Benson v. Loffelmacher

#26169-a-JKK
2012 S.D. 75IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
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BRENT BENSON, Petitioner and Appellee,
v.
MICHELLE LOFFELMACHER, Respondent and Appellant.
****
APPEAL FROM THE CIRCUIT COURT OF
THE SEVENTH JUDICIAL CIRCUIT
PENNINGTON COUNTY, SOUTH DAKOTA
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THE HONORABLE JOHN J. DELANEY
Retired Circuit Judge
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MARCIA WHITING
Rapid City, South Dakota Attorney for petitioner
and appellee.
MURL L. WOODS
Rapid City, South Dakota Attorney for respondent
and appellant.
****
CONSIDERED ON BRIEFS
ON AUGUST 27, 2012
OPINION FILED 10/31/12
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KONENKAMP, Justice
[¶1.] In this custody dispute, the circuit court awarded joint legal custody to
both parents and primary physical custody to the father, and the mother appeals.
We affirm.
Background
[¶2.] Michelle Loffelmacher and Brent Benson had a child out of wedlock.
Michelle told Brent about her pregnancy before their child’s birth. On December 8,
2004, A.L. was born, and a paternity test confirmed Brent as her biological father.
Brent had only limited involvement with A.L. after her birth until late 2007. He
lived in Minnesota during that time, but would send A.L. presents and occasionally
visit her at Michelle’s home in Rapid City.
[¶3.] In 2007, Brent moved to Dickinson, North Dakota, near his parents’
residence. Michelle’s sister, Cheryl, lived twenty-five miles south in New England,
North Dakota. Michelle frequently took A.L. to Cheryl’s home, at which times
Brent would visit A.L. Gradually, Brent began to take A.L. from Cheryl’s home to
his parents’ house. There, Brent’s mother operated a daycare and would watch A.L.
while Brent exercised visitation. When his time for visitation ended, Brent would
return A.L. to Cheryl’s home. Cheryl would return A.L. to Michelle, or Michelle
would drive from Rapid City to North Dakota to retrieve A.L.
[¶4.] In November 2007, Brent petitioned the circuit court to establish
paternity, custody, and visitation. Michelle responded with a request to modify
child support. Before trial, they agreed that Michelle would retain physical custody
of A.L. and drop her request to modify child support, and Brent would exercise
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visitation for one week every other month at Brent’s mother’s home. This
arrangement continued until Brent petitioned for a change of custody in October
2010, with an accompanying motion for an emergency change of custody. Brent
believed Michelle’s mental health issues prevented her from adequately caring for
A.L.
[¶5.] At a hearing in November, the circuit court denied Brent’s request for
an emergency change of custody. The court ordered a professional custody
evaluation and scheduled an evidentiary hearing for January 2011. At the time of
the hearing, the custody evaluation was not yet complete. Nonetheless, Brent, his
mother, Michelle’s sister, Cheryl, and Cheryl’s husband testified on Brent’s behalf.
They spoke about Brent’s care of A.L. and about Michelle’s depression and mental
health issues, particularly Michelle's inability to care for A.L. when she was
depressed. They also described the nature of Michelle’s relationships with three
men. To refute Brent’s allegations, Michelle introduced several character
witnesses. They testified about the appropriateness of Michelle’s care of A.L. and
her management of her mental health issues.
[¶6.] After the hearing, the court took the issue under advisement and
allowed the parents to submit post-hearing briefs. Ultimately, in March 2011, the
court awarded interim custody to Brent. It based its decision on Michelle’s mental
health problems, which had impaired her ability to care for A.L. in the past, and
which would likely continue at certain times in the future. The court also focused
on the fact that Michelle had inappropriately exposed A.L. to three live-in
boyfriends.
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[¶7.] On June 29, 2011, the custody evaluator, Thomas Collins, submitted
his report to the court. He addressed each of the factors from Fuerstenburg v.
Fuerstenberg, 1999 S.D. 35, 591 N.W.2d 798. On the issue of the parents’ physical
and mental health, Collins concluded that Brent had a “strong advantage.” He
explained that Michelle “has a history of mental health disorders, including
depression, anxiety, and an adjustment disorder, and she was voluntarily admitted
to Rapid City Regional Psychiatric Unit in 2007.” He noted that Michelle “has
counseled with several different providers since 2005 and has been variously
diagnosed with Bipolar II, with recurring depression, major depression, general
anxiety disorder, obsessive compulsive disorder, ADHD, dyslexia, and has received
a global assessment of function ratings ranging from 40 to 65.” Michelle had gone
long periods without her medication, “exasperating her symptoms, and impacting
her ability to care for [A.L.]”
[¶8.] Collins also believed that Brent had the advantage in being able to
provide A.L. with protection, food, clothing, medical care, and other basic needs,
although he concluded that Michelle could also provide for those needs. Collins
reported that Brent had “an excellent career” and “the financial ability to provide”
for A.L.
[¶9.] On ability to give A.L. love, affection, guidance, education, and impart
a faith or creed, Collins thought Michelle had “a positive relationship with [A.L.]
and provide[d] guidance and [was] involved with [her] educational development.”
He also observed that Brent had “a positive relationship with [A.L.], and provide[d]
proper guidance and [was] involved in her educational development.”
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[¶10.] Michelle had a slight advantage, according to Collins, on the
willingness to maturely encourage and provide frequent and meaningful contact
between the child and both parents. Collins believed that since Brent had obtained
custody of A.L., he had been reluctant to encourage A.L.’s time with Michelle, and
he “need[ed] to be more positive with [A.L.] in regards to her time with” her mother.
[¶11.] Finding that Michelle exhibited some boundary issues with A.L.,
Collins gave Brent a slight advantage on the factor related to parental commitment
to preparing the child for adulthood and ensuring a fulfilling childhood. Although
Michelle was preparing A.L. for responsible adulthood, Collins opined that Michelle
“need[ed] to establish clear boundaries with [A.L.] in the areas of personal hygiene
and sleeping arrangements.”
[¶12.] Collins gave Brent the advantage on the ability to present to his child
the model of a good parent, a loving spouse, and a responsible citizen. On this
factor, Collins emphasized that Michelle had exposed A.L. to two failed live-in
boyfriend relationships. Indeed, one of her boyfriends had given Michelle concern
that A.L. had been sexually abused, which “was stressful for [A.L.], and resulted in
counseling[.]”
[¶13.] Collins rated the parents nearly equal on A.L.’s relationship and
interaction with Brent, Michelle, stepparents, siblings and extended family. He
recognized that A.L. had a “strong attachment” to Michelle and a “positive
attachment with” Brent. Collins gave Michelle the advantage on the factor
assessing A.L.’s adjustment to home, school, and community, because A.L. was just
becoming familiar with Brent’s community, whereas she had resided with Michelle
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since birth. Collins also concluded that A.L. had a closer attachment to Michelle.
On the factor of continuity, however, Collins gave Brent the advantage, explaining
that Brent had lived and worked in Dickinson, North Dakota for the past ten years
and would likely continue this lifestyle, whereas Michelle had “a history of changing
relationships and [would] likely consider moving to Dickinson to be near [A.L.]”
[¶14.] Harmful parental misconduct was a concern for Collins. He addressed
Michelle’s three live-in relationships and her lack of regard for how those would
affect A.L. One relationship resulted in a referral to child protection services for
possible sexual abuse. Collins also examined Michelle’s mental illnesses and
emotional disturbances. Although Michelle’s illnesses were not her fault, she “failed
to maintain continuity in treatment, resulting in periods of time [where] she [had]
been unable to care for [A.L.]” Collins faulted Brent for not being involved in A.L.’s
“life for much of her first four years, and as such, did not encourage their
relationship.”
[¶15.] Collins recommended that Brent maintain custody, writing that
although “in most cases this evaluator would suggest [Michelle] continue as the
primary caregiver,” here there were concerns about “harmful misconduct or an
inability to provide care.” With his recommendation, Collins also proposed a
visitation schedule.
[¶16.] After Collins issued his report and recommendation, a hearing was
held in August 2011. The court indicated that it would be considering the evidence
and testimony from the earlier interim hearing along with any new evidence. At
the conclusion of the hearing, the court issued an oral ruling. Concurring with
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Collins’s report, the court reiterated the concern about Michelle’s long-term
management of her mental health issues that, when unmanaged, made her unable
to care for A.L. It also expressed its unease with Michelle’s exposure of A.L. to
three different men with whom Michelle had romantic, live-in relationships. The
court gave joint legal custody to both parents and physical custody to Brent.
Michelle appeals, asserting that the court abused its discretion when it awarded
Brent physical custody, and used the wrong standard to evaluate a change of
custody.*
Analysis and Decision
[¶17.] Michelle contends that the circuit court abused its discretion when it
awarded custody to Brent, because the court entered multiple clearly erroneous
findings. First, Michelle argues that the court erred when it found that her mental
health condition made her unable to care for A.L. Second, Michelle asserts error in
the finding that her relationships negatively impacted A.L. Michelle also faults the
court’s findings for not giving sufficient consideration to the “harm perpetrated
upon A.L. by Brent’s failure to establish a relationship with her until she was two
and one-half years old,” and Brent’s reliance on Michelle’s sister and his mother to
care for A.L. when he exercised visitation.
* A court’s findings of fact in a custody dispute are reviewed for clear error.
Maxner v. Maxner, 2007 S.D. 30, ¶ 10, 730 N.W.2d 619, 622 (citing Arneson v.
Arneson, 2003 S.D. 125, ¶ 14, 670 N.W.2d 904, 909) (additional citation
omitted). We review the court’s application of the law de novo. Arneson,
2003 S.D. 125, ¶ 13, 670 N.W.2d at 909. However, “in our review of an
ultimate decision on custody, we decide only whether the court abused its
discretion.” Id. ¶ 14 (citing Fuerstenberg, 1999 S.D. 35, ¶ 22, 591 N.W.2d at
807).
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[¶18.] Although Michelle avers that the court concluded that her mental
health prevented her from caring for A.L., the court in fact found that, when
untreated, Michelle’s mental health issues made her unable to care for A.L. And
because Michelle had a history of inconsistent management of her mental health,
the court deemed Michelle’s mental health issues to be an important consideration
in its decision to place primary physical custody of A.L. with Brent. Michelle does
not dispute that, when unmanaged, her mental health issues have caused her to be
unable to care for A.L. Collins, the custody evaluator, similarly found reason to be
concerned about Michelle’s inconsistent management of her mental health.
Michelle’s sister testified about first-hand experiences with Michelle when her
mental health was unmanaged. The record supports the court’s finding that, when
unmanaged, Michelle’s mental health problems caused her to be unable to care for
A.L.
[¶19.] Michelle next claims that although she has had three live-in
relationships since 2007, the court erred when it found that A.L. was harmed as a
result of those relationships. In the circuit court’s view, Michelle’s relationships
with three men, living in her home, “seemingly in rapid succession,” occurred “with
no regard for the impact of these changing relationships on [A.L.].” One of the
relationships resulted in a referral to child protection services for possible sexual
abuse, and A.L. received counseling. We detect no clear error in the court’s finding
that A.L. was harmed by Michelle’s relationship choices.
[¶20.] On Michelle’s next assertions — that Brent has failed to bond with and
provide care to A.L., and that Brent’s wife abuses alcohol — we find no clear error
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in the court’s findings. The court considered the fact that Brent had little
involvement with A.L. from birth to two years. But over time Brent developed a
bond with A.L. At the time of the hearing, the court found that Brent established
that he could meet A.L.’s needs: he used appropriate child rearing practices, had the
financial ability to provide for her, was preparing her for responsible adulthood, and
maintained a good value system. The court also addressed the fact that when Brent
began exercising visitation, it was at Cheryl’s or his mother’s home. Brent testified
that because of something Michelle said to his mother, he feared that having A.L.
alone in his home would provoke allegations by Michelle of some impropriety.
Finally, on Michelle’s claim that Brent’s wife abuses alcohol, Brent’s wife testified to
consuming wine socially and to a history of DUI convictions. Yet there was no
evidence that A.L.’s relationship with Brent’s wife was inappropriate, harmful, or
otherwise negative.
[¶21.] Michelle lastly argues that the court imposed an improper burden on
her to prove a substantial change in circumstances before she could receive custody.
When custody has been obtained through a contested proceeding, one seeking to
change custody must “show a substantial change of circumstances.” McKinnie v.
McKinnie, 472 N.W.2d 243, 244 (S.D. 1991); Kolb v. Kolb, 324 N.W.2d 279, 281-83
(S.D. 1982). In its findings of fact, the circuit court noted that “[t]here were no
changes in circumstances to warrant a reversal of the . . . change [of] custody of the
minor child to father as of April 1, 2011.” In the April 1 hearing, the court only gave
interim custody to Brent; therefore, Michelle would not have had the burden of
proving a substantial change in circumstances to regain custody. Despite the inapt
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language, the court imposed no such burden. In deciding who should receive
permanent custody, the court indicated that it would consider the evidence earlier
offered at the interim hearing. The court was merely recognizing that the
circumstances had not changed since the interim hearing, and therefore the
rationale for its interim decision remained the same. Thus, the court did not
impose a higher burden on Michelle.
[¶22.] Affirmed.
[¶23.] GILBERTSON, Chief Justice, and ZINTER, SEVERSON, and
WILBUR, Justices, concur.
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