*1 2000 SD PRICE, L.
Thomas Plaintiff Appellant, PRICE,
Melinda S. Defendant Appellee,
No. 21127.
Supreme Court of South Dakota.
Considered Briefs March May
Decided *3 chil-
protected by, Josh.” The three older and indi- personally dren were interviewed “they not want to continue cated that did anger, and that with their mother’s living with, to, and they felt closer safer of Johnson Law Office Drew Johnson C. During home visit with Melin- father.” Dakota, Attorneys Aberdeen, South da, the evaluator noted: plaintiff appellant. spent than Mrs. Price 30 minutes Tonner, Tobin and Thomas M. Tobin feelings discussing angry about the Dakota, Aberdeen, Attorneys King, South ending marriage, information appellee. for defendant and *4 suicide, and about Mr. Price’s father’s allegations that Mr. Price had wanted SABERS, Justice. giving instead of hér to have abortion change Melinda Price motioned for [¶ 1.] All of this done in birth Stuart. was alimony. and in custody of an increase presence appeared of Stuart who granted The trial court both motions and sad, dissociative, very and somewhat in support child to Melinda. awarded $338 discussion. Mrs. Price also and appeals. Tom Price We reverse re- Mr. on at about Price’s at- length went change custody and child sup- mand of her, against tempts to turn the children award, the.alimony award. port but affirm experi- as well the difficulties she had as financially giving due to him not enced PACTS enough money. Tom and Melinda were married [¶ 2.] pro- interviewing After several references thereafter, Shortly June by parties, the evaluator recom- vided both York couple moved from New to South custody that Tom have sole mended practice Tom as a Dakota so could licensed Adam, Zachary boys, oldest and and two partner in He psychologist Aberdeen. joint custody that Tom and Melinda share Psychological in the Northern Plains Ser- physical of primary Josh and Stuart with clinic, in vices which is located Aberdeen custody in Tom. Watertown, with in Redfield branch offices Waubay. and contesting Instead of the custodial [¶ 5.] recommendations, agreed Melinda that she The have four children: couple [¶3.] joint legal custody Tom and would share 12, 1977; Adam, Zachary, April born born physical custody all children in four with Joshua, 27, 1979; January born March However, two Tom. the older children 5,1988. 1982; Stuart, April born required to abide visita- 21 years marriage, After Tom if tion schedule and were allowed to choose July filed for divorce in of 1993. Melinda they when The mari- visited Melinda. initially sought custody sole of the four property tal and Melinda divided opposed sought minor children. Tom $27,203 lump in awarded a sum restitu- joint custody physical of the children with regular alimony, alimony tional $1 An custody awarded to him. extensive alimony rehabilitative an amount offset- custody evaluation was conducted Au- obligation her child to Tom. ting support gust evaluation, part of 1994. As Judgment Decree of Di- The and Final six, young age of his be.cause 6,1994. vorce was filed on October objective some infor- was tested “obtain Rochester, parental preference.” mation Melinda moved to New [his] about after the Febru- completed shortly four of seven tests York divorce. On 26, 1996, for showing ary with motioned preferred results that his custody of “por- physical his Stuart and father. Stuart to, alimony. During trayed being very himself close for an increase in as hearing, trial court reviewed the 1994 In evaluating Stuart’s care under Tom, transcripts two the trial court evaluation and found: the three siblings older do not regularly interact telephone conversations between Melinda Stuart; Stuart is alone for a Josh. re- transcripts and Stuart and minimum of two and one-half hours after pressuring was: veal school; (3) relationship Tom’s girl- his wanted to live to tell his teachers time;3 friend much consumes of Tom’s mom; disparaging spend any does not time children; trying to alienate their affec- trying develop reading Stuart’s skills Finding for was in tions Tom. it Stuart’s him beyond putting special education Tom, best interest to remain with the trial classes. a-change denied Melinda’s motion However, custody.1 ac- Conversely, the trial court found knowledged Melinda’s need educational that Melinda was provide able to “special training and awarded her rehabili- $600 attention” to by spending alimony beginning tative June 1996 time with him and with him working on his ending June 1998.2 learning disability.1 The court also noted that Stuart would if placed “flourish” *5 completing two-year 7.] After a train- [¶ Melinda her because work schedule per- course, filed, 22,1998, Melinda June ing on mitted her to be available to Stuart more change custody second motion to of often. alimony. Stuart and motion increase 12.] The trial court concluded it [¶ that 28-29, heard April The matter was 1999. inwas best that Stuart’s interest Melinda time, Zachary married, At this was [¶ primary physical be awarded custody working attending' college full-time Stuart, conditioned on Melinda-moving out maintaining independent residence home, boyfriend’s of her maintaining her son, in Aberdeen. The second oldest apartment attending own in New York and Adam, attending college was full-time spiritual to Stuart’s needs. The court also working part-time jobs, two but still resid- alimony concluded that in- Melinda’s be Joshua, 17-years-old, ed at home. was a $1,000 per creased to month and Me- that junior in high school and part- worked in monthly linda receive child support $338 11-years-old time. Stuart and was payments from Tom. grade. the fifth 13.] Tom motioned for reconsideration
[¶ 9.] The trial court interviewed hearing May Stuart or new trial. A was held on minutes, in chambers for 25 1999 both at which Tom the court that told interview, present. During counsels met professional certified “expressed preference a strong counselor Sioux Falls after the court Rochester, live custody changed with his mother” New that physical ordered York due to “close relationship” to Melinda. report The reflects that feeling boy- her and his prompted, years, by Melinda’s Stuart was Melin- friend, Clark, with, say whom lived da to he wanted to her he live with provide a would “safe environment” for court was stunned that trial awarded him. custody transcript to Melinda. A aof Josh, 1. also alimony The court allowed like Zach- rehabilitative be increased for two Adam, ary to choose if and when he years summarily April on affirmed Melinda. visited appealed 2. Melinda the trial court's denial of August married Linda on 3.Tom Wachtel change her motion for and Tom divorced on June 1998. The appealed the increase in rehabilitative alimo- girlfriend Opitz. referred is Doris here ny. appeal January Melinda dismissed her Tom married her June 13, 1997. The trial court's determination determining In of the child. best interest conversation between telephone post-trial child, of a the court must the best interest presented and Melinda was conversation, “temporal, mental consider child’s During this court. 25-4-45; Fuer he uncertain moral welfare.” SDCL was' Stuart admitted ¶35, 22, live New 1999 SD actually stenberg Fuerstenberg, he wanted whether omitted). (citations 798, 806 told Stuart response, In 591 N.W.2d York. discretion things that aren’t “Trial courts broad “everybody telling you possess child; their new interests deciding he would love best true” and that upon a only there will be disturbed there because decisions apartment got once complex in the of discretion.” Fuersten- finding “a children of abuse thousand” ¶35, 22, swimming pools berg, on site. SD 591 N.W.2d and it had three omitted). (citations may no A there was consider trial court determined .exerting determining influence of Melinda seven factors evidence (1) child: primary the motion will care of the over Stuart and denied (2) (3) fitness; stability; primary or new trial. parental reconsideration caretaker; preference; child’s also motioned [¶ 14.] Tom misconduct; (6) separa parental harmful custody, which was stay the transfer of siblings; substantial tion 1, 1999, days three scheduled for June review these in circumstances. We seven re- hearing. from the date of this factors: court allow Stuart quested that the trial pendency with him stay A. Parental Fitness study
appeal complete or until Rochester, York be- conducted in New *6 Here, we determine [¶ 20.] living arrangements cause Melinda’s new to equipped provide is better The court not been disclosed. had mental and “temporal, the child’s moral 12- signed that Melinda a determined 25-4-45. welfare.” SDCL Some apartment in Roch- month for an lease in evaluating parental considered factors ester, York denied Tom’s motion. New fitness include: Therefore, living Me- has been (1) health; physical mental and Rochester, New York since June linda (2) disposition provide capacity food, protection, the child with cloth- and raises three is- appeals 15.] Tom [¶ care, and other ing, medical basic sues. needs; (3) love, THE ability 1. WHETHER TRIAL child affec- give tion, IN A guidance, COURT ERRED GRANTING education and im- creed; family’s religion OE PHYSICAL. part CHANGE CUSTO- or TO DY OF FROM TOM STUART (4) maturely willingness encourage MELINDA. meaningful provide frequent (1) contact the child and the argues that: it not between parent; uprooted to be from other Stuart’s best interest live his home in Dakota to in Roch- South (5) prepare the child for commitment Melinda; ester, New York with adulthood, responsible as well as preference Stuart’s stated to live with Me- experiences the child insure that influence; linda result of Melinda’s was the childhood; and fulfilling present did compelling and Melinda not modeling so that the child exemplary separate siblings. the four reasons firsthand what it means to witnesses good loving spouse, primary parent, [¶ determina 18.] citizen. custody dispute responsible tion in a is to ascertain and a ¶ evidence, Fuerstenberg, 1999 SD 591 Based the trial con- omitted). (internal citations N.W.2d cluded that Melinda was pressuring Stuart to tell his teachers and others that he parties initially When the [¶21.] wanted to live with her. The trial court divorced, custody evaluation was con- prohibited parties “making both from children, testing After inter- ducted. negative or disparaging comments about individuals, viewing observing several or, other presence children’s children, with the parties the evaluator any way, pressuring the re- children with custody recommended that Tom sole gard to the issue custody.” boys of the two oldest and that Tom and custody joint share Josh By Melinda had not com- primary custody Stuart with physical pleted any of the evaluator’s recommenda- Tom. The evaluator further recommended tions. Tom introduced the 1994 that Melinda “undergo complete psycho- evaluation as well as the transcripts logical evaluation” that: to the trial court the second modifi- injunction pro- ... issue an [t]he cation proceeding. The trial court not did at, hibiting yelling from or in [Melinda] make any specific findings regarding Me- of, children, presence throwing parental linda’s overall fitness. or objects doing physically abusive acts hearing At the on the motion for presence children, in the making trial, reconsideration or new Tom present- disparaging remarks in the [Tom] about transcript ed another telephone of a con- presence, pumping children’s versation between Melinda and Stuart. children for information about other The transcript reflects that Melinda con- parent. tinues to belittle Tom to pres- Stuart and The evaluator also recommended that Me- sures saying into he wants to live linda parenting “take a class from a with her: mental professional.” trained health you you Melinda: Are still sure want to had completed any [¶ 22.] Melinda come here? the evaluator’s recommendations when she petitioned Stuart: Sort of. Sort of not. modification 1996. Nor *7 any did she show signs improvement. Stu, why? thought Melinda: I this is After reviewing transcripts telephone you what wanted? conversations, the trial court found that just ... actually, Stuart: Well now I during conversations with Me- thought something. Yes. “your linda referred to Tom as fa- dumb Yeah, everybody Melinda: because is ther,” accused Tom of affair an which de- working you they, on aren’t stroyed marriage the and commented that Stu? might get from sleeping AIDS fiancée, was OK Melinda.4 Huh? Stuart: transcript 4. The trial a crying yelling court reviewed of a cates that Melinda was and telephone taped February conversation on relationship Josh the about between and conversation, During the Melinda was She Linda. concluded: crying repeatedly asked about every [Linda will] have sex with [Tom] engagement new Tom's to Linda Wachtel. so, night, your very happy, be father will “give She told to a bad [Linda] time” happy. you very guys the And are so that Stuart live could with Melinda. gone, happier be. he’ll The more conversation, During got this Josh on they be together, happier time can telephone spoke with Melinda. She they’ll you guys be ... when aren’t having told Josh that Tom was sex with Linda you around. And I know don’t like marriage, but Josh did be- either, big hear it but it’s true. a It's lieve her. She further told him: "I can’t thing your just dad's life. But remem- you just accept somebody believe would Josh, ber, you. [your] here for mom’s being your transcript else mother.” indi- mental and provide temporal, for Stuart’s everybody telling is Because Melinda: welfare. moral things that aren’t true you they, aren’t’ Stu? 26,] Stability B. determination is which
[¶ 27.] This provide is stable and parent able to? You want You still want Melinda: home environment. Factors consistent you? it don’t try considered include: I do. Now Yes. Yeah. Stuart: interaction of relationship parents, step-par- the child with -Well, me you tell Melinda: Yeah? families; ents, siblings extended phone you’re when on the n apparently home, adjustment me the child’s but..... sight [ ] I’m out community; school when mind, say things other you whom child has parent with Is that correct? there. attachment, formed a as at- closer and child tachment between Yep. ummm.... Stuart: developmental phe- important is an trying Yep. Your brothers are Melinda: breaking healthy nomena and at- all you convince detriment; tachment cause can stuff.,, going I what is know (4) continuity, a child has because when there. I am well back for a setting been in one custodial Stuey, it. go- aware of we’re pursuant time to court order or long have ing good such time agreement, ought be to keep and now Dad wants only reluctant to make a if you beginning slight advantage for theoretical or end of summer instead might gained. child I it the summer and want ¶ omitted). (internal if way other around and Id. at citations is, way you it won’t be the same [¶ 28.] Stuart has attended play traveling soccer. able to school, in the was raised same house and life, community lived all his same Oh, way! Stuart: no exception with the of visitations with Me- it, Stuey. I’m Noth- fighting Melinda: siblings and fa- linda Rochester. His ing you. [mind] concrete We Aberdeen, live in South Dakota. Tom ther no idea.... regularly church all four attended I’ll no. Right say now Stuart: activity partici- boys, Melinda did not *8 your “Don’t tell Melinda also told in, marriage. At pate even the the telling you.” that anything brothers I’m hearing, of had physical time the Tom nearly years. of Stuart for history of the Melinda’s [¶25.] Given belittling Tom to and attempt- justifying change the children In of custo- [¶ 29.] them, ing dy, to influence there is little reason had a trial court found Stuart anything changed relationship has since with his mother and de- to believe close August sired to live with her because he would of the date last custo- attention from dy evaluation. Based on record evi- receive more individualized dence, appears to be trial also found: equipped best her.5 The court trial, stop my During presented say heard it but dad didn't. [L]inda letter attorney July up by They written was and listen- Stuart Melinda’s did not know that I visiting ing. my when Stuart was Melinda: will me scared dad hit too. I’m mostly yells My at me brother for my [J]osh I with want to live mom because I'm everything things. do my and makes me his my dad. I heard dad and scared of My family I fighting my dad hit I leaves me alone times which [LJinda [L]inda. a further of circumstances As most committed and in parenting involved has also the child and is since June Stuart been also a “fair indicator parent special which has been engaged responsible education class more past.” has in his the child improved his success Id. The trial court special work. The must consider who type school edu- was devoted to the child the custodial dispute cation classes that can benefit arose. before Id. from are available in the State of New living York [Melinda]. [¶ 33.] The primary caretaker advantage” or Only slight “theoretical can be by identified determining “which gained
would be for in New York predominant time, invested care because, noted, as consistency raising child.” Id. attending classes he was in Aberdeen were It is evidenced such spend matters as improving his “success his school work.” ing child, meals, time preparing playing, attending care, 30.] The trial court also determined to medical clothing, school, choosing involvement in Stuart wanted live attending Clark, the child’s ac boyfriend, “provided her extracurricular because tivities, child, reading to the preparing safe environment which Stuart could birthday parties, knowing pediatri participate in all the activities and so- cian, consistent disciplining, arranging necessary cialization 11-year-old for a[n] transportation, and providing appropri boy.” The ordered Melinda to clothing, toys. ate foods and move out of Clark’s house and maintain therefore, apartment; finding own “Closely Id. question related is the provide that Clark could a “safe environ- issue of which parent has more time avail- ment” for Stuart is (citation somewhat immaterial to spend able with the child.” Id. question omitted). as the is whether Melinda could
provide a safe by environment parties Both employed. are Obviously, no study herself. home or cus- per Tom works over hours week. On tody performed evaluation was in the days offices, he travels the branch home where be living Melinda would begins days he so that he early is Stuart.6 regularly sometimes, p.m.; 6:00 however, 5:00, he home by is 4:00 or de Primary C. Caretaker pending on From his schedule. Many jurisdictions give pref primary caretaker of erence to the primary caretaker. Id. at Stuart. At the time of hearing, ¶ 28. This factor determines the person responsible meeting edu- Stuart’s my study do not like. house In in Aberdeen there The home home, at Clark's conducted Linda, Doris, always changes, is a lot residing like where Melinda was at the drinking my my my However, dad brothers and longer time. because Melinda no my dad are home. there, seldom With mom she’s neighborhood” resides the "home and always we there for me and do a lot of portion questionable. things together. and, The interviewer also with Stuart met stay my let Please me with mom. *9 at as indicated above noted that footnote argues Tom that Stuart is not scared of him father, having "is Stuart afraid his wit- that and Melinda coerced Stuart to write fights nessed between his father and Linda the letter. Stuart He claims that never " they ‘yelling which at each other’ and disagreement heard the between himself report Tom hit Linda. The also that reflects Linda; rather, and it was Linda told who Stuart stated miss that would his brothers Melinda, her version to after Linda's di- York, if he were to New but allowed live in vorce from Tom. of [his] [him] [his] "some friends remind presented study a brothers.” The concluded that home that was interviewer performed September on she would "have no to Stuart's 1998 while Stuart reservations visiting living New her in York for the summer. in this situation.” court awarded After the
cational, emotional needs. with Clark. medical Melinda, custody to Tom claims parties physical for birthday the planned Tom about move and involved that Stuart stressed took him to church Therefore, Tom activities, took such as and was confused. him in extracurricular Falls, who met him to a Tom also enrolled counselor Sioux and soccer. hockey with and received letters from reading program a clinic Stuart Stuart summer Zachary, During him Adam and the hear- University help to Josh. at Northern State reconsideration, disability. ing Around the on Tom’s motion for learning his with report, house, taking presented responsible Tom counselor’s Stuart was easily influ- provides that Stuart taking garbage out dogs, care of years being primed had room. occasion enced “has cleaning his On own warranted, way. a that his mother de- disciplined respond Tom Stuart to when further withholding privileges that Stuart con- sires.” The counselor notes: by important. sidered appears may It that Melinda be suffer- ing personality from some disorder that primary Clearly, Tom was psychologi- to her verbal and contributes hearing.7 The caretaker at time I cal abuse of her children.... believe re- specific findings trial court made no ... it would in Stuart’s best interest [be] to proposed the manner Melinda garding full, psychological [a] that daily on a basis permanent care for Stuart qualified psychologist. evaluation a working. The court while she was found .... It that suggested] is also another Melinda, per that who works 35-40 hours completed pri- full evaluation be week, give would be able Stuart physical or to a care Stuart. than time Tom. presented Tom [¶ 39.]. D. Child’s Preference telephone a transcript post-trial, with provides 25-4-45 [¶ 37.] SDCL conversation between Melinda Stuart. age that the child is of sufficient “[i]f conversation, expressed During this intelligent form an the court preference, that he he wanted to was not sure whether ” (em may that .... preference consider live his mother and stated he was with added). phasis While final decision “confused.” Melinda also validated his court, parental a child’s rests by stating: “you me [you confusion tell preference consideration. deserves some you’re on want to live when me] me, apparently ... when phone with but Here, expressed mind, you sight say I’m out of and ... that the trial court he wanted live with things responded, other there.” Stuart his that mother. stated “yep.” mother, felt close to wanted to his history on receive more individualized attention Based Melinda’s attempting felt like he in a to alienate her chil- pattern “safe environment” girlfriend slept argues as 7. Melinda that Tom allows Stuart same cabin television; programs watch violent name- Tom did. . ly, an cartoon entitled "South Park” Finally, adult Melinda claims Stuart is left asserts, Wrestling.” how- "All-Star Tom home alone after school and sometimes in the ever, that "South into Park” was introduced evenings. Tom testified Stuart had his home after Adam returned a visit babysitter from January until of 1999 when Stuart Melinda. only fifth-grader insisted that he was babysitter still had after school. After Melinda further claims that allowed individuals, speaking several Tom al- sleeping Stuart witness his brothers stay lowed Stuart alone after school. they girlfriends as same cabins when n Tom, however, provided Stuart with a list of family aon cruise went reunion. *10 others, phone to Tom or and Zachary numbers reach by arguing counters that both him age majority, Tom called in and checked on after Adam had attained the Zach- girlfriend ary engaged to Adam school. was his
435 Tom, expressed prefer- Mayer 638, dren from Stuart’s 397 Mayer, N.W.2d (S.D.1986)). great weight. not ence can be afforded The the best standard remains interest The trial [¶47.] court found that 11-year-old an child can not family dynamics the Price changed have always determine his own best interest. substantially since 1994. is boys. youngest four The oldest two E. Harmful [¶41.] Parental Miscon- boys majority age. reached Zachary is duct married, college works and attends full- only 42.] is [¶ This factor consid time Aberdeen. Adam works and at “a parent’s ered when marital misconduct Tom, college, tends but lives with Josh and has a harmful effect on a child....” Stuart. Josh was at the time of the ¶ Fuerstenberg, SD hearing junior Now, and a in high school. N.W.2d at harmful is “[T]he effect 18-years-old is and a in high senior parental when self-evident misconduct is testify school. Josh did not at trial. presence committed of a old child [¶ 48.] The that found “com- perceive enough to the misconduct.” Id. pelling why reasons [exist] could [Stuart] [¶ In 43.] evaluation ... separated siblings from his because reflected that the three older children the two older are on ones their own. Josh thought angry they Melinda was felt vehicle, is 17. He has driving and he is his safer with Tom. The evaluator’s experience around with Mends. He doesn’t have revealing: also 11-year-old.” lot time for It also told angry the evaluator how she boys found the older did spend not a sub- Tom and told the Tom evaluator that Stuart; stantial amount time i.e. Stuart, wanted her abort all in the “they education, do role in his play presence appeared of Stuart who “sad and support, supervision, maintenance or ex- somewhat dissociative.” In cept superficial on a basis.” pressuring found that Melinda was telling into his teachers that he Siblings are not responsible for wanted live with “education, Melinda. It found support, maintenance or Melinda, that in her conversations supervision” of other. The purpose each Stuart, 8-years-old, then referred to Tom in requiring compel- a trial court to have “your father,” as dumb accused of an ling siblings reasons before separating affair destroyed which marriage they that are “the right ensure afforded that might get commented together, AIDS to remain to share each other’s sleeping lives, from with his then-fíancée. grow up together.” (quot- and to Id. 644). ing Mayer, 397 N.W.2d at The fact findings [¶ The trial court made no 44.] 17-year-old that a has a ear and drives attempts Melinda’s alienate the around with does not friends amount to a Tom, against children be- allegedly separate siblings. compelling reason to gan marriage, ceased. appears sibling 50.] It rela- [¶ Separating Siblings [¶ F. tionship between and Stuart is not Josh 46.] “Siblings sep yelling should not be unusual. Stuart accused Josh of compelling arated absent him him making circumstances.” do chores. Josh’s ¶ Id. at requires society 32. “Justice There also evidence that the two close, duty exercise its moral chil they insure that frequently brothers bowled, in family enjoy right dren played games to remain video and went to together, lives, share together. each other’s and to restaurants trial court grow up until together, such time as neces found that there was “no close relation- sity children, itself, welfare ship” between which is Josh requires separation.” Overall, Id. (quoting disputed. appear there did not
436 ¶ 35, 35, at SD 591 N.W.2d should separate reasons compelling
be of on “the best interest children based siblings. from his shortcomings of the custodial and not the Change in Cir- G. [¶ 51.] Substantial (quot- parent.” Mayer, 397 N.W.2d at cumstances Haak, 128, 130 Haak v. 323 N.W.2d ing (S.D.1982)). custody modify To de
[¶ 52.] hearing, moving the cree a contested after evidence, we on the record 57.] Based [¶ change in party must show substantial its trial court abused determine at Mayer, 397 N.W.2d circumstances. custody to awarding physical discretion custody Here, decree awarded original predominant “The concern is Melinda. agreement pursuant best interest and each case turns child’s However, sought a Melinda parties. parent in determining its facts own in 1996 and custody of Stuart change effectively long can administer more Therefore, Me contested. issue was Mayer, child.” range interests change that a substantial linda must show (citation omitted). at Consid- N.W.2d exists since 1996. circumstances history Melinda’s ering attempting change in court found a [¶ trial 53.] her expres- Stuart from Tom and alienate (1) paren- existed: Stuart’s circumstances are anger for Tom we sion (2) 1994; preference changed tal since parent Tom is best convinced that relationship dif- between Josh “temporal, to handle Stuart’s equipped 1996; not from Tom is home fered moral hold that mental and welfare.” We from school and is gets when Stuart its trial abused discretion occasionally evenings; gone custody awarding physical to Melinda and not with his homework does assist Stuart reverse. we read night; Tom does not previously. like did 2. WHETHER MELINDA Conclusion A DEMONSTRATED CHANGE OF we Although [¶ are satisfied 54.] TO CIRCUMSTANCES JUSTIFY sufficient, change in circumstances was AN IN INCREASE PERMANENT agree we not the decision to do ALIMONY. Tom to change custody of Stuart from alimony, In modifying Melinda was correct. party modification must establish seeking parental claimed [¶ 55.] Stuart’s Lampert v. change circumstances. preference his version his relation (S.D.1986). Lampert, 388 N.W.2d ship highly suspect. are with Josh both appears premised The trial court’s decision The parties were divorced on the with the most available time. lump in 1994. was awarded a Although having more time is available. $27,203 in alimony, sum of restitutional $1 important, can not be alimony permanent rehabilitative justified on that factor to exclusion of alimony support ob which offset child any make others and the trial court did not In ligation to Tom. she was awarded specific findings on the manner that Tom’s alimony, per month rehabilitative $600 substantially work schedule differed from ending beginning June 1996 June two-year train so she could attend alimony As rehabilitative end ing These seven factors are course. ed, expected petitioned per to increase the guidelines and a However, alimony The trial court findings on all seven. manent award. make $1,000 alimony permanent per court’s should be “bal awarded decision methodical,” Fuerstenberg, 1999 month. anced
437 n dren; (3) In ali awarding permanent spent money 61.] than the fami- (4) ly mony, the trial court must consider had to spend; incompetent six was an (5) factors: housekeeper; unwilling was- to cook (6) family; meals for slept late in (1) marriage; of the length morning did not get the kids off to (2) respective earning capacity school; (7) expressed antagonism toward parties; (8). career; in his success refused (3) respective their financial condition to attempt to reconcile these faults and division; property after the attempt marriage. to save the Melinda (4) respective health age, claims not she was for the fault divorce condition; physical but claims that Tom’s extramarital affair in their station life social stand- or caused the divorce. The trial court did not ing; party determine which at fault. was (6) the relative fault in the termination [¶ 66.] Melinda list of submitted a antici- marriage. of the pated, ordinary expenses she would incur , ¶ Jones, Jones v. 1996 SD 542 2 once living apartment she was in her own (citation omitted). 119, 124 N.W.2d $2,668.50 in New The total per York. was 22 parties [¶ 62.] The were married for $32,022 month or annually. submit- ' years. psychologist Tom is licensed and ted his expenses estimated for personal partners is one of two in Northern Plains total, himself, montíiíy 1999. His for Josh n Psychiatric income tax Services. His 1997 $10,464.68 $125,573 .and was an- or return reflects that his total income was nually. $160,221, $13,300 which includes of his sec- [¶ 67.] Based all the and circum- facts ond ex-wife’s income. His return stances, there is no that the showing $109,206. shows total income of in court abused its awarding discretion [¶ Melinda did not outside work permanent $1,000 alimony to Melinda marriage. currently She per month. We affirm. two-year degree has a in travel and tour- ism salesperson is a ticket Conti- [¶ 68.] 3. CHILD AND AP- SUPPORT Airlines, working nental per 35-40 hours PELLATE ATTORNEY’S FEES. week at an has an hour. She annual $8.01 In Issue we reversed the $14,500 $16,000. gross income of physical custody Melinda. divorce, In the Melinda was Therefore, support the award of child $80,685 in awarded property marital Melinda reversed remanded to is also $1,658 $79,027.8 in netting debt Tom was determine, considering all after income $118,391 in awarded marital assets Melinda, available to the amount of child $104,923 $13,468. netting Both debt support pay Melinda shall to Tom. See parties good physical are in condition and Peterson, Peterson v. 2000 SD are able to work. N.W.2d 69. [¶ 65.] Fault of the deterioration marriage Additionally, addressed at time of mo $4,378.33 now tions for an claims award divorce.. constantly attorney blame because she: The motion appellate fees. children; front accompanied belittled him in statement of itemized used when vulgarity legal to the chil- costs incurred and services rendered talking motions, During pendency tax of these Me- debts. The court noted that bankruptcy February linda filed for bankruptcy necessary order Me- [for "in $25,000 Approximately in debt was ability provide to have the a decent linda] ' $15,000 leaving discharged, Melinda with life for herself for Stuart.” student loans and federal and state income Malcolm, no apartment own 365 must obtain her with Malcolm accord (S.D.1985). Factors con- sup- N.W.2d boyfriend. reside To longer attorney’s appellate awarding sidered request for an alimo- port her increase *13 “the owned each property fees are: ny, presented depicting Melinda evidence incomes; liquidity relative the party; their monthly two expenses. provided her She assets; party either of and whether the expenses: if of $2083.50 breakdowns her spent unreasonably the time on increased boyfriend live with she continued to Weekley, 1999 v. SD Weekley the case.” if her own she obtained $2668.50 (citations ¶ 162, 27, 604 26 N.W.2d A of these two exhibits apartment. review omitted). our of upon Based consideration of many expenses that Melinda’s reflects factors, pay ap- Tom shall these identical, regardless whether she of $1,000. attorney’s pellate fees of lives boyfriend with her or alone. lives MILLER, Justice, court further found that Melin- The trial Chief [¶ 71.] KONENKAMP, Justice, concur. monthly pay” “take-home would be da’s around $800.9 AMUNDSON, Justice, in concurs
[¶ 72.] part part. and dissents ma- Both the trial court held, fashion, conclusory in a jority opinion GILBERTSON, Justice, deeming change not a of existed to disqualified, participate. himself did that circumstances $1,000. alimony award of Since support AMUNDSON, (concurring Justice award, however, alimony this this Court part dissenting part). has trial decision and reversed the court’s on respectfully I dissent issue [¶74.] custody to remain in the allowed Stuart two. determination, upon Tom. Based this stated that ob- [¶ 75.] We have often parties “economic circumstances” of alimony, moving tain modification of a are not the same as what the trial court party that in cir- must establish a alimony determining reviewed original cumstances has occurred since the award; therefore, 1000 percent increase Olson, See v. decree was entered. Olson alimony appropriate is case. not this 90, ¶10, 552 N.W.2d 399 SD (citations omitted). The trial court must Despite the fact that Melinda has “changes occurring limit review to since its stability not reached a level financial the time of divorce” and “whether has, like Tom I can not condone such parties economic circumstances alimony upon this large increase in based since award changed such not how record. trial court did detail original award either insufficient or is now alimony it up figure, came with the $1000 ¶ Id., Further, the “trial excessive.” “change it only stated that circum- must its findings support court’s ... con- creating great exist stances need alimony.” on an Eich- clusion award Eichmann, behalf of for additional income [Melinda] mann N.W.2d (S.D.1992)(citations omitted). self-supporting.” which to be Since Melin- custody of going da to obtain case, the present In the trial ordered, originally as the trial court court had ordered Melinda, alimony which the award go but that Melinda circumstances for $800, as It is clear the record that Melinda has income around from with, undergone agreed financial She and this Court estimates her severe difficulties. but $2,083.50 alimony monthly expenses spent ranging all of her rehabilitative award from $2,668.50. eventually expenses clearly bankruptcy. It estimated filed for is also Her troubling depicts monthly monthly by vast here exceed her income amount. Therefore, changed. I was .based have alimony- and remand the
would reverse
award back to the court for reconsid- upon
eration based Court’s decision custody of
allow the Stuart to remain
Tom.
Warren Michael Appellee,
Plaintiff SMITH,
Lori Ann Defendant Appellant.
No. 20996.
Supreme South Dakota. Court
Considered on Briefs Feb.
Decided June