#25908-a-DG

2012 S.D. 14

                       IN THE SUPREME COURT

                              OF THE

                       STATE OF SOUTH DAKOTA

                               ****

RICHARD NEMEC,                          Plaintiff and Appellee,

     v.

ASHLEY GOEMAN,                          Defendant and Appellant.


                               ****

               APPEAL FROM THE CIRCUIT COURT OF
                  THE SECOND JUDICIAL CIRCUIT
               MINNEHAHA COUNTY, SOUTH DAKOTA

                               ****

               THE HONORABLE DOUGLAS E. HOFFMAN
                             Judge

                               ****


ROSE ANNE WENDELL
Pierre, South Dakota                    Attorney for plaintiff
                                        and appellee.

DOUGLAS P. CUMMINGS, Jr.
Sioux Falls, South Dakota               Attorney for defendant
                                        and appellant.

                               ****
                                        CONSIDERED ON BRIEFS
                                        ON JANUARY 9, 2012

                                        OPINION FILED 02/15/12
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GILBERTSON, Chief Justice

[¶1.]         This is an appeal from an order granting primary physical custody of

the parties’ three children to Father. We affirm.

                                       FACTS

[¶2.]         Ashley Goeman (Mother) and Richard Nemec (Father) met while they

were both in the custody of the Department of Corrections as teenagers. They had

three children in 2001, 2002, and 2003. Mother and Father never married. They

lived in Pierre, South Dakota until they separated in spring 2007. During this time,

Father’s mother, LaDene, provided substantial care and financial support to

Mother, Father, and the children.

[¶3.]         Father and Mother had a history of domestic abuse. Father pleaded

guilty to simple assault in 2005 and disorderly conduct in 2006.1 Mother secured a

protection order against Father in May 2007. Father consented to the order

becoming permanent without any court making a finding of domestic abuse. Father

completed an anger management class after his last conviction. After a car accident

in 2008, Father changed his lifestyle. He quit using illegal drugs and drinking.

[¶4.]         When the parties separated in 2007, Mother moved to Sioux Falls. She

left the children with LaDene in Pierre. Mother did not provide LaDene any

financial support for the children. LaDene only allowed Father to have contact with

the children in person when he was sober. He talked with the children almost daily

on the phone if he could not see them in person.


1.      Father was again convicted of disorderly conduct in 2007 in a case unrelated
        to domestic violence.

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[¶5.]         When Mother moved, she owned a vehicle but it was repossessed in

late 2007. Since then, she has not owned a vehicle and does not have a driver’s

license. Mother had sporadic, minimal contact with the children after she moved to

Sioux Falls. LaDene provided gas money for Mother to facilitate at least two visits.

In spring 2008, LaDene sought financial assistance from the Department of Social

Services to help care for the children. Mother was notified that she would be

required to reimburse the State for funds it paid to LaDene. Father began paying

child support to the State.

[¶6.]         On March 17, 2008, Mother arrived in Pierre without notice and

attempted to remove the oldest child from school. As a result of Mother’s actions

and in concern for the children’s welfare, in April 2008 LaDene filed a petition for

guardianship of the children.2 The petition was granted in September 2008. The

circuit court made extensive findings on Mother’s failure to properly care for the

children. The court did not make a finding on Mother’s fitness.

[¶7.]         Between September 2008 and June 2010, Mother had sporadic contact

with the children. She went five months without seeing the children and three

months without making any attempt to contact them at all. LaDene testified she

did not always have a phone number to reach Mother during that time. In 2009,

Mother was twice convicted of driving under the influence. Mother’s employment

history during this time was irregular. She did not provide any child support.

Meanwhile, Father had improved his life and began spending more time with his



2.      Father chose not to participate in the guardianship action.

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children. He also began a stable relationship with his current wife, obtained steady

employment, and bought a home.

[¶8.]        Mother appealed the grant of guardianship to LaDene. This Court

reversed the order in June 2010. In re Guardianship of S.M.N., 2010 S.D. 31, ¶ 29,

781 N.W.2d 213, 225. Mother received primary physical custody of the children in

June 2010. She then denied contact between the children and Father until Father

got a court order. Father did not see the children until October 2010.

[¶9.]        Father petitioned for custody of the children immediately after this

Court issued its’ decision. Custody between Father and Mother had not previously

been determined by a court. At trial, Mother objected to any evidence from before

August 2008. Mother argued that such evidence was barred by collateral estoppel

because it was tried in the guardianship case. The court overruled the objection.

The circuit court awarded Father primary physical custody in January 2011.

[¶10.]       On appeal, the issues presented are:

             1.    Whether the circuit court erred in considering evidence of
                   conduct before the August 2008 guardianship trial.

             2.    Whether the circuit court erred in concluding that Father
                   rebutted the presumption that he should not receive custody.

                             STANDARD OF REVIEW

[¶11.]       “The trial court’s findings of fact will be upheld unless clearly

erroneous.” Pietrzak v. Schroeder, 2009 S.D. 1, ¶ 38, 759 N.W.2d 734, 744. “We will

overturn the trial court’s findings of fact on appeal only when a complete review of

the evidence leaves the Court with a definite and firm conviction that a mistake has



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been made.” Id. A decision on the question of the application of res judicata is

reviewed de novo. People ex rel. L.S., 2006 S.D. 76, ¶ 21, 721 N.W.2d 83, 89.

                                      ANALYSIS

[¶12.]       1.     Whether the circuit court erred in considering evidence
                    of conduct before the August 2008 guardianship trial.

[¶13.]        Mother argues that res judicata should apply to the circuit court’s

“finding in the guardianship case that [Mother] was fit to have custody of her

children.” She asserts that because she was already found to be a fit parent in the

guardianship case, she should not have to “defend herself twice against the same

allegations.” Specifically, Mother argues that anything that took place before the

guardianship trial should not have been considered in the current determination of

fitness.

[¶14.]       “[R]es judicata consists of two preclusion concepts: issue preclusion and

claim preclusion.” Link v. L.S.I., Inc., 2010 S.D. 103, ¶ 34, 793 N.W.2d 44, 54.

“Issue preclusion refers to the effect of a judgment in foreclosing relitigation of a

matter that has been litigated and decided.” Id. (quoting Migra v. Warren City Sch.

Dist. Bd. of Educ., 465 U.S. 75, 77 n.1, 104 S. Ct. 892, 894 n.1, 79 L. Ed. 2d 56

(1984)). Issue preclusion is also known as collateral estoppel. Id. “Claim

preclusion refers to the effect of a judgment in foreclosing litigation of a matter that

never has been litigated, because of a determination that it should have been

advanced in an earlier suit[.]” Id.

[¶15.]       Res judicata is not applicable to any previous proceedings concerning

Mother’s fitness. “Issue preclusion only bars ‘a point that was actually and directly


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in issue in a former action and was judicially passed upon and determined by a

domestic court of competent jurisdiction.’” Id. at ¶ 36, 793 N.W.2d at 55 (quoting

Am. Family Ins. Group v. Robnik, 2010 S.D. 69, ¶ 18, 787 N.W.2d 768, 775). The

issue that Mother wants precluded is her parental fitness. The circuit court in the

guardianship action never made a finding on Mother’s fitness.3 Rather, the court

concluded that extraordinary circumstances warranted granting LaDene

guardianship over the children. Contrary to Mother’s assertion, the absence of a

finding on fitness does not equate to a finding of fitness. Therefore, no court has

ever “judicially passed upon and determined” Mother’s fitness and the issue is not

precluded in this case.

[¶16.]         As to claim preclusion, the “test is a query into whether the wrong

sought to be redressed is the same in both actions.” Id. at ¶ 37 (quoting Barnes v.

Matzner, 2003 S.D. 42, ¶ 16, 661 N.W.2d 372, 377). Claim preclusion bars not only

relitigation of issues previously heard and resolved, but also claims that could have

been raised in the earlier proceeding, even though not actually raised. Id. ¶ 38. We

have previously said:

               [W]hen custody was originally settled by agreement, the court
               had not decided the issue of custody in light of the best interests
               of the child, and so such considerations would not be res
               judicata. The basis for allowing the court to revisit all aspects of


3.       A review of the findings of fact and conclusions of law from the 2008
         guardianship trial reveals that the circuit court made no such finding. The
         circuit court made extensive findings on both Mother and LaDene. The court
         concluded that extraordinary circumstances warranted granting custody to
         LaDene. Although that order was ultimately reversed by this Court, it is
         important that no circuit court has ever made an explicit ruling on Mother’s
         fitness before the current case.

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              a custody case is that the court does so on behalf of the child
              whose interests were not represented in the original agreement.

Olson v. Olson, 1996 S.D. 90, ¶ 11 n.2, 552 N.W.2d 396, 399 n.2 (discussing holding

in Kolb v. Kolb, 324 N.W.2d 279 (S.D. 1982)). Determining custody in the best

interests of the children is a fluid concept with a similar analysis. It cannot be

compartmentalized or “sliced and diced.” Under South Dakota case law, the issue of

mother’s fitness in this case is considered anew and is but one component of the

ultimate issue, that being the best interests of the children.

[¶17.]        In the guardianship case, the court examined the best interests of the

children between LaDene and Mother, in addition to extraordinary circumstances.

In the current case, the court considered, for the first time, the best interests of the

children between Father and Mother. When making determinations on the parents’

fitness, the court should be able to consider all the relevant history of both parents.

The court should not be restricted by the guardianship case that involved different

parties at a different time. Furthermore, it is not clear how a “finding” in the

guardianship action on Mother’s fitness would be beneficial to Mother because it

does not equate to a current finding that the children’s best interests warrants

granting her custody now.

[¶18.]        Even if the question of Mother’s fitness qualified for consideration of

res judicata, in this case the facts are not compelling enough to apply the doctrine.

“[W]hen it comes to protecting children res judicata should be cautiously applied.”

People ex rel. L.S., 2006 S.D. 76, ¶ 24, 721 N.W.2d at 90. “Considerations regarding

a child’s welfare are rarely, if ever, static. In fact, it is more likely that the child’s


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environment is constantly evolving, thus justifying the court’s continuing

jurisdiction.” Id. at ¶ 27, 721 N.W.2d at 91 (quoting State in the interest of J.J.T.,

877 P.2d 161, 163 (Utah Ct. App. 1994)). This is demonstrated by the changes that

have occurred in the lives of Father, Mother, and the children over the past several

years.

[¶19.]       2.     Whether the circuit court erred in concluding that
                    Father rebutted the presumption that he should not
                    receive custody.

[¶20.]       The court considered SDCL 25-4-45.5 in awarding custody to Father.

SDCL 25-4-45.5 provides:

             In awarding custody involving a minor, the court shall consider:
             (1)    A conviction of domestic abuse as defined in subdivision
                    25-10-1(1); or
             (2)    A conviction of assault against a person as defined in
                    subdivision 25-10-1(2), except against any person related
                    by consanguinity, but not living in the same household; or
             (3)    A history of domestic abuse.
             The conviction or history of domestic abuse creates a rebuttable
             presumption that awarding custody to the abusive parent is not
             in the best interest of the minor. A history of domestic abuse
             may only be proven by greater convincing force of the evidence.

[¶21.]       SDCL 25-4-45.5 creates a rebuttable presumption. As we indicated in

Stavig v. Stavig, 2009 S.D. 89, ¶ 16, 774 N.W.2d 454, 460, this statute is subject to

South Dakota’s rule on a presumption in civil cases, SDCL 19-11-1 (Rule 301).

SDCL 19-11-1 (Rule 301) provides:

             In all civil actions and proceedings, unless otherwise provided
             for by statute or by chapters 19-9 to 19-18, inclusive, a
             presumption imposes on the party against whom it is directed
             the burden of going forward with evidence to rebut or meet the
             presumption, but does not shift to such party the burden of proof
             in the sense of the risk of nonpersuasion, which remains
             throughout the trial upon the party on whom it was originally

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               cast. When substantial, credible evidence has been introduced to
               rebut the presumption, it shall disappear from the action or
               proceeding, and the jury shall not be instructed thereon.

(Emphasis added.)4 “[G]oing forward with ‘substantial, credible evidence’ should

not ordinarily be equated with meeting any particular burden of proof.” Stavig,

2009 S.D. 89, ¶ 16, 774 N.W.2d at 460 (quoting Estate of Dimond, 2008 S.D. 131, ¶

9, 759 N.W.2d 534, 537). Rather, “the substantial, credible evidence requirement

means that a presumption may be rebutted or met with such evidence as a trier of

fact would find sufficient to base a decision on the issue, if no contrary evidence was

submitted.” Id.

[¶22.]         The court determined that while Father has an assault conviction,

both parties engaged in domestic violence against each other. The court also

concluded that any presumption in favor of awarding custody to Mother under this

statute was rebutted by the clear and convincing weight of the evidence. The

evidence established that it was in the children’s best interests to award primary

physical custody to Father.




4.       SDCL 19-11-1 varies from Federal Rule of Evidence 301 with the addition of
         the final sentence. The South Dakota Rules of Evidence Committee
         commented when the rule was adopted in 1978 that “[t]he last sentence of the
         proposed rule was felt necessary by the Committee to make it clear to the
         Court that it should not instruct on a presumption which has been rebutted
         by substantial, credible evidence, thereby retaining the current South Dakota
         practice.”


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[¶23.]         Father asserts that if he was subject to the statutory presumption that

he should not receive custody, he rebutted it.5 Mother contends that the only

evidence offered to rebut the presumption was Father’s own testimony.6 Mother

further asserts that the court only made minimal findings concerning the Father’s

domestic abuse history.

[¶24.]         The circuit court found Father to be credible and resolved conflicting

testimony in his favor.7 We give deference to circuit courts in determining the

credibility of a witness. Hubbard v. City of Pierre, 2010 S.D. 55, ¶ 26, 784 N.W.2d

499, 511 (reiterating that “the credibility of the witnesses, the import to be accorded

their testimony, and the weight of the evidence must be determined by the trial

court, and we give due regard to the trial court’s opportunity to observe the

witnesses and examine the evidence.”). Mother has not demonstrated that the


5.       Father argues that he does not have a confirmed history of domestic violence.
         We do not address the argument because the circuit court concluded the
         presumption did apply and it was rebutted.

6.       Mother also argues that the testimony provided by Father stating he had
         improved his life and relationships with his children occurred before Mother
         regained custody in June 2010. Mother asserts that this evidence could have
         been considered in the guardianship trial but Father chose not to participate.
         This argument revisits Mother’s first issue. Given our result in that issue,
         we do not address this argument here.

7.       The circuit court stated:
               The [c]ourt listened to the testimony of the parties in open court,
               observed their respective demeanors and manner of testifying,
               and has made credibility determinations in order to resolve
               conflicting claims. Based thereon, the [c]ourt deems [Father’s]
               testimony to be the more credible, and has resolved conflicts
               between their proffered versions of events in favor of [Father’s]
               accounts.


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findings based on Father’s testimony are clearly erroneous. We therefore accept

Father’s testimony as true.

[¶25.]          This Court utilizes all the findings of fact and conclusions of law in

examining whether the presumption was rebutted. The circuit court carefully

considered all of the factors relevant to determining the children’s best interests.

Overall, the circuit court’s findings and conclusions overwhelmingly indicated that,

at this time, it is in the children’s best interests that primary physical custody be

awarded to Father. Mother has not directly challenged that the circuit court erred

in concluding that it was in the children’s best interests to award primary physical

custody to Father. Considering the standard of review, we cannot conclude that the

circuit court erred in concluding that the presumption of unfitness was rebutted.

                                      CONCLUSION

[¶26.]          In conclusion, res judicata does not apply to Mother’s fitness.

Furthermore, Father has rebutted the presumption that he should not be awarded

custody. We affirm.

[¶27.]          KONENKAMP, ZINTER, and SEVERSON, Justices, and ANDERSON,

Circuit Court Judge, concur.

[¶28.]          ANDERSON, Circuit Court Judge, sitting for WILBUR, Justice,

disqualified.




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