*1 MITZEL, Plaintiff L. Charles Appellant,
v. CLOUD-WALBERG, BLACK
Patricia Appellee.
Defendant and
Supreme Court of South on Briefs 2, L.
Lоnald Gellhaus Williams and Gell- haus, Aberdeen, plaintiff and appellant. Aberdeen, Pagones, Peter for defendant appellee. HENDERSON, Justice. (Fathеr) appeals
Charles Mitzel
changing custody of Matthew Mitzel Patri
(Mother).
Cloud-Walberg
cia Black
Compel
ling
do
not exist to
basing
small
reverse
our dеcision
precedent
on the facts and
of this Court:
(S.D.
Adam v.
1989); Mayer Mayer,
FACTS Father and party Mother met at a in 1988. previously Father was married and divorced. (Larry) child One was the issue of that mar- riage. began and Mother ship did which not result in their marriage (D.O.B. did result but 11/3/89). Shortly birth, after Matthew’s *2 split up permanently. August held on 1992. Thе trial and Father Mother that Mother and chemically addicted to alcohol concluded both Father are Mother was capable parents. severely neglected Matthew. Based the trial court Matthew, decided that it was in Matthew’s and an unsafe best inter- upon the abuse environment, given physical custody. ests for Mother to be Department the of Social Ser- vices, Depart- following The trial court the by the Aberdeen Poliсe aided ment, support home sons in of its decision to Matthew from Mother’s removed custody separate ap- Matthew from Father placed him in Father’s care. With Charles, court, proval from the circuit Mother and Jr.: stipulated that Father should have Father Walberg and her husband can offer Mat- Thus, custody physical of Matthew. opportunities thew that Mitzel cannot. Ei- custody and cared for Matthew had Walberg ther or her husband will be avail- September from 1990 until the day by re-arranging able for home care order, custody separating the entered the works, their work schedules. When Mitzel subject appeal. siblings, which is the of this placed day Matthew is at outside care. Walberg graduates, When John he will in Father married another woman job оpportunities have on based his educ- marriage Although this failed October tion which are not to [sic] available non- later, approximately year one it did result in college graduates. Walberg John testified Charles, Father had the birth of Jr. fully prepared that he is to assume finan- Charles, custody up Jr. from his birth responsibility cial for Matthew’s needs. Specifically, through the trial of this action.1 Mitzel, permanently who is considered dis- play together the brоthers ball and Matthew own, through fault abled of his will Jr.; Charles, brings toys boys the attend to part-time body continue to live on car day facility; they play togeth thе same care work, security disability social and ADC. brother; helps little er and Matthew feed his any poten- offered to No evidence was as trips Storybook other shared activities are tial advancement. obvious, grandfather. It is Land with the Walbergs marriage have a stable boys that the two hаve a from the role with two excellent models Matthew compatible relationship and share the bonds They providing to observe. are also that Fa of a common childhood. We note Mitzel, spiritual training. Matthew’s while engages in activities ther wholesome father, being an excellent has been unable camping, traveling. fishing, such as long term with a sustain Moreover, testimony day pro from the care may part in woman. This due to his be cleаn, establishes that the children are vider reality in preference for women who are neat, Importantly, this inde and well-fed. Also, teenagers. gavе he no evidence as to testimony pendent and neutral established any attempts religious education. strong between Mat that there was Charlеs, facts, thew and Jr. Under these appears trial court’s ratio that the cannot hold there were reasons” changing custody largely one of nale for They living are i.e., economics, family (Walberg) the new unit loving boys’ relationship was home. The financially position in be a better would testimony “vеry very in love described as — However, there is care for Matthew’s needs. ly.” suggest needs no evidence to that Matthew’s being in Father’s custo Walberg March are not cared for his Mother married John on 26, 1992, proof dy. preponderance of the establish Mother filed a On for, happy, well eаred requesting motion in circuit court es that Matthew is sibling relationship physical custody being reared in a close granting her of Matthew. is Charles, By leap of evidentiary inference or hearing A full on the motion was with Jr. any changes Jr. subsequent dence of 1. Mother’s brief discusses properly this case and changes in the record of between Father and the mother of changes those matters in reach- Jr. after the we have not considered These occurred ing Evi- our decision. trial court made its decision this case. family original custody arrangement was based on competing of this logic, еconomics Kolb, Kolb v. consent. “compelling rea- amount to setting does not (S.D.1982). Ordinarily, custody decision Mayer. sons,” by Adam or required as on what is in the best interests for is based should not be con- her husband Mother and *3 temporal, mental and moral wel- the child’s simply because of an parents better sidеred half-siblings siblings and fare. money edu- more and more ability provide split unless should not be court noted that The trial cation. Mayer, justify action. sons” such fаct, point In of good parent. had been a 644; at 268. N.W.2d Mitzel explicitly pointed out that trial for cannot find “an articulate rationale” housekeeper ... has taken “is an excellent siblings. custody of See splitting the these a to make himself better parenting classes Madsen, Madsen v. N.W.2d places ... Matthew father [and] (S.D.1990). Factually, it not exist. does day care center.” an excellent Jr. with Reversed. specify not its trial court did The separаting JJ., AMUNDSON, “compelling reasons” concur. WUEST half-sibling Jr. There are from his C.J., SABERS, J., MILLER, dissent. concerning “com findings of fact specific no SABERS, (dissenting). Justice any are there conclu pelling Nor reasons.” However, in effect. its of law to that sions Compelling reasons exist I would affirm. they the trial court did de opinion, half-siblings if memоrandum even by court. “unique” for two reasons. well the trial case as were not scribe this already split from has been First Matthew alternative, I would remand In the half-brothers, Larry, by Mitzel’s one of his findings of fact and conclusions detailed wife.2 This with his first divorce decree regarding compelling law pro- jurisdiction hаlf-siblings. over that separating Court has Second, Matthew will become ceeding. MILLER, C.J., joins this dissent. half-sibling on his mother’s brother to February 1993. While the side late time, this Court
sibling at this is not born ruling in this case
is mindful that its at a later date.3
permanent modified unless trial court awarded to Father. visitation to Mother with liberal Ann Ann Beth Beth SJOLUND f/k/a Carlson, Appellee, reverse. the state of the Plaintiff and Under “compelling.” equate with “Unique” not does CARLSON, speculative Defendant Allan appears the Mitchel Appellant. a new half-
ly Matthеw bond assumed February, 1993. The sibling to be born in its this rationale present court used trial Supreme Court South decision, bonding of a future considering the pre-existing disregarding the on Briefs Oct. half-sibling Matthew and between which existed This error. lived with. half-sibling he not change in circumstances was as the inasmuch required sibling they Larry, havе established a half- also partially true. his older
2. This is ' home, ship. brother, although raised in Father's not with Matthew a warm has him, decision, him, made its builds blocks with 3. At the time the trial court plays with yet given birth to her second reflects the Mother had not him. Evidence stories to reads childhood, only child. have a common three