Schmidt v. Schmidt, s. 16456

• Decision Date: 26 April 1989
• Docket Number: 16465,Nos. 16456,s. 16456
• Parties: Chrisandra K. SCHMIDT, Plaintiff and Appellant, v. Richard L. SCHMIDT, Defendant and Appellee. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 367

444 N.W.2d 367

Chrisandra K. SCHMIDT, Plaintiff and Appellant, v. Richard L. SCHMIDT, Defendant and Appellee.

Nos. 16456, 16465.

Supreme Court of South Dakota.

Considered on Briefs April 26, 1989.

Decided July 26, 1989.

Sean M. O'Brien of Erickson, Helsper & O'Brien, P.C., Brookings, for plaintiff and appellant.

William J. Ellingson, Flandreau, for defendant and appellee.

SABERS, Justice.

Mother appeals a change in custody of the eldest of three boys to Father. Father appeals the requirement that he pay $250 monthly child support for two boys.

Facts

Father and Mother were divorced on July 13, 1984. They had three children during the marriage; David, Randy, and Michael. By stipulation, Father and Mother agreed that Mother would receive custody of the three boys. Custody was not contested at the divorce hearing, and Father appeared without counsel. Mother presented evidence in the form of testimony and exhibits. The trial court awarded custody of the three boys to Mother. As provided in the stipulation, Father was ordered to pay $375 monthly child support. ¹

Following the divorce, Father continued to farm near Flandreau, South Dakota. Mother lived in Brookings, South Dakota, where she worked at Minnesota Mining & Manufacturing (3M). On June 3, 1988, Father made a motion to modify the child custody and support provisions in the divorce decree. Father requested custody of the oldest, David, and that all three boys be permitted to reside with him during the summer months. The motion further requested that child support obligations be modified accordingly. A hearing was held on the motion on July 25, 1988.

David was fourteen at the time of the hearing. Father introduced evidence showing that David enjoyed the farm and preferred to live with Father. On the farm, David did chores and repair work on an old car. According to Father's testimony, Randy, age eleven, and Michael, age nine, also enjoyed the farm.

Father introduced evidence that, while in Mother's custody, David had problems in school, including failing grades, numerous days absent, and a three-day suspension from school. He also presented evidence that David had gotten in trouble with the law in a minor incident involving two friends. Father was upset that Mother had not notified him of this incident. Father also introduced evidence that the Flandreau school system had a special program which gave assistance and training similar to the one David was enrolled in at Brookings. Father testified that a neighbor, a substitute teacher in the Flandreau school system, agreed to tutor David to improve his grades.

Mother expressed concern for David's safety on the farm because Father permitted him to operate farm machinery and an unlicensed and uninsured automobile. However, she admitted that she gave no thought to David's operation of a 1000cc Harley Davison on the highway without a motorcycle license. She testified to her belief that Father was unconcerned with David's education because Father did not finish high school, failed to attend any parent-teachers' conferences or show other interest in David's education. Mother also expressed concern about the effect of separating the three boys.

David testified at the change of custody hearing. He indicated that though he loved both parents and felt both were good parents, he preferred to live with Father. Following this testimony, the trial judge spoke with David alone in chambers where David again expressed a desire to live with Father.

On September 12, 1988, the trial court amended the original divorce decree and gave Father custody of David. The decree was also modified to permit all three boys to live with Father during the summer months, with the exception of three weeks when all three would be with Mother. Father's monthly child support was reduced to $250 and reduced further to $125 during the summer months when all three boys stay with Father. Mother appeals the custody change and denial of attorney fees. Father appeals the amount of child support. We affirm the change of custody and denial of attorney fees and reverse and remand on child support.

1. Change of custody.

As a general rule, a parent seeking a change of custody must show 1) a substantial change of circumstances, and 2) that the welfare and best interests of the child require modification. Mayer v. Mayer, 397 N.W.2d 638 (S.D.1986); Kolb v. Kolb, 324 N.W.2d 279 (S.D.1982); Masek v. Masek, 90 S.D. 1, 237 N.W.2d 432 (1976). However, when custody is not contested in the divorce, the party seeking a change of custody is not required to show a substantial change of circumstances. Mayer, supra; Flint v. Flint, 334 N.W.2d 680 (S.D.1983); Kolb, supra; Haskell v. Haskell, 324 N.W.2d 423 (S.D.1982).

Mother argues that custody was contested in the divorce and Father failed to meet his burden for a change of custody. She argues the trial court heard evidence and found that it was in the best interests of the children to grant her custody. She rejects the claim that custody was based on a stipulation of the parties and argues that no such stipulation exists in the record. In fact, the parties' stipulation regarding custody and other matters appears in the record. Father and Mother agreed that Mother should receive custody, subject to reasonable visitation. Father did not present evidence at the divorce hearing or contest the custody issue. It is clear that the trial court relied on the stipulation as the decree mentions and follows its terms. As stated in Flint, supra:

Since here the parties stipulated that father would have custody of the daughters, the Kolb decision removes the element of substantial change of circumstances from the burden of proof. Kolb, supra. However, the moving party, ... is left with the burden of showing that the welfare and best interests of the child require modification.

Id. at 681.

Mother argues that the findings of fact do not establish that the best interests of the child require modification. In part, the findings provide: "there is a need for a closer relationship with David and his father and a need for closer supervision which the Court feels he will get when living and working with his father on the farm" and that "These facts indicate to the Court that a separation from his current friends and acquaintances would be in his best interest."

It is evident that David was having problems while in his mother's custody. Father testified that Mother failed to give adequate supervision and discipline to David and that he planned to rectify this situation. The court apparently believed this testimony in concluding that David needed closer supervision from Father. The court also recognized the bad influence which friends had upon David. The evidence showed that David enjoyed the farm and preferred to live with Father. In addition to David's testimony concerning his preference, the trial judge spoke with David alone in chambers. SDCL 30-27-19 provides that a child's preference is a proper consideration for the court in determining the child's best interests. The trial court had an opportunity to speak with David and observe the parties at the hearing. We cannot say that the trial court erred in finding that the best interests of the child required modification.

Mother also argues that the trial court's findings fail to show compelling reasons to separate David from his brothers. She claims that the two younger boys look up to David and share a very close bond which would be harmed by their separation.

We have held that the best interests of the child require compelling reasons to separate siblings. Adam v. Adam, 436 N.W.2d 266 (S.D.1989); Mayer, supra. The trial court must make adequate findings which show compelling reasons to split custody of siblings. Mayer, supra.

In this case the court found compelling reasons to split custody of the children. The court relied in part on David's preference to live with his father. While Mayer states that a child's preference alone may not constitute a compelling reason, there is other evidence supporting the court's finding. As discussed above, the evidence showed David's need for a change from his environment in Brookings. Further, the evidence indicated that split custody would not be harmful to the boys' relationship. David was entering high school in the fall, while his brothers were both in grade school. David testified that the brothers got along but he did not share many activities with his younger brothers. The court may properly consider age differences and different interests in determining whether compelling reasons exist. Adam, supra. More importantly, David and his brothers will be within one-half hour of each other and spend the summer months together. The arrangement may provide as much quality time together as before. Unlike Mayer, the sibling relationship between David and his brothers will not be completely broken. Under these circumstances, the court did not err in finding compelling reasons to split custody of David and his brothers during the school year. The court did not abuse its discretion in the change of custody.

2. Mother's attorney fees.

Mother argues that the court erred in summarily denying her attorney fees because the court failed to set forth the factors it considered. She argues that this requires reversal and remand for redetermination of this issue. Mother relies on Pengra v. Pengra, 429 N.W.2d 754 (S.D.1988), which states:

The record here does not indicate what, if any, factors the trial court considered, leaving this court with nothing to review. We reverse and remand for a redetermination of this issue.

Id. at 757. Father argues that Mother failed to introduce evidence to permit the court to evaluate her claim for attorney fees. He claims that the only evidence concerning attorney fees was the net monthly income of the parties, which showed Mother's income was higher than Father's. This is sufficient to distinguish the...