Shoop v. Shoop, 16890

Decision Date21 May 1990
Docket NumberNo. 16890,16890
Citation460 N.W.2d 721
PartiesJanet SHOOP, Plaintiff and Appellee, v. Ellis John SHOOP, Defendant and Appellant. . Considered on Briefs
CourtSouth Dakota Supreme Court

Reed C. Richards of Richards & Richards, Deadwood, for defendant and appellant.

Thomas E. Brady of Richards, Hood & Brady, P.C., Spearfish, for plaintiff and appellee.

SABERS, Justice.

John Shoop appeals a decision denying his motion for change of custody, or, in the alternative, change in his child support obligation.

Facts

John and Janet Shoop were married in 1979 and divorced in 1987. Two children were born during the marriage, Justin on August 20, 1979, and Joshua on March 19, 1983. By stipulation, the divorce decree provided for joint legal custody of the children with physical custody in Janet. John agreed to pay $500 a month in child support.

Janet's boyfriend lived with her and the children from May 1, 1988, through May 20, 1989. As a result of this relationship, Janet became pregnant and gave birth to another son.

In February of 1989, John stopped making child support payments. Consequently, in April of that year, Janet started contempt proceedings against him. The following month, the court entered judgment of contempt against John, requiring him to pay all accrued child support by June 15 and execute a wage assignment.

Shortly after Janet started the contempt proceedings, John moved for change of custody, or, in the alternative, modification of his child support obligation. John claimed change of custody was warranted due to Janet's live-in relationship with her boyfriend and the child born out of wedlock. A hearing was held on July 24, 1989, and the court denied both motions, announcing its decision on August 10. The court concluded that the best interests of the children were served by continuing the present custody arrangement. The court supported its decision by finding that: "As a single parent, working part-time, [Janet] has done a reasonably good job of caring for the children." According to the court: "The children are in generally good health and it appears that [Janet] has for the most part attended to their medical needs." The court further found that:

[Janet] has provided a good, appropriate, suitable and apparently a stable home for the children. To now change custody under the current circumstance would disrupt the children and their stability, separate them from their step-brother with whom they have a very good and loving relationship, separate them from their friends, classmates, and school system in which they are accustomed, and special pre-first schooling program for Joshua.

In contrast, the court found John's proposed living arrangements unacceptable:

[John] proposes that these children be placed with him in a home in which the accommodations have not been described or explained to this court with the exception that it [is] somewhere in the country and there is no running water. When [John] does exercise visitation, he takes the children to cousins or relatives and apparently does not use his home, which suggests to this court that in fact it is inappropriate or otherwise unsuitable at least for any long-term custody relationship.

John's commitment to the children is also unclear. As the court explained:

Between February and April, 1989, [John] saw the children on one occasion and had little if any other contact during that time period. This caused stress to the children because they did not understand why their father had suddenly stopped visiting them. Justin's teacher reported to [Janet] that Justin seemed withdrawn and apparently felt abandoned because of lack of contact with his father. Joshua asked if his father was dead or what.

Although [John] has had joint legal custody of the children, he has made little if any effort to be involved in either school or organized recreational activities.

The court also found that "[a]lthough [John] complains of [Janet's] relationship with [her boyfriend], in fact [John] maintained on occasion a sleeping arrangement with his girlfriend in the presence of the children." In short, John's conduct "is nothing different than that of [Janet] to which [John] objects."

The court also determined that the current child support amount was consistent with statutory guidelines and provided John visitation rights every other weekend, Christmas Day, Memorial Day weekend, the Fourth of July, and two weeks during the summer. Janet was awarded a judgment against John for attorney fees, costs, and expenses, totalling $1,792.07. John appeals, claiming the court erred on custody, child support, visitation, and attorney fees.

Scope of review.

Janet claims John's submission to the court of his objections to Janet's proposed findings of fact was untimely, and, as a result, the scope of our review is limited. The procedure for submission of proposed findings is governed by SDCL 15-6-52(a), which provides, in part:

The court may direct counsel for the prevailing party to prepare findings and counsel shall, within ten days after announcement of decision, unless otherwise ordered, prepare, serve and submit to the court with copies to opposing counsel, proposed written findings of fact and conclusions of law together with the proposed judgment or decree.

The court shall not sign any findings therein prior to the expiration of five days after service of the proposed findings during which time the parties may in writing submit to the court and serve on their adversaries their objections or additional proposals. Thereafter the court shall make or enter such findings and conclusions as may be proper.

(emphasis added). The late filing of proposed findings or objections to an opponent's proposed findings limits this court's review on appeal to "whether the findings of fact support the conclusions of law and judgment." GMS, Inc. v. Deadwood Social Club, Inc., 333 N.W.2d 442, 443 (S.D.1983); accord Burke v. Lead-Deadwood Sch. Dist. No. 40-1, 347 N.W.2d 343 (S.D.1984). As a result, "the facts are considered conclusive and may not be challenged." Massey Ferguson Credit Corp. v. Bice, 450 N.W.2d 435, 444 (S.D.1990).

John did not serve his objections and proposed findings until after the court issued its findings of fact and conclusions of law. In spite of this late service, John suggests that he should not be penalized for his tardiness because he claims Janet also violated SDCL 15-6-52(a) by not submitting her proposed findings within ten days after the court announced its decision. However, that requirement only applies when the court directs the prevailing party to submit findings and does not specify a filing schedule. Here, the court merely stated that counsel "may " propose findings. Thus, the ten-day requirement was not applicable to Janet. On the other hand, the five-day response requirement applies to John. Once proposed findings are served, the court is prevented from issuing its findings for only five days, during which time opposing counsel must submit any objections or additional proposals. Since John failed to meet this requirement, his objections are too late to indicate disagreement with the court findings and our scope of review is accordingly restricted to determining whether the findings of fact support the conclusions.

1. Custody

John claims the court abused its discretion in failing to award him physical custody of the children due to Janet's relationship with her boyfriend. When custody is not contested in a divorce proceeding, the parent seeking a subsequent change of custody has the burden of proving by a preponderance of the evidence that the best interests and welfare of the children require a change of custody. Olson v. Olson, 438 N.W.2d 544 (S.D.1989); accord Schmidt v. Schmidt, 444 N.W.2d 367 (S.D.1989). When determining what is in the best interests of the children, the court is to consider the temporal, mental, and moral welfare of the children. However, immoral conduct by one parent does not automatically render that parent unfit to have custody of the children and require an award of custody to the other parent. Williams v. Williams, 425 N.W.2d 390 (S.D.1988). The trial court has broad discretion in resolving claims for child custody modification, and we will reverse only upon a showing of an abuse of discretion. Nauman v. Nauman, 445 N.W.2d 38 (S.D.1989).

John claims the live-in relationship Janet had with her boyfriend is immoral and mandates a change of custody. He cites numerous decisions from other jurisdictions in which the custodial parent was living with a boyfriend or girlfriend and change of custody was ordered. John fails to recognize, however, that a change of custody cannot be based upon the conduct of only one parent. Custody will be changed only if it is shown by a preponderance of the evidence that the children's best interests require such a change. To make this determination it is necessary to consider the overall conduct and abilities of both the custodial and the non-custodial parent. Even if the custodial parent engages in immoral conduct, that parent may still provide better overall care for the children than the non-custodial parent.

Given the trial court's findings of fact, which we are bound to consider conclusive, we cannot say the court abused its discretion in refusing to order a change of custody. John complains of Janet's live-in relationship with her boyfriend, yet he maintained on occasion a sleeping arrangement with his girl friend in the presence of the children. Moreover, he offers unacceptable living arrangements for the children and his commitment to the children is questionable. Janet, on the other hand, "has provided a good, appropriate, suitable and apparently stable home for the children." Under the conclusive findings of fact, it is evident the court did not abuse its discretion in concluding that the best interests of the children require that physical custody remain...

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