Miller v. Miller, 11806
| Court | Supreme Court of South Dakota |
| Citation | 245 N.W.2d 501 |
| Docket Number | No. 11806,11806 |
| Parties | Gloria J. MILLER, Plaintiff and Appellant, v. Roger L. MILLER, Defendant and Respondent. |
| Decision Date | 15 September 1976 |
Page 501
v.
Roger L. MILLER, Defendant and Respondent.
May, Johnson & Burke and Gale E. Fisher, Sioux Falls, for plaintiff and appellant.
Rodney J. Steele, Wilkinson & Steele, De Smet, for defendant and respondent.
COLER, Justice.
On July 9, 1975, respondent filed an affidavit and application for modification of a divorce decree dated October 18, 1974, and filed December 12, 1974. Thereafter on July 14, 1975, appellant filed a like affidavit and application for modification of the decree. Both parties sought modification of that part of the decree which awarded custody of their three-year-old son to the paternal grandparents 'subject to the reasonable visitation rights' of both parties to the divorce.
The applications or petitions of both parties were consolidated for the purpose of hearing and, following the hearing, the trial court entered findings of fact and conclusions of law, together with an order, maintaining the status quo. From this order the child's mother has appealed.
Page 502
We affirm.
Although RCP Rule 52(a), SDCL 15--6--52(a), does not require the entry of findings of fact and conclusions of law by the trial court, we are satisfied that, as in this case, where the court took testimony in support of the affidavits on file, this court's review is materially aided by their entry.
This court, in Masek v. Masek, 1976, S.D., 237 N.W.2d 432, in construing SDCL 25--4--45 and 30--27--19 clearly stated the rule regarding change of custody cases as follows:
'the parent seeking modification of custodial rights has the burden of proving (1) that there has been a substantial and material change of circumstances since the decree of divorce was entered, and (2) that the welfare and best interests of the children require the modification being sought. Either factors standing alone will not justify a change of custody--both must be present. This is a heavy burden, but the courts, the parties and especially the children must be protected from endless and vexatious litigation and resulting uncertainty flowing therefrom.'
Under the explicit language of RCP Rule 52(a), 'Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.' Given this scope of review, we set forth the following findings of fact and conclusions of law,* which accurately reflect the evidence presented as to the change of circumstances. These read, in part, as follows:
'FINDINGS OF FACT
That the plaintiff was married to Vernon Lind on July 5, 1975, which is just over a month prior to the hearing....
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Spaulding v. Spaulding, 12483
...and decree and remand the case with instructions to enter an order awarding custody of the children to appellant. 1 Miller v. Miller, S.D., 245 N.W.2d 501 (1976); Wiesner v. Wiesner, 80 S.D. 114, 119 N.W.2d 920 (1963); and Howells v. Howells, 79 S.D. 480, 113 N.W.2d 533 (1962).2 We distingu......
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Application of G. K., 11873
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Hanks v. Hanks, s. 12744
...circumstances. This decision is to be made relative to their temporal, mental, and moral welfare. Isaak v. Isaak, supra; Miller v. Miller, 245 N.W.2d 501 (S.D.1976); Masek v. Masek, 89 S.D. 62, 228 N.W.2d 334 Appellant points out that during the period that appellee had in effect abandoned ......
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Isaak v. Isaak, 12485
...to be in the best interests of the children relative to their temporal, mental, and moral welfare. SDCL 30-27-19; Miller v. Miller, 1976, S.D., 245 N.W.2d 501; Masek v. Masek, supra; Wiesner v. Wiesner, 1963, 80 S.D. 114, 119 N.W.2d 920. The trial court has broad discretion in awarding cust......