Engels v. Engels, 12815
| Decision Date | 22 October 1980 |
| Docket Number | No. 12815,12815 |
| Citation | 297 N.W.2d 489 |
| Parties | Alan Keith ENGELS, Plaintiff and Appellant, v. June Deloy ENGELS, now June Deloy Anderson, Defendant and Appellee. |
| Court | South Dakota Supreme Court |
Alan Keith Engels, pro se.
This is a pro se appeal by Alan Keith Engels, appellant, from a judgment and order of the trial court denying appellant's motion for modification of a divorce decree so as to provide him with the custody of his minor children. The children's mother, formerly June Deloy Engels (appellee), filed no brief. We affirm.
On September 28, 1976, a decree was entered by the trial court divorcing appellant from appellee. The decree ordered custody of the parties' minor children to appellee. The children were six, five, and four years of age as of September 1976. No appeal was ever taken from this decree. However, on December 7, 1978, appellant filed a motion to vacate and reverse the decision of the trial court as set forth in the divorce decree of September 28, 1976. Specifically, appellant prayed for care, custody, and control of the three minor children. The trial court considered appellant's requested relief 3. The Court Finds as a matter of Fact that the Defendant June Deloy Engels, now June Deloy Anderson, has all the capabilities to manage the affairs of her life, and the lives of her children by providing them with good moral and ethical teachings.
as being a motion to modify the decree. Upon hearing the testimony of appellant, appellee, and their respective witnesses on January 5, 1979, the trial court entered the following Findings of Fact:
4. The Court Finds as a matter of Fact that the Defendant June Deloy Engels, now June Deloy Anderson, has all the capabilities to provide for the general welfare of the children of the parties in an adequate manner.
8. The Court Finds as a matter of Fact that the Defendant is not immoral or an unfit mother.
9. The Court Finds as a matter of Fact that the children have not been neglected by the Defendant.
13. The Court Finds as a matter of Fact that, from the evidence, there has been no change in circumstances warranting the modification as requested by Plaintiff, Alan Keith Engels.
14. The Court Finds as a matter of Fact that from the evidence, that the Plaintiff petitioner, Alan Keith Engels, has not, by a perponderance (sic) of the evidence, shown said proposed modification would be in the best interests and welfare of the children.
Under its Conclusions of Law, the trial court stated:
4. The Court Concludes as a matter of Law that the best interests of the minor children's temperal (sic), mental and moral welfare must be considered.
5. The Court Concludes as a matter of Law that there is present no material change of circumstances to warrant the relief sought.
6. The Court Concludes as a matter of Law that no substantial change of circumstances has been shown to render the relief sought.
7. The Court Concludes as a matter of Law that there is no change of circumstances to warrant the relief sought.
8. The Court Concludes as a matter of Law that it would not be in the best interests of the children to render the relief sought.
A judgment and order were entered April 11, 1979, denying appellant's motion to amend the divorce decree. Appellant prepared and filed 25 assignments of error. This Court, however, recognizes that only one basic legal question is involved.
Did the trial court err by denying appellant's motion for modification of the divorce decree? We hold that it did not.
Upon review this Court must give due regard to the opportunity of the trial court to judge the credibility of the witnesses and its finding of fact will not be set aside unless they are clearly erroneous. SDCL 15-6-52(a). The trial court has broad discretion in awarding custody of minor children and this Court will not interfere with that discretion unless the record presents a clear case of abuse. Holforty v. Holforty, 272 N.W.2d 810 (S.D. 1978); Pochop v. Pochop, 89 S.D. 466, 233 N.W.2d 806 (1975); Masek v. Masek, 89 S.D. 62, 228 N.W.2d 334 (1975).
SDCL 30-27-19, as in effect during this case, * provides that in awarding custody of minor children the trial court is to be guided by the following considerations:
(1) by what appears to be for the best interests of the child in respect to its temporal and its mental and moral welfare; and if the child be of a sufficient age to form an intelligent preference, the court or judge...
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