Pietrzak v. Schroeder

• Decision Date: 07 January 2009
• Docket Number: No. 24729.,24729.
• Parties: Joleen Louise PIETRZAK, Plaintiff and Appellant, v. Michael W. SCHROEDER, Defendant and Appellee.
• Court: South Dakota Supreme Court

759 N.W.2d 734

2009 SD 1

Joleen Louise PIETRZAK, Plaintiff and Appellant, v. Michael W. SCHROEDER, Defendant and Appellee.

No. 24729.

Supreme Court of South Dakota.

Considered on Briefs September 29, 2008.

Decided January 7, 2009.

Reheariing Denied February 12, 2009.

Elizabeth A. Rosenbaum, Sioux City, Iowa, Attorney for plaintiff and appellant.

Dava A. Wantoch, Mitchell, South Dakota, Attorney for defendant and appellee.

GILBERTSON, Chief Justice.

[¶ 1.] Mike Schroeder filed a Petition for Change of Custody of his five-year-old son, Thomas. Custody of the child originally had been stipulated to by the parties. Mike alleged the conduct of the child's mother, Joleen Pietrzak, required a change in custody in order to serve Thomas's best interest and welfare. The trial court concluded a change in custody was required. We reverse.

FACTS

[¶ 2.] The minor child in this matter, Thomas, was born to Joleen Pietrzak (Joleen) and Mike Schroeder (Mike), on October 22, 2001, after the breakup of the parties' brief relationship. Mike, a rancher/farmer and age thirty-four at the time of trial, was focused on his farming operation and a more rural and relaxed lifestyle. Joleen's focus was on educational goals and raising Thomas with what she considered to be proper manners in a more formal setting. Joleen was forty years old at the time of the custody trial.

[¶ 3.] Animosity developed between Joleen and Mike after the birth of Thomas concerning the manner in which Thomas would be raised. In October 2001, shortly after the birth of Thomas, Joleen moved from Plankinton, South Dakota, to Mitchell, South Dakota. Joleen's mother moved in with Joleen and Thomas. Two months later, Joleen filed a petition seeking full legal custody of the child subject to reasonable visitation with Mike, and child support. On February 12, 2002, a temporary order for custody, visitation, and support was entered by the trial court in which the parties' stipulation and agreement was incorporated into the court's order. The stipulation provided for joint legal custody of the minor child, with Joleen having primary custodial care subject to Mike's visitation. Mike was ordered to pay $150.00 in temporary child support beginning February 1, 2002, and half of the premiums for a health insurance policy maintained by Joleen for Thomas. The parties were ordered to provide their respective income information to a child support referee for determination of the appropriate amount of child support to be made retroactive to February 1, 2002. The order also required the parties to select a mediator for all remaining issues.

[¶ 4.] Despite the court order granting Mike midweek visitation on Wednesday at Joleen's home, after a short time Mike declined the visitation claiming that the presence of Joleen's mother made it too uncomfortable. On June 26, 2002, Mike filed a motion for scheduling of visitation, a trial date, and an order requiring home studies for both parties. Mike's motion was based on his claims that the parties had been unable to mediate the matter as ordered, and Joleen was not abiding by the South Dakota Child Visitation Guidelines.¹ Mike also complained that Joleen refused to communicate with Mike on important issues regarding the welfare of the child. Mike also requested a home study, and that both parties submit to psychological testing concerning their fitness for custody and visitation.

[¶ 5.] On October 25, 2002, after a hearing on the matter, a court order was issued that provided Mike with additional visitation and required him to provide for and pay the cost of transportation between Plankinton and Mitchell. All other matters were ordered to be determined at full trial, or upon separate motion to the court. The parties were ordered to submit to the home study to be conducted by Renee Turbak.

[¶ 6.] Turbak's home study included a psychological assessment of the parties by J. Gabriel Mydland, EdD LPC, in which he noted the parents both wanted what was best for Thomas, but found it difficult to work with one another to achieve the objective. The parties' personalities were assessed and the results did not suggest any risk to Thomas when in the supervision of either parent. Mediation was recommended as a means for the parties to resolve differences and "work together, without professional advocates, to find workable solutions." Turbak's home study provided a visitation schedule for Thomas through age four, with an increase in visitation at age five. Holidays, summer vacation, and transportation were also addressed. Finally, the home study recommended a ninety-day advance notification period if either parent planned on moving more than seventy-five miles from their current residence.

[¶ 7.] On September 18, 2003, Joleen filed a motion requesting an order from the court implementing Turbak's recommended visitation schedule. Mike resisted the motion, claiming that Turbak's schedule did not provide him with enough visitation. Mike also complained that he wished to reduce the amount of time the minor child spent in the company of Joleen's mother, as he thought she was a bad influence over Joleen and his son.

[¶ 8.] On November 6, 2003, Joleen filed a motion to permit her to move with Thomas outside the seventy-five mile limitation in the stipulated custody agreement. Joleen planned to enroll fulltime at the University of South Dakota in Vermillion, South Dakota, obtain a bachelor's degree, and eventually a post-graduate degree with the goal of becoming a professor.

[¶ 9.] Mike filed a resistance to the motion and a motion for a change of primary physical custody. In it he claimed Joleen refused to increase his visitation beyond the amount provided under the South Dakota Child Visitation Guidelines per his repeated requests.

[¶ 10.] On March 29, 2004, an order was entered reflecting that the parties reached another stipulated agreement. Thomas remained in Joleen's primary physical care and she was permitted to move to the Vermillion area with the minor child. In exchange, Mike obtained additional visitation. The parties were ordered to utilize Turbak to case manage the visitation schedule, and to negotiate more extensive visitation time when Thomas was not engaged in pre-school or grade school activities based on Thomas's adaptability to such extended visitation. During the time the parties were attempting to mediate issues, Joleen reported some behavioral issues with Thomas, including aggressiveness, biting, hitting, and clinginess after returning from visitation with Mike. Turbak declined to provide assistance with Thomas's behaviors due to her lack of training in child psychology. Instead, Turbak referred the parties to several child psychologists. The parties eventually selected Taryn Van Gilder, PhD, who diagnosed Thomas with adjustment disorder.

[¶ 11.] On August 26, 2004, Joleen filed a petition for modification of child support for determination of an amount above the $150.00 set in the February 12, 2002, temporary order. Child support referee James D. Taylor was appointed. Mike failed to comply with the February 12, 2002, court order requiring him to submit his financial records for determination of child support obligations, and refused to comply with a subpoena for those records. Referee Taylor ordered Mike to comply; Mike failed to comply until the date of the hearing before Referee Taylor.

[¶ 12.] On December 13, 2004, Referee Taylor filed his report in which he pointed out inconsistencies in Mike's financial documents that made it difficult to ascertain exact income amounts, but noted a substantial amount of assets and debt in connection with his farming operation. Mike's child support obligation was set at $438.00 less a credit of $75.00 per month toward Mike's visitation travel expenses from Plankinton to Yankton. Mike was also required to pay a percentage of Thomas's unreimbursed medical expenses. A child support arrearage in the amount of $8,047.00 was ordered against Mike. Mike was ordered to pay $363.00 in child support beginning January 1, 2002, and at least an additional $75.00 per month toward the arrearage for a monthly obligation of $438.00. The parties were ordered to pay their respective attorney fees and costs.

[¶ 13.] On December 20, 2004, Mike objected to the Referee Taylor's report; Joleen resisted. Mike refused to pay the increased child support amount in violation of the court order, paying only the $150.00 per month and some of his share of the health insurance premiums under the temporary order dated February 12, 2002. On August 9, 2005, after consideration on briefs, the trial court entered an order approving the referee's report. The trial court also ordered Mike to pay $500.00 toward the $3,396.22 incurred by Joleen in attorney fees and costs in the matter due to his failure to remit his financial documents per court order.

[¶ 14.] On August 23, 2005, Mike filed a motion to reconsider the child support order; Joleen resisted. On August 31, 2005, Mike filed a motion to allow continued visitation, complaining that Joleen had enrolled Thomas in a three-day preschool program that interfered with Mike's every other weekend visitation, which began on Thursday afternoons and ran through Sunday evening. A letter from Thomas's preschool teacher was attached, which noted it would not be detrimental to Thomas to miss one day of preschool every other week.

[¶ 15.] Joleen answered the motion, and reluctantly agreed to Thomas missing the day of preschool. In her motion, Joleen asked the court to order Mike to pay the new child support amount of $363.00 and the $75.00 per month in arrearages as ordered by the court in December 2004, and the $500.00 attorney fees awarded under the court's August 9, 2005, order.

[¶ 16.] On September 7, 2005, the trial court ruled from the bench denying Mike's August 23, 2005, motion for reconsideration of the child support. On October 7, 2005, Mike appealed to this Court t...