Madison, for defendant and appellant James A. Janke.
David R. Gienapp of Arneson, Issenhuth, Gienapp & Blair, Madison, for plaintiff and appellee Lillian (Janke) Miles.
AMUNDSON, Justice.
Andrew Paul Janke (Andrew) appeals from the circuit court‘s dismissal of his petition for letters of guardianship entered in Brown County, Fifth Judicial Circuit. James Allen Janke (Father) appeals from the circuit court‘s denial of a change in custody in Lake County, Fourth Judicial Circuit. The two appeals have been consolidated. We affirm.
Lillian P. Miles (Mother) and Father were married in August 1970. Andrew was born in Michigan on November 22, 1977. A second child, Laura Janke (Laura), was born in Madison, South Dakota, on February 8, 1981. The family resided in Madison, South Dakota, until 1984, when Father decided to pursue his Master‘s Degree in Business Administration in Madison, Wisconsin. Shortly after the family moved to Wisconsin, Mother returned to Madison, South Dakota, with Andrew and Laura and filed for divorce from Father.
A judgment and decree of divorce was signed by the court on July 11, 1986. The trial court awarded custody of both Andrew and Laura to Mother. Father appealed the trial court‘s decision, but this court dismissed the appeal without decision. Father brought numerous subsequent petitions to the circuit court regarding custody and visitation. In addition, Father unsuccessfully appealed child support determinations made following the revision of child support guidelines to this court. Janke v. Janke, 467 N.W.2d 494 (S.D.1991).
Following the parents’ divorce, Mother and Father both resided in Madison, South Dakota. As a result of Mother and Father living in close proximity, Andrew and Laura were allowed to have substantial contact with both parents on an almost daily basis.
During the summer of 1991, Mother secured employment advancement through employment with the Aberdeen School District. When Father learned that Mother, Andrew, and Laura would be moving to Aberdeen, he again petitioned the court for a change in custody. A full custody hearing was held in August 1991. Although the court found the move to be a substantial change in circumstances, the court held that it was in the continued best interests of the children to remain in Mother‘s custody.
In December, 1991, shortly after his fourteenth birthday and the move to Aberdeen, Andrew filed a petition for guardianship in Brown County naming Father as guardian.
Following the dismissal of Andrew‘s petition for guardianship, Father brought a new order to show cause and motion for change of custody and appointment of guardian in Lake County. Judge Tucker entered a memorandum decision, finding that it was not necessary or convenient to allow Andrew to appoint Father as his guardian. Likewise, Judge Tucker found that the best interests of the child controlled in appointing a guardian or awarding custody. From this decision, Father appeals.
ISSUES
- Whether an order of the divorce court establishing custody of fourteen-year-old minor is res judicata as to the minor‘s petition for letters of guardianship?
- Whether the standard of review for a fourteen-year-old minor‘s petition for guardianship is the “best interests of the child” or the “suitability” of the minor‘s choice?
- Whether the trial court abused its discretion by refusing to change custody from the mother to the father based on the request of a fourteen-year-old minor child of the parties to name the father as his guardian?
ANALYSIS
We address each issue in seriatim.
1. Res Judicata
Andrew and Father first allege that the trial court erred in ruling that the custody order of the divorce court is res judicata as to Andrew‘s petition for guardianship. “The doctrine of res judicata serves as claim preclusion to prevent relitigation of
This court applies four factors in determining whether res judicata is applicable: (1) Whether the issue decided in the former adjudication is identical to the present issue; (2) whether there was a final judgment on the merits; (3) whether the parties in the two actions are the same or in privity; and (4) whether there was a full and fair opportunity to litigate the issues in the prior adjudication. Raschke v. DeGraff, 81 S.D. 291, 295, 134 N.W.2d 294, 296 (1965). Cf. Staab v. Cameron, 351 N.W.2d 463, 465 (S.D.1984) (applying same factors to issue of collateral estoppel).
The nub issue of where Andrew lives is identical in the guardianship proceeding and the custody modification action.* This issue was already decided in the custody proceeding held in August 1991. “The test is a query into whether the wrong sought to be redressed is the same in both actions.” Black Hills Jewelry, 336 N.W.2d at 157. In both cases, Father and/or Andrew sought to change Andrew‘s custody from Mother to Father. In both cases, the custody/guardianship change coincided with Mother‘s move to Aberdeen. In both cases, Andrew expressed a desire to remain in Madison where Father resides. “Essentially, it is the underlying facts which give rise to the cause of action that must determine the propriety or necessity of presenting a specific issue within the prior proceedings.” Lewton, 460 N.W.2d at 731. The facts and the issues are identical in both the guardianship and custody cases.
The August 1991 custody proceeding was a final adjudication of the change of circumstances which gave rise to the proceeding being brought. Andrew alleges no subsequent change of circumstances in his petition for guardianship. A custody decree is conclusive to the parties involved as to all issues and facts unless there are proper grounds for modification.
While Andrew was not a party per se in the custody proceeding, his interests were in privity with those of his parents. “In deciding who are parties for the purpose of determining the conclusiveness of prior judgments, the courts look beyond the nominal parties, and treat all those whose interests are involved in the litigation and who conduct and control the action or defense as real parties, and hold them concluded by any judgment that may be rendered.” Black Hills Jewelry, 336 N.W.2d at 157 (quoting Schell v. Walker, 305 N.W.2d 920, 922 (S.D.1981)). Andrew‘s interests regarding with which parent he should reside were clearly involved and represented by his parents in the custody proceeding. In addition, Andrew himself was allowed to express his choice of residence in the custody case. Andrew‘s interests were involved in the custody proceeding. Thus, under the established precedent of our prior holdings, he will be treated as a party for the purposes of res judicata.
Judge Tucker considered Andrew‘s testimony at the custody proceeding concerning
We thus conclude that res judicata bars Andrew from bringing a guardianship action under the facts of this case, since these actions were precipitated by the move to Aberdeen. Father and Andrew cannot creatively circumvent the court‘s custody decree by pursuing an action for guardianship. The purpose of
2. Standard of Review
Andrew and Father allege that once a minor reaches the age of fourteen, the minor has the right to select his guardian notwithstanding a court decree which placed custody of the minor with a person other than his preference, subject only to the court‘s determination that the minor‘s choice is “suitable.” Andrew and Father base this contention on
Likewise,
The standard by which the court or judge is to determine both custody and guardianship disputes is clearly set out in
In awarding the custody of a minor or in appointing a general guardian, the court or judge is to be guided by the following considerations:
(1) By what appears to be for the best interests of the child in respect to its temporal and its mental and moral welfare; and if the child be of sufficient age to form an intelligent preference, the court or judge may consider that preference in determining the question;
(2) As between parents adversely claiming the custody or guardianship, neither parent shall be given preference over the other in determining custody. (Emphasis added.)
This court interpreted
3. Abuse of Discretion
“The trial court exercises broad discretion in awarding custody of children, and its decision will be reversed only upon a clear showing of an abuse of discretion.” Anderson v. Anderson, 472 N.W.2d 519, 520 (S.D.1991). In reviewing the trial court‘s custody decree, the trial court‘s findings of fact will not be set aside unless clearly erroneous and due regard will be given to the trial court‘s ability to judge the credibility of the witnesses. Id.
After review of the record, we cannot say that the trial court abused its discretion or that its findings of fact were clearly erroneous. Judge Tucker‘s findings of fact note that Father “is demanding, critical, and has constantly attempted to drive a wedge between the Plaintiff [Mother] and the children, which attempt has been both emotionally and financial.” This finding is clearly supported by the record which reveals that Father has made the children “economic hostages.” Father purchased a separate wardrobe for the children conditioned on their not wearing it at Mother‘s house. In addition, Father has purchased items such as computers and musical instruments which the children were only allowed to use while in his home. The trial court‘s finding that this type of behavior is unacceptable and not in the best interest of the children is supported by the record in this case.
The best interests of a child require compelling reasons be submitted to the court where separation of siblings is being requested. Schmidt v. Schmidt, 444 N.W.2d 367, 370 (S.D.1989); Adam v. Adam, 436 N.W.2d 266, 268 (S.D.1989); Mayer v. Mayer, 397 N.W.2d 638, 642 (S.D.1986). No evidence of a compelling reason for separating Andrew and Laura is contained in this record. Andrew‘s desire to remain with Father in Madison where he knew people and had more material goods is not a sufficient compelling reason to separate him from his sister. The trial court did not abuse its discretion in refusing to separate these children.
Mother has appropriately filed an affidavit requesting attorney fees, costs, taxes, and disbursements associated with this appeal in the amount of $1,893.22.
Both judgments appealed from are affirmed and Mother is awarded her attorney fees, taxes, costs, and disbursements of $1,893.22 from Father.
MILLER, C.J. and WUEST and SABERS, JJ., concur.
HENDERSON, J., concurs in result.
HENDERSON, Justice (concurring in result).
Reference is made to Moe v. Moe, 496 N.W.2d 593 (S.D.1993) with particular emphasis on the four factors set forth therein, citing Staab v. Cameron, 351 N.W.2d 463, 465 (S.D.1984) and Raschke v. DeGraff, 81 S.D. 291,
However, we have a different wrinkle to consider in this case which deserves our legal attention. Nowhere in the August 1991 custody proceeding did Judge Tucker consider
If the minor is under the age of fourteen years, the court may nominate and appoint his guardian. If he is fourteen years of age or over, he may, except as provided in § 30-27-24, nominate his own guardian who, if approved by the judge, must be appointed accordingly.
Appropriately, there was no reason for him to address the issue because it had not been raised. The following November, Andrew turned fourteen and asserted a right granted unto him through legislative grace. A new issue, not tried before any court, now existed. Therefore, the issue of a fourteen year old child exerting his
Furthermore, res judicata cannot be said to apply simply because a custody hearing between the same parties was already held. As the circuit courts retain the right to modify custody provisions, child support, and alimony provisions, we cannot say that these facts have rendered a final judgment.
Ironically, the majority replies, “The mere passage of time causing a minor to reach the age of fourteen is not a change in circumstances substantial enough to warrant a change in custody.” I remind this Court that a “mere passage of time” provides “circumstances substantial enough” to warrant many other changes: The right to vote, the right to drink intoxicants, and the right to stay out past curfew, to name a few. Furthermore, when the initial custody decision was handed down in September of 1991, Andrew was not old enough to drive. However, with the mere passage of two months, Andrew became eligible for a driving permit on his fourteenth birthday.
Nonetheless, Judge Tucker made the proper decision at the May 3, 1992 hearing wherein he stated:
At the time we had our last trial in August or September of 1991, the court considered the wishes of the child. The court made a specific finding that the child did wish to reside with his father. The court recognized at that time the child‘s age and gave great weight to the child‘s desires, but the court still determined that it was in the best interests of the child to reside with his mother for the reasons listed in the Findings of Fact and Conclusions of Law.
The fact that the child has reached age fourteen, that happened two months after the court‘s decision, does not change the court‘s ultimate decision as to the custody issue. Counsel presented this issue to the court based solely on the question once the child reaches age fourteen can‘t he select his guardian, and can‘t he select his custodial parent, and on that the court‘s answer is no. That it‘s still the court‘s decision in the best interests of the child, and the court relies upon the Findings of Fact and Conclusions of Law entered in the September decision and will deny the motion for change of custody in this proceeding.