Nemec v. Goeman , 2012 S.D. LEXIS 14 ( 2012 )

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2012 S.D. 14IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
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RICHARD NEMEC, Plaintiff and Appellee,
v.
ASHLEY GOEMAN, Defendant and Appellant.
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APPEAL FROM THE CIRCUIT COURT OF
THE SECOND JUDICIAL CIRCUIT
MINNEHAHA COUNTY, SOUTH DAKOTA
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THE HONORABLE DOUGLAS E. HOFFMAN
Judge
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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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