Heinen v. Heinen

#24662-a-PER CURIAM
2008 SD 63

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

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JAY DOUGLAS HEINEN, Plaintiff and Appellee,

v.

MELISSA JO HEINEN, Defendant and Appellant.

* * * *

APPEAL FROM THE CIRCUIT COURT
OF THE THIRD JUDICIAL CIRCUIT
BEADLE COUNTY, SOUTH DAKOTA

* * * *

HONORABLE DAVID R. GIENAPP
Judge

* * * *

CARL F. HABERSTICK of
Fosheim, Haberstick & Hutchinson Attorneys for plaintiff
Huron, South Dakota and appellee.

BEVERLY J. KATZ of
Katz Law Office, Prof., LLC Attorneys for defendant
Huron, South Dakota and appellant.

* * * *

CONSIDERED ON BRIEFS
ON MAY 19, 2008

OPINION FILED 7/9/08
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PER CURIAM

[¶1.] Melissa Heinen appeals the circuit court’s award of primary physical

custody of her two children to her ex-husband, Jay Heinen, following her relocation

to Vermillion from Huron. Because the record does not demonstrate an abuse of

discretion by the circuit court, we affirm.

FACTS AND PROCEDURE

[¶2.] Melissa and Jay both resided in Huron. The couple had two children;

N.H., born October 21, 1998; and Z.H., born May 11, 2001. Melissa and Jay were

divorced in 2004. Based on their agreement, a shared parenting arrangement was

adopted under which they shared custody of the children: visitation rotated, the

children resided with Melissa for nine days and then Jay for five days.

[¶3.] Jay re-married in 2005. As a result of this marriage, two step-children

lived with him. Additionally, Jay’s child from a prior marriage, the half-sister of

N.H. and Z.H., also visited frequently.

[¶4.] Melissa had a series of relationships after the divorce involving at least

one broken engagement. At the time of the hearing, she was again engaged to be

married. She and her fiancé had dated for a while, had broken up, and then got

back together. During that time, Melissa became pregnant and gave birth to a

daughter. Melissa's fiancé was the father of that child although he was not present

for the birth: Melissa was dating another man at the time.

[¶5.] Following the most recent engagement, Melissa planned to move to

Vermillion to live with her fiancé and their child. Based on this move, she filed a

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motion to relocate and requested that she be granted primary physical custody of

the children as the current custody plan would not be practicable. 1

[¶6.] By all accounts both parents loved the children and were bonded with

them. They were both involved in the children’s activities and education. The

children were doing very well in school and had close friends and family in Huron.

The circuit court found that: both parents were involved in the children’s religious

education and attended church with them, although Melissa was more involved

than Jay; both were capable of providing for the medical needs of the children; the

children were too young to indicate a parental preference; and the attachment to

each parent appeared equal. Although Melissa had been the primary caretaker, her

role was only slightly more involved than Jay’s: the circuit court characterized the

difference as “minute.”

[¶7.] In reaching its custody decision, the circuit court found "[t]he minor

children are bonded with both half sisters, and also their step siblings, however, the

Court does not find that the bonding with their new half sister is to the extent

presented by the mother's testimony and her testimony to the extent of the bonding

is not credible." The court then articulated compelling factors that it found

demonstrated the need for a change in custody that involved separation of the

children from their maternal half-sister. These factors included findings that the

1. The settlement agreement incorporated into the divorce decree provided that
"[t]he parties shall reside with said minor children in Beadle County, South
Dakota, unless otherwise agreed. Each party shall act in accordance with
SDCL 25-4A-17.” That statute provides in relevant part: "[i]f an existing
custody order or other enforceable agreement does not expressly govern the
relocation of the principal residence of a child, a parent who intends to
change his or her principal residence shall, provide reasonable written notice
. . . to the other legal parent of the child.
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children would have approximately the same amount of contact with the half-sister

that existed under the prior arrangement; there would remain significant contact

under the visitation schedule; there was a difference in age and a "definite

difference" in maturity and interests between the children and their maternal half-

sister; a separation from the paternal siblings would occur by the move; and it was

in the children’s best interests to remain in Huron.

[¶8.] The circuit court also relied on additional factors. It found that despite

animosity between the parents, “one of the significant reasons the minor children

have prospered [was] their stable relationship in the Huron community.” It further

determined that Melissa had shown a lack of stability in her relationships,

including with her present fiancé (now indicated to be her current husband in the

briefs), and that Jay and his present wife had demonstrated a more stable home

environment. The court finally found that: Jay’s present wife had a good

relationship with the children and was involved in their care and upbringing; there

was no evidence indicating whether Melissa’s fiancé would be of assistance and

involved in the care and upbringing of the children; and the custody evaluators

acknowledged that very little was known about the fiancé’s background. Based on

all of the foregoing factors, the circuit court awarded primary physical custody to

Jay with liberal visitation for Melissa. Melissa appeals.

ISSUE

[¶9.] Whether the circuit court abused its discretion in changing
primary physical custody of the children to Jay.

[¶10.] The circuit court's and this Court’s standards in a custody decision are

well settled:

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In deciding custody disputes between parents, “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.” SDCL 25-4-45;
Zepeda v. Zepeda, 2001 SD 101, ¶13, 632 NW2d 48 (citing
Fuerstenberg v. Fuerstenberg, 1999 SD 35, ¶22, 591
NW2d at 806). 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. Fuerstenberg, 1999 SD 35, ¶35, 591
NW2d at 810. We expect that any decision will be
balanced and methodical. Id. In considering the relevant
evidence, courts should be cognizant of several “guiding
principles.” Id. ¶23. These include parental fitness,
stability, primary caretaker, child’s preference, harmful
parental misconduct, and separation of siblings. See
generally Fuerstenberg, 1999 SD 35, ¶¶23-32, 591 NW2d
at 806-10.

Arneson v. Arneson, 2003 SD 125, ¶ 13, 670 NW2d 904, 909. Further, “[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[ren].” Zepeda, 2001 SD 101, ¶ 13, 632 NW2d at 53. Nevertheless, we

recognize that custody determinations are not easy decisions, particularly in cases

such as this where both parents are loving and bonded with the children.

It is a poignant reality that when parents contest the
custody of their children, a court must make a choice.
That choice is often difficult because between two loving
parents there may be little to distinguish one over the
other. Choosing between two satisfactory options falls
within a judge’s discretion. Thus, in our review of an
ultimate decision on custody, we decide only whether the
court abused its discretion. Fuerstenberg, 1999 SD 35,
¶22, 591 NW2d at 807 (citations omitted). Although we
have repeatedly invoked stock definitions, the term
“abuse of discretion” defies an easy description. It is a
fundamental error of judgment, a choice outside the range
of permissible choices, a decision, which, on full
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consideration, is arbitrary or unreasonable. See generally
Adrian v. McKinnie, 2002 SD 10, ¶10, 639 NW2d 529, 533
(citations omitted). This standard is the most deferential
of appellate review standards, but that does not mean
that a judge’s custody decision will remain undisturbed.
Rather, it is a recognition that trial courts are in a better
position to make these difficult choices because the
parents are present in the courtroom and the judge is
better able to assess their capabilities firsthand.

Arneson, 2003 SD 125, ¶ 14, 670 NW2d at 910.

[¶11.] Melissa contends that the circuit court abused its discretion by not

placing enough importance on her role as the primary caretaker, and by failing to

recognize the benefits of keeping the children with their maternal half-sibling and

allowing the family unit to form in Vermillion. The circuit court, however,

specifically addressed and considered Melissa’s role as the primary caretaker; the

impact and considerations associated with separating the children from their

maternal half-sister; and the advantages and disadvantages of moving the children

to Vermillion. Moreover, a review of the circuit court’s detailed five-page single

spaced memorandum decision, reflects that it addressed all appropriate factors,

including a full consideration of the merits of both parents' individual situation and

the best interests of the children.

[¶12.] In weighing all appropriate factors, the circuit court indicated that

stability was the primary area that it found compelling in this case. 2 The circuit

2. As stated in Fuerstenberg, factors to be considered related to stability
include:

(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
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court found that Jay presented a more stable family unit, he was able to provide

care for the children without necessitating daycare, and the children could remain

in the same school without having to break friendships or establish new routines.

On the other hand, Melissa had not secured employment in Vermillion, she planned

to marry a man that was more of an unknown in the children’s lives, and her

relationship with him had been unstable. 3 Further, the circuit court noted that in

this case there were half-siblings to consider on both sides, and there were

compelling reasons to support the separation that would be necessitated under any

circumstances by the move to Vermillion. On this record, there is no demonstration

that the circuit court made a fundamental error in judgment, reached a decision

outside the range of permissible choices, or acted arbitrarily or unreasonably.

[¶13.] Affirmed.

[¶14.] GILBERTSON, Chief Justice, and SABERS, KONENKAMP, ZINTER

and MEIERHENRY, Justices, participating.

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. Otherwise, the child’s sense of
sustainment and belonging may be unnecessarily
impaired.

1999 SD 35, ¶ 26, 591 NW2d at 808 (citations omitted).

3. The record indicates Melissa’s custody evaluator testified he did not
interview the fiancé or inquire into his background; whereas Jay’s evaluator
met with and interviewed Jay and his present wife and undertook a
questionnaire designed to see how they functioned together as parents.
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