Henle v. Larson , 1991 S.D. LEXIS 30 ( 1991 )

HENDERSON, Justice

(dissenting).

In child custody disputes, “[a] parent’s moral conduct is a valid consideration in determining parental fitness.” Langerman v. Langerman, 336 N.W.2d 669, 671 (S.D.1983). Here, mother’s stay with Ree-de exposed the child to not only one but two illicit relationships on an ongoing basis. When Reede’s boyfriend and mother’s boyfriend moved into Reede’s apartment, Eric was required to live with his mother, another young woman and two men to whom the women were not married. Illicit cohabitation is not generally conducive to the temporal, mental and moral welfare of a young child. See, SDCL 30-27-19(1). Even so, this Court has held that where there is no evidence of a demonstrable effect of sexual misconduct upon a child, “it does not follow that the parent is an unfit person to have custody and that an award of custody to that parent is not in the best interest and welfare of the child.” Madson v. Madson, 313 N.W.2d at 43-44. Accord: Kester v. Kester, 257 N.W.2d 731 (S.D.1977). However, this Court has also held that the harmful effect of sexual misconduct in front of a child is, “self evident ... if it is committed in the presence of a child old enough to see and recognize the improprieties.” Madson, 313 N.W.2d at 44.

In Madson, a child observed his mother’s sexual indiscretions on two occasions. Even though the child was only two at the time of the first occurrence and four at the time of the second, the child was able to relate the details of the sexual acts to his father. This Court found that fact, in conjunction with the mother’s profligate life style, and the undesirable home environment, sufficient to reverse the trial court’s finding that the mother was a fit parent to have custody. From the standpoint of mother’s conduct, this case is very similar to Madson.

Eric, like the child in Madson, was only two years old at the time of his mother’s sexual indiscretion. Although mother denied the misconduct, the trial court found as a fact that mother had probably exposed the child to sexual behavior with her boyfriend. This is generally indicative of mother’s irresponsible and carefree attitude toward the custody and care of Eric. It appears that her conduct was not in the best interests of Eric.

Mother’s irresponsible conduct is also demonstrated in the series of incidents in which she left Eric, a two-year-old child, home without proper supervision or no supervision at all. She simply would leave him alone! It is further evinced by her failure to cook or provide nutritious meals for the child and her failure to discipline or properly supervise the boy. She simply would not feed him when he was hungry! The detrimental effect of such child care on a youngster’s physical and mental well-being, accompanied by the actual potential for danger to the child, is obvious. “It is the trial court’s duty to see that the children are protected at every turn.” Yarnall v. Yarnall, 460 N.W.2d 161, 164 (S.D.1990), quoting from Jasper v. Jasper, 351 N.W.2d 114, 116 (S.D.1984). As we held in Spaulding v. Spaulding, 278 N.W.2d 639, 641 (S.D.1979), where a parent, “by irresponsible conduct, indicates that [his or] her custody would be detrimental to the welfare of the child, custody may be awarded to the [other parent].”

In contrast with mother’s irresponsibility, the record reflects that father has been a much more stable individual. He is a good worker, has maintained steady employment since high school and has been diligent in paying his child support obligations and exercising his visitation rights. He shows a keen interest in Eric. Father lives with his own mother in a four bedroom home where Eric would have his own room. Father has planned on how to care for Eric, intending to enroll him in preschool during the day and to be at home with him in the evenings and at night. Father’s mother and his sister are also available to provide assistance in caring for the child. The only allegation mother could raise against father was that complaints have been filed against his mother’s residence for accumulation of dog manure in the back yard. However, the record establishes that father or his mother have a kennel area in the yard where they keep two dogs. Two complaints were filed with the city health department in the past several years concerning the dog manure, both of which were corrected in the time allotted. The trial court found, and I agree, that these two incidents are minor considerations in this case, particularly when compared with mother’s immoral and irresponsible behavior.

In awarding mother custody, the trial court gave great weight to the fact that she had married, perceiving this to be a stabilizing influence in her life. The trial court also gave deference to mother because father was not married and not living in his own home. However, whatever advantage mother gained from these considerations is severely diminished by the fact that her present husband has been convicted of a series of recent theft offenses. The last of these convictions occurred after the trial court’s decision .in this matter and resulted in confinement in the county jail. See, Nauman v. Nauman, 336 N.W.2d 662 (S.D.1983) (judicial notice may be taken of matters of public or official record, citing SDCL 19-10-2-(2)). It is unknown what exact effect this conviction has had on Eric’s life, however, it clearly calls into question the trial court’s determination that mother could provide the better home and social environment. The stepfather’s general conduct cannot be good for the best interests of Eric.

As we have repeatedly held, “[t]he paramount consideration in deciding the issue of child custody is the best interests of the child.” Nauman v. Nauman, 445 N.W.2d 38 at 39 (S.D.1989). Applying this standard to the instant case, I believe that the trial court clearly abused its discretion in continuing Eric’s custody with mother. Mother has repeatedly exhibited an irresponsible and cavalier attitude concerning the care of the child. She has exposed him to not only her own illicit cohabitation with another man but her roommate’s as well. She further exposed the child to her sexual relations with her boyfriend, now her husband. On at least three occasions she left the child home late at night or for an extended period of time without so much as confirming the presence of anyone to look after him. She has failed to look after the child’s nutritional needs and to exercise the discipline or supervision necessary in raising a young boy. She has made admissions of unlawful conduct involving the theft of property. She is untruthful, lacking candor even in her testimony before the trial court, as demonstrated by the trial court’s expression. The trial court found that her lack of honesty may be a serious, long-term problem. In awarding custody of minor children, the trial court must be guided by what appears to be the best interests of the child concerning the child’s temporal, mental and moral welfare. SDCL 30-27-19. Peterson v. Peterson, 449 N.W.2d 835 (S.D.1989). It appears that the trial court simply did not address these factors and decided the case on personal feelings. The weight of these factors compels the conclusion that the trial court’s custody determination has neither a sound nor a substantial basis in the record and is clearly against reason and evidence. Herndon v. Herndon, 305 N.W.2d 917 (S.D.1981).

I note that the trial court expressed in the record that, in the long run, the child may be better off with the father; further, that there was, “not much bad with the father.” Notwithstanding, the trial court reflected (on the record) that he was, “a little bit old-fashioned,” and held the belief that under a mother’s care, young children are better nourished than under the care of a father. South Dakota statutory authority and precedent are to the absolute contrary. SDCL 30-27-19(2) provides, “[a]s between parents adversely claiming the custody or guardianship, neither parent shall be given preference over the other in determining custody.” Our state legislature expressly revoked the “tender years” rule. See 1979 S.D.Sess.L. ch. 194. This Court has agreed this was the state legislature’s intention. Prentice v. Prentice, 322 N.W.2d 880 (S.D.1982); Martin v. Martin 306 N.W.2d 648 (S.D.1981). See also Peterson v. Peterson, 449 N.W.2d 835 (S.D. 1989). It appears to this author that the trial court was more heavily influenced by his personal convictions than by statute or precedent. His personal conviction infused error, in law, in this case, and has spawned a catastrophic consequence.

Under precedent and the factual scenario of this case, we are obligated to reverse the trial court’s custody determination. In reaching this conclusion, we are mindful of our obligation to give deference to the trial court’s custody decision because of its first hand opportunity to gauge the credibility of the parties. Nauman, supra. However, the trial court’s findings of fact must support its conclusion concerning the best interests of the child. Jasper v. Jasper, 351 N.W.2d 114 (S.D.1984). In this instance, the trial court’s findings concerning mother’s lack of candor and her exposure of Eric to sexual misconduct when weighed against its finding that there is nothing wrong with father, simply fail to support its conclusion that it would be in Eric’s best interest to continue his custody with mother. A subjective thought that a mother should be given preference — totally against the decisions and statutory law of this state — was wrongfully elevated. A judge cannot bend the law to his will. Accordingly, I conclude that the trial court clearly abused its discretion in its custody determination. Id.

Father also argues that the trial court erred in finding that there were no compelling reasons to separate half siblings where one of the siblings was an unborn child. The majority opinion determined that since custody was to be continued with Mother and hence, no separation of siblings, that there was no need for the trial court to enter findings to support separation. I disagree. Given my conclusion to reverse the trial court’s award of custody to Mother, I would find it appropriate to remand this matter to the trial court to consider the present bond between Eric and his half brother and what we have called the “crucial consequence” of a custody award that would destroy that bond. Madsen, 456 N.W.2d at 553.

ATTORNEY’S FEES

Both parties have filed motions for appellate attorney's fees. Both motions are accompanied by itemized statements of costs incurred and legal services rendered as required by Malcolm v. Malcolm, 365 N.W.2d 863 (S.D.1985).

In Pribbenow, supra, a custody modification case involving unwed parents, the father filed a motion for attorney fees incurred on appeal. This Court observed that, “SDCL 15-17-7 provides that attorney fees in cases of domestic relations and paternity actions are allowable.” Pribbenow, 418 N.W.2d at 630. “The allowance of attorney fees rests in the sound discretion of the court.” Id.

The factors considered in awarding appellate attorney fees in a domestic relations case are: “the property owned by each party; their relative incomes; whether the requesting party’s property is in fixed or liquid assets; and whether either party unreasonably increased the time spent on the case.” Senger v. Senger, 308 N.W.2d 395, 398 (S.D.1981). Applying these factors to the present case, we should award no attorney’s fees. Mother earns approximately $324 per month babysitting. Father, who regularly pays a $130 per month child support obligation, earns $6 an hour for an income of $150 per week. Mother lives in a rented apartment while father lives with the paternal grandmother. The parties have no fixed or liquid assets. Furthermore, under my theory she is not the prevailing party. Thus, she should not recover attorney’s fees. McGee v. McGee, 415 N.W.2d 812 (S.D.1987). She is the guilty party and comes into this Court with unclean hands. Stach v. Stach, 369 N.W.2d 132 (S.D.1985).

I am authorized to state that WUEST, J., joins this writing.