Spaulding v. Spaulding

• Decision Date: 10 May 1979
• Docket Number: No. 12483,12483
• Citation: 278 N.W.2d 639
• Parties: Marlene G. SPAULDING, Plaintiff and Appellant, v. Jerry R. SPAULDING, Defendant and Respondent.
• Court: South Dakota Supreme Court

Page 639

278 N.W.2d 639

Marlene G. SPAULDING, Plaintiff and Appellant, v. Jerry R. SPAULDING, Defendant and Respondent.

No. 12483.

Supreme Court of South Dakota.

Argued Feb. 21, 1979.

Decided May 10, 1979.

William H. Coacher, Sturgis, for plaintiff and appellant.

Thomas E. Brady, of Richards & Hood, P. C., Spearfish, for defendant and respondent.

FOSHEIM, Justice.

This is a divorce action. The trial court granted child custody to the respondent father. The propriety of that determination is the only issue on appeal.

The parties were married on May 24, 1967. They have two sons, Kody and Kacee Spaulding. The children were eight and seven years of age when this action was commenced.

The respondent is a truck driver. He owns at least one truck and hauls bentonite in the Black Hills area where he resides. Occasionally he also does long-distance trucking when local hauling is not available. At the time of trial he had been employed by a trucking firm in Colony, Wyoming. Appellant was not employed prior to the commencement of the divorce but was employed for brief periods during the pendency of this action.

Marital difficulties started some time in December, 1976. At that time Marlene asked Jerry Spaulding for a separation and requested that he leave the household. It is unclear precisely when the parties separated, but they were no longer living together as man and wife in July of 1977. In June, 1977, Marlene met a man whom the trial court found moved into the home of plaintiff and the children on or about August 1, 1977. Some time in September appellant left the trailer house in Belle Fourche where she and respondent had lived and moved into a motel room in Custer with her paramour and the children. They later moved to separate residences at Sturgis. The evidence shows that her companion had been convicted of various misdemeanors, but that he seemed to have a good relationship with the children. The trial court found that Marlene had moved three times, that the children had been enrolled in three different school systems since the separation and that the children were not of "tender years," but rather of an age when they need the association of their father. The custody determination apparently was based largely on the misconduct of the mother in having an illicit affair while she was still married to the defendant. The trial court made findings that this illicit affair was openly conducted in the presence of the children but did not specifically find or conclude that it had a detrimental effect on the children.

Upon review this court must give due regard to the opportunity of the trial court to judge the credibility of the witnesses and its findings will not be set aside unless they are clearly erroneous. SDCL 15-6-52(a). The trial court has broad discretion in awarding custody of minor children and we will not interfere with that discretion unless the record presents a clear case of abuse. Holforty v. Holforty, S.D., 272 N.W.2d 810 (1978); Pochop v. Pochop, 89 S.D. 466, 233 N.W.2d 806 (1975); Masek v. Masek, 89 S.D. 62, 228 N.W.2d 334 (1975); Oursland v. Oursland, 83 S.D. 382, 159 N.W.2d 922 (1968); Wiesner v. Wiesner, 80 S.D. 114, 119 N.W.2d 920 (1963); And Howells v. Howells, 79 S.D. 480, 113 N.W.2d 533 (1962).

SDCL 30-27-19 provides that in awarding custody of minor children the court is to be guided by the following considerations:

(1) By what appears to be for the best interests of the child in respect to its temporal and its mental and moral welfare; and if the child be of a sufficient age to form an intelligent preference, the court or judge may consider that preference in determining the question;

(2) As between parents adversely claiming the custody or guardianship, neither parent is entitled to it as of right, but, other things being equal, if the child be of tender years, it should be given to the mother; if it be of an age to require education and preparation for labor or business, then to the father.

As the above statute indicates, the primary consideration is the best interests of the child. ¹

This court has not had occasion to define precisely what "tender years" means. It appears, however, from an examination of our cases, that children of pre-elementary school age are generally assumed to be of "tender years." Wiesner v. Wiesner, supra; Septka v. Septka, 80 S.D. 299, 122 N.W.2d 766 (1963); Masek v. Masek, supra; Kester v. Kester, S.D., 257 N.W.2d 731 (1977); Hershey v. Hershey, 85 S.D. 85, 177 N.W.2d 267 (1970); and Holforty v. Holforty, supra. ²

We agree with decisions in other jurisdictions that children cannot be mechanically defined and whether they are of tender years is subject to considerations such as sex, physical and mental development, home environment, and the changing and evolving structure of the American family. Orezza v. Ramirez, 19 Ariz.App. 405, 507 P.2d 1017 (1973); Denham v. Martina, 214 Cal.App.2d 312, 29 Cal.Rptr. 377 (1963); Russell v. Russell, 20 Cal.App. 457, 129 P. 467 (1913); Ruthruff v. Ruthruff, 52 Idaho 330, 14 P.2d 958 (1932); Smith v. Smith, 90 Nev. 422, 529 P.2d 209 (1974); State v. Eisler, 270 Wis. 469, 71 N.W.2d 376 (1955).

Where a mother has been guilty of marital misconduct and there is no evidence of demonstrable effect of such conduct upon the child, it does not follow that she is an unfit person to have custody and that an award of custody to her is not in the best interest and welfare of the child. Kester v. Kester,supra; Hershey v. Hershey, supra; Dornbusch v. Dornbusch, 83 S.D. 524, 162 N.W.2d 283 (1968); Septka v. Septka, supra; and Wiesner v. Wiesner,supra.

If the mother's misconduct is committed in the presence of a child old enough to see and recognize her improprieties as such, then the harmful effect of her bad example upon the child is self-evident.

When the mother, by irresponsible conduct, indicates that her care and custody would be detrimental to the welfare of the child, custody may be awarded to the father. Hines v. Hines, 78 S.D. 464, 104 N.W.2d 375 (1960); Blow v. Lottman, 75 S.D. 127, 59 N.W.2d 825 (1953); Sweeney v. Joneson, 75 S.D. 213, 63 N.W.2d 249 (1954); and Septka v. Septka, supra.

Whether Kody and Kacee Spaulding were of tender years was a fact question for the trial court to determine, and the court did not abuse its discretion in finding that both boys were leaving the age of tender years and were entering upon the stage of their youth when the benefits of association with their father must be considered. ³

The judgment of the trial court is affirmed.

DUNN and MORGAN, JJ., concur.

HENDERSON, J., concurs specially.

WOLLMAN, C. J., dissents.

HENDERSON, Justice (concurring).

I concur with the majority opinion and desire to separately express additional reasons for the award of these two boys, ages eight and seven at the time of trial, unto their father by the trial court.

To me, the preferential custody right of a mother to children of tender years all hinges on the statutory phrase "other things being equal." In South Dakota, a mother has no statutory preferential right to the custody of children of tender years unless it can be established that the facts, or the equities of the case, are "equal."

How often in these divorce cases, when reviewing the evidence and the relative merits of who should receive custody, are the facts and equities "equal"? Rarely, I would dare say. SDCL 30-27-19 had its founding in the Revised Codes of the Territory of Dakota, A.D. 1877, § 127 of the Civil Code thereof, and it was lifted in toto and embraced into the South Dakota Revised Code of 1919, § 222 under the Substantive Provisions thereof. Later, it remained the law, word for word, in the South Dakota Code of 1939, § 14.0505.

This historic statute is in reality a "tie breaker" statute. This court, our trial judges, and the Bar of this state have labored over its interpretation since the days of the Dakota Territory. Whether the scales of justice are equally balanced in these child custody disputes is often dependent upon the eyes of the beholder. In its infinite wisdom, the 1979 Legislature repealed the "tender years" doctrine. Legal scholars and fathers alike will undoubtedly rejoice in its demise but in this case it is yet strongly advocated and still lives.

It is important to bear in mind that there are two principal paragraphs in SDCL 30-27-19. The primary consideration must be the best interests of the child in respect to its temporal, mental, and moral welfare. This inquiry cannot be solved by the trier of the fact except by contemplating alternatives. Father and mother must be compared as to who could provide the better educational, moral, physical, emotional, temporal, and mental benefits. The trial judge is in a position to more adequately consider and determine this parental assignment than the members of this court. If a trial judge conscientiously sorts out and compares the advantages and disadvantages of each contending parent, and the evidence comes out a "tie" as to who would be the best custodian, then, and Only then, does subsection (2) of SDCL 30-27-19 come into play. Historically, our trial courts have been vested with a great deal of discretion and have been reversed only where they clearly abused their discretion. As recent as 1978, in the case of Holforty v. Holforty, S.D., 272 N.W.2d 810, 811, Justice Dunn delivered this court's opinion and declared:

Our standard of review requires that we give due regard to the opportunity that the trial court has to judge the credibility of the witnesses and to weigh their testimony. Accordingly, the trial court's findings will not be set aside unless they are clearly erroneous.

Under the sunshine of the facts in this case, as opposed to an illusory statutory preference, the trial court saw the evidence as being weighted in favor of the father's custody. The trial court never concluded that "other things" were "equal"; the trial court did not believe...