Hathaway v. Bergheim

SABERS, Justice (on reassignment).

[¶ 1.] Jody Bergheim filed a motion seeking custody of his eight-year-old son, Christian. The trial court denied the motion, determining that Christian should remain with his mother, Heather Hathaway. Jody appeals and we affirm.

FACTS

[¶ 2.] Heather and Jody grew up in Madison, met in high school, and married in 1990. He farmed and worked for a livestock auction business. She worked in a grocery store while attending college.

[¶ 3.] Christian was born May 13, 1992. The parties separated in October 1992 because of financial difficulties. Their divorce became final on March 9, 1993, and the parties received joint custody of Christian.

[¶ 4.] Since the divorce, Jody, whose current income is over $40,000, has paid $105 per month for Christian’s support. Heather worked several jobs to support herself and Christian, continued to attend college, and was Christian’s primary caregiver. Jody has always been faithful about visitation and fully involved in Christian’s activities, school and church.

[¶ 5.] On February 12, 1994, Heather married Stephen McComish. Heather and Stephen’s son, Michael, was born on September 6, 1994. Because of Stephen’s absence, the two divorced on March 20, 1996. Heather was awarded actual physical custody of Michael.

[¶ 6.] In the spring of 1998, Heather received her bachelor of science degree in information systems. On August 13, 1998, she married Brent Hathaway. It was the third marriage for both. Heather, who had lived in Madison since 1979, and the boys moved to Brent’s home by Chester, South Dakota. Heather worked for the Harrisburg School District while Brent continued selling cars in Madison.

[¶ 7.] On July 1, 1999, Heather became the information systems coordinator for Mitchell Technical Institute (MTI). Her salary increased by $8,000 and she considered it a career advancement. After one year at MTI, Heather and Brent decided to move to Mitchell and scheduled the *351move for summer 2000. They believed the family would benefit from eliminating two commutes and living and working in the same town where the children attended school.

[¶ 8.] Because of the move, Heather allowed Jody to have Christian for the entire summer rather than the four weeks allotted in the divorce decree. Michael spent the summer with Stephen. The boys’ contact with each other was minimal. Each did well.

[¶ 9.] Christian and Michael returned to Heather’s care when school started in Mitchell. Jody and Stephen filed motions for change of custody. Each expressed the same concerns. They believed Heather provided an unstable environment for the children because of her many moves and jobs, her relationships with many men and what they considered to be her unstable third marriage.

[¶ 10.] Jody and Stephen’s motions were tried in one proceeding. Dr. Andre B. Clayborne, a licensed professional counsel- or, prepared custody home study evaluations. He concluded that Michael should remain with Heather. He noted that: “Michael reported having a very close relationship with his brother [Christian.] Indeed, according to Michael, he and [Christian] share a lot together and he really enjoys being with his brother.”

[¶ 11.] Christian told Dr. Clayborne that he wanted to live with Jody. In recommending that primary custody of Christian be awarded to Jody, Dr. Clayborne noted that while both parents were effective, Jody offered more stability and involvement. He believed Heather and Jody would cooperate in allowing substantial contact between Michael and Christian.

[¶ 12.] The trial court found that Heather, as primary caretaker, provided appropriate education, recreation, care, parental love, affection and guidance. It found that Christian and Michael have a “closely bonded sibling relationship.” It also found that Jody demonstrated a strong relationship with Christian and a stable lifestyle. Of the three parents involved, the court found that Jody was the best, followed by Heather. Stephen was “the worst.”

[¶ 13.] The trial court concluded that, while it was in the best interests of Christian individually to be with Jody, it was in his and Michael’s best interests to remain with Heather.

STANDARD OF REVIEW

[¶ 14.] “The primary determination in a custody dispute is to ascertain the best interest of the child.” Price v. Price, 2000 SD 64, ¶ 18, 611 N.W.2d 425, 430 (citing Fuerstenberg v. Fuerstenberg, 1999 SD 35, ¶ 22, 591 N.W.2d 798, 806 (citations omitted)). “Trial courts possess broad discretion in deciding the best interests of a child; their decisions will only be disturbed upon a finding of abuse of discretion.” Fuerstenberg, 1999 SD 35 at ¶ 22, 591 N.W.2d at 807 (citations omitted).

[¶ 15.] WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING JODY’S MOTION FOR CHANGE OF CUSTODY.

[¶ 16.] Jody argues that the trial court abused its discretion in denying his motion for change of custody because it was in the best interests of Christian to be with him. He argues that the trial court’s finding that it was in the best interests of Christian individually to be with him, should override the trial court’s finding that it was in the best interests of both Christian and Michael to remain with Heather. He argues that the trial court allowed the rule regarding the separation of siblings to override Christian’s best interests.

*352[¶ 17.] The trial court concluded in part:

The [c]ourt determines that it is in Christian’s, individually, best interest that custody be changed to his father Jody Bergheim, but that [it] is in the best interest of Michael McComish, individually, to remain with his mother[,] Heather Hathaway.
The [c]ourt determines that there are no compelling reasons to separate the siblings, Christian Richard Bergheim and Michael Thomas McComish. Therefore, it is in the best interest of both children as siblings to remain in the custody of their mother, Heather Hathaway.

[¶ 18.] When it addressed the parties, the court explained:

I believe largely, like Mr. Clayborne did, that it’s in the best interests of Christian to be with his father. I believe that it’s in the best interests of Michael to be with his mother. I believe that it is in the best interests of Michael to have Christian living with him. We have a clear conflict between what is in Michael’s best interests to have Christian [and] what is Christian’s best interests to have his father. That’s the reason why South Dakota put in the provision that there has to be compelling reasons to separate children and it still is in the best interests of the children. I weigh the best interests of Michael and Christian and believe that Christian should remain with his mother, and that Michael should remain with his mother. I do that quite hesitantly because I do believe it is in the best interests of Christian to be with his father. I think the loss of Michael would be significant but not damaging. I believe the loss to Michael of Christian would be damaging to Michael. The one thing that those two children have is each other. And so the [c]ourt will order that the children remain in the custody of their mother.

[¶ 19.] In determining the best interests of a child, the court must consider the child’s “temporal, mental and moral welfare.” SDCL 25-4--45; Fuerstenberg, 1999 SD 35 at ¶ 22, 591 N.W.2d at 806 (citations omitted). The trial court may consider these factors in determining which parent should have primary care of the child: “(1) parental fitness; (2) stability; (3) primary caretaker; (4) child’s preference; (5) harmful parental misconduct; (6) separation of siblings; and (7) substantial change in circumstances.” Price, 2000 SD 64 at ¶ 18, 611 N.W.2d at 430. These factors serve as guidelines and the trial court need not address all of them. The trial court’s decision regarding custody, however, “should be ‘balanced and methodical’ and should be based on ‘the best interest of children and not the shortcomings of the custodial parent.’ ” Id. at ¶ 56 (citing Fuerstenberg, 1999 SD 35 at ¶ 35, 591 N.W.2d at 810) (internal citations omitted).

[¶ 20.] The trial court considered each of these factors and determined what was in the best interests of Christian. It found that Heather was a fit parent and Christian’s primary caretaker. It found that there were no compelling reasons to separate the siblings, Christian and Michael, and that, therefore, it was in the best interests of both children as siblings to remain in the custody of their mother. In other words, even though it might have been in the best interests of Christian, individually, to be with his father, when all things are considered, it was in his best interests to be with his brother and his mother, and not his father.

[¶ 21.] The trial court did make a determination of Christian’s best interests. It found that in these circumstances it was in the best interests of both children as *353siblings to remain in the custody of their mother. There is no real need to unsettle the settled custody situation and the settled custody law.

[¶ 22.] Jody has failed to show that the trial court abused its discretion in determining that custody of Christian should remain with Heather. Therefore, we affirm.

[¶ 23.] AMUNDSON and KONENKAMP, Justices, concur. [¶24.] GILBERTSON, Chief Justice, and GORS, Acting Justice, dissent. [¶ 25.] ZINTER, Justice, not having been a member of the Court at the time this action was submitted to the Court did not participate.