#25792-a-SLZ

2011 S.D. 56

                            IN THE SUPREME COURT
                                    OF THE
                           STATE OF SOUTH DAKOTA

                                   ****
JEREMIAH S. SIMUNEK,                        Plaintiff and Appellee,

      v.

ASHLEY (SIMUNEK) AUWERTER,                  Defendant and Appellant.



                                   ****

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

                                   ****

                    THE HONORABLE A. PETER FULLER
                               Judge

                                   ****

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

DEBRA D. WATSON
Rapid City, South Dakota                    Attorneys for plaintiff
                                            and appellee.

                                   ****

                                            CONSIDERED ON BRIEFS
                                            ON AUGUST 22, 2011

                                            OPINION FILED 09/07/11
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ZINTER, Justice

[¶1.]        Ashley Auwerter (Mother) and Jeremiah Simunek (Father) married,

had C.S.S. (Child), and later divorced. Mother and Father agreed to share legal

custody, with Mother having primary physical custody. Shortly before Child

entered kindergarten, Father moved to obtain primary physical custody. The

circuit court granted Father’s motion and Mother appeals. We affirm because the

court’s findings and conclusions reflect a balanced and systematic application of the

relevant factors governing child custody.

                            Facts and Procedural History

[¶2.]        After two years of marriage, Mother and Father separated. Mother

obtained primary physical custody of Child after the separation. Father

subsequently filed for a divorce. Father proposed that Mother remain the primary

physical custodian of Child and that he be allowed liberal parenting time. Mother

and Father agreed to this parenting plan, which was incorporated in the divorce

decree.

[¶3.]        Shortly after the separation, Father began dating Britni Mendel

(Stepmother). Child met Stepmother one month after Father and Mother separated

and before the divorce. Father and Stepmother later married and had a son (Half-

Brother). Father and Stepmother live on Father’s family’s ranch. Father works for

his family’s construction and hotel businesses. He has enrolled Child in activities in

the Hot Springs area.

[¶4.]        Mother owns a home in Rapid City and is employed by the City of

Rapid City. She has an associate’s degree in business as well as a bachelor’s degree


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in communication. Mother has enrolled Child in various activities in the Rapid City

area.

[¶5.]        Before Child was to begin kindergarten, Father moved to change

primary physical custody. The circuit court ordered a child custody evaluation. The

evaluator recommended a shared parenting plan. Mother requested a second child

custody evaluation. The second evaluator also recommended a shared parenting

plan, but suggested that Father have primary physical custody of Child when Child

began kindergarten. Based upon these evaluations, Mother and Father entered

into a second shared parenting agreement. As a part of this plan, Mother and

Father agreed that Father would obtain primary physical custody when Child

started kindergarten. Child was subsequently enrolled in kindergarten in Hot

Springs.

[¶6.]        When the time for kindergarten neared, Mother moved to modify the

parenting plan and obtain another child custody evaluation. The court ordered

another child custody evaluation. The evaluator noted that both parents had much

to offer Child, but opined that it was in Child’s best interests that Child be placed in

Mother’s primary physical custody.

[¶7.]        Trial was held in August of 2010. After entry of findings and

conclusions regarding the factors guiding child custody determinations, the court

awarded Father primary physical custody. Mother appeals claiming that the circuit

court abused its discretion in awarding Father primary physical custody.




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                                       Decision

[¶8.]        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.

(citations omitted).

[¶9.]        The circuit 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. SDCL 25-4-45; Fuerstenberg, 1999 S.D. 35, ¶ 22, 591

N.W.2d at 806. “The trial court may, but is not required to, consider the following

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.” Kreps, 2010 S.D. 12,

¶ 26, 778 N.W.2d at 843 (citing Fuerstenberg, 1999 S.D. 35, ¶¶ 24-34, 591 N.W.2d at

807-10). “We encourage trial courts to take a balanced and systematic approach”

when applying the factors relevant to a child custody proceeding. Fuerstenberg,

1999 S.D. 35, ¶ 23, 591 N.W.2d at 807.


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[¶10.]         The circuit court applied the Fuerstenberg factors, observing that most

of the factors favored neither parent. The court, however, noted that Father’s

physical custody would avoid separating siblings. Generally, siblings and half-

siblings “should not be separated absent compelling circumstances.” Id. ¶ 32, 591

N.W.2d at 809 (citing Mayer v. Mayer, 397 N.W.2d 638, 642 (S.D. 1986)). 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 Crouse v.

Crouse, 1996 S.D. 95, ¶ 21, 552 N.W.2d 413, 419). Separating siblings is “one of

several factors courts consider in determining the best interests of the children.”

Hathaway v. Bergheim, 2002 S.D. 78, ¶ 32, 648 N.W.2d 349, 354 (Gilbertson, C.J.,

dissenting).

[¶11.]         Mother argues that the court did not consider the totality of the

circumstances and instead considered the separation of siblings to be controlling as

a matter of law. We disagree. Concededly, the court found that separating Child

and Half-Brother favored Father and that the separation of siblings was one of the

few factors that was not equal for Mother and Father. But the court did not

indicate that this factor was controlling to the exclusion of all others. The court’s

review of the relevant factors spans several pages of trial transcript. The court did

not disregard all other factors: it made findings on each relevant factor. The court

took a balanced and systematic approach in applying the child custody factors.

[¶12.]         Mother also challenges the court’s finding that Father has the ability

to provide Child with guidance and good modeling behavior. She specifically




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contends that Father’s history of alcohol use and Father’s driving record make him

an unfit parent.

[¶13.]         Father had been convicted of three reckless driving offenses, one

careless driving offense, and nine speeding violations. Three of the convictions

resulted from arrests for driving while under the influence of alcohol. Child was in

Father’s care during two of the three arrests. On one occasion, Child was in the car.

One arrest occurred when Father was driving 104 miles per hour in a seventy-mile-

per-hour zone.

[¶14.]         A mental health and chemical dependency counselor evaluated

Father’s history with alcohol. The counselor’s diagnosis was “alcohol abuse.”

Nevertheless, the counselor opined that Father had changed his behavior and

matured, noting that the prior incidents occurred when Father was in his early

twenties.

[¶15.]         The court heard the evidence regarding Father’s history of alcohol use

and driving record, including live testimony from the alcohol counselor. The court

specifically addressed both issues, finding that Father had changed his behavior

and was a fit parent. Considering the court’s first-hand opportunity to observe the

counselor testify on these issues, we find no clear error in the court’s related

findings.*




*        Mother argues that the alcohol counselor ignored an eight-month-old arrest
         when opining that Father’s alcohol abuse was a problem that he had
         outgrown. However, the alcohol counselor testified live at trial and
         acknowledged the most-recent arrest.

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[¶16.]       This case involved conflicting child custody evaluations. One child

custody evaluator recommended that Father have primary physical custody when

Child started kindergarten. Another child custody evaluator recommended that

Mother have primary physical custody. It is within the circuit court’s discretion to

choose between conflicting experts. See Wise v. Brooks Constr. Servs., 2006 S.D. 80,

¶ 33, 721 N.W.2d 461, 472-73 (quoting Sander v. Minnehaha Cnty., 2002 S.D. 123, ¶

31, 652 N.W.2d 778, 786) (explaining that a “trier of fact is free to accept all of, part

of, or none of, an expert’s opinion”); see also In re J.A.H., 502 N.W.2d 120, 125 (S.D.

1993) (stating that it is within the trial court’s discretion to determine the best

interests of the child when the court is presented with conflicting testimony

regarding the termination of parental rights). The circuit court did not abuse its

discretion in choosing one of the two conflicting child custody evaluator’s opinions.

[¶17.]       In the final analysis, this is one of those difficult cases where the court

was forced to choose between two satisfactory parents. “Choosing between two

satisfactory options [for child custody] falls within a judge’s discretion.” Arneson v.

Arneson, 2003 S.D. 125, ¶ 14, 670 N.W.2d 904, 910 (citations omitted). Both Mother

and Father made mistakes as parents. Father introduced Child to Stepmother at

an inappropriate time and he had prior problems with alcohol. Mother made

disparaging comments about Father in the presence of Child. But the court found

that Mother and Father recognized their faults and corrected their behavior. Thus,

the court was forced to choose between two fit parents who loved and supported

Child. Ultimately, Child was going to start school, the parents lived in different

communities, and the equal shared parenting arrangement was no longer workable.


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The court was forced to make a choice, and it did not abuse its discretion in

choosing one of these two satisfactory options for primary physical custody.

[¶18.]         We deny both parties’ requests for appellate attorney’s fees.

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

Justices, concur.

[¶20.]         WILBUR, Justice, and MEIERHENRY, Retired Justice, did not

participate.




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