Voelker v. Voelker, 18123

CourtSupreme Court of South Dakota
Citation53 A.L.R.5th 799,520 N.W.2d 903
Docket NumberNo. 18123,18123
PartiesLinda K. VOELKER, Plaintiff and Appellee, v. Paul W. VOELKER, Defendant and Appellant. . Considered on Briefs on
Decision Date29 November 1993

Shari B. Langner, Sioux Falls, for plaintiff and appellee.

Catherine V. Piersol of Rose and Piersol, Sioux Falls, for defendant and appellant.

AMUNDSON, Justice (on reassignment).

Paul W. Voelker (Father or Husband) appeals from a judgment and decree of divorce awarding custody of the parties' daughters to Linda K. Voelker (Mother or Wife). We affirm in part and reverse in part.

FACTS

Mother and Father were married on January 7, 1983. Two daughters, Danielle, presently age eight, and Christina, presently age five, were born to the marriage. Father is a technician at McKennan Hospital and has a gross annual income of approximately $40,000, $6,000 of which is rent from farm property he inherited from his father. The parties stipulated that Mother's income from her catering job was $18,200 per year.

Wife filed for divorce from Husband in September, 1991. After a hearing, the trial court awarded her temporary custody of the children, subject to visitation by Father, and allowed her to remain in the marital home. After this separation, Mother renewed her relationship with a high school boyfriend; this man is now her husband.

In January, 1992, Father filed a motion to obtain custody of the girls and possession of the marital residence, alleging that Mother's abuse of alcohol was endangering the children and asserting that Mother's boyfriend was living in the house and having a negative impact on the children. The court denied Father's motion and left the girls in Mother's care, but ordered no unrelated man be in the marital home between 8:00 p.m. and 10:00 a.m. Evidence at trial showed Mother disobeyed this order and the man remained in the home.

Mother has had continuing problems with depression, anxiety and alcohol abuse. After working steadily for the Presentation Health System for twenty-two years, she lost four jobs between March and November of 1992. She was hospitalized in 1990 for in-patient treatment of depression. Shortly before filing for divorce in 1991, she attempted suicide. She obtained thirty days of in-patient treatment for alcohol abuse in March of 1992. 1

Father may also have a problem with alcohol use. Evidence showed he routinely consumed five drinks a night during the marriage. A professional alcohol assessment of Father found there was not enough information to diagnose alcohol dependence but recommended he seek counseling for his difficulties. Another professional assessment expressed concern over his drinking and described him as manipulative. The trial court found that Father voluntarily cut out visitation on Friday evenings and Sunday afternoons so he could watch sporting events.

In September, 1992, the trial court granted Mother a divorce on grounds of extreme mental cruelty. Physical custody of the girls was awarded to Mother, who also received the federal income tax exemptions for the children. Father's share of child support was set at $884.00 per month. Mother was awarded thirty-five percent of the farm land inherited by Father and a portion of her attorney's fees. Father appeals.

ISSUES

I. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN AWARDING PHYSICAL CUSTODY OF THE CHILDREN TO MOTHER?

II. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN AWARDING WIFE THIRTY-FIVE PERCENT OF THE FARM LAND HUSBAND INHERITED?

III. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN AWARDING WIFE A PORTION OF HER ATTORNEY FEES?

IV. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN AWARDING BOTH FEDERAL INCOME TAX DEPENDENT EXEMPTIONS TO MOTHER?

V. WHETHER EITHER PARTY SHOULD BE AWARDED ATTORNEY FEES FOR THIS APPEAL?

VI. DID THE TRIAL COURT ERR IN GRANTING WIFE A DIVORCE ON THE GROUNDS OF EXTREME MENTAL CRUELTY?

DECISION

I. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN AWARDING PHYSICAL CUSTODY OF THE CHILDREN TO MOTHER?

The paramount consideration for the trial court in deciding the issue of child custody is the temporal, mental and moral welfare of the child. Peterson v. Peterson, 449 N.W.2d 835, 837 (S.D.1989); Lindley v Lindley, 401 N.W.2d 732, 733 (S.D.1987). The trial court exercises broad discretion in awarding custody and its decision will be reversed only upon a clear showing of an abuse of that discretion. Jones v. Jones, 423 N.W.2d 517, 519 (S.D.1988); Anderson v. Anderson, 472 N.W.2d 519, 520 (S.D.1991). In determining whether there has been an abuse of discretion, this court does not decide whether it would have made the same ruling, but must determine if a judicial mind could have made a similar decision in view of the law and that particular case's circumstances. Johnson v. Johnson, 468 N.W.2d 648 (S.D.1991).

This is another case where the parties put more effort into denigrating one another than into determining what was in the best interests of their children. This put the trial court in the position of determining which parent was "the least worst." Williams v. Williams, 425 N.W.2d 390, 392 (S.D.1988); Henle v. Larson, 466 N.W.2d 846 (S.D.1991).

The record shows that Mother has a serious problem with mental depression and alcohol abuse. Mother has been hospitalized for depression and attempted suicide, and the record indicates she is still taking prescribed medication in an attempt to control her depression. At first, Mother denied abusing alcohol; subsequently she received in-patient treatment for alcohol abuse. Evidence showed that she stashed bottles of whiskey in hiding spots in the house and car. Testimony was presented that the children found her passed out on the floor on more than one occasion. Once they called a friend to ask what to do when they were unable to awaken her. Mother has also experienced difficulty holding a steady job.

Father has not been a paragon of virtue in these proceedings; he has been described by two psychologists as "manipulative." This is borne out by evidence of his excessive questioning of the children concerning their Mother, discussing his Wife with the neighbors, staking out the marital home to take photographs, searching her garbage and recruiting estranged members of Mother's family as supporters for his position. He reduced visitation with his daughters so he could attend weekend sporting events. The trial court termed him "an abusive individual." Evidence was presented at trial that Husband was uncommunicative during the marriage to the point that he routinely sat downstairs in front of the TV and drank alcohol rather than try to talk out problems. Wife testified that he was unsupportive of her treatment for depression and urged her to cease taking her prescribed anti-depressant medication. He refused to go to marital counseling. Wife testified that he had physically shoved her.

The trial court received evidence from two independent experts who interviewed the parents and the children. Dr. Renae Battista-Turbak found that both parents deeply love and care for their children and that the girls have bonded equally to Mother and Father. She stated that both girls had communicated a preference to live with their Mother. Although not controlling, a court may consider the child's parental preference. Peterson, 449 N.W.2d at 837.

Dr. Battista-Turbak found that the parents were attempting to manipulate the children, questioning them about the other parent, and belittling the other parent in front of the children. Dr. Battista-Turbak was doubtful Mother had been truthful about her boyfriend living in the house. She also found Father exhibited a passive-aggressive and manipulative personality. Dr. Battista-Turbak voiced concern about parents' consumption of alcohol but believed Father was better able to handle his alcohol use. She did however, "strongly suggest that he refrain from any use while the children are with him or in his care." Dr. Battista-Turbak recommended that Father have physical custody of the children because of her concerns about Mother's ability to meet the children's needs.

Psychologist Elwin R. Unruh interviewed both parents and the children. He too found the parents were manipulating the children; "both parents are so engrossed with their wars that the children are becoming 'ping pong balls' in the midst of their polarization." In his opinion, Mother was dealing with her problems and "in the process of interpersonal growth" while Father "showed a tendency to minimize or deny social adjustment and personal problems." Although Mr. Unruh found Father more self-assured and thought there would be more stability if the girls were with their Father, he did not find "any inhibiting features of either parent being the primary caretaker." He recommended ongoing therapy for both the children and parents.

After considering this evidence, the trial court awarded Mother physical custody of the girls.

Indeed, had the trial court in the instant case concluded, based upon its observation of the demeanor of the parties as well as that of the other witnesses who testified in this proceeding, that custody should be awarded to [Mother], we would be hard-pressed to say that that decision represented a clear abuse of discretion. Based as it was, however, upon the court's first-hand opportunity to gauge the credibility and emotional stability of the parties as reflected by their testimony and demeanor during the lengthy trial, the trial court's decision must be given the appropriate deference mandated under our scope of appellate review ...

Saint-Pierre v. Saint-Pierre, 357 N.W.2d 250, 255 (S.D.1984). 2 "Where the trial court had the opportunity to observe the witnesses, we will give due regard to its superior position in judging credibility." Guardianship of Rich, 520 N.W.2d 63, 67 (S.D.1994) (citations omitted). The trial court found Mother has been the primary...

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