#26129-a-SLZ

2012 S.D. 31

                         IN THE SUPREME COURT
                                 OF THE
                        STATE OF SOUTH DAKOTA

                                ****
KEITH BEACH and ELLEN BEACH,             Plaintiffs and Appellants,

     v.

DAVID ALLEN COISMAN,                     Defendant and Appellee.


                                ****

                 APPEAL FROM THE CIRCUIT COURT OF
                   THE SEVENTH JUDICIAL CIRCUIT
                 PENNINGTON COUNTY, SOUTH DAKOTA

                                ****

                    THE HONORABLE WALLY EKLUND
                               Judge

                                ****

CATHERINE E. MATTSON
Rapid City, South Dakota                 Attorney for plaintiffs and
                                         appellants.


TERRI L. WILLIAMS of
Gunderson, Palmer, Nelson
 & Ashmore, LLP
Rapid City, South Dakota                 Attorneys for defendant and
                                         appellee.

                                ****

                                         CONSIDERED ON BRIEFS
                                         ON MARCH 19, 2012

                                         OPINION FILED 05/02/12
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ZINTER, Justice

[¶1.]        This case involves a grandchildren visitation disagreement between a

father and maternal grandparents. The grandparents were unhappy with the

father’s restrictions on visitation, and they filed a petition for a broader visitation

plan. At the close of the grandparents’ case-in-chief, the circuit court granted

father’s motion for a judgment as a matter of law and motion for attorney’s fees. We

affirm.

                             Facts and Procedural History

[¶2.]        David and Becky Coisman married and lived in Rapid City. Becky’s

parents, Ellen and Keith Beach, lived on a ranch in Montana. In the summer of

2006, Becky gave birth to twins. The twins were born prematurely, and Ellen and

Keith helped David and Becky care for the twins during their infancy. Ellen and

Keith continued to have substantial contact with the twins over the next few years.

[¶3.]        In April 2009, Becky died. After Becky’s death, David arranged for the

twins’ continued contact with Ellen and Keith, including visitation at Ellen and

Keith’s Montana ranch. After these visits, David began to feel that Ellen and Keith

had insufficient concern for the twins’ exposure to heavy equipment and

recreational vehicles at the ranch. David was also concerned about the twins’

supervision when they were alone with Ellen and Keith.

[¶4.]        In December 2009, David allowed the children to travel to Montana

with Ellen for a three-day visit. Ellen and Keith kept the children an extra ten days

without David’s approval. Following this incident, David advised Ellen and Keith

that the children would not be allowed to return to Montana. Instead, he


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encouraged Ellen and Keith to visit the twins in South Dakota. In February 2010,

Ellen and Keith visited the twins in Rapid City. However, from March 2010 to

September 2010, no visitation occurred.

[¶5.]         In August 2010, Ellen and Keith filed a petition for visitation. Ellen

and Keith requested, among other things, to have the children in Montana one

weekend per month during the children’s school year, one week during Christmas

break, and four consecutive weeks during the summer. Ellen and Keith also

requested that David pay one-half the cost of transportation associated with the

visits. David did not accept Ellen and Keith’s requested visitation plan. However,

he did allow visitation in Rapid City throughout the court proceedings.

[¶6.]         David moved for a directed verdict (judgment as a matter of law) and

an award of attorney’s fees at the end of Ellen and Keith’s case-in-chief. The circuit

court granted both motions, and Ellen and Keith appeal.

                                        Decision

Grandparent Visitation

[¶7.]         Ellen and Keith argue that the circuit court erred as a matter of law in

applying SDCL 25-4-52,1 the grandparent visitation statute, to resolve this dispute.




1.      SDCL 25-4-52 provides in relevant part:

              The circuit court may grant grandparents reasonable rights of
              visitation with their grandchild, with or without petition by the
              grandparents, if the visitation is in the best interests of the
              grandchild and:
                     (1) If the visitation will not significantly interfere with
                     the parent-child relationship; or
                                                               (continued . . .)
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Ellen and Keith contend that SDCL 25-4-52 is inapplicable because that statute is

located in a chapter of the South Dakota code on “Divorce and Separate

Maintenance” and this proceeding was not part of a divorce. Ellen and Keith assert

that the circuit court should have applied SDCL 25-5-29,2 a general nonparent

visitation and custody statute.

[¶8.]         Even if Ellen and Keith’s petition for visitation should have been

considered under SDCL 25-5-29, they could not have prevailed unless they rebutted

David’s presumptive parental right to the custody and control of his children.

________________________
(. . . continued)
                  (2) If the parent or custodian of the grandchild has
                  denied or prevented the grandparent reasonable
                  opportunity to visit the grandchild.

2.      SDCL 25-5-29 provides:

              Except for proceedings under chapter 26-7A, 26-8A, 26-8B, or
              26-8C, the court may allow any person other than the parent of
              a child to intervene or petition a court of competent jurisdiction
              for custody or visitation of any child with whom he or she has
              served as a primary caretaker, has closely bonded as a parental
              figure, or has otherwise formed a significant and substantial
              relationship. It is presumed to be in the best interest of a child
              to be in the care, custody, and control of the child’s parent, and
              the parent shall be afforded the constitutional protections as
              determined by the United States Supreme Court and the South
              Dakota Supreme Court. A parent’s presumptive right to custody
              of his or her child may be rebutted by proof:
                     (1) That the parent has abandoned or persistently
                     neglected the child;
                     (2) That the parent has forfeited or surrendered his or
                     her parental rights over the child to any person other
                     than the parent;
                     (3) That the parent has abdicated his or her parental
                     rights and responsibilities; or
                     (4) That other extraordinary circumstances exist which, if
                     custody is awarded to the parent, would result in serious
                     detriment to the child.

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SDCL 25-5-29 generally authorizes any nonparent “to petition for custody or

visitation if they have served as the child’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. But SDCL

25-5-29 also provides: “It is presumed to be in the best interest of a child to be in the

care, custody, and control of the child’s parent, and the parent shall be afforded the

constitutional protections as determined by the United States Supreme Court and

the South Dakota Supreme Court.” Therefore, before a court may consider granting

visitation, the nonparent must rebut the constitutional presumptions that are due a

parent. Clough, 2008 S.D. 125, ¶ 11, 759 N.W.2d at 302. Rebutting those

constitutional presumptions requires a showing of parental unfitness or other

extraordinary circumstances. Feist v. Lemieux-Feist, 2010 S.D. 104, ¶ 13, 793

N.W.2d 57, 62-63 (“Only when parental unfitness or ‘extraordinary circumstances’

are present may this presumption be rebutted.”); Clough, 2008 S.D. 125, ¶ 9, 759

N.W.2d at 302 (“[I]n order to grant a nonparent visitation rights with a minor child

over the objections of a parent, a clear showing of gross misconduct, unfitness, or

other extraordinary circumstances affecting the welfare of the child is required.”).

SDCL 25-5-29 and 25-5-303 have codified some of those circumstances that may be

sufficient to rebut a parent’s presumptive right to custody and to control visitation.



3.    SDCL 25-5-30 supplements SDCL 25-5-29(4) by providing circumstances
      which suggest serious detriment to a child. Serious detriment may be shown
      by proving the existence of the following:

             (1) The likelihood of serious physical or emotional harm to the
             child if placed in the parent’s custody;
                                                           (continued . . .)
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[¶9.]         Ellen and Keith did not present any evidence rebutting David’s

presumptive parental right to control the custody and visitation of his children.

Ellen and Keith did not claim that David was unfit, and they presented no evidence

of extraordinary circumstances that would result in serious detriment to the

children. Indeed, they acknowledge that David is not denying all visitation.

Further, their “extraordinary circumstances” argument is facially insufficient. They

merely argue that David’s restriction would “impact the twins.”

[¶10.]        Ultimately, Ellen and Keith offered no evidence below, and do not

explain on appeal, how David’s restrictions are “extraordinary circumstances”

resulting in “serious detriment” to the twins within the meaning of SDCL 25-5-29(4)

and 25-5-30. Therefore, even if the circuit court had applied those statutes, Ellen


________________________
(. . . continued)
               (2) The extended, unjustifiable absence of parental custody;
               (3) The provision of the child’s physical, emotional, and other
               needs by persons other than the parent over a significant period
               of time;
               (4) The existence of a bonded relationship between the child and
               the person other than the parent sufficient to cause significant
               emotional harm to the child in the event of a change in custody;
               (5) The substantial enhancement of the child’s well-being while
               under the care of a person other than the parent;
               (6) The extent of the parent’s delay in seeking to reacquire
               custody of the child;
               (7) The demonstrated quality of the parent’s commitment to
               raising the child;
               (8) The likely degree of stability and security in the child’s
               future with the parent;
               (9) The extent to which the child’s right to an education would
               be impaired while in the custody of the parent; or
               (10) Any other extraordinary circumstance that would
               substantially and adversely impact the welfare of the child.

         SDCL 25-5-30.

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and Keith were not entitled to relief. “Fit parents are presumed to act in the best

interests of their children.” In re A.L., 2010 S.D. 33, ¶ 20, 781 N.W.2d 482, 487

(citing Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 2060, 147 L. Ed. 2d 49

(2000)). A court must give “at least some special weight” to a fit parent’s decision

regarding visitation. Troxel, 530 U.S. at 70, 120 S. Ct. at 2062. “[T]he decision

whether . . . an intergenerational relationship [between grandparents and

grandchildren] would be beneficial in any specific case is for the parent to make in

the first instance.” Id.

[¶11.]          Although the Troxel plurality “did not declare that grandparent

visitation should never be allowed when a fit parent makes a decision to deny or

restrict visitation,” the plurality recognized that “only in limited circumstances

should a state intervene in a fit parent’s decision.” In re A.L., 2010 S.D. 33, ¶ 22,

781 N.W.2d at 488. This is not one of those limited, extraordinary circumstances.

The circuit court did not abuse its discretion in granting David’s motion for a

judgment as a matter of law.4

Attorney’s Fees

[¶12.]         Ellen and Keith argue that the circuit court failed to enter sufficient

findings of fact and conclusions of law supporting its award of $7,815 in attorney’s

fees to David. Ellen and Keith also argue that the findings of fact that were entered



4.       Ellen and Keith also argue that a number of the circuit court’s findings of fact
         were not supported by evidence in the record. We disagree. Much of the
         relevant evidence is found in affidavits submitted by the parties. Moreover,
         the challenged findings are not dispositive because Ellen and Keith never
         established their initial burden of demonstrating parental unfitness or
         extraordinary circumstances.

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#26129

by the circuit court were not supported by the evidence. An award of attorney’s fees

is reviewed under the abuse of discretion standard. See Olson v. Olson, 1996 S.D.

90, ¶ 25, 552 N.W.2d 396, 402.

[¶13.]        A circuit court may award attorney’s fees “if appropriate, in the

interests of justice . . . in all cases of . . . visitation.” SDCL 15-17-38. An award is

based on a two-step analysis:

              First, the court must determine what constitutes a reasonable
              attorney[’s] fee. This requires consideration of (1) the amount
              and value of the property involved, (2) the intricacy and
              importance of the litigation, (3) the labor and time involved, (4)
              the skill required to draw the pleadings and try the case, (5) the
              discovery utilized, (6) whether there were complicated legal
              problems, (7) the time required for the trial, and (8) whether
              briefs were required. Second, it must determine the necessity
              for such fee. That is, what portion of that fee, if any, should be
              allowed as costs to be paid by the opposing party. This requires
              consideration of the parties’ relative worth, income, liquidity,
              and whether either party unreasonably increased the time spent
              on the case.

Edinger v. Edinger, 2006 S.D. 103, ¶ 17, 724 N.W.2d 852, 858 (alteration in

original). The circuit court must “enter findings of fact and conclusions of law when

ruling on a request for attorney[’s] fees.” Smetana v. Smetana, 2007 S.D. 5, ¶ 20,

726 N.W.2d 887, 895. Without findings of fact and conclusions of law, this Court

cannot conduct an adequate review of the circuit court’s decision. Crisman v.

Determan Chiropractic, Inc., 2004 S.D. 103, ¶¶ 30, 33, 687 N.W.2d 507, 514-15.

[¶14.]        The record reflects that the circuit court considered whether the award

was reasonable and necessary. The court also made sufficient findings on the

relevant factors. With regard to reasonableness, David presented an itemization of

his attorney’s time spent on the case, and the court found that David’s request for

attorney’s fees was reasonable. From the language in the court’s findings and
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conclusions, it is apparent that the court considered the labor, time involved, and

time required for trial. With respect to necessity, the court considered the parties’

property, relative incomes, fixed or liquid assets, and whether either party

unreasonably increased time spent on the case. The court found that David was a

“stay-at-home father,” and worked only to supplement the social security benefits

on which he lived. The court also observed that Ellen and Keith enjoyed a more

favorable financial position operating their ranch with their son. The court further

considered that this matter was pursued by Ellen and Keith even after David had

offered visitation in South Dakota. We conclude that the court’s findings and

conclusions were based on sufficient evidence, were sufficient to support the award,

and were sufficient to permit appellate review.

[¶15.]         Ellen and Keith, however, also argue that the circuit court did not hear

any testimony on the necessity factors.5 We disagree. Through Ellen’s testimony,

affidavits, hearings, and the pleadings, the circuit court was privy to information

about the parties’ assets, incomes, and time spent on the case. Ellen testified that

Becky had been the “big breadwinner” in the marriage, while David had struggled

financially to keep the shop he operated open. Ellen also testified about the

financial strain Becky and David faced when Becky was unable to work during her

pregnancy and postpartum care. Other evidence reflects that after Becky’s death in

2009, David’s financial struggles escalated when he lost his home by foreclosure and


5.       Ellen and Keith did not request a hearing on attorney’s fees, and they do not
         argue that the circuit court erred in not holding a hearing. Cf. Brennan v.
         Brennan, 88 S.D. 541, 543, 224 N.W.2d 192, 193 (1974) (“When objections
         were timely made[,] defendant’s request for a hearing [concerning attorney’s
         fees] should have been granted.”).

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#26129

had to care for his children as a single father. While David’s financial struggles

increased upon Becky’s 2009 death, Ellen and Keith received the proceeds of a

$100,000 insurance policy Becky had purchased during college. Further, there was

evidence that at the time of the 2011 trial, Ellen and Keith continued to operate

their 13,000-acre ranch with family members. The court did not err in awarding

attorney’s fees.

[¶16.]       Affirmed.

[¶17.]       GILBERTSON, Chief Justice, and KONENKAMP, SEVERSON, and

WILBUR, Justices, concur.




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