Arneson v. Arneson

Citation2003 SD 125,670 N.W.2d 904
Decision Date15 October 2003
Docket NumberNo. 22639.,22639.
PartiesTravis L. ARNESON, Plaintiff and Appellant, v. Teresa E. ARNESON, Defendant and Appellee.
CourtSupreme Court of South Dakota

Rhonda Lockwood, Rita Allen, Sioux Falls, for Plaintiff and Appellant.

Lee R. Burd, Sioux Falls, for Defendant and Appellee.

KONENKAMP, Justice.

[¶ 1.] This appeal concerns whether the circuit court improperly considered the father's physical limitations resulting from his cerebral palsy in deciding child custody between the parents. The father challenges three aspects of the court's decision: the child custody award to the mother, the use of his structured personal injury settlement as a "source of income" for child support, and the award of attorney's fees to the mother. Because the court considered the appropriate factors in determining child custody, child support, and attorney's fees, we affirm on all issues.

I. Background

[¶ 2.] Travis and Teresa Arneson married on March 28, 1998. Their only child, Grace Marie Ann Arneson, was born on September 24, 1998. When Travis was six months old, he was diagnosed with cerebral palsy. At birth, he suffered a lack of oxygen caused by a physician's negligence. From the resulting medical malpractice settlement, Travis now receives monthly personal injury payments for life.1 He uses a wheel chair and a personal attendant. He does not consider himself "confined" to a wheelchair. He feeds and bathes himself. As he explained to the court in an affidavit, he is independent and capable of caring for himself: "I do hire personal assistants to help me with my day to day routines, not because I need the help but to make my life easier and improve the quality of my life."

[¶ 3.] Travis suffers no disability of intellect. He graduated with honors from high school and Southeastern Votech. An advocate for people with disabilities on both the local and national level, Travis works as a counselor at the Jaycee Camp for the Exceptional. He believes he is capable of caring for his child, "without assistance of an aide." On the subject of his daughter, he is passionate:

I am no different than any other parent. I love my child and I am able to care for her, albeit, not societies [sic] standard idea of care. My daughter gets all of her needs met with me; I love her and I am a positive influence on her emotionally. She loves spending time with me and I love spending time with her; we need each other just like any other parent/child relationship. Grace does not see me as disabled; she sees me as her daddy.

[¶ 4.] Teresa is equally devoted to her child. She believes that she provided for a greater share of Grace's physical needs when she and Travis lived together. For five months, when Grace was still in diapers, Teresa worked a night shift from 11:00 p.m. to 7:00 a.m., leaving Grace at home alone with Travis. During these absences, Teresa was comfortable with their arrangements for Grace because before Teresa left for work, Grace was already asleep and she slept through the night; Grace was an infant and not able to climb out of her crib; Teresa was only eight blocks away from the residence and had made arrangements with her supervisor to leave if there was an emergency. Moreover, Travis and Teresa had both talked to the neighbors about the situation so that Travis could call on a neighbor for help when needed. In fact, Teresa testified that Travis did call on neighbors to assist with diaper changes on occasions when Teresa ran errands. Teresa made sure before she left that Travis had attendants to assist him and that everything was lined up beforehand. On one other occasion, when the parties were having marital difficulties, Teresa went to stay with her parents. Although she wanted to take Grace with her, Travis would not allow it. She was gone for approximately one week.

[¶ 5.] In April 2001, Travis sued Teresa for divorce. While the action was pending, the circuit court ordered that they share custody of the child on alternating weeks. Travis's attendant later testified that during and before the time when this interim order was in place, Travis bathed, dressed, and fed his daughter. The attendant thought that any concerns about Travis's inability to react in an emergency situation were unfounded. This attendant had worked in the home for four months while the parties were still living together. She believed that Travis was more active in parenting than Teresa.

[¶ 6.] Since August 2001, Travis has lived with Edith Krueger. They were married during the pendency of this appeal. Edith and Travis have known each other since 1985, when Edith was a child care worker at the Children's Care Hospital and School. Edith provides day care for six children in Travis's home. Although Grace was at the day care in Travis's home during his alternating weeks, Teresa refused to let Grace stay there on the weeks the child was with her because Travis would not let her take the child each night.

[¶ 7.] By stipulation, the parties agreed that the court would appoint Judy Zimbelman, MSW CSW-PIP, to perform a formal custody evaluation. Zimbelman filed a report and appeared at trial to give her opinion. In her report, she wrote:

Although Travis was able to demonstrate how he was able to care for Grace's physical needs, the majority of this time Travis has someone with him to take care of him should he need assistance. This person also cares for Grace when needed. Travis does a good job of being able to respond to Grace as needed. There are concerns for how Travis would be able to respond to Grace in times of sickness or emergency. He is able to move about in his wheelchair but it is unclear if he would be able to respond to an emergency. Travis described being able to place Grace into the bath tub as needed. With his own limitations, it appears Teresa would be able to better respond to Grace at her young age. Because of Grace's young age, it is important that she has supervision and can be responded to quickly. Zimbelman later repeated these concerns in her testimony. On the other hand, Zimbelman reported that Travis had scored higher on the Parent Awareness Skills Survey. And Teresa had made some poor choices in male companions. Teresa took pains to tell Zimbelman that her latest companion was not around Grace often. Zimbelman recommended that Teresa obtain individual counseling on her relationship decisions.

[¶ 8.] On the subject of his disability, Zimbelman questioned whether Travis could care for Grace by himself. While acknowledging that he always made sure that Grace had the care she needs, Zimbelman noted that "Travis has care givers in his home for himself the majority of the time." She concluded that Travis's "limitations make him less able to care for Grace than Teresa." On the other hand, Zimbelman believed that at different stages of Grace's development, "there may be a need to change the parenting arrangement." As Grace becomes older, Zimbelman thought, "[I]t may be possible for her to split her time more equally with her parents."

[¶ 9.] Zimbelman concluded that "Grace is emotionally tied to her mother at this stage and needs to be with her mother on a daily basis." She also felt it important that Grace be in one home or the other: "Because of Grace's young age, it is better for a child to have a primary home. As she grows older, it may be easier for Grace to split her time with her parents." Although Travis preferred that Grace be with him every evening, Zimbleman thought that "at this age Grace needs stability. She is not able to comprehend the change of a home every week." Moreover, because of her emotional tie to her mother, "Grace would suffer by not seeing her mother all week." Zimbelman believed that "[b]y living with Teresa and going to her father's for daycare, Grace's schedule is stable."

[¶ 10.] For child support purposes, the parties testified on their financial circumstances. Teresa is employed by Southeastern Behavioral Health and earns $8.44 per hour, forty hours per week. In addition, she provides personal assistance for a handicapped person, averaging seven hours per week, at $12 per hour. Teresa's annual income is $21,932. Travis is not employed. Annually, he receives $88,800 from his structured personal injury settlement. This averages $7,400 per month. Because of his disability, Travis incurs some extraordinary expenses, including the recurrent cost of a personal assistant and wheelchair repairs. At trial, he offered proof that for a six-month period, these expenses totaled $8,000.

[¶ 11.] The trial court awarded joint legal custody to the parents, naming Teresa as the primary physical custodian. In its ruling, the court considered our guidelines in Fuerstenberg v. Fuerstenberg, 1999 SD 35, 591 N.W.2d 798. For computing the amount of monthly child support, the court excluded $16,000 of Travis's annual structured settlement receipts and calculated child support as if Travis had a yearly income of $72,000. Travis was ordered to pay monthly child support of $938. In addition, he was allowed to bill Teresa or receive credit for 20% of the reasonable cost of daycare. The court directed Teresa to use the daycare provided in Travis's home, "insofar as he is willing to do so and insofar as he does so with sufficient reliability so as not to create a difficulty for [Teresa's] work attendance."

[¶ 12.] In this appeal, Travis raises the following issues: (1) "Whether the trial court's determination to grant physical custody to the mother was impermissibly influenced by Travis Arneson's physical disability?" (2) "Whether the trial court's determination to grant physical custody to the mother was erroneously based on the `tender years' doctrine?" (3) "Whether the trial court's findings supporting its physical custody determination are clearly erroneous, and whether the trial court abused its discretion in awarding physical custody to the mother?" (4) "Whether the...

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