Kolb v. Kolb ( 1982 )

FOSHEIM, Chief Justice.

Karie L. Kolb (appellant) and Myron A. Kolb (appellee) were divorced in December 1979. In September 1978, twin girls were born of their marriage. The divorce decree awarded appellant custody of the twins, subject to visitation rights by appellee pursuant to a separation and property agreement. This appeal is from an order which modified the divorce decree, switching custody to appellee. We affirm.

At the time of the divorce both parties were employed and resided in Aberdeen, South Dakota. In October of 1980, appellant moved to Texas with her boyfriend, leaving the children in Aberdeen with her mother. The following month appellant took the children to Mississippi, where she was then living. After about seven weeks, appellant moved the twins to her father’s home in Florida where they remained without her until January 21, 1981. She then returned the children to Mississippi where they resided until March 1, 1981, when they all came back to Aberdeen. Appellant originally testified she planned to marry her boyfriend and have the children live with them, although his work involved frequent out-of-state moves. She later testified that her plans had changed and that she did not intend to marry, or to move out of Brown County.

When custody was changed, appellee was employed in the same position he held at the time of the divorce. Appellee testified that he intends to marry his girlfriend with whom he is living. Appellant’s frequent moving the children rendered appellee’s visitation privileges difficult to exercise and seems to have precipitated the motion to modify the divorce decree. Appellee’s girlfriend testified that after she and appellee are married she wishes to assist in the care of the twins.

Appellant claims the evidence does not establish a substantial change of circumstances required to modify the divorce judgment.

SDCL 25-4-45¹ allows a court to vacate or modify the custody provisions of the judgment. That statute predates statehood. Civil Code 1877, § 72; CL 1887, § 2583. A parent seeking modification of custodial rights, pursuant to SDCL 25-4-45, has the burden of proving by a preponderance of the evidence that (1) there has been a substantial and material change of circumstances since the divorce decree was entered and (2) the welfare and the best interests of the children require the modification being sought. Either factor by itself is not sufficient to justify a change of custody — both must be present. Sneesby v. Davis, 308 N.W.2d 565 (S.D. 1981); Engels v. Engels, 297 N.W.2d 489 (S.D. 1980); Masek v. Masek, 90 S.D. 1, 237 N.W.2d 432 (1976); Huckfeldt v. Huckfeldt, 82 S.D. 344, 146 N.W.2d 57 (1966). “The rule of ‘changed circumstances’ is not statutory, but a creature of judicial expediency. Its purpose is to protect the court, the parties, and the children from continuing vexatious litigation on questions of custody.” Huckfeldt, supra at 59.

Our custody modification decisions generally do not distinguish between a judgment based on evidence and findings of parental fitness and child interests and a judgment which rests on a custody agreement or upon findings absent existing material custody evidence. It seems to be the consensus of these decisions that the parties cannot relitigate the correctness of the original custody disposition because an award of custody, regardless of its basis, is res judica-ta as to conditions existing when made. Masek, supra; Hershey v. Hershey, 85 S.D. 85, 177 N.W.2d 267 (1970); Huckfeldt, supra; Wellnitz v. Wellnitz, 71 S.D. 430, 25 N.W.2d 458 (1946). Conversely an agreement between divorced parents relating to the custody of their children does not preclude the court from modifying the decree as circumstances require, and we have adhered to the substantial change of circumstances principle even though the original custody order was based on a stipulation of the parties. Hershey, supra; Moser v. Moser, 82 S.D. 149, 143 N.W.2d 369 (1966); Wright v. Stahl, 73 S.D. 157, 39 N.W.2d 875 (1949).

In his dissent in Masek, supra, 237 N.W.2d at 435, Justice Wollman wrote:

Although the rule is based upon pragmatic, practical reasons, well expressed in the majority opinion herein and in the Huck-feldt case, it should be applied to aid trial courts in carrying out their statutory duty to provide for the best interests of the child, SDCL 30-27-19(1), and should not be allowed to create a mechanistic barrier to frustrate the performance of that duty.

Notwithstanding our continued proclamations of adherence, we have on occasion indicated that the rule is less than absolute. In Wright, supra, 39 N.W.2d at 876, we said, “[a] judgment or decree entered in a suit for divorce is res judicata as to the questions put in issue or necessarily and properly involved and actually tried and determined in the suit.” (emphasis added.) Implicit in that tempered expression is that questions of fact not put in issue, necessarily and properly involved, or actually tried and determined, are not res judicata.

In Wallace v. Wallace, 26 S.D. 229, 128 N.W. 143, 144 (1910) (cited with approval in Wright, supra), we acknowledged that a custody decree is not res judicata when it is shown that “some material facts are disclosed which were unknown at the time the decree was rendered, or could not have been ascertained with the use of reasonable diligence, and then only to the extent and in the respect warranted by such changes." (emphasis added). A specific application of this exception is found in Anderson v. Anderson, 85 S.D. 152, 179 N.W.2d 1 (1970), where a separation and property custody agreement was executed referring to four children. Findings of fact and conclusions of law were waived. A decree granted the husband a divorce for the fault of the mother and approved the property settlement and custody agreement which gave the mother custody of the four minor children. However, the mother had given birth to a child, which was not the child of the defendant, approximately one month before the separation and property agreement was signed and the divorce heard. She concealed the pregnancy in her complaint and later in her answer to interrogatories. It was not clear whether the defendant knew of the pregnancy. In Anderson, we said:

At the divorce with the plaintiff present and having signed a custody agreement which referred to only the four children of these parties, there exists in the birth of another child special circumstances which should permit the Court to go behind its previous determination in these custody matters. In Miller v. Miller, 15 Wis.2d 583, 113 N.W.2d 403, the Wisconsin Court, without discarding the rule of res adjudicata [sic], recognized that there exist special conditions which should permit a Court to go behind its previous determination in these custody matters.

Id. 179 N.W.2d at 2-3. The case was reversed and remanded. When it came back on appeal, in 86 S.D. 757, 201 N.W.2d 394, 396 (1972), we held that “the Court acted within its proper discretion and that there is sufficient competent evidence to support his action in changing custody.”

In Newsome v. Newsome, 42 N.C. App. 416, 256 S.E.2d 849, 854-55 (1979) (emphasis in original), the North Carolina Supreme Court stated:

The reason behind the often stated requirement that there must be a change of circumstances before a custody decree can be modified is to prevent relitigation of conduct and circumstances that antedate the prior custody order. It assumes, therefore, that such conduct has been litigated and that a court has entered a judgment based on that conduct. The rule prevents the dissatisfied party from presenting those circumstances to another court in the hopes that different conclusions will be drawn. ...

When, however, as in the present case, facts pertinent to the custody issue were not disclosed to the court at the time the original custody decree was rendered, courts have held that a prior decree is not res judicata as to those facts not before the court. Thus, in Stewart v. Stewart, 86 Idaho 108, 383 P.2d 617 (1963), the Court stated that where facts affecting a child's welfare existed at the time of the entry of a custody decree but were not disclosed to the court, especially in default cases, these facts may be considered in a subsequent custody determination. Accord, Boone v. Boone, 150 F.2d 153 (1945); Perez v. Hester, 272 Ala. 564, 133 So.2d 199 (1961); Henkell v. Henkell, 224 Ark. 366, 273 S.W.2d 402 (1954); Weatherall v. Weatherall, 450 P.2d 497 (Okl. 1969). See generally, Annot., 9 A.L.R.2d 623 (1950).

Suppose, for instance, it should appear that, unknown to the first judge, the child had been regularly confined to a closet for long periods of time or otherwise abused but those facts are made known to the second judge. Surely it could not be said that the second judge is powerless to act merely because the circumstances are the same in that the abuse is no greater or the environment no worse than before. Moreover, evidence of the abusive environment that existed prior to the first hearing (but unknown to the judge who conducted that hearing) could properly be considered by the judge conducting the second hearing in deciding what disposition of the case would be in the best interest of the child.

While the above noted authorities involve facts unlike those before us they all relate to the concept of whether the doctrine of res judicata is invoked when the original custody disposition was made without all the facts. We believe that a factual absence occurs alike when the divorce decree, as in this case, rests solely on a separation agreement or when it is based on some facts, but devoid of other material facts then existing concerning the best interests of the children. Under either circumstance, evidence concerning child custody has not been litigated and to that extent should not be deemed adjudicated in a subsequent modification hearing.

It is well recognized that the stress, animosities, and economic exigencies which frequently surround divorce proceedings may not provide a suitable setting for a child custody agreement based solely on the best interests of the children. Paramount may be an urgent desire by one or both parties to end the marriage or, as in Harms v. Harms, 323 Ill.App. 154, 55 N.E.2d 301 (1944), the parents may use custody as a means of bargaining over whether the application for divorce will be contested. A custody disposition resting on such synthetic moorings should not be permitted to frustrate a subsequent best interest review after the dust from the marital dissolution has at least somewhat settled. As is noted in Annot., 9 A.L.R.2d 623, 624 (1950):

Opposing social interests must be balanced in determining to what extent an award of custody may be regarded as being subject to reopening for consideration of matters in existence but not considered in the original proceedings, the state being interested alike in safeguarding the welfare of the child, innocent victim of its parents’ marital mishaps, and in insuring that litigation be conducted in an orderly manner to a definite conclusion.

Under ordinary principles of res judica-ta, a judgment or decree, absent fraud, is conclusive between the parties, not only as to matters decided therein, but those which might have been properly decided. A bald application of these principles would seem, in the absence of fraud, to preclude a relitigation by either of the parents, parties to the divorce action in which custody was awarded, of matters which could have been presented to the court, and so to bar subsequent consideration of matters in existence at the time of the original proceeding even though not considered therein.

We now conclude that facts pertinent to child custody, which were not put in issue or involved, tried and determined by the court as a basis for the original divorce decree, are not res judicata as to the best interests of the children, as indicated in Wright, supra, and may be considered anew in a subsequent custody modification hearing free from the substantial change of circumstances constraints. The modification hearing then becomes the first meaningful opportunity for the trial court to fully hear and decide all unlitigated matters of custody. The record before us reveals no evidence offered at the time of the divorce concerning custody. The court adopted a separation agreement which was dictated into the record by counsel. Thus facts pertinent to child custody were not put in issue, involved, tried or determined by the court as a basis for the original divorce decree. The modification hearing, on the other hand, was an in-depth inquiry focusing directly on the best interests of the children. When the original decree is based on an agreement of the parties, the modification hearing should be free from the substantial change of circumstances constraints as this is the first meaningful opportunity for a trial court to fully hear and decide all unlitigated matters of custody. Consequently appellee was not required to prove change of circumstances affecting the welfare of the children. The trial court must be free in this type of case to consider and balance any adverse effect a custody modification may now have upon the children, regardless of the basis of the original disposition. This leads us to the discretion test.

SDCL 25-4-45 has been held to leave broad discretion in the trial court to determine which parent in a divorce action shall be given custody of their children and that decision will be reversed only for a clear abuse of discretion. Sneesby, supra; Engels, supra; Huckfeldt, supra. We cannot conclude the modification order here was a clear abuse of discretion.

The order of the trial court is affirmed.

WOLLMAN, DUNN and MORGAN, JJ., concur. HENDERSON, J., concurs in part and dissents in part.

1 . SDCL 25-4-45 reads: In an action for divorce the court may, before or after judgment, give such direction for the custody, care, and education of the children of the marriage as may seem necessary or proper, and may at any time vacate or modify the same.