(dissenting).
The trial court was faced with a difficult decision in this ease, given the fact that neither parent presented a fully acceptable home setting for the young boy. On balance, however, the trial court’s findings of fact are not clearly erroneous, and the award of custody to Robert did not constitute a clear abuse of discretion.
At the outset, it should be noted that although the juvenile homosexual renter testified that he and Robert had had a homosexual relationship, Robert unequivocally denied any such relationship. Significantly, the trial court made no finding with respect to this issue. Also, it should be noted that Robert ordered the juvenile to leave the home on December 28, 1980.
In its findings of fact and conclusions of law, the trial court set forth the following reasons- for awarding custody to Robert:
(a) Except for brief periods of time, the minor child has lived his whole life at Eureka, South Dakota, where he has close ties to family (especially his grandmother), friends, church and school.
(b) [Robert] has provided a stable home for the minor child at Eureka, South Dakota.
(c) [Robert] has provided for the necessities of the child in a suitable manner, before and since the separation of the parties.
(d) [Robert] is employed full-time in an old, established family business and thus, has better than average security. [Robert] appears to be permanently located, with an interest in the business.
(e) [Arla] has a nomadic history of moving from one pursuit, husband, or boyfriend, and location to another, although her present surroundings appear, in all respects, to be suitable. She lives with her parents and two sons from a previous marriage, in Omaha, Nebraska. Although the home study indicates that
Robert has a reputation for being “arrogant, obnoxious and hard to deal with personally,” we must remember that the trial court’s primary consideration in custody determination is the best interests of the *660child and not the shortcomings of the custodial parent. SDCL 30-27-19; Haak v. Haak, 323 N.W.2d 128 (S.D.1982). With regard to the live-in relationship between Robert and his girlfriend, we have recognized that the harmful effect of parental misconduct committed in the presence of a child old enough to perceive the misconduct is self-evident. Nauman v. Nauman, 336 N.W.2d 662 (S.D.1983). Rivers v. Rivers, 322 N.W.2d 864 (S.D.1982); Spaulding v. Spaulding, 278 N.W.2d 639 (S.D.1979). Such conduct, however, does not necessarily bar a determination that a parent is a fit person to have custody. See, e.g., Hansen v. Hansen, 327 N.W.2d 47 (S.D.1982); Krueger v. Stevens, 90 S.D. 641, 244 N.W.2d 763 (1976). Although I do not necessarily condone the husband’s living arrangement, he “is committing no crime such as adultery (our Legislature abolished adultery as a crime, 1976 S.D.Sess.L. ch. 158, § 22-8) nor [is he] engaged in criminal conversation (nonexistent tort, see Hunt v. Hunt, 309 N.W.2d 818 (S.D.1981)).” Rivers, supra, 322 N.W.2d at 865 (Henderson, J., concurring in result). In addition, in its memorandum opinion, which was incorporated into the findings of fact and conclusions of law, the court specifically found that there was no evidence that the living arrangement had adversely affected the child. Cf. Rivers, supra. This finding negates the deleterious-effect presumption set forth in the Nauman, Rivers, and Spaulding cases, supra.
In summary, then, I would defer to the trial court’s opportunity to judge the credibility of the witnesses on the basis of their demeanor on the witness stand. As the trial court indicated in its memorandum decision, “It is obvious that, somewhere, there has been a contemptuous disregard for the truth.”
I agree with the majority opinion with respect to the division of property and the award of attorney’s fees on appeal.