Kappenman v. Kappenman, s. 18521

• Decision Date: 24 May 1994
• Docket Number: Nos. 18521,18522,s. 18521
• Citation: 523 N.W.2d 410
• Parties: Darlene L. KAPPENMAN, Plaintiff and Appellee, v. Larry J. KAPPENMAN, Defendant and Appellant. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 410

523 N.W.2d 410

Darlene L. KAPPENMAN, Plaintiff and Appellee, v. Larry J. KAPPENMAN, Defendant and Appellant.

Nos. 18521, 18522.

Supreme Court of South Dakota.

Considered on Briefs May 24, 1994.

Decided Oct. 26, 1994.

Rehearing Denied Dec. 2, 1994.

Richard A. Johnson of Strange, Farrell, Johnson & Casey, P.C., Sioux Falls, for appellee.

Doug Cummings, Sioux Falls, for appellant.

MOSES, Circuit Judge.

This appeal involves an order denying a motion for a change of custody of the minor children to Larry J. Kappenman (Larry) and awarding Darlene L. Kappenman's (Darlene) costs disbursements and attorney fees.

FACTS

This case has previously been before us. Kappenmann v. Kappenmann [sic], 479 N.W.2d 520 (S.D.1992); and Kappenman v. Kappenman, # 18435, conference opinion filed 7/8/94.

Darlene commenced this divorce on May 31, 1989. The decree of divorce was entered on June 29, 1990. The decree of divorce gave the custody of the twins of the marriage, Todd and Brad, born November 13, 1980, and daughter Leslie, born November 24, 1983, to Darlene. Larry filed a motion to modify child custody on August 22, 1990, and on August 30, 1990, filed his notice of appeal as to all issues except the grounds for the divorce.

On September 4, 1990 the trial court issued a memorandum opinion delaying the August 22, 1990 motion, because the parties were continuing with mediation, the court was not willing to enter an order modifying the previous custody ruling at that time.

On March 8, 1991 the trial court issued another memorandum opinion indicating that it had no jurisdiction to modify or change custody without a remand from the South Dakota Supreme Court.

Larry appealed this memorandum opinion on May 1, 1991 and the Supreme Court dismissed the appeal on May 29, 1991.

On August 27, 1991 the trial court sustained Darlene's objection to Larry's motion to modify custody based on the court's lack of jurisdiction due to the pending appeal.

The Supreme Court issued its opinion on January 8, 1992. It affirmed the trial court's award of custody of the children to Darlene, affirmed the property settlement and awarded partial attorney fees.

On September 3, 1992, based on the August 22, 1990 motion to modify the custody of the minor children, the trial court issued a memorandum opinion finding that there was not a substantial and material change in circumstances in the case to change custody of the minor children.

On February 4, 1993 Larry made a motion to reconsider (or in the alternative, motions for a new trial) and to amend visitation.

On February 5, 1993 Larry made a motion for temporary custody of Leslie to be placed with him.

On February 11, 1993, the trial court entered findings of fact and conclusions of law finding there was no substantial and material change of circumstances, and it was in the best interests of the minor children to remain in Darlene's custody. Larry has not appealed from this.

On March 9, 1993, the trial court entered an order denying the motion to reconsider the February 4, 1993 motions and the motion for temporary custody of Leslie. As a part of this order a custody evaluation was ordered to be performed by Dr. John Sivesand. He completed the custody evaluation by June 1993.

On June 29, 1993 Larry made a motion for modification of custody and a hearing was held on July 12, 1993. Darlene requested that a second hearing be set so that her attorney could cross-examine Dr. John Sivesand.

At the second hearing on July 20, 1993, Dr. Sivesand testified that the children's behavior was similar to behavior he had read about in previous reports; however, the frequency and severity of the behavior was a concern for him.

Dr. William Arbes, a psychologist, also testified. Dr. Arbes originally submitted a report prior to the trial court agreeing that Darlene should have custody of the children. He later submitted a report in September of 1990 indicating that he had changed his mind and that Larry should have custody. Dr. Arbes testified on July 20, 1993 that he was surprised at how much the children's behavior had changed. He described the situation as "chaotic and dangerous." It appears Dr. Arbes was Larry's witness.

During that hearing, Larry presented evidence that the boys had run away from home to the local fire station. Larry submitted evidence that the children were beyond Darlene's control. Darlene did not dispute this evidence.

On July 30, 1993, the trial court denied Larry's motion for change of custody. It filed findings of fact and conclusions of law on August 10, 1993 finding that Larry failed to meet his burden of proof regarding a substantial change of circumstances. The trial court found that the best interests of the children required them to maintain and improve their relationship with their mother.

Larry's motion for reconsideration of July 30 decision (SDCL 15-6-59(a)) denying his motion for a change of custody of the children was denied.

After the entry of the August 10, 1993 order denying the change of custody in this matter, Darlene applied for $3,357.00 in attorney fees pursuant to SDCL 15-6-54(d). Larry's counsel filed objections and a hearing was set at the same time as the motion for reconsideration in this matter.

The trial court awarded Darlene $1,800.00 for her attorney fees, plus tax and costs of approximately $142.00.

STANDARD OF REVIEW

The trial court's findings of fact shall not be set aside unless clearly erroneous and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. SDCL 15-6-52(a).

A parent seeking modification of child custody has the burden of proving 1) that there has been a substantial and material change of circumstances since the decree of divorce was entered and 2) that the welfare and the best interests of the child require modification. Jones v. Jones, 423 N.W.2d 517 (S.D.1988). The mere fact that conditions have changed since the decree is not sufficient in itself to warrant modification. Huckfeldt v. Huckfeldt, 82 S.D. 344, 146 N.W.2d 57 (1966). Not every significant change justifies a transfer of custody. Ludwig v. Burchill, 481 N.W.2d 464 (N.D.1992). Either factor standing alone will not justify a change of custody--both must be present. This is a heavy burden, but the courts, the parties and especially the children must be protected from endless and vexatious litigation and the resulting uncertainty flowing therefrom. Hanks v. Hanks, 334 N.W.2d 856, 858 (S.D.1983).

The trial court has broad discretion in awarding custody of minor children and the trial court's decision will be reversed only upon showing of an abuse of discretion. Anderson v. Anderson, 472 N.W.2d 519 (S.D.1991); Kost v. Kost 515 N.W.2d 209 (S.D.1994); Jones v. Jones, 423 N.W.2d at 519. A judicial discretion is not an uncontrolled one, and its exercise must have a sound and substantive basis in testimony. Aulner v. Aulner, 296 N.W.2d 533 (S.D.1980).

An abuse of discretion refers to a discretion exercised to an end or purpose not justified by, and clearly against, reason and evidence. Henle v. Larson, 466 N.W.2d 846 (S.D.1991). The determinations are only reversed where we are convinced that the findings of the trial court are clearly erroneous and the record indicates that an abuse of discretion has occurred. King v. King, 477 P.2d 356 (Alaska 1970). The paramount consideration in deciding the issue of child custody is the best interests of the child. Kost, supra.

Both the credibility of the witnesses and weight to be accorded to their testimony is for the court to determine. Mellema v. Mellema, 407 N.W.2d 827, 831 (S.D.1987). The trial court's decision, based on its first hand opportunity to gauge the credibility and emotional stability of the parties, must be given the appropriate deference mandated under our scope of review.

In this case, we would be remiss if we did not state that we are greatly troubled by what appears to be the trial court closing the door to the evidence presented in the case before it. However, based on the evidence, the question as to whether custody of the children should be changed is closed and we are compelled to affirm the trial court.

After the July 30, 1993 hearing, the trial court entered an order providing as follows:

2. The Court shall reconsider the custody of the twin boys, Todd and Brad Kappenman on or about August 1, 1995, provided that the children continue to develop a relationship with their mother by learning sign language, treating their mother with respect, following the rules of their parents' respective households and conducting themselves as civilized young men.

The depth of frustration experienced by a judge in these circumstances is manifested by such an order. The order given by the judge is prospective in nature and does not take effect until August 1, 1995. It is premature for us to consider this order. We anticipate that the trial court will not forsake the criteria in reconsidering his custody order of only changing custody when there has been a substantial and material change of circumstances since entry of the August 10, 1993 order and when the welfare and the best interests of the children require such a change. See Jones v. Jones, 423 N.W.2d 517 (S.D.1988).

The last issue is the appeal of the award of Darlene's attorney fees and costs in this matter.

STANDARD OF REVIEW

SDCL 15-17-38 permits the award of attorney fees in divorce actions. As we stated in Temple v. Temple, 365 N.W.2d 561 (S.D.1985), each case rests upon its own facts and a decision is within the court's discretion. This Court can consider the totality of the circumstances in reviewing such an award. Pribbenow v. Van Sambeek, 418 N.W.2d 626, 630 (S.D.1988). The award rests in the sound discretion of the trial court and will not be overturned on appeal absent an abuse of that discretion. Garnos v. Garnos, 376 N.W.2d 571 (S.D.1985). "The term, 'abuse of discretion' refers to a...