Larson v. Larson

HENDERSON, Justice

(dissenting).

For those reasons set forth in my dissents in Hansen v. Hansen, 327 N.W.2d 47 (S.D.1982) and Kolb v. Kolb, 324 N.W.2d 279 (S.D.1982), I dissent.

Additionally, even under the rationale of Hansen and Kolb, I would still dissent for the reason that subsequent to the divorce decree of January 21, 1980, on July 25, *641980, the custody matter went to trial on the merits, wherein witnesses were sworn and appellant was represented by a capable, experienced domestic relations attorney. Appellee was likewise so represented. After considerable testimony before the trial judge whose judgment is now being reversed, the parties entered into a custody agreement providing for a split custody arrangement for six-month periods of time until the child reached the age of five. Per the agreement and after considerable testimony in open court, it was determined that at age five, the child was to be in the primary care, custody, and control of appel-lee, the father. Once again, this case went to the mat via a motion of appellant for a hearing and a request for modification of the child custody agreement to which I just alluded. This time, appellant has retained new attorneys. Per the record and the memorandum decision of this trial court, a hearing was held on April 8, 1983, and thereafter continued on June 8 and 9, 1983, and the trial court “listened to all the testimony presented.”

I am saying that the trial judge in this case had the parties before him — not once, but twice — and heard testimony — not once, but twice — subsequent to the default divorce hearing which granted the father custody of this child in 1979 pursuant to an agreement between the parties that he have custody.

Therefore, this trial court should not be reversed and the case should not be remanded for a different set of findings of fact and conclusions of law. Foursquare, the trial court heard the testimony and sized up the parties and determined that it was in the best interests of the child to be placed in the custody of the father. Having heard testimony in this case — not once, but twice — subsequent to the original default divorce, which included the original child support agreement, this case had an entirely different hue than that which begot the majority thinking in Kolb. Indeed, the trial judge had a right and duty, having heard testimony twice, to apply a two-pronged test. Appellant, the mother, was the moving party for a modification and she inherently carried the burden of establishing the element of a substantial change of circumstances. A key meritorious determination was made by the trial judge who approved the July 25, 1980 agreement of the parties after testimony, and entered an order to that effect. The underpinnings of Kolb are simply not before us in this case. Under SDCL 25-4-45, the trial court had broad discretion to determine which parent should be given custody, and that decision should only be reversed for a clear abuse of that discretion. There was not a clear abuse of discretion in this case.