Flint v. Flint

• Decision Date: 16 December 1982
• Docket Number: No. 13846,13846
• Citation: 334 N.W.2d 680
• Parties: Bryce FLINT, Plaintiff and Appellee, v. Linda K. FLINT, a/k/a Linda K. Holtz, Defendant and Appellant. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 680

334 N.W.2d 680

Bryce FLINT, Plaintiff and Appellee, v. Linda K. FLINT, a/k/a Linda K. Holtz, Defendant and Appellant.

No. 13846.

Supreme Court of South Dakota.

Considered on Briefs Dec. 16, 1982.

Decided June 8, 1983.

Dale R. Hansen of Morrill, Hansen, Hubbard & Brown, Sturgis, for plaintiff and appellee; Michael A. Jackley of Jackley & Flint, Sturgis, on brief.

Jeffry L. Bloomberg, Lead, for defendant and appellant.

MORGAN, Justice (on reassignment).

This is an appeal from an order denying appellant Linda Flint's (mother) motion for change in custody for two minor children and ordering her to pay child support to appellee Bryce Flint (father). Mother appeals and we affirm.

Father and mother were married on September 5, 1970. Two daughters were born during the marriage. The daughters were five and seven years of age at the time their parents were divorced on March 11, 1981. At the time of the divorce, the parties entered into a stipulation regarding custody of the children whereby father would have custody of the children and that later, during the first six months of 1982, the court would review his custody and determine "whether the best interests of the children shall be served by having the children remain in [father's] custody." The court awarded custody to the father and, since the divorce, the daughters have been living with him in Sturgis, South Dakota. Pursuant to mother's motion for change of custody, the trial court conducted a hearing on May 12, 1982, resulting in an order affirming custody in the father. The court also ordered mother to pay $100 per month child support from September through May, the months which the daughters are in school. Mother appeals from the denial of motion for change of custody and from the order requiring her to pay child support.

The first issue presented on this appeal is whether a trial court's reconsideration of a custody order originally based upon the parents' stipulation requires the moving party to show a substantial change of circumstances.

The general rule in South Dakota is that a parent seeking modification of a divorce decree as to child custody, SDCL 25-4-45, ¹ has the burden of proving both (1) a substantial change of circumstances, and (2) the welfare and best interests of the child require modification. Masek v. Masek, 90 S.D. 1, 237 N.W.2d 432 (1976); Warder v. Warder, 87 S.D. 133, 203 N.W.2d 531 (1973); Hershey v. Hershey, 85 S.D. 85, 177 N.W.2d 267 (1970). An exception to this rule has developed in a recent line of decisions emanating from this court after the entry of the order herein. In Kolb v. Kolb, 324 N.W.2d 279 (S.D.1982), this court held that, when the original decree is based on an agreement of the parties, the party seeking modification is not required to show a substantial change of circumstances. ² Also, in Hansen v. Hansen, 327 N.W.2d 47 (S.D.1982), this court followed Kolb and held that, since the initial child custody provisions were based upon the parents' stipulation, the Kolb decision made it unnecessary to determine whether there was a substantial change of circumstances. See also Haskell v. Haskell, 324 N.W.2d 423 (S.D.1982).

Since here the parties stipulated that father would have custody of the daughters, the Kolb decision removes the element of substantial change of circumstances from the burden of proof. Kolb, supra. However, the moving party, here the mother, is left with the burden of showing that the welfare and best interest of the child require modification. Kolb, supra; Hansen, supra; see SDCL 30-27-19. In addressing the welfare and best interests of these children, the trial court concluded "[i]t is in the best interests and welfare of the children to be with the [father] after considering all the factors for the temporal mental and moral welfare of the children." Conclusion of Law V. In cases such as this, where the custody is based upon a stipulation, the trial court's decision will be reversed only upon a clear abuse of discretion. Hansen, supra; Haskell, supra.

The testimony at the hearing is that mother is remarried to a civil engineer. Both she and her husband are employed and own a home in a small community in California. Mother testified that she has looked into a private school in their community for her daughters to attend and that she expects to participate in activities with her daughters. One such example is that she plans to be a Brownie Scout Leader.

Father also testified at length during the hearing. He is an attorney living in Sturgis, where he owns a home. Father testified that he adjusts his schedule to make breakfast for the children and fixes them sack lunches for their noon meal during school. Father is quite involved with his daughters' activities, as he is the assistant leader in the older daughter's 4-H group, and he taught them to roller skate. Father is on a bowling team and takes his daughters with him when he bowls. Two witnesses testified at trial that the father's home was clean, and that the daughters seemed well-adjusted, clean, and happy. The daughters' teachers testified that the girls did well in school, and fit in with their peers regarding cleanliness, dress and behavior.

Clearly, from the record, either parent would provide a good home for their daughters. The mother, however, had the burden to prove that the welfare and best interests of their daughters require modification. Kolb, supra. A review...