Case Information
*1 #27237-a-GAS
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
* * * *
TRAVIS JAMES VAN DUYSEN, Plaintiff and Appellant,
v. JENNIFER MARIE VAN DUYSEN, Defendant and Appellee.
* * * *
APPEAL FROM THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT BON HOMME COUNTY, SOUTH DAKOTA * * * *
THE HONORABLE GLEN W. ENG
Judge
* * * *
SCOTT R. SWIER
MICHAEL A. HENDERSON
BROOKE SWIER SCHLOSS of
Swier Law Firm, Prof. LLC
Avon, South Dakota Attorneys for plaintiff
and appellant.
WANDA HOWEY-FOX of
Harmelink, Fox & Ravnsborg
Law Office
Yankton, South Dakota Attorneys for defendant
and appellee. * * * *
CONSIDERED ON BRIEFS ON AUGUST 31, 2015 OPINION FILED 11/04/15 *2 SEVERSON, Justice
[¶1.] Trаvis Van Duysen appeals the circuit court’s grant of primary physical custody of his two children to their mother Jennifer Van Duysen. Travis asserts that the court abused its discretion when it relied on findings that were unsupported by the evidence. We affirm.
Background Jennifer and Travis Van Duysen were married in 2007. They have two
minor children together, a daughter and a son. Their daughter was born in 2005. Jennifer and the daughter lived with Jennifer’s parents for some time until Jennifer and Travis married. Their son was born in 2010. In 2011, Travis filed for divorce. Shortly before Travis filed for divorce, Jennifer and the children left the marital home. The details of the argument precipitating the sеparation were disputed at trial. Jennifer alleges that Travis held her up by the neck; Travis denied this but admitted he grabbed her sweatshirt and spun her around to talk to him. Eventually, the parties agreed to divorсe in 2014 on the grounds of irreconcilable differences. A two-day court trial was held on June 30 and July 1, 2014. The issues
before the court were custody, visitation, child support, attorney fees, and alimony. A home study еvaluation recommended granting Travis primary physical custody. The evaluators 1 found Travis to be the favored parent based on the fitness and harmful parental misconduct categories of their evaluation. They found Jennifer to 1. The home study evaluation was done by two evaluators. The “lead” evaluator testified at trial.
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be the favored parent in the category of primary carеtaker. Finally, the evaluators determined that both parents were equally able to provide stability, noted that child preference was not applicable, and recommended that the children remain together. The court granted Jennifer primary physical custody. Travis appeals. The sole issue on appeal is whether the court abused its discretion in awarding primary physical custody of the children to Jennifer. Travis contends that the court based its decision on findings that were not supported by evidence, thereby abusing its discretion.
Standard of Review We review child custody decisions under the abuse оf discretion
standard.
Pietzrak v. Schroeder
,
Analysis After the two-day trial, the circuit court noted that the home study
evaluation mirrored the
Fuerstenberg
factors, and it discussed each finding,
explaining whether it agreed or disagreed based on “the evidenсe, the credibility,
[and] the testimony[.]”
See Fuerstenberg v. Fuerstenberg
,
issue of miscommunication. On one of Travis’s visitation days, he was late to pick up the children. He failed to inform Jennifer that he was running late. Beсause Jennifer needed to get to work, she left the children at her parents’ house. However, she did not tell Travis where they were until an hour and a half after his scheduled pick-up time. Travis waited, but by the time she called he had already contacted the police, who escorted him to Jennifer’s parents’ house to get the children. The court expressed concern that the evaluatоrs’ recommendation
based on these two incidents was a “simplistic view of the facts” and that the incidents did not directly address how the children were cared for or how they interacted with peoрle. The court noted that Jennifer’s behavior was not ideal, but it also stated that it was concerned with the incidents being used to “tip the scales” in favor of Travis. In its findings of fact, the court stated that it did not plаce great *5 weight on those two incidents that occurred during the parties’ three-year divorce process. Ultimately, the court determined that it was in the best interests of
the children to remain with Jennifer. 2 It discussed the facts relevant to fitness, stability, primary caretaker, child’s preference, harmful parental misconduct, and separation of siblings. It noted that the daughter, the eldest child, was doing very well in school and that she was receiving counseling for her benefit. It further found that the counselor had no concerns about Jennifer’s parenting. The counselor had not seen any injuries to the daughter or received any negative comments from her about Jennifer. This contradicted the home study’s reiteration of negative comments the daughter made to the evaluators when they talked to her аt Travis’s home. As to the mental and physical health of the parties, the court stated
that it was “disregarding” the evaluators’ finding that Travis was the favored parent in this category. The court noted that the еvaluators based their finding, in part, on other people’s observations that the children acted differently when their father would come to get them depending on whether Jennifer was present or not. The court believed that this indicated tension between the parents rather than the fact that there is a problem with Jennifer.
2.
Travis acknowledges that the circuit court is not required to follow the home
study recommendation and states that he is not appealing the court’s
rejection of the evaluation.
See Maxner v. Maxner
,
[¶10.] The court found that the favoring of Travis by the evaluators in the category of harmful рarental misconduct also went back to the two incidents discussed above. The court explained that despite those incidents, which did not reflect ideal parenting, placement of the сhildren in either home would not cause injury, damage, or destruction to the children. Instead, the court stated that it was placing great weight on Jennifer being the primary caregiver and the fact that the children need stability.
[¶11.] As part of its findings of fact, the court expressed concern that Travis’s income taxes, which had been submitted into evidence, reflected some “questionable” deductions. 3 When annоuncing its decision at the end of the trial, the court explained that it looks to income tax returns “to see whether there’s truthfulness to people.” The court also issued findings of fact that it was conсerned about Travis’s truthfulness because of his tax returns. Finally, the court made 3. In its findings, the court found:
The Plaintiff’s 2011 federal tax return reflects an expense of $11,255.00 for gas, fuel and oil;
The Plaintiff also claims 100% depreсiation for his vehicles; In this instance, the Plaintiff’s tax returns reflect that there is income from a farming operation as well [as] deductions that are questionable for purposes of deduction; The Plаintiff’s tax returns make this [c]ourt concerned about the Plai[n]tiff’s truthfulness;
The “IRS apparently does not believe that people cheat on their taxes;” and
Most people believe that they have a 99% chance of not getting caught.
findings related to the IRS. Travis contends that the court’s findings based upon Travis’s 2011 tax return are clearly erroneous because there is no evidence that he сheated on his tax returns. Further, Travis claims that these erroneous findings led the court to improperly question his credibility, and therefore, the court abused its discretion.
[¶12.]
As we have stated before, “[t]he cirсuit court’s ‘findings of fact must be
supported by the evidence and conclusions of law must in turn be supported by the
findings of fact.’”
In re J.D.M.C.
,
[¶13.]
Nothing in the record indicates whether the deduсtions are actually
questionable or that the depreciation is not accurate or that the IRS believes people
cheat on taxes. Further, there was absolutely nothing to suggest that 99% оf all
people believe that they will not get caught if they cheat on taxes. Although the
court had no evidentiary basis on this record to make these findings, this “inclusion
of certain unsupported findings . . . is not sufficient cause for reversing a judgment .
. . [that] is otherwise sufficiently supported by findings of fact based upon the
evidence.”
See Mokrejs v. Mokrejs
,
[¶14.] Both parties have requested attorney’s fees. We deny their requests. [¶15.] GILBERTSON, Chief Justice, and ZINTER, WILBUR, and KERN, Justices, concur.