Veldheer v. Peterson

• Decision Date: 05 December 2012
• Docket Number: No. 26195.,26195.
• Citation: 2012 S.D. 86,824 N.W.2d 86
• Parties: Doug VELDHEER and Kari Veldheer, Plaintiffs and Appellees, v. Angela PETERSON, Defendant and Appellee, and Jered Mandel, Defendant and Appellant.
• Court: South Dakota Supreme Court

824 N.W.2d 86

2012 S.D. 86

Doug VELDHEER and Kari Veldheer, Plaintiffs and Appellees,

v. Angela PETERSON, Defendant and Appellee,andJered Mandel, Defendant and Appellant.

No. 26195.

Supreme Court of South Dakota.

Argued Oct. 1, 2012.

Decided Dec. 5, 2012.

Tressa L. Zahrbock Kool, Sioux Falls, South Dakota, Attorney for plaintiffs and appellees, Veldheers.

Donna L. Bucher of Tinan, Smith & Bucher, Mitchell, South Dakota, Attorneys for defendant and appellee, Peterson.

Dava A. Wermers, Mitchell, South Dakota, Attorney for defendant and appellant, Mandel.

ZINTER, Justice.

[¶ 1.] Maternal grandparents were permitted to join/intervene in a custody dispute between the parents of two minor children. After a three-day trial, the circuit court awarded custody to the grandparents and visitation to the father. Father appeals the grandparents' joinder/intervention, the award of custody, and the denial of his request for attorney's fees. We affirm the joinder/intervention; reverse the custody award; and remand for findings of fact, conclusions of law, and reconsideration of the issue of attorney's fees.

Facts and Procedural History

[¶ 2.] Jered Mandel (Father) and Angela Peterson (Mother) had a four-year relationship. They never married, but had two children: P.D.M., born December 29, 2005, and P.J.M., born January 18, 2007. Mother, Father, and the children lived in Mitchell, in a house owned by Father.

[¶ 3.] Mother stayed at home and both parents cared for the children when Father was not working. The parents and children lived together until January 2008 when the parents separated. Father continued to live in the home and Mother moved into an apartment. After the separation, Mother and Father shared custody of the children. However, due to a deterioration of the parents' relationship, difficulties with communication, conflicting work schedules, and financial struggles, the parents began to increasingly rely on the Veldheers, the children's maternal grandparents (Grandparents),¹ to care for the children. Following an October 2007 incident between Mother and Father in which Mother was charged with domestic violence-simple assault, the parents asked Grandparents to watch the children for a period of two to three weeks so that the parents could work on their relationship. In 2008, the parents began to rely on Grandparents to serve as the children's primary caretakers.

[¶ 4.] In July 2008, Mother obtained sole legal and physical custody of the children as a part of a child support proceeding. The children, however, continued to reside with Grandparents. Grandparents and the children spent the summer of 2008 in Piedmont.² Parents took the children back into their care for a brief period in the fall of 2008. However, for the remainder of 2008, for 2009,³ and until September 2010, Grandparents served as the children's primary caretakers. Father maintained that he wanted to see the children more often, but claimed that he was prohibited from doing so by Grandparents. Father testified: “I wanted the kids, and it was out of my control. I was told I didn't have any custody.” ⁴

[¶ 5.] In January 2009, Grandparents began keeping track of the time Mother and Father spent with the children. In 2009, Father had the children in his care on an average of two days every month. In addition, the children spent what equated to almost a full month of 2009 with their paternal grandparents. In 2010, up until the month of September, Father spent an average of three days a month with the children. Father testified that when he did not see the children he tried to contact them by phone at least once a week.

[¶ 6.] On at least one occasion, the parties discussed Grandparents becoming the children's guardians. Grandparents testified that they initially discussed a guardianship because the children's Medicaid coverage lapsed. Father testified that he was pressured to agree to a guardianship but he declined. When Father declined, Grandparents said they dropped the subject. Yet later, Grandparents claim that Father approached them about a guardianship. Grandparents had guardianship documents prepared, and although Mother signed them, Father would not. In July 2010, Grandparents, through their attorney, requested Father to consent to a guardianship or take the children back into his care. Father then filed a motion in circuit court to obtain custody of the children.

[¶ 7.] In September 2010, the circuit court considered Father's motion and awarded Mother and Father temporary joint physical custody on an alternating weekly basis. During Father's weeks, the children stayed with Father in his home. Typically, Father did not work during those weeks. During Mother's weeks, the children stayed with Grandparents. Mother lived in Sioux Falls and saw the children when she traveled to Mitchell. Father had custody of the children under this order for ten months—the time between the temporary custody award in September2010 and the permanent custody trial in August 2011.

[¶ 8.] Prior to the permanent custody trial, Grandparents filed a separate custody action and moved to join the parents' custody action. The circuit court granted the motion to join, effectively allowing Grandparents to intervene in the parents' custody dispute.⁵ Prior to trial, the parents and Grandparents participated in home-study evaluations. Parents and Grandparents also underwent individual psychological evaluations.

[¶ 9.] A three-day custody trial was held in August 2011. Grandparents and Father testified. Mother did not testify or call witnesses. The home-study evaluator, Ms. Zimbelman, indicated that at the time of trial, Mother wished to have the children be raised by Grandparents. Mother, however, also informed Ms. Zimbelman that Mother's ultimate goal was to have the children live with her.

[¶ 10.] Father actively sought full custody. Some concerns were expressed regarding Father's ability to parent the children. The concerns involved Father's history of alcohol-related offenses, employment at a bar where he often worked nights, lack of a driver's license,⁶ and obsessive compulsive personality characteristics. There was, however, no contention that father was unfit.

[¶ 11.] Ms. Zimbelman reported that between Mother and Father, “[Father's] care would allow the children to remain in the same community and spend time with both their maternal and paternal grandparents on a regular basis.” On the other hand, Ms. Zimbelman indicated that “[p]lacing the children with [Mother] would lessen the support system for the children because of [the lack of] family availability.” As between Mother, Father, and Grandparents, Ms. Zimbelman opined that it would be in the “best interests” of the children for Grandparents to be awarded physical custody of the children. Ms. Zimbelman indicated that the children were “more closely attached to their grandparents.”

[¶ 12.] The circuit court awarded legal and physical custody to Grandparents. Father was awarded visitation in accordance with the South Dakota Visitation Guidelines. Additionally, Father's motion for attorney's fees was denied.

[¶ 13.] We address the following issues on appeal:

1. Whether the circuit court erred in allowing Grandparents to join/intervene in the parents' custody dispute.

2. Whether the circuit court erred in determining that Father's presumptive right to custody was rebutted under SDCL 25–5–29 and SDCL 25–5–30.

3. Whether the circuit court erred in determining that each party was responsible for their own attorney's fees.

4. Whether either party is entitled to appellate attorney's fees.

Decision

[¶ 14.] This case involves the interpretation of statutes overriding a parent's presumptive right to custody of his children. SeeSDCL 25–5–29 to –30. “Statutory interpretation is a question of law, reviewed de novo.” In re Guardianship of S.M.N., T.D.N., and T.L.N., 2010 S.D. 31, ¶ 9, 781 N.W.2d 213, 217. The specific statutory language at issue involves extraordinary circumstances and serious detriment to the welfare of children. “Whether the facts of [a] case constitute extraordinary circumstances of serious detriment to the welfare of ... children ... is a conclusion of law that we review de novo.” Id. ¶ 11 (citing Meldrum v. Novotny, 2002 S.D. 15, ¶ 49, 640 N.W.2d 460, 469). This case finally involves a parent's claim that an award of custody to nonparents violates the parent's constitutional rights. “An appeal asserting an infringement of a constitutional right is ... reviewed under the de novo standard of review [.]” Id. ¶ 10.

Joinder/Intervention by Grandparents

[¶ 15.] The parties disagree whether Grandparents were entitled to join/intervene in the parents' custody dispute. “SDCL 25–5–29 expressly authorizes nonparents to petition for custody or visitation if they have served as the child[ren]'s primary caretaker, are closely bonded as a parental figure, or have otherwise formed a significant and substantial relationship.” Clough v. Nez, 2008 S.D. 125, ¶ 11, 759 N.W.2d 297, 302. The statute permits intervention on the same showing. SDCL 25–5–29.⁷

[¶ 16.] Father concedes “that [Grandparents] were the primary caregivers for [two] years.” ⁸ But, Father argues that intervention was improper because “the constitutional presumption [to the care, custody and control of children] due parents [was not] rebutted” at the time the motion for joinder/intervention was granted.

[¶ 17.] We first observe that a nonparent's service as a child's primary caretaker may be sufficient to rebut a parent's constitutional presumptive rights to the care and custody of his children. Clough, 2008 S.D. 125, ¶ 16, 759 N.W.2d at 304 (citing SDCL 25–5–29(4) and SDCL 25–5–30(3)). We also observe that parties need not prove their ultimate case in order to intervene. A pleading for intervention “is construed liberally in favor of the pleader-intervenor and the court will accept as true the well-pleaded allegations in the pleading.” 7C Charles Alan...