#27991-a-DG
2017 S.D. 73

                             IN THE SUPREME COURT
                                     OF THE
                            STATE OF SOUTH DAKOTA


                                    ****
MELISSA M. MOULTON,                          Plaintiff and Appellant,

      v.

JACK W. MOULTON,                             Defendant and Appellee.


                                    ****

                   APPEAL FROM THE CIRCUIT COURT OF
                      THE SECOND JUDICIAL CIRCUIT
                   MINNEHAHA COUNTY, SOUTH DAKOTA

                                    ****

                       THE HONORABLE JOHN PEKAS
                                Judge

                                    ****


RICK L. RAMSTAD of
Crew and Crew, PC
Sioux Falls, South Dakota                    Attorneys for plaintiff and
                                             appellant.


GREGORY T. BREWERS of
Strange, Farrell, Johnson
 & Brewers, PC
Sioux Falls, South Dakota                    Attorneys for defendant and
                                             appellee.

                                    ****



                                             CONSIDERED ON BRIEFS
                                             ON AUGUST 28, 2017
                                             OPINION FILED 11/08/17
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GILBERTSON, Chief Justice

[¶1.]         Jack W. Moulton and Melissa M. Moulton divorced. By stipulation, the

parties agreed to share legal custody of their two children, Marissa and Adam, with

Jack having primary physical custody of Adam and Melissa having primary

physical custody of Marissa. Melissa subsequently moved for a change of custody,

seeking primary physical custody of Adam. The circuit court denied the motion, and

Melissa appeals. We affirm.

                           Facts and Procedural History

[¶2.]         Jack and Melissa married in 2005. The marriage was Jack’s third and

Melissa’s second. In 2009, Jack and Melissa separated, each suspecting the other of

infidelity. The circuit court entered a judgment and decree of divorce on June 21,

2011, on the grounds of irreconcilable differences. At the time, the parties

stipulated that they would share legal custody of their two children, Marissa and

Adam, 1 and that Jack would have the children in his care two overnights per week.

After his divorce from Melissa, Jack remarried his first wife, Dawn. At the time of

the proceedings below, Melissa had not remarried but cohabited with her boyfriend,

Jeff.

[¶3.]         In 2013, Melissa, who was employed as a financial advisor, accepted a

job transfer that required her to relocate immediately to Williston, North Dakota,




1.      Marissa is the biological child of Melissa and the adopted child of Jack.
        Adam is the biological child of both Melissa and Jack. Jack also has three
        other biological children from his previous marriages.
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but provided a substantial financial incentive. 2 In order to avoid litigation, the

parties agreed to modify the custody arrangement. The parties stipulated that they

would share legal custody of Marissa and Adam, that Jack would have primary

physical custody of Adam, and that Melissa would have primary physical custody of

Marissa. The circuit court approved the modification on August 27, 2013.

[¶4.]         On October 22, 2014, Melissa filed a motion for temporary physical

custody of Adam after he suffered an asthmatic episode. Citing Jack’s long-

standing smoking habit, Melissa argued Adam’s health was imperiled by continuing

to reside with Jack. The circuit court did not order a custody evaluation, but

Melissa commissioned one herself, which concluded Melissa should be given

physical custody of Adam. After hearing testimony and argument on August 5,

2015, and February 9 and 10, 2016, the court entered findings of fact and

conclusions of law and denied Melissa’s motion. The court also ordered Melissa to

pay $15,120 of Jack’s attorney fees.

[¶5.]         Melissa appeals, raising the following issues:

              1.     Whether the circuit court erred in determining Adam’s
                     interests were better served by remaining in Jack’s
                     physical custody.

              2.     Whether the circuit court abused its discretion by
                     ordering Melissa to pay Jack’s attorney fees.

                                Standard of Review

[¶6.]         “A circuit court’s determination of what constitutes a particular child’s

best interest is a finding of fact,” which this Court reviews under the clearly


2.      Melissa testified the transfer provided a 15% increase in salary and a $40,000
        moving bonus. She also testified that her new income was approximately
        $150,000 annually.
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erroneous standard. People ex rel. E.M.H., 2015 S.D. 101, ¶ 5, 873 N.W.2d 485, 486.

This Court will accept the circuit court’s factual findings unless after a complete

review of the record, the Court is left “with a definite and firm conviction that a

mistake has been made.” Aguilar v. Aguilar, 2016 S.D. 20, ¶ 9, 877 N.W.2d 333,

336 (quoting Clough v. Nez, 2008 S.D. 125, ¶ 8, 759 N.W.2d 297, 301). The circuit

court’s decision to award attorney fees is reviewed for an abuse of discretion. Hewitt

v. Felderman, 2013 S.D. 91, ¶ 23, 841 N.W.2d 258, 264.

                                Analysis and Decision

[¶7.]         1.     Whether the circuit court erred in determining
                     Adam’s interests were better served by remaining in
                     Jack’s physical custody.

[¶8.]         Melissa’s primary argument is that the circuit court erred in

determining Adam’s interests were better served by remaining in Jack’s custody. In

particular, Melissa contends Jack’s smoking places Adam’s health at risk. She also

contends the court failed to identify compelling circumstances justifying the

separation of Marissa and Adam. And finally, she contends her custody evaluation

supports her claim for a change in custody.

[¶9.]         In making custody decisions, a court’s “brightest beacon” is the best

interest of the child. McCarty v. McCarty, 2015 S.D. 59, ¶ 12, 867 N.W.2d 355, 359.

“In awarding the custody of a child, the court shall be guided by consideration of

what appears to be for the best interests of the child in respect to the child’s

temporal and mental and moral welfare.” SDCL 25-4-45. In making such

determination, a “court may, but is not required to, consider the following . . .

factors . . . : parental fitness, stability, primary caretaker, [the child’s] preference,

harmful parental misconduct, separating siblings, and substantial change of
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circumstances.” McCarty, 2015 S.D. 59, ¶ 12, 867 N.W.2d at 359 (quoting Roth v.

Haag, 2013 S.D. 48, ¶ 13, 834 N.W.2d 337, 340). Not all of these factors are

applicable in every case, and so “a court is not bound to make a specific finding in

each category[.]” Id. (quoting Roth, 2013 S.D. 48, ¶ 13, 834 N.W.2d at 340).

Substantial Change of Circumstances

[¶10.]        “It has long been the rule in South Dakota that to modify a custody

decree rendered after a contested hearing, the moving party must show a

substantial change in circumstances.” Id. ¶ 9, 867 N.W.2d at 358 (emphasis added).

“The reason behind [this rule] is to prevent relitigation of conduct and

circumstances that antedate the prior custody order.” Kolb v. Kolb, 324 N.W.2d

279, 282 (S.D. 1982). Thus, the rule applies when “such conduct has been litigated

and . . . a court has entered a judgment based on that conduct.” Id. (emphasis

added). However,

              facts pertinent to child custody, which were not put in issue or
              involved, tried and determined by the court as a basis for the
              original divorce decree, are not res judicata as to the best
              interests of the children . . . and may be considered anew in a
              subsequent custody modification hearing free from the
              substantial change of circumstances constraints.

Id. at 283 (emphasis added). As noted above, the custody arrangement existing at

the time of Melissa’s motion for physical custody was the product of the parties’

stipulation; the question of Adam’s best interest was not litigated prior to the

present action. Therefore, the substantial-change-of-circumstances limitation is not

applicable.




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Parental Fitness

[¶11.]       In analyzing the fitness of a parent, the circuit court may consider a

number of factors, including:

             (1) mental and physical health; (2) capacity and disposition to
             provide the child[] with protection, food, clothing, medical care,
             and other basic needs; (3) ability to give the child[] love,
             affection, guidance, education and to impart the family’s religion
             or creed; (4) willingness to maturely encourage and provide
             frequent and meaningful contact between the child[] and the
             other parent; (5) commitment to prepare the child[] for
             responsible adulthood, as well as to insure that the child
             experiences a fulfilling childhood; and (6) exemplary modeling so
             that the child[] witness[es] firsthand what it means to be a good
             parent, a loving spouse, and a responsible citizen.

McCarty, 2015 S.D. 59, ¶ 13, 867 N.W.2d at 359-60 (quoting Schieffer v. Schieffer,

2013 S.D. 11, ¶ 17, 826 N.W.2d 627, 634). Concerning Adam, the court found that

Jack and Melissa are equally fit in regard to factors (1), (2), (3), and (5).

[¶12.]       In regard to the parties’ willingness to encourage contact with the

noncustodial parent, the circuit court found that “Jack has been very supportive of

the relationship between Melissa and Adam, and Melissa has been able to spend

substantial time with Adam despite the distance between the parents’ homes.” The

court did not make a similar finding regarding Melissa’s willingness to encourage

and facilitate contact between Adam and Jack. However, it did note that “Melissa

has not been supportive of Jack’s relationship with Marissa.” Thus, the court found

that “[t]he factors related to willingness to maturely encourage and provide

frequent and meaningful contact between the child and the other parent favor Jack

over Melissa.”

[¶13.]       The circuit court also determined that factor (6) did not support

changing custody. The court found that “Jack and Dawn seem to model firsthand
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what it means to be good parents and loving spouses.” In contrast, the court found

that “Melissa has not demonstrated exemplary modeling in terms of romantic

relationships.” The parties included the following provision in their custody

agreement:

             The parties also agree that, when the children are present,
             neither of them shall have as a guest, nor shall be a guest,
             between 10 p.m. and 8 a.m., of any person with whom the parent
             has a sexual relationship, unless the parent and the other
             person are legally married.

This provision was incorporated into the judgment and decree of divorce. On cross-

examination, Melissa admitted she violated this provision. The court found:

             Melissa was not forthcoming regarding the nature of her
             relationship with Jeff, or the fact that he is currently residing
             with Melissa and Marissa. Melissa’s testimony regarding Jeff
             was deceptive and called into question the true circumstances
             related to her life in North Dakota. The court questions her
             credibility as a result of the deceptive or evasive testimony in
             that regard. The court is also very concerned about the fact that
             she willfully and blatantly disregarded the court order
             restricting either party from cohabitation with someone to whom
             the party is not married.

Additionally, the court was “concerned about the fact that [Melissa] willfully and

blatantly disregarded the court order.” Indeed, disregarding a court order is not

“exemplary modeling [of] what it means to be . . . a responsible citizen.” Id. ¶ 13,

867 N.W.2d at 360 (quoting Schieffer, 2013 S.D. 11, ¶ 17, 826 N.W.2d at 634). Thus,

this factor militates against changing custody.

Stability

[¶14.]       In analyzing the stability of one custody arrangement over another,

the circuit court should consider:

             (1) the relationship and interaction of the child[] with the
             parents, step-parents, siblings and extended families; (2) the
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             child[’s] adjustment to home, school and community; (3) the
             parent with whom the [child has] formed a closer
             attachment . . . ; and (4) continuity, because when [a child has]
             been in one custodial setting for a long time pursuant to court
             order or by agreement, a court ought to be reluctant to make a
             change if only a theoretical or slight advantage for the child[]
             might be gained.

Id. ¶ 17, 867 N.W.2d at 361 (quoting Roth, 2013 S.D. 48, ¶ 14, 834 N.W.2d at 340).

[¶15.]       The circuit court found that Adam “has a close bonded relationship

with both parents” and that “Adam [also] has a strong and loving relationship with

his stepmother Dawn.” The court also found that none of Adam’s extended family

resides in North Dakota; instead, they are located near Sioux Falls and Presho,

South Dakota, as well as in Marshall, Minnesota, and Nebraska. Moreover, the

court found that Adam “only knows Sioux Falls as his home, and has a stable home

and school enrollment in Sioux Falls.” Thus, as the court noted: “Living in North

Dakota would be a new experience for Adam, with a new school, new friends, no

extended family in the area, and no continuity with the life he has come to know.”

The court was also particularly concerned with the lack of information regarding

Melissa’s live-in boyfriend, whose presence had not even been disclosed to the

custody evaluator. Thus, this factor also weighs against changing custody.

Primary Caretaker

[¶16.]       The circuit court found that “Jack has been Adam’s primary care

provider since Melissa moved to North Dakota.”

Child’s Preference

[¶17.]       The circuit court found that “Adam is not of a sufficient age or

maturity to express a meaningful preference related to where he lives.”


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Parental Misconduct

[¶18.]       The circuit court’s findings on this factor also favor Jack’s continued

custody. Regarding Jack, the court found: “Jack has not engaged in any

demonstrable misconduct of concern to the court. Jack’s smoking is not exemplary,

but does not rise to the level of marital or parental misconduct.” The court also

found credible Jack’s pledge “to stop smoking, especially in Adam’s immediate

presence.” Regarding Melissa, the court again expressed concern over her violation

of the court order against cohabiting. The court found: “Melissa’s violations of the

court order restricting overnight guests of the opposite sex is akin to marital

misconduct and is concerning to the court. These violations were done in the

presence of the children.”

[¶19.]       Even so, Melissa contends that her conduct should not be considered

unless it has a demonstrable effect on Adam. “Where there is no evidence that a

parent’s marital misconduct has a harmful effect on a child, it should not be taken

into account in awarding custody.” Fuerstenberg v. Fuerstenberg, 1999 S.D. 35,

¶ 31, 591 N.W.2d 798, 809. However, the “harmful effect is self-evident when

parental misconduct is committed in the presence of a child old enough to perceive

the misconduct.” Id. In Fuerstenberg, the harm of a mother “permit[ing] her

boyfriend to stay at her home overnight” was self-evident to a boy who like Adam,

was nine years old. See id. So at the very least, this factor does not support a

change in custody.




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Separating Siblings

[¶20.]       Our cases have long emphasized the importance of preserving the

relationship between siblings. See, e.g., E.M.H., 2015 S.D. 101, ¶ 10, 873 N.W.2d

at 489-90. However, this is one factor among several, and “‘maintaining children in

the same household should never override’ what is in the best interests of a child.”

McCarty, 2015 S.D. 59, ¶ 24, 867 N.W.2d at 362 (quoting Simunek v. Auwerter,

2011 S.D. 56, ¶ 10, 803 N.W.2d 835, 837). As the circuit court correctly noted, this

case does not involve keeping children together in the same household. Marissa

and Adam have lived in separate households since 2013. The court found that

despite their situation, “[b]oth children have a good relationship with each other.”

The court also found that “[b]oth children seem to be doing well in their respective

living arrangements.” Thus, this factor does not support a change in custody.

Best Interest of the Child

[¶21.]       After analyzing the foregoing factors, the circuit court concluded,

“based upon the totality of the evidence[,] that Adam’s best interests are served by

remaining in the primary care of Jack during the school year, and Marissa’s best

interests are served by staying in Melissa’s primary care during the school year.”

The court reiterated: “The court does not believe it would be in Adam’s best

interests for him to move to Williston, North Dakota, during the school year.”

These findings are supported by the factors discussed above. Based on the court’s

findings, the parental-fitness, primary-caretaker, and (especially) stability factors

all weigh in favor of maintaining Jack’s physical custody of Adam. In contrast, none

of the above factors supports a change in custody.


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[¶22.]         Melissa has the burden of establishing the court’s best-interest finding

was clearly erroneous. E.M.H., 2015 S.D. 101, ¶ 5, 873 N.W.2d at 486. The circuit

court entered findings explaining its rejection of the custody evaluator’s

recommendation. 3 Melissa’s remaining arguments amount to little more than an

attempt to relitigate this case. And even if one or more of the court’s individual

findings were clearly erroneous, the foregoing factors must be viewed together. See

McCarty, 2015 S.D. 59, ¶ 24, 867 N.W.2d at 362. Based on these factors and the

court’s relevant findings, the court’s best-interest finding is not clearly erroneous,

and the court’s decision to deny Melissa’s request to modify the parties’ existing

custody agreement was not an abuse of discretion.

[¶23.]         2.     Whether the circuit court abused its discretion by
                      ordering Melissa to pay Jack’s attorney fees.

[¶24.]         Next, Melissa argues the circuit court erred in ordering her to pay Jack

$15,120 in attorney fees and costs. A circuit court may award attorney fees in

custody cases “if appropriate” and “in the interests of justice.” SDCL 15-17-38. The

court’s decision on this matter is reviewed for an abuse of discretion. See Brosnan v.

Brosnan, 2013 S.D. 81, ¶¶ 39-40, 840 N.W.2d 240, 252-53. The court must first

determine whether the amount requested is reasonable in light of the circumstances


3.       The circuit court found:
               The court places little weight upon the custody evaluation . . . .
               The evaluation appears to have been very unbalanced. Jack’s
               input and the input of his references, his wife, and the concerns
               he raised about Melissa seem to have been ignored or given
               insufficient consideration during the evaluation process. The
               evaluation also seems to reach conclusions not supported by
               weight of the trial evidence.
         The court was not required “to adhere to the recommendations in [the]
         custody evaluation.” Kreps v. Kreps, 2010 S.D. 12, ¶ 34, 778 N.W.2d 835, 845.
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of the case. Id. ¶ 39, 840 N.W.2d at 252-53. The court must then decide whether to

award some or all of that amount to the requesting party by considering “the

property owned by each of the parties, their relative incomes, whether the property

is in liquid or fixed assets, and whether the actions of a party unreasonably

increased the time spent on the case.” Voelker v. Voelker, 520 N.W.2d 903, 908 (S.D.

1994).

[¶25.]       The circuit court found Jack’s requested attorney fees to be reasonable.

The court based this finding on its personal knowledge of the attorneys involved

and its past experiences involving custody cases. The court also found that “Melissa

has substantially more income and financial resources compared to Jack.” More

importantly, the court found that “[t]his case was likely to have been a very

significant financial burden upon Jack, a fact known to Melissa when pursuing the

issues.” Melissa has not challenged these findings as clearly erroneous. In light of

these findings, the court did not abuse its discretion in ordering Melissa to pay

Jack’s attorney fees.

                                    Conclusion

[¶26.]       The circuit court found it was in Adam’s best interest to remain in

Jack’s physical custody. This finding is supported by numerous other findings

addressing the applicable factors for consideration in determining a request for

change of custody. Based on these findings, the court did not abuse its discretion by

denying Melissa’s motion for temporary physical custody.

[¶27.]       We affirm. Jack’s request for appellate attorney fees is denied.




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[¶28.]       ZINTER, SEVERSON, and KERN, Justices, and WILBUR, Retired

Justice, concur.

[¶29.]       JENSEN, Justice, not having been a member of the Court at the time

this action was submitted to the Court, did not participate.




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