Mayer v. Mayer

• Decision Date: 22 May 1986
• Docket Number: No. 15236,15236
• Citation: 397 N.W.2d 638
• Parties: Linda M. MAYER, Plaintiff and Appellant, v. Frederick B. MAYER, Defendant and Appellee. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 638

397 N.W.2d 638

Linda M. MAYER, Plaintiff and Appellant, v. Frederick B. MAYER, Defendant and Appellee.

No. 15236.

Supreme Court of South Dakota.

Considered on Briefs May 22, 1986.

Decided Dec. 10, 1986.

Douglas G. Fosheim of Wehde, Fosheim & Haberstick, Huron, for plaintiff and appellant.

Patrick W. Kiner, Mitchell, for defendant and appellee.

SABERS, Justice (on reassignment).

Linda M. Mayer (Linda), appeals the trial court's order modifying the original Decree of Divorce to vest custody of the parties minor child in Frederick B. Mayer (Frederick). We reverse.

Facts

Linda and Frederick Mayer were divorced on January 18, 1982. Their only child, Jennifer Mayer (Jennifer), was born on June 11, 1976. Jennifer had lived her entire life with her half sister Stacie Marie Smith (Stacie). Stacie is Linda's child from a previous marriage. At the time of this action, Jennifer was nine and Stacie was eleven years of age. Although half sisters, the relationship was that of full sisters.

Custody was not a contested issue in the divorce proceedings, and Linda was awarded custody of Jennifer. Shortly thereafter, Linda and her two daughters returned to Topeka, Kansas, where the entire family had lived several years prior to the divorce. At this time, Frederick remained in Mitchell, South Dakota, where he resided in the same trailer court as his mother, Mrs. Bernice Bollack (Mrs. Bollack).

Linda's primary job was with Barcliff Care Center, a nursing home. In February of 1985, Linda was dismissed from this job because she failed to report one cold winter day when her car would not start. Although she held another job, it was only part-time employment. The dismissal from her full-time job, coupled with Frederick's failure to pay court ordered child support, caused Linda to suffer a financial crisis. Unable to pay rent, she was required to vacate her leased home.

To temporarily provide for Stacie and Jennifer, Linda arranged transportation for herself and the children to Mitchell, South Dakota, in late February, 1985. Linda hoped to temporarily shelter the girls with Frederick's mother. A temporary custody agreement was signed by Linda and Mrs. Bollack on March 7, 1985. This agreement provides in part:

It is agreed between Linda M. Mayer and Bernie Bollack that Bernie Bollack may have temporary custody of Stacie Smith and Jennifer Mayer. It is further agreed that during the time Bernie Bollack has temporary custody of such children that Linda M. Mayer waives her right to child support for such children from Bernie Bollack's son Frederick B. Mayer.

It is further agreed that the temporary custody period shall end upon notice by Linda M. Mayer to Bernie Bollack, and at that time Bernie Bollack agrees to return said children to Linda M. Mayer and at that time child support waiver shall cease and Frederick B. Mayer shall resume paying child support ordered by this Court.

This agreement was made terminable at Linda's will to allow her to recover the children as soon as she was financially stable again.

Linda stayed in Mitchell with a girlfriend for one week to help settle the children. After enrolling them in school, Linda left for Topeka to secure new employment, settle her debts with her former landlord, find a new apartment and return to South Dakota for her daughters.

Within three months and before the girls could rejoin her, Linda was confronted with a change of custody proceeding initiated by Frederick. In this proceeding, which was filed in May and heard in July of 1985, Frederick requested and received custody of Jennifer. Frederick had not adopted, nor did he request, custody of Stacie who returned home with her mother.

In his affidavit supporting the Order to Show Cause and in open court, Frederick only asked for legal custody of Jennifer. In both instances, he requested that physical custody be given to his mother, who was not a party to the action. Mrs. Bollack lives with her second husband who is of no blood relationship to Jennifer. In its Memorandum Opinion dated August 8, 1985, the trial court stated: "The request ... for physical custody with Bernice Bollack ¹ is denied. [T]his Court has no objection to Bernice Bollack continuing her assistance with raising this child, but this Court is simply not interested in issuing some hybrid custody order ..."

The trial court entered Findings of Fact and Conclusions of Law, and a Decree modifying custody on September 3, 1985. The court specifically found that Jennifer was too young to intelligently perform a custody preference. In awarding legal and physical custody of Jennifer to her father, the trial court concluded that Frederick sufficiently demonstrated that the child's best interests required that he be granted custody.

Mother's Claims

Linda advances two arguments for reversal: First, that the trial court erred in awarding custody to Frederick, knowing that Mrs. Bollack would serve as Jennifer's true custodian, and without making the appropriate evidentiary findings applicable to a parent/grandparent custody proceeding. Secondly, that the trial court abused its discretion in holding that the child's best interests were served by the custody change, especially when this change necessitated the splitting up of Jennifer and her half sister Stacie.

Standard of Review

In Kolb v. Kolb, 324 N.W.2d 279, 283 (S.D.1982), we held that SDCL 25-4-45 ² vests broad discretion in the trial court to determine which parent in a divorce action should be given custody of their children, and that decision will be reversed only for a clear abuse of discretion. In conformance with this statute, the general rule is that a parent seeking modification of a divorce decree as it pertains to child custody has the burden of proving both (1) a substantial change of circumstances, and (2) the welfare and best interests of the child require modification. Flint v. Flint, 334 N.W.2d 680, 681 (S.D.1983) citing Masek v. Masek, 90 S.D. 1, 237 N.W.2d 432 (1976); Warder v. Warder, 87 S.D. 133, 203 N.W.2d 531 (1973); Hershey v. Hershey, 85 S.D. 85, 177 N.W.2d 267 (1970). However, an exception to this rule has developed when custody was not a contested issue in the first instance. Thus, in Kolb, we held that when the original decree of divorce was based upon an agreement between the parties, the party seeking modification is not required to show a substantial change of circumstances. 324 N.W.2d at 283; Flint, 334 N.W.2d 681. See also: Hansen v. Hansen, 327 N.W.2d 47 (S.D.1982); Haskell v. Haskell, 324 N.W.2d 423 (S.D.1982).

Here, the original decree awarded custody to Linda based on an agreement of the parties. As such, the "substantial change of circumstances" element was lifted from Frederick's burden of proof. Therefore, at the modification hearing, Frederick had the burden of showing that the best interests and welfare of Jennifer required a change of custody. Flint, supra. The trial court held that Frederick sustained this burden. We hold that he did not.

1. THE TRIAL COURT ERRED IN CHANGING CUSTODY, KNOWING THAT PHYSICAL CUSTODY WOULD BE IN THE PATERNAL GRANDMOTHER, ALL WITHOUT SHOWING THAT THE MOTHER WAS UNFIT OR DEMONSTRATING EXTRAORDINARY CIRCUMSTANCES AFFECTING THE WELFARE OF THE CHILD

Mrs. Bollack testified that she desired to have custody of Jennifer. Frederick testified that he wished his mother to have custody because his job as a truck driver did not give him time to raise a child. In its Memorandum Opinion, the trial court wrote:

It appears ... that neither party has registered any objection to or problems with Mrs. Bollack raising the child. Plaintiff now desires return of the child but obviously felt content in entering into an agreement for temporary custody with Mrs. Bollack ... The defendant, by virtue of his employment needs his mother to assist the raising of this child on a constant basis. The grandmother ... is a very kind and loving person who obviously finds herself in the middle of a custody issue and is solely concerned for the child and her love and affection for the child has been most adequately demonstrated.

It is obvious from this record that the trial court also wanted Mrs. Bollack to have custody, but realized that granting custody to her was impossible under South Dakota law. SDCL 30-27-23 provides in full:

Persons entitled to preference in custody of minors. Of two persons equally entitled to the custody in other respects, preference is to be given as follows:

(1) To a parent;

(2) To one who was indicated by the wishes of a deceased parent;

(3) To one who already stands in the position of a trustee of a fund to be applied to the child's support;

(4) To a relative.

Langerman v. Langerman, 336 N.W.2d 669 (S.D.1983), interprets this statute and holds:

Before a parent's rights to custody over his or her own children will be disturbed in favor of a nonparent, a clear showing against the parent of gross misconduct or unfitness, or of other extraordinary circumstances affecting the welfare of the child is required, and an award cannot be made to grandparents simply because they may be better custodians. (Citing six other cases.)

Id. at 670.

To circumvent this rule, the trial court gave custody to Frederick. In doing so, the court implied that Frederick was not the proper parent. We need look no further than the trial court's opinion to recognize that the grant to Frederick was, in practical effect, an award of custody to Mrs. Bollack. Finding of Fact XXII states: "[I]t appears that both Plaintiff and Defendant are agreeable with the home environment as provided to the minor child by Mrs. Bollack." The evidence before us suggests that the trial court knew that Mrs. Bollack would have physical custody of Jennifer and that Frederick was not the proper parent. Nevertheless, it ignored the Langerman holding which requires a clear showing of gross misconduct or unfitness, or other extraordinary circumstances affecting the child's welfare, before a...