Sneesby v. Davis, 13228

• Decision Date: 22 July 1981
• Docket Number: No. 13228,13228
• Parties: Delores Jean SNEESBY, formerly Delores Jean Davis, Plaintiff and Appellee, v. Raymond Lee DAVIS, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 565

308 N.W.2d 565

Delores Jean SNEESBY, formerly Delores Jean Davis, Plaintiff and Appellee, v. Raymond Lee DAVIS, Defendant and Appellant.

No. 13228.

Supreme Court of South Dakota.

Argued April 22, 1981.

Decided July 22, 1981.

Neil P. Beets, Belle Fourche, for plaintiff and appellee; Leroy Hill, Belle Fourche, on brief.

Richard A. Pluimer of Stephens, Quinn, Carr, Tschetter & Buckmaster, P.C., Belle Fourche, for defendant and appellant.

HENDERSON, Justice.

ACTION

Raymond Lee Davis (father) appeals from an order of the trial court which modified a divorce decree granting Delores Jean Sneesby (mother) custody of the parties' minor child. We reverse.

FACTS

The parties were divorced in April of 1978 after being married for approximately twenty-two years. Five children were born as issue of this marriage, only one of which, Jully, being of minor age at the time of this appeal. The divorce decree provided that the father have custody of both Jully and Wesly, the parties' two youngest children, who were then ages ten and seventeen, respectively.

Subsequent to two previous unsuccessful attempts to have the trial court modify the divorce decree by granting her custody of Jully, the mother filed an order to show cause on June 10, 1980. Consequently, a hearing was held on June 24, 1980, which was continued on August 15, 1980, whereat the trial court heard the testimony of the parties, Jully, and other pertinent witnesses. On August 29, 1980, the trial court modified the divorce decree and granted custody of Jully to the mother, subject to the father's visitation rights. This appeal ensued.

ISSUE

Did the trial court abuse its discretion by awarding custody of the parties' minor child to the mother? We hold that it did.

DECISION

A trial court has broad discretion in awarding custody of minor children and this Court will not interfere with that discretion absent a clear case of abuse. Engels v. Engels, 297 N.W.2d 489 (S.D.1980); Holforty v. Holforty, 272 N.W.2d 810 (S.D.1978); Pochop v. Pochop, 89 S.D. 466, 233 N.W.2d 806 (1975). This exercise of discretion, however, must be supported by a sound and substantial basis in the record. Haskell v Haskell, 279 N.W.2d 903 (S.D.1979); Masek v. Masek, 89 S.D. 62, 228 N.W.2d 334 (1975).

SDCL 25-4-45 states that "(i)n 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." This Court has held:

(T)he parent seeking modification of custodial rights has the burden of proving by a preponderance of the evidence that (1) there has been a substantial and material change of circumstances since the decree of divorce was entered, and (2) the welfare and best interests of the children require the modification being sought.

Engels v. Engels, 297 N.W.2d at 491, quoting from Menning v. Menning, 272 N.W.2d 828, 829-30 (S.D.1978). See also SDCL 30-27-19. The party seeking modification of a custody decree has the burden of proving both factors by a preponderance of the evidence. Warder v. Warder, 87 S.D. 133, 203 N.W.2d 531 (1973); Huckfeldt v. Huckfeldt, 82 S.D. 344, 146 N.W.2d 57 (1966).

In its order of modification, the trial court stated that a substantial and material change of circumstances has occurred since the implementation of the divorce decree. The trial court based its holding on the fact that, at the time of the divorce decree, all five of the parties' children were living with the father. By June of 1980, Jully was the only child remaining with the father; the other four children having left home. In any event, neither party contends that a substantial and material change of circumstances has not occurred since their divorce. The sole issue, then, is whether the mother met the required burden of proof to modify the decree regarding Jully's best interests. Obviously, if the record discloses that the mother failed to meet her burden, the trial court has abused its discretion. The trial court entered an order which was signed, attested, and filed. It had previously filed a memorandum decision.

"We are limited in our review to consideration of only those orders actually entered by the trial court. As we said in Wall v. Wall, S.D., 260 N.W.2d 644, 648: 'It is now settled in this state that the memorandum opinion is not material and is of no binding force and effect as a matter of law either upon the trial judge himself or anyone else. Christiansen v. Strand, 82 S.D. 416, 420, 147 N.W.2d 415, 417 (1966).' "

Frisbee v. Dale, 272 N.W.2d 806, 807 (S.D.1978).

Prior to their divorce, the parties and their children made their home in Belle Fourche, South Dakota. The father continues to live and work in Belle Fourche while the mother has since moved to Sturgis, South Dakota. The mother remarried in the early part of 1978 and is employed as a police officer for the City of Sturgis. Jully has lived and attended school in Belle Fourche all her life.

The mother testified at the order to show cause hearing of August 1980 that she felt it was imperative that Jully be raised with a motherly influence, which she felt she could provide. Testimony by the mother also indicated that she thought that her influence would be in Jully's best interest. According to the mother, she was effectively prevented from exercising her visitation rights due to the father's indifference in making sure Jully was available on the designated visitation dates. When asked at the hearing what was her primary reason for seeking a change of custody, the mother replied: "I love my daughter, and I want her with me. I miss my daughter."

At the June 1980 order to show cause hearing, the father denied that he ever intended to deny the mother her visitation rights. The father testified that he would see to it that Jully spend the summer with her mother, as provided for in the original custody arrangement. Jully did, in fact, reside with her mother and step-father in Sturgis during the summer of 1980. The father also testified that he felt Jully's wishes with regard to her custody should be respected.

We now turn to the testimony of Jully, who was approximately two months shy of thirteen years old at the time of the August 1980 hearing. Jully testified that her father suggested to her on more than one occasion that she telephone her mother, although he did not force Jully to visit her mother. During her most recent summer visitation with her mother, Jully testified that she felt uncomfortable at her mother's home. When queried with regard to possibly discussing female adolescent problems with her mother, Jully replied that she felt uncomfortable discussing such things with her mother due to the lack of a "full relationship" between the two. It was also brought out at the August 1980 hearing that, in a letter written to her father's trial counsel during the summer of 1980, Jully referred to her mother as a "bitch." The thrust of Jully's testimony is epitomized by her following statement: "Well, I think that I should stay with my dad because I want to. This is where my home and friends are. And I think mom is entitled to visitation. And this time I would keep to (th)em."

Skyler Clapp, a family counselor employed by the Belle Fourche school system, visited with Jully and her father at their home several times prior to the commencement of this action. Clapp testified that the father's home was always clean and pleasant. After testifying that the presence of a maternal influence would obviously be desirable for Jully, Clapp stated that Jully's father provides her with a certain amount of mothering, as does Jully's peer group. Clapp further stated that, if Jully ever felt comfortable enough to seek guidance or support from her mother, the fact that Jully lived with her father would not necessarily preclude her from obtaining such an influence. The homes of Jully's parents are approximately twenty-five miles apart. If the mother was awarded custody, Clapp believed that Jully's resulting resentment toward the change "would provide a huge stumbling block for her to overcome in working out a relationship with her mother(.)" Clapp also testified that he felt a change of custody would cause Jully to become depressed and withdrawn. Furthermore, Clapp testified that, in his opinion, Jully and her father have an excellent relationship with one another and custody of Jully should remain with her father in Belle Fourche, although the mother should be allowed to develop a...