Spaulding v. Spaulding

HENDERSON, Justice

(concurring).

I concur with the majority opinion and desire to separately express additional reasons for the award of these two boys, ages eight and seven at the time of trial, unto their father by the trial court.

To me, the preferential custody right of a mother to children of tender years all hinges on the statutory phrase “other things being equal.” In South Dakota, a mother has no statutory preferential right to the custody of children of tender years unless it can be established that the facts, or the equities of the case, are “equal.”

How often in these divorce cases, when reviewing the evidence and the relative merits of who should receive custody, are the facts and equities “equal”? Rarely, I would dare say. SDCL 30 — 27—19 had its founding in the Revised Codes of the Territory of Dakota, A.D. 1877, § 127 of the Civil Code thereof, and it was lifted in toto and embraced into the South Dakota Revised *642Code of 1919, § 222 under the Substantive Provisions thereof. Later, it remained the law, word for word, in the South Dakota Code of 1939, § 14.0505.

This historic statute is in reality a “tie breaker” statute. This court, our trial judges, and the Bar of this state have labored over its interpretation since the days of the Dakota Territory. Whether the scales of justice are equally balanced in these child custody disputes is often dependent upon the eyes of the beholder. In its infinite wisdom, the 1979 Legislature repealed the “tender years” doctrine. Legal scholars and fathers alike will undoubtedly rejoice in its demise but in this case it is yet strongly advocated and still lives.

It is important to bear in mind that there are two principal paragraphs in SDCL 30-27-19. The primary consideration must be the best interests of the child in respect to its temporal, mental, and moral welfare. This inquiry cannot be solved by the trier of the fact except by contemplating alternatives. Father and mother must be compared as to who could provide the better educational, moral, physical, emotional, temporal, and mental benefits. The trial judge is in a position to more adequately consider and determine this parental assignment than the members of this court. If a trial judge conscientiously sorts out and compares the advantages and disadvantages of each contending parent, and the evidence comes out a “tie” as to who would be the best custodian, then, and only then, does subsection (2) of SDCL 30-27-19 come into play. Historically, our trial courts have been vested with a great deal of discretion and have been reversed only where they clearly abused their discretion. As recent as 1978, in the case of Holforty v. Holforty, S.D., 272 N.W.2d 810, 811, Justice Dunn delivered this court’s opinion and declared:

Our standard of review requires that we give due regard to the opportunity that the trial court has to judge the credibility of the witnesses and to weigh their testimony. Accordingly, the trial court’s findings will not be set aside unless they are clearly erroneous.

Under the sunshine of the facts in this case, as opposed to an illusory statutory preference, the trial court saw the evidence as being weighted in favor of the father’s custody. The trial court never concluded that “other things” were “equal”; the trial court did not believe there was a “tie.”

In 1960, Justice Biegelmeier, speaking for this court in Hines v. Hines, 78 S.D. 464, 469, 104 N.W.2d 375, 377, expressed:

This court has said neither parent is entitled to the custody of the children as a matter of right; that the welfare of the children is of paramount consideration. Hoaas v. Hoaas, 75 S.D. 55, 59 N.W.2d 254. (emphasis supplied)

In 1962, Justice Rentto, on behalf of this court in Howells v. Howells, 79 S.D. 480, 485, 113 N.W.2d 533, 535-536, stated:

It is to be noted that this section does not give the mother the absolute right to the custody of a child of tender years. The preference accorded her by this provision is qualified by the phrase “but, other things being equal”. Scott v. Barnes, 118 Cal.App.2d 271, 257 P.2d 700. It is for the trial court to find whether the other things are equal and in this determination it must give primary consideration to the best interest of the child. Lawrence v. Lawrence, 165 Cal.App.2d 789, 332 P.2d 305. Necessarily the court must be allowed a wide latitude in the exercise of its discretion and we will not disturb its conclusion unless it clearly appears that such discretion was abused.

In 1963, Justice Hanson representing this court’s opinion in Wiesner v. Wiesner, 80 S.D. 114, 117, 119 N.W.2d 920, 922, declared:

In awarding custody of any minor child a court must be guided by what appears, from all the facts and circumstances, to be for the best interest of the child relative to its temporal, mental, and moral welfare. The feelings and desires of the parents are subservient to this paramount consideration except as such factors may relate to the best interest of the child. *643Taber v. Taber, 209 Cal. 755, 290 P. 36. Likewise, no showing or finding of unfitness is necessary to enable a court to award custody to one parent or the other.

The Wiesner case can be distinguished from the case at bar. In the Wiesner case, the mother was indiscreet. In this case, the mother was flagrant in her affair with her paramour and it was in the presence of the two boys. In the Wiesner case, the father lived in North Dakota and proposed to leave the children in South Dakota with his parents on a temporary basis, and the grandparents had not expressed a willingness or desire to have the children. In this case, the father lives in South Dakota. He testified that he intends to remain in this state, secure employment herein, and that this employment will not keep him away from the boys as much as an over-the-road trucker. Further, the grandmother has openly expressed that she will aid in any way that she can to give the boys a permanent home.

The mother relies on Pochop v. Pochop, 89 S.D. 466, 233 N.W.2d 806 (1975), and Stearns v. Stearns, 80 S.D. 433, 126 N.W.2d 124 (1964). Both can be distinguished from the case at hand. In Pochop, supra, there was no evidence of gross immorality or adultery on the part of the mother; in fact, she was awarded the divorce. In Stearns, supra, there was no adultery proven and no adulterous relationship in the presence of the children; the mother’s activities with other men were more tantalizing than immoral.

In 1968, Justice Roberts addressed the question of child custody in the case of Yager v. Yager, 83 S.D. 315, 317, 159 N.W.2d 125, 127, and on behalf of this court said:

Neither parent is entitled to custody as a matter of right. The consideration paramount to all others is the welfare and best interests of the children. Larson v. Larson, 70 S.D. 178, 16 N.W.2d 307; Howells v. Howells, 79 S.D. 480, 113 N.W.2d 533. In determining who should have custody a broad discretion is vested in the trial court and it is only when a clear abuse of judicial discretion is evident that this court will interfere with the determination of the trial court. Hines v. Hines, 78 S.D. 464, 104 N.W.2d 375; Septka v. Septka, 80 S.D. 299, 122 N.W.2d 766; Huckfeldt v. Huckfeldt, [82] S.D. [344], 146 N.W.2d 57. (emphasis supplied)

In the Yager case, supra, this court affirmed the trial court in awarding two children, ages one and two, to the father as it was stated: “The record here is not one of a single or occasional indiscretion, but a course of serious marital misconduct.” 83 S.D. at 319, 159 N.W.2d at 127. (emphasis supplied) The misconduct by the mother was improper relations with two different men.

The mother, in this action, openly and notoriously carried on an adulterous affair in the presence of impressionable boys. For months, she carried on “a course of serious marital misconduct.” They knew their father, had a wonderful relationship with him, and knew that the paramour was sleeping with their mother. The father was literally replaced in the family home by her paramour, in the open eyesight of these children. The paramour used the family car. The paramour’s mail was delivered to the family home. This adulterous relationship was flaunted before these boys and the community where they lived. The boys were exposed to it in a motel in Custer. The paramour was an individual of questionable character with a history of charges of DWI and insufficient funds cheeks. He moved the family from Belle Fourche to Custer and then to Sturgis, causing the two boys to be enrolled in three different schools within a period of three months. She participated and condoned this approach to the education of the boys.

The learned trial court in this case concluded that “the best interests of the children would be served by awarding custody of the two children of the marriage to the defendant [father], . . . .” (emphasis supplied) This decision was based upon am-*644pie evidence in the record and findings of fact which included: the mother had no job; the father had a history of steady employment, was a hard worker and was working at the time of trial; the father paid his bills; the mother paid off checks stamped “account closed” written by her paramour; the father took a great interest in the boys, taking them to little league ball games and recreational outings; the mother drank in a pub with her paramour on Sunday evening; the father always provided a good living; while the mother had temporary custody, the father religiously visited them; witnesses testified the father was a reliable trucking contractor; the mother had little regard for the moral training of the children; the grandmother, who volunteered to assist the father in raising the children, is a woman of excellent character and would help provide a wholesome atmosphere; and the mother may marry the paramour.

Based upon this record, I can only arrive at the conclusion that the trial court did not abuse its discretion in awarding the two boys to the father. The trial court’s findings were not clearly erroneous. I question highly that this was “a tie”; rather, it appears to me that the testimony was weighted in favor of the father obtaining custody of the two boys and “other things” were not “equal.” I am satisfied that the record shows that the best interests of the children will be served by awarding them to the father. The judgment of child custody should be affirmed.