#23930-a-JKM
2006 SD 68
IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
* * * *
ANGELA WALKER, Plaintiff and Appellant,
v.
JASON WALKER, Defendant and Appellee,
* * * *
APPEAL FROM THE CIRCUIT COURT OF
THE FIFTH JUDICIAL CIRCUIT
WALWORTH COUNTY, SOUTH DAKOTA
* * * *
HONORABLE SCOTT P. MYREN
Judge
* * * *
REV. CAITLIN F. COLLIER Attorney for plaintiff
Vermillion, South Dakota and appellant.
JOHN R. VON WALD of
Von Wald Law Offices Attorney for defendant
Selby, South Dakota and appellee.
* * * *
CONSIDERED ON BRIEFS
ON MAY 23, 2006
OPINION FILED 07/26/06
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MEIERHENRY, Justice
[¶1.] After eleven years of marriage, Angela Walker (Angela) filed for
divorce from her husband, Jason Walker (Jason). After a one-day trial, the trial
court granted the parties a divorce based upon irreconcilable differences and
ordered joint legal custody of the children, but granted primary physical custody to
Jason. Angela appeals. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
[¶2.] Angela and Jason were married on May 19, 1994, in North Carolina.
In March 1995, the couple returned to Jason’s hometown of Selby, South Dakota.
They made their home on the farmstead owned by Jason’s parents and great uncle.
The couple had a son in 1995 and a daughter in 1999. During the marriage, Jason
worked as a truck driver, a farm worker, and a welder. Initially, Angela stayed
home with the children and worked a few hours a month at a printer’s office. Later
in the marriage, Angela worked at a nursing home.
[¶3.] The children enjoyed their life on the farm. They spent significant
amounts of time with Jason’s mother and father, the children’s grandparents. They
joined their father and grandfather on over-the-road trucking trips and on the
tractor for farm chores. They also spent time with their grandmother playing
games and swimming at a nearby pool. The children had several pets, including
cats, a duck, cattle, and horses.
[¶4.] The parties had significant financial difficulties throughout their
marriage. They used credit cards to pay for medical bills. Despite financial
assistance from friends and family, the couple wrote multiple bad checks. Because
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Angela signed the checks, she received several criminal citations for insufficient
funds.
[¶5.] As the relationship between Angela and Jason began to deteriorate,
the couple’s arguments became more frequent and more confrontational. In early
August of 2004, Jason began to suspect that Angela was having an affair. At
Jason’s direction, Angela left the marital home for a period of time. She returned
on August 16, 2004, to visit the children, and an argument ensued. According to
Angela, Jason pushed her and locked her in the bathroom. After he let her out, he
dumped out her purse. When Angela attempted to grab the purse, her fingers
became entwined in the purse strings. During the tussle with the purse, one of
Angela’s fingers was broken in two places. Angela went to the emergency room,
where she was interviewed by Deputy Charles Davidson (Davidson). Davidson
testified that Angela did not want to press charges against Jason. Angela told
Davidson that her injury was the result of a fight over her purse and that there had
been no other physical contact. She also stated that the children were fine with
Jason.
[¶6.] After the incident, Angela told others that her injury was an accident.
Angela, however, proceeded to file a temporary protection order petition, which she
later dismissed. Then, on August 20, 2004, Angela filed for divorce “based on
irreconcilable differences, or in the alterative, extreme mental cruelty.” The court
granted Angela temporary custody of the children, and she moved to an apartment
in Mobridge, where the children attended school. The children began counseling.
After a few months of treatment, the children’s counselor recommended that the son
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see a male counselor. She also cautioned Angela against bringing an adult male
companion into the children’s lives.
[¶7.] Angela was unable to find a suitable counselor for her son. She did not
feel comfortable with the local male counselor, and she could not afford to take the
boy to Aberdeen for counseling. Thus, he did not receive further counseling.
Additionally, Angela introduced the children to her male companion, despite the
counselor’s admonition. Even though the children were living primarily with
Angela, they continued to spend time with Jason and his parents.
[¶8.] Upon Jason’s request, the court ordered a custody evaluation. The
parties agreed that an evaluation would be conducted at Jason’s expense. After the
evaluation was completed, Angela asked Jason to stipulate to its admissibility.
Jason refused. Because Angela could not afford to pay the evaluator to appear as a
witness, she moved the court to order the evaluation admissible or, in the
alternative, to grant a continuance. The trial was continued “by agreement of the
parties and approval of the court.”
[¶9.] Subsequently, a court trial was held. The court heard testimony from
Angela, Jason, the children’s counselor, Angela’s male companion, Davidson,
Jason’s parents, two of Angela’s friends, Jason’s aunt, and the children’s babysitter.
Since the evaluator did not testify, the custody evaluation was not offered as
evidence. At the close of the trial, Angela requested that the court find extreme
cruelty as grounds for divorce. Jason contested the extreme cruelty claim, but
indicated he would agree to Angela’s alternatively pleaded ground of irreconcilable
differences. Angela declined to agree to irreconcilable differences. Considering all
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of the testimony, the trial court determined that Angela failed to prove extreme
cruelty. The court asked the parties to submit arguments as to why he should not
grant a divorce based on the alternative ground of irreconcilable differences.
Ultimately, the court granted the divorce based on irreconcilable differences and
awarded the parties joint legal custody of the children, but the court gave primary
physical custody to Jason. Angela appeals the trial court’s decision and we consider
the following issues 1 :
ISSUES
1. Whether the trial court erred in granting the divorce based on
irreconcilable differences.
2. Whether the trial court erred in awarding primary physical custody
to Jason.
3. Whether the trial court erred by not admitting the custody
evaluation into evidence.
DECISION
Grounds for Divorce
[¶10.] Angela contests the grounds upon which the trial court granted the
divorce. She claims she should have been granted the divorce based on extreme
cruelty. The trial court concluded that Angela failed to submit any credible
evidence to establish extreme cruelty, but concluded “there [was] more than
1. Angela presents two additional issues for our consideration: (1) whether the
trial court failed to consider evidence of domestic violence when determining
the grounds for divorce, and (2) whether the trial court violated the equal
protection rights of Angela and the children by failing to admit the custody
evaluation. We consider these issues within the other issues presented by
Angela.
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sufficient credible evidence to support irreconcilable differences as a ground for
divorce.” Angela claims that the trial court ignored her evidence of domestic abuse.
[¶11.] We recently reiterated our standard of review in divorce cases in
Midzak v. Midzak, wherein we stated:
The trial court’s findings of fact establishing grounds for divorce
are not disturbed on appeal absent clear error. “Clear error is
shown only when, after a review of all the evidence, ‘we are left
with a definite and firm conviction that a mistake has been
made.’” We give the trial court’s opportunity to judge the
credibility of witnesses and to weigh their testimony due regard
when reviewing the trial court’s findings of fact. We review the
trial court’s application of law to fact under the de novo
standard of review, with no deference to the circuit court’s
decisions.
2005 SD 58, ¶14, 697 NW2d 733, 737-38 (citations omitted).
[¶12.] After a review of the record in this case, we cannot find that the trial
court’s findings of fact were clearly erroneous. SDCL 25-4-4 defines “extreme
cruelty” as “the infliction of grievous bodily injury or grievous mental suffering upon
the other, by one party to the marriage.” Where there is conflicting evidence, we
leave to the trial court the task of determining the credibility of the witnesses and
the weight to give to their testimony. In this case, Angela testified that Jason often
pinned her down or sat on her during arguments, but she could not point to any
specific instance of such activity. At trial and on appeal Angela relies primarily on
her broken finger as evidence of domestic abuse and grievous bodily injury. The
evidence, however, also revealed that she admitted to others that Jason did not
mean to break her finger and that the injury was unintentional. Therefore, the trial
court’s findings of fact on the issue of extreme cruelty were not clearly erroneous.
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[¶13.] Angela also argues that the trial court erred when it granted the
divorce on the grounds of irreconcilable differences. Angela admits that she pleaded
such grounds in the alternative, but she argues that she made clear to the court at
trial that she was no longer asserting irreconcilable differences as grounds for the
divorce. Nevertheless, Angela did not move to amend her pleadings at any time
prior to, during, or after trial. Thus, the trial court determined that Angela
consented to the ground of irreconcilable differences by initially pleading it as an
alternative ground for the divorce.
[¶14.] A South Dakota statute precludes the divorce of parties on the grounds
of irreconcilable differences without the parties’ consent. In relevant part, SDCL
25-4-17.2 provides:
The court may not render a judgment decreeing the legal
separation or divorce of the parties on the grounds of
irreconcilable differences without the consent of both parties
unless one party has not made a general appearance.
We considered the consent requirement of SDCL 25-4-17.2 in Dussart v. Dussart,
1996 SD 41, 546 NW2d 109. In Dussart, the plaintiff filed a complaint for divorce
based on irreconcilable differences. Id. ¶2, 546 NW2d at 110. She then served and
filed an amended complaint asserting additional grounds based on fault. Id. The
trial court granted a divorce based on irreconcilable differences. Id. On appeal, the
plaintiff argued that she did not consent to irreconcilable differences because her
amended complaint did not allege that ground. Id. ¶4, 546 NW2d at 110-11.
Further, the plaintiff argued that evidence of fault was presented at trial “and thus
was tried by implied consent of the parties.” Id.
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[¶15.] We disagreed, however, and affirmed the trial court. Id. Citing SDCL
25-4-17.2, we acknowledged that “a divorce may not be granted on irreconcilable
differences unless both parties consent.” Id. ¶5, 546 NW2d at 111. We determined,
however, that “[n]othing in the record show[ed the plaintiff] legally discarded
irreconcilable differences as an alternative basis for the divorce.” Id. The plaintiff’s
amended complaint was not properly before the court because she did not receive
court approval to file the amended complaint, and the record was “replete with
evidence of the substantial differences between the parties from which the trial
court could conclude irreconcilable differences existed and were consented to by
both parties as the basis of the divorce.” Id. Further, “at no time—not during trial,
after trial, or even after filing of the judgment—did [the plaintiff] move to have the
pleadings conform to the evidence on fault to support her contention the issue was
tried by implied consent.” Id. ¶6, 546 NW2d at 111. The plaintiff’s proposed finding
on the issue was insufficient to “satisfy the requirement that a motion be made to
the trial court to amend the pleadings.” Id.
[¶16.] This case presents an issue similar to the issue in Dussart. Here,
Angela pleaded irreconcilable differences as an alternative ground for divorce. At
trial, however, Angela refused to stipulate to irreconcilable differences. Rather, she
steadfastly sought a ruling in her favor on extreme cruelty. Angela did not,
however, procedurally withdraw her claim for irreconcilable differences. 2 After
2. The relevant portion of the transcript provides:
The Court: After considering all of the evidence that’s been
presented, weighing the credibility of the witnesses, I find
(continued . . . )
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trial, Jason submitted a letter which urged the trial court to rely on Dussart and
grant the divorce based on the alternative ground of irreconcilable differences
pleaded in Angela’s complaint. In its memorandum decision, the court did just as
Jason proposed—relied on Dussart and granted the divorce based on irreconcilable
differences. Angela then moved for reconsideration of the grounds. In her brief and
at the hearing on the matter, Angela merely argued that the evidence supported a
finding of extreme cruelty.
[¶17.] Despite knowing that the trial court would not find extreme cruelty,
Angela failed to suggest a remedy and failed to provide any argument as to why the
Dussart case should not apply. Most importantly, she did not make an oral or
written motion to amend her complaint or otherwise withdraw her alternative
____________________
(. . . continued)
that the plaintiff has failed to establish extreme cruelty.
She is not entitled to a divorce on those grounds. If she
would like one on irreconcilable differences, there are
grounds for that. Would she like a divorce on those
grounds?
Ms. Collier (Angela’s Attorney): No.
The Court: Okay. Then the request for a divorce will be denied. We
will enter Findings of Fact on that. I will prepare them,
and we will proceed however the parties wish to proceed
after that. How would you like to proceed, Ms. Collier?
Ms. Collier: Well, I guess, Your Honor, if there is no divorce, I’m not
sure what you do next.
The trial court then proceeded to determine custody, after which it stated:
I will issue a written decision which will include the decision on the
extreme cruelty matter, and then appropriate orders will be prepared,
and we will proceed accordingly, and counsel can do some research on
how you want to proceed on the fact that we don’t have a divorce.
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ground of irreconcilable differences. She simply continued to argue that the
evidence established extreme cruelty. She provided no reason why the court could
not proceed on the alternative ground as originally pleaded.
[¶18.] Unique to this case and different from Dussart is that Angela
unequivocally refused to consent to the ground of irreconcilable differences at trial.
Like the plaintiff in Dussart, however, Angela did not amend her complaint to
remove the ground of irreconcilable differences. Since irreconcilable differences
remained as an alternative ground in the pleading, Jason was justified in relying on
that pleading. Angela’s change in strategy at trial without prior notice jeopardized
Jason’s ability to counter with his own grounds for divorce if he so desired. For
example, evidence in the record suggested that he may have been able to
counterclaim based on grounds of adultery under SDCL 25-4-2. Since Angela did
not “legally discard” irreconcilable differences as an alternative ground for divorce,
the trial court did not err by granting the divorce based on irreconcilable
differences. By pleading in the alternative, she impliedly consented to
irreconcilable differences, thus meeting the requirements of the statute. Therefore,
we find that the trial court did not err in granting the divorce based on
irreconcilable differences.
Custody
[¶19.] Next, Angela argues that the trial court’s determination of custody “did
not conform to the evidence presented at trial and was not supported by the law nor
the facts.” 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
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temporal and mental and moral welfare.’” Arneson v. Arneson, 2003 SD 125, ¶13,
670 NW2d 904, 909 (citations omitted). In considering the best interests of the
child, “courts should be cognizant of several ‘guiding principles.’ These include
parental fitness, stability, primary caretaker, child’s preference, harmful parental
misconduct, and separation of siblings.” Id. (citations omitted). A court need not
“make a specific finding in each category; indeed, certain elements may not apply in
some cases, and, in others, there may be additional relevant considerations. In the
end, our brightest beacon remains the best interests of the child.” Zepeda v.
Zepeda, 2001 SD 101, ¶13, 632 NW2d 48, 53 (citation omitted). When considering a
custody determination on appeal,
we review a trial judge’s decision for error in incorrectly
choosing, interpreting, or applying the law; for clear mistakes in
fact findings; and for undue emphasis on matters not materially
related to the child’s welfare. We expect that any decision will
be balanced and methodical.
Arneson, 2003 SD 125, ¶13, 670 NW2d at 909.
[¶20.] The trial court made numerous detailed findings concerning the best
interests of the children. Angela specifically takes issue with the Court’s finding
that “Jason has always been extremely involved with the care and nurturing of [the
children] as they were growing up” and the statement in the court’s memorandum
decision that “over the life of these two children, Jason and Angela have equally
shared the role of caretaker . . . .” Angela argues that as a stay-at-home mom, she
had significantly more contact with the children. She points out that Jason’s job as
an over-the-road trucker caused him to be gone frequently. She also points out that
Jason has missed the children’s doctor appointments and school conferences.
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[¶21.] Although Angela’s argument has merit, there also is considerable
evidence in the record which supports the trial court’s decision. The trial court
recognized that “both Jason and Angela are suitable to have custody of these
children.” The court granted the parties joint legal custody and noted that joint
physical custody would also be appropriate “except that the parties have had such a
contentious separation.” Therefore, the court granted primary physical custody to
Jason.
[¶22.] Based on the evidence, we cannot say that the trial court’s findings of
facts were clearly erroneous nor that its custody determination was an abuse of
discretion. The trial court weighed the relative custodial advantages of each parent.
The evidence showed that even though Angela was at home most of the time, the
children often joined their father for farm work and while he was trucking. Both
children also enjoyed spending time with their paternal grandparents. The children
have a close relationship with both their father and their paternal grandparents.
The couple’s son, who suffered learning disabilities, performed better in the Selby
school district with father than in the Mobridge school district with mother. Jason
showed no favoritism between the two children; Angela often favored her daughter
over her son. Angela unadvisedly introduced the children to her male companion;
Jason chose not to date. Finally, Angela stated that she did not want to share
custody with Jason and that he should not have any input concerning the children.
Jason, however, thought joint custody would benefit the children because they need
both parents.
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[¶23.] The facts support the trial court’s conclusion that it is in the children’s
best interests to award physical custody to Jason. The trial court carefully and
methodically considered all the evidence, and its findings are not clearly erroneous.
The trial court did not abuse its discretion.
Admissibility of Custody Evaluation
[¶24.] Finally, we consider Angela’s argument that the trial court erred
when it failed to admit the custody evaluation. Angela argues that her financial
condition prohibited paying the evaluator to testify at the divorce trial. She asserts
that in the context of family law, an exception should be made for custody
evaluations in order to help the trial court make the best decision for the child.
[¶25.] We normally review evidentiary rulings under the abuse of discretion
standard. Steffen v. Schwan’s Sales Enters., Inc., 2006 SD 41, ¶19, 713 NW2d 614,
621. In this case, however, there is no evidentiary ruling to review. While Angela
filed a pretrial motion for admission of the custody evaluation, the record contains
no ruling on that motion. Further, the record contains no transcript concerning
that motion. The record merely contains a notice of a change of the trial date. The
transcript of the court trial indicates that Angela never offered the evaluation and
the trial court never considered its admissibility.
[¶26.] Consequently, the record contains no grant or denial of Angela’s
motion. Further, Angela failed to present the custody evaluation at trial in order to
preserve the issue for appeal. See Joseph v. Kerkvliet, 2002 SD 39, ¶7, 642 NW2d
533, 535. As we have stated,
the proponent of the evidence must attempt to present the
excluded evidence at trial, and if an objection to the proffered
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evidence is sustained, the proponent must then make an offer of
proof. Such a requirement is strictly applied because a trial
judge should be given an opportunity to reconsider [the] prior
ruling against the backdrop of the evidence adduced at trial.
Id. (citation omitted). Thus, where a party does not attempt to introduce evidence
at trial or make an offer of proof, the issue has not been preserved for appeal. Id.
Consequently, we decline to consider Angela’s arguments concerning the custody
evaluation.
[¶27.] Affirmed.
[¶28.] GILBERTSON, Chief Justice, and SABERS and KONENKAMP,
Justices, concur.
[¶29.] ZINTER, Justice, concurs specially.
ZINTER, Justice (concurring specially).
[¶30.] I concur and write to express concern that we appear to be slowly
progressing towards failing to enforce that part of SDCL 25-4-17.2 that prohibits a
divorce on the ground of irreconcilable differences “without consent of both parties.”
Therefore, I disagree with the Court’s broad statement that “[b]y pleading in the
alternative, [extreme cruelty and irreconcilable differences, Angela] impliedly
consented to irreconcilable differences, thus meeting the requirements of the
statute.” See supra ¶17. I would not, in future cases, apply such a rule when there
is also evidence of conduct reflecting a withdrawal of implied consent. However, in
this case, the evidence of consent is strong. Angela had knowledge of the implied
consent case law, and she had an opportunity to comply with it or object to its
application. But, she did neither.
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[¶31.] The record reflects that following the trial, the court orally notified the
parties that it would not grant a divorce on the basis of extreme cruelty, but it
would consider irreconcilable differences. In response, Angela did not withdraw her
request for a divorce on that ground. She merely indicated that she would not “like
a divorce on those grounds.” 3 (Emphasis added.) The trial court advised the
parties to brief the question of how the court should proceed in light of the fact that
“we don’t have a divorce.” The parties briefed the issue. Jason relied on the implied
consent language of Dussart v. Dussart, 1996 SD 41, 546 NW2d 109, but Angela did
not address the implied consent issue. Ultimately, the trial court issued a
memorandum decision indicating it would grant a divorce on irreconcilable
differences based upon the implied consent reasoning of Dussart.
[¶32.] Thereafter, Angela failed to do anything to withdraw her consent or
even object to the trial court’s proposed disposition based upon implied consent
despite language in Dussart recognizing that post-trial conduct may be sufficient.
Instead, Angela filed a motion to reconsider simply rearguing her position that she
was entitled to a divorce on the ground of extreme cruelty. The trial court granted
Angela’s request for reconsideration. And again, at this hearing, Angela failed to do
anything to withdraw her consent or object to the trial court’s proposed disposition
3. Earlier, she indicated she was unwilling to “stipulate to irreconcilable
differences.” In my view, had Angela maintained this position in the post-
trial proceedings, she would not have impliedly consented to a divorce on the
grounds of irreconcilable differences. However, as is explained hereafter,
Angela’s post-trial conduct precludes her from relying on the consent
requirement on appeal.
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based upon Dussart. Rather, Angela simply argued facts supporting extreme
cruelty without addressing implied consent.
[¶33.] Finally, at the court’s direction, Jason proposed findings of fact and
conclusions of law. In Finding of Fact #6, which was ultimately adopted by the
court, Jason proposed that as a result of Angela’s failure to amend her complaint,
she impliedly consented to the ground of irreconcilable differences. In responding to
this proposed finding, Angela, for the third time, did not object to the finding of
implied consent. Rather, Angela objected to the finding on the sole ground that she
was entitled to a divorce on the basis of extreme cruelty. 4
[¶34.] Thus, it is quite clear that Angela was aware of the need to do
something to withdraw her request for a divorce on the ground of irreconcilable
differences, she had the opportunity to do so, but failed to do anything. Moreover,
although she had the opportunity, she failed to even object to the court’s proposed
determination that she had impliedly consented. For these reasons, I concur.
4. Angela objected to this finding by merely reincorporating her previously filed
motion and brief to reconsider, which only argued a factual entitlement to a
divorce on the ground of extreme cruelty.
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