Moulton v. Moulton

• Decision Date: 08 November 2017
• Docket Number: 27991
• Citation: 904 N.W.2d 68
• Parties: Melissa M. MOULTON, Plaintiff and Appellant, v. Jack W. MOULTON, Defendant and Appellee.
• Court: South Dakota Supreme Court

904 N.W.2d 68

Melissa M. MOULTON, Plaintiff and Appellant,

v.Jack W. MOULTON, Defendant and Appellee.

27991

Supreme Court of South Dakota.

CONSIDERED ON BRIEFS ON AUGUST 28, 2017

OPINION FILED November 8, 2017

RICK L. RAMSTAD of Crew and Crew, PC, Sioux Falls, South Dakota, Attorneys for plaintiff and appellant.

GREGORY T. BREWERS of Strange, Farrell, Johnson & Brewers, PC, Sioux Falls, South Dakota, Attorneys for defendant and appellee.

GILBERTSON, Chief Justice

[¶1.] Jack W. Moulton and Melissa M. Moulton divorced. By stipulation, the parties agreed to share legal custody of their two children, Marissa and Adam, with Jack having primary physical custody of Adam and Melissa having primary physical custody of Marissa. Melissa subsequently moved for a change of custody, seeking primary physical custody of Adam. The circuit court denied the motion, and Melissa appeals. We affirm.

Facts and Procedural History

[¶2.] Jack and Melissa married in 2005. The marriage was Jack's third and Melissa's second. In 2009, Jack and Melissa separated, each suspecting the other of infidelity. The circuit court entered a judgment and decree of divorce on June 21, 2011, on the grounds of irreconcilable differences. At the time, the parties stipulated that they would share legal custody of their two children, Marissa and Adam,¹ and that Jack would have the children in his care two overnights per week. After his divorce from Melissa, Jack remarried his first wife, Dawn. At the time of the proceedings below, Melissa had not remarried but cohabited with her boyfriend, Jeff.

[¶3.] In 2013, Melissa, who was employed as a financial advisor, accepted a job transfer that required her to relocate immediately to Williston, North Dakota, but provided a substantial financial incentive.² In order to avoid litigation, the parties agreed to modify the custody arrangement. The parties stipulated that they would share legal custody of Marissa and Adam, that Jack would have primary physical custody of Adam, and that Melissa would have primary physical custody of Marissa. The circuit court approved the modification on August 27, 2013.

[¶4.] On October 22, 2014, Melissa filed a motion for temporary physical custody of Adam after he suffered an asthmatic episode. Citing Jack's long-standing smoking habit, Melissa argued Adam's health was imperiled by continuing to reside with Jack. The circuit court did not order a custody evaluation, but Melissa commissioned one herself, which concluded Melissa should be given physical custody of Adam. After hearing testimony and argument on August 5, 2015, and February 9 and 10, 2016, the court entered findings of fact and conclusions of law and denied Melissa's motion. The court also ordered Melissa to pay $15,120 of Jack's attorney fees.

[¶5.] Melissa appeals, raising the following issues:

1. Whether the circuit court erred in determining Adam's interests were better served by remaining in Jack's physical custody.

2. Whether the circuit court abused its discretion by ordering Melissa to pay Jack's attorney fees.

Standard of Review

[¶6.] "A circuit court's determination of what constitutes a particular child's best interest is a finding of fact," which this Court reviews under the clearly erroneous standard. People ex rel. E.M.H., 2015 S.D. 101, ¶ 5, 873 N.W.2d 485, 486. This Court will accept the circuit court's factual findings unless after a complete review of the record, the Court is left "with a definite and firm conviction that a mistake has been made." Aguilar v. Aguilar, 2016 S.D. 20, ¶ 9, 877 N.W.2d 333, 336 (quoting Clough v. Nez, 2008 S.D. 125, ¶ 8, 759 N.W.2d 297, 301 ). The circuit court's decision to award attorney fees is reviewed for an abuse of discretion. Hewitt v. Felderman, 2013 S.D. 91, ¶ 23, 841 N.W.2d 258, 264.

Analysis and Decision

[¶7.] 1. Whether the circuit court erred in determining Adam's interests were better served by remaining in Jack's physical custody.

[¶8.] Melissa's primary argument is that the circuit court erred in determining Adam's interests were better served by remaining in Jack's custody. In particular, Melissa contends Jack's smoking places Adam's health at risk. She also contends the court failed to identify compelling circumstances justifying the separation of Marissa and Adam. And finally, she contends her custody evaluation supports her claim for a change in custody.

[¶9.] In making custody decisions, a court's "brightest beacon" is the best interest of the child. McCarty v. McCarty, 2015 S.D. 59, ¶ 12, 867 N.W.2d 355, 359. "In awarding the custody of a child, the court shall be guided by consideration of what appears to be for the best interests of the child in respect to the child's temporal and mental and moral welfare." SDCL 25–4–45. In making such determination, a "court may, but is not required to, consider the following ... factors ...: parental fitness, stability, primary caretaker, [the child's] preference, harmful parental misconduct, separating siblings, and substantial change of circumstances." McCarty, 2015 S.D. 59, ¶ 12, 867 N.W.2d at 359 (quoting Roth v. Haag, 2013 S.D. 48, ¶ 13, 834 N.W.2d 337, 340 ). Not all of these factors are applicable in every case, and so "a court is not bound to make a specific finding in each category[.]" Id. (quoting Roth, 2013 S.D. 48, ¶ 13, 834 N.W.2d at 340 ).

Substantial Change of Circumstances

[¶10.] "It has long been the rule in South Dakota that to modify a custody decree rendered after a contested hearing, the moving party must show a substantial change in circumstances." Id.¶ 9, 867 N.W.2d at 358 (emphasis added). "The reason behind [this rule] is to prevent relitigation of conduct and circumstances that antedate the prior custody order." Kolb v. Kolb, 324 N.W.2d 279, 282 (S.D. 1982). Thus, the rule applies when "such conduct has been litigated and ... a court has entered a judgment based on that conduct." Id. (emphasis added). However,

facts pertinent to child custody, which were not put in issue or involved, tried and determined by the court as a basis for the original divorce decree, are not res judicata as to the best interests of the children... and may be considered anew in a subsequent custody modification hearing free from the substantial change of circumstances constraints.

Id. at 283 (emphasis added). As noted above, the custody arrangement existing at the time of Melissa's motion for physical custody was the product of the parties' stipulation; the question of Adam's best interest was not litigated prior to the present action. Therefore, the substantial-change-of-circumstances limitation is not applicable.

Parental Fitness

[¶11.] In analyzing the fitness of a parent, the circuit court may consider a number of factors, including:

(1) mental and physical health; (2) capacity and disposition to provide the child[ ] with protection, food, clothing, medical care, and other basic needs; (3) ability to give the child[ ] love, affection, guidance, education and to impart the family's religion or creed; (4) willingness to maturely encourage and provide frequent and meaningful contact between the child[ ] and the other parent; (5) commitment to prepare the child[ ] for responsible adulthood, as well as to insure that the child experiences a fulfilling childhood; and (6) exemplary modeling so that the child[ ] witness[es] firsthand what it means to be a good parent, a loving spouse, and a responsible citizen.

McCarty, 2015 S.D. 59, ¶ 13, 867 N.W.2d at 359–60 (quoting Schieffer v. Schieffer, 2013 S.D. 11, ¶ 17, 826 N.W.2d 627, 634 ). Concerning Adam, the court found that Jack and Melissa are equally fit in regard to factors (1), (2), (3), and (5).

[¶12.] In regard to the parties' willingness to encourage contact with the noncustodial parent, the circuit court found that "Jack has been very supportive of the relationship between Melissa and Adam, and Melissa has been able to spend substantial time with Adam despite the distance between the parents' homes." The court did not make a similar finding regarding Melissa's willingness to encourage and facilitate contact between Adam and Jack. However, it did note that "Melissa has not been supportive of Jack's relationship with Marissa." Thus, the court found that "[t]he factors related to willingness to maturely encourage and provide frequent and meaningful contact between the child and the other parent favor Jack over Melissa."

[¶13.] The circuit court also determined that factor (6) did not support changing custody. The court found that "Jack and Dawn seem to model firsthand what it means to be good parents and loving spouses." In contrast, the court found that "Melissa has not demonstrated exemplary modeling in terms of romantic relationships." The parties included the following provision in their custody agreement:

The parties also agree that, when the children are present, neither of them shall have as a guest, nor shall be a guest, between 10 p.m. and 8 a.m., of any person with whom the parent has a sexual relationship, unless the parent and the other person are legally married.

This provision was incorporated into the judgment and decree of divorce. On cross-examination, Melissa admitted she violated this provision. The court found:

Melissa was not forthcoming regarding the nature of her relationship with Jeff, or the fact that he is currently residing with Melissa and Marissa. Melissa's testimony regarding Jeff was deceptive and called into question the true circumstances related to her life in North Dakota. The court questions her credibility as a result of the deceptive or evasive testimony in that regard. The court is also very concerned about the fact that she willfully and blatantly disregarded the court order restricting either party from cohabitation with someone to whom the party is not married.

Additionally, the court was "concerned about the fact that [Melissa] willfully and blatantly disregarded the court order." Indeed, disregarding a court order is not "exemplary modeling [of]...