Mellema v. Mellema

• Decision Date: 15 January 1987
• Docket Number: No. 15327,15327
• Citation: 407 N.W.2d 827
• Parties: Perry Jay MELLEMA, Plaintiff and Appellee, v. Ginger Renae MELLEMA, Defendant and Appellant. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 827

407 N.W.2d 827

Perry Jay MELLEMA, Plaintiff and Appellee, v. Ginger Renae MELLEMA, Defendant and Appellant.

No. 15327.

Supreme Court of South Dakota.

Considered on Briefs Jan. 15, 1987.

Decided June 24, 1987.

Arlie Brende of Cadwell, Sanford & Diebert, Sioux Falls, for plaintiff and appellee.

Lee R. Burd, Sioux Falls, for defendant and appellant.

WUEST, Chief Justice.

In this divorce action the former wife and mother (Ginger) appeals from the circuit court's decree of divorce granting the father and former husband (Perry) primary custody of the couple's two sons. We affirm.

The couple was married in July 1981. At the time of the trial, in January 1986, their two sons were three and one-half and two years old. The trial court concluded: "The Plaintiff [Perry] and Defendant [Ginger] shall have joint custody of the minor sons of the parties. It would be in the best interests of the minor children that joint custody be awarded to the Plaintiff and Defendant, and that the primary and physical care, custody and control be awarded to Plaintiff." (Conclusion 3). The findings of fact supporting this conclusion about the childrens' best interests were equally brief:

The Plaintiff and Defendant have both been responsible for the health, education and welfare of the children. The Plaintiff and Defendant are both fit persons to have the legal custody of the minor sons. However, the Plaintiff shall have the actual and physical care, custody and control of the minor sons of the parties because he is more capable of making decisions on their behalf, and in their best interests. The Defendant shall have reasonable visitation with the minor sons of the parties. (Finding XI)

The trial court also found that Ginger had stayed out late on occasion. Ginger's brief also addresses other findings that refer to "extreme cruelty." Extreme cruelty, however, relates to fault, which is a consideration in awarding alimony but is not to be considered in awarding custody of children. Madson v. Madson, 313 N.W.2d 42 (S.D.1981).

Ginger raises the sole issue of whether the trial court abused its discretion in awarding primary custody of the children to Perry. She does not claim that any findings are clearly erroneous.

At trial Ginger attempted to imply that Perry's choice of long-haul trucking as a line of work early in their marriage in 1982 indicated a lack of concern for her and their then unborn first son. Perry began trucking while Ginger was pregnant and asked her if she would consider an abortion. She thought it was a "bad time" to start trucking but later agreed that Perry only trucked for three months after the child was born. He finally quit trucking when she asked several times if he would not like to be home with the baby more. In fact, Perry testified he eventually quit trucking for several reasons, "most important of which was to be home after [the baby] was born."

Although Ginger also attempts to imply that Perry's frequent job changes indicate some kind of character weakness, the record reveals reasonable explanations for nearly every change. After he quit trucking in 1982 he held four different jobs until he finally began his first job as an auto salesman in 1983. Perry finally had to be let go from this auto sales position because, in the eighteen months he worked at this job, he had been involved in two minor accidents. Because of the accidents his employer's insurance would no longer cover him. Nevertheless, he was given an excellent recommendation by his employer and was again hired immediately as an auto salesman at another auto dealer. There was no evidence that these job moves resulted from any instability on Perry's part and he explained that each move increased his income. Contrary to the statement in Perry's brief, however, he did not testify that he had ever quit his other jobs in Sioux Falls to spend more time with his sons.

While Ginger also mentions Perry's three accidents over four years, she does not state how they should affect the decision to award custody. Nor did the trial court enter any finding that these accidents should have affected the issue of custody. Suffice it to say, the accidents were either not Perry's fault or were relatively minor.

Ginger also argues she has been the major caretaker of the children. During the weekdays, however, both she and Perry worked and the children were cared for by one of their grandmothers. Some weekday evenings Perry also worked. Part of the year he also spent one evening a week at church choir practice and bowling. His car racing hobby, which was the greatest source of irritation to Ginger, took up Friday nights but was limited to the month of July in 1985. Clearly, Perry placed the major burden of caring for the children in the evening on Ginger before he gained temporary custody of the children.

Although Ginger refers to Perry as having "exposed" their sons to his girl friend, the evidence did not show that anything improper occurred when the girl friend visited Perry's home. He met this girl at choir practice and, although he had gone to Florida to visit her and her family, he testified he had not even kissed her.

Ginger also claims that the children's aggressive behavior has increased and their language has deteriorated since they have been in Perry's custody. The only facts supporting these contentions, however, was some testimony that the older boy kicks more now and that the boys occasionally say "damn it" or use the term "fart." Even if this behavior were unusual or undesirable there was no evidence linking it to Perry or showing whether it was simply learned from playmates.

The parties' testimony directly conflicted over whether Ginger had ever smoked marijuana. The issue was not pursued at length at trial, however, and the trial court did not enter any findings to resolve this conflict for us.

During the break-up of the marriage, Ginger sometimes stayed out until the early morning hours and usually ended up at a girl friend's place, chiefly to get away from Perry and to give him some responsibility for the boys. She denied she saw other men or got drunk on these occasions. She explained that on one occasion she once went to an out-of-town bar without Perry because she was not interested in watching his car racing, which was a sore spot in the marriage. On the evenings Ginger left the boys with Perry and stayed out late she never left before the boys were in bed. When Perry suggested counseling over these matters Ginger said she was "trying to find the old me again." And when Ginger asked for a divorce she explained she wanted one, "Because I don't want to be responsible to anyone anymore," and offered to give custody of their sons to Perry. Ginger's request for a divorce and her search for herself was precipitated by Perry's purchase of his race car. She regrets her past behavior and she now goes out socially only once every two or three months because she is unable to afford it. There was no evidence that this behavior affected the boys.

There was some evidence that the boys were affected by some of Ginger's other behavior, however. They were especially distressed by her statements about her not loving their father. And for a period of time when Perry had custody of the boys Ginger continued to live in the home. While she was still in the home more than one incident occurred when she refused to provide the boys some basic requests for care because, she said, they were actually in their father's custody.

Despite all the evidence about the character of these two parents, Perry showed concern for the boys' eating habits and they enjoyed family activities together such as yard or housework, visiting and working on the farm of Perry's parents, playing in the park, car racing during the short time that Perry owned a race car, motorcycle riding, and attending church. At least one witness observed that the boys were generally more disciplined and respectful of others since Perry has had temporary custody of them.

Ginger relies heavily on the trial court's oral pronouncements of its impressions of Perry as a "stinker," and a "dictator," and as having an over-inflated opinion of his own decision-making ability. Indeed, the record, all of which we have chosen not to detail, clearly exposes Perry's character faults. But the trial court's statements have little effect on this court's review.

Any expression of opinion or views by the trial judge extraneous to his decision in the manner and form contemplated by law is of no binding force or effect as a matter of law either upon the trial judge himself or any one else. Cf. Agard v. Menagh, 60 S.D. 262, 244 N.W. 379; Klundt v. Hemenway, 60 S.D. 248, 244 N.W. 377. Such expressions by the trial judge are, of course helpful and indeed almost necessary in advising counsel as to the views of the court and for the information of counsel in drafting findings and conclusions for presentation to the court. But such expression of opinion constitutes no proper part of the record on appeal, whether announced in the form of an oral statement in open court transcribed by the reporter or in the form of a memorandum or letter addressed to counsel. [cites omitted].

Western Bldg. Co. v. J.C. Penney Co., 60 S.D. 630, 636-637, 245 N.W. 909, 911-912 (1932). Thus, we ignore the trial court's oral pronouncements and limit our review to the written findings and conclusions. See Jones v. Jones, 334 N.W.2d 492 (S.D.1983); Hitzel v. Clark, 334 N.W.2d 37 (S.D.1983).

Admittedly, the ample evidence of Perry's behavior may have shed some light on his abilities as a parent. But in spite of Perry's behavior the trial court still found that he was a fit parent to have custody. Cf. Langerman v. Langerman, 336 N.W.2d 669 (S.D.1983); Hanks v. Hanks, 296 N.W.2d 523 (S.D.1980). We believe the court was able to see that Perry's behavior toward Ginger, while it might have been a proper consideration in determining the issue...