Martin v. Martin, s. 13155

• Decision Date: 20 March 1981
• Docket Number: Nos. 13155,13193,s. 13155
• Citation: 306 N.W.2d 648
• Parties: Debra MARTIN, Plaintiff and Appellant, v. Steven J. MARTIN, Defendant and Appellee. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 648

306 N.W.2d 648

Debra MARTIN, Plaintiff and Appellant, v. Steven J. MARTIN, Defendant and Appellee.

Nos. 13155, 13193.

Supreme Court of South Dakota.

Considered on Briefs March 20, 1981.

Decided June 10, 1981.

Ramon A. Roubideaux, Rapid City, for plaintiff and appellant.

Charles A. Wolsky of Morman, Smit, Shepard, Hughes & Wolsky, Sturgis, for defendant and appellee.

HENDERSON, Justice.

ACTION

Debra Martin (mother) appeals from an amended judgment of the trial court which awarded to Steven J. Martin (father) sole custody of the parties' two minor children. The mother also appeals from the trial court's order denying her motion for a new trial and post-judgment relief. Appellate counsel for the mother did not act as her trial counsel. We affirm.

FACTS

The parties were married on July 26, 1974, and divorced on December 11, 1978. Two children were born of this marriage: Callie, born September 10, 1975, and Mitchell, born August 7, 1977. The divorce decree In December of 1979, the mother petitioned the trial court for an order to show cause for the purpose of modifying the parties' custody arrangement. Sworn testimony and various affidavits were presented to the trial court, including the testimony and written report by W. Raymond Berry of the South Dakota Department of Social Services. As a result of these proceedings, the trial court entered an amended judgment on April 17, 1980, which awarded the father sole custody of the parties' children, subject to certain visitation rights by the mother.

provided that the parties would have joint and equal custody of the children.

On May 9, 1980, the mother filed an affidavit and motion for new trial and post-judgment relief. The trial court subsequently entered an order denying this motion. The mother appeals from that order and also the amended judgment of April 17, 1980.

ISSUES

I.

Did the trial court abuse its discretion by awarding custody of the parties' minor children to the father? We hold that it did not.

II.

Did the trial court err in denying the mother's motion for a new trial and post-judgment relief? We hold that it did not.

DECISION

I.

A trial court has broad discretion in awarding custody of minor children and this Court will not interfere with that discretion unless the record presents a clear case of abuse. Engels v. Engels, 297 N.W.2d 489 (S.D.1980); Holforty v. Holforty, 272 N.W.2d 810 (S.D.1978); Pochop v. Pochop, 89 S.D. 466, 233 N.W.2d 806 (1975).

SDCL 25-4-45 states that "(i)n 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." This Court has adopted the rule that:

(T)he parent seeking modification of custodial rights has the burden of proving by a preponderance of the evidence that (1) there has been a substantial and material change of circumstances since the decree of divorce was entered, and (2) the welfare and best interests of the children require the modification being sought.

Menning v. Menning, 272 N.W.2d 828, 829-30 (S.D.1978); citing Masek v. Masek, 90 S.D. 1, 237 N.W.2d 432 (1976).

Both parties recognized that the joint custody arrangement was not in the best interests and welfare of the children. Thus, the parties have agreed that there has been a substantial change of circumstances since the divorce decree was entered. Further, the trial court found that, due to the following factors, a substantial and material change had occurred since the implementation of the original custody arrangement: The father had remarried in July of 1979 to a woman who was willing and able to provide the children with a positive motherly influence; the mother has attempted to undermine the children's respect and affection for their father; the father has firm plans to maintain his present home and business while the mother's future plans are more indefinite; and the joint custody arrangement has been causing the children emotional hardship. The trial court further found that the father had provided for the spiritual and educational training of the children and was able to provide a more stable environment for the children than the mother.

By stipulation of the parties and court order, a report by social service caseworker Berry dated February 7, 1980, was submitted to the trial court. The parties were given the opportunity to orally question Berry with regard to the report's contents. In his report, Berry observed that the father and his present wife provided the children with an appropriate and natural familial atmosphere. As a result of his interview with the mother, Berry determined that she relies heavily upon her parents (the children's maternal grandparents) for the care of the children. Berry concluded his report by recommending that the custody of the children be awarded to the father, with the mother being granted reasonable visitation rights.

The mother contends that she should be granted custody of the children due to their tender age. Effective July 1, 1979, however, SDCL 30-27-19(2) was amended to read: "As between parents adversely claiming the custody or guardianship, neither parent shall be given preference over the other in determining custody." Notwithstanding the Legislature's repeal of the tender years doctrine, the mother would apparently have the judiciary continue to apply it. This we decline to do. The purpose of the Legislature in amending SDCL 30-27-19(2) is clear: It desired that neither parent be given custodial preference due to their...