Van Duysen v. Van Duysen , 2015 S.D. LEXIS 146 ( 2015 )


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  • #27237-a-GAS
    
    2015 S.D. 84
    IN THE SUPREME COURT
    OF THE
    STATE OF SOUTH DAKOTA
    ****
    TRAVIS JAMES VAN DUYSEN,                 Plaintiff and Appellant,
    v.
    JENNIFER MARIE VAN DUYSEN,               Defendant and Appellee.
    ****
    APPEAL FROM THE CIRCUIT COURT OF
    THE FIRST JUDICIAL CIRCUIT
    BON HOMME COUNTY, SOUTH DAKOTA
    ****
    THE HONORABLE GLEN W. ENG
    Judge
    ****
    SCOTT R. SWIER
    MICHAEL A. HENDERSON
    BROOKE SWIER SCHLOSS of
    Swier Law Firm, Prof. LLC
    Avon, South Dakota                       Attorneys for plaintiff
    and appellant.
    WANDA HOWEY-FOX of
    Harmelink, Fox & Ravnsborg
    Law Office
    Yankton, South Dakota                    Attorneys for defendant
    and appellee.
    ****
    CONSIDERED ON BRIEFS
    ON AUGUST 31, 2015
    OPINION FILED 11/04/15
    #27237
    SEVERSON, Justice
    [¶1.]          Travis Van Duysen appeals the circuit court’s grant of primary
    physical custody of his two children to their mother Jennifer Van Duysen. Travis
    asserts that the court abused its discretion when it relied on findings that were
    unsupported by the evidence. We affirm.
    Background
    [¶2.]          Jennifer and Travis Van Duysen were married in 2007. They have two
    minor children together, a daughter and a son. Their daughter was born in 2005.
    Jennifer and the daughter lived with Jennifer’s parents for some time until Jennifer
    and Travis married. Their son was born in 2010. In 2011, Travis filed for divorce.
    Shortly before Travis filed for divorce, Jennifer and the children left the marital
    home. The details of the argument precipitating the separation were disputed at
    trial. Jennifer alleges that Travis held her up by the neck; Travis denied this but
    admitted he grabbed her sweatshirt and spun her around to talk to him.
    Eventually, the parties agreed to divorce in 2014 on the grounds of irreconcilable
    differences.
    [¶3.]          A two-day court trial was held on June 30 and July 1, 2014. The issues
    before the court were custody, visitation, child support, attorney fees, and alimony.
    A home study evaluation recommended granting Travis primary physical custody.
    The evaluators 1 found Travis to be the favored parent based on the fitness and
    harmful parental misconduct categories of their evaluation. They found Jennifer to
    1.      The home study evaluation was done by two evaluators. The “lead” evaluator
    testified at trial.
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    be the favored parent in the category of primary caretaker. Finally, the evaluators
    determined that both parents were equally able to provide stability, noted that child
    preference was not applicable, and recommended that the children remain together.
    The court granted Jennifer primary physical custody. Travis appeals. The sole
    issue on appeal is whether the court abused its discretion in awarding primary
    physical custody of the children to Jennifer. Travis contends that the court based
    its decision on findings that were not supported by evidence, thereby abusing its
    discretion.
    Standard of Review
    [¶4.]         We review child custody decisions under the abuse of discretion
    standard. Pietzrak v. Schroeder, 
    2009 S.D. 1
    , ¶ 37, 
    759 N.W.2d 734
    , 743. “The
    credibility of witnesses and the weight afforded to their testimony is also within the
    discretion of the [circuit] court.” 
    Id. “An abuse
    of discretion occurs in a child
    custody proceeding when the [circuit] court’s review of the traditional factors
    bearing on the best interests of the child is scant or incomplete. The broad
    discretion of a trial court in making child custody decisions will only be disturbed
    upon a finding that the [circuit] court abused its discretion.” 
    Id. Analysis [¶5.]
            After the two-day trial, the circuit court noted that the home study
    evaluation mirrored the Fuerstenberg factors, and it discussed each finding,
    explaining whether it agreed or disagreed based on “the evidence, the credibility,
    [and] the testimony[.]” See Fuerstenberg v. Fuerstenberg, 
    1999 S.D. 35
    , 
    591 N.W.2d 798
    . The court determined that the evaluators’ decision placed great weight on two
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    #27237
    incidents that were testified to at length during trial. One such incident involved a
    dispute at a Christmas program. Travis and his parents took the children to a local
    church Christmas program. Jennifer came later to pick the children up because
    Travis’s visitation was over. Jennifer testified that she asked her daughter to
    change her clothes so that the clothes could be returned to Travis. The daughter
    wanted to keep her clothes, and a tense situation and disagreement between
    Jennifer, Travis, and the children followed. Many of the details of the incident were
    disputed at trial. Jennifer allegedly yelled at the children and Travis and then
    stormed out of the church with the children crying.
    [¶6.]        The other incident involved what the parties later admitted was an
    issue of miscommunication. On one of Travis’s visitation days, he was late to pick
    up the children. He failed to inform Jennifer that he was running late. Because
    Jennifer needed to get to work, she left the children at her parents’ house.
    However, she did not tell Travis where they were until an hour and a half after his
    scheduled pick-up time. Travis waited, but by the time she called he had already
    contacted the police, who escorted him to Jennifer’s parents’ house to get the
    children.
    [¶7.]        The court expressed concern that the evaluators’ recommendation
    based on these two incidents was a “simplistic view of the facts” and that the
    incidents did not directly address how the children were cared for or how they
    interacted with people. The court noted that Jennifer’s behavior was not ideal, but
    it also stated that it was concerned with the incidents being used to “tip the scales”
    in favor of Travis. In its findings of fact, the court stated that it did not place great
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    weight on those two incidents that occurred during the parties’ three-year divorce
    process.
    [¶8.]         Ultimately, the court determined that it was in the best interests of
    the children to remain with Jennifer. 2 It discussed the facts relevant to fitness,
    stability, primary caretaker, child’s preference, harmful parental misconduct, and
    separation of siblings. It noted that the daughter, the eldest child, was doing very
    well in school and that she was receiving counseling for her benefit. It further
    found that the counselor had no concerns about Jennifer’s parenting. The counselor
    had not seen any injuries to the daughter or received any negative comments from
    her about Jennifer. This contradicted the home study’s reiteration of negative
    comments the daughter made to the evaluators when they talked to her at Travis’s
    home.
    [¶9.]         As to the mental and physical health of the parties, the court stated
    that it was “disregarding” the evaluators’ finding that Travis was the favored
    parent in this category. The court noted that the evaluators based their finding, in
    part, on other people’s observations that the children acted differently when their
    father would come to get them depending on whether Jennifer was present or not.
    The court believed that this indicated tension between the parents rather than the
    fact that there is a problem with Jennifer.
    2.      Travis acknowledges that the circuit court is not required to follow the home
    study recommendation and states that he is not appealing the court’s
    rejection of the evaluation. See Maxner v. Maxner, 
    2007 S.D. 30
    , ¶ 17, 
    730 N.W.2d 619
    , 623.
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    [¶10.]         The court found that the favoring of Travis by the evaluators in the
    category of harmful parental misconduct also went back to the two incidents
    discussed above. The court explained that despite those incidents, which did not
    reflect ideal parenting, placement of the children in either home would not cause
    injury, damage, or destruction to the children. Instead, the court stated that it was
    placing great weight on Jennifer being the primary caregiver and the fact that the
    children need stability.
    [¶11.]         As part of its findings of fact, the court expressed concern that Travis’s
    income taxes, which had been submitted into evidence, reflected some
    “questionable” deductions. 3 When announcing its decision at the end of the trial,
    the court explained that it looks to income tax returns “to see whether there’s
    truthfulness to people.” The court also issued findings of fact that it was concerned
    about Travis’s truthfulness because of his tax returns. Finally, the court made
    3.       In its findings, the court found:
    The Plaintiff’s 2011 federal tax return reflects an expense of
    $11,255.00 for gas, fuel and oil;
    The Plaintiff also claims 100% depreciation for his vehicles;
    In this instance, the Plaintiff’s tax returns reflect that there is
    income from a farming operation as well [as] deductions that are
    questionable for purposes of deduction;
    The Plaintiff’s tax returns make this [c]ourt concerned about the
    Plai[n]tiff’s truthfulness;
    The “IRS apparently does not believe that people cheat on their
    taxes;” and
    Most people believe that they have a 99% chance of not getting
    caught.
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    findings related to the IRS. Travis contends that the court’s findings based upon
    Travis’s 2011 tax return are clearly erroneous because there is no evidence that he
    cheated on his tax returns. Further, Travis claims that these erroneous findings led
    the court to improperly question his credibility, and therefore, the court abused its
    discretion.
    [¶12.]        As we have stated before, “[t]he circuit court’s ‘findings of fact must be
    supported by the evidence and conclusions of law must in turn be supported by the
    findings of fact.’” In re J.D.M.C., 
    2007 S.D. 97
    , ¶ 18, 
    739 N.W.2d 796
    , 803. We have
    previously explained that the court has broad discretion in child custody matters;
    “[t]hat broad discretion includes discretion as to what evidence the trier of fact will
    rely on.” Pieper v. Pieper, 
    2013 S.D. 98
    , ¶ 29, 
    841 N.W.2d 781
    , 788. Further, “[t]he
    credibility of 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.” Baun
    v. Estate of Kramlich, 
    2003 S.D. 89
    , ¶ 21, 
    667 N.W.2d 672
    , 677.
    [¶13.]        Nothing in the record indicates whether the deductions are actually
    questionable or that the depreciation is not accurate or that the IRS believes people
    cheat on taxes. Further, there was absolutely nothing to suggest that 99% of all
    people believe that they will not get caught if they cheat on taxes. Although the
    court had no evidentiary basis on this record to make these findings, this “inclusion
    of certain unsupported findings . . . is not sufficient cause for reversing a judgment .
    . . [that] is otherwise sufficiently supported by findings of fact based upon the
    evidence.” See Mokrejs v. Mokrejs, 
    226 N.W. 264
    , 265 (S.D. 1929) (citing Steensland
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    v. Steensland, 
    43 S.D. 416
    , 
    179 N.W. 495
    (1920)). “[T]he facts that are clearly
    established are such as to fully warrant the court in giving [Jennifer] the custody of
    the children . . . it is therefore of no importance if . . . the court went . . . too far in
    findings as to other facts.” Steensland, 
    43 S.D. 416
    , 179 N.W. at 496. Indeed, the
    record establishes that the court heard from several witnesses and had sufficient
    evidence from which it could determine the best interests of the children. After a
    review of the entire record, we cannot say that the court abused its discretion when
    it determined that awarding primary physical custody of the children to their
    mother was in their best interests. Instead, the court carefully considered factors
    relevant to the best interests of the children and awarded primary physical custody
    appropriately. We affirm.
    [¶14.]        Both parties have requested attorney’s fees. We deny their requests.
    [¶15.]        GILBERTSON, Chief Justice, and ZINTER, WILBUR, and KERN,
    Justices, concur.
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Document Info

Docket Number: 27237

Citation Numbers: 2015 SD 84, 871 N.W.2d 613, 2015 S.D. LEXIS 146, 2015 WL 6750137

Judges: Severson, Gilbertson, Zinter, Wilbur, Kern

Filed Date: 11/4/2015

Precedential Status: Precedential

Modified Date: 11/12/2024