Case Information
*1 #25792-a-SLZ
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
* * * *
JEREMIAH S. SIMUNEK, Plaintiff and Appellee,
v. ASHLEY (SIMUNEK) AUWERTER, Defendant and Appellant.
* * * *
APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY, SOUTH DAKOTA * * * *
THE HONORABLE A. PETER FULLER
Judge
* * * *
TERRI L. WILLIAMS of
Gunderson, Palmer, Nelson &
Ashmore LLP
Rapid City, South Dakota Attorneys for defendant
and appellant.
DEBRA D. WATSON
Rapid City, South Dakota Attorneys for plaintiff
and appellee. * * * *
CONSIDERED ON BRIEFS ON AUGUST 22, 2011 OPINION FILED 09/07/11 *2 ZINTER, Justice
[¶1.] Ashley Auwerter (Mother) and Jeremiah Simunek (Father) married, had C.S.S. (Child), and later divorced. Mother and Father agreed to share legal custody, with Mother having primary physical custody. Shortly before Child entered kindergarten, Father moved to obtain primary physical custody. The circuit court granted Father’s motion and Mother appeals. We affirm because the court’s findings and conclusions reflect a balanced and systematic application of the relevant factors governing child custody.
Facts and Procedural History
[¶2.] After two years of marriage, Mother and Father separated. Mother obtained primary physical custody of Child after the separation. Father subsequently filed for a divorce. Father proposed that Mother remain the primary physical custodian of Child and that he be allowed liberal parenting time. Mother and Father agreed to this parenting plan, which was incorporated in the divorce decree.
[¶3.] Shortly after the separation, Father began dating Britni Mendel (Stepmother). Child met Stepmother one month after Father and Mother separated and before the divorce. Father and Stepmother later married and had a son (Half- Brother). Father and Stepmother live on Father’s family’s ranch. Father works for his family’s construction and hotel businesses. He has enrolled Child in activities in the Hot Springs area.
[¶4.] Mother owns a home in Rapid City and is employed by the City of Rapid City. She has an associate’s degree in business as well as a bachelor’s degree *3 in communication. Mother has enrolled Child in various activities in the Rapid City area.
[¶5.] Before Child was to begin kindergarten, Father moved to change primary physical custody. The circuit court ordered a child custody evaluation. The evaluator recommended a shared parenting plan. Mother requested a second child custody evaluation. The second evaluator also recommended a shared parenting plan, but suggested that Father have primary physical custody of Child when Child began kindergarten. Based upon these evaluations, Mother and Father entered into a second shared parenting agreement. As a part of this plan, Mother and Father agreed that Father would obtain primary physical custody when Child started kindergarten. Child was subsequently enrolled in kindergarten in Hot Springs.
[¶6.] When the time for kindergarten neared, Mother moved to modify the parenting plan and obtain another child custody evaluation. The court ordered another child custody evaluation. The evaluator noted that both parents had much to offer Child, but opined that it was in Child’s best interests that Child be placed in Mother’s primary physical custody.
[¶7.] Trial was held in August of 2010. After entry of findings and conclusions regarding the factors guiding child custody determinations, the court awarded Father primary physical custody. Mother appeals claiming that the circuit court abused its discretion in awarding Father primary physical custody.
Decision
[¶8.]
We review child custody decisions under the abuse of discretion
standard of review.
Fuerstenberg v. Fuerstenberg
,
[¶9.]
The circuit court’s review of a parent’s request to change child custody
is governed by the best interests of the child, considering the child’s temporal,
mental, and moral welfare. SDCL 25-4-45;
Fuerstenberg
,
[¶10.]
The circuit court applied the
Fuerstenberg
factors, observing that most
of the factors favored neither parent. The court, however, noted that Father’s
physical custody would avoid separating siblings. Generally, siblings and half-
siblings “should not be separated absent compelling circumstances.”
Id.
¶ 32, 591
N.W.2d at 809 (citing
Mayer v. Mayer
,
circumstances and instead considered the separation of siblings to be controlling as a matter of law. We disagree. Concededly, the court found that separating Child and Half-Brother favored Father and that the separation of siblings was one of the few factors that was not equal for Mother and Father. But the court did not indicate that this factor was controlling to the exclusion of all others. The court’s review of the relevant factors spans several pages of trial transcript. The court did not disregard all other factors: it made findings on each relevant factor. The court took a balanced and systematic approach in applying the child custody factors. Mother also challenges the court’s finding that Father has the ability to provide Child with guidance and good modeling behavior. She specifically *6 contends that Father’s history of alcohol use and Father’s driving record make him an unfit parent.
[¶13.] Father had been convicted of three reckless driving offenses, one careless driving offense, and nine speeding violations. Three of the convictions resulted from arrests for driving while under the influence of alcohol. Child was in Father’s care during two of the three arrests. On one occasion, Child was in the car. One arrest occurred when Father was driving 104 miles per hour in a seventy-mile- per-hour zone. A mental health and chemical dependency counselor evaluated
Father’s history with alcohol. The counselor’s diagnosis was “alcohol abuse.” Nevertheless, the counselor opined that Father had changed his behavior and matured, noting that the prior incidents occurred when Father was in his early twenties. The court heard the evidence regarding Father’s history of alcohol use
and driving record, including live testimony from the alcohol counselor. The court specifically addressed both issues, finding that Father had changed his behavior and was a fit parent. Considering the court’s first-hand opportunity to observe the counselor testify on these issues, we find no clear error in the court’s related findings.*
* Mother argues that the alcohol counselor ignored an eight-month-old arrest when opining that Father’s alcohol abuse was a problem that he had outgrown. However, the alcohol counselor testified live at trial and acknowledged the most-recent arrest. *7 This case involved conflicting child custody evaluations. One child
custody evaluator recommended that Father have primary physical custody when
Child started kindergarten. Another child custody evaluator recommended that
Mother have primary physical custody. It is within the circuit court’s discretion to
choose between conflicting experts.
See Wise v. Brooks Constr. Servs.,
participate.