#26957-a-DG

2015 S.D. 59

                            IN THE SUPREME COURT
                                    OF THE
                           STATE OF SOUTH DAKOTA

                                   ****
CRAIG WILLARD MCCARTY,                      Plaintiff and Appellant,

     v.

KIMBERLY PAULL MCCARTY,                     Defendant and Appellee.


                                   ****

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

                                   ****

                     THE HONORABLE JANINE KERN
                               Judge

                                   ****

LINDA LEA M. VIKEN
KYLIE M. RIGGINS of
Viken & Riggins Law Firm
Rapid City, South Dakota                    Attorneys for plaintiff
                                            and appellant.


ROBERT J. GALBRAITH of
Nooney & Solay, LLP
Rapid City, South Dakota                    Attorneys for defendant
                                            and appellee.

                                   ****

                                            CONSIDERED ON BRIEFS
                                            ON MARCH 23, 2015

                                            OPINION FILED 07/08/15
#26957

GILBERTSON, Chief Justice

[¶1.]        Dr. Craig McCarty (Father) appeals after the circuit court changed

primary physical custody of the parties’ two children, N.M. and C.M., to Kimberly

McCarty (Mother). Father argues on appeal that the circuit court erred when it

found that a substantial change in circumstances was not required to change

custody. Father also argues that the court erred when it found that returning

primary physical custody to Mother was in the best interests of the children based

on a substantial change in circumstances. We affirm.

                            Facts and Procedural History

[¶2.]        Father and Mother divorced in July 2007. At the time of the divorce,

the parties agreed to share joint legal custody of N.M. and C.M., with Mother

having primary physical custody. After the divorce, Mother maintained residence

in Box Elder, South Dakota, and Father moved to Gillette, Wyoming. The children

would usually spend the school year in Box Elder and then stay in Gillette during

the summer. Mother had primary physical custody of the children for four years

until Father filed a petition for a change of custody in June 2011. Father alleged

that Mother was not adequately addressing the children’s special needs and was not

honoring Father as a parent.

[¶3.]        On June 6, 2012, following a contested trial, the circuit court changed

primary physical custody from Mother to Father. The court entered findings of fact,

conclusions of law, and an order modifying child support and changing custody. In

its conclusions of law, the court stated, “Unless otherwise agreed by the parties in

writing, the [c]ourt will set up a review hearing in May 2013.” The children


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subsequently moved to Gillette and resided with Father and Dr. Breck McCarty

(Stepmother).

[¶4.]        On May 28, 2013, Mother filed a motion for a change of custody. The

court held a two-day trial on August 22 and 23, 2013. After hearing considerable

testimony from Mother, Father, Stepmother, Tom Collins (the court-appointed

parenting coordinator), and Dr. Jim Simpson (the custody evaluator), the court

changed custody from Father back to Mother. The circuit court held that a showing

of a substantial change in circumstances was not required because the circuit court

had scheduled a “review hearing” one year earlier. The circuit court further held

that, even if a substantial change in circumstances was required, a substantial

change in circumstances existed in this case based on “the breakup and the

contentious dissolution of [Stepmother] and [Father’s] medical group” and

“[Stepmother’s] diagnosis in mid-January of stage 4 metastasized breast cancer

with cancer now present, in essence, in her liver.” Lastly, the circuit court held,

after analyzing the Fuerstenberg factors, that it was in the best interests of the

children for Mother to again have primary physical custody. Father appeals.

[¶5.]        Father raises two issues in this appeal:

             1.     Whether the circuit court erred in holding that it was not
                    required to find a substantial change in circumstances.

             2.     Whether it was in the best interests of the children to change
                    primary physical custody back to Mother based on a substantial
                    change in circumstances.

                                 Standard of Review

[¶6.]        “We review ‘child custody decisions under the abuse of discretion

standard of review.’” Roth v. Haag, 2013 S.D. 48, ¶ 11, 834 N.W.2d 337, 339-40

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(quoting Schieffer v. Schieffer, 2013 S.D. 11, ¶ 13, 826 N.W.2d 627, 633). “An abuse

of discretion is a discretion exercised to an end or purpose not justified by, and

clearly against, reason and evidence.” Id. ¶ 11, 834 N.W.2d at 340 (quoting

Schieffer, 2013 S.D. 11, ¶ 14, 826 N.W.2d at 633). “An abuse of discretion occurs in

a child custody proceeding when the [circuit] 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). Further, “findings of fact are reviewed under the

clearly erroneous standard of review.” Schieffer, 2013 S.D. 11, ¶ 15, 826 N.W.2d at

633. Finally, “this Court gives due regard to the [circuit] court’s opportunity ‘to

judge the credibility of witnesses and to weigh their testimony.’” Id. (quoting

Walker v. Walker, 2006 S.D. 68, ¶ 11, 720 N.W.2d 67, 70-71).

                                       Decision

[¶7.]        1.     Whether the circuit court erred in holding that it was not
                    required to find a substantial change in circumstances.

[¶8.]        The circuit court held that Mother was not required to show a

substantial change in circumstances because the court intended to hold a “review

hearing” in May 2013. Father argues that the two-day August 2013 hearing was

more than a “review hearing.” It was a “contested proceeding,” which required

Mother to “show a substantial change of circumstances” because the circuit court

did not grant interim custody to Father in 2012, but rather permanent physical

custody. See Benson v. Loffelmacher, 2012 S.D. 75, ¶ 21, 824 N.W.2d 82, 86. We

agree.



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[¶9.]         In Benson, the circuit court entered an order granting interim custody

to the father while awaiting a decision from the child custody evaluator and while

the motion for custody was pending a final hearing. Id. ¶¶ 5-6, 824 N.W.2d at 83.

In the present case, the circuit court was not awaiting a decision from the

evaluator, nor was there a motion for a change of custody pending before the court

from June 2012 to May 2013. In Benson, the circuit court later held a hearing in

which “the court indicated that it would be considering the evidence and testimony

from the earlier interim hearing along with any new evidence.” Id. ¶ 16, 824

N.W.2d at 85. In this case, however, the court’s focus was on new evidence and

testimony since Father received primary physical custody in June 2012. After the

June 2012 hearing, the circuit court “vested” Father with primary physical custody,

i.e., the court’s decision was definitive and final. 1 Mother made a formal motion

with the court to change custody, and the two-day, August 2013 “contested

proceeding” ensued. 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. See SDCL 25-4-45; Benson, 2012 S.D. 75, ¶

21, 824 N.W.2d at 86; McKinnie v. McKinnie, 472 N.W.2d 243, 244 (S.D. 1991)

(holding that the party seeking modification must show a substantial change in

circumstances); Kolb v. Kolb, 324 N.W.2d 279, 281-83 (S.D. 1982) (requiring a



1.      Finality is confirmed by the circuit court’s findings of fact from the two-day
        August 2013 trial. The court stated as follows:
              The court: The [c]ourt did not designate [custody to Father] as
              a temporary determination. The [c]ourt simply changed
              primary physical custody to . . . [F]ather and set a review
              hearing in one year.

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substantial change in circumstances even when the “original custody order was

based on a stipulation of the parties[]”). Therefore, we hold that Mother was

required to show a substantial change in circumstances to change custody. 2

[¶10.]         2.     Whether it was in the best interests of the children to change
                      primary physical custody back to Mother based on a substantial
                      change in circumstances.

[¶11.]         The circuit court found that it was in the best interests of the children

to change primary physical custody back to Mother based on a substantial change

in circumstances. The court’s decision rested primarily on two considerations: the

stress brought on by the dissolution of Father and Stepmother’s medical group and

Stepmother’s diagnosis of stage 4, metastasized breast cancer that subsequently

spread to her liver. The court also provided an in-depth analysis of the

Fuerstenberg factors. Father contends on appeal that the two main reasons cited by

the court do not constitute a substantial change in circumstances and, assuming

arguendo that they do constitute a change in circumstances, they are neither

relevant nor supported by the evidence.

[¶12.]         “When determining custody, the court shall be guided by consideration

of what appears to be for the best interests of the [children] in respect to the

[children’s] temporal and mental and moral welfare.” Roth, 2013 S.D. 48, ¶ 13, 834

N.W.2d at 340 (quoting Schieffer, 2013 S.D. 11, ¶ 17, 826 N.W.2d at 634) (internal

2.       While the circuit court erred in finding that a substantial change in
         circumstances was not required, the court alternatively held:
               In this case [M]other filed a formal motion to change custody
               and the [c]ourt, as an alternative finding, notes that . . . if a
               reviewing court would determine that a substantial change in
               circumstances was required, the [c]ourt finds that there are
               substantial changes in the circumstances of the parties today.

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quotation marks omitted); SDCL 25-4-45. “The [circuit] court may, but is not

required to, consider the following Fuerstenberg factors in determining the best

interests and welfare of the [children]: parental fitness, stability, primary

caretaker, [children’s] preference, harmful parental misconduct, separating siblings,

and substantial change of circumstances.” Roth, 2013 S.D. 48, ¶ 13, 834 N.W.2d at

340 (quoting Schieffer, 2013 S.D. 11, ¶ 17, 826 N.W.2d at 634). “We encourage

[circuit] courts to take a balanced and systematic approach when applying the

factors relevant to a child custody proceeding.” Id. (quoting Schieffer, 2013 S.D. 11,

¶ 18, 826 N.W.2d at 634). “However, ‘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 [children].’” Id. (quoting Beaulieu

v. Birdsbill, 2012 S.D. 45, ¶ 10, 815 N.W.2d 569, 572).

Fitness

[¶13.]       When looking at fitness of the parents, circuit courts may look at the

following:

             (1) mental and physical health; (2) capacity and disposition to
             provide the [children] with protection, food, clothing, medical
             care, and other basic needs; (3) ability to give the [children] 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 [children] and the
             other parent; (5) commitment to prepare the [children] for
             responsible adulthood, as well as to insure that the child
             experiences a fulfilling childhood; and (6) exemplary modeling so
             that the [children] witness[] firsthand what it means to be a
             good parent, a loving spouse, and a responsible citizen.




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Schieffer, 2013 S.D. 11, ¶ 17, 826 N.W.2d at 634 (quoting Kreps, 2010 S.D. 12, ¶ 26,

778 N.W.2d at 843-44).

[¶14.]       The court first looked at the mental and physical health of the parties.

The court said both parents were in good mental and physical health. However, the

court believed Stepmother’s health was “in crisis” because of her cancer. Testimony

at trial established that when Stepmother was diagnosed and began chemotherapy

in 2013, Stepmother would spend “ten plus hours a week” receiving treatment. For

the following three to five days after chemotherapy, she would become “very, very

fatigued and dehydrated.” By the time of the 2013 trial, Stepmother had finished

chemotherapy and required treatment only “an hour every three weeks,” plus some

visits to her oncologist. Stepmother admitted her cancer was not curable and that

the prognosis was not good. In fact, Father’s testimony established that stage four

metastasized breast cancer usually resulted in death within five years. However,

Father also testified that Stepmother’s new medication looked promising and that

some patients’ cancer had gone into and stayed in remission. The circuit court

expressed concern that Father minimized Stepmother’s condition and the impact it

had on the children. While Father was optimistic about Stepmother’s recovery, he

admitted that with Stepmother’s condition came much uncertainty.

[¶15.]       The circuit court found: “Both parents have the capacity to provide the

children with protection, food, clothing, medical care and other basic needs;” and,

“Both parents have the ability to give the children love, affection, guidance and to

work on their education.” The court reprimanded Mother for not always

encouraging contact between the children and their Father and Stepmother and


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noted Father did a better job facilitating meaningful contact. Both parents could

encourage the family’s religious beliefs, encourage education, and prepare the

children for adulthood.

[¶16.]       Father argues that the circuit court became fixated on Stepmother’s

condition and disregarded or minimalized the other factors. We said in Arneson v.

Arneson, “Although the health and physical condition of a parent [or stepparent] is

a valid factor in determining a child’s best interests, a judge must neither presume

the existence of limitations nor fail to adequately consider other relevant factors.”

2003 S.D. 125, ¶ 21, 670 N.W.2d 904, 912. Even though Arneson dealt with a

physical disability and not a life-threatening illness, Father contends the same

rationale applies. While the same rationale may well apply, the record indicates

that the circuit court’s concerns about Stepmother’s cancer were justified. The

circuit court stated:

             [Stepmother’s] physical health is in crisis with a stage 4
             diagnosis. That her role in this case and her ability to co-parent,
             along with [Father], is certainly one of the things the [c]ourt
             considered in making this move. Namely, the teamwork
             approach testified to by both doctors in taking the children into
             their care and investing deeply in their lives and providing them
             with the best possible childhood is something that this [c]ourt
             relied on significantly.

The “teamwork approach” the court referenced is the work schedule organized by

Father and Stepmother to care for the children. Father and Stepmother alternated

working days so that one parent could take the children to school, pick them up, be

home with them, etc. The court was concerned that the flow and organization of

this schedule would be interrupted due to Stepmother’s cancer, especially given the

uncertainty and unpredictability of her condition. Because of the uncertainty facing

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Stepmother’s condition and the amount of time that was and may be devoted to

treatment, the court found the first Fuerstenberg factor weighed in Mother’s favor.

Stability

[¶17.]        When analyzing stability, the circuit court should look at the following

subfactors:

              (1) the relationship and interaction of the [children] with the
              parents, step-parents, siblings and extended families; (2) the
              [children’s] adjustment to home, school and community; (3) the
              parent with whom the [children have] formed a closer
              attachment, as attachment between parent and [children] is an
              important developmental phenomena and breaking a healthy
              attachment can cause detriment; and (4) continuity, because
              when [children have] 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 [children] might be gained.

Roth, 2013 S.D. 48, ¶ 14, 834 N.W.2d at 340 (quoting Schieffer, 2013 S.D. 11, ¶ 17,

826 N.W.2d at 634).

[¶18.]        The circuit court found that the children had a good relationship with

both parents and Stepmother. The court noted that the children did have some

difficulty in adjusting to Gillette, but had made strides academically. For example,

the children were involved in an after-school program and were learning to

socialize. However, the court expressed concern over C.M.’s friendship with a much

younger girl, and how such a friendship was not appropriate. Dr. Simpson testified

that the children were more relaxed in Mother’s home and that they felt more

closely bonded with her. Further, the children were enrolled in extra-curricular

activities like swimming, 4-H, scouting, and music lessons in Box Elder. Father and

Stepmother chose not to enroll the children in extra-curricular activities in Gillette,


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but they stated that the children’s after-school programs adequately provided for

their social needs. The court believed the children were more integrated in the Box

Elder community because they had spent most of their young lives living there.

Mother also presented evidence that she would have more available free time for

the children.

[¶19.]          The circuit court also noted that Stepmother’s health impacted the

stability of the Father’s home. “The [c]ourt is concerned that because of the

instability now present in the home of [Father], despite every effort to maintain

routine and structure, there are some very difficult life challenges facing [Father

and Stepmother] that are going to impact the children.” The court voiced concern

about how four and a half months of chemotherapy impacted C.M. C.M., who has

special needs, had bed wetting problems, anger issues, and disciplinary issues while

staying with Father. While Father and C.M. worked through some of those issues,

the court expressed concern for C.M.

[¶20.]          The court also cited “the breakup and the contentious dissolution of

[Stepmother] and [Father’s] medical group” as a source of instability. Father and

Stepmother were partners in a medical group until discord arose among the

partners. The medical group dissolved. Father testified that along with the

dissolution came “considerable financial hardship.” After hearing testimony about

the dissolution from Father and Stepmother, the court characterized the post-

dissolution financial situation as “devastating.” For example, the court had

previously required Father to pay for the children’s health insurance. While the

medical group dissolved, Father’s insurance lapsed, and Mother was unable to fill


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N.M.’s prescription. In the wake of the dissolution, Father and Stepmother created

their own medical practice. At the time of the hearing, Father and Stepmother

were continuing to pay debt and had yet to realize any profit. Mother, on the other

hand, had a steady job as a bus driver and lunchroom monitor at a local school. In

the end, the court appeared to weigh this factor in favor of Mother, and we cannot

say that such a finding was clearly erroneous or “not justified by, or clearly against,

reason and evidence.” See Roth, 2013 S.D. 48, ¶ 11, 834 N.W.2d at 340 (quoting

Schieffer, 2013 S.D. 11, ¶ 14, 826 N.W.2d at 633).

Primary Caretaker

[¶21.]       Mother had been the primary caretaker of the children for most of

their young lives, but Father also served as primary caretaker for a year. Both

parents had the ability to care for the children. The court did not weigh this factor

in favor of either party.

Parental Misconduct

[¶22.]       The court found that this is “not a case of parental misconduct.”

However, the court reprimanded Mother for failing to fully cooperate with Father

and using the children to gather intelligence for future litigation. See Fossum v.

Fossum, 1996 S.D. 38, ¶ 23, 545 N.W.2d 828, 832 (“[T]he courts, the parties and

especially the children must be protected from endless and vexatious litigation and

the resulting uncertainty flowing therefrom.” (Italics removed.) (quoting Hanks v.

Hanks, 334 N.W.2d 856, 858 (S.D. 1983)). The court said it would impose sanctions

on Mother if she continued to alienate the children from Father and Stepmother.




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Mother promised to improve her behavior. The court did not weigh this factor in

either Mother’s or Father’s favor.

Children’s Preference

[¶23.]       The circuit court found that the children had a closer relationship with

their Mother and were more relaxed in her home. However, the court did not make

a specific finding on the children’s preference. The children did not testify.

Separating Siblings

[¶24.]       Father and Stepmother have a young son, who is the stepbrother of

both N.M. and C.M. “Generally, siblings and half-siblings ‘should not be separated

absent compelling circumstances.’” Simunek v. Auwerter, 2011 S.D. 56, ¶ 10,

803 N.W.2d 835, 837 (quoting Fuerstenberg v. Fuerstenberg, 1999 S.D. 35, ¶ 32, 591

N.W.2d 798, 809). “However, this is not an absolute rule, and ‘maintaining children

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

child.” Id. (Fuerstenberg, 1999 S.D. 35, ¶ 32, 591 N.W.2d at 809). “Separating

siblings is ‘one of several factors courts consider in determining the best interests of

the children.’” Id. (quoting Hathaway v. Bergheim, 2002 S.D. 78, ¶ 32, 648 N.W.2d

349, 354 (Gilbertson, C.J., dissenting)).

[¶25.]       The circuit court acknowledged that stepsiblings should not be

separated absent compelling circumstances and held that compelling circumstances

existed in this case. The court found “in weighing the children’s adjustments and

the uncertainty in [Father’s] home at this point, with reference to [Stepmother’s]

diagnosis, and the overwhelming time commands of their business, her illness, and

the other factors in the case, that the necessity and welfare of C.M. and N.M.


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warrant separating the siblings.” See Price v. Price, 2000 S.D. 64, ¶ 46, 611 N.W.2d

425, 435 (holding that siblings should not be separated unless demanded by

necessity and welfare). The court further noted that the impact of separation would

be less severe in this case because the stepsiblings had only resided together for

nine months. While this factor is admittedly a close call and may even weigh in

favor of Father (as Mother acknowledges in her reply brief), we cannot say that such

a finding was clearly erroneous or “not justified by, or clearly against, reason and

evidence.” See Roth, 2013 S.D. 48, ¶ 11, 834 N.W.2d at 340 (quoting Schieffer, 2013

S.D. 11, ¶ 14, 826 N.W.2d at 633). “It is not for this Court, but for the [circuit]

court, to gauge the credibility of the witnesses and to weigh the significance of their

testimony.” Fuerstenberg, 1999 S.D. 35, ¶ 22, 591 N.W.2d at 807.

Substantial Change in Circumstances

[¶26.]       As has been previously discussed, the circuit court relied primarily on

two substantial changes in circumstances: “the breakup and the contentious

dissolution of [Stepmother] and [Father’s] medical group” and “[Stepmother’s]

diagnosis in mid-January of stage 4 metastasized breast cancer with cancer now

present, in essence, in her liver.” The witnesses in this case testified to the

financial difficulty and instability caused by the dissolution of Father and

Stepmother’s medical group and the formation of Father and Stepmother’s new

medical partnership. Evidence was presented that Father and Stepmother argued

about the dissolution and that their arguing affected the children. Additionally, the

court found it “very concerning” that neither the parties nor the report prepared by

Dr. Simpson made the court aware of Stepmother’s illness, chemotherapy


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treatment, or prognosis until the August 2013 trial. The court believed this had an

“extremely serious and dramatic effect” on this case.

Best Interests of the Children

[¶27.]       We conclude the circuit court took a “balanced and systematic

approach when applying the factors relevant to [this] child custody proceeding.” See

Roth, 2013 S.D. 48, ¶ 13, 834 N.W.2d at 340 (quoting Schieffer, 2013 S.D. 11, ¶ 18,

826 N.W.2d at 634). The court conducted a two-day hearing, listened to extensive

testimony, had an opportunity to gauge the credibility of the witnesses, weighed the

evidence before it, and thoroughly explored the Fuerstenberg factors in its oral

findings of fact and conclusions of law. The circuit court’s “review of the traditional

factors bearing on the best interests of the [children was neither] scant [n]or

incomplete.” See Kreps, 2010 S.D. 12, ¶ 25, 778 N.W.2d at 843 (quoting Pietrzak,

2009 S.D. 1, ¶ 37, 759 N.W.2d at 743). Therefore, the circuit court did not abuse its

discretion when it determined that returning primary physical custody to Mother

was in the best interests of the children. We, therefore, affirm.

[¶28.]       ZINTER, SEVERSON, and WILBUR, Justices, and PEKAS, Circuit

Court Judge, concur.

[¶29.]       PEKAS, Circuit Court Judge, sitting for KERN, Justice, disqualified.




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