Pietrzak v. Schroeder

#24729-r-DG

2009 SD 1

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

* * * *

JOLEEN LOUISE PIETRZAK, Plaintiff and Appellant,

v.

MICHAEL W. SCHROEDER, Defendant and Appellee.

* * * *

APPEAL FROM THE CIRCUIT COURT OF
THE FIRST JUDICIAL CIRCUIT
AURORA COUNTY, SOUTH DAKOTA

* * * *

HONORABLE TIMOTHY J. BJORKMAN
Judge

* * * *

ELIZABETH A. ROSENBAUM
Sioux City, Iowa Attorney for plaintiff
and appellant.

DAVA A. WANTOCH
Mitchell, South Dakota Attorney for defendant
and appellee.

* * * *

CONSIDERED ON BRIEFS
ON SEPTEMBER 29, 2008

OPINION FILED 01/07/09
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GILBERTSON, Chief Justice

[¶1.] Mike Schroeder filed a Petition for Change of Custody of his five-year-

old son, Thomas. Custody of the child originally had been stipulated to by the

parties. Mike alleged the conduct of the child’s mother, Joleen Pietrzak, required a

change in custody in order to serve Thomas’s best interest and welfare. The trial

court concluded a change in custody was required. We reverse.

FACTS

[¶2.] The minor child in this matter, Thomas, was born to Joleen Pietrzak

(Joleen) and Mike Schroeder (Mike), on October 22, 2001, after the breakup of the

parties’ brief relationship. Mike, a rancher/farmer and age thirty-four at the time of

trial, was focused on his farming operation and a more rural and relaxed lifestyle.

Joleen’s focus was on educational goals and raising Thomas with what she

considered to be proper manners in a more formal setting. Joleen was forty years

old at the time of the custody trial.

[¶3.] Animosity developed between Jolene and Mike after the birth of

Thomas concerning the manner in which Thomas would be raised. In October 2001,

shortly after the birth of Thomas, Joleen moved from Plankinton, South Dakota, to

Mitchell, South Dakota. Joleen’s mother moved in with Joleen and Thomas. Two

months later, Joleen filed a petition seeking full legal custody of the child subject to

reasonable visitation with Mike, and child support. On February 12, 2002, a

temporary order for custody, visitation, and support was entered by the trial court

in which the parties’ stipulation and agreement was incorporated into the court’s

order. The stipulation provided for joint legal custody of the minor child, with

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Joleen having primary custodial care subject to Mike’s visitation. Mike was ordered

to pay $150.00 in temporary child support beginning February 1, 2002, and half of

the premiums for a health insurance policy maintained by Joleen for Thomas. The

parties were ordered to provide their respective income information to a child

support referee for determination of the appropriate amount of child support to be

made retroactive to February 1, 2002. The order also required the parties to select

a mediator for all remaining issues.

[¶4.] Despite the court order granting Mike midweek visitation on

Wednesday at Joleen’s home, after a short time Mike declined the visitation

claiming that the presence of Joleen’s mother made it too uncomfortable. On June

26, 2002, Mike filed a motion for scheduling of visitation, a trial date, and an order

requiring home studies for both parties. Mike’s motion was based on his claims that

the parties had been unable to mediate the matter as ordered, and Joleen was not

abiding by the South Dakota Child Visitation Guidelines. 1 Mike also complained

that Joleen refused to communicate with Mike on important issues regarding the

welfare of the child. Mike also requested a home study, and that both parties

submit to psychological testing concerning their fitness for custody and visitation.

[¶5.] On October 25, 2002, after a hearing on the matter, a court order was

issued that provided Mike with additional visitation and required him to provide for

and pay the cost of transportation between Plankinton and Mitchell. All other

1. Per the trial court’s order of February 2, 2002, Joleen was not required to
abide by the South Dakota Visitation Guidelines, but rather was required to
abide by the specifics of the trial court’s order as described above.

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matters were ordered to be determined at full trial, or upon separate motion to the

court. The parties were ordered to submit to the home study to be conducted by

Renee Turbak.

[¶6.] Turbak’s home study included a psychological assessment of the

parties by J. Gabriel Mydland, EdD LPC, in which he noted the parents both

wanted what was best for Thomas, but found it difficult to work with one another to

achieve the objective. The parties’ personalities were assessed and the results did

not suggest any risk to Thomas when in the supervision of either parent. Mediation

was recommended as a means for the parties to resolve differences and “work

together, without professional advocates, to find workable solutions.” Turbak’s

home study provided a visitation schedule for Thomas through age four, with an

increase in visitation at age five. Holidays, summer vacation, and transportation

were also addressed. Finally, the home study recommended a ninety-day advance

notification period if either parent planned on moving more than seventy-five miles

from their current residence.

[¶7.] On September 18, 2003, Joleen filed a motion requesting an order from

the court implementing Turbak’s recommended visitation schedule. Mike resisted

the motion, claiming that Turbak’s schedule did not provide him with enough

visitation. Mike also complained that he wished to reduce the amount of time the

minor child spent in the company of Joleen’s mother, as he thought she was a bad

influence over Joleen and his son.

[¶8.] On November 6, 2003, Joleen filed a motion to permit her to move with

Thomas outside the seventy-five mile limitation in the stipulated custody

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agreement. Joleen planned to enroll fulltime at the University of South Dakota in

Vermillion, South Dakota, obtain a bachelor’s degree, and eventually a post-

graduate degree with the goal of becoming a professor.

[¶9.] Mike filed a resistance to the motion and a motion for a change of

primary physical custody. In it he claimed Joleen refused to increase his visitation

beyond the amount provided under the South Dakota Child Visitation Guidelines

per his repeated requests.

[¶10.] On March 29, 2004, an order was entered reflecting that the parties

reached another stipulated agreement. Thomas remained in Joleen’s primary

physical care and she was permitted to move to the Vermillion area with the minor

child. In exchange, Mike obtained additional visitation. The parties were ordered

to utilize Turbak to case manage the visitation schedule, and to negotiate more

extensive visitation time when Thomas was not engaged in pre-school or grade

school activities based on Thomas’s adaptability to such extended visitation.

During the time the parties were attempting to mediate issues, Joleen reported

some behavioral issues with Thomas, including aggressiveness, biting, hitting, and

clinginess after returning from visitation with Mike. Turbak declined to provide

assistance with Thomas’s behaviors due to her lack of training in child psychology.

Instead, Turbak referred the parties to several child psychologists. The parties

eventually selected Taryn Van Gilder, PhD, who diagnosed Thomas with

adjustment disorder.

[¶11.] On August 26, 2004, Joleen filed a petition for modification of child

support for determination of an amount above the $150.00 set in the February 12,

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2002, temporary order. Child support referee James D. Taylor was appointed.

Mike failed to comply with the February 12, 2002, court order requiring him to

submit his financial records for determination of child support obligations, and

refused to comply with a subpoena for those records. Referee Taylor ordered Mike

to comply; Mike failed to comply until the date of the hearing before Referee Taylor.

[¶12.] On December 13, 2004, Referee Taylor filed his report in which he

pointed out inconsistencies in Mike’s financial documents that made it difficult to

ascertain exact income amounts, but noted a substantial amount of assets and debt

in connection with his farming operation. Mike’s child support obligation was set at

$438.00 less a credit of $75.00 per month toward Mike’s visitation travel expenses

from Plankinton to Yankton. Mike was also required to pay a percentage of

Thomas’s unreimbursed medical expenses. A child support arrearage in the

amount of $8,047.00 was ordered against Mike. Mike was ordered to pay $363.00 in

child support beginning January 1, 2002, and at least an additional $75.00 per

month toward the arrearage for a monthly obligation of $438.00. The parties were

ordered to pay their respective attorney fees and costs.

[¶13.] On December 20, 2004, Mike objected to the Referee Taylor’s report;

Joleen resisted. Mike refused to pay the increased child support amount in

violation of the court order, paying only the $150.00 per month and some of his

share of the health insurance premiums under the temporary order dated February

12, 2002. On August 9, 2005, after consideration on briefs, the trial court entered

an order approving the referee’s report. The trial court also ordered Mike to pay

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$500.00 toward the $3,396.22 incurred by Joleen in attorney fees and costs in the

matter due to his failure to remit his financial documents per court order.

[¶14.] On August 23, 2005, Mike filed a motion to reconsider the child

support order; Joleen resisted. On August 31, 2005, Mike filed a motion to allow

continued visitation, complaining that Joleen had enrolled Thomas in a three-day

preschool program that interfered with Mike’s every other weekend visitation,

which began on Thursday afternoons and ran through Sunday evening. A letter

from Thomas’s preschool teacher was attached, which noted it would not be

detrimental to Thomas to miss one day of preschool every other week.

[¶15.] Joleen answered the motion, and reluctantly agreed to Thomas

missing the day of preschool. In her motion, Joleen asked the court to order Mike to

pay the new child support amount of $363.00 and the $75.00 per month in

arrearages as ordered by the court in December 2004, and the $500.00 attorney fees

awarded under the court’s August 9, 2005, order.

[¶16.] On September 7, 2005, the trial court ruled from the bench denying

Mike’s August 23, 2005, motion for reconsideration of the child support. On October

7, 2005, Mike appealed to this Court the August 9, 2005, order of the trial court and

its denial of his objections to the referee’s report.

[¶17.] Mike then filed a Petition for Modification of Child Support on

November 2, 2005. On May 19, 2006, child support referee Mike Carter dismissed

Mike’s Petition for failure to contact the referee. On June 1, 2006, the trial court

entered an order accepting Referee Carter’s report and recommendation, and

dismissed Mike’s Petition.

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[¶18.] On May 5, 2006, Mike filed a second Petition for Change of Physical

Custody via his new attorney requesting an order setting a trial date and for Joleen

to submit to psychological testing. In his affidavit in support of the Petition, Mike

testified that in the past he had had to have the court ordered visitation enforced,

and that Joleen had made allegations of sexual and physical abuse against Mike.

[¶19.] On October 25, 2006, Mike’s appeal before this Court of the February

2005 child support order was affirmed by one page order, concluding the appeal was

without merit. This Court awarded Joleen $2,476.30 in appellate costs and

attorney fees.

[¶20.] Despite failing to prosecute the Petition for Modification filed on

November 2, 2005, which resulted in a dismissal, and losing his appeal before this

Court on the original child support award made in February 2005, Mike filed yet

another Petition for Modification of Child Support. Wanda Howey-Fox was

appointed as the referee for the matter. Mike once again refused to comply with the

trial court’s order requiring him to submit his financial documents. Joleen filed a

motion to compel, which Mike resisted via a motion to quash; Referee Howey-Fox

deferred her ruling on the motions until the day of the hearing.

[¶21.] Referee Howey-Fox’s report and recommendation dated June 18, 2007,

provided a critical condemnation of Mike’s attempts to avoid any increase to his

temporary child support payment of $150.00 per month. Mike’s testimony at the

hearing was included in that report as: “every penny of the money that he uses to

pay child support is borrowed” and is part of an operating note on the farm.

Furthermore, Mike testified that he believed his income should not be used to pay

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for Thomas’s health insurance as Mike and Joleen’s lack of financial resources

should qualify Thomas for Title XIX at taxpayer expense.

[¶22.] Referee Howey-Fox’s report and recommendation included a finding

that Mike’s net worth at the time of the hearing varied depending on whether

internal bank documents or external tax documents were viewed. The report

concluded Mike had $1,257,550.00 in assets and a net worth of $664,991.00.

Howey-Fox wrote: “Petitioner, however, believes that the balance of the citizens of

the State of South Dakota should provide the medical care for his child even though

he has a net worth in excess of $664,000.00.” Mike’s net monthly income was

determined to be $1,950.00, while Joleen’s was set at $783.74 per month using

minimum wage after qualifying deductions. Howey-Fox also concluded that Mike’s

arguments were circuitous and without any merit. No substantial change in

circumstances was found. Finally, Joleen was awarded $3,702.31 in attorney fees

and costs. Mike once again objected to the referee’s report and recommendation,

and once again was ordered by the trial court to pay monthly child support of

$363.00 and $75.00 per month in arrearages.

[¶23.] On July 2, 2007, Joleen filed a Motion to Show Cause for Contempt, as

Mike had not complied with the child support payments recommended by Child

Support Referee Taylor on December 31, 2004, and court ordered on August 9, 2005.

Joleen’s motion alleged Mike’s payment of child support was irregular and erratic,

and calculated he owed an additional $3,570.00 in back child support from January

2005 through July 2007, plus $2,530.78 in unreimbursed medical expenses for

Thomas.

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[¶24.] Mike objected, claiming he only owed arrearages of $2,067.00. He

excused his failure to pay child support as follows: “Defendant is a farmer and

therefore does not have a regular weekly or monthly paycheck. Because of this, he

is required to wait until money comes in each month to pay child support or borrow

the money from the bank.” Mike’s objections were rejected by the trial court, and

the child support order and arrearages remained as determined by Howey-Fox.

Mike finally paid his back child support the week before the custody trial, and his

share of unreimbursed medical expenses on the second day of trial.

[¶25.] At trial, Dr. Van Gilder testified that she had seen Thomas one-

hundred times for counseling sessions since the age of three. She also testified that

despite two years of sessions, she could not say that Thomas had improved over

time. Dr. Van Gilder noted that Joleen appeared to have a difficult time hiding her

dislike and distrust of Mike from Thomas, but that it was not something she was

doing intentionally. Although Dr. Van Gilder testified to noticeable improvement in

Joleen’s behavior in the spring of 2007, that improvement, however, dissipated as

the custody trial approached. She further testified that Thomas was a resilient,

loving child who was highly bonded to both parents. Dr. Van Gilder testified that

she did not believe Thomas would struggle to adapt to a change in custody. Dr. Van

Gilder did not recommend a change in custody.

[¶26.] Dr. Van Gilder was questioned extensively by Mike’s attorney

concerning the possibility that Joleen was attempting to alienate Thomas from

Mike. Dr. Van Gilder testified that Thomas was exhibiting behaviors consistent

with one or both parents engaging in parental alienation. She could not say

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specifically who was engaging in the alienating behaviors. Dr. Van Gilder further

testified that Joleen’s reactions to Mike’s parenting style were strong, and that

Joleen had a difficult time hiding her anxiety from Thomas. Anxiety producing

factors included Mike driving with Thomas in the pickup on the farm without a car

seat, guns in the home and pickup, being around farm machinery, and not wanting

to be separated from Thomas.

[¶27.] Dr. Van Gilder also testified to incidents of Mike’s behaviors that

caused anxiety for Thomas. Those included telling Thomas that Dr. Andre

Clayborne, a court-appointed evaluator, was coming to their home to decide where

Thomas would live and go to school. Dr. Van Gilder further testified to the effects of

an incident on Thomas in which Mike shot stray dogs preying on his sheep herd

while Thomas watched from the pickup truck.

[¶28.] Dr. Van Gilder testified that these types of behaviors by the parents

made Thomas feel he had to choose between his parents and that was what was

damaging to Thomas. In order to lessen the anxiety he felt, Thomas used “Thomas”

to refer to himself at his mother’s home, and “Tom” to refer to himself at his father’s

home.

[¶29.] Dr. Van Gilder’s testimony was that both parents had engaged in the

conduct, with Mike making derogatory remarks about “those damn Methodists.”

Joleen reportedly also made comments about Mike being a bad person or “bad guy,”

that Mike was a liar, and that Thomas did not live at Mike’s home. The end result

was that Thomas would say to his father and in counseling that Mike “was a liar,”

“my dad is a bad guy,” without being able to articulate any reasons for his

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comments. The counselor’s concerns were that Thomas was in his mind being

forced to choose between his parents, and that was the source of his acting out, and

saying inappropriate things.

[¶30.] Dr. Andre Clayborne, the court-appointed evaluator, testified that

some behaviors and comments made by Thomas as reported in Dr. Van Gilder’s

treatment notes were indicative of both parents making inappropriate comments

about each other in Thomas’s presence. Dr. Clayborne concluded that while both

parents had engaged in conduct that could be described as contact blocking or

alienation, neither appeared to do so with the intent to alienate Thomas from the

other parent. Dr. Clayborne also noted that Joleen had engaged in more of the

negative behavior than Mike, but that no alienation from either parent had

occurred. Dr. Clayborne had concerns that such conduct was responsible for

Thomas’s diagnoses of adjustment disorder, and made it difficult for Thomas to

express his love for Mike while at Joleen’s home. Dr. Clayborne also testified that

protracted and repeated litigation by one parent against the other could be a sign of

controlling and abusive behavior. Dr. Clayborne further testified that it would not

be in Thomas’s best interest to change custody from Joleen, as she had been his

primary caretaker since birth and the change would be difficult for Thomas to

handle. However, Dr. Clayborne did testify that a change in both parents’ behavior

was critical for Thomas’s sake.

[¶31.] Turbak also testified at trial. Turbak testified that she felt Joleen was

at greater fault for the difficulties between the couple. Turbak testified that Joleen

expressed great concern during the first custody evaluation in 2003 that Mike

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would take Thomas from her. Both parents expressed concerns to Turbak regarding

some of Thomas’s behaviors. Turbak had doubts that these behaviors were really

happening, although they were reported by both parents. Both parents were

disrespectful to each other at times, instead of working together on co-parenting.

Turbak testified that both parents contributed to the alienation, but believed it was

more one-sided on Joleen’s part due to Joleen’s panic driven need to protect

Thomas. However, Turbak also testified she was not qualified to give testimony on

parental alienation syndrome, but that she was aware of the syndrome.

[¶32.] Mike testified at trial concerning his lifelong Catholic faith, and that

he had lived his entire life in Plankinton except while briefly attending college in

Minnesota. He testified to his bond with Thomas. On cross-examination, Mike was

asked why he failed to pay his delinquent child support and outstanding medical

expenses until right before trial. Mike testified that he had to wait for the bank to

approve the expenditure. When queried for impeachment purposes about his ability

to pay off a vehicle earlier that year, the trial court sustained a relevancy objection

and declined to admit an exhibit showing the large expenditure. When questioned

about his less than candid responses to child support referees on his financials,

Joleen’s attorney was precluded from inquiring into the matter on a relevancy

objection. Joleen was also precluded from admitting into evidence Referee Howey-

Fox’s report and recommendation. The trial court held that the child support

dispute was irrelevant to the custody matter. Counsel for Joleen made an offer of

proof that the inquiry and exhibit went to Mike’s credibility, but the exhibit was

rejected and the line of questioning was precluded.

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[¶33.] Joleen testified on her own behalf to the loving relationship she had

with Thomas. She testified that many of the issues with Thomas noted early in the

counseling process, including bedwetting, had been eliminated. Joleen testified to

several incidents where Thomas urinated in the front yard, claiming that was how

they did it on the farm. Joleen testified to her hopes for Thomas’s education and his

upbringing, and how the differences in acceptable behavior between Mike and

Joleen’s households were addressed by her.

[¶34.] The trial court ruled from the bench after a one-hour recess. Prior to

the ruling the court stated: “‘Proverbs 3:5 says: ‘Train up a child in the way he

should go and when he is old, he will not depart from it.’ I remember an interesting

message I heard about that idea that said that it doesn’t just – the Hebrew[s] isn’t

just referring to the idea of imposing discipline but also the idea of creating a taste

for a child in lots of different aspects of life.” The court also noted that it perceived

Joleen had gone through a religious intensification since joining the United

Methodist Church in Yankton in 2003, while Mike had a lifelong commitment to his

faith and his church. These comments regarding the parties’ religious practices

were also included in the court’s written findings of fact and conclusions of law.

[¶35.] The trial court awarded primary physical care to Mike during its

comments to the parties one hour after the trial. Findings of fact and conclusions of

law were filed; Joleen properly objected. The court found that both parents had

adequately provided for the child’s food, clothing, medical care, and other basic

needs. The court noted that some concerns existed over Mike’s failure to regularly

pay his child support, but that because the support payments were current this was

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not a serious concern. The court focused extensively on what it perceived to be

Joleen’s contact blocking and attempts to alienate Thomas from Mike. It concluded

that Mike was more able to encourage frequent contact and a loving relationship

between Thomas and Joleen, than Joleen could foster on behalf of Mike.

[¶36.] Joleen raises the following issue on appeal which we find dispositive:

Whether the trial court erred when it changed primary physical
custody from Joleen to Mike.

STANDARD OF REVIEW

[¶37.] Child custody decisions are reviewed by this Court under the abuse of

discretion standard of review. Fuerstenberg v. Fuerstenberg, 1999 SD 35, ¶22, 591

NW2d 798, 807 (citing Kost v. Kost, 515 NW2d 209, 212 (SD 1994) (citing Anderson

v. Anderson, 472 NW2d 519 (SD 1991))). The credibility of witnesses and the

weight afforded to their testimony is also within the discretion of the trial court. Id.

(citing Kost, 515 NW2d at 212 (citing Mellema v. Mellema, 407 NW2d 827, 831 (SD

1987))). “‘[A]n abuse of discretion refers to a discretion exercised to an end or

purpose not justified by, and clearly against reason and evidence.’” State v. Henry,

1996 SD 108, ¶10, 554 NW2d 472, 473 (quoting In re A.R.P., 519 NW2d 56, 62 (SD

1994) (quoting State v. Moriarty, 501 NW2d 352, 355 (SD 1993); State v. Devall, 489

NW2d 371, 374 (SD 1992))). An abuse of discretion occurs in a child custody

proceeding when the trial court’s review of the traditional factors bearing on the

best interests of the child is scant or incomplete. See Fuerstenberg, 1999 SD 35,

¶23, 591 NW2d at 807 (holding “[c]hild custody disputes should not be decided

solely on a listing of faults ascribed to one parent or on the petty and often

extraneous quarrels between former spouses[,]” but rather utilize “a balanced and

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systemic approach” under the best interests standard). The broad discretion of a

trial court in making child custody decisions will only be disturbed upon a finding

that the trial court abused its discretion. Id. ¶22 (citing Kost, 515 NW2d at 212

(citing Anderson, 472 NW2d 519)). As this Court recently noted:

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 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.

Heinen v. Heinen, 2008 SD 63, ¶10, 753 NW2d 891, 894 (quoting Arneson v.

Arneson, 2003 SD 125, ¶14, 670 NW2d 904, 910).

[¶38.] The trial court’s findings of fact will be upheld unless clearly

erroneous. Anderson, 472 NW2d at 520 (citing SDCL 15-6-52(a); Lindley v. Lindley,

401 NW2d 732, 735 (SD 1987)). “We will overturn the trial court’s findings of fact

on appeal only when a complete review of the evidence leaves the Court with a

definite and firm conviction that a mistake has been made.” Miller v. Jacobsen,

2006 SD 33, ¶19, 714 NW2d 69, 76 (citations omitted).

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ANALYSIS AND DECISION

[¶39.] A custody arrangement originally reached by agreement between the

parties may be modified in subsequent proceedings without the necessity of showing

“a substantial change in circumstances.” Hulm v. Hulm, 484 NW2d 303, 305 (SD

1992) (citing Williams v. Williams, 425 NW2d 390, 393 (SD 1988)). “The party

seeking modification must show that the best interests and welfare of the child[ ]

require[ ] a change of custody.” Van Driel v. Van Driel, 525 NW2d 37, 39 (SD 1994)

(citing Williams, 425 NW2d at 393 (citing Flint v. Flint, 334 NW2d 680 (SD 1983);

Kolb v. Kolb, 324 NW2d 279 (SD 1982))). The best interests of the child are

determined by considering the child’s temporal, mental, and moral welfare.

Fuerstenberg, 1999 SD 35, ¶22, 591 NW2d at 806 (citing SDCL 25-5-10; Jopling v.

Jopling, 526 NW2d 712, 717 (SD 1995)) (additional citations omitted).

[¶40.] Whether the trial court erred when it changed primary
physical custody from Joleen to Mike.

[¶41.] The trial court may, but is not required to, consider the following

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., 1999 SD 35,

¶¶24-34, 591 NW2d at 807-10. When considering parental fitness, a court may

consider:

(1) mental and physical health; (2) capacity and disposition to
provide the child with protection, food, clothing, medical care,
and other basic needs; (3) ability to give the child love,
affection, guidance, education and to impart the family’s
religion or creed; (4) willingness to maturely encourage and
provide frequent and meaningful contact between the child
and the other parent; (5) commitment to prepare the child for

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responsible adulthood, as well as to insure that the child
experiences a fulfilling childhood; and (6) exemplary
modeling so that the child witnesses firsthand what it means
to be a good parent, a loving spouse, and a responsible
citizen.

Id. ¶24 (internal citations omitted). We focus on those that are the primary to a

resolution of the issue of custody in this case.

Ability to give the child love, affection, guidance, education and to impart
the family's religion or creed.

[¶42.] The manner in which a parent encourages his or her child to practice a

religion is a legitimate factor for trial courts to consider when awarding custody.

See Jopling, 526 NW2d at 717 (finding of fact that father’s unhealthy and confusing

religious instruction wherein he paid children to attend church found not in

children’s best interest was upheld on appeal). In this case, the trial court weighed

the relative commitment over time each party had for their respective faiths, and

found this factor favored Mike due to his lifelong commitment to his faith.

However, the trial court noted that both parties practiced their respective faiths in

a manner that permitted Thomas to participate equally.

[¶43.] While we do not suggest that trial courts must weigh the number of

years one parent has attended church against the other parent’s attendance, we do

not find an abuse of discretion by the trial court in this instance for doing so. We

caution that this is but one factor in a child custody determination. We do not

conclude that the trial court placed a disproportionate amount of weight on this

factor.

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Willingness to maturely encourage and provide frequent and meaningful
contact between the child and the other parent.

[¶44.] The trial court focused extensively on this factor in determining its

custody award. There are some serious discrepancies in the record.

[¶45.] We can only conclude based on the record that neither parent wanted

to give up any time with Thomas, and would have preferred not to share visitation

time with the other parent. This is unfortunately the reality of the child custody

and visitation process. We do not see any successful attempts by either party in

blocking access to Thomas, but certainly attempts by both parties to have as much

time as possible with Thomas.

[¶46.] The record does not support Mike’s claim that Joleen was purposefully

attempting to alienate Thomas from Mike, as there is no evidence anywhere in the

record other than Mike’s allegations, that Joleen was so engaged. Dr. Van Gilder,

Dr. Clayborne, and Turbak all testified that Joleen was unable to hide her fear of

losing Thomas and her panic for his safety and security while at the farm. Both

parties made inappropriate comments regarding their distain for the other in

Thomas’s presence, although the record is also clear that more comments were

made at Joleen’s home. Thus, we conclude that the trial court’s finding of fact

number twenty-nine, that Joleen had continued to attempt to alienate Thomas from

Mike, is clearly erroneous.

Capacity and disposition to provide the child with protection, food,
clothing, medical care and other basic needs.

[¶47.] The trial court’s finding of fact number six was as follows: “Each

parent adequately provides for Thomas’s protection, food, clothing, medical care and

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basic needs.” (Emphasis added.) During the court’s comments before issuing its

order, it stated its belief that the capacity and disposition to provide Thomas with

food and other basic needs was equally met: “I find that there have been delays in

paying child support that are troubling. On the other hand, I am aware of the

vicissitudes of farming and the issues of lenders and cash flow approval.”

[¶48.] South Dakota Codified Law 25-7-6.1 provides in relevant part: “The

parents of a child are jointly and severally obligated for the necessary maintenance,

education, and support of the child in accordance with their respective means.” A

parent’s duty to support his child is paramount, and all other debts are secondary to

that duty. Jasper v. Smith, 540 NW2d 399, 404 n4 (SD 1995) (citing Brunick v.

Brunick, 405 NW2d 633, 634 (SD 1987)). This Court has previously held that the

self-serving testimony of a parent standing alone is insufficient without

corroboration to establish a defense that a party cannot pay his child support.

Sazama v. State ex rel. Muilenberg, 2007 SD 17, ¶20, 729 NW2d 335, 343 (citation

omitted).

[¶49.] Mike was able to avoid the contempt proceedings scheduled at the end

of the custody trial by paying his back child support in the amount of $3,570.00 the

week before trial and $2,530.78 in medical expenses on day two of the trial.

However, the trial court failed to give sufficient weight to Mike’s two and one-half

year refusal to pay the full amount of the court ordered child support. Mike,

instead, equated his failure to do so and insistence on paying only $150.00 per

month in child support toward Thomas’s needs as a byproduct of being a cash-

strapped farmer, rather than a concerted effort on his part to avoid any increase to

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his temporary child support payment. There is nothing in our statutes or this

Court’s precedent that excuses a parent from timely paying child support due to the

cash flow limitations of farming or any other profession. Nothing allows a parent to

unilaterally set a lower amount for that support in defiance of a valid court order.

[¶50.] There is nothing in the record to indicate Mike adequately provided for

Thomas’s basic needs within his respective means. Mike’s suggestion that the

taxpayers of the State of South Dakota should provide his child’s health insurance

coverage through Title XIX is equally indicative of a parent who is unwilling to

provide basic necessities for his child from his own resources.

[¶51.] There was substantial evidence that appears to have been disregarded

by the trial court concerning the manner in which Mike denied Thomas these basic

necessities for two and one-half years prior to the custody trial. Mike did so despite

a finding by a child support referee, based in part on Mike’s own documents, that

Mike had a net worth of over $660,000.00 at that time. 2

[¶52.] To suggest that a father with a net worth over $600,000.00 and cash

flow limitations from his farming operation should be excused from timely paying a

$363.00 monthly child support obligation is an invitation to any parent experiencing

2. Mike’s bank records including loan applications prepared by him were the
basis for that valuation set by the child support referee. When asked by his
own attorney why that figure was not accurate, Mike commented that they
were inflated for the purpose of obtaining loans from the bank. Mike
confirms this in his brief when he stated, “However, opposing counsel was
informed by the bank that the land value was inflated (by $400,000.00) due to
their rewriting the operating note for Mike that year.” Throughout all the
subsequent proceedings, that finding of the child support referee has never
been reversed.

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financial difficulties (real or imagined) to refuse to comply with support obligations.

Furthermore, Mike’s repeated use of the legal system to deny Joleen child support

payments for Thomas was not appropriate parental conduct. While Mike

undoubtedly thought he was the victim of the child support referee’s report and

recommendation, the true victim was Thomas, whose mother struggled financially

to provide Thomas with basic necessities during these endless legal battles.

[¶53.] The trial court’s finding of fact on Mike’s ability and willingness to

provide for Thomas’s basic needs was clearly in error. While we find clear error in

the trial court’s findings of fact, that alone is not enough. We must also determine

whether the trial court made a “‘fundamental error of judgment, a choice outside

the range of permissible choices, a decision, which, on full consideration, is arbitrary

or unreasonable.’” Heinen, 2008 SD 63, ¶10, 753 NW2d at 894 (quoting Arneson,

2003 SD 125, ¶14, 670 NW2d at 910 (internal citation omitted)). The trial court’s

discretion is not abused when it selects between two satisfactory options, which for

child custody purposes means selecting between two loving parents with little to

distinguish one over the other. See id. (citing Arneson, 2003 SD 125, ¶14, 670

NW2d at 910). Thus, in our review of an ultimate decision on custody, we decide

only whether the court abused its discretion. Id.

[¶54.] This was not a case of choosing between two equally satisfactory

parents. The difference between the parents that becomes clear on review is their

respective ability and willingness to provide for Thomas’s basic food, shelter and

clothing needs. Mike demonstrated a clear disregard for Thomas’s wellbeing when

he fought tooth and nail to maintain his child support obligation for Thomas at

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$150.00 per month, especially in light of Joleen’s modest part-time income, higher

education expenses, and lack of assets. Mike used the full power of his financial

resources to keep from paying an additional $213.00 per month for the basic

necessities of life for his child. Instead, Mike expended at least $3,678.61 for

Joleen’s attorney fees which he was court ordered to pay, in addition to his own

legal expenses. As previously noted, Mike finally paid his overdue child support in

the amount of $3,570.00 the week before trial and $2,530.78 in medical expenses on

day two of the trial. Unfortunately, the trial court did not permit inquiry into the

issue of Mike’s failure to timely pay his child support obligations. While the trial

court did find Mike’s past failure to pay his support obligation “troubling,” it found

it was not a serious concern.

[¶55.] On review, we consider Mike’s failure to adequately support his child

of grave concern. A parent who argues poverty while at the same time expending

thousands of dollars to fight a $213.00 monthly increase in child support would not

concern us as much if that parent had paid the child support while opposing the

increase. Mike’s failure to adequately provide for his child cannot be justified.

“Paramount” means just that – paramount with no caveats.

CONCLUSION

[¶56.] We do not retry the facts of this case de novo nor reweigh disputed

evidence. It is not necessary or appropriate for us to do so. Mike’s record of

intentional failure to consider the financial needs of Thomas over those of his own

in defiance of valid court ordered support speaks volumes about Mike’s

unwillingness to provide support for Thomas. Numerous referees, circuit judges,

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and this Court have consistently rejected his pleas of poverty. “‘All too often in

setting child support, “[t]here are simply too few dollars to meet even the most

modest standard of living . . . [and judges] are called upon to apportion poverty and

its accompany misery.”’” In re Discipline of Ortner, 2005 SD 83, ¶41, 699 NW2d

865, 878 (quoting Ochs v. Nelson, 538 NW2d 527, 531 (SD 1995) (internal citation

omitted)). In numerous cases there is no alternative due to lack of parental funds.

Such is not the case here as has been determined time after time in previous rounds

of this endless litigation. While one does not automatically become the better

parent by financial ability and willingness to outspend the other in money allocated

to a child, there are certain fundamental needs a child has, which if not provided,

result in dire consequences for that child’s wellbeing and future. In this case, Mike

failed to provide for those fundamental needs.

[¶57.] We reverse as clearly erroneous the trial court’s finding of fact that

these parents were equals when it came to the willingness and provision of basic life

needs for Thomas. Joleen clearly is a better parent in this regard. The trial court

abused its discretion when it found that the best interests and welfare of Thomas

required a change in custody to Mike, the parent who had provided less than

adequate support for his son and demonstrated disregard for Thomas’s basic needs

and wellbeing.

APPELLATE ATTORNEY FEES

[¶58.] As authorized by SDCL 15-26A-87.3, Joleen seeks appellate attorney

fees. We award the sum of $5,000.00 in appellate attorney fees.

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[¶59.] Reversed. 3

[¶60.] KONENKAMP, Justice, and SABERS, Retired Justice, concur.

[¶61.] ZINTER and MEIERHENRY, Justices, dissent.

ZINTER, Justice (dissenting).

[¶62.] I join the dissent of Justice Meierhenry. I write to point out that the

majority virtually overlooks the reason why the circuit court determined a change of

custody was necessary. There is no dispute that this child had endured five years of

a particularly contentious child custody arrangement. There is also no dispute that

this child had been unsuccessfully treated more than one hundred times over two

years for a conduct disorder arising from the parental alienation syndrome existing

under Joleen’s custodial arrangement. Although a resolution of the child’s problems

was the core issue of the case, the majority devotes only three 4 of its fifty-nine

paragraphs to the issue, choosing instead to devote virtually all of its analysis to the

parties’ ongoing disputes relating to child support. Moreover, the majority fails to

even acknowledge the circuit court’s underlying findings of fact on alienation, the

3. During this appeal, Joleen filed a motion requesting Mike’s brief be stricken
for factual inaccuracies in reference to the trial record. While we do not grant
the motion, we remind counsel of their obligation to correctly cite to the trial
record and the fact that representation of a client does not grant license to
expand upon and inaccurately portray the true state of the record.

4. In those paragraphs, the Court summarily dispatches the issue by declaring
there are “serious discrepancies in the record” concerning this matter. The
Court, however, does not identify any evidence suggesting that Joleen was
not more at fault in causing the problems. See supra ¶¶44-46.

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prospects for change, and the unchallenged findings in which the circuit court

expressly rejected Joleen’s credibility on these issues.

[¶63.] I would not decide this case on the parties’ history of child support

litigation. In my view, we should review the testimony of the mental health

professionals, the circuit court’s credibility findings regarding Joleen and Mike on

parental alienation, and the circuit court’s underlying findings of fact regarding

each parent’s ability to do what was necessary to resolve the child’s problems.

When those issues are examined under the correct standard of review, they reflect a

circuit court decision that was not clearly erroneous and one that was based on

reason and the evidence.

[¶64.] Contrary to the Court’s statement, the circuit court’s decision was not

based on Joleen’s “purposefully attempting to alienate Thomas from Mike.” See

supra ¶46. On the contrary, the circuit court’s findings focused on the fact that

whether purposeful or not, Joleen was more responsible for the alienation, and that

Joleen would be “unwilling” or “unable” to change her “very troubling” behavior if

the same custodial arrangement were to continue. See infra ¶68. This Court’s

decision to focus on Mike’s trial contention rather than the circuit court’s findings

predictably leads to the Court’s result.

[¶65.] Our appellate function should be to review the evidence and reasons

relied upon by the circuit court to reach its decision. “No precise formula exists for

making a custody determination, but the decision should be balanced and

methodical.” Zepeda v. Zepeda, 2001 SD 101, ¶13, 632 NW2d 48, 53 (citing

Fuerstenberg, 1999 SD 35, ¶23, 591 NW2d at 807). In this case, there is no dispute

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that the circuit court addressed the Fuerstenberg factors. The primary basis 5 for

the circuit court’s decision was its findings that Joleen was more responsible for

Thomas’s parental alienation syndrome, that Joleen was unlikely or unwilling to

change, and the experts’ agreement that without some change in the parents’

conduct, Thomas’s adjustment disorder would continue as it had remained since

2002. Ultimately, the circuit court’s determination was based on the finding, not

addressed by this Court, that: “Father [was] better situated to model what it means

to be a good parent in such areas as allowing the child to have a healthy and loving

relationship with the other parent, and in not portraying the other parent in a

negative light for the child.”

5. The Court reverses on its determination that the circuit court “failed to give
sufficient weight” to, and “disregarded” Mike’s delay in, making his child
support payments. See supra ¶¶49, 51. The Court is incorrect. The circuit
court expressly considered this issue, and although it found it troubling, the
circuit court found that factor was outweighed by the unsuccessful treatment
of the parental alienation syndrome the child was enduring as a result of the
existing custody situation. Further, until today, it was well established that
this Court does not reweigh the evidence to derive new factual findings.
State v. Labine, 2007 SD 48, ¶18, 733 NW2d 265, 270. It must also be noted
that in an attempt to support its own appellate finding, the Court relies on
factual findings of a child support referee that were not admitted into
evidence. Compare ¶¶20-22 (reciting findings of Referee Howey-Fox) with
¶32 (acknowledging that Howey-Fox’s report and recommendation were not
admitted in evidence).

With respect to litigiousness, the record is clear that both parties made
repeated use of the legal system from the time of the child’s birth. According
to Dr. Clayborne, shortly after the birth, Joleen moved to change the child’s
name (to remove Mike’s surname). Dr. Clayborne further indicated that
Joleen had unilaterally discontinued mediation and denied visitation. In the
resulting disputes, both parties utilized a number of attorneys and both
parties filed numerous motions relating to custody, visitation, and support.

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[¶66.] Factually, these findings are well supported. There is no dispute that

at the time of trial in 2007, Thomas was suffering from an adjustment disorder as a

result of the parents’ conduct in the custody situation that had been in place since

February 2002, a period during which Joleen was the primary custodian. There is

also no dispute that the status quo was not working. As the Court notes, Dr. Van

Gilder indicated that Thomas was exhibiting behaviors consistent with one or both

parents engaging in parental alienation. Supra ¶26. However, the Court fails to

address Dr. Van Gilder’s specific testimony that Thomas’s presence in Joleen’s

home caused him to be conflicted such that he could not comfortably express his

love for his father:

I indicated to [parents] that I did not necessarily know nor was I
identifying where this was coming from but that [Thomas’s]
behaviors were consistent with [alienation]. Some of the
statements he was making villainizing his father, the
misbehavior, I mean, the anxiety anticipating events and visits
with his father. These types of things are kind are [sic] part and
parcel of the flavor of alienation. . . . I’m not seeing this
behavior occurring at Mike’s. I think part of the reason that [it]
is occurring more with Joleen is because Thomas is conflicted,
that he feels he cannot be comfortable about dad in mom’s home.

(Emphasis added.) Dr. Van Gilder further explained:

[Thomas] makes statements that suggest that he doesn’t love his
father or he doesn’t like to go to the farm. Those statements are
typically made in a manner that doesn’t necessarily match with
how he feels. In other words, there is no anger behind it or not
enough anger behind it or enough reasoning behind it. So that
implies to me that maybe these are things that he feels like he
needs to say.

Dr. Van Gilder opined that this was unhealthy for Thomas. And, as the Court

concedes, Dr. Van Gilder had been counseling Thomas for over two years (starting

at age three) which involved over one hundred visits, yet Thomas had not improved.

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See supra ¶25. Dr. Van Gilder did not believe that Thomas would struggle to adapt

to a change in custody. Id.

[¶67.] As the Court further concedes, Renee Turbak, the home custody

evaluator, indicated that Joleen was at greater fault for Thomas’s alienation. Supra

¶31. Dr. Clayborne also agreed that parental alienation syndrome was present, and

he “suspected Joleen and her mother have made derogatory comments about Mike

to and around Thomas.” Dr. Clayborne noted that he could not determine what

Joleen’s intentions were in making derogatory comments, “but it does appear that

she minimizes Mike’s role and does not value his input into parenting of their son.

This type of attitude is the essence of [Parental Alienation Syndrome] and should be

discontinued if you wish for [the child] to have a healthy relationship with both

parents.” Dr. Clayborne finally indicated that this conduct was probably one of the

reasons why Thomas tended to be more physically violent in Joleen’s home.

[¶68.] In addressing this primary concern, the circuit court entered sixty-six

findings of fact, most of which are not addressed by this Court. In those findings,

the circuit court explained that whether Jolene’s alienation behavior was

intentional or unintentional, she was more at fault; she was not credible on this

issue; her behavior was not likely to change; and therefore, a change in the existing

custodial relationship was in Thomas’s best interests. It must be emphasized the

circuit court specifically found: that Joleen dismissed the possibility that Mike

could or should play a significant role in Thomas’s life; that Joleen’s efforts in

changing her behavior, as of September 2007, had not been successful and had

brought out anxiety, anger and other negative behaviors in Thomas; that those

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behaviors were more frequently displayed in Joleen’s home, and Mike had few

discipline problems with Thomas; that it would be most healthy for Thomas to

perceive that he could freely express his love and desire to be with both parents, but

it did not appear that Thomas could comfortably express his love for his father and

his desire to spend time with him in Joleen’s home; that Thomas portrayed his

father as a villain in therapy, while it happened only occasionally with respect to

his mother; that Thomas felt reluctant to talk freely about his father at his mother’s

house, and the anger and disdain Joleen expressed for Mike in Thomas’s presence

appeared to now extend to Joleen’s family; that Thomas made statements without

anger that he did not love his father and did not want to go to the farm, implying

that these were matters Thomas felt he had to say rather than matters he actually

felt; that Joleen believed Mike’s parental judgment was inferior and he could not be

trusted to do what was best for Thomas or to protect his safety, and therefore,

Thomas was worse off having to visit his father’s home; that Joleen treated Mike

not like a key family member, but more like an annoying acquaintance that Thomas

must see and put up with; that although both parties, at times, failed to promote a

positive relationship, Joleen had consistently failed to promote such a relationship;

that the record was full of negative statements by Thomas about his father

indicating that they were heard in his mother’s home; that Joleen and her mother

had made derogatory comments about Mike to or around Thomas; that while Mike

was credible on these key issues, Joleen displayed characteristics or tested

positively for histrionic behavior and narcissism, and her testimony was less than

credible about the issues concerning parental alienation and making decisions

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about Thomas without Mike’s involvement; that Joleen had strong feelings about

what took place at Mike’s residence and she exaggerated concerns for Thomas’s

physical and emotional safety; and, that although blame was not placed entirely

with either parent, inappropriate behavior had occurred and Joleen was chiefly

responsible for it.

[¶69.] Thus, the circuit court specifically found:

Mother’s conduct has not demonstrated any meaningful progress
in avoiding such behavior. She has continued to attempt to
alienate Thomas from his father. These efforts have taken
many forms, including, but not limited to: making derogatory
remarks about father-and allowing others to do so-in Thomas’s
presence; creating an environment for Thomas where it is not
okay to express his love for his father; routinely failing to
include father in significant decisions about Thomas’s life;
making it more difficult than necessary for father and Thomas
to spend time together; portraying father as a villain in
Thomas’s presence.

The circuit court then reiterated that the experts indicated something had to

change: if “the same custodial arrangement were to continue, it is likely that

mother would be either unwilling or perhaps unable to change her behavior relating

to efforts to alienate Thomas from his father.” The court found that there was no

reason to believe that if Joleen continued to retain custody, the communication and

alienation concerns were going to dissipate in as much as they had not lessened

despite extensive outside help. Therefore, a change in custody was required.

[¶70.] This Court has not identified any evidence indicating how these

underlying findings–the ones that the circuit court actually used as the basis for its

decision–were clearly erroneous. In light of these underlying findings and the

record previously cited, and especially in light of the circuit court’s express rejection

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of Joleen’s credibility on the central issue of her alienation, I cannot join an opinion

that decides the case on the parties’ various disputes regarding child support. For

the same reason, I cannot join this Court’s assumption that there was no difference

between the parties in terms of their conduct towards each other and the

detrimental effect it was having on Thomas; i.e., that both parents had engaged in

inappropriate conduct. See supra ¶¶45-46. Certainly, we should not begin a course

of analysis that fails to consider harmful parental misconduct by rationalizing that

“both parties” had some degree of involvement. See id. (rationalizing that both

parties attempted to spend as much time as possible with the child and both parties

made inappropriate comments). Ultimately, the language of the Court, reversing on

the parties’ history of child support litigation, reflects that it has retried the case by

substituting its judgment for that of the circuit court on the relative importance of

the Fuerstenberg factors.

[¶71.] The circuit court attempted to resolve a five-year, unworkable child

custody arrangement under which Thomas was unquestionably being harmed.

Because the circuit court’s underlying findings were made on the express rejection

of Joleen’s credibility regarding this principal issue, we should continue to follow

our often stated “‘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 [the situation] firsthand.‘” Hogen v. Pifer, 2008 SD 96, ¶9, 757

NW2d 160, 163 (quoting Maxner v. Maxner, 2007 SD 30, ¶11, 730 NW2d 619, 622).

More importantly, because the circuit court’s underlying findings reflect that its

decision was an attempt to change an extended, harmful child custody

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arrangement, the circuit court’s decision was not one exercised to “‘an end or

purpose not justified by, and clearly against, reason and evidence.’” Hrachovec v.

Kaarup, 516 NW2d 309, 311 (SD 1994) (quoting Herndon v. Herndon, 305 NW2d

917, 918 (SD 1981)). I cannot, as does the majority, justify a continuation of this

harmful situation on the belief that it is an “unfortunate[ ] . . . reality of the child

custody and visitation process.” Supra ¶45. No matter what collateral failings of

the parties the majority chooses to focus upon, “our brightest beacon remains the

best interests of the child.” Zepeda, 2001 SD 101, ¶13, 632 NW2d at 53 (citation

omitted). Therefore, unlike the majority, I cannot characterize the circuit court’s

focus on the harm that was being perpetrated on this child by the existing custody

arrangement as “‘a fundamental error of judgment, a choice outside the range of

permissible choices, a decision, which, on full consideration, is arbitrary or

unreasonable.’” Hogen, 2008 SD 96, ¶9, 757 NW2d at 163 (quoting Maxner, 2007

SD 30, ¶11, 730 NW2d at 622). I therefore dissent.

MEIERHENRY, Justice (dissenting).

[¶72.] Although I agree with the majority that the trial court overlooked

Mike’s consistent failure to provide child support, I cannot agree that the trial court

abused its discretion by changing custody. When announcing his decision in open

court, Judge Bjorkman expressed his concern about Mike’s delayed child support

and medical payments. He indicated, “I would expect that father not repeat that,

that they are paid now. And there may be some explanation for some of the delays

in the past.” It is hard to imagine that a parent, who consistently refuses to pay

child support, has the child’s best interest in mind.

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[¶73.] Nevertheless, I cannot conclude based on our standard of review that

Judge Bjorkman abused his discretion when he changed custody to Mike. He

considered and weighed all the Fuerstenberg factors carefully. See Fuerstenberg,

1999 SD 35, ¶¶24-34, 591 NW2d at 807-10. He based this finding on what the

experts said in their reports and testimonies. Joleen’s attempt to alienate the child

from his father weighed heavily in the custody determination. See id. ¶31, 591

NW2d at 809. Judge Bjorkman also noted that Joleen’s psychological profile

displayed “characteristics of histrionic behavior and narcissism.” Additionally, he

found Joleen’s testimony to be:

less credible at various points, particularly about issues
concerning parental alienation, and making major decisions
about Thomas without father’s involvement. In those
situations, she appeared reluctant to answer questions in a
straightforward fashion and would often evade or fail to answer
the exact questions asked to justify a position.

The court further found that Mike had made progress in promoting a positive

relationship between the child and Joleen, but that Joleen continued to try to

alienate the child from Mike. The court described Joleen’s attempts at alienation as

follows:

These [alienation] efforts have taken many forms, including, but
not limited to: making derogatory remarks about father –
allowing others to do so – in [child’s] presence; creating an
environment for [child] where it was not okay to express his love
for his father; routinely failing to include father in significant
decisions about [child’s] life; making it more difficult than
necessary for father and [child] to spend time together;
portraying father as a villain in [child’s] presence.

The court’s findings are based on the testimony and expert reports. I cannot agree

with the majority that the findings are clearly erroneous.

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[¶74.] Even though we may have made a different custody decision based on

the record, we must give deference to the trial court. Determining the credibility of

the witnesses and the weight given to their testimony falls within the discretion of

the trial court. Id. ¶22, 591 NW2d at 807. Judge Bjorkman used a balanced and

systematic approach, and considered and weighed all the evidence as it related to

the relevant factors. Judge Bjorkman’s custody decision was not an abuse of

discretion, “‘exercised to an end or purpose not justified by, and clearly against

reason and evidence.’” Henry, 1996 SD 108, ¶10, 554 NW2d at 473 (quoting In re

A.R.P., 519 NW2d at 62 (quoting Moriarty, 501 NW2d at 355; Devall, 489 NW2d at

374)).

[¶75.] I would affirm.

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