(dissenting).
We are not all equal in ability but we are equal in the eyes of God and, per the founders of this Republic, in Law. I cannot join the majority opinion because this father and his three children strongly desire to be with one another, the children are beyond the mother’s control by her own admission, and it is in the best interests of the children that there be a change of custody. I respectfully dissent.
My Brothers on this Court forthrightly express their dismay that the trial court “appears” to be “closing the door to the evidence presented in the case before it.” Notwithstanding, they “are compelled to affirm the trial court.” Right observation. Wrong conclusion. In my opinion, this Court can say, as a matter of law, that the facts are other than that found by the trial court. Hilde v. Flood, 81 S.D. 25, 130 N.W.2d 100 (1964).
Clearly, under the evidence presented to the trial court, the trial court should be reversed. I so vote. One of the oldest scopes of review in this Court is as follows: Although the trial court exercises broad discretion in determining questions of custody, such discretion must have a sound and substantial basis in the testimony. Olson v. Olson, 438 N.W.2d 544 (S.D.1989). A trial court can be reversed if there is a clear abuse of discretion. Andera v. Andera, 277 N.W.2d 725 (S.D.1979). This Court should reverse if a decision is clearly against reason and evidence. Straub v. Straub, 381 N.W.2d 260 (S.D.1986); Herndon v. Herndon, 305 N.W.2d 917 (S.D.1981). It exists in the case before us.
There exists a flawed trial court order dated August 10, 1993; said order, in itself, mandates reversal. In the Findings of Fact and Conclusions of Law of said date, the trial court addressed the future conduct of the twin boys, Todd and Brad. Trial court should have focused on the actual facts under consideration. It totally ignores the problems and conduct of the parties’ daughter, Leslie. Trial court separated the children in its order, declaring in effect, that the boys were to modify their behavior in the future but remained silent about Leslie. Evidence *416established that Leslie developed anger and resentment against her mother, could not sleep, did not wish to live with her mother, had a strong preference to live with her father, and her behavior was deteriorating. Experts recommended immediate therapy for Leslie. Trial court expresses in its order “the court shall reconsider a change in the custody of the twin boys, Todd and Brad Kappenman, on or about August 1, 1995, provided the children continue to develop a relationship with their mother by learning sign language, treating their mother with respect, following the rules of their parents’ respective households and conducting themselves as civilized young men.” Leslie? She was not mentioned!
This Court should recognize that there was no evidence introduced relevant to splitting up the twin boys from their sister. Siblings should not be split unless there are compelling circumstances. Mitzel v. Black Cloud-Walberg, 511 N.W.2d 816 (S.D.1994); Schmidt v. Schmidt, 444 N.W.2d 367 (S.D. 1989); Mayer v. Mayer, 397 N.W.2d 638 (S.D.1986). True, all three children were to remain with the mother but the trial court ordered a reconsideration of the boys in a year, without mentioning the troubled Leslie.
In Williams v. Williams, 425 N.W.2d 390 (S.D.1988), this Court, in an enlightened viewpoint towards grasping the reality of that elusive phrase “the best interests of the children,” held that custody evaluations, home studies, or investigations are necessary as an aid to make such a determination. In the appeal of this action in Kappenmann v. Kappenmann, 479 N.W.2d 520, 523 (S.D. 1992), this Court decided the trial court did not err, i.e., did not abuse its discretion because it based its decision, in part, upon two experts, one being Dr. Arbes. In the instant action, two experts testified, Dr. Sive-sind and the same Dr. Arbes. From the inception of this case, Dr. Arbes has been deeply involved. These two experts’ testimony, in this case, is disregarded.
Let us examine this evidence.
• Triggered by mother’s complaints, CHIN complaints were filed against Brad and Todd. CHIN statutes in South Dakota pertain to a Child in Need of Supervision, SDCL 26-8B-2. Mother reported that Todd ran away from home on three occasions between February 11, 1993 and July 30,1993. Brad, according to her, instigated many problems. She vociferated to the authorities that she absolutely could not control these boys. Todd sought a “safe haven” at a fire station, per the signed affidavit of Don Hill, Captain, Sioux Falls Fire Department.
• Dr. Sivesind testified that although there was similar behavior, as exemplified by previous reports he had studied, he was now concerned with the safety of the family; the children’s behavior was more severe and more frequent. He testified that the physical violence would get worse if the children remained in mother’s custody.
• A report, filed with the trial court by Dr. Sivesind, declared that there was a danger of physical injury, not only to the children, but to the mother if all remained in the same household. Such a report reflects a serious, intensifying, and real problem which had developed after previous hearings herein. Evidence established a substantial change in circumstances which required a modification of custody unto father. Olson v. Olson, 438 N.W.2d 544 (S.D.1989); Gar-nos v. Gamos, 376 N.W.2d 571 (S.D. 1985).
• Amazingly, mother’s counsel introduced pictures of writings on various bathroom fixtures reflecting messages of outrage and dismay written by the children; these messages were written on toilets and a mirror expressing their cry to the world, in general, that their life was intolerable and they wanted to live with their father. These exhibits were introduced to demonstrate that father had caused these children to do'such acts. Such an allegation is subjective in nature; that they actually caused these writings are objective.
• Trial court fixed on the communication problem between children and mother. Hence, trial court’s written order that the “young men” should learn sign lan*417guage. Dr. Sivesind testified he thoroughly reviewed (1) the opinions of the parties and (b) opinions of the children as to the merit/non-merit of mother’s hearing impairment as an obstruction to her ability to parent the children; he testified there was no such problem. To buttress his opinion, mother testified that she did not believe her hearing impairment affected her ability to parent the children. She is bound by this testimony. Werner v. Norwest Bank, 499 N.W.2d 138 (S.D.1993). Notice the ratio decidendi of the trial court “... providing the children continue to develop a relationship with their mother by learning sign language ...” It appears that the trial court ignored this evidence concerning mother’s deafness. Furthermore, the evidence established that mother did not become totally deaf until she was a full grown adult. In summary, (1) mother could communicate with the children and (2) there was absolutely no evidence to establish that if the boys learned sign language (assuming a communication problem), that the children’s behavior would improve.
• Dr. Sivesind was mother’s expert. She hired him. He opined that he was extremely concerned for the physical safety of the mother and the children, if the children remained in the custody of the mother. She should be bound by her own expert’s testimony. Dr. Arbes testified the situation was “dangerous” to mother and the children.
• Dr. Sivesind’s ultimate conclusion was that the children had a more positive emotional attachment to the father than the mother. He opined that the father was better able to foster autonomy and independence for the children and, in his custody, would be happier, healthy, and productive. Is it any wonder that this father appealed!
CONCLUSION
Trial court ignored the opinions of experts; trial court repudiated the desires of the children; trial court ignored the CHINS petitions (children out of control of parent/mother); trial court ignored exhibits of pictures of children’s cry to be removed; trial court ignored reports; trial court ignored danger to mother and children; trial court ignored all parties’ testimony that there was no communication problem; trial court ignored a material and substantial change in circumstances, under the evidence of both parties; and lastly, trial court ignored the best interests of the children. Justice Roger Wollman, in his dissent in Masek v. Masek, 237 N.W.2d 432, 435 (S.D.1976), warned against the improper application of the substantial and material change in circumstances rule before a court could modify a custody order. His admonition was that such a requirement was a judicially created rule of expediency, rather than a statutory requirement; further, he concluded that such a rule “should not be allowed to create a mechanistic barrier to frustrate the performance of that [statutory] duty.”
The late Chief Justice Earl Warren had a piercing inquiry at oral argument, “Is it fair?”
No, it wasn’t fair to these children.