Simunek v. Auwerter, No. 25792.

• Court: Supreme Court of South Dakota
• Writing for the Court: ZINTER, Justice.
• Citation: 2011 S.D. 56,803 N.W.2d 835
• Parties: Jeremiah S. SIMUNEK, Plaintiff and Appellee,v.Ashley (Simunek) AUWERTER, Defendant and Appellant.
• Docket Number: No. 25792.
• Decision Date: 07 September 2011

803 N.W.2d 835
2011 S.D. 56

Jeremiah S. SIMUNEK, Plaintiff and Appellee,
v.
Ashley (Simunek) AUWERTER, Defendant and Appellant.

No. 25792.

Supreme Court of South Dakota.

Considered on Briefs Aug. 22, 2011.Decided Sept. 7, 2011.

[803 N.W.2d 836]

Terri L. Williams of Gunderson, Palmer, Nelson & Ashmore LLP, Rapid City, South Dakota, Attorneys for defendant and appellant.Debra D. Watson, Rapid City, South Dakota, Attorney for plaintiff and appellee.ZINTER, Justice.

[¶ 1.] Ashley Auwerter (Mother) and Jeremiah Simunek (Father) married, had C.S.S. (Child), and later divorced. Mother and Father agreed to share legal custody, with Mother having primary physical custody. Shortly before Child entered kindergarten, Father moved to obtain primary physical custody. The circuit court granted Father's motion and Mother appeals. We affirm because the court's findings and conclusions reflect a balanced and systematic application of the relevant factors governing child custody.

Facts and Procedural History

[¶ 2.] After two years of marriage, Mother and Father separated. Mother obtained primary physical custody of Child after the separation. Father subsequently filed for a divorce. Father proposed that Mother remain the primary physical custodian of Child and that he be allowed liberal parenting time. Mother and Father agreed to this parenting plan, which was incorporated in the divorce decree.

[¶ 3.] Shortly after the separation, Father began dating Britni Mendel (Stepmother). Child met Stepmother one month after Father and Mother separated and before the divorce. Father and Stepmother later married and had a son (Half–Brother). Father and Stepmother live on Father's family's ranch. Father works for his family's construction and hotel businesses. He has enrolled Child in activities in the Hot Springs area.

[¶ 4.] Mother owns a home in Rapid City and is employed by the City of Rapid City. She has an associate's degree in business as well as a bachelor's degree in communications. Mother has enrolled Child in various activities in the Rapid City area.

[¶ 5.] Before Child was to begin kindergarten, Father moved to change primary physical custody. The circuit court ordered a child custody evaluation. The evaluator recommended a shared parenting plan. Mother requested a second child custody evaluation. The second evaluator also recommended a shared parenting plan, but suggested that Father have primary physical custody of Child when Child began kindergarten. Based upon these evaluations, Mother and Father entered into a second shared parenting agreement. As a part of this plan, Mother and Father agreed that Father would obtain primary physical custody when Child started kindergarten. Child was subsequently enrolled in kindergarten in Hot Springs.

[¶ 6.] When the time for kindergarten neared, Mother moved to modify the parenting plan and obtain another child custody evaluation. The court ordered another child custody evaluation. The evaluator noted that both parents had much to offer Child, but opined that it was in Child's

[803 N.W.2d 837]

best interests that Child be placed in Mother's primary physical custody.

[¶ 7.] Trial was held in August of 2010. After entry of findings and conclusions regarding the factors guiding child custody determinations, the court awarded Father primary physical custody. Mother appeals claiming that the circuit court abused its discretion in awarding Father primary physical custody.

Decision

[¶ 8.] We review child custody decisions under the abuse of discretion standard of review. Fuerstenberg v. Fuerstenberg, 1999 S.D. 35, ¶ 22, 591 N.W.2d 798, 807 (citations omitted). “An abuse of discretion occurs in a child custody proceeding when the trial court's review of the traditional factors bearing on the best interests of the child is scant or incomplete.” Kreps v. Kreps, 2010 S.D. 12, ¶ 25, 778 N.W.2d 835, 843 (quoting Pietrzak v. Schroeder, 2009 S.D. 1, ¶ 37, 759 N.W.2d 734, 743). “[W]e ... uphold the trial court's findings of fact unless they are clearly erroneous.” Kreps, 2010 S.D. 12, ¶ 25, 778 N.W.2d at 843 (citations omitted). Findings of fact are clearly erroneous when our “review of the evidence leaves ... a definite and firm conviction that a mistake has been made.” Id. (citations omitted).

[¶ 9.] The circuit court's review of a parent's request to change child custody is governed by the best interests of the child, considering the child's temporal, mental, and moral...