#26561-a-LSW
2013 S.D. 48
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
****
KYLIE ROTH, Plaintiff and Appellant,
v.
CHAD HAAG, Defendant and Appellee.
****
APPEAL FROM THE CIRCUIT COURT OF
THE FIRST JUDICIAL CIRCUIT
HANSON COUNTY, SOUTH DAKOTA
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THE HONORABLE CHERYLE W. GERING
Judge
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ROSE ANN WENDELL
Pierre, South Dakota Attorney for plaintiff
and appellant.
MICHAEL E. UNKE
Salem, South Dakota Attorney for defendant
and appellee.
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CONSIDERED ON BRIEFS
ON MAY 20, 2013
OPINION FILED 07/03/13
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WILBUR, Justice
[¶1.] Kylie Roth (Mother) appeals from the trial court’s order granting
change of primary physical custody of child (D.L.H.) to Chad Haag (Father). We
affirm.
FACTS AND PROCEDURAL BACKGROUND
[¶2.] Mother and Father had D.L.H. out of wedlock on July 22, 1998.
Following the couple’s separation when D.L.H. was an infant, Mother retained
primary physical custody of D.L.H. and Father exercised his visitation rights
pursuant to the South Dakota standards for noncustodial parenting time.
[¶3.] Mother married Steven Roth (Stepfather) and had two children (Roth
half-siblings) from that marriage. Mother, Stepfather, and the Roth half-siblings
live in Mitchell, South Dakota. Father married Sherry Haag (Stepmother) and had
four children (Haag half-siblings) from that marriage. Father, Stepmother, and the
Haag half-siblings live on an acreage near Alexandria, South Dakota.
[¶4.] In January 2009, the Department of Social Services referred the Roth
family to a home-based therapy program because of Stepfather’s alleged abusive
behavior towards D.L.H. Victoria Fay, a mental health therapist, performed
counseling in the Roth home from January 2009 through June 2009. During that
time, Mother told Fay that D.L.H. was difficult to manage in the home. D.L.H. has
Attention Deficit Hyperactivity Disorder and displays traits of a mood disorder.
Fay noted that D.L.H. “display[ed] some very extreme behaviors of tantruming,
kicking, yelling, [and] being very defiant.” Fay also indicated that D.L.H. expressed
difficulty in his relationships with Stepfather and with the Roth and Haag half-
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siblings. Fay determined that D.L.H. responded positively to the home-based
therapy program.
[¶5.] Mother discontinued Fay’s counseling services in July 2009. Father
had not participated in the counseling sessions. Father believed that counseling
was not necessary because D.L.H. did not have any behavioral problems when
D.L.H. was staying in Father and Stepmother’s home.
[¶6.] In September 2009, the Roth family resumed the home-based
counseling program with Fay due to D.L.H.’s behavioral problems in their home and
problems with his peers at school. During this time, D.L.H. expressed to Fay his
desire to live with Father because he wanted to develop a closer relationship with
Father. On his own, D.L.H. devised a plan where he would equally divide his time
between Father and Mother. When D.L.H. presented this plan to Mother, she
rejected it.
[¶7.] In March 2010, Mother filed a motion with the trial court and
requested an order requiring Father to ensure that D.L.H. received his prescribed
medication while D.L.H. was in Father’s care. Father also filed a motion requesting
an increase in visitation and joint legal custody. A hearing on the motion was held.
The trial court entered an order on June 30, 2010, that required Father to ensure
that D.L.H. received his prescribed medication while D.L.H. was in Father’s care
and Mother to make a good faith effort to take D.L.H to religion education classes. 1
The order further provided that Mother and Father have joint legal custody of
1. Father, who is Catholic and attends church regularly, indicated that, while in
Mother’s care, D.L.H. missed several Catholic religion classes. Mother does
not practice any religion nor does she attend church.
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D.L.H., with primary physical custody remaining with Mother. Father was also
granted additional visitation time with D.L.H.
[¶8.] In May 2012, Father filed a motion for change of custody with the trial
court. At a hearing on September 26, 2012, Fay, Mother, Father, and Stepmother
testified. Fay testified that “[a]t this point in his development, [D.L.H.] would
benefit from having a strong, healthy relationship with an adult male to role model
after at this point.” Fay also stated that D.L.H. expressed a desire to live with
Father. She further testified that both Mother and Father are good parents with
both having different styles of parenting, neither of which is harmful to D.L.H. In
chambers, D.L.H. expressed to the court a desire to live with Father.
[¶9.] In its oral and written findings of fact and conclusions of law, the trial
court conducted a detailed analysis of the applicable Fuerstenberg factors. See
Fuerstenberg v. Fuerstenberg, 1999 S.D. 35, 591 N.W.2d 798. 2 In balancing all of
the applicable Fuerstenberg factors, the trial court determined that it was in
D.L.H.’s best interests that Father have primary physical custody.
[¶10.] Mother appeals from the trial court’s order granting change of primary
physical custody of D.L.H. to Father. Mother and Father filed motions with this
Court, each requesting appellate attorney fees pursuant to SDCL 15-26A-87.3.
2. The trial court determined that because there had been no prior court
determination of D.L.H.’s best interests, a showing of a substantial change in
circumstances as a basis for change of custody was not required. See
Conclusion of Law 4 (stating that “[t]here was . . . an order in 2010 that came
on as a result of a hearing before the [c]ourt, but not a [c]ourt
determination”).
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STANDARD OF REVIEW
[¶11.] We review “child custody decisions under the abuse of discretion
standard of review.” Schieffer v. Schieffer, 2013 S.D. 11, ¶ 13, 826 N.W.2d 627, 633
(quoting Simunek v. Auwerter, 2011 S.D. 56, ¶ 8, 803 N.W.2d 835, 837). “An abuse
of discretion is a discretion exercised to an end or purpose not justified by, and
clearly against, reason and evidence.” Id. ¶ 14 (quoting Hill v. Hill, 2009 S.D. 18, ¶
5, 763 N.W.2d 818, 822). “In the context of reviewing custody decisions, ‘an abuse of
discretion occurs . . . when the trial court’s review of the traditional factors bearing
on the best interests of the child is scant or incomplete.’” Id. (alteration in original)
(quoting Kreps v. Kreps, 2010 S.D. 12, ¶ 25, 778 N.W.2d 835, 843).
ANALYSIS AND DECISION
[¶12.] In this appeal, Mother disputes the trial court’s application of two of
the Fuerstenberg factors: stability and separating siblings. Specifically, she argues,
among other things, that a change in primary physical custody is not necessary
when Father could have weekly visitation with D.L.H. because of the close
proximity of the Roth and Haag homes; D.L.H. has more consistency in Mother’s
home where D.L.H will have access to counseling services; Father has not
participated in counseling services; and Mother has provided for D.L.H.’s physical,
emotional, and mental needs since birth, including his medical needs. Mother also
contends that Father does not participate in parent-teacher conferences nor does
Father know D.L.H.’s classroom teacher. Additionally, Mother asserts that
compelling reasons do not exist to separate D.L.H. from his Roth half-siblings,
whom D.L.H. has grown up with to date.
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[¶13.] “When determining custody, ‘the court shall be guided by consideration
of what appears to be for the best interests of the child in respect to the child’s
temporal and mental and moral welfare.’” Id. ¶ 17 (quoting SDCL 25-4-45). “The
trial court may, but is not required to, consider the following Fuerstenberg factors in
determining the best interests and welfare of the child: parental fitness, stability,
primary caretaker, child’s preference, harmful parental misconduct, separating
siblings, and substantial change of circumstances.” Id. (quoting Simunek, 2011 S.D.
56, ¶ 9, 803 N.W.2d at 837). “We encourage trial courts to take a balanced and
systematic approach when applying the factors relevant to a child custody
proceeding.” Id. ¶ 18 (quoting Simunek, 2011 S.D. 56, ¶ 9, 803 N.W.2d at 837).
However, “a court is not bound to make a specific finding in each category; indeed,
certain elements may have no application in some cases, and for other cases there
may be additional relevant considerations. In the end, our brightest beacon
remains the best interests of the child.” Beaulieu v. Birdsbill, 2012 S.D. 45, ¶ 10,
815 N.W.2d 569, 572 (quoting Zepeda v. Zepeda, 2001 S.D. 101, ¶ 13, 632 N.W.2d
48, 53).
[¶14.] Courts examine the following subfactors when considering stability:
(1) the relationship and interaction of the child with the parents,
step-parents, siblings and extended families; (2) the child’s
adjustment to home, school and community; (3) the parent with
whom the child has formed a closer attachment, as attachment
between parent and child is an important developmental
phenomena and breaking a healthy attachment can cause
detriment; and (4) continuity, because when a child has been in
one custodial setting for a long time pursuant to court order or
by agreement, a court ought to be reluctant to make a change if
only a theoretical or slight advantage for the child might be
gained.
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Schieffer, 2013 S.D. 11, ¶ 17, 826 N.W.2d at 634 (quoting Price v. Price, 2000 S.D.
64, ¶ 27, 611 N.W.2d 425, 432). “In these circumstances, the court should discern a
distinct need to remove a child from one setting and a reason to place the child in a
new one.” Fuerstenberg, 1999 S.D. 35, ¶ 26, 591 N.W.2d at 808.
[¶15.] In addition, “siblings and half-siblings ‘should not be separated absent
compelling circumstances.’” Simunek, 2011 S.D. 56, ¶ 10, 803 N.W.2d at 837
(quoting Fuerstenberg, 1999 S.D. 35, ¶ 32, 591 N.W.2d at 809). “However, this is
not an absolute rule, and ‘maintaining children in the same household should never
override’ what is in the best interests of a child.” Id. (quoting Fuerstenberg, 1999
S.D. 35, ¶ 32, 591 N.W.2d at 809). “Separating siblings is ‘one of several factors
courts consider in determining the best interests of the children.’” Id. (quoting
Hathaway v. Bergheim, 2002 S.D. 78, ¶ 32, 648 N.W.2d 349, 354 (Gilbertson, C.J.,
dissenting)).
[¶16.] The record demonstrates that in making its best interests
determination, the trial court made detailed oral findings of fact and conclusions of
law analyzing the applicable Fuerstenberg factors. The court subsequently entered
25 pages of equally detailed written findings of fact and conclusions of law. In doing
so, the court analyzed D.L.H.’s age, maturity, and intelligence; D.L.H.’s preference;
primary caretaker; separation of siblings; stability; and the parental fitness of
Mother and Father.
[¶17.] In its analysis of the stability factor, the trial court considered that
D.L.H., at 14 years old, had expressed a desire to have a more intimate relationship
with Father. Father also expressed a desire for this relationship. Furthermore, the
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court relied on Fay’s report and testimony in discerning a distinct need to change
the physical custody arrangement, in particular, that D.L.H. “is reaching a crucial
point in his development where exposure to a male that is emotionally vested in his
life will enhance his ability to feel a sense of belonging among the male gender and
develop a stronger sense of independence through the acceptance that only a
positive male role model[’]s understanding can provide.” D.L.H. “explained [to Fay]
that as a young male approaching his teen years he ha[d] developed a desire to
reside with his father.” The court noted that it was “not just [D.L.H.’s] exposure to
any male individual, but to his father that [D.L.H.] does desire to have.”
[¶18.] Moreover, the court recognized that D.L.H. had expressed difficulty in
his relationships with Stepfather and both of the Roth and Haag half-siblings. And,
while D.L.H. has attended school in Mitchell for all of his school years, D.L.H. has
been in the Alexandria community when he visits Father and has two cousins of the
same age who attend school in Alexandria.
[¶19.] As to separation of siblings, the trial court noted that D.L.H. has two
half-siblings in the Roth home and four half-siblings in the Haag home.
Accordingly, the trial court considered this factor to be equal between Father and
Mother. Maintaining the status quo—D.L.H. and the Roth half-siblings living
together in the same household—is not an absolute rule and this arrangement
should not override what is in the best interest of D.L.H.
[¶20.] From a review of the record, the trial court engaged in a balanced and
detailed analysis of the applicable factors bearing on the best interests
determination. This analysis was anything but “scant or incomplete.” Schieffer,
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2013 S.D. 11, ¶ 14, 826 N.W.2d at 633 (quoting Kreps, 2010 S.D. 12, ¶ 25, 778
N.W.2d at 843). Therefore, based on its balanced and thorough analysis of the
applicable Fuerstenberg factors, the trial court did not abuse its discretion in
determining that it was in the best interests of D.L.H. for Father to have primary
physical custody.
[¶21.] Both parties submitted motions for appellate attorney fees to this
Court. The motions were accompanied by itemized and verified statements of the
attorney fees incurred pursuant to SDCL 15-26A-87.3. “Attorney fees are allowable
in domestic relation cases, ‘considering the property owned by each party, the
relative incomes, the liquidity of the assets and whether either party unreasonably
increased the time spent on the case.’” Hogen v. Pifer, 2008 S.D. 96, ¶ 16, 757
N.W.2d 160, 165 (quoting Barnes v. Matzner, 2003 S.D. 42, ¶ 24, 661 N.W.2d 372,
379). “We also ‘examine the fee request from the perspective of whether the party’s
appellate arguments carried any merit.’” Id. (quoting Arneson v. Arneson, 2003 S.D.
125, ¶ 38, 670 N.W.2d 904, 917). The record indicates that Father owns a vehicle
with a debt of $10,000; however, the record does not reveal any assets owned by
Mother. In addition, the record provides that Mother earns a gross monthly income
of $1,776 and Father earns $4,708 and pays unreimbursed union dues of $282.
Mother does not argue that Father unreasonably increased the time spent on the
case. Yet, Father argues that Mother’s lack of cooperation increased the time spent
on this case. He asserts that the parties agreed that Fay would conduct an
independent custody evaluation. And, after Fay determined that it was in the best
interests of D.L.H. that primary physical custody be with Father, Mother would not
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honor the agreement, which caused additional work on this case. The record,
however, does not contain any reference to the agreement upon which Father based
his request. Additionally, as the trial court recognized, this is a close case that
involves two fit parents. Thus, considering the relative financial condition of the
parties, the good faith arguments, and the closeness of the case, both parties’
motions for appellate attorney fees are denied.
CONCLUSION
[¶22.] Based on its balanced and thorough analysis of the applicable
Fuerstenberg factors, the trial court did not abuse its discretion in determining that
it was in the best interests of D.L.H. for Father to have primary physical custody.
The parties’ individual requests for appellate attorney fees are denied.
[¶23.] Affirmed.
[¶24.] GILBERTSON, Chief Justice, and KONENKAMP, ZINTER and
SEVERSON, Justices, concur.
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