Adam v. Adam

• Decision Date: 06 July 1977
• Docket Number: No. 11823,11823
• Citation: 254 N.W.2d 123
• Parties: Sandra Riddle ADAM, Plaintiff and Appellant, v. William H. ADAM, Defendant and Respondent.
• Court: South Dakota Supreme Court

Page 123

254 N.W.2d 123

Sandra Riddle ADAM, Plaintiff and Appellant, v. William H. ADAM, Defendant and Respondent.

No. 11823.

Supreme Court of South Dakota.

Argued Feb. 16, 1977.

Decided May 26, 1977.

Rehearing Denied July 6, 1977.

Richards & Richards, Deadwood, for plaintiff and appellant.

Richards & Hood, Spearfish, for defendant and respondent.

MORGAN, Justice.

This divorce action was commenced in September, 1973, by service of a summons and an unverified complaint on the defendant and which complaint alleged generally the marriage of the parties, the birth of a child to the marriage, and acts of the extreme cruelty committed by the defendant. Plaintiff prayed for relief in the usual form for a decree of divorce, custody, care and control of the minor child subject to rights of visitation, equitable division of the property and attorney's fees. Defendant's answer admitted the marriage and the birth of the child as issue of the marriage but denied the allegations regarding cruelty. The defendant counterclaimed alleging the marriage, the birth of the child to the marriage and extreme cruelty on the part of the plaintiff and likewise prayed for a decree of divorce, custody of the child and an equitable division of the property. To this counterclaim the plaintiff's reply was a general denial with specific denial of any acts of cruelty.

From the outset each of the parties sought the temporary custody and control of the minor child and at the behest of the defendant the court on October 9, 1973, entered an order directing the plaintiff to show cause, after the receipt of an investigative report from the Division of Child (sic) Welfare, why the defendant should not be granted the custody and control of the child. The order directed that in the meantime both plaintiff and defendant were restrained from removing the child from the jurisdiction of the court. This order was never served on the plaintiff although her counsel advised her not to remove the child from the jurisdiction of the court. On October 10, 1973, the court entered an order directing the Division of Social (sic) Welfare to make an investigative report bearing on the relative merits of the parties' claims for custody. Subsequent to this order and approximately two months after commencement of the action the plaintiff made application to the court for an order to show cause why the defendant shouldn't pay reasonable support for the plaintiff and the minor child of the parties. The show cause hearing set for determining the right to support was apparently never held. At this point, in December, 1973, counsel for the plaintiff filed a notice of withdrawal due to plaintiff's failure to cooperate. A copy of the notice of withdrawal was served on the court and on counsel for the defendant but it does not appear that it was ever served on the plaintiff.

In late January, 1974, the defendant made a further application to the court for temporary custody alleging that the plaintiff had removed the minor child from the jurisdiction of the court and had not cooperated in granting visitation rights, all in violation of the October 9 order of the court. He further requested that the court declare the plaintiff in contempt and the court on January 9, 1974, entered an ex parte order finding the plaintiff in contempt of court for violation of the court's "meantime" order, although no findings of fact or conclusions of law were made and there is no evidence whatever in the record that the October 9 order had ever been served on her. The contempt order went on to grant temporary custody to the defendant pending final determination of the matter. The January 28 order was served on the plaintiff some month and a half later, but she apparently refused to deliver the custody of the child to the defendant or to tell the defendant or the sheriff's deputy the child's whereabouts and the defendant applied for a further order declaring the plaintiff in contempt and the issuance of a bench warrant. The record does not include either the order declaring the plaintiff in contempt nor a bench warrant, nor does it contain findings of fact and conclusions of law to support a contempt order. Before anything further could be done the plaintiff again fled the jurisdiction taking the minor child with her and nothing further was heard from her for some considerable period of time.

In August, 1974, the defendant applied for and received from the court an order for trial although the order is not a matter of record. An attempt was made to serve this on the plaintiff in South Carolina. Two subsequent trial dates were set by the court, the final date being set for the 28th day of February, 1975, and as to that order, which is mistakenly denominated a notice, the court upon proper application granted further leave to serve the same by publication and mailing.

At the time and place set for the trial, counsel for the defendant filed an affidavit for default judgment. The defendant was sworn and testified briefly as to the marriage, the birth of the minor child of the marriage, the misconduct of the plaintiff that constituted extreme cruelty, and his care and maintenance of the minor child before the plaintiff had removed him from the jurisdiction. The property accumulated by the parties was mentioned in passing. Apparently, the only division that had been made up to that point was that the plaintiff had taken one of two vehicles with her when she left.

The court entered its findings of fact and conclusions of law and granted the defendant a decree of divorce. The issues decided by the court in these findings, conclusions and decree were that there had been a valid marriage and that one child had been born as an issue thereof (both of which issues were virtually undisputed in the pleadings); the court further decided the issue of grounds for divorce in favor of the defendant. However, with respect to the custody of the minor child, while the court found that the defendant was a fit and proper person to have the care, custody and control of the minor child, Conclusion of Law No. III awarded the custody to the defendant pending further order of this court and proper appearance by the plaintiff together with the minor child before this court. (Emphasis supplied.) The decree contained identical language. The court likewise, while finding that during the course of their marriage the parties had acquired certain items of real and personal property, entered Conclusion of Law No. IV awarding the property to the defendant pending proper appearance and application before this court by the plaintiff. (Emphasis supplied.) Property division was not specifically mentioned in the decree but the findings of fact and conclusions of law were incorporated in the decree by reference.

The plaintiff and the minor child were ultimately found residing in the State of Wyoming, cohabiting with a man who also had a son. As a result of a habeas corpus proceedings in Wyoming, the Wyoming Welfare Department took custody of the child and pursuant to application by the defendant for a court order turned the custody over to the South Dakota authorities. The court order entered by a second circuit judge, the first judge having retired, granted temporary custody to the Department of Social Services "pending further hearing on the matter to determine permanent custody."

Thereafter each of the parties, by affidavit, made application to the court for temporary custody and defendant applied for a show cause order "why the prior order of this court in divorce decree entered February 28, 1975, granting custody of the parties' minor child in the defendant, should not be made permanent." The plaintiff applied to the court for an order to purge herself of contempt of court, to amend paragraph three of her complaint to allege the nonpaternity of the defendant as to the minor child of the parties, to require group blood tests, for temporary custody of the minor child and for attorney's fees. Counsel for the plaintiff also filed an affidavit applying for an order finding change of circumstances. All of these applications were made to and the orders to show cause thereon were entered by a third circuit judge who set a combined hearing date on October 9, 1975.

At a conference with counsel for both parties prior to the combined hearings and on motion of counsel for the defendant the trial judge elected to treat the determination of the custody question as set out in the findings and conclusions of law and the decree of February 28, 1975, as a final disposition and by order dated October 7, 1975, limited the plaintiff's testimony to the issue of change of circumstances subsequent to February 28, 1975. She was prohibited from inquiry into facts prior to that date and prohibited from inquiry into the paternity of the minor child. A further prehearing order dated October 8, 1975 arising out of the conference denied the plaintiff permission to amend paragraph three of her complaint, denied her request for blood grouping tests, found the property division portion of the decree of divorce a final judgment and took under advisement the question of allowing attorney's fees.

After a protracted hearing begun on October 9 and continued on October 15 the trial judge in his memorandum decision of October 24, 1975, found that no change of circumstances had occurred and went on to state that it will therefore be the decision of this court that the custody remain with the defendant. The order entered by the court on the same date however, stated: "Custody of William Lee Adam is hereby awarded to the defendant, William H. Adam." The decision and the order further found that the plaintiff should have visitation rights during school vacation periods and detailed these. The order further denied the attorney's fees and found that the plaintiff could purge herself from the previous order of contempt upon full compliance with the terms and...