*1 leaving the rule the trial courts and the Bar harsh, If the utter confusion. rule is too adopting
let us a new or
amended rule. aspects, all other concur with the
majority opinion. WILLIAMS,
Sandy K. Plaintiff Appellee, WILLIAMS,
Barney D. Defendant Appellant.
No. 15940.
Supreme of South Dakota.
Considered March on Briefs 1988.
Decided June 1988. Gunderson,
Robert W. Gunderson Far- rar, DeMersseman, Rapid City, Aldrich & plaintiff appellee. Bantz, Harvey Gosch, A. Oliver Crem- er, Oliver, Aberdeen, Peterson & for de- fendant appellant. *2 increase,
MILLER, continued per the Justice. month $150 payment previously by ordered the circuit appeal from a circuit court is an This again court and noted if Father be- change custody motion denying a to order delinquent, proceed came Mother could to Concluding there children. of minor Withholding.” an “Order of obtain Al- trial evidence to allow the insufficient was though specif- the record silent as to the a meaningful make determination court to ics, appear it does that Father continued to children, we interests the as to the best delinquent proceedings and proceed- be other were and remand for further reverse conducted, ings. testimony since his the proceedings the current he testified that FACTS being support pay- was from his withheld (Mother) Barney Sandy K. Williams and employer. check (Father) Sep- on Williams were married D. 1987, August, filed a motion Father 24, 1977. Bom to that union tember custody seeking children. In affida- the ages are daughters, present two whose motion, regarding parties the made vits the terminat- marriage nine and ten. The against each allegations various serious divorce judgment decree of ed a other. 20, de- January This divorce dated 1983. evidentiary The trial court conducted cree, parties which determined that both 27, hearing August 1987. on the motion on approved agreement of parents, were fit case-in-chief, During and resi- he testified parties “physical the wherein the given and, the to through attorney, dential care” of children was conducted an parental parental Mother “with access examination Mother. The adverse hearing” to Father was rights of Father.1 boyfriend was a other witness former pay monthly support to required evidence, close Mother. At the of Father’s ($75 per per month $150 the amount counsel, “reserving right the Mother’s child). witnesses,” for dismissal. some moved call granted motion was and the That failed, divorce, Subsequent to Father denying a later entered written order court sup- neglected or refused the child allowing Father change of port required of him. After an order to October, 1984, appeal hearing rights. visitation This “reasonable” show cause arrears, him to court found be followed. $2800 contempt him in that the
held and ordered obligation be support $175 increased DECISION monthly, apply with towards $25 such too often the case actions As is time, arrearages. At some under later this, parties as concentrated 25-7A-22, sought an in- Mother SDCL they demeaning each other’s conduct than Department of crease in from the issue, namely addressing the real (DSS). hearing did Social Services After officer, of the children. As will hearing on best interests request, the DSS later, they court placed the trial requested alluded to December denied the decree, frequently in an other specified would consult each 1. In the several visos, including get mutually general attempt agree regarding that: father "extreme- would rights”; ly health, welfare, education, fa- development reasonable liberal visitation nights during ther would have visitation two children; they attempt or con- would not hours; during evening week father each estrange any conduct or action done alternating have visitation on weekends would they party; would en- from the other children holidays; receive con- and various father should courage respect affection in the and foster (which he six weeks’ summer visitation tinuous keep parents; they each both would exercised); neither would move out never other as to illness or other advised serious sixty days giving City of Aberdeen without first children; development respect major and if written notice certified mail advance keep advised of each would each other agree- voluntary parties could reach a address and residence and business other’s concerning change matter of residence the ment on vacation. whereabouts court; submitted to would be Nonetheless, position judge. attempting in the ascertain since Father has parent “the maintained his employment least worst.” with one em- ployer purchased and has and remodeled a clearly flawed. Mother’s house, provide perhaps he could the more parent fitness Her character and stable environment for children. obviously following: tarnished she Unfortunately, testimony lived with had sexual relation- there was no has and/or *3 ships with a number men while the offered from the or from disinter- children home; two persons relating well-being children were in of these ested to the (one boyfriends were convicted felons the children or their best interests. No dealing teachers, burglary drugs); and another for in was from testimony any offered boyfriends workers, her, of her live-in babysitters, personnel one abused social presence Boys in and yet grandpar- of the Girls Club or the often homestudy continued to reside with him after ents. There was no conducted she abuse; by any agency. or social abusing she has admitted to DSS other children, including kicking and them on one obviously The frustrated blackening eyes occasion both one of the record, the state as evidenced daughters; neglected she has the children hearing, its statement at the close leaving unattended, by occasionally them follows: ill; they while heavily even were she relied Well, here’s in my the situation mind: upon Boys help and Girls to Club raise parents both have exhibited con- immoral having go daily them there duct. school, after even to the extent of some- Now, I equating to don’t have start eating there; times meals has she had a higher immorality whose than the oth- existence, having very transient lived in ers—that’s sometimes hard to do—can in twelve different residences four cities you person immoral one or be with does Aberdeen, Falls, including Chelsea, Sioux person more take than one to be im- currently City, in Hill and South Dakota. Now, got, apparently moral with? she’s token, By the same Father’s conduct has numbers, than defendant. exemplary. Among far from been other Starting premise on that they’re both pay he things, support. did not child Even immoral, stated, I think pretty that’s well accept argument we to his that Moth- probably children should tak- agreed (prior divorce) er had to home, put away en in a foster but kids, support get in order waive to dependency no neglect there’s condoned, cannot be excused or ceeding front of the Court so can’t morally, manner, or in legally espe- got put do that. So I’ve cially view of the record before us. Fur- immoral way go. home either So ther, just remedy as Mother had a to collect then, premise, go on that we to the other support, remedy he had have it mod- area, is, which she moved sixteen times ified, which never attempted. he He at- many years. in so tempts delinquencies by to excuse his vir- equate something But I have to that with exercised; tue of extensive visitation he else; is that economics ahas lot however, period that visitation is identical go you why you to do with where provided was considered and been, stay. testimony has unre- it’s original for in the decree of divorce. he pay support, futed that didn’t his child problems had
Additionally, Father himself
a “live-
so she was
financial
friend,
in” girl
plans marry.
really
he now
two
So I
who
children.
don’t where
see
longer
change.
The fact
no
lives in
that she
there’s that much
There's been
(and
showing except
home
will not until
their
no
mar-
for this
incident
one
riage) does
eyes,
little minimize
indiscre-
where the children have two black
clearly
tion.
that she
established
she’s admitted to that
there’s
but
nothing else;
out shortly
they’re
jeopar-
moved
before the modification
been
hearing in
dy,
order make him
look better to
or that
would be in
hands
better
So I feel that there
questionable
father.
has
dren
character,
to men of
to-
presented
not been substantial evidence
wit: two convicted felons and one physical
that I
to this court
custo-
Further, despite
abuser.
the trial court’s
dy-
comments, we must add that there is noth-
ing in
support
the record to
the fact that
irrespective
agree
of whether we
or dis-
agree
with the trial court’s
unexcused failure to
characterization
conduct,
“immoral”
we believe it
in any manner influenced Mother’s
point, namely
missed the
truly
what is
lifestyle
transient
or other conduct.
the best interests
the children.
Counsel,
this,
in cases such as
We must
prem
start from the basic
obligation
have an
by appropri
establish
ise that when a divorce decree is based on
ate means that the best interests of the
agreement
parties,
the issue of
children are
placing
served
them with
custody may
subsequent
be considered in a
Although
their client.
presenting
prima
*4
hearing
modification
without the
case,
facie
Father’s counsel did
fully
change
“substantial
of circumstances” con
obligation
fulfill that
because
principal
Hansen,
straints. Hansen v.
327 N.W.2d
reliance was on the testimony
par
(S.D.1982);
Kolb,
47
324
Kolb v.
N.W.2d
However,
important cases,
ties.
in these
(S.D.1982). Thus,
279
party seeking
lawyers
when trial
fail to fulfill this obli
modification must show that the best inter
courts,
gation,
parens
in their role of
ests and welfare of
requires
a
patriae
custody.
Flint,
Flint v.
334
must
insist that
(S.D.1983); Kolb,
N.W.2d 680
swpra.
In more be done. As
in Jasper:
stated
“It is
review,
our
we must ascertain whether the
the trial
duty
court’s
to see that the chil
clearly
trial court has
abused its discretion.
protected
dren are
every
at
turn ... The
Flint,
Hansen,
Kolb,
supra;
supra;
su
parents’ personal wishes and desires must
pra;
However,
SDCL 25-4-45.
the trial
yield to
discharge
what
court’s exercise of discretion is not uncon
duty regards
its
in
as
children’s best
trolled and must have a sound and substan
(citations
terest.”
Considering the state of
it can
assured that the
children are not
record, we conclude that Father has met
remain,
placed,
surroundings
or do not
prima
proof
facie burden of
and there
seriously
well-being.
detrimental
to their
fore the
trial court abused its discretion
Garnos,
concluding that
See
v.
376
the children’s best interests
Garnos
N.W.2d 571
required
(S.D.1985);
Karim,
remain with Mother.
v.
Karim
290 N.W.2d
relationship
if
(S.D.1980).
addition,
Even
with his fian
479
may,
the court
immoral,
cee is characterized as
immoral
discretion,
interrogate
in its
call and
wit
per
se does not make him unfit to
nesses. Haugen
Haugen,
v.
82 Wis.2d
custody. Spaulding
Spaulding,
have
v.
(1978);
can we condone Mother’s concur. provides: may, provides: may 2. SDCL 19-14-26 “The court SDCL 19-14-27 “The court inter- witnesses, suggestion party, rogate its own motion or at the of a whether itself or called witnesses, party. power sparingly call and all are entitled to This shall be used justice require.” cross-examine witnesses thus called.” when the interests of SABERS, J., opinions general concurs in result. behavior adults and page page private opinion after on vari HENDERSON, J., concurs in result ous conduct and how it affects children and part part. and dissents multiple relationships people. Reflected result). SABERS, (concurring in Justice personal opinions further of the brief on, cascading waterfall, page writer like majority concur in the result of the page, spilling out the brief writer’s opinion spirit in the of Justice private opinions on love and affection and writing. special Henderson’s the relative merits of the ex-wife’s conduct relationships. However, in her there is a HENDERSON, (concurring Justice in re- startling lack of authorities up to back sult in part; dissenting part). opinions, private although these the brief are re- fully understood that we writer does cite important some of the manding for a further reexamination Supreme South Dakota Court decisions in judge. the circuit court volving domestic generally. relations In This case decided without the Moth- terspersed private opinions philos present er having opportunity ever ophy, the brief writer exhorts this Court to evidence, grant- her due trial court’s guidelines establish for the trial court in ing of Mother’s motion to dismiss. Obvi- “determining the future about the facts of ously, given the Mother should now be case, in applying this the same to the opportunity allegations to refute the made laws of the state of South Dakota.” The against present her her ex-husband and same writer brief advises us to instruct the *5 Therefore, her entire side this case. the of concerning trial court other matters con majority’s opinion is prematurely slanted duct of the and to remind the trial against It is rather court of its duties previous Mother. axiomatic that as well as the important decisions of both sides of a case be heard this Court. before facts Concededly, be found. Moth- all, appellant’s All in quite is brief un- er’s dismiss unilaterally motion to which spiced irrelevancies, usual and quite estopped presenting her from her entire eyes unlike brief these have ever be- court, showing. evidentiary The trial example: held. Another Adolescents hav- holding proceedings, further base ing experience, 1900, intercourse 1650 to its body decision on whole of the evi- 1940, 1900 to 1940 to 1970’s. One senses dence, develops. as it We are not fact spirit that the is to brief teach this finders. about “birds and bees” from through might 1650 1988 we that better pages single-spaced, type note 30 of adjudicate upon appeal before us. At- appended written appel material to the appellant’s Appendices tached brief are pertaining sexuality, lant’s brief to human A, B, part and C. These not a orientation, coitus, development sexual A, Appendix settled record. a treatise on behavior, emerging heterosexual sexuality, expresses: human “1650 to 1900 sexuality. trends in words. Thousands of It is marriage clear intercourse before reading. Graphs. plethora Hours of A of is not an invention of the twentieth centu- short, I note preoccupation charts. In of course, ry.” recognize Of this as a star- general subject brief writer with tling history revelation of American sex, to educate apparently the members society, not to mention generally. mankind this Court all manner of sexu human ality judge (apparently) they Lo, would many years, these I have written on enlightened this case subject from a more view.* alimony, believing need and Further ability noted an infusion said brief pay were critical considera- writer psychological opinions My support, and social tions. views on child both as a * article, (but escapes It people me how the ADOLESCENT BLACK MALES AND LOVE JAPAN, ISRAEL, COLOMBIA, Caucasian). INTERCOURSE: involved in this case are Charts on briefs, college covered in extenso in the is relevant to behavior of sexual students are included inquiry. captioned, (but litigants students). our college Another article is are not
395
appellate
stantial
judge
and later an
and material
of circum-
former
Justice,
alimony belief:
paralleled my basic
stances since the decree of divorce was
entered,
(2)
con-
needs of
must be
the welfare
and best
pay
ability
require
interests of the
sidered as well
Here,
ability
being sought.
had the
needs.
Father
modification
those
support.
child
pay
refused to
pay,
but
Hansen,
47,
(S.D.
327
Hansen v.
N.W.2d
50
$2,800
1984,
in arrears
In
he was
October
1982) (Henderson, J.,
result)
concurring in
He
support payments.
not
child
would
(quoting Engels Engels, 297
v.
N.W.2d
court,
equitable
in its
pay
The trial
same.
(S.D.1980)).
Sneesby
See also
v.
him to
power,
$175
ordered
Davis,
(S.D.1981);
[T]he rights
custodial has the burden
proving by preponderance of the evi- (1) a sub-
dence that there has been