Schmitz v. Schmitz

• Decision Date: 15 September 1983
• Docket Number: No. 13980,13980
• Citation: 351 N.W.2d 143
• Parties: Kenneth P. SCHMITZ, Plaintiff and Appellant, v. Catherine C. SCHMITZ, Defendant and Appellee. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 143

351 N.W.2d 143

Kenneth P. SCHMITZ, Plaintiff and Appellant, v. Catherine C. SCHMITZ, Defendant and Appellee.

No. 13980.

Supreme Court of South Dakota.

Considered on Briefs Sept. 15, 1983.

Decided July 3, 1984.

Phillip O. Peterson of Frieberg, Peterson & Travis, Beresford, for defendant and appellee; Martin G. Farrell, Legal Intern, Frieberg, Peterson & Travis, Beresford, on brief.

PER CURIAM.

In this divorce action the husband (appellant) appeals from a judgment awarding custody of the parties child to the wife (appellee). We affirm.

Appellee was thirty-five years old at the time of trial, has a B.S. degree in nursing and has worked as a critical care nurse. She was divorced from her first husband in 1972 and was awarded custody of their two children, George, who was in his pre-teens, and Kim, who was a teenager at the time of trial.

Appellee later met Fred Good who had a hotel on a Carribean island off the coast of Belize, Central America. With the possibility of a job there, she and her children moved to Good's Carribean hotel. The prospective job opportunity there did not materialize, however. She found the island isolated and Belize to be "very different culturally, very different intellectually; that there was just many, many major changes in lifestyle that were difficult to adjust to." After arranging for the care of her children, she entered Yankton's Sacred Heart Hospital for psychiatric care. Appellant initially was her therapist at the hospital.

Appellant was forty-nine years old at the time of trial and had been an ordained Catholic priest. After he left the priesthood, he received a doctorate degree in counseling psychology and educational psychology. As appellee's hospitalization in Yankton neared an end the parties discovered that an emotional relationship had grown. A few months after appellee's release in March 1979, the parties married.

When they married, the parties agreed that appellee would continue her education to become a physician. Appellant agreed to be the "breadwinner" and to undertake domestic tasks so appellee could study and have time for her children. When they decided to have a child the pregnancy was planned so that the child would be born during summer vacation, before appellee began school.

During the pregnancy and after Erik was born in July 1980, some conflicts in the marriage arose. Appellant informed appellee that Erik could "bond" to only one parent. Appellant prevented appellee from holding, bathing, or breastfeeding the child. Appellant's tactics of frustrating appellee's efforts at parenting included physically pushing appellee away from the child, choking her, and leaving the home with the child and returning when the child was asleep. Appellant also often refused to communicate or have any contact with appellee for up to six weeks at a time while they lived together in the same house.

A considerable amount of testimony was devoted to appellee's behavior and mental condition. According to appellant, after Erik was born and appellee had returned to school, she occasionally made suicidal statements, was autistic, screamed until she passed out, or angrily slammed doors. Appellant contends that appellee occasionally appeared nude in front of the children.

Dr. Daryl Stephenson was the psychiatrist who treated appellee when she was first admitted to the Yankton hospital. Besides being a social acquaintance of appellant's, Dr. Stephenson worked with appellant in diagnosing appellee at the time she was admitted to the hospital. Although Dr. Stephenson's opinion was that appellant was fit to have custody of the child, he also testified that appellee was not unfit. Another expert, who was a clinical psychologist, testified to appellee's personality traits and had the opinion that appellant would be the better choice for custody of the child.

Appellee's expert was a retired psychiatrist who had practiced medicine for thirty-nine years. He acknowledged the weaknesses in appellee's personality but testified that appellee did "not show any evidence of illness at this particular period of time that would contradict her taking care of her own children."

Prior to trial appellant made a motion for a "home study" to be done either by an expert retained by appellant or an expert appointed by the court. The court granted the motion and requested a court services officer to do the report. The twenty-two page report included summaries of interviews with the parties and individuals who were acquainted with them socially and/or professionally. Another single page of the report gave the officer's summary and a recommendation that custody of the child be given to appellee. A fair reading of appellant's deposition indicates that this report was available to appellant at that time, approximately a month before the trial. Appellant was also aware of the officer's...