Maxner v. Maxner, No. 23779.

CourtSupreme Court of South Dakota
Writing for the CourtKonenkamp
Citation2007 SD 30,730 N.W.2d 619
Docket NumberNo. 23779.
Decision Date14 March 2007
PartiesDaniel G. MAXNER, Plaintiff and Appellant, v. Renee M. MAXNER, Defendant and Appellee.
730 N.W.2d 619
2007 SD 30
Daniel G. MAXNER, Plaintiff and Appellant,
v.
Renee M. MAXNER, Defendant and Appellee.
No. 23779.
Supreme Court of South Dakota.
Considered on Briefs January 8, 2007.
Decided March 14, 2007.
Rehearing Denied May 6, 2007.

[730 N.W.2d 620]

Daniel G. Maxner, Rapid City, South Dakota, Pro Se appellant.

KONENKAMP, Justice.


[¶ 1.] In this divorce appeal, a father questions the qualifications and opinions of a court-appointed custody evaluator. The circuit court accepted the evaluator's recommendations in its decision to award physical custody to the mother. The father also challenges the court's decisions on property division, alimony, and child support. We affirm.

Background

[¶ 2.] Daniel and Renee Maxner were married on June 13, 1997. Three daughters were born to the marriage. Daniel sued for divorce in 2004. At the same time, Daniel and Renee each obtained a protection order against the other. As the trial court would later remark, "[t]here are repeated claims of violence, dominance, and abuse made by both parties and each party can point to episodes which are claimed to document or support their allegations." Both parents sought primary custody of their three children.

[¶ 3.] At trial, Daniel and Renee each offered evidence of the other's abuse. But the court ultimately found that "[b]oth parties know the triggers of the other and either of them can institute an altercation or uproar staged to make the other look bad or appear the aggressor." The court concluded that there was no physical match between the two. Because of Daniel's size, whether Renee was the aggressor or not, it would not "remotely resemble a fair match in any sense of the word." Essentially, the court concluded that they each married a "mate with whom they cannot live."

[¶ 4.] After receiving "testimony and affidavits from many, many people," the court summarized its conclusions: Daniel's witnesses described him as "calm, cheerful,

730 N.W.2d 621

non-aggressive, caring, loving, loyal, [and a] virtually perfect human being who suffered unendingly as a result of" Renee's actions. His witnesses described Renee as an irrational, obsessive-compulsive woman, who fears dirt and germs, but leaves her home in a disastrous state, and who is rude and physically aggressive. On the other hand, the court found that Renee's witnesses depicted Daniel as a dominating, raging, and abusive man who degrades Renee both in public and private. These witnesses acknowledged that Renee has some faults, but testified that she has always been an appropriate caretaker of the children despite Daniel's claims to the contrary. There were some witnesses with no ties to either parent. These witnesses, the court observed, "tend to side more with the descriptions of [Daniel] by [Renee's] witnesses than the other way around."

[¶ 5.] From expert opinions offered during the proceedings, the court concluded that Daniel and Renee each suffer from "personality disorders" or "markedly dysfunctional behavioral traits." In the court's view, these psychological problems rendered their relationship "dysfunctional in many respects." Renee has a history of personality disorders. Yet, as the court noted, she "readily admitted these problems and works on them." Daniel, according to the court, has a "need to dominate and control," has "difficulty in controlling angry outbursts[,] . . . has an obsession with being right and views opinions contrary to his as being wrong, ignorant, or dishonest." The court saw "little evidence" that Daniel would accept that he has multiple problems and needs to make changes.

[¶ 6.] In August 2004, while the divorce was pending, the circuit court allowed Renee to move with the children to North Dakota, where her extended family resides. Daniel objected to the move. According to the court, it allowed the move "regardless of which parent would ultimately be awarded custody" and "despite [its] strong dislike of move-aways, primarily because the relationship of the parties was so dysfunctional that the [c]ourt deemed separation by a considerable distance to be essential for a peaceful and stable environment for both the adults and the children[.]"

[¶ 7.] In June 2005, Daniel and Renee were granted a divorce on irreconcilable differences. Daniel retained possession of the marital home, and the mutual protection orders were dismissed. In the decree, they were given joint legal custody of their three daughters, with Renee having primary physical custody in North Dakota.

[¶ 8.] Daniel had been the primary income provider during the marriage. He is a self-employed floor layer. Renee worked during the marriage, but only intermittently. Her primary role in the relationship was to stay home and care for the children. Considering their respective contributions to the marriage, the court ruled that an equal property division was appropriate. To balance the division, Daniel was ordered to pay Renee a lump sum of $15,406. The court also awarded Renee $150 per month in alimony for three years to allow her to improve her earning capacity while employed after the divorce.

[¶ 9.] Daniel appeals pro se. He asserts that the court erred when it (1) allowed Renee to move the children to North Dakota; (2) awarded physical custody of the children to Renee; (3) calculated his child support obligation; (4) awarded Renee alimony; and (5) ordered a lump sum payment in the property division. Renee made no appearance in this appeal.

Analysis and Decision

[¶ 10.] Daniel proceeds under the mistaken belief that we will overturn a divorce decision if we merely disagree with

730 N.W.2d 622

a trial judge's rulings on child custody, property division, or alimony. Among his arguments, for instance, he alleges that Renee "lied to the court." His brief is full of assertions like these, suggesting that we should come to a different result, as if we were retrying the case from the transcript and making our own judgments about the credibility of the witnesses. His arguments expose a fundamental misunderstanding of the appeal process. A divorce appeal constitutes a technical evaluation of a lower court decision primarily for legal error, but also for abuse of discretion and clear factual mistakes. Arneson v. Arneson, 2003 SD 125, ¶ 13, 670 N.W.2d 904, 909 (citing Fuerstenberg v. Fuerstenberg, 1999 SD 35, ¶¶ 16, 35, 591 N.W.2d 798, 804, 810).

[¶ 11.] Because of the inability of some divorcing parents to cooperate for the best interests of their children, a court must make a choice.

That choice is often difficult because between two loving parents there may be little to distinguish one over the other. Choosing between two satisfactory options falls within a judge's discretion. Thus, in our review of an ultimate decision on custody, we decide only whether the court abused its discretion. Fuerstenberg, 1999 SD 35, ¶ 22, 591 N.W.2d at 807 (citations omitted). Although we have repeatedly invoked stock definitions, the term "abuse of discretion" defies an easy description. It is a fundamental error of judgment, a choice outside the range of permissible choices, a decision, which, on full consideration, is arbitrary or unreasonable. See generally Adrian v. McKinnie, 2002 SD 10, ¶ 10, 639 N.W.2d 529, 533 (citations omitted). This standard is the most deferential of appellate review standards, but that does not mean that a judge's custody decision will remain undisturbed. Rather, it is a recognition that trial courts are in a better position to make these difficult choices because the parents are present in the courtroom and the judge is better able to assess their capabilities firsthand.

Id. ¶ 14. See also Zepeda v. Zepeda, 2001 SD 101, ¶ 13, 632 N.W.2d 48, 53-54 (citing Price v. Price, 2000 SD 64, ¶ 18, 611 N.W.2d 425, 430 (citations omitted)).

[¶ 12.] We use the same abuse of discretion standard to review decisions on alimony and property division. Zepeda, 2001 SD 101, ¶ 20, 632 N.W.2d at 55 (citation omitted); Albrecht v. Albrecht, 2000 SD 54, ¶ 10, 609 N.W.2d 765, 768 (citations omitted). When applying this standard, we do not inquire whether we would have made the same decision. Instead, we decide only whether the circuit court could reasonably reach the conclusion it did in view of the applicable law and the circumstances of the case. Zepeda, 2001 SD 101, ¶ 20, 632 N.W.2d at 55 (citing Olson v. Olson, 1996 SD 90, ¶ 9, 552 N.W.2d 396, 399 (citations omitted)).

1. Child Custody

[¶ 13.] Daniel challenges the court's decision to award primary physical custody of the children to Renee. According to Daniel, the court was overly persuaded by Dr. James Simpson's opinion and failed to give greater weight to psychological evidence on Renee and the oldest daughter, as well as the testimony of Dr. Curt Hill, who conducted a psychological evaluation of Daniel. Dr. Simpson is a licensed mental health professional counselor, with a doctorate degree in counseling. He has been performing custody home studies since 1972. By order of the court, Dr. Simpson performed a complete custody evaluation and made...

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15 practice notes
  • Pietrzak v. Schroeder, No. 24729.
    • United States
    • Supreme Court of South Dakota
    • January 7, 2009
    ...is better able to assess [the situation] firsthand.'" Hogen v. Pifer, 2008 SD 96, ¶ 9, 757 N.W.2d 160, 163 (quoting Maxner v. Maxner, 2007 SD 30, ¶ 11, 730 N.W.2d 619, 622). More importantly, because the circuit court's underlying findings reflect that its decision was an attempt to ch......
  • Fin-Ag, Inc. v. Cimpl's, Inc., No. 24172.
    • United States
    • Supreme Court of South Dakota
    • June 18, 2008
    ...court could reasonably reach the conclusion it did in view of the applicable law and the circumstances of the case." Maxner v. Maxner, 2007 SD 30, ¶ 12, 730 N.W.2d 619, 622. This Court has recognized that the trial court is in the best position to determine whether the number of copies......
  • Supreme Pork v. Master Blaster, No. 24645.
    • United States
    • Supreme Court of South Dakota
    • April 1, 2009
    ...which, on full consideration, is arbitrary or unreasonable.'" Hogen, 2008 SD 96, ¶ 9, 757 N.W.2d at 163 (quoting Maxner v. Maxner, 2007 SD 30, ¶ 11, 730 N.W.2d 619, 622). The trial court did not abuse its discretion when it determined that this evidence was admissible because it had pu......
  • Sullivan v. Sullivan, No. 24907.
    • United States
    • Supreme Court of South Dakota
    • April 15, 2009
    ...court could reasonably reach the conclusion it did in view of the applicable law and the circumstances of the case." Maxner v. Maxner, 2007 SD 30, ¶ 12, 730 N.W.2d 619, [¶ 19.] In denying the request, the court said, I just think that that's micro-managing things. I realize Mr. Sulliva......
  • Request a trial to view additional results
15 cases
  • Pietrzak v. Schroeder, No. 24729.
    • United States
    • Supreme Court of South Dakota
    • January 7, 2009
    ...judge is better able to assess [the situation] firsthand.'" Hogen v. Pifer, 2008 SD 96, ¶ 9, 757 N.W.2d 160, 163 (quoting Maxner v. Maxner, 2007 SD 30, ¶ 11, 730 N.W.2d 619, 622). More importantly, because the circuit court's underlying findings reflect that its decision was an attempt to c......
  • Fin-Ag, Inc. v. Cimpl's, Inc., No. 24172.
    • United States
    • Supreme Court of South Dakota
    • June 18, 2008
    ...court could reasonably reach the conclusion it did in view of the applicable law and the circumstances of the case." Maxner v. Maxner, 2007 SD 30, ¶ 12, 730 N.W.2d 619, 622. This Court has recognized that the trial court is in the best position to determine whether the number of copies is r......
  • Supreme Pork v. Master Blaster, No. 24645.
    • United States
    • Supreme Court of South Dakota
    • April 1, 2009
    ...which, on full consideration, is arbitrary or unreasonable.'" Hogen, 2008 SD 96, ¶ 9, 757 N.W.2d at 163 (quoting Maxner v. Maxner, 2007 SD 30, ¶ 11, 730 N.W.2d 619, 622). The trial court did not abuse its discretion when it determined that this evidence was admissible because it had purpose......
  • Sullivan v. Sullivan, No. 24907.
    • United States
    • Supreme Court of South Dakota
    • April 15, 2009
    ...court could reasonably reach the conclusion it did in view of the applicable law and the circumstances of the case." Maxner v. Maxner, 2007 SD 30, ¶ 12, 730 N.W.2d 619, [¶ 19.] In denying the request, the court said, I just think that that's micro-managing things. I realize Mr. Sullivan has......
  • Request a trial to view additional results

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