APPEAL FROM THE CIRCUIT COURT OF THE FIRST JUDICIAL CIRCUIT AURORA COUNTY, SOUTH DAKOTA HONORABLE TIMOTHY J. BJORKMAN Judge.
The opinion of the court was delivered by: Gilbertson, Chief Justice
CONSIDERED ON BRIEFS ON SEPTEMBER 29, 2008
[¶1.] Mike Schroeder filed a Petition for Change of Custody of his five-year-old son, Thomas. Custody of the child originally had been stipulated to by the parties. Mike alleged the conduct of the child's mother, Joleen Pietrzak, required a change in custody in order to serve Thomas's best interest and welfare. The trial court concluded a change in custody was required. We reverse.
[¶2.] The minor child in this matter, Thomas, was born to Joleen Pietrzak (Joleen) and Mike Schroeder (Mike), on October 22, 2001, after the breakup of the parties' brief relationship. Mike, a rancher/farmer and age thirty-four at the time of trial, was focused on his farming operation and a more rural and relaxed lifestyle. Joleen's focus was on educational goals and raising Thomas with what she considered to be proper manners in a more formal setting. Joleen was forty years old at the time of the custody trial.
[¶3.] Animosity developed between Jolene and Mike after the birth of Thomas concerning the manner in which Thomas would be raised. In October 2001, shortly after the birth of Thomas, Joleen moved from Plankinton, South Dakota, to Mitchell, South Dakota. Joleen's mother moved in with Joleen and Thomas. Two months later, Joleen filed a petition seeking full legal custody of the child subject to reasonable visitation with Mike, and child support. On February 12, 2002, a temporary order for custody, visitation, and support was entered by the trial court in which the parties' stipulation and agreement was incorporated into the court's order. The stipulation provided for joint legal custody of the minor child, with Joleen having primary custodial care subject to Mike's visitation. Mike was ordered to pay $150.00 in temporary child support beginning February 1, 2002, and half of the premiums for a health insurance policy maintained by Joleen for Thomas. The parties were ordered to provide their respective income information to a child support referee for determination of the appropriate amount of child support to be made retroactive to February 1, 2002. The order also required the parties to select a mediator for all remaining issues.
[¶4.] Despite the court order granting Mike midweek visitation on Wednesday at Joleen's home, after a short time Mike declined the visitation claiming that the presence of Joleen's mother made it too uncomfortable. On June 26, 2002, Mike filed a motion for scheduling of visitation, a trial date, and an order requiring home studies for both parties. Mike's motion was based on his claims that the parties had been unable to mediate the matter as ordered, and Joleen was not abiding by the South Dakota Child Visitation Guidelines.*fn1 Mike also complained that Joleen refused to communicate with Mike on important issues regarding the welfare of the child. Mike also requested a home study, and that both parties submit to psychological testing concerning their fitness for custody and visitation.
[¶5.] On October 25, 2002, after a hearing on the matter, a court order was issued that provided Mike with additional visitation and required him to provide for and pay the cost of transportation between Plankinton and Mitchell. All other matters were ordered to be determined at full trial, or upon separate motion to the court. The parties were ordered to submit to the home study to be conducted by Renee Turbak.
[¶6.] Turbak's home study included a psychological assessment of the parties by J. Gabriel Mydland, EdD LPC, in which he noted the parents both wanted what was best for Thomas, but found it difficult to work with one another to achieve the objective. The parties' personalities were assessed and the results did not suggest any risk to Thomas when in the supervision of either parent. Mediation was recommended as a means for the parties to resolve differences and "work together, without professional advocates, to find workable solutions." Turbak's home study provided a visitation schedule for Thomas through age four, with an increase in visitation at age five. Holidays, summer vacation, and transportation were also addressed. Finally, the home study recommended a ninety-day advance notification period if either parent planned on moving more than seventy-five miles from their current residence.
[¶7.] On September 18, 2003, Joleen filed a motion requesting an order from the court implementing Turbak's recommended visitation schedule. Mike resisted the motion, claiming that Turbak's schedule did not provide him with enough visitation. Mike also complained that he wished to reduce the amount of time the minor child spent in the company of Joleen's mother, as he thought she was a bad influence over Joleen and his son.
[¶8.] On November 6, 2003, Joleen filed a motion to permit her to move with Thomas outside the seventy-five mile limitation in the stipulated custody agreement. Joleen planned to enroll fulltime at the University of South Dakota in Vermillion, South Dakota, obtain a bachelor's degree, and eventually a postgraduate degree with the goal of becoming a professor.
[¶9.] Mike filed a resistance to the motion and a motion for a change of primary physical custody. In it he claimed Joleen refused to increase his visitation beyond the amount provided under the South Dakota Child Visitation Guidelines per his repeated requests.
[¶10.] On March 29, 2004, an order was entered reflecting that the parties reached another stipulated agreement. Thomas remained in Joleen's primary physical care and she was permitted to move to the Vermillion area with the minor child. In exchange, Mike obtained additional visitation. The parties were ordered to utilize Turbak to case manage the visitation schedule, and to negotiate more extensive visitation time when Thomas was not engaged in pre-school or grade school activities based on Thomas's adaptability to such extended visitation. During the time the parties were attempting to mediate issues, Joleen reported some behavioral issues with Thomas, including aggressiveness, biting, hitting, and clinginess after returning from visitation with Mike. Turbak declined to provide assistance with Thomas's behaviors due to her lack of training in child psychology. Instead, Turbak referred the parties to several child psychologists. The parties eventually selected Taryn Van Gilder, PhD, who diagnosed Thomas with adjustment disorder.
[¶11.] On August 26, 2004, Joleen filed a petition for modification of child support for determination of an amount above the $150.00 set in the February 12, 2002, temporary order. Child support referee James D. Taylor was appointed. Mike failed to comply with the February 12, 2002, court order requiring him to submit his financial records for determination of child support obligations, and refused to comply with a subpoena for those records. Referee Taylor ordered Mike to comply; Mike failed to comply until the date of the hearing before Referee Taylor.
[¶12.] On December 13, 2004, Referee Taylor filed his report in which he pointed out inconsistencies in Mike's financial documents that made it difficult to ascertain exact income amounts, but noted a substantial amount of assets and debt in connection with his farming operation. Mike's child support obligation was set at $438.00 less a credit of $75.00 per month toward Mike's visitation travel expenses from Plankinton to Yankton. Mike was also required to pay a percentage of Thomas's unreimbursed medical expenses. A child support arrearage in the amount of $8,047.00 was ordered against Mike. Mike was ordered to pay $363.00 in child support beginning January 1, 2002, and at least an additional $75.00 per month toward the arrearage for a monthly obligation of $438.00. The parties were ordered to pay their respective attorney fees and costs.
[¶13.] On December 20, 2004, Mike objected to the Referee Taylor's report; Joleen resisted. Mike refused to pay the increased child support amount in violation of the court order, paying only the $150.00 per month and some of his share of the health insurance premiums under the temporary order dated February 12, 2002. On August 9, 2005, after consideration on briefs, the trial court entered an order approving the referee's report. The trial court also ordered Mike to pay $500.00 toward the $3,396.22 incurred by Joleen in attorney fees and costs in the matter due to his failure to remit his financial documents per court order.
[¶14.] On August 23, 2005, Mike filed a motion to reconsider the child support order; Joleen resisted. On August 31, 2005, Mike filed a motion to allow continued visitation, complaining that Joleen had enrolled Thomas in a three-day preschool program that interfered with Mike's every other weekend visitation, which began on Thursday afternoons and ran through Sunday evening. A letter from Thomas's preschool teacher was attached, which noted it would not be detrimental to Thomas to miss one day of preschool every other week.
[¶15.] Joleen answered the motion, and reluctantly agreed to Thomas missing the day of preschool. In her motion, Joleen asked the court to order Mike to pay the new child support amount of $363.00 and the $75.00 per month in arrearages as ordered by the court in December 2004, and the $500.00 attorney fees awarded under the court's August 9, 2005, order.
[¶16.] On September 7, 2005, the trial court ruled from the bench denying Mike's August 23, 2005, motion for reconsideration of the child support. On October 7, 2005, Mike appealed to this Court the August 9, 2005, order of the trial court and its denial of his objections to the referee's report.
[¶17.] Mike then filed a Petition for Modification of Child Support on November 2, 2005. On May 19, 2006, child support referee Mike Carter dismissed Mike's Petition for failure to contact the referee. On June 1, 2006, the trial court entered an order accepting Referee Carter's report and recommendation, and dismissed Mike's Petition.
[¶18.] On May 5, 2006, Mike filed a second Petition for Change of Physical Custody via his new attorney requesting an order setting a trial date and for Joleen to submit to psychological testing. In his affidavit in support of the Petition, Mike testified that in the past he had had to have the court ordered visitation enforced, and that Joleen had made allegations of sexual and physical abuse against Mike.
[¶19.] On October 25, 2006, Mike's appeal before this Court of the February 2005 child support order was affirmed by one page order, concluding the appeal was without merit. This Court awarded Joleen $2,476.30 in appellate costs and attorney fees.
[¶20.] Despite failing to prosecute the Petition for Modification filed on November 2, 2005, which resulted in a dismissal, and losing his appeal before this Court on the original child support award made in February 2005, Mike filed yet another Petition for Modification of Child Support. Wanda Howey-Fox was appointed as the referee for the matter. Mike once again refused to comply with the trial court's order requiring him to submit his financial documents. Joleen filed a motion to compel, which Mike resisted via a motion to quash; Referee Howey-Fox deferred her ruling on the motions until the day of the hearing.
[¶21.] Referee Howey-Fox's report and recommendation dated June 18, 2007, provided a critical condemnation of Mike's attempts to avoid any increase to his temporary child support payment of $150.00 per month. Mike's testimony at the hearing was included in that report as: "every penny of the money that he uses to pay child support is borrowed" and is part of an operating note on the farm. Furthermore, Mike testified that he believed his income should not be used to pay for Thomas's health insurance as Mike and Joleen's lack of financial resources should qualify Thomas for Title XIX at taxpayer expense.
[¶22.] Referee Howey-Fox's report and recommendation included a finding that Mike's net worth at the time of the hearing varied depending on whether internal bank documents or external tax documents were viewed. The report concluded Mike had $1,257,550.00 in assets and a net worth of $664,991.00. Howey-Fox wrote: "Petitioner, however, believes that the balance of the citizens of the State of South Dakota should provide the medical care for his child even though he has a net worth in excess of $664,000.00." Mike's net monthly income was determined to be $1,950.00, while Joleen's was set at $783.74 per month using minimum wage after qualifying deductions. Howey-Fox also concluded that Mike's arguments were circuitous and without any merit. No substantial change in circumstances was found. Finally, Joleen was awarded $3,702.31 in attorney fees and costs. Mike once again objected to the referee's report and recommendation, and once again was ordered by the trial court to pay monthly child support of $363.00 and $75.00 per month in arrearages.
[¶23.] On July 2, 2007, Joleen filed a Motion to Show Cause for Contempt, as Mike had not complied with the child support payments recommended by Child Support Referee Taylor on December 31, 2004, and court ordered on August 9, 2005. Joleen's motion alleged Mike's payment of child support was irregular and erratic, and calculated he owed an additional $3,570.00 in back child support from January 2005 through July 2007, plus $2,530.78 in unreimbursed medical expenses for Thomas.
[¶24.] Mike objected, claiming he only owed arrearages of $2,067.00. He excused his failure to pay child support as follows: "Defendant is a farmer and therefore does not have a regular weekly or monthly paycheck. Because of this, he is required to wait until money comes in each month to pay child support or borrow the money from the bank." Mike's objections were rejected by the trial court, and the child support order and arrearages remained as determined by Howey-Fox. Mike finally paid his back child support the week before the custody trial, and his share of unreimbursed medical expenses on the second day of trial.
[¶25.] At trial, Dr. Van Gilder testified that she had seen Thomas one-hundred times for counseling sessions since the age of three. She also testified that despite two years of sessions, she could not say that Thomas had improved over time. Dr. Van Gilder noted that Joleen appeared to have a difficult time hiding her dislike and distrust of Mike from Thomas, but that it was not something she was doing intentionally. Although Dr. Van Gilder testified to noticeable improvement in Joleen's behavior in the spring of 2007, that improvement, however, dissipated as the custody trial approached. She further testified that Thomas was a resilient, loving child who was highly bonded to both parents. Dr. Van Gilder testified that she did not believe Thomas would struggle to adapt to a change in custody. Dr. Van Gilder did not recommend a change in custody.
[¶26.] Dr. Van Gilder was questioned extensively by Mike's attorney concerning the possibility that Joleen was attempting to alienate Thomas from Mike. Dr. Van Gilder testified that Thomas was exhibiting behaviors consistent with one or both parents engaging in parental alienation. She could not say specifically who was engaging in the alienating behaviors. Dr. Van Gilder further testified that Joleen's reactions to Mike's parenting style were strong, and that Joleen had a difficult time hiding her anxiety from Thomas. Anxiety producing factors included Mike driving with Thomas in the pickup on the farm without a car seat, guns in the home and pickup, being around farm machinery, and not wanting to be separated from Thomas.
[¶27.] Dr. Van Gilder also testified to incidents of Mike's behaviors that caused anxiety for Thomas. Those included telling Thomas that Dr. Andre Clayborne, a court-appointed evaluator, was coming to their home to decide where Thomas would live and go to school. Dr. Van Gilder further testified to the effects of an incident on Thomas in which ...