Nickles v. Nickles

• Decision Date: 03 June 2015
• Docket Number: No. 27179.,27179.
• Citation: 865 N.W.2d 142
• Parties: Patrick NICKLES, Plaintiff and Appellant, v. Kacie Jo Marta NICKLES, Defendant and Appellee.
• Court: South Dakota Supreme Court

865 N.W.2d 142

Patrick NICKLES, Plaintiff and Appellant

v.Kacie Jo Marta NICKLES, Defendant and Appellee.

No. 27179.

Supreme Court of South Dakota.

Considered on Briefs March 23, 2015.

Decided June 3, 2015.

Patricia A. Meyers, Rapid City, South Dakota and Cassidy M. Stalley of Banks, Johnson, Kappelman & Becker, PLLC, Rapid City, South Dakota, Attorneys for plaintiff and appellant.

Debra D. Watson, Rapid City, South Dakota, Attorney for defendant and appellee.

Opinion

ZINTER, Justice.

[¶ 1.] Patrick and Kacie Nickles divorced. Patrick appeals the circuit court's decisions on child custody, child support, rehabilitative alimony, property division, and attorney's fees. We affirm the circuit court's decision on child custody. On all other issues, we reverse and remand for the entry of findings sufficient to permit appellate review.

Facts and Procedural History

[¶ 2.] Kacie and Patrick met through an online dating service in November 2003. At the time, Patrick was living in Oklahoma with his son M.N. Kacie and her son J.N. moved to Oklahoma to live with Patrick. Kacie and Patrick married in August 2004. During the marriage they had two additional children, B.N. and C.N. Kacie and Patrick also adopted each other's children.

[¶ 3.] Prior to the marriage, Patrick was employed by Nickles Machine Corporation. He later inherited a share of the business. The business was sold in 2001, and Patrick's share of the proceeds was approximately five million dollars. He used the sale proceeds to begin a career as an investor. Two of his investments involved interests in Podo Technology and Fast Fusion. Patrick formed ROIC LCC, a holding company, to manage his investments. The remainder of the sale proceeds was set aside for personal use and living expenses. This financial arrangement allowed Kacie to stay at home and raise the children.

[¶ 4.] Patrick and Kacie initially lived an extravagant lifestyle. In 2007, however, the parties' financial condition changed. Patrick's investments were not doing well, and the family moved to Atlanta to salvage the situation. Kacie began abusing alcohol. In 2010, Kacie was arrested and convicted of driving under the influence of alcohol. Both parties were unfaithful during their marriage.

[¶ 5.] In February 2012, Patrick decided to do something about his family's financial situation and moved to Spearfish where Kacie's parent's lived. He attempted to start a business in the oil fields in North Dakota. Kacie and the children remained in Atlanta to finish the school year. In May, Patrick moved the children to Spearfish. Kacie remained in Atlanta, traveled to California with friends, and eventually rejoined her family in Spearfish. During the summer of 2012, Kacie returned to Atlanta where she worked until December 2012, when she moved back to Spearfish.

[¶ 6.] On April 11, 2013, Patrick filed for divorce. The parties continued to live together until an incident on April 27, 2013, when Kacie, in an intoxicated state, was arrested for assaulting her father, her sister, and Patrick. Kacie was indicted on three counts of simple assault/domestic violence. She pleaded guilty to disorderly conduct. Patrick obtained a one-year protection order against Kacie. Patrick also took custody of all four children. On May 3, 2013, Kacie began residential alcohol treatment in California. Kacie returned to Spearfish after she completed treatment. Alcohol was not an issue for Kacie at the time of trial.

[¶ 7.] Dr. Bill Moss, a licensed psychologist, was appointed by the court to conduct a custody evaluation. Dr. Moss reported that Patrick was stable and dedicated to the children. However, Dr. Moss found that Patrick did not have a strong emotional connection with the children. Dr. Moss found that Kacie struggled with insecurity and had traits of emotional dependency. At the time of trial, she was making strides toward financial stability although her income was unpredictable. She had also successfully maintained sobriety. In making a child custody recommendation, Dr. Moss considered Patrick's and Kacie's parental fitness, stability, harmful parental misconduct, primary caretaker status, and the children's preferences. Dr. Moss ultimately recommended that Kacie have primary physical custody of the parties' minor children because “she ha[d] the better emotional bond with the children and ha [d] established this relationship through constant effort.”

[¶ 8.] Cheryl Wales, a licensed counselor, had counseled M.N. and J.N. and also worked with Kacie and Patrick through couples counseling. Wales testified that M.N. had experienced problems while in Patrick's care, but Patrick appropriately handled the problems. She also mentioned that M.N.'s grades had dropped while in Patrick's care. According to Wales, all four children were aware of the April 27, 2013 incident involving Kacie. Wales disagreed with Dr. Moss's conclusion. Wales believed Dr. Moss's recommendation was based solely on Kacie's emotional availability. While not discounting Kacie's emotional availability for the children, Wales found that Patrick's structure, routine, and stability made him the better parent to serve the children's best interests. Wales also testified that M.N. wanted to live with his father and that he would run away if he was required to live with Kacie.

[¶ 9.] At the end of the trial, the court interviewed M.N. in camera. After returning home from a weekend visitation, M.N. told Patrick that Kacie had questioned him about his in camera visit with the court. Because of this incident, M.N. refused to attend another visitation with Kacie, and Patrick moved to suspend visitation between M.N. and Kacie. Wales advised Patrick to not comply with the court-ordered visitation, and Patrick acted on that advice. Dr. Moss disagreed with this course of action and thought Patrick should have done more to reunite M.N. with his mother. Patrick's motion to suspend visitation was denied.

[¶ 10.] Patrick and Kacie's 2012 joint income tax return reported income of $722,197. It appears this amount was “paper income” (retained earnings) from different entities—primarily Fast Fusion. Patrick did not receive the money. The 2012 tax return also reported $10,394 in wages, $3,409 in taxable interest, and $76,651 in ordinary dividends. The 2012 tax return showed a loss of $1,193,992 as a result of past investment failures.

[¶ 11.] Patrick submitted a list of deposits reflecting 2013 income of $159,161. The funds were Fast Fusion distributions for the payment of Patrick's individual tax liability. The court found that these funds were available for personal use. Patrick was also receiving $4,000 per month for the repayment of a loan he made to Podo Technologies. At the time of trial, the loan payments were expected for the next forty-eight months. No further income was anticipated from Podo Technology. Patrick was also receiving $682 per month in Social Security benefits for M.N.

[¶ 12.] Both Patrick and Kacie have college degrees. After reentering the labor market, Kacie became employed as a receptionist working thirty hours a week earning $12 per hour. Kacie also worked as a freelance photographer and was working toward a master's degree in fine arts, which was expected to be completed in one year. The court calculated Kacie's monthly income for child support purposes at $1,548. The court did not calculate Patrick's monthly income for child support. The court noted that his current income was “not easily determined.”

[¶ 13.] The court accepted the custody findings and recommendations of Dr. Moss. The court ordered joint legal custody with primary physical custody awarded to Kacie subject to liberal parenting time for Patrick. The court awarded $3,800 in monthly child support. The court also awarded Kacie rehabilitative alimony of $1,000 per month for a period of twelve months, and the court ordered Patrick to pay $7,500 in attorney's fees and costs. In dividing the parties' property, the court awarded Kacie $43,000 from Patrick's Wells Fargo ROIC LCC savings account and $304 from Patrick's Wells Fargo ROIC LCC checking account. Patrick appeals each of these decisions.

Decision

Child Custody

[¶ 14.] Patrick argues that the court clearly erred in its child custody findings relating to harmful parental misconduct by Kacie, her parental fitness and stability, and M.N.'s stated preference. Patrick further argues that the court erred in failing to make an express determination whether Kacie rebutted a purported presumption against her having custody because she had been “convict[ed] of domestic abuse.”

[¶ 15.] “The best interest of the child standard is [applied] when parents seek an initial judicial determination of the custody of their children.” Kreps v. Kreps, 2010 S.D. 12, ¶ 26, 778 N.W.2d 835, 843. “The best interests of the child are determined by considering the child's temporal, mental, and moral welfare.” Pietrzak v. Schroeder, 2009 S.D. 1, ¶ 39, 759 N.W.2d 734, 744. There are several factors that the court should consider: parental fitness, stability, primary caretaker, child's preference, harmful parental misconduct, and separating siblings. Fuerstenberg v. Fuerstenberg, 1999 S.D. 35, ¶¶ 24–34, 591 N.W.2d 798, 807–10. In evaluating parental fitness, the circuit court should consider:

(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 witnesses firsthand what it means to be a good parent, a loving spouse, and a responsible citizen.

Id. ¶ 24, 591 N.W.2d at 807 (citations omitted)....