Kost v. Kost, No. 18101

CourtSupreme Court of South Dakota
Writing for the CourtMARTIN; MILLER; HENDERSON; MARTIN, C.J., for WUEST; HENDERSON
Citation515 N.W.2d 209
Decision Date31 August 1993
Docket NumberNo. 18101
PartiesMerle M. KOST, Plaintiff and Appellee, v. Karen M. KOST, Defendant and Appellant. . Considered on Briefs

Page 209

515 N.W.2d 209
Merle M. KOST, Plaintiff and Appellee,
v.
Karen M. KOST, Defendant and Appellant.
No. 18101.
Supreme Court of South Dakota.
Considered on Briefs Aug. 31, 1993.
Decided April 20, 1994.

John F. Cogley of Morgan, Theeler, Cogley and Petersen, Mitchell, for plaintiff and appellee.

E. Steeves Smith of Tinan, Smith & Bucher, Mitchell, for defendant and appellant.

MARTIN, Circuit Judge.

Karen M. Kost (Karen) appeals a judgment and decree of divorce from Merle M. Kost (Merle). She appeals the granting of

Page 211

primary custody of a child (Amy) to Merle, the division of property, the award of attorney's fees to Merle, the denial of rehabilitative alimony to her, and the child support required of her.
FACTS

This action was commenced on June 4, 1990 by Merle. Karen answered and counterclaimed. The trial commenced on December 17, 1991. During this eighteen month interim numerous hearings transpired by virtue of the inability of the parties to get along, the change of counsel for Karen, and the special needs of their child, Amy, born handicapped and retarded on February 10, 1986. Further, tension between the parties increased because of Karen's withdrawal of her verbal consent of settlement on March 10, 1991, which was the day before an earlier trial date. Thereafter the parties could not reach a settlement. An attorney was appointed for the child by the court on July 9, 1991. As stated, the actual trial commenced on December 17, 1991, and lasted three days. The trial court issued two memorandum decisions, the first on June 22, 1992, regarding custody, visitation, child support, and health costs; and the second opinion on July 8, 1992, regarding property division.

The parties were married on July 6, 1979. It was the second marriage for both of them. Karen had a daughter by a previous marriage, who was eight years old at the time of the marriage and continued to live with the parties until she became sixteen years of age. Merle is forty-eight years of age. Karen is forty-six years of age.

At the time of the marriage Karen was employed full time as a secretary at Job Service in Aberdeen, South Dakota. She worked for Aman Collection Agency from 1964 through 1968 and as an accounting clerk from 1969 through 1973. She did not work from 1974 through 1977 because of the birth of her first child and then worked from 1977 until she married Merle. She is a high school graduate with one year of business college in secretarial studies. She quit her job when she married Merle and did not work during the marriage. Karen was diagnosed with multiple sclerosis in her early twenties, but has had only minor problems and is able to work. At the time of trial Karen had recently started a business office careers program at Mitchell Vocational Technical School. This can be a one or two year program, but Karen feels she will need two years. Her schooling is financed through grants from the Job Training Partnership Act. Merle has a bachelor of science degree in agronomy and has been employed by the Soil Conservation Service for twenty-five years. His annual salary is $42,266.

The parties' one child was born on February 10, 1986. In October 1986, the parties learned that Amy was handicapped and would be retarded, and this news was devastating to both of them. In November 1987, Dr. William Sorrels described Amy as a significantly handicapped and developmentally delayed little girl with a small head known as microcephaly and meeting none of what would be considered her normal developmental milestones past about age six to seven months. He assessed the degree of her developmental delays as serious to profound. In a letter dated December 23, 1988, Dr. Jerome M. Blake described Amy as a multi-handicapped little girl who is globally developmentally delayed, has poor physical growth and is starting to show some autistic features. When she was between eighteen and twenty-four months of age, Amy developed a condition known as aerophagia or air swallowing which is a condition frequently seen in children who are not stimulated. She also developed bruxism or teeth grinding which is another self-stimulating behavior. By virtue of her condition Amy will need supervision and care for the rest of her life.

Regarding their child, Karen was the primary caretaker for the first twenty months. Merle would go back to work in the evenings and also work on the weekends. Karen did the housework and took the child for walks. However, Karen admits that Merle assisted during the evenings and was active in parenting the child. In January 1988 the school district became involved in assisting for the caring of the child. It started a feeding program for the child which was to start Amy eating solid foods to help develop her speech, language, and her oral motor activities.

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The evidence shows a reluctance by Karen to do this notwithstanding being shown repeatedly how to do it. Amy did not make progress. The school district staff starting going to the home on lunch hours between two and five times per week. Eventually in the fall of 1989 the district started feeding the child at school because she wasn't being fed properly at home. The district also recommended that the child not be "sat" in front of the t.v. and left there, that she be bathed in the bathroom, that her diapers be changed in the bedroom, and that she be fed in the dining room and kitchen the same time as the parents. All of this was designed to assist the development of the child. This, however, was not done by Karen. In October 1989 Amy was evaluated at Meyer Rehabilitation Institute in Omaha. The evaluation revealed that the child had reached a new low as to her level of stimulation and that more training of the primary caretaker was necessary. In March 1990 Merle started taking an active role in caring for Amy. He cooperated with the school district and became visibly aware of the lack of the child's development and the shortcomings of care by Karen. Since April 1, 1991, Merle has been the primary caretaker of this child.

Physicians, nutrition experts, speech therapists, and psychologists all testified as experts at the trial. Their testimony revealed that Karen has an aggressive personality, showed a lack of interest in the child, and failed to follow the recommendations made to assist in caring for the child. On the other hand, they found Merle to be much more devoted to the child and cooperative with the experts to necessarily address the medical needs of the child. To insure the maximum development of the child, Merle should be the primary custodian.

ISSUE I

DID THE TRIAL COURT ABUSE ITS DISCRETION IN AWARDING JOINT CUSTODY OF THE CHILD WITH THE PRIMARY PHYSICAL CUSTODY TO BE WITH MERLE?

The primary consideration in deciding child custody is determining the best interests of the child. Kappenmann v. Kappenmann, 479 N.W.2d 520 (S.D.1991). The trial court is vested with broad discretion in deciding questions of child custody. Its decision will only be reversed if there was a clear showing of an abuse of discretion. Anderson v. Anderson, 472 N.W.2d 519 (S.D.1991). Both the credibility of the witnesses and the weight to be accorded to their testimony is for the trial court to determine. Mellema v. Mellema, 407 N.W.2d 827, 831 (S.D.1987). The evidence clearly shows that the best interests of the child will be served by Merle as the primary physical custodian. We find no abuse of discretion and therefore the custody determination is affirmed.

ISSUE II

DID THE TRIAL COURT ABUSE ITS DISCRETION IN DIVIDING THE MARITAL PROPERTY?

This Court has consistently recognized the principal factors the trial court is to consider when making an equitable division of the marital property as: (1) the duration of the marriage; (2) the value of the property; (3) the ages of the parties; (4) the health of the parties; (5) the parties' competency to earn a living; (6) the contribution of each party to the accumulation of the property; and (7) the income-producing capacity of the parties' assets. Kanta v. Kanta, 479 N.W.2d 505 (S.D.1991). This Court will not disturb a division of property unless it clearly appears the trial court abused its discretion. "The term 'abuse of discretion' refers to a discretion exercised to an end or purpose not justified...

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21 practice notes
  • Loomis, In re, No. 20226
    • United States
    • Supreme Court of South Dakota
    • November 18, 1998
    ...the dilatory acts of their parents. "Where child support is concerned, the child's interest is the primary consideration. " Kost v. Kost, 515 N.W.2d 209, 214 (S.D.1994)(emphasis in original) (citation omitted). It is one thing to fault those who sit too long on their own rights, but it is q......
  • Grode v. Grode, No. 19013
    • United States
    • Supreme Court of South Dakota
    • October 16, 1995
    ...75 (S.D.1994) (citations omitted). All conflicts in the evidence must be resolved in favor of the trial court's findings. Kost v. Kost, 515 N.W.2d 209, 213 (S.D.1994). We review a trial court's conclusions of law under a de novo standard. Bess v. Bess, 534 N.W.2d 346, 347 (S.D.1995) (citing......
  • Halbersma v. Halbersma, No. 25115.
    • United States
    • Supreme Court of South Dakota
    • November 10, 2009
    ...812 (quoting Grode v. Grode, 1996 SD 15, ¶ 9, 543 N.W.2d 795, 800). See Endres v. Endres, 532 N.W.2d 65, 71 (S.D.1995); Kost v. Kost, 515 N.W.2d 209, 213 (S.D.1994); Kappenmann v. Kappenmann, 479 N.W.2d 520, 524 (S.D.1992); Hanson v. Hanson, 252 N.W.2d 907, 908 (S.D.1977). We will not overt......
  • Pietrzak v. Schroeder, No. 24729.
    • United States
    • Supreme Court of South Dakota
    • January 7, 2009
    ...the abuse of discretion standard of review. Fuerstenberg v. Fuerstenberg, 1999 SD 35, ¶ 22, 591 N.W.2d 798, 807 (citing Kost v. Kost, 515 N.W.2d 209, 212 (S.D.1994) (citing Anderson v. Anderson, 472 N.W.2d 519 (S.D.1991))). The credibility of witnesses and the weight afforded to their testi......
  • Request a trial to view additional results
21 cases
  • Loomis, In re, No. 20226
    • United States
    • Supreme Court of South Dakota
    • November 18, 1998
    ...the dilatory acts of their parents. "Where child support is concerned, the child's interest is the primary consideration. " Kost v. Kost, 515 N.W.2d 209, 214 (S.D.1994)(emphasis in original) (citation omitted). It is one thing to fault those who sit too long on their own rights, but it is q......
  • Grode v. Grode, No. 19013
    • United States
    • Supreme Court of South Dakota
    • October 16, 1995
    ...75 (S.D.1994) (citations omitted). All conflicts in the evidence must be resolved in favor of the trial court's findings. Kost v. Kost, 515 N.W.2d 209, 213 (S.D.1994). We review a trial court's conclusions of law under a de novo standard. Bess v. Bess, 534 N.W.2d 346, 347 (S.D.1995) (citing......
  • Halbersma v. Halbersma, No. 25115.
    • United States
    • Supreme Court of South Dakota
    • November 10, 2009
    ...812 (quoting Grode v. Grode, 1996 SD 15, ¶ 9, 543 N.W.2d 795, 800). See Endres v. Endres, 532 N.W.2d 65, 71 (S.D.1995); Kost v. Kost, 515 N.W.2d 209, 213 (S.D.1994); Kappenmann v. Kappenmann, 479 N.W.2d 520, 524 (S.D.1992); Hanson v. Hanson, 252 N.W.2d 907, 908 (S.D.1977). We will not overt......
  • Pietrzak v. Schroeder, No. 24729.
    • United States
    • Supreme Court of South Dakota
    • January 7, 2009
    ...the abuse of discretion standard of review. Fuerstenberg v. Fuerstenberg, 1999 SD 35, ¶ 22, 591 N.W.2d 798, 807 (citing Kost v. Kost, 515 N.W.2d 209, 212 (S.D.1994) (citing Anderson v. Anderson, 472 N.W.2d 519 (S.D.1991))). The credibility of witnesses and the weight afforded to their testi......
  • Request a trial to view additional results

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