#26115-a-LSW

2012 S.D. 45

                             IN THE SUPREME COURT
                                     OF THE
                            STATE OF SOUTH DAKOTA

                                    ****
DUSTIN BEAULIEU,                             Plaintiff and Appellee,

      v.

DEANN S. BIRDSBILL,                          Defendant and Appellant.


                                    ****

                   APPEAL FROM THE CIRCUIT COURT OF
                      THE THIRD JUDICIAL CIRCUIT
                     MOODY COUNTY, SOUTH DAKOTA

                                    ****

                      THE HONORABLE TIM D. TUCKER
                                Judge

                                    ****

KELLY J. GOSLINGA
Sioux Falls, South Dakota                    Attorney for plaintiff
                                             and appellee.


JOSEPH THRONSON of
Dakota Plains Legal Services
Sisseton, South Dakota                       Attorneys for defendant
                                             and appellant.

                                    ****

                                             CONSIDERED ON BRIEFS
                                             ON MAY 21, 2012

                                             OPINION FILED 06/06/12
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WILBUR, Justice

[¶1.]       The trial court granted Father’s request for a change of child custody

from Mother to Father. Mother appeals arguing that the trial court abused its

discretion in concluding that compelling circumstances warranted the separation of

siblings. We affirm.

                 FACTS AND PROCEDURAL BACKGROUND

[¶2.]       Deann Birdsbill and Dustin Beaulieu share one child, N.B., born

December 14, 2004. Deann and Dustin never married, but lived together for

approximately two years. When Deann and Dustin ended their relationship, Deann

retained custody of N.B. However, Deann and Dustin did not have a court ordered

custody agreement or any written custody agreement. Sometime after Deann and

Dustin separated, Deann entered into a romantic relationship with Ferland Knight.

Deann’s relationship with Knight produced N.B.’s half-sister, A.K.

[¶3.]       In March 2011, Dustin filed an action requesting the trial court to

grant him custody of N.B. At trial, Dustin introduced evidence indicating that

Deann was providing N.B. with an unstable environment. Dustin testified that he

noticed several different males present in Deann’s home on the occasions that he

picked up and dropped off N.B. It is undisputed that, since her relationship with

Dustin, Deann also had a short-lived marriage to Preston Freeman. Deann and

Freeman’s marriage was annulled six months after it took place.

[¶4.]       Deann also testified that her relationship with Knight was abusive.

One abusive incident resulted in the arrest of both Deann and Knight for assault.

Deann and Knight were each intoxicated at the time of the incident. Two abusive


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incidents resulted in trips to the emergency room. After one abusive incident, N.B.

saw blood on Deann’s face.

[¶5.]        Several times Deann contacted Dustin for help. One time, Deann

called Dustin because she was stranded at a gas station in Iowa with A.K., who was

approximately six months old at the time. Deann purchased a bus ticket to Sioux

Falls, where Dustin met Deann and allowed her and A.K. to stay with his family for

several weeks until Deann was able to obtain financial assistance and move out on

her own. Another time, Dustin drove Deann home after an altercation with another

female at a bar. Upon arriving at her home, Deann exited Dustin’s car, ripped a

mirror off the car and threw it through his car window. Deann later pleaded guilty

to vandalism.

[¶6.]        In contrast, Dustin presented evidence showing that he would provide

N.B. a stable environment. Dustin has resided in Flandreau for six years, where

members of his family also reside. Dustin has been employed full-time with the

same company for approximately four and a half years. Dustin and his partner,

Kiya, both testified that they maintain a sober household, free from both drugs and

alcohol.

[¶7.]        The trial court granted Dustin custody reasoning that, although both

parents are fit, Dustin would provide N.B. with “heightened stability.” The trial

court also found that the “heightened stability” Dustin would provide was a

compelling reason to separate N.B. from her half-sibling A.K. In reaching this

conclusion, the trial court noted that it “considered the domestic violence in

[Deann’s] home and the concerns with [Deann’s] alcohol use.” Deann appeals.


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                              STANDARD OF REVIEW

[¶8.]        As we recently stated in Simunek v. Auwerter:

             We review child custody decisions under the abuse of discretion
             standard of review. Fuerstenberg v. Fuerstenberg, 1999 S.D. 35,
             ¶ 22, 591 N.W.2d 798, 807 (citations omitted). “An abuse of
             discretion occurs in a child custody proceeding when the trial
             court’s review of the traditional factors bearing on the best
             interests of the child is scant or incomplete.” Kreps v. Kreps,
             2010 S.D. 12, ¶ 25, 778 N.W.2d 835, 843 (quoting Pietrzak v.
             Schroeder, 2009 S.D. 1, ¶ 37, 759 N.W.2d 734, 743). “[W]e . . .
             uphold the trial court’s findings of fact unless they are clearly
             erroneous.” Kreps, 2010 S.D. 12, ¶ 25, 778 N.W.2d at 843
             (citations omitted). Findings of fact are clearly erroneous when
             our “review of the evidence leaves . . . a definite and firm
             conviction that a mistake has been made.” Id.

2011 S.D. 56, ¶ 8, 803 N.W.2d 835, 837.

                            ANALYSIS AND DECISION

[¶9.]        This Court has, on several occasions, reviewed a trial court order

separating siblings, including half-siblings. In doing so, this Court has

“recognized and held that the best interests of the child require a showing of

compelling reasons before a separation of siblings will be upheld.” Madsen v.

Madsen, 456 N.W.2d 551, 553 (S.D. 1990). However, this Court has clarified that

“compelling circumstances” is not an absolute rule, and “maintaining children in the

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

Simunek, 2011 S.D. 56, ¶ 10, 803 N.W.2d at 837. Thus, even when the separation of

siblings is at issue, “[t]he [trial] court’s review of a parent’s request to change child

custody is governed by the best interests of the child, considering the child’s

temporal, mental, and moral welfare.” Id. ¶ 9 (citing SDCL 25-4-54; Fuerstenberg,

1999 S.D. 35, ¶ 22, 591 N.W.2d at 806).


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[¶10.]       To encourage trial courts to take a balanced and systematic approach

in making custody determinations, we have articulated the following factors, which

a trial court may, but is not required to, consider in determining the best interests

of a child: parental fitness, stability, primary caretaker, child’s preference, harmful

parental misconduct, separating siblings, and substantial change of circumstances.

Id. We have consistently stated that these factors are to be viewed as guideposts for

trial courts, thus, “[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.” Zepeda v. Zepeda, 2001 S.D. 101, ¶ 13, 632

N.W.2d 48, 53.

[¶11.]       In this case, the record and the trial court’s decision show that two

factors were primarily at issue: stability and separation of siblings. On appeal,

neither party has asserted that the trial court should have weighed additional

factors in determining the best interests of N.B. Rather, Deann argues that the

trial court improperly determined that Dustin could provide greater stability and

that this greater stability amounted to a “compelling circumstance” warranting the

separation of N.B. from her sibling A.K. More specifically, Deann argues that the

trial court improperly weighed three facts in reaching its conclusion: Dustin’s

relative economic advantage, the domestic abuse in Deann’s home, and Deann’s

alcohol use. However, our review of the record reveals that the trial court properly

weighed the appropriate evidence and factors and its findings as to each factor are




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not clearly erroneous. Thus, we conclude that the trial court did not abuse its

discretion in awarding custody of N.B. to Dustin.

[¶12.]       First, the record does not support Deann’s argument that the trial

court improperly weighed Dustin’s economic advantage. The trial court’s findings of

fact and conclusions of law do not mention Dustin’s economic advantage in arriving

at its conclusion that Dustin would provide a more stable environment for N.B.

Rather, the trial court focused generally on stability, and more specifically, on the

domestic abuse in Deann’s home. Thus, we find no merit to Deann’s argument that

the trial court improperly relied on Dustin’s relative economic advantage.

[¶13.]       Second, regarding the trial court’s reliance on the domestic abuse in

Deann’s home, Deann argues that the evidence presented at trial did not constitute

a “history of domestic abuse” under SDCL 25-4-45.5. This statute provides: “In

awarding custody involving a minor, the court shall consider . . . [a] history of

domestic abuse” and if a “greater convincing force of the evidence” proves a history

of domestic abuse, there becomes “a rebuttable presumption that awarding custody

to the abusive parent is not in the best interest of the minor.” Id.

[¶14.]       Here, the trial court did not find a “history of domestic abuse” and did

not apply the rebuttable presumption contained in SDCL 25-4-45.5. However,

although the rebuttable presumption contained in SDCL 25-4-45.5 was not

triggered, the trial court was still free to weigh the evidence presented regarding

Deann’s arrest for domestic abuse, her testimony regarding abusive incidents

between her and Knight, the resulting trips to the emergency room, and N.B. seeing

blood on Deann’s face in determining what was in the best interests of N.B. Thus,


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we hold that the trial court did not abuse its discretion in considering the evidence

of domestic abuse.

[¶15.]       Third, and finally, Deann argues that the trial court improperly

considered Deann’s alcohol use. Deann’s argument relies on a misinterpretation of

this Court’s decision in Jones v. Jones, 423 N.W.2d 517 (S.D. 1988). In Jones, this

Court stated, “although mother’s social activity during the separation is troubling,

father failed to present any evidence showing an adverse effect upon [child].” Id. at

519. Deann reads the forgoing language as announcing a requirement that, in

order for a trial court to consider parental misconduct in awarding custody, it must

be established that the conduct had an adverse effect on the child. We do not read

this isolated statement in Jones as announcing a bright line rule that a trial court

may only consider parental misconduct if the conduct has an adverse effect on the

child. Notably, Jones is factually distinguishable. In Jones, we were weighing the

misconduct of both mother and father. In situations where a trial court is weighing

misconduct of both mother and father, it may be relevant whether one or both

parties’ misconduct had an adverse effect upon the child. Here, however, the trial

court was only confronted with Deann’s alcohol use and related misconduct.

[¶16.]       In addition to this factual distinction, this Court has since stated, in

making custody determinations, “it is necessary to consider the overall conduct and

abilities of both the custodial and the non-custodial parent. Even if the custodial

parent engages in immoral conduct, that parent may still provide better overall care

for the children than the non-custodial parent.” Shoop v. Shoop, 460 N.W.2d 721,

724 (S.D. 1990). Thus, although it would have been improper to conclude that


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Deann’s alcohol related misconduct alone necessitated a change in custody, it was

not improper for the trial court to contrast Deann’s alcohol related misconduct with

Dustin’s undisputed testimony that he maintains a home free from alcohol and

drugs in determining the “overall conduct and abilities of both the custodial and the

non-custodial parent.”

                                  CONCLUSION

[¶17.]       The trial court properly considered the relevant factors in making its

custody determination and its finding that compelling reasons existed to separate

A.K. from her half-sibling is not clearly erroneous. We therefore hold that the trial

court did not abuse its discretion in awarding primary physical custody to Dustin

and affirm its ruling.

[¶18.]       Affirmed.

[¶19.]       GILBERTSON, Chief Justice, and KONENKAMP, ZINTER, and

SEVERSON, Justices, concur.




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