Hauge v. Rikkers ( 1991 )

WUEST, Justice.

Susan Rikkers (a/k/a Susan Hauge) appeals from the circuit court’s order that her two youngest children remain in the custody of their natural father, Susan’s first husband. We reverse and remand for findings of fact to support the court’s order.

James and Susan Hauge were married on June 1, 1971. They had three children: Ashley, born November 8, 1971; Amy, born November 21, 1976; and Andrea, born March 27, 1983. The couple’s marriage deteriorated, and in July 1987, upon the advice of a counselor, the parties attempted a trial separation. Differences remained irreconcilable and Jim commenced a divorce action in September 1987.

The two youngest children remained in Jim’s custody while the divorce action was pending. Their oldest child, Ashley, remained in his care until she was placed in the custody of Threshold Youth Services¹ pending a final custody decision.

In March 1988, Jim and Susan entered into a Stipulation and Agreement, which provided in pertinent part that Susan and Jim would have joint custody of all three minor children; Jim would have primary responsibility for Amy and Andrea (the two youngest children) and they would reside with him, and Susan would have primary responsibility for and physical custody of Ashley. The couple’s Decree of Divorce, entered on March 9, 1988, incorporated this custody arrangement. Susan then married Darwin Rikkers.

In April 1989, Jim moved the court for an order granting him physical custody of Ashley. In response, Susan filed a complaint to gain custody of Amy and Andrea. A hearing was held at which experts, friends and relatives testified. The testimony was extremely conflicting. Since the original custody agreement was by stipulation, the trial court followed the rule of Kolb v. Kolb, 324 N.W.2d 279 (S.D.1982) and Mayer v. Mayer, 397 N.W.2d 638 (S.D. 1986), which requires the court to determine custody based on the best interests of the children from all evidence, including that pre-dating the decree of divorce.

After the hearing, the trial court ordered that the custody arrangements remain the same; Amy and Andrea were to remain in their father’s custody, and Ashley in her mother’s custody.² Susan appeals to this court and raises three issues. We reach only the first:

I. Whether the trial court’s findings of fact are insufficient as a matter of law because they entirely fail to state any reason why the best interests of Amy and Andrea are served by continuing custody in their father.

I.

The trial court, in a memorandum decision, directed Susan’s counsel to prepare Findings of Fact and Conclusions of Law consistent with the trial court’s decision. However, the findings and conclusions she submitted were contrary to the court’s decision and were refused. Jim's counsel³ submitted findings and conclusions which were signed by the trial court and which incorporated the trial court’s memorandum decision as the only findings of fact. The memorandum stated the decision of the trial court, but did not recite any facts to support the decision.

In awarding custody of minor children, the trial court must be guided by what appears to be the best interests of the children relative to their temporal, mental and moral welfare. SDCL 30-27-19; Peterson v. Peterson, 449 N.W.2d 835 (S.D. 1989); Isaak v. Isaak, 278 N.W.2d 445 (S.D.1979); Holforty v. Holforty, 272 N.W.2d 810 (S.D.1978). Because the findings of the trial court failed to address the interests of the children relative to these factors, the court’s findings were insufficient to form a clear basis for its conclusion. Cf. Olson v. Olson, 438 N.W.2d 544, 547 (S.D.1989) (insufficient findings to support separating siblings). Therefore, we agree with Susan that the findings of fact do not support the trial court’s conclusion that it is in the best interests of the children to remain in Jim’s custody.

We cannot find the facts on appeal, and the failure of the trial court to enter proper findings of fact constitutes reversible error. SDCL 15-6-52(a); Olson, 438 N.W.2d at 547; Talbert v. Talbert, 290 N.W.2d 862 (S.D.1980); Kierbow v. Young, 21 S.D. 180, 110 N.W. 116 (1906). We reverse and remand to the trial court for entry of findings of fact to support its order.

Susan filed a motion for attorney’s fees and costs incurred in this appeal. The motion is accompanied by an itemized statement as required by Malcolm v. Malcolm, 365 N.W.2d 863 (S.D.1985). We award Susan attorney’s fees in the amount of $1,250.00.

Reversed and remanded.

MILLER, C.J., SABERS, J., and HERTZ, Circuit Court Judge, Acting as a Supreme Court Justice, concur. HENDERSON, J., concurs specially. AMUNDSON, J., not having been a member of the Court at the time this case was considered, did not participate.

1 . Threshold Youth Services is a social services agency which assists teenagers experiencing difficulties.

2 . Ashley reached the age of majority after the trial court’s decision but before this appeal; thus her custody is no longer an issue.

3 . Jim’s appellate counsel was not counsel at the trial court level.