Price v. Price, 21127.

CourtSupreme Court of South Dakota
Citation611 N.W.2d 425,2000 SD 64
Docket NumberNo. 21127.,21127.
PartiesThomas L. PRICE, Plaintiff and Appellant, v. Melinda S. PRICE, Defendant and Appellee,
Decision Date17 May 2000

611 N.W.2d 425
2000 SD 64

Thomas L. PRICE, Plaintiff and Appellant,
Melinda S. PRICE, Defendant and Appellee

No. 21127.

Supreme Court of South Dakota.

Considered on Briefs March 20, 2000.

Decided May 17, 2000.

611 N.W.2d 428
Drew C. Johnson of Johnson Law Office Aberdeen, South Dakota, Attorneys for plaintiff and appellant

Thomas M. Tobin of Tonner, Tobin and King, Aberdeen, South Dakota, Attorneys for defendant and appellee.

SABERS, Justice.

[¶ 1.] Melinda Price motioned for change of custody and an increase in alimony. The trial court granted both motions and awarded $338 in child support to Melinda. Tom Price appeals. We reverse and remand the change of custody and child support award, but affirm the alimony award.


[¶ 2.] Tom and Melinda were married June 17, 1972. Shortly thereafter, the couple moved from New York to South Dakota so Tom could practice as a licensed psychologist in Aberdeen. He is a partner in the Northern Plains Psychological Services clinic, which is located in Aberdeen with branch offices in Watertown, Redfield and Waubay.

[¶ 3.] The couple have four children: Zachary, born April 12, 1977; Adam, born January 27, 1979; Joshua, born March 2, 1982; and Stuart, born April 5, 1988.

[¶ 4.] After 21 years of marriage, Tom filed for divorce in July of 1993. Melinda initially sought sole custody of the four minor children. Tom opposed and sought joint custody of the children with physical custody awarded to him. An extensive custody evaluation was conducted in August of 1994. As part of the evaluation, Stuart, because of his young age of six, was tested to "obtain some objective information about [his] parental preference." Stuart completed four of the seven tests with the results showing that his preferred parent was his father. Stuart also "portrayed himself as being very close to, and protected by, Josh." The three older children were personally interviewed and indicated that "they did not want to continue living with their mother's anger, and that they felt closer to, and safer with, their father." During a home visit with Melinda, the evaluator noted:

Mrs. Price spent more than 30 minutes discussing her angry feelings about the ending of the marriage, information about Mr. Price's father's suicide, and allegations that Mr. Price had wanted her to have an abortion instead of giving birth to Stuart. All of this was done in the presence of Stuart who appeared to be very sad, and somewhat dissociative, during this discussion. Mrs. Price also went on at length about Mr. Price's attempts to turn the children against her, as well as the difficulties she had experienced financially due to him not giving her enough money.

After interviewing several references provided by both parties, the evaluator recommended that Tom have sole custody of the two oldest boys, Zachary and Adam, and that Tom and Melinda share joint custody of Josh and Stuart with primary physical custody in Tom.

[¶ 5.] Instead of contesting the custodial recommendations, Melinda agreed that she and Tom would share joint legal custody of all four children with physical custody in Tom. However, the older two children were not required to abide by the visitation schedule and were allowed to choose if and when they visited Melinda. The marital property was divided and Melinda was awarded a lump sum of $27,203 in restitutional alimony, $1 in regular alimony and rehabilitative alimony in an amount offsetting her child support obligation to Tom. The Judgment and Final Decree of Divorce was filed on October 6, 1994.

[¶ 6.] Melinda moved to Rochester, New York shortly after the divorce. On February 26, 1996, Melinda motioned for a change in physical custody of Stuart and for an increase in alimony. During the

611 N.W.2d 429
hearing, the trial court reviewed the 1994 custody evaluation and transcripts of two telephone conversations between Melinda and Stuart and Josh. The transcripts reveal that Melinda was: pressuring Stuart to tell his teachers that he wanted to live with his mom; disparaging Tom to the children; and trying to alienate their affections for Tom. Finding it was in Stuart's best interest to remain with Tom, the trial court denied Melinda's motion for a change in custody.1 However, the trial court acknowledged Melinda's need for educational training and awarded her $600 in rehabilitative alimony beginning June 1996 and ending June 1998.2

[¶ 7.] After completing a two-year training course, Melinda filed, on June 22, 1998, a second motion to change custody of Stuart and a motion to increase alimony. The matter was heard April 28-29, 1999.

[¶ 8.] At this time, Zachary was married, working and attending college full-time and maintaining an independent residence in Aberdeen. The second oldest son, Adam, was attending college full-time and working two part-time jobs, but still resided at home. Joshua, 17-years-old, was a junior in high school and worked part-time. Stuart was 11-years-old and was in the fifth grade.

[¶ 9.] The trial court interviewed Stuart in chambers for 25 minutes, with both counsels present. During this interview, Stuart "expressed a strong preference to live with his mother" in Rochester, New York due to his "close relationship" with her and his feeling that Melinda's boyfriend, Clark, whom Melinda lived with, would provide a "safe environment" for him.

[¶ 10.] In evaluating Stuart's care under Tom, the trial court found: (1) the three older siblings do not regularly interact with Stuart; (2) Stuart is home alone for a minimum of two and one-half hours after school; (3) Tom's relationship with his girlfriend consumes much of Tom's time;3 and (4) Tom does not spend any time trying to develop Stuart's reading skills beyond putting him in special education classes.

[¶ 11.] Conversely, the trial court found that Melinda was able to provide "special attention" to Stuart by spending more time with him and working with him on his learning disability. The court also noted that Stuart would "flourish" if placed with Melinda because her work schedule permitted her to be available to Stuart more often.

[¶ 12.] The trial court concluded that it was in Stuart's best interest that Melinda be awarded primary physical custody of Stuart, conditioned on Melinda moving out of her boyfriend's home, maintaining her own apartment in New York and attending to Stuart's spiritual needs. The court also concluded that Melinda's alimony be increased to $1,000 per month and that Melinda receive $338 in monthly child support payments from Tom.

[¶ 13.] Tom motioned for reconsideration or new trial. A hearing was held on May 27, 1999 at which Tom told the court that Stuart met with a certified professional counselor in Sioux Falls after the court ordered that physical custody be changed to Melinda. The report reflects that Stuart was prompted, for years, by Melinda to say he wanted to live with her and he was stunned that the trial court awarded custody to Melinda. A transcript of a

611 N.W.2d 430
post-trial telephone conversation between Stuart and Melinda was also presented to the trial court. During this conversation, Stuart admitted that he was uncertain whether he actually wanted to live in New York. In response, Melinda told Stuart "everybody is telling you things that aren't true" and that he would love their new apartment once he got there because there were "a thousand" children in the complex and it had three swimming pools on site. The trial court determined there was no evidence of Melinda exerting influence over Stuart and denied the motion for reconsideration or new trial

[¶ 14.] Tom also motioned the court to stay the transfer of custody, which was scheduled for June 1, 1999, three days from the date of this hearing. Tom requested that the trial court allow Stuart to stay with him during the pendency of the appeal or until a complete home study was conducted in Rochester, New York because Melinda's new living arrangements had not been disclosed. The trial court determined that Melinda signed a 12-month lease for an apartment in Rochester, New York and denied Tom's motion. Therefore, Stuart has been living with Melinda in Rochester, New York since June 1, 1999.

[¶ 15.] Tom appeals and raises three issues.


[¶ 17.] Tom argues that: (1) it was not in Stuart's best interest to be uprooted from his home in South Dakota to live in Rochester, New York with Melinda; (2) Stuart's stated preference to live with Melinda was the result of Melinda's influence; and (3) Melinda did not present compelling reasons to separate the four siblings.

[¶ 18.] The primary determination in a custody dispute is to ascertain the best interest of the child. In determining the best interest of a child, the court must consider the child's "temporal, mental and moral welfare." SDCL 25-4-45; Fuerstenberg v. Fuerstenberg, 1999 SD 35, ¶ 22, 591 N.W.2d 798, 806 (citations omitted). "Trial courts possess broad discretion in deciding the best interests of a child; their decisions will only be disturbed upon a finding of abuse of discretion." Fuerstenberg, 1999 SD 35, ¶ 22, 591 N.W.2d at 807 (citations omitted). A court may consider seven factors in determining which parent will have primary care of the child: (1) parental fitness; (2) stability; (3) primary caretaker; (4) child's preference; (5) harmful parental misconduct; (6) separation of siblings; and (7) substantial change in circumstances. We review these seven factors:

[¶ 19.] A. Parental Fitness

[¶ 20.] Here, we determine which parent is better equipped to provide for the child's "temporal, mental and moral welfare." SDCL 25-4-45. Some of the factors considered in evaluating parental fitness include:

(1) mental and physical health;

(2) capacity and disposition to provide the child with protection, food, clothing, medical care, and other basic needs;


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