Jeschke v. Wockenfuss, 18745

• Decision Date: 11 January 1995
• Docket Number: No. 18745,18745
• Citation: 534 N.W.2d 602
• Parties: Collin JESCHKE, Plaintiff and Appellant, v. Gail WOCKENFUSS, f/k/a Gail Jeschke, Defendant and Appellee. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 602

534 N.W.2d 602

Collin JESCHKE, Plaintiff and Appellant, v. Gail WOCKENFUSS, f/k/a Gail Jeschke, Defendant and Appellee.

No. 18745.

Supreme Court of South Dakota.

Considered on Briefs Jan. 11, 1995.

Decided July 19, 1995.

Gary L. Gellhaus, Aberdeen, for plaintiff and appellant,

Carl Haberstick, of Fosheim, Haberstick & Hutchinson, Huron, for defendant and appellee.

AMUNDSON, Justice.

Collin Jeschke (Collin) appeals from the trial court's order modifying child custody to Gail Wockenfuss (Gail). Upon review of the record, we believe the trial court's decision to change custody was consistent with the best interests of the children. We affirm.

FACTS

Collin and Gail were married on December 27, 1980. Two children, Kayla, age 9, and Dustin, age 7, were born of the marriage. Citing irreconcilable differences, Collin and Gail divorced on August 16, 1990. The parties stipulated that permanent care, custody and control of Kayla and Dustin would be granted to Collin, subject to reasonable visitation in Gail.

Following the divorce, Collin filed a barrage of motions to show cause for Gail's failure to comply with child support payments, counseling costs and other visitation issues. ¹ On February 12, 1993, in response to this unending charade, all judges of the Fifth Judicial Circuit disqualified themselves from the case. Judge Jon Erickson of the Third Judicial Circuit was assigned to preside over the proceedings.

Collin contacted Judge Erickson by phone on March 25, 1993, and attempted to discuss his case. Collin next filed an affidavit on May 10, 1993, requesting Judge Erickson be removed from the case, alleging bias against him. Judge James Anderson of the Sixth Circuit was then appointed to preside over the dispute. On May 21, 1994, Collin telephoned Judge Anderson and became irate in attempting to persuade the judge to accept his viewpoint on the dispute. On May 27, 1993, the judge commented on this conversation during a show cause hearing regarding visitation:

I think it's appropriate before I go on to relate something that happened ... On Friday morning I got a call from Mr. Jeschke and he started out rather curiously because as you folks in this area are aware, there's a tragedy that happened up in Hosmer, and my court reporter forwarded the call in to me and said that it was the gentleman from Ipswich and put him on. And he started it out saying, "I've got some good news and bad news. The bad news is I was just up in Hosmer," and proceeded to graphically relate what he had observed up there. And I thought that was kind of a strange way to start a conversation when you're talking to the judge that's going to be making the decision.

After that he proceeded to rant and rave and scream and curse and flip in and out of reality and it was a frightening situation. I can see where you people up here are intimidated by this man.

With that in mind and because of the representations of threats that have been made by Mr. Jeschke to other people, and because of his activities here in court which could best be explained or described as being on the verge of losing control, I am going to enter an order ... [allowing] visitation for Mrs. Wockenfuss this summer.

This May 27, 1993, hearing was held as a result of orders to show cause filed by both parties. Gail testified that Collin referred to her by use of obscenities in front of the children, prevented the children's receipt of her mail and packages, and interfered with professional counseling for the children.

In addition, testimony was presented to the court by various social workers and law enforcement personnel on visitation and Collin's inability to comply with court orders. Gretchen Meyer (Meyer), a Department of Social Services' supervisor of Child Protection, testified on Collin's violent tendencies:

I think that Collin has a tendency to misperceive what happens and when he misperceives what happens it's sometimes in a more radical way than what actually happened. And I think because of that, if he acts on that he could hurt somebody.

Collin has made statements to me that lead me to believe that he could hurt somebody if things didn't go his way.

After hearing this evidence, the court entered a protection order against Collin, prohibiting all oral or written contact with Gail, her new husband, Dean Wockenfuss (Dean), Meyer, and numerous other law enforcement and judicial personnel. In addition, Collin was ordered to comply with a specific visitation schedule. Although the show cause hearing was initially brought on behalf of Gail, requesting the court to clarify visitation, the court determined that based on the testimony a custody hearing was necessary. It ordered psychological testing and homestudies for both parents.

A custody hearing was held on February 16 and 17, 1994. After considering the evidence, the trial court modified custody from Collin to Gail. Collin filed a motion for new trial, motion for judge's recusal, and a motion to establish reasonable visitation on April 15, 1994. ² These motions were denied. Collin filed a Notice of appeal on May 5, 1994.

STANDARD OF REVIEW

"The trial court exercises broad discretion in awarding custody of children, and its decision will be reversed only upon a clear showing of an abuse of discretion." Matter of Guardianship of Janke, 500 N.W.2d 207, 211 (S.D.1993) (citing Anderson v. Anderson, 472 N.W.2d 519, 520 (S.D.1991)). There is no abuse of discretion if "a judicial mind, in view of the law and the circumstances, could reasonably have reached that conclusion." Hulm v. Hulm, 484 N.W.2d 303, 305 (S.D.1992) (citation omitted).

The trial court's decision is based on its ability to judge the credibility of the witnesses. We have previously stated "the credibility of the witnesses and weight to be accorded their testimony is for the trial court and we accept that version of the evidence including any reasonable inferences therefrom, which are favorable to the trial court's determination." Yarnall v. Yarnall, 460 N.W.2d 161, 163 (S.D.1990) (citations omitted). The trial court's findings of fact are given appropriate deference unless they are clearly erroneous. Janke, 500 N.W.2d at 211; Kappenmann v. Kappenmann, 479 N.W.2d 520, 523 (S.D.1992).

DECISION

Although Collin set forth ten different issues, they are so intertwined that we will address them as follows: 1) Whether the trial court erred to adjudicate custody when neither party filed a motion to modify the same, and 2) whether the trial court abused its discretion in modifying custody based on the best interests of the children?

I. Proper Custody Adjudication

Since this case began as a visitation dispute, Collin argues the trial court erred when it adjudicated custody because neither party motioned for modification. The court, however, determined a "full-blown" custody hearing was necessary due to Collin's refusal to allow positive contacts between Gail and the children.

We believe the trial court acted within its authority. SDCL 25-4-45 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. (Emphasis added.)

According to this language, the legislature has granted trial courts the power to determine custody either before or after judgment and "may at any time ... modify" custody so long as modification is in the "best interests of the child." Id.; see Kolb v. Kolb, 324 N.W.2d 279 (S.D.1982).

This court in Swenson v. Swenson, 529 N.W.2d 901 (S.D.1995) further emphasized a trial court as parens patriae of the children "must insist that more be done" when the children's best interests are at stake. Id. at 904 (quoting Williams v. Williams, 425 N.W.2d 390, 393 (S.D.1988)). "It is the trial court's duty to see that the children are protected at every turn ... The parents' personal wishes and desires must yield to what the court, in the discharge of its duty, regards as the children's best interest." Swenson, 529 N.W.2d at 904 (citation omitted).

This record reflects an acrimonious relationship between two divorced parents, resulting in the constant filing of orders to show cause as shown above. The evidence shows parents who both have faults. After reviewing the voluminous record of the numerous disputes between the parties and listening to live testimony on the latest motion, the trial court made a determination that this post-decree conduct on the part of the parents was not in the best interests of the children. The court ordered the parties to undergo psychological evaluation and home-studies. It was obvious to the trial court that the children were innocent victims being impacted by the hostility between two divorced parents.

Given the record, we do not find the trial court abused its discretion in ordering the custody hearing. Such action was within its authority, via statute and case law, to ensure these children's best interests remained the primary focus of this protracted litigation.

II. Modification Consistent with Best Interests of Children

Since the parties originally stipulated to custody in the divorce decree, the court was not required to find "substantial change in circumstances" before modifying that prior agreement. Hulm v. Hulm, 484 N.W.2d 303, 305 (S.D.1992). Custody was to be resolved solely in the best interests of the children. SDCL 25-5-7.1; SDCL 30-27-19 (repealed 1993 S.D.Sess.L. ch. 213, § 172; reenacted in relevant part, 1994 S.D.Sess.L. ch. 192, and codified at SDCL 25-4-45); McKinnie v. McKinnie, 472 N.W.2d 243 (S.D.1991) (citing Nauman v. Nauman, 445 N.W.2d 38, 39 (S.D.1989)). "In determining the best interest of the children, the court must be guided by what appears from all the facts and circumstances to be in the best interest of the children's temporal, mental and moral welfare." Yarnall, 460 N.W.2d at 163-64. In...