Anderson v. Anderson

• Citation: 472 N.W.2d 519
• Parties: Kimberly ANDERSON, Plaintiff and Appellant, v. Keith R. ANDERSON, Defendant and Appellee. 17285.
• Decision Date: 10 July 1991
• Court: Supreme Court of South Dakota

Page 519

472 N.W.2d 519

Kimberly ANDERSON, Plaintiff and Appellant, v. Keith R. ANDERSON, Defendant and Appellee.

17285.

Supreme Court of South Dakota.

July 10, 1991.

Rehearing Denied Aug. 16, 1991.

Thomas J. Nicholson of McFarland & Nicholson, Sioux Falls, for plaintiff and appellant.

Arthur L. Rusch of Bogue, Weeks, Rusch and Billings, Vermillion, for defendant and appellee.

WUEST, Justice

Kimberly and Keith Anderson were married in 1982 and lived in Centerville, South Dakota. Two children were born of this marriage, Andrew, on September 17, 1982, and Ashley, on May 25, 1984. The couple was divorced on April 18, 1985. Kimberly was granted custody of both children pursuant to an agreement between the parties.

Kimberly remained in Centerville for approximately three years after the divorce, then moved to Sioux Falls, South Dakota. In the spring of 1990, Kimberly requested permission of the court to move with the children to Columbus, Indiana. ^* Keith then petitioned the court for a change of custody.

The matter was heard before the trial court on May 2, 1990. Keith was awarded custody of both children and, therefore, the trial court did not rule on Kimberly's proposed move to Indiana. Kimberly appeals to this court and argues the trial court abused its discretion in changing custody of the children.

A party seeking a change of custody is not required to show a change of circumstances where the initial custody arrangement is based upon an agreement of the parties. Mayer v. Mayer, 397 N.W.2d 638 (S.D.1986); Kolb v. Kolb, 324 N.W.2d 279 (S.D.1982). However, the party requesting the custody change must demonstrate the best interests and welfare of the children require a change of custody. Williams v. Williams, 425 N.W.2d 390 (S.D.1988); Mayer, 397 N.W.2d at 640. In making this determination, the court must consider all facts and circumstances relative to the temporal, mental and moral welfare of the children. SDCL 30-27-19(1); Lindley v. Lindley, 401 N.W.2d 732 (S.D.1987); Garnos v. Garnos, 376 N.W.2d 571 (S.D.1985). The trial court exercises broad discretion in awarding custody of children, and its decision will be reversed only upon a clear showing of an abuse of discretion. SDCL 25-4-45; Madsen v. Madsen, 456 N.W.2d 551 (S.D.1990); Jones v. Jones, 423 N.W.2d 517 (S.D.1988); Saint-Pierre v. Saint-Pierre, 357 N.W.2d 250 (S.D.1984). In this regard, 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); Lindley, 401 N.W.2d at 735.

The evidence at trial revealed the following about Kimberly: She has moved twice in the last few years and had intended on moving a third time, but did not follow through with her plans. Her contemplated move to Columbus, Indiana is based on her parents' recent move to that city. Her parents have lived there for approximately six months, and Kimberly intends to work at her father's business. The children became physically ill upon learning of this intended move. She had not made living arrangements in Columbus at the time of the hearing.

Kimberly has a high school education and no trained occupational skills. She has held six different jobs in the last few years. She has worked as a bartender, waitress, and was employed by her father.

Kimberly has never belonged to any church and adamantly opposes her children attending a Catholic church. However, she believes in Christian precepts, reads the children Bible stories and prays before meals and at nighttime.

Over the last five years, Kimberly has dated several men, some of whom have slept over at her residence. On occasion, the children have observed her in bed with certain gentlemen.

In February and March of 1990, Kimberly filed complaints with the Department of Social Services alleging abuse of the children by Keith's girlfriend, Patty (now, Keith's wife). The complaints identified incidents of abuse which allegedly occurred months before the filing of the petition. The claims were unfounded.

Kimberly was the primary caretaker of the children during her marriage with Keith. She is presently working approximately eighteen hours a week and receives government financial assistance. She testified that she loves her children more than anything and would not move to Columbus, Indiana if it meant losing custody of the children. All evidence indicated the children were well cared for and thriving in Kimberly's care.

Keith has lived in the Centerville area his entire life and is presently employed full-time in Sioux Falls, South Dakota. He has a good house available for the children, who still have friends in Centerville.

Keith's mother lives near Centerville on a farm. The children are fond of their grandmother and enjoy visits to the farm. Their grandmother has been their babysitter since they were very young.

Keith has made every visit with the children that he is allowed and has taken them on other occasions when Kimberly has requested. He has paid every child support payment required and has never accrued arrearages. This is true although he was unemployed for a period of time.

Keith met his present wife, Patty, after the divorce. He and Patty had a live-in arrangement for approximately five years before being married. Andrew and Ashley were exposed to this arrangement during the visitations with their father. Patty was expecting a child at the time of the hearing before the trial court. She is also employed full-time in Sioux Falls.

During visitations, Keith and Patty engaged in family-type activities with the children such as camping and fishing. Both children have a good relationship with Patty. Keith and Patty have tried to provide a religious upbringing for Andrew and Ashley, and Patty has considered changing her church because of Kimberly's objections to Catholicism.

In addition to Keith and Kimberly, a number of others testified at the hearing, including Keith's wife, Patty, and her sister; the childrens' paternal grandmother; Kimberly's babysitters while she resided in Centerville (one was subpoenaed to testify); and several friends and acquaintances of the parties. Also admitted into evidence was a photo album with photographs of Keith's home and family life.

In a well-reasoned Memorandum Opinion, the trial court held it was in the best interests of the children to grant Keith custody. The trial court determined a stable environment was essential for the best interests of the children, and found that Keith and Patty would best be able to provide that type of environment. Keith is a long-time resident of Centerville and the children were raised there until Kimberly moved with them in 1987. The children still have friends in Centerville and are close to their paternal grandmother, who lives near town. Keith and Patty own a home in Centerville which is capable of providing suitable accommodations for the children and both have steady employment.

The trial court's decision is supported by the record and we find no abuse of discretion. We make no allowance for attorney fees. We affirm.

MILLER, C.J., concurs.

HENDERSON, J., concurs with a writing.

SABERS and AMUNDSON, JJ., dissent.

HENDERSON, Justice (concurring).

During the course of litigation, the mother's plans changed as to where she would live and what she would do for a living. Earlier, she filed an affidavit that she would live with her parents until she could locate a home; later, she testified she did not intend to live with them. She could not tell the trial court, at trial, where she would live, how she would make a living, or where the children would attend school. In discovery proceedings, she answered interrogatories expressing her home as being "residence unknown." Concerning the children's school, the answer was "UNKNOWN."

Under this vague, uncertain and shaky situation, the trial court determined it was not in the best interests of the children to remove these children from South Dakota. The trial court considered the best interests of the children in respect to their temporal, mental and moral welfare. Lindley v. Lindley, 401 N.W.2d 732, 735 (S.D.1987).

Father presented testimony demonstrating an immediate home available in Centerville, South Dakota, a rural setting where there was an extended family in the area. Father's mother has a close relationship with these children in this area and there are numerous cousins with whom the children may interact. We considered such factors as being important in Prentice v. Prentice, 322 N.W.2d 880 (S.D.1982).

It appears the children became unsettled and ill during litigation. The trial court found that this stress illness was caused by the mother. Mother told them they would be going to Indiana and specifically made arrangements to have divorce papers served on their father in their presence. She told the children they would be seeing the father a great deal less. Obviously, this upset these children. It appears she inflicted, intentionally, mental trauma upon them. This did not sit well with the trial court. The trial court considered the best interests of these children. See, Origins and Evolution of the "Best Interests of the Child Standard," 34 S.D.L.Rev. 459, 477, and 489. This standard was considered by the trial court for it did not wish the father and...