Flint v. Flint

• Decision Date: 11 May 2022
• Docket Number: 29721-a-MES
• Citation: 2022 S.D. 27
• Parties: JEREMY FLINT, Plaintiff and Appellant, v. LYNDSEY FLINT, Defendant and Appellee.
• Court: South Dakota Supreme Court

2022 S.D. 27

JEREMY FLINT, Plaintiff and Appellant, v. LYNDSEY FLINT, Defendant and Appellee.

No. 29721-a-MES

Supreme Court of South Dakota

May 11, 2022

CONSIDERED ON BRIEFS APRIL 25, 2022

APPEAL FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT MINNEHAHA COUNTY, SOUTH DAKOTA, THE HONORABLE JON SOGN Judge

GREGORY T. BREWERS of Strange, Farrell, Johnson &amp Brewers, P.C. Sioux Falls, South Dakota Attorneys for plaintiff and appellant.

THOMAS M. KELLER Thomas M. Keller, Prof. LLC Sioux Falls, South Dakota Attorneys for defendant and appellee.

SALTER, Justice

[¶1.] Jeremy and Lyndsey Flint are former spouses and the parents of a six- year-old daughter, V.F. The parties originally shared physical custody of V.F. under a parenting order entered as part of their 2018 Arizona divorce. In 2019 Jeremy moved to South Dakota, registered the Arizona divorce and child custody order, and sought primary physical custody of V.F. Lyndsey, now living in California, opposed Jeremy's request and sought primary physical custody herself. Following a court trial, the circuit court granted Lyndsey's request, placing V.F. in her primary physical custody. Jeremy appeals, arguing the court abused its discretion. We affirm.

Background

[¶2.] The parties met in 2010 through a mutual friend and began dating. Jeremy is originally from Sioux Falls, but at the time, he was serving in the United States Air Force and stationed at Travis Air Force Base near Fairfield California. Lyndsey is from the Fairfield area.

[¶3.] The couple continued their relationship after Jeremy was transferred to Guam in early 2011. Despite the distance, their relationship flourished, and the parties were married in October 2011 during Jeremy's stateside leave. He returned to Guam, and Lyndsey remained in California with her young son, A.M., from a previous relationship.

[¶4.] After completing his tour in Guam, Jeremy took an assignment with the Air Force Thunderbirds demonstration squadron, stationed in Las Vegas, Nevada. Lyndsey joined him there while A.M. remained in California with his father, which, she asserted, enabled A.M. to remain in his school.

[¶5.] The parties' daughter, V.F., was born in 2016. Lyndsey had previously worked as a realtor, but after V.F.'s birth, she remained at home to care for her. The family moved to Tucson, Arizona, in April 2017, again in connection with orders transferring Jeremy to a new assignment.

[¶6.] The parties separated in October 2017, and an Arizona divorce action followed. Both parties acknowledge stressors leading up to the breakup, including alcohol abuse and isolation within the home. The parties confronted additional difficulties for a period of time after the separation. For example, Lyndsey had not been working outside of the home, and the record contains indications that she initially experienced financial insecurity and changed addresses multiple times.

[¶7.] The parties generally shared custody of V.F. during the pendency of the divorce. However, for some periods, Jeremy exercised more parenting time as Lyndsey sought to establish a law enforcement career, first as a prison guard with the Arizona Department of Corrections.

[¶8.] The parties finalized their divorce in 2018, and in February 2019, Lyndsey began a federal law enforcement career with the Department of Homeland Security as a Customs and Border Protection officer. The job required an extended period of standard law enforcement training and Spanish language instruction at a federal training facility in Georgia, during which time V.F. remained with Jeremy.

[¶9.] Around the same time, Jeremy was preparing to leave the military and relocate to South Dakota. Before Lyndsey left for Georgia, the parties signed what they have described as an agreement, written as a first-person statement by Lyndsey, in which she "authorize[d] Jeremy Flint to take . . . [V.F.] to South Dakota during his transition out of the military." Regarding a future parenting arrangement, the document stated only, "Once I return from my training in Georgia . . ., we will reassess visitation depending on our respective work schedules."

[¶10.] Jeremy moved back to South Dakota in May 2019 and eventually purchased a home in Brandon. He began working at the Earth Resources Observation and Science (EROS) Center and is a member of the South Dakota Air National Guard. While Lyndsey completed her training, he enrolled V.F. in daycare.

[¶11.] Although Lyndsey's ability to leave her training facility was restricted, she and her parents attempted to have V.F. visit her there, including a proposal under which V.F. would accompany Lyndsey's parents to her graduation ceremony, traveling in their RV camper. Jeremy was not receptive to that idea, and V.F. did not see her mother for several months. The two did, however, maintain contact through telephone or video calls.

[¶12.] Stark differences between the parties' ideas for co-parenting became apparent after Lyndsey completed federal law enforcement training in August 2019. In her view, the agreement the parties signed before she left simply allowed Jeremy to take V.F. with him to South Dakota as he transitioned out of the military-not relocate with V.F. Lyndsey claimed she anticipated returning to Arizona and continuing a co-parenting arrangement with Jeremy there. However, Jeremy's relocation to South Dakota was permanent, and he intended to become V.F.'s primary custodial parent.

[¶13.] After her graduation, Lyndsey requested and received a transfer from her anticipated duty station in Nogales, Arizona, to the San Francisco airport. Despite a lengthy commute, the transfer allowed her to locate in the Fairfield area where most of her family lives, including her parents.

[¶14.] Efforts to reestablish a co-parenting arrangement proved difficult for the parties, and Lyndsey did not see V.F. for several months after the completion of her training in August 2019. Jeremy had registered the Arizona divorce and parenting order in July 2019, and, in October 2019, he moved to modify the original shared parenting arrangement and also for interim primary physical custody of V.F. Initially appearing pro se, Lyndsey opposed Jeremy's motion and sought primary physical custody of V.F. and the implementation of the South Dakota Parenting Guidelines.

[¶15.] The circuit court conducted a hearing on the request for interim relief in October 2019. Lyndsey was personally present, and both she and Jeremy provided limited testimony which established, among other things, that just days before the hearing, Lyndsey had her first in-person time with V.F. since leaving for training in Georgia in February 2019. Both parties attempted to shift responsibility for the prolonged period to the other, but most of the separation was due to Lyndsey's training, which she described as similar to initial military training.^[1] [¶16.] During the time after Lyndsey's graduation in August until the October visit, the parties had each been asserting the desire to have primary physical custody of V.F. Although Jeremy had offered to fund a trip to South Dakota for Lyndsey to see V.F., Lyndsey did not want to be relegated to seeing V.F. in South Dakota and wanted V.F. to be with her in California.

[¶17.] The circuit court found that both parents loved V.F. and were capable of caring for her. The court denied Jeremy's request for interim primary physical custody and entered an order that allowed Lyndsey to have V.F. with her in California for two weeks. After that, V.F. would return to South Dakota, and the parties were ordered to transition into a month-on/month-off shared parenting arrangement.^[2]

[¶18.] Given the expedited nature of the interim custody issue, the court appeared to draw some support from the fact that the current, prevailing Arizona order established shared parenting. However, the court predicted that continuing the arrangement may not provide a good long-term solution after a more complete development of the record at trial.

[¶19.] The circuit court conducted a custody trial on January 14-15, 2021.The evidence included the testimony of Erin Nielsen Ogdahl who had completed a custody evaluation. Nielsen Ogdahl observed V.F. at home with each parent, developed background and collateral information, and reviewed the results of psychological evaluations of both parents. Though her ultimate recommendation favored Jeremy, Nielsen Ogdahl's report indicated:

This evaluator does not have any concerns with either party's physical or mental health. The psychological evaluations completed indicate no serious concerns for either party and observations made seem in line with what this evaluator has observed.

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Both parties clearly love their child and show her much affection. Those feelings are clearly returned by the child.

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This evaluator does not believe either party has deliberately kept the child from the other. Although Jeremy did not accommodate Lyndsey's requests, it is believed he had reasonable concern and the two must work to get on the same page.

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[V.F.] seems closely bonded with each parent and has quality relationships with other family members, namely her randparents.

[¶20.] Also in her report, Nielsen Ogdahl noted "concerns with Lyndsey's long-term plan and stability with work and location." In her testimony, Nielsen Ogdahl referenced Lyndsey's initial training and a seven-week period of additional training in Philadelphia. While there, Lyndsey stayed with her boyfriend who is also a Customs and Border Protection officer. A.M. was with Lyndsey in Philadelphia and V.F. traveled there to stay with her mother as part of the court's interim shared parenting order. Because Lyndsey's training took place during standard workday hours, the children were...