APPEAL FROM THE CIRCUIT COURT OF THE SECOND JUDICIAL CIRCUIT LINCOLN COUNTY, SOUTH DAKOTA, HONORABLE DOUGLAS E. HOFFMAN Judge.
CONSIDERED ON BRIEFS ON APRIL 27, 2009
[¶1.] Jeffrey Baker appeals the circuit court's order in this child custody proceeding. A provision in the circuit court's order substantially and automatically reduced Jeffrey's noncustodial parenting time*fn1 based solely on whether Amanda Holland, the mother, worked weekends. Because that reduction in noncustodial parenting time is not supported by findings based on the record, it constitutesan abuse of discretion, we reverse and remand.
[¶2.] Jeffrey and Amanda are the parents of Brady Baker. Brady was born November 27, 2006. Jeffrey and Amanda were not married but resided together until December 2007. The court found that while they lived together both parents were significantly involved in the care of Brady. Both parents also have an additional child. Amanda's son has shared a home with Brady since his birth. The court found that both parents were fit and stable individuals, had been significant caretakers and had not demonstrated any harmful parental misconduct. The court awarded joint legal custody with primary physical custody to Amanda.
[¶3.] The parents' work schedule, and the resulting impact on noncustodial parenting time, is the primary issue involved in this appeal. Jeffrey worked weekdays from 8 a.m. to 5 p.m. Amanda worked two days a week from 9 a.m. to 8 p.m.; three days a week from 9 a.m. to 5 p.m. and every Saturday. Jeffrey was granted noncustodial parenting time on an alternating basis: one week he would have Brady on Tuesday evening from 5 p.m. to 8 p.m. (three hours) and Friday from 5 p.m. to Sunday at 9 a.m. (two overnights). The next week he would have Brady on Tuesday from 5 p.m. to 8 a.m. (overnight) and Friday from 5 p.m. to Saturday at 5 p.m. (overnight). The order also provided for an alternative noncustodial parenting time schedule in the event Amanda no longer worked weekends:
ORDERED that when [Amanda] is no longer working on Saturdays or the weekends, she shall be entitled to every other weekend with the minor child and [Jeffrey] shall be entitled to visitation on alternating weekends as set forth in paragraphs A and D.
A. Week One- [Jeffrey] shall exercise visitation with the parties' minor child on alternating Fridays beginning at 5:00 p.m. overnight until Saturday at 5:00 p.m.
D. During the week Jeffrey exercises Friday through Sunday visitation (Week Two) he shall be entitled to one mid-week visit beginning at 5:00 p.m. and ending at 8:00 p.m. on Tuesdays.
Since the record indicated that Amanda no longer worked weekends, the alternative noncustodial parenting time schedule was implemented. However, the terms of the alternative schedule contained inconsistencies and led to confusion for the parties. The order gave Jeffrey parenting time every other weekend from Friday at 5:00 p.m. until Saturday at 5:00 p.m. and then under provision D. there was presumably a three-hour noncustodial parenting time Tuesday from 5 p.m. to 8 p.m. The terms of the order appear inconsistent in that there was no specific award of noncustodial parenting time from Friday through Sunday for Jeffrey as prefaced in clause D. to trigger the three-hour period. Amanda interpreted the provision to mean: "once Mother is no longer working on Saturdays or weekends, Father's visitation will essentially revert to alternating Fridays at 5:00 p.m. until Saturday at 5:00 p.m." Brief for Appellee at 3 (Appeal No. 24974). Jeffrey filed a motion to reconsider the noncustodial parenting time order and the record demonstrates that the varying interpretations of the order were brought to the court's attention.*fn2 The court denied the motion to reconsider but e-mailed the parties that Amanda's attorney was correct in interpreting this provision as allowing Jeffrey parenting time on alternating Fridays to Saturday overnight and Tuesday for three hours; now that Amanda was not working every Saturday. As a result, the previous schedule giving Jeffrey a full weekend of parenting time and the weekday overnight has been eliminated.
[¶4.] Jeffrey appeals contending the circuit court abused its discretion in ordering the weekend work clause and the corresponding reduction in his parenting time.
[¶5.] A circuit court's order for noncustodial parenting time is reviewed under the abuse of discretion standard. L.S. v. C.T., 2009 SD 2, ¶ 28, 760 NW2d 145, 153. "The term 'abuse of discretion' refers to 'a discretion exercised to an end or purpose not justified by, and clearly against, reason and evidence.'" Id. (citations omitted). "However, the trial court's exercise of discretion is not uncontrolled and must have a sound and substantial basis in the testimony." Weber v. Weber, 529 NW2d 190, 191 (SD 1995).
[¶6.] The primary focus always remains on the best interests of the child. Id. In determining the best interests of a child, the court must consider the child's "temporal and mental and moral welfare." SDCL 25-4-45. "The trial court may, but is not required to, consider the following factors in determining the best interests and welfare of the child: parental fitness, stability, primary caretaker, child's preference, harmful parental misconduct, ...