*1 Accordingly, would remand to the trial require
court to the inclusion of both the
income and the foster care children for stamp purposes
food consistent with this
dissent.
I am authorized to state that J.,
MILLER, joins in this dissent. Riter, Jr., Riter,
Robert C. Mayer, Riter, Pierre, Hofer & plaintiff appellee. Finch,
Linda Viken, Lea M. Viken of Pechota, Viken Rapid & City, for defendant appellant. MILLER, Justice. Hugh SOBOLIK, A. Plaintiff Appellee, This is appeal an from an order “primary custody” of a minor child to an father, unwed STONE, Priscilla Pearl sharing arrangement which give would Appellant. equal minor child time with each The trial court further ordered that neither sup- port; they equal- were ordered to ly expenses, except on Briefs Jan. all for the health provid- which was to be Decided March ed the father. We affirm.
FACTS February 25,1986, On Christy Rae Sobo- lik (Christy) was bom to Priscilla Pearl (Stone) (Sobo- lik). now, Stone and Sobolik are not nor been, they ever married to each other. acknowledged paternity and is named on the birth certificate as Christy’s father. publicly Sobolik has also acknowl- edged Christy daughter, accept- as his ed her into his as a provided Subsequent for her welfare. the time of equal shared Christy, alternating time with her physical custody nearly on daily ba- sis. had also been sharing expenses raising her. employed Stone is by the State of South $17,000 approximately Dakota and earns annually. employed plant Sobolik is manager Manufacturing for Century Com- Pierre, pany in South Dakota. There is no evidence in the record his in- *2 (Stone m her appellate claims brief of Christy’s temporal, come. interests mental and $32,000 annually.) earns that Sobolik moral welfare that Sobolik have the “pri- (The mary custody” Christy. court de- relationship Prior to her with fined to mean that he Prue, Joseph Stone was married to Jr. authority had the to make the final deci- (Prue) marriage from which two children regarding Christy’s sions care when the (who approximately ages are parents agree.) were unable to The court 14) were bom. and Prue were sub- Stone custody-sharing plan also established a sequently custody divorced and of the two Christy whereby spend equal children to Stone. was awarded Stone (approximately weekly basis) on a with self-supporting, has no child been received Prue, support each and has obli- never been gation imposed; it ADC. was or- parties dered that to equally divorce, to col- After returned in the and maintenance of lege, degree, to obtained a and moved to extent of their financial abili- Pierre where she since resided and Sobolik worked for Job Services. It was in Pierre health insurance Christy, she met Sobolik became parties both were to share medical ex- to him. penses such insurance. relationship parties between the had deteriorated at the time was bom.
Shortly Christy’s Stone and her ISSUE approxi- moved in Sobolik for WHETHER THE TRIAL COURT mately six weeks. then decided ABUSED ITS she needed to move out of the DISCRETION IN house agreed. time, parties Sobolik At that AWARDING PRIMARY CUSTODY FATHER, physi- could not who should have the OF CHILD SUBJECT cal custody The trial court ATO CUSTODY AR- SHARING found physically prevented RANGEMENT BETWEEN PAR- taking Christy Stone from to live with ENTS. agreed joint custody until she to some ar- argues that court rangement. agreed Eventually, granting in abused its discretion Sobolik exchanged physically claiming primary Christy, daily. between routine them This unusual supports in the is evidence record which continued until the ruled on Sobolik’s physical had used force and Sobolik action, sought custody Christy, which against past. intimidation in rights visitation reasonable weight of the evi Stone. Stone had counterclaimed for cus- respon more dence indicates that she is the tody support subject and child to reason- party. sible rights able in visitation Sobolik.1 part: in 30-27-19 SDCL Generally, appears that the trial of a minor ... (1) found that both were hardwork- guided judge the court is to be ing people, jobs to their and fami- dedicated following considerations: lies; (2) both had demonstrated (1) By what to be (3) Christy; love and concern both respect to its of the child (4) ability her; and the financial to care for moral wel- temporal and its mental and fit and fare; ... ulti- custody. adversely (2) claim- As between
mately charac- found that had the neither ing the ... ter tended which over the oth- given preference him more make stable influence custody. determining life, er in in the best it was appellate trial counsel. counsel was not her this, cases such the trial court must made him a more stable influence in give primary consideration to the child’s Christy’s life. securely Sobolik was em- welfare. best interests and Pribbenow v. ployed appeared loving, be a con- Van cerned father. Testimony revealed he was Garnos, (S.D. Garnos v. religious well-kept and had a home. 1985); Hanks, Hanks v. Although we have serious reservations *3 (S.D.1980) remand 344 N.W.2d after aff'd arrangement (i.e. the custodial (S.D.1983); Hoaas, 75 Hoaas v. S.D. exchange weekly child), of especially when (1953). our review of future, looking into the we cannot find that the pertaining trial court’s decision to child the trial court abused its discretion in de- custody, judg we cannot substitute our ciding that in the father the trial ment for that of court unless there the was in of Christy’s tem- has been a clear abuse of discretion. Pren mental, poral, and moral welfare.2 Gar- Prentice, tice v. nos, supra. According to the court’s Hanks, supra. ment, final decisions are to shared. It is argues Stone further that the best inter- only the when do not ests of ifmet both Sobolik makes the Finally, final decision. were equally vested with authori- always by is reviewable However, should be noted that at the event appropriate the circumstances solely trial court requested pri- level warrant. mary custody (subject sharing arrangement). never, She un- II ISSSUE appeal, requested til this sharing. with custody WHETHER THE TRIAL COURT’S DECI- A review of record that the reveals SION DENY CHILD SPECIFIC findings trial court’s factual and decisions SUPPORT PAYMENTS WAS ERRO- supported by the evidence there NEOUS. was During no of abuse discretion. years Sobolik, was involved with should have exercised its discretion and prior that, and for years some she was awarded her child to insure a sta experiencing uncertainty in her life. Dur- ble, living consistent of standard for ing years, a time of less frame than four during at no engaged to three was men different support pay trial did Stone ask for child engagements and all three subse- she, from ments Sobolik. Nor did in her quently broken. One of her former fiances of fact conclusions permitted was to live in her basement law, request that Sobolik be apartment to, prior during, and pay fact, support. proposed con Sobolik, engagement to and even while she clusion of as law No. 9 stated follows: ap- second It fiance. pears may specific two obligation is night been left over alone imposed occasion this court. assisted Stone with the disci- the costs maintenance.
pline of the older child. There is no doubt for shall obtain for Stone cares children and does health for them; her best properly how- Rae with costs ever, the equally by trial court found that health insurance to be shared the character parties. argues
2. Stone
public acknowledgment
SDCL 25-5-10
Sobolik’s
illegitimate
the mother of an
child is
accepting
minor
through
his
her into his
custody prior
entitled to its
ing
child,
to a
determin
legitimate
treating
she
her as a
contrary.
disagree.
to the
We
See Pribbe
legitimate
the time of her
deemed
now v. Van
Appellant
fact and conclusions of law are found at
pages 28-34 of the settled record. Per thereof, appellant
Conclusion of Law 3 Stone concedes that both are fit Douglas BEYER K. and Norma J. care, custo- Beyer, Jointly Severally, dy, and control of infant Conclu- Appellants, Plaintiffs and sions of Law and thereof reflect a mother, primary custody CORDELL, Alvin F. appellant, with Conclusion of 6 advo- Law Appellee. cating arrange- custody sharing a child brief, appellant ment. As I read language:
am struck with this In order to assure that the child will on Briefs enjoy continue to love Jan. benefits and care of March legal authority should not vest total one Rather encourage collaboration the or-
derly discharge duties with