Meldrum v. Novotny, 20791.

• Decision Date: 22 September 1999
• Docket Number: No. 20791.,20791.
• Citation: 599 N.W.2d 651,1999 SD 127
• 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, and T.D.M., JR., Intervenor.
• Court: South Dakota Supreme Court

599 N.W.2d 651

1999 SD 127

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, and T.D.M., JR., Intervenor.

No. 20791.

Supreme Court of South Dakota.

Considered on Briefs September 13, 1999.

Decided September 22, 1999.

J.M. Grossenburg, Winner, for appellee.

Rick Johnson of Johnson, Eklund, Nicholson, Peterson & Fox, Gregory, for appellant.

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

KONENKAMP, Justice.

[¶ 1.] This is a child custody dispute between the mother's boyfriend and the biological father. T.M., a nine-year-old, had been living with his mother and her boyfriend for six years. After the mother was killed in an automobile accident, the boyfriend, who had been caring for the child, sought to obtain custody. The circuit court declined to appoint an attorney for the child. Following its decision granting custody to the biological father, the court then granted the child's pro se request for an attorney. The newly appointed attorney moved for a new trial. Although the court concluded that the motion had issues of merit needing to be addressed, it found it could not consider the motion because a notice of appeal had been filed, staying further proceedings. We reverse for a new trial, concluding that the best interests of the child required the appointment of an attorney before the trial, and thus, the circuit court abused its discretion when it failed to appoint one at that time.

Facts

[¶ 2.] Timothy Dean Meldrum, Sr. and Nancy Jean Meldrum were married in Rock County, Illinois, on June 9, 1988. They had one son, T.M., who was born on October 9, 1988. Two years later, Nancy quit her day job to become an exotic dancer. When her performances required travel far from home, T.M. always stayed with his father. Nancy's appearances took her to Winner, South Dakota, where she met Chuck Novotny, a local rancher. The two began living together in a romantic relationship in 1991, before T.M.'s fourth birthday.

[¶ 3.] In 1992, as she and Novotny returned from a dancing engagement in Boston, Nancy stopped at Meldrum's home and took T.M. with her to South Dakota. Meldrum did not contest this arrangement, believing his son would be well taken care of. Meldrum remained in Illinois, where he worked as a diesel mechanic. When Nancy periodically returned to Illinois on dancing engagements, she took T.M. with her to see his father. Meldrum's mother and father, sister, and several aunts all lived nearby and saw T.M. on some of these occasions. This extended family sent cards and letters to T.M. after he moved to South Dakota.

[¶ 4.] Nancy and Novotny had a son, Z.N., born on August 3, 1993. While Nancy was away on her dancing performances, sometimes for six weeks, Novotny cared for both T.M. and Z.N. His mother, Dorothy Novotny, helped to look after the two children during the day. When T.M. started school, Dorothy would care for him after class. Novotny checked in on the children periodically during the day, at lunch, and usually at dinner. Novotny provided much of the daily care of the two children, and saw to their medical and educational needs. When he started school, T.M. was diagnosed with Attention Deficit and Hyperactivity Disorder (ADHD) and was receiving counseling, as well as medical treatment. Novotny oversaw T.M.'s treatment.

[¶ 5.] In 1995, Novotny sought custody of both T.M. and Z.N. On December 26, 1995, Judge Kathleen Trandahl entered an Interim Custody and Visitation Order, granting to Novotny the physical care, custody, and control of T.M. and Z.N., subject to reasonable visitation with Nancy. Meldrum filed an affidavit of natural father in this proceeding, in which he claimed to be the father of both T.M. and Z.N., and sought custody of both children in the event that Novotny rather than Nancy was awarded custody. The custody proceeding was not pursued.

[¶ 6.] Nancy obtained a divorce from Meldrum in December 1997. By stipulation, Nancy received T.M.'s physical custody, with Meldrum having reasonable visitation. Meldrum's child support was set based on the minimum wage. Meldrum testified that Nancy was self-reliant and refused his support payments. Meldrum has since remarried and has a child with his second wife. Novotny and Nancy were never married. Nancy was killed in an automobile accident in Tripp County, South Dakota, on May 3, 1998.

[¶ 7.] In June, Meldrum brought a habeas corpus action, seeking the custody of T.M. An Order to Show Cause was issued, setting the matter for hearing in August. In a motion hearing just before trial, Novotny's counsel requested that a psychologist be assigned to investigate the matter and that an attorney be appointed for T.M. before any determination on who should receive custody. The court ruled that there was no reason to appoint either a psychologist or an attorney for T.M. at that time.

[¶ 8.] After an evidentiary hearing, the court awarded T.M. to his natural father, Meldrum. T.M. submitted, pro se, a Motion of Real Party in Interest for Re-Hearing, Stay, and Appointment of Counsel. The court granted the child's motion for an attorney. T.M.'s counsel then moved for a new trial. The court decided that it lacked jurisdiction to hear arguments on the issue because Novotny had served his notice of appeal. In its order, the court specifically found that "but for the filing of the [appeal] issues of merit" needed to be addressed in the child's motion.¹

[¶ 9.] Both Novotny and the...