460 N.W.2d 721 (S.D. 1990), 16890, Shoop v. Shoop

Docket Nº:16890.
Citation:460 N.W.2d 721
Opinion Judge:The opinion of the court was delivered by: Sabers
Party Name:Janet SHOOP, Plaintiff and Appellee, v. Ellis John SHOOP, Defendant and Appellant.
Attorney:Reed C. Richards of Richards & Richards, Deadwood, South Dakota, Attorneys for defendant and appellant.
Case Date:August 29, 1990
Court:Supreme Court of South Dakota

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460 N.W.2d 721 (S.D. 1990)

Janet SHOOP, Plaintiff and Appellee,


Ellis John SHOOP, Defendant and Appellant.

No. 16890.

Supreme Court of South Dakota.

August 29, 1990

Considered on Briefs May 21, 1990.

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Reed C. Richards of Richards & Richards, Deadwood, for defendant and appellant.

Thomas E. Brady of Richards, Hood & Brady, P.C., Spearfish, for plaintiff and appellee.

SABERS, Justice.

John Shoop appeals a decision denying his motion for change of custody, or, in the alternative, change in his child support obligation.


John and Janet Shoop were married in 1979 and divorced in 1987. Two children were born during the marriage, Justin on August 20, 1979, and Joshua on March 19, 1983. By stipulation, the divorce decree provided for joint legal custody of the children with physical custody in Janet. John agreed to pay $500 a month in child support.

Janet's boyfriend lived with her and the children from May 1, 1988, through May 20, 1989. As a result of this relationship, Janet became pregnant and gave birth to another son.

In February of 1989, John stopped making child support payments. Consequently, in April of that year, Janet started contempt

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proceedings against him. The following month, the court entered judgment of contempt against John, requiring him to pay all accrued child support by June 15 and execute a wage assignment.

Shortly after Janet started the contempt proceedings, John moved for change of custody, or, in the alternative, modification of his child support obligation. John claimed change of custody was warranted due to Janet's live-in relationship with her boyfriend and the child born out of wedlock. A hearing was held on July 24, 1989, and the court denied both motions, announcing its decision on August 10. The court concluded that the best interests of the children were served by continuing the present custody arrangement. The court supported its decision by finding that: "As a single parent, working part-time, [Janet] has done a reasonably good job of caring for the children." According to the court: "The children are in generally good health and it appears that [Janet] has for the most part attended to their medical needs." The court further found that:

[Janet] has provided a good, appropriate, suitable and apparently a stable home for the children. To now change custody under the current circumstance would disrupt the children and their stability, separate them from their step-brother with whom they have a very good and loving relationship, separate them from their friends, classmates, and school system in which they are accustomed, and special pre-first schooling program for Joshua.

In contrast, the court found John's proposed living arrangements unacceptable:

[John] proposes that these children be placed with him in a home in which the accommodations have not been described or explained to this court with the exception that it [is] somewhere in the country and there is no running water. When [John] does exercise visitation, he takes the children to cousins or relatives and apparently does not use his home, which suggests to this court that in fact it is inappropriate or otherwise unsuitable at least for any long-term custody relationship.

John's commitment to the children is also unclear. As the court explained:

Between February and April, 1989, [John] saw the children on one occasion and had little if any other contact during that time period. This caused stress to the children because they did not understand why their father had suddenly stopped visiting them. Justin's teacher reported to [Janet] that Justin seemed withdrawn and apparently felt abandoned because of lack of contact with his father. Joshua asked if his father was dead or what.

Although [John] has had joint legal custody of the children, he has made little if any effort to be involved in either school or organized recreational activities.

The court also found that "[a]lthough [John] complains of [Janet's] relationship with [her boyfriend], in fact [John] maintained on occasion a sleeping arrangement with his girlfriend in the presence of the children." In short, John's conduct "is nothing different than that of [Janet] to which [John] objects."

The court also determined that the current child support amount was consistent with statutory guidelines and provided John visitation rights every other weekend, Christmas Day, Memorial Day weekend, the Fourth of July, and two weeks during the summer. Janet was awarded a judgment against John for attorney fees, costs, and expenses, totalling $1,792.07. John appeals, claiming the court erred on custody, child support, visitation, and attorney fees.

Scope of review.

Janet claims John's submission to the court of his objections to Janet's proposed findings of fact was untimely, and, as a result, the scope of our review is limited. The procedure for submission of proposed findings is governed by SDCL 15-6-52(a), which provides, in...

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