Meldrum v. Novotny

• Citation: 640 N.W.2d 460,2002 SD 15
• Decision Date: 30 January 2002
• Docket Number: No. 21995.,21995.
• Parties: Timothy D. MELDRUM, Sr., Individually and as the biological parent and natural guardian of T.D.M., Jr., Plaintiff and Appellee, v. Charles NOVOTNY, Defendant and Appellant, T.D.M., Jr., Intervenor and Appellant.
• Court: Supreme Court of South Dakota

640 N.W.2d 460

2002 SD 15

Timothy D. MELDRUM, Sr., Individually and as the biological parent and natural guardian of T.D.M., Jr., Plaintiff and Appellee, v. Charles NOVOTNY, Defendant and Appellant, T.D.M., Jr., Intervenor and Appellant.

No. 21995.

Supreme Court of South Dakota.

Argued October 3, 2001.

Decided January 30, 2002.

J.M. Grossenburg, Winner, for plaintiff and appellee.

Sandy J. Steffen of Johnson, Eklund, Nicholson, Peterson & Fox, Gregory, for defendant and appellant.

Steven R. Smith of Andera & Smith Law Offices, Chamberlain, for intervenor and appellant.

SABERS, Justice.

[¶ 1.] Justice Richard W. Sabers delivers the majority opinion of the Court on Issue 1, which holds that the trial court did not err in determining that Meldrum was fit to have custody of T.D.M.

[¶ 2.] Justice Sabers delivers the majority opinion of the Court on Issue 2, which holds that the trial court did not err in determining that Meldrum did not abandon T.D.M.

[¶ 3.] The separate writings of Chief Justice Gilbertson, Justice Konenkamp and Justice Amundson control Issue 3, and result in a remand to the trial court for a determination of the best interest of the child.

[¶ 4.] SABERS, Justice, writing the majority on Issues 1 and 2.

[¶ 5.] Timothy Meldrum, Sr., (Meldrum) the biological father of T.D.M., filed a writ of habeas corpus seeking custody of his son, T.D.M. Charles Novotny (Novotny) countered for custody of T.D.M. The trial court awarded custody to Meldrum. Novotny appeals on the ground that Meldrum is unfit. T.D.M. appeals on the grounds that he was abandoned by Meldrum and that extraordinary circumstances exist to defeat Meldrum's parental preference. We affirm.

FACTS

[¶ 6.] Timothy Meldrum, Sr., and Nancy Meldrum were married in Rock County, Illinois, on June 9, 1988. They had one son, T.D.M., who was born on October 9, 1988. In 1990, Nancy began working as an exotic dancer. Her appearances required her to travel away from home. During Nancy's absences, T.D.M. stayed with his father.

[¶ 7.] One of Nancy's appearances took her to Winner, South Dakota. While in Winner, Nancy met Novotny, a local rancher. Prior to T.D.M.'s fourth birthday in 1991, Nancy and Novotny began living together.

[¶ 8.] In 1992, Nancy took T.D.M. with her to Winner. Meldrum did not contest this arrangement and believed his son would be well cared for. Meldrum remained in Illinois. When Nancy returned to Illinois for dancing appearances, she took T.D.M. to visit his father. Meldrum's extended family, his mother, father, and several aunts, also saw T.D.M. on some of these occasions. This extended family sent letters and cards to T.D.M. after he moved to South Dakota.

[¶ 9.] Nancy and Novotny had one son, Z.N., born on August 3, 1993. When Nancy would travel for dancing appearances, Novotny, with the assistance of his mother, cared for both T.D.M. and Z.N. Novotny provided much of the daily care for the two children, including medical and educational needs.

[¶ 10.] In 1995, a dispute arose between Novotny and Nancy. Novotny sought custody of both T.D.M. and Z.N. On December 26, 1995, Circuit Judge Kathleen Trandahl granted Novotny temporary physical custody of T.D.M. and Z.N., subject to reasonable visitation in Nancy. This was done despite an affidavit filed by Meldrum, who was not a party to the action, seeking custody of both children. The custody proceeding was not pursued.

[¶ 11.] In December 1997, Nancy obtained a divorce from Meldrum. She received physical custody of T.D.M., subject to reasonable visitation in Meldrum. Meldrum was ordered to pay $130.00 per month in child support. Nancy refused the support payments.

[¶ 12.] Meldrum has since remarried and has two children with his second wife. Nancy and Novotny never married. Nancy was killed in a car accident on May 3, 1998.

[¶ 13.] Within two months of Nancy's death, on June 16, 1998, Meldrum filed an application for writ of habeas corpus seeking custody of T.D.M. Novotny countered for custody of T.D.M. The matter was scheduled for trial on August 12, 1998. Custody was awarded to Meldrum. Novotny appealed the award and in 1999 the South Dakota Supreme Court remanded the case for a new trial based on the trial court's failure to appoint an attorney for T.D.M.

[¶ 14.] A new trial was scheduled for March 13, 2000. In March 2000, T.D.M.'s attorney filed a motion to terminate Meldrum's parental rights alleging that Meldrum had abandoned T.D.M. On March 13, 2000, the trial judge continued the case based upon a stipulation of the parties providing for visitation in Meldrum. On January 3, 2001, the trial court set a new trial date for March 29, 2001.

[¶ 15.] At trial, Meldrum presented testimony that he had never abandoned T.D.M. He testified that Novotny prevented T.D.M. from having contact with him and that he did not want to make life difficult for either Nancy or T.D.M. Meldrum also testified that his attempts to provide child support for T.D.M. were refused by Nancy. Other witness testimony claimed that Meldrum was a caring man and a good provider.

[¶ 16.] At trial, Novotny presented testimony that T.D.M. had lived with Novotny for the majority of his life and that he was primarily responsible for T.D.M.'s support and care. Novotny provided other testimony that indicated T.D.M. referred to Novotny as his father and neither thought of nor referred to Meldrum in this way. Novotny attempted to establish that it was in T.D.M.'s best interest to remain with him in South Dakota. [¶ 17.] At the conclusion of the trial on June 4, 2001, the court awarded custody to Meldrum and granted Novotny visitation with T.D.M. from June 1, 2002, to August 1, 2002, and each year thereafter during T.D.M.'s minority. The trial court concluded that Meldrum was not an unfit parent and neither Novotny nor T.D.M. had shown such extraordinary circumstances as would defeat Meldrum's parental preference under South Dakota law.

STANDARD OF REVIEW

[¶ 18.] This Court's standard for reviewing findings of fact is well established. "The findings of the trial court will not be set aside unless they are clearly erroneous." Langerman v. Langerman, 336 N.W.2d 669, 670 (S.D.1983). In reviewing findings of fact, this Court "must give due regard to the opportunity of the trial court to judge the credibility of witnesses and to weigh their testimony properly." Id. The trial court's findings will not be disturbed unless this Court is "firmly and definitely convinced a mistake has been made." Jasper v. Smith, 540 N.W.2d 399, 401 (S.D.1995).

[¶ 19.] 1. WHETHER THE TRIAL COURT ERRED IN DETERMINING THAT MELDRUM WAS FIT TO HAVE CUSTODY OF T.D.M.

[¶ 20.] Novotny argues that the trial court erred in awarding custody of T.D.M. to Meldrum because he is unfit. This Court has recognized that:

The law presumes that the best interests and welfare of a minor will be best served by awarding its custody to the parent and the burden is upon those who claim otherwise to overcome such presumption by clear and satisfactory proof of abandonment or forfeiture or a legal surrender or unfitness of the parent to have custody.

Guardianship of Sedelmeier, 491 N.W.2d 86, 87 (S.D.1992) (quoting Sweeney v. Joneson, 75 S.D. 213, 216, 63 N.W.2d 249, 251 (1954)). This Court has further recognized that "[i]n legal contests between a parent and a nonparent for the custody of a child the threshold question is: Is the parent unfit to have the custody of the child? ... Without unfitness being established, there is no necessity to look to the best interest of the child." Sedelmeier, 491 N.W.2d at 87. There must be "a clear showing against the parent of `gross misconduct or unfitness, or of other extraordinary circumstances affecting the welfare of the child' [ ], and an award cannot be made to [nonparents] simply because they may be better custodians." Quinn v. Mouw-Quinn, 1996 SD 103, ¶ 35, 552 N.W.2d 843, 848 (Amundson, J., dissenting) (citing Blow v. Lottman, 75 S.D. 127, 59 N.W.2d 825 (1953), overruled on other grounds by Termination of Parental Rights P.A.M., 505 N.W.2d 395 (S.D.1993)). See also Langerman, 336 N.W.2d at 670

(holding that grandmother was not entitled to custody of grandchild simply because she may have been a better caretaker than child's biological father).

[¶ 21.] This Court has held that the definition of "unfitness" should be interpreted broadly. Blow, 59 N.W.2d at 827.

A parent's disqualification results not only from a lack of ability but also from an unwillingness or from an indifferent lack of desire, as well, to rear a child spiritually, morally, mentally and physically according to the minimum standard the law condones. Thus, unfitness would follow from voluntary conduct bearing on a parent's cruelty, morals, extreme neglect, abandonment or any attitude or condition, created through marriage or otherwise, resulting in home surroundings below the minimum standards; and unfitness would also result from involuntary circumstances such as extreme poverty, physical or mental infirmity, or any other condition making it impossible for the parent to care for the child according to the minimum requirements.

Id.

[¶ 22.] The burden was upon Novotny to show by clear and satisfactory proof that Meldrum was unfit in order to defeat an award of custody to Meldrum. Novotny asserts that Meldrum was unwilling to parent T.D.M. He claims that Meldrum's failure to pay child support, lack of communication with T.D.M., and failure to request visitation, support a finding of unfitness.

[¶ 23.] The trial court, however, concluded that Novotny failed to make the appropriate showing to establish unfitness. In its findings of fact, the trial court stated:

Based on the evidence, the Court finds that Meldrum is a fit and proper person to have the care, custody and control of T.D.M. Meldrum is married, has two additional children, has a good job and lives in proximity to many of his family members. From the testimony, his home is

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