#26561-a-LSW

2013 S.D. 48

                        IN THE SUPREME COURT
                                OF THE
                       STATE OF SOUTH DAKOTA

                               ****
KYLIE ROTH,                             Plaintiff and Appellant,

     v.

CHAD HAAG,                              Defendant and Appellee.


                               ****

                 APPEAL FROM THE CIRCUIT COURT OF
                     THE FIRST JUDICIAL CIRCUIT
                   HANSON COUNTY, SOUTH DAKOTA

                               ****

                 THE HONORABLE CHERYLE W. GERING
                              Judge

                               ****

ROSE ANN WENDELL
Pierre, South Dakota                    Attorney for plaintiff
                                        and appellant.


MICHAEL E. UNKE
Salem, South Dakota                     Attorney for defendant
                                        and appellee.


                               ****

                                        CONSIDERED ON BRIEFS
                                        ON MAY 20, 2013

                                        OPINION FILED 07/03/13
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WILBUR, Justice

[¶1.]        Kylie Roth (Mother) appeals from the trial court’s order granting

change of primary physical custody of child (D.L.H.) to Chad Haag (Father). We

affirm.

                 FACTS AND PROCEDURAL BACKGROUND

[¶2.]        Mother and Father had D.L.H. out of wedlock on July 22, 1998.

Following the couple’s separation when D.L.H. was an infant, Mother retained

primary physical custody of D.L.H. and Father exercised his visitation rights

pursuant to the South Dakota standards for noncustodial parenting time.

[¶3.]        Mother married Steven Roth (Stepfather) and had two children (Roth

half-siblings) from that marriage. Mother, Stepfather, and the Roth half-siblings

live in Mitchell, South Dakota. Father married Sherry Haag (Stepmother) and had

four children (Haag half-siblings) from that marriage. Father, Stepmother, and the

Haag half-siblings live on an acreage near Alexandria, South Dakota.

[¶4.]        In January 2009, the Department of Social Services referred the Roth

family to a home-based therapy program because of Stepfather’s alleged abusive

behavior towards D.L.H. Victoria Fay, a mental health therapist, performed

counseling in the Roth home from January 2009 through June 2009. During that

time, Mother told Fay that D.L.H. was difficult to manage in the home. D.L.H. has

Attention Deficit Hyperactivity Disorder and displays traits of a mood disorder.

Fay noted that D.L.H. “display[ed] some very extreme behaviors of tantruming,

kicking, yelling, [and] being very defiant.” Fay also indicated that D.L.H. expressed

difficulty in his relationships with Stepfather and with the Roth and Haag half-


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siblings. Fay determined that D.L.H. responded positively to the home-based

therapy program.

[¶5.]          Mother discontinued Fay’s counseling services in July 2009. Father

had not participated in the counseling sessions. Father believed that counseling

was not necessary because D.L.H. did not have any behavioral problems when

D.L.H. was staying in Father and Stepmother’s home.

[¶6.]          In September 2009, the Roth family resumed the home-based

counseling program with Fay due to D.L.H.’s behavioral problems in their home and

problems with his peers at school. During this time, D.L.H. expressed to Fay his

desire to live with Father because he wanted to develop a closer relationship with

Father. On his own, D.L.H. devised a plan where he would equally divide his time

between Father and Mother. When D.L.H. presented this plan to Mother, she

rejected it.

[¶7.]          In March 2010, Mother filed a motion with the trial court and

requested an order requiring Father to ensure that D.L.H. received his prescribed

medication while D.L.H. was in Father’s care. Father also filed a motion requesting

an increase in visitation and joint legal custody. A hearing on the motion was held.

The trial court entered an order on June 30, 2010, that required Father to ensure

that D.L.H. received his prescribed medication while D.L.H. was in Father’s care

and Mother to make a good faith effort to take D.L.H to religion education classes. 1

The order further provided that Mother and Father have joint legal custody of


1.      Father, who is Catholic and attends church regularly, indicated that, while in
        Mother’s care, D.L.H. missed several Catholic religion classes. Mother does
        not practice any religion nor does she attend church.

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D.L.H., with primary physical custody remaining with Mother. Father was also

granted additional visitation time with D.L.H.

[¶8.]          In May 2012, Father filed a motion for change of custody with the trial

court. At a hearing on September 26, 2012, Fay, Mother, Father, and Stepmother

testified. Fay testified that “[a]t this point in his development, [D.L.H.] would

benefit from having a strong, healthy relationship with an adult male to role model

after at this point.” Fay also stated that D.L.H. expressed a desire to live with

Father. She further testified that both Mother and Father are good parents with

both having different styles of parenting, neither of which is harmful to D.L.H. In

chambers, D.L.H. expressed to the court a desire to live with Father.

[¶9.]          In its oral and written findings of fact and conclusions of law, the trial

court conducted a detailed analysis of the applicable Fuerstenberg factors. See

Fuerstenberg v. Fuerstenberg, 1999 S.D. 35, 591 N.W.2d 798. 2 In balancing all of

the applicable Fuerstenberg factors, the trial court determined that it was in

D.L.H.’s best interests that Father have primary physical custody.

[¶10.]         Mother appeals from the trial court’s order granting change of primary

physical custody of D.L.H. to Father. Mother and Father filed motions with this

Court, each requesting appellate attorney fees pursuant to SDCL 15-26A-87.3.




2.       The trial court determined that because there had been no prior court
         determination of D.L.H.’s best interests, a showing of a substantial change in
         circumstances as a basis for change of custody was not required. See
         Conclusion of Law 4 (stating that “[t]here was . . . an order in 2010 that came
         on as a result of a hearing before the [c]ourt, but not a [c]ourt
         determination”).

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                              STANDARD OF REVIEW

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

standard of review.” Schieffer v. Schieffer, 2013 S.D. 11, ¶ 13, 826 N.W.2d 627, 633

(quoting Simunek v. Auwerter, 2011 S.D. 56, ¶ 8, 803 N.W.2d 835, 837). “An abuse

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

clearly against, reason and evidence.” Id. ¶ 14 (quoting Hill v. Hill, 2009 S.D. 18, ¶

5, 763 N.W.2d 818, 822). “In the context of reviewing custody decisions, ‘an abuse of

discretion occurs . . . when the trial court’s review of the traditional factors bearing

on the best interests of the child is scant or incomplete.’” Id. (alteration in original)

(quoting Kreps v. Kreps, 2010 S.D. 12, ¶ 25, 778 N.W.2d 835, 843).

                            ANALYSIS AND DECISION

[¶12.]       In this appeal, Mother disputes the trial court’s application of two of

the Fuerstenberg factors: stability and separating siblings. Specifically, she argues,

among other things, that a change in primary physical custody is not necessary

when Father could have weekly visitation with D.L.H. because of the close

proximity of the Roth and Haag homes; D.L.H. has more consistency in Mother’s

home where D.L.H will have access to counseling services; Father has not

participated in counseling services; and Mother has provided for D.L.H.’s physical,

emotional, and mental needs since birth, including his medical needs. Mother also

contends that Father does not participate in parent-teacher conferences nor does

Father know D.L.H.’s classroom teacher. Additionally, Mother asserts that

compelling reasons do not exist to separate D.L.H. from his Roth half-siblings,

whom D.L.H. has grown up with to date.


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[¶13.]       “When determining custody, ‘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.’” Id. ¶ 17 (quoting SDCL 25-4-45). “The

trial court may, but is not required to, consider the following Fuerstenberg factors in

determining the best interests and welfare of the child: parental fitness, stability,

primary caretaker, child’s preference, harmful parental misconduct, separating

siblings, and substantial change of circumstances.” Id. (quoting Simunek, 2011 S.D.

56, ¶ 9, 803 N.W.2d at 837). “We encourage trial courts to take a balanced and

systematic approach when applying the factors relevant to a child custody

proceeding.” Id. ¶ 18 (quoting Simunek, 2011 S.D. 56, ¶ 9, 803 N.W.2d at 837).

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 child.” Beaulieu v. Birdsbill, 2012 S.D. 45, ¶ 10,

815 N.W.2d 569, 572 (quoting Zepeda v. Zepeda, 2001 S.D. 101, ¶ 13, 632 N.W.2d

48, 53).

[¶14.]       Courts examine the following subfactors when considering stability:

             (1) the relationship and interaction of the child with the parents,
             step-parents, siblings and extended families; (2) the child’s
             adjustment to home, school and community; (3) the parent with
             whom the child has formed a closer attachment, as attachment
             between parent and child is an important developmental
             phenomena and breaking a healthy attachment can cause
             detriment; 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.


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Schieffer, 2013 S.D. 11, ¶ 17, 826 N.W.2d at 634 (quoting Price v. Price, 2000 S.D.

64, ¶ 27, 611 N.W.2d 425, 432). “In these circumstances, the court should discern a

distinct need to remove a child from one setting and a reason to place the child in a

new one.” Fuerstenberg, 1999 S.D. 35, ¶ 26, 591 N.W.2d at 808.

[¶15.]          In addition, “siblings and half-siblings ‘should not be separated absent

compelling circumstances.’” Simunek, 2011 S.D. 56, ¶ 10, 803 N.W.2d at 837

(quoting Fuerstenberg, 1999 S.D. 35, ¶ 32, 591 N.W.2d at 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. (quoting 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)).

[¶16.]          The record demonstrates that in making its best interests

determination, the trial court made detailed oral findings of fact and conclusions of

law analyzing the applicable Fuerstenberg factors. The court subsequently entered

25 pages of equally detailed written findings of fact and conclusions of law. In doing

so, the court analyzed D.L.H.’s age, maturity, and intelligence; D.L.H.’s preference;

primary caretaker; separation of siblings; stability; and the parental fitness of

Mother and Father.

[¶17.]          In its analysis of the stability factor, the trial court considered that

D.L.H., at 14 years old, had expressed a desire to have a more intimate relationship

with Father. Father also expressed a desire for this relationship. Furthermore, the


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court relied on Fay’s report and testimony in discerning a distinct need to change

the physical custody arrangement, in particular, that D.L.H. “is reaching a crucial

point in his development where exposure to a male that is emotionally vested in his

life will enhance his ability to feel a sense of belonging among the male gender and

develop a stronger sense of independence through the acceptance that only a

positive male role model[’]s understanding can provide.” D.L.H. “explained [to Fay]

that as a young male approaching his teen years he ha[d] developed a desire to

reside with his father.” The court noted that it was “not just [D.L.H.’s] exposure to

any male individual, but to his father that [D.L.H.] does desire to have.”

[¶18.]       Moreover, the court recognized that D.L.H. had expressed difficulty in

his relationships with Stepfather and both of the Roth and Haag half-siblings. And,

while D.L.H. has attended school in Mitchell for all of his school years, D.L.H. has

been in the Alexandria community when he visits Father and has two cousins of the

same age who attend school in Alexandria.

[¶19.]       As to separation of siblings, the trial court noted that D.L.H. has two

half-siblings in the Roth home and four half-siblings in the Haag home.

Accordingly, the trial court considered this factor to be equal between Father and

Mother. Maintaining the status quo—D.L.H. and the Roth half-siblings living

together in the same household—is not an absolute rule and this arrangement

should not override what is in the best interest of D.L.H.

[¶20.]       From a review of the record, the trial court engaged in a balanced and

detailed analysis of the applicable factors bearing on the best interests

determination. This analysis was anything but “scant or incomplete.” Schieffer,


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2013 S.D. 11, ¶ 14, 826 N.W.2d at 633 (quoting Kreps, 2010 S.D. 12, ¶ 25, 778

N.W.2d at 843). Therefore, based on its balanced and thorough analysis of the

applicable Fuerstenberg factors, the trial court did not abuse its discretion in

determining that it was in the best interests of D.L.H. for Father to have primary

physical custody.

[¶21.]       Both parties submitted motions for appellate attorney fees to this

Court. The motions were accompanied by itemized and verified statements of the

attorney fees incurred pursuant to SDCL 15-26A-87.3. “Attorney fees are allowable

in domestic relation cases, ‘considering the property owned by each party, the

relative incomes, the liquidity of the assets and whether either party unreasonably

increased the time spent on the case.’” Hogen v. Pifer, 2008 S.D. 96, ¶ 16, 757

N.W.2d 160, 165 (quoting Barnes v. Matzner, 2003 S.D. 42, ¶ 24, 661 N.W.2d 372,

379). “We also ‘examine the fee request from the perspective of whether the party’s

appellate arguments carried any merit.’” Id. (quoting Arneson v. Arneson, 2003 S.D.

125, ¶ 38, 670 N.W.2d 904, 917). The record indicates that Father owns a vehicle

with a debt of $10,000; however, the record does not reveal any assets owned by

Mother. In addition, the record provides that Mother earns a gross monthly income

of $1,776 and Father earns $4,708 and pays unreimbursed union dues of $282.

Mother does not argue that Father unreasonably increased the time spent on the

case. Yet, Father argues that Mother’s lack of cooperation increased the time spent

on this case. He asserts that the parties agreed that Fay would conduct an

independent custody evaluation. And, after Fay determined that it was in the best

interests of D.L.H. that primary physical custody be with Father, Mother would not


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honor the agreement, which caused additional work on this case. The record,

however, does not contain any reference to the agreement upon which Father based

his request. Additionally, as the trial court recognized, this is a close case that

involves two fit parents. Thus, considering the relative financial condition of the

parties, the good faith arguments, and the closeness of the case, both parties’

motions for appellate attorney fees are denied.

                                   CONCLUSION

[¶22.]       Based on its balanced and thorough analysis of the applicable

Fuerstenberg factors, the trial court did not abuse its discretion in determining that

it was in the best interests of D.L.H. for Father to have primary physical custody.

The parties’ individual requests for appellate attorney fees are denied.

[¶23.]       Affirmed.

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

SEVERSON, Justices, concur.




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