McCarty v. McCarty

• Decision Date: 08 July 2015
• Docket Number: No. 26957.,26957.
• Citation: 867 N.W.2d 355
• Parties: Craig Willard McCARTY, Plaintiff and Appellant, v. Kimberly Paull McCARTY, Defendant and Appellee.
• Court: South Dakota Supreme Court

867 N.W.2d 355

Craig Willard McCARTY, Plaintiff and Appellant

v.Kimberly Paull McCARTY, Defendant and Appellee.

No. 26957.

Supreme Court of South Dakota.

Considered on Briefs March 23, 2015.

Decided July 8, 2015.

Linda Lea M. Viken, Kylie M. Riggins of Viken & Riggins Law Firm, Rapid City, South Dakota, Attorneys for plaintiff and appellant.

Robert J. Galbraith of Nooney & Solay, LLP, Rapid City, South Dakota, Attorneys for defendant and appellee.

Opinion

GILBERTSON, Chief Justice.

[¶ 1.] Dr. Craig McCarty (Father) appeals after the circuit court changed primary physical custody of the parties' two children, N.M. and C.M., to Kimberly McCarty (Mother). Father argues on appeal that the circuit court erred when it found that a substantial change in circumstances was not required to change custody. Father also argues that the court erred when it found that returning primary physical custody to Mother was in the best interests of the children based on a substantial change in circumstances. We affirm.

Facts and Procedural History

[¶ 2.] Father and Mother divorced in July 2007. At the time of the divorce, the parties agreed to share joint legal custody of N.M. and C.M., with Mother having primary physical custody. After the divorce, Mother maintained residence in Box Elder, South Dakota, and Father moved to Gillette, Wyoming. The children would usually spend the school year in Box Elder and then stay in Gillette during the summer. Mother had primary physical custody of the children for four years until Father filed a petition for a change of custody in June 2011. Father alleged that Mother was not adequately addressing the children's special needs and was not honoring Father as a parent.

[¶ 3.] On June 6, 2012, following a contested trial, the circuit court changed primary physical custody from Mother to Father. The court entered findings of fact, conclusions of law, and an order modifying child support and changing custody. In its conclusions of law, the court stated, “Unless otherwise agreed by the parties in writing, the [c]ourt will set up a review hearing in May 2013.” The children subsequently moved to Gillette and resided with Father and Dr. Breck McCarty (Stepmother).

[¶ 4.] On May 28, 2013, Mother filed a motion for a change of custody. The court held a two-day trial on August 22 and 23, 2013. After hearing considerable testimony from Mother, Father, Stepmother, Tom Collins (the court-appointed parenting coordinator), and Dr. Jim Simpson (the custody evaluator), the court changed custody from Father back to Mother. The circuit court held that a showing of a substantial change in circumstances was not required because the circuit court had scheduled a “review hearing” one year earlier. The circuit court further held that, even if a substantial change in circumstances was required, a substantial change in circumstances existed in this case based on “the breakup and the contentious dissolution of [Stepmother] and [Father's] medical group” and “[Stepmother's] diagnosis in mid-January of stage 4 metastasized breast cancer

with cancer now present, in essence, in her liver.” Lastly, the circuit court held, after analyzing the Fuerstenberg factors, that it was in the best interests of the children for Mother to again have primary physical custody. Father appeals.

[¶ 5.] Father raises two issues in this appeal:

1. Whether the circuit court erred in holding that it was not required to find a substantial change in circumstances.

2. Whether it was in the best interests of the children to change primary physical custody back to Mother based on a substantial change in circumstances.

Standard of Review

[¶ 6.] “We review ‘child custody decisions under the abuse of discretion standard of review.’ ” Roth v. Haag, 2013 S.D. 48, ¶ 11, 834 N.W.2d 337, 339–40 (quoting Schieffer v. Schieffer, 2013 S.D. 11, ¶ 13, 826 N.W.2d 627, 633 ). “An abuse of discretion is a discretion exercised to an end or purpose not justified by, and clearly against, reason and evidence.” Id. ¶ 11, 834 N.W.2d at 340 (quoting Schieffer, 2013 S.D. 11, ¶ 14, 826 N.W.2d at 633 ). “An abuse of discretion occurs in a child custody proceeding when the [circuit] court's review of the traditional factors bearing on the best interests of the child is scant or incomplete.” Kreps v. Kreps, 2010 S.D. 12, ¶ 25, 778 N.W.2d 835, 843 (quoting Pietrzak v. Schroeder, 2009 S.D. 1, ¶ 37, 759 N.W.2d 734, 743 ). Further, “findings of fact are reviewed under the clearly erroneous standard of review.” Schieffer, 2013 S.D. 11, ¶ 15, 826 N.W.2d at 633. Finally, “this Court gives due regard to the [circuit] court's opportunity ‘to judge the credibility of witnesses and to weigh their testimony.’ ” Id. (quoting Walker v. Walker, 2006 S.D. 68, ¶ 11, 720 N.W.2d 67, 70–71 ).

Decision

[¶ 7.] 1. Whether the circuit court erred in holding that it was not required to find a substantial change in circumstances.

[¶ 8.] The circuit court held that Mother was not required to show a substantial change in circumstances because the court intended to hold a “review hearing” in May 2013. Father argues that the two-day August 2013 hearing was more than a “review hearing.” It was a “contested proceeding,” which required Mother to “show a substantial change of circumstances” because the circuit court did not grant interim custody to Father in 2012, but rather permanent physical custody. See Benson v. Loffelmacher, 2012 S.D. 75, ¶ 21, 824 N.W.2d 82, 86. We agree.

[¶ 9.] In Benson, the circuit court entered an order granting interim custody to the father while awaiting a decision from the child custody evaluator and while the motion for custody was pending a final hearing. Id. ¶¶ 5–6, 824 N.W.2d at 83. In the present case, the circuit court was not awaiting a decision from the evaluator, nor was there a motion for a change of custody pending before the court from June 2012 to May 2013. In Benson, the circuit court later held a hearing in which “the court indicated that it would be considering the evidence and testimony from the earlier interim hearing along with any new evidence.”Id. ¶ 16, 824 N.W.2d at 85. In this case, however, the court's focus was on new evidence and testimony since Father received primary physical custody in June 2012. After the June 2012 hearing, the circuit court “vested” Father with primary physical custody, i.e., the court's decision was definitive and final.¹ Mother made a formal motion with the court to change custody, and the two-day, August 2013 “contested proceeding” ensued. It has long been the rule in South Dakota that to modify a custody decree rendered after a contested hearing, the moving party must show a substantial change in circumstances. See SDCL 25–4–45 ; Benson, 2012 S.D. 75, ¶ 21, 824 N.W.2d at 86 ; McKinnie v. McKinnie, 472 N.W.2d 243, 244 (S.D.1991) (holding that the party seeking modification must show a substantial change in circumstances); Kolb v. Kolb, 324 N.W.2d 279, 281–83 (S.D.1982) (requiring a substantial change in circumstances even when the “original custody order was based on a stipulation of the parties [ ]”). Therefore, we hold that Mother was required to show a substantial change in circumstances to change custody.²

[¶ 10.] 2. Whether it was in the best interests of the children to change primary physical custody back to Mother based on a substantial change in circumstances.

[¶ 11.] The circuit court found that it was in the best interests of the children to change primary physical custody back to Mother based on a substantial change in circumstances. The court's decision rested primarily on two considerations: the stress brought on by the dissolution of Father and Stepmother's medical group and Stepmother's diagnosis of stage 4, metastasized breast cancer

that subsequently spread to her liver. The court also provided an in-depth analysis of the Fuerstenberg factors. Father contends on appeal that the two main reasons cited by the court do not constitute a substantial change in circumstances and, assuming arguendo that they do constitute a change in circumstances, they are neither relevant nor supported by the evidence.

[¶ 12.] “When determining custody, the court shall be guided by consideration of what appears to be for the best interests of the [children] in respect to the [children's] temporal and mental and moral welfare.” Roth, 2013 S.D. 48, ¶ 13, 834 N.W.2d at 340 (quoting Schieffer, 2013 S.D. 11, ¶ 17, 826 N.W.2d at 634 ) (internal quotation marks omitted); SDCL 25–4–45. “The [circuit] court may, but is not required to, consider the following Fuerstenberg factors in determining the best interests and welfare of the [children]: parental fitness, stability, primary caretaker, [children's] preference, harmful parental misconduct, separating siblings, and substantial change of circumstances.” Roth, 2013 S.D. 48, ¶ 13, 834 N.W.2d at 340 (quoting Schieffer, 2013 S.D. 11, ¶ 17, 826 N.W.2d at 634 ). “We encourage [circuit] courts to take a balanced and systematic approach when applying the factors relevant to a child custody proceeding.” Id. (quoting Schieffer, 2013 S.D. 11, ¶ 18, 826 N.W.2d at 634 ). “However, ‘a court is not bound to make a specific finding in each category; indeed, certain elements may have no application in some cases, and for other cases there may be additional relevant considerations. In the end, our brightest beacon remains the best interests of the [children].’ ” Id. (quoting Beaulieu v. Birdsbill, 2012 S.D. 45, ¶ 10, 815 N.W.2d 569, 572 ).

Fitness

[¶ 13.] When looking at fitness of the parents, circuit courts may look at the following:

(1) mental and physical health; (2) capacity and disposition to provide the [children] with protection, food, clothing, medical care, and other basic needs; (3) ability to give the [children] love, affection, guidance, education and to impart the family's religion or creed; (4) willingness to maturely encourage and providefrequent and meaningful contact between the [children] and the other parent; (5)

...