Kester v. Kester, 11996
| Decision Date | 28 September 1977 |
| Docket Number | No. 11996,11996 |
| Citation | 257 N.W.2d 731 |
| Parties | Joan Ann KESTER, Plaintiff and Appellant, v. Richard Lee KESTER, Defendant and Respondent. |
| Court | South Dakota Supreme Court |
Fred M. Winkler of Lynn, Jackson, Shultz, Ireland & Lebrun, Rapid City, for plaintiff and appellant.
William H. Coacher, Sturgis, for defendant and respondent.
This is an appeal from a judgment entered by the Circuit Court of the Seventh Judicial Circuit granting custody of a minor child. * The father had also been awarded temporary custody of the child pending trial of the matter. The parties were both granted a divorce on the grounds of mental cruelty, but that part of the judgment is not being appealed. We reverse and direct the trial court to modify its judgment and decree of divorce to grant custody of the minor child to tender years to the mother, Joan Kester.
The evidence put on at trial by the plaintiff was that she has her own apartment, a steady job at the Custer State Hospital and has made arrangements with another woman to baby-sit while she works. The plaintiff, along with other witnesses, testified that defendant Richard Kester drinks heavily and that while drunk he had driver around in a pickup truck in which he had a loaded gun with his daughter present. According to witnesses, he had tried to run over plaintiff with his truck. The defendant admitted the incident, but said that he was just trying to talk with her. He was called as a hostile witness, and he admitted that he had moved the child four times in as many months while he was looking for work. The father and daughter normally stay with friends or relatives while he works at a temporary job. He also admitted taking the child from the mother and hiding her when he knew she was on medication without bothering to bring the medicine along. The testimony also revealed that defendant has a fifth grade education and cannot read or write, except his name. The plaintiff has completed the eighth grade.
The main emphasis of the defendant's evidence dealt with two alleged incidents of immoral conduct by plaintiff. The first incident involved the presence of the plaintiff and John (Ivan) Hebbring in a motel room where the Kesters were living. It was a one-room unit, the only furniture on which to sit being the bed and a chair. The witness found the two people in the room fully clothed, one standing and one sitting on the bed at 10 a.m. The child was asleep at the time. The witness stated that she saw nothing immoral, but she testified that Hebbring asked her not to tell anyone, because they might get the wrong idea. The plaintiff admitted the incident, but she said Hebbring had merely come over to ask if she wanted to go to Rapid City for the day with him and his wife.
The second incident was testified to by defendant's brothers. They claimed that they came across plaintiff and Hebbring parked in the woods one afternoon with the child asleep in the back of the vehicle. The two were fully clothed, but Hebbring's shirt was unbuttoned. The plaintiff allegedly ducked low in the seat and hid her head when the two brothers showed up. Hebbring's boss testified that Mr. Hebbring was cutting trees in Wyoming when this incident was supposed to have occurred. He based his testimony on pay records and not personal recollection. Hebbring's brother confirmed this testimony. The plaintiff denied the second incident completely.
Other testimony indicated that plaintiff drank in public and was occasionally drunk. She did not make breakfast for defendant during the last month or so of her pregnancy. Defendant testified that plaintiff would leave home at night and tell him it was his turn to take care of the baby. There was testimony that plaintiff left him with the baby when she was feverish and that plaintiff became angry when defendant took the baby to a doctor. The child was allegedly disciplined once by "sitting her down hard" on the floor. All of the witnesses, however, stated that plaintiff was a good housekeeper and loved the child and took good care of her. Even the defendant admitted this.
The trial judge concluded that all things were not equal under SDCL 30-27-19, South Dakota's "tender years" statute, and awarded custody of the young child to the father. The reasons for his decision, as set out in the memorandum decision and findings of fact, are as follows:
(1) The child was present at the time of the two incidents involving the plaintiff and another man, and this was "not in the best interests of this child;"
(2) The plaintiff absented herself from home, leaving the child with the father, and stayed out late;
(3) The plaintiff refused to fix breakfast for the child;
(4) The plaintiff "threw" the child to the floor to discipline her;
(5) The plaintiff became angry when the defendant took the child to the doctor for treatment of a mild fever;
(6) The child would be "brought up" in the home of the plaintiff's alleged paramour, who allegedly had beaten one of his children, several years before; and
(7) The child exhibited a much stronger attachment to her father in the courtroom.
30-27-19(2) reads as follows:
"As between parents adversely claiming the custody or guardianship, neither parent is entitled to it as of right, but, other things being equal, if the child be of tender years, it should be given to the mother * * *."
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