Quinn v. Mouw-Quinn

• Citation: 552 N.W.2d 843,1996 SD 103
• Decision Date: 15 September 1995
• Docket Number: No. 19045,D,MOUW-QUIN,19045
• Parties: Patrick G. QUINN, Plaintiff and Appellee, v. Tamara S.efendant and Appellant. . Considered on Briefs
• Court: Supreme Court of South Dakota

Page 843

552 N.W.2d 843

1996 SD 103

Patrick G. QUINN, Plaintiff and Appellee, v. Tamara S. MOUW-QUINN, Defendant and Appellant.

No. 19045.

Supreme Court of South Dakota.

Considered on Briefs Sept. 15, 1995.

Decided Aug. 14, 1996.

Mary Ann Giebink of Galland Legal Clinic, Sioux Falls, for plaintiff and appellee.

Michael B. Crew of Crew & Crew Attorneys, Sioux Falls, for defendant and appellant.

GILBERTSON, Justice.

¶1 Tamara S. Quinn (Tamara) appeals the provisions of a divorce decree granting Patrick G. Quinn (Patrick) visitation privileges with one of her children, Samantha, and obligating Patrick to pay child support for that child. We affirm.

FACTS

¶2 The facts of this case are not in dispute and are submitted under an agreed statement of the record. The parties were married in 1984 and divorced in 1986. No children were born of this first marriage. On November 15, 1988, Tamara gave birth to a daughter, Samantha. Patrick is not the father of Samantha. The parties remarried in 1989 and two children were subsequently born during the second marriage, Jacob (dob 5-25-90) and Connor (dob 8-8-91).

¶3 After the first divorce, when Tamara became pregnant with Samantha, she asked Patrick for help although he was not the father. Patrick attended child birth classes and supported Tamara. Upon remarriage in 1989, Patrick accepted Samantha as his own child. To this day, Samantha knows none of the circumstances of her heritage. Patrick has cared for Samantha as a dependent and carries her on his insurance policies. Samantha refers to Patrick as "Daddy" and he is the only father she has ever known. In short, the circuit court found that Patrick and Samantha have established a parent-child relationship.

¶4 On November 4, 1993, Patrick served Tamara with a summons and a complaint for divorce in which he sought custody of all three children. Tamara answered and counterclaimed for custody of the children. The divorce was tried before the circuit court and, on November 15, 1994, the court entered its findings of fact, conclusions of law and judgment and decree of divorce. Custody of the children was awarded to Tamara subject to Patrick's rights of reasonable visitation. The trial court found that it would be in the best interests of Tamara's children for Patrick to have visitation with Samantha. Patrick was granted visitation with Samantha on the same schedule as his visitation with the other children. The circuit court also found that Patrick should pay child support to Tamara for the support of Samantha as well as Jacob and Connor. The divorce decree was accordingly entered and this appeal followed.

ISSUE ONE

¶5 Did the circuit court err in granting Patrick visitation

privileges with Samantha?

¶6 The crux of this issue is whether there is authority for the circuit court to authorize this type of visitation. Patrick argues that such authorization exists as set forth in SDCL 25-4-45.

In an action for divorce, the court may, before or after judgment, give such direction for the custody, care, and education of the children of the marriage as may seem necessary or proper, and may at any time vacate or modify the same. In awarding the custody of a child, the court shall be guided by consideration of what appears to be for the best interests of the child in respect to the child's temporal and mental and moral welfare .... (emphasis added).

¶7 Patrick also points out that SDCL 30-27-23, which statutorily granted a preference to a parent in custody proceedings, was repealed by our legislature in 1993 (1993 S.D.Sess.Laws ch. 213 § 170) and in its place SDCL 29A-5-203 was enacted which now allows "any other interested person" to petition for guardianship and/or conservatorship. Patrick argues these statutory changes allow third parties to seek custody of a child "presumably against the wishes of natural parents."

¶8 We have held that the right of visitation derives from the right of custody. Cooper v. Merkel, 470 N.W.2d 253, 255 (S.D.1991). However the legislature has clearly noted that one concept is not synonymous with the other. ^*

¶9 SDCL 25-4-45 does not support Patrick's argument. That statute authorizes a divorce court to apply the best interests standard to custody and visitation disputes over "children of the marriage." However, Samantha is not one of the "children of the marriage" between Patrick and Tamara. Perry v. Superior Court of Kern County, 108 Cal.App.3d 480, 166 Cal.Rptr. 583 (Cal.Ct.App.1980), contra Carter v. Brodrick, 644 P.2d 850 (Alaska 1982). Thus that statute is inapplicable.

¶10 Likewise the repeal of the parental preference statute found in SDCL 30-27-23 and the enactment of SDCL 29A-5-203 which allows "any other interested person" to petition for guardianship and/or conservatorship is not controlling in this case. This is not a case which involves a guardianship or a conservatorship, simply visitation.

¶11 Tamara relies upon Cooper, supra and Matter of Guardianship of Sedelmeier, 491 N.W.2d 86 (S.D.1992) as authority for her argument that a step-parent has no visitation rights. Both Cooper and Sedelmeier are premised upon the rationale that, absent extraordinary circumstances, no visitation can be granted to a non-parent against the wishes of the natural parent absent a showing of unfitness on the part of the parent. However, here, the issue is not one of parental fitness, but, rather, what is in the children's welfare. It is also a question of visitation rather than permanent custody. The question of visitation has no more to do with any claim of unfitness of Tamara as a custodial parent than all the other divorce proceedings in this state where visitation is routinely granted to the non-custodial parent. In the end, Tamara retains the custody of all three children regardless of the outcome of this appeal.

¶12 The circuit court has already made a finding that it is in the best interests of Jacob and Connor that they exercise regular visitation with Patrick. Tamara has not appealed this finding. More importantly, the circuit court also made the following finding: "[i]t would be in the best interest of Samantha as well as Jacob and Connor for the Plaintiff to have visitation with Samantha on the same schedule that Plaintiff has visitation with the two boys." (emphasis added).

¶13 "Extraordinary circumstances," recognized in Sedelmeier as an independent basis for allowing step-parent visitation, denotes far more than a simple showing that visitation would be in the best interests of the child. Sedelmeier, 491 N.W.2d at 88. The facts before us satisfy this heavier burden. This case is a clear departure from the customary dynamics of a step-parent and step-child relationship. Significantly, there is no indication that Samantha's biological father has ever had any contact with her whatsoever. Patrick is the only father Samantha has known in her seven years of life. She refers to him as "Daddy." Their relationship is that of a father and daughter in all respects except for that of biology. The impact of preventing Samantha from having contact with the only father she has ever known is likely to be devastating. This is especially true when her half-siblings (whom she believes to be full siblings) will be permitted to regularly visit with Patrick.

¶14 In the normal visitation case, it would be appropriate that all the "children of the marriage" should visit the non-custodial parent at the same time as it is in their best interests to do so. Mitzel v. Black Cloud-Walberg, 511 N.W.2d 816 (S.D.1994); Adam v. Adam, 436 N.W.2d 266 (S.D.1989); Mayer v. Mayer, 397 N.W.2d 638 (S.D.1986). Here, no argument is made, nor can it be made under the facts of this case, to justify that it would be anything but extremely detrimental to the welfare of all three children to exclude Samantha from this family contact. As such, to now affirm court-ordered visitation for two of the children and forbid it for the third, devastates Jacob and Connor as well as Samantha.

¶15 Courts in their role of "parens patriae" have the right and obligation to protect children from the sometimes selfish and destructive actions of divorcing parents. The interests of the three children here are far more important than any petty dispute between parents and step-parents. If, as we have often said, siblings' welfare and best interests are served by being together in custody arrangements, then it follows that remaining together in visitation will probably also serve those interests, especially where the children are so close in age. The responsibility is clear: "[i]t is the trial court's duty to see that the children are protected at every turn.... The parents' personal wishes and desires must yield to what the court in the discharge of its duty regards as the children's best interest." Jasper v. Jasper, 351 N.W.2d 114, 117 (S.D.1984). In Williams v. Williams, 425 N.W.2d 390, 393 (S.D.1988) we recognized that courts, acting as "parens patriae," have the authority and obligation to assure children are not placed in arrangements detrimental to their emotional and physical well-being.

¶16 The circuit court has jurisdiction over Tamara as the mother of the three children via these divorce proceedings. We find no statutory prohibition to preclude the circuit court from enforcing the spirit as well as the letter of the law by ordering the mother, as custodian of all three children, to use her best efforts to ensure visitation by all three children jointly and thus avoiding their unjustifiable and unnecessary separation.

¶17 This is not to be seen as advancing the interests of the step-father at the expense of the natural mother. It is a continued recognition that the temporal, mental and moral welfare of children are paramount. This strikes the proper balance between a natural parent's custodial rights to his or her child and the child's personal welfare. Children come first. If the circuit court concludes it is in all three children's...