Powell v. Powell

• Decision Date: 19 April 1983
• Docket Number: No. 13957,13957
• Parties: Jeffrey POWELL, Plaintiff and Appellant, v. Stephanie POWELL, Defendant and Appellee. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 166

336 N.W.2d 166

Jeffrey POWELL, Plaintiff and Appellant, v. Stephanie POWELL, Defendant and Appellee.

No. 13957.

Supreme Court of South Dakota.

Considered on Briefs April 19, 1983.

Decided July 6, 1983.

N. Dean Nasser, Jr., Sioux Falls, for plaintiff and appellant.

Stephanie Powell, pro se.

MORGAN, Justice.

This appeal arises from a circuit court's order reaffirming the custody provisions in the judgment and decree of divorce of these parties. While the provisions provided for joint custody of Marc Powell, the order reaffirmed the physical custody in Stephanie Powell (mother) with minor modifications. Jeffrey Powell (father) appeals. We affirm.

On January 11, 1982, the mother and father of Marc were each granted a decree of divorce on grounds of extreme mental cruelty. At that time, mother was employed as a cashier at Get N' Go in Sioux Falls, South Dakota, earning approximately $6,000 per year. At the time of this hearing, regarding the custody of Marc, mother was employed as a bartender in Essex, Iowa, earning approximately $11,000 per year. During the divorce and at all times pertinent, father has been employed as a computer operator, earning approximately $20,000 per year. The judgment and decree of divorce granted the parties joint custody of Marc with mother having actual physical custody and father having reasonable visitation rights. The court also ordered father to pay $175 per month child support, to maintain health insurance on Marc and pay for Marc's medical bills. In January of 1982, father took Marc to see Dr. Liggett, a pediatrician, about problems with Marc's ears. Dr. Liggett prescribed medication for the child. In February of 1982, mother moved to Shenandoah, Iowa, to live with her stepfather because she was having financial problems in Sioux Falls. Her financial problems stemmed from the fact that father had not paid her the amount ordered by the property division portion of the judgment and decree of divorce. At the custody hearing, mother testified that she told her creditors she would pay them as soon as she received the money from father and that she paid as many of the bills as she could. After living with her stepfather for a few months, she "got back on [her] feet" and moved into a place of her own with Marc. At the time of the custody hearing, she still had not received the money from father. After she moved to Essex, the medication which father obtained for Marc apparently was not helping Marc's problem with his ears. Mother, then, took Marc to Dr. Syre, an ears, nose and throat specialist in Iowa, who prescribed different medication for Marc. In April or May of 1982, father contacted mother and began visiting Marc again. Father initiated this action in July of 1982. The circuit court affirmed the custody provisions in the divorce decree and also expanded those provisions by specifically addressing visitation rights. Father appeals from this order.

Father raises two issues on appeal. First, whether the trial court erred by holding there was not sufficient changed circumstances to grant father full custody or physical custody of Marc. Second, whether the trial court erred in refusing to require mother to move back to South Dakota or, alternatively, in refusing to decrease child support in proportion to father's visitation expenses.

Father first argues that the trial court erred in affirming the mother's physical custody of Marc. A court can modify child custody provisions after a divorce has been entered. SDCL 25-4-45. The moving party, here the father, has the burden of showing by a preponderance of the evidence that there had been a substantial and material change of circumstances and the welfare and best interests of Marc required modification of custody. See Sneesby v. Davis, 308 N.W.2d 565 (S.D.1981). In affirming mother's custody, the trial court held father did not meet this burden. On appeal, this court cannot substitute its judgment for the trial court's decision unless there has been a clear abuse of discretion. Palmer v. Palmer, 316 N.W.2d 631 (S.D.1982); Prentice v. Prentice, 322 N.W.2d 880 (S.D.1982).

In Matter of Ehlen, 303 N.W.2d 808 (S.D.1981), this court addressed whether a custodial parent's move from South Dakota to Washington was a material change of circumstances. In Ehlen, the parents had stipulated to a joint custody arrangement which the mother's move to Washington rendered impractical. This court in Ehlen did not hold that every out-of-state move was a "substantial and material change." Rather, this court held the fact that the mother would move such a great distance away so as to render impractical the joint custody arrangement, constituted a "substantial and material change." In Ehlen, supra, this court affirmed the trial court's decision affirming the mother's custody of the children and modifying the father's visitation, according him a longer period of visitation in the summer months.

In Ehlen, supra, the mother moved the children approximately 1500 miles away. Here, the mother moved Marc approximately two and one-half hours away by car, according to the testimony of the father and mother at the hearing. Unquestionably, such a move is not so great a distance as to constitute a substantial and material change as the move was in Ehlen.

Father's contention that the welfare and best interests of Marc require modification also fails. Father impliedly argued this issue by discussing facts of previous cases decided by this court. This court has held that where a mother has irresponsible conduct harmful to...