Yarnall v. Yarnall, 16822

• Citation: 460 N.W.2d 161
• Decision Date: 23 April 1990
• Docket Number: No. 16822,16822
• Parties: Verna L. YARNALL, Plaintiff and Appellant, v. Rick A. YARNALL, Defendant and Appellee. . Considered on Briefs
• Court: Supreme Court of South Dakota

Page 161

460 N.W.2d 161

Verna L. YARNALL, Plaintiff and Appellant, v. Rick A. YARNALL, Defendant and Appellee.

No. 16822.

Supreme Court of South Dakota.

Considered on Briefs April 23, 1990.

Decided Aug. 29, 1990.

Sidney B. Strange of Strange and Palmer, Sioux Falls, for appellee.

David R. Gienapp of Arneson, Issenhuth & Gienapp, Madison, for appellant.

Patrick Schroeder, Public Defender's Office, Sioux Falls, for Yarnall children.

McKEEVER, Circuit Judge.

Verna L. Yarnall (mother), appeals from an order of the trial court which modified the original divorce decree by changing custody of the parties' minor children from her to Rick A. Yarnall (father). We affirm.

FACTS

Mother and father were divorced in 1984. By way of a written stipulation, which was incorporated by the trial court into the final decree of divorce, the parties were awarded joint custody of their two daughters, Jessica, born March 2, 1980, and Kristi, born February 23, 1981. It further specified that the mother had the actual day-to-day physical custody of the two children while the father was awarded liberal and extensive visitation rights with his daughters. The court-adopted stipulation also provided that neither party shall do anything to estrange the children from the other or which will hamper the natural development of the love and affection of the children for each parent.

The record is permeated with father's complaints of visitation denials, visitation interruptions, denial of contact with the children on holidays, and other allegations of mother's refusal to cooperate during the five-year period since the divorce. During that time, several hearings have been held relating to the father's request for judicial assistance in exercising his visitation rights, and the mother has twice been held in contempt of court for her actions inhibiting visitation. The father had filed several motions for change of custody and final hearing was set for May 18, 1988.

Prior to the hearing, the father and mother met with clinical psychologists. These psychologists prepared an extensive psychological evaluation containing several recommendations to assist the parties in resolving their differences. Both mother and father agreed at the May 18, 1988, hearing to be bound by these recommendations, and the father's motion for change of custody was held in abeyance.

The psychotherapy embraced by both the mother and father was to aid them in achieving the following goals: (1) to be fully and consistently aware of how their behavior was harming the children; (2) to overcome their preoccupation with each other; and (3) to alleviate the frustration felt by the parents and the court. It was also part of the general stipulation that a therapist be engaged for each party, including the children, to meet periodically and report directly to the trial court.

Each party selected a mental health professional to assist in the implementation of the recommendations. A separate professional was also selected to assist the children. This "team" of mental health professionals submitted monthly reports to the trial court from June 1988 through March 1989. In mid-March 1989, the trial court met with the team of mental health professionals and received their oral report. In a letter dated March 23, 1989, the trial court detailed the unanimous opinion of the team regarding the treatment that they had made to date. In brief summary, according to the team, the girls had been emotionally damaged and were continuing to be damaged by the lack of relationship with their father due to their learned hatred of him; their attitude and resulting feelings about their father had resulted primarily from their mother's verbal and nonverbal communications; these attitudes and feelings would result in future serious emotional damage if not changed; and, the treatment to accomplish this end had not been fruitful due to the mother's less-than-enthusiastic cooperation with it.

A full trial on the custody issue was held on June 15 and 16 and on July 20, 1989. The trial court heard testimony of the parties, their witnesses and the three mental health professionals who comprised the "team" formed as a result of the parties' mutual agreement.

After hearing all the evidence, the trial judge concluded that it was in the best interest of the children that custody be changed to the father, with the mother having the visitation rights formerly possessed by the father.

ISSUE

DID THE TRIAL COURT ABUSE ITS DISCRETION IN DETERMINING THAT

THE BEST INTERESTS OF THE CHILDREN REQUIRED A

CHANGE OF CUSTODY?

SCOPE OF REVIEW

In a case where the original decree of divorce was based upon an agreement between the parties, the party seeking modification is not required to show a substantial change of circumstance. Olson v. Olson, 438 N.W.2d 544 (S.D.1989); Mayer v. Mayer, 397 N.W.2d 638, 640 (S.D.1986); Kolb v. Kolb, 324 N.W.2d 279, 283 (S.D.1982).

SDCL 15-6-52(a) provides: "Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses." We have previously interpreted this statute saying: " '[T]he credibility of the witnesses and weight to be accorded their testimony is for the trial court and we accept that version of the evidence including any reasonable inferences therefrom which are favorable to the trial court's determination.' " Schutterle v. Schutterle, 260 N.W.2d 341, 347 (S.D.1977) (brackets in original) (quoting Larson v. Syverson, 84 S.D. 31, 33, 166 N.W.2d 424, 425 (1969)); see also Watt v. Watt, 312 N.W.2d 707, 710 (S.D.1981).

SDCL 25-4-45 states: "In 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." We have previously interpreted this statute saying: "SDCL 25-4-45 has been held to leave broad discretion in the trial court to determine which parent in a divorce action shall be given custody of their children and that decision will be reversed only for a clear abuse of discretion." Kolb, supra, at 283; See Mayer, supra, at 640; Williams v. Williams, 425 N.W.2d 390, 393 (S.D.1988).

The primary consideration for the court's determination is what is in the best interest of the children. SDCL 30-27-19; Peterson v. Peterson, 449 N.W.2d 835 (S.D.1989); Nauman v. Nauman, 445 N.W.2d 38 (S.D.1989). In determining the best interest of the children, the court must be guided by what appears from all the facts and circumstances to be in the best interest of the children's temporal, mental and moral welfare. Peterson, supra, at 837; Jasper v. Jasper, 351 N.W.2d 114, 116 (S.D.1984); Flint v. Flint, 334 N.W.2d 680, 681-82 (S.D.1983); Matter of Ehlen, 303 N.W.2d 808, 810 (S.D.1981); Haskell v. Haskell, 279 N.W.2d 903, 906 (S.D.1979); Isaak v. Isaak, 278 N.W.2d 445, 446 (S.D.1979); Holforty v. Holforty, 272 N.W.2d 810, 812 (S.D.1978). "It is the trial court's duty to see that the children are protected at every turn." Jasper, supra, at 117; Langerman v. Langerman, 336 N.W.2d 669, 671 (S.D.1983); Matter of M.B., 288 N.W.2d 773, 775 (S.D.1980). Given the focus on the children's best interest, circumstances may operate to defeat the custody preference of a parent. Langerman, supra. The children's welfare must be considered over the legal rights and claims of the parents. Sobolik v. Stone, 420 N.W.2d 764, 765-66 (S.D.1988); Huckfeldt v. Huckfeldt, 82 S.D. 344, 347, 146 N.W.2d 57, 58 (1966); Hoaas v. Hoaas, 75 S.D. 55, 59, 59 N.W.2d 254, 256 (1953). The parents' personal wishes and desires must yield to what the court in the discharge of its duty regards as the children's best interest. Sobolik, supra; Huckfeldt, supra; Ulver v. Ulver, 76 S.D. 371, 373, 78 N.W.2d 830, 831-32 (1956).

DECISION

The original decree of divorce in this case established custody and visitation rights by adopting into it a stipulation of the parties. The trial court found that a change of custody to the father, with visitation rights to the mother, to be in order after considering all the evidence at trial. We now proceed to inquire if that decision constitutes an abuse of discretion.

The trial record reveals that the mother has been diligent in her efforts to offer her children the opportunity to participate, and further provide the necessary support for them to be successful in their scholastic, extracurricular and church activities. This speaks well for her as a parent. Unfortunately, the record is also replete with numerous instances that reflect either her outright refusal or her inability to acknowledge that her negative emotions towards the father are resulting in damage, not only to her, but also to the two human beings she loves so...