Andersen v. Andersen

• Decision Date: 22 May 1986
• Docket Number: No. 15160,15160
• Parties: Michelle A. ANDERSEN, Plaintiff and Appellee, v. Terrence L. ANDERSEN, Defendant and Appellant. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 363

399 N.W.2d 363

Michelle A. ANDERSEN, Plaintiff and Appellee, v. Terrence L. ANDERSEN, Defendant and Appellant.

No. 15160.

Supreme Court of South Dakota.

Considered on Briefs May 22, 1986.

Decided Jan. 14, 1987.

Bruce Gering, Viborg, for plaintiff and appellee.

R.L. Ericsson of Ericsson, Ericsson & Leibel, Madison, for defendant and appellant.

MORGAN, Justice.

Defendant, Terrence L. Andersen (Terry), appeals from an order of the trial court modifying the original divorce decree by awarding custody of his and his ex-wife's two youngest children to plaintiff, Michelle A. Andersen (Shelly). We reverse.

In June of 1983, Shelly and Terry were divorced. At the time of the entry of the judgment and decree of divorce, Terry was awarded custody of all five of the children born of the marriage who then ranged in age from one year, ten months to ten years, eight months. Regarding this custody award, the trial court made the following finding of fact: "Both parties hereto are loving and caring parents. However, at this time, Plaintiff mother is not ready to have the custody of the children because of her transient lifestyle and male companion, all of which fail to provide a stable, wholesome and nourishing environment for the minor children." As a result of this finding of fact, the trial court made the following conclusions of law: "Defendant [Terry] is a fit and proper person to have custody and control of the minor children.... The defendant shall have custody of all five of the minor children, subject to reasonable visitation rights by the Plaintiff."

Following the divorce, Shelly and a male companion moved to Montana and subsequently were married. Terry remained in Brookings with the children. In 1984, Shelly and her new husband moved back to South Dakota in order to be closer to her children and his children from a previous marriage. At this time also, Terry became engaged to marry another woman and moved his family from Brookings to Madison. Following these events, Shelly applied for a modification of child custody based upon a change of circumstances.

Following hearing, the trial court in its memorandum decision, which was incorporated in its findings of fact and conclusions of law by reference, held that there had been a substantial change in circumstances since the entry of the decree of divorce. The trial court found that Shelly remarried, obtained employment, and appeared to be in a fairly stable economic situation. The trial court also found that Terry moved his family to Madison and was engaged to marry another woman. In its memorandum decision, the trial court stated:

This decision of the Court is not intended to suggest that the defendant [Terry] has done a poor job of caring for the children during the past few months. On the other hand, it was not the intent of this Court to determine at the time of the divorce that the plaintiff [Shelly] was an improper person to have the custody of the children. The custody determination was based on the fact that the plaintiff did not have a stable situation which would be conducive for the proper rearing of the children. She did not have a job sufficient to establish a stable economic situation and the relationship with the person who is now her husband, did not provide a proper social or moral environment for the rearing of children.

Following this, the trial court entered its order changing custody of the two youngest children aged four years and five years, eight months to Shelly and custody of the three older children remained in Terry. It is from this order that Terry appeals.

The trial court is vested with broad discretion in deciding questions of child custody modification and the court's decision will be reversed only upon a clear showing of an abuse of that discretion. Menning v. Menning, 272 N.W.2d 828 (S.D.1978). The seminal case on the burden of proof and the modification of a custody award is Masek v. Masek, 90 S.D. 1, 237 N.W.2d 432 (1976). In Masek, this court stated:

To state the rule we have adopted in change of custody cases, the parent seeking modification of custodial rights 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 best interests of the children require the modification being sought. 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.

90 S.D. at 6, 237 N.W.2d at 434. See Powell v. Powell, 336 N.W.2d 166 (S.D.1983); Hanks v. Hanks, 334 N.W.2d 856 (S.D.1983).

The trial court found that there has been a substantial and material change of circumstances since the decree of divorce was entered. While we do not conclude that this finding was clearly erroneous, there does appear to be a patent inconsistency in that the trial court viewed in a positive light Shelly's marriage to the paramour whose relationship caused the divorce, while viewing the pending marriage to Terry in a negative manner. In any event it does not appear in the record that the best interests of the children were considered when breaking up the siblings as a unit. The general rule is that the best interests and welfare of the children are promoted if they are kept together in one home. ^* There was no evidence in the record to show that the two youngest children had any problems caused by living with a new stepmother. Neither does the record reflect that father in any way inadequately cared for the children. There were, of course, allegations of inadequate care on both sides. However, in its findings, the trial court did not find this to be the case. In essence, the trial court based its modification order solely upon Shelly's new-found maturity. The trial court made no findings of fact to support its conclusion that the two younger children should be uprooted and the sibling unit destroyed.

We find that Shelly has not met her burden by a preponderance of the evidence in proving both factors needed to modify a custody order. This is exactly the type of situation which the court cautioned against in Masek, supra.

In borderline cases, as this was, we recognize that the parent not having custody might be tempted to relitigate the custody issue in the hope that a change in the composition of the Supreme Court might change its opinion. But this would not be fair either to the parties or the children, and we will be especially vigilant to avoid rewarding persistence in this type of case.

90 S.D. at 6, 237 N.W.2d at 434.

In summary, we hold that the trial court abused its discretion in awarding custody of the two youngest children to Shelly. The record fails to establish that the welfare and best interests of the children require the implementation of the extreme remedy ordered by the trial court.

We reverse.

HENDERSON, J., and FOSHEIM, Retired Justice, concur.

WUEST, C.J., and SABERS, J., dissent.

MILLER, J., not having been a member of the Court at the time this action was submitted to the Court, did not participate.

SABERS, Justice (dissenting).

I dissent for the following reasons:

Facts:

Following the divorce, Mr. Andersen continued to live in a trailer house in Brookings, South Dakota until he moved to Madison, South Dakota on June 21, 1985. As a result of this move, the four older children had to leave their school in Brookings and transfer to a school in Madison. Mr. Andersen's subsequent marriage to a woman in Madison who had custody of two children of her own resulted in a complete change of child care from Mr. Andersen's sister, (who had lived with him and the children), to his new wife and a day-care center.

The mother, Michelle Andersen, now Mrs. Koenders, and her husband were both hired as psychiatric aids at the Human Services Center in Yankton, South Dakota on December 3, 1984. Since that time they have received merit raises in their wages based on their favorable monthly performance evaluations.

Mr. and Mrs. Koenders work the same shift at the hospital (10 p.m.--7 a.m.) and have the same days off. They work six days on and two off, and every fourth week they have two three-day weekends back to back. Under this schedule, Mr. and Mrs. Koenders have a babysitter who stays at their home while they are working and their children are sleeping. During the day while the children are awake, either Mr. or Mrs. Koenders stays awake and spends time with them. Additionally, both sets of the children's grandparents live near Viborg, and the maternal grandmother has volunteered to babysit whenever she is needed.

Upon moving back to Viborg, Mr. and Mrs. Koenders entered into a rent-to-own agreement with Mrs. Koenders' mother for the eventual purchase of a two-story, three-bedroom home in Viborg. The home is well cared for and Mrs. Koenders has developed the yard with flowers and a vegetable garden.

Mrs. Koenders' children interact very well with Mr. Koenders. He treats them like a father and has developed a very smooth and loving relationship with them. All of the children have adjusted to their marriage and Mr. Koenders spends much of his time working with them.

During visitation prior to this contested decision, Mrs. Koenders found that the children were dirty and that the dirt was crusted in their ears and around their ankles. It was also evident that they did not practice regular dental hygiene in that their teeth were dirty and Amber had extensive tooth decay. Further, their clothes were tattered and they wore shoes with holes in them. Mr. and Mrs. Koenders and her mother bought clothes and shoes for the children on several occasions.

After establishing a stable home life in Viborg, Mrs. Koenders petitioned the circuit court to modify its prior judgment by granting custody of all five children to...