*1 explain can or defend on an with ineffectiveness guilty a not verdict instances even strategies, enough actions and and thus charge may not be false asserted relevant.”) complete of occurred is picture more what prior accusations to make the omitted). we (citations Consequently, After review of Id. our available review. the trial assis- record, say cannot to Dillon’s ineffective decline address disallowing in its discretion claims at this time. court abused tance the evidence. 4. and Unusual Punishment Cruel Assistance of Counsel 3. Ineffective we remand for resen- 29.] Because [¶ inef- argues he received 27.] Dillon [¶ cruel tencing, we not address Dillon’s will trial in that counsel fective assistance argument. punishment and unusual (1) pre- attorney: unprepared his in part, Affirmed reversed authority and failed cite hearings trial part, and remanded. (2) motions; stipulated pretrial
his by hearsay admission of statements MILLER, Justice, Chief and 31.] [¶ victims, play then child failed AMUNDSON, SABERS, (3) failed videotapes questioning; Justices, GILBERTSON, concur. examine the doctor who properly cross (4) victims; failed child examined the jeopardy claim
raise double (5) court; made
circuit offers insufficient (6) proof experts; his own regarding inexperi-
admitted in voir dire he was (7)
enced;
testimony on
damaging
elicited
ac-
inappropriately
cross-examination
ing. State v. (S.D. 1994) (citations omitted). While rule, Dil many
there are reasons for this purpose: illustrate its main
lon’s claims proceedings, attorneys charged
habeas Appellate counsel not trial counsel.
R. of Richard Rhinehart Scott Rhinehart Associates, IA, Attorneys City, & Sioux appellant. plaintiff and Reinschmidt, Colby obtaining degree, M. Less- stayed David L. Renee home provide Denne, full-time childcare. & Munger, mann of Reinschmidt IA, Attorney for defendant and City, Sioux Jorge accept- November appellee. position Gateway Computer ed
Company, couple and the moved to Dakota Dunes, position pro- South Dakota. This KONENKAMP, Justice. salary vided a substantial increase. appeal, divorce the father this stay Jorgito. continued to at home with challenges award his son to words, In her accepted the “woman’s mother, circuit alleging that the role She *4 house.” “took care the adequately the guiding failed to consider majority attending of Jorgito, his feed- principles Fuerstenberg Fuerstenberg, in ing, cleaning, dressing, for shopping 35, 591 N.W.2d 798. From our him, buying clothes for for [and] food him.” record, however, it appar review of brother, Jorge’s who couple lived with the carefully ent that circuit court bal time, a for short her substantiated rendi- in its anced these considerations decision. part.1 Jorge tion the most recalled review, By appeals spent great notice of the mother that he also a his deal of free playing Jorgito. time with and general alimony, educating the denial of rehabilita recollection, disputed Jorge’s Renee insist- attorney’s tive fees. af alimony, ing Jorge worked hours long firm on all issues because the evidence spent during little time with his son either supports rulings, and we find no abuse week or on the weekends. of discretion.
[¶ 4.] After their move to South Dako- ta, began emerge. marital difficulties A. Renee, According to Jorge was either Jorge Zepeda [¶ and Leslie Renee 2.] her, “controlling” ignored he choosing or (Renee) they in 1986 while were both met computer to “talk to or rather his the TV University. students at Louisiana State part, Jorge [her].” than For became They married November 1987. suspicious In- of Renee’s on the activities eventually degrees. Both earned bachelor’s at installed ternet while he was work. He Jorge graduated degree from LSU with computer home to co- software on their in engineering. electrical Renee received vertly keystrokes. monitor her What he degree University her from Ala- point in discovered would become a focal bama, accumulating college credit at after In proceedings. the divorce Renee completing various institutions. Before July admitted that from late 1999 until degree, gave couple’s her she birth to the in year sometime October of that she en- child, only Jorgito, born November 1996. in erotic” on In- gaged “highly discourse Jorgito “during Renee day- cared different ternet “chatrooms” with two [Jorge] oc- time when was at work.” After adult men.2 These communications gave contradictory parties testimony any nied 1. The conversations with minors oc- brief, usually evening about Jorge who cooked in the curred. Plaintiff's In his cites to housekeeping aptitudes. Renee's simply Exhibit 24. a list email This ages. addresses and Renee testified brief, again Jorge alleged 2. At trial and in his did males under 18 when encounter some engaged cybersex "explicit that Renee in in- dealing frequenting chat rooms with "classic ternet conversations" with males under the games.” board age Jorge failed to evidence introduce allegation. at trial Renee this de- estimate, perhaps proceedings “once of the divorce curred, in her “it kind explained required by employment. her She unless week.”3 in- finding enjoyable that someone was accept- February Jorge [¶ infidelity her was not But in me.” terest Computer Corpora- position ed a with Dell Internet. Renee had sexu- to the confined Austin, in includ- tion Texas. His benefits times with another several al relations $10,000 year pay increase and a per ed occasion, one after July On man 1999.4 parties more flexible schedule. wine, engaged the two sharing bottle of modify Jorge’s Every agreed visitation. Jorge’s intercourse Renee sexual Wednesday Jorge to South other flew back Jorgito sleeping. apartment while kept Jorgito Wednesday Dakota and Sep- for divorce Jorge sued way through Sunday. Renee in no hin- cause, precipitating 1999. As tember Jorge’s ability to dered visit his son. along with sexual affair he blamed Renee’s He be- “cybersex” her conversations. trial Au- 8.] The divorce was held had be- that Renee’s Internet use lieved computer log-on offered gust answer, come addiction. *5 August through records from October Jorge Both requested also a divorce. They showed substantial custody Jorgi- of sought temporary Renee in amount Internet use the household. couple hearing, Before interim the to. the example, computer logged For the was Dr. Matt by psychologist, evaluated was up day August for hours a in seven opined that “while Stricherz Stricherz. indicate, do 1999. These records not how- marriage,” Renee’s appropriate not for ever, which member the household used an use not addiction. Stri- Internet was computer the Internet or whether was [parent] “[n]either also cherz noted simply logged-on. left in indicate past would has issues inability adequate care for provide testimony court heard [¶ 9.] The strengths. has the child. The father his worker, independent Judy licensed social strengths.” her The mother has Conner, all who had visited with three family. members She described court Following hearing, the [¶ 6.] very spoke as active Jorgito child who Renee, temporary custody with granted very age well even at two. She observed The Jorge. placed for court ex- visitation “appeared very that he to be attached to First, Renee. was press conditions on parents.” Jorge both of his Conner found in “any apartment have men her or not to very caring parents.” and Renee “to be pres- presence her while child [was] nothing flag She saw “that raised a red Second, ent.” she was refrain from Third, any not ... or kind of alarm.” Dr. consuming alcohol. she could Stricherz’s throughout opinions use the Internet the duration coincided with Conner’s. He had disagree peri- parties engaged during 3. The on the of time activities these time amount spent engaging in these conversations. ods. Renee testified that she used the Inter- brief, Jorge his asserts that "Renee ... genealogy net for searches her mother for every began spending nearly substantial hours played games. often day pursuing relationships illicit on the inter- net with men." to cite the adult fails dispute 4. There is a in the record about record to his At he statement. agreed parties "open whether the to an mar- log-on introduced records for the home com- engage riage,” would where each be free to through puter August October partners. intimate relations with other only com- These records indicate the time the findings on court made no this. They puter logged on. not show the do July 2000 in an at- The court Renee’s Renee in denied claims for $899. re-evaluated any changes general alimony, tempt alimony, to ascertain behavioral rehabilitative hearing. temporary Stricherz attorney’s since In its written findings fees. had no law, that Renee Internet reaffirmed of fact and conclusions his initial conclu- and noted that addiction a “fit parent held Renee was who supported by any the absence of environment, sion provides a stable com- computer after her substituted behaviors continuity mensurate of care as well.” away.5 trial, Jorge produced taken At Jorge appeals custody decision on his had engaged no evidence that Renee assertion that court the trial failed to ade- inappropriate since any conduct the tem- quately consider Renee’s misconduct and porary hearing. Jorgito’s need to maintain contact with parents. both Jorgito attended the same has facility daycare since December 1999. B. daycare providers of the confirmed
One Jorgito’s strong attachment his mother: Custody Child brings every morning, When she him custody To decide a dis has arms her waist ... he around consider pute, a must the child’s always goodbye hugs he [a]nd mental, temporal, moral welfare. See says goodbye always ... turns She back Fuerstenberg, goodbye, twice and and he’s al- waves pre N.W.2d at 806 No ways waiting for her to turn back making cise formula exists *6 again[.] determination, decision but the should be Jorgito as The same witness described ¶ and methodical. Id. at 35. balanced “very intelligent” and “soft-hearted.” recognize principles” in “guiding several trial, At the [¶ 11.] time ¶ weighing Id. at 23. the evidence. These agency working pro- full-time for an that fitness; parental include considerations long temporary employees term vides to caretaker; stability; primary pref child’s n Gateway. position With this and another erence; misconduct; parental harmful and part-time position, intermittent Renee ex- separation siblings. generally See $25,000 to pected earn between and ¶¶ 23-32, Fuerstenberg, 1999 SD 591 $26,000 opinion, year. that In her to ob- N.W.2d at 806-10. A court is not bound to a paying job tain better would need a finding in specific category; make a each degree master’s administra- business indeed, may ap certain elements have no possibility that tion. She had researched cases, and for other plication some cases its at trial. and cost the time of may there relevant be additional consider end, brightest At ations. the our beacon 12.] the end of [¶ bench, joint legal remains the best interests of the child. granting ruled from the 35, ¶23, with custody parents, Fuerstenberg, to the Renee retain- See custody. court primary physical Jorge N.W.2d at 807. A trial is a better ing facts, and con- pay monthly position child to evaluate the its ordered Jorge perhaps ability testimony offered from Dr. Scott her to attend to the child." In Pri- byl, psychologist. Pribyl thought ruling, court found Stricherz a there was its bench "possibility” had and Conner the more credible witnesses that Renee an to be Internet actually family. appeared they that because met with the He testified it had addiction. Pribyl's opinion solely that her was based on his re- "there were times ... usé of the sleep patterns documentary view impacting and evidence. Internet her parent.” emphasized the other The court child’s best interests will elusions on of discre actually we find abuse “had demonstrated unless that Renee stand Price, 64, 18, SD meaning- tion. Price ... provide ommitment [her] 426, 430 by ful child’s father” [the] ccitact with flexibly altering arrangements visitation court did Jorge argues [¶ 14.] Jorge’s after move. importance of “maintain not consider Fuer parents.” See ing contact with both Fuerstenberg, suggested As [¶ 16.] ¶ 24, SD 591 N.W.2d at stenberg, 1999 along these matters were considered with Fuerstenberg, recognized 807. In stability continuity of care. In ad- ap considering parental fitness it is when dressing stability, the found that the court explore parent’s “willingness propriate to adjusted child well and has been “[was] encourage provide frequent to ... community.” home The ex- court contact between the child and meaningful even, plained that the scales were about Id. crux of parent.” the other stability “just but consideration made that for financial rea argument is Jorge’s slight ever so a difference.” Renee had flying not be able continue sons he will Indeed, Jorgito. closer bond every Jorge other Dakota week. to South findings court in its written of fact noted points by a statement made Renee on primary caregiv- that Renee had been the acknowledging that if cross-examination appli- er. The addressed each of the court custody, were awarded she would considerations, ruling cable and its evinces close to son. to Texas to be her move balancing. a methodical It found that Re- con Jorge’s opinion, to ensure “maximum provided stability parent nee was a fit who parents, contact” with both he tinuing continuity for the child.6 granted and Renee should be held to her word and move to should be Jorge contends that the
Texas.
“improperly
circuit
concluded
accept this
argument
To
did
detract
Renee’s behavior
not
ignore
Fuerstenberg
statement in
our
*7
parent.”
ability
Generally,
future
to
mari
a court
not isolate one consideration
should
controlling
alone
a
tal misconduct
is not
all others
making
to
exclusion of
when
making
custody
consideration when
a
de
¶35, 31,
See 1999
decision.
SD
25-4-45.1; Kester
termination. See SDCL
The
in
591
at 809.
court stated
its
N.W.2d
(S.D.1977).
Kester,
v.
734
257 N.W.2d
was
ruling
bench
that
there
no evidence
However, when misconduct results in some
It
parent [was]
that
unfit.”
found
“either
child,
harm
parental
demonstrable
to the
“emotional,
any
have
parent
neither
Fuerstenberg,
fitness becomes
issue.
mental,
physical problem.”
or
Additional-
¶ 31,
(citing
1999 SD
591
at
N.W.2d
809
ly,
recognized
both parents
it
that
could
Madson,
Madson v.
313 N.W.2d
43-44
child,
provide for the
and
adequately
it
(S.D.1981)). Harm is self-evident when
specifically
that
willing
“[b]oth
noted
are
encourage
presence
misconduct occurs in the
of a
provide frequent
and
and
enough
perceive
child
meaningful contact between the
and child mature
it. See
Wockenfuss,
parent
attempts
cites
v.
who
to alienate a child
Jeschke
(S.D. 1995),
N.W.2d 602
cases
actively
similar
parent
from the noncustodial
in-
argument
that
con
"maximum
terferes with
not in
child's
visitation is
tinuing
parents
both
contact" with
should
inap-
best
Id. at
Jeschke is
interests.
606-07.
outweigh all
considerations.
In Jesch-
other
plicable
this case.
ke,
recognized
placement
that
this Court
Price,
64, 42,
judge’s
2000 SD
at 435 to
perception
firsthand
of the
significance
witnesses and the
judge
gave
testimony.
to their
Fuerstenberg,
The trial court found different
¶35, 22,
(cita-
1999 SD
such conduct harmful” and “appalling,” it found no “demonstrable ef- Alimony General Rehabilitative [Jorgito].” discussing fect on the in- $10,000 sought 20.] Renee stance of sexual intercourse in the home alimony year years. for three She Jorgito sleeping, again while the court $17,263 also asked for in rehabilitative ali emphasized rep- that Renee’s conduct was mony pursue degree master’s in busi concluded, however, rehensible. The court ness administration at University the child was not Renee’s direct South Dakota. The court denied both re presence, that he was monitored with a quests. review the circuit rul court’s monitor, baby the incident was an ings alimony under the abuse of discre Consequently, isolated one. Urban, tion standard. v. Urban 1998 SD found no harmful effect on the child. The ¶29, 8, 873, 875; 576 N.W.2d Albrecht v. allegations discounted of excessive Albrecht, 54, ¶25, 2000 SD drinking based on the lack of evidence. apply When All Renee’s misconduct occurred a three standard, ing inquire this we do not wheth month span July time to October er we would have made the same decision. Instead, only we decide whether the circuit findings [¶ 19.] We review reasonably court could reach the conclu deferentially, applying clearly fact er sion it applicable did view the law and roneous Fuerstenberg, standard. the circumstances of the case. Olson ¶35, 16, 591 *8 at 804 (citing N.W.2d Ther ¶90, 9, 396, Olson, 1996 SD 552 N.W.2d ¶ Bev., 39, 8, kildsen v. Fisher 1996 SD 545 (citations omitted). 399 836). 834, brief, In Jorge’s N.W.2d. he that objective asserts Renee was not candid with the gen [¶21.] The of essence, trial argues alimony provide court. he that the eral is to necessities such Urban, food, erred it accept clothing, court when failed to as and habitation. ¶29, 7, version of the facts. It was obvious to the 1998 576 at 875. As SD N.W.2d court, now, trial and it is requesting party, prove obvious to us that the Renee had to loving Jorge’s ability is dedicated and father. her need for and Indeed, Fox, judge-acknowledged provide (citing the that the it. id. 467 See Fox (S.D.1991)). Yet, 762, decision was a close one. deciding we N.W.2d 767 position reweigh alimony, are no general the evidence. whether to award court error, elements, proof including Absent clear we must defer must balance certain 56 marriage, parties’ possess degree,
the of the the a bachelor’s Renee be length capacities, respective earning parties’ the lieves “Jorge’s engineering that electrical after the property divi- degree degree.” financial conditions is specialized At health, sion, age and their station showing there that Renee was no suf will life, fault in the failure of and their relative fer some financial detriment because of the ¶ Price, 64, 61, the 2000 SD 611 marriage. divorce. degree With her bachelor’s N.W.2d at 437 administration, is gainfully business she employed. couple’s property was ev A review the record ¶ Urban, 29, 11, enly 1998 SD divided. Cf. circuit that the court consid demonstrates 576 at 876. Had we been sitting N.W.2d required ered element. The mar each judges, might given great as trial have riage just years. over twelve Both lasted weight disparity earnings er parties in their mid-thirties and were alimony, awarded some but under these good Jorge agreed Renee and health. facts, say we cannot that the circuit court equal property division. The abused its discretion. alimony properly property considered Evans, Evans v. 1997 together. division assessing When a re [¶25.] ¶ (citations 31, 240, 16, SD 247 quest alimony, for rehabilitative omitted). recognized The court (1) supporting must spouse’s consider Jorge’s “vastly incomes and Renee’s were (2) contributions, forgone oppox-tunities disparate,” Jorge earning three times improve skills, to enhance or marketable Yet, as it recognized much as Renee. also (3) of the marriage the duration fol salary present was a Jorge’s “relative lowing completion non-supporting of the ly occurring acquisition” par new after the Albrecht, spouse’s education. 2000 SD separation. emphasized ties’ The court ¶ at 772 N.W.2d employment stable “each had An prerequisite essential recovering re station in life” middle class both before alimony proof habilitative an edu Indeed, separation. and after the at trial cational plan and a to meet need that need. present in life described station ¶ Urban, SD at as middle class. Evans, 16, 35, 876-77 (citing In its bench ruling, 23.] [¶ 248-49). N.W.2d at judge parties truly found that “both [were] at granted fault” and based divorce Renee insists irreconcilable differences. The court also adequately “described her educational of,the found use that Renee’s Internet for plan at explained trial.” She that a mas infidelity sexual discourse and her in the degree ter’s in business administration “appalling.” marital home was Her erotic employability will enhance her and earn colloquies on the “inappro Internet were ing capacity up and make for her lack of priate marriage” part were workplace experience. She obtained her the impetus Jorge’s behind decision to degree during marriage. bachelor’s seek a divorce. Marital can infidelity be As the recognized, trial court she was *9 awarding or denying considered when ali gainfully enjoyed a employed and middle ¶ mony. Evans, 16, 33-34, 1997 SD 559 class plan station life. While Renee’s N.W.2d at 248. earning capacity to enhance her is com mendable, Renee contends she has not [¶24.] demonstrated that finding Jorge training required erred in that she and had additional for her equal Albrecht, levels. Although educational both become See self-sufficient. 2000
57 ¶¶ reason, 54, 26-27, clearly against 609 at 772-73. and thus we N.W.2d SD its discre- affirm its decision. The circuit court did not abuse alimo- tion when it refused rehabilitative requested [¶ 30.] Renee has also ny. appellate attorney’s fees. Accompanying request her is an itemized statement as D. ¶ 52, 14, Wolff, required. 1997 SD N.W.2d at 139 Al Attorney’s Fees though presented the facts ques close requested At [¶ 27.] tion, Jorge appealed knowing this case $12,101 in attorney’s fees. She testified governed well-established law the is that she did not have this amount available Consequently, required sues. Renee was and that her income was too low to earn it. expend additional time and financial re request, ruling The court denied Renee’s Considering sources. these matters to party responsible that each should be for gether large with the difference in the their own fees. review the circuit We income, parties’ appellate we award attor court’s denial for abuse of discretion. ney’s fees to Renee of $2500. Whalen, 276, 284 Whalen v. 490 N.W.2d [¶ 31.] Affirmed. (ci (S.D.1992)(mocfoj%d grounds) on other omitted). tations MILLER, Justice, [¶ 32.] Chief GILBERTSON, AMUNDSON and deciding whether [¶ 28.] Justices, concur. fees, attorney’s may a court consid award owns; property party er the each SABERS, Justice, [¶ 33.] dissents. incomes; relative the nature of their as SABERS, (dissenting). Justice sets, liquid; fixed or and whether either The trial court failed to make a [¶ 34.] party unreasonably prolonged the divorce. proper reasoned and consideration of the Schwab, 752, v. See Schwab presented concerning evidence at trial Re- (S.D.1993)(citing Radigan Radigan, v. and, therefore, alimony nee’s need (S.D.199R). 465 N.W.2d These C, I abused its discretion. dissent on issue are same elements we review when general alimony, and rehabilitative because attorney’s request appellate consider a awarding any trial court erred not Weber, fees. See Wolff alimony. findings trial court’s on this 139-40 wholly inadequate: issue are Alimony findings, In its the circuit fi- regarding 35. testified her [Renee] recognized party pos that neither permanent alimo- nancial need for any All property significance. sessed ny years for three in the amount of liquid equally split. or fixed were assets $10,000per year. parties “aggres The court noted that both regarding [Renee] further testified sively sought custody,” but did not find her financial need for rehabilitative unreasonably party pro that either had alimony to commence a Masters longed litigation. acknowledged The court Business Administration. substantially higher earned a income, in- being equal, regarding but all matters testified [Renee] other attorney’s it fees. tent to start a Masters Business denied award University of ruling circuit court’s Administration at the cannot hold *10 caring possible, by working jobs Dakota as soon as amount two while South jobs until fall for likely but not 2001. her child. One those part-time position. intermittent con- the MBA program 38. The cost of trast, Jorge earning times as three $10,263.33, approximately plus ad- job. much The at one trial court found $2,000 ditional costs of for books divorce, parties both at fault for the not $5,000 transportation. for just parties had been married Renee. [Jorge] are 39. incomes [Renee]’s years, for time Re- during twelve this vastly disparate, [Jorge] earn- displaced competitive job nee ing three as approximately times by mutual That market decision. should much as [Renee]. not in an automatic of alimo- result denial [Jorge] joint [Renee] 40. made Likewise, ny. Renee’s statement that she during marriage decision lifestyle considered to be “middle stay to care should home [Renee] negate class” alimony. does not for the minor child. It was an abuse of discretion permanent I or award no rehabili- alimony the trial court to award no alimony. tative my view, these facts. the trial court conclusory This statement is not a rea- per awarded should have at least $400 required soned consideration of the factors years. month the next three There- any alimony decision. See Peterson v. fore, on issue I dissent C. Peterson, 58, 9, proper A consideration these fac- justifies tors an award of alimony on this
record. expected living to earn a $25,000 $26,000 approximately per
year. accomplishing She was this modest