Haanen v. Haanen
| Decision Date | 15 July 2009 |
| Docket Number | No. 25044.,25044. |
| Citation | 2009 SD 60,769 N.W.2d 836 |
| Parties | Amy Anne HAANEN, Plaintiff and Appellee, v. Jeffrey J. HAANEN, Defendant and Appellant. |
| Court | South Dakota Supreme Court |
Roger W. Ellyson, Watertown, South Dakota, Attorney for plaintiff and appellee.
Mary H. Burd, Lee R. Burd, Burd Law Office, Sioux Falls, South Dakota, Karen Gangle, Sisseton, South Dakota, Attorneys for defendant and appellant.
[¶ 1.] Jeffery J. Haanen appeals a divorce judgment from Amy Anne Haanen. Jeff raises three issues on appeal; he claims that the trial court erred when it: (1) awarded primary physical custody of the children to Amy, (2) awarded alimony to Amy, and (3) incorrectly calculated child support. We affirm in part and reverse in part.
[¶ 2.] The parties were married in July of 1993. Their marriage was a troubled one involving abusive behavior, drug and gambling addictions, and neglect of their three children. The parties' three children were born in 1991, 1994, and 2003. The parties lived in a house owned by Jeff's parents throughout the marriage until the parties separated in July of 2005. Amy testified that approximately one month after the parties' marriage, Jeff became verbally and physically abusive to her. The parties separated for approximately thirteen months beginning in 1996. Amy attributes this separation to Jeff's abuse. The parties reconciled in 1997, but the marriage continued to be dysfunctional. Amy testified that Jeff continued his verbal and physical abuse in the presence of the children and members of her family and also destroyed much of the parties' property. Both parties used drugs and gambled during the marriage. Jeff suffered from an extreme gambling addiction and lost large amounts of money. Jeff began to use methamphetamine in the fall of 2001 and continued his use for over three years. Jeff also introduced Amy to methamphetamine. Both parties became addicted to the drug.
[¶ 3.] At the height of the parties' addictions in 2005, the State of South Dakota brought an Abuse and Neglect action regarding the parties' three children. The State eventually removed the children from Amy and Jeff's care and placed them with Jeff's parents. Amy initiated this divorce proceeding in September of 2005. She rented a three-bedroom duplex, and Jeff continued to reside in the marital home owned by his parents. After Jeff and Amy both successfully completed drug treatment, the children were returned to the parties' custody in July 2006. They shared custody of the children on alternating weeks from July 2006 until the divorce trial in April 2008.
[¶ 4.] In the Judgment and Decree of Divorce, the trial court awarded the parties joint legal custody of the three minor children with Amy granted primary physical custody subject to liberal visitation with Jeff. In determining child custody, the court is guided by the best interest of the child standard. SDCL 25-4-45. The law provides:
In an action for divorce, the court may, before or after judgment, give such direction for the custody, care, and education of the children of the marriage as may seem necessary or proper, and may at any time vacate or modify the same. In awarding the custody of a child, the court shall be guided by consideration of what appears to be for the best interests of the child in respect to the child's temporal and mental and moral welfare. If the child is of a sufficient age to form an intelligent preference, the court may consider that preference in determining the question. As between parents adversely claiming the custody, neither parent may be given preference over the other in determining custody.
Id. (emphasis added). If it is in the best interest of the child, the court may order joint legal custody as follows:
In any custody dispute between parents, the court may order joint legal custody so that both parents retain full parental rights and responsibilities with respect to their child and so that both parents must confer on major decisions affecting the welfare of the child. In ordering joint legal custody, the court may consider the expressed desires of the parents and may grant to one party the ultimate responsibility over specific aspects of the child's welfare or may divide those aspects between the parties based on the best interest of the child. If it appears to the court to be in the best interest of the child, the court may order, or the parties may agree, how any such responsibility shall be divided. Such areas of responsibility may include primary physical residence, education, medical and dental care, and any other responsibilities which the court finds unique to a particular family or in the best interest of the child.
[¶ 5.] On review, we give trial courts "broad discretion in deciding the best interests of a child; their decisions will only be disturbed upon a finding of abuse of discretion." Fuerstenberg v. Fuerstenberg, 1999 SD 35, ¶ 22, 591 N.W.2d 798, 806 (citations omitted); see also Hill v. Hill, 2009 SD 18, ¶ 5, 763 N.W.2d 818, 822 (citations omitted); Maxner v. Maxner, 2007 SD 30, ¶ 12, 730 N.W.2d 619, 622 (citations omitted). An abuse of discretion is "`discretion exercised to an end or purpose not justified by, and clearly against, reason and evidence.'" Hill, 2009 SD 18, ¶ 5, 763 N.W.2d at 822 (quoting Laird v. Laird, 2002 SD 99, ¶ 13, 650 N.W.2d 296, 299). We defer to the trial court's judgment on "the credibility of the witnesses" and the weight to attribute to their testimony. Fuerstenberg, 1999 SD 35, ¶ 22, 591 N.W.2d at 807 (citing Kost v. Kost, 515 N.W.2d 209, 212 (S.D.1994)). Factors that may guide the court in determining the best interest of the child include fitness of the parents, stability, primary caretaker status, child's preference, harmful parental misconduct, separating siblings, and substantial change in circumstances. Id. ¶¶ 23-34, 591 N.W.2d at 807-10.
[¶ 6.] In determining what was in the best interest of the children, the court heard testimony of the parties and other fact witnesses in addition to the expert testimony and report of the custody evaluator, who was jointly retained by the parties. The trial court entered numerous findings of fact in addition to a written decision. The court found that both parties were "capable of providing adequate parenting for their three children and that both [were] fit parents." The court noted that the two older children expressed a preference to live with Jeff. However, the court also observed that Jeff had "tried hard to gain favor with the children" since completing his treatment program as evidenced by "purchases for the children beyond necessities." The court further noted that Jeff's purchases "may explain why living with Jeff and maintaining the life style they had in the past is desired by the children."
[¶ 7.] Both parties presented evidence of the other's misconduct. Jeff had hired a private detective for $17,000, who testified to two incidents involving Amy's drinking. One incident involved Amy drinking several drinks at a local bar over a four hour period of time, and the other incident involved drinking at her sister's bachelorette party. Neither of these incidents occurred while Amy cared for the children or in the children's presence. Although Jeff presented other evidence of Amy's misconduct, the court found the testimony was not credible. Amy presented evidence of "many incidents" of Jeff's anger and rage during the marriage that had occurred in their residence with the children present. The court found that the stability factor "slightly favored" Jeff only because he continued to reside in the family residence. The court determined that the primary caretaker factor currently favored neither parent because the parties shared custody; however, Amy had been the primary caretaker during the course of the marriage until the parties became addicted to methamphetamine. Additionally, the court considered separating the siblings but found "no good reason" to do so.
[¶ 8.] Although the custody evaluation had been completed almost a year before the trial, the court determined based on the evidence presented at trial that there would not have been "a great deal of new information to be considered, other than that the parties have abstained from the use of methamphetamine during this time." The court observed that the evidence presented "a close decision." The court ultimately agreed with the recommendation of the custody evaluator who indicated that the "most conservative course of action in his opinion would be to have Amy function in the capacity as primary custodial parent with Jeff having liberal visitation rights."
[¶ 9.] Jeff claims that the court erroneously relied on the custody evaluation in making its decision to award custody to Amy. Jeff argues that the custody evaluation was unreliable because it was over a year old at the time of trial, and did not take into consideration more recent events. Jeff claims that the court should have given more weight to evidence of Amy's continued substance abuse, the months of shared custody, and the children's attachment to and preference for him.
[¶ 10.] In order for Jeff to prevail, we would have to find that the trial court abused its discretion. Our review of the record and the court's analysis of the evidence does not show an abuse of discretion. This was a very close case, as the trial court noted. The court took into consideration the timing of the evaluation and what had happened since the evaluation had been completed. Although the report had not been updated, subsequent behaviors and changes were admitted into evidence and considered by the court. Evidence showed that both parents were fit and capable of parenting the children. Yet, the specter of successful recovery from the methamphetamine addiction loomed in the background for both parents. Their continued recovery and Jeff's anger...
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