Zepeda v. Zepeda

Decision Date01 August 2001
Docket Number No. 21737, No. 21755.
Citation2001 SD 101,632 N.W.2d 48
PartiesJorge A. ZEPEDA, Plaintiff and Appellant, v. Leslie Renee ZEPEDA, Defendant and Appellee.
CourtSouth Dakota Supreme Court

R. Scott Rhinehart of Richard Rhinehart & Associates, Sioux City, IA, Attorneys for plaintiff and appellant.

David L. Reinschmidt, Colby M. Lessmann of Munger, Reinschmidt & Denne, Sioux City, IA, Attorney for defendant and appellee.

KONENKAMP, Justice.

[¶ 1.] In this divorce appeal, the father challenges the custody award of his son to the mother, alleging that the circuit court failed to adequately consider the guiding principles in Fuerstenberg v. Fuerstenberg, 1999 SD 35, 591 N.W.2d 798. From our review of the record, however, it is apparent that the circuit court carefully balanced these considerations in its decision. By notice of review, the mother appeals the denial of general alimony, rehabilitative alimony, and attorney's fees. We affirm on all issues because the evidence supports the rulings, and we find no abuse of discretion.

A.

[¶ 2.] Jorge and Leslie Renee Zepeda (Renee) met in 1986 while they were both students at Louisiana State University. They married on November 27, 1987. Both eventually earned bachelor's degrees. Jorge graduated from LSU with a degree in electrical engineering. Renee received her degree from the University of Alabama, after accumulating college credit at various institutions. Before completing her degree, she gave birth to the couple's only child, Jorgito, born November 6, 1996. Renee cared for Jorgito "during the daytime when [Jorge] was at work." After obtaining her degree, Renee stayed home to provide full-time childcare.

[¶ 3.] In November 1998, Jorge accepted a position with Gateway Computer Company, and the couple moved to Dakota Dunes, South Dakota. This position provided a substantial salary increase. Renee continued to stay at home with Jorgito. In her words, she accepted the "woman's role in the house." She "took care of the majority of attending to Jorgito, his feeding, cleaning, dressing, shopping for clothes for him, [and] buying food for him." Jorge's brother, who lived with the couple for a short time, substantiated her rendition for the most part.1 Jorge recalled that he also spent a great deal of his free time playing with and educating Jorgito. Renee disputed Jorge's recollection, insisting that Jorge worked long hours and spent little time with his son either during the week or on the weekends.

[¶ 4.] After their move to South Dakota, marital difficulties began to emerge. According to Renee, Jorge was either "controlling" or he ignored her, choosing to "talk to his computer or the TV rather than [her]." For his part, Jorge became suspicious of Renee's activities on the Internet while he was at work. He installed software on their home computer to covertly monitor her keystrokes. What he discovered would become a focal point in the divorce proceedings. In trial, Renee admitted that from late July 1999 until sometime in October of that year she engaged in "highly erotic" discourse on Internet "chatrooms" with two different adult men.2 These communications occurred, in her estimate, perhaps "once a week."3 She explained that "it was kind of enjoyable that someone was finding interest in me." But her infidelity was not confined to the Internet. Renee had sexual relations several times with another man in July 1999.4 On one occasion, after sharing a bottle of wine, the two engaged in sexual intercourse in Renee and Jorge's apartment while Jorgito was sleeping.

[¶ 5.] Jorge sued for divorce in September 1999. As the precipitating cause, he blamed Renee's sexual affair along with her "cybersex" conversations. He believed that Renee's Internet use had become an addiction. In her answer, Renee also requested a divorce. Both Jorge and Renee sought temporary custody of Jorgito. Before the interim hearing, the couple was evaluated by psychologist, Dr. Matt Stricherz. Stricherz opined that "while not appropriate for the marriage," Renee's Internet use was not an addiction. Stricherz also noted that "[n]either [parent] has issues in their past that would indicate an inability to provide adequate care for the child. The father has his strengths. The mother has her strengths."

[¶ 6.] Following the hearing, the court granted temporary custody to Renee, with visitation for Jorge. The court placed express conditions on Renee. First, she was not to have "any men in her apartment or in her presence while the child [was] present." Second, she was to refrain from consuming alcohol. Third, she could not use the Internet throughout the duration of the divorce and custody proceedings unless required by her employment.

[¶ 7.] In February 2000, Jorge accepted a position with Dell Computer Corporation in Austin, Texas. His benefits included a $10,000 per year pay increase and a more flexible schedule. The parties agreed to modify Jorge's visitation. Every other Wednesday Jorge flew back to South Dakota and kept Jorgito from Wednesday through Sunday. Renee in no way hindered Jorge's ability to visit his son.

[¶ 8.] The divorce trial was held in August 2000. Jorge offered computer log-on records from August 1 through October 22, 1999. They showed a substantial amount of Internet use in the household. For example, the computer was logged on for up to seven hours a day in August 1999. These records do not indicate, however, which member of the household used the Internet or whether the computer was simply left logged-on.

[¶ 9.] The court heard testimony from a licensed independent social worker, Judy Conner, who had visited with all three members of the family. She described Jorgito as a very active child who spoke very well even at age two. She observed that he "appeared to be very attached to both of his parents." Conner found Jorge and Renee "to be very caring parents." She saw nothing "that raised a red flag... or any kind of alarm." Dr. Stricherz's opinions coincided with Conner's. He had re-evaluated Renee in July 2000 in an attempt to ascertain any behavioral changes since the temporary hearing. Stricherz reaffirmed that Renee had no Internet addiction and noted that his initial conclusion was supported by the absence of any substituted behaviors after her computer was taken away.5 At trial, Jorge produced no evidence that Renee had engaged in any inappropriate conduct since the temporary hearing.

[¶ 10.] Jorgito has attended the same daycare facility since December 1999. One of the daycare providers confirmed Jorgito's strong attachment to his mother:

When she brings him in every morning, he has his arms around her waist ... [a]nd he always hugs her goodbye and says goodbye ... She always turns back twice and waves goodbye, and he's always waiting for her to turn back again[.]

The same witness described Jorgito as "very intelligent" and "soft-hearted."

[¶ 11.] At the time of trial, Renee was working full-time for an agency that provides long term temporary employees to Gateway. With this position and another intermittent part-time position, Renee expected to earn between $25,000 and $26,000 that year. In her opinion, to obtain a better paying job she would need a master's degree in business administration. She had researched that possibility and its cost at the time of trial.

[¶ 12.] At the end of the trial, the court ruled from the bench, granting joint legal custody to the parents, with Renee retaining primary physical custody. Jorge was ordered to pay monthly child support of $899. The court denied Renee's claims for general alimony, rehabilitative alimony, and attorney's fees. In its written findings of fact and conclusions of law, the court held that Renee was a "fit parent who provides a stable environment, with commensurate continuity of care as well." Jorge appeals the custody decision on his assertion that the trial court failed to adequately consider Renee's misconduct and Jorgito's need to maintain contact with both parents.

B. Child Custody

[¶ 13.] To decide a custody dispute, a court must consider the child's temporal, mental, and moral welfare. See Fuerstenberg, 1999 SD 35, ¶ 22,

591 N.W.2d at 806 (citations omitted). No precise formula exists for making a custody determination, but the decision should be balanced and methodical. Id. at ¶ 35. We recognize several "guiding principles" in weighing the evidence. Id. at ¶ 23. These considerations include parental fitness; stability; primary caretaker; child's preference; harmful parental misconduct; and separation of siblings. See generally Fuerstenberg, 1999 SD 35, ¶¶ 23-32,

591 N.W.2d at 806-10. A court is not bound to make a specific finding in each category; indeed, certain elements may have no application in some cases, and for other cases there may be additional relevant considerations. In the end, our brightest beacon remains the best interests of the child. See Fuerstenberg, 1999 SD 35, ¶ 23,

591 N.W.2d at 807. A trial court is in a better position to evaluate the facts, and its conclusions on a child's best interests will stand unless we find an abuse of discretion. Price v. Price, 2000 SD 64, ¶ 18, 611 N.W.2d 425, 430 (citations omitted).

[¶ 14.] Jorge argues that the court did not consider the importance of "maintaining contact with both parents." See Fuerstenberg, 1999 SD 35, ¶ 24,

591 N.W.2d at 807. In Fuerstenberg, we recognized that when considering parental fitness it is appropriate to explore a parent's "willingness to ... encourage and provide frequent and meaningful contact between the child and the other parent." Id. The crux of Jorge's argument is that for financial reasons he will not be able to continue flying to South Dakota every other week. Jorge points to a statement made by Renee on cross-examination acknowledging that if Jorge were awarded custody, she would move to Texas to be close to her son. In Jorge's opinion, to ensure "maximum...

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