Hanhart v. Hanhart

WUEST, Justice.

Karel Anthony Hanhart (hereinafter “Father”) appeals a judgment and decree of divorce which granted child custody to Donna Rochelle Hanhart (hereinafter “Mother”). We affirm.

FACTS/PROCEDURAL HISTORY

Father and Mother were married in 1976 and had three children: Liesl (DOB: 8/31/80); Melissa (DOB: 5/10/82); and, Michael (DOB: 7/28/83). A fourth child (Nathan (DOB: 8/8/90)) was born during this marriage but is not Father’s biological son.

Father has worked for Shopko for approximately four years. He has traditionally worked approximately 60-65 hours per week. It is Shopko’s standard policy that employees move every two to three years. However, there was testimony that Father may apply to be a “resident area manager” which would enable him to stay indefinitely in one location. Mother is a music teacher and has worked part-time over the last several years.

On November 1, 1990, Father filed for divorce on the grounds of extreme mental cruelty and alleged Mother was openly carrying on an adulterous relationship with the next-door neighbor, Robert Rochelle. The trial court entered a temporary order granting Father custody of the three eldest children. Nathan remained with Mother because he was still being breast fed. Mother answered Father’s complaint, denied Father’s allegations of adultery, alleged extreme mental cruelty, and requested custody of all four children.

At trial, Mother denied having sexual contact with Robert Rochelle during her marriage with Father, although she admitted having sexual contact with him during her separation from Father. The trial court held a full evidentiary hearing and then determined it was in the best interests of the children for Mother to have custody. Father was given liberal visitation rights. Father appealed to this Court.

During the pendency of that appeal, Mother admitted committing adultery during their marriage and told Father Nathan was not his biological son. Blood tests confirmed that Father is not Nathan’s biological father. At Father’s request, this Court remanded jurisdiction to the trial court so as to present this newly discovered evidence.

The trial court held a second trial. The evidence at the second trial was essentially the same as at the first trial except Mother admitted she lied at the first trial about committing adultery. The trial court rein-terviewed the children and found them better adjusted and more outgoing after being in Mother’s custody. The trial court issued a new divorce decree again giving Mother custody. Father requested attorney’s fees ($2,565.00) for the costs of the second trial. The trial court awarded Father $750.00 in attorney’s fees. Father appeals.

DECISION

The facts of this case are essentially undisputed. Father has not alleged the trial court was clearly erroneous in any of its findings of fact. Therefore, the main issue is whether the trial court abused its discretion in concluding it was in the best interests of the children for Mother to have custody.

The trial court considered each of Father’s arguments and concluded, in a well-reasoned decision, that the best interests of the children would be served by giving Mother custody, with liberal visitation by Father. A trial court’s decision on a custody question will only be reversed if there was a clear showing of an abuse of discretion. Anderson v. Anderson, 472 N.W.2d 519 (S.D.1991). The following factors support the trial court’s decision.

1. Fault is not considered in determining custody, except to the extent it is relevant to prove unfitness of the parent. SDCL 25-4-45.1. Hanks v. Hanks, 296 N.W.2d 523 (S.D.1980) (marital misconduct does not necessarily render a parent unfit). Although Mother had committed adultery, the trial court did not find her affair had any detrimental impact on the children. See Adam v. Adam, 436 N.W.2d 266 (S.D.1989) (misconduct harmful to children can be considered). Liesl, the eldest daughter, told Judge Gilbert-son she saw Mother kiss Bob Rochelle once. Otherwise, there was no evidence the children were aware of Mother’s extramarital affair.

2. Siblings should not be split unless there are “compelling circumstances.” Mayer v. Mayer, 397 N.W.2d 638 (S.D.1986). Nathan is an infant and is not Father’s biological son. It appears Father did not seek custody of Nathan after this was discovered. There was significant evidence that all four children are bonded and love one another.

3. Frequent moves and transient lifestyles are not in children’s best interests. Jasper v. Jasper, 351 N.W.2d 114 (S.D.1984). Father’s job requires him to work long hours and to move often. As a result, if Father had custody a significant amount of the children’s day would be spent with a child care provider.

4. If Father was given custody he would have to expend a significant amount of money hiring child care providers. The trial court determined that would be an unnecessary strain on the limited finances available to this family.

5. The trial court interviewed the children and indicated that they were more outgoing and talkative than when Father had custody. Two of the three children interviewed indicated they wanted to live with Mother. The trial court specifically found the children had not been coached. In appropriate circumstances the choice of the children can be considered. See Isaak v. Isaak, 278 N.W.2d 445 (S.D.1979).

The trial court had significant articulable reasons for granting custody to Mother. The trial court’s custody decision is affirmed. We have considered Father’s other argument and find that the trial court did not abuse its discretion when it awarded him only $750 in attorney’s fees. We deny Father’s request for appellate attorney’s fees.

MILLER, C.J., and SABERS and AMUNDSON, JJ., concur. HENDERSON, J., dissents.