Menning v. Menning, 12375

• Decision Date: 28 December 1978
• Docket Number: No. 12375,12375
• Citation: Menning v. Menning, 272 N.W.2d 828 (S.D. 1978)
• Parties: Sandra MENNING, Plaintiff and Respondent, v. Darrell MENNING, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 828

272 N.W.2d 828

Sandra MENNING, Plaintiff and Respondent, v.Darrell MENNING, Defendant and Appellant.

No. 12375.

Supreme Court of South Dakota.

Argued Oct. 17, 1978.

Decided Dec. 28, 1978.

Lloyd J. Mahan, Parkston, for plaintiff and respondent.

John N. Gridley, III, of Gridley, Nasser & Arneson, Sioux Falls, for defendant and appellant.

DUNN, Justice.

DefendantDarrell Menning seeks modification of the original divorce decree provision by which child custody rights to the parties' daughter were granted to plaintiffSandra Menning.The trial court denied the change in custody sought, and Darrell appeals.We affirm.

The parties were married on March 22, 1957, and four children were born as issue of the marriage, i. e., Terry, Todd, Brian, and Cindy.At the time of the divorce, their ages were 15, 13, 9, and 4, respectively.The divorce decree incorporated an agreement entered into by the parties which gave Darrell the sole care, custody, and control of Terry and Todd and Sandra the sole care, custody and control of Brian and Cindy.Visitation rights were prescribed, and Darrell was deemed responsible for support payments for Brian and Cindy.

On August 10, 1977, Darrell moved the trial court to modify the divorce decree by changing custody of Cindy from Sandra to Darrell upon the grounds that there were changed circumstances since the divorce and changing the custody of Cindy would be in her best interests.^*After a hearing on the motion, the trial court denied the motion and entered findings of fact and conclusions of law in support of its judgment denying the motion.

The trial court is vested with broad discretion in deciding questions of child custody modification, and such trial court decisions will be reversed only upon a clear showing of an abuse of that discretion.SDCL 25-4-45;Ulver v. Ulver, 1956, 76 S.D. 371, 78 N.W.2d 830;Weygand v. Weygand, 1941, 68 S.D. 1, 297 N.W. 689.To aid the trial court in the exercise of its discretion in child custody modification proceedings, we have adopted the rule that the parent seeking modification of custodial rights has the burden of proving by a preponderance of the evidence that (1) there has been a substantial and material change of circumstances since the decree of divorce was entered, and (2) the welfare and best interests of the children require the modification being sought.Masek v. Masek, 1976, S.D., 237 N.W.2d 432, 434.

The record reveals that there have been very few changes in circumstances.Darrell has remarried and still resides in Corsica, South Dakota.He has changed his means of earning a living from working in the burial vault business and running a bowling alley to full-time farming and part-time school bus driving.By oral agreement, Sandra has allowed Brian to live with Darrell.Sandra and Cindy moved to Michigan, and Sandra has remarried.At the time of the motion for change of custody, Cindy was almost seven years old.

Reviewing these changed circumstances, we find that the remarriage of both parties is of no consequence, especially in light of the fact that Sandra's husband has accepted Cindy as his own child, and his relationship with her is warm and loving.Further, the fact that Sandra has moved to Michigan is not Per se a ground for review of custody.There was no territorial restriction placed upon the right to custody; in fact, the divorce decree adopted the stipulation of the parties which contemplated moves outside the state in its visitation provisions.Darrell contends that Brian's move back to South Dakota is a material and substantial change of circumstances, mandating that he have custody of Cindy in order to bring the family together.Simply allowing Brian to stay with Darrell does not constitute a change in circumstances that is sufficiently material to affect Cindy in an adverse manner.

The trial court found that Darrell failed to prove by a preponderance of the evidence that there had been a substantial and material change of circumstances since the entry of the divorce decree.Our review of the record indicates that such a finding is justified; therefore, the trial court did not abuse its discretion...