*1 SD 1 PIETRZAK, Plaintiff Joleen Louise Appellant,
v. SCHROEDER, Defendant
Michael W. Appellee. 24729.
No. Dakota.
Supreme of South Court Sept. Briefs 2008.
Considered 7, 2009. Jan.
Decided Feb. 2009.
Reheariing Denied *3 Rosenbaum, City,
Elizabeth A. Sioux Iowa, Attorney plaintiff appellant. for Wantoch, Mitchell, Dava A. Dako- South ta, Attorney appellee. for defendant and GILBERTSON, Chief Justice. Mike Schroeder filed a Petition Change Custody five-year-old of his son, Custody origi- Thomas. nally stipulated parties. had been alleged conduct child’s Pietrzak, mother, required Joleen for Thomas. The were or- order to custody serve Thom- dered to respective their income welfare. The trial as’s best interest and information to a child referee for court concluded appropriate determination of the amount required. reverse. We of child to be made retroactive to February 2002. The order also re-
FACTS quired the parties to select a mediator for matter, child in The minor this remaining all issues. (Jo- Thomas, Joleen Pietrzak was born to Despite the court order granting *4 leen) (Mike), and Mike on Schroeder Octo- Mike midweek on Wednesday visitation 22, 2001, breakup ber after the of the home, Joleen’s a after short time Mike Mike, parties’ relationship. brief a ranch- claiming declined the visitation the age thirty-four and at the time er/farmer presence of mother Joleen’s made it too trial, on his farming opera- was focused 26, 2002, uncomfortable. On June Mike tion and lifestyle. and a more rural relaxed filed a scheduling visitation, motion for goals Joleen’s focus on educational was date, and an requiring order home raising and what she Thomas with consid- parties. studies for both Mike’s motion ered to be manners in a proper more was based on claims that parties setting. forty years formal was Joleen old had been unable to mediate the matter as at the time of the trial. ordered, and not abiding by Joleen was Animosity developed between Jo- South Dakota Child Visitation Guidelines.1 leen and Mike after the birth of Thomas Mike also complained Joleen refused concerning the manner which Thomas to communicate important with 2001, shortly would be raised. In October issues regarding the welfare of the child. Thomas, after the birth of Joleen moved Mike requested study, also home and Plankinton, Dakota, from South to Mitch- parties that both to psychological submit ell, South Dakota. Joleen’s mother moved testing concerning their fitness for custody in with Joleen and Thomas. Two months and visitation. later, petition seeking filed a full 25, 2002, On October after a legal custody subject of the to rea- matter, hearing on court order was Mike, sonable visitation sup- with provided issued that Mike with additional port. February On a temporary visitation him required to for .visitation, order custody, for and support transportation the cost of between was by entered the trial court in which the Plankinton All and Mitchell. other mat- parties’ agreement stipulation and was in- ters were ordered to be determined at full corporated into the court’s order. The trial, or upon separate motion to the court. stipulation joint provided legal custody for parties The were ordered to submit to the child, of the minor Joleen having pri- with study by home to be conducted Renee mary subject custodial care to Mike’s visi- Turbak. tation. to pay Mike was ordered $150.00 in temporary support beginning study Feb- [¶ 6.] Turbak’s home included 1, 2002, ruary premiums of the psychological parties by and half for assessment LPC, a health J. policy by Mydland, insurance maintained Gabriel EdD which February required by specifics 1. Per the trial court's order of er was to abide required Joleen was not to abide the trial as described court's order above. Guidelines, South Dakota Visitation but rath- per his kota Child Visitation Guidelines wanted what parents he noted requests. repeated Thomas, it found difficult but for was best achieve the one another to work with 29, 2004, an order On March were personalities objective. parties’ The parties reflecting entered suggest did not and the results assessed stipulated agreement. reached another supervi- when any risk Thomas primary remained Thomas was rec- Mediation parent. of either sion permitted to care and she was physical parties for the as a means ommended the mi- area with move to Vermillion together, and “work differences resolve Mike obtained exchange, In nor child. advocates, find professional without or- were additional visitation. home Turbak’s solutions.” workable manage the utilize Turbak to case dered to schedule study a visitation provided schedule, negotiate more visitation four, an in- age through Thomas Thomas time when extensive visitation Holidays, age five. in visitation at crease grade engaged pre-school was not vacation, transportation were summer adapt- activities based on Thomas’s school *5 study Finally, the home During also addressed. visitation. ability to such extended notifi- ninety-day advance a attempting recommended parties time the were the parent planned issues, if either period reported cation some be- mediate Joleen seventy-five miles from Thomas, ag- more than moving including havioral issues with clinginess residence. biting, hitting, their current gressiveness, Mike. returning from visitation with after 18, 2003, Joleen September On [¶ 7.] with provide Turbak declined to assistance from an order requesting a motion filed to her lack of Thomas’s behaviors due recom- Turbak’s implementing the court Instead, training psychology. in child Mike resisted visitation schedule. mended to several parties Turbak referred the motion, sched- claiming that Turbak’s parties The eventual- psychologists. child enough visita- him with ule did not Gilder, PhD, who ly Taryn selected Van that he wished complained Mike also tion. adjustment disor- diagnosed Thomas with the minor amount of time to reduce the der. of company in the spent child 26, 2004, filed August Joleen 11.] On mother, a influ- thought he she was bad as support for modification of child petition a his son. ence over Joleen and of an amount above for determination 6, 2003, Joleen On November [¶ 8.] 12, 2002, February tem- set $150.00 her to move with permit a motion to filed referee porary support order. Child mile limi- seventy-five Thomas outside Taylor appointed. Mike James D. custody agreement. stipulated tation in the 12, February with the comply failed to at the to enroll fulltime planned 2002, requiring him to submit court order Vermillion, in University Dakota of South of financial records for determination his Dakota, degree, a obtain bachelor’s South and refused to support obligations, degree eventually post-graduate a subpoena for those records. comply with becoming professor. goal of comply; Mike to Taylor Referee ordered until the date of comply Mike failed to to the mo- filed a resistance Mike Taylor. hearing before Referee primary for a of tion and motion 13, 2004, Referee December On custody. In it he claimed Joleen physical pointed in he report filed his which beyond Taylor increase his visitation refused to in financial doc- Mike’s Da- out inconsistencies under the South provided the amount uments that made it difficult to ascertain would not be detrimental to Thomas to amounts, income but noted a day exact sub- miss one of preschool every other stantial amount of assets debt con- week. farming operation. nection with his motion, [¶ 15.] Joleen answered the obligation Mike’s child was set at reluctantly agreed Thomas missing per less a month credit of $75.00 $438.00 day preschool. motion, In her Jo- toward travel expenses Mike’s visitation leen asked the to order court Mike to pay from Plankinton to Yankton. Mike was the new amount of $363.00 required pay percentage also and the per month arrearages as $75.00 expenses. Thomas’s medical unreimbursed 2004, ordered the court December support arrearage
A child the amount of attorney fees awarded un- $500.00 $8,047.00 against was ordered Mike. Mike 9, 2005, der the August court’s order. pay sup- was ordered to $363.00 1, January 2002, port beginning and at 7, 2005, On September the trial per least an additional month to- $75.00 court ruled denying from the bench Mike’s arrearage monthly for a ward obli- August 2005, motion for reconsidera- gation were or- $438.00. tion of the child support. On October respective attorney dered to their fees appealed to this Court the Au- and costs. gust 2005, order the trial court and its objections denial of the referee’s 20, 2004, [¶ 13.] On December Mike ob- report. Taylor’s jected report; to the Referee Jo- *6 pay leen resisted. Mike refused to the [¶ 17.] Mike then filed a Petition for support increased child amount in violation Support Modification of Child on Novem- order, only paying of court the $150.00 2, 19, May 2006, ber 2005. On sup- child month of his per and some share of the port referee David O. Carter dismissed health premiums insurance under the tem- Mike’s failure Petition for to contact the 12, porary February order dated 2002. 1, 2006, referee. On June the trial court 9, August 2005, On after consideration on entered an accepting order Referee Car- briefs, the trial court entered an order recommendation, ter’s report and and dis- approving report. the referee’s The trial missed Mike’s Petition. pay court also ordered toMike $500.00 5, May 2006, [¶ 18.] On Mike filed a $3,396.22 by toward the incurred Joleen in second Change Physical Petition for of attorney in fees and the matter costs due Custody attorney via his requesting new to his failure to his remit financial docu- an order setting a trial date and for Joleen per ments court order. to submit psychological testing. In his 23, 2005, August [¶ On Mike filed a Petition, affidavit in of the support Mike motion to support reconsider the child or- past testified that he had had to der; 31, 2005, August Joleen On resisted. enforced, have the court visitation ordered Mike filed a motion to allow continued allegations and that Joleen made of visitation, complaining Joleen had en- physical against sexual and abuse Mike. three-day rolled in preschool Thomas 25, 2006, program every ap- interfered Mike’s On October Mike’s visitation, began peal February other weekend which before of the this Court Thursday ran through by afternoons and 2005 child was support Sun- order affirmed day order, evening. pre- page concluding A letter from one the appeal Thomas’s was attached, teacher Court school was which noted it without merit. This awarded Joleen $2,476.80 attorney $664,000.00.” and in Mike’s appellate costs worth excess of monthly to be fees. net income was determined $1,950.00,while Joleen’s was set at $783.74 failing to prosecute Despite per using wage month minimum after for on Novem- Petition Modification filed Howey-Fox also qualifying deductions. 2005, dismissal, 2, ber which resulted in a arguments concluded that Mike’s cir- were losing this Court on appeal and his before any and cuitous without merit. No sub- original support child award made was stantial circumstances February 2005, yet filed Pe- Mike another Finally, found. Joleen was awarded for of Support. tition Modification Child $3,702.31 attorney fees and costs. Howey-Fox appointed was as Wanda again objected report once to the referee’s again referee for matter. Mike once recommendation, again and was once refused to with the trial court’s comply by monthly trial court to pay ordered him to submit financial requiring order support per child $363.00 $75.00 filed a to com- documents. Joleen motion in arrearages. month via a motion to pel, which Mike resisted Howey-Fox 2, 2007, her quash; July Referee deferred On filed a until ruling day on the motions for Contempt, Motion Show Cause as hearing. not complied sup- Mike had with the child port payments recommended Child Howey-Fox’s report 21.] Referee 31, Support Taylor on Referee December 2007, dated recommendation June August and court ordered on 2005. provided critical condemnation of Mike’s alleged payment Joleen’s motion Mike’s attempts any tem- avoid increase to his erratic, support irregular was porary support payment of $150.00 owed calculated he an additional per testimony month. Mike’s at the hear- $3,570.00 in back child from Janu- ing report “every in that as: included $2,530.78 ary July 2005 through plus penny money uses to he medical expenses unreimbursed part and is borrowed” *7 Thomas. an operating note on farm. Further- more, Mike that his objected, claiming only testified he believed Mike he [1f24.] $2,067.00. pay income should not be used to arrearages owed of He excused Thomas’s insurance Mike and to pay health as his failure as follows: Joleen’s lack of financial resources should “Defendant is a farmer and therefore does qualify taxpayer for Title XIX at weekly monthly Thomas not have a or regular pay- expense. this, check. of he to required Because until money wait in to comes each month Howey-Fox’s report 22.] Referee [¶ money support or borrow the finding and a recommendation included from the objections bank.” Mike’s were that Mike’s worth at the time of the net court, rejected by the trial and the child hearing in- depending varied on whether arrearages order and remained as ternal bank or documents external tax doc- Howey-Fox. by finally determined report uments The conclud- were viewed. paid his back child be- support the week $1,257,550.00 ed Mike had in assets and trial, custody fore the and share of his $664,991.00. Howey-Fox net worth of expenses unreimbursed medical on the “Petitioner, however, wrote: believes that day of second trial. citizens of balance of the of the State trial, South Dakota should the medical At Dr. [¶ 25.] Van Gilder testified care for his though child even he has net that she had Thomas seen one-hundred counseling age dogs sheep preying times for sessions since herd while despite watched from the pickup testified that Thomas truck. three. She also sessions, years say she could not two Dr. Van Gilder testified that improved that over time. Dr. Thomas had types by parents these behaviors that Joleen to appeared Van Gilder noted made Thomas feel to he had choose be- hiding have a difficult time her dislike parents tween his and that was what was Thomas, from that it distrust of Mike but to damaging Thomas. In order to lessen something she inten- doing was not was felt, anxiety he Thomas used “Thomas” tionally. Although Dr. Van Gilder testified home, to to himself at refer his mother’s in be- improvement noticeable “Tom” refer to himself his fa- improve- in spring havior that home. ther’s ment, however, dissipated as the Dr. testimony Van Gilder’s was She testified approached. further parents engaged that both the con- resilient, loving that Thomas was child duct, Mike making derogatory re- highly parents. who was bonded to both about “those marks damn Methodists.” Dr. did Van Gilder testified that she not reportedly Joleen also made comments struggle adapt believe would Thomas being person about Mike a bad or “bad custody. Dr. did Van Gilder liar, guy,” that Mike was a and that Thom- not custody. recommend a live at as did not Mike’s home. The end Gilder questioned Dr. Van was say result was Thomas would to his extensively attorney concerning by Mike’s in counseling father and that Mike “was a the possibility attempting liar,” that Joleen was “my guy,” being dad is a bad without from alienate Thomas Mike. Dr. Van any able to articulate for his reasons com- Gilder testified Thomas was exhibit- concerns ments. counselor’s were ing behaviors consistent with one being that Thomas was in his mind forced parents engaging alienation. to choose between his parents, say specifically She could out, who acting say- was the source of his engaging alienating Dr. behaviors. ing inappropriate things.
Van Gilder further testified that Joleen’s Dr. Clayborne, Andre court- parenting style reactions to Mike’s were evaluator, appointed testified some strong, and that had a difficult time made behaviors comments Thomas hiding anxiety from Anxiety her Thomas. in Dr. reported as Van Gilder’s treatment producing driving factors included Mike parents notes were indicative of both mak- *8 pickup with Thomas in the on the farm about ing inappropriate comments each seat, guns without a car and home Dr. presence. Clay- other in Thomas’s pickup, machinery, farm and being around parents borne concluded that both while wanting separated not to be from Thomas. conduct that could be de- engaged alienation, blocking Gilder to as contact
[¶ 27.] Dr. Van also testified scribed appeared with the intent incidents of Mike’s behaviors that caused neither to do so anxiety parent. tell- to the other for Thomas. Those included alienate Thomas from ing Dr. that Clayborne, Clayborne Thomas that Andre a Dr. also noted Joleen had evaluator, coming negative court-appointed engaged was to more of the behavior Mike, their but alienation from home to decide where Thomas would than no Dr. go parent Clay- live and to school. Dr. Gilder either had occurred. Van inci- conduct further testified the effects of an borne had concerns that such was stray diagnoses dent on which for Thomas’s of ad- responsible Thomas Mike shot queried expenditure. When disorder, approve it difficult for and made justment ability purposes about his impeachment while his love for Mike express Thomas year, earlier that off vehicle Clayborne Dr. also tes- home. at Joleen’s relevancy objection litiga- trial court sustained repeated protracted tified showing exhibit and declined to admit an the other could by parent against tion one questioned large expenditure. When and abusive behav- sign controlling be a responses than candid that it his less further testified about Clayborne ior. Dr. financials, referees on his interest to not be in Thomas’s best would in- from Joleen, attorney precluded was as she had custody from change relevancy into the matter on a quiring since caretaker birth primary been his precluded also from objection. Joleen was difficult for Thomas would be Howey- However, admitting into evidence Referee Clayborne Dr. did to handle. and recommendation. parents’ report be- Fox’s testify that a both dis- court held that the child Thomas’s sake. critical for havior was custody matter. pute was irrelevant to the at trial. Turbak also testified proof made an offer of Counsel for Joleen that she felt Joleen was Turbak testified to Mike’s inquiry that the and exhibit went fault for the difficulties between greater rejected credibility, the exhibit was but testified that Joleen couple. Turbak precluded. questioning the line of during the first great concern expressed her be- Joleen testified on own that Mike would custody evaluation relationship had with loving half to the she parents from her. Both ex- take Thomas many Thomas. She testified regarding to Turbak pressed concerns early in the with Thomas noted Turbak had issues some of Thomas’s behaviors. bedwetting, really counseling process, including these behaviors were doubts testified to reported had been eliminated. Joleen although they were happening, Thomas urinated several incidents where parents Both were disre- parents. times, that was how yard, claiming in the front each other at instead spectful to farm. testified to they Tur- did it on the together co-parenting. on working education and his hopes her for Thomas’s parents that both contributed bak testified in ac- alienation, how the differences upbringing, it was more to the but believed Jo- Mike and part ceptable due to Joleen’s behavior between one-sided on Joleen’s by her. leen’s households were addressed protect need to Thomas. panic driven However, Turbak also testified she was from the The trial court ruled testimony qualified give recess. Prior to bench after one-hour “ syndrome, that she was alienation but ‘Proverbs 3:5 ruling the court stated: syndrome. aware of the way a child in the he says: up Train old, he is he will not go trial concern- should when Mike testified at an interest- faith, from it.’ I remember depart and that he ing lifelong Catholic that idea that ing message I heard about life in Plankinton ex- had lived his entire *9 just Hebrew[s] it doesn’t briefly attending college in said cept while —the just referring imposing to the idea of Minnesota. his isn’t He testified to bond creating cross-examination, also the idea of discipline Mike was but Thomas. On aspects for a child in lots of different delinquent his taste why asked he failed per- noted that it ex- of life.” The court also outstanding medical child religious gone through trial. testi- ceived Joleen penses right until before joining since the United intensification that he had to wait for bank fied
743 2003, in Yankton in Methodist Church abuse of discretion refers to a discretion lifelong while Mike had a commitment to purpose justi- exercised to an end or faith church. by, his and his These comments fied and clearly against reason and ” regarding parties’ religious practices 108, evidence.’ v. Henry, State 1996 SD ¶ 10, were also included in the 472, court’s written 554 N.W.2d 473 (quoting In re of fact findings A.R.P., (S.D.1994) and conclusions of law. 56, 519 N.W.2d 62 (quoting State v. Moriarty, 501 N.W.2d The trial court primary- awarded 352, (S.D.1993); Devall, 355 v. State 489 physical during care to Mike its comments (S.D.1992))). 371, N.W.2d 374 An abuse of to the one hour after the trial. discretion occurs in a custody pro- Findings of fact and conclusions of law ceeding when the trial court’s review of filed; properly objected. were The the traditional bearing factors on the best court found that parents had ade- interests of the child is scant or incom- food, quately provided for the child’s cloth- ¶ plete. 35, 23, Fuerstenberg, See 1999 SD care, ing, medical and other basic needs. 591 (holding N.W.2d at 807 custo- “[c]hild The court noted some concerns exist- dy disputes should solely not be decided on ed regularly pay over Mike’s failure to a listing of faults parent ascribed to one support, but that because the on the petty often quarrels extraneous payments were current this was not a seri- spouses[,]” between former but rather uti- ous concern. The court focused extensive- lize “a systemic balanced and approach” ly perceived on what it to be Joleen’s standard). under the best interests The blocking contact attempts to alienate broad discretion of a trial court in making Thomas from Mike. It concluded that Mike custody only decisions will be dis- was more to encourage frequent able con- upon finding turbed that the trial court tact loving relationship and a between ¶ Kost, abused its discretion. 22 (citing Id. Joleen, Thomas and than Joleen could fos- Anderson, 515 212 (citing N.W.2d at 472 ter on behalf of Mike. 519)). N.W.2d recently As this Court not- 36.] Joleen raises the following issue ed: appeal which we find dispositive: It poignant reality Whether the court erred it is a par- when when changed primary physical custody custody ents contest the from of their chil- dren, Joleen to Mike. a court must make a choice.
That choice is often difficult because STANDARD OF REVIEW loving parents between two may there
[¶ 37.] Child decisions distinguish be little to one over the oth- are reviewed this Court under er. Choosing satisfactory between two abuse of discretion standard of options review. within judge’s falls discretion. 35, Thus, v. Fuerstenberg Fuerstenberg, 1999 SD in our review of an ultimate deci- ¶ 22, 591 (citing N.W.2d 807 v. custody, only Kost sion on we decide wheth- Kost, (S.D.1994) (cit 515 212 N.W.2d er the court abused its discretion. Anderson, ing Anderson v. 472 Fuerstenberg, N.W.2d 1999 SD 591 (S.D.1991))). (citations omitted). credibility of wit N.W.2d Al- weight nesses and the afforded to though their we have repeatedly invoked testimony is also within definitions, the discretion of stock the term “abuse of Kost, the trial (citing court. Id. easy discretion” defies an description. Mellema, N.W.2d at 212 (citing Mellema v. It is a fundamental of judgment, error *10 827, (S.D.1987))). 407 N.W.2d 831 a range permissi- “‘[A]n choice outside the of 744 (S.D.1982))). decision, which, full The best interests choices, a
ble
by considering the
consideration,
child are determined
arbitrary or unreason
is
mental,
moral wel
temporal,
v. McKin
child’s
Adrian
generally
able. See
¶ 22,
¶
35,
529,
Fuerstenberg,
SD
591
10, 10,
fare.
1999
nie,
639 N.W.2d
2002 SD
25-5-10;
omitted).
(citations
(citing
at 806
SDCL
Jo
This standard N.W.2d
533
(S.D.
712, 717
Jopling,
v.
526 N.W.2d
appellate
pling
re
is the most deferential
omitted).
1995)) (additional citations
standards,
not mean
that does
view
but
will re
custody decision
judge’s
that a
the trial court erred
[¶40.] Whether
Rather, it is a rec
main undisturbed.
changed primary physical custo-
when it
in a better
trial courts are
ognition that
dy
Mike.
from Joleen to
these difficult choices
position to make
may,
trial court
present
parents are
because the
to,
required
consider the follow
but is
better able
judge
and the
courtroom
determining
inter
ing factors in
the best
capabilities firsthand.
to assess their
parental
ests and welfare of the child:
¶
Heinen,
63, 10, 753
2008 SD
Heinen v.
caretaker,
fitness,
child’s
stability, primary
Ame
891,
Ameson v.
(quoting
894
N.W.2d
misconduct,
preference,
harmful
¶
904,
125, 14,
son,
670 N.W.2d
SD
2003
change
separating siblings, and substantial
910).
¶¶
Id.,
24-
1999 SD
of circumstances.
The trial court’s find
38.]
[¶
consider
591
at 807-10. When
N.W.2d
clearly
upheld
be
unless
ings of fact will
fitness,
may
a court
consider:
ing parental
Anderson, 472
at 520
N.W.2d
erroneous.
(2)
(1)
health;
ca
physical
mental and
15-6-52(a); Lindley v. Lind
(citing SDCL
provide
pacity
disposition
(S.D.1987)).
732, 735
“We
ley, 401 N.W.2d
food,
protection,
clothing,
child with
findings
court’s
will overturn
(3)
care,
needs;
medical
and other basic
only
complete
when a
re
appeal
fact on
love, affection,
ability
give
the child
leaves the Court with
view of the evidence
impart
and to
guidance, education
and firm conviction that a mis
a definite
(4)
creed;
willing
family’s religion or
Jacobsen,
made.” Miller v.
take has been
maturely encourage
ness to
¶
(cita
33, 19, 714 N.W.2d
76
2006 SD
frequent
meaningful
contact be
omitted).
tions
parent;
tween the child and
other
(5)
prepare
commitment to
the child for
AND
ANALYSIS
DECISION
adulthood,
in
as well as to
responsible
custody arrange
A
experiences
that the child
a fulfill
sure
by agreement
reached
be
originally
ment
(6)
childhood;
exemplary
model
ing
may be modified
sub
tween the
that the child witnesses firsthand
ing so
necessity
without the
sequent proceedings
good parent,
it
a
what means
be
cir
showing
“a substantial
responsible
citizen.
loving spouse, and
Hulm,
Hulm v.
484 N.W.2d
cumstances.”
(internal
omitted).
Id.
24
citations
We
(S.D.1992)
(citing
v.
305
Williams
to a
primary
focus on those that are the
(S.D.1988)).
Williams,
390, 393
425 N.W.2d
custody in
of the issue of
this
resolution
modification must
party seeking
“The
case.
and welfare of
that the best interests
show
love, affection,
Ability
give
the child
custody.”
require!
child[ ]
]
guidance,
impart
education and to
Driel,
37, 39
Driel v. Van
525 N.W.2d
Van
family’s religion
creed.
(S.D.1994)
Williams, 425
(citing
N.W.2d
Flint,
The manner which
(citing Flint v.
334 N.W.2d
prac-
Kolb,
encourages his or her child
(S.D.1983);
parent
Kolb v.
324 N.W.2d
*11
legitimate
factor
religion
tice
is
The record does not support
that
awarding
purposefully
trial courts to consider when
cus- Mike’s claim
Joleen was
attempting
Mike,
to
tody.
Jopling,
See
Brunick (S.D.1987)). previously provide has parent unwilling This Court of a who is to testimony a self-serving of held that the for his child from his own basic necessities with- standing alone is insufficient parent resources. a to establish defense out corroboration There substantial evidence [¶ 51.] support. his child party pay that a cannot by appears disregarded that to have been Muilenberg, ex rel.
Sazama v. State concerning trial court the manner (citation 17, 20, 729 N.W.2d SD basic which Mike denied Thomas these omitted). years prior necessities for two and one-half the con- Mike was able to avoid custody despite did so a to the trial. Mike scheduled at the end of tempt proceedings referee, by support a child based in finding by paying his back child documents, part Mike’s own that Mike on $3,570.00 of support in the amount $660,000.00at that had a net worth of over $2,530.78 in trial and medical week before time.2 day two of the trial. Howev- expenses suggest To that a father with a er, give trial court failed to sufficient $600,000.00 net worth over and cash flow year two and one-half weight to Mike’s farming operation limitations from his pay to the full amount of the court refusal timely paying should be excused from Mike, instead, equ- support. ordered child monthly support obligation $363.00 failure to do so and insistence on ated his any parent experiencing an invitation to in child only per month paying $150.00 (real imagined) financial difficulties or by- Thomas’s needs as a support toward comply support obligations. refuse to farmer, cash-strapped product being of Furthermore, repeated Mike’s use of the part than a concerted effort on his rather support legal system deny Joleen child temporary to his any to avoid increase appropriate for Thomas was not payments nothing support payment. There is parental conduct. While Mike undoubted- precedent in our statutes or this Court’s ly thought he was the victim of the child timely paying from parent that excuses support report and recommenda- referee’s to the cash flow limita- support due tion, Thomas, the true victim was whose any profession. other farming tions of financially provide struggled mother Nothing parent unilaterally allows a set during Thomas with basic necessities these a lower amount for that defi- legal endless battles. court order. ance of valid finding The trial court’s of nothing in the record There is ability willingness fact on Mike’s adequately provided to indicate Mike for Thomas’s basic needs was respective Thomas’s needs within his basic clearly in error. we find clear error that the tax- While suggestion means. Mike’s fact, findings in the trial court’s of Dakota should payers the State South enough. cover- alone is not must also deter- provide his child’s health insurance We ever, including applica- opposing by loan counsel was informed 2. Mike's bank records prepared by for that (by tions him were basis bank that the land value was inflated set the child referee. $400,000.00) valuation rewriting oper- to their due attorney why by his own When asked ating year.” Throughout note for Mike that accurate, figure was not Mike commented proceedings, finding subsequent all the purpose they were inflated for support referee has never been re- the child obtaining from the bank. Mike con- loans versed. stated, this in his brief when he "How- firms “ mine whether the trial court made a ‘fun did past find Mike’s failure to judgment, damental error of a choice out support obligation “troubling,” it found it *13 choices, range permissible side the of a was not a serious concern. decision, which, consideration, on full review, On we consider Mike’s ” arbitrary Heinen, or unreasonable.’ failure to adequately support his child of ¶68, 10, 2008 SD 758 N.W.2d at (quoting 894 grave parent concern. A argues pov- who ¶ neson, 125, 14, 2003 SD 670 Ar erty while at the same time expending (internal omitted)). N.W.2d at 910 citation thousands of dollars fight to a $213.00 The trial court’s discretion is not abused monthly support increase child would
when it satisfactory selects between two not concern us as much if that parent had options, custody purposes which for child paid support the child opposing while means selecting loving par between two increase. Mike’s failure to adequately pro- distinguish ents with little to one over the vide for his child justified. cannot be Arneson, (citing other. See id. 2003 SD just “Paramount” paramount means that — ¶ 125, 910). 14, Thus, 670 at N.W.2d in with no caveats. our review of an ultimate decision on cus
tody, only we decide whether the court CONCLUSION abused discretion. its Id. retry [¶ 56.] We do not the facts of this This was not a of case de novo nor reweigh disputed case evi- choosing equally satisfactory between two dence. It is necessary or appropriate parents. The par difference between the for us to do so. Mike’s record of intention- ents that becomes clear on review is their al failure to consider the financial needs of respective ability and willingness pro Thomas over those of his own defiance food, vide for Thomas’s basic shelter and of valid court support speaks ordered vol- clothing needs. Mike demonstrated a umes about Mike’s unwillingness pro- clear disregard for Thomas’s wellbeing vide for Thomas. Numerous ref- fought erees, when he tooth and nail to maintain judges, circuit and this Court have his support obligation for consistently rejected Thomas at pleas poverty. month, per especially light “‘All $150.00 too often in setting support, part-time income, Joleen’s higher modest simply are too “[t]here few dollars to meet expenses, education and lack of assets. even the most living modest standard of Mike full power used the judges] his financial ... upon appor- [and are called ’” keep resources to from paying an addition tion poverty accompany misery.” and its per al month Ortner, for the basic Discipline $213.00 necessi In re 2005 SD Instead, ties of life for his child. Mike 699 (quoting N.W.2d Ochs v. $3,678.61 expended Nelson, (S.D.1995) least for Joleen’s 538 N.W.2d (internal attorney omitted)). which fees he was court ordered citation In numerous pay, in addition legal to his own ex cases there is no alternative due to lack of noted, penses. previously As finally parental Mike funds. Such is not the case here paid his overdue as has been determined time after time $3,570.00 amount of previous week before trial litigation. rounds of this endless $2,530.78 expenses day medical While one does not automatically become two of Unfortunately, the trial. parent by the better financial ability and permit court did not inquiry into the issue willingness outspend money the other in timely pay child, of Mike’s failure to his child allocated to a there are certain fun- support obligations. has, While the trial court damental needs a child which if not There is also no custody arrangement. for consequences in dire result
provided, dispute that this child had been unsuccess- and future. In this wellbeing child’s more than one hundred times fully those fun- treated case, failed to for a conduct disorder aris- years over two needs. damental syndrome ing from the alienation clearly erroneous reverse as We arrange- under custodial existing of fact that these finding court’s the trial of the child’s Although ment. resolution it came to the equals when parents were ease, problems was the core issue life of basic willingness provision *14 only three4 of its majority the devotes clearly is a for Thomas. needs issue, choosing to the fifty-nine paragraphs regard. in this The parent better virtually analy- all of its instead to devote it found its discretion when court abused relating parties’ ongoing disputes to the sis of interests and welfare the best Moreover, majority the support. to child change custody a required Thomas circuit acknowledge to even the fails Mike, less provided who had parent the fact on underlying findings court’s of support for his son and adequate than alienation, prospects change, the ba- disregard for Thomas’s demonstrated cir- unchallenged findings which the the wellbeing. sic needs rejected cred- expressly cuit court APPELLATE ATTORNEY FEES ibility on these issues. by authorized SDCL 15- As [¶ 58.] I this case on would not decide [¶ 63.]
26A-87.3, appellate attorney Joleen seeks history support litiga- parties’ the of child $5,000.00 in the fees. award sum We view, the my tion. In we should review attorney fees. appellate testimony profession- of the mental health Reversed.3 [¶ 59.] als, credibility findings the circuit court’s and Mike on regarding Joleen KONENKAMP, Justice, and alienation, underly- and the circuit court’s Justice, SABERS, Retired concur. findings regarding parent’s of fact each ing MEIERHENRY, ZINTER necessary to resolve ability to do what was Justices, dissent. problems. those issues the child’s When under the correct standard are examined ZINTER, (dissenting). Justice review, deci- they reflect a circuit court join I the dissent of Justice clearly sion that was not erroneous out the Meierhenry. point I write to reason and the one that was based on the reason majority virtually overlooks evidence. why the circuit court determined Contrary to the state- necessary. 64.] There is no Court’s [¶ ment, circuit court’s decision was not had endured five the dispute that this child attempting “purposefully child based on Joleen’s years particularly of a contentious summarily paragraphs, appeal, 4. In those the Court During Joleen filed motion 3. this requesting by declaring be for factual dispatches Mike’s brief stricken there are the issue reference to the trial record. inaccuracies in discrepancies in the record” con- "serious motion, grant we remind however, While we do not Court, cerning this matter. correctly obligation cite to counsel of their suggesting identify any does not evidence representa- and the fact that the trial record causing Joleen was not more at fault grant license to tion a client does not ¶¶ supra problems. See 44-46. inaccurately portray expand upon and of the record. true state supra Ultimately, to alienate Thomas from Mike.” See remained since 2002. ¶46. contrary, circuit On the court’s circuit court’s determination was based on findings finding, Court, focused on the fact that whether not addressed this not, that: purposeful or Joleen was more re- “Father better [was] situated alienation, good for the and that model what it means to be a sponsible parent Jo- in such areas as “unwilling” allowing leen would be or “unable” to the child to have healthy loving relationship “very troubling” her behavior if the parent, other and in not portraying the arrangement same custodial were to con- parent other in a negative light for the tinue. See 68. This Court’s deci- infra child.” sion to focus on Mike’s trial contention findings pre-
rather than the circuit court’s Factually, findings [¶ these are 66.] dictably leads to the Court’s result. supported. well dispute There is no at the time of trial in Thomas was appellate Our function should be suffering adjustment from an disorder as to review evidence and reasons relied *15 parents’ result of the conduct in the custo- upon by the circuit court to reach its deci- dy situation that place had been in since precise sion. “No formula exists for mak- February period determination, during which Jo- ing a but the deci- primary leen was the custodian. There is sion should be balanced and methodical.” ¶ dispute also no that the status 101, 13, quo was not Zepeda Zepeda, v. 2001 SD 632 notes, working. As the Court Dr. Van (citing Fuerstenberg, N.W.2d ¶ 807). Gilder 35, 23, indicated Thomas exhibit- was SD 591 N.W.2d at In this case, ing behaviors consistent with one or both dispute there is no that the circuit parents engaging parental alienation. Fuerstenberg court addressed the factors. ¶ However, Supra 26. the Court fails to The primary basis5 for the circuit court’s specific address Dr. Van Gilder’s testimo- findings decision was its that Joleen was ny presence that Thomas’s in Joleen’s responsible more parental Thomas’s home him caused to be conflicted such that syndrome, alienation that Joleen was un- comfortably express he could not love likely unwilling change, and the ex- for his father: perts’ agreement that without some conduct, parents’ I [parents] Thomas’s indicated to that I did not adjustment disorder necessarily identifying would continue as it know nor was I 5. The Court reverses on its determination referee that were not admitted into evidence. ¶¶ give the circuit court “failed to Compare (reciting findings sufficient 20-22 of Refer- to, weight” "disregarded” delay Mike’s Howey-Fox) (acknowledging ee with 32 in, making support payments. his child See Howey-Fox’s report and recommendation ¶¶ 49, supra 51. The Court is incorrect. The evidence). were not admitted in issue, expressly circuit court considered this respect litigiousness, With the is record although troubling, it found it the circuit parties repeated clear that both made use of outweighed by court found that factor was legal system from the time of the child’s unsuccessful treatment of the alien- According Clayborne, shortly birth. to Dr. syndrome enduring ation the child as birth, after the Joleen moved to existing custody result of the situation. Fur- (to surname). child’s name remove Mike’s ther, today, until it was well established that Clayborne Dr. further indicated that Joleen reweigh this Court does not the evidence to unilaterally discontinued mediation and Labine, findings. derive new factual State v. resulting disputes, ¶48, 18, denied visitation. In the 2007 SD 733 N.W.2d 270. It attorneys parties utilized a number of both attempt must also be noted that in an appellate filed finding, numerous motions re- its own the Court visitation, findings lating custody, support. relies on factual of a child what Jo- coming from but that ed that he could not determine
where this was making derogato- consistent leen’s intentions were behaviors were [Thomas’s] comments, ry appear “but it does that she state- with Some [alienation]. minimizes role and does not value making villainizing his Mike’s ments he was misbehavior, mean, father, input parenting anx- his into of their son. This I type with of attitude is the essence of iety anticipating [Parental events and visits things Syndrome] are Alienation and should be dis- types his father. These you continued if wish for part parcel [the child] kind are [sic] healthy par- seeing relationship I’m not have a with both flavor of alienation.... Clayborne finally I Dr. indicated that occurring at Mike’s. ents.” this behavior the rea- probably this conduct was one of part [it] think the reason that why phys- tended to be more occurring more Joleen is because sons Thomas ically in Joleen’s home. conflicted, Thomas is that he he violent feels cannot be about dad in comfortable addressing primary In this con- mom’s home. cern, sixty-six circuit court entered added.) Dr. Van Gilder further (Emphasis fact, findings of most of which are not explained: In those find- addressed this Court. sug- makes statements that [Thomas] ings, explained the circuit court gest that he doesn’t love his father or he whether Jolene’s alienation behavior was go doesn’t like to to the farm. Those unintentional, intentional or she was more *16 typically in a man- statements are made fault; issue; at she was not credible on this necessarily match with ner that doesn’t likely change; her behavior to was words, how he feels. In other there is therefore, change existing custodi- enough anger it or not anger no behind in relationship al was Thomas’s best inter- enough reasoning it or behind it. behind It the circuit emphasized ests. must be implies maybe to me that these
So that specifically court found: that dis- Joleen things are that he like he needs to feels possibility missed the that Mike could or say. in play significant should role Thomas’s that this was un- opined Dr. Van Gilder life; in her changing that Joleen’s efforts And, healthy for Thomas. as Court behavior, September as of had not concedes, Dr. Van Gilder had been coun- out anxi- brought been successful and had years (starting seling Thomas for over two ety, anger negative and other behaviors three) age at hun- which involved over one Thomas; more that those behaviors were visits, yet improved. dred Thomas had not home, frequently displayed Joleen’s ¶25. supra Dr. did not See Van Gilder discipline problems had few with struggle believe that Thomas would to Thomas; healthy that it would be most for custody. adapt to a Id. freely that perceive Thomas to he could concedes, express to with both As the Court further his love and desire be Turbak, that parents, appear Renee the home evalu- but it did not Thomas ator, comfortably love for his greater express indicated that Joleen was at could his spend father and his to time with Supra fault for Thomas’s alienation. 31. desire home; por- that him in that Thomas Clayborne agreed parental Dr. also syndrome present, trayed therapy, alienation and he his father as a villain in was occasionally happened only and her mother have while it “suspected Joleen mother; respect Mike to to his that Thomas felt derogatory made comments about freely Clayborne Thomas.” Dr. not- reluctant to talk about his father around house, many father. anger and the These efforts have taken his mother’s expressed forms, for Mike including, disdain Joleen but not limited to: appeared to now ex- presence Thomas’s making derogatory remarks about fa- family; that Thomas made tend to Joleen’s allowing ther-and others to do so-in did not anger without that he statements creating an presence; Thomas’s environ- go father and did not want love his okay ment Thomas it where is not farm, that these were matters implying father; routinely express his love for his say he had to rather than Thomas felt failing significant to include father felt; actually matters he that Joleen be- life; making decisions about Thomas’s it judgment was infe- lieved Mike’s necessary more difficult than for father rior and he could not be trusted do what spend together; and Thomas to time protect for Thomas or to was best portraying father as a villain in Thom- therefore, safety, and Thomas was worse presence. as’s home; to visit his father’s having off The circuit court then reiterated that the key family Joleen treated Mike not like experts something indicated had to member, annoying but more like an ac- change: if “the same arrange- custodial quaintance put that Thomas must see and continue, likely ment it were to with; although parties, at up mother unwilling per- would be either times, promote positive failed to relation- haps unable to her behavior relat- ship, consistently pro- failed to Joleen ing to efforts to alienate Thomas from his relationship; that the record mote such a father.” The court found that there was full negative statements Thomas no reason to that if contin- believe they indicating about his father were custody, ued to retain the communication home; heard in his mother’s that Joleen going and alienation concerns to dis- were derogatory and her had made com- mother sipate they in much had not as as lessened Thomas; ments about Mike or around Therefore, despite help. extensive outside key these that while Mike was credible on *17 required. in was issues, displayed characteristics positively tested for histrionic behavior This Court has not identified [¶ 70.] narcissism, testimony and her was less any indicating underly- evidence how these concerning than about the issues credible ing findings ones that the circuit —the making alienation and decisions actually court used as the basis for its involvement; about Thomas without Mike’s light In clearly decision—were erroneous. strong feelings that Joleen had about what underlying findings and the rec- of these place took at Mike’s residence and she cited, previously especially light ord exaggerated physi- concerns for Thomas’s rejection express of the circuit court’s and, safety; cal and emotional that al- credibility on the central issue of entirely though placed blame was not alienation, join opinion her I cannot an parent, inappropriate either behavior had parties’ vari- that decides the case on chiefly responsi- occurred and Joleen was disputes regarding support. child For ous it. ble for reason, join I cannot this the same Court’s Thus, specifi- assumption the circuit court that there was no difference cally parties found: between the in terms of their con- and the detrimen- duct towards each other
Mother’s conduct has not demonstrated ie., Thomas; on having tal effect it was any meaningful progress avoiding parents engaged inappro- that both had continued to such behavior. She has ¶¶ 45-46. Cer- priate supra to alienate Thomas from his conduct. See attempt 752 begin brightest a course of beacon remains the best inter
tainly, we should
pa-
analysis that fails to consider harmful
Zepeda,
ests of
child.”
2001 SD
¶
rationalizing
(citation omitted).
by
rental misconduct
at
632 N.W.2d
53
parties”
degree
of involve-
“both
some
Therefore,
majority,
unlike the
I cannot
(rationalizing
par-
that both
ment. See id.
characterize the circuit court’s focus on the
attempted
spend
ties
as much time as
being
harm that
perpetrated
this
possible with the child
by
existing custody arrangement
child
comments).
inappropriate
made
Ultimate-
as “‘a fundamental
judgment,
error
Court,
ly,
reversing on
language
range
permissible
choice outside the
history
support litiga-
of child
parties’
choices, decision, which,
on full consider
”
tion,
reflects that it has retried the case
ation,
arbitrary
or unreasonable.’ Ho
substituting
judgment
its
for that of the
¶96, 9,
gen, 2008 SD
757
at 163
N.W.2d
importance
circuit court on the relative
¶
Maxner,
30, 11,
(quoting
2007 SD
Fuerstenberg
factors.
622).
I
N.W.2d
therefore dissent.
attempted
The circuit court
MEIERHENRY,
five-year,
(dissenting).
Justice
resolve a
unworkable child custo
dy arrangement under which Thomas was
I
Although
agree with the ma-
unquestionably being harmed. Because
jority that
the trial court overlooked
underlying findings
circuit
court’s
were
Mike’s consistent failure to
rejection
express
made on the
of Joleen’s
I
support,
agree
cannot
that the trial court
issue,
credibility regarding
principal
this
by changing custody.
abused its discretion
we should continue to follow our often
announcing
open
When
his decision in
“ ‘recognition
stated
that trial courts are in court,
Bjorkman
Judge
expressed his con-
position
a better
to make these difficult
cern
delayed
about Mike’s
parents
present
choices because the
are
indicated,
payments.
and medical
He
“I
judge
the courtroom and the
is better able
that,
expect
would
repeat
father not
”
to assess
firsthand.’ Ho
[the situation]
they
paid
may
are
now.
there
And
be
¶96, 9,
gen
Pifer,
v.
2008 SD
757 N.W.2d
explanation
delays
some
for some of the
Maxner,
(quoting
Maxner v.
past.”
It is hard to
imagine
622).
30, 11,
SD
730 N.W.2d
More
parent,
consistently
who
refuses to
importantly, because the circuit court’s un
support,
has the child’s best interest
derlying findings reflect that its decision
in mind.
extended,
attempt
was an
an
*18
Nevertheless, I
cannot conclude
custody arrangement,
harmful child
based on our
standard of review
circuit court’s
not
decision was
one exer
“
Judge Bjorkman abused his discretion
justified
purpose
cised to ‘an end or
not
changed custody
when he
to Mike. He
by,
clearly
and
against, reason and evi
”
weighed
considered and
all the Fuersten-
Kaarup,
dence.’
Hrachovec v.
516
(S.D.1994)
berg
carefully.
factors
Fuerstenberg,
See
(quoting
N.W.2d
311
Hern
¶35, 24-34,
(S.D. 1999 SD
at
Herndon,
591 N.W.2d
807-
don v.
305 N.W.2d
918
1981)).
10. He
cannot,
finding
based this
on what the
majority,
I
as does the
experts
reports
said
their
and testimo-
justify a continuation of this harmful situa
attempt
nies.
tion on the
it
an
Joleen’s
to alienate the child
belief
“unfortu
weighed heavily
...
from his father
reality
custody
nate[
of the child
]
¶
custody
process.” Supra
visitation
45. No mat
determination. See id.
591
failings
Judge Bjorkman
ter what collateral
at
N.W.2d
809.
also not-
majority
upon,
chooses to focus
“our
ed that
psychological profile
Joleen’s
dis-
findings
are based on the testi-
behav-
court’s
of histrionic
“characteristics
played
Additionally,
mony
expert reports.
agree
he
I cannot
and narcissism.”
ior
.and
majority
findings
are
with the
testimony to be:
found Joleen’s
clearly erroneous.
points, particu-
at various
less credible
concerning parental
larly about issues
may
made
though
Even
we
have
alienation,
making major decisions
custody
a different
decision based on the
father’s involve-
Thomas without
about
record,
give
we must
deference to the trial
situations,
appeared
In those
she
ment.
Determining
credibility
court.
in a
questions
to answer
reluctant
given
and the
to their
weight
witnesses
fashion and would often
straightforward
testimony falls within the discretion of the
ques-
answer the exact
evade or fail to
¶ 22,
trial court.
Id.
decisions necessary than for father
more difficult together; por- time spend [child]
traying [child’s] father as villain
presence.