Pieper v. Pieper

Decision Date24 December 2013
Docket NumberNo. 26576.,26576.
Citation841 N.W.2d 781,2013 S.D. 98
PartiesNicole Lynn PIEPER, Plaintiff and Appellant, v. Todd Carl PIEPER, Defendant and Appellee.
CourtSouth Dakota Supreme Court


Michele A. Munson of Woods, Fuller, Shultz & Smith, PC, Sioux Falls, South Dakota, Attorneys for plaintiff and appellant.

Steven G. Haugaard, Sioux Falls, South Dakota, Attorney for defendant and appellee.

SEVERSON, Justice.

[¶ 1.] Todd Pieper (Todd) and Nicole Pieper (Nicole) have two children, B.P. and T.P. Nicole alleges that Todd sexually abused B.P., which Todd denies. They divorced in February 2011. The Second Circuit Court gave Nicole sole physical custody of the two children and granted Todd supervised visitation. Nicole appeals the divorce decree, asserting that: (1) the circuit court abused its discretion by granting Todd visitation under an erroneous legal conclusion and applying an incorrect burden of proof; (2) the circuit court abused its discretion when evaluating conflicting testimony from experts; (3) the circuit court abused its discretion by delegating its duty to determine the best interests of the child to a social worker; and (4) the circuit court erroneously valued Nicole's retirement. Because the circuit court erroneously concluded that it could not prohibit visitation and applied the incorrect burden of proof to the allegations of sexual abuse, we reverse the circuit court's visitation order and remand for a determination of whether visitation with Todd is in the children's best interests. We affirm the circuit court's valuation of Nicole's retirement.


[¶ 2.] Todd and Nicole married on May 23, 1998. They had two children during their marriage—a daughter (B.P.) on October 23, 2004, and a son (T.P.) on May 6, 2008. Nicole alleges that B.P., starting in July 2008 without provocation or questioning, began indicating that Todd was sexually abusing her. B.P. allegedly made statements about Todd performing sexual actions.

[¶ 3.] Later that month, Nicole alleges she witnessed events that led her to believe B.P.'s statements. While Todd, Nicole, and B.P. were sleeping in the same bed, Nicole alleges that Todd pushed B.P.'s head to his pelvic area. Nicole apparently confronted Todd. Todd denied any inappropriate touching. Nonetheless, Nicole contacted the police and the Department of Social Services (DSS). DSS told Nicole to take B.P. to Child's Voice.

[¶ 4.] At Child's Voice, a physical examination by Dr. Nancy Free revealed that B.P. had labial adhesions. Dr. Free testified that labial adhesions in young girls are caused by a lack of estrogen, which is normal in pre-pubertal females, as well as caused by irritation, whether it is hygiene or trauma. Ultimately, Dr. Free could not determine whether B.P. was sexually abused.

[¶ 5.] Nicole alleges that on November 30, 2008, she again witnessed Todd sexually abusing B.P. Nicole claims she saw Todd kneeling in front of B.P. inserting his fingers in B.P.'s vagina. Nicole immediately took B.P. to the police station and reported the event to the police. Detectives interviewed Nicole and B.P. Detective Jennifer Van Roekel used anatomically correct dolls during B.P.'s interview. B.P. physically and verbally demonstrated that Todd had digitally penetrated her vagina and anus, she had performed oral sex on Todd, and Todd's mouth had touched her vagina. B.P. again was referred to Child's Voice. There, B.P. alleged to Dr. Free that sexual contact occurred with Todd. Further, Dr. Free noted reddening of B.P.'s labia. However, Dr. Free could not confirm whether B.P. had been sexually abused. Dr. Free recommended that B.P. receive counseling and referred B.P. to Michele VanDenHul. VanDenHul began counseling B.P. in February 2009.

[¶ 6.] Subsequently, the Minnehaha County Sheriff's Department arrested Todd. A grand jury indicted Todd on December 11, 2008, for first degree rape. Shortly thereafter, Nicole initiated divorce proceedings and obtained a protection order against Todd. At a criminal trial on November 18, 2009, a jury acquitted Todd. The civil case proceeded, assigned to Judge Riepel, Second Judicial Circuit.

[¶ 7.] Following his acquittal, Todd requested visitation with B.P. and T.P. by a motion for visitation heard on February 19, 2010. The circuit court ordered supervised visitation with T.P. only. One month later after hearing testimony, the circuit court revised visitation. A year later in February 2011, through several proceedings, the circuit court addressed the divorce issues. On February 11, 2011, the circuit court granted Nicole and Todd a divorce on the grounds of irreconcilable differences. On February 25, 2011, the circuit court concluded, among other things, that Todd was entitled to half of Nicole's pension account valued on the date of their divorce at $31,576.84. Also, the circuit court continued the protection order against Todd but expressed an interest in reunification between Todd and the children.

[¶ 8.] At a hearing on May 23, 2011, the circuit court expressed its concern with completely denying Todd visitation, stating: “I am driven by our state Supreme Court that says I am prohibited from denying visitation for eternity; and that the bottom line is for reunification at some point.” To assist with a reunification plan, the circuit court elicited the help of Dr. Thomas Price. Dr. Price recommended a gradual exposure between Todd and B.P. with further counseling for B.P. Michele VanDenHul, who had been counseling B.P. for approximately two years at this point, disagreed with a reunification plan. VanDenHul felt that no visitation should occur until B.P. was emotionally ready.

[¶ 9.] The circuit court disagreed with VanDenHul. The circuit court found that VanDenHul's counseling did not move B.P. any closer to dealing with B.P.'s feelings regarding the alleged sexual abuse. Moreover, the circuit court found that VanDenHul seemed to accept Nicole's version of the facts and did not investigate the possibility that the abuse did not occur. In VanDenHul's place, Sarah Alexander began counseling the children. VanDenHul and Larry Dancler, a family therapist, criticized Alexander's approach.

[¶ 10.] After Alexander issued her recommendations to the circuit court, Todd moved for primary physical custody. Due to scheduling rotations, the matter was heard on August 14, 2012, by Judge Tiede, who later denied the motion but dismissed the protection order. Prior to Judge Tiede's decision, Judge Riepel issued the divorce decree awarding sole physical custody of the children to Nicole and ordered supervised visitation between Todd and the children. 1 Along with the divorce decree, Judge Riepel issued a memorandum decision, findings of fact, and conclusions of law, all of which provide the basis for this appeal. Most notably, the circuit court wrote that it could not “enter a total ban on any contact between a child and the biological parent” and that it could not “find by clear and convincing evidence that the alleged sexual abuse occurred[.] Presently, the divorce decree controls the visitation between Todd and the children. Nicole appeals the divorce decree.

Standard of Review

[¶ 11.] “The trial court has broad discretion in awarding custody of minor children and likewise visitation rights; therefore, the trial court's decision can only be reversed upon a clear showing of an abuse of that discretion.” Chicoine v. Chicoine, 479 N.W.2d 891, 893 (S.D.1992) (citations omitted). “An abuse of discretion is ‘a discretion exercised to an end or purpose not justified by, and clearly against, reason and evidence.’ Schieffer v. Schieffer, 2013 S.D. 11, ¶ 14, 826 N.W.2d 627, 633 (quoting Hill v. Hill, 2009 S.D. 18, ¶ 5, 763 N.W.2d 818, 822). “The abuse-of-discretion standard includes review to determine that the discretion was not guided by erroneous legal conclusions.” Koon v. United States, 518 U.S. 81, 100, 116 S.Ct. 2035, 2048, 135 L.Ed.2d 392 (1996). See Knodel v. Kassel Twp., 581 N.W.2d 504, 506 (S.D.1998) (“An abuse of discretion can simply be an error of law or it might denote a discretion exercised to an unjustified purpose, against reason and evidence.”)

[¶ 12.] We review findings of fact “under the clearly erroneous standard of review.” Schieffer, 2013 S.D. 11, ¶ 15, 826 N.W.2d at 633 (citation omitted). We will not overturn the trial court's findings of fact unless a “complete review of the evidence leaves this Court with a definite and firm conviction that a mistake has been made.” Id. (citation omitted). Conclusions of law are reviewed de novo. Hill, 2009 S.D. 18, ¶ 5, 763 N.W.2d at 822 (citation omitted).


[¶ 13.] Prohibiting Visitation

[¶ 14.] First, Nicole argues that the circuit court abused its discretion by granting Todd visitation based on an erroneous legal conclusion. Nicole maintains that the circuit court erroneously concluded that it could not completely deny Todd visitation even if denying Todd visitation was in the children's best interest.

[¶ 15.] [O]ur brightest beacon remains the best interests of the child.” Zepeda v. Zepeda, 2001 S.D. 101, ¶ 13, 632 N.W.2d 48, 53 (citation omitted). And when balancing interests, [t]he best interests of the child [ ] must always prevail.” In re W.G., 1999 S.D. 85, ¶ 22, 597 N.W.2d 430, 434 (citation omitted); see Jasper v. Jasper, 351 N.W.2d 114, 117 (S.D.1984) (stating “the welfare and best interests of the children are paramount to all other considerations”). “The best interests of the child [even] prevail over the noncustodial parent's privilege of visitation.” Lindley v. Lindley, 401 N.W.2d 732, 736 (S.D.1987) (citation omitted). In most instances, “it will be in the best interests of children that they receive the love, affection, training, and companionship of their noncustodial parent.” Chicoine, 479 N.W.2d at 893 (quoting Roberts v. Roberts, 22 Ohio App.3d 127, 489 N.E.2d 1067, 1069 (1985)). But this is not true, “where the evidence establishes...

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