Guardianship of Janke, Matter of

• Decision Date: 12 May 1993
• Docket Number: Nos. 17870,17921,s. 17870
• Citation: 500 N.W.2d 207
• Parties: In the Matter of the GUARDIANSHIP OF Andrew Paul JANKE. Lillian Paige JANKE, Plaintiff and Appellee, v. James Allen JANKE, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 207

500 N.W.2d 207

In the Matter of the GUARDIANSHIP OF Andrew Paul JANKE Lillian Paige JANKE, Plaintiff and Appellee, v. James Allen JANKE, Defendant and Appellant.

Nos. 17870, 17921.

Supreme Court of South Dakota.

Argued Nov. 17, 1992.

Decided May 12, 1993.

Wilson M. Kleibacker of Lammers, Lammers, Kleibacker & Parent, Madison, for defendant and appellant Andrew Paul Janke, a Minor.

Richard L. Ericsson of Ericsson, Ericsson & Leibel, Madison, for defendant and appellant James A. Janke.

David R. Gienapp of Arneson, Issenhuth, Gienapp & Blair, Madison, for plaintiff and appellee Lillian (Janke) Miles.

AMUNDSON, Justice.

Andrew Paul Janke (Andrew) appeals from the circuit court's dismissal of his petition for letters of guardianship entered in Brown County, Fifth Judicial Circuit. James Allen Janke (Father) appeals from the circuit court's denial of a change in custody in Lake County, Fourth Judicial Circuit. The two appeals have been consolidated. We affirm.

FACTS

Lillian P. Miles (Mother) and Father were married in August 1970. Andrew was born in Michigan on November 22, 1977. A second child, Laura Janke (Laura), was born in Madison, South Dakota, on February 8, 1981. The family resided in Madison, South Dakota, until 1984, when Father decided to pursue his Master's Degree in Business Administration in Madison, Wisconsin. Shortly after the family moved to Wisconsin, Mother returned to Madison, South Dakota, with Andrew and Laura and filed for divorce from Father.

A judgment and decree of divorce was signed by the court on July 11, 1986. The trial court awarded custody of both Andrew and Laura to Mother. Father appealed the trial court's decision, but this court dismissed the appeal without decision. Father brought numerous subsequent petitions to the circuit court regarding custody and visitation. In addition, Father unsuccessfully appealed child support determinations made following the revision of child support guidelines to this court. Janke v. Janke, 467 N.W.2d 494 (S.D.1991).

Following the parents' divorce, Mother and Father both resided in Madison, South Dakota. As a result of Mother and Father living in close proximity, Andrew and Laura were allowed to have substantial contact with both parents on an almost daily basis.

During the summer of 1991, Mother secured employment advancement through employment with the Aberdeen School District. When Father learned that Mother, Andrew, and Laura would be moving to Aberdeen, he again petitioned the court for a change in custody. A full custody hearing was held in August 1991. Although the court found the move to be a substantial change in circumstances, the court held that it was in the continued best interests of the children to remain in Mother's custody.

In December, 1991, shortly after his fourteenth birthday and the move to Aberdeen, Andrew filed a petition for guardianship in Brown County naming Father as guardian. SDCL 30-27-20. Judge Dobberpuhl determined that a full remedy of law had been available and exercised by Andrew and Father at the August change of custody hearing. Furthermore, Judge Dobberpuhl found that SDCL 30-27-19 required the best interests of the child to be considered in guardianship as well as custody hearings. As a result, Judge Dobberpuhl dismissed Andrew's petition for guardianship. Andrew appeals.

Following the dismissal of Andrew's petition for guardianship, Father brought a new order to show cause and motion for change of custody and appointment of guardian in Lake County. Judge Tucker entered a memorandum decision, finding that it was not necessary or convenient to allow Andrew to appoint Father as his guardian. Likewise, Judge Tucker found that the best interests of the child controlled in appointing a guardian or awarding custody. From this decision, Father appeals.

ISSUES

1) Whether an order of the divorce court establishing custody of fourteen-year-old minor is res judicata as to the minor's petition for letters of guardianship?

2) Whether the standard of review for a fourteen-year-old minor's petition for guardianship is the "best interests of the child" or the "suitability" of the minor's choice?

3) Whether the trial court abused its discretion by refusing to change custody from the mother to the father based on the request of a fourteen-year-old minor child of the parties to name the father as his guardian?

ANALYSIS

We address each issue in seriatim.

1. Res Judicata

Andrew and Father first allege that the trial court erred in ruling that the custody order of the divorce court is res judicata as to Andrew's petition for guardianship. "The doctrine of res judicata serves as claim preclusion to prevent relitigation of an issue actually litigated or which could have been properly raised and determined in a prior action." Hogg v. Siebrecht, 464 N.W.2d 209, 211 (S.D.1990). See also Lewton v. McCauley, 460 N.W.2d 728, 730 (S.D.1990); Black Hills Jewelry Mfg. v. Felco Jewel Ind., 336 N.W.2d 153, 157 (S.D.1983).

This court applies four factors in determining whether res judicata is applicable: (1) Whether the issue decided in the former adjudication is identical to the present issue; (2) whether there was a final judgment on the merits; (3) whether the parties in the two actions are the same or in privity; and (4) whether there was a full and fair opportunity to litigate the issues in the prior adjudication. Raschke v. DeGraff, 81 S.D. 291, 295, 134 N.W.2d 294, 296 (1965). Cf. Staab v. Cameron, 351 N.W.2d 463, 465 (S.D.1984) (applying same factors to issue of collateral estoppel).

The nub issue of where Andrew lives is identical in the guardianship proceeding and the custody modification action. ^* This issue was already decided in the custody proceeding held in August 1991. "The test is a query into whether the wrong sought to be redressed is the same in both actions." Black Hills Jewelry, 336 N.W.2d at 157. In both cases, Father and/or Andrew sought to change Andrew's custody from Mother to Father. In both cases, the custody/guardianship change coincided with Mother's move to Aberdeen. In both cases, Andrew expressed a desire to remain in Madison where Father resides. "Essentially, it is the underlying facts which give rise to the cause of action that must determine the propriety or necessity of presenting a specific issue within the prior proceedings." Lewton, 460 N.W.2d at 731. The facts and the issues are identical in both the guardianship and custody cases.

The August 1991 custody proceeding was a final adjudication of the change of circumstances which gave rise to the proceeding being brought. Andrew alleges no subsequent change of circumstances in his petition for guardianship. A custody decree is conclusive to the parties involved as to all issues and facts unless there are proper grounds for modification. SDCL 26-5A-12. Andrew has not demonstrated a need for a change in custody that has arisen since the August 1991 hearing. The mere passage of time causing a minor to reach the age of fourteen is not a change in circumstances substantial enough to warrant a change in custody. The August 1991 adjudication was a final determination in regard to the change in circumstances caused by Mother's move to Aberdeen.

While Andrew was not a party per se in the custody proceeding, his interests were in privity with those of his parents.

'In deciding who are parties for the purpose of determining the conclusiveness of prior judgments, the courts look beyond the nominal parties, and treat all those whose interests are involved in the litigation and who conduct and control the action or defense as real parties, and hold them concluded by any judgment that may be rendered.'

Black Hills Jewelry, 336 N.W.2d at 157 (quoting Schell v. Walker, 305 N.W.2d 920, 922 (S.D.1981)). Andrew's interests regarding with which parent he should reside were clearly involved and represented by his parents in the custody proceeding. In addition, Andrew himself was allowed to express his choice of residence in the custody case. Andrew's interests were involved in the custody proceeding. Thus, under the established precedent of our prior holdings, he will be treated as a party for the purposes of res judicata.

Judge Tucker considered Andrew's testimony at the custody proceeding concerning his preference for custodial parent. " 'To allow appellants to avoid the doctrine of res judicata simply by bringing a new suit would undermine its very purpose.' " Hogg, 464 N.W.2d at 211 (quoting Yaw v. Beeghly, 109 Ill.App.3d 627, 632-33, 65 Ill.Dec. 211, 215, 440 N.E.2d 1066, 1070 (1982)). Andrew had his opportunity to tell the court with which parent he preferred to live; he cannot now relitigate that same issue by bringing it as a new cause of action.

We thus conclude that res judicata bars Andrew from bringing a guardianship action under the facts of this case, since these actions were precipitated by the move to Aberdeen. Father and Andrew cannot creatively circumvent the court's custody decree by pursuing an action for guardianship. The purpose of SDCL 30-27-20 and SDCL 30-27-21 is not to enable a fourteen-year-old minor already residing with one parent as the result of a custody decree to suddenly dictate custodial decisions. Likewise, the court does not suddenly disregard the best interests of a minor when he obtains the age of fourteen. While we find Andrew's claim for guardianship is thus barred by res judicata, we nonetheless address the standard of review applicable to guardianship proceedings in order to give guidance regarding these types of claims.

2. Standard of Review

Andrew and Father allege that once a minor reaches the age of fourteen, the minor has the right to select his guardian notwithstanding a court decree which placed custody of the minor with a person other than his preference, subject only to the court's determination that the minor's choice is "suitable." Andrew and Father base this contention on SDCL...