Henle v. Larson

SABERS, Justice (on reassignment.)

Scott Henle (father) appeals the trial court’s denial of his motion to change custody of his four-year-old son, Eric. We affirm.

FACTS

Father and Angela Branson (mother) have never been married. They conceived Eric while they were both teenagers in high school. Eric was born on April 18, 1986. After his birth, the parties resided in the home of Eric’s paternal grandmother. Father went on to finish high school that spring but mother dropped out of school and did not graduate.

Mother and Eric later moved in with Eric’s maternal grandmother. In October 1986, the two moved with father into their own apartment. Father worked and provided the family’s financial support while mother remained home and assumed primary responsibility for child care.

As time went on, the parties’ relationship deteriorated. In April 1988, mother and Eric moved out of the home and into an apartment with Michelle Reede (Reede). The next month, in lieu of a paternity action, mother and father entered into a stipulation approved by the circuit court concerning paternity, child support and child custody. The stipulation provided that mother would have both legal and physical custody of Eric.

After mother and Eric moved in with Reede, Reede’s boyfriend and mother’s own boyfriend also moved in. Mother, her boyfriend and Eric lived in Reede’s apartment until July 1, 1988, when mother and her boyfriend married. After the marriage, the three moved into their own apartment.

Father commenced the present proceeding to obtain custody of Eric in August 1988. A hearing on father’s motion to change custody was conducted in late August and early September. The trial court subsequently entered findings of fact and conclusions of law determining that it would be in Eric’s best interests for custody to remain with mother. A judgment was entered accordingly and this appeal followed.

ISSUE ONE

DID THE TRIAL COURT ABUSE ITS DISCRETION IN DETERMINING THAT ERIC’S BEST INTERESTS REQUIRED A DENIAL OF FATHER’S MOTION TO CHANGE CUSTODY?

Father contends that the trial court abused its discretion in denying his motion to change Eric’s custody because of mother’s lack of parenting skills and her dishonesty. Normally, “[wjhen custody is not contested in a divorce proceeding, the parent seeking a subsequent change of custody has the burden of proving by a preponderance of the evidence that the best interests and welfare of the children require a change of custody.” Shoop v. Shoop, 460 N.W.2d 721, 724 (S.D.1990). Here, however, the original custody of Eric was determined through a stipulation in a paterni*848ty proceeding rather than in a divorce proceeding. Nevertheless, we have held that, “a change in custody of a minor child based upon an order entered as a result of a paternity action should be governed by the principles and factors, applied and followed, in divorce cases where custody is involved.” Pribbenow v. Van Sambeek, 418 N.W.2d 626, 629 (S.D.1988). Thus, because custody was not contested in the paternity proceeding, to achieve a change in custody father had the burden of proving, by a preponderance of the evidence, that Eric’s best interests and welfare required the change. Shoop, supra. Father was not required to establish a substantial change in circumstances. Kolb v. Kolb, 324 N.W.2d 279 (S.D.1982).

The trial court has broad discretion in resolving motions for a change in custody and this court will reverse only upon a showing of an abuse of discretion. Shoop, supra. An abuse of discretion refers to a discretion exercised to an end or purpose not justified by, and clearly against, reason and evidence. Herndon v. Herndon, 305 N.W.2d 917 (S.D.1981).

This modification proceeding was heavily contested. Unfortunately, as in Williams v. Williams, 425 N.W.2d 390, 391 (S.D.1988), “the parties concentrated more on demeaning each other’s conduct than they did in addressing the real issue, namely the best interests of the [child].” During the hearing, father presented extensive testimony from mother’s former roommate, Michelle Reede, and her boyfriend. These witnesses raised a variety of allegations concerning mother’s care of Eric during the time they were living with Reede. The allegations generally related to instances in which mother left Eric unattended while she went out late in the evening; mother and her boyfriend’s commission of sexual misconduct in Eric’s presence; mother’s failure to cook properly for Eric or to appropriately discipline him; and, finally, mother’s theft of some laundry from a laundromat. Mother denied much of this conduct and rebutted father’s evidence with testimony concerning the filthy conditions in his mother’s home where he planned to live with Eric if he should be awarded custody.

The trial court heard all of the testimony pertaining to these matters and entered its findings of fact. Although it recognized that mother had demonstrated a lack of parenting skills in the past, it attributed this problem to her immaturity, the fact that she became pregnant at a young age while still in high school and that she really didn’t know how to care for an infant. The trial court also found that her parenting skills problem was curable as she matures and by training and counseling.

The trial court specifically found that mother did not have good parenting skills during the time she and Eric lived with Reede. Nevertheless, it found that Eric had had no serious illnesses or accidents, that mother sincerely loves Eric and that she and Eric have good primary bonding. Although the trial court found that during mother and Eric’s stay with Reede, mother had “probably” exposed the child to sexual behavior with her present husband, it entered no findings that this behavior had any demonstrable effect on Eric and we find no record evidence that would support such a finding.1

The trial court found that the best thing that has happened to mother is that she has married and has an opportunity to mature and develop stability. It also found that because mother is working at baby-sitting in the home she will be able to spend more time with Eric than father who would have to put Eric in day-care during the day. Additionally, the trial court found that mother and her present husband were expecting a child who would be Eric’s half sibling and that, if possible, the two should live together.

*849The trial court did find that there was not “much bad” about father. However, it also found that, because he was living with his mother, his future living circumstances were uncertain and it was unknown where he would be in six months or a year. The court also found that although father was apparently willing to sacrifice to have primary custody he had not yet had to do so and, as a result, did not really appreciate the attendant problems. Finally, the trial court found that despite the fact that there were no clearly identifiable problems in transferring custody to father, there was a problem in terms of the effect of a change of custody upon the child.

The trial court’s findings of fact in a custody modification proceeding shall not be set aside unless they are clearly erroneous. Yarnall v. Yarnall, 460 N.W.2d 161 (S.D.1990). Under this standard, we accept that version of the evidence including any reasonable inferences therefrom which are favorable to the trial court’s determination. Id. Further, the credibility of the witnesses and the weight to be accorded their testimony is a matter for determination by the trial court. Id.

Applying this standard in the instant case, we cannot state that the above findings of fact are clearly erroneous. Nor can we state, on the basis of these findings, that the trial court abused its discretion in denying father’s motion to change custody. The trial court appropriately weighed the past deficiencies in mother’s parenting skills with the stability and opportunity to mature provided by her marriage against the uncertainty in father’s future and concluded that it would be in Eric’s best interests for custody to remain with mother. This represents a reasoned choice between the available alternatives and does not constitute or represent an abuse of discretion.

ISSUE TWO

DID THE TRIAL COURT ERR IN FAILING TO FIND COMPELLING REASONS TO SEPARATE ERIC FROM HIS FUTURE HALF SIBLING?

Father argues that the trial court erred in failing to find compelling reasons to separate Eric from his future half sibling. Father bases this argument on the fact that, at the time of the hearing on this matter, the child was not yet born and, therefore, there had not been an opportunity for a bond to form between the child and Eric.2

It is a matter of settled law that:

“[T]he best interests of siblings require that they be raised together whenever possible.” Mayer v. Mayer, 397 N.W.2d 638, 642 (S.D.1986). “[T]his principle is in no way diluted by the fact that one child is a half sibling.” Id. at 644. We have previously recognized and held that the best interests of the child require a showing of compelling reasons before a separation of siblings will be upheld. Miller v. Miller, 444 N.W.2d 45 (S.D.1989); Adam v. Adam, 436 N.W.2d 266 (S.D.1989). “When the trial court concludes that it is [in] the child’s best interest to separate siblings, it must make adequate findings of fact and conclusions of law regarding this crucial consequence of the custody arrangement.” Olson v. Olson, 438 N.W.2d 544, 546 (S.D.1989)[.J

Madsen v. Madsen, 456 N.W.2d 551, 553 (S.D.1990) (emphasis added). In this instance, the trial court found that Eric’s best interests were served by continuing custody with mother. Since custody was continued with mother, there would be no separation of siblings and, hence, there was no need for the trial court to enter findings to support separation. Accordingly, we find no reversible error in the trial court’s failure to find compelling reasons to separate Eric from his unborn half sibling.

Based on a motion and supporting affidavit in accordance with Malcolm v. Malcolm, 365 N.W.2d 863 (S.D.1985), we award mother $500 in appellate attorney’s fees.

Affirmed.

MILLER, C.J., and MORGAN, Retired Justice, concur. WUEST and HENDERSON, JJ., dissent. *850HERTZ, Circuit Judge, acting as a Supreme Court Justice, not having been a member of the court at the time this case was considered, did not participate.

. "[I]mmoral conduct by one parent does not automatically render that parent unfit to have custody of the [child] and require an award of custody to the other parent." Shoop, 460 N.W.2d at 724.

[W]here there is no evidence of a demonstrable effect of a parent’s [sexual] misconduct upon the child, it does not follow that the parent is an unfit person to have custody and that an award of custody to that parent is not in the best interest and welfare of the child.

Madson v. Madson, 313 N.W.2d 42, 43-44 (S.D.1981).

. The child, Jordan, was born on April 14, 1989.